author: WRIGHT, Presiding Judge.

text:
    ART BELEW CHEVROLET, INC., Intervening Claimant v. STATE of Alabama, ex rel. Hugh C. HARRIS, Assistant District Attorney.
    Civ. 3240.
    Court of Civil Appeals of Alabama.
    Sept. 22, 1982.
    Rehearing Denied Oct. 20, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-93.

      William L. Chenault, III of Chenault, Chenault & Hammond, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a vehicle condemnation judgment.

On September 8, 1981, Wayne Thompson rented a 1977 Chevrolet tractor-truck from the leasing department of Art Belew Chevrolet, Inc. (appellant), in Decatur, Alabama. On September 12, 1981, an informant told State Trooper English that he had seen rectangular cartons being loaded in a metal trailer hitched to a tractor-truck in Bullock community of Crenshaw County. English went to the scene and observed the loading. That night English stopped the truck on the highway and found it loaded with several hundred cases of Budweiser beer. Winfred Dowdy was driving, and the lease agreement found in the truck showed it had been leased to Wayne Thompson by appellant.

Trooper English took a detailed description of the truck and trailer including serial numbers and tag numbers and released it. Crenshaw is a “wet” county. He gave this information to the local Alcoholic Beverage Control (ABC) agents. He asked his informants to alert him should they see the truck in Crenshaw County again.

Thompson returned the truck to appellant on September 14,1981, and paid his bill in cash. On September 16,1981, Thompson again rented the truck. Late that afternoon Trooper English received word from three informants that the truck was back in Crenshaw County. One informant told English the same truck was again being loaded with rectangular cartons in the Bullock area.

Trooper English again checked the area, saw the loading and relayed the information to ABC agent Gibson in Pike County. Gibson came to the Bullock area to maintain surveillance on a farm-to-market road south of Brantley. At about 10:00 P.M. he observed the truck traveling north.

Agent Gibson trailed the truck to Birmingham where ABC agent Culver began trailing it. Other officers ahead were alerted and joined in the surveillance until about 3:00 A.M., when the truck was stopped in Cullman County on 1-65. The truck was driven by Winfred Dowdy. An inventory of the contents of the trailer disclosed it was loaded with hundreds of cases of beer. The truck was seized and on October 28, 1981, proceedings to condemn the truck and trailer were initiated in Cullman County. A petition by appellant to intervene as owner of the truck was filed and allowed.

After trial before the judge, judgment was entered condemning the truck and ordering its public sale. It is from this order that appellant appeals.

The first issue raised is whether the trial court erred in its factual determination that appellant knew or should have known by the exercise of reasonable diligence that its truck was being used, or was likely to be used, for the illegal transportation of prohibited liquors.

When a case is heard orally before the trial court sitting without a jury, the court’s findings of fact are presumed correct unless shown to be clearly contrary to the great weight of evidence. Eleven Automobiles v. State, 384 So.2d 1129 (Ala.Civ.App.1980). Stated differently, we will not overturn a trial court’s factual findings in an ore tenus hearing if there is any evidence to support those findings. The record in this case contains ample evidence to support the court’s findings of knowledge. We sustain them. See Eleven Automobiles v. State, supra.

The second issue is whether it was error to allow into evidence the reputation of Wayne Thompson in the community of his residence for being a bootlegger, whiskey dealer or transporter of prohibited liquor. The basis for objection was that Thompson was not a party in the case.

The dispute here is between the state and the lessor/appellant as to which has the superior right to possession of the vehicle. Our courts have held the lessor will prevail only if he had no knowledge of lessee’s illegal use of the vehicle and by the exercise of reasonable diligence could not have obtained knowledge of such intended use. U-Haul Company of Alabama v. State, 294 Ala. 330, 316 So.2d 685 (1975); Alabama Discount Corp. v. State, 271 Ala. 338, 123 So.2d 416 (1960); C. Gamble, McElroy’s Alabama Evidence § 364.09 (3d ed. 1977). It is of no consequence that the lessee, Thompson, is not a defendant. It is his reputation and the lessor’s knowledge of it that are the critical issues in determining the claimant’s right to the property being condemned. The action for condemnation does not require the inclusion of a party. The action is against the vehicle or the person in possession. § 28-4-286, Code of Alabama (1975). Section 28—4-285 expressly authorizes evidence as to the reputation of the owner or operator as a seller of prohibited liquors.

Finally, appellant claims the Cullman County deputy sheriffs and the Alcoholic Beverage Control Board agent did not have probable cause to stop, detain and make a warrantless search of the truck and trailer on September 18, 1981.

Probable cause to search a vehicle exists when trustworthy facts and circumstances within the officer’s personal knowledge would cause a reasonably prudent man to believe the vehicle contains contraband. United States v. Edwards, 577 F.2d 883 (5th Cir.1978). Certainly, it cannot be reasonably contended that the observations and information thereon furnished by Trooper English did not furnish probable cause for ABC agents to believe that the truck contained illegal beverages when stopped on September 18, 1981. It has been said that “[Pjrobable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers. We weigh not individual layers, but the ‘laminated’ total.” Smith v. United States, 123 U.S.App.D.C. 202, 206, 358 F.2d 833, 837, (1966), cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967). The contention of an absence of probable cause is without merit. Though not presented in either trial or appellate court there might have been presented the question of standing of appellant to raise the constitutional privilege against illegal search and seizure. Without deciding that question and finding no error, we affirm the judgment below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Lincoln TENG v. DINERS CLUB, INC.
    Civ. 3291.
    Court of Civil Appeals of Alabama.
    Sept. 29, 1982.
    Rehearing Denied Nov. 3, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-156.
    Lincoln Teng, pro se.
    Joseph T. Conwell, Conwell & Conwell, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a civil action upon an open account brought by Diners Club against Dr. Teng, whose written answer to the complaint was that the indebtedness was the responsibility of Optimal Data Corporation rather than his individual debt.

After a monetary judgment was rendered against him in the district court, Dr. Teng appealed to the circuit court where the trial jury rendered its verdict against him, finding the issues in favor of Diners Club for $3,205.19. The circuit court entered its judgment accordingly.

Dr. Teng appeals pro se. As we comprehend the issues which he raises, or attempts to raise, he complains that Optimal Data Corporation should have been named as the defendant rather than himself, that the plaintiff’s attorney hated him and was so prejudiced against him that the attorney should have disqualified himself from representing Diners Club in this case and, lastly, that, while Dr. Teng was presenting his argument to the jury the plaintiff’s attorney objected to his argument, and the trial court then erred in ordering Dr. Teng not to argue irrelevant facts as he would face contempt of court.

Except for written exhibits, the record on appeal contains none of the trial evidence, none of the argument before the jury and no trial rulings of the circuit court. No facts appear in the record which have any apparent relevancy to any of the issues raised except for a plaintiff’s exhibit which purports to be Dr. Teng’s personal application for a Diners Club charge card and charge account.

Dr. Teng states and argues facts in his brief which do not appear in the record. However, this court must look only to the record for the evidence and for the facts. Here, the record is silent as to any evidence or facts as to any issue raised. We cannot consider evidence or a factual assertion outside of the record which is contained solely in Dr. Teng’s brief. Any errors committed by the trial court must be affirmatively demonstrated by the record filed in this court, and, if it does not disclose the facts upon which an alleged error is based, we will not consider that issue. Green v. Standard Fire Insurance Company of Alabama, 398 So.2d 671 (Ala.1981); Liberty Loan Corporation v. Williams, 406 So.2d 988 (Ala.Civ.App.1981); Daniels v. Bona Fada Federated Club 1979-80 Members, 403 So.2d 255 (Ala.Civ.App.1981); Wilger v. State Department of Pensions and Security, 390 So.2d 656 (Ala.Civ.App.1980); Wilson v. Crosby Lumber Co., 386 So.2d 1173 (Ala.Civ.App.1980); Harvey v. State Department of Public Safety, 56 Ala.App. 660, 325 So.2d 170 (1976).

Since the record filed does not affirmatively demonstrate any of the alleged errors, factual or otherwise, none of the issues raised by Dr. Teng may be considered on appeal. We must affirm this case.

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

AFFIRMED.

All the Judges concur.


text:
    WIREGRASS WATERBEDS v. Stewart N. HARTMAN and Lisa Hartman.
    Civ. 3217.
    Court of Civil Appeals of Alabama.
    Oct. 6, 1982.
    Rehearing Denied Nov. 10, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-167.
    Winn S.L. Faulk of Faulk & Newcomb, Dothan, for appellant.
    Douglas M. Bates, Dothan, for appellees.
   WRIGHT, Presiding Judge.

Defendant appeals from a judgment for fraudulent misrepresentation.

Defendant sold furniture to the public upon orders placed after selection from catalogs. Defendant kept no inventory. Plaintiff selected furniture as pictured in a catalog. Defendant’s employee calculated the total price of the selection. Based upon the price stated and the pictured selection, an order was authorized, and payment was made in full.

Several weeks later furniture was delivered to plaintiffs home. Upon unpacking, it was determined that much of it was not the furniture pictured and ordered. Subsequently, another order was made by defendant of the pictured furniture. Upon receipt of it by defendant, it was learned that its price from the distributor was more than twice that originally charged plaintiff. After some negotiation about some payment of the difference in price, there was failure of agreement. Suit was filed by plaintiffs claiming breach of warranty, fraud and misrepresentation. Trial in district court resulted in judgment for plaintiff. Defendant appealed to circuit court and trial de novo. Judgment again was for plaintiff. The court sitting without a jury found:

(1) “That the defendants misrepresented a material fact that the Defendants would sell certain furniture to the Plaintiffs at a certain price, that such misrepresentation concerning an existing material fact was made by the Defendants recklessly or without sufficient information therefor, and was made with the intent to induce the Plaintiffs to act; and that the Plaintiffs relied upon such misrepresentation and acted upon such misrepresentation to their injury.
(2) “That Plaintiffs were damaged in the sum of $1300.”

Defendant presents the only issue on appeal to be that they have no liability because the misrepresentation for which recovery is sought by plaintiff was not one of an existing material fact but a promise to sell in the future; ergo, it must be shown that the defendant never intended to perform.

We are unable to find such to be a legitimate issue under the pleading, proof and the finding of fact in the judgment of the court. We perceive the transaction to have been a present offer to sell specific, pictured merchandise by a seller (defendant) at a stated price with acceptance of the offer and full payment by plaintiff. The necessity of future delivery does not affect the present misrepresentation of quid pro quo. Therefore, the determinative issue could only be whether there is evidence to support the finding and judgment of the trial judge who heard the evidence ore ten-us. Jabco, Inc. v. Kelly, 342 So.2d 791 (Ala.Civ.App.1977). There is more than sufficient evidence to that end in our opinion. We therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: WRIGHT, Presiding Judge. WRIGHT, Presiding Judge.

text:
    Matthew B. WALKER v. Dr. J. Russell EUBANKS, Jr.
    Civ. 3307.
    Court of Civil Appeals of Alabama.
    Oct. 6, 1982.
    On Rehearing Dec. 22, 1982.

      Richard G. Alexander of Alexander & Knizley, Mobile, for appellant.
    James H. Crosby and Vincent A. Noletto, Jr. of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff received judgment in small claims court. Garnishment thereon was brought against Dr. Eubanks as garnishee. Garnishee failed to answer. Judgment nisi was entered with notice thereof issued to garnishee at the same address as that on the writ of garnishment. Eubanks failed to respond. Final judgment was entered against him on September 24,1979. Execution on the judgment was issued thirteen and one-half months after its entry. Eu-banks filed a motion to set aside the judgment of September 24,1979. He alleged as grounds therein that when he was served with the writ of garnishment on or about June 6, 1979, he sent back to the court the answer form given him without filling it in. He averred that he sent a letter to plaintiff’s attorney denying indebtedness to the defendant.

There was hearing and argument on the motion which was apparently treated as a Rule 60(b)(1) motion by the court. The motion was denied on January 14, 1981. Eubanks appealed to circuit court.

After appeal to circuit court, Eubanks amended his original motion by alleging that the judgment against him was void because of (1) failure of plaintiff to execute affidavit for the writ of garnishment and (2) for failure of service upon him of the writ of garnishment.

Over a period of time, while the amended motion was pending, there were additional pleadings filed, including affidavits on behalf of plaintiff and Eubanks. Last filed on February 15, 1982, was a motion by Eubanks to quash the service of the writ of garnishment upon him. That motion alleged that the address at which the return indicates service was had upon him was not then, nor ever, his residence or place of business.

On March 8,1982, judgment was entered granting the Eubanks’ motion to quash service of the writ of garnishment upon the garnishee, dismissing the garnishment, discharging the garnishee and taxing all costs to plaintiff. The record fails to disclose any hearing set or held on the Rule 60(b) motion as amended from which judgment thereon in district court the appeal to circuit court was taken. The record specifically states no hearing was held prior to judgment quashing service in circuit court. After denial of plaintiff’s motion to reconsider the judgment, plaintiff has appealed to this court.

Plaintiff first contends that the circuit court was without jurisdiction to hear and grant the motion to quash service of the writ of garnishment in district court. The basis of that contention is that the appeal to circuit court was from a judgment denying a 60(b) motion with the ground of excusable neglect. Plaintiff submits that the circuit court on appeal may only review the correctness of the discretionary judgment of the district court in denying that motion. Thus a motion to quash service of an original pleading in district court cannot be first presented in circuit court.

We agree that if an appeal is taken from a judgment rendered in district court, lack of service in district court upon the appealing party may not be presented in the circuit court. As stated in the case of State v. Pollock, 251 Ala. 603, 38 So.2d 870 (1949), the rule is that:

“Under those circumstances, when the court has jurisdiction of the subject matter, if he appeals to a circuit court wherein a trial is to be had de novo, he waives the invalidity of the judgment of the lower court. Of course, he is not without remedy before the appeal is taken and that remedy ... is common law certiora-ri.”

However, in this case, the appeal to circuit court was not from the original judgment, but from a judgment on a 60(b) motion — in other words, there was an attack upon or challenge of the original judgment. The ruling on the attack is the basis of the appeal to a new hearing in circuit court.

We agree with plaintiff that the motion to quash was improper form in this case and should not have been considered and ruled upon by the circuit court. The only matter before the circuit court was a Rule 60(b) motion presented there as if for the first time. Let it be understood that at a trial de novo after appeal from district court, there is not a review of the correctness of the judgment of the lower court. It is a new matter as if presented in the circuit court for the first time. A new complaint or an amendment to the old may be filed provided there is not an entire change of parties plaintiff or defendant, nor a departure from or change in the original form of action. Thompson v. City of Birmingham, 217 Ala. 491, 117 So. 406 (1928); Vinyard v. Republic Iron and Steel Co., 205 Ala. 269, 87 So. 552 (1921).

In this case there was an amendment adding additional grounds to the 60(b) motion originally filed. One of those new grounds was failure of legal service upon garnishee of the writ of garnishment. Actually, such ground was the same as the allegations of the motion to quash. However, the circuit court had no authority to quash service performed in district court. That was not the issue which invoked its jurisdiction. The circuit court erred in disposing of the appeal on an entirely different issue than that presented to it by the appeal.

The 60(b) motion with its amendments after appeal has not been ruled upon and remains pending. The improper judgment is reversed and the case is returned to circuit court for consideration and judgment on the 60(b) motion after opportunity is presented to be heard thereon. Rule 78, A.R.Civ.P. We will not discuss the matters raised by that motion which have not been ruled upon by the trial court.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.

ON REHEARING

WRIGHT, Presiding Judge.

As a part of a motion for rehearing, there has been filed by appellee a motion to supplement the original record. This is the first time in the experience of this court that there has been a request to supplement the record after a submission and the issuing of an opinion. It appears from the certified supplement that there was an inadvertent omission by the clerk of a judgment entered by the trial court on January 20, 1982.

The first proposition presented is whether this court will allow the supplement to the record at this point in the proceedings. We use the term “allow” because it is our opinion that it is within our discretion to “allow” it or not. We have decided to allow the supplement to the record even at this point because it appears to be within the purpose of Rule 10(f) to do so.

The supplement to the record now presented discloses that the 60(b) motion, which we found in our original opinion not to have been heard and judgment rendered thereon in circuit court, was in fact granted after hearing on January 20, 1982.

Because the record did not disclose such ruling, we remanded in our original opinion for hearing and judgment thereon. The supplement to the record now before us provides such a judgment. Therefore, our remandment for judgment must be and is set aside.

There is also presented on rehearing a motion to dismiss the appeal as untimely. The basis of the motion is that the judgment by the circuit court on the 60(b) motion appealed from district court as now shown by the record was entered on January 20, 1982. The appeal to this court was not taken until May 21, 1982, more than forty-two days after judgment; thus the appeal came too late. We find such to be the case.

We recognize that there was apparently an inadvertent failure of the clerk’s office to notice and transpose the judgment from the judge’s entry of January 20,1982. It is admitted by counsel for both appellant and appellee that neither of them noted the entry of judgment, although they received a copy of the form containing the judge’s entry by mail. The entry of judgment was also filed by the judge in the circuit clerk’s office on January 22, 1982.

As a part of the January 20, 1982 judgment granting the 60(b) motion and setting aside the judgment against Eubanks as garnishee, the court directed the case to be set on the next available trial date. That part of the judgment must be considered a nullity. We say that because having entered judgment on the 60(b) motion, the aspect of the case which had been appealed for trial de novo from district court was completed — at an end — except for possible appeal to this court. Any further proceeding must be pursued in district court.

We pointed out in our original opinion that the granting of the motion to quash service of the notice of garnishment upon the garnishee while the case was in district court was error. In the present state of the record, that ruling is more than mere error. It is a nullity because the circuit court had already entered its final judgment on January 20, 1982. The judgment on the motion to quash was without authority of law and will not support an appeal. There being no appeal brought within forty-two days from the judgment of January 20, 1982, this court has no jurisdiction under Rule 4(a), A.R.A.P. The appeal is therefore dismissed.

The status of this matter now is: the judgment entered in district court against the garnishee Eubank is set aside by the de novo judgment of the circuit court on the 60(b) motion as amended. The judgment of the district court in favor of the plaintiff in the original suit was not involved in the appeal to circuit court and remains in effect.

APPEAL DISMISSED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    David Earl BOLES and Robert Stacy Boles, suing by and through Shirley BOLES, their mother and guardian v. Hooper & McDonald, Inc., a corporation.
    Civ. 3429.
    Court of Civil Appeals of Alabama.
    Nov. 17, 1982.
    Rehearing Denied Dec. 22, 1982.

      Jackson W. Stokes of Stokes & Hammond, Elba, for appellants.
    W. Michael Atchison and M. Clay Rags-dale of Starnes & Atchison, Birmingham, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

On September 28, 1980 the father of David Earl Boles and Robert Stacy Boles was killed in a work-related accident. The employer, Hooper & McDonald, Inc., and the minor children, by and through their mother, Shirley Boles, as guardian, entered into a settlement agreement for workmen’s compensation benefits on November 12, 1980. The minor children’s parents were divorced prior to the accident. According to the terms of the court-approved workmen’s compensation settlement, the children were considered partial dependents and as such were entitled to five hundred weeks of benefits at $44 per week to be paid in the lump-sum amount of $17,518. Shirley Boles was represented by an attorney at the time the settlement was reached.

On August 4, 1981, more than eight months after the settlement, Shirley Boles, in her capacity as guardian for the minor children, filed a complaint in Coffee County for workmen’s compensation benefits. Pursuant to a motion by the defendant, Hooper & McDonald, Inc., the case was transferred to Covington County. The defendant filed a motion for summary judgment and asserted in an affidavit that the workmen’s compensation claim was barred by the previous settlement between the parties. In plaintiffs’ affidavit in opposition to the motion, the mother’s attorney claimed that the children were wholly dependent upon their father for support prior to his death. Her attorney further asserted that the “settlement was unreasonable, unfair and not within the contemplation of the Workmen’s Compensation Act.”

The Circuit Court of Covington County granted the defendant’s motion for summary judgment on May 28, 1982. The plaintiffs moved for a rehearing and this was denied. From this summary judgment plaintiff appeals.

Plaintiffs argue that the children were improperly designated as partially dependent and, therefore, the settlement award was grossly inadequate and in conflict with sections 25-5-60 and -61, Code 1975. This settlement, plaintiffs claim, was represented to both the court and to them as being substantially in accordance with the workmen’s compensation statutes. According to the plaintiffs, the court’s approval of the settlement was procured by fraud upon the court.

Plaintiffs assert in brief that, under rule 60(b) of the Alabama Rules of Civil Procedure, they have three avenues of relief from this judgment. This order approving the settlement may be set aside: (1) under A.R.Civ.P. 60(b)(6) as being unjust and for failing to comply with Alabama’s workmen’s compensation law; (2) pursuant to an independent action as provided for in rule 60(b); or (3) for fraud upon the court as provided in rule 60(b).

“The normal procedure to attack a judgment under this rule will be by motion in the court which rendered the judgment. If the relief does not appear to be available under the rule, or if relief from the judgment is sought in some other court than the court which rendered the judgment, the party should bring an independent proceeding. But an erroneous choice between these procedures is not fatal to the party attacking the judgment. There is little procedural difference between the two methods of attack, and since nomenclature is unimportant, courts have consistently treated a proceeding in form an independent action as if it were a motion, and vice versa, where one but not the other was technically appropriate, and any procedural difference between them was immaterial in the case.” (Citations omitted.)

Committee Comments, A.R.Civ.P., 60(b). For purposes of attacking the settlement award, it is of little consequence whether plaintiffs filed a complaint and proceeded on the theory of an independent action or filed a motion as provided in the rule.

In their brief, plaintiffs devote a large portion of their argument to showing that the children were erroneously considered partial dependents, and because of this, the amount of the judgment was inadequate. The Alabama Supreme Court in Raine v. First Western Bank, 362 So.2d 846 (Ala.1978), stated:

“It is equally well-settled that the denial of a 60(b) motion does not bring up for review on appeal the correctness of the judgment which the movant seeks to set aside, but is limited to deciding the correctness of the order from which he appeals.”

We, therefore, will not address whether the original judgment was correct. See also Metropolitan Life Insurance Co. v. Akins, 388 So.2d 999 (Ala.Civ.App.1980).

The granting or denying of relief pursuant to A.R.Civ.P., 60(b) is a matter largely within the trial court’s discretion. The decision of whether to grant or deny such relief will not be reversed on appeal unless it is plainly shown that the court abused its discretion. Hartford Insurance Co. v. Lagano, 394 So.2d 933 (Ala.1981); Pittman v. Pittman, 397 So.2d 139 (Ala.Civ.App.), cert. denied, 397 So.2d 142 (Ala.1981).

In determining whether there was an abuse of discretion in denying the relief, this court looks to the grounds presented by the motion and matters presented in support thereof. Pitts v. Henley, 384 So.2d 1105 (Ala.Civ.App.1980). No grounds for overturning the judgment were given in the plaintiffs’ workmen’s compensation complaint and, in fact, no mention was made in the complaint of the prior settlement agreement. In plaintiffs’ affidavit in opposition to summary judgment, they asserted as a ground for overturning the judgment that the children were wholly dependent, both statutorily and in reality, upon their father; thus the settlement was unreasonable, unfair and not within the contemplation of the workmen’s compensation act. On appeal, it appears that they raise, for the first time, the issue of fraud. This court will not entertain issues not raised below. Blackmon v. R.L. Zeigler Co., 390 So.2d 628 (Ala.Civ.App.), cert. denied, 390 So.2d 635 (Ala.1980).

Plaintiffs contend here as they did in the trial court that the court erroneously awarded benefits based on its conclusion that the children were partial dependents of their deceased father rather than full dependents. There is no evidence in the record, however, that the defendant knowingly misinterpreted the law and did so with the intent to defraud the court and the plaintiffs. A mistake of law is not mistake, inadvertence, surprise or excusable neglect as embodied in A.R.Civ.P. 60(b)(1). City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981). Nor can a mistake of law be a basis for granting relief under A.R.Civ.P. 60(b)(6). This rule was not intended as a method for a judge to review his legal conclusions. City of Birmingham v. City of Fairfield, supra.

The plaintiffs argue that the court erred in denying their rule 60(b) effort by way of a summary judgment. They base their position on Evans v. Evans, 365 So.2d 78 (Ala.Civ.App.1978). We did say in Evans, in response to argument by the defendant, that the grant or denial of a 60(b) motion is a matter of discretion and that such discretion should be exercised after a hearing on the merits. Also, that the trial court did not hear the matter on the merits but rather determined as a matter of law that the 60(b) motion should be denied. We concluded, however, that the court had erroneously determined rule 60(b) to be a statute of limitation when, in truth, it was not an exclusive limitation of the time within which a claim for relief from a judgment based on fraud could be maintained. Therefore, the plaintiff in Evans would have an opportunity to show that another time period governed the filing of an action to review a judgment allegedly obtained by fraud. That is, an independent action alleging fraud on the court could be filed -within a period of three years. Brice v. Brice, 340 So.2d 792 (Ala.1976).

In the case at bar the factual situation is different from Evans. Here the facts supportive of the summary judgment motion were not in dispute and the trial court ruled as a matter of law that the 60(b) motion should be denied. As noted above, the court properly reached such a result. It had no authority to review its legal conclusions in such a manner. Hence, it had no discretion to exercise.

The judgment of the trial court is affirmed.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P.J., concurs in the result.


text:
    Patricia B. WILLIAMS v. Ocie M. WILLIAMS.
    Civ. 3093.
    Court of Civil Appeals of Alabama.
    Dec. 15, 1982.
    Edward W. Drinkard, Prattville, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce action.

On June 17, 1981, the wife through her attorneys filed her divorce complaint. Among other matters therein, she alleged that the parties had separated on May 4, 1981, that the insured home of the parties burned on May 13, 1981, and that she was entitled to receive a portion of the insurance proceeds. The final judgment granted a divorce, awarded child custody to the wife, ordered the husband to provide child support, divided their real estate and rendered a judgment halving the fire insurance moneys after first deducting therefrom stipulated debts and after then deducting from the balance of the proceeds attorneys’ fees ascertained by the court for the husband’s attorneys for services rendered pertaining to the insurance. Our only issue for decision is the propriety of the trial court’s judgment concerning those attorneys’ fees and we restrict this opinion to that problem.

The husband’s attorneys filed motions alleging that a disagreement had arisen between the husband’s attorneys and the parties as to the amount of their attorneys’ fees for obtaining a check from the insurer for $94,713.33 in settlement of the insurance claim of the parties. The motions further stated that the husband had agreed to a contingent fee of one-third of the amount recovered, which was contended to be a reasonable allowance. No civil action was filed against the insurer upon the policy inasmuch as the insurance proceeds were paid without litigation.

When the parties separated on May 4, they owned a home and its household contents, all of which were consumed in the fire of May 13. The insurance coverage thereon was payable to the mortgagee and to the husband and the wife.

The husband was served with the divorce summons and complaint on June 29, 1981. He did not recall whether he first employed his attorneys in the divorce action or whether their first employment by him was regarding the fire insurance. Nevertheless, he engaged the services of his counsel to recover under the insurance policy. They agreed to a contingent fee of one-third of the gross insurance proceeds collected. He swore that neither the mortgagee nor his estranged wife authorized him in any manner to employ counsel for them as to the insurance. He stated that he was satisfied with his attorneys’ services in that connection.

The wife testified that she did not authorize the husband to contract on her behalf with his attorneys for the collection of the insurance proceeds. It was not controverted that she had no knowledge that the attorneys had been employed by anyone as to the insurance until she was notified by them that they had received a check from the insurer. Since the day after the fire, she had personally been in direct contact with the adjuster. According to her, the insurance company did not refuse to make payment — they just had not paid.

The trial court ordered, by agreement of the parties, that, from the entire proceeds of $94,713.33, certain creditors be paid definite stipulated amounts totaling $68,541.77. That left a balance of $26,171.56, which is the sum in controversy. The trial court found that $16,413.95 was “a reasonable attorneys fee from which the funds distributable to both insureds shall be deductible.... ” Thereafter, the balance of $9,757.61 was ascertained by the court to be a marital asset and was ordered divided equally between the parties.

The wife appeals and the gist of her argument is that the husband’s attorneys were not entitled to recover any portion of any fee from the wife for any legal services rendered as to the fire insurance proceeds and that the trial court erred in so ordering. The wife has filed the only brief before us.

It is well established in Alabama that attorneys’ fees can be recovered only when authorized by statute, when provided in a contract or “in an equitable proceeding where the efforts of an attorney creates a fund out of which fees may be paid. [Citations omitted.]” Shelby County Commission v. Smith, 372 So.2d 1092, 1096 (Ala.1979); State ex rel. Payne v. Empire Life Ins. Co., 351 So.2d 538, 545 (Ala.1977); White v. State, 294 Ala. 502, 319 So.2d 247 (1975). Stated differently, “[i]n the absence of a contract, statute, or recognized ground of equity, there is no inherent right to have attorney fees paid by the opposing side.” Parker v. Jefferson County Commission, 347 So.2d 1321, 1327 (Ala.1977).

A claim by an attorney for payment for his professional services rests upon either an express or implied contract of employment made by the person sought to be charged or his authorized agent. Tyson & Arrington v. Thompson, 195 Ala. 230, 70 So. 649 (1915); Irvin v. Strother, 163 Ala. 484, 50 So. 969 (1909). Here, no express contract existed between the husband’s attorneys and the wife. The parties were separated and there was no evidence that the husband had any express or implied authority to act as the wife’s agent in the employment of counsel and the husband’s testimony raised no such contention. There was no proof that the wife had any knowledge that the husband’s attorneys were even employed or that she knew that they were rendering any services whatsoever relative to the insurance until she was notified by them that the draft had been issued by the insurer. Accordingly, recovery of attorney fees could not be had from her upon an implied contract. Davis v. Walker, 131 Ala. 204, 31 So.2d 554 (1901); Grimball v. Cruse, 70 Ala. 534, 544 (1881). We conclude that no such fee from the wife could be awarded to the husband’s attorneys because of a contract of any nature.

The only statute that could possibly have application in the current controversy is § 34-3-60 of the Code of Alabama (1975). Our rather extensive research has disclosed no case under that code section which even remotely resembles the current factual or subject situation. The cases thereunder generally concern estates, wills, trusts, land sales for a division, partition of land or guardianships.

Some cases construing that statute are based upon the “common fund” theory. King v. Smith, 247 Ala. 1, 22 So.2d 336 (1945). The common fund “concept embraces a situation where one litigant has proceeded alone at his own expense and has either created, protected, or preserved a fund in which others are entitled to share.... ” Troy Bank & Trust Co. v. Brantley, 263 Ala. 428, 435, 82 So.2d 618, 624 (1955); Penny v. Pritchard & McCall, 255 Ala. 13, 49 So.2d 782 (1951); Kimbrough v. Dickinson, 251 Ala. 677, 39 So.2d 241 (1949).

The code section contemplates litigation being instituted for the benefit of all and such is not here present. In this case, the services rendered were performed in good faith but, for aught that appears from the record, such performance was done solely for the benefit of their client, the husband. There is no evidence that the legal work was performed for the benefit of the wife. Benefits to her, if any, which arose out of the services performed, were incidental. It is required that services be rendered for the benefit of all. King v. Smith, supra.

“Attorneys’ fees will be charged to the interest in truth and in fact represented. The fact that the representation incidentally resulted in benefit to the other ces-tuis que trustent did not authorize charging them with attorneys’ fees. [Citations omitted.]”

Lewis v. Wilkinson, 237 Ala. 197, 198, 186 So. 150 (1939); Strong v. Taylor, 82 Ala. 213, 2 So. 760 (1887). This case fits into the incidental benefit category where fees were not authorized to be charged against the wife. The mere fact that the services which an attorney renders for his client are beneficial to another party does not in and of itself entitle the attorney to recover any compensation from the one benefited. 7 Am.Jur.2d, Attorneys at Law § 240, p. 279.

There are two annotations as to the allowance of an attorney’s fee against property or against a fund increased, created or protected by an attorney’s services. 107 A.L.R. 749; 49 A.L.R. 1149. However, no common fund case therein cited has any reasonably close similarity to the present subject matter. The cases in the annotations are concerned with the awards of attorneys’ fees as to trust funds, estates, fraudulent conveyances, receiverships, insolvent corporations, bondholder or stockholder actions or bankruptcy.

In this controversy, it should be kept in mind that the wife had retained her own counsel in the divorce action where one aspect of the litigation as raised by her complaint concerned the fire insurance proceeds, that the wife was actively cooperating and working with the insurance adjuster in order to effect payment and that she had no knowledge of the employment of counsel concerning the insurance by her estranged husband. Those collective facts make it highly inequitable to charge her with any portion of her husband’s attorneys’ fee. “[T]he fact that the other members of the class were represented by their own counsel has in some cases been treated as a strong or fatal objection to the allowance of counsel fees out of the common fund.” 20 Am.Jur.2d, Costs § 86, p. 70. Such a fatality here exists.

We determine that neither the code section nor the common fund theory authorized the taxation of any portion of the fee to the wife or against her part of the insurance money. Since we are not cognizant of any other recognized equitable principle which authorizes any such liability by the wife to the husband’s attorneys, we have no other alternative but to hold that the respected and learned trial judge erred in charging any portion of the attorneys’ fee for the husband’s attorneys against any part of her interest in the fire insurance proceeds for any services which might have been rendered by the attorneys as to the insurance. In short, she cannot be required in any manner to contribute towards any such fee in any amount from her part of the insurance proceeds or from any other source. The payment of any fee to the husband’s attorneys concerning the insurance proceeds must come entirely from the husband without compulsory contribution in any manner or degree from the wife.

We are highly mindful of the care with which courts should consider issues of this nature, but, viewed from all legal aspects and giving due weight to the ore terms presumption, legal issues, and not factual problems, were presented for our decision and we are persuaded by the law that the judgment of the trial court improperly imposed upon the wife that portion of the awarded fee which was made chargeable to her interest in the balance of $26,171.56.

This case is reversed as to paragraphs 3 and 4 of section A of the divorce judgment and as to paragraph 7 of section B of that judgment and the case is remanded to the trial court for the rendition and issuance of a judgment which is not inconsistent with this opinion.

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

REVERSED AND REMANDED.

All the Judges concur.

      . If the $9,757.61 has already been paid to the parties as thereby provided, such payments should be duly considered in rendering the judgment on remand.


author: HOLMES, Judge.

text:
    Anita G. WILBANKS v. S. Sealy WILBANKS.
    Civ. 3396.
    Court of Civil Appeals of Alabama.
    Dec. 15, 1982.

      Thomas Reuben Bell of Bell & Bell, Syla-cauga, for appellant.
    W. Scears Barnes, Jr., of Barnes & Rad-ney, Alexander City, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals from an order of the Circuit Court of Tallapoosa County which made provisions for a division of property and awarded child support. No periodic alimony was awarded to the wife. We affirm in part and reverse and remand in part.

Viewing the record with the attendant presumptions, the following facts are pertinently revealed.

The parties were married in January of 1971. Two children were born of the marriage. Following a separation, the parties were divorced in July of 1982. As the able trial judge noted in his order, “prior to and during their marriage the parties have lived well and have amassed a good deal of personal and real property.”

As noted by the trial judge, the marital home, located on land given to the couple by the husband’s father and adjoining the home of the husband’s father, has been appraised at in excess of $120,000 and has outstanding first and second mortgages totaling over $60,000. As noted, “the above-mentioned appraisal should be adjusted downward since a portion of the swimming pool and a portion of the driveway are located on [the husband’s] father’s land.”

The court found that “[i]n spite of the amount of money and the number of things given to them [the husband] testified that their joint income did not support their style of life and that he has several outstanding loans which were procured to maintain their style of living.”

The husband is presently president of Ci-tibanc Group, Inc., president of the computer systems, and chairman of the board of directors of the subsidiary banks. His yearly salary as president of Citibanc Group, Inc., is $59,169.80 gross.

The wife is employed, and has been for several years, as an elementary school teacher and has a gross income in excess of $13,500.

We deem it unnecessary to give a detailed description of the real and personal property of the parties, nor would it serve any useful purpose to detail the considerable debts owed by the parties.

The trial judge, in his order, granted the divorce on grounds of incompatibility and irretrievable breakdown of the marriage, and granted custody of the two children to the wife, subject to visitation rights of the husband. The court ordered the husband to pay $600 per month in child support; granted the husband sole and exclusive right to the use of the marital home; awarded the wife $20,000 as her share of the equity in the home, creating a lien on the property; ordered other real property held jointly sold with any net proceeds divided equally; ordered the husband to pay all the debts of the marriage and to hold the wife harmless from any legal liability connected with the debts; granted all personal property, with the exception of a few specified items, to the wife; and ordered the husband to pay the wife’s legal fees in the amount of $5,000. From this order the wife appeals, and we affirm in part and reverse and remand in part.

Despite the numerous issues raised in the wife’s brief, the dispositive issue on appeal is whether the trial court abused its discretion in the amount of the award of child support, in the division of property, and in not granting periodic alimony.

At the onset we note the well-settled rule that:

“The division of property, alimony for either spouse and the amount of child support, in cases which are heard ore tenus by the trial judge, each fall within his sound judicial discretion. On appeal, the circuit court’s judgment on such issues can only be disturbed if it was so unsupported by the evidence as to be clearly unjust and palpably wrong.”

Coffelt v. Coffelt, 390 So.2d 652, 653 (Ala.Civ.App.1980).

The wife contends the trial judge abused his discretion in the property settlement in awarding the home to the husband. We do not agree. In view of the fact that the home is located next door to the husband’s father, that the driveway and swimming pool are located at least in part on the property of the husband’s father, that the wife was awarded $20,000 as her share of the equity, and that the home would be difficult to sell, and testimony indicated would not bring the assessed value, we cannot say the trial court abused its discretion.

Although we note that the wife’s parents and the wife, from her salary, made significant contributions to the house, so did the husband and his parents. Furthermore, an equal division of property is not required, only that it be equitable. Hudson v. Hudson, 391 So.2d 664 (Ala.Civ.App.1980); 8 Ala. Digest, Divorce, Key No. 286(5). We note the husband was ordered to pay the rather substantial debts of the marriage. In light of that and the fact that the wife also received almost all of the personal property, including silver, china and crystal, of an estimated value of $30,000, plus half of the net proceeds from the sale of jointly held real property, we find there was no abuse of discretion and affirm as to the property settlement.

The wife next contends the trial court erred in not awarding any periodic alimony to her. As mentioned, the matter of periodic alimony is within the sound discretion of the trial court, and will not be reversed except for palpable abuse. E.g., Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980); 8 Ala. Digest, Divorce, Key No. 235. An award of alimony as an incident to divorce is not mandatory; Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967). In determining whether to award alimony, criteria to be considered include earning ability, future prospects, age, sex, and health among others. E.g., Jernigan v. Jernigan, 344 So.2d 778 (Ala.Civ.App.1977).

In view of the fact that the wife is young, employed, educated and apparently has good future prospects, and has received an adequate property settlement, we cannot say that the trial court erred in not awarding periodic alimony at the time of the trial. However, we note that her circumstances could substantially change for any number of reasons, especially since she has custody of and provides the primary care for two small boys. In view of the possibility of a change in her circumstances and the husband’s income and future prospects of income, we find the trial court erred in not at least reserving the right to award periodic alimony at a future date: Parker v. Parker, supra. As circumstances dictate, this provision of the decree can be appropriately administered by the learned trial judge. We therefore reverse on this ground.

Next the wife contends the trial judge abused his discretion in the amount of child support awarded to the two boys. Again, determination of the amount of child support is a matter within the judicial discretion of the trial court, and will not be reversed unless palpably wrong. E.g., Coffelt v. Coffelt, supra. We cannot say the award of $600 a month constitutes an abuse of discretion. However, in light of the husband’s willingness to maintain life and medical insurance policies for the two boys as evidenced by his statements in court and in brief, we find the trial court erred in not putting such a provision in the final order. In addition, in view of the fact that the husband is diabetic and the possibility of diabetes developing in the boys exists, and in view of the circumstances viewed as a whole, we find the trial court erred in not providing that the husband should pay the entire health and medical costs of the two boys.

We therefore affirm as to the amount of child support, but reverse and remand so the trial court can enter a provision requiring the husband to maintain the life and medical insurance on the boys, plus provide for their health and medical costs.

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

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


text:
    Lewis Carl ROBERTS v. Voncile ROBERTS.
    Civ. 3443.
    Court of Civil Appeals of Alabama.
    Dec. 15, 1982.

      Joseph N. Langan and Michael D. Lan-gan, Mobile, for appellant.
    A1 Seale and Frances R. Niccolai, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The contested trial was conducted ore tenus before the circuit court. As his only issue on appeal, the husband contends that the trial court abused its discretion in dividing the real and personal property of the parties.

No court reporter’s transcript is contained in the record. Neither is there embodied therein a statement of the evidence or an agreed statement of the case as authorized by A.R.A.P. rules 10(d) and (e). Therefore, nothing is included in the record furnished to us as to any of the oral evidence which was presented by the witnesses before the trial court. However, the husband’s brief contains a purported summary of the testimony, but it cannot be here considered since an appellate court is not authorized to regard or recognize factual matters outside of the record itself. The record cannot be factually enlarged, changed, altered or varied upon appeal by statements appearing in briefs of counsel, but the record on appeal must disclose the facts upon which the alleged error is founded before such an error may be considered. Green v. Standard Fire Insurance Company of Alabama, 398 So.2d 671 (Ala.1981); Daniels v. Bona Fada Federated Club 1979-80 Members, 403 So.2d 255 (Ala.Civ.App.1981). Accordingly, none of the oral evidence which was put forth at the trial is before this court and we have no testimony which we may lawfully review in order to determine the factual questions of whether the trial court was palpably wrong in its division of the property of the parties. Under these circumstances, we are required to conclusively presume that the trial testimony supported the findings and the judgment of the trial court. Blase v. Blase, 419 So.2d 599 (Ala.Civ.App.1982); James v. Mobile Travelodge, 417 So.2d 205 (Ala.Civ.App.1982); Floyd v. State Department of Industrial Relations, 400 So.2d 409 (Ala.Civ.App.1981).

The judgment of the trial court is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Hillary Maxwell CAIN v. Barbara B. CAIN.
    Civ. 3377.
    Court of Civil Appeals of Alabama.
    Dec. 22, 1982.
    W.E. Garrett, Atmore, for appellant.
    Robert M. Seale, Livingston, for appellee.
   HOLMES, Judge.

This is a divorce case.

The husband sought relief from a divorce decree pursuant to rule 60(b), A.R.Civ.P. After an ore tenas hearing the trial court denied the relief sought. The husband through able counsel appeals and we affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in denying the relief sought. We find no such abuse of discretion and affirm.

We do not deem it necessary or prudent to set out in detail the facts surrounding this appeal. Suffice it to say the parties were divorced in February of 1976. In November of 1980, the aforementioned rule 60(b) motion was filed.

The basis of the 60(b) motion, the ore tenus hearing, and the appeal is the husband’s contention that he did not have proper notice of the divorce hearing. The husband therefore contends that the divorce decree is due to be set aside.

The husband specifically contends that his attorney withdrew from the divorce action and that, as a result, he had no notice of the upcoming divorce hearings.

The record reveals evidence that the husband did in fact receive notice of the hearing; that he refused to communicate with his attorney; that the attorney notified the husband that he was withdrawing from representation if the husband did not respond.

We note that the husband’s 60(b) motion appears to be untimely. It is not clear what grounds the husband’s petition is based upon. If the motion is viewed as a 60(b)(1), (2), or (3) motion it is untimely as the petition was filed some four years after entry of the judgment. Furthermore, under the circumstances of the instant case, four years could be considered unreasonable if 60(b)(4), (5), or (6) are applicable. See Rule 60(b), A.R.Civ.P.

In any event, the trial court has wide discretion in determining whether to grant relief on a motion for relief from a judgment and the trial court cannot be reversed on appeal absent an abuse of such discretion. Garland v. Garland, 406 So.2d 415 (Ala.Civ.App.1981).

In view of the evidence presented as indicated above, we find no such abuse of discretion. Put another way, there is evidence that the husband had notice of all pertinent hearings; that his attorney informed the husband of such hearings; and that the attorney for the husband withdrew only after the husband failed to communicate with his attorney.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Ella C. RODGERS v. Nathan J. RODGERS.
    Civ. 3420.
    Court of Civil Appeals of Alabama.
    Dec. 22, 1982.
    Barry A. Friedman of Hall, Friedman, Ashbee & Laden, Mobile, for appellant.
    A1 Seale and Frances R. Niccolai of Seale, Marsal & Seale, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of a Rule 60(b)(6), A.R.Civ.P. motion for relief from an order of divorce.

The trial court has wide discretion in its determination of whether to grant relief pursuant to Rule 60(b), A.R.Civ.P., and its ruling will not be reversed except for an abuse of that discretion. Charles Townsend Ford, Inc. v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979). Relief is justified under a Rule (60)(b) motion when a party is able to show exceptional circumstances sufficient to entitle him to relief. Hartford Insurance Co. v. Lagano, 394 So.2d 933 (Ala.1981). In reviewing a ruling of a trial court on a Rule 60(b)(6) motion, the trial court’s decision will not be disturbed unless it is determined that there is an absence of reasonable cause, that rights of others subsequently arising would be adversely affected or that it is unjust. Hartford Insurance Co. v. Lagano, supra.

We have carefully read and considered the record and the respective briefs. It is the opinion of the court that to relate the evidence as to the respective positions of the parties would serve no meaningful purpose. It is sufficient to say that we find no abuse of the discretion given the trial judge in considering Rule 60(b) motions. We consider our decision in the recent case of Nelson v. Nelson, 408 So.2d 101 (Ala.Civ.App.1981) is sufficient authority for our judgment in this case. The judgment below is therefore affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BOWEN, Judge.

text:
    J.C. WESLEY, alias Walter Price v. STATE.
    6 Div. 793.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-190.
    George A. Nassaney, Jr., Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of Dan Edward Green by shooting him with a shotgun. Sentence was life imprisonment under the Habitual Felony Offender Act.

I

The defendant filed a motion to quash the indictment and the jury venire contending that the selection of prospective jurors from the voter registration list excluded a substantial segment of the qualified population from the opportunity to be considered for jury service. This motion was properly overruled.

The motion to quash was filed too late. It was filed after the defendant had pled not guilty to the indictment and after the extended time for filing any special pleas or motions had expired. No excuse was offered for the delay and the motion was untimely. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); Owen v. State, 255 Ala. 354, 51 So.2d 541 (1951). But compare Thomas v. State, 277 Ala. 570, 173 So.2d 111 (1965).

The defendant totally failed to meet the burden of showing that the selection process systematically and arbitrarily excluded a cognizable class from jury service. United States v. Arlt, 567 F.2d 1295 (5th Cir.1978). A defendant may demonstrate a violation of his Sixth Amendment right to trial by an impartial jury by proving that the jury selected did not represent a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

“In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in ve-nires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” Duren, 99 S.Ct. at 668.

The proof offered by the defendant totally failed to satisfy any of these elements.

In support of his motion to quash, the defendant offered the same evidence submitted in the case of James Earl Sanders v. State, Ala.Cr.App., 6 Div. 657 (submitted to this court on July 13, 1982). The trial judge took judicial notice of the fact that “the voters’ list of Tuscaloosa County constitutes the source for the juror’s list.”

In Sanders, the Director of Research Planning in the Municipal Courts, Administrative Office of Courts, testified that the voter registration list was used exclusively to select the prospective jurors in Tuscaloosa County. He presented statistics which were based “not on the new census, but on the census projected by the University of Alabama.” The witness testified that “the (jury) box you have now are not those statistics.” He also stated that the prosecutor was “correct” when he stated that those “statistics, then, do not in anyway relate or show what is in the box now.” After this showing the trial court judge granted the State’s motion to exclude the statistics. No attempt was made to show how the statistics were related to the jury venire in the Sanders case or in this case.

Since the defendant’s argument is not supported by facts, it appears that he is arguing that the exclusive use of the voter registration list to select prospective jurors will always, as a matter of law, result in a violation of the fair-cross-section requirement. However, this view is not supported by the substantial number of cases collected on this very issue in Anno. 80 A.L.R.3d 869 (1977). “The contention that the use of the list of registered voters produced a jury panel generally nonrepresentative of a cross-section of the community has almost always been rejected, with the courts determining that it would be difficult to find a source more representative of the community.” 80 A.L.R.3d at 873.

The defendant relies on State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970), to support his contention. There it was held that the method of selecting and compiling the jury roll of Madison County, making sole use of the voter registration list, was “fraud in law.” Maples held that “a system of jury selection which excludes persons who are not registered voters would not substantially comply with statutory requirements (Alabama Code 1940, Title 30, Section 21) that the jury roll contain the names of all citizens living in the county who are generally reputed to be honest, intelligent and esteemed in the community for integrity, good character and sound judgment.” Hammond v. State, 354 So.2d 280, 285 (Ala.Cr.App.), cert. quashed, 354 So.2d 294 (Ala.1977).

The particular language of Maples upon which the defendant predicates his argument is as follows:

“Unregistered voters would seem, in the absence of statistics to the contrary, to comprise a substantial segment of the population of any area. And such a system of jury selection which omitted them would not substantially comply with the statutes in Alabama, nor would such a procedure insure the jury commission as complete a list as possible.” Maples, 286 Ala. at 280, 239 So.2d 198.

The holding of Maples must be limited to the facts of that case and must be viewed within the framework of the particular statutes involved. This was recognized in Hammond, 354 So.2d at 287, where this Court stated, “If the application of ‘fraud in law’ as expressed in Gregg v. Maples, is extended to challenges of grand juries by motions to quash, it must be done by the Supreme Court, not by this Court.” Certiorari was quashed in Hammond, the Supreme Court refusing to make such an extension.

“There is a presumption that no legal fraud exists in the system used for the selection of jurors, in the absence of proof to the contrary, or an offer of such proof.” Nixon v. State, 291 Ala. 657, 658, 286 So.2d 315 (1973). The burden of showing fraud in the selection of potential jurors is on the accused and there is a presumption that no legal fraud exists. Oyarzun v. Pittman, 367 So.2d 574, 580 (Ala.Cr.App.1978), cert. denied, 367 So.2d 584 (Ala.1979).

Maples dealt with the application of a statute that charged the jury commission with “the duty of seeing that the name of every person possessing the qualifications prescribed in this article to serve as juror and not exempted by law from jury duty is placed on the jury roll and in the jury box.” Alabama Code 1940, Title 30, Section 24; Alabama Code 1975, Section 12-16-41.

That statute and several others related to it were specifically repealed by Acts 1978, No. 594, p. 712, effective April 27, 1978. The policy of the new juror qualification and selection act is stated in Alabama Code 1975, Section 12-16-55.

“It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity, in accordance with this article, to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.”

Although the old law (Section 12-16-41) required the master list to contain the name of every qualified person who was not exempted by law, the new law (Section 12-16-57) only requires thq jury commission to “compile and maintain an alphabetical master list of all persons in the county who may be called for jury duty.” This section specifically states that the master list “may include all registered voters, persons holding drivers’ licenses and registering motor vehicles, and may include other lists, ... which will include persons whose listing will foster the policy and protect the rights provided in Sections 12-16-55 (Declaration of Policy) and 12-16-56 (Discrimination Prohibited).”

Our judgment that the- language and holding of Maples should not be interpreted as meaning that the practice of selecting prospective jurors exclusively from the list of registered voters constitutes legal fraud or results in the unconstitutional exclusion of a segment of the community as a matter of law finds support elsewhere. See Hammond.

Other courts have determined that the whole body of nonvoters does not constitute an identifiable, cognizable group. Baum v. State, 264 Ind. 421, 345 N.E.2d 831 (1976); Commonwealth v. Fisher, 447 Pa. 405, 290 A.2d 262 (1972). “(P)ersons choosing not to register to vote do not constitute a cognizable class capable of systematic exclusion from juries.” United States v. Horton, 526 F.2d 884, 889 (5th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976).

“Use of such lists as the sole source of names for jury duty is constitutionally permissible unless this system results in the systematic exclusion of a ‘cognizable group or class of qualified citizens.’ Grimes v. United States, 5 Cir., 1968, 391 F.2d 709, cert. denied, 393 U.S. 825, 89 S.Ct. 87, 21 L.Ed.2d 96; Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34. This Court and others have held that those who do not choose to register to vote cannot be considered a ‘cognizable group.’ Grimes v. United States, supra; United States v. Caci, 2 Cir., 1968, 401 F.2d 664, 671; United States v. Kelly, 2 Cir., 1965, 349 F.2d 720, 778, cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544; Gorin v. United States, 1 Cir., 1963, 313 F.2d 641, 644, cert. denied, 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052.” Camp v. United States, 413 F.2d 419, 421 (5th Cir.1969).

As previously noted, courts have repeatedly upheld as constitutional the use of voter registration lists as the exclusive source of prospective jurors against the contention that their use discriminated against identifiable racial, social or economic groups. Anno. 80 A.L.R.3d 869. The exclusive use of the list is in compliance with the Federal Jury Selection Act.

“It has also been expressly held or recognized that the use of either the voter registration lists or the lists of actual voters as the sole source of names of prospective jurors is not in violation of, but is in compliance with, the requirement of the (Federal Jury Selection and Service) Act, and neither is it constitutionally invalid unless there is discrimination in the compilation of such lists; and that the selection at random of prospective jurors’ names from such lists complies with the Act and precludes discrimination against, or systematic exclusion of, any particular group otherwise eligible for jury service.” Anno. 17 A.L.R. Fed. 590, 598-99 (1973).

The motion to quash the indictment and the jury venire was properly overruled because the motion was untimely, because the defendant failed to sustain his burden of proof, because nonvoters do not constitute a cognizable group, and because the use of the voter registration list as the sole and exclusive source of prospective jurors does not automatically constitute “fraud in law” or constitute a prima facie violation of the fair-cross-section requirement. See Lopez v. State, 415 So.2d 1204 (Ala.Cr.App., 1982), cert, denied, (Ala. June 25, 1982), where we held that the exclusive use of the drivers’ license list in selecting prospective jurors in Etowah County was not improper.

“The law in Alabama does not require, literally, that every qualified person’s name be placed on the rolls or in the box. Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966). Failure to include every qualified person on the jury roll is not a ground to quash an indictment or venire, absent fraud or purposeful discrimination. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).” Lopez.

II

The defendant maintains that the trial court committed error in refusing to charge the jury on criminally negligent homicide as a lesser included offense of murder. We disagree and concur with the comments of the trial judge on this issue.

“THE COURT: Well, Alabama Code, Section 13A-1-9(b) says that a Court shall not charge a jury with respect to an included offense unless there’s a rational basis for a verdict convicting the Defendant of the included offense. And if there’s a rational basis for charging on Criminally Negligent Homicide in this case then they ought to repeal that section of the Code, because I just cannot understand how a jury could rationally return a verdict and I don’t understand how a judge could rationally instruct a jury on Criminally Negligent Homicide under the facts of this case. There is absolutely no evidence of a negligent act. He either shot him or he didn’t shoot him. And the defense was alibi in this case.”

A court may properly refuse to charge on lesser included offenses when it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense. Chavers v. State, 361 So.2d 1106 (Ala.1978). There is no rational basis for a verdict convicting the defendant of criminally negligent homicide in this case. Thus, the court’s oral charge was proper. Alabama Code 1975, Section 13A-1-9(b).

“A defendant is likewise not entitled to charges on lesser included offenses when he denied committing the crime itself.” Williams v. State, 377 So.2d 634, 637 (Ala.Cr.App.), cert. denied, Ex parte Williams, 377 So.2d 639 (Ala.1979).

Also the requested charge on the lesser included offense was properly denied because it was not hypothesized on a “belief from the evidence.” Hudson v. State, 335 So.2d 208 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Arthur Cleveland TERRY, Jr. v. STATE.
    7 Div. 931.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.
    Certiorari Denied Jan. 21, 1983 Alabama Supreme Court 82-215.

      Thomas M. Semmes, Oxford, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Rape; twelve years.

The prosecutrix testified that in April of 1981, she lived with her two small children in an apartment complex in Oxford, Alabama. Around 4:00 or 4:30 A.M. on April 30, 1981, she was awakened by a noise which she thought came from the complex. When she heard the noise again, she turned over and saw a man standing in front of her bed. She screamed and the man put a knife to her throat and threatened to kill her if she was not quiet.

Although there was no light on in the bedroom, there was a street lamp at the corner of the prosecutrix’ building which shone into the bedroom. The prosecutrix was able to identify the man in her room as the appellant. She testified that she did not know appellant personally, but that he was the brother of her next-door neighbor. She had seen appellant several times, but had only spoken to him on one previous occasion. The prosecutrix stated that on the day before this occurrence, appellant’s sister and brother-in-law had moved out of the apartment next door.

The appellant instructed the prosecutrix to take off her underwear. He then pulled down his jeans and raped her. The prose-cutrix stated that the attack lasted at least an hour. Appellant attempted anal intercourse several times, but was unsuccessful and each time returned to normal sexual intercourse. During most of the attack, appellant held the knife to the prosecutrix’ throat or ribs. The prosecutrix testified that appellant was unable to ejaculate and finally left her apartment.

After appellant left, the prosecutrix called a neighbor, Faye Moore. Ms. Moore came to the prosecutrix’ apartment and called the complex security officer. Before the security officer arrived, the prosecutrix went back to her bedroom to change clothes. At that time she found a wallet in her bed containing appellant’s drivers’ license.

Lt. Bobby Parker of the Anniston Police Department testified that in April, 1981, he was working a second job as the security officer at the apartment complex where the prosecutrix lived. Parker stated that early on the morning of April 30, 1981, he was called to the prosecutrix’ apartment by Faye Moore. The prosecutrix told him she had been raped and he called Sgt. Wood of the Oxford Police Department. He also took custody of the wallet found by the prosecutrix and later turned it over to Sgt. Wood. He stated that the prosecutrix was “very emotionally upset.”

Sgt. Donald Wood testified that the pros-ecutrix was hysterical when he arrived in response to Parker’s call. After the prose-cutrix calmed down, Wood took her to the emergency room of a local hospital for an examination. Before leaving for the hospital, Wood had the prosecutrix collect the underwear she had had on. He later returned to the prosecutrix’ apartment and collected the T-shirt she was wearing at the time of the attack and the sheets and pillow cases from the bed. These items, along with the evidence obtained during the medical examination of the prosecutrix, were later delivered to the crime lab.

Sgt. Wood had appellant brought in for questioning later on the day of the attack. He obtained a pubic combing and known pubic and head hairs from appellant. After advising appellant of his rights, Sgt. Wood questioned him about the attack on the prosecutrix. Appellant first denied seeing the prosecutrix that morning or being at her apartment. He then gave a statement to Sgt. Wood that he had paid the prosecu-trix twenty-five dollars for sex the night before.

According to appellant’s statement, he left his parents’ house at 8:00 or 8:30 on the night of April 29th, and went to his sister’s and brother-in-law’s residence. He left their home around 10:00, went to a convenience store and purchased beer, and then went to the prosecutrix’ apartment at her invitation. He stated that he had sex with the prosecutrix and left her apartment at approximately 12:30. He then went to Briggs’ (a bar), where he stayed until closing time, around 3:30 A.M. After leaving Briggs’, appellant returned to his parents’ home. He woke them up coming in and talked to them a few minutes before going to bed.

When questioned about his wallet, appellant stated that he lost it while helping his sister and brother-in-law move on Tuesday. The attack on the prosecutrix occurred on Thursday morning.

Dr. Howard McVeigh examined the pros-ecutrix on the morning of April 30, 1981. He performed a flourescent light test for the presence of semen, which was negative, and took vaginal and rectal smears. A nurse performed a pubic combing and obtained known pubic hairs from the prose-cutrix. Dr. McVeigh testified that the prosecutrix’ physical condition was not consistent with normal non-forced sexual intercourse.

John Case, a criminalist with the Alabama Department of Forensic Sciences, testified that he found evidence of semen in the vaginal smears taken from the prosecu-trix and on the top sheet taken from the prosecutrix’ bed. The pubic combings taken from appellant revealed two pubic hairs dissimilar to appellant’s, but consistent with known pubic hairs of the prosecutrix. Pubic hairs taken from the T-shirt worn by the victim on the night of the attack and from the bed sheets were consistent with known pubic hairs of appellant.

Appellant did not testify, but did call three witnesses, his brother, his brother-in-law, and one Tammy Putt, who testified that appellant had lost his wallet on Wednesday, the day before the attack on the prosecutrix, while helping his sister and brother-in-law move. Appellant’s brother, Mark Terry, also testified that he was with appellant at Briggs’ on the night of April 29th, from 11:00 or 12:00 until approximately 3:30 A.M. Terry further testified that appellant told him that he (appellant) had been to the prosecutrix’ apartment at her invitation prior to coming to Briggs’.

Faye Moore testified that she received a call from the prosecutrix around 5:30 on the morning of April 30, 1981. When Ms. Moore arrived at the prosecutrix’ apartment, the prosecutrix told her that she had been raped. Ms. Moore stated that she asked the prosecutrix if she knew who her attacker was and the prosecutrix replied that she did not, but that he lived in the apartment complex. When the prosecutrix found the wallet, Ms. Moore looked at appellant’s picture on the driver’s license and asked the prosecutrix if she knew who that was. According to Ms. Moore, the prosecu-trix stated that she did not know who the person in the picture was and asked Ms. Moore who he was. Ms. Moore told the prosecutrix that he was the brother of the woman who had lived next door to her (the prosecutrix) until the day before.

The State called two witnesses in rebuttal. Appellant’s father testified that appellant was at home when he woke up at 5:00 A.M. on April 30, 1981. He further stated that he did not know what time appellant returned home because he did not see appellant come in.

James Bryant testified that he had been a bartender at Briggs’ on April 29, 1981. He stated that he first saw appellant that night around 10:30, but that it would not have been as late as 12:30. On cross-examination, he testified that appellant’s drinks were placed on his brother’s tab and that he did not see appellant’s wallet that night.

I

Appellant asserts that the jury verdict was “not supported by the overwhelming weight of the evidence.”

The State’s evidence, as set out above, was sufficient to establish a prima facie case and the trial judge was correct in overruling appellant’s motion to exclude. Appellant introduced evidence showing that he had lost his wallet before the day of the attack. There was also some evidence of an alibi.

Where, as in this case, there is conflicting evidence presented by the prosecution and the defense, it is for the jury to resolve the conflict and determine the defendant’s guilt or innocence. Mayberry v. State, 281 Ala. 573, 206 So.2d 585 (1968); Ellis v. State, 244 Ala. 79, 11 So.2d 861 (1943); Gilmore v. State, 358 So.2d 501 (Ala.Cr.App.1978); Stewart v. State, 39 Ala.App. 410, 104 So.2d 684, cert. denied, 267 Ala. 697, 104 So.2d 686 (1958). In making its determination, the jury may believe or disbelieve all or any part of the testimony presented by either side. Smelcher v. State, 385 So.2d 653 (Ala.Cr.App.1980); Gilmore v. State, supra; Harris v. State, 333 So.2d 871 (Ala.Cr.App.1976). As the Court of Appeals stated in Autry v. State, 34 Ala.App. 225, 38 So.2d 348 (1948):

“The jury apparently saw fit to accept the testimony of the prosecutrix, and the other witnesses presented by the State. This conclusion was solely within the jury’s province. Neither the trial court, nor this court on review, can usurp the province of the jury in weighing the evidence and passing upon the credibility of the witness.... This responsibility is solely upon the jury, the members of which have seen and heard the witnesses, and are in position to sift the truth from live testimony far better than a reviewing court can perform this function by reading such testimony in cold type in a record. Brooks v. State, 8 Ala.App. 277, 62 So. 569.”

See also, Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), affirmed on other grounds, 391 So.2d 677 (Ala.1980); Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813, cert. denied, 292 Ala. 723, 297 So.2d 817 (1974).

II

Appellant moved for a new trial on the ground that he failed to receive a fair and impartial trial due to the improprieties on the part of one of the jurors. A hearing was held on the motion. Appellant testified that he “knew of” a juror, Mary McWil-liams. He stated that he had gone to grammar school with Ms. McWilliams, although she was several years older, and that they rode the same school bus for two years. According to appellant, his brother was personally acquainted with Ms. McWilliams.

Appellant’s trial lasted three days, November 30, December 1, and December 2, 1981. Appellant testified at the hearing that a Ray Williams had informed him that Ms. McWilliams had come by the gas station where Williams was employed on the evenings of the first two days of trial and talked to him (Williams) about the trial. Appellant first met Williams some four or five weeks after the conclusion of the trial. It was at this time that Williams told appellant about Ms. McWilliams coming by the station.

Bobby Character testified that he overheard the November.30th conversation between Ms. McWilliams and Ray Williams. He stated that Ms. McWilliams said she “didn’t have to hear no more of the [evidence], she knew he was guilty” and that she had “prior knowledge” of the case. On cross-examination, the witness showed a great deal of confusion over the date he heard this conversation.

Ray Williams testified that Ms. McWil-liams told him that she recognized appellant in the courtroom and that she thought appellant was probably guilty. She also told him a friend of hers had been raped and she had been a witness in that trial. He stated that on December' 1st (the second day of appellant’s trial), Ms. McWilliams told him that appellant’s father’s testimony had hurt appellant. During examination by the court, however, a check with the court reporter revealed that appellant’s father did not testify until December 2nd. On cross-examination, Williams exhibited confusion over the dates and conversations involved.

The juror, Mary McWilliams, testified that she did not know appellant at the time of his trial and that, to her knowledge, she had not ridden a bus with him in grammar school. She knew appellant’s brother by name, but was not personally acquainted with him. She further stated that she had no knowledge of appellant’s case prior to sitting on the jury. Although she went to the gas station where Williams worked during appellant’s trial, she did not discuss the case with Williams. Ms. McWilliams testified that she had once been a witness in a rape case. She also stated that she had a conversation with Character after appellant’s trial in which Character stated that appellant had asked Williams to make a statement and that Williams was being paid to make his statement.

Two witnesses were called by the State. Their testimony essentially corroborates portions of Ms. McWilliams’ testimony and need not be recounted.

At the close of the hearing, the trial judge denied appellant’s motion for a new trial. He stated:

“I can’t find that there has been any showing whatsoever by credible, believable evidence in this hearing that there was any juror misconduct whatsoever. “In fact, I’m thoroughly convinced that you’re [the appellant] guilty of suborning perjury from some of the witnesses that testified here today; at least one of them and have committed it yourself .... I do find that you’ve not established the facts in your motion by believable credible evidence and I don’t find where the State’s witnesses were in any way unbelievable.”

Ill

Appellant contends that Ms. McWilliams’ alleged conversation with Ray Williams during the course of the trial entitles him to a new trial.

This case is factually very similar to Hall v. State, 348 So.2d 870 (Ala.Cr.App.), cert. denied, 348 So.2d 875 (Ala.1977), cert. denied, 434 U.S. 1021, 98 S.Ct. 745, 54 L.Ed.2d 768 (1978). In Hall, a juror’s son and one Johnny Snow testified at the hearing on a motion for new trial that the juror had told his son that he (the juror) did not like appellant, that appellant’s father owed him money, and that he was going to find appellant guilty. The juror testified in rebuttal. He stated that he did not know appellant before the trial and denied saying that appellant’s father owed him money or that he was going to find appellant guilty. Our holding in Hall applies equally well to the instant case:

“The evidence pertaining to the misconduct of the juror [McWilliams], submitted at the hearing on the motion for a new trial, was in conflict. It was the duty of the trial judge to exercise his reasonable discretion in weighing the evidence presented and to reach a decision thereon. His ruling will not be disturbed in the absence of a showing of abuse of discretion, and this Court will indulge in every presumption in favor of the correctness of the ruling of the trial judge. Although the testimony was conflicting we find that the trial judge’s exercise of discretion in making his determination was reasonable, and we therefore will not disturb the trial court’s decision.” (Citations omitted) 348 So.2d at 875.

IV

Appellant maintains that the juror, McWilliams, was biased because a friend of hers had been the victim of a rape and that he therefore did not receive a fair and impartial trial.

The rule in Alabama is that a challenge to the composition of a jury must be made before the jury is empaneled and sworn. A challenge which comes for the first time in a motion for new trial comes too late and amounts to a waiver of the objection. Williams v. State, 342 So.2d 1328 (Ala.1977); Durden v. State, 394 So.2d 967 (Ala.Cr.App.1980), cert. denied, 394 So.2d 977 (Ala.1981); DeLoach v. State, 361 So.2d 19 (Ala.Cr.App.1977), cert. denied, 361 So.2d 21 (Ala.1978). An exception to this rule exists for matters which were not known, or by the exercise of due diligence, could not have been known before trial. Williams v. State, supra.

The matter complained of by appellant does not fall within this exception. The fact that Ms. McWilliams knew the victim of a rape or that she had once been a witness in a rape case could have been discovered by due diligence. Appellant was afforded ample opportunity to question the venire during the voir dire examination. The record reveals that appellant’s counsel asked whether any member of the venire had ever been the victim of a rape or charged with that offense. No inquiry was made as to whether aiiy member knew a victim of a rape or had been a witness in a rape case.

V

Appellant also asserts as grounds for a new trial that Ms. McWilliams failed to answer truthfully a question propounded to the venire during the voir dire examination. The venire was asked if any member was acquainted with appellant or any member of his family. Ms. McWilliams made no response.

Appellant testified at the hearing that he “knew of” Ms. McWilliams prior to trial and that he knew his brother knew her. Clearly then, this was a matter known to appellant at the time Ms. McWilliams failed to respond to the question. For the reasons stated in part IV above, appellant’s challenge to Ms. McWilliams on this ground comes too late. See also Wynn v. State, 423 So.2d 294 (Ala.Cr.App.1982). Moreover, Ms. McWilliams testified at the hearing that she did not know appellant’s brother.

We have reviewed every contention raised by appellant and found no error. The judgment of conviction by the Calhoun Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    The STATE of Alabama v. Robert Michael DeMENT, alias and John Dowling Thomas, alias.
    6 Div. 374, 6 Div. 374-A to 6 Div. 374-D.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1981.
    Rehearing Denied Feb. 24, 1981.

      Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellant.
    Joel L. Sogol of Sogol & Chandler and C. Delaine Mountain of Crownover & Mountain, Tuscaloosa, for appellee.
   BOWEN, Judge.

This is a consolidated appeal by the State of Alabama in five cases involving two defendants (John Dowling Thomas in four cases and Robert Michael DeMent in one case). In each case , the circuit court declared the statute unconstitutional. The specific issue presented by this appeal is the constitutionality of Act Number 520 of the 1976 Regular Session of the Alabama Legislature.

Act Number 520 provides:

“Section 1. Whenever any search warrant is directed to any sheriff, or to any constable of a county, commanding him to search a person, place or vehicle in any circuit composed of one county and having not less than five nor more than seven circuit judges, where the affidavits state probable cause for believing that a violation of the laws of this state relative to narcotics or controlled substances has occurred or is occurring and that evidence of such violation may be found on such person, or in such place or vehicle, then such warrant may be executed at any time of the day or night and the magistrate issuing such warrant shall state that such warrant may be executed at any time of the day or night.
“Section 2. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
“Section 3. All laws or parts of laws which conflict with this act are hereby repealed.
“Section 4. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

This act became effective on August 24, 1976.

I

The defendant’s contention that the act is unconstitutional in that it violates Section 105 of the Constitution of Alabama of 1901 is without merit. In support of their contention, the defendants rely exclusively upon Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978), in which the Supreme Court set forth the principles governing the question of the compliance of a statute with Section 105.

As Act Number 520 was enacted and approved prior to the decision in Peddycoart, we cannot find that it violated Section 105 of the Alabama Constitution, for it was specifically held in Peddycoart that the principles stated therein and here relied upon by the defendants were of prospective application only. 354 So.2d at 814.

II

The defendants also argue that Act Number 520 violates the equal protection guaranty of the Fourteenth Amendment to the Constitution of the United States. We have found no authority, and we have been cited none, to justify that conclusion. In Newton v. State, 375 So.2d 1245 (Ala.Cr.App.), cert. denied, 375 So.2d 1250 (Ala.1979), this Court held that a statute empowering experienced magistrates in Tuscaloosa County, whether licensed attorneys or not, to issue search warrants did not violate the constitutional guarantee of equal protection. Upon similar reasoning, we find that Act Number 520 is not violative of the equal protection clause.

We also find that Act Number 520 does not violate Section 6.11 of Amendment 328 to the Alabama Constitution of 1901 as did the statute in Newton, 375 So.2d at 1249.

III

The defendants also argue that the circuit judge who declared the act unconstitutional in the cases presently on appeal was bound by the prior decision of another circuit judge in his circuit declaring the act unconstitutional. The defendants contend further that since the State failed to appeal the original ruling declaring Act Number 520 unconstitutional, it is bound by that decision and estopped from challenging the constitutionality of the act on appeal. An accurate and complete recitation of the authority cited by the defendants reveals these arguments to be without merit.

“(I)t is well established as a general rule that a court will adhere to a principle, not clearly erroneous, which is laid down by another court of coordinate jurisdiction, until the rule is settled otherwise by the decision of a higher court.”
21 C.J.S. Courts, Section 200 (1940).

While the circuit judge in this case may have felt bound by the prior decision of another circuit judge in the same circuit, this Court is not so obligated or compelled.

It is our conclusion that Act Number 520 is constitutional. The decision of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.

      . Section 6.11 of Amendment 328 to the Alabama Constitution of 1901 provides:
      “The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided, further, that the right of trial by jury as at common law and declared by section 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application.”