author: EDWARD N. SCRUGGS, Retired Circuit Judge. WRIGHT, Presiding Judge,

text:
    James Noel CHERNAU v. Betty Sue CHERNAU.
    Civ. 2525.
    Court of Civil Appeals of Alabama.
    March 25, 1981.

      Alton L. Turner, Luverne, for appellant.
    Charles M. Crook of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case. The husband appealed.

The parties were divorced on no-fault grounds, yet there was adequate evidence of their marital discord and strife to authorize the trial court to look to fault in awarding alimony and in the division of the property of the parties. Miller v. Miller, 361 So.2d 577 (Ala.Civ.App.1978). The parties are fully aware of the two main frictional areas which contributed to the breakdown of the marriage, and no just reason exists for rubbing salt into their open wounds by a rehash herein of the testimony in that regard.

In his brief, the husband correctly states the review rules largely governing this appeal as follows:

Husband recognizes full well the hill to be climbed on this appeal as the long standing rule of presumption in favor of the correctness of the trial court’s decree in cases where the evidence is ore tenus. Frazier v. Frazier, 273 Ala. 53, 134 So.2d 205 (1961). However, a prerequisite for the presumption is credible evidence supporting the decree. Whitt v. McConnell, Ala., 360 So.2d 336 (1978).
The divorce cases are legion wherein this Court has held that awards of alimony, child support and property lie within the sound discretion of the trial court and will not be disturbed upon appeal except for palpable abuse of that discretion. Williams v. Williams, Ala.Civ.App., 389 So.2d 141 (1980); Kitchin v. Kitchin, Ala. Civ.App., 370 So.2d 1031 (1979).
This Court has stated time after time that each divorce case is decided on its own facts. Williams v. Williams, supra. The reading of innumerable such cases leads to the inescapable conclusion that this Court reverses only when it deems the actions of the trial court to be unfair or unjust in light of the peculiar facts.

Custody

The wife, in her complaint, sought custody of the three minor children, aged sixteen, thirteen and eleven. No similar request was filed by the husband. The evidence is sparse which directly deals with custody, which is understandable since no one connected with the trial contested the right of the mother to custody. There is not a whisper of evidence that she is an unfit mother in any respect. The husband’s evidence and his attorney’s closing argument to the judge both anticipated and assumed that custody of the children would be granted to their mother. While the evidence should not be utilized in law school as a model to be followed in cases where child custody is actually contested, when the testimony is considered as a whole, it is adequate to uphold this particular judgment.

Support

By various paragraphs of the judgment, the husband was ordered to pay $500 per month initially as child support, with payments to increase to $800 per month in the event the husband’s federal personal income tax return shows a gross income in excess of $35,000 for any one year, and with a further increase to $1,000 per month if such gross income exceeds $40,000 for any given year. The child support payments must be paid until the last child reaches majority or otherwise becomes self-supporting. The financing of private schooling of the children will be borne by the husband. The wife was required to continue to carry hospitalization- insurance on the children and to assume and pay their dental and drug expenses, but “[T]he husband shall be responsible for the medical expenses for the minor children. If the health insurance carried by the wife includes a major medical rider, the husband shall be allowed to file for reimbursement for the portions covered that he has expended.” The husband was directed to use a certain debenture to aid the children in defraying their expenses to college.

The husband has no quarrel with the award of $500 per month for the support of his children. He contends that reductions should have been authorized as he becomes no longer legally responsible for their support when they respectively become of age, and that the provision for increases in the amount of support upon his income reaching certain levels constitutes an abuse of discretion. We disagree.

The amount of child support is determined by the needs of the child or children and the ability of the parent to pay. Pruett v. Pruett, 333 So.2d 580 (Ala. Civ.App.1976). After the oldest or middle child reaches majority, if the father’s payments are then excessive, the amount to be paid may be altered, for this would constitute a change in circumstances.

The sliding scale of support payments is justified by disputed evidence that his annual income should increase to, or exceed, the range of from $35,000 to $40,-000. Should his income exceed the required total for one year so as to automatically authorize an increase under the judgment, and if his gross income decreases in a subsequent year to the extent that it does not then total the necessary amount, we again suggest that proper pleadings and hearings in the trial court seeking a reduction in amount or modification of the original judgment would be appropriate for due consideration. No judgment in a case of this nature can provide a present answer for every possible future problem.

We construe “gross income” as used in the judgment to mean “total income” as designated on federal 1040 income tax forms, which is, in substance, all income from whatever source derived.

The children have always attended private schools. However, the oldest child has presently elected to attend a public high school. Their father, in his testimony, expressed a desire that they continue to go to private schools. He should not now be heard to complain that he is required to pay for such schooling.

Any ambiguity as to medical costs may properly be raised by a motion for clarification when a dispute emerges. However, it is relatively clear that the trial court means that the husband be only responsible for those medical expenses, other than dental and drug expenses, not covered by the insurance policy required to be provided by the wife.

Since the husband testified that he had purchased the debenture for the children’s educational benefit, and since he represented to the court that it was agreeable with him for the judgment to indicate such intent, he has no legal grumble against the action of the court regarding the debenture, which provision was in accordance with his expressed desires.

As to all of the support provisions in the judgment, there was no abuse of discretion by the trial court, and the evidence upholds it.

Alimony

The judgment assessed the wife’s periodic alimony to be paid until her death or remarriage at $300 per month, with the amount thereof to be increased to $400 per month when he ceases to make child support payments as long as he is then contributing at least one-half of the college and living expenses of the children during their college careers, and it further increases alimony to $500 per month at such time as such college and related living expenses are no longer being paid.

They have been married for twenty years. At the time of the trial, the wife was forty-one years of age and the husband was forty-three. They were a family of comfortable economic means. For example, the husband wore custom-made shirts, took flying lessons, hired the yard work done, traveled on one occasion to Las Vegas and to London, always belonged to a country club and drove a 1979 Cadillac.

The wife’s income as a public school teacher increased from $3,000 in 1975 to over $13,000 in 1980. The husband had an income of $31,000 in 1975 and of $28,000 in 1979, but there was evidence before the trial court indicating some credible possibility of a current increase to $35,000 or $40,-000 per year. The family’s income was contributed to by both parties. The wife supported them by teaching when the husband was in attendance at the last three years of optometry school. She was employed throughout the marriage except for the times when she was pregnant or there were young children in the home. Her income was utilized to benefit the family. Both parties estimated their respective monthly expenditures to exceed $1,600 for each. As to the home, which will be subsequently discussed, the wife must, under the terms of the judgment, defray the mortgage payments of $232 per month, and the insurance and ad valorem taxes thereon.

Admittedly, the record reflects a marriage afflicted with strife, and, under the evidence, the trial court could have readily placed the major fault for the marriage breakdown upon the husband. We find no abuse of discretion in either the initial amount or in the duration of alimony. Roberts v. Roberts, 357 So.2d 150 (Ala.Civ.App. 1977), cert, quashed, 357 So.2d 154 (Ala. 1978). However, those provisions for alimony after he ceases to make child support payments are so clearly connected to the husband’s contributions to the college education of adult children as to render that portion of the judgment erroneous. The husband is required thereby to pay more alimony if he does not provide one-half of the support of the children while they are adult college students. The judgment in that regard.attempts to do indirectly what it cannot do directly — order support for adult children. Godec v. Godec, 346 So.2d 459 (Ala.Civ.App.1977). This constitutes reversible error and we remand this aspect of the case for a determination by the trial court as to the amount of alimony to be paid by the husband to the wife upon the cessation of his child support obligations under the judgment.

Income Tax Returns

Each year that he pays child support, the husband is required to provide the wife with copies of his federal income tax return within one week after its filing but no later than May 15.

The amount of child support is largely dependent upon gross income as reflected by his federal tax returns. It is, therefore, reasonable that he furnish such returns to the wife without forcing her to institute proceedings each year to discover whether the children are entitled to an automatic increase in child support. If he has a legitimate reason for a delay in filing his tax return, he may seek relief from the trial court by appropriate petition or motion.

Division of Property

The husband has no dispute with the trial court’s division of property except that he contends that he should be awarded all of the certificates of deposit and that the circuit court should have ordered the home to be sold at some point of time.

The trial court deferred a division of the certificates of deposit pending the furnishing by the parties of accurate information pertaining thereto. Since the record is silent as to how the C. D.’s were or shall be divided, we have no means of ascertaining whether there has been, or will be, a palpable abuse of discretion in that regard.

The provisions of the judgment with relation to the family home were as follows:

19. That the marital residence at 3031 Old Farm Road shall remain in the joint names of the parties. The wife shall have the use and occupancy of the same. The wife shall make all mortgage and tax payments and keep the home adequately insured. In the event the wife should ever elect to sell the home, the home shall be appraised, the costs of same to be included in the costs of closing and the home listed for sale with a qualified real estate broker.
The home shall not be sold for less than 90% of the appraised value.
The net proceeds of the sale shall be divided as follows: The husband shall receive one-third of the total net proceeds or $38,000.00 whichever is greater. The wife shall receive the balance of the net proceeds, after the husband has been paid. The home shall be sold in the event of the wife’s remarriage upon the following conditions:
A. In the event the wife remarries during the children’s minority or while any of the children are in college, this provision will not take effect until after the expiration of twelve months after the children reach majority or finish college whichever is applicable.
B. In the event provision A above is not applicable, the wife will have eight months after her marriage to list the home for sale.
The wife at all times shall have the right to purchase the husband’s equity. His equity would be one-third of the net proceeds after deducting the closing costs and appraisal fees or $38,000 whichever is greater.

Unless prematurely paid, the monthly mortgage payments by the wife will continue until 1999, but, if the house is sold before that date, the entire mortgage balance would then be deducted from the wife’s share. The husband valued the home at between $110,000 and $120,000. With the husband’s income potential, he will probably have the opportunity to purchase a comparably comfortable house; however, without a fortuitous remarriage on her behalf, that privilege would probably be denied to the wife under her income as a teacher.

The award to the wife of the home’s use and occupation with the sale rights as provided by the judgment does not constitute abuse of judicial discretion, but, to the contrary, is very equitable under all of the circumstances of the case. However, the quoted provisions of Paragraph 19A of the judgment, which grant to the wife the right to remain in the home after remarriage while any of the children are in college and which makes one of the alternative effective dates twelve months after the children finish college, are subject to the same criticism previously directed to the later increased alimony. This also authorizes support for adult children and constitutes error. The trial court shall strike from Paragraph 19A of the judgment the words “or while any of the children are in college” and “or finish college whichever is applicable.”

Insurance

According to the husband’s exhibit which lists his insurance coverage, he has a disability policy and four life policies with face amounts totaling almost $125,000. He was ordered, during the children's minority, to keep three of the life policies, with a collective face value of $80,000, in full force and effect for their benefit, naming the children as beneficiaries. Six weeks prior to the trial, the husband had borrowed in excess of $16,000 upon those three policies. The judgment prohibited further loans against those three particular policies and thus provided:

When the last child reaches majority or otherwise becomes self supporting the husband may either continue to carry the insurance or transfer ownership of the policies to his wife. If transferred, the wife may either elect to keep the policies current or transfer ownership of the policies to the children. In the event the children do not elect to keep the policies current and the policies are allowed to lapse, the total cash values accumulated shall then be divided one-half to the wife and one-half to the three children.

We construe the judgment to mean that the husband is under a duty to name the children as beneficiaries only during their minority. Thereafter, when the last child reaches majority or otherwise becomes self-supporting, the husband has an election to make. He may, if he so desires, elect to continue to carry the insurance and thereby become the owner of the policies without any restriction imposed by the judgment. If he does not desire to continue the policies, his other elective alternative would be to transfer ownership to the wife, who, as then owner, would be responsible for the premium payments.

The children, who would then all be adults or self-supporting, would only participate in the total cash values after their father, of his own volition elected not to continue the policies, which action on his behalf would effectively waive any right which he might have therein. It would only be after he had elected not to continue to carry the insurance and after both the wife and the children had elected not to keep the policies current, and after the policies had thereby been allowed to lapse that the then net cash values would be so divided between the wife and three children.

We do not understand the judgment to provide for a guaranteed inheritance for adult children. The husband is provided with an election. He determines whether he continues the policies or transfers them. He has already realized over $16,000 in loan values from these policies, and only if he transfers them and the policies thereafter lapse would the wife and children participate in any loan value.

When a judgment is subject to two different reasonable interpretations, one lawful and another invalid, we are required to give validity to the judgment in our construction thereof. This we have done. We affirm, for under the terms of the judgment, his legal obligation as to the three policies terminates when the children reach their majority, except for the duty of the election granted to him by the judgment.

Attorney’s Fees

The trial court awarded the wife $950 to be applied upon her attorneys’ fees. At the time of the trial, the husband’s attorney had earned total fees of $4,000 for his professional services in the case. The wife, over a period in excess of one year, had consulted with three members of her firm of attorneys. Cross-examination of the wife’s trial counsel was declined when he gave his opinion to the court that $3,500 would be reasonable, at that time, for his firm’s fee. The awarded fee certainly was not excessive and did not constitute an abuse of discretion. Williamson v. Williamson, 391 So.2d 115 (Ala.Civ.App.1980).

Conclusion

The judgment in this case was eight legal pages in length. It is thoughtfully detailed in precise language and judiciously disposed of serious and important matters in dispute between the parties. The trial court walked the second mile in a diligent effort to attempt to eliminate and prevent some further or additional personal trauma occasioned by future litigations between two apparently conscientious, sensitive and outstanding people.

With the number of issues to be decided, this case is a classic example as to why trial courts must have judicial discretion to exercise in the decision process in litigation of this nature. No two judges would have here reached identical judgments. At this point of time in our grasp of jurisprudence, there is no equitable nor fair means by which the law can provide a precise gauge whereby each issue in a divorce case would have to be determined in exactly the same manner and with identical results reached by every judge faced with the same facts. Any law that provided such consistent results would be, of necessity, arbitrary to extremes and unacceptable to the bench, bar and public as being totally unfair. Now, every case is different, and is so treated by the law, which, through the medium of judicial discretion, provides for tailor-made judgments which are written and rendered to fit and meet the varied and infinite facts and needs arising from all conceivable domestic human frailties, disagreements and controversies.

This case is affirmed in all respects except as to the amount of alimony to be paid by the husband after his child support payments cease and as to the right of the wife to occupy the home after remarriage for twelve months after the children complete their college education. As to such two aspects only, the case is reversed and remanded to the trial court for correction and further determination in accordance with this decision.

The appellant shall pay to the appellee’s attorneys of record the sum of $750 to be applied upon their fee for representing the appellee upon this appeal.

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

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

WRIGHT, P. J., concurs in part and dissents in part.

WRIGHT, Presiding Judge,

concurring in part and dissenting in part.

I concur in the decision of the majority insofar as it affirms the judgment of the trial court, but respectfully disagree with and dissent from the finding of error in the two aspects of the judgment and the reversal thereof.

The judgment below was set out in great detail in eight typewritten pages. The majority found erroneous a portion thereof providing alimony to the wife. The judgment directed the payment of $300 per month as alimony. It said that at such time as the husband ceases to make child support payments, the alimony would be increased. If the husband was paying as much as one-half of the college and living expenses of his children during their college careers, the wife’s alimony would be increased only to $400 per month. After the children complete college and the father no longer has the expense of assisting with their education, the alimony increases to $500 per month. Though the judgment does not say so, it must be inferred that if the children should not go to college or the husband does not provide one-half of their expense, the alimony, in either event, would increase to $500 per month.

The majority construes this part of the judgment to require the husband to support the children after they reach majority by indirection, i. e., unless he pays one-half of their college expense he must pay more alimony. I do not so construe the judgment.

The court plainly says that as soon as the husband’s legal obligation to support his children ends (they reach majority), the alimony of the wife will increase.

If the husband is aiding in sending the children to college by contributing at least one-half of their expenses, and so long as he continues to do so, the alimony will increase from $300 to $400 per month. If he is not contributing or if the children are no longer in college, the alimony will be $500 per month. Such contingent liability for alimony is clearly not an attempt by the court to coerce the father to support his children after his legal obligation ceases, but is merely a recognition of his diminished ability to pay increased alimony if he assumes the expense of assisting his children in their college careers. It permits the father to assist his children at the expense of the wife. The principle of Godec v. Godec, supra, relied on by the majority is not applicable.

The second finding of error in the judgment by the majority is even more untenable. The provision found erroneous relates to the delay of the sale of the home upon the remarriage of the wife. It is provided that if the wife remarries during the minority of the children or while any of them are in college, the jointly-owned home is not required to be sold until the expiration of twelve months after the children reach majority or finish college, whichever is applicable.

The majority again sees this order as requiring the husband to furnish support for the children after they reach majority. I am unable to find it so.

The home is jointly owned by the parties. The court ordered it to remain so, with the right of use and occupancy given to the wife. She is required to pay the mortgage payments, taxes and insurance. It is to be sold only at the election of the wife, with the division of proceeds prescribed if she elects to sell. However, if she remarries it is ordered sold, but only under the conditions found erroneous by the majority.

The parties submitted themselves and their property to the jurisdiction of the court. The court could divide, dispose or otherwise exercise that jurisdiction according to its reasonable discretion. Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979). It could have conditioned the sale of the home, if at all, upon any reasonable condition. The condition of and time of the sale was evidently set to primarily benefit the mother and not the children. The children might never stay in the home if the mother remarried. However, the mother was given the right to keep her home, even after remarriage, so that her children might visit her or even live with her if they chose. After all, she owned a joint interest and paid the mortgage and expenses for its maintenance.

Under the theory of the majority, it would be requiring the father to contribute to the support of the children if they remained in the home with their mother after reaching majority and she never remarried. The only way to avoid such a conclusion would be to require the children to leave the home at majority and never return. Of course, such an order would be out of the question.

For the evident fallacy of the opinion of the majority, I dissent.


source: Caselaw Access Project

license: Public Domain

text:
    Kathy Falhsing WYATT v. Michael FALHSING.
    Civ. 2551.
    Court of Civil Appeals of Alabama.
    March 25, 1981.

      James M. Prestwood of Prestwood & Prestwood, Andalusia, for appellant.
    W. Bartlett Taylor, Andalusia, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

In this case, Alabama’s Uniform Child Custody Jurisdiction Act (hereinafter referred to as the Act) is under appellate review for the first time.

That Act is reported as Act No. 80-92 of the Acts of Alabama 1980, and, in a changed or altered state, it appears in the 1980 Cumulative Supplement to the Code of Alabama (1975) as § 30-3-20 et seq. Consequently, all quotations of its sections shall be from the act itself; and, for brevity and convenience, we shall cite only a section number rather than the complete citation of the act, which is highly appropriate since the sections are identically numbered in Alabama’s act and in the Uniform Act.

On August 23, 1978, the parties were divorced in North Dakota, and the custody of their minor son was granted to the appellant (mother), who, by that time, was residing in Alabama with the child. On April 15, 1980, the father filed his motion in North Dakota seeking custody of the boy. The mother was personally served by a deputy sheriff of Covington County, Alabama, on April 21,1980, with a copy of the motion and a notice of the time, date and place of a hearing to be held by the North Dakota court upon such motion. She attended a deposition hearing in Opp, where a physician’s evidence was taken. She did not appear at the North Dakota hearing.

The North Dakota court on July 8, 1980, entered a judgment granting the boy’s custody to the father. The father filed a petition on August 4,1980, in the Circuit Court of Covington County, relating the above facts and many of the findings contained in the North Dakota judgment. An exemplified copy of the judgment was attached to the petition. Additionally, the father alleged that the son had been abused and that “there is a great likelihood that the defendant (mother) will abscond with the child if in fact notified or advised that your plaintiff (father) has been granted custody of the minor child .... ” He requested that temporary custody of the boy be granted ex parte to the Department of Pensions and Security until his permanent custody could be transferred to the father pursuant to the North Dakota judgment. On August 4, 1980, the circuit court ex parte and summarily enforced the North Dakota custody modification judgment by rendering a final judgment which ordered the sheriff’s department of Covington County to obtain custody of the child and to thereafter transfer and place his custody with the father pursuant to the North Dakota judgment. The sheriff duly and fully executed the court’s order on the same date.

Four days later, the mother moved to set aside and vacate the August 4, 1980, judgment because she was denied due process of law since she was not served with any summons or notice prior to the rendition of the Covington County judgment. Other grounds were also alleged. After an evi-dentiary hearing, the trial court overruled the mother’s motion, hence this appeal.

Our most extensive research has disclosed only one case interpretive of the uniform Act whereby an ex parte order was made as was here done. Ironically, the same procedure was followed in a North Dakota case. In Giddings v. Giddings, 228 N.W.2d 915 (N.D.1975), without notice nor hearing to the father, the North Dakota sheriff was directed by the district court to take the minor child of the parties into his custody and return her to her mother in conformity with an Iowa custody judgment. The Supreme Court of North Dakota held that it was error for the trial court to proceed ex parte in view of Section 4 of the Act which provides as follows:

Before making a decree under this act, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child. If any of these persons is outside this state, notice and opportunity to be heard shall be given pursuant to section 5.

We cannot escape the conclusion that the circuit court’s final judgment of August 4, 1980, violated procedural due process requirements. We must reverse this case and remand it for further proceedings consistent with due process and with the Act. To that end, in view of the absence of prior discussion of this new Act by the courts of this state, we consider it appropriate that we offer the following comments as a result of our considerable research in other jurisdictions which have applied the Act.

Generally, we are required to recognize a modification of custody judgment from another state which had jurisdiction at the time its judgment was entered, and which subsequently had continuing jurisdiction at the time of the rendition of the modification judgment. Fry v. Ball, 190 Colo. 128, 544 P.2d 402 (Colo.1975). A basic premise of the Act is that, while custody jurisdiction may overlap and exist in two states, it will not be exercised simultaneously in both states.

Sections 13, 14 and 15 of the Act are as follows:

Section 13.
The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jurisdiction under statutory provisions substantially in accordance with this act or which was made under factual circumstances meeting the jurisdictional standards of the act, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this act.
Section 14.
(a) If a court of another state has made a custody decree, a court of this state shall not modify that decree unless (1) it appears to the court of this state that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree and (2) the court of this state had jurisdiction.
(b) If a court of this state is authorized under subsection (a) and section 8 to modify a custody decree of another state it shall give due consideration to the transcript of the record and other documents of all previous proceedings submitted to it in accordance with section 22.
Section 15.
(a) A certified copy of a custody decree of another state may be filed in the office of the clerk of any family or domestic relations court of any judicial circuit of this state. The clerk shall treat the decree in the same manner as a custody decree of the family or domestic relations court of any judicial circuit of this state. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this state.
(b) A person violating a custody decree of another state which makes it necessary to enforce the decree in this state may be required to pay necessary travel and other expenses, including attorneys’ fees, incurred by the party entitled to the custody or his witnesses.

The courts of Alabama are thus required not only to recognize, but to enforce, valid custody modification judgments of another state. It has been held that Section 15(a) provides a simplified and speedy method of enforcement, and that, when a parent files an exemplified copy of a sister state’s judgment with his pleading which seeks custody under such judgment, that constitutes an adequate filing to satisfy the provisions of that subsection in that regard. Roehl v. O'Keefe, 243 Ga. 696, 256 S.E.2d 375 (1975). However, the Act is silent as to the nuts and bolts of the process which must be followed, in the enforcement of another state’s custody judgment except that “it shall be enforced in like manner as a custody decree rendered by a court of this state.” A certified custody judgment of another state which has been filed with the Alabama court clerk has the same effect as an Alabama-rendered custody judgment. It can be enforced by habeas corpus, contempt injunction, a civil action, a petition or motion, or any other method available under the law of this state for the enforcement of a custody judgment rendered by a court of this state. State ex rel. Butler v. Morgan, 34 Or.App. 393, 578 P.2d 814 (1978).

In this case, the mother does not challenge the circuit court’s authority to grant a temporary ex parte child custody order under circumstances where a child’s well-being necessitates such an order. When it is required in cases of this nature, temporaiy protective orders may be issued such as ordering the posting of an appropriate bond, or temporary custody may be granted to an appropriate agency or to a party if proper safeguards are established. However, the summary power to issue even a temporary ex parte order should be exercised with extreme caution and then only in cases where it is eminently clear from the pleadings which seek enforcement of the judgment that the immediate health, welfare or well-being of the child is in jeopardy without such a temporary judgment. Such facts should be alleged in detail in such pleadings and be substantiated in such manner as the trial court might reasonably require, such as affidavits.

Procedural due process should be scrupulously observed by perfecting proper service of the pleadings and of reasonable notice of the setting of the matter for trial.

A prompt hearing should be held as to whether the Act requires that the sister state’s custody judgment be recognized and enforced. The party seeking to enforce the judgment of another state normally would meet their initial burden of proof at that limited hearing by the introduction into evidence of a properly authenticated copy of the judgment relied upon. At such hearing, the parent contesting the foreign judgment would have the right to specifically plead in defense thereto and to present evidence as to the nonexistence of jurisdiction of the sister state rendering the judgment. They could also plead and prove whether other just cause exists under the Act for not recognizing the judgment such as those stated in Section 8; or whether the sister state’s judgment was punitive, Brooks v. Brooks, 20 Or.App. 43, 530 P.2d 547 (1975); or whether there was a lack of notice of the sister state’s proceedings as is required by Section 4. Wenz v. Schwartze, 598 P.2d 1086 (Mont.1979). The above examples are not intended to be exclusive, for there may be other valid grounds of contest at that first hearing.

Ordinarily, at such initial and limited hearing, the circumstances of the child or children is not then an issue before the court and evidence pertaining thereto is not admissible. State ex rel. Butler v. Morgan, supra. Should the trial court determine after such hearing that such a judgment must be recognized, the court would then enforce the other state’s judgment without further proceedings.

If the local court decides that the Act does not authorize the recognition of the judgment, and if modification proceedings are then pending in the trial court, a further or additional hearing would be held to determine whether, in the trial court’s judicial discretion, jurisdiction over such modification proceedings should then be exercised. If jurisdiction is exercised, the modification proceeding would be heard on its merits, and evidence concerning the child’s best welfare would be admissible and duly considered by the trial court prior to its final judgment thereon.

Cases construing the uniform act and the invaluable commissioner’s notes pertaining thereto are collected in 9 U.L.A. 116 (Master Ed. 1979). See also an annotation in 96 A.L.R3rd 968.

For the foregoing due process reason, we reverse and remand this case.

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

REVERSED AND REMANDED.

All the Judges concur.

      . This type petition appears to be entirely proper and procedurally correct as an initiation of an enforcement proceeding under Section 13 of the Act.

      . It would seem appropriate that the Bar through its Continuing Legal Education program and'the Bench through the facilities of the Judicial College study and discuss the Act at an early date.

      . More than six months have passed since the father gained actual custody in this instance. Some state other that Alabama may now be the child’s home state as defined by Section 3. Williams v. Zacher, 35 Or.App. 129, 581 P.2d 91 (1978).


author: HOLMES, Judge.

text:
    Richard Lee MOORE v. Elouise Blackard MOORE.
    Civ. 2600.
    Court of Civil Appeals of Alabama.
    March 25, 1981.
    Robert A. Wills, Bay Minette, for appellant.
    Marion E. Wynne, Jr., of Bailey, Wynne & Maumenee, Fairhope, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties, awarded custody of the children to the wife, required the husband to pay child support, divided the personal property, and made a specific award regarding the home.

The husband appeals, contending the trial court erred in its division of the real property. We find no such abuse of discretion as to require reversal and affirm.

We do not deem it necessary to set out in detail the facts. Viewing the record with the attendant presumptions accorded the trial court’s decree, the record reveals the following pertinent facts:

The parties were married for approximately ten years. The husband’s adultery apparently caused the final “breakdown” of the marriage. They have two minor children. The wife is a school teacher earning approximately $12,000 per year. The husband is an engineer, having graduated from Auburn University. He earns approximately $26,500 per year. The parties during the marriage accumulated certain personal property, including automobiles, boats, stocks, and bank accounts.

In addition to the above, the parties acquired a homeplace on Fish River. This homeplace was originally purchased by the father of the husband. The homeplace was subsequently deeded (in 1976) to the husband and wife by the husband’s parents. The husband and wife assumed the existing mortgage on the home. This mortgage at the time of conveyance to the husband and wife was approximately $7,000. At the time of the divorce the mortgage was approximately $1,500.

The appraiser who testified on behalf of the wife placed the value of the home at over $128,000. The “husband’s appraiser” valued the home at approximately $95,000.

The trial court entered the following order regarding the homeplace:

6. Elouise Blackard Moore shall be entitled to live in the home of the parties hereto until she has found a new home of $50,000.00 in value. She shall be given not more than six months from the date of this Decree in which to find said home and the said Richard Lee Moore shall either pay FIFTY THOUSAND and 00/100 ($50,000.00) DOLLARS toward the purchase and acquisition of said home or be responsible for the payment of a mortgage in an amount not to exceed FIFTY THOUSAND and 00/100 ($50,000.00) DOLLARS for the purchase of said home. The wife shall have a lien on the property where the home of the parties is currently located as security for the husband paying the aforementioned sums.
7. The Court shall retain jurisdiction for the enforcement and modification of the method of effecting the provisions concerning the real property as well as the division of the personal property.

As indicated above, the husband’s only contention is that the trial court abused its discretion regarding the award concerning the homeplace.

Specifically, the husband, through able counsel, contends that the trial court did not give proper consideration to the fact that the home was acquired by virtual gift from the husband’s parents. The husband argues that the only way in which the husband can pay the wife $50,000, as indicated above, is to sell the homeplace and this is “unjust.” We are not so persuaded.

It is apparent that the trial court attempted to equally divide the real property. The husband may or may not have to sell the homeplace. That would appear to be his option.

In any event, the well established rule on appeal from a decree of the trial court rendered upon an ore tenus hearing is that such a decree is presumed correct and will be set aside only if it is unsupported by any credible evidence and is plainly wrong. Goodman v. Goodman, Ala.Civ.App., 366 So.2d 281 (1979). Division of property is within, the sound discretion of the trial court and each case must stand on its own facts. Segars v. Segars, Ala.Civ.App., 334 So.2d 684 (1976). It is not even necessary that the property be equally divided. Helms v. Helms, 50 Ala.App. 453, 280 So.2d 159 (1973).

Furthermore, the factors to be considered in making a division of property are well established and require no restating. See, Goodwin v. Goodwin, Ala.Civ.App., 364 So.2d 678 (1978). In this instance, with particular emphasis on the fact that the wife has custody of the children and that the husband apparently caused the final breakdown of the marriage, it is clear the trial court did not abuse its discretion in attempting to provide the wife with a suitable home. In fact, to this court the trial court’s decree as it relates to child custody, child support, division of property, both personal and real, is fair and equitable to both parties.

The wife has requested an attorney’s fee be awarded for representation on appeal. A fee of $500 is awarded.

The case is due to be affirmed.

AFFIRMED.

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


author: BOOKOUT, Judge.

text:
    Isiah HARDEN v. STATE.
    1 Div. 172.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    After Return to Remand Feb. 3, 1981.
    Thomas, R. Harrison, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Appeal from revocation of probation.

The State has filed with this court a “Motion to Remand” to the trial court “for findings in the form of a written statement by the trial judge as to the evidence relied on and the reasons for revocation of the Appellant’s probation.”

The instant record contains only copies of: (1) the district attorney’s motion to revoke probation; (2) a probation officer’s report; (3) the circuit clerk’s citation to the appellant to appear and show cause why his probation should not be revoked; and (4) the trial judge’s judgment entry revoking probation.

The record does not reveal that the minimum standards of due process were complied with pursuant to Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975) and Borst v. State, Ala.Cr.App., 377 So.2d 3 (1979). The State’s motion is therefore granted, and the cause is hereby remanded to the circuit court with directions to comply with the standards set out in the above cited authorities; more particularly to make a written statement as to the evidence relied upon and reasons for revocation of probation. The circuit court is further directed to file such statement with this court as a supplemental record. •

MOTION GRANTED; REMANDED WITH DIRECTIONS.

All the Judges concur.


text:
    Henry REYNOLDS v. STATE.
    4 Div. 843.
    Court of Criminal Appeals of Alabama.
    Feb. 24, 1981.
    Rehearing Denied March 31, 1981.

      Denny L. Holloway, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Second degree assault; sentence: twenty years’ imprisonment.

The appellant shot J. T. Lee at an all-night barber shop in Dothan, Alabama. Harmon Grimsley, proprietor of the barber shop, testified that while he was working during the early morning hours of February 9, 1980, he saw the appellant and Lee suddenly run toward the front door from the back room of his shop where he kept a jukebox. Lee was chasing the appellant, and when the appellant reached the front door he quickly turned around and fired a small black pistol twice. Appellant fled from the scene of the crime, and an ambulance arrived to carry the victim to the hospital. Grimsley did not hear an argument between the appellant and Lee that night prior to the preceding events and stated that, instead, they were friends.

Jackie Mendhem, a detective with the Dothan Police Department, investigated the incident. He reached the barber shop soon after the 1:30 a. m. shooting and asked Grimsley if he knew the person who shot J. T. Lee. Grimsley told him that the man’s name was Henry. Although he could not remember Henry’s last name, he added that the man “went with Jackie Neal.” Since Mendhem knew Jackie Neal and was also aware that the appellant “went with her,” he drove to the appellant’s home arriving sometime between 3:00 and 3:30 a. m. After positioning another officer at the back door of appellant’s residence, Mendhem knocked repeatedly on the front door, but there was no response. The detective testified that he heard movements inside as he entered appellant’s home. Mendhem stated that the appellant was alone in the house and that he found appellant in bed. As appellant sat up in his bed, Mendhem shined his flashlight into appellant’s eyes and ordered him to “freeze right there.” The detective informed the appellant that he was under arrest and searched the tangential area. He discovered a small pistol under appellant’s pillow which contained three live rounds and two shells.

Mendhem transported the appellant to the police station. After repeating the Miranda warnings there, the appellant explained that “they were playing the rock-ola and that he had pushed the button on J. T.’s quarter and J. T. had gotten mad.” The appellant told Mendhem that they pushed each other around, that both started to run, and that he then turned around and shot Lee.

Appellant was charged with assault in the first degree. Neither the appellant nor the victim testified. In fact, the only testifying witnesses were Grimsley and Detective Mendhem.

I

Appellant claims that the trial court committed reversible error by denying his motion to suppress Detective Mendhem’s testimony concerning the pistol found in appellant’s home and appellant’s subsequent confession. Appellant insists that they are both “fruits” of an illegal warrantless arrest.

In Clements v. State, Ala.Cr.App., 390 So.2d 1131, cert, denied, Ala., 390 So.2d 1136, this court said:

“Payton v. New York, 445 U.S. 573,100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Since the major purpose of Pay-ton is ‘to deter official invasions of individual privacy protected by the Fourth Amendment’ and not ‘to overcome an aspect of the criminal trial that substantially impairs its truthfinding function,’ we hold that Payton is not retroactive for the reasons stated in Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971).”

The instant search would fall clearly within the prohibition of Payton, supra, except that the offense here occurred on February 9, 1980, while Payton was not decided until April 15, 1980. However, even assuming the arrest to be illegal, it does not necessarily follow that testimony concerning the pistol and the confession were illegally admitted into evidence in the instant case.

A

Detective Mendhem’s testimony concerning the pistol found under the appellant’s pillow was as follows:

“Q. Was Mr. Reynolds at his house?
“A. Yes, sir.
“Q. Did you arrest Mr. Reynolds at his house?
“A. Yes, sir.
“Q. Did you advise him of his rights at that time?
“A. Yes, sir.
“Q. Where was Mr. Reynolds when you went into the house?
“A. In bed.
“Q. Did you search his bed and the surroundings when you arrested him?
“A. I told him to be still and searched where he was sitting.
“Q. Did you find anything within arm’s length of his immediate surroundings?
“A. I found this pistol under his pillow.”

Much later in the trial, appellant made the following objections:

“MR. HOLLOWAY: At this time I object to any statement introduced or made on behalf of my client, especially if he is testifying from this record here and my client has not had an opportunity to read that statement, or verify that statement.
“Furthermore, there was ample time to get a warrant of arrest and I think a search warrant, or an arrest warrant would have been appropriate before going into the home, and any statements from that.”

The court of appeals concluded in Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336 (1965), that not only physical evidence obtained by an unreasonable search and seizure must be excluded, but also oral testimony concerning such evidence which is also obtained as a result of the unreasonable search and seizure. However, the record clearly shows that Detective Mendhem testified about the pistol seized without any objection being raised by the appellant. In fact, counsel for the appellant objected to the illegal arrest only when Mendhem was later requested to divulge the nature of appellant’s confessory statement.

This court has repeatedly held that while a defendant in a criminal prosecution has the right to insist that only competent evidence be introduced against him, he may waive that right by failing to make timely and proper objections. Hegmon v. State, 50 Ala.App. 486, 280 So.2d 192 (1973); Carpenter, supra. Since evidence concerning the pistol was submitted to the jury without objection, the appellant waived his right to raise that issue at a later point in the trial.

B

Our court recently recognized that a warrantless arrest based upon probable cause does not necessarily vitiate a confession obtained by the police thereafter. Dejnozka v. State, Ala.Cr.App., 397 So.2d 240 [1981], See also Hegmon, supra, and King v. State, 49 Ala.App. 111, 269 So.2d 130 (1972). This court in Dejnozka cited Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), wherein the United States Supreme Court found that the petitioner’s incriminating statements offered during a warrantless detention were “unaffected by the initial illegality.” Following those authorities, we hold in the instant case that even had appellant’s voluntary confession come after an unlawful arrest it was not automatically tainted by the initial illegality and was properly admissible.

II

The appellant also argues that he was improperly denied a mistrial following certain statements proffered by the district attorney during closing argument. During the prosecutor’s closing remarks, he made the following statements:

“MR. MAXWELL: Just consider Jackie Mendhem, he gets up and goes out—
“MR. HOLLOWAY: I object to the statement that the jury should consider the law enforcement people in this case.
“THE COURT: Sustained. Don’t consider that statement about considering law enforcement people.
“MR. MAXWELL: He is going in that place and risking his life for the people of the State of Alabama.
“MR. HOLLOWAY: I object to the statement that the police officer is risking his life for the people of the State of Alabama and move for a mistrial.
“THE COURT: Sustained as to your objection, but motion denied as to the mistrial. Please disregard that last statement. It has nothing to do with this case.”

Although the above comments were improper, the trial court sustained appellant’s objections to them and sua sponte instructed the jury to disregard them. In Watts v. State, 53 Ala.App. 518, 524, 301 So.2d 280 (1924), the court succinctly stated: “The ruling of the trial court on a motion for a mistrial because of a remark or question of the attorney for the prosecution will not be disturbed on appeal unless it clearly appears that there was an abuse of discretion.” We believe that the trial judge’s actions were not an abuse of discretion, and that any error that might have arisen by the prosecutor’s remarks was cured by the actions of the trial judge. Starley v. City of Birmingham, Ala.Cr.App., 377 So.2d 1131, cert, denied, Ala., 377 So.2d 1134 (1979); Lawson v. State, Ala.Cr.App., 377 So.2d 1115, cert, denied, Ala., 377 So.2d 1121 (1979).

Affirmed.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Josephine ODOM v. state.
    1 Div. 108.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    Edward R. Tibbetts, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On a trial without a jury, defendant (appellant) was convicted of an assault upon a peace officer in violation of Code of Ala. 1975, § 13-1 — 41, and sentenced to imprisonment in the county jail for six months.

The only issue raised on appeal is as to the sufficiency of the evidence to support the judgment. Appellant’s only contention in this respect is to the effect that the evidence does not show that the conduct of defendant constituted an assault.

According to the evidence, about 1:00 p. m. on May 25, 1979, while officers of the law were in the course of evicting defendant from the house where she had lived, by unquestioned legal process, she drove up to the premises in an automobile, in which her mother also was riding. When the automobile was stopped, Officer Walter Crook of the Baldwin County Sheriff’s Department walked over to the automobile on the side opposite the driver and said something to her relative to the eviction, which he had previously discussed with her. As to what took place at the time, Officer Crook testified:

“Q. All right. Now, at that particular time, when you were attempting to talk to Mrs. Odom, did she make some disparaging remark?
“A. Yes, sir.
“Q. And what, if anything, happened at that point?
“A. At that point, when the remark was made she reached under the front seat of the vehicle that she was driving, and her mother bent over at the same time; and I immediately went into the car with my feet on the ground and my head in the car and grabbed a handgun and got my left hand between the hammer and the pistol part, which I bruised my hand and I did receive a minor injury from it.
“Q. Did you reach in the vehicle before or after you saw the handgun?
“A. I reached in the vehicle immediately when I saw her going up under the seat, you know, after the remark had been made toward the officers.
“Q. And how far, say from the floorboard was the gun when you managed to get your hands on it.
“A. I plainly observed the gun when I dove into the car, and when she was turning around, like this (indicating), I recognized it.
“Q. If that’s the hammer (indicating) and the gun, here, which hand was on it?
“A. Well, like I said, I was inside the car, half out and half in; and I was holding the . gun like this. And I did receive a bruise from it.
“Q. Now, after having managed to get your hand on the gun, what did you do next?
“A. It was quite a struggle for approximately, five, six, seven minutes. I’m guesstimating the time. It was just time enough to keep the gun from discharging, and at the same time, protect her mother that was sitting in between us.
“Q. Were you struck at any time during the struggle?
“A. No, sir, I was not struck at any time during the struggle.
“Q. Who else was there at that time?
“A. Officer Tom Nunley with the Sheriff’s Department and Mr. Tom Myrick with the Sheriff’s Department.
“Q. Did you require assistance from anyone else to get that gun from the defendant?
“A. No, sir, I obtained the gun after the struggle and completely took the gun out of her hand. And — well, that answers the question.”

On cross-examination Officer Crook testified:

“Q. The gun was never pointed at you; is that correct, Officer?
“A. I observed the gun coming toward me, but as far as — (interrupted)
“Q. Well, it was still on the floor, it was pointed down and it was in someone’s hand; is that correct?
“A. Yes, sir.
“Q. But it was never pointed at you; is that correct?
“A. Directly at me, no, sir.
“Q. And her arm was still in a down position; is that correct?
“A. No, sir.
“Q. It was not down?
“A. No, sir.
“Q. Where was it? Was it up here?
“A. It was about a forty-five degree.
“Q. Something like this, here? If I was sitting in here and the gun was, here; is that correct?
“A. No, sir.
“Q. Well, that’s about 45 degrees, that’s what I thought.
“A. I’ll be glad to show you if it will clarify it for you.
“Q. That’s what I am wanting, go ahead.
“A. Would you like for me to show you?
“Q. Yes.
“A. Okay. She is sitting in the vehicle, like this, in the car. And her mother is, here; and she reached down, under the seat, like this, and she came out and the gun was coming up about by her mother’s knees in the car, right in this area, right here, in a sitting position. I would say it was parallel to somebody’s knees sitting opposite her, who at the time, it was her mother.
“Q. Right here (indicating)?
“A. Yes, sir.
“Q. Right down here, is that right?
“A. Yes, sir.
“Q. Okay. But the gun was never pointed at you. Is that correct?
“A. No, sir.
“Q. And you say she didn’t strike you at all; is that correct? That’s what you said, you didn’t get hit?
“A. No, sir, I didn’t get hit, no sir.
“Q. Did she bite you?
“A. She attempted to, at one time, yes.
“Q. Okay. Now, did you hit her?
“A. No, sir.”

There was other evidence in the case, including the testimony of two other officers present, who testified as witnesses for the State, and the testimony of defendant, the only witness for the defense. The testimony of the officers corroborated substantially the testimony of Officer Crook. In defendant’s testimony, she said that she was upset about being evicted from her home and further explained her conduct as follows:

“Q. Why did you go under there and get that gun?
“A. I just went and wanted to get it, because they had my stuff out in the road. I don’t know.
“Q. What were you going to do with it when you got it out?
“A. I wasn’t going to do nothing about it, because I never pointed it at anyone.
“Q. Why did you not point it at anyone?
“A. I just didn’t.
“Q. At any time, isn’t it a fact, that you didn’t, because your mother grabbed your arm; and then, the deputy dived in the car and grabbed the pistol?
“A. Yeah, my mother grabbed my arms and the deputy grabbed the pistol.
“Q. So, you don’t know whéther that gun was loaded; do you not?“A. No, sir.
“Q. So, there is no way that the officer knew that, at that time; is there?
“A. Right.
“Q. So, you didn’t know whether it would fire or not; did you?
“A. No, sir.
“Q. So, there was no way for him to know that; is that right?
“A. No, sir, I don’t know.”

In support of her only contention, appellant cites McArdle v. State, Ala.Cr.App., 372 So.2d 897 (1979), cert, denied, 372 So.2d 902, in which it was held that the evidence was insufficient to support a conviction of assault with intent to murder. As to whether an assault was committed, it is stated at 372 So.2d 900:

“From the foregoing facts there can be no question that the defendant criminally assaulted his wife.
‘“An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.
“ ‘To constitute an assault with a gun or pistol, it is necessary that the gun or pistol should be presented at the party charged to be assaulted, within the distance to which the gun or pistol may do execution.’ Tarver v. State, 43 Ala. 354, 356 (1869).”

We do not have the problem whether defendant assaulted the officer with a gun or other “deadly instrument” as inhibited by Code of Ala. § 13-1-42, for the grand jury discretively indicted defendant for nothing more than an assault and battery.

Even as to an assault, however, the fact that the muzzle of the pistol was not presented or pointed in the direction of the officer is worthy of serious consideration. In Lawson v. State, 30 Ala. 14 (1857), we find:

“To constitute an assault there must be the commencement of an act, which, if not prevented, would produce a battery. — State v. Blackwell, 9 Ala. 79; State v. Davis, 23 N.C. 125 [35 Am.Dec. 735]; Bishop on Criminal Law, 409; 2 Archbold’s Criminal Law, (Waterman’s Notes.) 282-83; Roscoe’s Criminal Evidence, 287. The drawing of a pistol, without presenting or cocking it, is not the commencement of such an act. The court erred, therefore, in the charge given.”

The “charge given” was that if the defendant “drew a pistol on the prosecutor, with the intention of shooting him, and was then within shooting distance, then he is guilty of an assault, although the pistol was not cocked or presented.”

Lawson v. State, supra, is the single authority cited in the footnote to the second sentence of 6 Am.Jur.2d, Assault and Battery, § 31:

“The authorities are not agreed on whether the showing of a firearm, unaccompanied by an attempt to use it, is a sufficient overt act to support a charge of criminal assault. One view is that to commit an assault, there must be the commencement of an act which, if not prevented, would produce a battery, and that the drawing of a pistol, without presenting or cocking it, is not such a commencement .... ”

The movement of the pistol by the act of defendant was not the only overt act committed by her. She actually physically struggled with the officer and with her mother in an effort to move the pistol farther than she did and to move the muzzle thereof more in the direction of the officer. We do not here have a case in which the only force exerted by the accused was in the movement of a pistol, or a part of the pistol by moving the hammer or otherwise cocking it. There was other force directed at the officer, including the attempt to bite him. The case is more like one of the two aspects of Engelhardt v. State, 88 Ala. 100, 7 So. 154 (1889), the other, aspect act being in point as it involved the conduct of shooting a pistol in the direction of the alleged victim and which was held to constitute an assault. The aspect in point, which the court held constituted a battery, was that on the same occasion defendant raised a stick, within striking distance, as if to strike the alleged victim, “which was prevented by his wrenching the stick from the defendant’s hand.” The conduct is further described in Engelhardt v. State, supra, at page 103, 7 So. 154:

“ ... The language describing the contest necessarily implies a contention, or striving together for the mastery, one of the other — a laying hold of each other’s persons in a rude and hostile manner. This was a battery. It may have been justifiable on the part of the person assailed, and no doubt was. But there is no sort of pretext that the act was justifiable on the part of the defendant.”

Although not essential to a correct determination of this appeal, it should be noted that the trial judge had the benefit, which we do not have, of a demonstration by at least one of the witnesses of the struggle between the defendant and Officer Crook, in which defendant’s mother also participated. The court did not go beyond its province in deciding both legally and factually that defendant was guilty. In no other respect is any error claimed, and we find none. The judgment should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Larry Rena CLARK v. STATE.
    4 Div. 818.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.

      William I. Grubb, II, Eufaula, for appellant.
    Charles A. Graddick, Atty. Gen. and Sandra M. Solowiej, Asst. Atty. Gen., for appel-lee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Larry Rena Clark, was indicted by the Grand Jury of Barbour County for murder in the first degree. He entered a plea of guilty to murder in the second degree. The trial court accepted the agreement made by the appellant, his attorney, and the district attorney, and duly sentenced the appellant to thirty years imprisonment. Later the appellant became dissatisfied with the length of his sentence, and with the services of his trial counsel, and filed a writ of error coram nobis, and a petition for a writ of habeas corpus, in the Circuit Court of Barbour County, both being denied by the trial judge, he appeals to this Court.

The appellant was at all proceedings in the trial court, and in this Court, represented by counsel appointed by the trial judge. This case was submitted to this Court on briefs.

Appellant states in his brief that the trial court erred to his prejudice on two grounds; first, in accepting the alleged guilty plea due to the involuntariness of its character; second, he was denied effective assistance of legal counsel at the trial level prior to, and subsequent to, his alleged plea of guilty.

The record before us shows that an Ireland Waiver of jury trial form, and a plea of guilty to murder in the second degree were signed by the appellant, his counsel, and the trial judge. The record further contains the court reporter’s transcript of the colloquy between the trial judge and the defendant at the time the plea of guilty was signed by the appellant. The record further contains a finding by the trial court that the appellant was represented by competent counsel, who was present in open court with the appellant through those proceedings, and that the appellant has full understanding of his rights as a defendant, and has a full understanding of his plea of guilty, and is intelligently and voluntarily entering his plea of guilt with full understanding of the nature of the charge, and acts sufficient to constitute the offense, and the consequences of his plea.

The appellant’s evidence at the hearing on his writ of error coram nobis consisted of his testimony, and the testimony of two law enforcement officers, and four exhibits. Appellant testified, in substance, that he agreed to enter a plea of guilty to murder in the second degree, and take a sentence of twenty-five years, but the judge gave him thirty years. The two officers testified, in substance, that when the appellant was arrested for murder, that the appellant did not run, but waited at the courthouse for the officer who arrested him. Appellant’s exhibits consisted of two letters written by appellant to an attorney, and the attorney’s answer to each, all written long before the plea was entered. The appellant offered no evidence from which an inference could be drawn that he was denied effective assistance of legal counsel at the trial level prior to, and subsequent to, his alleged plea of guilty.

State’s evidence consisted of testimony of appellant’s counsel, who represented him at the trial level, and of state’s counsel at the . trial level, and state’s exhibits 1, 2, and 3. The evidence of state’s counsel, and appellant’s counsel, was in direct conflict with the appellant’s evidence that he was advised that the sentence would be for twenty-five years. State’s evidence tended to prove that the agreement between the appellant, his counsel, and the state’s counsel was that the charge would be reduced to murder, second degree, and the sentence would be for thirty years; that the plea of not guilty would be withdrawn, and a plea of guilty to murder in the second degree would be entered, That the agreement was carried out exactly as agreed to. State’s exhibit one, two, and three consisted of two subpoenas issued at request of the defendant, Ireland form, plea of guilty, court reporter’s transcript of the proceedings on the day the plea was entered, including colloquy between the defendant and the trial judge, and the judgment entry finding that defendant is represented by competent counsel, and that the defendant has full understanding of his rights as a defendant, and full understanding of his plea of guilty, and is intelligently and voluntarily entering his plea of guilt with a full understanding of the nature of the charge, and acts sufficient to constitute the offense, and the consequences of his plea.

The question as to whether the plea of guilty was secured by misrepresentation of the length of the sentence, or was intelligently and voluntarily entered by the defendant, was for the trial judge. We hold that the trial judge did not err when he denied appellant’s petitions. Twyman v. State, 293 Ala. 75, 300 So.2d 124; Roden v. State, Ala.Cr.App., 384 So.2d 1248; Coff-man v. State, Ala.Cr.App., 381 So.2d 678; Ireland v. State, 47 Ala.App. 65, 250 So.2d 602; Barnes v. State, Ala.Cr.App., 354 So.2d 343.

Appellant’s second contention in his brief is that he was denied effective assistance of legal counsel. We have carefully searched the petition for writ of error cor-am nobis filed in this case, and we find no averment in the petition that appellant was innocent of the crime for which he was convicted, or that he had a valid defense. We do not find any evidence in this record tending to prove that appellant was denied effective assistance of legal counsel at the trial level. We do find in the record a determination by the trial court that appellant was represented at the trial level by competent counsel. The burden of presenting the matter to the court for determination falls on the petitioner, and he should aver the facts in his petition, and follow by proof of the facts by his evidence. We hold that the trial court did not err when it dismissed appellant’s petitions. Summers v. State, Ala.Cr.App., 366 So.2d 336; Certiora-ri Denied, Ala., 366 So.2d 346; Lewis v. State, Ala.Cr.App., 367 So.2d 542; Certiora-ri Denied, 367 So.2d 547; Robinson v. State, Ala.Cr.App., 361 So.2d 1172; Mack v. State, 51 Ala.App. 611, 288 So.2d 150; Ireland .v. State, supra.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    George David MARTIN v. STATE.
    6 Div. 89.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.

      Michael C. Cornwell, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and George Hardesty, Jr., Sp. Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of robbery. The court fixed his punishment at imprisonment for twenty years and one day and sentenced him accordingly.

Wendell Jacobs, the alleged victim and the operator of a service station and convenience store known as Key’s Corner in Tuscaloosa, testified that about 6:00 P.M. November 22, 1978, the defendant, whom he positively identified, and another “black male” succeeded in robbing him, while he was otherwise alone in the store, of “a bag of money.” He said that the other of the two men, whom he did not identify, ordered the witness at the point of a gun to open the cash register and put the money in a bag, which he did. He said that he then heard the slamming of a car door outside and immediately the men ran out of the door of the store, one right after the other; that the man other than the defendant was holding the bag of money. He testified that the two men had entered the store together. - He continued to observe them as they left the premises just before he called the police. His testimony on cross-examination continued:

“Q. Were you outside then?
“A. I was outside the front door.
“Q. And did you see either of the males at that point?
“A. They were going across the parking lot.
“Q. So you saw them then?
“A. (Witness nods head yes).
“Q. You say going across the parking lot. Which direction were they headed?
“A. Past here. These are the bays, past here, about a fifty-foot section of parking lot is where they were, and they were making a turn around the side of the parking lot going into the street when I seen them last.
“Q. Is there a street by the end of the parking lot there?
“A. Yes.
“Q. Would that be—
“A. 11th Avenue.
“Q. You saw them turn on that?
“A. Right.
“Q. How long was it after you saw the two males before the police officer returned with Mr. Martin in custody?
“A. Three or four or five minutes, it was just real quick.
“Q. Where was Mr. Martin when you saw him?
“A. In the police car.
“Q. Was he still in the car when you identified him?
“A. Yes, sir.”

According to further testimony of the witness, defendant was wearing a big hat that was marked as State’s Exhibit No. 2 “or one identical to it” and an “old Air Force fatigue jacket.”

The identification of defendant by Mr. Jacobs was corroborated by the testimony of Mr. O. M. Cummings, Jr., as one of the two men who ran from the store, one with a bag in his hand. He said he was present at the store when the officers soon thereafter brought the defendant to the store. In answer to the question whether in his judgment the man they picked up was the same man that he had seen come running out of the store, he said, “It looked mighty like him to me.”

According to the testimony of Officer N. E. Willingham, he received a radio dispatch to proceed to Key’s Corner at Tenth Street and Tenth Avenue soon after the robbery occurred. He left his partner there and proceeded in his police automobile in the direction he learned the robbers had taken in leaving the store and the parking lot and stopped the automobile at the intersection of Eighth Street and Thirteenth Avenue, with no lights on the automobile while parked. He had obtained a description of the robbers. “Two black males came walking out of the alleyway, walking fast, walking side by side.” He stepped out of the automobile, identified himself and told the men to stop. They then “just split up and started walking fast,” and soon “started running.” He “picked out one of them, the one closest to him” and “started running after him.” He told the man that “if he didn’t stop, I was going to shoot him.” The man slowed down, and the officer caught him. He was the defendant. The other man escaped. It only took about three minutes for the officer to leave the store, arrest the defendant, and return to the store. He there delivered him into the hands of other officers. Defendant did not have on a hat or cap.

According to the testimony of Sgt. Billy Bigham, he arrived at Key’s Corner just after defendant had been arrested. He patrolled around the area in his car and located “in Tenth Street, on the corner of Eleventh Avenue,” what he called “a cap,” the kind of headpiece that was also referred to as “a hat” that became State’s Exhibit No. 2 in the case.

Constable Joe Perkins testified that at about ten minutes after seven on the night of defendant’s arrest he showed the defendant the headpiece referred to as “a cap” and “a hat,” which constituted State’s Exhibit No. 2, and defendant said “that that was his hat, that he had bought several of them in California.”

According to the testimony of defendant, he was not present at the time and place of the robbery and did not know anything about it. He lived at 703 Thirty-fourth Avenue in Tuscaloosa. On November 22, 1978, he worked the early morning hours, went to his home afterwards, and visited several friends that afternoon. He was walking alone when apprehended by Officer Willingham. He saw another person about that time, the person that fled, but he did know him. He told Officer Willingham that he was just coming from a friend’s house. He said he had a hair net over his head, but that otherwise he had on no hat or cap and that he told the officers that the hat or cap that was shown him was not his.

Appellant’s only assertion of error is that “the trial court erred in denying appellant’s motion for mistrial and motion for new trial.” Each motion was grounded on the allegedly improper and prejudicial questions the prosecuting attorney asked defendant on cross-examination. We now set forth the part of the cross-examination of defendant that forms the basis of appellant’s assertion of error in his statement that the court “erred in overruling defendant’s motion for a mistrial and his motion for a new trial”:

“Q. Did he [Officer Willingham] ask you the address of the friend girl’s house?
"A. No.
“Q. Now, do you recall when he read you your rights?
“A. The only time he was reading them to me was at the service station.
“Q. Now, you know what rights are, don’t you? You’ve heard them before, haven’t you?
“A. Well, I’ve heard them before.
“Q. You know, you know when they’re supposed to be given, too, don’t you, George?
“A. No, I really couldn’t say. I don’t know about no police routine, what they go through.
“Q. You don’t know anything about police routine?
“A. I don’t know.
“MR. CORNWELL: Your Honor, we object to this.
“THE COURT: Let’s move on, gentlemen.
“Q. Did he read you your rights when he first got you there in the car, George?
“A. I don’t recall.
“Q. Did he read you any rights while he was driving the car?
“A. I don’t recall.
“Q. They took you out of the marked car and put in a detective’s car?
“A. Well, first they took me out of that car and read my rights to me at the service station. I’m not sure whether I was in the marked car when they read me my rights or not. But anyway they transferred me to another car, and that’s when the man came up with the cap.
“Q. You’re doing all this talking to this officer, George, without any rights being read to you, is that right?
“A. No, sir, I was telling him — yeah, darn right, I was telling him that I was somewhere else, that I wasn’t there.
“Q. Now, when the two people identified you, then he read you your rights, is that right?
“A. Yes, sir, the best I can recollect.
“Q. You knew what those meant, didn’t you?
“A. I could just about comprehend what they meant.
“Q. Now, tell me what happened up at the station about the cap. Did anything else happen up at the station about this cap right here?
“A. Yeah, I was — the detective was reading my rights again, and I answered ‘Yes,’ to that.
“Q. You answered yes to what?
“A. Did I understand what he was reading my rights about and that’s when he said, well—
“Q. There was no question about you understanding your rights. How many times had you ever heard rights read to you, George?
“MR. CORNWELL: We object to this.
“THE COURT: Let’s stick with this case.
“MR. WILLIAMS: Okay.
“THE COURT: I sustain.
“A. They told me, I said — they said, ‘Do you want to call a lawyer,’ and I said, ‘Yeah,’ and they said ‘Can you afford a lawyer,’ and I said, ‘No.’ He said, ‘I’m going to have to ask you some questions anyway.’
“Q. And that’s what happened up in that police station in the Detective Division.
“A. Yes, sir.
“Q. They didn’t say anything about the public defender?
“A. I even asked them about that and they said, ‘Well, we can’t get in touch with them.’
“Q. Alright [sic]. Then you already knew about the public defender?
“A. Well, I—
“MR. CORNWELL: Your Honor, may we approach the bench?
“THE COURT: Well, I sustain the objection to that question. Let’s move on, gentlemen.
“MR. WILLIAMS: Okay.
“Q. What was said about the cap after you asked for a lawyer and they wouldn’t let you have one, and they took a statement from you?
“A. He kept on saying about seven something, seven: 10 or something like that. He said I said, ‘This is my cap,’ and I said, ‘no, I did not say that.’ ”

The above includes all of the cross-examination reported in appellant’s brief.

We fully understand appellant’s feeling to the effect that it appears that counsel for the State was endeavoring to show defendant’s familiarity with the rights of one suspected or accused of a crime, and details of the usual procedure of officers before asking for a statement from the accused or the suspect, in order to convey to the minds of the jurors the notion that defendant had beforetime been suspected or accused of criminal conduct. If such was the purpose, the inquiry should not have been conducted; it would have been an abuse of the right of cross-examination. The material quoted above furnishes some support for appellant’s contention, but our consideration of the entire cross-examination, which was extraordinarily and probably unnecessarily lengthy, leads us to the view that the jury did not believe that defendant had a previous criminal record.

We do not agree with appellant’s characterization of the court’s statement in sustaining an objection of defendant, “Let’s stick with this case,” as an “injudicious and prejudicial comment.” There was a note of reproof in it, but reproof of no one other than counsel for the State. The record does not show, and could hardly show, any emphasis upon the word “this.” To conclude that the jury was led to believe that defendant had or had had other cases requires us to go beyond that which the record permits. Our conclusion is that the trial judge was not in error, either in denying defendant’s motion for a mistrial or in overruling his motion for a new trial.

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

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

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Charles Edward ROBINSON v. STATE.
    6 Div. 340.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.
    J. Mark White of Smith, White & Hynds, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

This is an appeal from the denial of a petition for writ of error coram nobis seeking to overturn a robbery conviction in 1978 and a twenty-five year sentence in the penitentiary.

The original conviction was affirmed by this court on June 17,1980. Rehearing was denied on July 29, 1980, and certiorari was denied by the Supreme Court on October 31, 1980. Robinson v. State, Ala.Cr.App., 389 So.2d 144, writ denied, Ala., 389 So.2d 151.

While the case was pending on appeal appellant filed a petition for writ of error coram nobis. The petition was filed on May 14, 1980, and was denied on the same day on the ground the trial court was without jurisdiction as the case was on appeal.

In Summers v. State, Ala.Cr.App., 366 So.2d 336, this court held: “A petition for writ of error coram nobis will not be granted and is premature if filed while an appeal is pending.” Writ denied, Ala., 366 So.2d 346.

Appellant alleges that after he was convicted he filed a motion for a new trial on the ground of newly discovered evidence. On the hearing of the motion for a new trial appellant presented the testimony of Forrest Allen Spears who testified that he alone committed the robbery and that appellant was not in the car at the time of the robbery and did not participate in planning the robbery. However, the victim of the robbery made a positive identification of Robinson as the robber.

The testimony of Spears left much to be desired as he was uncertain as to the details of the robbery and refused to state who his companions were who did participate in the robbery. He had known Robinson for five years and they were cell mates for a period of time following the crime, and he certainly had every reason to give false testimony. Robinson v. State, supra.

Under Summers v. State, supra, and the cases therein cited, the order of the trial court in denying the petition in this case is correct and is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Memnon TIERCE, II, alias v. STATE of Alabama.
    6 Div. 358.
    Court of Criminal Appeals of Alabama.
    March 31, 1981.

      Robert B. Harwood, Jr. of Rosen, Wright, Harwood & Cook, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Jones, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

The indictment charged Memnon Tierce, II, alias Mem Tierce, with the possession of methaqualone, a controlled substance. The jury found the appellant “guilty as charged” and assessed a fine of twenty-five thousand ($25,000.00) dollars as punishment. In addition, the trial court sentenced appellant to six years’ imprisonment in the State penitentiary. Because we find that error occurred at appellant’s trial, we reverse and remand this cause.

I.

The trial court conducted a pretrial hearing on appellant’s motion to suppress. The purpose of the hearing was to determine whether or not law enforcement officers had probable cause to conduct a warrantless search of appellant’s automobile which yielded the controlled substance appellant was charged with unlawfully possessing.

Captain Lloyd Russell of the Tuscaloosa Police Department gave detailed testimony at the hearing as to information he had received from a confidential informant concerning appellant’s illegal possession of a controlled substance. From the record there can be no question that the two pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) was met. In substance, the informant telephoned Captain Russell on three occasions in regard to appellant’s activities on December 20 and 21 of 1979. The informant first called Captain Russell around 6:00 p. m. on December 20. The informant placed his second call at approximately 2:00 a. m. on December 21 and made his third and final call “within an hour” of the time appellant was apprehended at 3:00 a. m. on December 21. Captain Russell was permitted, quite properly at the suppression hearing, to relate what the informant had told him concerning the appellant’s activities on the night in question. By its very nature much of Captain Russell’s testimony constituted hearsay. Hearsay testimony, however, is of course, admissible at a suppression hearing for the purpose of establishing probable cause. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar, supra; Satterwhite v. State, 364 So.2d 359 (Ala. 1978); Reeder v. State, 294 Ala. 260, 314 So.2d 853 (1975); Small v. State, 348 So.2d 504 (Ala.Cr.App.), aff’d 348 So.2d 507 (Ala. 1977).

In addition to Captain Russell’s testimony, other police officers narrated in detail their observations of appellant on the night in question and their subsequent participation in the search of his automobile and seizure of the methaqualone. At the conclusion of the hearing the trial court correctly'found that probable cause existed for the warrantless search to have been conducted.

A.

Although the hearsay allegations of a reliable informant may be considered in hearing a motion to suppress, conducted outside the jury’s presence, in determining “probable cause” for an arrest or search, they have no place in the trial itself. Small, supra, 348 So.2d at 507. For the sake of clarity we note the following portions of Captain Russell’s testimony which were elicited by the State at appellant’s trial in chief which demonstrate unequivocally how the foregoing principle of law was not followed.

“Q All right, sir, how did you come to begin that investigation?
A I received a phone call from a confidential informer.
Q All right. Now, what information did you receive at that time?
A The confidential informant—
MR. HARWOOD (Defense Counsel): We object to what the confidential informant might have said.
THE COURT: Overruled.
MR. HARWOOD: Wait a minute, let me approach the bench if I may, Your Honor. Let me make sure I get my appropriate grounds on this. As I understand it, we are about to go into a discussion about a totally hearsay telephone conversation.
MR. MADDOX (Assistant District Attorney): We just want to know what information, we can proceed from there, Judge.
MR. HARWOOD: Let me get my objection in the record, Your Honor.
THE COURT: Go ahead.
MR. HARWOOD: I object to testimony from this witness as to what an unnamed person who has not been identified told him over the telephone as around, as I understand it, six o’clock on December 20, 1979. I object to it on the basis of hearsay. I object to it on the basis of remoteness in time. I object to it on the basis of the fact this is an unnamed witness and we have no opportunity to cross examine or test the accuracy of it.
THE COURT: All right, let’s get this settled. In the first place, he can tell— he won’t be required to identify the informant. Under no circumstances will I let any testimony in that might tend to identify this person, but he can testify whether he is trustworthy.
MR. HARWOOD: We don’t object to that, Your Honor, but we do object to what the informant told him on the telephone. That would be hearsay.
THE COURT: Well, it might probably would, but I don’t know of any other way.
MR. MADDOX: Thank you, Judge. THE COURT: I will overrule. I won’t argue with you about whether or not it is hearsay, but I will overrule the objection.
Q All right, just briefly, what did the informant tell you that made you begin this investigation?
A Said there would be a fantasy party at Tivoli’s that night and said Mem Tierce would be there and he would bring some cocaine and he would be dressed like a rock of cocaine.
MR. HARWOOD: I object.
THE COURT: I will overrule the objection.
MR. HARWOOD: Let me move to exclude that answer on the basis it is prejudicial, it is remote, relates to hearsay based on what an informant said that Mr. Tierce said without identifying the informant, so that we might have an opportunity of cross examination.
THE COURT: I will have to overrule the objection. Go ahead.
Q Now, did you receive further information regarding the activities of Mem Tierce from your informant?
A Yes, sir.
Q All right, sir, would you state whether or nor you received information about his activities inside Tivoli’s after he arrived there?
A Yes, sir.
Q All right, sir, when did you receive this information in your best judgment?
A I received, in my best judgment, would be around two p. m. — two a. m.
A Two a. m.?
A Yes, sir.
Q And what information did you receive at that time?
MR. HARWOOD: Again, Your Honor, we object to this witness testifying what an unknown informant would be telling him over the telephone. We object on the basis it would be irrelevant, immaterial.
THE COURT: Overruled.
MR. HARWOOD: Let me get my objection in. And it would be hearsay and we respectfully object.
THE COURT: Overruled, I will ask you to avoid any leading questions, but go ahead.
A He said they had seen Mr. Tierce with a vial of cocaine in his possession.
Q I think I missed some of what you said, they said what now?
A They said they had seen Mr. Tierce with a vial containing cocaine.
Q Where had they observed it?
MR. HARWOOD: Your Honor, let me move to exclude that. I move to exclude it because it is hearsay. I move to exclude it because its prejudice greatly outweighs the probative value. It is irrelevant to the case and to this prosecution and immaterial to this case, and its prosecution.
THE COURT: Well, it may be hearsay, but I don’t know of any other way to enforce the drug laws. If you do, I would like to know about it.
MR. HARWOOD: We object to Your Honor’s remarks and move for a mistrial on that basis.
THE COURT: Overrule the motion for a mistrial, I am sorry, it may be unpleasant or not pleasant, but I don’t know of any other way to proceed.
MR. HARWOOD: We except to Your Honor’s comments.
THE COURT: All right.
Q All right, now just one other question about that. Did you receive information as to where he was carrying that vial of cocaine he had?
MR. HARWOOD: We object on the basis of hearsay.
THE COURT: Overruled.
A Yes, sir.
Q Where?
A In his right front pocket.” (R. 143-149)

Thus, over repeated hearsay objections and motions to exclude, Captain Russell was permitted to testify in detail concerning what his informant had told him about appellant’s activities on the night in question. There can be no doubt that such testimony constituted prejudicial error. (Authorities cited).

This court and our Supreme Court have clearly and consistently held that hearsay allegations of a confidential informant may not be placed before the jury in a criminal trial. Satterwhite, supra; Reeder, supra; Small, supra. While hearsay may be properly used to establish probable cause, it is inadmissible at trial to prove ultimate facts in issue. Reeder, supra. Professor McCormick explains why the details of information received from an unidentified informant should be excluded at trial [McCormick on Evidence, 2nd Ed., Chapter 24, Section 248]:

“In criminal cases, the arresting or investigating officer will often explain his going to the scene of the crime or his interview with the defendant, or a search or seizure, by stating that he did so upon information received and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.” See Small, supra, 348 So.2d, at 507.

In affirming this court’s opinion in Small, supra, our Supreme Court held that where the trial court is made acquainted with a timely and specific hearsay objection to the content of the informant’s conversation, it is not necessary to repeat that specific ground each time an additional question is propounded to elicit the same testimony. Small, supra, 348 So.2d, at 509. Appellant’s objections, here, were both timely and specific.

B.

Referring once again to the above set out portion of the record, we find the following remark made by the trial court to be improper:

“THE COURT: Well, it may be hearsay, but I don’t know of any other way to enforce drug laws. If you do I would like to know about it.” (R. 149)

It is clear from the authorities cited herein, that such hearsay evidence should not have been admissible in the trial in chief, before the jury. The above comment simply reiterated the trial court’s position on the error heretofore discussed. There are no curative instructions, and in light of the influence of a presiding judge at trial, such remark could easily unduly influence the jury in its decision in the cause.

A discussion of legal principles may be found in Moulton v. State, 199 Ala. 411, 74 So. 454 (1917); Holland v. State, 24 Ala. App. 199, 132 So. 601, 604 (1931); Dennison v. State, 17 Ala.App. 674, 88 So. 211, 213 (1921) and James v. State, 337 So.2d 1332 (Ala.Cr.App. 1976).

II.

Appellant’s counsel calls attention to several other issues in this appeal. However, because of our decision in this cause, we pretermit consideration of same as we do not believe that such matters are likely to arise again on retrial of this cause. Because of the error shown we must reverse and remand this cause for a new trial.

REVERSED AND REMANDED.