author: BOWLING, Justice,

text:
    The COMMODORE CORPORATION v. Foster BAILEY and Bobbie Bailey.
    No. 52306.
    Supreme Court of Mississippi.
    Jan. 7, 1981.
    Rehearing Denied Feb. 18, 1981.

      H. M. Yoste, Jr., Ramsey, Bodron, Thames & Robinson, Vicksburg, Anthony L. Phillips, Jackson, for appellant.
    David M. Sessums, Varner & Parker, Vicksburg, for appellees.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This case involves a suit for actual and punitive damages allegedly sustained by ap-pellees, Foster Bailey and Bobbie Bailey, due to the alleged negligence of appellant, The Commodore Corporation. The original declaration in the Circuit Court of Warren County included, in addition to The Commodore Corporation as defendant, S. M. Smith d/b/a Beechwood Mobile Housing. At the conclusion of appellee’s proof, the trial court sustained Smith’s motion for a directed verdict, leaving as the sole defendant The Commodore Corporation. The basis of the suit was that appellant was negligent in making repairs to a new trailer home purchased by appellees and manufactured by appellant. The jury returned a verdict for appellees in the amount of $6,000 as actual damages and $10,000 as punitive damages. Appellant assigns as errors the following:

I. The trial court erred in granting plaintiffs a peremptory instruction on negligence.
2. The trial court erred in granting plaintiffs an instruction on punitive damages.
3. The award of punitive damages was against the overwhelming weight of the evidence.
4. The award of actual damages was against the overwhelming weight of the evidence.
5. The jury’s verdict was so excessive as to evince bias, passion and prejudice.

It is necessary to discuss the evidence. Foster Bailey and Bobbie Bailey, man and wife, moved from Canton, Mississippi, to Vicksburg during the first part of 1978, as Mr. Bailey had a job at Grand Gulf south of Vicksburg. Living accommodations were hard to find so they purchased a trailer home from Beechwood Mobile Housing of Vicksburg, a retail dealer in such homes. The trailer was manufactured by appellant, The Commodore Corporation of Haleyville, Alabama, and it was admitted that the manufacturer was obligated to repair any defects in the trailer for a period of at least one year. The trailer was purchased in May, 1978, and set up in a trailer park in Vicksburg. It was a rather large trailer, having a living room, two bedrooms, a dining room, a kitchen, a hallway, one and one-half baths, and a utility room with outlets for such as a washer, etc.

During the latter part of July, 1978, the Baileys noticed a “hump” that had developed in the bathroom floor immediately in front of the commode. The office of Beechwood was notified, and they in turn notified appellant manufacturer. On August 3, 1978, two young men, known only as Carl and Bobby, came to the trailer home, stating that they represented the appellant and were there for the purpose of repairing the bathroom floor. According to Mr. and Mrs. Bailey, these repairmen completely removed the commode and its connections and made repairs to the floor, stating that the “hump” was caused from a leak around the bottom of the commode. The commode was replaced in its position and the water pipe connection from the main water line to the commode was attached. Carl and Bobby assured the Baileys that the repairs were satisfactory.

During the night of August 5, 1978, it became necessary for Mrs. Bailey to make a trip to the bathroom. Upon placing her feet on the floor, she found it to be covered with several inches of water. She called to her husband and they found water shooting to the ceiling in the bathroom from the main water line that had been attached to the commode two days earlier by Carl and Bobby. The trailer was flooded with water. Mr. Bailey awakened a plumber [Mr. Pett-way] who lived nearby and he examined the appliances around the commode to ascertain the trouble. He testified at trial and his testimony will be discussed later.

The morning after the flooding incident was Sunday. The Baileys went to the Beechwood place of business and attempted to get assistance. Mrs. Bailey also called The Commodore Corporation that morning. Mrs. Bailey was introduced as the first witness by appellees. She described in detail the soaking of the carpet and the walls and personal property situated in the trailer. She testified that she and her husband made very effort to get as much water from the trailer as possible and salvage as much damaged property as possible. She testified that about a week after the flooding, Carl and Bobby again came from Alabama to the trailer home. During the course of the conversation, the man named Carl stated, “Well, I have seen a lot worse than this.” Mrs. Bailey testified that upon requesting advice as to what to do about the damaged personal property, Carl stated, “You can burn it if you want to,” and that if the Baileys sued Commodore they would have “to wait in line.” Carl and Bobby then left, telling Mrs. Bailey that they would be back in two to four weeks as they had to go to Texas. They did no work pertaining to the flooded trailer on that trip. During the early part of October, Carl and Bobby came back to Vicksburg and stayed four or five days performing certain repair work to the trailer, such as replacing parts of the flooring. All of the furniture and bathroom equipment was carried out into the yard.

Mrs. Bailey testified in detail regarding the extreme inconvenience they had experienced since the flood of August 5th and their effort to live in the situation that had been created. Mrs. Bailey testified that when Carl and Bobby finished with the repairs, they only moved one bed back into the trailer and it was necessary for Mr. Bailey and her grandchildren to move everything else.

Photographs were introduced in evidence by Mrs. Bailey showing damage to the carpet and other parts of the trailer, including a hole in the floor where the bedpost had gone through it long after the repairs related above were made. She described the odor that existed in the trailer from the time of the flood to the date of the trial. She testified about the manner in which some of the carpet was replaced by Carl and Bobby. Pictures were introduced showing mismatched carpeting with its pattern going in one direction for a distance and then in another direction. A photograph was introduced of a wall showing that paneling had been placed in the trailer that was much lighter in color than the old paneling that was still in place. This light colored paneling was not installed until January, 1979. Mrs. Bailey further testified in detail about damage that still existed at the time of the trial on January 16,1980, which included the hole in the bedroom floor, the different colored paneling, and the fact that the carpet had not been correctly reinstalled as promised. She described the difficulty she was still having with the electrical system in the trailer, which had persisted since the night of the flood.

Appellee, Foster Bailey, testified and his testimony was essentially the same as that of his wife. He reiterated the manner in which the carpet was mislaid and described in more detail the general “mess” that existed during the times that appellant’s representatives were at the trailer site after the flood. He described the hole in the bedroom through which a leg of the bed had protruded. He testified regarding the odor that still existed in the trailer at the time of the trial. There was still a leak around the bathtub at the time of the trial, which Mr. Bailey had attempted to repair. He again described the different colored paneling that was placed adjacent to the old paneling on parts of the damaged wall.

Appellees presented testimony from witness Jessie Pettway, the plumber who lived near the Bailey trailer and came to the scene immediately after the flood was discovered. He related being called by Mr. Bailey during the early morning hours. He found that the water had come from the supply line at the back of the commode. He described in detail the procedure necessary to connect this supply line to the commode. He testified that it was necessary to place a rubber compression washer on the commode connection and then to screw a “tap nut” onto the connection. He found that this “tap nut” had not been tightened sufficiently and that in the two days’ time since Carl and Bobby worked, it had worked completely loose, allowing the supply line to become disconnected and water to escape freely. He stated that he had been able to manipulate the loose nut with his fingers. In his opinion, the nut should have been tightened with pliers and a new seal placed on the connection where the tap nut was to be attached. Pettway stated that he found that the repairmen had placed an old seal at the connection. He stated that a pair of channel-lock pliers should have been used to tighten the nut onto a new seal and if this had been done properly the connection would not have come loose, allowing the water to run freely from the main pipe. Pettway reconnected the pipe to the commode in the proper manner. In his opinion, the connection had been done improperly by appellant’s employees.

One of the appellant’s witnesses at the trial was Larry Mann, a sales representative. He was called as an adverse witness by appellees. He testified that during the month of August, the exact date he did not remember, he was called by Mr. Melton of Beechwood Housing and informed about the flooded trailer. He stated that he had a work order showing that repair work on the trailer had been completed on September 22. Mr. Mann did not know the identity of the two young men who came to Vicksburg except that their first names were Carl and Bobby. He did not know their location at the time of trial and they were not present to testify. He stated that his company had no record of the initial work done on the commode by Carl and Bobby. He maintained that the first notice he had was in early September when he was contacted by appellees’ attorney. Mann had no record of the hereinbefore described visit to the trailer by Carl and Bobby after the flood when no repair work at all was done and the men had said they were on their way to Texas. According to Mann, the company records showed that although a call from Beechwood was received on the morning the flood occurred, no one from appellant company reported to the Bailey’s trailer home until September 13th, approximately five weeks after the flood.

Mr. Mann denied that he had ever received a letter in December from appellees’ attorney advising that the repair work had not been completed and making a request that this be done. A copy of that letter, however, was allowed into evidence. At one point, it was necessary for the trial court to admonish the witness to be sure of his sworn testimony. This was done in chambers.

Mann admitted that he was contacted in early January concerning unfinished repairs, and, in response, sent Mr. A1 Fletcher, a representative of appellant, to Vicksburg to do some additional work on the damage that had occurred in the flood of August 5. It was at this time that the different colored paneling was installed and as shown in the above mentioned photographs, was very unsightly.

Did the lower court err in granting a peremptory instruction on the question of negligence and the right to recover actual damages?

From the foregoing discussion of the testimony, it can readily be seen that there was no dispute as to appellant’s negligence. The entire matter was started by appellant’s agents, Carl and Bobby, who performed the initial repair work in a negligent manner. Neither Carl nor Bobby, whomever they are or wherever they be, testified, and the testimony of witness Pett-way was undisputed. It is clear, therefore, that the lower court was correct in granting appellees’ peremptory instruction on the question of negligence and actual damages. As to the amount of the award in the sum of $6,000 for actual damages, there was ample proof of actual loss in the sum of $5,514.03. In addition to this, there was ample proof of much mental anguish, discomfort, inconvenience and hardship sustained by the Baileys as the result of appellant’s negligence. The peremptory instruction on this issue was proper.

Was the trial court correct in granting appellees’ instruction permitting the jury to award punitive damages?

This Court, in many cases, has set out the principles and requirements necessary to permit the jury in its discretion to award punitive damages in addition to actual damages. If the evidence presented by the party requesting a punitive damage instruction is such that the jury could find that the wrongful acts complained of resulted from such gross disregard of the rights of the complaining party as amounts to wilfulness on the part of the wrongdoer, or that the opposite party was guilty of such gross negligence as to amount to a reckless disregard of the complaining party’s rights, then the court is fully authorized to submit the issue of punitive damages for the jury’s deliberation. Fowler Butane Gas Co. v. Varner, 244 Miss. 130, 141 So.2d 226 (1962); Greyhound Corp. v. Townsend, 234 Miss. 839, 108 So.2d 208 (1959); Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461 (1952); Teche Lines v. Pope, 175 Miss. 393, 166 So. 539 (1936); McDonald v. Moore, 159 Miss. 326, 131 So. 824 (1931); Bounds v. Watts, 159 Miss. 307, 131 So. 804 (1931); Yazoo & M. V. R. Co. v. Mullen, 158 Miss. 774, 131 So. 101 (1930); Illinois Cent. R. Co. v. Dodds, 97 Miss. 865, 53 So. 409 (1910); New Orleans, J. & G. N. R. Co. v. Statham, 42 Miss. 607, 97 Am.Dec. 478 (1869); Atkinson v. Dixie Greyhound Lines, 143 F.2d 477, cert. den. 323 U.S. 758, 65 S.Ct. 92, 89 L.Ed. 607 (1944).

We have held that in the event the jury awards punitive damages, the amount is solely within the jury’s discretion unless arbitrary or unreasonable. The amount cannot be determined by any fixed rule. Travelers Indemnity Co. v. Davis Wholesale Drug Co., 234 So.2d 604 (Miss. 1970); Kinnard v. Martin, 223 So.2d 300 (Miss. 1969). Therefore, we hold that the award of punitive damages was not against the overwhelming weight of the evidence and we cannot say that the jury has abused its discretion and awarded an excessive amount under the evidence presented in this particular ease.

It follows, therefore, that the cause should be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    Jack B. MASSEY v. STATE of Mississippi.
    No. 52305.
    Supreme Court of Mississippi.
    Jan. 7, 1981.
    Rehearing Denied Feb. 18, 1981.
    Robert B. Prather, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., SUGG and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

Jack B. Massey was charged by indictment with the rape of a twenty-one year old woman. He was tried upon that charge in the Circuit Court of Lowndes County, convicted, and sentenced to twenty-five years imprisonment.

On appeal he assigns two grounds for reversal.

One of the assignments challenges the sufficiency of the evidence to support the jury’s verdict. The evidence was conflicting, however, and created an issue of fact for resolution by the jury as to appellant’s guilt or innocence, and, there is no merit in this assignment.

The other assignment is to the effect that, over appellant’s objection, the prosecution was permitted to introduce irrelevant, immaterial and unduly prejudicial testimony concerning alleged prior offenses and misconduct on the part of appellant.

At the outset, prior to the commencement of the trial, the court “sustained” in part a defense motion for leave to introduce evidence as to the victim’s “sexual conduct” and the State’s motion in limine. The trial court’s order recited:

[T]he defendant will be allowed at the trial of this cause to introduce any evidence pertaining to any sexual relations by the complaining witness with one, Doug Cook, on the evening of October 30, 1979. No reference shall be made in any question propounded by the defendant to the fact that the said Doug Cook is married; that the complaining witness has been having a sexual relationship with the said Doug Cook prior to the evening of October 30, 1979; that she was drunk or under the influence of drugs on that evening; that she has lived with a man to whom she was not married; that she has had an illegitimate child; that she drinks to excess; that she stays out many nights to all hours of the morning or that she has made any statements to anyone concerning her reluctance to testify due to past sexual misconduct; unless the State shall first breach those issues on direct examination.

While the action of the trial court upon the motions is not assigned as error on appeal, the restrictions placed upon the defense in attacking the character of the complaining witness are in contrast to the court’s action in allowing the prosecution, over strenuous and continuous objection, to adduce both on cross-examination and by an independent witness, alleged actions of misconduct reflecting upon appellant’s character, extending, over a period of approximately a week prior to the crime upon which he was being tried.

The victim was employed at an establishment commonly known as a “lounge.” After leaving work shortly after midnight on the morning of October 31, 1979, the morning of the alleged rape, the victim joined three males and visited other “lounges” in their company. Following this, two of the men got out of the car and the other, one Doug Cook and the victim drove out to a rural parking “spot” and sat in his car drinking beer until about daylight. Both the victim and Cook testified that they did not engage in sexual intercourse.

Arriving home near daybreak the victim said that she went to her room, changed into her nightgown, locked her bedroom door and went to sleep. She testified that at about 9:30 that morning she was awakened by appellant beating upon her door and telling her to open it. She said that she put on her robe and opened the door. Thereupon, according to the victim, the appellant came into the room with a gun in his hand, threw her on to the bed, put the gun to her head and told her to take off her underclothes. This she did. It was then, she said, that appellant had sexual intercourse with her. She testified that during this time she had been pushing him and crying and hollering at him to leave and that he had reacted to this resistance on her part by pointing the gun at her head and telling her to shut up. While this was happening, appellant’s wife was not in the house. After the sexual act had been completed, the victim put on her clothes, got one of Mrs. Massey’s children, who had been in the house with her, and ran to a neighbor’s house, the neighbor having been Mrs. Massey’s mother.

The neighbor testified that when she saw the victim she was “crying and screaming” and breathing very hard. She told her that she had been raped by appellant at gunpoint and asked her to call the sheriff.

Medical testimony indicated that there were no tears, bruises, or bleeding of the victim’s private parts but that there was evidence that she had had sexual intercourse within the last twenty-four hours, probably within the last few hours.

Appellant testified as a witness in his own behalf. He denied that he had committed the rape. He said that he had only talked to the victim through her locked door that morning.

The State brought out by the testimony of the victim, over the strenuous objection of appellant, evidence relating to two alleged prior incidents. In the first of these, the victim was permitted to testify that appellant, armed with a pistol, in the presence of a fourteen year old, attacked the victim by pulling her hair, pushing her around and pointing the pistol at her at a time when he was drunk. This incident is said to have occurred during the week prior to the date on which the rape is alleged to have occurred. The State was allowed to develop a second incident on cross-examination of appellant’s wife, who testified as a witness for her husband. The State was permitted to cross-examine Mrs. Massey, over objection, as to an incident alleged to have occurred about a week before the alleged rape. At that time, the witness had seen her husband, in an intoxicated condition and with a knife in his hand standing at the victim’s doorway. At the time she also had seen the victim drunk and asleep on her bed.

The effect of this evidence was heightened and emphasized by the State when, on rebuttal, the State introduced as a witness the fourteen year old girl, one Terry James, solely for the purpose of testifying about the former occasion in which the victim had testified she had been attacked by appellant who pulled her hair, pushed her about and threatened her with a pistol.

It has long been the rule in this state, and is a general rule elsewhere, that the issue in a criminal trial should be singular and the evidence confined to that issue. Usually the prosecution should not be allowed to show that the accused on a former occasion had committed other offenses, even though of a like nature. Sumrall v. State, 257 So.2d 853 (Miss.1972), Cummings v. State, 219 So.2d 673 (Miss.1969), Ladnier v. State, 254 Miss. 469, 182 So.2d 389 (1966).

This Court said in Floyd v. State, 166 Miss. 15, 148 So. 226 (1933):

The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and, while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him. ‘To permit such evidence,’ says Bishop, ‘would be to put a man’s whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet.’ 1 Bish.Crim.Proc. § 1124. (166 Miss. at 35, 148 So. at 230).

The State contends that the testimony referred to falls within one of the exceptions to the general rule. It is asserted by the State that the evidence of the prior misconduct was relevant to show appellant’s “motive” in committing the rape on a later date. In support of this position the State cites Norman v. State, 385 So.2d 1298 (Miss.1980) and McGee v. State, 365 So.2d 302 (Miss.1978).

The idea that it is necessary to show a “motive” for rape is, perhaps, novel. Neither Norman nor McGee seem to support the State’s position.

In Sumrall v. State, 272 So.2d 917 (Miss.1973), this Court held that although a conviction might not be reversed in every case where inflammatory or irrelevant material is allowed to be placed before the jury, an accumulation of such instances would be capable of rendering them “fatally prejudicial” and require reversal. See also McDonald v. State, 285 So.2d 177 (Miss.1973).

In the case now under consideration the State embarked on its course by adducing from the alleged victim, over strenuous objection of appellant, testimony of an alleged assault and battery committed upon her by appellant on an occasion prior to the date on which the alleged rape occurred. Following up this line of attack, the State then cross-examined appellant’s wife, a defense witness, by eliciting from her testimony that she had seen her husband drunk with a knife in his hand standing at the victim’s doorway about a week prior to the rape. She said that, at the time, the victim also was drunk and was on the bed asleep and had not been awakened. The State then concluded this line of testimony by producing a witness (the fourteen year old girl) on rebuttal to testify solely as to the first of the two former incidents which involved the alleged assault and battery by appellant on the victim on an earlier date.

In short, the State placed before the jury a mass of testimony blackening the character of appellant and designed to show his guilt of other and former misconduct. This line of attack persisted throughout the trial and cannot be said to have been without substantial prejudice to the right of appellant to a fair trial. We have concluded that the pyramiding of this evidence against the appellant placed upon him a burden too heavy to bear under the circumstances of the case and deprived him of a right to a fair trial.

For that reason the conviction must be reversed and the case remanded for another trial.

REVERSED AND REMANDED.

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


text:
    Eddie B. BYARS et ux. v. George B. BURGESS et al.
    No. 52357.
    Supreme Court of Mississippi.
    Jan. 28, 1981.
    Rehearing Denied Feb. 18, 1981.
    Lydia Quarles, Dewitt T. Hicks, Jr., Ghol-son, Hicks & Nichols, Columbus, for appellants.
    Shields Sims, Jeffrey C. Smith, Thomas Y. Page, Sims & Sims, Columbus, for appel-lees.
    Before ROBERTSON, P. J., and BROOM and BOWLING, JJ.
   AFFIRMED.

HAWKINS, J., took no part.


text:
    Sylvester M. RAINER, Sr. v. Mrs. Louise RAINER.
    No. 52349.
    Supreme Court of Mississippi.
    Jan. 28, 1981.

      Robert D. Jones, Martin & Jones, Meridian, for appellant.
    Joe R. Odom, Lawrence W. Rabb, Meridian, for appellee.
    Before PATTERSON, C. J., and LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

This cause involves divorce and support proceedings between appellee and appellant and originated in the Chancery Court of Lauderdale County.

Appellee and cross-appellant, Mrs. Louise Rainer, filed her bill of complaint for divorce and other relief alleging that her husband, appellant and cross-appellee, Sylvester M. Rainer, Sr., was guilty of habitual cruel and inhuman treatment. This is the second appearance of the cause before this Court. The first appeal involved the final decree in the original action, which decree granted Mrs. Rainer a divorce on the ground alleged. Additional provisions of the decree awarded her the sum of $190 per month for twelve months as alimony and divided certain property between the parties. Mr. Rainer was given the exclusive right to use and occupy the home of the parties in which they had lived for many years. They had been married over thirty years and had reared three children. The title to the property during the period of time always had been solely in the name of Mr. Rainer. In the divorce decree, no attorneys’ fees were allowed for the final hearing.

Mrs. Rainer appealed to this Court from the alimony and attorneys’ fee provisions of the lower court decree. This Court, in cause No. 50,585, reversed the cause, holding that the award of alimony by the lower court was grossly inadequate and that Mrs. Rainer should be allowed a reasonable sum toward fees for her legal representation.

On remand, the cause finally came on for hearing by the lower court on February 26, 1980.. At this hearing, it developed that between the date the opinion was issued and the date of the court’s mandate, Mr. Rainer sold the home for $27,000. It was also developed by preliminary motions that subsequent to the original divorce hearing, Mr. Rainer’s mother had died, leaving him, among other things, her home, into which he had moved and where he was living without rent obligations.

Mrs. Rainer’s attorneys instituted proceedings in an attempt to have the conveyance of the house formerly occupied by the parties set aside. After a court hearing, this attempt was unsuccessful.

Prior to the hearing resulting in the present appeal, attorneys for Mrs. Rainer filed her motion for the court to take into consideration the change of circumstances between the time of the original divorce hearing and the remand hearing. This motion was granted by the lower court over objection by Mr. Rainer’s attorneys.

After a full hearing resulting in the present appeal, the chancellor issued his decree providing that (1) Mr. Rainer pay to Mrs. Rainer immediately the sum of $13,000 as alimony payment; (2) the sum of $150 per month from March 1,1980 (the approximate date of the decree) as alimony, said payments to continue until the remarriage or death of Mrs. Rainer, and (3) Mr. Rainer was ordered to pay Mrs. Rainer the sum of $2,500 toward her legal fees, which at that time had amounted to over $5,000.

Mr. Rainer filed his appeal and assigned as errors the following:

1. The lower court erred in not sustaining appellant’s motion in limine and motion to dismiss and disallow evidence of the financial status of the parties subsequent to the date of divorce to determine an alimony increase.

2. On remand hearing, the lower court erred, over objection of appellant, by allowing appellee to plead a material change of circumstances.

3. On remand hearing, the chancellor erred in awarding appellee $2,500 attorney’s fee.

Mrs. Rainer filed her cross-appeal and assigned as errors:

1. The court erred in not granting reasonable alimony to the cross-appellant under the proof in this case.

2. The court erred in not granting a reasonable attorney’s fee, based on the proof in this case.

We first address the question as to whether or not on remand the chancellor should have considered the change in circumstances of the parties and their situations at the time of the remand hearing on February 28,1980, or was confined solely to considering the situation of the parties at the time of the original divorce hearing and decree. We hold that the chancellor correctly sustained Mrs. Rainer’s motion to amend the bill of complaint and consider the cause as the parties were situated on the date of the remand hearing. To hold otherwise would not be equitable. This is clearly set out in Griffith’s Mississippi Chancery Practice section 699 (2d ed. 1950), and McKay v. McKay, 312 So.2d 12 (Miss. 1975).

We next analyze the undisputed evidence as to the condition of the parties at the time of the remand hearing. Mr. Rainer was a long-time employee of the Mississippi Power Company. During the year 1979, his gross salary was $19,618.68. [It was only $15,000 at the time of the original divorce hearing.] During 1979, in addition to his salary, Mr. Rainer received $2,144.00 as interest income. The majority of the funds drawing this interest was the proceeds of $27,000 received from the sale of the house. The testimony was that after the death of Mr. Rainer’s mother and the sale of the marital home, he had moved into his mother’s house that he inherited and was living there rent free. For the month prior to the hearing, Mr. Rainer had received a salary of $1,728.84, some of which was pay for overtime work.

Mrs. Rainer was working at a beauty shop, doing manicures, pedicures, and facials. She was not a trained beautician. Her gross salary for 1979 was $6,529.43. She was driving the 1972 Chevrolet car and Mr. Rainer was driving the 1976 Mazda, both owned by the parties prior to the divorce.

The record does not reflect testimony or itemization of living expenses required by Mr. Rainer at the time of the remand hearing. Testimony on these items was elicited from Mrs. Rainer and stand undisputed in the record. She was living temporarily with her sister and brother-in-law because of her inability to pay rent on an adequate apartment. She itemized her total monthly expenses at $1,090.01.

Considering Mr. Rainer’s assignments of error, we already have held that in determining the amounts to which Mrs. Rainer is entitled the situation of the parties at the time of the remand hearing controls. As stated, he had a savings account of $32,-290.74, and a checking account of $600. His salary for the preceding year was $19,-618.86. In addition, there was interest income of over $2,000. We recognize that the biggest part of the savings account was the funds derived from the sale of the marital home and that under the decree of the chancellor, this savings account will be depleted.

As stated in the opinion remanding the original appeal in the cause, the wife is entitled to a reasonable allowance of alimony commensurate with her standard of living and the ability of the husband to pay. Jenkins v. Jenkins, 278 So.2d 446 (1973); Shows v. Shows, 241 Miss. 716, 133 So.2d 294 (1961).

In considering whether or not the remand decree of the chancellor was grossly inadequate, we are met with a consideration of the figures on income and expenses of both parties as hereinbefore set out. These parties had been married over thirty years, and the divorce, according to the only records we have, was secured by Mrs. Rain-er on statutory grounds alleged against her husband. We take into consideration the fact that in all probability the $13,000 lump sum alimony award by the lower court was in effect a payment to Mrs. Rainer for a part of the purchase price of the marital home. After considering this lump sum item, it is evident from the figures herein-before set out that the sum of $150 per month alimony is inadequate and does not meet the test set out in Jenkins, supra. These tests require that the monthly payments be increased. In order to end the litigation and due to the fact that the conditions of the parties practically were undisputed, we hold that the monthly alimony payments should be increased to $250 per month beginning on the date of the mandate of this Court on this appeal. The payments of $150 ordered by the lower court shall remain as starting on March 1, 1978.

We next consider Mr. Rainer’s assignment of error regarding the allowance by the lower court of $2,500 as attorneys’ fees. Considering the record as to the amount of work done by Mrs. Rainer’s attorneys, we cannot say that the chancellor’s allowance for attorneys’ fees was erroneous. Therefore, we affirm that part of the decree.

Appellee and cross-appellant, Mrs. Rain-er, has filed a motion for the allowance of attorneys’ fees on this appeal. It is the usual rule of this Court to allow one-half of the fees allowed by the lower court. Tighe v. Tighe, 239 Miss. 666, 124 So.2d 843 (1960). Therefore, we sustain appellee’s motion for attorneys’ fees and set the amount at $1,250.00.

It therefore follows that the cause should be and it is affirmed as to the original appeal of Mr. Rainer. As to the cross-appeal of appellee and cross-appellant, Mrs. Rainer, we reverse and render and amend the decree of the lower court and hold that the monthly payments of $150 alimony shall begin as of March 1, 1978, and shall be increased to $250 per month as of the date of the mandate of this Court in this appeal. All costs of this appeal are assessed against the appellant and cross-appellee.

AFFIRMED ON DIRECT APPEAL; REVERSED AND RENDERED ON CROSS-APPEAL.

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


text:
    Richard Emmett McLEOD, III, In the Matter of the Change of Birth Certificate of Dawn Marie McLeod v. STATE BOARD OF HEALTH and Marie Theresa McLeod.
    No. 52373.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    Frank G. Vollor, Vicksburg, for appellant.
    No brief filed on behalf of appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice, for the Court:

Richard Emmett McLeod, III appeals from a decree of the Chancery Court of Warren County denying his Petition for Correction and Change of the Birth Certificate of Dawn Marie McLeod, under the provisions of Mississippi Code Annotated section 41-57-23 (1980 Supp.).

McLeod averred in his petition that he was not the father of Dawn Marie McLeod, as shown on her birth certificate, which listed her date of birth as May 26, 1978; that he had not lived or cohabited with Marie Theresa Byrne McLeod, the. mother of Dawn, since October 26, 1976; that Marie McLeod had filed a bill of complaint for divorce on September 22, 1977, in which she stated under oath that they had not lived together since October 26, 1976; that a divorce was granted to complainant on November 10, 1977, based on her sworn statements in her bill of complaint that they had been separated and had not lived together since October, 1976.

No mention was made in her bill of complaint nor in the decree based thereon that complainant was pregnant as a result of her marriage to McLeod.

At the hearing on his petition to correct birth certificate by deleting his name therefrom as the father of Dawn, McLeod testified that Marie McLeod had told him that he was not the father of Dawn. Isabelle Smith, McLeod’s mother, also testified that Marie McLeod had told her that McLeod was not the father of Dawn.

In her signed application for aid to dependent children made to the welfare department, Marie McLeod did not list McLeod as the father of Dawn, but listed some other man as her father. All of this evidence was undisputed.

The presumption that a child was conceived during wedlock and that the father of the child was the mother’s then husband, where the birth of the child was within nine months of the date of the decree of divorce, is one of the strongest presumptions known to the law. Madden v. Madden, 338 So.2d 1000 (Miss.1976). However, it is not a conclusive presumption. We said in Madden, supra:

“Although the presumption is rebuttable, it has been held that a husband denying paternity of a child born in wedlock must prove beyond reasonable doubt that he is not the father. Stone v. Stone, 210 So.2d 672 (Miss.1968) . .. Divorce or separation before birth of the child may be a circumstance lessening the presumption, but it does not destroy it. Moore v. Smith, 178 Miss. 383, 172 So. 317 (1937); 10 Am.Jur.2d Bastards § 15.”
338 So.2d at 1002. (Emphasis added).

The evidence in the case at bar was un-contradicted. In Hulitt, et al. v. Jones, 220 Miss. 827, 72 So.2d 204 (1954), this Court stated:

“The rule is well-established that the testimony of a witness which is not contradicted, either by direct evidence or by circumstances, must be taken as true. Neither the chancellor nor a jury have an arbitrary right to disregard testimony which is undisputed and uncontradicted, and which is not inherently improbable, incredible, or unreasonable.”
220 Miss. at 833, 72 So.2d at 207.

It was not only undisputed, but it was also “not inherently improbable, incredible, or unreasonable.”

We are of the opinion that the petitioner’s proof met the strict standards set by this Court and that the petitioner proved beyond reasonable doubt that he was not the father of Dawn.

The decree of the lower court is, therefore, reversed and the birth certificate of Dawn Marie McLeod will be corrected by striking the name of Richard Emmett McLeod, HI therefrom as the father.

REVERSED AND RENDERED.

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


text:
    Sallie KENNEDY v. Michael REED.
    No. 52370.
    Supreme Court of Mississippi.
    Feb. 4, 1981.
    John H. Blair, Richard E. Wilbourn, Wil-bourn & Rogers, Meridian, for appellant.

      J. R. Shannon, Eppes & Shannon, Meridian, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant, Sallie Kennedy, filed her suit against appellee, Michael Reed, requesting damages for personal injuries and property damage growing out of a motor vehicle collision that occurred on September 25, 1979. The cause comes to this Court from the Circuit Court of Lauderdale County. There was a jury verdict for the defendant, Michael Reed. Sallie Kennedy appeals, alleging several assignments of error. One assignment requires the reversal of this cause and there is no need to discuss the other assignments. A brief review of the evidence regarding the facts of the collision is necessary. Other than the physical facts, the only testimony on the liability question was that of appellant and appellee.

The collision occurred on U. S. Highway 45 at approximately the northern city limits of Meridian, Mississippi. The highway is a main artery running from Meridian northward to Columbus and consists of one northbound lane and one southbound lane. Appellant, a woman in her mid fifties, was driving her car in a southerly direction from the Village of Marion, located north of Meridian, for the purpose of picking up her daughter who worked at a radio station on the east side of the highway. It was appellant’s regular practice to pick up her daughter when each got off from work in the afternoon.

Appellant testified that there is a “rise” in the highway approximately 400 feet north of the radio station driveway. Ne-well Road goes from Highway 45 at this “rise.” She stated that there was a truck traveling southward behind her vehicle but not in close proximity thereto. She testified that after she passed the “rise” in the road she put on her left blinker light and prepared to apply the brakes on her car to make the left turn. She looked in the rear-view mirror and saw the truck approaching the “rise” in the highway. After her signal lights were on and the brakes were being activated [according to her, the brake lights were working], she again looked in the rear-view mirror and saw what later was appel-lee’s ear at the side of the truck as if he were passing. Immediately after this second look, appellant looked toward the driveway and southward on the highway to be sure that nothing was in her way. She had pulled to the left lane, still with her signal lights and brake lights on, when suddenly her car was struck in the rear by appellee’s car.

Photographs of appellant’s car were introduced in evidence, which showed it was struck at the left rear. Both rear quarter panels were “crumpled.” There was extensive damage to the rear of appellant’s car, obviously revealing a rather severe blow. The car was knocked a distance below the driveway into which appellant was turning.

Appellant was subjected to extensive cross-examination in an effort to determine exactly how far appellee’s car was behind appellant’s car when she started to turn and when she last saw appellee’s ear. Appellant continued to insist that she could not say how far it was, but she finally conceded that the distance was approximately 275 feet.

Appellee testified that when he approached the rear of the truck, the latter was traveling about 45 miles per hour. He testified that he started past the truck, while going only 45 to 50 miles per hour. While he was passing the truck, he saw appellant’s vehicle, which was over the center line and partially in the left lane. It then returned to the right lane. He testified that he did not see any signal or brake lights. He further stated that he decided to go ahead and pass appellant’s vehicle and the truck but at this time appellant turned immediately in front of him. He attempted to testify as to why appellant’s vehicle was struck in the rear resulting in extensive damage to both the right and left quarter panels. His only explanation was that appellant’s vehicle was in the left lane while making its turn.

Appellant assigns as error the court’s action in giving appellee the following instruction No. D-9:

You are instructed that Sallie Kennedy was guilty of negligence in failing to keep a reasonable lookout to the rear of her vehicle before beginning to turn from a direct course on the highway. If you believe that such negligence was the sole proximate cause of the accident and any injuries and damages of Sallie Kennedy then your verdict shall be for Michael Reed.

The jury’s verdict was as follows:

We, the jury, find for the defendant based on Instruction D-9.

It is readily seen that Instruction D-9 informed the jury by the court that appellant was guilty of negligence as a matter of law. The lower court and appellee here rely almost exclusively on the case of Stockton v. Lamberth, 278 So.2d 423 (Miss.1973), in justifying the granting of the above quoted instruction. In Stockton, there was a collision between a vehicle operated by plaintiff Lamberth and one operated by defendant Stockton. Lamberth’s vehicle was a three-wheeled “Mailster” which was used by him in mail delivery in the City of Corinth. The collision occurred on a city street. Lamberth had been going in and out of driveways on the street and was intending to turn left into another driveway. He testified that he was going about 10 to 15 miles per hour; that he looked in his rearview mirror when he was about 150 feet from the driveway and saw Stockton’s car approaching. At that time he turned on his turn signal. He continued to observe the approaching car until it was about 150 feet behind him. Upon reaching the driveway, he turned his vehicle in and the front of the Stockton car struck the left front of the Lamberth vehicle. He testified that it was at least 15 seconds after he saw the Stockton vehicle that he turned into the driveway.

The jury returned a verdict in the amount of $10,000. This Court ordered a remittitur of $4,000, or in the alternative a new trial on the issue of damages only, saying: “Lamberth was guilty of negligence in turning his vehicle from a direct course on the street without first ascertaining that the movement could be made with reasonable safety.”

In our opinion, the Stockton case does not apply to the testimony in the case before us to the extent that a peremptory instruction on the negligence of appellant was justified. It could be that from all the facts and circumstances appellant was guilty of negligence, but under the testimony as shown by this record, it was a question for the jury and not for an affirmative instruction by the court.

In Stockton, supra, the collision occurred on a city street and there was definite testimony by the plaintiff under which this Court had no choice but to hold that he was guilty of contributory negligence. We do not have such a situation in the present case. The collision occurred on a U. S. highway thoroughfare. The plaintiff had a right to make a left turn so long as she abided by the statutes and the duties as set out in case law. It is elemental that in considering this question we have to consider all testimony of appellant as true and give her the benefit of all reasonable inferences. She testified that as she went over the “rise” in the highway approximately 400 feet from the location of her proposed turn she activated her left turn directional signal lights. She then placed her foot on the brake which caused the brake lights to be activated. She already had looked in her rearview mirror and had seen the truck which was some distance behind her. As she approached the driveway, she again looked in the rearview mirror and at that time she saw appellee’s car by the side of the truck. She testified that she could not give the exact distance between her car and the truck, but after extensive cross-examination, she admitted that the car was approximately 275 feet behind her car. With her directional signal lights and brake lights still operating, she moved into the lefthand lane. She did not again look in her rear-view mirror as she was concentrating on her turn and was looking at the highway in front of her. She had no reason to believe that appellee’s vehicle had reached the rear of her vehicle until she was suddenly struck from the rear with such force that her vehicle was knocked a considerable distance south of the driveway into which she was turning.

Courts, both trial and appellate, are reluctant to invade the province of a jury unless there is a clear requirement to do so. Mississippi Code Annotated section 11-7-17 (1972) states positively that “all questions of negligence and contributory negligence shall be for the jury to determine.” This rule of law clearly was set out in the case of DeLaughter v. Womack, 250 Miss. 190, 164 So.2d 762 (1964). The Court there said the following:

We are told that “Generally, whether a particular act constitutes negligence is a mixed question of law for the court and fact for the jury, and negligence eases in which a nonsuit may be allowed or a verdict may be directed are exceptional. On motion for nonsuit all conflicts in testimony, even those produced by a mathematical calculation to show that the plaintiff’s evidence that an object was not visible from a certain point was contrary to fact must be resolved in favor of the plaintiff. In many cases, the peremptory disposition of the cases has been held to constitute reversible error. A cause should never be withdrawn from the jury unless it appears as a matter of law that a recovery cannot be had upon any view of the facts which the evidence reasonably tends to establish. Nevertheless, there are instances in which the court can say that failure to act was negligence as matter of law, and others where it can say that such failure was not negligence, and between the extremes there is a zone in which the question must be submitted to the jury. As a general rule, the issue or issues of negligence and contributory negligence are to be determined by the jury, and ordinarily should not be disposed of by the court in a peremptory manner. 38 Am.Jur., Negligence, § 344, pp. 1041, 1042. (Emphasis added).

We find that the evidence and testimony presented by appellant was sufficient to withstand a peremptory instruction that she was negligent. As hereinbefore stated, the jury, according to its verdict, decided the case on this instruction.

We note that the defendant, in addition to Instruction D-9, secured other instructions leaving the question of negligence of appellant and appellee for the jury to determine. With those instructions and the peremptory instruction D-9, there was a strong probability that the jury would be confused because of conflicting instructions. See Griffin v. Fletcher, 362 So.2d 594 (Miss.1978). This could have been the reason the jury did not decide the case on the other instructions but insisted on informing the court that its decision was based on the court’s determination that appellant was guilty of negligence.

In our opinion, it is necessary to reverse the cause and remand it for another trial so that a jury may resolve the issue of negligence of the parties.

REVERSED AND REMANDED.

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


text:
    Harrel BROOKS v. STATE.
    1 Div. 84.
    Court of Criminal Appeals of Alabama.
    Dec. 4, 1979.
    As Corrected on Denial of Rehearing Jan. 22, 1980.
    Lawrence J. Hallett, Jr. and M. A. Mar-sal, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for assault with intent to murder. He was convicted by a jury as charged and sentenced by the trial court to fifteen years imprisonment in the penitentiary.

The evidence indicates that appellant had consulted an attorney with reference to a divorce from his wife and was interested in getting custody of the children. It' appears that about 2:00 a. m. on March 23, 1979, defendant left his own house, traveled a reasonable distance by truck to the home of the victim, who lived with his mother and father in Stapleton, Alabama, where defendant knocked on the door of the residence to which the victim’s mother responded. Defendant gave a fictitious name and asked for the victim who came outside to defendant’s truck.

Defendant testified that a conversation ensued whereby he importuned the victim to get in defendant’s truck and go with him to face his wife in an adultery charge with the victim, to the end that he might use the charge in his divorce and child custody proceedings then pending. The victim refused to go with defendant and departed in a run from the truck. It was then that defendant fired three pistol shots at the victim. Two of the bullets hit the victim, one in the back and the other in the shoulder, the third shot missed hitting the victim. The victim testified that the defendant threatened to kill him if he did not get in the truck.

Defendant took the stand and testified that he did not intend to kill the victim. He contended that he was shooting to stop him from leaving the scene. After the shooting, defendant fled the scene in his truck.

This court in Ezzell v. State, 13 Ala.App. 156, 68 So. 578(1) held as follows:

“For a person to be guilty of an assault with intent to murder, the offense here charged, the assault must have been committed under such circumstances that, if death had resulted, the offense would have been murder (Code, § 6309, and cases cited), if it would have been manslaughter, then the person is guilty of only assault and battery, and if it would have been justifiable homicide, he would be guilty of nothing. So that, in determining the degree of a defendant’s guilt who is charged with an assault with intent to murder-that is, as to whether he is guilty of that or of a simple assault and battery-and in determining whether he is guilty of neither, because of having acted in self-defense, we are governed, as a rule, by the same principles as obtain in the law of homicide, and evidence that is admissible under such a charge is usually admissible under such a charge of assault with intent to murder and vice versa. We will therefore, with a view of answering and clarifying some of the questions raised in this case, advert briefly to the law of homicide as applied to persons killing officers in resisting arrest; some of the evidence here tending to show that defendant shot the prosecutor in resistance of an attempted arrest.”

Our Supreme Court held in Logan v. State, 155 Ala. 85, 46 So. 480, that the immediate killing by a husband of the man whom he finds in the act of adultery with his wife is manslaughter. See also Sheppard v. State, 243 Ala. 479, 10 So.2d 822, which holds as follows:

“A husband who finds his wife in act of adultery and moved by passion naturally engendered, immediately kills the wife, is not guilty of ‘murder’ but of ‘manslaughter’ only, but'if there is time for husband’s passion to cool and for reason to reassert itself before he kills the wife, or if he kills her immediately but is not moved by heat of passion but by prior malice, hatred, or desire to avenge the wrong, the husband is guilty of murder.”

For like principles of law see Yol. 11, Alabama Digest, Homicide # 47.

While the defendant here sought to prove an act or acts of adultery between his wife and his victim, there is nothing in the record to indicate that he caught his wife and his victim in the act, thereby creating passion that justifies a conviction for assault and battery. No such act is here involved. After the alleged adultery occurred, considerable time elapsed before the night of the offense embraced in the indictment. Under the facts in this case, we are of the opinion that the trial court ruled correctly in not permitting evidence of the alleged adultery between defendant’s wife and the victim. The evidence was not admissible.

A next contention is that the trial court erred in not permitting defendant to show that the victim had filed suit against him to recover damages for the alleged assault. Evidence of this nature may be permissible under some circumstances to show bias on the part of the victim. We pretermit this point. We have examined the entire record and conclude therefrom that the victim of the assault might have been biased from the aggravated circumstances attending the assault. We do not think the bias is made more manifest by evidence showing the institution of a damage suit. We decline to reverse the adverse ruling of the court that precluded the admission of the evidence. It was error without injury. Rule 45, ARAP. Frazier v. State, Ala.Cr.App., 365 So.2d 339; Cary v. State, Ala.Cr.App., 349 So.2d 616.

The court did not err in refusing several written charges tendered by defendant. They were either substantially covered by the court’s oral charge, were abstract, or failed to state correct and applicable principles of law. § 12-16-13, Code of Alabama 1975.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

Opinion corrected, application for rehearing overruled.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Harrell BROOKS. (In re Harrell Brooks v. State of Alabama).
    79-338.
    Supreme Court of Alabama.
    Sept. 26, 1980.
    Charles C. Partin of Stone, Partin & Gra-nade, Bay Minette, for petitioner.
    Charles A. Graddick, Atty. Gen. and J. Thomas Leverette, Asst. Atty. Gen., for respondent.
   PER CURIAM.

This Court granted certiorari to review a single evidentiary issue: Whether the Court of Criminal Appeals, 393 So.2d 484, erred in affirming the trial court’s ruling which prevented the defendant from cross-examining the victim concerning a civil action brought by the victim against defendant which arose out of the same facts as the criminal prosecution. We hold it was error to disallow such cross-examination; thus, we reverse and remand.

The facts, as stated by petitioner pursuant to ARAP 39(k), are:

The appellant-defendant left his own house, traveled a reasonable distance by truck to the home of the victim, who lived with his mother and father in Sta-pleton, Alabama. A little before 2:00 A.M. the defendant knocked on the door of the residence of which the victim’s mother responded. The defendant gave a fictitious name and asked for the victim to come outside to the defendant’s truck.
Defendant testified that a conversation ensued whereby he told the victim that he wanted him to return to Bay Minette to confront his wife because he had heard the victim was running around with her. The victim refused to go with the defendant and departed in a run from the truck. It was then that the defendant fired three pistol shots at the victim. Two of the bullets hit the victim, one in the back and one in the shoulder, the third shot missed hitting the victim. The victim testified that the defendant threatened to kill him if he did not get into the truck.
Defendant took the stand and testified that he did not intend to kill the victim. He also denied that he threatened to kill the victim. The defendant contended that he was shooting to stop him from leaving the scene. After the shooting, the defendant fled the scene in his truck.

The opinion of the Court of Criminal Appeals addresses this issue thusly:

A next contention is that the trial court erred in not permitting defendant to show that the victim had filed suit against him to recover damages for the alleged assault. Evidence of this nature may be permissible under some circumstances to show bias on the part of the victim. We pretermit this point. We have examined the entire record and conclude therefrom that the victim of the assault might have been biased from the aggravated circumstances attending the assault. We do not think the bias is made more manifest by evidence showing the institution of a damage suit. We decline to reverse the adverse ruling of the court that precluded the admission of the evidence. It was error without injury. Rule 45, ARAP. Frazier v. State, Ala.Cr.App., 365 So.2d 339; Cary v. State, Ala.Cr.App., 349 So.2d 616.

The Court of Criminal Appeals accepts the premise advanced by petitioner that the trial court erred in sustaining the State’s objection to the defendant’s offer to prove the pending civil action. Indeed, the invocation of Rule 45 (harmless error) necessarily presupposes error. But the opinion then rationalizes its holding of “harmless error” by subjectively concluding the bias of the victim already inherent in the circumstances of the assault is not “made more manifest by evidence showing the institution of a damage suit.”

We understand, and are in sympathy with, the apparent logic that rejects the notion that the jury is apt to infer any different or greater degree of bias on the part of the victim because of his institution of a civil action than that which the jury would infer as a material incident of the victim’s injuries suffered at the hands of the defendant. But this approach to the problem begs the question. The pertinent inquiry is: Within whose prerogative does this determination lie?

We find the answer to this question is grounded in the basic rationale for the rule itself. The case law of this state has consistently held the institution of a civil suit arising out of the same facts as a criminal prosecution to be within the permissible scope of cross-examination to show bias on the part of the witness. This rule is augmented by the public policy of this state as codified in § 12-21-137, Code 1975, which mandates the right of every party to a “thorough and sifting” cross-examination of the opponent’s witnesses. Riley v. City of Huntsville, 379 So.2d 557 (Ala.1980).

The general rule, from which the more narrow rule here under consideration evolved, is stated in Green v. State, 258 Ala. 471, 64 So.2d 84 (1953):

It is always competent on cross-examination to make such interrogation of a witness as would tend to test his interest, bias or prejudice or to illustrate or impeach the accuracy of his testimony.

See also, Morrison v. State, 267 Ala. 1, 100 So.2d 744 (1957).

In the discharge of its fact finding functions the jury’s search for the truth includes the paramount right to consider a witness’s motivation, and any evidence testing “his interest, bias or prejudice” so as to “illustrate or impeach the accuracy of his testimony” is a competent, material and relevant subject of cross-examination, and the jury’s right to be given such evidence is, of itself, part of the fact finding process. Green v. State, supra.

We think the very reason and purpose of the rule would be unduly impeded by permitting the trial court to disallow such evidence purely upon its subjective conclusion that other circumstances already before the jury amply manifest the interest or bias of the witness. The cumulative evidence rule has no field of operation in the context of the instant case where no other evidence of the witness’s institution of a civil suit had been proffered.

In conclusion, we observe that to permit the present application of the harmless error rule would unduly restrict our established practice of insuring to every party the right of thorough and sifting cross-examination.

REVERSED AND REMANDED.

All the Justices concur.


text:
    Harrel BROOKS v. STATE
    1 Div. 84.
    Alabama Court of Criminal Appeals.
    Jan. 20, 1981.
   PER CURIAM.

REVERSED AND REMANDED ON AUTHORITY OF THE SUPREME COURT OF ALABAMA, MS. 79-338, Sept. 26, 1980. 393 So.2d 486. NO OPINION.

All the Judges concur.


author: JONES, Justice.

text:
    Edna Lois WISNEIWSKI v. Nettie Frances STARR, Thomas A. Mattox and Billie Jo Heard.
    79-645.
    Supreme Court of Alabama.
    Dec. 2, 1980.
    Rehearing Denied Jan. 23, 1981.
    Charles A. Dauphin of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    Larry Gilbert Pilgrim, Edwardsville, for appellees.
   JONES, Justice.

Appellant appeals from the trial Court’s granting of a mandatory injunction, finding Appellant to be in violation of a restrictive covenant contained in a deed. We affirm.

In 1973, Plaintiff-Appellee .Thomas A. Mattox made plans for the subdivision óf a tract of land owned by him and his wife in Calhoun County, Alabama. The deeds to each individual lot, conveyed pursuant to that plan, contained the following restrictive covenant:

“Use of said parcel is restricted to residential purposes and there can be placed on said parcel of land no more than one residence or one mobile home....” (Emphasis added.)

Mattox subsequently sold other lots, with the same restriction contained in the deeds thereto, to Plaintiff-Appellee Nettie Frances Starr, Plaintiff-Appellee Billie Jo Heard, and Defendant-Appellant Edna Lois Wisneiwski. Starr and Heard bought their lots because of the restrictive covenant in the deeds. Appellant bought her lot with full understanding of the covenant.

In September or October of 1979, Appellant moved an additional mobile home onto her lot. The structure, while not presently being used as a dwelling, is capable of such utilization. It has wheels, a tongue and running gear, and was manufactured with a floor plan for dwelling purposes which it presently retains. A dining room suite was placed therein and has not been removed.

Appellant asserts that the trial court erred in granting its injunction because the expression “one residence or one mobile home” contained in the deed is unclear and ambiguous. The gist of Appellant’s argument is that this language is susceptible of the meaning that the structure in question is something other than a “mobile home” when it is unoccupied. We disagree.

In Laney v. Early, 292 Ala. 227, 292 So.2d 103 (1974), the Court stated:

“The rule applicable here is stated in Centers, Inc. v. Gilliland, 285 Ala. 593, 234 So.2d 883:
“ ‘ * * * While such provisions in deeds are not construed to create restrictions beyond the fair and natural meaning of the words used, read in the light of the circumstances under which they were used, they will be enforced according to their fair and natural meaning, in the absence of fraud or mutual mistake. * * * ’ ”

Laney v. Early, supra, 292 Ala. at 231, 292 So.2d 103.

Covenants restraining the use of real property are strictly construed in favor of the free use of such property; but effect will be given to the manifest intention of the parties when the intention is clear and the restrictions are confined to a lawful purpose within reasonable bounds, and rights created by the covenant have not been relinquished or otherwise lost. Reetz v. Ellis, 279 Ala. 453, 186 So.2d 915 (1966).

Here, no fraud or mutual mistake is claimed. We hold, therefore, that the term “mobile home” is descriptive of the structure in question as found by the trial court. Appropriate relief was granted.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    ARLEN REALTY, INC. v. Mrs. L. L. DOZIER, Cary L. Dozier, Cecil Dozier and Gail Dozier Dickens.
    Civ. 2330.
    Court of Civil Appeals of Alabama.
    July 2, 1980.
    Rehearing Denied Aug. 6, 1980.

      Thad Yancey, Jr. of Cervera & Yancey, Troy, for appellant.
    Jesse M. Williams, III of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
   BRADLEY, Judge.

Arlen Realty, Inc. appeals from a judgment declaring that certain ground leases on the Troy Plaza Shopping Center, Troy, Alabama are terminated.

On November 24, 1970 L. L. Dozier and his wife, Mary Nell Dozier, entered into three separate ground leases with Independent’s Troy, Inc., an Alabama corporation. The leases concerned certain undeveloped land in Troy, Alabama and were identical except for the designation of a specific tract of land and the amount of rent due. The leases were for a term of twenty-five years with options to renew. The land was to be developed into a shopping center and rented out to tenants.

The monthly rent owed to the Doziers is $1,000. The land is subject to a mortgage held by Interstate Life and Accident Insurance Company of Chattanooga, Tennessee for $1,200,000.00.

Mr. L. L. Dozier died, leaving his wife and three children, Cary Dozier, Cecil Dozier and Gail D. Dickens, as heirs who are now parties-defendant in this case.

Independent’s Troy, Inc. dissolved and the leases are presently held by Arlen Realty, Inc.

Arlen Realty became delinquent in its rent for October, November and December 1978. On December 14, 1978 Mr. Cary Dozier sent a delinquent notice to Arlen who then paid the back rent. All rent was paid through February 1979. It was at this time the mortgagee, Interstate, activated its right to receive all rent payments from the tenants in the shopping center.

No rent has been paid since March. On March 14, 1979 Mr. Jay Schapiro of Arlen sent a letter to the Doziers notifying them to send all future correspondence to the Arlen mortgage department in New York.

On May 25, 1979 the Doziers sent a letter to Independent’s Troy, Inc. terminating the lease within ten days. This letter was sent to Independent’s Troy, Inc. at its previous address in Chattanooga, Tennessee with copies mailed to Arlen Realty, Inc. in Atlanta, Georgia; Pitts Associates; Robert Collins of Interstate; and Neil Bramwell, attorney for Arlen in New York.

On August 29, 1979 the Doziers filed an eviction proceeding in the Pike County District Court against Independent’s Troy, Inc. In September 1979 the back-rent due was offered to and rejected by the Doziers.

The correct amount of money was paid into court by Arlen upon the filing of a petition seeking a declaration of its rights under the leases.

The trial court’s order reads in pertinent part:

1. That a justiciable controversy exists between Arlen Realty, Inc., Mrs. L. L. Dozier, Cary L. Dozier, Cecil Dozier and Gail D. Dickens with respect to the existence of certain ‘Ground Leases’ and they are entitled to a declaration of rights thereunder.
3. That Mrs. L. L. Dozier, Cary L. Dozier, Cecil Dozier and Gail D. Dickens are entitled to repossess and enjoy the premises described in the ‘Ground Leases’ for the ‘Ground Leases’ were terminated after notice to Arlen Realty, Inc. after default by Arlen Realty, Inc. without any good faith effort to rectify the default until after the unlawful detainer action was commenced on August 29, 1979, and the filing of this action September 24, 1979.

The dispositive issue on appeal is whether the trial court erred in holding that the Doziers were not required to comply with the specific provisions of the lease relating to its termination.

The lease provides in pertinent part:

If the Lessee shall default in the payment of rent on the date of payment as hereinabove provided, and if such default shall continue for a period of twenty (20) days, after receipt of written notice thereof, ... in the event that Lessee shall default or fail in the performance of a covenant or agreement to be performed by it under this lease, and such default shall not have been cured for a period of thirty (30) days after receipt of written notice, or if such default cannot with due diligence be cured within thirty (30) days after receipt of written notice, ... then after service of written notice informing Lessee of termination of lease in ten (10) days, at the end of the 10th day, it shall be lawful for the Lessor, at its option, by summary proceedings or by any other appropriate legal action or proceedings, to terminate this lease and to enter into said Demised Premises or any part thereof and expel the said Lessee or any person or persons occupying said premises, and so to repossess and enjoy the said premises ....

The only notice given by the Doziers to Arlen was a letter sent on May 25, 1979 informing Arlen that the lease was terminated. Arlen argues that the lease requires twenty days’ written notice of default in rent payments and thirty days’ written notice for default in performance of other covenants and agreements before a notice of termination can be tendered, and that the Doziers’ failure to comply with the terms of the lease rendered the termination of the lease ineffective.

Notice provisions in a lease requiring a landlord to give written notice and provide an opportunity for a tenant to cure any default are conditions precedent which must be averred and proved prior to re-entry of the premises and forfeiture of the lease. Nelson v. Darling Shop of Birmingham, 275 Ala. 598, 157 So.2d 23 (1963); Noel Smith Development Co. v. National Filtronics, Inc., Ala., 360 So.2d 338 (1978). Moreover, forfeitures are not favored in the law or equity. City Garage & Sales Co. v. Ballenger, 214 Ala. 516, 108 So. 257 (1926).

The Doziers have not complied with the notice provisions found in the lease. Indeed, they admit that the only written notice given Arlen was the notice of termination. The lease by its specific terms requires written notice of default and twenty or thirty days to cure such default depending on the nature of the default before notice of termination can be given. When a forfeiture depends on giving a written notice of default, it must appear that the notice was given in strict compliance with the lease both as to time and contents. See Woodall v. Pharr, 119 Ga.App. 692, 168 S.E.2d 645 (1969).

In order to terminate the lease, the Doziers were required to comply with the notice provisions of the lease. This they did not do. Having failed to give proper notice of default, the Doziers cannot terminate the lease. Therefore the decision of the trial court is reversed.

REVERSED AND REMANDED.

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


author: ALMON, Justice.

text:
    Ex parte Mrs. L. L. DOZIER et al. (Re Arlen Realty, Inc. v. Mrs. L. L. Dozier et al.).
    79-868.
    Supreme Court of Alabama.
    Jan. 30, 1981.
   ALMON, Justice.

Writ denied. No opinion.

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


author: DeCARLO, Judge.

text:
    Leonard WILLIAMS v. STATE.
    1 Div. 178.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      Floyd C. Enfinger, Jr., Fairhope for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Leonard Williams was indicted for the offense of first degree rape under § 13A-6-61, Code of Alabama 1975. After a jury trial he was convicted of second degree rape, and upon a determination that he was a recidivist under the Alabama Habitual Felony Offender Act, § 13A-5-9, Code, supra, he was sentenced to forty years.

The prosecutrix was a thirteen-year-old daughter of the appellant and lived with her mother. Leonard Williams, the appellant, did not live with the prosecutrix’s mother, but with Lillie Mae Jones and her three daughters.

On Saturday, February 9,1980, the appellant picked up the prosecutrix for the weekend and took her to the house where he lived with Lillie Mae Jones. On Sunday, February 10th about 7:00 P.M., appellant drove Lillie Mae Jones and her daughters to the “washateria” and then he drove the prosecutrix to Matthews’ store and then to the cemetery. On reaching the cemetery, the appellant drove down a dirt road to some trees. While there he removed the prosecutrix’s clothes and had intercourse with her against her will.

The appellant later returned the prosecu-trix to her mother’s house, where she told her mother that her father had raped her. Her mother took her to police headquarters to report the incident, and the prosecutrix was subsequently taken to the hospital. About 9:00 P.M., a pelvic examination was conducted which revealed numerous live sperm. It was the doctor’s testimony that the presence of live sperm indicated that intercourse had occurred within two hours of the examination.

According to Lillie Mae Jones, it was approximately 7:00 P.M. when the appellant left to take the prosecutrix home. She testified that in approximately thirty minutes appellant returned to the laundromat where he had left them previously. She testified that they then went home and, after having gone to bed, were awakened by the police who arrested the appellant and took him to jail.

Leonard Williams denied that he had raped the prosecutrix, but admitted that he had gone to the cemetery and down a dirt road with her in his car. He maintained, however, that he only drove on the dirt road in order to make it possible for a truck, which was following, to pass. Further, he stated that while he was in the cemetery he had lectured his daughter about the evils of frequenting the “Mod Social Club” located in the Beulah Heights section of Baldwin County. It was appellant’s testimony that, after he had “lectured” his daughter, he took her home, but she asked to go to “Miss Mary Goldsmith’s house.” According to the appellant, he let his daughter out of the car about a block or two from her home, in front of the Goldsmith’s house. Appellant then drove to the “Mod Social Club” and had two beers, and, on his return trip to the laundromat, he saw his daughter walking towards the “Mod Social Club.” The appellant then stopped the car, grabbed his daughter, the prosecutrix, by the arm, placed her in the car, and drove her to her home.

At the end of the State’s testimony, the appellant made a motion to exclude the State’s evidence, and, at the completion of the trial before the case was submitted to the jury, he made a motion for a directed verdict. Both these motions were denied and the question of the sufficiency of the evidence is properly before this court. We have examined the record and find that the evidence was sufficient to present a question of appellant’s guilt for the jury. Williams v. State, Ala.Cr.App., 335 So.2d 249.

I

The appellant alleges that because his three previous felony convictions of assault with intent to murder occurred prior to the enactment of the Alabama Habitual Felony Offender statute § 13A-5-9, Code of Alabama 1975, the trial court’s use of these convictions to enhance punishment constituted a retrospective application of the Act which was constitutionally impermissible as an ex post facto law.

A similar claim was rejected by the United States Supreme Court in Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683. There the Supreme Court stated:

“Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive .... The sentence as a ... habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.”

The United States Constitution and the Alabama Constitution prohibit the passage of ex post facto laws. Article 1, § 10, United States Constitution; Article 1, § 7, Alabama Constitution of 1901. The theory behind the prohibition is that no one should be punished for conduct when the law has not given him advance warning that the conduct was a criminal offense. Section 13A-5-9, Code, supra, does not punish the appellant for past conduct, but merely increases his punishment for his latest offense. See McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542; Watson v. State, Ala.Cr.App., 392 So.2d 1274 (1980).

Therefore, it is our judgment that the Alabama Habitual Felony Offender Act, § 13A-5-9, supra, has not been unconstitutionally applied in a retroactive manner so as to make it an ex post facto law.

II

Appellant contends that § 13A-5-9, supra, is unconstitutional because it violates the equal protection and due process clauses of the Fourteenth Amendment. Appellant claims that a “prosecutor is allowed excessive discretion in the application of the law,” stemming from the first sentence of § 13A-5-9, supra, which, in pertinent part, provides the following:

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

Appellant insists that because the statute does not require the district attorney to apprise the court of a defendant’s prior felony record, the Act is susceptible to selective enforcement and, therefore, constitutionally infirm.

Nothing in the record, however, indicates selective enforcement of the Act. Moreover, the mere showing of selective enforcement of a statute, without more, is not constitutionally impermissible. In Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446, the Supreme Court of the United States observed:

“[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.”

Appellant has alleged only that the Alabama Habitual Felony Offender Act may be selectively enforced. He has not alleged either that it was selectively enforced in this case, or that there are grounds to support a finding of deliberate discrimination. It is insufficient to show only that the law is enforced against some but not others. A showing of actual and purposeful discrimination against each individual himself or against a class in which he falls is necessary. See Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497; Moss v. Hornig, 314 F.2d 89 (2d Cir. 1963).

We recognize that there are certain problems that occur in the application of any recidivist statute, one being the possibility that the prosecutor may be unaware of an accused’s prior felony record at the time of sentencing. In addition, there is the problem that a prior conviction may contain defects, such as the absence of counsel for an indigent defendant. This factor alone will render many prior felony convictions unusable. See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319.

We also recognize that the argument of selective enforcement can be made in all cases where the prosecution has brought the criminal law to bear against an individual. Therefore, in the absence of any evidence to support the appellant’s assertion of possible selective enforcement of the statute, no constitutional violation is shown.

It is our judgment, after examination of the record and transcript of evidence, that the judgment of conviction by the Baldwin Circuit court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Danny Earl COOPER, alias v. STATE.
    4 Div. 822.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1981.

      Timothy B. Loggins, Opp, for appellant.
    Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.
   CLARK, Retired Circuit Judge.

A jury found defendant-appellant guilty under an indictment that charged in pertinent part:

“Danny L. Cooper, alias ... did buy, receive, conceal or aid in concealing one (1) stereo with speakers and two (2) gold ladies necklaces ... of the total and combined value of, to-wit: in excess of $25.00, the personal property of James Mattingly, knowing that the same had been stolen or having reasonable grounds for believing that the same had been stolen, and not having the intent to restore it to the owner.”

The court fixed his punishment at imprisonment for ten years.

The fact that the property was stolen and that it had a value of approximately “two hundred and seventy dollars” was established by the testimony of the owner, who said that he discovered on December 22, 1979, that the named items had been taken from his home in Crestview, Florida.

A major insistence of appellant is that his conviction was based on the testimony of an accomplice that was not “corroborated by other evidence tending to connect the defendant with the commission of the” alleged felony, which is forbidden by Code of Alabama 1975, § 12-21-222. The point was raised in the trial court by a motion to exclude the evidence (which was overruled by the court) at the conclusion of evidence for the State. Appellant urges that the court was in error in overruling the motion to exclude the evidence and in refusing to give some charges requested in writing to the effect that the witness was an accomplice and that there could be no conviction unless her testimony was corroborated by other evidence tending to connect him with the offense.

The heart of appellant’s contention in this respect is to be found in the following portion of his brief:

“It is Appellant’s contention that the State’s witness, Linda Gail Nelson, was an accomplice as a matter of law.
“This Court has held on numerous occasions that the classic and usual test to determine whether a witness is an accomplice is whether he could be indicted and convicted for the particular offense, either as a principal or accessory. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973), Ash v. State, 81 Ala. 76, 1 So. 558 (1887); Jacks v. State, Ala.Cr.App., 364 So.2d 397 (1978); Leonard v. State, 43 Ala.App. 454, 192 So.2d 461.”

There seems to be a growing misconception as to the “test of whether a witness is an accomplice,” which can be readily dispelled by the precise delineation of the test by Justice Faulkner, as found in the case cited by appellant of Miller v. State, 290 Ala. at 252, 275 So.2d at 679, as follows:

“Since these are the witnesses relied on by the State for corroboration, the question is whether they were also accomplices. We hold that they were not. The test of whether a witness is an accomplice is, could the witness have been indicted and convicted of the offense charged either as principal or accessory. If he could not, he is not an accomplice. Dykes v. State, 30 Ala.App. 129, 1 So.2d 754 (1941); Snowden v. State, 27 Ala.App. 14, 165 So. 410 (1936); Ash v State, 81 Ala. 76, 1 So. 558 (1886). Nothing in the record shows that they could have been indicted for the offense.”

The test does not go to the extent that appellant and others claim. It is limited to a test of exclusion, by the language, as stated in Miller, “If he could not, he is not an accomplice.” Cases in which the test has been applied show that it was applied to exclude as accomplices witnesses who could not have been indicted and convicted of the offense charged. We do not doubt that if the particular witness in this case were on trial as a defendant, and the evidence in the case were the same as it is in this case, she could have been convicted of the offense, but we cannot say that she should have been convicted or that the evidence established her guilt. That question would have been one for the trier of the facts to decide.

Appellant supplements his contention in his brief as follows: “Where there is no conflict in the testimony, the question of whether a witness is an accomplice is a question of law for determination by the Court, Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972).” Appellant’s statement is in substantial accord with the statement in the cited case and in many other eases in which it was referable to the question whether a witness was an accomplice, as well as in multitudinous cases in this jurisdiction and elsewhere as to the dividing line between the functions of the judge and the functions of the jury. Unfortunately, it has been often considered as unalterably, un-qualifiedly and uninterruptedly correct. However, it is qualified by the principle that whether there exists a question of law for the judge to decide as distinguished from a question of fact for the jury to decide often turns on whether there is a material conflict in the evidence as to a particular issue of fact, and it appears that such largely accounts for the statement relied upon by appellant. Sometimes, however, the evidence is undisputed but persons of reasonable minds would draw contrary conclusions or inferences from such undisputed evidence as to the issue of fact under consideration. Whether in a criminal case or in a civil case, if the undisputed evidence is such that persons of reasonable minds would and could conscientiously differ in their conclusions therefrom as to whether or not a particular fact existed, its existence vel non is one for the jury to determine. This is true whether the issue of fact is whether there was negligence of a party, whether there was a proximately causal connection between any negligence and an injury, whether a particular person was the aggressor in a fight, whether an accused stole merchandise from a store and as to any innumerable issues of fact. If the law were otherwise, a jury would be a useless appendage in many cases in which there is only one witness as to a pivotal fact in the case.

When conflicting reasonable inferences can be drawn from undisputed evidence, the correct rule to be applied has been variously stated, but we believe that the following is correct:

“Also, our courts have pronounced the rule to be: ‘ * * * when the facts, although undisputed are such that reasonable men may reasonably and conscientiously arrive at opposite conclusions from them, such facts present, not a question of law for the court, but a question of fact for the determination of the jury.’ Stearnes v. State, 4 Ala.App. 154, 58 So. 124.” Pate v. State, 32 Ala.App. 365, 26 So.2d 214, 215 (1946).

Appellant leans heavily upon Jacks v. State, Ala.Cr.App., 364 So.2d 397 (1978) but overlooks the following from page 403:

“Thus where there is doubt or dispute whether a witness is in fact an accomplice, the question is for the jury and not the trial court. Skumro v. State, 234 Ala. 4, 170 So. 776 (1936). Where there is doubt whether a witness is in fact an accomplice, and the testimony is susceptible to different inferences on that point, that question is for the jury. Sweeney v. State, 26 Ala.App. 220, 143 So. 586 (1932); Horn v. State, 15 Ala.App. 213, 2 So. 768 (1916). (Emphasis supplied).”

The witness, an eighteen-year-old girl, who appellant says was an accomplice of appellant, a twenty-six-year-old man, testified that prior to, or on, the day before Christmas, the defendant and one Cecil Gill-man came to her brother’s house in Lock-hart, where she lived with her mother and stepfather, and brought the stereo to the back door. She said:

“Well, Cecil and Danny come and Danny come to the back door and he was talking about Cecil had a stereo that he wanted to sell and I had been wanting one a long time. So I came over to look at it. And we walked out to the car. And I asked Danny how much did he want for it and Danny said, Well, I probably could get it for fifty dollars, but Cecil wanted sixty-five and — uh—Danny had said earlier that he would just give it to me if it was his. And so he got it and brought it in the house.
“Q. Is that when you agreed to buy it? When they got it out of the car and brought it in the house?
“A. Yes.
“Q. Okay. All right. Now, Danny — let me get this straight. Danny told you that it was Cecil’s stereo, is that correct?
“A. Yes.
“Q. Okay. You agreed to buy it for sixty-five dollars, is that correct?
“A. Yes.
“Q. Okay. Did you give them any money at the time?
“A. No.
“Q. Have you given them any money for it?
“A. Not then. I gave them twenty-five dollars later or my stepfather did.
“Q. How soon after they were there when they brought in the stereo, was the twenty-five dollars given to them? Was it that same day?
“A. It was about a week or a week and a half.
“Q. Okay. Did this stereo appear to be worth a great deal more money than sixty-five dollars in your opinion?
“A. Yes.
“Q. Well, did you inquire, would you tell the jury here whether or not you inquired if it was stolen?
“A. Well, I mentioned — I asked Danny was it stolen and he said, no.
“Q. And did you say anything else?
“A. Yes, I said — he says, well, what if it is? Well.
“Q. You said, well .. . just go ahead. Tell me again what Danny said?
“A. I asked him was it stolen and he said, no. Then he said, well, it don’t really matter, does it?
“MR. McGILL: I didn’t understand that. What . . .
“THE COURT: It doesn’t really matter, does it.
“Q. And you said?
“A. No.
“Q. You said it really didn’t matter?
“A. Well, I didn’t think it was. I mean I didn’t figure it would be.
“Q. Even though it appeared to be worth a great deal more than sixty-five dollars?
“A. Well, Cecil said he was getting a divorce and he needed the money.”

She further testified that she received the two gold necklaces from Danny at Christmas.

Appellant contends that the above testimony shows as a matter of law that the witness was an accomplice. In order for her to have been guilty as an accomplice she must have known that the property had been stolen or had reasonable grounds for believing that it had been stolen. In her testimony, she seems to protest any such state of mind on her part.

By her statement, she said in effect she believed that the bargain price on the stereo was because Gillman was getting a divorce and that he needed the money. For the trial court to have held as a matter of law that she was an accomplice would have been invasive of the province of the jury.

The only other insistence for a reversal is directed to a comment of the trial court that occurred during the direct examination by the State of the witness who appellant says was an accomplice, pertaining to her receiving the necklaces. We quote from the transcript the comment of the trial judge and the context thereof:

“Q. The day before Christmas? And where did you see them?
“A. In my mother’s bedroom.
“Q. All right. And had you talked with Danny Cooper about these?
“A. No.
“Q. You never have talked with him about it?
“A. I don’t remember.
"Q. Pardon?
“A. I don’t think so.
“Q. You don't think so? I want you to think real carefully now.
“A. I might have mentioned something to him after I got them.
“Q. And what did he say?
“A. I don’t remember.
“Q. Did he say anything about them?
“A. I don’t remember.
“Q. Did he say they were yours and that he give them to you?
“MR. LOGGINS: We object to the leading form of the question, Your Honor. He’s putting words in her mouth. She said she didn’t remember three times.
“THE COURT: Overruled. The witness is obviously reluctant.
“MR. LOGGINS: We except.
“A. Uh — I mentioned something to him about them, but I don’t remember everything that was said.
“Q. I want to know what he stated?
“A. I don’t remember.”

Appellant does not question the correctness of the court’s action in overruling defendant’s objection to the question to the witness on the ground that it was leading. He says that the court’s statement that “The witness is obviously reluctant” was a comment “upon the credibility and demean- or of the witness which is a question solely for determination by the jury.” We do not construe defendant s exception as any protest against the statement of the court but as an exception to the court’s ruling. If counsel had thought that it was an improper comment, he should have made known that view to the court, so that it would have had an opportunity to take corrective action, which it could well have done, by an explanation to the jury. We think the comment was obviously an explanation to defendant’s counsel of the court’s reason for overruling his objection. Whether the comment was appropriate or not, we find nothing therein that constitutes error prejudicial to defendant.

A review of the record discloses no error prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.