author: SHORES, Justice. TORBERT, Chief Justice

text:
    Helen Lugania Knopf JOLLY v. Carl KNOPF, et al.
    83-232.
    Supreme Court of Alabama.
    Jan. 11, 1985.

      Fred Blanton, Fultondale, for appellant.
    Andrew M. Smith, Birmingham, for ap-pellees.
   On Rehearing Ex Mero Motu

SHORES, Justice.

The original opinion is withdrawn, and the following is substituted therefor.

Helen Jolly filed a complaint seeking a sale for division of four parcels of land owned by her and the six defendants as tenants in common. Mrs. Jolly alleged in the complaint that the real property could not be equitably divided or partitioned “and it would be to the interest of all of the said parties to sell said property for the purpose of division and distribution.” The parties obtained their joint title under the will of their mother. Each received an undivided one-seventh interest in the parcels. The defendants moved to dismiss the action or, in the alternative, for summary judgment, on the grounds that the relief sought would defeat their mother’s will, which expressly gave Carl Knopf, the executor and one of the defendants, “full power in his discretion ... to sell ... without any order of court therefor any real or personal property belonging to [the] estate.” This motion was denied.

The defendants answered and denied that the property could not be divided in kind. Their answer was followed by a notice to purchase Mrs. Jolly’s interest in the property. The notice was in accordance with § 35-6-100, Ala. Code 1975 (1984 Supp.). This was followed by a “motion for Court to Provide for Purchase of Filing Joint Owner’s Interest,” which essentially repeated the earlier notice and, in addition, alleged that the defendants were ready, willing, and able to make the purchase. On the date of the hearing on the defendants’ motion to purchase, Mrs. Jolly filed in open court a motion to strike the defendants’ motion to purchase, contending that § 35-6-100 is unconstitutional. In her motion, Mrs. Jolly also gave notice that she desired to purchase the defendants’ interest in the same property. The trial court granted the defendants’ motion to purchase Mrs. Jolly’s interest and denied Mrs. Jolly’s motion to strike. It thereafter appointed three commissioners, who were ordered to determine the value of the four parcels. § 35-6-101, Ala. Code 1975 (1984 Supp.). This they did. The commissioner’s report was filed with the trial court on August 12,1983, and was set for hearing on September 30, 1983. Pursuant to § 35-6-102, Ala. Code 1975 (1984 Supp.), the defendants timely paid into the court the amount of the purchase price for Mrs. Jolly’s interest. Plaintiff Jolly, having previously filed a motion to strike the defendants’ motion to purchase, thereupon filed a certificate stating that she was ready, willing, and able to purchase the interests of the defendants in the property and filed a commitment by her bank in the amount of $30,000.

Thereafter, the trial court entered final judgment, transferring title to the defendants and divesting Mrs. Jolly of title to the parcels. Mrs. Jolly appeals.

Section 35-6-100 states:

“Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not. (Acts 1979, No. 79-334, p. 532, § 1).”

Mrs. Jolly first contends that this section is unconstitutional because it denies her equal protection of the law by giving only the defendants the alternative relief of purchasing the interest of the other cotenants.

We note that direct constitutional challenges to this statute have been made before in Madison v. Lambert, 399 So.2d 840 (Ala. 1981), on second appeal, 428 So.2d 25 (Ala.1983), and Gibbons v. Allen, 402 So.2d 914 (Ala.1981). However, the challenges made in those two cases are distinguishable on the facts from the one made in the case before us.

In Madison, Lambert, a co-owner of jointly owned property, commenced an action for sale for division, and certain of the defendants, including Madison, filed a timely offer to purchase Lambert’s interest in the property as well as the interests of all others seeking to sell, pursuant to § 35-6-100, supra. Lambert subsequently filed a motion to strike appellant’s offer to purchase, alleging that § 35-6-100 violated the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In granting Lambert’s motion to strike, the trial court held the section “patently unconstitutional” and issued a decree ordering a public auction for the sale of the property.

Lambert’s argument that the statute deprived him of equal protection of the law by creating an arbitrary and capricious classification, in that defendants were preferred over plaintiffs, was rejected, and, in reversing the judgment of the trial court, this Court stated:

“The test by which a state statute establishing non-suspect or non-fundamental classifications is deemed to come within the purview of ‘equal protection’ is whether the state action is rationally related to any legitimate state interest....
“... Section 35-6-100 et seq., obviously seeks to avoid that situation whereby joint owners of property are divested of ownership through a forced public sale brought about as a result of a plaintiff’s petition for a sale for division.... The requisite rational basis for the statute’s classification perforce finds itself in the protection afforded co-owner defendants against co-owner plaintiffs seeking involuntary severence of the co-ownership for pro-rata distribution of the proceeds of sale.... Suffice it to say, therefore, in our view there exists a ‘rational basis’ for the statutory scheme founded on a ‘plaintiff-defendant’ distinction.”

A careful reading of Madison indicates that the appellee, Lambert, was seeking to have the subject property sold for division at a public sale. There is no indication that Lambert desired to purchase any of the other co-owners’ interests himself. Thus, the constitutional issues raised with regard to the statute and the corresponding rationale utilized by this Court in resolving those issues, were made solely within the context of plaintiff Lambert’s wanting to have the property sold publicly. Therefore, the equal protection issue addressed in Madison could be stated thusly: Whether § 35-6-100 was an unconstitutional restriction on a plaintiff’s statutory right to have a public sale for division of unpartible lands by preferring a co-owner defendant’s right to purchase the plaintiff’s interest over the plaintiff’s right to insist on a public sale.

In Gibbons, the Court addressed the same issue. In that case, the trial court granted the plaintiff’s and cross-plaintiff’s motion to strike Gibbons’s request to purchase. The plaintiffs alleged that § 35-6-100 was unconstitutional on the grounds of equal protection. The cross-plaintiffs alleged similar grounds, but also charged that the statute destroyed the rights of tenants in common, at their election, to a sale at public outcry to the highest and best bidder, or to a private sale in a free market. The trial court reasoned that there was an equal protection violation in that both the plaintiffs and defendants belonged to the same class, but were treated unequally in that the statute allowed only the defendants to purchase the property.

In reversing the trial court’s judgment in Gibbons, we spoke of the equal protection issue as follows:

“This case is analogous to ... Madison v. Lambert_ The exhaustive analysis in [that case] explain[s] away any denial of either due process or equal protection to those who are parties to the proceeding.”

It is important to note that in Gibbons, as in Madison, there was no indication that any co-owner other than the defendant sought to purchase the interests of any of the other co-owners. The holding in Gibbons is in harmony with the one in Madison, and we reaffirm the holdings in those cases.

In the present case, however, a different challenge to § 35-6-100 is asserted. In this case, Mrs. Jolly contends that the application of this section deprives her of equal protection of the law because it denies her the right to purchase the interests of the other co-tenants merely because she is the plaintiff in this action. We agree.

The legislative purpose of Act No. 79-334, Acts 1979, which includes § 35-6-100, is to afford protection to co-owners against other co-owners seeking an involuntary sale of the co-owned land for pro-rata distribution of the proceeds of sale. Madison v. Lambert, supra, at 843. The prior statutory provisions, § 35-6-20, Ala. Code 1975, prevented the efforts of non-consenting interest holders in partition proceedings to preserve estates. The new amendments to the partition statute, §§ 35-6-100 to-104, provide ail option whereby non-consenting interest holders, upon compliance with a notice requirement, may purchase the interests of those seeking a sale for division, without offering the property to public bid. Ragland v. Walker, 387 So.2d 184 (Ala. 1980). Section 35-6-100 and the other provisions of the act provide a procedural framework wherein the co-owners of a parcel of property, upon invoking § 35-6-100, may negotiate among themselves for the sale or purchase of each of their respective interests. Provision is also made for independent valuation and judicial supervision of the purchase and sale of these interests if the co-owners cannot agree on a price. § 35-6-100 to -104, Ala. Code 1975 (1984 Supp.)

The legislature may not prejudice or discriminate against a co-tenant of an un-partible parcel of land by denying him or her the opportunity to purchase the interests of the other co-tenants merely because he or she has initiated the proceeding by the filing of a complaint.

We hold that by not allowing one co-owner to be as much entitled to purchase as any of the other co-owners, regardless of their alignment as plaintiffs or defendants in an action for sale for division, the statute violates the equal protection provisions of the Constitution of this state, §§ 1, 6, and 22, Ala. Const. 1901, as well as the Constitution of the United States, Amendment 14.

We, therefore, find merit in Mrs. Jolly’s argument that the statute treats equal members of a class of co-owners in an unequal manner, thus violating the equal protection provisions of the Constitutions of the United States and Alabama.

In this case, the defendant co-tenants properly filed a statutory notice of their desire to purchase the plaintiff co-tenant’s interest in the property. The plaintiff co-tenant thereupon gave notice of her desire to purchase the interest of the defendant co-tenants. The trial court transferred to the defendants the plaintiff’s interest when the defendants paid into court an amount equal to one-seventh of the total in payment of her share. Plaintiff Jolly responded by offering to purchase the six-sevenths interest of the six defendants at the appraised price. Under these circumstances, we must reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion. As we have consistently held, § 35-6-100 is designed to prevent co-tenants from being divested of their ownership rights in real property by a sale for division. The co-tenant defendants here followed the statutory procedure designed for that purpose. The plaintiff co-tenant cannot be denied equal participation in the statutory scheme. She has a right to participate in the statutory “private sale.”

The cause is remanded, and the trial court is directed to allow each of the seven co-owners of the land a right to purchase the interests of the others at such price as the others are willing to sell and the buyer is willing to pay.

REVERSED AND REMANDED.

All the Justices concur, except TOR-BERT, C.J., who concurs specially.

TORBERT, Chief Justice

(concurring specially).

I concur; however, I write to make two observations. First, the Court must en-graft a bidding procedure into the statute in order to make the application of Code 1975, § 35-6-100 (1984 Supp.), constitutional.

Section 35-6-100 was intended to preserve family estates by preventing title from passing to a stranger, Ragland v. Walker, 387 So.2d 184 (Ala.1980); however, the statute’s applicability cannot be limited solely to family situations because the statute applies to any property held by “joint owners or tenants in common.” Scott Paper Co. v. Griffin, 409 So.2d 1375, 1381 (Ala.1982).

This new bidding procedure will increase the likelihood that a stranger will acquire family property. Pripr to this opinion, a stranger could purchase undivided interests in family property and then file a petition for sale for division; however, he could not buy out the family owners if they were willing to pay the appraised value of the stranger’s share. In other words, a stranger could not force family members out of the estate merely by competitive bidding. Now, a stranger can buy shares of an estate, file a petition for sale for division, and buy the remainder of the estate by being the highest bidder as against family owners.

However, family estates are still somewhat protected from strangers by this holding, when the provisions of § 35-6-100 are utilized, in that the bidding among co-tenants will be private rather than public.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Jim LEWIS, et al. v. STATE of Alabama, et al.
    82-1271.
    Supreme Court of Alabama.
    Jan. 25, 1985.

      Charles A. Dauphin of Baxley, Beck, Dillard & Dauphin, Birmingham, for appellants.
    Charles A. Graddick, Atty. Gen. and Michael A. Bownes, Asst. Atty. Gen., for ap-pellees.
   MADDOX, Justice.

This is an appeal from a judgment in a suit brought under the Alabama Deceptive Trade Practices Act, Code 1975, § 8-19-1, et seq. We find the appeal to be untimely and dismiss.

The following facts are pertinent: On December 10, 1981, the State of Alabama brought suit against Jim Lewis, doing business as Job Information Directory and National Job Directory, and others who were operating a “job information service” in several Alabama cities. The state’s complaint was brought under the Deceptive Trade Practices Act, Act No. 81-355, Acts 1981, now codified at Code 1975, § 8-19-1 et seq., naming several plaintiffs for whom the state acted in a representative capacity. A temporary restraining order and, subsequently, a preliminary injunction were issued prohibiting defendants from advertising or soliciting customers in Alabama and from removing assets from Alabama. Thereafter, the state amended its complaint to include approximately 3,000 of defendants’ customers as additional plaintiffs and moved for summary judgment. On November 24, 1982, summary judgment was granted ordering defendants to pay damages to all plaintiffs. The state then moved to amend the judgment to include revocation of defendants’ business licenses, a $2,000 fine, and attorney’s fees. The defendants moved for reconsideration. On January 18, 1983, the court made a minor amendment to its November 24th summary judgment, but reserved its ruling on the license, fine, and attorney’s fees issues until a later date. On March 22,1983, defendants requested that the court certify its summary judgment as final, pursuant to Rule 54(b), Ala.R.Civ.P., indicating that they wished to take an appeal from that judgment. On April 15, 1983, the court entered the requested 54(b) order. On May 25, 1983, the defendants filed a “Motion for Clarification,” to which the state objected, arguing that such a motion could only have been made within 30 days of the date the summary judgment was certified as final. On July 28, 1983, the court entered an order clarifying, but in no way amending, its earlier judgment as previously modified. On September 6, 1983, defendants filed notice of appeal with this Court.

The timely filing of a notice of appeal is a jurisdictional act. Snowden v. United Steelworkers of America, 435 So.2d 62 (Ala.1983). It is the duty of this Court to take notice of the filing date of an appeal and, if finding the appeal to be untimely, to dismiss it ex mero motu. Stewart v. Younger, 375 So.2d 428 (Ala. 1979). Notice of appeal must normally be filed within 42 days of the date of entry of the judgment. Branson v. Moore Group, Inc., 439 So.2d 116 (Ala.1983). A judgment certified by a trial court pursuant to Rule 54(b) is a final appealable judgment; the certification triggers the running of the 42-day appeal period. Posey v. Prudential Insurance Co. of America, 383 So.2d 849 (Ala.Civ.App.), cert. denied, 383 So.2d 851 (Ala.1980).

While the appeal period is tolled where a post-trial motion is filed pursuant to Rules 50, 52, 55, and 59, Ala.R.Civ.P.— see Rule 4(a)(3), Ala.R.App.P., Hayden v. Harris, 437 So.2d 1283 (Ala.1983) — such a motion must be timely, because the untimely filing of a post-trial motion does not toll the running of the 42-day appeal period. City of Talladega v. McRae, 375 So.2d 429 (Ala.1979). In order to be timely, a post-trial motion under any of these rules must be filed not later than SO days after the entry of a final judgment. Rules 50(b), 52(b), 55(c), and 59(b), Ala.R.Civ.P.

In the present case, the 42-day period for taking an appeal began to run on April 15, 1983, the day the trial court certified its summary judgment as final pursuant to 54(b). Posey, supra. Even assuming that defendants’ May 25, 1983, motion entitled “Motion for Clarification” was actually a post-trial motion as anticipated by Rule 4(a)(3), Ala.R.App.P., defendants’ motion was filed more than 30 days from the entry of the final judgment on April 15. Therefore, defendants' motion would have been untimely and would not have tolled the running of the appeal period. Consequently, defendants’ September 6,1983, notice of appeal, coming almost five months after the summary judgment was certified, was untimely. Thus, the appeal must be dismissed.

APPEAL DISMISSED.

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


author: TORBERT, Chief Justice.

text:
    Richard EADY, Individually and d/b/a Eady Sand & Gravel v. STEWART DREDGING & CONSTRUCTION COMPANY, INC.
    83-1255.
    Supreme Court of Alabama.
    Jan. 25, 1985.

      J.B. Nix, Jr., Evergreen, for appellants.
    William D. Melton, Evergreen, for appel-lee.
   TORBERT, Chief Justice.

Plaintiff, Stewart Dredging and Construction Company, Inc., brought suit to recover sums due for work and labor done and materials furnished. The case was tried without a jury on April 5, 1984. The defendant, Richard Eady, d/b/a Eady Sand and Gravel, before resting his case, sought a continuance in order to locate a witness, Larry Parker. The defendant contends that the court granted a continuance for the reason defendant advanced. The trial court granted a continuance, but made it clear that the reason for granting the continuance was not so the defense could locate Mr. Parker:

“THE COURT: [T]he continuance is being granted over — this matter here— for the purpose of the Court informing itself from expert witnesses as to who is telling the truth and who is not telling the truth about these signatures. That’s the reason the case is going over. They may or may not get Larry Parker back here. I don’t know. He’s in California and may never come back here. Is that it, gentlemen?”

The record and briefs fail to specify what, if anything, happened until on June 19, 1984, judgment was entered for the plaintiff. The defendant then brought this appeal.

Appellant’s brief contains no statement of the issue presented nor any citation of authority in support of his contentions concerning that issue, as required by A.R. App.P. 28(a)(3). The short argument by appellant, again presented without authority, also fails to set forth any issue. Only in the prayer for relief is there an indication of the issue appellant raises:

“Appellant respectfully represents to this Court that the Trial Court should have re-set this case to a date certain for the taking of the testimony of the additional witness for Defendant and failing to [do] so ... was reversible error.”

Failure to comply with A.R.App.P. 28(a)(3) has been held to be a failure to properly present an issue for appellate review. Mitchell v. State, 450 So.2d 140 (Ala.Civ.App.1984). Although the spirit of the appellate rules is to reach a decision on the merits as opposed to disposing of a case on procedural technicalities, A.R. App.P. 1, this Court’s task in deciding the case on the merits is made extremely difficult when the appellant’s failure to comply with the rules leaves us with little insight as to the nature of the appeal. In addition, appellee makes a good argument that it is prejudiced by the appellant’s failure to comply with the rules, claiming appellee “is at a loss to respond to the appeal since no legal issues have been presented for review and no authorities cited thereunder.”

However, in spite of the deficiencies in appellant’s brief, we will address the issue as we perceive it. First, as already noted, the continuance was not granted on the basis the appellant alleges. We presume that appellant really asserts as error the trial court’s denial of a continuance so that appellant could locate a witness. A trial court’s grant or denial of a continuance is a matter of discretion and will not be reversed unless a gross abuse of discretion is shown. Madison v. Weldon, 446 So.2d 21 (Ala.1984). Appellant has not shown that the trial court abused its discretion. The judgment for the plaintiff is affirmed.

AFFIRMED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: HOLMES, Judge.

text:
    E. Alexander BLANTON v. Mary Elizabeth BLANTON.
    Civ. 4052.
    Court of Civil Appeals of Alabama.
    May 23, 1984.
    Rehearing Denied June 27, 1984.

      E. Alexander Blanton, pro se.
    Augusta E. Wilson, Mobile, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties and awarded custody of the minor children to the wife. The husband was awarded certain visitation and required to pay child support and alimony. The husband appeals from the trial court’s decree. We find no error requiring reversal and affirm.

The husband raises several issues on appeal. First, the husband contends that the trial court erred in denying his motion to dismiss. Specifically, the husband alleges that service of process was insufficient, and furthermore, the trial court exercised jurisdiction in violation of the Parental Kidnapping Prevention Act of 1980 (P.K.P.A.), 28 U.S.C.A. § 1738A (West Supp.1983). Lastly, the husband contends that he was denied due process in that he did not receive notice of a hearing on his motion to dismiss and he was not given an opportunity to file an answer or counterclaim to the wife’s petition, and additionally, he was deprived of an opportunity to be heard on the merits prior to the trial court’s decision. We find no merit in any of the above contentions.

The following facts are pertinent:

The husband serves as a member of the U.S. Coast Guard. His domicile is in Florida. The parties were married in 1971’. In 1979, in the course of the" husband’s military service, the parties moved to New Orleans, Louisiana.

In March 1982, the parties separated and the wife filed for divorce in Louisiana. In April 1982, a consent judgment was entered in Louisiana by the agreement of both parties wherein, although not granting a divorce, custody of the two minor children was awarded to the wife along with child support, “temporary alimony,” and the marital home in New Orleans.

In December 1982, the wife and the children moved to Mobile County, Alabama. On July 15, 1983, some fifteen months after the consent judgment, the husband filed an answer and counterclaim to the Louisiana complaint.

In Mobile on July 25, 1983, the wife filed for divorce in the circuit court. Apparently, sometime between the wife’s move to Alabama and the sudden flurry of legal action in the summer of 1983, the husband left Louisiana and moved to Texas where he now resides.

On August 4, 1983, while in Mobile exercising his visitation rights pursuant to the Louisiana decree, the husband was served with the wife’s Alabama complaint. On the summons there was typed in bold letters, “NOTICE: YOUR CASE IS SET FOR A TRIAL ON THE MERITS FOR September 9, 1983, at 9:00 A.M., in the DOMESTIC RELATIONS DIVISION COURTROOM....”

On September 6, 1983, the husband filed a motion to dismiss supported with argument and authorities in the Mobile County Circuit Court. On September 9th, the day set for trial on the merits, the husband did not appear and the trial court proceeded without him. The trial court denied the husband’s motion to dismiss and then evidence was heard ore tenus on the merits. On September 22, 1983, the trial court entered its final judgment divorcing the parties. The Louisiana decree, as far as it concerned custody and support, was by order of the Alabama circuit court incorporated into the Alabama judgment.

We will first address the husband’s contention that service of process was insufficient. The husband bases this claim on the fact that the summons and complaint were not served by a sheriff or deputy sheriff.

Rule 4.1(b)(2), Alabama Rules of Civil Procedure, provides that a private process server designated by the court may make service of process. In the instant case service was made by one Romoser of Ro-moser and Associates. On the cover of the summons under the space for defendant’s address are typed the words “To Be Served By Romoser.” Presumably, this was there when the summons was delivered to the process server by the clerk. It appears that return of service was proper.

The party challenging service of process has the burden of establishing its incorrectness by clear and convincing proof. Rule 4.1, A.R.Civ.P.; Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975). Here in the case at bar there was no proof or evidence offered that Romoser was not a duly appointed process server. There was only the bare allegation that Romoser was not a sheriff or deputy sheriff. This court is not aware of any requirement that a private process server’s qualifications must be affirmatively shown on the summons or other documents. Therefore, service of process was proper in this case.

Next, the husband contends that under the P.K.P.A., 28 U.S.C.A. § 1738A(g), the trial court was without jurisdiction to hear the case, and therefore, it was error to deny the motion to dismiss. More specifically, the husband maintains that there is still pending in Louisiana a case between the parties concerning child custody which would prohibit the Alabama court from proceeding.

The pertinent part of 28 U.S.C.A. § 1738A reads:

“(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.”

We find that under the present facts the Louisiana case is not “pending” as contemplated by the P.K.P.A. so as to prohibit the Alabama court from exercising jurisdiction.

The Louisiana complaint was filed by the wife in March 1982. In April 1982, the parties agreed that the wife should have custody of the children. This agreement was incorporated into a consent judgment signed by the parties. The parties were never divorced, and soon after the consent judgment both parties left Louisiana to live in other states.

Over a year later, in July 1983, after residing in Mobile County with the children for over six months, the wife filed for divorce in the circuit court. A short time previously, ten days, the husband, for reasons not readily apparent, filed an answer/counterclaim to the Louisiana complaint. This occurred over fifteen months from the filing of the complaint and certainly over one year from the consent judgment.

Under the Louisiana judgment (which apparently is temporary or preliminary) custody had been awarded to the wife by consent of the husband. There is no indication from the record that any further legal action had been taken until almost fifteen months from the filing of the Louisiana suit. By that time both parties and the children had moved from Louisiana and taken up residence elsewhere. The husband now resides in Texas and claims Florida as his domicile. The wife, with the children, has taken up residence in Alabama; she has legal custody of the children by the husband’s consent. Alabama, it appears, is clearly the home state of the children. See P.K.P.A., 28 U.S.C.A. § 1738A(b)(4) (West Supp.1983). It appears that the only connection the parties have with Louisiana, other than the filing of the complaint and the consent judgment, is the fact that they temporarily lived there.

The husband did not initially choose the Louisiana forum and he made no effort to prosecute his case or contest the wife’s complaint or the consent judgment until well over a year had elapsed from the filing of the complaint and the parties had left Louisiana. Were the parties to return to Louisiana now to litigate this matter, both the contestants and their children would be out-of-state residents.

It is the opinion of this court that under these facts and circumstances it is more in line with the intent and purpose of the P.K.P.A. to hold that a custody proceeding was not “pending” in Louisiana that would prohibit Alabama from exercising jurisdiction. Custody is, in effect, a settled issue as far as the Louisiana suit is concerned. It stretches the imagination to say that a custody issue was “pending” at the time of the Alabama proceedings so as to preclude Alabama from exercising jurisdiction merely because the husband had filed an answer and counterclaim to a complaint over one year old. This is especially true considering the fact that the husband had, in response to that complaint, consented to the wife’s retaining custody. As alluded to above, custody was a settled issue, by consent, until the husband chose to respond.

In fact, applying the above analysis, it would appear that any custody determination made by Louisiana at this time would not be consistent with the provisions of the P.K.P.A. See 28 U.S.C.A. § 1738A(c)(2) (West Supp.1983).

To briefly restate our position, under the instant facts, Alabama was the proper forum to decide custody of the minor children. See P.K.P.A., 28 U.S.C.A. § 1738A(b)(4) and (c) (West Supp.1983). As indicated, the “pendency” prohibition contained in subsection (g) of the P.K.P.A. was not applicable under the facts of this case. Therefore, the trial court did not err in denying the husband’s motion to dismiss.

Finally, we come to the husband’s contention that he was denied due process. The husband alleges that he was denied due process in that he did not receive notice of a hearing on his motion to dismiss, he was not given an opportunity to file an answer or counterclaim, and he was not given an opportunity to be heard on the merits.

The husband was properly served with process on August 4, 1983. The summons clearly set forth that trial on the merits would be held September 9, 1983. The husband filed a motion to dismiss on September 6, three days before the scheduled trial on the merits. The husband did not at any time request a hearing on his motion to dismiss. On the day set for trial the husband did not appear and did not contact the court to explain his absence or inquire about his motion. The trial court dismissed the motion and proceeded with the trial on the merits.

Rule 78, A.R.Civ.P., provides that unless there is a request for an oral hearing, the trial court may enter an order denying a motion to dismiss without a hearing. Clearly, since the husband did not request an oral hearing, the trial court was within its authority to deny the motion to dismiss without a hearing. Hence, the husband was not deprived of due process by lack of notice; no notice was required.

Rule 12(a), A.R.Civ.P., requires a defendant to answer a complaint within thirty days. The summons also contained an instruction to the effect that an answer must be filed within thirty days. Rule 12 also provides that a motion to dismiss alters the time for filing an answer. However, a different time may be fixed by order of the court. In the present case the trial court’s order setting the trial for September 9, 1983, thirty-seven days from the date of service on August 4, 1983, is sufficient notice to defendant that a different time has been fixed by the court in the event a motion to dismiss was filed. The husband filed his motion to dismiss three days before the scheduled trial, which date was known to the husband thirty-seven days in advance. Clearly, in such a situation the filing of a motion to dismiss would not alter the time for filing an answer. The husband obviously had ample time to answer the wife’s complaint.

The above reasoning applies equally to the husband’s contention that he was deprived of an opportunity to be heard on the merits. The husband was served on August 4, 1983. The summons gave him notice that trial on the merits would be September 9, 1983, thirty-seven days later. The husband failed to appear. We cannot see how the husband was deprived of an opportunity to be heard on the merits; he knew of the trial date and refused to appear.

In view of the above, we find that the husband was not denied due process, nor did the trial court err in denying the husband’s motion to dismiss.

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

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Ex parte E. Alexander BLANTON. (Re: E. Alexander Blanton v. Mary Elizabeth Blanton).
    83-1111.
    Supreme Court of Alabama.
    Jan. 11, 1985.

      E. Alexander Blanton, pro se.
    Augusta E. Wilson, Peter Scales, III, Mobile, for respondent.
   MADDOX, Justice.

This case requires an interpretation of the Parental Kidnapping Prevention Act (P.K.P.A.), 28 U.S.C.A. § 1738A (West Supp.1984), and Alabama’s version of the Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), Code 1975, § 30-3-20, et seq.

The Alabama Court of Civil Appeals, 463 So.2d 158, found the following facts to be pertinent:

“The husband serves as a member of the U.S. Coast Guard. His domicile is in Florida. The parties were married in 1971. In 1979, in the course of the husband’s military service, the parties moved to New Orleans, Louisiana.
“In March 1982, the parties separated and the wife filed for divorce in Louisiana. In April 1982, a consent judgment was entered in Louisiana by the agreement of both parties where, although not granting a divorce, custody of the two minor children was awarded to the wife along with child support, ‘temporary alimony,’ and the marital home in New Orleans.
“In December 1982, the wife and the children moved to Mobile County, Alabama. On July 15, 1983, some fifteen months after the consent judgment, the husband filed an answer and counterclaim to the Louisiana complaint.
“In Mobile on July 25, 1983, the wife filed for divorce in the circuit court. Apparently, sometime between the wife’s move to Alabama and the sudden flurry of legal action in the summer of 1983, the husband left Louisiana and moved to Texas where he now resides.
“On August 4, 1983, while in Mobile exercising his visitation rights pursuant to the Louisiana decree, the husband was served with the wife’s Alabama complaint. On the summons there was typed in bold letters, “NOTICE: YOUR CASE IS SET FOR A TRIAL ON THE MERITS for September 9, 1983, at 9:00 A.M., in the DOMESTIC RELATIONS DIVISION COURTROOM....”
“On September 6, 1983, the husband filed a motion to dismiss supported with argument and authorities in the Mobile County Circuit Court. On September 9th, the day set for trial on the merits, the husband did not appear and the trial court proceeded without him. The trial court denied the husband’s motion to dismiss and then evidence was heard ore terms on the merits. On September 22, 1983, the trial court entered its final judgment divorcing the parties. The Louisiana decree, as far as it concerned custody and support, was by order of the Alabama circuit court incorporated into the Alabama judgment.”

From that judgment, Blanton appealed to the Court of Civil Appeals, which affirmed the judgment and denied Blanton’s request for rehearing. Blanton then petitioned here for certiorari and requested oral argument. Both were granted, primarily to determine whether the Court of Civil Appeals correctly decided the question of whether the Mobile Circuit Court had jurisdiction of the cause.

Blanton contends that the Mobile court was barred from exercising jurisdiction over the Blanton children by the two statutes hereinbefore mentioned, which read, in pertinent part:

§ 1738A(g)
“A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another state where such court of that other state is exercising jurisdiction consistently with the provisions of this section to make a custody determination.” Code 1975, § 30-3-26
“A court of this state shall not exercise its jurisdiction under this article if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this article, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.”

To the extent that the P.K.P.A. conflicts with the U.C.C.J.A., the federal statute preempts the provisions of the state statute. Flannery v. Stephenson, 416 So.2d 1034 (Ala.Civ.App.1982). Therefore, in order to determine if the Court of Civil Appeals erred by affirming the Mobile court’s exercise of jurisdiction, we look solely to the P.K.P.A. and cases interpreting it.

Blanton’s fundamental argument is that § 1738A(g) prohibited the initial exercise of jurisdiction by the Mobile court because, at the time the Mobile court exercised its jurisdiction, Mrs. Blanton’s divorce action and his counterclaim thereto were still pending in Louisiana. At first glance, this argument seems to have some merit. Because our research reveals no previous decision which is on point with the facts of the present case, we have closely examined the statute itself, the cases interpreting it, and various law review articles discussing it, and, based on that study, we have attempted to apply our understanding of § 1738A(g) to the present facts. Having done so, we find no error in the judgment of the Court of Civil Appeals.

It is undisputed that in April 1982 the Louisiana court entered a consent judgment providing for custody and visitation of the Blanton children and that on September 22, 1983, the Circuit Court of Mobile County entered a final judgment of divorce providing for the custody and support of the same two children. Blanton does not dispute the fact that the Mobile court had jurisdiction to make a custody determination; but he strongly argues that § 1738A(g) prohibited the court from exercising that jurisdiction.

In order for Blanton to be correct: (1) the Mobile court’s decree must have been a custody determination within the meaning of § 1738A(b)(3); (2) at the time the Mobile court exercised jurisdiction there must have been an action pending in Louisiana; and (3) at the same time, the Louisiana court must have been exercising jurisdiction consistently with the provisions of the P.K.P.A., § 1738A(g). The mere filing of an action was not an event giving Louisiana absolute and interminable jurisdiction. See Peterson v. Peterson, 464 A.2d 202, 205 (Me.1983).

A simple reading of § 1738A(b)(3) shows that, regardless of whether the Mobile court’s decree was temporary or final, it was a custody determination within the meaning of the P.K.P.A. because it was “ ‘an order of a court providing for the custody’ of a child.” E.E.B. v. D.A., 89 N.J. 595, 605, 446 A.2d 871, 876 (1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 445, rehearing denied, 460 U.S. 1104, 103 S.Ct. 1806, 76 L.Ed.2d 369 (1983); accord, Matter of McKenzie, 439 So.2d 700 (Ala.Civ.App.), writ quashed, 439 So.2d 702 (Ala.1983), Salisbury v. Salisbury, 657 S.W.2d 761 (Tenn.Ct.App.1983).

Furthermore, it is obvious to this Court that Mrs. Blanton’s divorce complaint and her husband’s counterclaim were and, as far as the record before us indicates, are still pending in Louisiana. Because the P.K.P.A. does not define the words “during the pendency,” we must look to the common law meaning of those terms. In Louisiana, as in Alabama, a suit is commenced when a plaintiff files a complaint, sometimes referred to as a petition, and it remains pending until terminated by a decision on the merits, or by a judgment of dismissal, or by some other action by a court. Jobson v. Hodge, 347 So.2d 57 (La. Ct.App.), writ denied, 350 So.2d 674 (La. 1977). The record clearly shows that a complaint was filed in Louisiana and the record is completely devoid of any evidence which shows a dismissal or final adjudication in that action. Nevertheless, even though the divorce proceedings were pending under Louisiana law at the time Mrs. Blanton’s Mobile divorce proceeding was filed, they did not bar the Mobile court’s exercise of jurisdiction, because, at that time, the Louisiana court was no longer exercising jurisdiction consistently with the P.K.P.A.

⅛ order for the Louisiana court to have been exercising jurisdiction consistent with the P.K.P.A. at the time the Mobile court exercised its jurisdiction, the Louisiana court obviously must have had jurisdiction at that time under the P.K.P.A. to enter its own custody determination. Under § 1738A(c) such jurisdiction could have existed only if, at that time, the Louisiana court: (1) had jurisdiction under Louisiana law, § 1738A(c)(l); and, (2) met one of four alternative jurisdictional requirements set forth in § 1738A(c)(2)(A) through (D), Salisbury, supra, at 767, 768; or, (3) if the court previously had such jurisdiction which, pursuant to § 1738A(c)(2)(E), continued until the time the Mobile court exercised its jurisdiction.

Regardless of whether the Louisiana court had jurisdiction under its own state’s laws, La.Rev.Stat.Ann. § 13:1702 (West 1983), at the time in question, it had no jurisdiction under § 1738A(e)(2). Jurisdiction was not established under § 1738A(c)(2)(A)(i) or (ii) because, as previously stated, Alabama, not Louisiana, had become the children’s home state and had been such for more than six months. Jurisdiction was also not established under § 1738A(c)(2)(B) because of Alabama’s jurisdiction under § 1738A(e)(2)(A)(i), nor was it established under § 1738A(c)(2)(C) because the children were not present in Louisiana at that time. Finally, the Louisiana court had no jurisdiction under § 1738(c)(2)(D) because the Alabama court chose to exercise its jurisdiction rather than declining to do so.

Even though the Louisiana court had no jurisdiction under § 1738A(c)(2)(A) through (D) at the time the Mobile court exercised jurisdiction, it still could have had jurisdiction sufficient to trigger application at § 1738A(g) if it previously had jurisdiction under subsections (c)(1) and (c)(2)(A) through (D) and that jurisdiction continued until the time the Mobile court acted to exercise its jurisdiction. From the record before us, it is clear that, at the time Mrs. Blanton filed for divorce in Louisiana, the critical time for determining jurisdiction, Mitchell v. Mitchell, 437 So.2d 122 (Ala. Civ.App.1982), the Louisiana court had jurisdiction under § lJ38A(c)(l) and (c)(2)(A)(i) because Louisiana was, at that time, the children’s home state. Moore v. Moore, 379 So.2d 1153 (La.Ct.App.1980). The dis-positive issue in this case is how long that jurisdiction continued.

Under § 1738A(c)(2)(E), once jurisdiction was established in Louisiana under § 1738A(c)(l) and (2) it continued pursuant to § 1738A(d) “as long as the requirement of subsection (c)(1).... continue[d] to be met and such State remained] the residence of the child or of any contestant.” (Emphasis added.) Thus, regardless of how long its jurisdiction continued under state law, the Louisiana court’s jurisdiction under the P.K.P.A. continued only as long as one of the Blanton children, Mrs. Blan-ton, or Mr. Blanton continued to reside there. If one or more of the above-named parties continued to reside in Louisiana at the time the Mobile court exercised its jurisdiction, the Louisiana court’s continuing jurisdiction triggered § 1738A(g) and the action of the Mobile court, even though proper under Alabama’s “home state” provision, was barred. On the other hand, if all the parties left Louisiana prior to the time the Mobile court acted, the Louisiana court was no longer exercising its jurisdiction consistently with the P.K.P.A. at that time, leaving the Mobile court free to act.

From the record before us, it is clear that the Louisiana court’s continuing jurisdiction had already terminated when the Mobile court acted. It is undisputed, and the Court of Civil Appeals found, that Mrs. Blanton and both Blanton children left Louisiana sometime in December 1982 and that sometime thereafter Blanton moved to Texas. The Court of Civil Appeals found that Blanton’s move came sometime between December 1982 and the “sudden flurry of legal action in the summer of 1983.” We can only interpret this finding to mean that Blanton’s Louisiana residency terminated prior to the filing of Mrs. Blanton’s Mobile divorce petition on July 25, 1983, and, therefore, prior to any exercise of jurisdiction by the Mobile court. Blanton has presented nothing by way of additional or corrected facts, Rule 39(k) Ala.R.App.P., to persuade us otherwise.

It is well established that when reviewing decisions of a court of appeals on writ of certiorari this Court is limited to reviewing those facts found by that court and other properly presented additional or corrected facts. Rule 39(k) Ala.R.App.P. Those facts found by the court below will be presumed correct unless shown by the petitioner to be in error. Life Insurance Co. of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900 (1974), Ex parte Newbern, 286 Ala. 348, 239 So.2d 792 (1970), dismissed, 409 U.S. 813, 93 S.Ct. 60, 34 L.Ed.2d 69 (1972).

Considering the fact that all of the parties left Louisiana prior to the time the Mobile court exercised its jurisdiction, we hold that the Louisiana court had no jurisdiction under the P.K.P.A. at that time and, therefore, was not exercising, and could not have exercised, jurisdiction consistently therewith. Consequently, § 1738A(g) did not apply.

Blanton’s next contention is that the Mobile court violated Code 1975, § 30-3-26, because, even after being informed of the alleged pending action in Louisiana, it refused to communicate with the Louisiana court and exercised its jurisdiction. We find that, because the Louisiana court no longer had jurisdiction, any technical violation of § 30-3-26 was harmless.

We will not discuss the other two issues raised by Blanton, that service of process was improper and that he was not given an opportunity to answer after denial of his motion to dismiss, finding them to have been properly resolved by the Court of Civil Appeals.

AFFIRMED.

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

ALMON, J., not sitting.

      . The Mobile court had home state jurisdiction under both state law, § 30-3-23(a)(l)a., and § 1738A(c)(2)(A)(i), because, at the time wife filed her petition in Mobile, the Blanton children had lived in Alabama for at least six consecutive months.

      . In Losey v. Losey, 412 So.2d 639 (La.Ct.App. 1982), the Louisiana appeals court recognized that a court can have jurisdiction to adjudicate a divorce proceeding even though it has no jurisdiction to determine child custody.

      .The P.K.P.A. provides in pertinent part:
      "(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State.
      "(b) As used in this section, the term—
      (1) 'child' means a person under the age of eighteen;
      (2) ‘contestant’ means a person, including a parent, who claims a right to custody or visitation of a child;
      (3) ‘custody determination’ means a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications;
      (4) ‘home State’ means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period;
      (5) ‘modification’ and ‘modify’ refer to a custody determination which modifies, replaces, supersedes, or otherwise is made subsequent to, a prior custody determination concerning the same child, whether made by the same court or not;
      (6) ‘person acting as a parent’ means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody;
      (7) ‘physical custody’ means actual possession and control of a child; and
      (8) ‘State’ means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or possession of the United States.
      "(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—
      (1) such court has jurisdiction under the law of such State; and
      (2) one of the following conditions is met:
      (A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
      (B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and
      (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
      (C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
      (D)(i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
      (E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
      “(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
      "(e) Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.
      “(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
      (1) it has jurisdiction to make such a child custody determination; and
      (2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.
      “(g) A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination."


author: HUBERT TAYLOR, Judge.

text:
    Jared Jerome WEEMS v. STATE.
    4 Div. 166.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 10, 1984.
    W.C. Carn, III, Lee & Mclnish, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

Appellant, Jared Jerome Weems, was convicted of murder and sentenced to thirty years in the penitentiary. Weems contends, on appeal, that the judge erred by refusing to grant his motion for a new trial on the grounds that the verdict of the jury was not supported by the evidence. A summary of the evidence, presented in a light most favorable to the State, as we are required to consider it, is set out below.

Weems had gone to a bar called the East North Cafe in the City of Dothan. After drinking a couple of beers, he made the rounds in and out of the establishments and gambling houses in the vicinity. While at the gambling house next door to the East North Cafe, Weems won about two hundred dollars. Weems took his winnings, left the gambling house, and either headed back toward the East North Cafe or his car. While en route, he was assaulted by an unknown man with a knife who tried to cut him. Weems dropped his cigarettes and keys and .ran from the area.

At some point later in the evening, Weems came back to the East North Cafe, supposedly to pick up his mother’s car. Weems was unable to find his keys so he decided to ask about them in the bar. Before going into the bar, however, he pulled a gun out of the glove compartment of the car. He testified that he took the gun with him because he was afraid that the man who assaulted him would be in the bar.

The East North Cafe was very crowded on this particular night and very noisy. Sitting at one table was Christine Wilson, the victim, and Sylvester Goodson. Christine was sitting with her back partially to the wall and Goodson was sitting to her right at the corner of the table. Christine’s daughter, Fronnie, sat at the next table. Fronnie testified that Weems came over and stood behind her mother. She did not notice a gun and did not pay any attention to them since they were friends.

About ten or fifteen minutes later, a shot was fired and all the people in the bar became very quiet. Christine said to Weems, “Mr., you have shot me.” He evidently replied, “Ma’am, if I shot you, I will take you to the hospital.” Christine fell to the floor and Fronnie went and knelt over her. Fronnie said to Weems, “Nigger, you have shot my mama.” Weems replied, “Yeah, I shot your mama.” Weems was holding the pistol in his hand at that time, trying to tuck it behind his belt into his pants. He left hurriedly after the shot was fired, not waiting for the paramedics or police to arrive. No one present in the cafe saw the fatal shot or noticed that Weems had a gun until after it had discharged. Weems was not brandishing the weapon or fighting with anyone in the cafe. Weems later gave the gun to his sister, who “disposed” of it. Upon learning that the police were looking for him, Weems turned himself in.

Charles Brooks, an analyst for the Alabama Department of Forensic Sciences, testified that he received a parka type coat which was worn by the victim the night she was shot. His tests indicated that the firearm was discharged approximately six inches from the coat. Dr. Thomas Gilchrist, a forensic pathologist, testified that the bullet entered the back in the left shoulder, went from left to right and passed slightly downward from the back to the front. He further testified that although the bullet hit a rib, its course was not altered markedly by that encounter. He stated that the trajectory of the bullet from the left shoulder to the front of the chest was fairly straight. Finally, there was testimony, although confusing, from Weems that the gun in question was a single action revolver.

Weems contends that the shooting was an accident and that the jury could not have reasonably inferred intent from the evidence outlined above. We do not agree.

Although he may not have meant to shoot Christine, the jury could have reasonably concluded from the evidence that he intended to shoot another person whom he thought was in the bar that night. It had been made clear that Weems did not know the man who attacked him earlier and there was conflicting testimony about who was sitting with Christine. It is very likely that Weems thought Goodson was his attacker. Weems testified that the gun discharged when he realized it was still in his hand and he tried to put it away. The jury could rightfully view that testimony skeptically since it had been established that Weems had been in the bar for as long as fifteen minutes before the shot was fired. Additionally, the path of the bullet was from left to right, almost parallel to the ground. If Weems had been trying to put the barrel of the gun down his trousers, it is unlikely that a bullet discharged from the gun would travel a path through the victim’s body parallel to the ground. This improbability is amplified by the fact that the gun was discharged six inches or more from the body. It is also curious to note that the direction in which the gun was fired was the direction in which Sylvester Goodson, the mystery man, was sitting. Finally, there is the testimony about the gun itself. Evidence was introduced which indicated that the revolver was of a single action type. Evidence indicated that before a single action revolver like this one can be discharged, the hammer must be pulled back and the trigger squeezed. This combination is unlikely to occur as a result of sticking the pistol down a pants leg. If Weems had cocked the hammer prior to the discharge, that in itself indicates that he intended to fire the gun.

The jury in this case had enough evidence before it from which intent could be inferred. The judgment of the lower court is, therefore, affirmed.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Jared Jerome WEEMS. (Re Jared Jerome Weems v. State of Alabama.)
    83-755.
    Supreme Court of Alabama.
    Nov. 16, 1984.
    William C. Carn, III, Lee & Mclnish, Dothan, for petitioner.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for respondent.
   FAULKNER, Justice.

We granted certiorari to review the Court of Criminal Appeals’ decision affirming petitioner’s murder conviction.

On the night of the killing, petitioner, Jared Jerome Weems, had been at a “gambling house” next door to the East North Cafe in Dothan, where he had won about $160.00. While in the house he purchased two cartons of cigarettes. When he left, he encountered a man .outside the house who asked him for a pack of cigarettes. When Weems refused, the man slapped him and attempted to cut him with a knife, whereupon Weems fled. Weems had never seen the man before the altercation, but was later told that the man had recently come to Dothan from Florida.

Later that evening Weems returned to the area to retrieve his mother’s car, which he had been driving. When he got to the car he discovered that during the course of the evening he had lost the car keys. He surmised that he had probably lost the keys during the altercation with the man from Florida. In an attempt to locate the keys, he decided to go into the East North Cafe to ask if anyone had found them. Fearing the possibility of another encounter with the man from Florida, Weems decided to take into the cafe the gun which his mother kept in the car glove box.

Upon entering the cafe, he surveyed the patrons and determined that the man from Florida was not there. He noticed that a friend of his, Christine Wilson, whom he referred to as “Mama Chris”, was at the cafe that night. Weems went over to talk to her. When Weems arrived at the table where Wilson was sitting, he realized that he still had the pistol in his hand. Weems testified that while he was in the process of putting the pistol away, it discharged and hit Ms. Wilson.

Numerous people who were in the cafe at the time of the shooting testified. Their accounts were substantially similar to Weems’s and to each other’s. Typical of the accounts of the shooting given at the trial was the one given by the bartender, Linton McIntyre. McIntyre testified that he was standing behind the counter facing the victim when she was shot. Neither he nor any of the other witnesses saw the shot being fired. When McIntyre heard the shot he looked in that direction and heard Wilson tell Weems, “Mister, you done shot me.” McIntyre testified that Weems replied, “Mama Chris, if you are shot let me take you to the hospital.” There was some confusion in the cafe as to whether Wilson had been shot or whether she had had a heart attack, because her wound did not bleed. McIntyre testified that Weems left “a couple of minutes” later.

On appeal, Weems argued that because he did not intend to kill Wilson, his conviction for murder was inappropriate. The Court of Criminal Appeals concluded that, although Weems may not have intended to shoot Wilson, there was evidence to support a finding that he had intended to shoot Sylvester Goodson, the man sitting at the table with the victim. The court noted that Weems did not know the man with whom he had had the altercation earlier and that it was “very likely that Weems thought Goodson was his attacker.” The court based its conclusion that Weems was attempting to shoot Goodson on the fact that the trajectory of the bullet was parallel to the ground and the fact that the bullet was traveling in Goodson’s direction. The court concluded that it was unlikely that Weems was attempting to place the gun under his belt since the trajectory of the bullet was parallel to the ground and that Goodson must have been the intended target, because the bullet was traveling toward him.

The problem with the Court of Criminal Appeals’ transferred intent theory is that there was no more evidence that Weems was attempting to kill Goodson than there was that he intended to kill Wilson. Weems knew Goodson. He testified that Goodson was not the man who attacked him. There was no testimony given by any of the occurrence witnesses to the effect that there had been any sort of disagreement that evening, or on any previous occasion, between Weems and Goodson. It is patently obvious that intent to kill cannot be proved from the trajectory of the bullet alone. Obviously, whenever a person is shot, he is in the path of the bullet which hits him. If being in the path of the bullet were sufficient to prove intent, there would be no accidental shootings. Since there was no evidence of intent to kill Goodson other than the naked fact that Goodson was in the bullet’s path, the conviction cannot be upheld on the theory that Weems was trying to shoot Goodson when Wilson was killed.

Indeed, the state does not even contend that Weems was trying to shoot Goodson. It argues that, “It is uncontradicted that the killing of ‘Mama Chris’ was accidental; nonetheless, ample evidence was produced whereby a jury could easily infer Mr. Weems entered the East North Cafe with a cocked, loaded pistol, intending to shoot someone.”

In support of its position, the state relies primarily on Sashington v. State, 56 Ala. App. 698, 325 So.2d 205 (1975). The victim in that case was celebrating his 65th birthday with a party at his home when he was shot. The defendant, a guest at the party, lived in a trailer about 150 yards from the victim’s house. A fight occurred during the party involving the defendant’s father and brother. Another individual was standing in the front yard waving a shotgun. The defendant went home and returned with a shotgun. One shot was fired from the defendant’s gun in the direction of the front porch, killing the victim. The victim was a friend of the defendant, and the defendant argued that he had not intended to kill him. Additionally, the defendant argued that he had not intended to kill anyone. In holding the evidence presented a jury question as to intent to kill someone, the Court of Criminal Appeals relied on the transferred intent theory. It stated, “To be guilty of murder, one has to have the intention to kill a human being, but it does not have to be the person who is killed.” 56 Ala.App. at 700, 325 So.2d at 207.

Under Alabama law an accidental killing may support a conviction for murder, manslaughter, or negligent homicide, depending on the circumstances of the case. An accidental death may constitute murder if, “[ujnder circumstances manifesting extreme indifference to human life, [the defendant] recklessly engages in conduct which creates a grave risk of death” to the victim and thereby causes the victim’s death. Section 13A-6-2(a)(2); Code 1975. On the other hand, if the defendant’s conduct in bringing about the victim’s death is simply “reckless,” the defendant is guilty of manslaughter. Section 13A-6-3(a)(l). If the death results from “criminal negligence,” the defendant is guilty of criminally negligent homicide. Section 13A-6-4(a).

Alabama’s homicide statutes were derived from the Model Penal Code. In providing that homicide committed “recklessly under circumstances manifesting extreme indifference to human life” constitutes murder, the drafters of the model code were attempting to define a degree of recklessness “that cannot be fairly distinguished from homicides committed purposely or knowingly.” Model Penal Code and Commentaries, § 210.02, Comment, 4 (1980). That standard was designed to encompass the category of murder traditionally referred to as “depraved heart” or “universal malice” killings. Examples of such acts include shooting into an occupied house or into a moving automobile or piloting a speedboat through a group of swimmers. See LaFave & Scott, Criminal Law, § 70 (1972).

Recklessly causing another’s death may give rise to the lesser included offense of manslaughter. A defendant who recklessly causes another’s death commits manslaughter if he “consciously disregarded] a substantial and unjustifiable risk that his conduct would cause that result.” Model Penal Code and Commentaries, § 210.03, Comment 4 (1980). The difference between the circumstances which will support a murder conviction and the degree of risk contemplated by the manslaughter statute is one of degree, not kind. From a comparison of Sections 210.03 and 210.02 of the Model Code, it appears that the degree of recklessness which will support a manslaughter conviction involves a circumstance which is a “gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation,” but is not so high that it cannot be “fairly distinguished from” the mental state required in intentional homicides. Compare Comment 4 to § 210.02 with Comment 4 to § 210.03.

If the homicide is brought about by “criminal negligence,” the defendant is guilty of criminally negligent homicide. The essential difference between “recklessness,” as that term is used in the murder and manslaughter statutes, and “criminal negligence” is that a reckless defendant is one who has “consciously disregarded” a substantial and unjustifiable risk, whereas a negligent actor needs only to disregard a risk of which he “should have been aware.” Model Penal Code and Commentaries § 210.04, Comment 1.

In this case there was ample evidence that the defendant consciously disregarded a substantial and unjustifiable risk by carrying the pistol into the cafe. In so doing, Weems committed a “gross deviation” from the standard of conduct which would have been observed by a law-abiding person. The evidence would have supported a conviction for manslaughter, therefore. The degree of recklessness exhibited by Weems can, however, be distinguished from the extreme indifference to human life displayed by a person who commits an intentional homicide. These facts would, therefore, support a conviction of manslaughter, but not murder.

In our opinion, the facts of this case are distinguishable from Sashington v. State, 56 Ala.App. 698, 325 So.2d 205 (1975), which is relied on by the state. There was evidence in Sashington to support a finding that the defendant was attempting to shoot someone else when he killed the victim. Here, the state concedes that “the killing of ‘Mama Chris’ was accidental.” Although Weems was grossly reckless, his disregard for the safety of those around him did not rise to a level of disregard for the value of human life that would be tantamount to proof of an intentional killing. The facts of this case appear to present a clear case of manslaughter. See, e.g., Goffer v. State, 430 So.2d 896 (Ala.Crim.App. 1983).

REVERSED AND REMANDED.

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

BEATTY and ADAMS, JJ., dissent.

MADDOX and ALMON, JJ., not sitting.

      . The trial judge, in his oral charge, charged the jury on murder, manslaughter, and criminally negligent homicide.


author: PATTERSON, Judge.

text:
    Jared Jerome WEEMS v. STATE.
    4 Div. 166.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1985.
   PATTERSON, Judge.

Appellant was convicted of murder by a Houston County jury and sentenced to thirty years in the penitentiary. This court, per Judge Hubert Taylor, affirmed that conviction. Weems v. State, 463 So.2d 168 (Ala.Crim.App.1984). After granting cer-tiorari, the Alabama Supreme Court, 463 So.2d 170, reversed and remanded the case to this court on the grounds that the evidence was insufficient to support a conviction of murder. The Supreme Court stated, however, that the prosecution did prove all the elements of manslaughter and that “[t]hese facts would, therefore, support a conviction of manslaughter, but not murder.”

The instant case, therefore, presents a clear factual situation to which the doctrine of Edwards v. State, 452 So.2d 506 (Ala. Crim.App.1983), affirmed, 452 So.2d 508 (Ala.1984), may be applied. For a review and application of the Edwards doctrine by this court see Pack v. State, 461 So.2d 910 (Ala.Crim.App.1984).

On the authority of Edwards v. State, supra, we reverse and render in part, the judgment of the trial court, and remand this case with instructions that the trial court enter a judgment of guilty on the charge of manslaughter and sentence appellant accordingly. Upon completion of the actions directed, due return to this court shall be made by the trial court.

REVERSED AND RENDERED, IN PART; REMANDED FOR PROPER SENTENCING.

All Judges concur.


author: TYSON, Judge. BOWEN, Presiding Judge,

text:
    James Robert REEVES v. STATE of Alabama.
    1 Div. 702.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    Rehearing Denied July 17, 1984.
    M.A. Marsal, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

James Robert Reeves was indicted for the murder of Melvin Price in violation of § 13A-6-2, Code of Alabama. The jury-found the appellant guilty of criminally negligent homicide and the trial judge sentenced him to “twelve months’ imprisonment in the county jail.”

We pretermit a statement of facts in this case since they are not relevant to our discussion of the sole issue raised by the appellant on this appeal.

I

During the trial of this cause, the appellant attempted to call Ernest Trehern as a witness. Trehern was present at the scene of the shooting and the record reveals he had been indicted on charges stemming from the shooting in question.

Outside the presence of the jury, the following occurred:

“MR. HANLEY: Your Honor, for the record, my name is Neal Hanley, and I represent the witness, Ernest Trehern, who has been indicted for an attempted murder involving this same fact situation, I have advised my client not to testify — to invoke his privilege under the Fifth Amendment of the United States Constitution, as I think any answers— any testimony — concerning the evening of this occurrence will tend to incriminate him.
“THE COURT: Your name is Ernest Trehern?
“Mr. Trehern (previously sworn and seated at witness stand): Yes, sir.
“THE COURT: Mr. Hanley is your attorney?
“MR. TREHERN: Yes, sir.
“THE COURT: He’s discussed with you the facts in this ease?
“MR. TREHERN: Yeah.
“THE COURT: He discussed with you your Constitutional rights and immunity both under the Constitution of the State of Alabama and of the United States?
“MR. TREHERN: Yes, sir.
“THE COURT: And he has advised you that under the Constitution both of the United States and of the State of Alabama that you would not be required to testify in this case unless you want to do so?
“MR. TREHERN: Yes, sir.
“THE COURT: Now, my question is to you: Do you want to follow the advice of your attorney?
“MR. TREHERN: Yes, sir.
“THE COURT: And do you now claim the immunities granted to you under the Fifth Amendment to the United States Constitution of refusing to testify as a witness for Mr. Reeves in this case? “MR. TREHERN: Yes, sir.
“THE COURT: Well, Mr. Marsal, I will have to advise you that the Court grants this man the right not to testify.
“MR. MARSAL: All right, sir. In order that my record be protected under the ruling of the Court, I will proceed at this point to elicit from this witness certain questions—
“THE COURT: I’ve already elicited all the information we’re going to elicit. He’s told me that he claims his rights and immunities under the Constitution. I say that he has a right to do it, and I’m going to excuse him as a witness.
“MR. MARSAL: All right, sir. Let me have my record, please, sir.
“THE COURT: I'll give you an exception. I think that’ll protect you. You’ve called him as a witness. You say you want to use him, and I’m sustaining his attorney’s objection and his request — the witness’ request not to testify.
“MR. MARSAL: All right, sir.
“THE COURT: That’s all we’re going to have in the record.” (R. 250-252)
“THE COURT: Right. And I don’t want this mentioned to the jury. They’ve got nothing to do with it, This is the Court’s ruling. You’re fully protected if I’m wrong.
“MR. MARSAL: Yes, sir. I need to go further. I move that the Court permit me in the presence of the jury to interrogate this witness and that I be able to ask these questions—
“THE COURT: Don’t talk too loud, now. The jury is back there.
“MR. MARSAL: —be able to ask the questions that I feel are material to the defense of James Reeves, the defendant on trial today; and at that point, if the defendant might wish to invoke the Fifth Amendment, it’s going to be — He has to make that — He has to take that privilege in front of the jury, and the Court has got to rule as to whether that question would tend to incriminate him.
“THE COURT: And I deny that motion.
“MR. MARSAL: You deny the right to put—
“THE COURT: Deny putting this man before that jury and asking him anything. I’m not going to call him to testify as a witness over his objection and his attorney’s objection.
“MR. MARSAL: Judge, let’s consider—
“THE COURT: Mr. Marsal, now, listen. My mind is made up. This is going to be my ruling, and there’s no need of going any further with it.
“MR. MARSAL: All right, sir.
“THE COURT: I think the Supreme Court of Alabama has ruled on that point. I thought that was the law this morning. I just hadn’t had it in a good while, and I didn’t want to rule until I saw some law.
“MR. MARSAL: I take issue with the Court as to that being the law. Then I, at this time — since the Court is holding this hearing outside the presence of the jury — I will put evidence before the Court that this man’s testimony is material to the defense of Jim Reeves.
“THE COURT: I’m not going to waste time taking that. I’ll take your word that you think it’s material, and I don’t think that affects a man’s right to claim his Constitutional immunities under the law — the Constitution of the United States and of Alabama.
“MR. MARSAL: All right, sir. I want the record to show that it’s not my practice to try a case for the record. It’s my practice to try the case for the benefit of my client, and I represent to the Court I have a legal right to interrogate this man before the jury and let him invoke the Fifth Amendment so the jury can be completely mindful of why he is not testifying.
“THE COURT: I’ll give you an exception. I deny that motion, though.
“MR. MARSAL: You deny me the right to put on evidence as to his testimony being material?
“THE COURT: Yes, sir.
“MR. MARSAL: We except.” (R. 254-256).

It is generally understood to be the rule that a witness, other than the defendant himself, cannot refuse to take the stand and testify by “taking the Fifth.” A witness may only invoke his Fifth Amendment privilege against self-incrimination after he has been sworn and asked a question which would elicit incriminating evidence if answered by such witness. See McElroy’s Alabama Evidence, § 374.02 (3d ed. 1977). See also Morris v. McClellan, 154 Ala. 639, 45 So. 641 (1908); Ridge v. State, 206 Ala. 349, 89 So. 742 (1921); Gwin v. State, 425 So.2d 500 (Ala.Crim.App.1982); Pennington v. State, 420 So.2d 845 (Ala.Crim.App. 1982).

As can be seen from the above-quoted portion of the record, Trehern’s request not to testify was granted by the trial judge even though Trehern had not been asked a single question. Defense counsel clearly excepted to the trial judge’s ruling and informed the trial judge that Trehern’s testimony would be relevant. However, defense counsel did not set out the questions he intended to ask Trehern.

In Gwin v. State, 425 So.2d 500 (Ala. Crim.App.1982), cert. quashed, 425 So.2d 510, we find the following statement of the rule here controlling:

“Error cannot be predicated upon the trial court’s refusal to compel the witness to testify unless the defendant made an offer of proof showing that the testimony he expected to elicit from the witness would not have been incriminating. Compare Murphy v. State, 108 Ala. 10, 18 So. 557 (1895); Patterson v. State, 37 Ala.App. 161, 66 So.2d 191, cert. denied, 259 Ala. 152, 66 So.2d 194 (1953). Since the witness only could have been required to answer any question which did not tend to incriminate him, but not others, the defendant should have made an offer of proof. To put the trial court in error in declining to allow a question to be answered, it must have been suggested what it was proposed to prove, and how it would be relevant and competent, unless the question in itself gave such information. Woods v. State, 18 Ala.App. 123, 90 So. 52 (1921); United States v. Wells, 525 F.2d 974 (5th Cir. 1974). An exclusion cannot be reviewed in the absence of an offer of proof. Moore v. State, 16 Ala.App. 503, 79 So. 201 (1918).”

Since defense counsel made no offer of proof, this issue is not properly preserved for our review. We cannot predicate error on a matter where, as here, no offer of such required proof is made.

Therefore, this cause is due to be, and is, hereby affirmed.

AFFIRMED.

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

BOWEN, Presiding Judge,

dissenting.

I respectfully dissent from the majority’s finding that “(s)inee defense counsel made no offer of proof, this issue is not properly preserved for our review.” Defense counsel offered to “put evidence before the court that this man’s testimony is material to the defense of Jim Reeves.” The trial judge denied this offer and specifically indicated that he was denying defense counsel “the right to put on evidence as to his (Trehern’s) testimony being material.” In my opinion, this constitutes an attempted offer of proof by defense counsel.

Additionally, the trial judge refused to allow defense counsel to ask Trehern any questions and prematurely allowed the witness to invoke his Fifth Amendment privilege against self-incrimination.

Finally, the trial judge assured defense counsel that his objection “protected” the alleged error: “You’re fully protected if I’m wrong.” The judge informed defense counsel that his ruling was final: “My mind is made up. This is going to be my ruling, and there’s no need of going any further with it.” In my opinion, defense counsel did everything he could to preserve error.


author: SHORES, Justice.

text:
    Ex Parte James Robert REEVES. (Re: James Robert Reeves v. State)
    83-1222.
    Supreme Court of Alabama.
    Dec. 7, 1984.

      M.A. Marsal, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Michael A. Bownes, Asst. Atty. Gen., for respondent.
   SHORES, Justice.

James Robert Reeves was indicted for the shooting murder of Melvin Price. The jury found him guilty of criminally negligent homicide, and the Court of Criminal Appeals, 463 So.2d 174, affirmed. Reeve’s petition for writ of certiorari was granted.

At trial, the defendant attempted to call Ernest Trehern as a witness. Trehern was present at the scene of the shooting and had also been indicted on charges arising from that shooting. Upon the advice of his attorney, Trehern informed the trial court, outside the presence of the jury, that he wished to invoke his privilege, under the Fifth Amendment to the United States Constitution, not to testify. His request not to testify was granted, even though he had not been asked a single question by the defendant.

The defendant argued that this was error, and the Court of Criminal Appeals correctly held that Trehern should have been required to take the stand in the presence of the jury and invoked his privilege in response to any question asked by the defendant which would have elicited incriminating evidence if answered. However, after correctly stating the law in this respect, the Court of Criminal Appeals held that the defendant did not sufficiently preserve the error for review, writing, “Since defense counsel made no offer of proof, this issue is not properly preserved for our review.” We disagree and reverse and remand.

It is apparent from the record that the defendant’s counsel did everything possible to preserve the error. He clearly excepted to the trial judge’s ruling and claimed the right to put on evidence to establish that Trehern’s testimony would have been material to the defense. His efforts to preserve the error are evident from the following exchange, which took place outside of the presence of the jury:

“MR. HANLEY: Your Honor, for the record, my name is Neal Hanley, and I represent the witness, Ernest Trehern, who has been indicted for an attempted murder involving this same fact situation, I have advised my client not to testify — to invoke his privilege under the Fifth Amendment of the United States Constitution, as I think any answers— any testimony — concerning the evening of this occurrence will tend to incriminate him.
“THE COURT: Your name is Ernest Trehern?
“MR. TREHERN (previously sworn and seated at witness stand): Yes, sir.
“THE COURT: Mr. Hanley is your attorney?
“MR. TREHERN: Yes, sir.
“THE COURT: He’s discussed with you the facts in this case?
“MR. TREHERN: Yeah.
“THE COURT: He discussed with you your Constitutional rights and immunity both under the Constitution of the State of Alabama and of the United States? “MR. TREHERN: Yes, sir.
“THE COURT: And he has advised you that under the Constitution both of the United States and of the State of Alabama that you would not be required to testify in this case unless you want to do so?
“MR. TREHERN: Yes, sir.
“THE COURT: Now, my question is to you: Do you want to follow the advice of your attorney?
“MR. TREHERN: Yes, sir.
“THE COURT: And do you now claim the immunities granted to you under the Fifth Amendment to the United States Constitution of refusing to testify as a witness for Mr. Reeves in this case? “MR. TREHERN: Yes, sir.
“THE COURT: Well, Mr. Marsal, I will have to advise you that the Court grants this man the right not to testify.
“MR. MARSAL: All right, sir. In order that my record be protected under the ruling of the Court, I will proceed at this point to elicit from this witness certain questions—
“THE COURT: I’ve already elicited all the information we’re going to elicit. He’s told me that he claims his rights and immunities under the Constitution. I say that he has a right to do it, and I’m going to excuse him as a witness.
“MR. MARSAL: All right, sir. Let me have my record, please, sir.
“THE COURT: I’ll give you an exception. I think that’ll protect you. You’ve called him as a witness. You say you want to use him, and I’m sustaining his attorney’s objection and his request — the witness’ request not to testify.
“MR. MARSAL: All right, sir.
“THE COURT: That’s all we’re going to have in the record.
“THE COURT: Right. And I don’t want this mentioned to the jury. They’ve got nothing to do with it. This is the Court’s ruling. You’re fully protected if I’m wrong.
“MR. MARSAL: Yes, sir. I need to go further. I move that the Court permit me in the presence of the jury to interrogate this witness and that I be able to ask these questions—
“MR. MARSAL: —be able to ask the questions that I feel are material to the defense of James Reeves, the defendant on trial today; and at that point, if the defendant might wish to invoke the Fifth Amendment, it’s going to be — He has to make that — He has to take that privilege in front of the jury, and the Court has got to rule as to whether that question would tend to incriminate him.
“THE COURT: And I deny that motion.
“MR. MARSAL: You deny the right to put — ?
“THE COURT: Deny putting this man before that jury and asking him anything. I’m not going to call him to testify as a witness over his objection and his attorney’s objection.
“MR. MARSAL: Judge, let’s consider—
“THE COURT: Mr. Marsal, now, listen. My mind is made up. This is going to be my ruling, and there’s no need of going any further with it.
“MR. MARSAL: All right, sir.
“THE COURT: I think the Supreme Court of Alabama has ruled on that point. I thought that was the law this morning. I just hadn’t had it in a good while, and I didn’t want to rule until I saw some law.
“MR. MARSAL: I take issue with the Court as to that being the law. Then I, at this time — since the Court is holding this hearing outside the presence of the jury — I will put evidence before the Court that this man’s testimony is material to the defense of Jim Reeves.
“THE COURT: I’m not going to waste time taking that. I’ll take your word that you think it’s material, and I don’t think that affects a man’s right to claim his Constitutional immunities under the law — the Constitution of the United States and of Alabama.
“MR. MARSAL: All right, sir. I want the record to show that it’s not my practice to try a case for the record. It’s my practice to try the case for the benefit of my client, and I represent to the Court I have a legal right to interrogate this man before the jury and let him invoke the Fifth Amendment so the jury can be completely mindful of why he is not testifying.
“THE COURT: I’ll give you an exception. I deny that motion, though.
“MR. MARSAL: You deny me the right to put on evidence as to his testimony being material?
“THE COURT: Yes, sir.
“MR. MARSAL: We except.”

The reliance on Gwin v. State, 425 So.2d 500 (Ala.Crim.App.1982), cert. quashed, 425 So.2d 510 (Ala.1983), by the Court of Criminal Appeals is misplaced. Gwin correctly states that law concerning the necessity that an offer of proof be made to show that the expected testimony of a witness would not be incriminating in order to predicate error upon a trial court’s refusal to compel the witness to testify. In this case, however, the defendant made every attempt to make such an offer of proof, but was repeatedly cut off by the trial judge in his effort.

We hold, therefore, that the trial court’s error was preserved for review on appeal and, accordingly, reverse the Court of Criminal Appeals and remand the cause for entry of judgment consistent with this opinion.

REVERSED AND REMANDED.

All the Justices concur.


author: TYSON, Judge.

text:
    James Robert REEVES v. STATE.
    1 Div. 702.
    Court of Criminal Appeals of Alabama.
    Jan. 8, 1985.
   TYSON, Judge.

Reversed and Remanded for a new trial on authority of James Robert Reeves, 463 So.2d 177 (Ala.1984).

REVERSED AND REMANDED FOR NEW TRIAL.

All the Judges concur.