text:
    STATE of Louisiana v. Lionel MILES.
    No. KA 83 1378.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie Brown, Dist. Atty., Ralph Roy, Brett Grayson, Ernest Smithling, Asst. Dist. Attys., Baton Rouge, for plaintiff— State of La.
    Kathleen Stewart Richey, Asst. Public Defender, Baton Rouge, for defendant— Lionel Miles.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The defendant, Lionel Miles, was charged by a bill of information with receiving stolen things between August 18, 1982 and August 26, 1982 in violation of LSA-R.S. 14:69. After jury trial, the defendant was found guilty of receiving stolen things having a value of $850.00. Subsequently he was sentenced to be confined in the custody of the Secretary of the Department of Corrections, State of Louisiana, for a period of five years, with credit for time served. The defendant now appeals on the basis of two assignments of error.

In August of 1982, while Mrs. Brenda Kelly was away from her home on Odgén Street in Baton Rouge, East Baton Rouge Parish, Louisiana, a friend, Maxine Marie Hanks, noticed that the Kelly residence appeared to have been broken into and that some antique furniture and other items had been stolen. When Mrs. Kelly returned home, she was informed by her friend, and she notified the police of the burglary.

On August 19, 1982, Mrs. Eloise Thompson of the Chelouise Antique Shop on Highland Road in Baton Rouge received a phone call from a person who told her that he had some furniture in which she might be interested. She went to see the furniture, and purchased it from Lionel Miles.

On August 26, 1982, Mrs. Kelly’s house was again burglarized, and some more items were stolen. On that same date, the owner of the antique store was again requested by Miles to come view more property. (The owner of the antique store had, between August 19 and August 26, bought several other pieces of antique furniture from Miles). Mrs. Thompson, the antique dealer, had the impression that defendant had inherited these pieces of furniture from a member of his family.

Eventually, the defendant was arrested and charged with receiving stolen goods. Miles gave a statement to the police in which he said that two people had brought the property in question to him for him to sell. He also admitted that he knew the property had been stolen.

Defendant contends on appeal that the trial court erred when it denied his motion for a mistrial based on the alleged prejudicial remarks of the prosecutor in the presence of the jury. While the jury venire was present in the courtroom, prior to the voir dire, the prosecutor requested an amendment of the bill of information to add the charge of theft. The defense moved for a mistrial, which the court denied. The court, however, offered to admonish the prospective jury. The defense declined to avail himself of this remedy. The objection to the alleged prejudicial remarks of the prosecutor was not made by the defense until after selection of the jury and a recess by the court.

An objection to prejudicial remarks or conduct of the prosecutor must be contemporaneous. State v. Anderson, 333 So.2d 919 (La.1976). In the instant case, defense made no such contemporaneous objection. The complained-of error occurred before the voir dire; and defense waited until voir dire had been completed, the jury selected and a recess taken, before he complained. The contemporaneous objection rule exists, ■ not only so that a trial judge may correct the error at the time it is made, but it also serves notice in the record that the complained-of conduct was so noticeable as to create prejudice in the minds of those observing it, i.e., the trier of fact. Hence, we hold that the defense waived any right he may have had to a mistrial, because the objection he made was not contemporaneous with the conduct.

Secondly, and more importantly, the remark of the prosecutor was not so prejudicial as to preclude a fair trial. The trial judge, in giving his reasons for denying the mistrial, said while he did not consider it was ’proper to move to amend the bill of information in the presence of the jury panel, he did not believe that the panel would be so affected by the motion to amend as to preclude a fair trial. The judge offered to admonish the jury to disregard any technical procedures which may have occurred prior to the trial on the matter, and the defense declined the admonition remedy. It appears that the jury, at that particular stage of the trial, would not have noticed or assigned any significance to the prosecutor’s conduct before any of the members of the jury was actually chosen. In any event, the judge offered to admonish the jury (which was unacceptable to the defense). The decision not to grant a mistrial, but to offer an admonition is in the sound discretion of the trial judge, and is not to be reversed absent a clear abuse of that discretion. State v. Douglas, 389 So.2d 1263 (La.1980).

Moreover, the codal article making prejudicial remarks the basis of a mistrial, LSA-C.Cr.P. art. 770(2), expressly provides for a mistrial on the basis of remarks concerning another crime only where evidence of such crime would not be admissible. In the instant ease, evidence of an alleged theft would have been admissible since one of the elements of the crime of receiving stolen things is that the “anything of value” be the subject of “any robbery or theft.” LSA-R.S. 14:69 (prior to the 1982 amendment.)

Further, we observe that a mistrial is a drastic remedy, and is warranted only when the trial error results in such substantial prejudice that the defendant cannot receive a fair trial. State v. Harris, 383 So.2d 1 (La.1980). In the instant case, pri- or to any juror being chosen, the State moved to amend the bill of information. Discussion on the request was postponed by the court, and a recess taken. It was only after the recess that the prosecutor’s mentioning of such an amendment with the jury venire present in the courtroom was brought up by the defense as being prejudicial. The lateness of his request for a mistrial on those grounds, and the fact that the motion to amend was clearly not so prejudicial as to cause this defendant to be denied a fair trial lead us to the conclusion that this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7(2): Objection as to Venue

In this assignment of error the defense contends that the State did not prove that the crime with which defendant was charged took place in East Baton Rouge Parish.

Under Article 611 of the Code of Criminal Procedure:

All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.

The receiving of stolen things is:

... the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses. LSA-R.S. 14:69 (prior to the 1982 amendment).

Under the Reporter’s Comment to LSA-R.S. 14:69 (now labeled the illegal possession of stolen things) it is noted that one of the elements of the crime is that the goods involved were in fact stolen (the subject of a robbery of theft). The items involved in the instant case were stolen from the residence of Mrs. Kelly, which is in Baton Rouge, East Baton Rouge Parish.

In his brief, the defense maintains that, because Mrs. Kelly did not say specifically she lived in Baton Rouge, there was insufficient evidence that the crime was committed in that city and parish. The record reflects that the witness, Maxine Marie Hanks, testified that she lived at 2029 Wisteria in Baton Rouge. She further testified that she lived some ten blocks from the victim Mrs. Kelly. The reasonable inference is that Mrs. Kelly resided in Baton Rouge. Moreover, Mrs. Kelly testified that the property under discussion was located at “221 Ogden”, which was her residence. Hence, the fact that the evidence establishes that the items were stolen from a Baton Rouge residence proves venue in Baton Rouge, East Baton Rouge Parish.

Furthermore, we note that the street names mentioned, particularly the addresses of the Kelly residence on Ogden and the antique shop on Highland Road, are well known and would be well known to any trier of fact in this parish. Moreover, the fact that the crime was investigated by the Baton Rouge Police Department was also a fact which the trier of fact could reasonably infer that the crime occurred in East Baton Rouge Parish.

Venue is a factual issue, which the prosecution must prove beyond a reasonable doubt. Our review of the evidence in the record, as discussed above, convinces us that the State, at trial, proved venue to be in East Baton Rouge Parish beyond a reasonable doubt. State v. Skipper, 387 So.2d 592 (La.1980). Consequently, we find this assignment to be without merit.

For the reasons assigned, we affirm the conviction and sentence of defendant, Lionel Miles.

AFFIRMED.

      . Defendant had originally assigned nine errors as the basis of his appeal, but seven of the assignments of error were not briefed and are thus considered abandoned. Uniform Rules— Courts of Appeal, Rule 2-12.4.

      . After discussion with defense counsel and the trial judge, the prosecutor elected not to amend the bill of information.


source: Caselaw Access Project

author: SAVOIE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. George CAUSEY.
    No. KA 83 1382.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen S. Richey, Baton Rouge, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant appeals, as excessive, the sen: tences imposed for his conviction on four counts of armed robbery. We find no error therewith and, accordingly, affirm.

Upon entering the Gulf States Utilities Company’s office in Baton Rouge to pay a bill, defendant and his cousin noticed a large amount of cash present. They decided to rob the office and left to purchase two pistols and two ski-masks. Returning to the office, the men held-up four employees, taking approximately $10,000.00. Defendant was apprehended and admitted that he and his cousin committed the robbery.

Defendant was convicted by a jury on four counts of armed robbery in violation of L.S.A.-R.S. 14:64. He was sentenced to serve 80 years at hard labor on Count One, and 75 years at hard labor on each of the remaining counts. The sentences are to be served concurrently and without the benefit of probation, parole or suspension of sentence.

Defendant appealed these sentences as excessive, relying on La.C.Cr.P. arts. 835 and 894.1 as the bases for his assignment of error. He contends the procedure at his sentencing hearing violated both articles, to-wit: (1) Article 835, because defendant was absent from the proceeding during the trial court’s articulation of art. 894.1 guidelines; and (2) Article 894.1, because the trial court failed to individualize defendant’s sentence.

(1)

Defendant argues that La.C.Cr.P. art. 835 requires his presence during the trial court’s articulation of art. 894.1 guidelines.

La.C.Cr.P. art. 835 mandates that, in felony cases, the defendant be present when sentence is pronounced. La.C.Cr.P. art. 894.1(C) requires the court to state for the record the considerations taken into account and the factual basis therefor in imposing sentence. To comply with La.C. Cr.P. art. 894.1, the court must state the reasons and facts considered by it contemporaneously with the imposition of sentence. State v. Beatty, 391 So.2d 828 (La.1980).

It is apparent from the language in Beatty, supra, that the imposition of sentence is a separate step in the sentencing process from the articulation of the consideration and factual basis therefor. Accordingly, we reject defendant’s assertion that La.C.Cr.P. art. 835 requires his presence during the court’s articulation of the considerations and factual basis for the sentence. On the contrary, his presence is only required when the sentence is pronounced. La.C.Cr.P. art. 835.

Further, we note that the purpose for requiring the contemporaneous statement of the considerations and factual basis with the imposition of sentence is to give defense counsel an opportunity to respond or correct any inaccurate information. State v. Beatty, supra. This purpose was satisfied in the instant case. Although the defendant was removed from the courtroom after imposition of sentence but before the court’s articulation under La.C.Cr.P. art. 894.1, defendant’s counsel was present throughout the proceeding. In addition, the sentence was not made executory until three days thereafter. At that time, defendant and his counsel were present in court and could have brought any inaccuracies to the court’s attention.

(2)

Defendant complains that the trial court violated La.C.Cr.P. art. 894.1 by failing to individualize his sentence.

In the instant case, the trial court recognized that defendant was a third felony offender prior to the instant conviction. Further, the court observed that the defendant had witnesses come in and perjure themselves in defendant’s behalf at trial. In addition, the court remarked that the defendant told the probation officer he could not and would not go to prison for this offense. The court noted also that the defendant showed extreme hostility and contempt for the court when the court attempted to sentence him.

Where the trial judge has failed to fully comply with the sentencing requirements of La.C.Cr.P. art. 894.1, the sentence need not be vacated if the reasons for the sentence given by the trial judge and supplemented by evidence found elsewhere in the record “clearly illumines the sentencing choice” and reflects, upon appellate review, that the sentence given is not excessive. State v. Green, 409 So.2d 563 (La.1982).

Upon conviction for the crime of armed robbery, defendant could have been sentenced, on each count, to a term of 99 years at hard labor, without benefit of parole, probation or suspension of sentence. L.S.A.-R.S. 14:64. The record reveals that defendant had two felony convictions and one felony charge pending at the time of the instance offenses. One of the convictions and the pending felony were for the crime of aggravated battery. We note that the instant offenses also consisted of a crime against the person. The defendant was armed and, thereby, created a great risk of harm to others. No mitigating circumstances were articulated by the trial court nor does the record reveal the existence of any such factors.

In light of the trial court’s great discretion in imposing sentences and its reasons therefor, and our review of the record, we do not find that defendant’s sentences are excessive.

For the foregoing reasons, the defendant’s conviction and sentences are affirmed.

AFFIRMED.

      . Defendant was removed from the courtroom because of his continuing interruption of and abusive exchange with the trial court, despite repeated warnings by the trial court and defense counsel to be quiet.


author: COLE, Judge.

text:
    STATE of Louisiana v. George A. COX, Jr.
    No. KA 83 1402.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie B. Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Kathleen S. Richey, Baton Rouge, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue before this court is whether the evidence presented was legally sufficient to prove the element of specific intent.

Defendant, George Allen Cox, Jr., was charged by bill of information with indecent behavior with a juvenile, a violation of La.R.S. 14:81. Defendant was tried by jury and found guilty of attempted indecent behavior with a juvenile. The trial court sentenced defendant to two and one-half years confinement at hard labor, but suspended execution of sentence and placed him on active supervised probation for five years, subject to several special conditions, including service of one year in parish prison. Defendant has appealed this conviction.

The alleged victim was a ten-year old girl. Defendant was a temporary resident in an apartment occupied by this child, her mother, step-father and siblings. He was an acquaintance of the step-father and moved in with the family after experiencing marital problems. Approximately two months thereafter, the child’s mother, while checking on the children prior to leaving for work at approximately 4:15 A.M., discovered defendant nude in her daughter’s bedroom. He was kneeling by the bed over the child, with his head under a blanket over her lower body. Defendant claimed to be investigating a noise in the bedroom. The child apparently slept through the incident.

On appeal, defendant contends the trial court erred in accepting a verdict based on insufficient evidence and in denying his motion for acquittal.

A trial court cannot refuse to accept a verdict which is proper in form, meets procedural requirements and is responsive to the indictment. La.Code Crim.P. art. 811, et seq.; State v. Oliney, 430 So.2d 1294 (La.App. 1st Cir.1983). Since the verdict herein was not defective in any of these repects, the trial court did not err in accepting it.

Furthermore, it should be noted that motion for acquittal is procedurally proper only in bench trials. La.Code Crim.P. art. 778; State v. Smith, 430 So.2d 31, 44 (La.1983). A proper method of raising insufficiency of the evidence is by motion for a post-verdict judgment of acquittal. See State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983). However, we will address the substance of defendant’s assignments, which is sufficiency of the evidence to prove the element of specific intent. See- State v. Allen, 440 So.2d 1330 (La.1983).

The standard for reviewing sufficiency of the evidence is whether the evidence, viewed in the light most favorable to the State, reasonably permits a finding of guilt. La.Code Crim.P. art. 821(B). Additionally, where the evidence against a defendant is circumstantial in nature, this evidence, assuming every fact proven which it tends to prove, must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. Defendant argues on appeal that the evidence presented was insufficient to prove he possessed specific intent to commit indecent behavior with a juvenile.

According to the child’s mother, she found defendant totally nude beside her daughter’s bed, with his head under a blanket over the child’s lower body. Defendant testified he was wearing underwear and merely grabbed a blanket from the child’s bed to cover himself when he heard someone coming. Resolution of conflicting testimony on factual matters based upon credibility of the witnesses is a matter of the weight of evidence rather than its sufficiency. State v. Norman, 448 So.2d 246, (La.App. 1st Cir.1984). Since determination of the weight of evidence is a question of fact, this court has no jurisdiction to review such determinations upon appeal. La. Const. art. V, Sec. 10(B); State v. Norman, supra. The jury in the present case obviously chose to reject defendant’s testimony in favor of that of the child’s mother.

In order to prove indecent behavior with a juvenile, the State must prove that the accused committed a lewd or lascivious act upon a juvenile “with the intention of arousing or gratifying the sexual desires of either person.” La.R.S. 14:81. Although the existence of such intent is a question of fact, it need not be proven as such, but can be' inferred from the attendant circumstances. La.R.S. 15:445. We conclude it could reasonably be inferred from the facts testified to by the child’s mother that defendant possessed the specific intent necessary for indecent behavior with a juvenile.

Defendant also argues, however, that the evidence does not exclude every reasonable hypothesis of innocence. He claims he went into the child’s bedroom to investigate a noise, which he thought might have been one of the children falling out of bed. He stated that he did nothing more than grab a blanket off the child’s bed to cover himself. We reject this argument, finding that it is negated by the fact of defendant’s total nudity and the manner in which he was discovered leaning over the child’s lower body. We find the evidence does, in fact, exclude every reasonable hypothesis of innocence.

For the foregoing reasons, we affirm defendant’s conviction.

AFFIRMED.

      . The jury acquitted defendant on a second count of indecent behavior with a juvenile charged in the same bill of information.

      . This argument is a combination of assignments of error 6 and 7. Assignments of error 1, 2, 3, 4, 5 and 8 were not briefed and are therefore considered abandoned. Uniform Rules — • Courts of Appeal, Rule 2-12.4.

      . Rendered April 3, 1984; Numbers 83 KA 1107 and 83 KA 1108.


text:
    STATE of Louisiana v. Kenneth BRIDGEWATER.
    No. 83 KA 1431.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Allen J. Myles, Asst. Dist. Atty., Plaque-mine, Richard J. Ward, Jr., Asst. Dist. Atty., Maringouin, for plaintiff-appellee.
    Thomas A. Nelson, Indigent Defender, New Roads, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Kenneth Bridgewater, was charged by bill of information with the distribution of marijuana, a violation of L.S.A.-R.S. 40:966. A jury convicted defendant as charged, and he was subsequently sentenced to serve two years at hard labor. The sentence was suspended, and defendant was placed on probation for five years, with the special condition that he serve six months in the parish jail. He has appealed, alleging one assignment of error:

(1) The bag of marijuana should not have been admitted into evidence since the State did not prove the chain of custody. Defendant argues that the failure of the evidence clerk, who had custody of the bag of marijuana, to testify constitutes a break in the chain of custody.

We affirm.

Defendant was charged as the result of an extensive narcotics investigation which was conducted by law enforcement agencies for several months prior to his arrest. An officer of the Louisiana State Police, working undercover, set up a purchase of marijuana with the assistance of a confidential informant, whose identity was later revealed. Trooper Connie Wright purchased the marijuana from defendant on July 12, 1982, in a park in New Roads, Louisiana. Trooper Wright marked the bag of marijuana immediately after the sale by writing the date and time of the sale on a slip of paper and placing it inside the bag. The bag of marijuana was placed inside an evidence envelope provided by the Louisiana State Police, and sealed before delivery to the State Police Crime Laboratory.

The laboratory confirmed that the green vegetable matter was marijuana. At trial, Trooper Wright positively identified defendant as the man from whom she purchased the marijuana. She testified that she made only one “buy” on that date in the park. She also identified defendant’s car as the vehicle from which the purchased marijuana was delivered. The jury convicted defendant of the distribution of marijuana.

ASSIGNMENT OF ERROR

In his only assignment of error, defendant argues that the trial court erred in permitting the introduction of state evidence. He argues that this evidence, consisting of the bag of marijuana, the evidence envelope, and the crime laboratory envelope, was admitted without a sufficient showing of the “chain of custody” because the evidence clerk at the crime laboratory did not appear at the trial and identify the package.

A showing of a continuous chain of custody is not essential to the introduction of physical evidence as long as the evidence as a whole establishes that it is more probable than not that the object is the same object originally seized by the officer. Deficiencies in the chain of custody are attributable to the weight of the evidence, not to its admissibility. State v. Kennedy, 444 So.2d 301 (La.App. 1st Cir.1983). We find no error in the admission of this evidence.

Terry Harrison, an officer with the State Police Crime Laboratory, identified the package on the stand by the State Police file number SP 3728-82. He also identified the inner envelope by the register number, Region II, u/c 101-82, which appears on the outer envelope, and by Trooper Wright’s initials and name across the evidence tape sealing the envelope. Trooper Wright identified the bag and the envelope by her own handwriting, and testified that she personally submitted it to the crime lab. We find that the evidence as a whole established that it was more probable than not that the items admitted into evidence were the same items originally secured by Trooper Wright.

For the above and foregoing reasons, the conviction is affirmed.

AFFIRMED.

      . The transcript reflects the number U/C 108-82. Both envelopes show the number as U/C 101-82.


text:
    Brenda SANCHEZ v. Norman J. SANCHEZ, Sr., et al.
    No. CA 84 0101.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Ralph D. Hillman, Thibodaux, for plaintiff-appellee.
    E. Robert Sternfels, Napoleonville, for def endants-appellants.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue presented here is whether or not plaintiffs appeal was filed timely.

Plaintiff Brenda Sanchez filed suit against defendants, Norman J. Sanchez, Sr. and Mary Ann C. Sanchez, seeking the rescission of a sale of immovable property. Defendants reconvened for damages allegedly caused by plaintiffs suit. Trial was held on September 30, 1983 and the case was taken under advisement. On November 21, 1983, judgment was signed, partially in favor of plaintiff and partially in favor of defendants. The record does not show a notice of judgment was sent to the parties, nor does it reflect a motion for a new trial.

Defendants were granted a devolutive appeal by order signed on December 1, 1983. Plaintiff was granted a devolutive appeal on February 16, 1984. Defendants then filed this motion, arguing plaintiffs appeal was not filed timely. We disagree.

When a case is taken under advisement, a notice of the signing of a final judgment shall be mailed by the clerk of court to counsel of record for each party, and the clerk shall file a certificate in the record indicating the date of the notice. Code of Civ.P. art. 1913. The time period for taking a devolutive appeal, in cases where a new trial has not been applied for, is 60 days after the expiration of the delay for applying for a new trial. Code of Civ.P. art. 2087. In cases where notice of judgment is required under art. 1913, this delay begins running on the date after the sheriff has served, or the clerk has mailed, the notice of judgment. Code of Civ.P. art. 1974.

Therefore, in cases where notice of judgment is required (as in the present case) but no such notice was given, the delay for applying for a new trial, and hence the delay for taking a devolutive appeal, does not begin to run. See Penalber v. Blount, 405 So.2d 1376 (La.App. 1st Cir.1981). Accordingly, plaintiffs appeal was filed timely-

MOTION TO DISMISS DENIED.


author: CARTER, Judge:

text:
    Gerald EASLEY v. Brenda Cathy Easley WILLIAMS.
    No. 84 CA 0326.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Stephen C. Sledge, Hammond, for plaintiff-appellant.
    L.B. Ponder, Jr., Amite, for defendant-appellee.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge:

This matter is before us on a motion to dismiss the appeal of the plaintiff, Gerald Easley. Defendant-appellee’s bases for the motion is that the appeal was not timely perfected and that appellant failed to timely pay court costs and timely file the transcript.

Plaintiff filed a rule seeking a change of custody of his minor child from the defendant (the child’s mother) to himself. Defendant reconvened for an increase in child support and for an order of child support for two other minors. Defendant also sought judgment making child support ar-rearages executory. Trial was held on June 27, 1983, at the conclusion of which judgment was orally rendered in open court. The judgment was later reduced to writing and signed on August 22, 1983 as follows:

1) denying plaintiff’s principal demand for a change in custody;
2) maintenance of custody with defendant and visitation rights to plaintiff;
3) dismissing defendant’s claim for child support of the two additional minors and increase in support for the minor child, Carolyn;
4) ordered that the plaintiff pay various costs of medical treatment for Carolyn;
5) made executory against plaintiff support arrearages, plus interest; and
6) awarded attorney’s fees to counsel for defendant (apparently in conjunction with the arrearages judgment — R.S. 9:305).

Plaintiff filed a petition for devolutive appeal on October 20, 1983, within sixty days of the date of the judgment, but more than thirty days from the date of the judgment. An order granting the appeal was signed on the same day by the trial judge fixing the return day of December 20, 1983. One extension was obtained by the deputy clerk of court based upon appellant’s failure to pay estimated court costs. This extension fixed the return day for January 20, 1984. The record was lodged on March 14, 1984.

Defendant contends that her motion to dismiss should be granted because: (1) the appeal involved the custody dispute which is appealable only within thirty days; and (2) appellant failed to timely pay costs and file the transcript.

Plaintiff opposes the motion to dismiss claiming that the appeal relates solely to the judgment making support arrearag-es executory. He also contends that the motion to dismiss the appeal was not timely filed. Plaintiff’s oppositions are essentially misplaced. Even though he contends that the appeal relates solely to the judgment making the support arrearages executory, this is not reflected by any document or evidence in the record. Secondly, as to his contention that the motion to dismiss the appeal was not timely filed pursuant to LSA-C.C.P. art. 2161, plaintiff overlooks the well settled rule of law that an untimely appeal raises jurisdictional defects and an appeal may be dismissed at any time for lack of jurisdiction. See Willie v. Otasco, 347 So.2d 1215 (La.App. 1st Cir.1977). See also LSA-C.C.P. 2162.

As to defendant’s contention supporting her motion to dismiss the appeal, clearly items 1-4 in our previous discussion relate to custody and child support. The applicable appeal delays for both custody and child support judgments is thirty days. LSA-C.C.P. art. 3943, 3942, and 2087; Verrett v. Verrett, 397 So.2d 840 (La.App. 4th Cir.1981). See also Matherne v. Matherne, 331 So.2d 55 (La.App. 1st Cir.1976).

Items 5 and 6 relate to child support arrearages. The appeal delay for a judgment granting or denying child support arrearages is sixty days. LSA-C.C.P. 2087. See Thompson v. Thompson, 419 So.2d 45 (La.App. 1st Cir.1982). Since plaintiff’s motion for appeal herein was filed more than thirty days but less than sixty days after expiration of the delay for applying for a new trial, the appeal is untimely as to the custody and child support matters (Items 1-4), but timely as to the arrearages matters (Items 5 & 6).

Defendant next contends that the motion to dismiss should be granted because appellant failed to timely pay costs and file the transcript. LSA-C.C.P. 2126, in pertinent part, provides as follows:

“If the appellant pays the costs required by this Article, the appeal may not be dismissed because of the passage of the return day without an extension being obtained or because of an untimely lodging of the record on appeal.”

From the above, it is apparent that this argument is without merit.

For the above and foregoing reasons, the motion to dismiss is granted in part and denied in part.

MOTION TO DISMISS GRANTED IN PART AND DENIED IN PART.


author: WATKINS, Judge.

text:
    Johnnie DICKERSON v. STATE of Louisiana.
    No. 84 KW(A) 0429.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This appeal is brought by Johnnie Dickerson from the denial of a request for a Writ of Habeas Corpus filed by him in proper person. Such a judgment is not appealable. LSA-C.Cr.P. Article 369. Therefore, this matter is dismissed as an appeal.

However we elect to treat this matter as an application for supervisory writs. Upon reviewing the record and the brief submitted by Mr. Dickerson, we find no basis for the relief sought. Therefore, this application for supervisory writs is denied.

WRIT DENIED.


text:
    DAY-BRITE LIGHTING DIVISION, EMERSON ELECTRIC COMPANY v. Dorothy MABRY.
    No. 54267.
    Supreme Court of Mississippi.
    June 6, 1984.
    John S. Hill, Wade H. Lagrone, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, for appellant.
    William S. Lawson, Tupelo, for appellee.
    Before BOWLING, DAN M. LEE and SULLIVAN, JJ.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

AFFIRMED AND REMANDED TO COMMISSION FOR PAYMENT, WITH STATUTORY INTEREST AND DAMAGES.


text:
    Larry David TATUM v. Alma Jo TATUM.
    No. 54913.
    Supreme Court of Mississippi.
    June 6, 1984.
    Stephen P. Livingston, New Albany, for appellant.
    Jimmy D. Shelton, Tupelo, for appellee.
    Before ROY NOBLE LEE, P.J., and BOWLING and SULLIVAN, JJ.
   Appeal from Chancery Court, Pontotoc County; James E. Bost, Chancellor.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

ROBERTSON, J., not participating.


author: SULLIVAN, Justice,

text:
    Walter O'Neal JACKSON v. STATE of Mississippi.
    No. 54900.
    Supreme Court of Mississippi.
    June 6, 1984.

      Thomas D. Berry, Jr., Gulfport, for appellant.
    Bill Allain, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.
   SULLIVAN, Justice,

for the Court:

This case comes on appeal from the Circuit Court of Harrison County, Mississippi, wherein the appellant was tried and convicted of the crime of grand larceny and sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections, and fined the sum of $1,000.00.

The indictment charged appellant and his two co-defendants with the theft of

Four (4) packs Danish Cooked Ham; Four (4) packs beef rib eye steak; One (1) pack Beef Rib eye steak; Two (2) packs Beef Rib Eye Steak, a better description being to your grand jurors unknown.

These meats were the property of Atlantic and Pacific Tea Company and had a total value of $142.12. During trial it became apparent, through the testimony of A & P manager Robert Fayard, that the two packs rib eye steak were actually rib eye roasts; however, over objection, the state was allowed to introduce evidence of the theft of the two roasts despite the misde-scription in the indictment. There was also testimony that the value of these two roasts was $42 and $45 respectively. Thus, inasmuch as the total value of the meat was $142.12, unless the appellant was properly charged with the theft of the roasts and their value properly included he cannot have been convicted of grand larceny.

The description of an indictment must be of sufficient particularity to enable the court to determine that such property is the subject of larceny and to advise the accused with reasonable certainty of the accusation he will be called upon to meet at the trial and to enable him to plead the judgment rendered thereat in bar of a subsequent prosecution for the same offense without other proof. Grimsley v. State, 215 Miss. 43, 48-49, 60 So.2d 509, 511 (1952). For the variance between the indictment and the proof to be fatal, however, it must be a material and prejudicial variance.

Mississippi Code Annotated § 99-17-13 (1972) allows the state to amend an indictment because of misdescribed property. Such amendment was not undertaken here. The misdescription in this indictment would make it difficult for appellant to plead the judgment rendered in bar of any subsequent prosecution for the same offense. The indictment could have been amended and was not amended. In such circumstances, the two roasts must be excluded, thereby reducing the value of the goods taken here below the $100.00 requirement for grand larceny.

Therefore, appellant’s argument that his conviction of grand larceny cannot stand is well taken and remand must be made for resentencing to the lesser included offense of petit larceny.

The other assignments of error by appellant are without merit but because of the result already reached above we do not discuss them here.

Where, as here, the variance between the indictment and the proof is material and prejudicial, viz. the proof of the amount being under $100.00 and the inability of the defendant to plead the judgment as a bar, the conviction can be affirmed only as to petit larceny. Barry v. State, 406 So.2d 45 (Miss.1981).

GRAND LARCENY CONVICTION REVERSED; REMANDED FOR SENTENCING FOR PETIT LARCENY.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


author: PATTERSON, Chief Justice,

text:
    Lillie BROWN v. Arthur BROWN.
    No. 54927.
    Supreme Court of Mississippi.
    June 6, 1984.
    Alsee McDaniel, West Point, for appellant.
    Arthur Brown, Sr., pro se.
    Before PATTERSON, C.J., and HAWKINS and PRATHER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Lillie Brown appeals to this Court from a decree of the Chancery Court of Washington County dismissing her bill of complaint for divorce from Arthur Brown, Sr., as well as denying her request for alimony. The order, dated January 19, 1983, also dismissed the cross-bill of Arthur Brown, Sr., for divorce. Lillie Brown perfected an appeal to this court on July 25, 1983, and a certificate of the petition for appeal was served upon counsel for Arthur Brown, Sr., on March 3, 1983.

The appellant Lillie Brown contends the trial court erred in:

(1) finding there was insufficient evidence to grant the appellant a divorce on the ground of habitual cruel and inhuman treatment;
(2) ruling that the appellant indulged in a course of provocation toward the appellee; and
(3) failing to award reasonable alimony to the appellant.

Arthur Brown, Sr., the appellee, did not respond to the appeal in this Court until May 1, 1984. He then filed a motion to dismiss the appeal, urging the cause in this Court is moot because an order dissolving the marriage of appellant and appellee was entered on April 29, 1983, in the Circuit Court of Cook County, Illinois. It thus becomes apparent that pending this appeal there was a divorce suit in Cook County, Illinois, of which this Court was uninformed although that proceeding indicates that Lillie Brown was personally served with process for the divorce proceeding in Illinois. We surmise the Illinois Court was not informed of the appeal proceedings in this state.

We are of the opinion that the courts of this state should not be trifled with in such fashion. The appeal of Lillie Brown is therefore dismissed.

APPEAL DISMISSED.

WALKER, P.J., and ROY NOBLE LEE, P.JJ., BOWLING, HAWKINS, DAN M. LEE, PRATHER and SULLIVAN, JJ., concur.

ROBERTSON, J., not participating.


author: JONES, Justice. EMBRY, Justice

text:
    SUNGAS, INC. v. Joseph PERRY and Nancy Perry.
    82-808.
    Supreme Court of Alabama.
    April 6, 1984.
    J. Pelham Ferrell of Ferrell, Davenport & McKoon, Phenix City, for appellant.
    Charles E. Floyd and C. Kerry Curtis, Phenix City, for appellees.
   JONES, Justice.

This is an appeal from a final judgment in a negligence action, wherein a jury awarded Plaintiffs/Appellees Joseph Perry and his wife Nancy $60,000 and $15,000, respectively, for the alleged negligence of Defendant/Appellant Sungas, Inc., a dealer/supplier of propane gas and tanks.

Plaintiffs alleged that Sungas was negligent in the following particulars:

(a) In filling the Perrys’ tank with propane gas while it was painted a reddish brown primer color;
(b) In failing to give them any instructions or warnings about the hazards surrounding, concerning, or involving the use of their propane tank after the Defendant had filled it with propane gas while it was painted a reddish brown primer color;
(c) In failing to provide them with information concerning or relating to the pressure release valve as to the fact that it might discharge when making a hissing kind of sound, and that it would be dangerous for anyone to be either in the close vicinity of, or immediately above, the release valve under such circumstances;
(d) In failing to provide an adequate safety training program for its employees so that owners of propane tanks serviced by employees of Defendant would be adequately informed of any dangers or improper conditions existing about their tanks; and
(e) In failing to require that its employees have a thorough knowledge of all applicable rules and regulations of the Alabama LP-Gas Board.

Plaintiffs further alleged that, as a proximate consequence of Sungas’s actions, Joseph Perry had both temporary and permanent injuries to his eyes; that he incurred hospital and doctors’ costs, as well as other related expenses; that he lost time and wages; that his earning capacity was reduced; that he was caused physical pain and mental suffering, and other incidental injuries.

Nancy Perry, in a derivative claim, sought damages for loss of society and companionship of her husband, as well as for “time from work in caring for him.”

Sungas answered Plaintiffs’ claims as follows:

(a) It admitted that it was engaged in the sale, inspection, and maintenance of propane tanks and the sale and distribution of propane gas. It denied, however, that it sold or delivered the propane tank in question to the Perrys.
(b) It admitted putting gas in the tank and that its employee had special knowledge of safety measures relating to hazards involved in the use of propane tanks.
(c) It denied any negligence or wantonness on its part.
(d) It alleged contributory negligence and assumption of the risk on the part of Joseph Perry.
(e)It averred that it was not the insurer of Joseph Perry’s safety and that it was lawfully entitled to rely on the reasonable anticipation that the Perrys would exercise care to prevent injury to themselves.

A jury found in favor of Plaintiffs on their negligence claims and assessed damages. Defendant appeals from the denial of its post-judgment motions for judgment notwithstanding the verdict or for a new trial. We affirm.

FACTS

As part of its services, Sungas installs and periodically fills and refills propane receptacles. The Perrys purchased a propane tank in 1976, and moved it to their residence. Although not the original retailer, Sungas, at the Perrys’ request, installed the tank and connected it to the main line in October 1978. At the time of its purchase and installation, the tank was silver or aluminum in color.

According to the Perrys, at the time of the tank’s installation, Sungas failed to provide either of them with any oral or written information concerning the proper use and maintenance of the propane tank. At some point in either 1978 or 1979, Joseph Perry painted the tank with red “rust colored” primer. In March of 1981, while the tank was still painted “red” or “rusty,” Harold Anthony, route driver for Sungas, serviced and filled the Perrys’ tank.

On June 21, 1981, while in his yard, Joseph Perry detected the smell of gas in the vicinity of his tank. He approached the tank and heard a “hissing” noise. He removed the “bonnet” from the tank in an effort to determine the source of the suspected leak. When he lifted the “bonnet,” a gauge underneath it registered between 235 and 250, which he understood to mean “gallons” of propane gas. He also understood that his tank’s capacity was 250 “gallons.”

Joseph Perry testified as follows:

“Q. What did you do once you looked and saw the valve ... this release thing that you later found out was a release valve? What did you do once you saw it?
“A. I went in the shed and got a pipe wrench and I was going to try to tighten it. I pulled on it and nothing happened; it kept hissing, so I throwed the pipe wrench on the ground.
“Q. Did you pull on it more than once?
“A. I pulled on it one time and seen that it didn’t move. I knowed that it was coming from somewhere but I seen that I wasn’t going to move it. And while I was looking around, boom ... and it knocked me against that little house.
“Q. Were you looking down at anything at the time it did it?
“A. I must have been, but I don’t remember. I know I was looking all around down there. I don’t know whether I was looking straight down on it.”

As a result of the sudden release of pressure from the tank, propane gas and foreign particles were thrown in both of Joseph Perry’s eyes. He was hospitalized from June 21, 1981, through June 30, 1981. He was required, because of his injuries, to wear patches over both eyes for approximately a month after the incident. Additionally, subsequent to removal of the patches, he was unable to go out into bright sunlight for some six months because of the corresponding discomfort. According to testimony from his treating physician, Joseph Perry sustained a 16.4% permanent partial loss of vision in his right eye as a result of the accident.

Joe Scoggins, an investigator for the Alabama LP-Gas Board, investigated the accident in which Plaintiff was injured two days after its occurrence. At the time of his arrival, Plaintiffs’ propane tank had been painted an aluminum color by Sun-gas’s deliveryman, Harold Anthony. According to Scoggins, Sungas should not have filled the Perrys’ tank at a time when it was painted “red” or “rusty” colored. He further stated it to be common knowledge among gas distributors that all tanks should be painted a light reflective color, preferably aluminum, to reflect heat and prevent excessive pressure build-up inside the tanks themselves. Additionally, his testimony was to the effect that the subject tank, which was filled in late winter and was still near 80% full, had the potential in hot weather to heat up and expel fuel through the release valve, creating a hazard of injury to any person in close proximity to the tank when the expanded gas was released.

Both Harold Anthony, Sungas’s deliveryman, and his brother, Denman Anthony, service manager for Sungas at the time of the accident, denied having violated any Alabama LP-Gas Board regulations by filling Plaintiffs’ tank when it was painted “red” or “rusty” colored as opposed to a heat reflective shade of paint.

DECISION

TG & Y Stores v. Atchley, 414 So.2d 912 (Ala.1982), states the familiar rule:

“In order to establish a cause of action for negligence, three elements must be shown. There must be a breach of a legal duty, there must be an injury, and the breach of duty must be the proximate cause of the injury. See Goodson v. Elba Baking Co., 408 So.2d 498 (Ala.1981); Quillen v. Quillen, 388 So.2d 985 (Ala.1980).
“The question of proximate cause is a question for the jury.. Marshall County v. Uptain, 409 So.2d 423 (Ala.1981). It is the function of the jury to resolve disputed issues of fact. Fleming v. Kirkpatrick, 371 So.2d 16 (Ala.1979). The verdict of the jury is presumed to be correct [if supported by the evidence], and will not be set aside unless it is against the preponderance of the evidence. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979). The presumption of correctness is strengthened when, as in the present case, the trial judge refuses to grant a motion for a new trial.” 414 So.2d at 914.

Given the injuries to Joseph Perry resulting from the incident in question, we must first look to the existence vel non of a “duty” on the part of Sungas to Plaintiffs in general. In Chilton Butane Gas, Inc. v. Marcus, 289 Ala. 292, 267 So.2d 140 (1972), we find the following:

“Those dealing with dangerous commodities, such as liquefied petroleum gas, must use a degree of care commensurate with the dangers involved; this degree of care is the same degree of cafe and vigilance which persons of skill and prudence observe under like conditions. Hall v. Dexter Gas Co., 277 Ala. 360, 170 So.2d 796; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757. This principle was expressed in the following language in 38 C.J.S. Gas § 38, p. 726:
“ ‘The obligation resting on a gas company requires the exercise of ordinary care and prudence in the construction of its works and in the conduct of its entire business, so as not to endanger life and property. Thus employees of a gas company entering on the premises of another on business of the company are bound to use due care to avoid injuring the owner who is entitled to rely on the use of such care. * * * > ⅛
“The general rule, above stated, requiring the use of ordinary care and diligence on the part of a gas company, is applicable to its delivery of gas into the residence or other building of a consumer. Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 154 P.2d 498; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757; 38 C.J.S. Gas § 42, p. 735. But even though one who supplies and delivers liquefied petroleum gas is held to a duty of due care, he is not made an insurer. Instead, he may rely upon the reasonable anticipation that one who has ordered a delivery of gas to his premises will himself exercise care to prepare the premises for the safe receipt and use of the gas.
“There is wide agreement among authorities with respect to the scope of the duties of a supplier of gas. The following excerpts are illustrative of numerous authorities to a like result:
“ ‘ * * * Accordingly, the rule has been laid down that, in the absence of any fact on which to base an inference of duty, the failure of a gas company, on introducing gas into a dwelling on application, to inspect pipes or fixtures which were placed therein by the owner and over which the company has no control, is not negligence. The company is warranted in assuming that the interior system of pipes is sufficiently secure to permit the gas to be introduced with safety, and is not liable for injuries caused by leaks therein of which it had no knowledge. To render the company liable in such cases there must be facts alleged to show notice of defects, or facts from which an inference of duty to inspect arises either from contract, custom, or franchise. * * * ’ 38 C.J.S. Gas § 42, p. 736.
“ ‘ * * ⅜ [Authorities on the question] are to the effect that defendant in such cases is not under duty, unless employed for that purpose, to inspect pipes or fixtures which are placed in the dwelling by its customer or his contractors over whom defendant has no control, and that the furnisher of gas in such cases is warranted in assuming that the interi- or system of pipes is sufficiently secure to permit the gas to be introduced with safety. 28 C.J. p. 594, § 59, where many cases are cited. The rule may be different when the party furnishing gas knows that the interior arrangments are dangerously defective; but in this case there is no evidence sufficient to warrant a conclusion of such knowledge. * * * ’ Triplett v. Alabama Power Co., 213 Ala. 190, 191, 104 So. 248, 249. (Emphasis supplied.)
“ ‘But, while a distributor of gas must exercise a high degree of care to see that no person is harmed in its distribution and while under its control, such responsibility is limited to the time the gas is in the company’s own pipes, or containers, unless it has been allowed to escape, or having escaped, has created a dangerous hazard, known or which should have been known to a distributor, who has neglected to remedy the condition. * * *
“ ‘ * * * The owner or occupant of the premises is obliged to keep the pipe lines and equipment in repair or notify the company of their defective condition, otherwise the company is not liable for negligence. * * * ’ Doxstater v. Northwest Cities Gas Co., 65 Idaho 814, 827-828, 154 P.2d 498, 504.
“ * * * But the duty, by reason of actual or constructive notice of some dangerous condition, must arise before the gas company can be found negligent for its failure to inspect or shut off the gas supply.” ’ Wilson v. Home Gas Co., 267 Minn. 162, 173, 125 N.W.2d 725, 733.
“ ‘One applying for gas is charged with the duty of keeping in good order the instrumentalities through which the gas is to be used, and which are under his control, such as appliances and pipes in the house, and the service line, and is required to use the appliances provided to shut off the gas, or to control the pressure, especially in times of emergency * * *’ 38 C.J.S. Gas § 44, pp. 741-742.
“See Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, for a concise summary of these principles. Comparable principles have been applied to a supplier of electricity. City of Decatur v. Parham, 268 Ala. 585, 109 So.2d 692; Alabama Power Co. v. Jones, 212 Ala. 206, 101 So. 898.
“If a consumer of liquefied petroleum gas is under the above specified duties to maintain his premises and appliances in a manner which is safe for receipt and use of the gas, we can in good conscience see no reason he would not also be under a duty to maintain similarly safe conditions by his own conduct, such as his manipulation of or handling of those appliances. Pursuant to this duty, we feel that it is clearly the responsibility of a consumer who has ordered a delivery of gas to shut off valves on any gas appliances through which the gas might escape into his premises and create a hazardous condition.” 289 Ala. at 296-297, 267 So.2d 140.

The determination as to the existence vel non of a duty resting upon a defendant is a question of law for the trial judge. The rule adhered to in our jurisdiction is succinctly stated in 57 Am.Jur.2d Negligence § 34 (1971):

“The determination of any question of duty — that is, whether the defendant stands in such relation to the plaintiff that the law will impose upon him an obligation of reasonable conduct for the benefit of the plaintiff — has been held to be an issue of law for the court and never one for the jury.”

Viewing the legal principles governing the obligations of Sungas in light of the facts and circumstances of record, particularly the expert evidence, we hold that the question of law regarding Sungas’s legal duty was properly resolved in favor of the Plaintiffs. On the other hand, questions regarding breach of that duty, contributory negligence, and proximate cause are ordinarily questions of fact for the jury. Hall v. Booth, 423 So.2d 184 (Ala.1982); Gross v. Republic Steel Corporation, 400 So.2d 383 (Ala.1981).

Having determined, and we think rightly so, the existence of a duty on behalf of Sungas running to these Plaintiffs, the trial judge properly submitted genuine issues of material fact relating to the breach of duty, contributory negligence, and proximate causation to the jury under appropriate instructions.

Whatever the strength of SungasV'fac-tual assertions on appeal, we are unable to glean, from our thorough analysis of the record, any reversible error in the proceedings below.

In conclusion, we address the point made by the dissent. The dissent takes issue with the majority's interpretation of the trial court’s order, dated January 24, 1983, as a final judgment (set out in full in the dissent). Admittedly, the literal wording of this order — “The judge ... entered the judgments against the defendant” — is less than perfect in form. To be sure, the division among the members of this Court as to this procedural issue could have been avoided if the judge had recited “Therefore, pursuant to the jury verdicts, judgments are hereby entered against the defendant in favor of the respective plaintiffs as follows: ... costs taxed against the defendant, [signed].” While we would have preferred a more perfect judgment recital, nevertheless, considering the whole record, we find the language of the order appealed from sufficiently clear to indicate an “intention to adjudicate” and to indicate the “substance of the adjudication.” See Rule 58(b), A.R.Civ.P.

Accordingly, this cause is due to be, and it hereby is, affirmed.

AFFIRMED.

TORBERT, C.J., and MADDOX, AL-MON, SHORES and BEATTY, JJ., concur.

FAULKNER, EMBRY and ADAMS, JJ., dissent.

EMBRY, Justice

(dissenting):

Because I consider this court to be without jurisdiction to review this case, I dissent.

This is an attempt to appeal from the following:

“1/24/83 Trial commenced to a jury of twelve on January 24, 1983. Upon the conclusion of the trial, the jury returned the following verdicts: ‘We, the jury, find for the plaintiff, Joseph Perry, and assess his damages against the defendant at $60,000.00. Dated January 25, 1983. Richard W. McLendon, Jr., Foreman.’ and ‘We, the jury, find for the plaintiff, Nancy Perry, and assess her damages against the defendant at $15,-000.00. Dated January 25, 1983. Richard W. McLendon, Jr., Foreman.’ The judge polled the jury and, being informed that the verdict was that of each juror, entered the judgments against the defendant as directed by the jury verdicts. [Emphasis added.]
“s/Paul J. Miller, Jr.
“Circuit Judge”

In fact, a careful search of the record shows there was no judgment entered.

In my opinion the above will not support an appeal and therefore this court is without jurisdiction to entertain this attempted appeal. § 12-22-2, Code of 1975.

FAULKNER and ADAMS, JJ., concur.

      . Two points concerning Chilton Butane Gas, supra, are worthy of note: First, the judgment was reversed on common law pleading grounds, not here in issue; and, second, we are aware that portions of the language quoted therefrom relate to "interior systems of pipes.” Although the factual context of the instant case does not involve "interior systems of pipes,” we have included this language because of its potential value by way of analogy in the analysis and evaluation of the respective duties of the customers and the suppliers of liquefied gas in general.


author: BEATTY, Justice.

text:
    Bruce BAUGHMAN v. HARBOR INSURANCE COMPANY, et al.
    82-1034.
    Supreme Court of Alabama.
    May 4, 1984.

      J. Paul Whitehurst of Henley, White-hurst & Shirley, Northport, for appellant.
    James J. Jenkins of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for ap-pellees Harbor Ins. Co. and Great American Ins. Co.
    J. Fred Wood, Jr. and Terry McElheny of Dominick, Fletcher, Yeilding, Wood & Lloyd, Birmingham, for appellee Stonewall Ins. Co.
    Wayne L. Williams of Williams & Pradat, Tuscaloosa, for appellees Chubb, Pacific In-dem. Group and Federal Ins. Co.
   BEATTY, Justice.

This is an appeal by plaintiff from an order made final under Rule 54(b), A.R.Civ.P., dismissing four insurance company defendants as parties in a lawsuit which also named their insureds as defendants. We affirm.

The facts are not complicated. Plaintiff owns a parcel of land in Tuscaloosa County. He filed a complaint against Warrior River Coal Company and Lloyd Wood Coal Company, Inc., claiming that they damaged his land by causing silt and sediment to be deposited thereon as a result of their strip-mining operations.

Plaintiff later amended his complaint by stating claims against the four insurance companies alleged to have furnished certificates of liability insurance in order that the other defendants might comply with the compulsory insurance requirements of the •Surface Mining Reclamation Act, Code of 1975, § 9-16-43 (now § 9-16-83). Motions to dismiss were filed on behalf of the defendant insurers, and, in due course, these defendants were dismissed

“without prejudice to plaintiffs right to recover from any [such] defendant ... in the event that plaintiff shall recover a money judgment against any defendant remaining in the case after the entry of this order. This judgment shall also be without prejudice as to the right of any defendant named herein to contest at a later date the question of whether or not insurance coverage exists for any claim asserted by plaintiff or which might hereinafter be asserted by plaintiff in this suit.”

This appeal followed.

The question presented is whether or not a person not named as an insured in a liability insurance policy nevertheless may bring a direct action against the insurance carrier before a final judgment of liability against the insured.

Maness v. Alabama Farm Bureau Mutual Casualty Ins. Co., 416 So.2d 979 (Ala.1982), contains an analysis of Alabama cases decided under the predecessors to Code of 1975, §§ 27-23-1 and -2. Section 27-23-2 states:

“Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury, or death or for loss or damage to property, if the defendant in such action was insured against the loss or damage at the time when the right of action arose, the judgment creditor shall be entitled to have the insurance money provided for in the contract of insurance between the insurer and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within 30 days after the date when it is entered, the judgment creditor may proceed against the defendant and the insurer to reach and apply the insurance money to the satisfaction of the judgment.”

Concerning the effect of the predecessor statutes, this Court quoted with approval from Employers Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 30, 189 So. 58 (1939):

“We have held along with the generally accepted view that the right and remedy provided for in sections 8376 and 8377, Code [1923] (not influenced by other provisions of law or contract), did not extend to plaintiff a primary claim as a contraetee of such policy of insurance with a power to sue to enforce it independent of the status created between the assured, against whom judgment had been rendered, and his insurance carrier. ...”

This Court in Maness, supra, at 981, stated:

“Once an injured party has recovered a judgment against the insured, the injured party may compel the insurer to pay the judgment. The injured party, however, can bring an action against the insurer only after he has recovered a judgment against the insured and only if the insured was covered against the loss or damage at the time the injured party’s right of action arose against the insured tortfeasor_” (Citation omitted.)

Plaintiffs principal argument in his brief is summarized as follows:

“The Alabama Surface Mining Reclamation Act of 1975 was passed by the legislature in response to growing outcry of the public to be protected from the hazards which had been historically associated with unregarded surface mining in this state. The protection of the public from injury by the operation of surface mines was an express purpose of the statute. Ala.Code (1975), § 9-16-32(a), (b), (c), (d), (e), (f), and (i). In order to secure this purpose, compulsory liability insurance was required under the act for all licensed operators. The law in this state has historically recognized the right of an injured party to proceed directly against an insuror who provides a liability policy pursuant to a compulsory insurance statute enacted for the protection of the public at large....”

Our attention has been directed to an annotation contained in 20 A.L.R.2d at 1097, entitled “Joinder of insurer and insured under policy of compulsory indemnity or liability insurance in action by injured third person.” Section 2 of that annotation, at 1099, is helpful here:

“The question of the propriety of joining an insurer under a compulsory insurance policy with the insured in the same action by an injured or damaged person depends upon two considerations: (1) the terminology of the statute or ordinance requiring the insurance, and (2) the provisions of the particular policy. Ordinarily when a liability or indemnity policy is taken voluntarily, the contract is one by which the insurer undertakes to indemnify or save harmless the insured (and no one else) from any liability or loss which may be legally imposed upon the latter by reason of the risks insured against. There is no privity of contract between the insurer and the third person injured or damaged by the acts of the insured to enable such person to sue the insurer either directly in a separate action or jointly in the same action with the insured. The insurance contract is procured by the insured for his own protection, and not for the protection of a third person who may sustain an injury. In the absence of an enabling statute, therefore, or a policy provision having that effect, the latter may not proceed against the insurer, at least not until he has secured a judgment against the insured with an execution thereon returned unsatisfied....”

Our cases allowing joinder of the insurer with the insured in an action brought by the injured person have found an enabling statute permitting such joinder. E.g., Hodges v. Wells, 226 Ala. 558, 147 So. 672 (1932) (Alabama Motor Carrier Act of 1927, § 5, p. 312-313, expressly provided that “every such insurance policy shall be for the benefit of and subject to action thereon by any person who shall sustain an actionable injury protected thereby, notwithstanding any provision in such insurance policy to the contrary”); McWhorter Transfer Co. v. Peek, 232 Ala. 143, 167 So. 291 (1936) (citing Fidelity & Casualty Co. of N.Y. v. Jacks, 231 Ala. 394, 395, 165 So. 242 (1936), which quoted from the Alabama Motor Carrier Act of 1931, containing essentially the same language as § 5 of the Act of 1927); Auto Mutual Indemnity Co. v. Moore, 235 Ala. 426, 179 So. 368 (1938); Capital Motor Lines v. Loring, 238 Ala. 260, 189 So. 897 (1939) (referring to statute “authorizing and requiring” indemnity or bond with surety from motor carrier); Watkins v. Reinhart, 243 Ala. 243, 9 So.2d 113 (1942) (statute regulating common freight carriers prescribed that the liability assumed, whether by bond or insurance policy, shall be “for the protection of the public (other than the passengers of, or the shippers of freight by, such carrier) in the collection of damages for. which the carrier may be liable”)] King v. Brindley, 255 Ala. 425, 51 So.2d 870 (1951) (joinder of taxicab company and its insurer allowed under provision of Birmingham Municipal Code providing for issuance of liability insurance policy to operator, and that “[s]aid policy shall stipulate that any person who may sustain damage to his person or property, resulting from such careless or negligent operation of such vehicle, shall have his right of action on said policy as fully and to the same extent as if said policy was made and executed directly in favor of the claimant for such damages”; policy contained that same provision.).

Plaintiff has cited us to American Southern Ins. Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 151 So.2d 783 (1963), as support for his premise. In that case, a taxicab driver had procured a policy of liability insurance from American Southern under the requirements of the Motor Vehicle Safety-Responsibility Act. While transporting a passenger for hire within the scope of his employment with Dime Taxi Service, the driver had an accident in which he was killed and his passenger was injured. The passenger recovered a judgment against Dime Taxi. Dime Taxi then brought suit against the driver’s administrator and American Southern, asking that it be subrogated to the rights of the injured passenger in her judgment against Dime Taxi, on the ground that Dime Taxi was responsible for the payment of the judgment in favor of the injured passenger against it, and therefore the negligent driver’s insurer, American Southern, was liable to Dime Taxi under its liability coverage of the negligent driver. This Court allowed subrogation.

On the issue of joinder of the insurer, this Court construed the Motor Vehicle Safety-Responsibility Act, and particularly that part of it which requires a certificate of insurance (SR-22) to be filed to reinstate a license, as “a protection which runs from the insurer to the third party claimant.” The Court said that because the Act was for the benefit of the public, “an injured member of the public can sue upon it.” Dime Taxi, 151 So.2d at 786-787. Baggett v. Jackson, 244 Ala. 404, 13 So.2d 572 (1943), was cited for this quoted principle; however, that case emphasized that the language of the particular regulatory statute (“in the collection of damages,” etc.) controlled the question of joinder. It is significant in the Dime Taxi case that a judgment had been recovered against Dime Taxi, not the insured driver. Under the general rule, supra, one cannot maintain an action against the insurer without first obtaining a judgment against the insured. Given the intent of the Motor Vehicle Safety-Responsibility Act, liability had been established by the judgment rendered against Dime Taxi. Thus, the insurance provided by American Southern was against the employer’s loss from its liability for damages, based upon that judgment, and so Dime Taxi, as an injured party, could bring in American Southern as a defendant in its suit against the administrator of the deceased driver’s estate before obtaining a judgment against the administrator.

The language of the Surface Mining Reclamation Act in force at the time of the alleged trespasses, § 9-16-43, i.e., prior to the 1981 amendment, was as follows:

“The application for permit shall be accompanied by a certificate of insurance certifying that the applicant has in force a public liability insurance policy issued by an insurance company authorized or licensed to do business in this state covering all coal surface mining operations of the applicant in this state and affording personal injury and property damage protection during the term of the permit....”

Neither that language nor the terms of the other respective sections of the Surface Mining Reclamation Act authorize the join-der of the insurer, as did the language of those statutes construed by our other decisions on the question. Without either such statutory language or equivalent policy terms, the terms of § 27-23-2, dealing with loss or damage to property, hereinbefore quoted, control, and the suit against the insurer may not be brought prior to judgment against the insured.

Let the judgment be affirmed.

AFFIRMED.

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


author: ESDALE, Clerk.

text:
    OPINION OF THE CLERK, Supreme Court of Alabama.
    Opinion No. 43.
    Supreme Court of Alabama.
    May 15, 1984.
   ESDALE, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION — FILING FEE FOR INDIRECT CONTEMPT FOR VIOLATION OF AN INTERLOCUTORY DECREE.

Honorable Paul S. Conger, Jr., Circuit Judge, Sixth Judicial Circuit, Tuscaloosa, Alabama, has made the following request to the Clerk of the Supreme Court for an opinion pursuant to § 12-2-19(d), Ala.Code (1975):

“I would like to request an opinion as to whether a docket or filing fee is authorized for a motion to hold a party in a pending domestic case in indirect contempt for violation of an interlocutory decree such as a temporary restraining order or a preliminary injunction, where such motion is filed prior to a final hearing or decree.”

The governing provision is Rule 7 of the Alabama Rules of Judicial Administration, which states as follows:

“Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

In Opinion of the Clerk No. 17, 363 So.2d 97 (Ala.1978), this same question was answered in the affirmative on the grounds that a contempt proceeding is a separate action when the acts in question constitute an indirect contempt of court. See Musgrove v. United States Pulp & Foundry Co., 290 Ala. 156, 274 So.2d 640 (1972); Ex parte Dickens, 162 Ala. 272, 50 So. 218 (1909); Falk v. Falk, 355 So.2d 722 (Ala.Civ.App.1978); Robertson v. State, 20 Ala.App. 514, 104 So. 501 (1925). However, it was recently held in Opinion of the Clerk No. 39, 414 So.2d 953 (Ala.1982), that motions for contempt for violations of certain interlocutory orders do not constitute original actions.

“It appears that a motion to require a party to answer interrogatories within a specified time, a request to impose sanctions for failure to make discovery as required by rule or order, and a motion to hold parties in contempt for failure to respond to interrogatories, or an order treating such failure as contempt are only parts of a suit or action already commenced. Neither of these procedures commences a suit or action.” Opinion of the Clerk No. 39.

It is my opinion that the holding in Opinion of the Clerk No. 39, supra, should be applicable to the situation posed by the question propounded herein. To hold otherwise would seem to be a distinction without a difference. A motion to hold a party in a pending case in indirect contempt for violation of an interlocutory decree, such as a temporary restraining order or a preliminary injunction, where such motion is filed prior to a final hearing or decree, is part of the original pending action and does not commence a suit or action. As such, the payment of further filing fees is not required.

The holding of Opinion of the Clerk No. 17, supra, is hereby overruled, to the extent it authorized the collection of a separate filing fee for motions to hold in contempt filed prior to the entry of a final judgment.


author: BRADLEY, Judge.

text:
    Maylene Gabbert LIPSEY v. T. Coleman LIPSEY.
    Civ. 4130.
    Court of Civil Appeals of Alabama.
    May 23, 1984.

      Charles J. Najjar and J. Gary Pate of Najjar, Najjar, Boyd & Pate, Birmingham, for appellant.
    Roderick Beddow, Jr. and James M. Ful-lan, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellee.
   BRADLEY, Judge.

Maylene Gabbert Lipsey and T. Coleman Lipsey were married May 14, 1966 and lived together as husband and wife until February 1983. There were four children born of this marriage: T.C. Lipsey, Jr., David Lipsey, Amy Lipsey, and John Lip-sey.

Mrs. Lipsey filed a complaint for divorce on February 23, 1983, averring that there had been an irretrievable breakdown of the marriage.

The case was heard in August 1983 and a final decree of divorce was entered on November 7, 1983. Mr. Lipsey was granted the care, custody, and control of the four minor children with certain visitation rights invested in Mrs. Lipsey. Thereafter, Mrs. Lipsey perfected this appeal.

Mrs. Lipsey’s sole argument is that the trial court abused its discretion in awarding custody of the minor children to Mr. Lipsey. It is well-settled law in Alabama that when evidence in a custody matter is presented ore tenus the finding of the trial court is presumed correct. Moreover, the trial court’s determination will not be disturbed absent an abuse of discretion. Rosser v. Rosser, 355 So.2d 717 (Ala.Civ.App.1977). That presumption, however, may be overcome by the absence of material evidence supporting the finding. McRight v. McRight, 444 So.2d 869 (Ala.Civ.App.1984).

Mrs. Lipsey contends that there is an absence of evidence to support the trial court’s finding and that the trial court misapplied the law to the facts. She says that the correct legal standard to be applied in awarding the custody of children in an original divorce proceeding is that enumerated in Ex parte Devine, 398 So.2d 686 (Ala.1981). We agree. The Devine case sets out certain factors for consideration by a trial court in making a custody determination, which include the following: (1) sex and age of the children; (2) their emotional, social, moral, material, and educational needs; (3) the respective home environments offered by the parties; (4) the characteristics of those seeking custody, including age, character, stability, mental and physical health; (5) the capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the children; (6) the interpersonal relationship between each child and each parent; (7) the interpersonal relationship between the children; (8) the effect on the child of disrupting or continuing an existing custodial status; (9) the preference of each child, if the child is of sufficient age and maturity; (10) the report and recommendation of any expert witnesses or other independent investigator; (11) available alternatives; and (12) any other relevant matter the evidence may disclose.

The evidence shows that Mrs. Lipsey had an adulterous affair for about two years prior to the divorce. There were many instances of very lengthy telephone conversations between Mrs. Lipsey and her alcoholic paramour. The telephone calls were made from various places, including telephone booths. On many occasions several of Mrs. Lipsey’s children were present when she called her lover. Mrs. Lipsey’s telephone bills for calls to her lover ran into the hundreds of dollars and consumed much time.

Mrs. Lipsey admitted that she and her lover had discussed marriage and the possibility of her living in Atlanta, Georgia with him.

The evidence also shows that for about two years prior to the divorce hearing, which is also the period when Mrs. Lipsey was involved with her paramour, most of the cooking and other household chores were performed by Mr. Lipsey and the children. Moreover, during this time Mr. Lipsey was the parent most concerned with the children’s care and religious nurture. It appeared from the record that Mrs. Lip-sey spent many hours each day at her sister’s home where she prepared meals for her sister and made telephone calls to her lover.

The record reflects that Mr. Lipsey neither smokes nor drinks alcoholic beverages, and that he had not been an adulterer. Mr. Lipsey is responsible for taking the children to school, takes them to church and attempts to instill in them proper moral values, and he disciplines them when necessary.

Mrs. Lipsey argues that adultery alone is insufficient to deprive her of the custody of her children. In Etheridge v. Etheridge, 375 So.2d 474 (Ala.Civ.App.1979), we said that “acts of adultery do not bar an award of custody to the mother.” But we also said in that same case that the adulterous conduct of the mother is a factor to be considered by the trial court in determining which parent shall have the custody of his or her child. In the case at bar, we do not believe that the trial court relied solely on the evidence of misconduct of Mrs. Lipsey to place the custody of the children with the father. However, we do believe that the trial court considered the evidence of Mrs. Lipsey’s misconduct in making its decision relative to the proper custodian of the parties’ children.

When the factors enumerated in Ex parte Devine are applied to the facts of the instant case, it readily appears that Mr. Lipsey is the better qualified custodian. He is the parent who was providing the bulk of the physical, social, educational, and religious needs of the children at the time of the hearing and for about two years prior to it,, whereas the mother was concerned-primarily with seeing and talking to her lover. She was even considering marrying her paramour, an alcoholic, and living with him in Atlanta. Such an occurrence would not have been in the best interests of the children, and the trial court could have so found.

After carefully considering the evidence in the record before us, we are unable to say that the trial court abused its discretion in awarding the children’s custody to the father.

AFFIRMED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Paul HAWTHORNE v. STATE.
    6 Div. 207.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-656.

      George A. Nassaney, Jr., Asst. Public Defender, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from the following order signed by the judge of the “JUVENILE COURT OF TUSCALOOSA COUNTY, ALABAMA.”

“THE STATE OF ALABAMA IN THE JUVENILE COURT OF TUSCALOOSA COUNTY
"IN THE MATTER OF:
CASE NO. JU 82 343
“PAUL HAWTHORNE
“A Child Under 18 Years of Age
“ORDER
“TRANSFER OF CHILD TO CIRCUIT COURT FOR CRIMINAL PROSECUTION”
“This cause coming on to be heard on a motion filed by the prosecutor on 9th day of November, 1982, and the child is now before the Court represented by an attorney, and the Court finds that:
“1. The child was 14 or more years of age at the time of the conduct charged and is alleged to have committed an act which would constitute a felony if committed by an adult;
“2. There is probable cause for believing that the allegations of the petition in this case are true and correct.
“And the Court being of the opinion that the interest of justice and public welfare would be served by transferring said cause and said child to the Circuit Court of Tuscaloosa County, Alabama, as provided for under Alabama Law Act 1205, Article 5, Section 129.
“IT IS THEREFORE, THE ORDER, JUDGMENT AND DECREE OF THE COURT that the said child be transferred from the Tuscaloosa County Juvenile Court to the Circuit Court of Tuscaloosa County, Alabama, so that the conduct charges can be dealt with under the applicable law of the Criminal Court of the State of Alabama.
“It is the further order and judgment of the Court that those complaints, petitions, legal actions and others pertaining to Paul Hawthorne Case No. JU 82 343 be forthwith transferred to the Circuit Court of Tuscaloosa County, to become a part of the records of the said Circuit Court Clerk.
“DONE AND ORDERED this the 27th day of April 1983.”

Appellant, by reason of his indigéncy, was represented in the trial court by an attorney of the Office of Public Defender of Tuscaloosa County. The record on appeal contains a number of lengthy items which, on motion of appellant’s attorney, have been ordered by the trial court to be “stricken from the record.” In accordance therewith, we will forego consideration thereof in rendering this opinion.

The issue as to whether the case should be transferred from the Juvenile Court to the Juvenile Division of the Circuit Court, was vigorously argued by the attorneys for the respective parties and obviously given careful consideration by the trial judge, in connection with the testimony of the only witness at the hearing, a probation officer who had investigated the case. Pertinent portions of his testimony were as follows:

“Q. Briefly, could you tell the Court what your summary of the nature of this present offense involved is and what it is?
“A. Yes, sir. Of course, the present offense alleged involves a matter of property of rather high value amounting to $825. From looking at the reports, the best I can understand the reports, the incident itself happened approximately 2 months and 1 week before Paul Hawthorne’s 18th birthday. It was stemming out of a work-type of situation where Paul had been employed working with Mr. Grant, using some fishing nets and later those nets were found to be missing. Based on that and my conversations with Paul, meeting Paul and his móther and knowing that Paul dropped out of school while in the 8th grade and since that time assumed an adult-type life-style, that being since 1979, keeping employment and not attending school, not living with the life-style of a juvenile, based—
“ — and based on his life-style and -his physical size, my conversation with him which was that he said to me that he would rather be handled as an adult than as a juvenile, I would recommend £hat his case be transferred to Circuit Court for further hearing.
“Q. Now, could you more specifically delineate those reasons as to why you recommend that he be transferred?
“A. Well, this is Juvenile Court. Our problems are set up to work with juveniles. I don’t think that Paul Hawthorne is a juvenile nor has been engaged in a juvenile life-style for some time. And I personally don’t think that we really have anything to offer to Paul in the way of rehabilitation if he did in fact commit the offense.
“Q. Do you think that the best interest of the community and of the child would best be served if this child is transferred?
“A. Yes, sir.
“Q. Were there other individuals involved in this case?
“A. Other individuals were mentioned, yes, sir. I don’t know about their—
“Q. The facts show that others were fishing with the nets and what have you?
“A. Yes, sir.
“Q. Okay. And was one of those — [given name and surname omitted here]”
“A. Yes, sir.
“Q. And do you know his age?
“A. No, sir.
“Q. Okay. Are you also aware that he’s in the penitentiary serving several felony charges?
“A. No, sir.
“Q. Okay. Are you aware that the other individual that was with him was an older man, also?
“A. Yes, sir.
“Q. Okay. Has Paul ever been in trouble before?
“A. No, sir. Other than — The only thing we have ever had any report on was some truancy problem back, as I said, several years ago.
“Q. So, other than this incident, he’s been fairly law abiding, then?
“A. Yes, sir. We don’t have any record.
“Q. Okay. So, he is below average intelligence?
“A. Yes, sir.
“Q. Did he also appear below average intelligence when you talked to him?
“A. Yes, sir.”

The transcript further shows that the alleged crime occurred on June 9, 1982.

The disputed issue on appeal is whether the trial court complied with Code 1975, § 12-15-34(d), (f) as follows:

“(d) Evidence of the following and other relevant factors shall be considered in determining whether the motion shall be granted;
“(1) The nature of the present alleged offense;
“(2) The extent and nature of the child’s prior delinquency records;
“(3) The nature of past treatment efforts and the nature of the child’s response to such efforts;
“(4) Demeanor;
“(5) The extent and nature of the child’s physical and mental maturity; and
“(6) The interest of the community and of the child requiring that the child be placed under legal restraint or discipline.
“(f) When a person is transferred for criminal prosecution, the court shall set forth in writing the reasons for granting the motion, which shall include a finding of probable cause for believing that the allegations are true and correct.”

No contention has been made by defendant-appellant that there is not probable cause for believing that he committed the offense of theft in the second degree, a Class C felony.

We agree with appellee that we should not interfere with the trial court's order transferring the case from the Juvenile Court unless the order is clearly erroneous. Mayne v. State, Ala. 416 So.2d 741 (1982); Duncan v. State, Ala., 394 So.2d 930 (1981); Williams v. State, Ala., 361 So.2d 1157 (1978). Although the record before us does not clearly show that the trial court considered every one of the six factors that Section 12-15-34(d) of the Alabama Code requires, we are not persuaded thereby that it did not in fact consider all of them. Furthermore, in our opinion the lengthy comments of the trial judge as set forth in the court reporter’s transcript as his reasons for transferring the case are the legal equivalent, at least in the absence of a definite request for his statement in writing, of essential compliance with the “in writing” requirement of § 12-15-34(f).

Notwithstanding our conviction that the trial judge gave studious, careful and conscientious consideration of the problem presented to him, we are convinced that the transfer of the case from the Juvenile Court was clearly erroneous. The oral recitals of the trial judge on the point are too lengthy for an appropriate inclusion in this opinion, but we include the concluding portion of his comments as follows:

“Frankly, I don’t know what we can do with Paul. He does not fit any of the usual categories of children who come in front of this Court. He is like a square peg in a round hole, and I don’t mean that adversely. You know, he isn’t all juvenile. You know, you can look at it that way. There are some advantages for keeping him here and there are some advantages for transferring. The problem gets down to, I think, being resources of where he could be best utilized. And I know in adult court there are other things available and he has youthful offender status in the first place, and his alleged co-defendant, if there have been two adults involved, and given his malleability or his deficiency in being able to assert his own identity based on his mental abilities, he may have a handicap there. There are a lot of mitigating circumstances that would, I think, be better aired at the adult court level than here. I don’t think some of those are just — certainly youthful offender status is available to him which would be a probation-type thing and restitution, all of those things are possible in adult court. I assume that Mr. Grant would like to have restitution for the damages he has lost as well as whatever else is necessary.
“I am going to transfer him to adult court simply because I just don’t think we have the resources at our level to deal with him. And in doing so, it’s not my intention that he be incarcerated, I want him out and let him continue to work with the public defender and in making some kind of disposition of this case. I think he is very definitely eligible for youthful offender status which would be almost identical to being under the supervision of probation under the Juvenile Court but he would be treated more as an adult, which is what he would prefer, I think, that he doesn’t want to be held too close to home at his age and stage in life. The fact that he may not be the smartest kid in the world does not mean that he does not have individual aspirations and things and wanting to be his own person, and he is certainly not so deficient that he can’t recognize that. But in sending him to adult court, I want to be sure that he is not incarcerated. And if it is necessary for him to sign himself out or his mother sign him out on a bond for his appearance in adult court—
“[There then intervened a conference among the trial judge, the probation officer, and the attorneys that apparently resulted in a satisfactory handling of the question as to a bond].
“THE COURT: ... And generally, I think what would happen — I can’t guarantee this, but I think what would happen is that he would be treated as a youthful offender, which is effectively the same thing as a juvenile; that is, he has no permanent record if he goes straight and all that good stuff. It has as simple effect as this, but given his age and all, I think that he would fare better than from the resources — They have access to things I don’t have access to. I think he would be better with them than me. There is just a limit to what juvenile court can do. I have got some that are too young and I have got cases like him that are really too old and too big to be effectively rehabilitated through the system, and that is not his fault. If it had been two months later, you would have already been in adult court. So I’m not saying I’m not real pleased with that because it just puts me in the position of choosing the lesser of evils, quite frankly. There is not a real clear-cut way to go either way.
“So, I think that just look at all things considered, there are more positive things on that side rather than detaining him in Juvenile Court, and I would ask y’all to just wait out in the hall just a minute and let me get this bond business worked out because I don’t want him to go to jail. Y’all just wait out in the hall. Dennis, would you go do what is necessary on that, please, sir?
“MR. STEVERSON: Yes, sir.
“(Whereupon, the previously-styled hearing was concluded at 11:30 a.m. on April 27, 1983.)”

Entering into our determination that the transfer of the ease as a case of juvenile proceedings to a non-juvenile division of the Tuscaloosa Circuit Court for prosecution as a criminal case against appellant was erroneous is the fact that the proceeding had already been pending in the juvenile division for more than eight months, it having been instituted on the basis of an affidavit by the alleged victim of the theft dated July 29, 1982, that at least eight separate items of fishing nets were the specific objects of the alleged theft, that the transcript discloses that two persons other than defendant, older than he, were participants in the theft and that a serious issue could conceivably be presented not only as to whether defendant was guilty of any participation, but also as to whether, if guilty, he was guilty of participation only as to the theft of some item or items of less value than $100.00, which would not constitute a felony but a Class A misdemeanor. Criminal Code, § 13A-8-5. A conviction thereof would constitute a conviction of a crime involving moral turpitude and would thereby cause a stain upon appellant’s record that would be avoided by the letter and the spirit of a juvenile proceeding. In addition, the sincere and well-intentioned view of the probation officer and the trial judge tend to stem to some extent at least from some expressions of the probation officer to the effect that the appellant had stated that he “preferred” to be treated as an adult. We can understand that he could have well made such a statement but that he did not mean thereby that if the decision were left to him he would remove the case from the juvenile court to a court where a criminal prosecution against him would ensue. We doubt that many, if any, juveniles in their right mind would make such an election.

We are also impressed by the fact that the prosecutor, the victim of the alleged theft who signed the affidavit instituting the proceeding in the juvenile court, did not “file a motion requesting the court to transfer the child for criminal prosecution” as required by Section 12-15-34(a). The motion to transfer, as shown by the motion itself, was made by “the State of Alabama ... Assistant District Attorney of the Sixth Judicial Circuit of Alabama” and was signed by said Assistant District Attorney. The transcript indicates that the alleged victim took no part in the hearing of the motion.

Although we are convinced that the trial judge believed it was for the best interest of the appellant, as well as the public, that the case be transferred so that a criminal prosecution would be commenced against this appellant, we are unable to reach such a conclusion on the basis of the record before us.

We do not overlook the possibility, or even the likelihood, of knowledge by the trial judge of matters not revealed by the record that would afford sufficient basis for the transfer, which possibility or likelihood is doubtless the main reason for the sound principle, well established, that his order should not be disturbed unless it is clearly erroneous. Nevertheless, in the full light of all that we have on the subject, we are convinced that the order transferring the case is clearly erroneous. We further realize that conditions may have changed to such an extent, or that conditions then were known.to the trial judge that are not now disclosed by the transcript, that would justify transfer of the case so that a criminal prosecution could be commenced against appellant, and for such reason we decline to render a judgment overruling the motion to transfer. The judgment should be reversed and the cause remanded to the trial court with directions that any proceedings as to any further effort to effectuate a transfer of this case to the Circuit Court for criminal prosecution of this appellant shall be consistent with this opinion.

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.

REVERSED AND REMANDED.

All the Judges concur, except BOWEN, P.J., who dissents.