text:
    Bernard WALTERS v. STATE of Mississippi.
    No. 52314.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    F. Kent Stribling, Arthur D. Currie, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, WALKER and BROOM, JJ.
   BROOM, Justice,

for the Court:

Armed robbery is the offense for which Bernard Walters (defendant) was convicted in the Circuit Court of the First Judicial District of Hinds County. The jury fixed his punishment at life imprisonment and on his appeal he argues that the lower court erred in (1) excluding him from the courtroom, and (2) rejecting his jury instruction D-4. We affirm.

Together with an accomplice, the defendant on January 5, 1979, robbed the Delta Drive Branch of Deposit Guaranty National Bank in Jackson of approximately $137,000. He admitted the robbery but contended that he was unarmed although he intimidated the bank employees by stating his accomplice had explosives.

As to his exclusion from the courtroom, the defendant admits that his first exclusion was at his request. He argues, however, that his second exclusion was not at his request and was without sufficient provocation.

The following colloquy occurred during voir dire of the jury during which the defendant began his disruptive behavior:

* * * * * *
BY THE COURT:
Do you understand that, if you are selected to try this case, it will be your duty to decide the case by determining what the facts are and by determining the facts solely from the evidence that is produced in open court and that requires that you not consider anything that you might have heard outside the courtroom.
BY THE DEFENDANT:
Excuse me. I would like to tell the jury that this is not a State case. It’s a Federal case and nothing else. They are alleging armed robbery and all that but this is not a State case. I can get a life sentence. You left that out.
BY THE COURT:
I haven’t finished yet, Mr. Walters. Please return to your seat and we will finish with the voir dire.
(Defendant sitting down.)
******
BY THE COURT:
I believe I am going to substitute and let you try another case. Mr. Cofer, take Ms. Vinson down to the other courtroom.
BY THE DEFENDANT:
How is it possible that I can get a fair trial in this courtroom? I have been referred to as nigger all morning in this courtroom and I have got shackles on. How do you expect me to sit here and expect to get a fair trial? How do you expect that?
BY MR. COFER:
This is Leroy Allen which is number four on panel six.
BY THE DEFENDANT:
I have asked the Court to get both these counsel off my case. These people won’t represent me.
BY THE COURT:
Mr. Walters, it’s going to be necessary that you remain quiet.
BY THE DEFENDANT:
I am not going to remain quiet. I am just not going to.
BY THE COURT:
You are going to remain quiet.
BY THE DEFENDANT:
I am not going to remain quiet.
BY THE COURT:
You will have to remain quiet while we conduct the trial.
BY THE DEFENDANT:
I am not going to remain quiet-no. Do what you have to do. You can force me to remain quiet but I am not going to remain quiet on my own volition, you know, and that’s that. I recognize and I understand that I am not going to get a fair trial in this courtroom.
BY THE COURT:
You are going to get a fair trial, Mr. Walters.
BY THE DEFENDANT:
That’s impossible.
BY THE COURT:
And you are also entitled to be present at all times.
BY THE DEFENDANT:
I am not going to get a fair trial. How is it possible? You can’t possibly render a fair trial to me. That’s impossible. How could I get a fair trial?
BY THE COURT:
I am asking you to remain quiet.
BY THE DEFENDANT:
I will not remain quiet.
******
When voir dire was turned over, to the district attorney, the following occurred: BY THE COURT:
Okay. Mr. Peters?
BY MR. PETERS:
May it please the Court-as the judge told you, I am Ed Peters and Vaughn Davis and I will be representing the State. As you have also heard from the defendant in this case, Dale Currie and Kent Stribling is [sic] representing-
BY THE DEFENDANT:
(Interposing) Mr. Currie and Mr. Stri-bling are not my attorneys. I wish you would stop referring to them as my attorneys. The State has put them on my case and I have asked them to take them off my case because neither one of these guys show any interest in the case. They only took it because they would get paid for the case. They don’t have my best interest at heart. Stop referring to them as my attorneys, please.
BY THE COURT:
Mr. Walters, you are going to have to keep under control. Let’s move along.
* * * * * *
BY MR. PETERS:
Thank you. I am going to try to remember but, if I should happen to forget to call your name when you raise your hand, would you remind me that I haven’t told her your name? That way I can think about one thing at a time. I can’t walk and chew gum at the same time so I am going to try to keep my mind on asking the questions. BY THE DEFENDANT: ,
You can’t walk and chew gum at the same time but you are on my case. You are a real idiot, man.
BY THE COURT:
Mr. Walters, I am going to tell you again to keep yourself under control.
BY THE DEFENDANT:
I am not going to keep myself under control.
BY THE COURT:
You are going to keep yourself under control or you are going to be forced to.
BY THE DEFENDANT:
Force me then because that’s the only way-that’s the only way.
BY THE COURT:
Go ahead, Mr. Peters.
BY MR. PETERS:
Thank you, Your Honor.
BY THE DEFENDANT:
Can’t walk and chew gum at the same time. Realize people-
BY THE COURT:
Members of the jury panel, I’ll ask each one of you to make note of where you are sitting at the present time and, when you are called back in, take your same seat. Do all of you understand?
(Jurors nodding heads)
BY THE COURT:
I’ll ask you to step out in the hallway for a few minutes, please.
(Jury panel leaving courtroom)
Outside the jury’s presence, the following occurred:
BY THE COURT:
Mr. Walters, previously in a trial once before, you did the same thing.
BY THE DEFENDANT:
And I am going to keep doing it, Your Honor, and you just do what you have to do.
BY THE COURT:
I want you to listen to me. I want to tell you something.
BY THE DEFENDANT:
I don’t want to hear it.
BY THE COURT:
You have the right to-
BY THE DEFENDANT:
(Interposing) I want you to give me a change of venue.
BY THE COURT:
Just a minute, Mr. Walters.
BY THE DEFENDANT:
I don’t care what you have to say.
(Gag being put on the defendant)
BY THE COURT:
You did this at the last trial. That’s enough for right now. Mr. Walters, you have the right to remain in the courtroom. Your have the right guaranteed under the Constitution to be present at your trial. (Defendant fighting. A bandage was put across his mouth, shackles were put on and he was handcuffed with his hands behind his back).
BY THE COURT:
Mr. Walters, as I was beginning to say and you would not listen to me, I explained to you the last time we attempted to try your case that you have the Constitutional right to be present at all times during your trial. This is one of the guarantees of the Constitution of the United States and of the State of Mississippi and I would like to see that you are afforded that right. During the last trial, despite our attempts to keep you restrained in the courtroom, you persisted in removing the gag and asking that you be allowed to return to your cell and I do not intend to let you continue to disrupt the court and, if you persist, you will be taken back to your cell and brought back only when it is necessary for your presence in the courtroom.
(The defendant worked his mouth free from the tape and was talking through the tape on his mouth).
BY THE DEFENDANT:
I would prefer that.
BY THE COURT:
Are you ready to answer my questions? BY THE DEFENDANT:
I will not answer any questions. I would prefer that you take me back to the jail.
BY THE COURT:
Did I understand that you said you preferred that I take you back to the jail?
BY THE DEFENDANT:
Yes.
BY THE COURT:
Is that correct?
BY THE DEFENDANT:
Yes.
BY THE COURT:
All right. I am going to grant your request but I am going to tell you this. At any time you feel that you can come back and control yourself and not disrupt the court, you let the jailor know and you will be brought back over here. Do you understand that?
BY THE DEFENDANT:
I don’t want to be brought back over here. I want to remain in my cell.
BY THE COURT:
If at any time you want to come back and conduct yourself with the proper demeanor in the courtroom, then you will be permitted to return. Do you understand?
BY THE DEFENDANT:
Yes.
BY THE COURT:
Take him to the jail and tell the jailor that at any time he requests to be brought back to bring him back over here.
(Defendant taken out of courtroom)
BY THE COURT:
We’ll take a few minutes recess.
(Short recess)
BY THE COURT:
Mr. Broadwater-this is out of the presence of the jury and Mr. Broadwater is a bailiff in the case. Did you take Mr. Walters back to the jail?
BY MR. BROADWATER:
Yes, I did, Your Honor.
BY THE COURT:
What instructions did you give to the jailor?
BY MR. BROADWATER:
I instructed the jailor that, when Mr. Walters could control himself, that he should notify us and we would bring him back to court.
BY MR. STRIBLING:
May it please the Court, the defense would like to enter an objection to the defendant’s being physically removed from the courtroom during the trial of this charge.
BY THE COURT:
Well, as I tried to explain to Mr. Walters, at the last setting of this case, during the voir dire by the District Attorney, Mr. Walters spoke out several times in very disrespectful terms and, in fact, started walking towards the exit of the courtroom and had to be restrained by the bailiff and he was taken outside the courtroom and, in the absence of the jury venire, he was requested to control himself and, after approximately a half hour, it was apparent that he would not. An attempt was made to restrain Mr. Walters and all efforts were to no avail. He managed to remove the tape from his mouth and, even after being restrained to his chair, he still managed to get out of the chair and pull the tape from his mouth and continued to be disrespectful and requested that he be permitted to return to his cell. The gist of his statements, as I recall them, was that he did not feel that he should be tried in a State Court-that the bank that he was accused of having robbed was a national bank and he felt that the Federal Court had jurisdiction. During a recess which was taken in the hope that Mr. Walters would get control of himself, the Court was advised by his attorney that he had only .recently learned that Mr. Walters had undergone psychiatric evaluation pending Army proceedings-criminal proceedings against him-and there were some other indications that possibly Mr. Walters was suffering from a mental disorder or had in the past had a mental disorder. The motion was made at that time for a mental examination and, in view of the statements from the attorney and from a relative of the defendant, it was felt that a mental examination was required and that mental examination was carried out. A continuance was granted at that time. It became apparent to me at that time that physical restraint of Mr. Walters would be practically impossible without the use of a straight jacket, shackles, special chair-immovable chair-and gags that could not possibly be removed. Mr. Walters, after being — this morning Mr. Walters’ mouth was taped and cuffs and manacles placed on him so that he could not get his hands to his mouth and remove the gag. He still managed by the movement of his mouth to speak underneath the gag or tape. I feel that the use of the measures that would be necessary to restrain him would be so excessive that the jury would not be able to concentrate on the case. In my opinion, the only alternate to that is to remove him from the courtroom and, for this reason, this action was taken and so your motion to return the defendant to the courtroom will be denied at the present. The jailor has been instructed that at any time Mr. Walters indicates that he is willing to control himself he will be returned. I am instructing the defense counsel that, during any recess that we take, one of you go to the jail and ascertain from Mr. Walters if he will control himself if he is permitted to return to the courtroom or if he wants to return to the courtroom. Are you ready to proceed now?
BY MR. PETERS:
The State is ready, Your Honor.
BY MR. STRIBLING:
Yes, Your Honor.
BY THE COURT:
Bring the jury panel in.

(Jury panel returned to the courtroom)

Shown above are the circumstances related to the defendant’s first exclusion from the courtroom. The record shows that the defendant was appropriately instructed (outside the jury’s presence) as to his right to be present and that he could be admitted back into the courtroom on the condition that he would properly conduct himself.

His second exclusion was occasioned by his further disrespectful and disorderly behavior. Following the defendant’s initial exclusion, the prosecutor continued to voir dire the jury when at the defendant’s request he was admitted back into the courtroom. The following excerpts from the record show what then transpired:

BY THE COURT:
Let the record show that the defendant desires to return to the courtroom and we will be in recess until he returns. (Defendant returning to courtroom)

Voir dire continued until appellant interrupted as follows:

******
BY MR. PETERS:
Is there anyone that feels that this is a racial issue or that there is any racism going on?
(No response)
BY MR. PETERS:
Is there anyone at all that feels that way?
(No response)
BY MR. PETERS:
Anyone?
BY THE DEFENDANT:
Sure it’s an issue of race. Did you ever prosecute a white guy in this courtroom? BY THE COURT:
Mr. Broadwater, carry him back to the jail.
BY THE DEFENDANT:
Sure it’s an issue of race. You know as well as I do it’s an issue of race.
BY THE COURT:
Mr. Walters-
BY THE DEFENDANT:
You offered me fifty years to cop out. You know it’s an issue of race. Do you give any white guys fifty years to cop out? You know it’s an issue of race, man. You are a racist.
BY THE COURT:
Carry him on, Mr. Broadwater.
(Defendant leaving courtroom)
BY THE COURT:
You may continue.

The following excerpt from the record reflects voir dire of the jury by both the prosecution and defense counsel to determine if the jurors were prejudiced by behavior of the defendant.

BY MR. PETERS:
I am going to ask you all to be honest because I know sometimes it’s hard not to be influenced either for or against a case because of certain things that are done outside of the evidence. Is there anyone that has been so prejudiced by what has taken place so far that they would not be a fair juror in this case, either for or against the defendant?
(No response)
BY MR. PETERS:
Anyone?
(No response)
BY MR. PETERS:
Is there anyone that would hold it against the prosecution-hold it against Mr. Davis or I or the State of Mississippi-because of what has happened so far?
(No response)
BY MR. PETERS:
Anyone at all?
(No response)
******
BY MR. PETERS:
Is there anyone that would hold it against him because of what he has done in the courtroom this morning?
(No response)
******
BY MR. STRIBLING:
Now, what you have seen in the courtroom today, I understand that none of you will treat that as evidence in this case. Is that right?
(Jurors nodding)
BY MR. STRIBLING:
Because it has absolutely nothing to do with what supposedly happened on January 5, 1979 at the Deposit Guaranty Bank. Now, is there anyone here that would let that come into the proof of this case by the State?
(Jurors shaking heads)
BY MR. STRIBLING:
Will it make any difference-what he said or what he did today-in the State’s duty to prove beyond a reasonable doubt that he is guilty of the crime? Do each of you understand what I am talking about?
(Jurors nodding)
BY MR. STRIBLING:
I believe that’s all.
******
BY MR. BROADWATER:
The defendant wants to return to the courtroom, Your Honor.
(Off the record)
(Defendant decides not to return to the courtroom)

After completion of the jury selection process, and opening statements, defense counsel stated:

BY MR. CURRIE:
. .. Now, this is an unusual case in that the defendant is not in the courtroom. The Court has ruled that he did not have to be here but the Court has thus far not informed you that the defendant is not required to testify. He is not required to testify. He doesn’t have to do anything. The entire burden of proof is upon the State to prove each and every element of the offense.
******

Testimony of Thad Bridges, an eyewitness to the armed robbery, was introduced during which the defendant was brought back into the courtroom for Mr. Bridges to identify him as the bank robber. The record reflects the following:

BY MR. DAVIS:
Your Honor, would you let the record reflect that he has identified the defendant in this case.
BY THE COURT:
It may so reflect.
(Defendant standing up and saying something that this court reporter could not understand.)
BY THE COURT:
Mr. Walters-
BY THE DEFENDANT:
That’s all right. I’ll stay.
BY THE COURT:
Go ahead, Mr. Davis.
* * * * % *

With the defendant in the courtroom, trial proceeded during which two state witnesses without equivocation clearly identified the defendant in court as the armed robber of the bank. We think, in view of the defendant’s outbursts and disruptive behavior, the lower court acted within its proper discretion demonstrating much patience and judicial statesmanship in excluding him from the courtroom and then allowing his return at his request. McMillian v. State, 361 So.2d 495 (Miss.1978); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); United States v. Bankston, 424 F.2d 714, 716 (5th Cir. 1970).

Next proposition before us is the defendant’s argument that the lower court committed reversible error in refusing Jury Instruction D-4, which reads:

The law of this State gives a Defendant the right to testify in his own behalf, and the Jury has no right to disbelieve him simply because he is the Defendant. His testimony is entitled to just as much faith and credit as the Jury under all the circumstances thinks it ought to have. Furthermore, his testimony is just as entitled to consideration as that of any other witness who testified in this case.
Refused
D-4.

We stated in McNamee v. State, 313 So.2d 392, 395 (Miss.1975) that:

This instruction in many forms has had a long and variable, if not a capricious, history. We have condemned this instruction in the following cases: Clark v. State, 206 Miss. 701, 39 So.2d 783 (1949); Parrett v. State, 205 Miss. 651, 39 So.2d 272 (1949); Coleman v. State, 22 So.2d 410 (Miss.1945); Murphy v. State, 119 Miss. 220, 80 So. 636 (1919); Vails v. State, 94 Miss. 365, 48 So. 725 (1909). We have allowed similar instructions in Dunbar v. State, 159 Miss. 603, 132 So. 748 (1931), and McVay v. State, 26 So. 947 (Miss.1900). i
The reasons given by the court to disallow the instruction in the above cases is because it is an instruction upon the weight and worth of the testimony, and because it points out and holds up for inspection a particular part of the evidence so as to emphasize its value.
* * * * * *
We hold that the instruction was properly refused under the facts in this case. It is a rare case when such an instruction is permissible.

Later in Phillips v. State, 374 So.2d 824, 826 (Miss.1979) we stated:

The reasoning in McNamee, supra, was that to grant such an instruction would violate the rule against singling out witnesses and giving undue prominance [sic] to their testimony.
Only in rare eases where the testimony of the defendant is the only direct testimony and where the prosecution is based upon circumstantial evidence will an instruction of this type be granted. See, e. g., McNamee v. State, supra; Dunbar v. State, 159 Miss. 603, 132 So. 748 (1931) and McVay v. State, 26 So. 947 (Miss.1900).
In the case sub judice, the state’s case was not based on circumstantial evidence.

Here it is to be noted that the state’s case against the defendant was not based on circumstantial evidence but upon the testimony of eyewitnesses who positively identified him as the robber of the bank. He admitted the robbery and asserted his defense that he was not armed which the jury rejected. Careful scrutiny of the record shows that the defendant’s guilt was established beyond a reasonable doubt by the evidence. One would be hard put to reach any other verdict than “guilty as charged” which the jury returned. Accordingly, affirmance is required.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON; P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Lamar HALE v. S. L. REED et al.
    No. 52267.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    Rehearing Denied Jan. 18, 1981.
    Lester F. Sumners, Darden, Sumners, Carter & Trout, New Albany, for appellant.
    Joe D. Pegram, Oxford, O. R. Smith, Jr., Smith, Downs, Coleman & Ross, Corinth, for appellees.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   Appeal from Chancery Court, Tishomingo County; Fred P. Wright, Chancellor.

AFFIRMED.


text:
    Billy G. HOUPT v. W. J. LILES et al.
    No. 52250.
    Supreme Court of Mississippi.
    Dec. 10, 1980.
    Robert L. Williams, Southaven, for appellant.
    Donald F. Newlin, Bruce, Paul M. Moore, Sr., Moore & Moore, Calhoun City, for ap-pellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   Appeal from Chancery Court, Calhoun County; William H. Anderson, Chancellor.

AFFIRMED.


text:
    James ANDERSON v. STATE of Mississippi.
    No. 51728.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Rehearing Denied Jan. 14, 1981.
    Kellis L. Madison, Madison, Henley, Townsend & Streetman, Pearl, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.

SMITH and ROBERTSON P. JJ., and SUGG, LEE, BOWLING and COFER, JJ., concur.


text:
    Larry WILLIAMS, a/k/a Eugene Miller v. STATE of Mississippi.
    No. 52345.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Washington County; Webb Franklin, Judge.

AFFIRMED.


text:
    Maria GARDNER v. Luther GARDNER.
    No. 52304.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Jimmy D. McGuire, Gulfport, for appellant.
    Woodrow W. Pringle, III, Biloxi, for ap-pellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

AFFIRMED.


text:
    John THOMPSON v. MFA INSURANCE & COUNTRYSIDE CASUALTY CO.
    No. 52216.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Briggs Smith, Smith & Phillips, Bates-ville, for appellant.
    Shelby D. Goza, Ethridge & Grisham, Oxford, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   Appeal from Circuit Court, Panola County; Andrew C. Baker, Judge.

AFFIRMED.


text:
    Earl Lynn WINTERS v. STATE of Mississippi.
    No. 52315.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Leon E. Provine, Grenada, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Niles McNeel, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Jimmy L. ROGERS et ux. v. SARRETT BUILDERS & REALTY, INC.
    No. 52292.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    John Arthur Eaves, Eaves & Eaves, Jackson, for appellants.
    Charles L. Howorth, Jr., Allen & Ho-worth, Jackson, for appellee.
   Appeal from Circuit Court, Madison County; Rufus H. Broome, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Frances R. SKELTON v. John E. SKELTON.
    No. 52296.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Peggy A. Jones, Warren & Jones, Holly Springs, for appellant.
    John B. Farese, Farese, Farese & Farese, Ashland, for appellee.
   Appeal from Chancery Court, Marshall County; William H. Anderson, Chancellor.

Before SMITH, P. J., and SUGG and LEE, JJ.

AFFIRMED.


author: COFER, Justice:

text:
    Edwin Lloyd PITTMAN, Secretary of State, v. Jack T. CURRIE.
    No. 52266.
    Supreme Court of Mississippi.
    Dec. 17, 1980.

      Bill Allain, Atty. Gen. by R. Lloyd Arnold and William Mack Cameron, Sp. Asst. At-tys. Gen., Jackson, for appellant.
    John T. Armstrong, John T. Armstrong, Jr., Armstrong & Hoffman, Hazlehurst, Jones & Markow, Jackson, for appellee.
    Before ROBERTSON, BOWLING and COFER, JJ.
   COFER, Justice:

This case has been brought here on appeal from the action of the Chancery Court of Copiah County in overruling special demurrer. Appellee Jack T. Currie brought suit to cancel as a cloud on his title a sale to the State in 1948 for 1947 taxes of minerals. The suit is against the State of Mississippi and Edwin Lloyd Pittman, Secretary of State, to whom the legislature had placed the responsibility for handling public lands. Mississippi Code 1972 Annotated, section 7-11-2 (Supp.1980). (It had been by amendment, brought against John Ed Ainsworth, State Land Commissioner.)

Appellee, in his bill of complaint, alleged his present ownership of one-half of the oil, gas and other minerals under the west half of the southwest quarter of Section 21, Township 1 North, Range 3 West. He set forth the facts, as he alleged them to be, of the 1948 tax sale, and asserted the sale’s invalidity because the sale took place without the tax collector’s having first offered the property in forty-acre tracts as required by Mississippi Code 1942 Annotated, section 9923, now Mississippi Code 1972 Annotated, section 27 — 41-59 (1972). He further alleged an earlier conveyance of the oil, gas and minerals from the land, and that the state had never been in possession of the property the subject of the sale and of the suit, and that he, the complainant-appellee, and his predecessors in title had been in possession thereof at all relevant times.

The defendants-appellants filed general demurrer and special demurrers which were all overruled. One of the special demurrers was that the limitations contained in Mississippi Code Annotated, sections 15-1-7, 15-1-9, and 15-1-17 (1972), barred the action. Addressing ourselves only to the error asserted, we are of the opinion that the demurrer was properly overruled, and we affirm the chancellor’s overruling it.

It is of elementary knowledge that a demurrer, for its purposes, admits all facts well pleaded in the bill of complaint. Griffith, Mississippi Chancery Practice, § 288, p. 271 (2d ed. 1950). Manner of the sale is a material inquiry here, and the allegation in the bill of complaint that the property was not first offered in forty-acre segments, is a material fact, is well pleaded, and is admitted by the demurrer.

It is further alleged in the bill of complaint that the tax sale purchaser, the state, has not been in possession of the property since the tax sale.

The tax sale was void, not simply voidable. Parker v. Touliatos, 244 So.2d 7 (Miss.1971); Jones v. Seward, 194 Miss. 763, 12 So.2d 132 (1943); Nelson v. Abernethy, 74 Miss. 164, 21 So. 150 (1896). See also Stevenson v. Reed, 90 Miss. 341, 43 So. 433 (1907).

Therefore, possession was necessary in order to start any of these three statutes into operation. Leavenworth v. Claughton, 197 Miss. 606, 19 So.2d 815 (1944), under which decision possession remained in the owner as against an invalid tax sale claimant. In this case of a void tax sale, the state cannot claim constructive possession of the land, no actual possession having been undertaken by it. Under the Leavenworth case, supra, nothing short of invasion by the state and ouster of the owners would suffice. Dent v. Calhoun, 326 So.2d 320 (Miss.1976); Turner Lumber Co. v. Beckham, 277 So.2d 110 (Miss.1973); Leech v. Masonite Corporation, 219 Miss. 176, 68 So.2d 297 (1953); and Smith v. Myrick, 201 Miss. 647, 29 So.2d 924 (1947).

Since the void tax sale did not convey to the state constructive possession of the property there sold, the attempted conveyance under it constitutes a cloud upon the title, assuming that, on a trial, the complainant proves his case. Upon the record here he has shown a prima facie case for relief.

AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT HEREWITH.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: COFER, Justice,

text:
    John MARSHALL v. Jacob CONLEY, Larry C. Brodowski, Joe A. Marshall, and Olen Burrage Trucking, Inc.
    No. 52237.
    Supreme Court of Mississippi.
    Dec. 17, 1980.
    Thomas A. Coleman, Ackerman, for appellant.
    John P. Fox, Houston, K. Hayes Callicutt, Shell, Buford, Bufkin, Callicutt & Perry, Willie L. Rose, Jackson, Leonard McClellan, Oxford, for appellees.
    Before ROBERTSON, BOWLING and COFER, JJ.
   COFER, Justice,

for the Court:

Appellant, John Marshall was severely injured when, on June 28, 1977, the vehicle in which he was a passenger was involved in a collision with a pickup truck being driven by appellee, Jacob Conley, and a truck-tractor machine leased to appellee (lessee) Olen Burrage Trucking, Incorporated, being driven at the time by appellee Larry C. Brodowski (lessor). At the conclusion of the plaintiff’s-appellant’s proof, a directed verdict in favor of these defendants was entered, resulting in this appeal. The vehicle in which appellant was a passenger (the Cutlass) was being operated at the collision by Joe Marshall, a brother of appellant, a defendant who made no answer, was not represented by counsel, no default judgment was taken against him, and, of course, is not an appellant or appel-lee here.

The collision took place on State Highway No. 8, just east of Gore Springs, Grenada County, in a segment of the Highway which is rolling in its topography.

Appellant and Joe Marshall had gone with witness Miller (to whom the Cutlass belonged) to see Miller’s sister nearer Grenada. With the Marshalls and Miller was Miss Naomi Ruth Carter, Miller’s girl friend. They were thence on their way eastward on Highway No. 8, to a church where they were to see another person of interest to them or some of them.

Appellee Conley, seventy years of age, lived a short distance south of Highway No. 8, on Cadaretta Road, and, on the occasion of the accident, he had approached the highway by traveling northward on Old Ca-daretta Road. He had come to the highway, well established as a through highway, and, in obedience to a stop sign there, he had come to a stop.

Traveling westward, on his own proper side of the two-lane highway was appellee Brodowski, operating a truck-trailer outfit, the subject of the lease between him and appellee Olen Burrage Trucking, Incorporated. The vehicle was loaded with 42,000 pounds of merchandise and its gross load, vehicle and cargo, weighed 72,000 pounds. The undisputed proof is that, owing to the heavy load, Brodowski was down-shifting the gear mechanism of the truck, and was losing speed rapidly.

According to his testimony, as an adverse witness, and uncorroborated by other proof, as he approached the crest of the highway inclining from the east of the intersection, he saw at a distance and headed toward him two cars abreast, one illegally in his lane. When he was observed, the driver of the vehicle in his lane braked his car (smoke was observed by Brodowski), fell in behind the car in its proper lane, then apparently came by the properly driven car, passed it on the right side, apparently on the shoulder and either shared in the violent collision or mysteriously disappeared. (It might be said here that the other proof includes no such additional vehicle, and the appellant has seen fit to term it as a phantom vehicle of some kind.) When the intruder-vehicle left the westbound lane, Brodowski had a clear lane of traffic, although he was aware of the Conley’s pickup motionless at the intersection.

Probably Conley’s account of the collision now about to occur describes his actions most vividly: “I drove up there on that road to the road and.I stopped and I looked east and I saw that big truck coming and I said to myself like this, ‘I’m not in no hurry. I’m going to wait until you get up even with me and I’ll take off.’ Which I did. When that truck get about even with me, I look to the west and I looked to the east. I looked back west and I took off east, and nothing in sight.”

There is proof that the Marshall vehicle was being operated by defendant Joe Marshall fifty to fifty-five miles per hour, up to sixty-one miles per hour, depending upon the witness. It was in the eastbound lane as required by law, and the driver was looking ahead. Several occupants of the car observed the Conley pickup loom up immediately ahead of them, and, amid exclamations by some of them, the driver is said to have “gotten” on the brakes. In spite of this activity, the Marshall car struck the pickup somewhere in its rear, and was hurtled into or very close to the westbound lane of the highway, when it collided with the front end, on the driver’s side, of the truck-tractor vehicle. There is testimony that the Marshall car was stopped and that the truck-tractor “came over” and hit it.

When the vehicles had come to a standstill, the truck-tractor had gone some distance to the west and landed on its side on the embankment on the south side of the highway. Its front axles and wheels were found on Old Cadaretta Road north of the intersection. The Marshall car was found on the south side of the highway to the east of the intersection. Its motor was on the ground, some distance from the car. Conley’s pickup was on the south side of the road further to the east.

From Conley’s testimony, the truck-tractor was even with him, and he was in the intersection, and then he moved into the highway having looked both ways before entering. Residing slightly south of the highway, he must have been conscious of the geography of the immediate area. He looked and did not see the Marshall car. He entered the highway and, even in the intersection of the highway if the tractor-truck had come even with him when he entered the highway as he testified, he was struck by the Marshall car. There is testimony that the collision took place eastwardly from the intersection as far as seventy-five feet.

The testimony of Miss Carter was that there was a lapse of two or three seconds between the pickup collision and the truck — tractor impact. Whatever different from Brodowski’s operation to that moment was required of him he had a maximum of three seconds to react and to take such steps in avoidance of the accident. We are mindful of Miss Carter’s opinion that the accident would not have happened had the Marshall car driver been watching and had applied his brakes quickly enough.

In excellent briefs, the parties have dealt with the doctrine of last clear chance which appellant has strenuously urged on us. We cannot see what Brodowski could have done in a last clear chance, if he had a chance to avert the accident in the time frame presented by the proof. We accordingly determine that the court did not err in directing verdict in favor of him and Olen Burrage Trucking, Incorporated.

The directed verdict in favor of Conley is in a considerably different status.

Mississippi Code Annotated, section 63-3-3805 (1972) placed the duty on Conley of stopping and yielding the right-of-way to the Marshall car, if the car had entered the intersection on the through highway, or was then approaching so closely on the highway as to constitute an immediate hazard. Although Conley did not see the Marshall car, it was there.

Without further detailing of the proof, we consider that the record is such that a jury should resolve the issues of negligence and of credibility of the witnesses. In doing so, we do not indicate or imply what such decision should be, but we base our conclusion upon the evidence taken most strongly in favor of the plaintiff, the appellant here. Allen v. Blanks, 384 So.2d 63 (Miss.1980); Shivel v. Ferguson, 259 So.2d 123 (Miss.1972); Stewart v. Madden, 233 Miss. 206, 101 So.2d 353 (1958); Avent v. Tucker, 188 Miss. 207, 194 So. 596 (1940).

In summary, the case as to Brodowski and Olen Burrage Trucking, Incorporated, is affirmed. As to Jacob Conley, it is reversed and remanded for trial.

AFFIRMED IN PART; IN PART REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: JONES, Justice.

text:
    Eddie Lee STINSON et al. v. ACME PROPANE GAS COMPANY et al.
    79-449.
    Supreme Court of Alabama.
    Dec. 5, 1980.
    Richard A. Lawrence, Montgomery, for appellants.

      Robert S. Lamar, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for appellees.
   JONES, Justice.

Appellants appeal from final judgments entered upon jury verdicts, adjudging Defendants-Appellees guilty of negligence, but awarding Plaintiffs-Appellants no compensation. Plaintiffs moved for a new trial based on the inadequacy of damages. Defendants thereafter moved for entry of judgment in their favor. Both motions were denied, whereupon, Plaintiffs instituted this appeal. Defendants did not appeal.

Eddie Lee Stinson first noticed a problem with his wall heater in the fall of 1977 when the ceiling above the heater appeared smoked up or darkened. He “shut” the heater down. In December of 1978 he examined the heater to see if it could be repaired, and found a hole burned in the liner or heat chamber. He had the hole welded or brazed where he worked, and reinstalled the heater in his home. When he began using the heater, it still smoked.

On January 31, 1979, Defendant Brantley Sanders of Acme Gas Company, Inc., went to Stinson’s home to work on the heater. He cleaned it, lit it, watched it burn for approximately 15 minutes and left. Prior to lighting the heater, Sanders noticed a hole about the size of a golf ball in the unit. The hole appeared to have been newly repaired.

When Stinson awoke on the morning of February 1,1979, he found his wife and two daughters sick. All had headaches and were vomiting. His five-year old granddaughter was also sick. Later that evening, when Mr. Stinson returned home from work, he, too, became ill. Other members of the Stinson family experienced similar symptoms.

On February 2, 1979, the family was examined by Dr. Morris W. White at St. Margaret’s Hospital in Montgomery. While Dr. White was unable to state in certain terms the cause of the Stinsons’ illness, he stated that it could have been due to inhalation of some poisonous gas, possibly carbon monoxide. The uncontradicted testimony in the record reveals that Mr. Stinson incurred medical bills of $386.80. Additionally, Mr. Stinson missed two days of work ($3.25/hr.); and his wife was away from her job for three days ($18.00/day). We reverse and remand.

I. Appellants’ Motion for a New Trial.

At the outset, we note that, while our discussion will focus on the issue as postured by the parties-that of inadequacy vel non of damages-we are inclined to characterize this as a situation where those damages awarded (i. e., none) were inconsistent with the jury’s determination as to liability.

Appellees would have us adopt what seems to be the attitude of the Federal Courts, as well as some states, in situations similar to that before us. The rationale of these cases is summarily stated in Baldwin v. Ewing, 69 Idaho 176, 180, 204 P.2d 430, 432 (1949):

“A jury is only required to find as to ultimate facts; and if it finds that plaintiff is entitled to recover, to fix the amount of recovery. If the finding is that plaintiff is not entitled to recover, the verdict should be for defendant. Where, as here, the jury finds that plaintiff is entitled to recover ‘$ none,’ it is in fact and in law a finding for the defendant.”

For other cases employing the same rationale, see Wingerter v. Maryland Casualty Company, 313 F.2d 754 (5th Cir. 1963); Joseph v. Rowlen, 425 F.2d 1010 (7th Cir. 1970); Atlantic Coast Line R. Co. v. Price, 46 So.2d 481 (Fla.1950). Thus, there is authority for the proposition that an award of no compensation to a prevailing plaintiff is, in fact, a verdict for the defendant.

We reject the holding and the reasoning of these cases. Here, the claims were grounded on theories of negligence and wantonness. Both theories were presented to the jury under appropriate instructions. The jury returned a general verdict favorable to each Plaintiff and against each Defendant, but assessed no compensation. We assume, for purposes of appellate review, that the verdicts were based on the simple negligence charge alone, for which compensatory damages only were subject to recovery. Seitz v. Heep, 243 Ala. 376, 10 So.2d 150 (1942). The jury’s finding for each of the Plaintiffs, which is clear and unequivocal, necessarily embraced all of the elements of the tort claim, including the element of injury and resultant damages. To so find, and then award no damages, is inconsistent on its face as a matter of law.

While courts do not favor the setting aside of verdicts for damages if it can be avoided (Airheart v. Green, 267 Ala. 689, 104 So.2d 687 (1958)), we deem such action here unavoidable. The verdict must be consistent and the damages awarded must be reasonably proportionate to the injury. Askin & Marine Co. v. King, 22 Ala.App. 452, 116 So. 804 (1928).

It is the duty of the trial court to grant a new trial for excessive or inadequate damages where, after making all due allowances the verdict is clearly unjust. Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447 (1932). See, also, Jackson v. Roddy, 224 Ala. 132, 139 So. 354 (1932), where the jury awarded one cent. A jury is not at liberty to wholly ignore undisputed testimony of competent witnesses and substitute its own conclusion therefor. Deal v. Johnson, 362 So.2d 214 (Ala.1978). Again, we note that the evidence of Appellants’ damages was uncontradicted.

There being no dispute as to the amount of damages suffered or the nature and extent of Plaintiff’s injuries, it is the duty of an appellate court to reverse the lower court for refusal to grant a new trial if, in the opinion of the appellate court, the lower court should have granted Plaintiff’s motion for a new trial. Yarbrough, supra; Aetna Accident & Liability Co. v. Birmingham R. L. & P. Co., 198 Ala. 72, 73 So. 383 (1916); Alabama Great Southern R. Co. v. Randle, 215 Ala. 535, 112 So. 112 (1927).

In Stone v. Echols, 351 So.2d 902, at 903 (Ala.1977), Mr. Justice Almon, quoting from an earlier case, said:

“ ‘Where ... the jury verdict cannot be justified upon any reasonable hypothesis presented by the evidence, it ought to be set aside upon proper proceedings as being the result of compromise or mistake, for neither the court nor jury have the right to arbitrate or compromise differences between the parties.... ’ Donavan v. Fandrich, 265 Ala. 439, 440, 92 So.2d 1, 2 (1957).”

In its award of damages a large measure of discretion is vested in the jury; and the rule is not to reverse the judgment unless the award is so excessive or inadequate as to indicate prejudice, passion, partiality, or corruption, or some other controlling sentiment; or, unless, as here, the verdict is wholly inconsistent. Bibb v. Nelson, 379 So.2d 1254 (Ala.1980). See, also, Whitman’s Fifth Ave. Garage Co. v. Ricks, 211 Ala. 527, 101 So. 53 (1924). This does not necessarily mean that it must appear there was corruption or indeed any conscious violation of duty on the jury’s part. Jackson, supra; Veitch v. Southern Ry. Co., 220 Ala. 436, 126 So. 845 (1930).

Our application of the above authority to the instant case compels a decision that the trial court should have afforded Appellants a new trial on the basis of the inadequacy of the award, or, as we see it, the inconsistency of the award of no damages, when such award is juxtaposed with the jury’s finding of Defendants’ liability. Its refusal to do so was reversible error.

II. Appellants’ Waiver of their Right to Challenge the Verdict.

Appellees strongly assert that, assuming arguendo, Appellants possessed proper grounds upon which to challenge the jury’s verdict, such grounds are not properly before this Court on appeal. We disagree.

No objection to the “irregularity” or “informality” of the verdict was made by Appellants prior to the jury’s being discharged. Consequently, according to Ap-pellees, such objection cannot now be made. Fischer v. Howard, 201 Or. 426, 271 P.2d 1059 (1954). While we are quick to agree with the authority espoused in Fischer, supra, we find it inapplicable to the facts now before us. Appellants’ asserted objection is not grounded on the “form,” “irregularity,” or “informality” of the verdict; rather, it is grounded on the “inadequacy” or “inconsistency” thereof. Likewise, Appellants’ failure “to object” is not within the purview of Appellees’ cited authority and did not constitute nonfeasance on Appellants’ part. Appellants’ challenge to the jury’s verdict on grounds of “inadequacy” and “inconsistency” was properly made in their motion for a new trial.

The judgment, therefore, is due to be, and hereby is; reversed; and this cause is remanded for a new trial.

REVERSED AND REMANDED.

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


author: HOLMES, Judge.

text:
    Bay WEATHERLY v. REPUBLIC STEEL CORPORATION.
    Civ. 2296, 2296-X.
    Court of Civil Appeals of Alabama.
    Dec. 3, 1980.
    Oscar W. Adams, Jr., of Adams & Adams, Birmingham, for appellant.
    Robert G. Tate and William F. Murray, Jr., of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employee refused recommended surgery. The trial court in effect found this refusal reasonable and held employee entitled to temporary total disability benefits for a nineteen week period- commencing January 28, 1978, and ending June 11, 1978.

The trial court found the employee’s disability to have been removed in June of 1978. The employee did not return to work until September of 1978. The trial court therefore specifically found the employee was not entitled to temporary total disability benefits for the June-September period.

Employee appeals from the trial court’s denial of benefits for the period June to September. The employer, Republic Steel Corporation, cross appeals from the award of benefits to employee.

The dispositive issue in both the appeal and cross appeal is whether there is any evidence to support the findings of the trial court, i. e., that employee was no longer disabled on June 12,1978, and that employee’s refusal of surgery was reasonable.

Our review of the record reveals the following pertinent facts: Employee was employed by Republic Steel Corporation on March 9, 1977. He had been so employed for over forty years. On that date claimant’s great toe was injured when a 30,000 pound coil fell on his left foot. This injury occurred while employee was working within the line and scope of his employment with Republic Steel.

Employee did not work from March 9, 1977, to September 28,1978. Republic Steel paid employee temporary total disability benefits from the date of injury to January 28, 1978. In addition, Republic Steel sent employee to three orthopedic specialists who prescribed amputation of the great toe through the first distal joint as “the best plan for rehabilitation.” There was evidence that amputation would have allowed claimant to return to work within five to six weeks of the surgery. Employee refused to allow amputation and in January, 1978, Republic Steel stopped the payment of temporary total disability benefits.

The injuries to employee’s great toe consisted of fractures and a loss of a portion of the skin covering the toe. These injuries were slow in healing. Medical records introduced as joint exhibits reveal that employee was examined by an orthopedic specialist in October and December, 1977, and in early January, 1978. These records show progress in the healing of employee’s injuries from one examination to the next. Healing continued and in June, 1978, a specialist concluded, after examining employee, that there was no reason why employee could not return to work. At that time employee was experiencing stiffness in the joints of his toe but this condition was not painful.

Employee testified without objection that doctors of his own choosing advised against amputation. Employee was advised by his personal physician that allowing the toe to heal was the best course to follow. It is not clear when this advice was given; however, we do not deem it essential in the instant appeal to determine when such advice was rendered.

I

Employee appeals, contending the trial court erred in failing to award temporary total disability benefits for the period between June 12 and September 28, 1978. Through able counsel he argues the trial court failed to consider evidence offered to rebut evidence that employee’s disability had ended in June, 1978. Further, he argues that, in any event, the trial court’s determination was contrary to the weight of the evidence.

It is a well established rule that this court will not undertake an examination of the weight or preponderance of the evidence presented to the trial court. Florence Enameling Co., Inc. v. Jones, Ala.Civ. App., 361 So.2d 564, cert. denied, 361 So.2d 567 (1978). The scope of our review in a workmen’s compensation case is limited to questions of law and examination of the evidence to determine if there is any legal evidence to support the findings of the trial court. Farmers Gin Co., Inc. v. Rose, Ala.Civ.App., 374 So.2d 351 (1979). If there is any evidence to support those findings, this court must affirm. Haney v. Dunlop Tire & Rubber Corp., Ala.Civ.App., 373 So.2d 334 (1979).

As indicated above, medical reports admitted into evidence show that employee was able to return to work in June, 1978. In other words, there is evidence to support the trial court’s finding that employee was not entitled to temporary total disability benefits after June 11, 1978. The denial of benefits is due to be affirmed.

II

Republic Steel, through able counsel in its cross appeal, argues that employee’s refusal to undergo surgery for the amputation of his toe was unreasonable and that § 25-5-77(b), Code of Ala.1975, bars recovery of benefits.

Section 25-5-77(b), Code of Ala.1975, provides:

If the injured employee refuses to comply with any reasonable request for examination, or refuses to accept the medical services or physical rehabilitation which the employer elects to furnish under the provisions of this chapter, his right to compensation shall be suspended and no compensation shall be payable for the period of such refusal. . . .

Section 25-5-77(b) does not suspend the payment of compensation if the refusal of surgery is reasonable. Scott v. Alabama Machinery & Supply Co., 52 Ala.App. 459, 294 So.2d 160 (1974); Daniel Ornamental Iron Co. v. Black, 47 Ala.App. 608, 259 So.2d 291 (1971), affirmed, 288 Ala. 736, 259 So.2d 295 (1972).

The question before us is whether there is any evidence to support the trial court’s finding that employee’s refusal of surgery was reasonable. Farmers Gin Co., Inc. v. Rose, supra; Haney v. Dunlop Tire & Rubber Corp., supra.

The evidence disclosed by the aforementioned medical reports reveals that employee’s injuries were healing in January, 1978. These reports also reveal that amputation was merely the best and fastest method of rehabilitation. Amputation was not the only method of rehabilitation. These reports mentioned other possible methods of rehabilitation. Additionally and importantly, employee as indicated above testified that his doctors recommended doing nothing except letting the injuries heal.

When an injured employee receives medical advice from his own doctor that conflicts with the advice given by other doctors, it is not unreasonable for the employee to choose to follow his own doctor’s advice. Larson’s Workmen’s Compensation Law, Vol. 1, § 13.22.

In view of the above, we find there is ample evidence to support the trial court’s finding that employee was not unreasonable in refusing surgery and choosing the method of rehabilitation, albeit more lengthy, which allowed him to save his great toe.

The trial court’s award of temporary total disability benefits to employee is due to be affirmed.

This case is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    Earl HUDSON v. Susan HUDSON.
    Civ. 2423.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1980.

      Buster Landreau of Faulk & Landreau, Phenix City, for appellant.
    Kenneth L. Funderburk of Phillips & Funderburk, Phenix City, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties, made a division of property, and required the husband to pay child support.

The husband appeals, contending the trial court abused its discretion in the division of property and in the amount of the award of child support. We find no abuse of discretion and affirm.

The record, viewed with the attendant presumptions, reveals the following facts:

The parties were married for seven years. One child, a daughter age six, was born of the marriage.

Both the husband and wife are employed. The husband has an income of approximately $25,000 a year. The wife has an income of approximately $8,000 a year.

The homeplace is the parties’ principal asset. It is located on a lot given the parties by the wife’s family and it is virtually surrounded by the homes of the wife’s relatives. The homeplace is mortgaged and the house payments are $345 a month.

In addition to the homeplace, the parties’ assets include normal household furnishings, an automobile, and a boat.

With the above before it, the trial court divorced the parties; awarded custody of the child to the wife; ordered the husband to pay child support in the amount of $350 per month; required the husband to maintain certain medical and dental insurance policies for the benefit of the child; awarded the wife the homeplace, the automobile, and the bulk of the household furnishings; ordered the wife to assume the mortgage on the homeplace; awarded the husband the boat and some furniture; and required the husband to assume a debt of $4,800.

I

At the outset, we note that a division of property pursuant to a divorce is a matter within the sound discretion of the trial court and will not be disturbed on appeal except upon'a showing of plain and palpable abuse. Weaver v. Weaver, -— So.2d -, Civ. 2295 (Ala.Civ.App., November 19, 1980); Ray v. Ray, Ala.Civ.App., 379 So.2d 627 (1980); 8 Ala. Digest Divorce Key 286(5).

A division of property in a divorce proceeding need not be equal, but it must be equitable. Weaver v. Weaver, supra; Beale v. Beale, Ala.Civ.App., 371 So.2d 931 (1979); 8 Ala. Digest, Divorce Key 252.2.

This court has previously stated that it is not error under appropriate circumstances to award the homeplace to one party even though that asset is virtually the only asset the parties possess. Weaver v. Weaver, supra; Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974); Carter v. Carter, 390 So.2d 294, Civ. 2273 (Ala.Civ. App., 1980).

Considering all the facts of this case, particularly the wife’s custody of the child, the manner of acquisition, and the close proximity of the homeplace to the homes of the wife’s relatives, we find the trial court did not abuse its discretion in awarding the homeplace to the wife. See, Cobb v. Cobb, Ala.Civ.App., 352 So.2d 1384 (1977).

In addition, we find no abuse of discretion in the division of the other remaining assets. See, Cobb, supra.

II

As indicated above, the husband contends the trial court abused its discretion in fixing the amount of the award of child support.

The amount of child support is a matter within the sound discretion of the trial court and will not be reversed on appeal absent a manifest abuse of that discretion. Weaver v. Weaver, supra; Phillips v. Phillips, Ala.Civ.App., 344 So.2d 786 (1977).

In view of the husband’s income of $25,000 per year, the wife’s income of $8,000 per year, the needs of a child and the present cost of living, this court cannot say an award of $350 per month child support is so excessive as to require reversal. See, Metcalf v. Metcalf, Ala.Civ.App., 340 So.2d 38 (1976). For this court to find otherwise would be to substitute our judgment for that of the trial court. This the law does not permit. See, Sutton v. Sutton, 55 Ala. App. 254, 314 So.2d 707 (1975).

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

The wife has requested an award of attorney’s fees for representation on appeal. An attorney’s fee of $350 is awarded.

AFFIRMED.

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


author: BOWEN, Judge.

text:
    Sue DOLVIN v. STATE.
    8 Div. 249.
    Court of Criminal Appeals of Alabama.
    Oct. 30, 1979.
    Rehearing Denied Nov. 20, 1979.

      Jerry R. Knight, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee, the State.
   BOWEN, Judge.

On the night of August 16, 1970, Charles Ray Lovett mysteriously disappeared from his home in Decatur. Seven years later his skeleton was found in Seminole County, Florida. The defendant was indicted and convicted for his murder and sentenced to life imprisonment. From this conviction she appeals alleging numerous errors in her trial including the insufficiency of the evidence to support her conviction.

On March 13, 1970, the defendant’s husband, Glenn Dolvin, was indicted for the theft of Lovett’s automobile. It is the State’s theory that Lovett was kidnapped and murdered in order to prevent him from testifying in Glenn Dolvin’s trial.

J. R. Garrett owned and operated a barber shop in a small shopping center located within two blocks of Lovett’s residence. On the Sunday afternoon of July 25, 1970, Mr. Garrett observed Glenn Dolvin drive a Cadillac in front of the shopping center and park. He “didn’t do anything but sit there”. On August 3rd, or sometime during that week, Mr. Garrett saw Glenn Dolvin walking near Freemont Street. Charles Ray Lovett and his family lived in the second house on Freemont Street. Two or three days later, Mr. Garrett reported Glenn Dolvin’s actions to a detective of the Decatur Police Department because he “thought there was a bank robbery in progress”.

On the afternoon of August 16th, Glenn Dolvin asked service station attendant Rick Hames for directions to Freemont Street. This service station was also within two blocks of Lovett’s house.

At 8:30 on the evening of Sunday, August 16, 1970, Lovett went to his next door neighbor’s house to get his son. Other than the kidnappers, neighbor Sherlon Nagy was the last person to report seeing Lovett alive.

At 10:00 that night, Lovett called his wife at the Dairy Queen where she worked part-time. He asked her to bring him something to eat. At approximately 10:05 Mrs. Lovett carried out a plastic bag of trash. She noticed a Volkswagen of a “dark greenish” color parked next to her car and almost directly in front of the side door of the Dairy Queen. Although she was unable to identify the driver except for the fact that he was a male, she positively identified the defendant as the woman who was sitting in the passenger’s seat. Mrs. Lovett testified that the defendant “kept staring” at her while she placed some fruit in her car and then walked to the Dempsey Dumpster. When Mrs. Lovett returned from disposing of the trash the Volkswagen was gone.

Debbie Garrett was fourteen years old and had gone to work with her mother at the Handy Way convenience store on the Sunday night of August 16th. This store was in the same small shopping center as Mr. Garrett’s barber shop and is bordered on one end by Ashley Drive. Ashley Drive is parallel to and one block from Freemont Street. As Miss Garrett locked the ice machine outside the store she noticed a dark green Volkswagen sitting near the beginning of Ashley Drive. Although the Volkswagen’s engine was running, its headlights were off. The defendant was the only person Miss Garrett observed in the Volkswagen.

Miss Garrett saw the defendant back the Volkswagen out of Ashley Drive, drive one block and turn in Freemont Street, then back out of Freemont and return to her original spot on Ashley. The defendant drove slowly and without lights. In a few minutes the defendant made the same trip again. Shortly after this second trip, Miss Garrett heard a “holler” of inaudible words. Then she saw the defendant back out of Ashley Drive and drive into the alley which ran between Ashley Drive and Freemont Street. The defendant was driving “fast” and “in a hurry”. About ten seconds later, the defendant came out of the alley and drove past the shopping center at which point the headlights of the Volkswagen came on. Driving “fast” or “moderately fast”, the defendant drove one block, turned around in an intersection and drove back past Miss Garrett. At this time Miss Garrett saw two men in the front seat with the defendant. The man in the passenger’s seat was sitting with his back towards the car window and was facing the defendant. The man in the middle of the front seat was sitting low in the seat but was not slumped over. Miss Garrett was unable to identify or recognize either man. During these events, she did not hear any shooting or the backfiring of an automobile.

Mrs. Betty Third lived directly across from the Lovetts on Freemont Street. At approximately 10:45 that night she “heard someone hollering, ‘Help, help, let me go’. And then there was a loud noise.” Looking out her front window she saw a Volkswagen of a dark color “pulling slowly” in front of the Lovetts’ house. She also saw a man walking between her house and her neighbors’ on the neighbors’ carport. She noticed a barbecue grill turned over near the Hardimans’ carport. After Mrs. Third saw the automobile she assumed the “loud noise” was a backfire and did not pay much attention to anything else about the Volkswagen. When Mrs. Third went to a window facing the Hardimans’ house the man was gone so Mrs. Third returned to bed. Although she did not recognize the man she testified that the stranger was not Mr. Lo-vett.

Henry David Hardiman was awakened from his sleep by a noise on his carport. He noticed his grill overturned but could not identify the loud noise.

Mrs. Lovett arrived home at exactly 11:05 that night. She found the wooden front door open and the storm door slightly ajar. In the house, the lights and the television were on. Her husband’s shoes and socks were next to the sofa and their two infants were asleep in their beds. The shirt she had laid out for her husband to wear to work the next morning was still on the dresser but a pair of blue and white checkered pants were missing. There was no sign of disarray or of a scuffle or struggle inside the house. Mrs. Lovett checked around the yard but did not find her husband. However she was not “terribly concerned” because the storm door, which was broken and would automatically lock if closed, “had been fixed where he could get back in”. Mrs. Lovett assumed that her husband was visiting a neighbor.

Mrs. Lovett initially reported her husband’s disappearance to the Decatur Police Department at 12:30 A.M. that night. A second call around 1:30 A.M. began an investigation into the disappearance and ultimately the death of Charles Ray Lovett.

Mr. and Mrs. Lovett had been married for seven years and had two sons ages six and fourteen months old. They had no domestic or unusual financial problems. Mr. Lovett was a lino type operator at the Decatur Daily News. In the days before his disappearance, Mr. Lovett had been painting his house. He had finished the nursery and completed half of the living room.

On August 26, 1970, Investigator Robert E. Hancock of the Alabama Bureau of Investigation went to Key West, Florida, and found the defendant living in Tamperick Trailer Park. On the windshield of her Volkswagen was an application for a replacement license tag. Pursuant to a search warrant the Volkswagen was searched. It appeared to have new floor mats and new recapped tires. Several items were taken from the automobile for analysis by the Federal Bureau of Investigation. However, of the items taken only three revealed the presence of human blood: a cap, a brown paper bag and a map. The stains on each item were very small and the blood could not be typed.

Investigator Hancock drove the Volkswagen to Miami where it was examined at the Dade County Crime Lab. There everything was taken out of the car; they “tore it all to pieces”. The evidence indicates that the Volkswagen was thoroughly searched and examined for any evidence that would indicate that Charles Ray Lo-vett was present in the car. Despite these efforts, nothing was found.

Lovett’s house was also checked without success. No fingerprints, footprints, bloodstains or evidence that would incriminate the defendant were found.

On November 10, 1970, Glenn Dolvin was convicted for grand larceny in the theft of Lovett’s automobile. His conviction was affirmed on appeal. Dolvin v. State, 47 Ala.App. 382, 255 So.2d 52, cert. denied, 287 Ala. 730, 255 So.2d 55 (1971).

On November 11, 1970, the defendant gave a statement to Investigator Hancock and asked him to verify her alibi because she had nothing to do with Lovett’s disappearance. The defendant made this statement in the presence of and against the repeated advice of her attorney.

In this statement the defendant denied being in Decatur on Sunday, August 16, 1970, and denied any knowledge of or participation in Lovett’s kidnapping. She told Investigator Hancock that, on August 11th, her brother, who lived in Bradenton, Florida, had been hospitalized as a result of a fight. On Saturday, August 15th, or Sunday, August 16th, he had just gotten out of the hospital and had called her in Key West.

The defendant maintained that on the Sunday morning of August 16, 1970, she and her husband left their home in Key West, Florida. In their Volkswagen they traveled to Bradenton where they spent Sunday night with her brother. On Monday they drove to Miami and rode around Miami practically all night. Sometime on Tuesday morning they were stopped by a Miami police officer who informed them that there was no tag on the Volkswagen.

On Tuesday, August 18th, the defendant and her husband stopped at a State Trooper office somewhere near Miami and got a temporary permit to drive without a license tag to Key West. After shopping and buying some clothing for the defendant’s daughter, the pair returned to Key West arriving around 9:00 or 10:00 Tuesday night. Upon their return they learned of a governor’s warrant for Glenn Dolvin’s extradition. On Wednesday, August 19th, Glenn Dolvin turned himself in to the Florida authorities. On another occasion the defendant told Investigator Hancock that she and her husband were married in Mexico in February of 1970.

The State produced several witnesses to prove the falsity of the defendant’s alibi statement. Joan Quellette, the Assistant Director of the Medical Record Room at Manatee Memorial Hospital in Bradenton, Florida, testified that Manatee Memorial was the only hospital in that county. Hospital records revealed that the only time the defendant’s brother was ever admitted to the hospital was on September 12, 1970. He was discharged on September 15th. He was not in the hospital in August of 1970.

Robert Quackenbois lived next to the defendant in Tamperick Trailer Park in Key West, Florida. He testified that the defendant and her daughter, Susan, and Glenn Dolvin and his brother, James, moved in sometime during the middle or latter part of May, 1970. They were living there in August of 1970. Sue and Glenn Dolvin owned a Volkswagen which Mr. Quacken-bois testified was “blueish grey” and not green. To the best of his knowledge the defendant and her husband were not home from the Friday afternoon of August 14th until 9:00 or 10:00 Tuesday night, August 18th. During this time he did not see either the defendant, her husband, or their Volkswagen. On Saturday, August 15th, Barbara Neff brought the defendant’s daughter to Quackenbois’ house and picked her up that same day. Mr. Quackenbois saw James Dolvin every day during this period.

Clarence Lee Simpson was a radio teletype operator for the Florida Highway Patrol in Ocala, Florida. Around midnight of Monday, August 17th, he received a telephone call from a woman who stated that she had lost her automobile license tag. The defendant told Officer Simpson that “a gasoline station attendant had told her that her tag was missing”. Officer Simpson “questioned where she was at and the man (service station attendant) verified that she was in Marion County”. About one hour later, at 1:00 on the morning of Tuesday, August 18th, the defendant came to the Troopers’ station in Ocala and identified herself as having called earlier. Officer Simpson gave her a lost tag receipt dated August 18, 1970, which would temporarily allow her to drive without a license tag. A few days later an employee of the State Highway Department turned in the lost tag to the Ocala Highway Patrol Office.

There were a lot of camp sites in the area and Officer Simpson thought that the defendant had been camping. To Simpson the defendant “appeared like most of the people that come in there and has been camping. She was dirty, she was smudged up like she had been around charcoal and I took her for just being out in the woods. She had been camping or something.” Her hands and fingernails were dirty. She had dirt underneath the fingernails. She had smudges on both her arms and face and her hair “was partially up and partially down. One side was down.” The defendant had a “(w)oods type odor like you get from camp fires”. The defendant told Officer Simpson that she was headed from Miami back to Alabama and that her husband was asleep on the back seat of the car. Officer Simpson testified that it was four hundred miles from Ocala to Miami, Florida, and one hundred fifty miles from Bradenton to Ocala.

On November 20,1970, the defendant and her husband were jointly indicted for the kidnapping of Charles Ray Lovett. In February of 1971 the defendant and her husband were convicted in separate trials. The defendant’s conviction was affirmed on appeal. Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250 (1973).

The investigation into the whereabouts of Charles Ray Lovett continued. John C. Cardi was a laborer with a road construction firm in Florida. On December 7,1977, he discovered some bones in a new roadbed in the Lake Mary area near Sanford in Seminole County, Florida. The bones appeared to be human. Under the direction of an investigator for the Seminole County Sheriff’s Department, trained in the excavation of skeletal remains, the bones were removed from their burial site and sent to Dr. Joseph H. Davis, Medical Examiner for Dade County. The burial site was approximately three fourths of a mile from an interstate highway.

Dr. Davis concluded that the bones were the skeletal remains of a white, Caucasian adult male somewhere in the mid-twenties “plus or minus”. From the presence of shotgun pellets and wadding found in and around the skeleton, Dr. Davis concluded that death was caused by a shotgun wound. On cross examination, Dr. Davis admitted that he was unable to tell, from the skeleton, whether the shotgun wound was the actual cause of death or whether it was inflicted after death.

Dr. Richard Souviron is a forensic odon-tologist and an associate medical examiner for Dade County. From two photographs of Mr. Lovett he was able to see eight and one-half of Lovett’s top teeth. Comparing these to the teeth and chin found on the skeleton he found no inconsistencies. Dr. Souviron noted that the teeth found on the skeleton were “extremely unusual”, “extremely rare”, and “a freak of nature” because they were so perfect; no teeth were missing, filled or had cavities. Stains on the teeth could indicate that the deceased was a smoker and did indicate that he had not had his teeth cleaned. A slight amount of bone loss on the upper front teeth “would indicate possibly that this individual had a condition referred to as pyorrhea peridontal disease at one time”.

Previously Mrs. Lovett had testified that her husband had perfect teeth-no cavities and no fillings. He did have a “slight stain on the bottom of his lower front teeth at the base of the gum” which was caused by “some type of slight gum disorder that he had been treated for years before (they were married), but it had not affected his teeth other than the stain”. Mrs. Lovett did not know if this disorder was pyorrhea or not. She testified that, to her knowledge, her husband never went to the dentist to have his teeth cleaned and smoked about two packs of cigarettes a day.

In Dr. Richard Souviron’s opinion the teeth were those of Charles Ray Lovett.

With this evidence the prosecution rested its case.

In her defense, evidence was presented that Mr. Lovett was twenty-nine years old on August 16, 1970; that the defendant’s Volkswagen had been vacuumed for evidence and that the defendant’s general reputation and reputation for “peace and quietude” in the community where she lived were good. There was no defense presented to the merits of the State’s case.

I

The defendant alleges that the trial court committed reversible error in denying her motion to exclude the State’s evidence and in refusing to give her requested written affirmative charge because the evidence was insufficient to justify the submission of the question of her guilt to the jury.

The evidence against the defendant was entirely circumstantial. In the recent case of Cumbo v. State, 368 So.2d 871 (Ala.Cr. App.1978), cert. denied, 368 So.2d 877 (Ala.1979), this Court set out the rules for reviewing a conviction based on circumstantial evidence.

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.”
* * * * * *
“Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of the defendant’s guilt is a question for the jury and not the court.
“Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer that the crime has been committed, the question must be submitted to the jury. However circumstantial evidence justifies a conviction only when it is inconsistent with any reasonable theory of innocence.”
* * * * * *
“Guilt is not established by circumstantial evidence unless the facts relied on are such that it is the only conclusion fairly to be drawn from them. If all the material circumstances in evidence point to guilt and exclude any reasonable hypothesis except that of guilt a conviction is warranted.
“However ‘it is not every hypothesis, but every reasonable hypothesis but that of guilt, that the circumstantial evidence must exclude’.
“(T)he true test of the sufficiency of circumstantial evidence to justify a conviction is whether the circumstances as proved produce a.moral conviction to the exclusion of every reasonable doubt. It is not necessary for the circumstances to be ‘such as are absolutely incompatible, upon any reasonable hypothesis, with the innocence of the accused’.” (Citations omitted) Cumbo, 368 So.2d at 874-5.

“While mere speculation, conjecture or surmise will not authorize a conviction, the jury is under a duty to draw whatever permissible inferences it may from circumstantial evidence and to base its verdict on whatever permissible inference it chooses to draw.” Walker v. State, 355 So.2d 755, 758 (Ala.Cr.App.1978).

In reviewing the facts of this case we think that there was sufficient evidence from which the jury might have excluded every reasonable hypothesis except that of guilty beyond a reasonable doubt. “While not alone sufficient to justify a conviction, motive may strengthen circumstantial evidence.” Cumbo, 368 So.2d at 876. Where the evidence is wholly circumstantial, motive is a material concern. Harden v. State, 211 Ala. 656, 658, 101 So. 442 (1924); Nickerson v. State, 205 Ala. 684, 687, 88 So. 905 (1921). The defendant’s proximity to the place of the crime at a very reasonable hour with the opportunity to commit the crime is a circumstance to be weighed by the jury. Lindsey v. State, 170 Ala. 80, 82, 54 So. 516 (1911); Enzor v. State, 24 Ala.App. 346, 349, 135 So. 595, cert. denied, 223 Ala. 297, 135 So. 598 (1931). The defendant was identified as being in and near Mr. Lovett’s neighborhood late on Sunday night and during the approximate time in which he disappeared. This defendant did not reside in Decatur and was not shown to have any lawful purpose for being there at that time. Her actions were extremely suspicious. Consequently, her presence under the circumstances was a very incriminating factor and one which was for the jury’s consideration as was her false explanation of her presence in Decatur and Miami. Cumbo, 368 So.2d at 876. Since the identity of the Miami police officer who allegedly stopped her in Miami was known only to the defendant, the defendant’s failure to produce this witness and prove her alibi is a factor the jury was entitled to consider in throwing light on the defendant’s guilt or innocence. Kilgore v. State, 74 Ala. 1, 9 (1883); Porter v. State, 55 Ala. 95, 107 (1876).

The jury also had a right to consider the geographical proximity of Sanford, Florida, where the skeleton was found, to Ocala, where the defendant was present on the early morning of August 18th, as well as the relatively greater distances of these two places from Bradenton, Miami, and Key West, Florida. The geographical relation and proximity of the locations of the defendant’s actions and the home of the deceased are also extremely important factors for the jury’s consideration in this particular case.

The position in which the skeleton was found-on its back with knees up and arms and hands crossed in the pelvic area-together with the fact that it was buried under approximately thirty inches of earth, exclude any notion that the death was caused by suicide or accident. The presence of the shotgun pellets within the chest cavity would tend to exclude the possibility of a natural death and indicate that a homicide was involved.

In a murder prosecution the corpus delicti is a fact proof of which may be made by circumstantial evidence. McDowell v. State, 238 Ala. 101, 105, 189 So. 183 (1939). The finding of a dead body or skeleton the appearance of which shows acts of violence, as where the injuries were apparently sufficient to cause death and the surrounding circumstances exclude inferences of accident or suicide, may be sufficient, under the particular circumstances to prove the corpus delicti. Coleman v. State, 57 Ala.App. 392, 328 So.2d 642 (1976); 41 C.J.S. Homicide § 312 (1944).

The State is not required to prove guilt beyond all doubt but only beyond a reasonable doubt. Rice v. State, 204 Ala. 104, 106, 85 So. 437 (1920); Talley v. State, 174 Ala. 101, 106, 57 So. 445 (1912); Bones v. State, 117 Ala. 138, 23 So. 138 (1898).

The State presented facts from which the jury could reasonably find that the evidence excluded every reasonable hypothesis or theory except that of guilt. It is not the province of this Court to substitute itself for the jury or usurp their function in weighing the evidence. Autry v. State, 34 Ala.App. 225, 229, 38 So.2d 348 (1949); Richardson v. State, 28 Ala.App. 432, 436, 186 So. 574, reversed on other grounds, 237 Ala. 11, 186 So. 580 (1938). Therefore we find no error in the overruling of the defendant’s motion to exclude the State’s evidence and refusal to give the affirmative charge.

II

Venue may be established by circumstantial evidence. Tinney v. State, 111 Ala. 74, 76, 20 So. 597 (1895). Alabama Code (1975), Section 15-2-3, provides:

“When the commission of an offense commenced in the State of Alabama is consummated without the boundaries of the state, the offender is liable to punishment therefor in Alabama; and venue in such a case is in the county in which the offense was commenced, unless otherwise provided by law.”

The trial court gave a number of written charges requested by the defendant instructing the jury to the effect that the mere abduction of the deceased by the defendant within the geographical boundaries of Morgan County, Alabama, was not sufficient to justify a conviction and that they must be convinced beyond a reasonable doubt and to a moral certainty that the defendant or an accomplice “perpetrated such act or acts or set in motion such force or forces within the geographical boundaries of Morgan County, Alabama, which resulted in the death of the deceased” regardless of the place where death occurred.

Section 15-2-3 does not apply where the crime is a single indivisible offense. DeGraffenried v. State, 28 Ala.App. 291, 182 So. 482 (1938). However, even in the absence of a statute authorizing it, the State in which the fatal blow was given may maintain a prosecution for the crime of murder, although death occurs in another state. Green v. State, 66 Ala. 40 (1880). Without detailing the evidence, as we have previously set it out, there was some evidence from which the jury could infer that the fatal blow was inflicted in Morgan County. Generally see 22 C.J.S. Homicide § 185(17) (1961); West v. State, 54 Ala.App. 647, 312 So.2d 45, cert. denied, 294 Ala. 775, 312 So.2d 52 (1975).

Ill

The trial court did not commit error in denying the defendant’s motions for a change of venue and for a continuance based on prejudicial pretrial publicity.

Unquestionably there was widespread publicity by radio, television, and press of the events surrounding Mr. Lo-vett’s disappearance, Glenn Dolvin’s separate trials for grand larceny, kidnapping and murder and the defendant's separate trials for kidnapping and murder. Yet the existence of widespread publicity alone does not entitle a defendant to a change of venue. Anderson v. State, 362 So.2d 1296, 1998 (Ala.Cr.App.1978); Mayola v. State, 344 So.2d 818, 821 (Ala.Cr.App.), cert. denied, Ex parte Mayola, 344 So.2d 822 (Ala.1977).

“Except in the situation where there is a showing of ‘inherently prejudicial publicity which has so saturated the community, as to have a probable impact upon the prospective jurors’, the trial court’s primary responsibility in dealing with allegedly prejudicial publicity is whether, as a result of such publicity, it is reasonably unlikely that the defendant can secure a fair and impartial trial.” Anderson, 362 So.2d at 1298-9.

The record before us presents absolutely no evidence of any actual prejudice to the defendant resulting from extensive publicity. Without proof of prejudicial influence this Court will not hold the trial court in error for refusing to grant a motion for a change of venue or a continuance based on pretrial publicity. Mayola, 344 So.2d at 821; Anderson, supra.

Absent inherently prejudicial publicity which has so saturated the community as to have a probable impact upon the prospective jurors, there must be some showing of a connection between the publicity generated by the news media and the existence of actual jury prejudice. Anderson, 362 So.2d at 1300. The record contains no showing of actual jury prejudice. Indeed the State produced the affidavits of ninety-two citizens of Morgan County that the defendant could receive a fair and impartial trial.

Before denying the motion for a continuance the trial judge stated:

“I want to say for the record that I do not consider all of these news items highly prejudicial. That’s the defendant’s opinion. I don’t think they are because we couldn’t try it if we thought they were. I think they are factual accounts, the ones that I have seen.”

On voir dire, defense counsel questioned the venire as to whether any member had an opinion that the defendant was guilty as charged. Five members indicated that because of what they had read and heard, they might be influenced. Responding to further questioning by defense counsel, two of these five indicated that they could disregard the publicity surrounding the case.

In overruling the motion for a continuance the trial judge stated:

“(W)e have a sufficient number of jurors who are unbiased and who say they are unbiased according to the Court’s opinion and I think that we ought to proceed with it.”

Nothing in the record contradicts this. The denial of the defendant’s motion for a continuance was not error. Collins v. State, 234 Ala. 197, 174 So. 296 (1937); Liddell v. State, 287 Ala. 299, 251 So.2d 601 (1971); Turk v. State, 348 So.2d 878 (Ala.Cr.App.1977); Humphries v. State, 346 So.2d 45 (Ala.Cr.App.1977).

IV

The defendant argues that her statement should not have been admitted into evidence because the State did not show that the statement was not the product of threats, promises, or improper inducements and because the defendant was being illegally detained in that there was no probable cause for her arrest.

On November 11, 1970, the defendant was taken into custody by Investigator Hancock in Decatur. She was placed in a lineup and identified by Mrs. Lovett and Miss Garrett. Immediately after the lineup a formal arrest warrant was served on the defendant. She was advised of her constitutional rights and made a statement against the advice of her attorney. The statement was exculpatory and to the effect that the defendant had an alibi and knew nothing of the kidnapping and murder. The evidence shows that her attorney was present during part of the lineup, if not all of it, and was with the defendant before any questioning began and during the entire period in which she made the statement.

Because they are so abundant and obvious we will not detail all the particular facts to support our conclusion that Investigator Hancock had probable cause to arrest the defendant without a warrant. Campbell v. State, 354 So.2d 325,327 (Ala.Cr.App.1977); Knight v. State, 346 So.2d 478, 481 (Ala.Cr.App.), cert. denied, 346 So.2d 483 (Ala.1977). The information possessed by Sergeant Hancock when he took the defendant into custody is not required to constitute evidence sufficient to support a conviction. Yeager v. State, 281 Ala. 651, 653, 207 So.2d 125 (1968).

A review of the totality of the circumstances convinces this Court that the defendant’s statement was voluntary despite the fact that there was no specific testimony showing that her statement was not the product of threats, promises, or other improper inducements. The defendant’s attorney was present before and during the time the defendant was questioned. The defendant was not questioned “about anything” before her attorney arrived. The defendant, although repeatedly advised not to make any statement or answer any questions, said she wanted to talk; that “she was tired of being accused of these things and she thought it was time for the'truth to come out and she wanted to talk about it”. The defendant wanted the police to “check out” her story and verify it.

There was absolutely no evidence to contradict the State’s showing of voluntariness. The facts that the defendant’s daughter was not with the defendant and had been taken to another part of the ouilding and that the defendant was nervous and crying do not show that the statement was involuntary. Arnold v. State, 348 So.2d 1092, 1096 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977). At trial defense counsel did not specifically object to the State’s failure to show the absence of improper inducement. Considering the totality of the circumstances, the facts and conditions under which the statement was given indicate that the statement was not improperly induced. Laffitte v. State, 370 So.2d 1108, 1110 (Ala.Cr.App.), cert. denied, 370 So.2d 1111 (Ala.1979).

V

The instructions of the trial judge defining malice were proper. Lowery v. State, 294 Ala. 347, 317 So.2d 360 (1975), reversing the case of Lowery v. State, 55 Ala.App. 511, 317 So.2d 357 (1974), relied upon by the defendant.

Since there was evidence to show that the deceased was killed by a gunshot wound, it was not error for the judge to instruct on the presumption of malice arising from the use of a deadly weapon, despite the fact that the evidence did not show the immediate facts and circumstances of the actual shooting. The facts surrounding the deceased’s kidnapping and death support this charge.

VI

Dr. Richard Souviron identified the skeletal remains of Mr. Lovett. Dr. Souvi-ron is a forensic odontologist and an associate medical examiner for Dade County, Florida. In the twelve years he has served in that position he has worked on approximately six hundred dental identification cases.

Dr. Souviron examined the jawbone and teeth of the skeleton. He concluded that the remains belonged to those of a white male somewhere between the ages of twenty-five and thirty-five years. He noted several significant factors about the teeth. All of the teeth were perfect; all were in line, there were no fillings, no cavities, no caps, no missing teeth. From stains on the teeth he concluded that the individual was a smoker and that he had not had his teeth cleaned. From a slight amount of bone loss on the upper front teeth he concluded that the individual had pyorrhea peridontal disease at one time. He characterized the set of teeth as extremely unusual: “This man is a freak of nature in the sense that he had such a perfect set of teeth”; “It’s extremely rare. Very rare.” “It’s like a needle in a haystack to find something like this.”

Dr. Souviron compared the skeleton with two pictures made of Mr. Lovett while he was living. By enlarging both photographs, Dr. Souviron could see eight and one-half of Lovett’s upper teeth. He did not find anything that “would rule this individual out”. Souviron also compared the configuration of the chin, the formation of the base of the orbit of the eye, the teeth themselves and everything was consistent and no inconsistencies were found. He testified in detail as to his findings, how they were made, and how he arrived at his conclusions. Based upon his examination he concluded that the skeleton remains belonged to the person (Lovett) in the photographs.

The defendant objected to Dr. Souviron being allowed to state his conclusion and opinion because it had not been shown to be a “scientifically recognized procedure for identification”. On appeal the defendant contends that there is no general scientific acceptance of identifying skeletal teeth and jawbones by microscopic comparisons with photographs of a living person.

Alabama Code (1975), Section 12-21 — 160, authorizes the admission of the “opinions of experts on any question of science”. In Chatom v. State, 348 So.2d 838, 841-2 (Ala.1977), the Alabama Supreme Court upheld the admission of the results of an atomic absorption test.

“The result of examinations and test, blood-grouping tests, fingerprint comparisons, and ballistics tests are admissible, provided a proper foundation is laid. Here, the foundation was very limited and had there been a request, the trial court would have been required to allow the defendant to thoroughly question the expert concerning his training and experience, to present other testimony that the test was not scientifically acceptable.”

When defense counsel objected because the comparison was not “a scientifically recognized, reliable procedure and technique”, the trial judge asked Dr. Souviron:

“THE COURT: Let me ask you this. Is what you did a recognized way of comparing these things in the field of science that you are in?
“A. Yes, sir.”

Later defense counsel objected and the trial court made particular reference to this question and answer.

“THE COURT: Well that’s the only evidence before us on that particular subject (whether the comparison was or was not a scientifically recognized procedure for identification). Since it is the only evidence on the subject, I don’t think anybody except an expert would know that. You will have the opportunity of rebutting that, of course, but at this particular time I will overrule it.
“MR. KNIGHT: Your Honor, for the further grounds that this witness’s single answer invades the province of the Court in that this is a matter that the Court must establish. A factual finding as to whether or not this is a scientifically recognized procedure.
“THE COURT: I would be glad to hear you if you have some evidence outside the hearing of the jury to rebut that.
“MR. KNIGHT: Judge, we rest on our objection.
“THE COURT: All right. With the only evidence before the Court being that of the expert witness who is here, the Court will have to overrule the objection.”

The trial court complied with Chatom. The expert’s opinion was properly admitted. Here the comparison was based on the training, experience, and skill of one expert. He was properly permitted to testify that the methods he employed were scientifically acceptable. The mere fact that these particular identification procedures-comparison of the actual teeth and jawbones with photographs of their suspected owner-are seldom used does not mean that they are unacceptable.

The defendant has alleged several additional grounds of error as reasons why her conviction should be overturned. Although we do not address these other issues in this written opinion we have given them careful attention and study. After reviewing the entire record we are of the opinion that the defendant received a fair trial. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.