author: BRADLEY, Judge.

text:
    Thomas LANKFORD and Winfred Turner v. Robert RUCKER.
    Civ. 2397.
    Court of Civil Appeals of Alabama.
    March 18, 1981.

      Julian D. Butler of Butler & Potter, and Earl D. McNeal, Huntsville, for appellants.
    Earl E. Cloud of Cloud & Cloud, Huntsville, for appellee.
   BRADLEY, Judge.

Plaintiff, Robert Rucker, and Jimmy Robinson were co-owners of a Huntsville, Alabama nightclub known as Jimmy’s Underground A-Go-Go. On May 9,1977 Ruck-er and Robinson, as sellers, signed a written contract with Cyril Ritzus, as buyer, whereby sellers agreed, for a total consideration of $30,000, to sell to buyer “all of their right, title and interest to all of the furniture, fixtures, equipment and inventory” in the aforementioned club. Paragraphs two and three of the contract provided that buyer would place $20,000 of the purchase price of the club in the hands of the buyer’s attorneys to be held by them in an escrow account. Such money would be paid to sellers when and if buyer secured all necessary city and state licenses to operate the club “as a restaurant-night club serving alcoholic beverages .... ” The cost of effecting any improvements or repairs to the premises which might be required to be made to obtain such licenses and all taxes on the club’s operations would be paid by sellers. In the event that sellers could not pay for these improvements or repairs or satisfy any or all of the club’s taxes, buyer would be entitled to reimbursement from the $20,000 escrow account for any expenses he might incur in effecting the improvements or repairs or in satisfying the taxes. Buyer would pay the remaining $10,000 balance in equal monthly installments of $500 each at eight percent simple interest after the club had been licensed to serve alcoholic beverages.

On May 10, 1977 Mr. Ritzus executed a lease by which Arthur Cole, Inc., as lessor, demised the club’s premises to Ritzus as lessee for a term of five years. A certificate of incorporation was filed with the Madison County Probate Judge’s office on May 16, 1977. This certificate named Mr. Ritzus, Margaret Sides, and Jimmy Wayne Sides as incorporators of a new corporation entitled “Club Management, Inc.” whose principal place of business was identical to that of Jimmy’s Underground A-Go-Go. All three incorporators were named as officers and directors of the corporation and as sole subscribers to all one thousand shares of its capital stock. That same day, Mr. Ritzus, acting on behalf of the corporation, filed an application for a liquor license with the city of Huntsville. The city subsequently granted such a license to the corporation. Thereafter, Ritzus assigned his interest in the May 16, 1977 lease to the corporation and all three incorporators assigned all of their shares and other interests in the property of the corporation to defendants Thomas Lankford and Winfred Turner. One Jyles Machen purchased a one-quarter interest in the corporation from these defendants on May 23, 1977. On November 4, 1977 defendant Lankford assigned all of his right, title, and interest in Club Management to defendant Turner. Turner resigned as a director of the corporation on December 10, 1977 and Jyles Ma-chen became its sole stockholder. On February 15,1978 Machen sold Jimmy’s Underground A-Go-Go to one Robert Lamm for a total consideration of $35,000. Jimmy Robinson assigned all of his interest in the proceeds of the May 9, 1977 contract to plaintiff on July 6, 1977. Plaintiff eventually received only $2,000 of the $20,000 placed in escrow for the purchase of the club and only $1,500 of the remaining $10,-000 balance which was to be paid to him in monthly installments of $500 each.

Rucker instituted the present action against Cyril Ritzus, Club Management, Inc., Thomas Lankford, Winfred Turner, Jyles Machen, and other unnamed defendants on May 29, 1978, alleging that said defendants breached the May 9, 1977 contract in that they failed to pay plaintiff $8,500 of the $10,000 payable to him in monthly installments. Plaintiff obtained entries of default pursuant to Rule 55(a) of the Alabama Rules of Civil Procedure against defendants Cyril Ritzus and Club Management, Inc. The remaining defendants filed answers generally denying all the material allegations of plaintiff’s complaint and asserting that any claims for breach of the contract which plaintiff might have against them were barred by § 8-9-2(3) of the 1975 Code of Alabama. After an ore tenus trial the Circuit Court of Madison County entered a judgment against defendants Cyril Ritzus, Club Management, Inc., Thomas Lankford, and Winfred Turner for $9,850. Defendants Lankford and Turner filed motions for a new' trial or to alter, amend or vacate the judgment on the grounds, inter alia, that the court erred in its application of the law to the facts of the case and that the contract which defendants had allegedly breached could not be enforced against them without contravening §§ 8-9 — 2(1) and (3) of the 1975 Code of Alabama. From the denial of these motions by the circuit court, defendants Lank-ford and Turner (hereinafter referred to simply as defendants) have prosecuted the instant appeal. For the reasons stated below, we reverse.

Plaintiff introduced substantial testimony upon the trial of this cause tending to show that defendants, prior to the execution of the May 9, 1977 contract by Cyril Ritzus, Jimmy Robinson and plaintiff, had orally promised Robinson and Rucker that they would furnish all of the money necessary for the purchase of Jimmy’s Underground A-Go-Go and that Ritzus never furnished any of the consideration for the purchase of the club. Plaintiff’s amended complaint, corroborated by testimony elicited from him on cross-examination, however, clearly indicated that he considered defendants to have orally guaranteed payment by Ritzus of all sums due plaintiff under the contract. Moreover, it is uncontroverted that plaintiff, by the contract of May 9, sold the club to Ritzus, who thereafter became manager thereof, and that defendants did not acquire their interests in the club on or before May 9, 1977.

Although this court will not reverse a trial court’s ore tenus findings of fact if they are supported by any credible evidence and are not palpably wrong or manifestly unjust, Dicon, Inc. v. Great Atlantic & Pacific Tea Co., Ala., 381 So.2d 18 (1980); First National Bank of Birmingham v. Currie, Ala., 380 So.2d 283 (1980); Gertz v. Allen, Ala., 376 So.2d 695 (1979), we will not affirm its judgment based upon these facts if its application of the law to such facts is erroneous. Borland v. Sanders Lead Co., Ala., 369 So.2d 523 (1979). We believe that the circuit court’s implicit finding that defendants were jointly and severally liable on the May 9,1977 contract signed by plaintiff, Robinson, and Ritzus as original contracting parties and were not sureties for the payment by Ritzus of all monies due plaintiff under the contract is palpably wrong and that it erred in refusing to discharge defendants from liability for breach of the contract pursuant to § 8-9-2(3) of the 1975 Code of Alabama.

Section 8-9-2 of our Code states, in part, that:

In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
(3) Every special promise to answer for the debt, default or miscarriage of another;

Thus, if a promisor promises to guarantee payment of a third party’s debt to a promisee, the promisor’s promise cannot thereafter be enforced against him by the prom-isee unless the promise was previously reduced to writing. Gregory v. Hardy, 53 Ala.App. 705, 304 So.2d 209 (1974). However, if the promise is an “original” rather than a “collateral” one, it need not be in writing to be enforceable against the prom-isor. Schiffman v. H. L. Raburn & Co., 47 Ala.App. 390, 255 So.2d 332, cert. denied, 287 Ala. 741, 255 So.2d 338 (1971).

In order to determine whether a promise is collateral, and thus within the statute of frauds, or original and not within the statute, a determination must be made as to whom the credit is actually given. If the credit is given solely to the promisor, although the goods are delivered to another, then the promise is original and not one of guaranty and not within the Statute of Frauds. [Emphasis ours.]

Toles v. Cook & Sons Lumber Co., Ala.Civ. App., 370 So.2d 1047 (1979); accord, Riteway Machine & Manufacturing Co. v. First National Bank of Tuscumbia, Ala., 374 So.2d 1361 (1979). If such credit is extended simultaneously to both the promisor and the debtor, then the promisor’s promise may also be deemed an “original” promise. Schiffman v. H. L. Raburn & Co., supra. It follows that if plaintiff sold Jimmy’s Underground A-Go-Go to defendants and Rit-zus at the same time or only to defendants or if defendants and Ritzus simultaneously obtained the benefits of owning and operating the club or if only defendants enjoyed these benefits, then defendants’ promise to guarantee Ritzus’ payment of the club’s purchase price was an original promise which did not have to be reduced to writing to be enforced by plaintiff against defendants.

As previously noted in the course of this opinion, Rucker and Robinson sold Jimmy’s Underground A-Go-Go to Cyril Ritzus, not to defendants. Although defendants reaped most of the benefits derived from the operation of the club, they did not become entitled to these benefits at the same time that Ritzus became so entitled to them. Ritzus only became manager of the club and received compensation for his services in this capacity after he signed the May 9 contract of sale. Thus, it cannot be said that plaintiff sold the club only to defendants or to defendants and Ritzus at the same time or that the benefits of operating the club devolved upon defendants alone or upon defendants and Ritzus simultaneously. Defendants’ promise to guarantee Ritzus’ payment of the club’s purchase price was a collateral promise which could not be enforced by plaintiff against them. The circuit court should have granted defendants’ motion to alter, amend, or vacate the judgment or grant a new trial, and for its failure to do so its judgment must be reversed.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY v. William T. PERSONS.
    Civ. 2479.
    Court of Civil Appeals of Alabama.
    March 18, 1981.

      Sydney S. Smith of Smith, Smith & Morgan, Phenix City, for appellant.
    J. Pelham Ferrell of Ferrell & Davenport, Phenix City, for appellee.
   BRADLEY, Judge.

This is an insurance case.

The record reveals the following undisputed facts. William T. Persons was an employee of South Central Bell Telephone Company and as such was insured under a group dental expense insurance policy issued by Provident Life and Accident Insurance Company.

Persons underwent various dental procedures from March 1978 through June 1978. All such procedures were covered services under the insurance policy. The dental procedure which produced the present dispute was that of crown restoration.

Prior to the commencement of dental work on Persons, the dentist did not complete a “pre-determination of benefits” form which Provident contends was a prerequisite to payment of benefits by Provident. In fact, there is some evidence which shows that Persons did not provide the dentist with the forms so that they could be completed.

A “pre-determination of benefits” form is an analysis by the dentist of the patient’s condition and the necessary dental work that must be done. This form is returned to the insurance company, where it is reviewed and a determination is made by Provident as to how much money will be paid by the company. X rays are supposed to be sent with the form.

It is undisputed that the dentist did not make any X rays of Persons’ mouth before he began the crown restoration. The evidence shows that the dentist knew Persons’ condition and that he saw no reason to expose Persons to any unnecessary radiation.

A claim for reimbursement of dental expenses was made to Provident on June 6, 1978. The claim was for $968.00. Provident, by letter dated July 6,1978, requested that the dentist provide pre-operative X rays for the June 6, 1978 claim. The dentist wrote Provident on July 10, 1978 advising them that no pre-operative X rays had been made since he knew Persons’ condition. However, the dentist stated he would reappoint Persons, take X rays, and forward them to Provident if Provident needed the X rays. Provident never asked that this be done.

Provident refused to pay the claim submitted by Persons on the basis of a clause in Section XI of the insurance policy. That clause provides:

The Insurance Company reserves the right at its discretion to accept or to require verification of any alleged fact or assertion pertaining to any claim for dental expense benefits. As part of the basis of determining benefits payable, X-rays and other appropriate diagnostic and evaluative material may be required. If the required diagnostic material is not submitted, benefits for the course of treatment may be for a lesser amount than what otherwise would have been payable, such lesser amount to be determined by the Insurance Company.

Suit was brought by Persons against Provident on May 30, 1979. Persons sought recovery of $1,000 for dental work performed on him under the group dental policy. Provident denied any liability beyond what benefits it had already paid to Persons.

A nonjury trial was held on February 21, 1980. At the close of Persons’ evidence Provident moved for a directed verdict which was denied. Provident then rested its case and again moved for a directed verdict which was again denied. Thereafter, judgment for Persons was entered in the amount of $614.00. Provident’s motion for a new trial was made and denied. The appeal is from the judgment and from the denial of the motion for new trial.

Provident contends that Persons has failed to prove that he has complied with the policy requirements relative to furnishing X rays to the company. We disagree.

Although Provident relies on the insurance policy and particularly on the above quoted clause to support its position that the dentist should have submitted X rays before he crowned plaintiff’s teeth, we find no such requirement in the policy in question. Section XI of the policy, which is quoted above, does not provide that X rays are required either before or after treatment. The section does provide that the company may ask for X rays and other diagnostic and evaluative material to assist it in determining what benefits to pay. But such request, as envisioned by the policy provision, comes after the insured has had the work done and has submitted a request for payment as provided by the policy.

In the instant case the dentist furnished what material he had and included an offer to make X rays and send them to the company. No response was made to this offer.

It is to be noted that an insurer may waive a provision in a policy intended for the benefit of the insurer. Employers Insurance Company of Alabama v. Crook, 276 Ala. 177, 160 So.2d 463 (1964). Moreover, the trial court could have considered the failure to respond to the offer to be a waiver of the requirement to furnish X rays.

Notwithstanding this possibility, however, we conclude that the insurance policy does not require a dentist to make X rays before he undertakes treatment that he considers necessary and that in the absence of such X rays he will not have to be paid for his services. This view of the policy provision is taken from the plain meaning of the words themselves. Words used in an insurance contract are to be construed in their natural and usual import. Canal Insurance Co. v. Stidham, 281 Ala. 493, 205 So.2d 516 (1967). Section XI of the policy merely gives to the insurer the right to request material from the dentist to aid it in deciding the validity of the insured’s claim. But the request goes only to what material the dentist has that helped him make his decision concerning a certain course of treatment. Section XI does not purport to specify what diagnostic or evaluative material or tools a dentist must use; it merely says that the materials or tools used must be made available to the insurer, if requested, to aid it in deciding whether to pay the claim for benefits and in what amount.

We do not consider that the trial court committed error in so construing the policy.

The second issue raised by the insurer concerns the amount of the judgment. The judgment was for $614.00. The maximum payable under the policy is $500.00 per person per year. The judgment exceeds the policy limits by $114.00 and the insured concedes such to be the case. Under these circumstances the most that the insured could recover of the insurer is $500.00.

Consequently, a judgment will be entered that, unless the insured files a remittitur with the clerk of this court within thirty days reducing the judgment to $500.00, the judgment of the trial court is reversed and the cause remanded. If, however, a remit-titur is filed, a judgment for $500.00 will be affirmed. Liberty Truck Sales, Inc. v. Fountain, Ala.Civ.App., 381 So.2d 646 (1980).

AFFIRMED CONDITIONALLY.

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


author: BRADLEY, Judge. HOLMES, Judge

text:
    Michael W. WISE v. Peggy K. WISE.
    Civ. 2509.
    Court of Civil Appeals of Alabama.
    March 18, 1981.
    David A. Reid, Livingston, for appellant.
    Thomas H. Boggs, Jr. of Lloyd, Dinning & Boggs, Demopolis, for appellee.
   BRADLEY, Judge.

The appeal is from an order denying a petition to modify a previous divorce decree.

The parties to this appeal were divorced on September 5, 1979 and the decree of divorce awarded the custody of the two minor children to the mother. The decree also required the father to pay $300.00 per month as basic child support, to procure hospital insurance for the children, to purchase and maintain in force a $40,000 life insurance policy on his life with the children as beneficiaries, to make the monthly payment on the wife’s car and pay her $275.00 per month for housing.

On May 20, 1980 the father filed a petition seeking a modification of the support payments due to a change in his financial circumstances. After a hearing the trial court denied the request, hence this appeal.

The record discloses the following facts. The mother presently lives with her two minor children in an apartment in Hatties-burg, Mississippi, where she works as a secretary for a local chiropractor. She earns approximately $500.00 per .month, from which she pays her utility bills, medical insurance premiums, and gasoline bills for her car. From her earnings she also purchases clothing and provides sustenance for herself and for her children.

The father presently sells new homes for a Mobile, Alabama construction company. His income is dependent upon commissions that he earns from the sale of the houses built by the company. His net take-home pay is presently $999.02 per month, which sum represents a draw on the aforementioned commissions. If the father’s income draws exceed the commissions that he has earned from the sale of the newly constructed houses, the difference between the two sums constitutes a loan from his employer to him. At the time of trial in this cause, the father’s draws had exceeded his commissions by $2,000. The father testified that, due in part to high interest rates, the market for new houses was depressed and that his employer’s total sales had declined from 1979 to 1980. Mr. Wise remarried subsequent to his divorce from appellee. His present wife brings home approximately $541.67 per month in net earnings from her job. Wise does own an undivided one-third interest in eighty acres of unimproved realty abutting the Tombigbee River, valued at $45,500.00, but this interest is subject to two mortgages totalling approximately $50,000.00.

Wise’s father loaned him approximately $38,000.00 in return for a mortgage of like amount on his interest in this realty. Although Wise used $1,874.00 of this loan to pay fines and court costs that he had incurred in two contempt of court proceedings and arrearages in monthly housing payments to his wife, he applied the greater portion of the balance of the loan to the satisfaction of bank loans and the payment of bills from materialmen and building contractors. All but $1,100.00 of the profits generated from the sale of several new houses which were owned at the time of the rendition of the divorce decree was utilized to pay the bills of materialmen and building contractors. Wise used the remaining $1,100.00 profit to satisfy part of his child support obligations under the decree of divorce.

In Travis v. Travis, Ala.Civ.App., 345 So.2d 321 (1977) we said:

Modification of a prior provision for child support in a divorce decree is a matter within the sound discretion of the trial court. The exercise of such discretion is to be disturbed on appeal only if there is such an abuse of discretion as to make the decision plainly and palpably wrong.

Moreover, we have consistently held that a divorced father has a duty to contribute to the support of his minor children according to their reasonable needs and his reasonable financial capability to satisfy those needs. See Tubb v. Middlebrooks, Ala.Civ.App., 379 So.2d 1272, cert. denied, Ala., 379 So.2d 1274 (1974). Of course, the modification of a prior child support award will be made only on proof of changed circumstances, and the burden of proof rests on the one seeking the modification. Inman v. Inman, Ala.Civ. App., 370 So.2d 1037 (1979). In this case the moving party is the father and the burden of proof rests upon him.

Based on the evidence contained in the record and which is undisputed, Wise’s present earnings amount to $499.51 twice a month. This is a draw against commissions that he will earn. As noted previously, should the draw exceed the commissions earned, the difference is treated as a loan. Wise stated that he was about $2,000 overdrawn from his employer at the time of trial.

The amount presently required of Wise as a result of the divorce decree is $890.00 per month. As can easily be seen, the requirements of the prior decree take all but $110 of Wise’s present income. Also, as he testified, his present income is based partly on a loan from his employer. Furthermore, the only other possible source of money to satisfy the divorce decree awards available to Wise is his one-third interest in a parcel of real property, but, as the evidence shows, this interest is burdened by two mortgages, the face amounts of which exceed the appraised value of that interest. No help here.

Wise stated that his present living expenses amount to about $1,200 a month. He has remarried since his divorce and has a little girl. The evidence shows that the present wife works and contributes $541.67 a month to the family income.

Without taking into consideration the fact that Wise has remarried and that his present wife works and contributes to their living expenses, which is a factor that the trial court can consider in deciding a modification petition, it is without dispute that Wise is left with $110 a month to live on after paying the amount required under the divorce decree to his former wife. As we said in Travis v. Travis, supra, such a requirement is clearly unjust. The $110 left to Wise after paying the $890 required by the decree does not allow, in this period of high inflation, even a frugal existence.

The substantial decline in Wise’s income since the divorce is a changed circumstance justifying a reduction in the amount required of him to be paid to his former wife.

Again, in Travis v. Travis we held that the only way the trial court in the cited case could have denied the petition for modification was to disbelieve the competent and unimpeached evidence. We said there that the trial court could not so act. Likewise, in the case at bar we believed that the trial court disbelieved the undisputed evidence relating to Wise’s income and his access to funds to pay the amounts awarded by the divorce decree and it was not at liberty to do so. Such error requires reversal.

The trial court’s judgment is reversed and the cause remanded to permit the court to reconsider the amount required of Wise to be paid in light of his present ability to pay. It is quite obvious that the best interests of Wise’s children will not be served by requiring him to pay an amount that the evidence shows is clearly beyond his ability to pay.

Appellee’s request for attorney’s fee on appeal is denied.

REVERSED AND REMANDED.

WRIGHT, P.J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following, to me, is pertinently revealed. The parties were divorced in September of 1979. The amount of support to be paid by the father-ex husband was agreed to by the parties. This agreement was incorporated in the decree of divorce. No appeal was taken from this decree.

At the time of the divorce the father-ex husband earned approximately $15,000 per year. The father-ex husband now, some eight months after the original divorce decree, earns approximately $14,400 per year. With these facts in mind, I do not find the trial court’s action in denying a modification of the original decree to be such an abuse of discretion as to require reversal.

In fact, it is my belief that the trial court’s action was imminently correct. See, Johnson v. Johnson, 277 Ala. 126, 167 So.2d 688 (1964), wherein the Alabama Supreme Court indicated: The worsening condition of the business in which the husband is engaged, without a concomitant reduction in the husband’s monthly salary, was not such a change in condition as to warrant modification of an award of alimony and child support.

It appears to me that what the father-ex husband is now attempting to accomplish is to extricate himself from the September decree without having taken an appeal from that decree.

I would affirm the action of the trial court.


author: HARRIS, Presiding Judge.

text:
    L. J. PETTAWAY v. STATE.
    1 Div. 58.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    Rehearing Denied May 27, 1980.
    Claude D. Boone of McDermott, Deas & Boone, Donald A. Friedlander, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst..Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was put to trial upon an indictment charging murder in the second degree. He was convicted of manslaughter in the first degree and the jury fixed his punishment at ten years in the penitentiary. He was represented by counsel of his choice and at arraignment pleaded not guilty.

The evidence was in hopeless conflict. There was no request for the affirmative charge and no motion for a new trial. At the close of the State’s case there was a motion to exclude the evidence on the ground the State had failed to make out a prima facie case.

This homicide grew out of a weekend drinking spree. The deceased was heavily intoxicated. The laboratory analysis of a sample of his blood showed an alcohol level of .36 percent. Appellant, by his own admission, started drinking on Saturday night before the shooting the next afternoon and drank himself into oblivion. He sobered up some time Sunday afternoon and decided he wanted one more drink and he went to the home of the deceased in the hopes of getting that drink. There was some testimony that the wife of the deceased operated a “hit” or “shot” house, though she denied operating such a house. When appellant arrived at the house he was told by the wife of the deceased that he could not have a drink because he still owed her a dollar for whiskey he bought the week before. Appellant denied that he owed her anything and at this point the deceased asked him if he was calling his wife a liar. Appellant was ordered off the premises and was followed by the deceased who was armed with a .38 caliber pistol. Appellant was also armed with a .32 caliber pistol.

The homicide occurred on April 30, 1978, at approximately 5:20 p. m. beside a parked car on Limerick Street, in the city and county of Mobile, Alabama. Appellant was arrested at his home on Houston Lane later that same evening and charged with the crime. At the time of his arrest he told the investigating officers that the gun he used to shoot the deceased was on the porch of his home. One of the officers got the pistol, wrapped it in a towel, and took it to the station house at the time the appellant was taken there. Later the officers learned that appellant had not surrendered to them the pistol that he actually used to shoot the deceased. Appellant took the deceased’s pistol from him but killed him with his own gun.

A witness for the State, Jerry Lewis Dooms, testified that the shooting took place next door to where he was living but across the street. He knew both the deceased and appellant. He stated that he was sitting in the living room when he heard several shots being fired and he went to the door and saw appellant grab the deceased by the arm and shoot him. He did not know how many times appellant fired the pistol but he estimated it was three or four times.

On cross-examination he stated that he saw appellant walk up to the deceased, grab his arm and start shooting. He further testified:

“Well, Jerry turned around towards, you know, the back of the car and, then, he just — he fell and I ran out there and grabbed him, you know, to see if he was dead, felt his pulse. I didn’t get nothing. I just laid his arm back down and that was it and Pettaway walked back to the truck with both of the guns and he left. He got in his truck and drove off.”

The wife of the victim testified that he arose around 10:00 or 10:30 on the morning of the day he was killed by appellant. He left home to get some cigarettes and was gone several hours. Mrs. Hinton stated that she didn’t see her husband drinking that day and that he did not appear to be intoxicated but he looked “funny out of the eye.” Shortly before the shooting the deceased entered his house and forced open a locked cabinet in the bathroom and obtained a pistol which was kept unloaded because of a young child in the house. Apparently the deceased loaded the pistol. In addition to the unspent bullets found in the weapon after the shooting six live rounds of .38 caliber ammunition were found in the pockets of the deceased by the personnel at the hospital. The gun used by the deceased was admitted into evidence as State’s Exhibit No. 11.

After loading the pistol the deceased got in his automobile and partially backed it into the street and left it there with the motor running. Mrs. Hinton walked to the street and saw her husband and appellant walking down the street, side by side, with her husband holding the .38 caliber gun in his hand. She heard her husband fire one round into the ground at which time she ran inside the house to call the police. While inside the house she heard what sounded like two more shots from the same weapon. She came back outside the house to the street and saw her husband and appellant approach a black Pontiac Bonneville automobile with appellant stepping to the right of this car and her husband going to the left of the car. She then saw appellant pull his gun and heard another shot which sounded lighter than the earlier shots. She immediately returned to the house to call the police again and while in the house she heard additional shots being fired which sounded like a .32 caliber pistol. Mrs. Hinton further testified that she did not see a weapon in appellant’s hand until after she observed her husband firing his pistol toward the ground. When she saw the pistol in appellant’s hand both he and her husband were shooting at each other.

Clarence Dooms testified that he lived across the street from the deceased and he saw the deceased and appellant walking down the street five feet apart but side by side. During this time he saw the deceased firing his pistol into the ground several times. He then heard the deceased say to appellant, “Let’s go,” and he went back inside his house and did not see the deceased when he was actually shot. After the shooting ceased Mr. Dooms saw the deceased lying on the ground at the rear of the black Pontiac car.

It was stipulated that the cause of death was the two .32 caliber bullets removed from the body of the deceased and they were admitted into evidence. Also admitted into evidence were a .38 caliber Omega revolver, three .38 live rounds, three .38 caliber spent cartridges, as well as numerous other exhibits in the form of photographs of the scene and body of the deceased.

Ms. Alille Pillman, Director of the Mobile Crime Laboratory, whose qualifications were admitted, identified the various bullets and photographs, and stated that she examined a blood sample from the deceased, provided to her by the Coroner’s Office, and that it had a .36% ethyl alcohol content. She further stated that a person with this level of alcohol would be very, very intoxicated.

The State sought to prove a statement made by appellant while in custody which was taken by Gerard Frank Bolton, Jr., a detective with the Mobile Police Department. Detective Bolton, while assisting Sergeant Robert Moore in the investigation of the homicide, went first to the scene of the shooting and then to the home of appellant on Houston Lane approximately thirty minutes after the shooting. When he arrived at the appellant’s home he found that two other officers, Sergeant Wayne I vie and Lieutenant Mair, had appellant under' arrest and he was seated in a police patrol car. He also learned that these officers had advised appellant of the Miranda rights and warnings. Appellant was transported to the station house where Officer Bolton again advised appellant of his constitutional rights. A document entitled, “Waiver of Rights and Counsel by Defendant in Custody,” signed by appellant was admitted into evidence without objection.

Over appellant’s objection the State was permitted to prove an oral statement made by him to Officer Bolton. Officer Bolton had previously testified that at the time the waiver of rights was signed, and at the time he made the oral statement, he was intoxicated. The trial court denied repeated requests by defense counsel that all preliminary questioning and voir dire concerning the voluntariness of the statement be made out of the presence of the jury. Counsel for appellant then objected to the trial court’s action in not conducting a voir dire hearing on the voluntariness of the statement out of the presence of the jury. The court overruled the objection.

The trial court then allowed Officer Bolton to testify that appellant told him that he argued with the deceased about some money and that the deceased pulled a gun on him, that appellant pulled a knife after the deceased shot at him, and appellant took the pistol away from the deceased and shot him with his own gun.

The State then undertook to prove by Officer Robert Moore that appellant made a second statement which was reduced to writing. Officer Moore testified that he interviewed appellant after he had been advised of his rights by Officer Bolton but he did not advise him of his rights. The conversation between Officer Moore and appellant occurred about forty minutes after appellant had signed the waiver of rights form in the presence of Officer Bolton. Officer Moore stated he smelled alcohol on the breath of appellant but he did not feel that appellant was intoxicated at that time though he was not in a position to give an opinion as to the condition of appellant at the time he executed the waiver of rights form. This statement was then offered into evidence by appellant.

The statement is as follows:

“STATEMENT OF: L. J. Pettaway
“REE: Murder 1st. 78004-11158
“TIME: 7:00PM 4-30-78
“Approximately 2:30PM I went over to Jerry Hinton’s house on Limrick Street. Jerry and myself talked for a while and then Jerry’s wife told me that I owed her a dollar. She said that I owed her the money for whiskey that I had got last week. I told her that I did not owe her any money. Jerry then said that I was calling his wife a liar and I told him that I was not, but I did not owe her any money. Jerry then started raising sand and I left to get in my truck. Jerry followed me to my truck and pulled a gun. I left my truck and started walking down the street. Jerry then started shooting at me. I then turned around and pulled out my little pocket knife. I told him what I would do to him. Jerry got close to me and I snatched the gun from him and then I shot him. I do not know how many times I shot him, but he fell when I shot him. I kept the gun and went to my house and waited for the Police to get there. When the Police came they asked me what my name was and when I told them who I was I walked out to the street to meet the police cars. I told them where the gun was. It was laying on the porch. The officers took the gun, wrapped in a towel, and brought the gun and myself to the Police Station. “This is a true and correct statement to the best of my knowledge and belief.
SIGNED: L. J. Pettaway
“WITNESSES:
/s/ Sgt. Robert Moore.”

Maggie L. Jackson testified that she lives at 1502 Limerick Street in Mobile and that she had been to church that Sunday morning. She returned from church around 1:30 p. m. and saw the deceased and appellant. The deceased was parked on Limerick and appellant was making an attempt to remove him from the car. She stated that appellant opened the car door but the victim closed it again and drove away. Appellant then went to his truck and got a pistol and put it down by his side.

On cross-examination this witness stated the Hintons ran a place “where people come in and buy liquor, beer, whiskey, whatever.” She said they ran a little “hit” house. She did not see any blows struck or shots fired. She did not hear any words spoken, that both men “seems like they were taking it cool, you know,” and were talking; that the deceased did not get out of his car.

Henry Bell, Jr., testified that he lived up the street from the Hinton residence, and that around 9:00 or 10:00 o’clock on the morning of the day the deceased was killed, he observed appellant drive his truck and stop it on Limerick Street. He got out of his truck and flagged the deceased down and they were having a discussion and appellant attempted to remove the deceased from his car. He was pulling on the door of deceased’s car but the deceased sped away. He then saw appellant remove something from his truck, wave it in the air, and heard him say, “I will get you.” He said he could not tell what appellant got from his truck and waved in the air. He further stated that he did not see the shooting. He went into his house and while he was lying down he heard some shots being fired. He went back outside and saw the deceased lying on the ground behind Mr. Robert Hale’s car. He did not see a weapon around the body of the deceased.

Appellant testified in his behalf and said he knew the deceased and his wife for many years. He had been in their house many times prior to the day of the shooting. He and the deceased rode to work together and came to know each other through drinking. Appellant worked on Saturday before the shooting on Sunday afternoon. He drank quite heavily Saturday night and again Sunday morning. He took a nap Sunday morning and when he awoke he started drinking again and continued to drink until he consumed all the whiskey he had in the house. Later on Sunday afternoon he decided he wanted another drink and he went to the home of the deceased to get something to drink. He said that Mrs. Hinton refused to sell him any more whiskey as he owed her a dollar for whiskey from the week before. He denied he owed her for whiskey previously purchased. According to appellant’s testimony the deceased accused him of calling his wife a liar and he told the deceased that he was not calling his wife a liar and left the premises to get in his truck. As he approached the truck he was told by the deceased not to get in the truck but to get out into the street. Appellant looked back and saw the deceased with a gun in his hand, that deceased started firing it, and told appellant to put his hands up. As they walked down the street the deceased cursed him and told him he was going to kill him. After the deceased fired his gun the third time appellant pulled his pistol from his pocket and turned toward the deceased and started firing. As the deceased started falling appellant took both guns and went home. When the police arrived he told them the pistol he used to shoot the deceased was on his porch and the police got the pistol and placed it in a towel and he was taken to police headquarters. The pistol which the police got from appellant’s porch was a .38 caliber pistol which belonged to the deceased and was not the pistol he used to shoot the deceased. The police found out much later that appellant told them a lie about the pistol he used to kill the deceased. He finally admitted that he told the officers a lie because he was scared. Appellant further stated that as far as he knew he never went to the house of the deceased prior to the shooting.

On cross-examination appellant denied that he and the deceased were walking side by side but that he was a few feet in front of him when the deceased was shooting his pistol. He did not know in what direction the deceased was firing his pistol. He admitted that he shot the deceased three times. After he shot the deceased the first time he saw him lean over and he shot him the second time and observed him lean over further and then he shot him the third time and saw him fall. He then took the pistol from the deceased and went home. He denied pulling a knife on the deceased and denied that he grabbed him by the arm and held him while he was shooting.

He said that State witnesses Maggie L. Jackson, Henry Bell, Jr., and Jerry Lewis Dooms were untruthful in their testimony. He admitted that he did not tell the officers the truth as he was just afraid. He felt that he was acting in self-defense in shooting the deceased.

There are only two issues presented on this appeal seeking a reversal. Appellant strongly contends the trial court erred in overruling his motion to determine the vol-untariness of his alleged confession on a voir dire hearing out of the presence and hearing of the jury. We agree.

In Duncan v. State, 278 Ala. 145, 176 So.2d 840, the Supreme Court of Alabama, relying on Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 held:

“We are clear to the conclusion that whenever a motion is made for the question of the voluntariness of the confession to be determined outside the presence of the jury, the motion should be granted. In such a hearing, the trial judge sitting alone should make a determination upon a proper record of the issue of voluntariness. At such a hearing the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained. By so doing, the defendant will not waive his right to decline to take the stand in his own defense on the trial in chief nor will he waive any of the other rights stemming from his choice not to testify. If the confession is held voluntary and admitted, the jury’s consideration of that confession and surrounding circumstances shall proceed in accordance with the ‘Orthodox’ procedure, that is, the jury considers the voluntariness as affecting the weight or credibility of the confession.”

In disposing of the Jackson case the Supreme Court of the United States stated:

“Jackson’s position before the District Court and here, is that the issue of his confession should not have been decided by the convicting jury but should have been determined by a proceeding separate and apart from the body trying guilt or innocence. So far we agree and hold that he is now entitled to such a hearing in the state.”

In Duncan, supra, the Court went on to say:

“Aside from the statement which we have just quoted, there is much in the lengthy opinion which leads us to the inevitable conclusion that the Supreme Court of the United States will not uphold a conviction where the question as to the voluntariness of the confession is presented in the presence of the jury if a request for a hearing outside the presence of the jury is made.” (Emphasis supplied.)

The Court further noted in Duncan, supra, that all the State courts which have considered the question have construed Jackson to so hold. (Citing ten State cases).

In Taylor v. State, 42 Ala.App. 634, 174 So.2d 795, the Court held:

“The confession of an accused in a criminal case is prima facie involuntary, and therefore inadmissible unless affirmatively shown by the prosecution to have been made voluntarily; and admissibility of the confession is determined by the trial court. Phillips v. State, 248 Ala. 510, 28 So.2d 542.
“Before the voluntariness of the confession is determined by the trial court, the court should receive and hear any testimony offered by the accused tending to show that the confession was not made voluntarily. Jackson v. State, 83 Ala. 76, 3 So. 847; White v. State, 260 Ala. 328, 70 So.2d 624, and the accused should be given the opportunity to present such testimony on voir dire, in the absence of the jury.” (citations omitted)

To the same effect is the holding of this ' court in Reynolds v. State, Ala.Cr.App., 346 So.2d 979, wherein Judge Bowen held that the proper procedure for determining the admissibility of a proposed confession is for the defense attorney to move to suppress and for the trial court to hold a voir dire examination outside the presence of the jury.

We hold the trial court erred to a reversal in refusing to grant appellant’s motion to hold a voir dire hearing out of the presence and hearing of the jury.

In view of our holding we do not deem it necessary to treat appellant’s other contention for a reversal.

REVERSED AND REMANDED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte State of Alabama. (Re L. J. PETTAWAY v. STATE of Alabama).
    79-692.
    Supreme Court of Alabama.
    March 27, 1981.
    Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for petitioner.
    Claude D. Boone of McDermott, Deas & Boone and Donald A. Friedlander, Mobile, for respondent.
   ALMON, Justice.

The Writ of Certiorari to the Court of Criminal Appeals is quashed as improvidently granted.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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


author: DeCARLO, Judge.

text:
    Joel Knox HAMILTON v. CITY OF BIRMINGHAM.
    6 Div. 14.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    Rehearing Denied June 17, 1980.
    Russell T. McDonald, Jr. and Roger A. Brown of McDonald, Brown & Tipler, Birmingham, for appellant.
    Rowena M. Crocker, Asst. City Atty., Birmingham, for appellee.
   DeCARLO, Judge.

Assault and battery; twenty-five dollars and 120 days hard labor.

The City of Birmingham complained that Joel Knox Hamilton “did unlawfully commit an assault and battery upon Ray Williams by hitting him about the head with a baseball bat contrary to and in violation of Section 36-5 of the General Code of the City of Birmingham, Alabama, 1964, as amended.”

The appellant was tried by a jury and found guilty. He was given a fine of twenty-five dollars and as additional punishment, was sentenced to perform hard labor for 120 days.

At trial, Ray Williams testified for the City of Birmingham that, about 1:00 A.M., on September 23, 1978, he was standing in front of his house talking with several friends when the appellant, driving approximately 45 or 50 miles per-hour, sped by them. According to Williams, the appellant’s car “ran” a stop sign, hit a speed breaker, and nearly hit several cars parked on the street. Williams yelled to the appellant to “slow it down or go somewhere else.”

After speeding by the house several more times, the appellant stopped and asked who had yelled at him. The witness stated that a friend, Ken Goodwin, noticed a wooden bat held by the passenger in appellant’s car. Goodwin reached in the car, grabbed the bat and placed it on the top of the car. Williams said that the passenger retrieved the bat, then the appellant drove away.

About fifteen minutes later, the appellant returned with six other people. According to Williams, the appellant got out of his car and said, “Where is that son-of-a-bitch, I’m going to give his some of this bat.” The appellant approached Williams, who testified, “I was trying to get him to calm down, and to put the bat down and I told him there was no sense in doing this, that it was no big deal — all he had to do was go somewhere else, and that we didn’t want any fight, and made no action at all to hit him or anything.” The witness denied having anything in his hand at that time.

According to Williams, he turned his head slightly and was hit and knocked unconscious by the appellant. Williams was taken to a hospital where he was treated for a cut on the top of his head.

On cross-examination, Williams acknowledged that, during the entire incident, he was leaning against a truck with arms folded. He denied hitting anyone.

Williams’ testimony was corroborated by five witnesses who were with him on the night in question. Three of those witnesses testified that they saw the appellant hit Williams with the bat.

Perry Morris, a witness for the appellant, testified that he was a passenger in the appellant’s car on the night in question. The witness stated on cross-examination that, when he got out to get the bat off the roof of appellant’s car, he was pushed and shoved by persons whom he could not identify. Morris denied seeing anyone hit with the bat, and he denied returning to appellant’s home after leaving it.

The appellant testified that, after he got out of his car, he was “pushed and hit.” He denied doing anything, prior to that time, to threaten the victim.

On cross-examination, the appellant stated that, after he was “pushed to the ground” and “kicked ... in the head,” he started fighting with Williams. Describing the fight, the appellant said, “Just a couple of swings on each side and I heard Perry or Randy one, I’m not sure, say, ‘Let’s go, let’s go,’ so I jumped back in the car.” When the appellant was asked if he had hit anyone with the bat, he answered, “No ma’am, the only thing I know is I didn’t ‘cause I was involved in that fight at that time.” The appellant stated that his injuries consisted of a busted lip.”

Randy Freeman testified that he was a passenger in the back seat of appellant’s car on the night of the alleged incident. According to Freeman, he never saw the appellant with a baseball bat.

On cross-examination, the witness admitted that he had not actually seen the appellant get kicked in the head. Freeman denied seeing anyone get hit with a baseball bat.

As rebuttal evidence, the City of Birmingham recalled three witnesses who all testified that they had not seen Perry Morris on the night in question and that Perry Morris was not the passenger who retrieved the bat from the roof of appellant’s car.

I

Appellant first contends that the trial court committed reversible error by giving the following instructions to the jury:

“If after a full and fair consideration of all or part of the evidence there remains in your minds an abiding conviction that the defendant is guilty as charged then you have been convinced beyond a reasonable doubt, and in that event, the defendant should be found guilty.”

The appellant argues that this instruction authorizes the jury to “convict a defendant after considering only part of the evidence in the case,” and that such authorization is prejudicial error.

A jury must consider all of the evidence before reaching a conclusion regarding a defendant’s guilt or innocence. See Gautney v. State, 284 Ala. 82, 222 So.2d 175; Lee v. State, 265 Ala. 623, 93 So.2d 757; Dillard v. State, Ala., 371 So.2d 947, reversed, Ala.Cr.App., 371 So.2d 946, on remand, Ala.Cr.App., 371 So.2d 948.

See also, the following cases, Gosa v. State, 273 Ala. 346, 139 So.2d 321; Brooks v. State, Ala.Cr.App., 353 So.2d 1, and Steen v. City of Birmingham, 36 Ala.App. 343, 55 So.2d 861. The foregoing cases reiterate that the entire charge should be looked to and construed together where part of an oral charge is erroneous. In Steen, supra, the appellant argued that the court’s charge pretermitted consideration of all the evidence by the jury.

In Steen v. State, supra, this court stated: “It is of course axiomatic that portions of an oral charge to which exceptions are taken must be considered in their context and with the whole charge. If the charge as a whole correctly expresses the law, defects in particular instructions are not grounds for reversal where the jury is not misled. Certainly error cannot be predicated on a portion of a charge, lifted from its context, where the whole charge clearly and correctly states the applicable law.”

In the present case, the complained of instruction was followed by another instruction which, in our judgment, cured any error which may have been committed. That instruction charged:

“If after a full and fair consideration of all the evidence in the case, ladies and gentlemen, you are convinced beyond a reasonable doubt of the guilt of the defendant, the form of your verdict is, ‘We, the jury, find the defendant guilty as charged in the complaint and fix the punishment at a fine of,’ it can be from one cent to five hundred dollars.”

A correct expression of the law was present in this subsequent instruction; therefore in our judgment the jury was not misled and no error prejudicial to the appellant was committed.

II

Appellant’s second contention is that the trial court committed reversible error by failing to “include self-defense in its oral charge to the jury.” After the trial court had completed its charge to the jury, the record reveals that the following occurred:

“MR. BROWN: We except. We except to the lack of a charge. On a defense in the face or presence of provocation being —well, I should have prepared a written charge. I except not to its being said, but unsaid and should be a charge—under the rights of an individual to defend themselves under attack by use of reasonable force.”

Section 12-16-13, Code of Alabama 1975, states:

“Charges moved for by either party must be in writing and must be given or refused in the terms in which they are written, and it is the duty of the judge to write ‘given’ or ‘refused’ as the case may be, on the document and sign his name thereto, which thereby becomes a part of the record.”

In Smith v. State, 53 Ala.App. 657, 303 So.2d 157, this court said:

“[Wjhere a party desires the court to extend its oral charge to cover some applicable law in the trial of a case, his remedy is to request a written charge on the subject, which if refused would protect the record and present the matter to the Appellate Courts.... [I]f the objection is to the court’s refusal or omission to charge on a particular subject applicable under the evidence the procedure is by way of a requested written charge. “A failure to pursue [this remedy], if proper and applicable to the case, is a waiver of a review by this court as to the matters in question.”

The record reveals that the appellant did not make a written request for a charge regarding self-defense; therefore, the appellant did properly preserve the question for review by this court. See Hali v. State, Ala.Cr.App., 375 So.2d 536; Boy v. State, Ala.Cr.App., 375 So.2d 1289.

Although we hold that the review of the matter by this court was waived, it is our judgment that the trial judge did not err when he refused to charge the jury on self-defense. In Davidson v. State, 211 Ala. 471, 100 So. 641, the Alabama Supreme court held that requested instructions which are inapplicable to the evidence are properly refused. Also, in Gautney v. State, supra, the court stated:

“[W]here there is no evidence of self-defense, written requested charges which deal with that subject are properly refused.”

The record in the present case reveals no evidence of self-defense on the part of the appellant. He was charged with hitting Ray Williams with a baseball bat. At the trial, the appellant denied hitting anyone with a baseball bat. If the appellant denies committing the act of hitting Williams with a bat, then he cannot possibly assert self-defense. The appellant cannot assert as a defense an act which he denies ever having committed.

Therefore, the judgment of conviction by the Jefferson Circuit Court should be affirmed.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice. MADDOX, Justice

text:
    Ex parte Joel Knox HAMILTON. (Re Joel Knox Hamilton v. City of Birmingham).
    79-736.
    Supreme Court of Alabama.
    Feb. 5, 1981.
    Russell T. McDonald, Jr. and Roger A. Brown, Birmingham, for petitioner.
    Rowena M. Crocker, Birmingham, for respondent.
   FAULKNER, Justice.

Petitioner, Joel Knox Hamilton, was convicted of assault and battery in the Circuit Court of Jefferson County. He was fined twenty-five dollars and was sentenced to one hundred twenty days’ hard labor. The Court of Criminal Appeals affirmed, 396 So.2d 120, the conviction and sentence. This Court granted certiorari to determine whether an erroneous jury instruction was cured by a subsequent instruction in the oral charges. We hold that it was not.

The Court of Criminal Appeals found that the trial judge’s subsequent oral charge instructing the jury to consider “all the evidence” cured the defectiveness of an earlier charge instructing the jury to base its conclusion of guilt or innocence on a “full and fair consideration of a 11 or part of the evidence.” There is no doubt that the Court of Criminal Appeals correctly stated the law upon which its holding was predicated. We find, however, that in this particular instance, the defective charge, even when construed in the context of the entire charge, was not sufficiently cured by the subsequent charge.

Defective language appeared within the text of the oral charge at least three times, while the allegedly curative language appeared only once in the midst of the erroneous language. Most likely, the trial judge inadvertently transposed the “part” language from the charge on the determination of reasonable doubt, where it was appropriate, to the charge on the consideration of the evidence, where it was error. Mere inadvertence, however, will not sustain an otherwise defective or misleading jury charge. Although all of the evidence must be considered by the jury, Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969), reasonable doubt may arise out of only a part of the evidence, Tillman v. State, 360 So.2d 1074 (Ala.Cr.App.1978).

We hold that the entire charge, as given, was confusing and misleading. The judgment of the Court of Criminal Appeals is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

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

MADDOX, J., dissents.

MADDOX, Justice

(dissenting).

As I read the opinion of the Court of Criminal Appeals, that court recognized the problem with the trial court’s instructions, but determined that the error was not prejudicial. Ordinarily, the application of the harmless error rule will not be reviewed on certiorari unless authorized by statement of facts in the opinion. Harris v. State, 247 Ala. 194, 23 So.2d 514 (1945). Assuming, however, that the opinion of the Court of Criminal Appeals does contain a sufficient statement of facts to authorize a review of the application of the harmless error rule by that court, in this case, I would apply the same harmless error rule as that court did.

      . “If after a full and fair consideration of all the evidence in the case, ladies and gentlemen, you are convinced beyond a reasonable doubt of the guilt of the defendant, the form of your verdict is, ‘We, the jury, find the defendant guilty as charged in the complaint and fix the punishment at a fíne of,’ it can be from one cent to five hundred dollars.”

      . “If after a full and fair consideration of all or part of the evidence there remains in your minds an abiding conviction that the defendant is guilty as charged then you have been convinced beyond a reasonable doubt, and in that event, the defendant should be found guilty.”


author: PER CURIAM.

text:
    Joel Knox HAMILTON v. CITY OF BIRMINGHAM.
    6 Div. 14.
    Alabama Court of Criminal Appeals.
    March 17, 1981.
   PER CURIAM.

REVERSED AND REMANDED ON AUTHORITY OF THE SUPREME COURT OF ALABAMA, 396 So.2d 123. NO OPINION.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Thomas Martin MURRAY v. STATE.
    8 Div. 301.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    Rehearing Denied Jan. 20, 1981.

      Jerry R. Knight of Hardwick, Knight & Belser, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F.. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOOKOUT, Judge.

Appellant was adjudged guilty of felony possession of marijuana. At a subsequent probation hearing, the trial judge sentenced him to a term of six years in the penitentiary. The sentence was reduced to three months in the county jail at hard labor with a suspension of the balance of the six year term. The trial judge also placed the appellant on probation for five years and fined him $5,000. Because the key issue in this case involves the warrantless search of the appellant’s automobile, it is necessary to go into the facts and circumstances leading up to and surrounding the search.

On the morning of July 19, 1978, Robert Grant, a Hartselle police officer assigned to the Morgan County Drug Unit, received a telephone call from an unidentified female informant. The anonymous caller told him that Thomas Martin Murray from St. Pe-tersburg, Florida, was in the Decatur area transporting and selling large quantities of marijuana. She apprised Officer Grant that appellant would be driving a 1973 Mazda automobile containing approximately 100 pounds of marijuana. She further identified two local buyers: John Strome and an undisclosed person who was still under investigation by law enforcement agencies at the time of trial. She did not explain to Officer Grant how she secured her information. Grant admitted that the unidentified female informer had never tipped the police before and did not know prior to appellant’s arrest whether she was a habitual liar or whether she was a trustworthy, credible person.

Immediately following the informant’s call, Grant telephoned the St. Petersburg police narcotics division. He spoke with Detective Jim Rainey who informed him that the appellant had been under investigation since 1974 for narcotics trafficking. However, Detective Rainey did not confirm appellant’s ownership of a Mazda automobile and failed to recognize the names of the two Decatur buyers revealed by the informant.

Neither the appellant, Strome, nor the undisclosed buyer was under investigation by Decatur authorities before this telephone tip although the undisclosed buyer was a suspect in other illegal activities. Later, on the same day, Grant did verify the undisclosed buyer’s address furnished by the unidentified informant.

At approximately 9:30 a. m. on July 20, 1978, Deputy Walter Price of the Morgan County Sheriff’s Department received a telephone call from an unidentified female informant. Officer Grant was in his office when the call came in, and it was Deputy Price’s opinion that the same woman placed both of those calls. She related that the appellant lived at 406 Bradley Street, S.W., in Decatur, and that he drove a 1973 Mazda automobile with blue tinted windows. She disclosed that the appellant had arrived in the Decatur area the night before and would depart around noon that day en route to Florida with a large quantity of marijuana in the trunk of the car. She told the deputy sheriff that Strome owned a white Honda automobile and worked at Champion Paper Company. She also gave an approximate address of both Strome and the undisclosed buyer. Deputy Price conceded that he did not know the identity of the informer and had never spoken with her before this particular telephone call. He had never heard of John Strome or the appellant until Officer Grant recounted his telephone conversation of the day before to him.

After the second telephone tip, Deputy Price and Officer Grant proceeded to the Bradley Street address where they observed a white Honda, a gold Ford Fiesta, and a blue Mazda with blue tinted windows parked in the front yard. They ran a registration check on the license plate of the Mazda which revealed that the automobile was registered to Thomas Martin Murray residing at 406 Bradley Street, S.W., Decatur, Alabama. Around 10:00 a. m. they set up a surveillance of the residence accompanied by Jim Cox and Tom Little of the Alabama Alcoholic Beverage Control Board and Decatur policeman Ed Taylor.

At 11:30 a. m. a woman with a small child walked out of the house and drove away in the gold Ford Fiesta. A few minutes later the appellant emerged from the house and removed two large bags of dog food from the trunk of the white Honda and leaned them against the closed garage door. He also took out a small brown paper bag and carried it to the blue Mazda. He then got under the car and lay there for a few minutes appearing “to be doing something under the front end of the Mazda.” Then he got up, put the paper bag into the trunk of the Mazda, opened the garage door, placed the dog food inside the garage, and went back inside the house. Shortly after noon the appellant appeared outside again, closed the trunk of the Mazda, and walked to the next-door residence of an off-duty deputy sheriff to help him start his car. After a short time he returned to his residence and, just as appellant started to go inside the house, the woman and child reappeared in the gold Ford Fiesta, and he walked back into the yard. Another man, identified later as John Strome, came out of the house and stood by his car while he watched the appellant turn the Mazda around and back the vehicle partially into the garage. The surveillance team saw the appellant moving around the open trunk in the rear of the garage before he closed the trunk. Then both men went inside the house. At 12:55 p. m. they both walked outside again. Appellant procured a Doberman pinscher from his back yard, put the dog in the back seat of the Mazda, and drove away.

Agent Cox radioed this information to the other investigators. Agent Little and Officer Taylor began following the appellant’s vehicle as soon as it left Bradley Street. A few miles away, on Highway 67 in Morgan County two turnoffs before reaching 1-65, they turned on the blue light and stopped the appellant. The appellant pulled off the road and walked to the back of his automobile where the police vehicle had stopped. Appellant gave the officers his Florida driver’s license upon their request, although they never told the appellant why they were stopping him.

Deputy Price drove up and, after identifying himself, asked the appellant if he could search the Mazda. Deputy Price admitted that the appellant answered, “I would rather you wouldn’t,” but, nevertheless, the deputy sheriff walked to the driver’s side of the car to take the keys out of the ignition. He considered the large Doberman pinscher in the back seat and inquired whether the dog would bite, whereupon the appellant said that it would. The appellant then reached in the car himself and removed the keys and handed them to the deputy. Deputy Price opened the trunk and discovered an 18" X 20", 40 pound cube of plant material which appellant’s counsel stipulated at trial was marijuana. Deputy Price then placed the appellant under arrest for felony possession of marijuana.

At the conclusion of the State’s case, appellant’s motion to exclude the evidence on the ground the State failed to prove a pri-ma facie case was denied. Appellant rested his case without testifying and without presenting any witnesses on his behalf.

Appellant contends that the trial court committed reversible error by admitting into evidence, over objection, testimony and physical evidence which were the “fruits” of an illegal warrantless search of his automobile.

It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Those exceptions are succinctly set out in Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973):

“(1) In ‘plain view,’ see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
“(2) With ‘consent’ voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
“(3) As ‘incident to a lawful arrest,’ see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
“(4) In ‘hot pursuit’ or ‘emergency’ situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton (Mo.1970) 454 S.W.2d 481;
“(5) Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and,
“(6) In ‘stop and frisk’ situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).” (Footnote omitted.)

Because the search at issue in this case was conducted without a warrant issued upon probable cause, it can pass constitutional muster only if it is shown that it falls within one or more of the above exceptions. The burden is on the State to make such a showing. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Gaioni v. Folmar, 460 F.Supp. 10 (D.C.Ala.1978); Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520 (1970); Adair v. State, 53 Ala.App. 251, 298 So.2d 671 (1974); Kelley v. State, 55 Ala.App. 402, 316 So.2d 233 (1975); Minnifield v. State, Ala.Cr.App., 390 So.2d 1146 (1980). The State argues that the case sub judiee falls within both the consent exception and the probable cause/exigent circumstances exception to the warrant requirement.

I

The record in the instant case fails to meet the standard required to affirmatively establish consent. “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Clear and convincing evidence of waiver is required, and the burden of proving waiver is on the party claiming it, i. e. the State. Rueffert, supra.

The failure to inform the accused of his right to refuse to consent is a factor to consider in determining voluntariness, but is not given controlling significance. Weatherford v. State, Ala.Cr.App., 369 So.2d 863, cert. denied, Ala., 369 So.2d 873 (1979). “Further, the State must prove there was no duress or coercion, express or implied. The consent must be unequivocal and specific, and freely and intelligently given. There must be clear and positive testimony.” Hardy v. State, 53 Ala.App. 75, 78, 297 So.2d 399 (1974). Courts indulge in every reasonable presumption against waiver of fundamental Fourth Amendment rights. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965). “An open door is not a waiver of such rights.' A peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.” Knox v. State, 42 Ala.App. 578, 582, 172 So.2d 787 (1964).

In United States v. Smith, 308 F.2d 657 (2nd Cir. 1962), it was stated:

“When a law enforcement officer knocks at the door, identifies himself, and asks to be allowed to search the premises, the acquiescence thus obtained is generally not considered to be voluntary consent. ...”

Likewise, in Henderson v. State, 49 Ala. App. 275, 270 So.2d 822 (1972), this court held that a mere showing that an accused gave officers the keys to her car upon their request to search it was insufficient to show a voluntary waiver of her Fourth Amendment rights.

In Henderson, supra at 277, this court stated:

“When the State relies upon consent to justify a search and seizure of evidence to incriminate, the consent must be given under circumstances to justify a waiver of known rights. This is not a matter that can be presumed, but the State had the burden of proving that the consent or waiver was given voluntarily without inducement or coercion and with knowledge of the right to refuse the request to search.... ” (Citations omitted.)

The facts in Henderson are closely akin to those in the instant case concerning the presumed waiver. There, the record showed the officers had the accused in custody and asked if they could search her car. She stated that they could. The record was silent as to the absence of any coercion or intimidation or as to any inducement offered to obtain consent. There, as in the instant case, the State failed to go beyond the mere request of the officers to conduct the search.

In the instant case, the appellant did not give verbal permission to search his car. He in fact stated that he would rather not submit to a search. Nevertheless, one of the officers attempted to take the keys from his car in order to search the car trunk. When he was thwarted by appellant’s dog, the record only shows that appellant reached in the car and got the keys for the officer. That was apparently to .prevent the officer from being bitten or to prevent injury to his dog, for it was apparent from the record that the officers were going to search the car with or without the appellant’s consent. The instant record more strongly shows a lack of consent than the record in Henderson, supra, wherein the search was held to be illegal. We therefore conclude that the State failed to establish a valid consent to search. Whether the search was legal then rests upon whether exigent circumstances existed coincidental with probable cause.

II

The State insists that the “exigent circumstances coincidental with probable cause” exception should be applied in this case. We disagree.

It is evident from the language of the Fourth Amendment that a search warrant may only be issued upon an affidavit which sets forth enough facts to establish probable cause. Before a warrantless search can be conducted, there still must exist facts and circumstances which constitute probable cause since the amendment requirements cannot be less stringent than when a warrant is obtained. The legality of the warrantless stop and search of appellant’s automobile turns on whether the law enforcement officers had probable cause to believe that it contained contraband. Exigent circumstances existed in the instant case due to the use of the automobile. Rickman v. State, Ala., 361 So.2d 28 (1978). Therefore, the remaining issue is whether probable cause existed coincidentally.

In Fennell v. State, 51 Ala.App. 23, 29, 282 So.2d 373, cert. denied, 291 Ala. 778, 282 So.2d 379 (1973), the Alabama Supreme Court stated:

“Reasonable ground for belief of guilt or probable cause means more than a good faith suspicion. Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed .. .. ”

Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Baker v. State, Ala.Cr.App., 340 So.2d 854, cert. denied, Ala., Ex parte Baker, 340 So.2d 860 (1976).

Many cases have recognized that probable cause may be based solely upon hearsay information provided by an unidentified informant. Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Clenney v. State, 43 Ala.App. 622, 198 So.2d 289 (1966); Hatton v. State, Ala.Cr.App., 359 So.2d 822, writ quashed, Ala., 359 So.2d 832 (1977); Waters v. State, Ala.Cr.App., 360 So.2d 347, cert. denied, Ala., 360 So.2d 358 (1978). A tip may supply the basis for probable cause in and of itself where it discloses: (1) some of the underlying circumstances which justify a conclusion that the informer is credible or his information is reliable; and (2) some of the underlying circumstances tending to demonstrate that, in the specific instance in question, he has drawn his conclusion of criminality in a reliable manner. Aguilar, supra; Hatton, supra. These two tests constitute the dual “prongs” of Aguilar, the “veracity prong” and the “basis of knowledge prong.”

“They constitute the initial standard to be applied in assessing the probative value of an informant’s information. If the tip fails one of these prongs, the informant’s report may still constitute the sole basis for a finding of probable cause if the information provided is in such detail and minute particularity that a ‘magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.’ This is the self-verifying tip. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Less detailed information from a reliable source may also be used as grounds for a finding of probable cause where the key elements of the tip are verified or corroborated. Ex parte State ex rel. Attorney General v. State, 286 Ala. 117, 237 So.2d 640 (1970); Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). Finally a tip that will not meet any of these standards may still be used in conjunction with a number of other factors of ‘further support’ to show probable cause.” Hatton, supra, at 826. (Emphasis added.)

The rationale behind requiring a showing of credibility and reliability is to prevent searches based upon an unidentified informant’s tip that may not reflect anything more than idle rumor or irresponsible conjecture. The mere conclusion of an informant is not sufficient to establish probable cause. Roberson v. State, Ala.Cr. App., 340 So.2d 459 (1976); Young v. State, Ala.Cr.App., 372 So.2d 409 (1979). “There is no litmus paper test for determining probable cause,” Hatton, supra, at 829, and each case must be determined in light of its own unique facts and circumstances.

Examining the totality of circumstances here, we find that the warrantless stop and search of appellant’s vehicle was constitutionally impermissible because the State failed to prove probable cause. The record in the instant case furnishes no basis for the informant’s information or assertions as to the credibility and reliability of the informant. The record is absolutely silent as to how the informant obtained her information about the appellant and his activities. Moreover, the record shows that the law enforcement officers never knew the identity of the informer and, therefore, had no way to determine whether she was trustworthy or not. Therefore, the State failed to satisfy either of the two-prong tests of Aguilar.

Nevertheless, the informer’s tip may be considered in determining the existence of probable cause if the tip is verified or corroborated by the officer’s own knowledge or observations. During the telephone conversation with Officer Grant on July 19, 1978, the informant revealed appellant’s name; that he lived in St. Petersburg, Florida; that he drove a blue 1973 Mazda automobile which contained approximately 100 pounds of marijuana; and that he sold marijuana to John Strome and an undisclosed buyer. Officer Grant had never previously heard of the appellant or Strome.

On the same day, to substantiate the tip, Officer Grant ascertained the address of the undisclosed buyer and telephoned the St. Petersburg Police Department Narcotics Division. He spoke with Detective Jim Rainey who informed him that the appellant had been under investigation for “narcotic trafficking and violations” in Florida. Reputation standing alone is an insufficient basis for probable cause. Roberson, Hatton, and Young, supra. “[RJeputation (normally based upon rank hearsay and community rumor) as an element in determining probable cause should not be given undue weight... . ” Young, supra, at 413. Reputation may only be considered along with other facts and circumstances in determining probable cause. See also Whitener v. State, Ala.Cr. App., 390 So.2d 1136 (1980).

On July 20, 1978, the informant telephoned the sheriff’s department and disclosed: appellant’s name, address, color and make of his automobile (1973 blue Mazda), names of two buyers (John Strome and the undisclosed buyer), appellánt’s departure time (noon on July 20,1978), and appellant’s destination (Florida). That morning Officer Grant and Deputy Price ran a registration check on the Mazda parked at the address furnished by the informer which revealed that appellant was the owner of the car. At this point they decided to set up surveillance of the Bradley Street address. As set out in the facts hereinabove, the officers observed the appellant and others engaged in routine activities about the house. They observed nothing resembling criminal conduct which would verify any detail of the informant’s tip. The observed activities in and about the house and automobile were not, in themselves, even suspicious. This court in McCraney v. State, Ala.Cr.App., 381 So.2d 102, 106 (1980), remarked: “The fact that the three subjects went back and forth between the rooms acting suspiciously and carried a paper bag to the automobile would not by itself constitute probable cause for a search.”

In Hatton, supra at 829, this court recognized that the probable cause present in that case presented the bare minimum necessary for a valid search without a warrant. Since the facts and circumstances in the case at bar fall far short of the bare minimum requirements of Hatton, we find that the “exigent circumstances coincidental with probable cause” exception to the Fourth Amendment warrant requirement cannot be applied to this case. Likewise, a search is not justified by what it subsequently uncovers. Shipman v. State, 51 Ala.App. 80, 282 So.2d 696, writ quashed, 291 Ala. 484, 282 So.2d 700 (1973); Rudolph v. State, Ala.Cr.App., 371 So.2d 962, cert. denied, Ala., 371 So.2d 965 (1979). The instant search was therefore illegal and the results thereof should have been suppressed and excluded from the evidence.

REVERSED AND REMANDED.

All the Judges concur, except DeCARLO, J., dissents.


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    Ex parte State of Alabama ex rel. Attorney General (Re Thomas Martin MURRAY v. STATE of Alabama).
    80-287.
    Supreme Court of Alabama.
    March 26, 1981.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain of McLain & Hampton, Sp. Asst. Attys. Gen., for petitioner.
    No briefs for respondent.
   PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS, 396 So.2d 125.

FAULKNER, Justice.

WRIT DENIED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I would have granted this writ on the authority of Rickman v. State, 361 So.2d 28 (Ala.1978), had petitioner complied with the provisions of Rule 39 of the Alabama Rules of Appellate Procedure. See ARAP 39(c)(4).


author: BOWEN, Judge.

text:
    Ronnie M. GUERIN v. STATE.
    8 Div. 385.
    Court of Criminal Appeals of Alabama.
    Nov. 25, 1980.
    As Corrected on Denial of Rehearing Jan. 20, 1981.

      John Mark McDaniel and Henri Butler McDaniel, of McDaniel & McDaniel, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen.,'for appellee.
   BOWEN, Judge.

The defendant was indicted in a two count indictment for grand larceny and for buying, receiving and concealing stolen property. The property involved was a “pulverizer” which is a piece of equipment used in landscaping and is pulled behind a tractor. The jury convicted the defendant of buying, receiving and concealing. Sentence was four years’ imprisonment.

The defendants major contention on appeal is that the evidence does not support the charge of buying, receiving or concealing stolen property because that same evidence shows that the defendant actually stole the property. Our review convinces us that the defendant’s argument has merit.

Coy Langford was the State’s first witness. He testified that on June 13, 1979, the defendant purchased a Massey Ferguson tractor and “a landscape bucket which went along with the tractor” from him. He identified a bill of sale reflecting the purchase of these two.items. Also listed on the bill of sale was a third item, a “Super Gill” pulverizer. Mr. Langford testified that he did not sell the defendant a pulverizer as indicated on the bill of sale and stated that he made out the bill of sale with “the exception of that third item.” The import of his testimony is that someone altered the original bill of sale by adding a third item — a Super Gill pulverizer.

On September 6, 1979, Physician William Graham Wood discovered that his Super Gill pulverizer was missing from a vacant field behind his office in Gurley. Dr. Wood purchased this pulverizer for $700.00 from the Ford Tractor Company in Huntsville. He identified the pulverizer found on Katherine Drive as being his. This identification was made “solely upon the replacement” of a particular nut on the pulverizer which was different from the other nuts on the machine. Dr. Wood did not know the defendant and had never given him permission to use or borrow the pulverizer.

Vernon Stork testified that he replaced the missing nut on Dr. Wood’s pulverizer and verified that he saw this same pulverizer on Katherine Drive after he had been informed that it was missing.

Earl King testified that he worked for the defendant in August of 1979. About three weeks prior to September 6, 1979, the defendant told King that “he (defendant) was going to pick up a pulverizer.” The defendant drove a tractor,- with King riding on the back, over to Dr. Wood’s clinic in Gurley. The pulverizer was sitting “right there between the doctor’s office.” Once they arrived, the defendant told King “to come on back and finish that yard” on Katherine Drive.

On cross examination of King by defense counsel, the following occurred:

“Q. So all you have got to do is get up here and tell this jury that this man stole a pulverizer and you are not going to have no charges against you, is that correct? That’s right, isn’t it?
“A. Yes, sir.”

On redirect examination by the prosecutor the following question and answer were given:

“Q. But there is no question in your mind that you rode down to Graham Wood’s with Mr. Guerin when he hooked on to that pulverizer, no question in your mind?
“A. No, sir.”

Rick Weaver was employed by the Madison County Sheriff’s Department. On the morning of September 6, 1979, he went to Katherine Drive to check on a pulverizer. At 2:00 that morning he observed the pul-verizer and noticed the serial number as being S8161 which was “a stick-on type with the glue backing that you just stick on something.” When Deputy Weaver returned around 6:00 that morning the sticker bearing the serial number had been removed.

The trial judge refused to admit into evidence statements made by the defendant to Deputy Weaver and Investigator Earl Williams.

Bobby Crane owned the dealership for the Huntsville Ford Tractor Sales. On or about September 7, 1979, upon the request of the Madison County Sheriff’s Office, he checked serial number S8161 and discovered that it identified a Super Gill pulverizer in his stock. He confirmed that he actually had pulverizer S8181 in stock but noticed that the serial number was missing off the particular machine to which it belonged.

Raymond P. Wallace was employed at Huntsville Ford Tractor Sales. He testified that on September 7, 1979 , the defendant purchased a Super Gill pulverizer. Seven to ten days later, the defendant returned and asked Mr. Wallace if he had made a mistake on the date of the invoice. But Wallace checked and verified that the pulverizer was in fact purchased on September 7th.

With this evidence the State rested its case. No evidence was produced on behalf of the defendant.

Immediately before trial, defense counsel filed a motion to require the State to elect as to which of the two counts it would seek a conviction, and cited to the Court the cases of Jones v. State, 373 So.2d 1221 (Ala. Cr.App.), cert. denied, 373 So.2d 1225 (Ala. 1979); Nicholson v. State, 369 So.2d 304 (Ala.Cr.App.1979); Mefford v. State, 363 So.2d 1050 (Ala.Cr.App.1978); Davidson v. State, 360 So.2d 728 (Ala.Cr.App.), cert. denied, 360 So.2d 731 (Ala.1978). These cases stand for the proposition that a defendant cannot be convicted of buying, receiving or concealing stolen property where the evidence shows that the defendant actually stole the property.

At the close of the State’s evidence, defense counsel moved to exclude that evidence as to each count separately and severally and renewed his motion to require the State to elect. At the conclusion of the Court’s oral charge defense counsel objected to the Court’s failure to give the defendant’s written requested affirmative charges on grand larceny and buying, receiving or concealing stolen property.

The trial court did instruct the jury as requested that the defendant could not be found guilty of both grand larceny and buying, receiving and concealing stolen property. The trial court did not charge the jury that they could not find the defendant guilty of buying, receiving and concealing stolen property if they believed that he actually stole the property. However, the defendant requested no instruction on this principle.

The evidence and the reasonable inferences to be drawn therefrom leave only one conclusion. All the evidence indicates that the defendant gained possession of the stolen pulverizer by actually stealing the unit himself. Ogle v. State, 386 So.2d 493 (Ala.Cr.App.1980); White v. State, 383 So.2d 888 (Ala.Cr.App.) cert. denied, 383 So.2d 892 (Ala.1980).

In brief, the State argues:

“Earl King did not see if the Appellant or someone else carried the pulverizer from the prosecuting witness’ office. An element which is a sine qua non for the offense of larceny to lie is a ‘carrying away’ of property. Harvest v. State, supra. Since it is unclear as to whether Appellant or someone else removed the pulverizer from the owner’s premises, then the evidence does not necessarily compel a verdict for grand larceny.”
(Appellee’s brief, p. 9)

The taking and asportation of property in the crime of larceny may be proved by circumstantial evidence. Parker v. State, 371 So.2d 461 (Ala.Cr.App.1979); Clark v. City of Mobile, 357 So.2d 675 (Ala.Cr.App.), cert. denied, Ex parte Clark, 357 So.2d 680 (Ala.1978).

The State does admit that the evidence “may suggest, but does not necessarily compel the conclusion, that the appellant participated in the theft” and cites the cases of Simmons v. State, 54 Ala.App. 291, 307 So.2d 96 (1975); Coates v. State, 36 Ala.App. 371, 56 So.2d 383 (1952); and Humphrey v. State, 18 Ala.App. 251, 90 So. 504 (1921).

In Simmons, the defendant was charged in a two count indictment with grand larceny and buying, receiving, concealing or aiding in concealing stolen property. In statements made to investigating officers, the defendant admitted his participation in the theft of the property. However, at trial, the defendant claimed that he was not telling the truth in these statements and denied having anything to do with the stolen automobiles. The jury found the defendant guilty as charged. Under the authority of Jones, Nicholson, Mefford, and Davidson, error was committed in Simmons when the jury found the defendant guilty of both grand larceny and buying, receiving or concealing stolen property when the property was identical in each charge. We have no indication that this issue was raised in Simmons. However, clearly Simmons will not support the proposition for which it is cited by the State.

In both Coates and Humphrey there was evidence that someone other than the defendant actually stole the property. Here we have no evidence of how the defendant obtained the property other than that evidence which indicates that he stole it himself. In both Coates and Humphrey there was some evidence of a prior theft by another. Here there was no such evidence. The defendant did not present any testimony. He did not present evidence that he did not take the pulverizer or evidence explaining his possession of the machine and, as previously stated, the State’s evidence indicated that the defendant actually stole the pulverizer.

In Craig v. State, 375 So.2d 1252 (Ala.Cr. App.), cert. denied, 375 So.2d 1257 (Ala. 1979), this Court held that, inasmuch as the evidence did not establish that the defendant came into possession of stolen property solely through his participation in the burglary of a house, the State was not precluded from obtaining a conviction for buying or receiving and concealing stolen property. This Court held:

“A major insistence of appellant is upon application of a principle set forth in Booker v. State, 151 Ala. 97, 44 So. 56 (1907) and Gallman v. State, 29 Ala.App. 264, 195 So. 768 (1940) to the effect that where the evidence shows that accused came into possession of stolen property solely through his participation in the burglary of a house, he cannot be convicted for buying or receiving and concealing stolen property. The principle is inapplicable in this case, for the evidence does not show that appellant participated in the burglary. That he may have done so cannot be reasonably doubted, but there is no definite evidence to that effect. On the contrary, defendant’s own testimony stands as undisputed repudiation of that theory.”
Craig, 375 So.2d at 1254.

Here it cannot be reasonably doubted that the defendant actually stole the property. The undisputed evidence shows that after saying that he was going to pick up a pulverizer, the defendant went to the place where Dr. Wood’s pulverizer was located. Although no one saw the defendant actually remove the machine, the defendant was then placed in possession of this very same pulverizer. Under the evidence of this case, including the absence of theft by any other party, the only reasonable conclusion from the inferences of the evidence is that the defendant stole the pulverizer. For this reason he cannot be convicted of buying, receiving or concealing stolen property. The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.

      . Although the record shows the serial number to be S8181, this is an obvious typographical error when considered in the context of Mr. Crane’s testimony.

      . Although the date in the record is 1978, this is an obvious mistake when considered in context in which the event occurred.


author: BEATTY, Justice.

text:
    Ex Parte State of Alabama (Re Ronnie M. GUERIN v. STATE of Alabama).
    80-292.
    Alabama Supreme Court.
    April 10, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

FAULKNER, ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., dissent.