text:
    Joann BATES v. JIM WALTER RESOURCES, INC.
    81-586.
    Supreme Court of Alabama.
    Aug. 27, 1982.

      Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellant.
    Stephen E. Brown of Bradley, Arant, Rose & White, Birmingham, for appellee.
   FAULKNER, Justice.

Plaintiff, Joann Bates, appeals from a summary judgment granted in favor of defendant, Jim Walter Resources, Inc. (JWR), for breach of an oral employment contract. As found by the trial court, the substantive and material facts in the present case are entirely undisputed. Bates was offered and accepted a job with JWR in January, 1981. The alleged employment contract between Bates and JWR was oral and specified no particular term, period, or duration of employment. Bates quit her job as a dental hygienist following her acceptance of the job with JWR, but before February 2,1981, her scheduled employment date with JWR. Prior to February 2,1981, Bates, along with other new hirees, was informed that her scheduled employment date with JWR would be delayed until February 9, 1981, due to the fact that the required mine training class had not been filled.

On February 4, 1981, between the time that Bates quit her job as a dental hygienist and her newly scheduled date of employment with JWR, economic conditions caused JWR to institute an austerity program, which included a hiring freeze. Prior to her scheduled date of employment with JWR, Bates, along with other new hirees, was notified of the hiring freeze and of the fact that her scheduled employment with JWR was being terminated as a result thereof.

On September 23, 1981, in the Circuit Court of Tuscaloosa County, Bates filed her complaint against JWR, seeking monetary damages for breach of contract. In its answer, JWR, among other defenses, denied that any binding contract existed between Bates and JWR, and in the alternative, affirmatively stated that to the extent any employment contract existed between Bates and JWR, that contract was terminable at the will of either party.

Following the taking of depositions, both parties moved for summary judgment, alleging that no dispute existed as to the material facts in this cause and that a judgment was appropriate as a matter of law. The Circuit Court of Tuscaloosa County granted JWR’s motion for summary judgment. We affirm.

Two issues are raised on appeal:
(1) Whether the principle of promissory or equitable estoppel creates a contract between Bates and JWR, which JWR breached by terminating or delaying Bates’s employment prior to her scheduled employment date;
(2) Whether the employment at will doctrine applies to the present cause.

We will address the issue of promissory estoppel first. Bates contends that the principle of promissory or equitable es-toppel creates a binding contract between Bates and JWR which JWR breached by terminating Bates’s employment. In this cause, it is undisputed that no representations and/or promises whatsoever were made to Bates regarding the term, duration or length of employment. Thus, although equitable estoppel might transform an otherwise non-binding agreement into a legally binding contract, this Court has held that the principle of promissory or equitable es-toppel cannot be utilized to create primary contractual liability where none would otherwise exist. Equitable Life Assur. Soc. v. Langford, 234 Ala. 681, 176 So. 609 (1937); Home Ins. Co. of N.Y. v. Campbell Motor Co., 227 Ala. 499, 150 So. 486 (1933); Gordon v. Old Republic Life Ins. Co., 354 So.2d 13 (Ala.Civ.App.1977). Likewise, in Ivey v. Dixon Investment Co., 283 Ala. 590, 219 So.2d 639 (1969), this Court stated, “[A]n estoppel cannot operate to create binding effect against a party under circumstances which would not sustain a contract if one had been made” (283 Ala. at 594, 219 So.2d 639). If there was no contract out of which a cause of action could arise, one may not by the theory of waiver or estoppel be prevented from so pleading. St. Paul Fire and Marine Ins. Co. v. Air Comfort Engineers, Inc., 47 Ala.App. 301, 253 So.2d 525 (1971). Therefore, the trial court was clearly correct in holding that the principle of equitable estoppel could not be utilized in the present case to create a term, period, or duration in the alleged employment contract between Bates and JWR where it was undisputed that the alleged agreement between the parties contained no such term, period, or duration.

The second issue on appeal concerns whether the employment at will doctrine is applicable to this case. An oral employment contract that neither includes, nor specifies, any particular term, length, or duration of employment is considered an employment at will contract. Scott v. Lane, 409 So.2d 791 (Ala.1982). This Court has consistently held that employment contracts without a fixed term of employment are terminable at the will of either party and may be terminated for good cause, bad cause, or no cause at all. See, e.g., Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977); Martin v. Tapley, 360 So.2d 708 (Ala.1978); Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980).

The trial court stated, “To the extent that any legally sufficient employment contract existed between plaintiff and defendant, ... the employment contract contained no specified term, period or duration and was terminable at the will of either party.” Bates argues, however, that the employment at will doctrine does not apply to this cause for the following reasons: (1) the doctrine does not apply where the employee gives up a thing of value to accept employment; (2) the doctrine does not apply where an employee has accepted an offer to work in a union job covered by a collective bargaining agreement.

Relying on Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939), and Scott v. Lane, 409 So.2d 791 (Ala.1982), Bates argues that the employment at will doctrine should not apply where an employee gives up a thing of value (e.g., a prior job) to accept employment. These cases are clearly distinguishable from the present cause. In both Alabama Mills and Scott, this Court held that if there is a promise of permanent employment or employment for so long as the employee wishes, the relinquishment of prior employment may constitute sufficient consideration to bind the promisor.

This, however, is not a case of permanent employment or employment of a definite duration or employment for so long as Bates desired. It is undisputed that there was no understanding, agreement or promise whatsoever between Bates and JWR regarding the term, length, or duration of her employment. As found by the trial court, “In the present cause, there is not a scintilla of evidence that permanent employment was promised, offered or suggested. Rather, the undisputed evidence is entirely to the contrary.”

Bates states that her employment meets the definition of permanent employment set forth in Alabama Mills or that if it does not then this Court should expand Alabama Mills to hold that the employment at will doctrine does not apply to employment contracts where the employee gives up an existing job to accept the employment in question.

In Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939), this Court defined “permanent employment” as follows:

“It was said that what they meant by a permanent employment was so long as defendant was engaged in the same nature of business and needed the service of such an employee, and plaintiff was able and willing to do it satisfactorily and gave no cause for his discharge.
“ ‘. “[Permanent” employment will be held to contemplate a continuous engagement to endure as long as the employer shall be engaged in business and have work for the employee to do and the latter shall perform the service satisfactorily. ...”’ (237 Ala. at 299, 186 So. 699.)

Thus, according to the above definition, an implicit term of the employment contract was that the employee would remain employed only if the employer had need of the employee’s services. In this case, the trial court correctly found that Bates was terminated because JWR did not need Bates’s services or the services of other new employees at that time.

Bates also contends that the employment at will doctrine should not be applied where, at some future date, the employment would be covered by a written collective bargaining agreement. As found by the trial court, however, it is undisputed that Bates’s potential employment was not covered by any collective bargaining agreement at the time of her termination. Even if a collective bargaining agreement was applicable to Bates, the present cause would be legally barred as the result of Bates’s failure to utilize and exhaust the grievance and arbitration procedure contained therein. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967).

The judgment of the trial court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Charles B. HAYES v. The CITY OF LANETT, Alabama, a Municipal Corporation.
    Civ. 3192.
    Court of Civil Appeals of Alabama.
    July 14, 1982.
    Rehearing Denied Aug. 18, 1982.
    Allison W. Davidson, Chicago, Ill., and C. Neal Pope of Pope & Hermann, Phenix City, and Paul D. Hermann of Pope & Her-mann, Atlanta, Ga., for appellant.
    W.F. Horsley of Samford, Denson, Hors-ley, Pettey, Martin & Barrett, Opelika, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a denial of workmen’s compensation coverage. The cause arose out of the following facts and circumstances:

Charles B. Hayes was employed by the City of Lanett, Alabama, in the gas department. His regular working days were Monday through Friday. Hayes also served the City as an auxilliary policeman on occasion during his off days. One Saturday when Hayes was working as an auxiliary policeman, he was shot while in the squad room of the Lanett Police Department when a police detective’s revolver accidentally discharged. Hayes sustained severe injuries, was hospitalized for an extended period and developed psychiatric problems. Both his medical bills and loss of earnings are great.

Hayes claimed workmen’s compensation in the Circuit Court of Chambers County. After ample discovery and trial before the court, an order was entered whereby the court denied compensation coverage. The trial court specifically found that Hayes’ injuries were not incurred in connection with his employment by the City in the gas department and thus did not arise out of his employment. The court found that auxiliary policemen are not employees of the City, and that supervision by regular policemen is not sufficient to create employment status. Additionally, the trial court found that auxilliary policemen are volunteers only. From the order denying coverage, Hayes appeals.

Appellant contends that the trial court erred in finding that his “volunteer” status precluded recovery under the Alabama Workmen’s Compensation Act, § 25-5-1 Code of Alabama (1975).

Section 25-5-1 defines employer and employee as follows:

(4) Employer.- — Every person not excluded by Section 25-5-50 who employs another to perform a service for hire and pays wages directly to such person.. .. (Emphasis ours.)
(6) Employee and Workman.—
. . . Such terms include every person not excluded by Section 25-5-50, in the service of another under any contract of hire, express or implied, oral or written,

We agree with the trial court that there was no employment status between Hayes and the City for the purposes of his work as an auxiliary policeman. The record clearly shows that no wages were paid to Hayes for this work. Our supreme court in Downey v. Bituminous Casualty Corp., 349 So.2d 1153 (Ala.1977) held that the direct payment of wages by the employer is a statutory requirement. The decision in that case is decisive in this case, and this court has no alternative but to follow the decision of the Supreme Court of Alabama. § 12-3-16, Code of Alabama (1975). We are of the opinion that Hayes was not under a contract of hire, but was performing a non-contractual gratuitous service for the City. This, we consider, is the essence of the trial court’s finding that auxiliary policemen are “volunteers.”

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Robert C. CRAWFORD v. Martha KINDRED and Vermae Schugar.
    Civ. 3264.
    Court of Civil Appeals of Alabama.
    July 21, 1982.
    Rehearing Denied Aug. 18, 1982.
    Robert C. Crawford, Mobile, pro se.
    No brief for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The defendant appealed directly to this court from an adverse judgment of the small claims court. We dismiss his appeal.

Rule M of the Alabama Small Claims Rules provides that a judgment rendered by the small claims court “may be appealed to the circuit court by the filing of a notice of appeal in the office of the clerk of the small claims court within 14 days from the date of the judgment....” Inasmuch as that rule was adopted subsequent to § 12-12-72 of the Code of Alabama (1975), a direct appeal to this court from a small claims judgment is not presently authorized. An appeal taken without authority of law must be dismissed for want of jurisdiction: Hallman v. City of Northport, 386 So.2d 756 (Ala. Civ. App. 1980); 2 Ala. Digest, Appeal and Error, Key No. 1.

It is clear that the defendant has attempted to base his appeal upon subdivision (2) of § 12-12-72 which provides for a direct appeal from the district court to the appropriate appellate court if the parties stipulate that only questions of law are involved and if the district court certifies the questions. Here, the district court belatedly certified a question of law to this court; however, the plaintiffs have never stipulated with the defendant that only a question of law is involved. Hence, both prongs of that subsection are not properly satisfied in this appeal. There has been no substantial compliance with the statute. Therefore, the same end result would be here required even if Rule M did not exist and if that code section had sole application, for appeals which are not taken in the manner prescribed by statute or supreme court rule must be dismissed. LeFlore v. State ex rel Moore, 288 Ala. 310, 260 So.2d 581 (1972), cert. denied, 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d 299 (1972).,

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 (1975), and this opinion is hereby adopted as that of the court.

APPEAL DISMISSED.

All the Judges concur.


text:
    Malcolm J. HUMPHREYS v. James William MADDOX.
    Civ. 3104.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1982.

      Clifford W. Cleveland, Prattville, for appellant.
    John Nile McGee, Jr., Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a conversion ease.

Maddox sued Humphreys, alleging conversion and fraud. The trial court granted Humphreys’s motion for a directed verdict on the fraud count but allowed the conversion count to go to the jury. The jury found in favor of Maddox. After the verdict, Humphreys made a motion for a judgment notwithstanding the verdict or in the alternative for a new trial, which motion was denied after Maddox agreed to a remit-titur of a portion of the judgment. Hum-phreys then appealed to this court. We affirm.

The facts are largely undisputed. On August 18, 1979, Maddox purchased a refrigerated trailer from Humphreys for $9,500. The agreement called for a down payment of $2,500 and installment payment of $650 per month for a period of twelve months. Pursuant to the security agreement executed by the parties, Humphreys had a security interest in the trailer and the right to retake the trailer if Maddox defaulted. All the monthly installments were made on time except for the last two. It was the arrangement of the parties for Humphreys to pick the payments up on the first of each month. In August, 1980, Humphreys informed Maddox’s wife, who also served as his secretary, not to make the last two installments as Humphreys was interested in repurchasing the trailer. Negotiations for the repurchase of the trailer were unsuccessful and there was evidence offered at trial that Maddox offered payment of the last installments to Hum-phreys, who refused them.

In the meantime, Humphreys had discovered that the trailer was being held under a mechanics lien by Thompson Transport Refrigeration, Inc. (Thompson), for repair work done to the trailer yet unpaid by Maddox because of a dispute concerning the work.

Humphreys paid Thompson for the repairs to the trailer and Humphreys repossessed it, asserting his right to do so because of Maddox’s failure to make the last two payments under the purchase agreement.

Humphreys’s first contention is that he was a secured party and that a secured party has the right to repossess collateral without process if payments on that collateral are in arrears. Such is a correct statement of the law in Alabama. Reno v. General Motors Acceptance Corp., 378 So.2d 1103 (Ala.1979); Ford Motor Credit Co. v. Ditton, 52 Ala.App. 555, 295 So.2d 408, cert. denied, 292 Ala. 423, 295 So.2d 412 (1974). Humphreys would indeed have had a right to self-help repossession if Maddox had defaulted. The trial judge ably and justly instructed the jury on the right to peaceful repossession, as requested by Humphreys. The jury apparently found no default on the part of Maddox, which eliminated Hum-phreys’s right to take possession of the trailer.

Humphreys contends that there was no modification of the original security agreement, and had there been one, there was no consideration given for the modification. As for the first prong of this assertion, the question of whether there was a modification was decided affirmatively by the jury. The evidence of both Maddox and Mrs. Maddox was that Humphreys had relieved them from making the remainder of the monthly payments until a bargain for the trailer could be struck. Humphreys offered no evidence to the contrary. The jury’s verdict for the plaintiff was an acknowledgment of the existence of a contract modification.

As for Humphreys’s contention that the modification was not supported by consideration, the general rule is that “[a] subsequent agreement may be made to extend the time of payment of a note, but it must be based on a valuable consideration.” Webb v. Dickson, 276 Ala. 553, 555, 165 So.2d 103, 105 (1964). However, a creditor, by his actions may be estopped from asserting this defense where, as here, there is credible evidence of the elements of such estoppel. Ott v. Fox, 362 So.2d 836 (Ala. 1978); Commercial Credit Co. v. Willis, 126 Fla. 444, 171 So. 304 (1936); Bank of Huntsville v. Witcher, 336 So.2d 1384 (Ala. Civ. App. 1976).

Clearly, those elements as detailed in Ott v. Fox, supra, are present in the case at bar. Humphreys had personal knowledge that all but two payments had been duly made on the trailer and he suggested that these two payments not be made since he was thinking about repurchasing the trailer. Maddox acted upon this communication by Humphreys and it was this reliance that resulted in the repossession of the trailer. Therefore, the modification of the agreement was relied upon by Maddox to his detriment and to the benefit of Hum-phreys. Estoppel applies in this instance.

In his motion for a directed verdict, Humphreys contended that Maddox was not the proper party to bring this lawsuit. In the security agreement executed by Hum-phreys and Maddox, full title was granted to Maddox, only reserving a security interest in Humphreys. It provides: “Except for the security interest hereby granted, the debtor will have full title to the collateral.... ” Maddox had such adequate title to the trailer as to authorize maintenance of this action for its conversion. Johnson v. U-Haul of Southern Alabama, Inc., 357 So.2d 665 (Ala. Civ. App. 1978); Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 893 (1969); Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371 (1968).

Humphreys argues that Maddox failed to prove an alternative value for the property and that the witness testifying was not competent to testify as to the market value of the trailer. The competency of expert witnesses is a matter left largely to the discretion of the trial court and its ruling upon the qualifications of expert witnesses will be sustained unless clearly and manifestly erroneous. Berdeaux v. Gamble Alden Life Ins. Co., 528 F.2d 987 (5th Cir. 1976); Hulcher v. Taunton, 388 So.2d 1203 (Ala. 1980); Price v. Jacobs, 387 So.2d 172 (Ala. 1980). Such palpable abuse of discretion is absent in this case. There was evidence of the alternate value of the property-

After reviewing each of the arguments of Humphreys, we find no error in the proceeding below. The judgment of the trial court is hereby affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    CITY OF MONTGOMERY v. Bobby S. JOHNSON.
    Civ. 3068.
    Court of Civil Appeals of Alabama.
    Aug. 18, 1982.
    J. Bernard Brannan, Jr., Montgomery, for appellant.
    Jere L. Beasley of Beasley & Wilson, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is the second appeal of this workmen’s compensation case.

The first appeal by the city resulted in the judgment of the trial court being reversed as to the extent of the employee’s injury. City of Montgomery v. Johnson, 403 So.2d 244 (Ala. Civ. App. 1981). We there held that the evidence was insufficient to rebut the presumption as stated in Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278 (1957). The Downey rule is that, while actual post-injury earnings are presumed to be commensurate with earning capacity, the presumption may be rebutted by evidence that the employee’s post-injury earnings are an unreliable basis for estimating his earning capacity or by evidence independently showing incapacity.

Upon the remand of this case, additional evidence was orally heard by the trial court. In its final judgment the circuit court made a detailed finding of fact and included a conclusion, in summary of all of the found facts, that the evidence overcame the actual earnings-earning capacity presumption. The trial court then ascertained that the employee’s earning capacity was decreased by ninety percent.

The city, as the sole issue in its present appeal, contends that the evidence was still inadequate to rebut the Downey presumption.

In workmen’s compensation cases, this court does not weigh the evidence in reviewing the matter. To the contrary, we are required to accept the findings of fact of the trial court as being true if there was any evidence before that court which supported such findings. Smith v. Capps, 414 So.2d 102 (Ala. Civ. App. 1982); Big “B” Discount Drugs, Inc. v. Parker, 401 So.2d 115 (Ala. Civ. App. 1981). We have carefully reviewed the evidence.' It contains the requisite facts supportive of the trial court’s judgment. We affirm.

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

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Frankie Lynn HUDGINS and Nancy Hillis Hudgins v. STATE of Alabama.
    Civ. 3246A.
    Court of Civil Appeals of Alabama.
    Aug. 18, 1982.

      John Mark McDaniel and Henri Butler McDaniel, Huntsville, for appellants.
    Charles A. Graddick, Atty. Gen., and Mary Lee Stapp and William Prendergast, Asst. Attys. Gen., for appellee.
    Ralph H. Ford and John 0. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for Nora Lynn Hudgins, amicus curiae.
   HOLMES, Judge.

This is a child custody case.

The Circuit Court of Madison County after an ore tenus hearing terminated the parental rights of the mother and father regarding two of the parties’ minor children.

The parents, through able counsel, appeal from the action of the Madison County Circuit Court and we affirm.

The dispositive issue on appeal is whether there is sufficient evidence to support the order terminating the parties’ parental rights. Put another way, is the evidence “clear and convincing” that the children’s best interest would be served by terminating the parents’ parental rights? As indicated, we find such evidence and affirm.

Viewing the record with the attendant presumptions accorded the circuit court’s action, the following is revealed:

Frankie Lynn Hudgins and Nancy Hillis Hudgins, the parents, were married August 20, 1973. Neither had completed high school. Tammy Louise Hudgins, their first daughter, was born February 21, 1974. A second child, Nora Lynn Hudgins, was born February 23, 1975. A third child, who remains with the parents, was born February 4, 1976.

Since the couple’s marriage, their life style has been characterized by both frequent job and address changes. There is evidence Mr. Hudgins has been both abusive and unfaithful to Mrs. Hudgins. When asked about a particular location, Mrs. Hud-gins replied, “I don’t remember where we moved. We lived in a lot of places.” Mr. Hudgins has had approximately thirty different jobs with twenty-three different employers according to his own testimony. He also testified he had been convicted of highway intoxication in 1974, driving while intoxicated and resisting arrest in 1980, and of third degree escape. By his own admission, he can only read “a little but not much.” According to Mrs. Hudgins, they currently spend about $10 to $15 a week on beer while Mr. Hudgins earns $500 gross per month from his job, and an extra $400-$500 per year from selling and racing race cars.

The Department of Pensions and Security was initially involved with the Hudginses and Tammy and Nora in late May, 1975, when they investigated a complaint. At that time the two girls were found to be dirty and ill with chicken pox. Nora was found on a dirty mattress with a bottle of solidified milk beside her. The Department of Pensions and Security left the children in the Hudginses’ care contingent on the parents’ following through with proper medical care. Follow-up contact was maintained until the Hudginses moved again and the social worker was unable to locate them, and closed the case.

In October, 1976, while the couple was working as concessionaires at a carnival in Tuscaloosa, a tent in which they were living caught fire. Tammy and Nora were admitted to the local hospital with severe burns, and then transferred to a Birmingham hospital. Tammy, who suffered burns over 80% of her body, was transferred to Shrine Hospital Burn Center in Cincinnati, Ohio. Nora suffered burns primarily to her extremities, and received some skin grafts.

When Tammy was released from the Shrine hospital, Nora had already been back with the Hudginses a few weeks. Mr. and Mrs. Hudgins, both unemployed at the time, took Tammy home to a two bedroom house, without heat or indoor toilet facilities, though it did have cold running water. The Hudginses were given prescriptions for ointment for the children, along with special instructions on their care which included directions to bathe Tammy several times a day. Two days after Tammy was brought back to the Hudginses, the Department of Pensions and Security picked the children up. The social worker who picked up the children testified at the time they were picked up the two. girls were dirty and had an unpleasant odor about them. A doctor who examined the children at that point described Nora as dirty, scabbed and crusting, with no ointment nor effective bandages on her. She was admitted to the hospital. He testified there was no evidence of any recent care for her burns. Upon examining Tammy, the doctor noted her dressings were dirty, no ointment had been applied, and she was not wearing her neck brace. He admitted Tammy to the hospital, cleaned her wounds and began a special program of exercises for her.

Soon after, Nora was placed with foster parents with whom she still lives after approximately five years. She still has health problems including allergies and asthma, and is being treated by an allergy specialist.

A psychologist testifying at the trial described Nora as neat, clean and of above average intelligence. Her relationship with her foster parents was described as warm and close. The doctor testified that Nora does not identify her natural parents as relatives, but considers her foster parents to be her true parents. Nora called her foster parents “Mother” and “Father,” but refers to her natural parents as “Frankie” and “Nancy.” In the psychologist’s judgment, removing Nora from her current home would have a devastating effect, and could lead to a drop in school achievement and the development of clinical depression. Nora has repeatedly expressed fears that “Frankie” and “Nancy” will kidnap her. Her visits with her natural parents have been followed by spells of bed-wetting.

Her allergist testified that the living conditions and environment of her natural parents are more likely to generate allergy flare-ups, and that Nora’s condition requires a specially cleaned and prepared house. The emotional upset of removing her from her current home might, the doctor testified, aggravate her condition.

Tammy was placed in the foster care of Corene Busbin, a retired registered nurse, in April, 1977, where she remained for almost four years. During this time, Ms. Busbin worked with special exercises with Tammy’s damaged arms and hands. Tammy’s current foster parents, neighbors and relatives of Ms. Busbin, developed a relationship with the child during this time, and Tammy selected them as her foster parents. All indications are it is a warm and loving relationship, and Tammy still receives help exercising her hand from Ms. Busbin at Tammy’s foster parents’ home.

Such evidence in the record supports the order terminating the parents’ parental rights under the governing legal principles set forth in Ely v. Casteel, 841 So.2d 730, 734 (Ala. Civ. App. 1977), which are:

“Where the dispute over custody of a child is between the child’s natural parent and a party who is not the child’s natural parent, the natural parent has a prima facie right to the child’s custody. However, the right is not absolute but is subject to the equally well settled rule that the best interests and welfare of the child are controlling in child custody cases. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).”

To remove custody from the natural parent there must be clear and convincing evidence that it would be against the best interests of the child to remain with the natural parent. Massey v. Massey, 410 So.2d 422 (Ala. Civ. App. 1981), cert. denied, 410 So.2d 426 (Ala. 1982). The trial court’s judgment in cases of termination of parental rights is reviewed under the ore tenus rule. On appeal that judgment will be given every favorable presumption and will not be disturbed unless palpably wrong. Phillips v. Alabama Department of Pensions and Security, 394 So.2d 51 (Ala. Civ. App. 1981).

After carefully considering the record in this case, this court finds the evidence to be “clear and convincing” that the best interests of Nora and Tammy were met by the circuit court’s action. In particular, we note the lack of medical care given the children after their release from the hospital, the unusually unstable environment of the natural parents, the length of time the children have been separated from the Hudginses, and the emotional bonds which have developed between both children and their respective foster parents.

The children do not regard their biological parents as their parents; the evidence supports the psychologist’s conclusion that the foster parents are clearly the psychological parents of the girls. The ties of affection resulting from years of association between the child and its custodian is a factor to be considered in such a case. Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (1975). The effect of taking a child away from those he has come to know as the source of love and care must be considered in determining the best interest of the child. See Borsdorf v. Mills, supra.

Prior to the burns, the natural parents had exhibited indifference to the children’s health care as noted in the record by the children, their decayed teeth, dirty environment, and the apparent indifference toward medical care while the two girls had chicken pox. Both girls have and will continue to have special health needs. A social worker testified Mr. Hudgins acted indifferent during a discussion of Nora’s allergies. The natural parents’ past indifference to their medical care and their neglect in caring for the children’s burns supports the trial court’s determination. The health of the child is always a factor in these cases. Miller v. Alabama Dept. of Pensions and Security, 374 So.2d 1370 (Ala. Civ. App.), writ quashed, 374 So.2d 1378 (Ala.1979).

We note the trial court specifically in a detailed order considered less drastic means than termination of the Hudginses’ parental rights, including continuing the children’s placement in long-term foster care with a continuation of the parental rights of the biological parents; termination of substantially all parental rights and placement with the Department of Pensions and Security for adoptive planning, but with the retention of some residual rights, such as visitation rights; allowing the Madison County Department of Pensions and Security to retain temporary custody and gradually bringing the children back into the home of the Hudginses by such means as longer, more frequent visits; or returning the children to Mr. and Mrs. Hudgins’s care immediately. After consideration of the alternatives, the trial court concluded that termination was clearly and convincingly in the best interest of the children. See Ely v. Casteel, supra.

It is clear to this court that evidence in the instant appeal does meet the standard of “clear and convincing” as required by law, Hamilton v. State, 410 So.2d 64 (Ala. Civ. App. 1982), and therefore, the trial court’s decree is due to be affirmed.

AFFIRMED.

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


author: DeCARLO, Judge.

text:
    W.A. LISTER, Jr. v. STATE.
    1 Div. 299.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Charles C: Partin of Stone, Partin, Grá-nade & Crosby, Bay Minette, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Theft of property in the first degree; five years probation.

The facts in this case are not in issue. The appellant’s sole contention is that the trial court committed reversible error when it compelled him to strike from a jury list which contained less than all the competent jurors called for service that week who were not otherwise engaged in court activity-

The record reflects that seventy-eight jurors were qualified for service during the week of appellant’s trial. Twenty-four of those were hearing or deliberating other cases and were not available to serve at appellant’s trial. Appellant maintains that he should have been allowed to strike from a list composed of the remaining fifty-four jurors.

In support of this contention the appellant has cited § 12-16-100, Code of Alabama 1975, and § 12-16-102, Code of Alabama 1975. Section 12-16-100, supra, provides:

“In every criminal case the jury shall be drawn, selected and empaneled as follows: Upon the trial by jury in the circuit courts of any person indicted for a misdemeanor, or felonies not punished capitally or upon appeals to the circuit courts from lower courts, the court shall require two lists of all the regular jurors empaneled for the week who are competent to try the defendant to be made, and the district attorney shall be required first to strike from the list the name of one juror, and the defendant shall strike two, and they shall continue to strike off names alternately until only 12 jurors remain on the list and those 12 jurors thus selected shall be the jury charged with the trial of the case.”
Section 12-16-102, supra, provides:
“If, for any cause, the regular number of jurors competent to try the defendant is reduced below 24 in noncapital felonies and 18 in misdemeanor cases, the court must cause twice the number of the deficiency who live within five miles of the courthouse or who live with the corporate limits of any city of 10,000 or more inhabitants in which the court is held to be drawn and summoned, and the names of those appearing, who are competent to try the defendant, must be placed on the list of regular jurors for that week, and the district attorney and the defendant shall, in like manner, as provided in this division, be required to strike from the lists thus made up the names of the jurors as provided until only 12 jurors remain, who shall be the jury charged with the trial of that case.”

The appellant also relies upon Lucas v. State, 22 Ala.App. 632, 118 So. 765 (1928) and Brown v. State, 41 Ala.App. 565, 140 So.2d 371 (1962). These cases are distinguishable from the present case. In Lucas, the court limited the strike list to the first twenty-four names on a jury list containing thirty-seven names. In Brown the defendant was made to strike from the last twenty-four names on a jury list consisting of forty-eight names. In Lucas and Brown the restriction that defendant strike from the first or the last twenty-four names removed the random feature by which a jury panel is supposed to be characterized immediately prior to the jury selection process for a trial. In the present case, the record reflects the appellant was able to strike from three panels, thus preserving the random character of the jury selection.

The “agreed statement of the record” approved by the State and appellant’s counsel reads in pertinent part as follows:

“W.A. Lister was tried and convicted of theft of property, first degree, on May 12, 1981. The trial was held during the regular Spring criminal term of Court.
“On May 11, 1981, the presiding circuit judge directed the Circuit Clerk to divide the qualified jurors into panels of fifteen persons and then read the panel list to the venire member to inform them of the panel to which he was assigned.
“When the Appellant’s case was called for trial, the trial judge, the Honorable Wilson Hayes, informed the State and Appellant the jury would be struck from panels numbered 4, 5, and 6. Whereupon counsel for all parties approached the bench.
“Lister’s attorney objected to his client being put to trial and being required to strike a jury from less than all qualified jurors who were competent to try the Defendant as required by Code of Alabama Sections 12-16-100 and 12-16-102. The Court overruled the objection and announced it was going to qualify the members of panels 4, 5 and 6. “Whereupon the Clerk called the roll of panels 4, 5, and 6 and it was found that James R. Owen, Jr., was not present and accounted for. The Appellant again objected to striking the jury from less than all qualified jurors called for that week including the missing juror. The Court found that the panels even with the missing juror, there were more than 24 jurors to strike from and compelled the Appellant attorney to proceed with the striking of the jury.
“At the time the jury in the instant case was struck, one trial was in progress in courtroom one and twelve jurors were in a jury room deliberating on another case. Therefore, there were 54 regular jurors empaneled for the week who were competent to try the Appellant who were not otherwise tied up with court activity. The Appellant was required to strike a jury from less that [sic] all qualified jurors.
“The jury, selected as set forth above, returned a verdict of guilty. The Appellant made a written request for presen-tence report which was granted. Sentencing was set for June, 1981.”

It is clear that the law requires that an accused be allowed to strike from not less than twenty-four fair and impartial jurors. Burt v. State, 54 Ala.App. 1, 304 So.2d 243, cert. denied, 293 Ala. 749, 304 So.2d 246 (1974). See also, Griffin v. State, Ala. Cr. App., 383 So.2d 873, cert. denied, Ala., 383 So.2d 880 (1980); Proctor v. State, Ala. Cr. App., 331 So.2d 828 (1976); Sheperd v. State, 57 Ala.App. 35, 325 Ala. 551 (1975), cert. quashed, 295 Ala. 417, 325 So.2d 557 (1976).

In the present case, the total number of the three panels from which the jury was ultimately chosen had not been reduced below that required by law. Under these circumstances it was proper for the trial court to have overruled the appellant’s objection, see Hardwick v. State, 26 Ala.App. 536, 164 So. 107 (1935). The appellant was not limited to the bare minimum of twenty-four prospective jurors. As a matter of fact, the record reflects that the appellant was able to strike from three panels, with a combined total far exceeding the minimum number of twenty-four.

The judgment and conviction of the Baldwin Circuit Court should be affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte W.A. LISTER, Jr. (In re W.A. Lister, Jr. v. State of Alabama)
    81-411.
    Supreme Court of Alabama.
    July 16, 1982.
    Charles C. Partin of Stone, Partin, Grana-de & Crosby, Bay Minette, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown and Elizabeth Ann Evans, Asst. Attys. Gen., for respondent.
   PER CURIAM.

Petitioner W.A. Lister, Jr., was convicted of theft of property in the first degree. This conviction was affirmed by the Court of Criminal Appeals. Lister v. State, 418 So.2d 917 (Ala.Crim.App. 1981).

At the time Lister’s case came on for trial, there were 38 regular jurors empaneled for the week who were competent and not otherwise involved in a trial. Lister contends that it was reversible error for the trial court to require him to strike from fewer than the full list of available jurors.

The Court of Criminal Appeals, in affirming Lister’s conviction, upheld the trial court’s action requiring Lister to strike a jury from a list containing less than all of the qualified jurors for that week, because Lister did strike from a list containing at least 24 jurors, as presently required by Code 1975, § 12-16-100.

We granted review upon Lister’s allegation that the appellate court’s decision directly conflicts with prior holdings of that court on the same point of law.

At the time of trial, § 12-16-100, the applicable statute, read as follows:

“In every criminal case the jury shall be drawn, selected and empaneled as follows: Upon the trial by jury in the circuit courts of any person indicted for a misdemeanor, or felonies not punished capitally or upon appeals to the circuit courts from lower courts, the court shall require two lists of all the regular jurors empaneled for the week who are competent to try the defendant to be made, and the district attorney shall be required first to strike from the list the name of one juror, and the defendant shall strike two, and they shall continue to strike off names alternately until 12 jurors remain on the list and these 12 jurors thus selected shall be the jury charged with the trial of the case.”

Alabama case law, as found in Lucas v. State, 22 Ala.App. 632, 118 So. 765 (1928), and Brown v. State, 41 Ala.App. 565, 140 So.2d 371 (1962), stands unequivocally for the proposition that a criminal defendant, prior to January 1, 1982, had the statutory right to strike from the entire list of available veniremen.

The opinion of the Court of Criminal Appeals seeks to distinguish this case from Lucas and Brown:

“These cases are distinguishable from the present case. In Lucas, the court limited the strike list to the first twenty-four names on a jury list containing thirty-seven names. In Brown the defendant was made to strike from the last twenty-four names on a jury list consisting of forty-eight names. In Lucas and Brown the restriction that defendant strike from the first or the last twenty-four names removed the random feature by which a jury panel is supposed to be characterized immediately prior to the jury selection process for a trial. In the present case, the record reflects the appellant was able to strike from three panels, thus preserving the random character of the jury selection.”

The “random selection” rationale is inap-posite to the instant situation. The fact that the twenty-four jurors in Lucas were the first twenty-four and that the twenty-four jurors in Brown were the last twenty-four is purely coincidental and forms no basis for the holding in either of those cases. Section 12-16-100, prior to the 1981 amendment, as interpreted by Lucas and Brown, governs the trial of this case.

The trial judge erred in requiring the Defendant to strike from a list of twenty-four jurors where the entire list of available jurors consisted of thirty-eight names. The Court of Criminal Appeals erred in not so holding.

REVERSED AND REMANDED.

TORBERT, C.J., and FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

      . Section 12 -16-100 was amended by Act No. 81 788, 1981 Ala. Acts, which became effective January 1, 1982. This amended section, consistent with several preexisting local acts, restricts the parties in a non-capital felony prosecution to a jury list of twenty-four names.


text:
    W.A. LISTER, Jr. v. STATE.
    1 Div. 299.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1982.
   PER CURIAM.

REVERSED AND REMANDED ON AUTHORITY OF THE SUPREME COURT OF ALABAMA, 418 So.2d 919 MS. 81-411, JULY 16, 1982. NO OPINION.

All the Judges concur.


author: BOWEN, Judge. BOWEN, Judge.

text:
    Ben THOMAS v. STATE.
    5 Div. 601.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    On Return to Remand June 29, 1982.
    Rehearing Denied Aug. 24, 1982.
    Mack Clayton, Alexander City, for appellant.

      Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the offense of robbery in the first degree. Sentence was 99 years’ imprisonment. Two issues are presented on appeal.

I

The defendant contends that the trial court erred in not charging the jury on the lesser included offenses of robbery in the first degree.

Because the defense was alibi, under the evidence in this case, the defendant was either guilty of robbery in the first degree or nothing at all. Parker v. State, 337 So.2d 1378 (Ala. Cr. App. 1976). The undisputed evidence was that both the robbers were armed with pistols. Under our new criminal code this element of being armed with a deadly weapon or dangerous instrument distinguishes robbery in the first degree from the lesser included offenses of robbery in the second and third degrees. Compare Alabama Code 1975, Sections 13A-8-41, 42 and 43 (Amended 1977). There was no reasonable theory from the evidence supporting the defendant’s contention that he was guilty of a lesser included offense because at trial the defendant maintained that he did not commit any offense and the State’s evidence made out a prima facie case of robbery in the first degree. Therefore, the request for instructions on lesser included offenses was properly refused for that reason. Chavers v. State, 361 So.2d 1106 (Ala.1978); Cordial v. State, 389 So.2d 170 (Ala.Cr.App.1980).

Defense counsel’s objection to the failure of the trial court to instruct the jury was made after the jury had retired to begin their deliberations and was made orally. No written requested instructions on this issue were submitted. The request should have been written. Thigpen v. State, 369 So.2d 291 (Ala.Cr.App.1978); Alabama Code 1975, Section 12-16-13. For this reason also the request for instructions on lesser included offenses was properly refused.

II

The second and more serious contention advanced by the defendant is that the State “threatened” defendant Donald Mitchell and thereby forced Mitchell to refuse to testify in the defendant’s behalf.

After the State had rested its case, Donald Mitchell’s appointed counsel, John Dillon, made the following statement for the record:

“MR. DILLON: I want the Record to show that I have been present throughout the trial of the co-defendant, Ben Thomas, in this case after having entered a guilty plea or having consented to entering a guilty plea with the understanding to the robbery charge, with the understanding the same defendant, Donald Mitchell, would be allowed to enter a plea of guilty to an associated sodomy charge for which he would receive two concurrent life sentences.
“During the proceedings in this particular case the attorney for the defendant asked me if the co-defendant, Donald Mitchell, would be willing to testify in behalf of this defendant. I said that I did not know but I would be glad to ask him. I have asked him and the State has, through its prosecuting attorney, informed me that in the event that Donald Mitchell testifies in behalf of this particular defendant that their offer is withdrawn and that they intend to pursue Donald Mitchell as a habitual defendant. Donald Mitchell has informed me in somewhat uncertain terms that the present defendant is not the Ben who, whom he had reference to in a statement which he had previously given to the District Attorney, to the State investigators. “I have advised Donald Mitchell that in view of the actions of the State in stating that they would withdraw their agreement concerning Donald Mitchell in the event that he were to testify that it is in my opinion and Donald Mitchell’s best interest that he not testify in the instant proceeding.”

Following this, the defendant’s counsel stated:

“MR. CLAYTON: Well, your Honor, in light of Mr. Dillon’s statement I’d like the Record also to show that it is our opinion that Mr. Mitchell has evidence which is beneficial to the defendant in this case and that he is being coerced and forced not to testify which is prejudicing my defendant.”

Donald Mitchell then took the witness stand and, pursuant to his attorney’s advice, invoked his privilege against compulsory self-incrimination. The trial court honored Mitchell’s privilege. After this, defendant’s counsel stated:

“MR. CLAYTON: The defendant objects to the ruling of the Court disallowing the testimony of Donald Mitchell, co-defendant in this cause against Ben Thomas on the ground that his evidence as we expected it to have been would have exonerated the defendant, would have been beneficial to his interests and the failure of the Court to allow this testimony is unduly prejudicial to the defendant and that, the defendant was coerced into not testifying by the District Attorney on the ground that he would be prosecuted further should he testify on behalf of the defendant than if he failed to do so.”

The Assistant District Attorney made no reply to any of these accusations and contentions except for the following remark:

“MR. GAVIN: Your Honor, I don’t know what his testimony would have been. Initially it was the District Attorney’s understanding that Donald Mitchell would be a witness for the State and we did not learn until this morning at approximately 9:00 o’clock that he was not going to testify. We did not know for sure before that. We don’t know what his testimony would have been one way or the other.”

In Cole v. United States, 329 F.2d 437, 443 (9th Cir.), cert. denied, 377 U.S. 954, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964), it was held:

“We hold the constitutional privilege against self-incrimination is an integral part of the due administration of justice, designed to do and further justice, and to the exercise of which there is an absolute right in every witness. A witness violates no duty to claim it, but one who bribes, coerces, forces or threatens a witness to claim it, or advises with corrupt motive the witness to take it, can and does himself obstruct or influence the due administration of justice.”

United States v. Cioffi, 493 F.2d 1111 (2nd Cir.), cert. denied, Cioffi v. United States, 419 U.S. 917, 95 S.Ct. 195, 42 L.Ed.2d 155 (1974). See also Wallace v. State, 27 Ala. App. 545, 176 So. 310, cert. denied, 234 Ala. 544, 176 So. 312 (1946); Alabama Code 1975, Sections 13A-10-123, 124 (Amended 1977).

While the State may properly offer a recommendation of leniency if the defendant will testify for the State and plead guilty, it would constitute a violation of an accused’s right of due process of law for the-State to threaten a witness for the defendant with prosecution or treatment as an habitual offender if he testified for the accused. This has not been shown to be a case where the witness intends to testify falsely or contradict a statement given the police. Even a witness who has been promised immunity may be prosecuted after giving false testimony. Gipson v. State, 375 So.2d 504 (Ala.Cr.App.1978), affirmed, 375 So.2d 514 (Ala.1979).

We recognize that the privilege of a witness to refuse to incriminate himself is personal to that witness. It cannot be claimed by or for another, including the party by or against whom the witness is called to testify. Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973); Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040 (1907). Yet this case concerns the basic and fundamental right of an accused to a fair trial and reaches the very heart of the judicial truth seeking process and the administration of justice itself.

This cause is remanded to the trial court with directions that a hearing be held to determine whether or not the District Attorney or any of his representatives threatened Donald Mitchell if he testified for the defendant and the circumstances surrounding this alleged threat. The defendant and Donald Mitchell shall be present at such hearing if they so desire. We request that upon completion of all the testimony and evidence, the trial judge make a written finding of fact to be submitted to this Court along with the record of the hearing.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Judge.

We remanded this case for a hearing to determine whether or not the district attorney or any of his representatives threatened Donald Mitchell if he testified for the defendant.

At the hearing, Mitchell testified that “the detective that was on the case” told him that he would be treated as an habitual offender and given life without parole if he testified for the defendant. Mitchell is extremely vague about the law enforcement officer who allegedly threatened him.

“Q. Who is the detective that made this threat?
“A. I, the detective that was on the case. I don’t know the name, the detective that was on the case, on the case. “Q. Do you know if it was the city investigator or state investigator?
“A. They told me it was the state investigator.
“Q. State investigator?
“A. I think that’s what they told me.”

Mitchell testified that the defendant was not with him the day he robbed the drug store. Immediately before the defendant’s trial Mitchell pled guilty to the robbery and the associated sodomy charge pursuant to a plea bargain agreement wherein he would receive two life sentences to run concurrently and not be treated as an habitual offender. Before Mitchell decided whether or not to plead guilty, the prosecutor told him that he “didn’t care whether he testified or not.”

Any further statement of the facts revealed by the hearing on remand is without purpose. The record fully supports the findings of fact entered by the trial judge. The substance of those detailed findings is found in the judge’s conclusions.

“Based on the testimony presented the Court is of the opinion that Donald Mitchell was not threatened or coerced by the State. The Court gives little credence to the testimony of Donald Mitchell for the following reasons:”
% sf: * * sfc sfc
“In the Court’s judgment Mitchell was not a believable witness and in the present instance is simply trying to aid his co-defendant, Ben Thomas.”

The objection of defense counsel that Mitchell had been threatened and “coerced into not testifying” is supported only by the vague factual assertions of Mitchell himself. The record fully supports the finding of the trial judge. The judgment of the circuit court adjudging the defendant guilty of robbery in the first degree is affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.


author: BOWEN, Judge.

text:
    Alexander PORTIS v. STATE.
    1 Dlv. 364.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    As Corrected on Denial of Rehearing June 29, 1982.

      Lee B. Williams, Grove Hill, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted for the murder of John Henry Coates. A jury found him guilty of manslaughter. Alabama Code 1975, Section 13A-6-3 (Amended 1977). Sentence was five years’ imprisonment.

The only issue in this case is whether Mr. Coates’ death was caused by the gunshot wound inflicted upon him by the defendant.

On the 28th of January, 1981, the defendant shot Coates in the abdomen with a .32 caliber pistol. Coates died on March 7th.

This case would have to be reversed except for the testimony of Dr. Leroy Red-dick, the forensic pathologist who performed the autopsy on Mr. Coates. Dr. Reddick stated that the “immediate cause” or the “mechanism” of Coates’ death was thromboemboli, or blood clots, which formed in the victim’s legs, traveled through his heart and lodged in his lungs, blocking any blood to the lungs. Dr. Red-dick also testified as to the “proximate cause” of death.

“The proximate cause of death, in medical-legal terms, is the underlying disease or injury. Again, it’s the underlying disease or injury- that starts a series of changes in the body which, over a period of time, ultimately leads to somebody’s death. It is what is the initial insult, the initial injury. Proximate means first. It’s the first injury or insult that starts the body to change so that, ultimately, cha,nges take place that you can’t live with.”

In the opinion of Dr. Reddick, the proximate cause of Mr. Coates’ death was “the gunshot wound to the abdomen.”

“So the initial event that sent him on a downhill course to this was the gunshot wound. And then another event was the surgery which was lifesaving. And then, as he was recuperating, his body was geared to defending himself against bleeding. He had excess or increased clotting factors. Also, lying around recuperating, he developed some blood clots. They break away and he dies within six weeks of the gunshot wound.”

Mrs. Coates testified that, after her husband was released from the hospital, his condition “kept getting worse and worse every day. Worse and worse.”

The defendant relies upon Welch v. State, 45 Ala.App. 657, 235 So.2d 906 (1970), to support his argument that the State did not prove that the gunshot wound caused Coates’ death. In that case this Court held that the State failed to prove that the blood clot which came from the deceased’s left leg was due to the wound in his right leg. Although the blood clot was the direct cause of death, the physician could testify only that the blood clot was “probably associated” with the gunshot wound. This testimony was held to be too vague.

This case is similar to Welch in that a blood clot, caused in part by inactivity, dislodged from the victim’s leg and lodged in the lung (see Judge Price’s dissent; 45 Ala.App. at 663). However, in this case the State did prove a causal connection between the injury inflicted by the defendant and the death of the deceased. Dr. Reddick’s testimony is not couched in such “speculation and conjecture” as is that found in Welch. See White v. State, 373 So.2d 356 (Ala. Cr. App. 1979). This is not a case where the medical witness did not state positively the cause of death. See Anno. 31 A.L.R.2d 693, Section 6 (1953).

“Where, . . . the wound inflicted by defendant upon the victim is dangerous to life, the fact that there are other contributing causes of death does not prevent such a wound from being the legal cause of death. It does not have to be the sole cause.” Smith v. State, 354 So.2d 1167, 1170 (Ala. Cr. App. 1977), cert. denied, Ex parte Smith, 354 So.2d 1172 (Ala. 1978). “(T)he intervention of days or weeks or months between the criminal act of the defendant and the death of the victim is a mere circumstance, and not usually an important factor, in determining legal responsibility for homicide . . .. ” Smith, 354 So.2d at 1170.

The State is not required to dispel every possible doubt or to show that some other conceivable cause of death did not cause death. “ ‘(T)he test of responsibility is whether the act of accused contributed to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also contributed.’ 40 C.J.S. Criminal Law Section 11 (1944).” Flanagan v. State, 369 So.2d 46, 49 (Ala. Cr. App. 1979).

Here, there was testimony that death was not due solely and exclusively to natural cause, i.e. heart failure, with the injury in no way contributing to or accelerating death. Compare Duncan v. State, 30 Ala. App. 356, 6 So.2d 450, cert. denied, 242 Ala. 329, 6 So.2d 454 (1942). “Whatever may have been the physical condition of deceased at the time the wounds were received could not have benefited the defendant.” Dumas v. State, 159 Ala. 42, 44, 49 So. 224 (1909). Even if the injury was only a “partial cause or contributing factor that accelerated death, the defendant is none the less guilty.” The injury need not be the “sole efficient cause of death.” Harvey v. State, 15 Ala.App. 311, 314, 73 So. 200 (1916). “If it appear from the evidence that the death of deceased was accelerated by the violence of the defendant, his guilt is not extenuated, because death might have come from natural causes as a result of disease with which the deceased was afflicted at the time of the felonious assault.” Barron v. State, 29 Ala.App. 137, 139, 193 So. 190 (1940).

Here, as in Wiggins v. State, 354 So.2d 340 (Ala. Cr. App. 1978), the reversal in Welch is not inconsistent with an affirmance in this case.

“The difference between the two cases, in the evidence as to the cause of death, is more pronounced than any similarity. According to the majority opinion in Welch, the closest the evidence came to showing that the gunshot wound was the cause of death was the testimony of a physician that the blood clot that caused death was ‘probably associated’ with the gunshot wound.” Wiggins, 354 So.2d at 341-42.

The defendant argues that there was testimony from another doctor, who did not perform the autopsy, that there was no reason why Mr. Coates should not have had a complete recovery following his discharge from the hospital.

Dr. James Prescott operated on Mr. Coates following the injury. He testified that the surgery was successful but that sometimes blood clots do develop in connection with surgery. He stated that the wound would have been fatal without treatment. When Dr. Prescott discharged Mr. Coates he found no reason why Mr. Coates should not have had a complete recovery.

Dr. Jack L. Dozier was Mr. Coates’ regular physician. He testified that the gunshot wound had a “debilitating effect” on Mr. Coates’ health but could not state whether his health deteriorated at the time solely because of the gunshot wound or “whether it was secondary to something else.”

Dr. Reddick, whose opinions we have already reported, was the only doctor who performed an autopsy on Mr. Coates. His opinions were not diminished by the testimony of the other doctors.

This medical evidence presented a question for the jury as to the cause of and reason of Mr. Coates’ death. The jurors were not bound by the opinion or opinions of the medical witnesses presented by the State, but were free to determine the weight to which each was entitled and to disregard some or all of them if they found any or all unreasonable. Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973); Duncan v. State, 30 Ala.App. 356, 6 So.2d 450, cert. denied, 242 Ala. 329, 6 So.2d 454 (1942). The factor which distinguishes this ease from Welch is that here the expert testimony was such that the jury did not have to guess at the cause of death. Hardison v. State, 30 Ala.App. 40, 200 So. 635 (1940).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: ALMON, Justice.

text:
    Ex parte Alexander PORTIS. (In re Alexander PORTIS v. STATE of Alabama).
    81-847.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    Lee B. Williams, Grove Hill, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   ALMON, Justice.

The petition for writ of certiorari is denied.

In denying the petition for writ of certio-rari, for 418 So.2d 924, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 272, 280 So.2d 155 (1973).

WRIT DENIED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    Oscar BRISTOW v. STATE.
    3 Div. 432.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 29, 1982.
    Certiorari Denied, Aug. 27, 1982 Alabama Supreme Court 81-483.

      Jeffery C. Duffey of Duffey & Wallace, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

On February 15, 1981, the appellant, Oscar Bristow, was arrested and later charged with the possession of a pistol after being previously convicted for a crime of violence in violation of Section 13A-ll-72(a), Code of Ala. 1975, and with altering the identification marks on a pistol in violation of Section 13A-11-82, Code of Ala. 1975. Appellant was indicted for both of these offenses by the May, 1981, term of the Montgomery County Grand Jury.

A Motion to Suppress and Demurrer were filed and after a hearing, they were denied on June 15, 1981.

On June 25, 1981, the appellant was tried before the court without a jury and was acquitted of altering the identification marks on a pistol and convicted of being an ex-felon in possession of a pistol. The appellant was sentenced to a term of two (2) years in' the penitentiary under the split sentence law conditioned on serving seven (7) full months in the penitentiary and the other seventeen (17) on probation.

Appellant appeals to this Court. Appellant is presently on appeal bond.

The appellant was represented at all proceedings in the trial court by counsel of his choice, and is so represented in this Court. This appeal was submitted to this Court on briefs.

The appellant states in his brief three reasons why this case should be reversed: First, Sec. 13A-ll-72(a) of the Code Of Alabama, 1975 is unconstitutional. Second, the trial court overruled appellant’s motion to suppress certain evidence. Third, the state failed to make out a prima facie case.

State’s evidence tended to prove that Police Officers Linskey and Lykes, of the Montgomery Police Department, while on patrol duty at about 5:30 P.M. on February 15,1981, received a report by radio from the Police Department to investigate an alleged shooting in progress in the vicinity of Lincoln Apartments, 1133-A Chandler Street, in the City of Montgomery, Alabama; that while in route to the apartment, they received over the police radio a description of the suspect; that he was a black male wearing a black hat, blue jeans, dark coat, and was about thirty years old; that when they arrived in the vicinity of the Lincoln Apartments, they observed the appellant, along with several other black males, standing in a group; that the appellant had his back toward the officers, and was wearing a black hat, blue jeans, and dark coat, and was fumbling with his pants; that as the officers approached the group, a black male pointed at the appellant, and in the presence and hearing of the group of men, advised the officers that the appellant was the one with the pistol; that as the officers approached the appellant to ask him about it, the appellant turned and ran; that the officers chased the appellant around the apartment building, and caught up with him just as he entered the door of Apartment 1122-A, Lincoln Apartments; that during the chase the appellant kept fumbling with his pants; that one of the officers tussled with the appellant until the officer got the appellant handcuffed; that while the officer was tusseling with the appellant on the floor of the front room of the apartment, the appellant threw something over in the corner near the door; that after the appellant was subdued an officer found a .22 RG Pistol over in the area in which the appellant had thrown something during the tussle; the pistol was kind of behind the front door, and was loaded with four or five live shells, and one spent shell; that the pistol had no serial number on it.

State’s evidence further tended to prove that a Mrs. Boyd lived in Apartment 1122-A, Lincoln Apartments; that the appellant did not live in that apartment; that Mrs. Boyd was in the kitchen of her apartment, and did not give anyone the right to search it; that the appellant and the officer just kind of broke into her house, and that when they came in, she did not invite them in; that she saw the officer find a pistol behind the front door in her front room; that earlier in the day she saw the appellant in her house with some other men, and that appellant had a pistol in his hand showing it to the men; that the .22 RG Pistol is not hers, and she did not know who it belonged to, or who put it where the officer found it; that she does not know if the .22 RG Pistol is the same pistol the appellant had in his hand earlier in the day showing it to the men in her house.

State’s evidence further tended to prove that the appellant was convicted of burglary and grand larceny in the Circuit Court of Montgomery County on July 26, 1971, and that the .22 caliber pistol would fire.

The appellant testified, in substance, that on February 15, 1981, at about 2:00 o’clock, P.M., he was at Ruth Boyd’s house attending a little party; that there were fifteen or sixteen men there sitting around and talking and drinking; that there was a guy there trying to sell a collector’s item, an old fashioned navy colt that does not fire, just something that people order in a book, and try to make a little profit on; that the appellant had it in his hand; that he had never seen, or had in his possession, state’s exhibit number one, a .22 RG Pistol introduced into evidence by the state, at any time before June 25, 1981, the day of the trial; that he was paroled out of the state penitentiary in 1978 on a charge of burglary, and released from parole in 1979; that he had two jobs, and has not been in any trouble since he was paroled; that he did not know of any shooting going on around the time before the officers arrived; that the party had been over 45 minutes or an hour when the officers arrived, and he was standing with several people around in front of the apartment; that when the officers came up, he ran because he was afraid that he would wind up in the city jail because he had been hassled a time or two by the police before; that he was wearing a black leather coat, and a black hat.

The appellant argues in his brief that Section 13A-ll-72(a) of the Code of Alabama, 1975 is unconstitutional because it makes the offense both a felony and misdemeanor. Section 13A-ll-72(a) provides that:

“No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control.”
Section 13A-ll-72(b) provides that:
“No person who is a drug addict or a habitual drunkard shall own a pistol or have one in his possession or under his control.”
Section 13A-ll-84(a) provides:
“Every violation of subsection (a) of Section 13A-11-72 or of section 13A-11-81 or 13A-11-82 shall be punished by imprisonment for not more than five years. Every violation of subsection (b) of section 13A-11-72 or of sections 13A-11-73, 13A-11-74 and 13A-11-77 through 13A-11-80 shall be punishable by imprisonment for any term less than one year or by a fine of not more than $500.00 or both. The punishment for violating sections 13A-11-78 or 13A-11-79 may include revocation of license.”

Burglary is defined as a crime of violence by Code Of Alabama, 1975, Section 13A-11-70.

The appellant takes the position in his brief that because the crime described in 13A-ll-72(a) was not specifically classified as a Class A, B, or C Felony it cannot be determined whether it is a felony or misdemeanor, and that the statute is therefore unconstitutional. We do not agree with the appellant that 13A-ll-72(a) is unconstitutional for the above reason. This Court has recently decided the law to be otherwise. Section 13A-ll-84(a) specifically provides that the violation of subsection (a) of section 13A-11-72 shall be punishable by imprisonment for not more than five years, and is a Class C Felony. Nunnery v. State, Ala.Cr.App., 410 So.2d 444.

The appellant further contends in his brief that Section 13A-ll-72(a) is unconstitutional because it violates appellant’s constitutional rights to bear arms, constitutes cruel and unusual punishment, and denies equal protection of the law and due process of law.

All reasonable meanings must be indulged to support the constitutionality of Acts of the Legislature, including classification adopted by the lawmakers, and this Court should not declare a statute invalid unless the classification is clearly arbitrary, and clearly violates a constitutional right of the appellant. It is well within the power of the Legislature to deal with the constitutional right to bear arms in defense of himself, and it is subject to reasonable regulation by the State under its police power. We hold that Section 13A — 11—72(a) is constitutional, and does not violate the appellant’s constitutional rights. Mason v. State, 39 Ala.App. 1, 103 So.2d 337, affirmed 267 Ala. 507, 103 So. 341; Jackson v. State, 37 Ala.App. 335, 68 So.2d 850; Certiorari Denied, 260 Ala. 698, 68 So.2d 853; Crawford v. State, Ala.Cr.App., 356 So.2d 690; Certiorari Denied, Ala., 356 So.2d 691; Hyde v. City Of Birmingham, Ala.Cr.App., 392 So.2d 1226; Certiorari Denied, Ala., 392 So.2d 1229.

The appellant filed a motion to suppress certain evidence: One .22 RG Pistol because it was seized in a search contrary to the Constitution of the United States, and to the Constitution and laws of the State Of Alabama. Appellant argues in his brief that the officers obtained state’s exhibit one, an RG Pistol, as a fruit of an illegal search of the home of Mrs. Ruth Boyd. We cannot agree that the appellant has standing to raise the illegality of the search of Mrs. Boyd’s home. The evidence is without conflict that the police officers were chasing the appellant when he ran into the home of Mrs. Boyd; that he did not live there. Mrs. Boyd stated that she did not invite him to enter, but that when she was in the kitchen, the appellant and the officer just kind of broke into her house. There was evidence that the appellant lived elsewhere in Montgomery. State’s evidence tended to prove that the appellant ran into Mrs. Boyd’s home in an effort to evade the officer who was chasing him.

We, therefore, hold that the appellant was without standing to object to the search for the pistol, or the admission of the pistol into evidence seized in Mrs. Boyd’s home because of an illegal search. Johnson v. State, Ala.Cr.App., 353 So.2d 62; Wilson v. State, 57 Ala.App. 125, 326 So.2d 316; Certiorari Denied, 295 Ala. 429, 326 So.2d 319; Davidson v. State, 48 Ala.App. 446, 265 So.2d 888; Certiorari Denied, 289 Ala. 741, 265 So.2d 897; McCraney v. State, Ala. Cr.App., 381 So.2d 102; McGee v. State, Ala.Cr.App., 383 So.2d 881; Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387.

The appellant contends in his brief that the trial court erred to his prejudice when it overruled his motion to exclude state’s evidence. When the state rested its case, the appellant moved to exclude state’s evidence on the ground that the state failed to prove a prima facie case. Whereupon, the state offered state’s exhibits three and four in evidence, and state’s exhibit three was introduced into evidence without objection from the appellant. State’s exhibit three was a duly certified copy of a judgment of a conviction by a jury of the appellant on July 26, 1971 on a charge of burglary and grand larceny in the Circuit Court of Montgomery County, Alabama. It was duly certified by the Clerk of the Circuit Court of Montgomery County, and identified by Mrs. Pauline C. Eubanks, as such clerk. Whereupon, the state then rested its case. The appellant’s counsel called the appellant as a witness in his own behalf. The appellant admitted that he was paroled out of the penitentiary in 1978 on a charge of burglary, and released from parole in 1979. Appellant argues in his brief that at the time the state rested its case against him that there was insufficient evidence to make out a prima facie ease for two reasons. First, that there was no evidence before the trial court at the time of the motion to prove the appellant had a prior conviction of committing, or attempting to commit, a crime of violence. Second, that there was no evidence before the trial court that the appellant had owned a pistol, or had one in his possession, or under his control, since such conviction.

The record reveals that after the state rested, the court allowed the state to reopen its case and prove that the appellant was convicted for burglary, a crime of violence, in the Circuit Court of Montgomery County, Alabama, on July 26, 1971. Section 15-14-4 of the Code Of Alabama, 1975, provides:

“The court may, at its discretion, at any time before the conclusion of the argument, when it appears to be necessary to the due administration of justice, allow a party to supply an omission in the testimony on such terms and under such limitations as the court may prescribe.”

We hold that the trial court did not err to the prejudice of the appellant by exercising its discretion in allowing the state to reopen its case. Bellenger v. State, Ala.Cr.App., 406 So.2d 995; Certiorari Denied, Ala. 406 So.2d 998; Section 15-14-4, Code Of Alabama, 1975; Williams v. State, Ala.Cr.App., 364 So.2d 717; Ford v. State, Ala.Cr.App., 383 So.2d 601; Thompson v. State, 401 So.2d 285; Colston v. State, 57 Ala.App. 4, 325 So.2d 520; Nichols v. State, 276 Ala. 209, 160 So.2d 619.

On testing the sufficiency of the state’s evidence to sustain the court’s judgment, this Court must consider it favorable to the state. When there is evidence before the judge to sustain a conviction, this Court has no right to disturb the judgment. Colston v. State, supra. We hold that the evidence in this record fully sustains the court’s judgment finding the appellant guilty as charged in the indictment.

The judgment of the trial court is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Melvina McDANIEL v. STATE.
    5 Div. 639.
    Court of Criminal Appeals of Alabama.
    May 18, 1982.
    Rehearing Denied June 8, 1982.
    John A. Tinney and William Morgan Butler, Roanoke, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was charged, tried, and found guilty of the 24th of March, 1981 murder of Junior Foods Store clerk Janice Brooks in Roanoke. She was sentenced to life imprisonment.

The defendant’s only issue on appeal concerns itself with several questions propounded to her by the State on cross examination. Prior to trial, she had obtained a ruling from the trial court on a “motion in limine” prohibiting the State “from introducing, attempting to introduce, questioning about or making any reference to any witness which would elicit or cause statements to be made with respect to ... any reason as to why Melvina McDaniel was dismissed from employment with Junior Food unless the person making such statements was the person who in fact dismissed her or was directly involved in the dismissal of Mrs. McDaniel from the Junior Food Store.”

The defendant argues that the State violated the order of the trial judge granting the motion by attempting to elicit on cross examination that which the ruling sought to prohibit. However, we find that the defendant, during her direct examination, placed the issue of her termination before the jury. We quote from her direct examination:

“Q. Where was your most recent employment prior to this time?
“A. Junior Food Store 146 on Luanna Road.
“Q. How long had you worked there Mrs. McDaniel?
“A. A little bit over a year.
“Q. And in what capacity did you serve at that Junior Food Store?
“A. I started out as a regular clerk part-time, and then to Assistant Manager and then Manager.
“Q. Approximately how long did you stay as Manager of the Junior Food?
“A. About four or five months, I believe, I’m not sure of that either.
“Q. Were you manager at the time you left the employment of Junior Food? “A. Yes, sir.
“Q. Why did you leave the employment of Junior Food?
“A. Well, we had a lot of problems of shortages of inventory, and the Managers and the men from Panama City had told our District Managers unless the Managers of each store could bring their inventory up, to let the Manager go because evidently they weren’t good enough managers to keep the inventory up.
“Q. So, you were terminated because you couldn’t keep your inventory, up. “A. That’s what Ruby Gosby told me when I left that day.”

On cross examination the State made the following inquiry:

“Q. Isn’t it a fact that you were mad at Junior Foods because they fired you? “A. No, I wasn’t, I asked them to.
“Q. You asked them to fire you.
“A. Exactly.
“Q. Isn’t it a fact that you were short over a period of six weeks over $3,000.00 dollars and that’s why they fired you? “JOHN TINNEY (Defense Counsel): Judge, I object—
“A. —You can’t prove that.
“JOHN TINNEY: Just a minute Mrs.' McDaniel. There’s no evidence whatsoever and he’s been previously instructed concerning that. I object to it and ask you to instruct the jury to disregard that remark by Mr. Gavin.
“COURT: Well, it assumes a fact that is not in evidence, sustain the objection. “Q. State whether or not it is a fact you were short over $3,000.00 dollars and that’s why you were fired.
“JOHN TINNEY: Judge, I object for the same reason, that is stating a fact that is not in evidence.
“COURT: Sustained.”

Regardless of whether the trial judge’s ruling on the motion in limine preserved any alleged error for review, once the defendant injected the subject of her termination of employment into the trial during her direct examination, she opened it for further inquiry by the State. Travis v. State, 397 So.2d 256 (Ala.Cr.App.), cert. denied, 397 So.2d 265 (Ala. 1981). “A party who has brought out evidence on a certain subject has no valid complaint as to the trial .court’s action in allowing his opponent or adversary to introduce evidence on the same subject.” Brown v. State, 392 So.2d 1248, 1260 (Ala. Cr. App. 1980), cert. denied, 392 So.2d 1266 (Ala. 1981). See also Smith v. State, 183 Ala. 10, 62 So. 864 (1913); Gordon v. State, 129 Ala. 113, 30 So. 30 (1901); Morgan v. State, 88 Ala. 223, 6 So. 761 (1889); C. Gamble, McElroy’s Alabama Evidence, Section 180.01(8) (3rd ed. 1977). “A defendant may not by his own voluntary conduct invite error and then seek to profit thereby.” Sullivan v. State, 394 So.2d 76, 81 (Ala. Cr. App. 1981).

Further, we note that the trial court ruled favorably on the defendant’s objections to the State’s questions. In addition, no direct answers were given to them. Thus, the State elicited no testimony which the defendant had previously sought to prohibit.

Based upon the foregoing authorities, we find nothing from which the defendant may complain. The judgment of conviction is hereby affirmed.

AFFIRMED.

All Judges concur.

      . While a motion in limine is available in Alabama, Acklin v. Bramm, 374 So.2d 1348 (Ala. 1979), it is unclear whether it serves as a final ruling upon the ultimate admissibility of evidence. If it does not, then an objection at trial is necessary to preserve error for review. See Department of Public Works and Buildings v. Roehrig, 45 Ill.App.3d 189, 3 Ill.Dec. 893, 359 N.E.2d 752 (1976); Lagenour v. State, 268 Ind. 441. 376 N.E.2d 475 (1978); State v. Spahr, 47 Ohio App.2d 221, 353 N.E.2d 624 (1976); Wilkins v. Royal Indemnity Company, 592 S.W.2d 64 (Tex. Civ. App. 1979); Ottis v. Haas, 569 S.W.2d 508 (Tex. Civ. App. 1978); Redding v. Ferguson, 501 S.W.2d 717 (Tex. Civ. App. 1973); Annot., 63 A.L.R.2d 311 (1975). See generally State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980); Burrus v. Silhavy, 155 Ind. App. 558, 293 N.E.2d 794 (1973). For an exeel-lent discussion of the motion see Gendron v. Pawtucket Mutual Insurance Company, 409 A.2d 656 (Me. 1979).


author: MADDOX, Justice.

text:
    Ex parte Melvina McDANIEL. (Re Melvina McDaniel v. State of Alabama).
    81-784.
    Supreme Court of Alabama.
    Aug. 20, 1982.
    John A. Tinney, Roanoke, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   MADDOX, Justice.

Writ denied. By denying the writ, we point out that writs of certiorari are frequently denied without any consideration of the merits. Haden v. Olan Mills, Inc., 273 Ala. 129, 135 So.2d 388 (1961). A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy. See Hamilton Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629 (1916). Our denial of the writ should not be understood as approving or disapproving the language used,-or the statements of law contained in the opinion of the Court, of Criminal Appeals. See Cooper v. State, 287 Ala. 728, 252 So.2d 108 (1971).

WRIT DENIED.

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


text:
    Samuel BLAKELY v. STATE.
    1 Div. 386.
    Court of Criminal Appeals of Alabama.
    July 27, 1982.
    Rehearing Denied Aug. 24, 1982.
    M. A. Marsal and George L. Simons, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of his wife. Sentence was twenty years’ imprisonment.

The only errors raised on appeal concern the failure of the trial judge to give three written charges requested by the defendant. Because the defendant did not object to the judge’s failure to give his written charges and state the grounds of his objection, any alleged error has not been preserved for review. Allen v. State, 414 So.2d 989 (Ala. Cr. App., 1981), affirmed, Ex parte Allen, 414 So.2d 993 (Ala., 1982).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.