text:
    OPINION OF THE JUSTICES.
    No. 295.
    Supreme Court of Alabama.
    April 12, 1982.
   To the Members of the Senate State Capitol

Montgomery, Alabama 36130

Gentlemen:

We are in receipt of Senate Resolution No. 236, requesting an advisory opinion of the Supreme Court and posing the following question:

“Have Senate Bill 4 and House Bill 161 been delivered to the Governor in accordance with the requirements of Section 125 of the Constitution, thereby starting the period of time during which the Governor has the right to consider a bill without its becoming a law independently of his signature?”

Section 125 of the Constitution states in pertinent part:

“Every bill which shall have passed both houses of the legislature, except as otherwise provided in this Constitution, shall be presented to the governor; if he approves, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which shall enter the objections at large upon the journal and proceed to reconsider it. ... If any bill shall not be returned by the governor within six days, Sunday excepted, after it shall have been presented, the same shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent the return, in which case it shall not be a law; but when return is prevented by recess, such bill must be returned to the house in which it originated within two days after the reassembling, otherwise it shall become a law, but bills presented to the governor within five days before the final adjournment of the legislature may be approved by the governor at any time within ten days after such adjournment, and if approved and deposited with the secretary of state within that time shall become law.”

In determining the circumstances relating to the presentment of Senate Bill 4 and House Bill 161, we are limited to the facts as revealed by the Senate journal. It shows that Senate Bill 4 and House Bill 161 received the approval of both houses of the legislature and were signed by the presiding officers of both houses on Thursday, April-8, 1982.

The journal also contains a communication from the enrolling and engrossing clerk of the Senate which states:

“At 11:45 A.M., on Thursday, April 8,1 attempted to deliver Senate Bills 28, 307, 356, 397, 454, 482, 493, and Senate Joint Resolutions 179, 195, 198, 211, 216, and 223 to the Governor’s Recording Secretary in the basement office. I was accompanied by Angie Stevenson, photographer. The door to the office was locked, the blinds drawn, and the lights were out. At 12:00 Noon, accompanied by Senator Earl Goodwin, we attempted to deliver same to the Governor’s Office on the first floor. The same conditions prevailed. At 12:01 P.M. the Senator and I attempted to deliver same to the Recording Secretary in the basement and encountered the same conditions.
“At 3:15 P.M., accompanied by Senator McDonald, Senator Gulledge, Representative Manley and members of the news media, we attempted to deliver Senate Bill 4 to every door to the Governor’s Offices on the first floor and the basement. The same conditions prevailed.
“Ann S. Worthington
“Enrolling and Engrossing
“Clerk
“Senate of Alabama
“The foregoing communication was read and ordered spread upon the Journal.”

The journal entry, by universal rule, must be accepted by this Court, which has no authority to go beyond the legislative journals. Cammack v. Harris, 234 Ky. 846, 29 S.W.2d 567 (1930).

However, we can take judicial notice that Thursday, April 8, 1982, was not a state holiday and had not been proclaimed such by the Governor. Also, we note that the times mentioned by the enrolling and engrossing clerk were all within the normal business hours of the state.

Your inquiry, therefore, is whether the bona fide effort by a duly authorized clerk of the Senate to present a bill at the office of the Governor, during regular business hours, constitutes a presentation within the meaning of § 125, even if the effort fails because the doors are closed and locked.

In 1950, in Building Commission v. Jordan, 254 Ala. 433, 48 So.2d 565 (1950), the Supreme Court was faced with a situation where a duly authorized clerk tried to deliver a bill after the Governor’s office had closed for the day. While the Court determined that the Governor had not deliberately evaded the receipt of the bill, the Court by implication did indicate that deliberate acts on the part of the Governor, or those authorized by him to receive bills from the legislature, to avoid presentation would constitute constructive presentation within the meaning of § 125 of the Constitution if a bona fide effort was made to actually deliver a bill.

This reasoning is consistent with the earlier decision of State, ex rel. Crenshaw v. Joseph, 175 Ala. 579, 57 So. 942 (1911), at page 588, in which the Court, in examining the Louisiana case of State, ex rel. State Pharmaceutical Association v. Michel, 52 La.Ann. 936, 27 So. 565 (1900), noted with approval the holding of the Louisiana Supreme Court to the effect that a valid presentation was effected where an authorized clerk attempted to deliver the bill, but the Governor refused to accept it.

Whether the Governor actually refused to accept a bill or whether the closing of his office was a deliberate attempt of evasion is immaterial here. The Senate journal entry establishes without contradiction that an actual, physical presentment of the bill was impossible because, for whatever reasons, the Governor was not present, his office was closed, and no one with authority to receive bills in his behalf was found.

Although nothing in the Constitution prevents the Governor from fixing his office hours as he wishes, he cannot thereby thwart the constitutional process by which legislation becomes law. “Presentment” to the Governor of bills is a constitutional requirement in this process and, because it is, an important constitutional issue is presented by the request for our advisory opinion. Under the circumstances reflected by the Senate journal, we hold that the Senate’s attempt was a presentment in a constitutional sense, and the fact that the offices were closed did not render ineffective this presentment.

To hold otherwise would give the Governor the power to control the presentment of bills to him, thereby undermining the intent of that portion of § 125 of the Constitution, which reads:

“If any bill shall not be returned by the governor within six days, Sunday excepted, after it shall have been presented, the same shall become a law in like manner as if he had signed it, unless the legislature, by its adjournment, prevent the return, in which case it shall not be a law....”

This sentence mandates that the Governor must act, in the use of his veto power, not within six days of his actual reception of a bill, but within six days of its presentment to him. If it were the former, the Governor might wait until within six days of the adjournment of the legislature to receive the bill, thereby preventing its return due to the adjournment and, thus, defeating its becoming a law, or return it with a veto message just prior to adjournment, thereby preventing action on the veto by the two houses. Either of these actions would effectively prevent the legislature’s having the final action on the bill as was intended by the Constitution.

For the presentment to be fulfilled, i.e., the formal offer or tender of the bill to the Governor, there is no requirement that he actually receive it. From that moment of formal tender, the clock begins to run and he must act, if he intends to veto, within the prescribed six days.

Your inquiry, as restated, is answered in the affirmative.

Respectfully submitted,

C. C. TORBERT, JR. Chief Justice

HUGH MADDOX

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

SAM A. BEATTY

Justices

       The Senate journal entry set out above makes reference to Senate Bill 4 as having been sent to the Governor’s office; it makes no reference to House Bill 161. Therefore, we could answer the particular inquiry only as to Senate Bill 4. However, our restatement of the question will allow an answer which can be applied in the case of either bill.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Joseph C. McDANIEL v. Marilyn McDaniel WINTER.
    Civ. 2993.
    Court of Civil Appeals of Alabama.
    March 24, 1982.
    Thomas H. Boggs, Jr., of Lloyd, Dinning, Boggs & Dinning, Demopolis, for appellant.
    William T. Coplin, Jr., Demopolis, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a child support case.

The parties herein, Joseph C. McDaniel and Marilyn McDaniel Winter, were divorced in Alabama in 1969. Custody of the couple’s two minor sons was awarded to the mother. Subsequently, she and the children moved to Georgia. The father resides in Demopolis, Alabama. At the time of the instant action, the father was obligated to pay $200 per month child support pursuant to a 1978 modification of the final decree of divorce.

The youngest son, Caldwell, now seventeen, left the mother’s home in July 1980 for scheduled visitation with his father. Prior to his departure, he told his mother that he was not planning to return. He, in fact, did not return at the designated time, and the father reduced the child support payment by $100 per month, beginning in October 1980. On November 17, 1980, the mother filed a complaint against the father in Alabama asking that he be held in contempt for failure to comply with the divorce decree and its subsequent modifications. She also asked for an increase in child support due to changed circumstances, and for a reasonable attorney’s fee. Following a motion to dismiss and for more definite statement by the father, the complaint was amended, but without substantial change. Four days prior to the hearing date, the father counterclaimed for a change of custody of Caldwell.

After an ore tenus hearing, the trial court entered its findings of fact and order on August 4, 1981. The trial court held that the husband was in arrears in child support in the amount of $900. No citation of contempt was entered, however, as the trial court held that the arrearage was the result of a misunderstanding rather than a willful act of contempt. The trial court found a material change in circumstances and increased child support to $130 per month for the remaining minor child, Caldwell. The mother’s request for attorney’s fees was denied. The father’s counterclaim for modification of custody was dismissed. On a post-trial motion for reconsideration, the trial court left intact the determination of child support arrearage and the modification, but ordered the custody counterclaim severed rather than dismissed. The father appeals.

The appellant’s main contention here is that he should receive credit against the child support arrearage for the amounts expended for his minor son’s support while the son lived with him in Demopolis, Alabama. In its order of August 26, 1981, following the father’s motion for reconsideration, the trial court specifically found that under the circumstances of this case, the father was not entitled to such credit. The trial court found appellant’s reduction in child support to be unilateral, against the express wishes of the custodial parent and contrary to the provisions of the final decree of divorce and its subsequent modifications.

The father relies heavily on our opinion in Nabors v. Nabors, 354 So.2d 277 (Ala.Civ.App.1978). There we noted that “the husband, however, is given credit for those periods in which he [or some third person] supports the child....” (Cits, omitted.) The trial court in this case, however, refused to give the husband credit for factual reasons we have noted. We consider that such a decision was within the trial court’s judicial discretion. We find no abuse of that discretion. The court was open to the father to request a reduction in support due to his son’s residing with him or for a petition to change custody. The father took no such action until the mother attempted to force him to comply with the divorce decree.

For the foregoing reasons, this cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . The older son, Clay, had apparently reached majority at the time of the trial court’s final decree concerning the modification of child support.


author: BRADLEY, Judge.

text:
    Delane H. SMALL v. James L. SMALL.
    Civ. 2998-X.
    Court of Civil Appeals of Alabama.
    March 24, 1982.

      Daniel A. Pike and Mary Beth Mantiply of Sintz, Pike, Campbell & Duke, Mobile, for appellant.
    Joseph C. Sullivan, Jr., of Butler & Sullivan, Mobile, for appellee.
   BRADLEY, Judge.

This is a child custody case.

Delane Small and James Small were divorced on May 5, 1977. Custody of the parties’ two minor sons was awarded to the mother. Further the mother was awarded exclusive use and possession of the marital home until such time as she should remarry. Upon her remarriage the home was to be sold and the proceeds were to be divided by the parties. The father was ordered to make the monthly mortgage payments.

In 1978 the father filed a petition to modify the custody provisions of the divorce decree. He asked that custody of the children be awarded to him because the mother had had men spending the night in her home and was thus unfit to continue to retain custody. The court refused to change custody of the children, but the mother was ordered not to allow men to spend the night in her house in the presence of the children. The order further stated that a change of custody would be considered if the court found that she was disobeying this order.

On August 13, 1980 the father brought another petition to modify alleging that a man had spent the night in the wife’s home on several occasions while the children were present. The father also asked that the court order the homeplace to be sold and the proceeds divided.

The only evidence the father presented at trial was the testimony of a private investigator. This investigator reported that a man identified as Lamar Booker had spent the night at the mother’s house on several occasions. The investigator stated that Booker’s car remained in the driveway overnight, and that he had seen Booker leaving in the morning. On at least one occasion the investigator saw one of the children playing outside before Booker left.

The mother denied that Booker had spent the night in the house when the children were there since the rendition of the 1978 decree ordering her not to allow this. She admitted, however, that he had slept there since that decree was rendered when the children were not present. She further stated that Booker left his car on several occasions because of flat tires. She testified that he would then drive her car home and return the next day to get his car.

Booker also denied sleeping with the mother while the children were there. He stated that on several of the occasions referred to by the investigator the children were with their father. On at least one occasion he was not in town. His brother corroborated this testimony.

Both parties agreed to allow the trial judge to interview the children in camera. After this interview the trial judge modified custody of the children by awarding custody to the father. He denied the father’s request to order the home sold.

Both parties filed motions for reconsideration. Both motions were denied on August 25, 1981. From this denial the mother appeals to this court and the father cross appeals.

Two issues are presented for review. The first issue is whether the evidence was sufficient to warrant a modification of custody. The second issue is whether the trial court erred in failing to order the home-place sold and the proceeds divided. We find no error and affirm.

The party seeking modification of a child custody provision in a divorce decree has the burden of showing a material change in circumstances which will warrant modification. Jenkins v. Jenkins, 395 So.2d 1045 (Ala.Civ.App.1981). The mother argues that the husband has not shown a material change of circumstances so as to warrant a change in custody.

The trial court, however, found that custody should be changed. The trial court after hearing evidence ore tenus is in the best position to ascertain whether there has been such a change in circumstances as to require custodial change, and the trial court will not be reversed absent a showing of palpable abuse of discretion. Taylor v. Taylor, 387 So.2d 849 (Ala.Civ.App.1980).

In the present case the trial court had already ordered the mother not to have men sleeping in her home while the children were there. The trial court could certainly have concluded from the evidence that the mother had violated this order by allowing Booker to stay in her home in the presence of the children. Certainly the trial judge was in the best position to observe the witnesses and to determine from the testimony whether a change of custody was necessary.

The trial court’s decision was also based on an in camera interview with the children not contained in the record. The parties in this case agreed to allow the children to be interviewed by the trial judge in camera. Since this in camera interview is not included in the record, we must presume that it supports the findings of the trial court. Bynum v. Bynum, 52 Ala.App. 633, 296 So.2d 722, cert. denied, 292 Ala. 714, 296 So.2d 725 (1974). As a result we must affirm the modification of custody.

The husband cross appeals contending that since he has been awarded custody of the children the marital home should be sold and the proceeds divided. The original decree provides that the home should be sold when the wife remarries. In this case the wife has not remarried. The husband, however, argues that this provision was intended to assure the children a place to live. He argues that since they no longer will be residing there the home should now be sold. We cannot agree.

It is well settled that after a lapse of thirty days from the date of a divorce decree a court cannot modify a property settlement. Russell v. Russell, 386 So.2d 758 (Ala.Civ.App.1980). The decree in the present case is very clear that the house is to be sold upon the wife’s remarriage. It in no way indicates that the house can be sold upon a change of custody of the children. Therefore the court did not err in denying the father’s petition to sell the house.

AFFIRMED.

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


text:
    Ex parte Harry Alton WEAVER. In re Mary Elizabeth WEAVER v. Harry Alton WEAVER.
    Civ. 3086.
    Court of Civil Appeals of Alabama.
    March 24, 1982.
    G. W. Nicholson, Birmingham, for appellant. .
    Robert B. Huie, Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

This is a contempt case.

This cause arose under the following pertinent facts:

The Weavers were divorced in February 1977. The wife was awarded custody of the four minor children, and the husband was ordered to pay $500 per month child support. The original decree of divorce did not provide for an automatic reduction in child support as the children became of age, married or became self-supporting. The decree did not specify an amount per child. In October 1978, the oldest child left the mother’s home and moved in with her father. He reduced the child support payment by $100 per month. That child reached majority on February 1, 1980. In July 1980, the mother petitioned for rule nisi, claiming an arrearage in child support of $100 per month from October 1978 to July 1980.

The trial court found that the father was in arrears in child support, but found that the support expended for the child residing with him should be offset against the ar-rearage. Thus, the trial court concluded that no arrearage was owed. The mother appealed, and we reversed and remanded. Weaver v. Weaver, 401 So.2d 77 (Ala.Civ.App.), cert. denied, 401 So.2d 78 (Ala.1981).

On remand, the trial court held a second ore tenus hearing. The final order reveals that a second child left the mother’s home in August 1981 and moved in with the father. That child reached majority on August 31, 1981. Once again, the father reduced his monthly child support payment by $100. The mother claimed an additional arrearage based on that reduction. The trial court noted that no petition for modification of child support was filed by the father. The trial court in its order of October 9, 1981, held the father in contempt of court and set the total arrearage owed at $3,933, including interest. Costs were taxed against Weaver, and he was ordered to pay his former wife $350, presumably as an attorney’s fee. The father’s post-trial motion was denied, and he filed a petition for writ of certiorari. No transcript of the evidence was available, and Weaver failed to file a statement of the evidence pursuant to Rule 10(d), (e), A.R.A.P.

Weaver contends that the trial court’s finding of contempt is erroneous. He also attempts to rehash the child support issues decided by the prior appeal.

The settled rule in this state is that where no record is presented for review, this court may not reverse. Nadreau v. Nadreau, 395 So.2d 1017 (Ala.Civ.App.1981). As we said in Adams v. Adams, 335 So.2d 174 (Ala.Civ.App.1976),

It is quite obvious that the trial court heard evidence which is not before us; consequently we must assume that the oral evidence is sufficient to support the decree rendered, and we have no alternative but to affirm.

Due to the lack of a record on appeal, this cause is affirmed. It would appear appropriate that if Weaver desires relief from the original decree, he should consider filing a petition for modification by the court. We have said there is no authority for his doing it on his own.

The request of the appellee for an attorney’s fee on appeal is granted in the amount of $350.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . We note that our opinion in a prior appeal of this case, Weaver v. Weaver, 401 So.2d 77, at 78, incorrectly stated that “the order did provide for a reduction in the event of future change of events, such as one of the children attaining majority.” It should have read “did not.”


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Jack Benjamin MONAHAN v. STATE.
    7 Div. 769.
    Court of Criminal Appeals of Alabama.
    May 5, 1981.
    Rehearing Denied June 23, 1981.
    John R. Phillips of Phillips & Rice, Anni-ston, for appellant.
    Charles A. Graddick, Atty. Gen. and Jacquelyn L. Lufkin, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The indictment upon which a jury found appellant (defendant) guilty charged that he “did unlawfully possess or unlawfully have in his possession a pistol, after being convicted of a crime of violence, to-wit: Manslaughter... . ” The court fixed his punishment at imprisonment for thirteen months and sentenced him accordingly.

A statement of details of the evidence is not necessary to an understanding of the issues presented on appeal and of our determination thereof. The following suffices. Only two witnesses testified, one called by the State and the other called by the defendant. The witness called by the State, a sergeant' of the Piedmont Police Department, testified that while he was attempting to quell a disturbance, there was a “scuffle” between him and defendant and that at such time the defendant had a pistol in each of his front pockets. The Sheriff of Madison County testified, on call of the defendant, that he had previously issued the defendant a “pistol permit” which had not expired at the time of the incident just mentioned. The sheriff said that he understood that he could not “issue a pistol permit to anyone that had been convicted of a felony,” but that he did not understand that he could not “issue a pistol permit to one who had been convicted of a misdemeanor.”

Code of Ala.1975, § 13-6-152(a) provides:

“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.

§ 13-6-150 provides:

“For purposes of this division, the following terms shall have the respective meanings ascribed by this section:
“(1) ....
“(2) CRIME OF VIOLENCE. Any of the following crimes or an attempt to commit any of them, namely, murder, manslaughter, (except manslaughter arising out of the operation of a vehicle), rape, mayhem, assault with intent to rob, assault with intent to ravish, assault with intent to murder, robbery, burglary, kidnapping and larceny.
“(3) ....”

Appellant makes no claim to the contrary, but perhaps we should here repeat what was said in Crawford v. State, Ala.Cr.App., 356 So.2d 690, 691 (1978):

“Under these authorities, it is clear to this court that any person who has been convicted of committing or attempting to commit a crime of violence is not a suitable person to be licensed to own a pistol or have one under his possession or control. The sheriff therefore had no authority to issue a pistol permit to the appellant and the license is void.”

There was introduced in evidence by the State a duly certified copy of a judgment entered on February 16, 1972, in a case based on a charge of murder in the Circuit Court of Calhoun County, Alabama, entitled “State of Alabama v. J. B. Monohan [sic],” which shows a plea of guilty to manslaughter in the second degree. The judgment of the court recites that defendant was guilty of manslaughter in the second degree and was assessed a fine of $250.00. Upon introduction of the copy in evidence, defendant’s counsel stated, “No objection,” and the court stated, “No objection, it is entered.”

In contending that the court should have granted defendant’s motion to exclude the evidence at the conclusion of the State’s case and that the court was in error in overruling defendant’s motion for a new trial, appellant questions the position taken by the State, and determined by the trial court, that manslaughter in the second degree is a crime of violence as contemplated by § 13-6-150 and § 13-6-152. Appellant emphasizes the distinction between manslaughter in the first degree and manslaughter in the second degree, pointing out correctly that the one is a felony and the other a misdemeanor and that the one involves a more reprehensible state of mind than the other, and concludes that “second degree manslaughter is not ‘per se’ a crime of violence and that the circumstances involved in the manslaughter are of paramount importance in determining whether or not manslaughter in the second degree would be considered a crime of violence.” Only to the extent that in order for manslaughter in either degree to constitute a crime of violence it must be manslaughter that does not arise “out of the operation of a vehicle” do we agree with appellant. The statutory law on the subject is clear; it is not subject to the interpretation that is thus attempted to be given it by appellant.

For the same reason, we conclude that another position of appellant is not well taken, which is to the effect that “purely accidental acts are excluded from the coverage of § 13-6--150 and § 13-6-152.”

The only other issue presented by appellant is more troublesome. It is that the conviction of manslaughter in the second degree as shown by the copy of the judgment introduced in evidence is not sufficient upon which to support the verdict and judgment in the case now under review, for the reason that such copy of the previous judgment does not reveal whether the manslaughter arose “out of the operation of a vehicle,” which constitutes an express exception to the express inclusion of manslaughter as a crime of violence. The order of the court on the motion for a new trial recites:

“This matter coming on to be heard on motion of defendant for a new trial and defendant argues two grounds for a new trial:
“1. That manslaughter in 2nd degree is not a crime of violence.
“2. That the indictment will not support a conviction.
“The Court is of the opinion all manslaughter, 1st or 2nd degree, is a crime of violence, except manslaughter involving a motor vehicle. Further, that once the State has proven the defendant has previously been convicted of manslaughter the burden shifted to the defendant to show the exception to the law that manslaughter is a crime of violence. See Title 13-6-150.
“The Court is of opinion the second point argued on this motion is not well taken. In this action the defendant did not attack the indictment but instead entered a not guilty plea and went to trial and was convicted. The Court is of opinion that the indictment is sufficient to support a verdict even though it might be demurra-ble and the proper way to attack a defective indictment would be a motion for a judgment non obstante veredicto.
“It is therefore ORDERED AND ADJUDGED that defendant’s motion for a new trial be and it hereby is overruled.”

Reserving the expression of an opinion as to whether the reasons stated by the trial court for its ruling on the motion for a new trial are in every respect correct, we are of the opinion that the failure of defendant to demur to, or otherwise challenge the sufficiency of, the indictment, and his express declination to object to the admission in evidence of an exhibit showing that defendant had been convicted of manslaughter in the second degree, but which did not show that such manslaughter did not arise “out of the operation of a vehicle,” served to establish a failure to preserve for review the ruling by the trial court on the motion to exclude the evidence and on the motion for a new trial. However, we do not approve the language of the indictment, and we do not endorse the failure of the State to introduce in evidence a certified copy of the judgment of conviction that would have made it clear whether the particular manslaughter arose “out of the operation of a vehicle,” which presumably the record in that particular case, including the indictment itself, would have clearly disclosed. If it was manslaughter that arose “out of the operation of a vehicle,” which the State should have known, it was not a crime of violence and defendant should not have been convicted.

We do not understand why the State did not make its position clear in the language of the indictment or by the evidence, before any problem was presented, although we do understand its making no effort to do sp now, for the reason that it would not be appropriate for it to state any facts, though favorable to it, not shown by the record proper or the transcript of the proceedings. We are unwilling to assume that the State knowingly prosecuted the defendant for a purported crime, which the statute states unequivocally is not a crime.

We are not without some understanding of the failure of defendant to challenge the indictment and object to the admission in evidence of the certified copy of the judgment, if, indeed, the conviction of manslaughter did not arise out of the operation of a vehicle, which he should have well known. By such failure, he has been able to postpone thus far an execution of the sentence imposed upon him, and, incidentally, he has presented a problem that has not been easy to solve.

Our comments just made are to be considered in the only light we now have on the subject. We would be surprised to learn in the future that appellant’s previous conviction of manslaughter in the second degree was for manslaughter that arose out of the operation of a vehicle, which, if it had been shown by the record or transcript in the instant case, would have vitiated the conviction herein, but, of course, we cannot say with certainty what may come before us by the interested parties on the subject in the future. Whatever it is, we will endeavor to consider it as it then appears.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte J. B. MONAHAN. (In re: Jack Benjamin Monahan v. State of Alabama).
    80-701.
    Supreme Court of Alabama.
    April 2, 1982.

      Bruce M. Rice of Phillips & Rice, Anni-ston, for petitioner.
    Charles A. Graddick, Atty. Gen. and Ri-vard Melson, Asst. Atty. Gen., for respondent.
   ALMON, Justice.

The defendant was convicted of the crime of unlawful possession of a pistol, after having been convicted of a crime of violence, to-wit, manslaughter. Judgment was entered accordingly. He appealed to the Court of Criminal Appeals, 412 So.2d 287, which affirmed the judgment of the trial court. This Court granted certiorari to review the decision of the Court of Criminal Appeals.

The defendant contends that manslaughter in the second degree is not a “crime of violence” as that term is used in Code 1975, § 13-6-150, and will not, therefore, support a conviction under § 13-6-152.

Code 1975, § 13-6-150 defines “crimes of violence” as:

Any of the following crimes or an attempt to commit any of them, namely, murder, manslaughter, (except manslaughter arising out of the operation of a vehicle), rape, mayhem, assault with intent to rob, assault with intent to ravish, assault with intent to murder, robbery, burglary, kidnapping and larceny.

The Code makes no reference to degrees of offenses and hence any of the crimes listed are considered “crimes of violence” regardless of the degree. In the instant case, the prior conviction for manslaughter in the second degree is a misdemeanor, while a conviction of manslaughter in the first degree is a felony. The defendant argues that because the felony conviction requires a more reprehensible state of mind and because second degree manslaughter is not “per se” a crime of violence, the State cannot simply rely on the prior conviction but must prove the circumstances of the prior conviction. In this regard the Code is clear. Nowhere is it mentioned that the degree of the offense is determinative or that the State must show the circumstances of the prior conviction. We conclude, therefore, that manslaughter in the second degree is a crime of violence within the meaning of the statute.

The defendant further argues that the State failed to prove its case against him because of its failure to negate or prove the non-existence of the exception found in § 13-6-150 to the effect that manslaughter arising out of the operation of a vehicle is not a crime of violence.

It should be noted at the outset that the exception in question does not appear in the same section of the Code which denounces the offense charged.

In Sizemore v. State, 45 Ala.App. 126, 226 So.2d 669 (1969), the Court of Appeals stated the general rule as follows:

... an indictment which follows the language of the statute, denouncing a crime or misdemeanor, specifying the elements thereof and containing no exception in the clause defining the offense, need not negative matters which may be set up as a defense under other statutes or under provisos in the same statute. [Emphasis added.]

This Court, in Hall v. State, 291 Ala. 397, 281 So.2d 662 (1973), perhaps clarified the general rule by stating:

... The general rule as to exceptions, provisos, and the like, is that where the exception or proviso forms a portion of the description of the offense, so that the ingredients thereof cannot be accurately and definitely stated if the exception is omitted, then it is necessary to negative the exception or proviso. But where the exception is separable from the description, and is not an ingredient thereof, it need not be noticed in the accusation; for it is a matter of defense.

Applying these general rules of construction to this ease, we are of the opinion that the exception, which appears in a separate section of the Code, constitutes defensive matter and is not a burden upon the State. While the rule in Hall, supra, is somewhat of a departure from the earlier cases, we nevertheless believe the result reached in that case to be strongly supportive of our decision here.

Because we reach the same result as the Court of Criminal Appeals, the judgment of that court is hereby affirmed.

AFFIRMED.

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


author: TYSON, Judge.

text:
    Homer Lawrence LANE v. STATE of Alabama.
    7 Div. 842.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.
    No brief for appellant.
    Charles A. Graddick, Atty. Gen. and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

This cause was appealed from the denial of a petition for writ of error coram nobis by the Circuit Court of Talladega County, Alabama, which petition sought to set aside the conviction and life imprisonment without parole sentence, imposed by the trial judge at a sentencing hearing following the robbery-murder conviction and sentence of death imposed by the trial jury in this cause on October 16, 1978. In the original proceeding Lane entered a plea of guilty.

On mandate of the Supreme Court of Alabama in Ritter v. State, 403 So.2d 154, 1981, rehearing denied June 12, 1981, and authorities therein cited, and Recardo Cook v. State, 6 Division 561, this day decided, this cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT and BOWEN, JJ., dissent for reasons stated in Recardo Cook v. State, 412 So.2d 292, 6 Division 561, this day decided.


author: MADDOX, Justice.

text:
    Ex parte State of Alabama. (Re Homer Lawrence LANE v. STATE of Alabama).
    No. 80-803.
    Supreme Court of Alabama.
    Feb. 5, 1982.

      Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III and Edward E. Carnes, Asst. Attys. Gen., for petitioner.
    Homer Lawrence Lane, pro se.
    Jack Wallace, Talladega, for respondent.
   MADDOX, Justice.

The sole issue in this case is whether a defendant who entered a plea of guilty to a capital offense, and who was sentenced to life without parole, is entitled to withdraw that plea of guilty and obtain a new trial in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); on remand, Beck v. State, 396 So.2d 645 (Ala.1981) (wherein the Court held that the constitutionally infirm clause in Alabama’s death penalty statute, which precluded trial judges from giving lesser included offense instructions in capital cases, could be severed from the death penalty statute).

When the state filed its petition for cer-tiorari in this Court, there was pending here a ease which presented the same issue. The case was Graham v. State, 403 So.2d 275 (Ala.Cr.App.1980); cert. quashed 403 So.2d 286 (Ala.1981). In Graham, the Court of Criminal Appeals upheld the conviction. In this case, a majority of the Court of Criminal Appeals, 412 So.2d 292, reversed Lane’s conviction on “mandate of the Supreme Court of Alabama in Ritter v. State [403 So.2d 154 (Ala.1981)] and authorities therein cited, and Ricardo [Recardo] Cook v. State, [(Ala.Cr.App.)] MS. 6 Div. 461, this day decided.. .. ”

In Ricardo [Recardo] Cook v. State, [MS. 6 Div. 561, June 23, 1981] (1981), a majority of the judges of the Court of Criminal Appeals were of the opinion that “... every pre-Heck death case must be reversed, regardless of the lack of evidence on lesser offenses.” In reaching this conclusion, the Court of Criminal Appeals has misapplied the law announced by this Court in Beck and Ritter v. State, 403 So.2d 154 (Ala.1981), and has failed to apply the principles of law set forth in Graham v. State, 403 So.2d 275 (Ala.Cr.App.1980), cert. quashed 403 So.2d 286 (Ala.1981).

This Court did not write an opinion in Graham, but the rationale upon which the judgment to quash the writ was based in Graham was that a plea of guilty voluntarily made in a case wherein the death penalty was not imposed waives all non-jurisdictional defects.

What was the effect of Lane’s plea of guilty which was voluntarily made and upon which his judgment of conviction was based and upon which he was sentenced to life imprisonment without parole?

One of the most basic principles of the criminal law was stated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), where the Supreme Court opined:

“. .. A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.... ”

395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, 279.

It is universally held that a voluntary plea of guilty waives all non-jurisdictional defects. Lancaster v. State, 362 So.2d 271 (Ala.Crim.App.1978), cert. den. 362 So.2d 272 (1978); Franklin v. United States, 589 F.2d 192, 194, 195 (5th Cir. 1979), cert. den. 441 U.S. 950, 99 S.Ct. 2177, 60 L.Ed.2d 1055.

The factual setting in this case is not dissimilar to the fact situation in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Brady involved the Federal Kidnapping Statute which provided that only a jury could set a death penalty. Brady, charged under the Act, sought to avoid the death penalty, first, by waiving trial by jury and, when that was disallowed, by pleading guilty. The Supreme Court of the United States, a few years later, in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), invalidated and severed the death penalty provision from the Federal Kidnapping Statute on the grounds that it tended to coerce defendants into waiving trial by jury or to plead guilty. When Brady was sentenced under the Federal Kidnapping Statute upon his plea of guilty, the Supreme Court of the United States had not invalidated the death penalty provision from the statute. The Court refused to set aside Brady’s conviction. The Court opined:

“It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty and thus limit the penalty to life imprisonment rather than to elect a jury trial which could result in a death penalty. But even if we assume that Brady would not have pleaded guilty except for the death penalty provision of [the federal kidnapping statute], this assumption merely identifies the penalty provision as a ‘but for’ cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act.”

397 U.S. 742, 749-750, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 757.

The Court added:

“It is true that Brady’s counsel advised him that [the federal kidnapping statute] empowered the jury to impose the death penalty and that nine years later in United States v. Jackson, supra, the Court held that the jury had no such power as long as the judge could impose only a lesser penalty if trial was to the court or there was a plea of guilty. But these facts do not require us to set aside Brady’s conviction.
“Often the decision to plead guilty is heavily influenced by the defendant’s appraisal of the prosecution’s case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 376 [316], 92 L.Ed. 309 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant’s lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.
“The fact that Brady did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the state would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.”

397 U.S. 742, 756-757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747, 761.

In reaching the conclusion we reach in this case, we have considered the fact that the record indicates that Lane contended in his first petition for writ of error coram nobis that he had a defense of alibi. Lane v. State, 7 Div. 700 (Ala.Crim.App.1979), cert. den. 386 So.2d 216 (Ala.1979).

The decision of the Court of Criminal Appeals conflicts with this Court’s decision in Graham v. State, 403 So.2d 275 (Ala.Cr.App.1980), cert. quashed 403 So.2d 286 (Ala.1981). It is due to be reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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

      . There is disagreement on this Court on whether a plea of guilty in a capital case when the death penalty is imposed also waives all non-jurisdictional defects. See dissenting opinion in Ritter v. State, 403 So.2d at p. 155. The Supreme Court of the United States has agreed to review the Ritter case. Certiorari was granted by the United States Supreme Court on October 13, 1981, -U.S. -, 102 S.Ct. 376, 70 L.Ed.2d 200 and that case was remanded to us for further consideration in light of Reed v. State, on October 26, 1981; answer of this Court on remand from the United States Supreme Court dated December 11, 1981, held that the decision in Ritter was based on federal constitutional grounds. 412 So.2d 292 (1981).


author: PER CURIAM.

text:
    Homer Lawrence LANE v. STATE of Alabama.
    7 Div. 842.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
   PER CURIAM.

AFFIRMED ON AUTHORITY OF Lane v. State, Supreme Court of Alabama, 412 So.2d 292. NO OPINION.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Lee Andrew HUGHES v. STATE.
    3 Div. 434.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    No brief filed for appellant.
    Charles A. Graddick, Atty. Gen., and Jan A. Wade, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Arson; ten years.

Louis Chandler testified that two days following a “misunderstanding” with appellant “about a young lady,” during which appellant kicked Chandler’s car and threatened to “burn [him] up,” he had a fire at his home.

On Sunday, September 5, 1976, Chandler left his house at 7:00 A.M. and returned later that morning to find his kitchen burned. Chandler said that tar paper and clothing were burning on the back door when he arrived home. The witness stated that three or four weeks after the fire, appellant told him that he (appellant) had burned the house and he was sorry.

Isaac Billups, the victim’s next door neighbor, said that on the day in question he saw appellant knocking at Chandler’s door. Billups told appellant no one was home and about thirty-five minutes later the house was burning. Billups testified that he tried to put out the fire and called to appellant for help, but appellant walked away.

Fire Department Lieutenant B. C. Shirley testified that when he answered the call at Chandler’s house he found tar paper stuffed behind the back door, which he determined to be the origin of the fire.

Appellant testified in his own behalf. He denied kicking Chandler’s car, burning his house, or apologizing for the fire. On cross-examination he stated that he was a roofer and he knew that tar paper was highly combustible.

The State presented a prima facie case of arson. See Washington v. State, 290 Ala. 344, 276 So.2d 587 (1973). The conflict in the evidence presented a question of fact for the jury. When there .is legal evidence from which the fact finders can by fair inference find the accused guilty, this court will not overturn the verdict. Williams v. State, Ala.Cr.App., 335 So.2d 249 (1976).

I

At trial, appellant argued that there was a fatal variance between indictment and proof. The indictment averred that the dwelling burned was the “property of” Louis Chandler, whereas the evidence clearly showed that Mr. Chandler was not the owner, but a tenant occupying the property.

Since arson is an offense against possession rather than title, Adams v. State, 62 Ala. 177 (1878), an indictment is sufficient if it states that the property was of the one who had “actual occupancy.” Livingston v. State, Ala.Cr.App., 372 So.2d 1350 (1979); Burton v. State, 39 Ala.App. 332, 101 So.2d 564, cert. denied, 267 Ala. 354, 101 So.2d 572 (1957).

II

Appellant made the following objection to the State’s inquiring of the fire marshal whether, in his opinion, the fire was an “arson fire.”

“MR. SMITH: We object to that, Your Honor.
“THE COURT: On what grounds?
“MR. SMITH: He hasn’t qualified him as an expert, and just because he has been a fireman for seventeen years don’t make him an expert to tell whether or not a fire was arson. This is what the jury is here for, I believe.
“THE COURT: I see. Now, what is your position Mr. Bell?
“MR. BELL: Judge, I will withdraw that question and ask him a few questions more.
“THE COURT: All right.”

The district attorney then further questioned the fire marshal and, in an obvious attempt to qualify the witness as an expert, asked him ten additional questions regarding his background, training and experience in investigating fires. The following then occurred:

“MR. BELL: Your Honor, we would offer Lieutenant Shirley now as an expert in arson investigation.
“THE COURT: All right.
“MR. SMITH: We object to it, Your Honor.
“THE COURT: Yes, sir. Overrule your objection. Go ahead Mr. Bell.
“Q. I will ask you regarding this fire on September the 5th 1976 at Louis Chandler’s house whether or not you were able to form an expert opinion as to whether or not the fire was intentionally set or was an accidental fire?
“A. In my opinion, sir it was definitely set.
“Q. Intentionally set?
“A. Intentionally set.”

It is clear that, over proper objection, the admission of testimony that a fire was “intentional” or “of incendiary origin” is reversible error. See Colvin v. State, 247 Ala. 55, 22 So.2d 548 (1945); Moreland v. State, Ala.Cr.App., 373 So.2d 1259 (1979). Even an expert may not give an opinion on the issue since the cause of a fire is the ultimate fact in an arson case. Moreland v. State, supra.

In our judgment, however, appellant did not properly preserve the question for review. Appellant’s initial objection seems to have been based on dual grounds, that the fire marshal had not been properly qualified as an expert and that the matter invaded the province of the jury. The district attorney, however, withdrew the question, proceeded to qualify the witness, and the trial court did not rule on the first objection. Review on appeal is limited to matters on which rulings are invoked in the court below. Gunn v. State, Ala.Cr.App., 387 So.2d 280, cert. denied, Ala., 387 So.2d 283 (1980).

A party must apprise the trial court of the basis for an objection with sufficient particularity to allow an informed decision to be made on the legal issue involved. Bland v. State, Ala.Cr.App., 395 So.2d 164 (1981); Ward v. State, Ala.Cr.App., 376 So.2d 1112, cert. denied, Ala., 376 So.2d 1117 (1979).

After his first objection, appellant did not apprise the trial court that further qualification of the witness would not suffice. He acquiesced in the State’s further attempt to establish the witness as an expert and made only a general objection to the district attorney’s inquiring of the witness whether the fire was intentional.

A general objection which does not specify grounds presents nothing for review. Steele v. State, Ala.Cr.App., 389 So.2d 591 (1980).

We have searched the record for prejudicial error and have found none. Therefore, the judgment and conviction of the Montgomery Circuit Court is affirmed.

AFFIRMED.

All the Judgés concur.


text:
    John E. BURGESS v. STATE.
    3 Div. 436.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    William R. Blanchard, Jr. of Pappanastos & Blanchard, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Appellant entered guilty pleas to seven indictments involving first degree theft, second degree theft, and third degree burglary. The trial judge, finding that appellant was an habitual offender, sentenced him to a total of eighty-five years, including five ten-year terms, one fifteen-year term, and one twenty-year term.

The appellant’s guilty pleas were separately received by the court and, after each one, the judge informed the appellant that his sentence would be increased under the provisions of the Habitual Felony Offender Act, Ala.Code § 13A-5-9 (1975).

We find that the trial court misapplied the habitual offender law and in doing so, he did not properly advise the appellant of the maximum and minimum punishment for the offenses charged. Moore v. State, 54 Ala.App. 463, 309 So.2d 500 (1975); Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973).

Alabama’s habitual felony offender law, § 13A-5-9, supra, provides:

“(a) In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows: [Emphasis added]

The wording of the section is clear that the recidivist statute comes into play only when a defendant commits an offense after he has previously been convicted of a felony. Here, after each plea of guilty was accepted appellant had a “previous conviction.” However, appellant did not, after those “previous conviction[s]” commit another felony.

This court’s opinion in Watson v. State, Ala.Cr.App., 392 So.2d 1274 (1980), cert. denied, Ala., 392 So.2d 1280 (1981) is distinguishable from the present case. In Watson the question was whether or not eight felony convictions entered on the same day were to be considered one, or eight separate convictions. This court held that even though the convictions carried concurrent sentences, they were to be considered eight separate convictions. Likewise, appellants seven guilty pleas constitute seven separate convictions.

The question here, however, is not what constitutes a “conviction,” but when the conviction can be used to enhance punishment under the act. The answer provided by § 13A-5-9, supra, is that the “conviction” must be used to enhance punishment only when it is followed by the commission of another felony.

The difference between Watson, supra, and the present case is that Watson committed a felony after his eight convictions, whereas appellant committed no offenses after any of his seven guilty pleas.

Under these specific circumstances, the trial court’s application of § 13A-5-9, supra, was incorrect and, as a result the appellant was improperly advised of the minimum and maximum sentences for the offenses charged to him.

The judgments of conviction are reversed and the causes remanded to the Montgomery Circuit Court.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Joe CORBIN v. STATE.
    5 Div. 612.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.

      William T. Denson, Goodwater, for appellant.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was convicted of the second degree murder of Joe Calloway. Alabama Code 1975, Section 13-1-70. Sentence was life imprisonment.

I

The defendant argues that he did not knowingly and intelligently waive his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because he was not mentally competent to make such a decision. The factual basis for this argument is the January 15, 1980, finding of the Bryce State Hospital Forensic Unit Staff that the defendant was incompetent to stand trial.

Although at trial defense counsel did make the general objection that there was no knowing and intelligent waiver of Miranda rights, he did not contend that the defendant was incompetent and did not offer evidence of the incompetency finding to support his objection.

At the hearing to determine the vol-untariness of the confessions and before the jury, the State proved that the waiver was knowingly and intelligently made and that the confessions were voluntarily given. The defendant did not contradict this evidence. Testifying in his own behalf, the defendant admitted that he “told the policemen the truth.” In summary, during the trial there was nothing to contradict the finding of voluntariness made by the trial judge. The fact that the defendant was 71 years of age when he made the statements is not any indication of incompetency.

The finding of incompetency to stand trial loses all significance on the issue of the voluntariness of the confessions when it is noted that the finding was made in January of 1980, while the statements were made in November of 1978.

“The fact, without more, that accused was to some extent mentally incapacitated when he confessed, does not render his confession inadmissible.” C. Gamble, McElroy’s Alabama Evidence, Section 200.-14(1) (3rd ed. 1977). Mental “subnormality” does not in and of itself render a confession involuntary. Parker v. State, 351 So.2d 927 (Ala.Cr.App.), cert. quashed, 351 So.2d 938 (Ala.1977); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977). The mere fact that the defendant was simpleminded or “functionally illiterate” will not vitiate the voluntariness of his confession. Jackson v. State, 375 So.2d 1271 (Ala.Cr.App.), cert. denied, 375 So.2d 1274 (Ala.1979). Except in the most extreme cases, the mental abnormality of the accused is just one factor which must be considered in determining from the totality of the circumstances the voluntariness and admissibility of a confession. Hines v. State, 384 So.2d 1171 (Ala.Cr.App.), cert. denied, 384 So.2d 1184 (Ala.1980).

II

Even if the defendant’s confessions were inadmissible when offered because of the failure of proof of the corpus delicti, the error was cured by the subsequent proof of the corpus delicti. Tice v. State, 386 So.2d 1180 (Ala.Cr.App.), cert. denied, 386 So.2d 1187 (Ala.1980).

III

The defendant was not entitled to a presentence report as authorized by Alabama Code 1975, Section 13A-5-5 (Amended 1977). Since the homicide occurred in 1978, he was tried and convicted under Alabama Code 1975, Section 13-1-70. For that offense, he was sentenced by the jury and not the trial judge. Section 13A-5-5, giving the defendant a right to a presentence report, does “not apply to or govern the construction of and punishment for any offense committed prior to 12:01 A.M., January 1, 1980.” Section 13A-l-7(c).

IV

The fact that the written statements signed by the defendant are not exactly, word for word, what he told the investigators is without legal significance. A confession is not rendered inadmissible because it is not verbatim as related by the accused and is admissible if it is transcribed substantially as related and affirmed by the accused. King v. State, 355 So.2d 1148 (Ala.Cr.App.1978).

V

The defendant raises but does not argue two additional arguments on appeal. We have carefully examined both issues and found them to be without merit. See also Rule 45(B) A.R.A.P. (effective January 2, 1982).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Grant A. JACKSON v. STATE.
    6 Div. 484.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.

      George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   HARRIS, Presiding Judge.

Appellant was indicted for the February 9, 1980, murder of Pattie Bracken in violation of § 13A-6-2 Code of Alabama 1975 (Amended 1977). Trial was had with the jury finding him guilty as charged. Subsequent thereto, at appellant’s sentencing hearing, the trial court fixed his punishment at fifteen years imprisonment. Throughout the trial and instant proceedings, appellant has been represented by court-appointed counsel.

We have thoroughly examined the state’s evidence and found it to be sufficient to establish a prima facie case of murder. McCloud v. State, Ala.Cr.App., 401 So.2d 314 (1981); § 13A-6-2(a)(l) Code of Alabama 1975 (Amended 1977). Only a brief narration of the facts is necessary.

On the morning of February 9, 1980, the victim went to the home of Matt Yancey to visit her grandchildren. Yancey rented a room of his house to appellant who was also present. Throughout the morning and early afternoon, the victim and appellant drank gin and wine. Neither argued with each other, although they teased each other about sexual matters. Apparently, the victim and appellant had shared the same bed.

Shortly before 3:30 p. m., appellant left the living room where he and the victim had been and went into the kitchen. He returned a few seconds later and while the victim was beginning to rise from her seat on the floor with her grandchildren, appellant thrust a large filet knife into her chest, cutting her aorta and heart. Within minutes of the stabbing, the Birmingham police arrived on the scene and took appellant into custody.

Appellant contends that a fatal variance exists between the indictment and proof in that the name of the victim was different from that recited in the indictment.

The indictment spelled the victim’s name PATTIE BRACKEN, while her husband, during his cross-examination spelled it PATTIE BRACKENS. In addition, he identified the corpse taken from the Yancey home as his wife.

Matt Yancey, an eyewitness to the crime, testified that the victim had been living in his house for about one week and sleeping in the same room as appellant although she did not stay there the night before the stabbing. Appellant apparently knew the victim in more than a casual manner.

To be material, a variance as to the name alleged in the indictment from that proved by the evidence must be such as to be misleading or substantially injurious to the accused in making his defense, or to expose him to the danger of a second trial on the same charge. Rupert v. State, 45 Ala.App. 84, 224 So.2d 921 (1969).

We find the above variance in the spelling of the victim’s last name to be so trifling that it is inconceivable that appellant could have been misled or prejudiced thereby. Consequently, we find no error in the trial court’s denial to dismiss the indictment and exclude the state’s evidence on this ground.

Appellant asserts that the trial court erred in allowing Jefferson County Deputy Coroner Joe Canoy to testify as to the cause of death. He argues that Act No. 512, Alabama Acts 1977, p. 674, and Act No. 454, Alabama Acts 1979, p. 739, (hereinafter referred to as Acts 77-512 and 79-454, respectively) limit such testimony to only a licensed physician practicing medicine in Alabama. Appellant contends that Canoy was not a licensed physician and was not qualified under the above acts to give his opinion as to the cause of death.

Mr. Canoy testified that, at the time of the victim’s autopsy, he had been employed in the Jefferson County Coroner-Medical Examiner Office for one and one-half years. He testified:

“A. I have been to several homicide schools in the state of Florida. I was a homicide detective for 5 years. I received associate degree in criminal justice from the University of South Florida, B.S. Degree in criminal justice from University of Alabama. I’m presently working on a Masters in Forensic Science. I have attended forensic homicide investigation schools at the St. Louis School of Medicine.
“Q. Joe, have you had an occasion to view few or many bodies as alleged results by homicide?
“A. I have.
“Q. Few or many?
“A. Many.
“Q. Had you had an occasion to observe few or many bodies that the homicide cause of death was by stab wound of a knife?
“A. Yes, sir, I have.
“Q. Few or many?
“A. Many.
“Q. Do you have a judgment as to how many autopsies you have witnessed or been included on?
“A. I imagine a rough guess probably 800 to 8,000, counting my pretraining and paramedics.
“Q. And have you had training in causes of death and things like that, like about the heart and aorta and blood and hemorrhaging?
“A. Yes, sir, I have.
“THE COURT: Let me ask you something. Eight hundred autopsies is an awful lot of autopsies to observe. I guess some of those — are most of them in Florida, or most up here, or less in Florida?
“THE WITNESS: Both.
“THE COURT: About even?
“THE WITNESS: Yes.
“THE COURT: When you were a homicide detective in Florida, with a B.S. in the criminal justice system and Associate Degree and so on, most homicide detectives were not present. They are occasionally around here. How come you would be witness to so many autopsies in homicides?
“THE WITNESS: In the state of Florida our DA wanted us to be there to testify in court, because a lot of times the pathologist cannot be there.
“Q. Did you testify in Florida courts as to cause of death in homicide cases?
“A. Yes, I have.
“Q. Few or many occasions?
“A. I would say many.
“Q. How about stab wound related?
“A. Stab wounds, yes, sir.
“Q. What do your duties entail or did entail at that time in your job as Deputy Coroner? Did you have a job description?
“A. Do I?
“Q. Did you at that time?
“A. Yes, sir, it’s written up in the Civil Service. It’s a long paragraph. I don’t remember what all it says. To assist with the pathologist in the autopsy and investigation of death.
“Q. Approximately how many stab wounds did you say you have seen? You said many. Can you give us a number?
“A. I can’t say, you know, how many. I would say many. I have seen as high as 43 stab wounds on one body.”

Mr. Canoy testified that he was present during the autopsy of the victim and heard Jefferson County Coroner-Medical Examiner Dr. Ronald Rivers dictate his findings. He observed the external and internal wounds sustained by the victim. At the time of the trial, Dr. Rivers was employed as a chief medical examiner in Montana.

The record is clear that the autopsy was performed by a qualified physician, namely Dr. Rivers, consistent with Acts 77-512 and 79-454, respectively. Further, the autopsy report was apparently prepared from Dr. Rivers’ dictation made at the time of the autopsy and of which Canoy had personal knowledge. The report bore the signature of Dr. Rivers. Canoy referred to the report during his examination to refresh his recollection.

We do not read Acts 77-512 and 79-454 to place upon the Coroner-Medical Examiner of Jefferson County the exclusive duty of expressing opinions as to the cause of one’s death where such is investigated by his office. Both acts provide for the temporary replacement of the Coroner-Medical Examiner by one not licensed to practice medicine in Alabama. Act 77-512 subsection C; Act 79 — 454 § 3. Further, the Coroner-Medical Examiner is authorized “to conduct or have conducted an autopsy...” Act 77-512 subsection G; Act 79 — 454 § 9.

Nowhere in either act does it state that only the Coroner-Medical Examiner may testify as to the cause of death. Such is consistent with the established case law of this state. In Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973), we stated:

“The general rule is that an expert witness’ competence to testify is an inquiry substantially within the discretion of the trial judge. This Court on appeal will not disturb the trial judge’s finding of expert qualifications vel non, unless there is a clear abuse of this discretion. King v. State, 266 Ala. 232, 95 So.2d 816 (1957). “Whether a witness can be covered with the expert veil depends on his acquired knowledge in a field of endeavor not ventured into by the layman. If that knowledge extends beyond or supersedes that of an ordinary witness, as determined by the trial judge, the witness can become an expert. In instances where testimony relating to cause of death is offered, the Alabama cases show that the testimony need not be given by a physician. By way of example, such persons can testify as to cause of death as a funeral director of twenty-five years experience, Cauley v. State, 33 Ala.App. 557, 36 So.2d 347, cert. den. 251 Ala. 163, 36 So.2d 354; a licensed embalmer and undertaker, Levert v. State, 34 Ala.App. 523, 42 So.2d 525, reversed 252 Ala. 308, 42 So.2d 532, cert. den. 252 Ala. 659, 42 So.2d 534; a chemistry professor, Scott v. State, 141 Ala. 1, 37 So. 357; an employee of the State Toxicologist’s Department who was not a physician, Maund v. State, 254 Ala. 452, 48 So.2d 553; an undertaker and county coroner of many years experience, Williams v. State, 255 Ala. 229, 51 So.2d 250; a mortician, Thomas v. State, 249 Ala. 358, 31 So.2d 71; county coroner with background of two years of college and one year working under the employ of a pathologist, King v. State, supra, or a deputy county coroner with the requisite training and experience, Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922; Willingham v. State, 50 Ala.App. 363, 279 So.2d 534, Snow v. State, 50 Ala.App. 381, 279 So.2d 552.
“It is shown by these cases that the mere fact that a witness is not a physician does not preclude his testimony as to cause of death. However, the fact that the witness is a coroner, mortician, professor, or toxicologist does not per se qualify him as an expert on causes of death. Phillips v. State, 248 Ala. 510, 28 So.2d 542. Rather, in these professions, the witness must be competent as shown by circumstances extrinsic to the fact of his profession, and not because of it. Such circumstances are the length of time the witness has been engaged in his profession, and the number of similar causes of death situations with which the witness has had experience. This simply indicates the rule that there is no presumption that a witness is competent to express an opinion.”

See also Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968); Robinson v. State, Ala.Cr.App., 362 So.2d 1290 (1978); St. John v. State, Ala.Cr.App., 358 So.2d 812 (1978); Carter v. State, Ala.Cr.App., 356 So.2d 682, cert. denied, Ala., 356 So.2d 689 (1978); Turk v. State, Ala.Cr.App., 347 So.2d 588, 592 (1977); Vaughn v. State, Ala.Cr.App., 347 So.2d 582 (1977); Campbell v. State, Ala.Cr.App., 341 So.2d 735 (1976), affirmed, Ala., 341 So.2d 742 (1977); Lloyd v. State, Ala.Cr.App., 339 So.2d 1058, cert. denied, Ala., 339 So.2d 1062 (1976); Hunter v. State, Ala.Cr.App., 338 So.2d 513 (1976); Hoback v. State, Ala.Cr.App., 338 So.2d 439, cert. denied, Ala., 338 So.2d 444 (1976); Jones v. State, 53 Ala.App. 542, 302 So.2d 126 (1974); Hill v. State, 51 Ala.App. 515, 286 So.2d 924 (1973); Snow v. State, 50 Ala.App. 381, 279 So.2d 552, cert. denied, 291 Ala. 798, 279 So.2d 558 (1973); Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (1973).

It is not essential that the witness perform the autopsy himself for his opinion as to the cause of death to be admissible. The fact that Canoy used Dr. Rivers’ autopsy report in conjunction with his own personal observations does not render his testimony inadmissible. Woodard v. State, Ala.Cr.App., 401 So.2d 300 (1981); Swanson v. State, Ala.Cr.App., 346 So.2d 1166 (1977).

Furthermore, in Smoot v. State, Ala.Cr.App., 381 So.2d 668 (1980), we held the Chief Medical Investigator of the Jefferson County Coroner-Medical Examiner’s Office, a position created under the authority of Act 77-512, to be qualified to express his opinion as to the cause of death. See also Manigan v. State, Ala.Cr.App., 402 So.2d 1063, cert. denied, Ala., 402 So.2d 1072 (1981).

Based upon the foregoing authorities, we find appellant’s contention without merit.

Appellant contends that the trial court erred in admitting a portion of his statement made at the scene shortly after the police had arrived.

Birmingham Police Officer Robert Han-slee testified that he and his partner arrived on the scene shortly after 3:30 p. m. in response to a police dispatch reporting an assault. He entered Yancey’s living room and found the paramedics attending the victim. He stated that appellant, Yancey, and an unidentified black female were present. Officer Henslee testified that when he entered the living room he had no suspect in mind. He stated that he walked over to the paramedics, observed the victim, and asked, “What happened?” He testified that he did not direct the question to anyone in particular, but rather asked it in general. Appellant replied, “I stabbed her.” Officer Henslee turned toward appellant and asked “Why,” to which appellant replied in substance, “I felt like it.”

Appellant argues that his second response should have been excluded because he was not given his Miranda warnings.

There can be no doubt that appellant’s statements were voluntary exclamations, made prior to his being a suspect, in custody, or under arrest. Further, they were not the product of a custodial interrogation. The Miranda warnings have been found inapplicable in several similar situations. Truex v. State, 282 Ala. 191, 210 So.2d 424 (1968); Sullivan v. State, Ala.Cr.App., 394 So.2d 76 (1981); Pope v. State, Ala.Cr.App., 387 So.2d 300 (1980); Cork v. State, 50 Ala.App. 670, 282 So.2d 107 (1973).

In Hall v. State, Ala.Cr.App., 399 So.2d 348, 351-52 (1981), this court, speaking through Judge Bookout, stated:

“The Miranda rule clearly demands that the State may not use statements, whether inculpatory or exculpatory, stemming from a ‘custodial interrogation’ of an accused unless it proves that the Miranda warnings were given to the accused prior to questioning. Extrajudicial confessions are prima facie involuntary and inadmissible, and the burden imposed upon the State is to prove that the accused ‘knowingly and intelligently waived his privilege against self-incrimination’ to the satisfaction of the trial judge whose finding will not be disturbed on appeal unless it is contrary to the great weight of the evidence or is manifestly wrong.
“ ‘Custodial interrogation’ is defined as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. ‘Interrogation’ has been defined as ‘police questioning or conduct which is calculated to, expected to, or likely to evoke admissions.’ ... Such conduct need not occur at a police station or headquarters in order to be custodial.
“The Miranda warning is required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ... It is inapplicable to traditional investigatory functions as general on-the-scene questioning. . . The test in determining the existence of a custodial interrogation has been defined as whether a reasonable man would feel that he was physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action is restricted by such interrogation.
“The line of demarcation between a general investigation and a custodial interrogation must be determined by a case-by-case factual analysis.... Criteria used to determine the necessity of Miranda safeguards include: (1) probable cause to arrest, (2) subjective intent of the police, (3) subjective belief of the accused, and (4) focus of the investigation. While the focus of the investigation is especially important in deciding whether an accused should be given the Miranda warning, it is custody, and not focus which marks the point at which it becomes mandatory.” (Footnote and citations omitted.)

At the time appellant made his second statement, he was not a suspect, in custody, or under arrest. Appellant was not subjected to a custodial interrogation as defined in Hall, supra. Officer Henslee’s presence and purpose at the scene at the time appellant made his statements were for investigative rather than accusative reasons. While Officer Henslee may have directed his inquiry to appellant, focus alone does not trigger the necessity for informing one of the Miranda safeguards. Hall, supra; Sims v. State, 51 Ala.App. 183, 283 So.2d 635 (1973). Consequently, appellant’s second statement reflects characteristics similar to that of his first statement.

We find the trial court properly admitted both of appellant’s statements into evidence.

Appellant contends that the trial court erred in sustaining the state’s objection to the admission of his statement made to Birmingham Police Sergeant Seldman Knight. He argues that it was admissible under the doctrine of curative admissibility and to establish the crime of manslaughter.

The state, in questioning Sergeant Seld-man Knight, who investigated the instant crime and took the statement in question from appellant, asked him whether, in conjunction with his investigation, he had talked to any witnesses, to which he affirmatively replied. Without revealing what was said, Sergeant Knight stated that he talked to the police officers that went to the scene, Matt Yancey, and the appellant.

The doctrine of curative admissibility is applicable where a party who has introduced illegal evidence may have such rebutted by illegal evidence offered by his opponent. The doctrine is applicable even if the opponent failed to object to the original illegal evidence. However, the doctrine limits admission of illegal rebuttal evidence only to the extent that it cures the effect of the original illegal admission. Hall v. State, Ala.Cr.App., 375 So.2d 536 (1979); Gamble, McElroy’s Alabama Evidence § 14.01 (3rd ed. 1977).

In the instant case, the doctrine of curative admissibility has no application as the state, through the testimony of Sergeant Knight, introduced no illegal evidence. Appellant’s contention on this ground is without merit.

In addition, appellant argues that admission of the statement would have raised questions as to the intent element of his charge and thus established the lesser included offense of manslaughter.

The evidence adduced prior to the testimony of Sergeant Knight leaves no doubt as to appellant’s intent at the time of the fatal stabbing. He admitted stabbing the victim and did so in the presence of an eyewitness. Furthermore, a close reading of the appellant’s statement to Sergeant Knight inculpates him and establishes no defense to the crime. It does not establish any of the elements of manslaughter as defined in § 13A-6-3 Code of Alabama 1975 (Amended 1977). See also § 13A-6-2(b), supra. In many respects, the statement is cumulative of evidence previously received. Consequently, appellant’s contention on this ground is without merit. The trial court properly sustained the state’s objection.

Lastly, appellant contends that the trial court confused and misled the jury in its oral charge concerning intoxication. He specifically challenged that portion where the trial court stated:

“Mere drunkenness voluntarily produced is never a defense against a criminal charge and can never palpate (sic) or reduce the grade of the offense. We’re talking about reducing the grade of the offense when you talk about the lack of intent to manslaughter.”

A review of the trial court’s complete charge on intoxication reveals that it correctly stated the law applicable to the facts. It substantially followed § 13A-3—2 Code of Alabama 1975 (Amended 1977). The above quoted portion of its charge fairly and substantially covered subsections (d) and (e)(2) of § 13A-3-2.

It is a well settled proposition of law that, upon review of the trial court’s instructions to the jury, the charge must be taken as a whole and portions challenged not isolated therefrom or taken out of context, but rather considered together. Lowman v. State, Ala.Cr.App., 400 So.2d 430, cert. denied, Ala., 400 So.2d 434 (1981); Harris v. State, Ala.Cr.App., 394 So.2d 96 (1981); Stewart v. State, Ala.Cr.App., 381 So.2d 214 (1979), cert. denied, Ala., 381 So.2d 220 (1980); McCovery v. State, Ala.Cr.App., 365 So.2d 358 (1978). We find no error in the above portion of the trial court’s oral charge either standing alone or when read in conjunction with the whole instruction concerning intoxication.

A careful search of the record reveals no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Calvin Brooks ZEIGLER v. STATE.
    6 Div. 636.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.

      Dwight L. Driskill, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

This is an appeal from the denial of a petition for writ of error coram nobis. Petitioner was arrested in 1978 for obtaining Talwin with a forged prescription. He was indicted, and on December 11, 1979, he entered a plea of guilty to the charge.

After the Alabama Supreme Court held, in McCurley v. State, 390 So.2d 31 (Ala.1980), that the State Board of Health had not complied with the statutory procedure for determining Talwin to be a controlled substance, petitioner filed a petition for writ of error coram nobis attacking the validity of his conviction.

In McCurley v. State, supra, the court held that the action of the State Board of Health at its August 15, 1973 meeting, during which it purported to list pentazocine (Talwin) as a controlled substance, did not comply with the statutory guidelines set out in § 20-2-20, Code of Alabama 1975.

Section 20-2-20, supra, requires the Board to consider eight factors before proscribing a substance. The court found that the Board had not considered these factors at its August 15 meeting, and thus its purported attempt to classify the drug pentazo-cine (Talwin) on that date was legally deficient.

During petitioner’s coram nobis hearing, the State called Dr. Ira L. Myers, Secretary and keeper of the records of the State Board of Health. Dr. Myers testified that, while the Board’s August meeting was an emergency one at which the eight factors were not considered, at a later meeting in November of the same year the Board did weigh all eight criteria before formally determining, on December 18, 1974, that Tal-win should be a controlled substance.

Our review of the minutes of a Board hearing held on November 21, 1973, which were introduced at the coram nobis hearing, indicates that all eight factors outlined in § 20-2-20, supra, were fully discussed and considered by the Board.

The record also reveals that on September 17, 1980, the minutes of the August 15, 1973 meeting were amended to show compliance with all applicable statutory requirements for classifying Talwin as a controlled substance. In addition, the minutes for December 18,1974, show that the Board classified oral pentazocine (Talwin) tablets as Class 4 and retained injectable Talwin as Class 3N substances. According to these facts, oral Talwin became a controlled substance on December 18, 1974. Our holding in Brown v. State, 398 So.2d 784 (Ala.Cr.App.), cert. denied, 398 So.2d 787 (Ala.1981), that oral Talwin was controlled on February 10, 1979, has no application here. That decision referred to the date upon which Talwin was classified as a controlled substance under federal law (and by adoption pursuant to § 20-2-20(d), under State law), and not to any earlier date when Talwin may have been classified by the State Board of Health on its own initiative pursuant to § 20-2-20(a)(l)-{8).

In McCurley v. State, supra, our Supreme Court did not have before it the full record of the Board’s actions after August 1973. It did not have the benefit of the additional information adduced at the hearing on this petition when it properly ruled, in McCurley, that Talwin had not been correctly classified on August 15, 1973. In our judgment, the court’s holding is limited to the propriety of the Board’s action on that date.

After reviewing the evidence presented in the instant case, it is our opinion that Talwin oral tablets became a controlled substance on December 18, 1974, and petitioner was therefore properly arrested in 1978 and convicted in 1979 of obtaining the drug with a forged prescription.

The judgment of the Jefferson Circuit Court in denying the petition for writ of error coram nobis is affirmed.

AFFIRMED.

All the Judges concur.


text:
    John GRAFFEO v. STATE.
    7 Div. 845.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.
    Lister Hill Proctor of Proctor & Vaughn, Sylacauga, for appellant.

      Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted, on a plea of guilty in Circuit Court Case No. 80-421 to an indictment charging him with the sale of marijuana, and sentenced to imprisonment for seven years; in Circuit Court No. 80-423 he was convicted on a plea of guilty to an indictment charging possession of marijuana and sentenced to imprisonment in the penitentiary for a term of seven years. His appeals in the cases have been consolidated.

On arraignment in each case, defendant pleaded not guilty, but when each case came on for trial on February 16, 1981, the defendant, accompanied by his retained counsel, asked leave to withdraw his plea of not guilty and enter a plea of guilty. Appellant contends that, as to each case, the action of the court did not meet the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Our review of the lengthy colloquy among the court, defendant and his counsel convinces us that the requirements of Boykin were met, the acceptance of defendant’s plea of guilty was proper, and that there was no error by the trial court in the rendition of its judgment of conviction in Circuit Court Case No. 80-421.

Immediately after the hearing on whether to accept the plea of guilty in Circuit Court Case No. 80-421, the court commenced a lengthy colloquy as to Circuit Court Case No. 80-423, which also in general met the requirements of Boykin, but in one particular it did not, as shown by the transcript as follows:

“THE COURT: All right. Do you further understand that the State must prove you guilty beyond a reasonable doubt and to a moral certainty?
“THE DEFENDANT: Yes, sir.
“THE COURT: And the State also must prove beyond a reasonable doubt and to a moral certainty the essential elements of the crime in which you are charged in the indictment. The State must prove, one, that you did unlawfully sell, furnish, or give away, two, a controlled substance, to-wit, marijuana, three, to Gabe McCray. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Sir, what if anything did you do that makes you say you are guilty of this offense?
“THE DEFENDANT: They said I sold it.
“THE COURT: You said you sold it?
“THE DEFENDANT: They said I did.
“THE COURT: Would you repeat the answer?
“THE DEFENDANT: I said they did. (sic)
“THE COURT: That you did sell, furnish, or give away marijuana?
“THE DEFENDANT: Yes, sir.”

It is to be readily seen that the trial court was treating Case No. 80-423 as charging the same as charged in Case No. 80-421, a sale of marijuana, or the legal equivalent, which is not charged in Case No. 80-423. Neither the record proper nor the transcript clarifies the mistake in such a way as to conclude therefrom that defendant’s plea of guilty in Case No. 80-423 was voluntarily, knowingly and understandingly made to the charge contained in the indictment.

A presentence investigation and report were requested by defendant in each case, and the cases were continued to March 23, 1981, for sentence hearing and a determination of defendant’s application for probation. On March 23, 1981, a sentence hearing was conducted, which resulted in the sentence of seven years in each case and a denial of defendant’s application for probation. The transcript shows that a presen-tence report of investigation had been submitted, but the transcript does not contain the report and contains very little reference to it. About the only reference to it is to be found in the argument of defendant’s counsel as follows:

“MR. LYON: Your Honor, we would just like to emphasize some of the points in the report, if we may.
“THE COURT: Yes, certainly.
“MR. LYON: Okay. Your Honor, we would emphasize the reputation and community attitude toward Mr. Graffeo that almost everyone contacted said that they are surprised at the charges and that they considered the Graffeos decent people — never wrong-doing anyone else and the people of the community recommend probation for them — for him and the analysis of the report states that there were two positive aspects toward recommending probation.
“There is no previous record for Mr. Graffeo and he has a good reputation in the community and Mr. Graffeo pled guilty to possession of a small amount of marijuana and also the sale, I believe, of two ten cent bags, also a small amount of marijuana.
“Mr. Graffeo has had three heart attacks, is in very poor health. As you can see, he is elderly and I will submit to Your Hon- or that there will be no social benefit to deny probation on his application and that is it.”

By reason of what has been stated above relative to the hearing on defendant’s plea of guilty in Case No. 80-423, the judgment therein should be reversed and the cause remanded.

As to Case No. 80-421, in which there was compliance with the requirements of Boykin v. Alabama, supra, the judgment of conviction should be affirmed. However, it appears that, as to both cases, the court was considering that defendant was pleading guilty to two separate cases of selling marijuana and that the term of the sentence in each case, as well as the determination of the application for probation, was probably influenced thereby. Case No. 80-421 should be remanded with directions that the court conduct another sentence hearing in accordance with Alabama Rules of Criminal Procedure — Temporary Rules, effective February 23, 1980, and that the parties be given due notice of the time thereof. The trial court shall make due return to the order .of remandment, with notice thereof to each of the parties. Either party aggrieved thereby will have fifteen days thereafter in which to file a brief to this court and the opposing party will have fifteen days within which to file a reply brief.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the court. The judgment of conviction in Case No. 80-421 is hereby affirmed and the case is remanded with directions for another sentence hearing. The judgment in Case No. 80-423 is hereby reversed and the case remanded.

AFFIRMED BUT REMANDED WITH DIRECTIONS FOR ANOTHER SENTENCE HEARING IN ONE OF TWO CASES; REVERSED AND REMANDED IN THE OTHER CASE.

All the Judges concur.