text:
    In the Matter of Brian Keith BALDWIN v. STATE of Alabama.
    78-127.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    John L. Carroll, Montgomery, and Win-dell C. Owens, and Paul M. Harden, Mon-roeville, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Sp. Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Supreme Court of the United States, on June 30, 1980, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133, issued the following mandate in this cause:

ON WRIT OF CERTIORARI to the Supreme Court of Alabama.
THIS CAUSE having been submitted on the petition for writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the said Supreme Court [372 So.2d 32] in this cause is vacated, and that this cause is remanded to the Supreme Court of Alabama for further consideration in light of Beck v. Alabama, 447 U.S. [625, 100 S.Ct. 2382, 65 L.Ed.2d 392] (1980).

Therefore, pursuant to the mandate of the Supreme Court of the United States, this case is remanded to the Court of Criminal Appeals for consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and this Court’s decisions in Beck v. State, 396 So.2d 645 (Ala. 1980); Ritter v. State, 403 So.2d 154 (Ala. 1981); and Reed v. State, 407 So.2d 162 (Ala. 1981).

REMANDED WITH DIRECTIONS.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

On remand, Ala.Cr.App., 405 So.2d 699.

MADDOX, JONES and ADAMS, Justices

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala. 1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala. 1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 2386, 65 L.Ed.2d 392 (footnote 7) (1980).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brian Keith BALDWIN v. STATE.
    1 Div. 901.
    Alabama Court of Criminal Appeals.
    Oct. 6, 1981.
   PER CURIAM.

Reversed and remanded on authority of Beck v. State, 396 So.2d 645 (Ala.1980). No opinion.

All the Judges concur.

[Opinion originally published at 372 So.2d 26, (Ala.Cr.App.); affirmed, 372 So.2d 32 (Ala.), vacated 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1113.]


author: PER CURIAM. MADDOX, JONES and ADAMS, Justices

text:
    In the Matter of Clyde CADE v. STATE of Alabama.
    78-288.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Joseph P. Hughes, Geneva, for petitioner.
    Charles A. Graddick, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Supreme Court of the United States, on June 30, 1980, 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133, issued the following mandate in this cause:

ON WRIT OF CERTIORARI to the Supreme Court of Alabama.
THIS CAUSE having been submitted on the petition for writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the said Supreme Court [375 So.2d 828] in this cause is vacated, and that this cause is remanded to the Supreme Court of Alabama for further consideration in light of Beck v. Alabama, 447 U.S. 625 [100 S.Ct. 2382, 65 L.Ed.2d 392] (1980).

Therefore, pursuant to the mandate of the Supreme Court of the United States, this case is remanded to the Court of Criminal Appeals for consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and this Court’s decisions in Beck v. State, 396 So.2d 645 (Ala.1980); Ritter v. State, 403 So.2d 154 (Ala.1981); and Reed v. State, 407 So.2d 162 (Ala.1981).

REMANDED WITH DIRECTIONS.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

On remand, Ala.Cr.App., 405 So.2d 700.

MADDOX, JONES and ADAMS, Justices

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala.1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala.1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 630, 100 S.Ct. 2382, 2386, 65 L.Ed.2d 392 (footnote 7) (1980).


author: HARRIS, Presiding Judge.

text:
    Clyde CADE v. STATE of Alabama.
    4 Div. 640.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
    Joseph P. Hughes, Geneva, for petitioner.
    Charles A. Graddick, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for respondent.
   HARRIS, Presiding Judge.

The judgment of the conviction is reversed and the cause remanded for a new trial on mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala. 1981); Ritter v. State, 403 So.2d 154 (Ala., 1981), 403 So.2d 158 (Ala.Cr.App., 1981), July 7, 1981, Motion for State of Mandate Denied by Ala. S.C.; and Cade v. State, 405 So.2d 699 (Ala. 1981).

REVERSED AND REMANDED.

All the Judges concur.

[Opinion originally published at 375 So.2d 802 (Ala.Cr.App.); affirmed, 375 So.2d 828 (Ala.), vacated 448 U.S. 903, 100 S.Ct. 3043, 65 L.Ed.2d 1133.]


text:
    In the Matter of Willie Lewis MACK v. STATE of Alabama.
    78-383.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    J. L. Chestnut, Jr., Selma, for petitioner.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, Sp. Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Supreme Court of the United States, on June 30, 1980, 448 U.S. 903, 100 S.Ct. 3044, 65 L.Ed.2d 1134, issued the following mandate in this cause:

ON WRIT OF CERTIORARI to the Supreme Court of Alabama.
THIS CAUSE having been submitted on the petition for writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the said Supreme Court [375 So.2d 504] in this cause is vacated, and that this cause is remanded to the Supreme Court of Alabama for further consideration in light of Beck v. Alabama, 447 U.S. [625, 100 S.Ct. 2382, 65 L.Ed.2d 392] (1980).

Therefore, pursuant to the mandate of the Supreme Court of the United States, this case is remanded to the Court of Criminal Appeals for consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and this Court’s decisions in Beck v. State, 396 So.2d 645 (Ala.1980); Ritter v. State, 403 So.2d 154 (Ala. 1981); and Reed v. State, 407 So.2d 162 (Ala. 1981).

REMANDED WITH DIRECTIONS.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

On remand, Ala.Cr.App., 405 So.2d 701.

MADDOX, JONES and ADAMS, Justices

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala.1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala.1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 2386 (footnote 7) 65 L.Ed.2d 392 (1980).


text:
    Willie Lewis MACK v. STATE of Alabama.
    3 Div. 869.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
   HARRIS, Presiding Judge.

The judgment of the conviction is reversed and the cause remanded for a new trial on mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala.1981); Ritter v. State, 403 So.2d 154 (Ala., 1981), 403 So.2d 158 (Ala.Cr.App., 1981), July 7, 1981, Motion for Stay of Mandate Denied by Ala. S.C.; and Mack v. State, 405 So.2d 700 (Ala.1981).

REVERSED AND REMANDED.

All the Judges concur.

[Opinion originally published at 375 So.2d 476; affirmed, 375 So.2d 504.]


text:
    In the Matter of Timothy Dale CRAWFORD v. STATE of Alabama.
    78-749.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    Samuel L. Adams, Dothan, for petitioner.
    Charles A. Graddick, Atty. Gen., and Thomas W. Sorrells, Dist. Atty., for respondent.
   PER CURIAM.

The Supreme Court of the United States, on June 30, 1980, 448 U.S. 904, 100 S.Ct. 3044, 65 L.Ed.2d 1134, issued the following mandate in this cause:

ON WRIT OF CERTIORARI to the Supreme Court of Alabama.
THIS CAUSE having been submitted on the petition for writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the said Supreme Court [377 So.2d 159] in this cause is vacated, and that this cause is remanded to the Supreme Court of Alabama for further consideration in light of Beck v. Alabama, 447 U.S. 625 [100 S.Ct. 2382, 65 L.Ed.2d 392] (1980).

Therefore, pursuant to the mandate of the Supreme Court of the United States, this case is remanded to the Court of Criminal Appeals for consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and this Court’s decisions in Beck v. State, 396 So.2d 645 (Ala.1980); Ritter v. State, 403 So.2d 154 (Ala.1981); and Reed v. State, 407 So.2d 162 (Ala.1981).

REMANDED WITH DIRECTIONS.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

On remand, Ala.Cr.App., 405 So.2d 702.

MADDOX, JONES and ADAMS, Justices

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala.1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala.1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 630, 100 S.Ct. 2382, 2386, 65 L.Ed.2d 392 (footnote 7) (1980).


text:
    Timothy Dale CRAWFORD v. STATE of Alabama.
    4 Div. 687.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala.1981), and Crawford v. State, 405 So.2d 702 (Ala.1981).

REVERSED AND REMANDED.

All the Judges concur.

[Opinion originally published at 377 So.2d 145; affirmed, 377 So.2d 159.]


text:
    In the Matter of Huey Edward COON v. STATE of Alabama.
    79-66.
    Supreme Court of Alabama.
    Aug. 28, 1981.
    A1 Pennington, Mobile, Donald F. Col-quett and Eugenia L. Loggins, Opp, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Supreme Court of the United States, on October 6, 1980, 449 U.S. 810, 101 S.Ct. 58, 66 L.Ed.2d 14, issued the following mandate in this cause:

ON WRIT OF CERTIORARI to the Supreme Court of Alabama.
THIS CAUSE having been submitted on the petition for writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the said Supreme Court [380 So.2d 990] in this cause is vacated, and that this cause is remanded to the Supreme Court of Alabama for further consideration in light of Beck v. Alabama, 447 U.S. [625, 100 S.Ct. 2382, 65 L.Ed.2d 392] (1980).

Therefore, pursuant to the mandate of the Supreme Court of the United States, this case is remanded to the Court of Criminal Appeals for consideration in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and this Court’s decisions in Beck v. State, 396 So.2d 645 (Ala.1980); Ritter v. State, 403 So.2d 154 (Ala.1981); and Reed v. State, 407 So.2d 162 (Ala.1981).

REMANDED WITH DIRECTIONS.

All Justices concur, except MADDOX, JONES and ADAMS, JJ., who concur specially.

On remand, Ala.Cr.App., 405 So.2d 704.

MADDOX, JONES and ADAMS, Justices

(concurring specially):

By concurring specially we adhere to the views expressed in our respective opinions in Ritter v. State, 403 So.2d 154 (Ala.1981), to the effect that we would not reverse the conviction in any case in which the record of trial affirmatively precludes any showing which would entitle the defendant to a jury instruction on a lesser included offense.

Because the per curiam opinion mandates a retrial on the issue of guilt, as well as the issue of sentence, we re-emphasize the proposition that an instruction on a lesser included offense is required “on any lesser included offense supported by the evidence,” Beck v. State, 396 So.2d 645, 657 (Ala.1980), but an instruction on a lesser included offense would be appropriate only if there was evidence which would support the giving of such an instruction. Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 2386 (footnote 7), 65 L.Ed.2d 392 (1980).


text:
    Huey Edward COON v. STATE of Alabama.
    4 Div. 708.
    Court of Criminal Appeals of Alabama.
    Oct. 6, 1981.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on mandate of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, 396 So.2d 645 (Ala.1981), and Coon v. State, 405 So.2d 703 (Ala. 1981).

REVERSED AND REMANDED.

All the Judges concur.

[Opinion originally published at 380 So.2d 980; affirmed, 380 So.2d 990.]


author: HOLMES, Judge.

text:
    Yulanda Joan HILLEY v. Boyd R. HILLEY.
    Civ. 2256.
    Court of Civil Appeals of Alabama.
    July 30, 1980.
    Rehearing Denied Sept. 3, 1980.

      Jerry K. Selman of Selman, Beaird & Selman, Jasper, for appellant.
    W. Allen Grocholski of Holder, Moore & Grocholski, Fayette, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals, contending the trial court abused its discretion in the division of property and in failing to award periodic alimony. Furthermore, the wife contends a provision in the divorce decree will render her incapable of finding employment and will unduly restrict her religious activities.

We find the trial court did not commit reversible error and affirm.

Viewing the record with the attendant presumption accorded the trial court’s action, we find the following:

The parties were married for approximately fifteen years. Two children were born of the marriage. Both the children are minors, being thirteen and eight years of age respectively.

The wife is approximately thirty-one years old and has no separate estate. She married the husband when she was sixteen years old. She was unemployed at the time of the divorce, but did work approximately two and one-half years during the course of the marriage as a seamstress and/or a grader of processed poultry. She testified she quit these jobs at her husband’s insistence. The husband is thirty-nine years old and employed by Republic Steel Corporation. His duties are to supervise and coordinate all work having to do with the coal preparation plant at a local coal mine. The husband’s gross income in both 1978 and 1979 was approximately $30,000.

The divorce proceedings were marked by considerable acrimony. Prudence dictates that we do not set out the parties’ allegations in detail. Suffice it to say the wife complained the husband was subject to fits of anger and claimed that he would regularly curse and beat her. Her mother and sister each testified to witnessing such an event.

The husband denied these allegations. He admitted there had been an incident at the mother’s home some six years prior, but denied striking the wife. He claimed he was merely trying to get the older child of the marriage away from the wife because the wife had left him and had taken up residence with another man. The husband further accused the wife of attacking him on several occasions.

There was further testimony that during the three years preceeding the divorce the wife had become engrossed in church related activities. The husband testified she would be gone from home several days at a time. He claimed that she would attend various functions nearly every week night, staying gone until late in the evening. The husband further stated the wife failed to keep the home in order because of her frequent absences.

There was testimony the wife brought the children to these functions. They would sometimes sleep in the pews until the wife was ready to return home. Because of this, the husband sought custody, contending these long and irregular hours were adversely affecting the children.

The trial judge, after the ore tenus hearing, divorced the parties on the ground of incompatibility. He awarded custody of the two children to the wife and ordered that the husband pay $600 per month in child support. He also ordered that the husband maintain medical insurance coverage for the children.

The decree provided further:

3. That during the time that the children are in the care, custody and control of the Plaintiff, she will curtail all activities that require her to be away from the children, or requires the children to travel from the home during the week except for one church function of reasonable duration and normal school and social functions in which the children may become involved.

The wife was awarded an automobile and all the furniture, fixtures, and household goods of the parties. She was granted the right to possess the family residence until the younger child attained majority. The husband-was ordered to pay the monthly mortgage note and all reasonable expenses for the upkeep of the house. It was provided the house would be sold when the youngest child reached majority, with the proceeds being equally divided after the husband was reimbursed for the above expenditures.

The husband was awarded his personal property, a pickup truck, a boat and motor, and a five acre tract of land on which was situated a mobile home. He was allowed to retain his retirement and savings with his employer. However, he was ordered to pay all then outstanding family debts and obligations. These were in excess of $14,000, excluding the amount due on the mortgage.

As indicated, the wife appeals the denial of periodic alimony, the division of property, and the inclusion of the above quoted provision relating to her church activities.

At the outset, we note that when the evidence in a divorce case is heard ore tenus, the trial court’s findings are presumed correct and the division of property and award of alimony will not be disturbed on appeal in the absence of proof that the trial court’s discretion was exercised in an arbitrary and unjust manner. Johnson v. Johnson, Ala.Civ.App., 360 So.2d 996, cert. denied, Ala., 360 So.2d 999 (1978).

With the above facts in mind, we cannot say the learned trial judge abused his discretion in the division of property. The wife was awarded the homeplace for so long as the youngest child remains a minor. The husband was burdened with monthly payments in excess of $800, excluding his child support obligation.

True, all but the house payment and child support may conceivably soon be satisfied, but, as a consequence, the property awarded the wife will not be encumbered or a financial burden to her. The division of property is affirmed.

Likewise, we see no abuse of discretion, on these facts, in requiring the wife to curtail some of her church related activities as they relate to the welfare of the children. There was evidence the wife took the children with her as she traveled to these functions. They were oftentimes kept out until midnight and forced to find rest by sleeping in the pews. The father testified this was noticeably detrimental to their health.

It is well established that the trial court’s predominant consideration in such a case is the best interests of the children. Gandy v. Gandy, Ala.Civ.App., 370 So.2d 1016, cert. denied, Ala., 370 So.2d 1019 (1979). Indeed, § 30-3-1, Code of Ala.1975, allows the trial court, upon granting a divorce, to make such orders in respect to the custody of the children as their safety and well-being may require. Thus, the court has approved reasonable restrictions in divorce decrees which promote the welfare of the children involved. Allen v. Allen (Holt), 385 So.2d 1323 (Ala.Civ.App., 1980).

Here, in a candid exchange at the hearing on the wife’s motion for new trial, the learned trial judge stressed that, in his view, the wife’s activities approximated abuse. He indicated that having found the husband fit, he would have awarded custody to him but for the challenged provision. We conclude that, under such circumstances, the provision was neither unreasonable nor arbitrary.

This is not to say that such provisions are to be lightly included in divorce decrees. If, as the mother contends, the provision prohibits the free exercise of her religion, this would be a different case, involving grave constitutional questions. See, Simo- netti v. City of Birmingham, 55 Ala.App. 163, 314 So.2d 83, cert. denied, 294 Ala. 192, 314 So.2d 99 (1975).

However, as we read the provision, and as the trial judge explained it, the wife is merely to refrain from volunteering her services on a nightly basis so long as she has custody of the children. She is free to do as she pleases on weekends and one night per week or any other time she does not have custody. Such an order comports with what the trial judge reasonably found to be the best interests of the children. Put another way, the limiting provision of the decree was simply the condition the trial court placed on the wife in order for her to obtain custody. If she does not desire custody such a decision can be appropriately processed. Or if she voluntarily places temporary custody with the husband she may attend whatever meetings she desires.

Finally, we address the wife’s contention she should have been awarded periodic alimony. She points to her lack of education and work experience, as well as to the alleged fault of the husband in causing the divorce. The husband counters by pointing to what he would term the wife’s misconduct.

It is not for this court to resolve such evidentiary conflicts. The trial court heard and saw the witnesses and it was his duty to resolve any conflicts in the evidence. Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715 (1976).

As indicated, the learned trial judge felt the wife’s inordinate time spent away from home came very close to abuse of the children. There was testimony which, if believed, would show the wife had been unfaithful to the husband. Again, there was evidence that the wife, not the husband was the more aggressive party. Furthermore, the husband complained that the wife’s frequent absences led to neglect of the homeplace.

As was said in Plaskett v. Plaskett, Ala. Civ.App., 348 So.2d 784, 788, cert. denied, Ala., 349 So.2d 789 (1977):

An award of alimony as incident to the granting of a divorce is not mandatory but at the discretion of the trial court... . Misconduct of a wife, even though not grounds for a divorce, may be considered as a measure abridging her claim to an allowance of alimony. . . . (Citations omitted.)

There, as here, the wife had little work experience and was denied alimony. Indeed, the wife in Plaskett was suffering from physical disabilities which are absent in this case. There also, as here, all outstanding family debts were to be paid, leaving the wife with small living expenses. However, in Plaskett, the family home was to be immediately sold, with such debts to be paid from the proceeds before division. Here, not only will the wife retain the right to possession of the house, but also the debts must be borne solely by the husband. If there was no abuse of discretion in Plask-ett, then clearly, there was none in the instant case.

In light of the above, we need not address in depth the wife’s contention the challenged portion of the decree relating to her outside activities will prevent her from seeking employment. Suffice it to say the decree in no. way addresses nor limits her ability to hold normal employment.

This case is due to be affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Ex parte Yulanda Joan HILLEY. In re Yulanda Joan HILLEY v. Boyd R. HILLEY.
    79-946.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    Jerry K. Selman of Selman, Beaird & Selman, Jasper, for petitioner.
    W. Allen Grocholski of Holder, Moore & Grocholski, Fayette, for respondent.
   ALMON, Justice.

Yulanda and Boyd Hilley were divorced in 1979. As part of that proceeding, the trial judge awarded Yulanda custody of her thirteen-year-old daughter and eight-year-old son. In his decree awarding custody, the trial judge ordered, inter alia:

That during the time that the children are in the care, custody, and control of [Yulanda], she will curtail all activities that require her to be away from the children, or requires the children to travel from the home during the week except for one church function of reasonable duration and normal school and social functions in which the children may become involved.

The intent of this provision was made clear during the hearing of Yulanda’s motion for new trial. During trial, Yulanda testified that she is an evangelist and church choir member. These activities require her to frequently attend on week nights and weekends various services, conventions, revivals and choir performances. In the past her children have accompanied her to these events, which typically last until 11:00 p. m. or later. The children oftentimes have fallen asleep on the church pews and had to be awakened when Yulan-da was ready to return home.

During the hearing of Yulanda’s motion for new trial, the trial judge stated that he considered Yulanda’s actions in taking the children to these late night functions during the week bordered upon abuse and, but for the provision restricting Yulanda’s activities, he would have awarded custody to Boyd Hilley. The trial judge further stated that the provision was not intended to prevent Yulanda from securing normal employment during those hours when the children were in school, but was intended to restrict her engagement in the numerous church activities.

The Court of Civil Appeals, 405 So.2d 704, upheld the provision in question as a reasonable condition upon Yulanda’s custody of the children. We granted certio-rari to review the narrow question of whether a court can condition the award of custody upon the curtailment of the parent’s religious activities.

Code 1975, § 30-3-1 provides in part:

Upon granting a divorce, the court may give the custody and education of the children of the marriage to either the father or the mother, as may seem right and proper, having regard to the moral character and prudence of the parents and the age and sex of the children; and pending the action, may make such orders in respect to the custody of the children as their safety and well-being may require. . . .

In deciding which parent should have custody, the paramount consideration is the health, safety and well-being of the children. Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967); Fowler v. Fowler, 280 Ala. 305, 193 So.2d 748 (1966); Keele v. Keele, 347 So.2d 1360 (Ala.Civ.App.1977); Higgins v. Higgins, 336 So.2d 194 (Ala.Civ. App.1976).

The propriety of considering the parents’ religious beliefs and practices as a factor in awarding custody was recognized in Alabama in Clift v. Clift, 346 So.2d 429 (Ala. Civ.App.), cert. denied, 346 So.2d 439 (Ala. 1977). In that case the court rejected the plaintiff’s contention that consideration of her religious beliefs impermissibly infringed on her right to pursue the religious beliefs of her choice, and noted:

The Constitution guarantees that citizens of the United States shall be free to pursue the religious beliefs of their choice. Consonant with this First Amendment right, courts have repeatedly declared that religious beliefs alone shall not constitute the sole determinant in child custody awards. . . .
However, that one’s religious beliefs may not serve as the sole consideration in a child custody proceeding does not necessarily preclude exploration into those beliefs. In this state, as in other jurisdictions, the ultimate consideration in determining the proper custody of the child is what is in his best interests.... Religious beliefs are as diverse as the individuals who comprise the citizenry of this country. Unfortunately, some of these beliefs embrace philosophies which, contrary to being in the best interest of the child, might actually imperil his physical or mental health. Albeit courts are forbidden from weighing the merits of the religious tenets of the various faiths, they nevertheless are not precluded from inquiring into the beliefs of the parties who are seeking custody of the child in order to insure that such beliefs do not endanger the child.

346 So.2d at 435-35 (citations omitted).

Although Clift did not involve an order which conditioned continued custody upon modification of religious practices, the Arizona case of Stapely v. Stapely, 15 Ariz. App. 64, 485 P.2d 1181 (1971), did involve such an order. In that case, the court issued an order which prohibited the mother, a devout Jehovah’s Witness, from allowing the children to distribute or sell religious literature in public, and further required the mother to notify the father of any illness or injury suffered by the children so that the father could participate in the selection of a physician, hospital and course of treatment. The order provided in part:

In the event a whole blood transfusion is recommended by a licensed physician as being in the best interest of any of the minor children, the [father] shall be entitled to exclusively make the decision to authorize or not, said whole blood transfusion. In the event the [mother] attempts or does interefere with such decision by the [father] or fails or refuses to permit him to exercise the aforesaid rights, the permanent care, custody and control of each and all of the minor children of the parties shall thereafter vest in the [father]

15 Ariz.App. at 67; 485 P.2d at 1184 (emphasis added).

When the mother failed to comply with this order, the father petitioned for and was awarded custody of the children. In affirming the award, the Arizona Court of Appeals stated:

We agree with the proposition that the mother’s religious views, albeit at variance with those of the majority, [are] not, standing alone, a ground for a change of custody. . . . Where, however, there is a serious danger to the life or health of a child as a result of the religious views of a parent, courts in other jurisdictions have recognized that this may bar custody by the parent holding such views by an appropriate order.

15 Ariz.App. at 70, 485 P.2d at 1187 (citations omitted).

An order prohibiting the father from taking his children to any Catholic services or to any instructional classes sponsored by the Catholic Church while the children were visiting him was held to be an abuse of discretion in Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133 (1971). There the court stated:

Thus, the rule appears to be well established that the courts should maintain an attitude of strict impartiality between religions and should not disqualify any applicant for custody or restrain any person having custody or visitation from taking the children to a particular church, except where there is a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child.
We recognize the general rule that in child custody cases the trial court, in furtherance of the best interests and welfare of the child, is vested with a wide latitude of discretion and in the absence of manifest abuse of discretion in awarding the custody and control of minor children, its judgment will not be disturbed on appeal .... However, where the trial court does not follow the generally established rule of noninterference in religious matters in child custody cases without an affirmative showing of compelling reasons for such action, we are of the opinion that this is tantamount to a manifest abuse of discretion.

79 Wash.2d at 813-14, 489 P.2d at 1135 (citations omitted.) Because the appellate court found no evidence that exposure to two different religions, /. e., the father’s and the mother’s, had any detrimental effect upon the children, it struck the trial court’s order as an abuse of discretion.

A situation similar to that in Munoz existed in Compton v. Gilmore, 98 Idaho 190, 560 P.2d 861 (1977). The court in that case stated that the trial judge’s oral instruction that the father refrain from providing religious training for his daughter while she was visiting him was erroneously and improvidently given in light of the general rule against judicial interference in religious matters.

Also, in Battaglia v. Battaglia, 9 Misc.2d 1067, 172 N.Y.S.2d 361 (1958), the court, in changing custody from the mother, a devout Jehovah’s Witness, to the father, stated:

Petitioner, of course, enjoys her constitutional right to freedom of religion and may practice the religious faith of her choice without interference. She has not, however, the right to impose upon an innocent child the hazards to it flowing from her own religious convictions. The welfare of the child is paramount.
The child has a right to survival and a chance to live and the court has a duty to extend its protecting arm to the child. It is of no concern to the court what religious preference the parents may elect. The best interests of the child are the primary concern in all custody conflicts and not the desires of either the mother or father.

9 Misc.2d at 1068, 172 N.Y.S.2d at 362 (citations omitted).

Although the decisions in Stapely, Munoz, Compton and Battaglia could possibly be construed as authority for the trial judge’s order in the present case, they are all distinguishable on one very important point: In none of the cited cases did the orders prohibit the parents from themselves following and/or engaging in the beliefs and practices of their chosen religion. The orders merely prohibited the parents from binding the children to their particular beliefs or practices when they threatened the health or welfare of the children. The order in the present case, however, goes beyond that. It effectively restricts Yulan-da’s free exercise of her chosen religion by providing that “she will curtail all activities that require her to be away from the children. ...” Thus, Yulanda is not free to attend church or other church related activities during that time when the children are out of school because the order does not permit her to leave the children in the care of a babysitter or other suitable attendant. If she violates the court order she is subject to being held in contempt. See Hallford v. Hallford, 390 So.2d 295 (Ala.Civ.App.1980); Schotz v. Oliver, 361 So.2d 605 (Ala.Civ. App.1978). Viewed in the light of the free exercise clauses of the United States Constitution, amend. I, and the Alabama Constitution, art. I, § 3, we think that conditioning the award of custody upon the restriction of the parent’s right to free exercise of religion is an impermissible infringement on religious freedom and therefore constitutes an abuse of discretion.

This is not to say, however, that a trial judge may not consider what effect a parent’s involvement in religious activities will have upon the welfare and best interests of the child. When presented with a situation where the involvement of the parents in religious activities could have a direct and adverse effect upon the children, the trial judge is free to examine the extent of that involvement and, if he determines that such involvement will threaten the welfare of the child, then the court may award custody to whomever it deems to be the most appropriate custodian. Thus, in the present case, if the trial judge determines that Yulanda’s continued involvement in church related activities will be detrimental to her children, then the trial judge could consider awarding custody of the children to their father.

We think it fair to comment that the language of the trial court’s final decree is probably more restrictive than the court actually intended. We make this observation in light of the judge’s comments on motion for new trial concerning the meaning of the decree.

The judgment of the Court of Civil Appeals is reversed to the extent that it is inconsistent with this opinion. The judgment is otherwise affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All the Justices concur, except JONES, J., who concurs in the result.

       This case does not present, nor do we decide, a situation where a parent who seeks custody consents to restrict his or her involvement in religious activities, the pursuit of which might be detrimental to the children.


text:
    Yulanda Joan HILLEY v. Boyd R. HILLEY.
    Civ. 2256.
    Court of Civil Appeals of Alabama.
    Sept. 30, 1981.
   HOLMES, Judge.

The prior opinion of this court, Ala. Civ.App. 405 So.2d 704, has been affirmed in part, reversed in part, and remanded to this court for further proceedings. On remand to this court, and in compliance with the supreme court’s opinion of August 21, 1981, Ala., 405 So.2d 708, this cause is now affirmed in part, reversed in part, and remanded for entry of a judgment not inconsistent with the opinion of the supreme court.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THE OPINION OF THE SUPREME COURT.

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


author: WRIGHT, Presiding Judge.

text:
    Tommy JAMES and Alabama Institute of Business, Inc. v. STATE FARM FIRE & CASUALTY COMPANY.
    Civ. 2623.
    Court of Civil Appeals of Alabama.
    June 17, 1981.
    Rehearing Denied July 22, 1981.
    Jack Clarke of Henley & Clarke, North-port, for appellants.
    William J. Donald and William J. Donald, III, of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

Tommy James and Alabama Institute of Business, Inc. (AIB), a corporation solely owned and managed by James, were insured under policies of insurance issued by State Farm Fire and Casualty Company (State Farm). James and AIB were jointly sued by a former employee, Claudia Johnson, for damages for assault and battery. After trial, Johnson recovered a verdict and judgment against James and AIB in the amount of $6,000. The judgment was paid by AIB. James and AIB brought suit against State Farm under the policies for indemnification and refusal to provide a defense. Motions for summary judgment were filed by both plaintiffs and defendant. State Farm filed with its motion the record in the case brought by Johnson. The motion by plaintiffs was denied. The motion by State Farm was granted.

The primary issue is: Was summary judgment proper?

The facts presented are: James is president and sole stockholder of AIB. Claudia Johnson was an employee of AIB, but had been dismissed by James on August 1, 1978. On August 2 she went to one of the business offices of AIB and got into an argument with James over claimed commissions. As she was leaving, James assaulted her, knocking her to the ground and injuring her. She sued and recovered judgment against both James and AIB.

State Farm had in force at the time two policies of insurance insuring James and AIB. One policy was a “Special Multi-Peril Policy” providing bodily injury and property damage liability coverage. In the words of the policy, State Farm was obligated to

[P]ay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . caused by an occurrence . . . and . . . shall have the right and duty to defend any suit against the insured. . . .
Occurrence means an accident . . . which results in bodily injury . .. neither expected nor intended from the standpoint of the insured. . . . (Emphasis ours.)

It is first the position of plaintiffs that regardless of the judgment against them by Johnson for assault and battery, an intentional act, there remains to be decided in this case, the fact of coverage under their policies, i. e., whether the injury to Johnson was the result of an “occurrence ” as defined in the policies. There is substantial authority for plaintiffs’ position.

In the case of Armstrong v. Security Insurance Group, 292 Ala. 27, 288 So.2d 134 (1973), citing previous cases, the court said “Alabama recognizes a distinction between accidental result and a result which is caused by accidental means.” In the case of Hartford Insurance Co. v. Blakeney, 340 So.2d 754 (Ala.1976) there was involved, for our comparison, the same coverage and definitions as in the present case. In Blakeney there had been a fight and an intentional and deliberate assault of another by the insured. The court said the question of whether the injury resulting from the intentional act was an injury “neither expected nor intended by the insured” was a question for the jury and not a matter of law for the court.

In the case of Alabama Farm Bureau Mutual Casualty Insurance Co. v. Moore, 349 So.2d 1113 (Ala.1977), the court almost had the same question as ours before it. In that case, the insured had been sued and judgment obtained. The complaint originally contained a claim of assault and battery and negligence in the pushing of the plaintiff through a plate glass window. The assault and battery claim was withdrawn and judgment was on the negligence claim. Farm Bureau had declined to defend, contending the injury was intentional and not covered by the policy. One of the issues discussed on appeal was whether Farm Bureau was bound and estopped by the result of the judgment based on negligence against its insured, or whether it could, in the declaratory judgment action brought against it by the insured, have a determination of whether the injury caused by its insured was “expected or intended” within the terms of the policy. The court rhetorically asked the question: If the judgment against its insured had been obtained on the assault and battery claim, would Farm Bureau be automatically excluded from liability? The answer was given — “possibly not.” The court, by way of explanation, further said, “While Moore may have intended to push Strickland he may not have intended or expected bodily injury.” (Citing Blakeney and Armstrong.)

The analogy of our case to the question and answer presented by the court in Moore is evident. Though plaintiffs were found guilty by a jury of the intentional act of assault and battery in the case brought against them by the injured Johnson, State Farm was not a party to that suit, even though it had the opportunity to defend James and AIB. The issue of whether the injury resulting from the intentional act was an “intended or expected” injury was not necessary to be determined in that suit. That issue is necessary to be determined in this action. The record of the trial, wherein the commission of the assault and battery by the insured James was shown, also contained the testimony of James that he did not intend the resultant injury. There was presented an issue of fact. This is a jury case. Only a jury, after proper instruction, can determine the facts necessary to defeat coverage. Blakeney, supra. It is not the function of the trial court on motion for summary judgment to determine issues of fact but only to determine if there are issues of fact to be determined by the jury. Rule 56, ARCP. Horton v. Northeast Alabama Regional Medical Center, Inc., 334 So.2d 885 (Ala.1976). The trial court erred in granting summary judgment and the case must be remanded for jury trial.

The other issues presented are not ripe for decision in view of our reversal of the judgment granting summary judgment. They must await final judgment on the merits.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: ADAMS, Justice.

text:
    Ex Parte STATE FARM FIRE AND CASUALTY COMPANY. Re: Tommy JAMES and Alabama Institute of Business, Inc. v. STATE FARM FIRE AND CASUALTY COMPANY.
    80-767.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    Charlotte Ann MOODY v. UNIVERSITY OF ALABAMA, et al.
    Civ. 2782.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    Rehearing Denied Aug. 12, 1981.

      E. H. Hawkins of Dishuck & Hawkins, Tuscaloosa, for appellant.
    Jerry L. Weidler, Montgomery, for appel-lees.
   HOLMES, Judge.

This is a declaratory judgment case.

Moody, a former employee of the University of Alabama, filed an action for declaratory judgment against the State Board of Adjustment, seeking an interpretation of § 41-9-68(a), Code of Ala.1975. Specifically, Moody sought a ruling as to whether the board is required to comply with the provisions of Alabama’s Workmen’s Compensation Act, §§ 25-5-1 et seq., Code of Ala. 1975, in determining the amount of compensation to be awarded an injured state employee. The trial court granted the board’s motion for summary judgment. Moody appeals and we affirm.

The' case was submitted to the trial court on stipulated facts. That stipulation reveals the following:

Moody was an employee of the University of Alabama Board of Trustees. In November of 1974, Moody sustained an injury while acting within the line and scope of her employment. The injury resulted in disability; however, there is no indication of the extent of disability.

In November of 1975, Moody filed a claim with the Board of Adjustment seeking un-reimbursed medical expenses and workmen’s compensation benefits. Moody also filed claims with the Social Security Administration and the University’s insurer for salary continuance insurance benefits. Moody was awarded disability benefits by the Social Security Administration and recovered $8,500 from the University’s insurer through legal action.

The Board of Adjustment heard Moody’s claim in November 1977, but postponed further action pending the resolution of Moody’s claims against the University’s insurer. In November 1978, the board reheard the matter and awarded Moody $939.47 as unreimbursed medical expenses. The board denied further compensation on the ground that the $8,500 recovered from the University’s insurer did in fact compensate her for any disability resulting from her accident.

In 1979, Moody requested that the board reconsider its decision. The board did so and reaffirmed its award of $939.47.

Moody then filed the instant action for a declaratory judgment seeking an interpretation of § 41 — 9-68(a), Code of Ala.1975. As indicated, the trial court entered summary judgment in favor of the board.

The dispositive issue on appeal is whether the trial court erred in granting summary judgment.

Under rule 56, ARCP, summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. As stated above, the case was submitted on stipulated facts and they are without dispute. The question, therefore, is whether the board was entitled to a judgment as a matter of law. Hudson-Thompson, Inc. v. Leslie C. King Co., Ala., 361 So.2d 541 (1978).

Moody, through able counsel, contends that § 41-9-68(a) requires the board to award her an amount of compensation equal the amount she would be entitled to if the Workmen’s Compensation Act applied to her. In other words, Moody, in effect, argues that the board must apply the compensation schedules set out in the Workmen’s Compensation Act; that the board cannot award an amount less than that provided by the compensation schedules; and that the board cannot set off the $8,500 she recovered from the University’s insurer against her award.

We do not agree.

Section 41-9-68(a) directs the board to determine the amount of the injury and to fix damages “using as its guide, when applicable, the ordinary rules of . . . workmen’s compensation laid down by the courts and the moral obligation of the state. .. . ” The words of a statute are to be given their plain and usual meaning. Darks Dairy, Inc. v. Alabama Dairy Commission, Ala., 367 So.2d 1378 (1979); 18 Ala.Digest, Statutes Key 188. Section 41-9-68(a) directs the board to use the rules of workmen’s compensation, as well as the moral obligation of the state, as a guide in awarding benefits. A guide is no more than a thing that leads or directs a person in his way or course through unfamiliar or difficult areas. Webster’s Third New International Dictionary (1971).

Giving the language of § 41-9-68(a) its plain and usual meaning, we find nothing in that Code section that requires the board to set the amount of its awards of compensation in strict accordance with the compensation schedules of the Workmen’s Compensation Act. Put another way, we find that the amount of compensation to be awarded, if any, is a matter within the discretion of the board. Section 41-9-68(a) merely directs that the board, in exercising that discretion, consider the facts of each case in light of the rules of workmen’s compensation and the moral obligation of the state.

We find that on the basis of § 41-9-68(a), the trial court did not err in concluding that the board was entitled to a judgment as a matter of law.

In addition to the above, we find that the board was also entitled to a judgment as a matter of law on the ground that Moody’s action is barred by § 14; Constitution of Alabama 1901. Under § 14, in this instance, a suit against the state of Alabama or one of its agencies is barred when a result favorable to the plaintiff would directly affect a contract or property right of the state. Druid City Hospital Board v. Epperson, Ala., 378 So.2d 696 (1979); Milton v. Espey, Ala., 356 So.2d 1201 (1978); Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963).

In the instant case, Moody is, in effect, seeking a ruling which would require the state to pay her a sum greater than the $939.47 awarded by the board. Clearly, a ruling in her favor could ultimately “touch” the state treasury by requiring the disbursement of state funds. For this reason, we find that § 14 bars this action. See, Milton v. Espey, supra; Southall v. Stricos Corp., supra.

We would note that while an action for declaratory judgment against the state or its agencies which seeks the interpretation of a statute is generally not prohibited, Druid City Hospital Board v. Epperson, supra, such an action is prohibited when, as here, a result favorable to the plaintiff would directly affect a contract or property right of the state. Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971).

Again, we find no error by the trial court in concluding in the instant appeal that § 14 barred the action and that the board was entitled to a judgment as a matter of law.

The above being dispositive, we find it unnecessary to discuss the other issues raised by the parties. However, we do note that the case appears to be an attempt to perfect an indirect appeal of the Board of Adjustment’s decision. As a general rule, an action for a declaratory judgment cannot be used as a substitute for an appeal. Tillman v. Sibbles, 292 Ala. 355, 294 So.2d 436 (1974), appeal after remand, 341 So.2d 686 (1977); Sparks v. Brock & Blevins, Inc., 274 Ala. 147, 145 So.2d 844 (1962).

For the reasons stated above, we find that the trial court did not err in granting the board’s motion for summary judgment.

The case is due to be affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Ex Parte Charlotte Ann MOODY. Re: Charlotte Ann MOODY v. UNIVERSITY OF ALABAMA, et al.
    80-852.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge. BOWEN, Judge.

text:
    Willie Earl THOMPSON v. STATE.
    4 Div. 881.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      George E. Trawick, Ariton, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the murder of James Junior Sampson. Section 13A-6-2, Alabama Code 1975 (Amended 1977). The defendant was sentenced under the Habitual Felony Offender Statute to life imprisonment without parole. Section 13A-5-9, Alabama Code 1975 (Amended 1977). Three issues are raised on appeal.

I

The defendant and the deceased were inmates of the Henry County Jail at the time of the homicide. The defendant contends that the trial court committed error in refusing to allow defense counsel to show the victim’s reputation for bloodthirstiness. The basis for this error is found in the record when defense counsel was cross examining State’s witness John J. McCraney.

“Q. Right. And Sampson, do you know his reputation for bloodthirstiness?
MR. SORRELLS (District Attorney): Judge, we object to that. There has been no testimony of that and we submit this is not the proper time. At this time, we object.
THE COURT: Yes, sustained.”

The well-settled rule in this State is that “(t)he victim’s bad general reputation for peace and quiet, violence or like trait is admissible only if the evidence before the trial court, at the time such general reputation is offered, tends to show that the accused acted in self-defense.” C. Gamble, McElroy’s Alabama Evidence, Section 33.-01(2) (3rd ed. 1977) (emphasis added). See also Bankston v. State, 358 So.2d 1040 (Ala. 1978); Carter v. State, 356 So.2d 682 (Ala. Cr.App.), cert. denied, Ex parte Carter, 356 So.2d 689 (Ala.1978); Cole v. State, 337 So.2d 40 (Ala.Cr.App.), cert. denied, 337 So.2d 47 (Ala.1976); Body v. State, 57 Ala. App. 593, 329 So.2d 650, cert. denied, 295 Ala. 392, 329 So.2d 653 (1978); Russell v. State, 46 Ala.App. 230, 239 So.2d 902 (1970).

McCraney was the first witness to testify. He stated that the defendant jumped up from playing dice and told Sampson the “next time you say anything about my mother we are going to fight.” Then Sampson and the defendant got into a fight. The two men fell to the floor and Sampson was “pretty well beat anyway and then a knife appeared in the hand of the defendant.” The defendant was sitting on Sampson and said, “(Y)’all see this? It is self-defense.” The defendant then began stabbing Sampson.

On cross examination, McCraney testified that “they was arguing first” and that there “wasn’t any trouble at all in that cell before Junior Sampson came in there.”

In Bankston, supra, the Supreme Court of Alabama held that evidence of the deceased’s bloodthirsty character “is not competent absent some evidence tending to show that the killing was in self-defense; that is, some overt act or hostile demonstration on the part of the deceased.” 358 So.2d at 1043. In Farley v. State, 279 Ala. 98, 182 So.2d 364 (1966), the Supreme Court stated:

“But in the absence of a tendency of the evidence to show that the defendant was without fault in bringing on the fatal encounter, that he was in imminent peril, or that he could not avoid the difficulty or retreat without increasing his peril, the defendant cannot prove the bad character of the deceased for turbulence, nor threats by him toward the defendant, nor a prior difficulty with him, though of a serious nature.” 279 Ala. at 100, 182 So.2d 364.

Here, there was evidence, at the time the deceased’s general reputation for bloodthirstiness was sought, that the defendant was the aggressor and that the defendant could have avoided killing Sampson without increasing his own peril. In short, we do not think that there was evidence at this particular point in the trial that brought self-defense fairly into issue. 2 Wigmore, Evidence, Section 246 (Chadbourn rev. 1979). We find that the trial judge did not abuse his discretion in determining when a proper foundation had been laid to allow the admission of the reputation of the deceased. 40 C.J.S. Homicide, Section 272(c) (1944). We especially note that, after evidence tending to show self-defense had been introduced, the defense was allowed to prove, without objection, the deceased’s reputation for bloodthirstiness.

II

The defendant now contends that a portion of the oral charge of the trial court to the jury was “vague, misleading, ambiguous and prejudicial to the defendant in that it tends to confuse the jury.” The record shows that defense counsel announced “satisfied” at the conclusion of the oral charge. Such an announcement precludes our review of the alleged error. Guice v. State, 380 So.2d 404 (Ala.Cr.App. 1978); Zuck v. State, 331 So.2d 777 (Ala.Cr. App.), cert. denied, 331 So.2d 796 (Ala.1976); McFarling v. State, 35 Ala.App. 191, 45 So.2d 322, cert. denied, 253 Ala. 501, 45 So.2d 324 (1950).

III

The defendant testified at trial and admitted that he had been convicted of three prior felonies. After the jury returned its verdict, the prosecutor invoked the Habitual Felony Offender Act and the trial court sentenced the defendant to life without parole. Section 13A-5-9(c)(3), Alabama Code 1975 (Amended 1977).

The constitutionality of Section 13A-5-9 was initially upheld in Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). It represents no “usurpation of the power of the executive branch of the state to grant pardon and parole” as contended by the defendant. Seritt v. State, Ala.Cr.App., 401 So.2d 248 (1981).

We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

In connection with issue III we note that at trial the defendant admitted his three prior felony convictions on direct examination by his own attorney. “(W)hen a defendant, through his own counsel, freely admits his conviction of a crime, unless he qualifies his admission, he admits all of the ingredients needed to prove the conviction of the crime.” Donahay v. State, 287 Ala. 716, 718, 255 So.2d 599 (1971). A prior conviction without counsel or waiver thereof cannot be used to impeach a witness, Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), or to enhance sentence. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

Murder is defined as a Class A felony, Section 13A-6-2, Alabama Code 1975 (Amended 1977). The defendant’s argument that murder is an “unclassified crime” is without merit and contrary to the provisions of the statute.

Rule 6(b)(3)(ii) of the Alabama Rules of Criminal Procedure Temporary Rules provides:

“At a reasonable time prior to the hearing the defendant shall be given notice of the prior conviction or convictions upon which the State intends to proceed.” 377-380 So.2d LXVIII.

The defendant was sentenced immediately after the jury returned its verdict finding the defendant guilty of murder as charged in the indictment. The defendant did not request a presentence report nor did he object to the imposition of a sentence under the Habitual Felony Offender Statute because of inadequate notice.

While the procedures followed in sentencing the defendant violated Rule 6(b)(3)(H) set out above, this violation caused no prejudice to the defendant who had already admitted the prior felony convictions. Rule 45, A.R.A.P. Under these facts, we find no denial of the defendant’s constitutional right of due process.

The application for rehearing is overruled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All Judges concur.

      . The question and answer immediately before this exchange also reflected on the character of the deceased.
      “Q. And you know that Sampson was serving time for murder at that time, do you' not?
      “A. Yes, sir. I believe they mentioned it, while he was in there.”


author: FAULKNER, Justice.

text:
    Ex Parte Willie Earl THOMPSON. (Re: Willie Earl Thompson v State of Alabama).
    80-791.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Michael Harvey YARBROUGH v. STATE.
    6 Div. 335.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.
    Albert C. Hultquist, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jacquelyn L. Lufkin, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the August, 1979, session of the Jefferson County grand jury for violation of the Alabama Uniform Controlled Substances Act, § 20-2-1, et seq., Code of Alabama 1975. In the first count of the two-count indictment, appellant was charged with the illegal possession of phentermine, codeine and pentazocine, and in the second count he was charged with the unlawful possession of 77.1 grams of marijuana. After a trial by jury the appellant was found guilty as charged. The trial court sentenced him to three years imprisonment. At arraignment and throughout the trial proceedings, appellant was represented by appointed counsel.

The State called as its first witness Jefferson County Deputy Sheriff Richard Thrasher. He stated that he had been assigned to the vice and narcotics division for approximately eighteen months. On April 17, 1979, Deputy Thrasher assisted in the execution of a search warrant of the appellant’s residence, located at Route 2, Box 235A, Pinson, Alabama, in Jefferson County. He searched one of the bedrooms and discovered what appeared to be twenty-two marijuana plants. Deputy Thrasher stated that no one else was present in the bedroom when he searched it although three persons other than law enforcement personnel were in the house when the search warrant was executed. Appellant was not present when the search began although he was brought to the house about fifteen minutes after the warrant was executed.

Jefferson County Deputy Sheriff J. H. Yarbrough testified that he had been a member of the vice and narcotics division for approximately five years. He stated that he had a search warrant issued to him to search the residence located at Route 2, Box 235A, Pinson, Alabama, for drugs. He stated that the warrant was executed at 3:50 p. m. on April 17, 1979. Deputy Yarb-rough stated that Deputy Dennis Blanton was in charge of receiving and recording any evidence discovered during the search. He stated that he received several marijuana-like plants discovered by Deputy Thrasher. Deputy Yarbrough stated that, upon entering the house, he saw two females in the living room. He identified himself, stated his purpose, and exhibited the search warrant to one of them. He asked one of the ladies the whereabouts of the appellant to which she replied that he was outside. Both women informed Deputy Yarbrough that they did not reside at the house.

Deputy Yarbrough searched the living room wherein he found, among other things, fifty yellow capsules in a plastic container on the coffee table. He also found several hand-rolled cigarettes, cigarette papers, and an alligator clip on the end table.

Deputy Yarbrough testified that, after all the evidence seized during the search had been bagged and labeled, it was placed in a large grocery bag and locked in the trunk of his car. He stated that he sorted the material at his office and placed that pertaining to the appellant in an envelope which he turned over to Ms. Mary Alice Rhodes. Deputy Yarbrough testified that every item seized remained under his control until relinquished to Ms. Rhodes and was in the same condition throughout his possession. He stated that all the items discovered were kept by him under his care and custody until he turned them over to the State Department of Forensic Sciences. He stated that the items were in the same condition when given to the toxicologist, Mary Rhodes, as they were when he initially received them.

Deputy Yarbrough testified to statements made by the appellant after he was arrested and given his Miranda warnings. Appellant stated that he understood his rights. He stated that the statements were made while transporting him to the county jail. He stated that the drive took approximately twenty-five to thirty minutes. No objection was made to the admission of the statements.

Deputy Yarbrough stated that the appellant admitted ownership of the plants found by Deputy Thrasher. He admitted that the searched house was his residence and stated “... that all we had him on was reefer.” In reference to the fifty yellow capsules found in the living room, the appellant stated that a girl, who had a prescription for them, had brought them attempting to sell them. The appellant would not identify the name of the girl.

Deputy Yarbrough received several items from Deputy Dennis Blanton, including evidence discovered by Deputy Blanton in a bedroom, as well as evidence discovered on the appellant by Deputy J. E. Brooks.

Jefferson County Deputy Sheriff Dennis Blanton testified to assisting in the April 17, 1979, search of appellant’s residence. He stated that his primary function was to record any evidence seized and turn it over to Deputy Yarbrough. He stated that he searched a bedroom, which, apparently was used by the appellant, and seized various assorted pills and a quantity of plant material resembling marijuana. He stated that he was the only person to search the bedroom and saw men’s clothing in and around the room. Deputy Blanton testified that he received a quantity of pills, marijuana, and hypodermic needles from Deputy J. E. Brooks. He turned them over to Deputy Yarbrough.

Ms. Mary Alice Rhodes testified that she was employed by the State Department of Forensic Sciences with her duties centered primarily upon the analyses of drugs. She reviewed her training, experience, and qualifications to perform such analyses and her qualifications were not questioned by appellant. She described in detail the tests performed on each substance.

On June 9, 1979, Ms. Rhodes received an envelope from Deputy Yarbrough containing evidence seized during the April 17, 1979, search of the appellant’s residence. She testified that the contents were under her sole care, control, and custody and were in the same condition at trial as when they were received, except for the removal of certain portions for analysis. She stated that, on August 1, 1979, she conducted an analysis of each of the substances contained in the envelope. Her tests revealed that the fifty yellow capsules found in the appellant’s living room by Deputy Yarbrough contained phentermine; the plant material and contents of the hand-rolled cigarettes were marijuana; and three tablets discovered by Deputy Blanton in what appeared to be the appellant’s bedroom contained codeine with another three containing pentazocine. The envelope and its contents were admitted into evidence without objection. Ms. Rhodes stated that two of the bags inside the envelope contained non-controlled substances and were commonly referred to as diet pills.

Jefferson County Deputy Sheriff William B. Carson testified that, on April 17, 1979, appellant’s residence was included in his patrol area. Around 4:00 p. m. he arrived at the house but did not participate in the search. Rather, he remained outside by the patrol cars where he saw the appellant crouching in a wooded area behind the house. Deputy Carson testified that the appellant bobbed up and down as if he were looking around. The appellant, apparently unaware of Deputy Carson, moved toward him while remaining in his crouched position. When Deputy Carson lost sight of him, he called for assistance and apprehended him. The appellant was found lying in the underbrush near his residence. Deputy J. E. Brooks assisted in appellant’s capture and stated to Deputy Carson that “. . . this is the man we are looking for.” Deputy Carson returned to his post while Deputy Brooks escorted appellant to the house.

Jefferson County Deputy Sheriff J. E. Brooks testified that he assisted in the April 17, 1979, search of appellant’s residence and in the capture of him. He stated that, after taking appellant to the front yard, he searched him and found on his person thirty white tablets and twenty-four capsules of two types. He turned them over to Deputies Blanton and Yarbrough. Deputy Brooks also found some syringes in the living room.

The appellant called his mother, Mrs. Jackie Yarbrough, to testify in his behalf. She stated that, on July 28,1978, the appellant had been involved in an automobile accident and as a consequence was hospitalized intermittently until the end of the year. She stated that he was prescribed numerous medicines, two of which were Tylenol 3 and Talwin, the brand names for medicines containing codeine and pentazo-cine, respectively. She testified that she would place several tablets of all his medicines in one bottle so that he would have some of each with him at all times. Mrs. Yarbrough stated that she filled two or three bottles in this manner. She would place the excess as well as the excess of her mother’s medicine, who was also ill, in one large bottle. She stated that she knew the difference in each medicine.

Mrs. Yarbrough testified that the appellant lived with her until the early part of 1979, when he moved to Pinson. He had taken his medicine with him when he moved. She stated that she had heard of other people living with the appellant and two to three weeks prior to his arrest visited his residence wherein she found women’s clothing, children’s toys, and a playpen. She stated that the appellant was not married and had no children.

Continuing, Mrs. Yarbrough stated that she had the appellant’s prescriptions refilled many times, but did not refill them after he moved to his residence as he had about a four-month’s supply on hand. She stated that the prescriptions were filled at the Veterans Administration Hospital and she did not know if there was any limit to the number of refills. She stated that his antibiotics were dispensed in quantities ranging from two hundred to five hundred tablets while the Tylenol 3 and Talwin were probably dispensed in quantities of fifty each.

Mr. James F. Cooper, Jr., testified that he had known the appellant all his life and had visited him at his house several times. He stated that the appellant rented his residence and knew that two women, one with a child, lived with him.

After the close of all the evidence, the appellant generally moved to exclude the State’s evidence, stating no specific grounds. The trial court overruled his motion.

Appellant’s only issue on appeal deals with the sufficiency of the State's evidence, raised by his motions to exclude the State’s evidence and for a new trial. Both motions were general in nature stating no specific grounds.

At the outset we note that pentazocine is a controlled substance in Alabama, being added pursuant to the procedure outlined in § 20-2-20(d) Code of Alabama 1975. 21 C.F.R. § 1308.14 (1980); 44 Fed.Reg. 2169 (1979); McCurley v. State, Ala., 390 So.2d 25. Phentermine was controlled in the same manner. § 20-2-20(d), supra; 38 Fed.Reg. 15719, 1572 (1973); 39 Fed.Reg. 22140, 22143 (1974); 21 C.F.R. § 1308.14 (1980).

A motion to exclude must state proper specific grounds or it may be properly overruled by the trial court. Ward v. State, Ala.Cr.App., 376 So.2d 1112, cert. denied, Ala., 376 So.2d 1117; Skelton v. City of Birmingham, Ala.Cr.App., 368 So.2d 877, cert. denied, Ala., 368 So.2d 880, cert. denied, 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17; Freeman v. State, Ala.Cr.App., 350 So.2d 768; 6A Alabama Digest Criminal Law 752.

A ruling on the motion for a new trial is a matter resting largely in the sound discretion of the trial court, and this court will indulge in every presumption in favor of the correctness of the trial court’s ruling. Jenkins v. State, Ala.Cr.App., 384 So.2d 1135; cert. denied, Ala., 384 So.2d 1141; Henley v. State, Ala.Cr.App., 361 So.2d 1148, cert. denied, Ala., 361 So.2d 1152; 6B Alabama Digest Criminal Law 911; 7 Alabama Digest Criminal Law 1144.18. See also Sandlin v. City of Birmingham, 24 Ala.App. 462, 136 So. 481; § 15-17-5 Code of Alabama 1975.

In order to convict a defendant of the offense of possession of a prohibited drug or substance, the State must prove actual or constructive possession of the narcotics by the defendant, coupled with knowledge of the presence of the drug. Roberts v. State, Ala.Cr.App., 349 So.2d 89, cert. denied, Ala., 349 So.2d 94; and cases cited therein. Possession may be proven by showing: “. . . (1) Actual or potential control; (2) Intention to exercise dominion; and (3) External manifestation of intent and control . . . . ” McCord v. State, Ala.Cr. App., 373 So.2d 1242, quoting Williams v. State, Ala.Cr.App., 340 So.2d 1144, cert. denied, Ala., 340 So.2d 1149. Where constructive possession is relied upon, the State must prove knowledge of the prohibited substance beyond a reasonable doubt. Hancock v. State, Ala.Cr.App., 368 So.2d 581, cert. denied, Ala., 368 So.2d 587. Such may be proven by circumstantial evidence. Blaine v. State, Ala.Cr.App., 366 So.2d 353.

The offense of unlawful possession of illegal drugs is susceptible of joint commission and the guilt of the accused does not necessarily depend upon proof of his ownership of the prohibited substance. Radke v. State, 292 Ala. 290, 293 So.2d 314; Rogers v. State, Ala.Cr.App., 353 So.2d 19, cert. denied, Ala., 353 So.2d 24; Henderson v. State, Ala.Cr.App., 347 So.2d 540, cert. quashed, Ala., 347 So.2d 543; and cases cited therein.

After a careful and comprehensive review of the State’s evidence, we find it legally sufficient for the trial court to have overruled appellant’s motion to exclude and submitted the facts to the jury for its consideration. We find the evidence amply supported the verdict of the jury. As a result, the trial court properly overruled appellant’s motion for a new trial. Laffitte v. State, Ala.Cr.App., 370 So.2d 1108, cert. denied, Ala., 370 So.2d 1111; § 20-2-70(a), Code of Alabama 1975; 8 Alabama Digest, Drugs and Narcotics Key No. 117.

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

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Michael Harvey YARBROUGH. (Re: Michael Harvey Yarbrough v. State of Alabama).
    80-780.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Barbara DALRYMPLE v. STATE.
    8 Div. 408.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      James Dee Walker, Albertville, and Roderick Beddow, Jr., Albert C. Bowen, Jr., & James M. Fullan, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the first degree murder of her husband. Sentence was life imprisonment.

We have carefully examined the record and find that this case must be reversed for the failure of the jury to take with them on retirement the written requested charges marked “given” by the trial judge as required by Section 12-16-13 Alabama Code 1975.

The defendant properly raised this issue on her motion for new trial. Smith v. State, 46 Ala.App. 99, 104, 238 So.2d 898 (1970). In overruling this motion the trial court offered the following explanation.

“Ground one hundred forty two has been fully considered. The court is not unaware of the cases involving the failure to send given requested charges to the Jury, and the reversals of verdicts of convictions therein. Two matters have been considered, however, that, in the opinion of the court, distinguish this failure from those cases. The first being Rule 45 of the Alabama Rules of Appellate Procedure. The second matter: at the end of the trial, and before the Jury began its deliberations, the court directed the attorneys to get with the court reporter and to be sure that everything went to the Jury that was supposed to. The Court emphasizes here that this is no excuse for the Court’s failure to determine that the charges were actually supplied to the Jury, nor an attempt to share the Court’s sole responsibility for this procedural aspect of the trial. However, this failure was not brought to the Court’s attention by objection or otherwise until after the verdict of the Jury and its discharge.
“Therefore, in consideration of the above, it is the Judgment of the Court that the defendant’s motion for new trial is due to be and is hereby overruled.”

After the jury was sent out to begin their deliberations the following is reflected in the record:

“(Whereupon, the Court Reporter, at the direction of the Court conferred with all counsel as to exhibits which were received in evidence going to the jury; and upon agreement of all counsel, Court Reporter delivered same to Bailiff for transportation to the Jury.)” (emphasis added)

The trial judge gave twenty-five of the defendant’s written requested charges. It is undisputed that these charges were not with the jury during their deliberations.

Section 12-16-13 states in part: “Charges which are marked ‘given by the trial judge must be taken by the jury with them on retirement, . . .’” (emphasis added).

This section has been in effect since 1896, Code of Alabama 1896, Section 3328, and has always been interpreted as mandatory. Orr v. State, 117 Ala. 69, 23 So. 696 (1897).

“What we do decide is, that special charges requested in writing and ‘Given’ must be taken out by the jury, and the party has the right to have such charges before the jury for their examination and consideration, while charges marked ‘Refused’ do not go before the jury.” Orr, 117 Ala. at 72, 23 So. 696.

The next case commenting upon the statutory requirement of what is now Section 12-16-13 is Hart v. State, 21 Ala.App. 621, 111 So. 47 (1926). In following Orr, supra, the Court of Appeals (Judge Samford) commented:

“The defendant requested the court in writing to give certain instructions to the jury, which instructions are embraced in charges A, C, 3V2, 4, 5, 6, 7, 9 and D, and upon each was written the word ‘given’ and signed by the judge as is provided for by section 9509 of the Code of 1923. For some reason not shown by the record these charges were read to the jury by the presiding judge, but (with the single exception of charge D) none of these charges were taken by the jury with them on retirement, nor were these charges with the jury during their deliberation. This fact was brought to the attention of the court by motion for new trial, and is admitted to be true. The statute (Code, Section 9509, supra) is imperative to the effect that such charges ‘must be taken by the jury with them on retirement.’ Such is the plain mandate of the statute, and whatever may be our views as to what it ought to be, we see no escape from the conclusion that, having failed in this particular, the court should have granted the motion for a new trial. On this question Coleman, J., speaking for the court, said:
“ ‘What we do decide is that special charges requested in writing and ‘given’ must be taken out by the jury.’ Orr v. State, 117 Ala. 69, 72, 23 So. 696.
“When there is a plain mandate of the statute, a failure to observe such cannot be said as matter of law to be error without injury. The Legislature has fixed it as being a necessary part of a trial before a jury, and the courts must abide it.
“The judgment must be reversed, and the cause remanded.
“Reversed and remanded.” Hart, 21 Ala. App. at 622, 111 So. 47.

Judge Rice dissenting in Hart argued that the conviction should not be reversed because it did not affirmatively appear that the defendant had been injured by the fact that the jury did not have the defendant’s requested written charges marked “given” with them during their deliberation. Judge Rice noted:

“The jury did not call for them; the trial judge did not refuse to allow them to be taken out by and with the jury. In fact, it is perfectly clear that the said charges were left out of the jury room through nobody’s fault, but through a purely inadvertent oversight on the part of all concerned.” Hart, 21 Ala.App. at 623, 111 So. 47.

However, three years later, in Brewer v. State, 23 Ala.App. 35, 120 So. 301 (1929), we find that Judge Rice was the author of an opinion reversing a conviction for the jury’s failure to have with them “for some reason not shown by the record” one requested written charge. Brewer, 23 Ala.App. at 36, 120 So. 301.

Most recently, in Cartlidge v. State, 52 Ala.App. 495, 501, 294 So.2d 462, cert. denied, 292 Ala. 715, 294 So.2d 467 (1974), this Court, through Judge Harris, condemned any practice which would “circumvent” the “plain mandate” of Section 12-16-13. On this issue generally, see Anno. 91 A.L.R.3d 382 (1979).

We cannot consider this error harmless under Rule 45 A.R.A.P. Hart, supra. The record does not show and it is not alleged by the trial judge that the sole responsibility for the jury having the requested charges had been placed upon defense counsel. In almost every case, the defendant will learn of the fact that the jury did not have the requested charges only after the verdict has been returned. Indeed, if defense counsel were to learn of the omission at any time before the jury returned its verdict and not call it to the attention of the trial judge, the objection would surely be deemed waived on appeal.

We have found no case where the failure to follow Section 12-16-13 has been held to be harmless error except Morris v. State, 234 Ala. 520, 175 So. 283 (1937). There requested given charge 12 was, “through oversight”, not taken out by the jury. However, charge 12 was “fully covered by those (other requested given charges) that were taken out and considered by the jury.” Morris, 234 Ala. at 521, 175 So. 283. Those special and unique circumstances found in Morris are not present here.

We understand the reluctance of the trial judge to grant the motion for new trial. However, under the prior opinions of this Court and the Alabama Supreme Court, which we are bound by law to follow, this case must be reversed. The evidence in this case was conflicting. It was a close and hard fought battle in which there was substantial evidence supporting guilt and innocence. It is a well known fact that written instructions may make a stronger impression than other instructions which are not reduced to writing.

The fact that we have reversed this case upon one ground does not mean and should not be construed to mean that the remainder of the record is free from error. In fact, there was a great deal of hearsay testimony admitted over objection that was extremely prejudicial to the defendant. Other arguments advanced by the defendant also have merit. However, with these comments we do not think that the other issues raised on this appeal will present themselves again when and should the defendant be retried.

The judgment of the Circuit Court is reversed and the cause remanded.

REVERSED AND REMANDED.

All Judges concur.


author: SHORES, Justice.

text:
    Ex Parte State of Alabama. (Re: Barbara DALRYMPLE v. STATE of Alabama).
    80-799.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Johnnie Will KELLEY v. STATE.
    6 Div. 255.
    Court of Criminal Appeals of Alabama.
    June 30, 1981.
    Rehearing Denied Aug. 4, 1981.

      F. Wayne Keith of Keith, Keith & Keith, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted for the first degree murder of Otha Lee Burwell. A jury found her guilty of murder in the second degree and fixed sentence at twenty-five years’ imprisonment.

In urging this Court to reverse her conviction, the defendant alleges three grounds of reversible error committed in the trial court.

I

The trial court did not err in overruling defendant’s motion for a mistrial because of the alleged prejudicial remarks made by State’s witness Odessa Jeff. In an unresponsive answer to a question from the prosecutor, Mrs. Jeff stated that the deceased’s mother “hasn’t been well” since the murder of her son. On a second occasion, Mrs. Jeff volunteered that the deceased’s mother was presently “in the hospital”. On each occasion the trial judge sustained defense counsel’s objections and instructed the jury to disregard the remarks.

After the first unresponsive answer of Mrs. Jeff, defense counsel requested a mistrial. This request was properly denied. A motion for a mistrial is addressed to the sound discretion of the trial judge and his ruling will not be reversed in absence of a clear showing of abuse of discretion. Woods v. State, 367 So.2d 982 (Ala.1978). Additionally, there is a prima facie presumption against error where the trial court immediately charges the jury to disregard improper remarks. Chambers v. State, 382 So.2d 632 (Ala.Cr.App.), cert. denied, 382 So.2d 636 (Ala.1980); Nix v. State, 370 So.2d 1115 (Ala.Cr.App.), cert. denied, 370 So.2d 1119 (Ala.1979). The trial judge heard the entire questioning and was therefore in a much more favorable position to judge the prejudicial qualities of the answer. Moberg v. State, 385 So.2d 77 (Ala. Cr.App.1980); Chambers v. State, 382 So.2d 632 (Ala.Cr.App.), cert. denied, 382 So.2d 636 (Ala.1980); McAllister v. State, 44 Ala.App. 511, 214 So.2d 862 (1968); Evans v. State, 42 Ala.App. 587, 172 So.2d 796 (1965).

Since a motion for mistrial implies a miscarriage of justice, it should only be granted where it is clearly manifest that justice cannot be afforded. Diamond v. State, 363 So.2d 109 (Ala.Cr.App.1978); Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, cert. denied, 292 Ala. 718, 299 So.2d 312 (1974); Section 12-10-233, Code of Alabama 1975. A mistrial does not serve the same function as a mere objection or motion to strike. It rectifies such fundamental error in a trial as to vitiate the result. Diamond, supra; Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501 (1967).

The statement in this case is not serious enough to warrant a mistrial. The alleged prejudicial remark did not relate to the guilt or innocence of the defendant. Even remarks directly relating to the innocence or guilt of the defendant — the ultimate issue at trial — can readily be cured by the judge’s instruction to the jury to disregard. Hall v. State, 375 So.2d 536 (Ala.Cr.App. 1979); Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), writ quashed, 378 So.2d 1173 (Ala.1979); Kent v. State, 367 So.2d 508 (Ala.Cr.App.), writ denied, 367 So.2d 518 (Ala.1978); Thigpen v. State, 369 So.2d 508 (Ala.Cr.App.), writ denied, 369 So.2d 297 (Ala.1978).

II

State’s witness, Clarence Edward Peak, was a nephew of the deceased. On direct examination, the following occurred:

“Q. What kind of man was he?
“A. Well he was a nice fellow to me.
“Q. Did he help people out and do things?
“A. Yes.”

Defense counsel only objected after the answers had been given. He also asked that these remarks be excluded. The trial judge sustained objection and instructed the jury to disregard the remarks.

The defendant contends that he should have been allowed to rebut this evidence of good character by showing that the deceased had been convicted of a crime. The defendant relies on the doctrine of curative admissibility.

“Curative Admissibility is a doctrine which holds that if a party introduces illegal evidence, his opponent has the unconditional right to rebut such evidence with other illegal evidence. The rule is applicable even if the opponent failed to object to the original illegal or inadmissible evidence. A limitation upon this doctrine is the rule that the illegal rebuttal evidence may be admitted only to the extent that it cures the effect of the admission of the first illegal evidence. If, for example, a party introduces evidence of a hearsay conversation then his opponent has the right to introduce only so much of the remainder of the conversation as rebuts that portion first offered.” C. Gamble, McElroy’s Alabama Evidence, Section 14.01 (3rd ed. 1977).

The doctrine of curative admissibility is limited to the extent that it cures the effect of the admission of the first illegal evidence. Hall v. State, 375 So.2d 536 (Ala.Cr.App.1979). Since the testimony of victim’s nephew was limited to that of deceased being a “nice guy” to the nephew and helped people out and did things, any rebuttal or curative testimony would have to be restricted showing that the victim was not a “nice guy” and did not “help out people and do things.” Since a crime of moral turpitude would do little to rebut such testimony, it would have been inappropriate for the judge to have let such unrelated prior acts in evidence.

To support his position, the defendant cites Caylor v. State, 353 So.2d 8 (Ala.Cr. App.1977), where it was held reversible error for the State to introduce evidence of the good character of the victim. In that case the State introduced testimony of victim’s good character by showing that the victim “wouldn’t start any trouble.” This was reversible because the error went to a material matter in the trial where self-defense was a central issue. In Caylor, evidence of the good character of the victim related to the key issue at trial — whether the defendant was justified in taking the life of the victim.

“ ‘No principle of the law seems better settled than that “on a trial ... for murder, where the character of the deceased had not been assailed by the defendant, it is not competent for the state to introduce evidence to show that the character of the deceased was good ... for peace and quiet.” ’ ”

In the present case the evidence that the victim was a “nice guy” does not allow any inference on the issue of self-defense.

Here, defense counsel allowed the evidence of the good character of the victim to be placed before the jury before raising any objection. After defense counsel allowed this evidence in, the trial judge sustained the objection and instructed the jury to disregard. The defendant has no cause to complain because he failed to properly object before the witness answered the questions. Van Antwerp v. State, 358 So.2d 782 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978).

Ill

The defendant contends that the verdict of the jury was against the great weight of the evidence. The defendant claimed self-defense and introduced evidence supporting such, mostly supplied by her own testimony. She claims that her testimony “proves” the elements of self-defense. The State introduced evidence that the victim, Otha Burwell, came into the house and went to his bedroom to take a nap; that the defendant asked Clarence Peak if he had seen Burwell and Peak told her no; that the defendant appeared intoxicated; that about fifteen minutes later noise was heard coming from Burwell’s bedroom; that Peak than heard the defendant say she was going to kill Burwell; that Peak ran into the house and saw the defendant stabbing Burwell; and that Bur-well did not have a weapon on or around him.

Since the evidence presented by the State and defendant conflicted, a jury issue was presented. The jury, in carrying out its duty and purpose, chose to believe the State’s evidence. Based on the above evidence contained in the record, this Court has no authority to interfere with the verdict of the jury.

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

AFFIRMED.

All Judges concur.


text:
    Ex Parte: Johnnie Will KELLEY. (Re: Johnnie Will Kelley v. State of Alabama).
    80-821.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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


text:
    W. B. LEONARD, Appellant, v. Sann LEONARD, Appellee.
    Nos. 78-608, 78-954, 78-1424 and 78-2772.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Rehearing Denied Dec. 2, 1981.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellant.
    James P. O’Flarity of Law Offices of James P. O’Flarity, Palm Beach, for appel-lee.
   PER CURIAM.

We have carefully reviewed each of the trial court’s rulings challenged by the former husband on appeal in these dissolution proceedings and conclude that there is adequate evidentiary support for each of the rulings. Accordingly, we are bound to uphold the trial court’s exercise of its discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Affirmed.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.