text:
    In the Matter of Christy Lynn Tillman WEAVER. Glenda CLARK v. Zeb L. BRISTER and Frankie G. Brister.
    Civ. 4064.
    Court of Civil Appeals of Alabama.
    May 16, 1984.

      Daniel W. Molloy, Mobile, for appellant.
    W. Gregory Hughes, Mobile, for appel-lees.
   BRADLEY, Judge.

Glenda Clark obtained physical custody of Christy Lynn Tillman Weaver in July 1980. At this time Christy was in legal custody of the Mobile County Department of Pensions and Security (DPS). DPS placed Christy with Glenda and her husband, Cíate Clark, Sr., pending a final ruling on returning custody to the child’s natural mother. On January 12, 1981, following a Florida welfare department home study of the Clarks, the natural mother’s parental rights were terminated and the Clarks were awarded permanent custody.

The Clarks were divorced in December 1981. Custody of the three Clark children was awarded to Mr. Clark with the provision that Glenda could petition the court for custody of their youngest son, Aaron, at any time within one year. The Florida court refused to make a ruling respecting custody of Christy, who remained with Glenda.

Beginning in 1982, Glenda, who had been experiencing difficulty arranging day care for Christy around her work and class schedules, began to leave Christy with relatives. Zeb and Frankie Brister, who are relatives, frequently cared for Christy. Mr. and Mrs. Brister kept Christy most of the time between February and May of 1982.Christy returned to live with Glenda from June to October of 1982. Mr. and Mrs. Brister then kept Christy October, part of November, and December of 1982. Christy then returned to live with Glenda in late December of 1982 and stayed until February of 1983. At this time Christy went to stay with Glenda’s cousin, Mrs. Fauver, in Brookhaven, Mississippi until August 28, 1983. The Bristers were to keep Christy from August 28 to September 9, 1983 and then return her to Glenda in Mobile.

On September 15, 1983 the Bristers filed a petition in the Juvenile Court of Mobile County seeking custody of Christy. A hearing was held on October 7, 1983 and, on October 21, 1983, the court granted custody of the minor child to the Bristers and awarded Glenda rights of visitation for one week during the summer and one week at Christmas each year. Glenda filed motions for rehearing and for a mental examination of Mrs. Brister on October 31,1983. These motions were both denied by the court on November 2, 1983 without a hearing. On November 7, 1983 Glenda appealed to this court.

Glenda’s first contention is that the trial court committed reversible error in denying her motion for rehearing and motion for a mental examination without a hearing. She relies on the case of Steel v. Steel, 402 So.2d 1036 (Ala.Civ.App. 1981). Steel was a divorce case which involved several posttrial motions, one of which was a motion for a new trial under rule 59, Alabama Rules of Civil Procedure. The court denied the motion without a hearing.

On appeal, this court held that rule 59(g) requires that a posttrial motion not be ruled on until the parties have had an opportunity to be heard thereon. This court also held that rule 6(d), A.R.Civ.P., requires that notice of the hearing must be served no later than five days before the time set for a hearing. Because neither notice nor a hearing was afforded, the case was reversed and remanded.

In Steel the trial court set the motion for new trial down for a hearing but denied the motion without holding a hearing. In the case at bar no request for a hearing on the motion was made, and the trial court denied the motion for rehearing without a hearing.

In Frederick v. Strickland, 386 So.2d 1150 (Ala.Civ.App.1980), a case similar to Steel, this court held that the trial court had not committed reversible error when it overruled a motion for new trial without holding a hearing. It should be noted that no request for a hearing on the new trial motion was made by either party.

This court said:

“Obviously, they had ample opportunity to request a hearing on their motion. And we consider a reasonable interpretation of the pertinent portion of Rule 59(g) to be that a party have an opportunity to be heard. This means that if the court itself fails to set the motion for hearing and a party wishes to be heard, then that party should request a hearing.”

We consider Frederick to be dis-positive of this issue. Implicit in our interpretation of rule 59(g), A.R.Civ.P., that a party have an opportunity to be heard on its posttrial motion is the requirement that the party request of the court a hearing on its posttrial motion should the court not set the motion for hearing. In the absence of a request for a hearing on the motion for rehearing, the trial court was not in error in ruling on the motion without a hearing.

The trial court’s denial of Glenda’s motion that Mrs. Brister be given a mental examination is also without error.

Glenda’s motion that Mrs. Brister be given a mental examination was made after the trial court had rendered its judgment and at the same time that the rehearing motion was filed.

Whether to grant or deny a motion for a physical or mental examination is a matter within the sound discretion of the trial court, and its decision will not be reversed except for abuse of that discretion. Teche Lines v. Boyette, 111 F.2d 579 (5th Cir.1940).

It has been held that the denial of a motion for a physical or mental examination filed at the same time that the motion for new trial was filed was not an abuse of the trial court’s discretion. Teche Lines, Inc. v. Boyette, supra. In the case before us, the motion for mental examination was made after the trial had ended and judgment had been rendered. In fact, the motion for mental examination was made at the same time that the motion for rehearing was made. The trial court, therefore, did not abuse its discretion by denying the motion.

Glenda’s final contention is that the trial court abused its discretion in depriving her of custody of the child and the award of visitation rights. We disagree.

There is a presumption of correctness which accompanies the judgment of the trial court in every case heard ore tenus. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). There is also a rule of repose applicable to child custody modification cases. Perez v. Hester, 272 Ala. 564, 133 So.2d 199 (1961). To overcome these two rules, there must be evidence of a material change of circumstances occurring since the last custody judgment so affecting the best interests of the child as to necessitate a change of custody. Alford v. Alford, supra. The judgment entered by the court must be so unsupported by the evidence as to be clearly an abuse of the court’s discretion. Quinn v. Quinn, 351 So.2d 925 (Ala.Civ.App.1977).

The evidence shows that when the child was taken from its natural mother and placed with the Clarks the Clarks were married and had a stable home life. Since that time the Clarks have divorced and the child’s life has become very unstable.

The evidence shows that the child has been in Glenda’s care only about one-third of the time that she has had custody. The child has been kept by relatives, including the Bristers, for months at the time.

Since the Bristers have been keeping Christy, she has become well adjusted and appears quite happy. She attends school regularly and participates in church activities where Dr. Brister is the pastor.

We find that the evidence supports the trial court’s change of custody and that its decision is not palpably wrong.

Glenda also says that the trial court’s award of visitation rights to her is in error.

Much discretion is reposed in the trial court in settlement of visitation rights with a child. Hayes v. Hayes, 337 So.2d 770 (Ala.Civ.App.1976). In the exercise of that discretion the trial court is primarily concerned with the best interests of the child. Brothers v. Vickers, 406 So.2d 955 (Ala.Civ.App.1981). The evidence shows that Glenda was not the child’s natural parent, but was awarded custody in January 1981, along with her then-husband, after the natural mother’s parental rights had been terminated. After Glenda and her husband divorced, the child was in the custody of Glenda. However, for the twenty-four months between the divorce and the hearing, the child resided with Glenda for only nine of those months. During the other months the child was living with various relatives, including the Bristers. Glenda also had a live-in boyfriend whom she testified she planned to marry.

The trial court found that the child had become very confused because of the frequent changes in custodians and needed a stable home environment. It found that the Bristers could provide such a stable home life.

Although Glenda was given only two weeks visitation a year, we cannot say that such visitation is so inadequate as to require reversal. Glenda was the child’s custodian for a relatively short period of timé, and, even during that time, she had the child in her physical custody for an even shorter length of time. Accordingly, the trial court could have concluded that Glenda was not all that interested in seeing the child or in being responsible for her care and nurture. We find no error here.

We would observe that child visitation can be changed by the trial court upon proper petition and sufficient proof.

AFFIRMED.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    William R. INGRAM v. CEDAR SPRINGS FEDERAL CREDIT UNION.
    Civ. 4096.
    Court of Civil Appeals of Alabama.
    May 16, 1984.

      Elizabeth R. Herbert of Legal Services Corp. of Ala., Dothan, for appellant.
    Wade H. Baxley of Ramsey & Baxley, Dothan, for appellee.
   BRADLEY, Judge.

This is a Federal Truth-in-Lending Act case.

Cedar Springs Federal Credit Union brought suit against William Ingram to recover on a promissory note. Defendant filed an answer and counterclaim in which he alleged that plaintiff had violated the Federal Truth-in-Lending Act, 15 U.S.C.A. § 1601 et seq. (West 1982), and Federal Regulation Z, 12 C.F.R. § 226.1 et seq. (1983).

The trial court entered judgment in favor of plaintiff for $7,405.19. Defendant filed a motion for clarification or for findings of fact and conclusions of law.

On October 20, 1983 the trial court amended its judgment to find in favor of plaintiff on the note and in favor of defendant on the counterclaim. Thereafter, defendant filed a motion for attorney’s fees with supporting affidavit, which the court denied. Defendant appeals.

The sole issue on appeal is whether a successful counterclaimant is entitled to attorney’s fees when he has been represented by a Legal Services Corporation attorney.

The applicable statute provides that the creditor is liable to the debtor “in the case of any successful action to enforce [civil liability under the TILA]” for “the costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C.A. § 1640(a)(3) (West Supp.1979) (emphasis added). Moreover, the statute does not bar a defendant from recovering attorney’s fees when he is successful on a counterclaim.

“[C]ivil actions to redress violations of the Act may be brought in any court of competent jurisdiction and the provisions of the Act may be raised by way of counterclaim or defense. (Wood Acceptance Co. v. King (1974), 18 Ill.App.3d 149, 309 N.E.2d 403.) Therefore, the counterclaim states a cause of action if it pleads a failure to disclose information which the Act requires to be disclosed.”

Aronson Furniture Co. v. Johnson, 47 Ill.App.3d 648, 7 Ill.Dec. 776, 365 N.E.2d 61 (Ill.App.Ct.1977).

In the instant case defendant was represented by Legal Services of Alabama. Plaintiff contends that because defendant was under no obligation to pay his attorney, Legal Services, he is not entitled to an award of attorney’s fees. We disagree.

The rule is well established that a debtor cannot be denied attorney’s fees because his attorney is employed by a legal aid society or other publicly funded legal service office. Sellers v. Wollman, 510 F.2d 119 (5th Cir.1975); Jones v. Seldon’s Furniture Warehouse, Inc., 357 F.Supp. 886 (E.D.Va.1973); Corn v. Culpepper Sales, 150 Ga.App. 197, 257 S.E.2d 324 (Ga.Ct.App.1979); Merchandise National Bank v. Scanlon, 86 Ill.App.3d 719, 41 Ill.Dec. 826, 408 N.E.2d 248 (Ill.App.Ct. 1980); Robert Levitan & Sons Inc. v. Francis, 88 Misc.2d 125, 387 N.Y.S.2d 35 (N.Y.Sup.Ct.1976). An award of attorney’s fees under the act is not contingent upon the party’s obligation to pay an attorney nor affected by the fact that no fee was charged. Manning v. Princeton Consumer Discount Co., 533 F.2d 102 (3d Cir.), cert. denied, 429 U.S. 865, 97 S.Ct. 173, 50 L.Ed.2d 144, reh’g denied, 429 U.S. 933, 97 S.Ct. 342, 50 L.Ed.2d 303 (1976). Moreover, a denial of attorney’s fees could have a chilling effect on the desire of legal aid societies to represent debtors in TILA cases.

Apparently the trial court held that defendant could not recover an attorney’s fee because Legal Services represented him on the counterclaim.

A successful debtor in a Truth-in-Lending Act and Regulation Z action such as we have in the instant case is entitled to a reasonable attorney’s fee. Lawrence v. Creditthrift of America, Inc., 622 F.2d 1207 (5th Cir.1980); Fulghum v. Termplan Inc., 383 So.2d 191 (Ala.Civ.App.1980). And, a debtor who is represented by a legal aid society is just as entitled to an attorney’s fee as is a debtor who is represented by an employed attorney. Sellers v. Wollman, supra. The statute, i.e. section 1640(a)(3), TILA, directs the award of the attorney’s fee and such an award is not contingent on whether the debtor is or is not charged a fee. Sellers v. Wollman, supra; Jones v. Allied Loans, Inc., 447 F.Supp. 1121 (D.C.S.C.1977).

The trial court’s refusal to award the defendant a reasonable attorney’s fee is reversed and the cause is remanded for the trial court to fix a reasonable attorney’s fee to be awarded to the defendant. Trustees Loan & Discount Co. v. Carswell, 435 So.2d 114 (Ala.Civ.App.1983). The defendant is entitled to an attorney’s fee for the services of his attorney in the trial court and in the appellate court. Fulghum v. Termplan, Inc., supra.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: HOLMES, Judge.

text:
    Steve ROBINSON and One 1971 Ford Truck v. STATE of Alabama.
    Civ. 4126.
    Court of Civil Appeals of Alabama.
    May 23, 1984.

      Sherman B. Powell, Jr. of Powell & Powell and J. Tilden Dillard, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HOLMES, Judge.

This is a vehicle condemnation case.

After an ore terms hearing, the trial court ordered the forfeiture of the owner’s 1971 Ford truck for its involvement in transporting prohibited beverages. The owner through able counsel appeals and we affirm.

The dispositive issue on appeal is whether the evidence supports the trial court’s decree condemning the owner’s vehicle.

Viewing the record with the attendant presumptions accorded the trial court’s action, the following facts are relevant:

A.B.C. agents accompanied by Morgan County deputy sheriffs executed a search warrant for prohibited liquor at a rural residence in Morgan County. The law enforcement officials arrived at the residence just in time to see and hear a red and white truck start up and leave down a dirt road that ran behind the house. The officers could not see the driver at this time.

The law enforcement agents were prevented from giving chase in their vehicle by an abandoned automobile blocking the road. Consequently, one of the officers pursued the fleeing truck on foot cutting off corners through the woods to keep the truck within a reasonable distance. The officer would lose sight of the truck from time to time as it rounded curves and bends in the road, but by following the sound of the truck and running through the woods instead of following the contours of the road, he was able to stay close enough to come up on the truck when it stopped in the road.

The officer was relatively close to the truck when he came up on it from out of the woods and around a curve. The officer could clearly see a man who turned out to be the owner of the truck standing in the bed of the vehicle throwing out cartons of beer. The owner then jumped in the truck and drove away. As the pursuing officer passed the place where the truck had stopped, he saw beer in a stack on the side of the road. He didn’t notice the exact amount, but the officer testified at trial that it was a sizable stack.

The owner was apprehended by the diligent deputy a short distance down the road when the .owner-driver again stopped the truck and got out for certain reasons of a personal nature.

Within a few minutes of the capture of the owner, the truck and the beer were recovered. There were six cases of beer, over five gallons.

The Code of Alabama, § 28-4-115 (1975), prohibits the transportation of prohibited beverages in quantities of five gallons or more. A person nineteen years old or older is allowed possession of a maximum of two cases of tax-paid beer in a dry county. Ala.Code § 28-1-3 (1975).

It is clear from the evidence in this case that the beer in question was more than five gallons and certainly more than two cases. The owner was the only one seen in the truck; he was seen throwing out the beer which was recovered almost immediately. This incident occurred in Morgan County, a dry county. There was no evidence that the beer had Alabama tax paid on it, but as mentioned above the beer was, in any event, more than two cases and over five gallons.

It can be seen from the above that the state has made a prima facie case, unrebutted by the owner, showing the violation of § 28-4-115, Ala.Code (1975), prohibiting the transportation of illegal beverages. Therefore, the seizure, condemnation and forfeiture of the 1971 Ford truck was proper and supported by the evidence. Ala.Code §§ 28-4-284 and -285 (1975); Reno v. State, 265 Ala. 60, 89 So.2d 686 (1956); Liger v. State, 232 Ala. 355, 168 So. 138 (1936).

The owner also raises an issue on appeal as to the state’s burden of proof in certain areas in condemnation cases. Specifically, the owner contends that the state should be required to prove as part of its condemnation case whether or not the illegal beverages in question had been purchased through state liquor stores and whether the state A.B.C. stamp was affixed to the liquor.

To resolve this issue in favor of the owner would require this court to reverse Deerman v. State, 253 Ala. 632, 46 So.2d 410 (1950). The owner, through able counsel, specifically requests this court to overrule Deerman. This court does not possess the authority to overrule any decision of the supreme court; the decisions of the supreme court govern the holdings of the courts of appeal. Ala.Code § 12-3-16 (1975); Jones v. City of Huntsville, 288 Ala. 242, 259 So.2d 288 (1972); C & S Construction Co. v. Martin, 420 So.2d 788 (Ala.Civ.App.1982). Hence, we must follow the law set forth in Deerman. We should not be understood that even if this court had the authority to reverse the holding of Deerman we would do so.

In view of the foregoing, this case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J„ concur.


author: WRIGHT, Presiding Judge.

text:
    Helen U. SPARKS v. Richard SPARKS.
    Civ. 4135.
    Court of Civil Appeals of Alabama.
    May 23, 1984.
    George C. Simpson, Lineville, for appellant.
    John E. Rochester of Thompson & Rochester, Ashland, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

Appellant, Helen Sparks (mother), and appellee, Richard Sparks (father), were divorced July 27, 1982. The mother was given custody of the parties’ two minor children, Justin and Jody, ages eight and six respectively. The father was granted certain specified visitation rights.

In August 1983, father petitioned the Clay County Circuit Court for modification of the original divorce decree, alleging a material change of circumstances affecting the best interest of the minor children. Specifically father alleged that mother allowed various men to stay overnight in her bedroom while the children were in the home, that mother performed sexual acts with various male visitors while the children were home, that mother has contracted genital herpes, a serious medical virus which is contagious and dangerous to the children, and that mother does not properly care for the children in that they are not properly fed or clothed and are often left alone unsupervised.

Following an ore tenus hearing, the court entered an order modifying the prior final judgment, transferring full care, custody and control of the minor children from mother to father, based on its finding that “[Ejvidence shows that a substantial change of circumstances has taken place in the lives of the parties so as to indicate ... that the best interests of the minor children require a change in the primary care, custody and control of the children.” Mother subsequently filed a motion for a new trial which the court denied. Mother appeals.

The only issue raised on appeal is whether the trial court erred in its decision to modify the prior judgment of divorce. Mother contends that the court erred in that its decision was neither supported by the law nor the evidence.

In a proceeding to modify a prior custody decree the court must apply a two-pronged test: “[Wjhether it is in the best interest of and welfare of the child to change custody, and whether the party seeking modification has alleged and shown a change in conditions which will justify modification.” Quintanilla v. George, 340 So.2d 804, 807 (Ala.Civ.App.), cert. denied, 340 So.2d 808 (Ala.1976).

In the present case the trial judge heard the case ore tenus. Therefore, his decision is presumed correct on review by this court. Davis v. Davis, 365 So.2d 80 (Ala.Civ.App.1978). “[I]n child custody cases especially, the intent perception of an attentive trial judge is of great importance .... [W]e are not permitted to reverse ... unless the judgment is so unsupported by the evidence that it constitutes an abuse of judicial discretion and was, thus, clearly and palpably wrong.” Fassina v. Fassina, 401 So.2d 113, 115 (Ala.Civ.App.1981).

Our review of the record indicates there is evidence supportive of the determination that it is in the children’s best interest to give custody to the father. The evidence, including the mother’s own admission, tended to show her sexual promiscuity with at least two men while the children were at home. We have said that an occasional sexual, indiscretion does not necessarily require a change in custody. Etheridge v. Etheridge, 375 So.2d 474 (Ala.Civ.App.1979). We have not said that sexual indiscretions may not support a change in custody. In this case, additional evidence revealed that the children were left alone and unsupervised while the mother was away from home. Witnesses testified that mother had fits of emotional rage and depression and that on one occasion, while Jody was present, she cut her wrist in an aborted suicide attempt. On yet another occasion mother threw a temper tantrum and smashed a telephone onto a glass tabletop, cutting both herself and Jody, who was nearby. Testimony indicated other acts of irresponsible behavior which left the children upset and shaken, such as driving recklessly fast with the children in the car after an outburst of anger. The testimony of both the mother and her physician tended to show that she contracted genital herpes as a result of sexual affairs.

Evidence in the record, such as the foregoing, is clearly supportive of the trial court’s decision. Finding no abuse of discretion or palpable error, we affirm the decision of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Sharon Duquet CAPPER v. Robert Neil CAPPER.
    Civ. 4160.
    Court of Civil Appeals of Alabama.
    May 23, 1984.
    Reggie Copeland, Jr. of Nettles, Barker & Janecky, Mobile, for appellant.
    Thomas A. Deas, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from an order terminating alimony.

Sharon Duquet Capper and Robert Neil Capper were divorced in Mobile County Circuit Court on April 15, 1977. The final decree of divorce granted custody of the couple’s two minor children to Mrs. Capper and ordered Mr. Capper to pay $950 per month in child support. On May 13, 1982, the court modified its original decree, reclassifying $300 of the $950 monthly child support as alimony and ordering Mr. Cap-per to pay tuition, books and uniforms for his minor children’s parochial school education. Mr. Capper appealed here, asserting that the court’s order as amended violated his rights under Article 1, Section 3 of the Alabama Constitution. We held that he was responsible for his children’s educational expenses even though incurred at a parochial school, 428 So.2d 86.

On August 17, 1983, Mr. Capper petitioned for modification, averring that his ex-wife was living openly or cohabiting with another man and requesting that her alimony be terminated pursuant to § 30-2-55, Code of Alabama 1975. After an ore tenus hearing the trial court granted his petition, ordering that the $300 per month in alimony be terminated. After her motion for reconsideration was denied, Mrs. Capper appealed here.

The sole issue before us on appeal is whether there is sufficient evidence to support the trial court’s determination that Mrs. Capper was cohabiting or living with another man within the meaning of § 30-2-55.

Section 30-2-55 provides that:

“Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex. This provision shall be applicable to any person granted a decree of divorce either prior to April 28, 1978, or thereafter; provided, however, that no payments of alimony already received shall have to be reimbursed.”

As stated in Hicks v. Hicks, 405 So.2d 31 (Ala.Civ.App.1981), though the party seeking relief under § 30-2-55 must prove more than an occasional post-marital indiscretion, he need not prove a habitual living arrangement between the former spouse and cohabitant arising to the level of a common law marriage. Establishing cohabitation requires only that proof be presented indicating some permanency of relationship, coupled with more than occasional sexual activity between the cohabi-' tants. Hicks, supra. Such factors as the former spouse’s ceasing to date anyone other than the alleged cohabitant, payment of the former spouse’s debts by the alleged cohabitant, and purchase of clothes for the former spouse by the alleged cohabitant may be considered as factors indicating a permanency of relationship, permanency may also be manifested by the former spouse sharing a dwelling with a member of the opposite sex. Hicks, supra.

Whether cohabitation exists is a factual determination for the trial judge in each case. Tucker v. Tucker, 416 So.2d 1053 (Ala.Civ.App.1982). This court will not reverse such a determination unless, after considering all the evidence and reasonable inferences drawn therefrom, we conclude that it is not supported by the evidence. Tucker, supra.

In view of the evidence presented that between August 1, 1983 and August 23, 1983, Mrs. Capper’s long-time paramour lived in her apartment, kept his clothes and other personal property there, contributed money to household expenses, ate his meals there, shared Mrs. Capper’s bed and frequently engaged in sex with her, we find sufficient evidence to support the trial court’s determination of cohabitation. Therefore, we perceive no error in the court’s termination of alimony.

All requests for attorney fees on appeal are denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM.

text:
    Bennie C. GATSON v. INTEGRITY INSURANCE COMPANY, a corporation, and Annette Smith.
    Civ. 4183.
    Court of Civil Appeals of Alabama.
    May 23, 1984.
    Edward L. Ramsey, Birmingham, for appellant.
    Bert P. Taylor of Smith & Taylor, Birmingham, for appellees.
   PER CURIAM.

This is an uninsured motorist case.

The plaintiff, Bennie C. Gatson, sued Annette Smith and Integrity Insurance Company (Integrity), alleging that the plaintiff had been injured and damaged in an automobile accident on May 25, 1983 as a proximate result of the tort of the defendant Smith, who was an uninsured motorist, and that Integrity had insured the plaintiff for losses caused by bodily injury resulting from the use of an uninsured motor vehicle.

Both Integrity and the plaintiff requested admissions from each other and responses were made to the requests. Integrity filed a motion for a summary judgment and the trial court granted a summary judgment in Integrity’s favor and against the plaintiff. It was entered by the trial court as a final judgment under the provisions of rule 54(b) of the Alabama Rules of Civil Procedure. The plaintiff has appealed and we have been provided with excellent briefs from both sides.

From the requests for admissions and the responses thereto and the rest of the record, the following admitted and undisputed facts appear. On January 23, 1983 the plaintiff obtained insurance upon a 1980 Cadillac Seville automobile from Integrity. The policy contained the following exclusionary provision as to uninsured motorist coverage contained therein:

“A. We do not provide uninsured motorist coverage for bodily injury sustained by any person:
“1. While occupying, or when struck by, any motor vehicle owned by you or any family member which is not insured for this coverage under this policy. This includes a trailer of any type used with that vehicle.”

That policy was in effect on May 25, 1983 when the plaintiff was driving a 1967 Pontiac GTO automobile which he owned. At that time he was injured in the accident with the defendant Smith who, for the purposes of this appeal, may be considered as an uninsured motorist. The Pontiac GTO was not listed as an insured vehicle in Integrity’s policy and was itself an uninsured vehicle.

The determinative question is whether the owned automobile exclusion in the policy is valid and enforceable in Alabama or whether it is void as violating the following pertinent provisions of the uninsured motorist statute:

“No automobile liability ... policy ... shall be delivered or issued for delivery in this state ... unless coverage is provided therein ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury ....”

§ 32-7-23, Code 1975. We must conclude that the exclusion violates the statute and is void on that account.

Courts in other jurisdictions have determined similar policy exclusions to be invalid under equivalent state statutes. Kau v. State Farm Mutual Automobile Insurance Co., 58 Haw. 49, 564 P.2d 443 (1977); State Farm Mutual Automobile Insurance Co. v. Robertson, 156 Ind.App. 149, 295 N.E.2d 626 (1973); Bourgeois v. United States Fidelity & Guaranty Co., 385 So.2d 584 (La.Ct.App.1980). In the Bourgeois case it was stated, “As long as a claimant is insured under the policy, he is entitled to UM coverage whether or not he is driving a vehicle listed or covered under the policy, unless the named insured has rejected the UM coverage.” 385 So.2d at 586. Here, Integrity makes no claim that the plaintiff had rejected uninsured motorist coverage upon the Pontiac GTO. The plaintiff had no insurance upon it.

It is not necessary, however, to rely upon the decisions of other states, for the law of Alabama appears to be settled upon the issue.

In State Farm Automobile Insurance Co. v. Reaves, 292 Ala. 218, 292 So.2d 95 (1974), it was held that a policy exclusion was void which excluded from uninsured motorist coverage “ ‘bodily injury to an insured while occupying ... a land motor vehicle owned by the named insured ... if such vehicle is not an owned motor vehicle.’ ” According to the policy definitions, an owned motor vehicle was a motor vehicle which was described in the policy declarations. While the language of the policy in the Reaves case was.more formal and stilted than in Integrity’s policy, the exclusions in both policies were identical as to actual meaning. The Reaves case stated as follows:

“Thus, in the absence of any language in the statute authorizing the exclusion, no exclusion for injuries suffered while driving a vehicle ‘not an owned motor vehicle’ (i.e. not listed in that particular policy) may be created by the policy. While there may be some argument which may be made in favor of such an exclusion, the fact remains that the statute mandates coverage and the legislature did not see fit to provide for such an exclusion. Higgins v. Nationwide Mutual Insurance Co., [291 Ala. 462, 282 So.2d 301 (1973) ].”

292 Ala. at 224, 292 So.2d at 100. Able counsel for Integrity has diligently attempted to distinguish the Reaves case from the present issue; however, we are not convinced that the rationale of the Reaves case is not here applicable.

The law from the leading cases of our supreme court upon the problem of policy exclusions to uninsured motorist coverage has been ably summarized as follows:

“A careful reading of the underlined portions of the decisions in the Higgins and Reaves cases convinces this court that the supreme court has taken the position ‘that where an exclusion in a policy is more restrictive than the Uninsured Motorist Statute, it is void and unenforceable.’ Furthermore, ... the supreme court in Higgins and Reaves said that in the absence of an exclusion in the Act, none is authorized to be read into it. In other words the legislature could have authorized exclusions in the uninsured motorist statute but not having done so, no such exclusions are permitted. The inclusion of such provisions in the uninsured motorist section of an automobile liability insurance policy tends to limit or restrict the uninsured motorist coverage and thereby conflicts with the Act.”

Alabama Farm Bureau Mutual Casualty Insurance Co. v. Mitchell, 373 So.2d 1129, 1134 (Ala.Civ.App.1979). The reasons for that rule as stated in the prior cases are extensively quoted in the Mitchell opinion and will not be here reiterated.

We are required to follow the decisions of the supreme court. § 12-3-16, Code 1975. The exclusion in Integrity’s policy was void and unenforceable in Alabama as being contrary to the provisions of § 32-7-23, Code 1975. The policy provision is more restrictive than the uninsured motorist coverage required by that statute to be afforded for “the protection of persons insured.” Therefore, the learned and respected trial court erred in granting Integrity’s motion for a summary judgment and we reverse that final judgment and remand the matter to the circuit court.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Glennon HOPPINS v. STATE.
    3 Div. 627.
    Court of Criminal Appeals of Alabama.
    Dec. 28, 1982.
    Rehearing Denied Feb. 1, 1983.

      B.F. Lovelace, Public Defender, Brewton, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

This is an appeal from the dismissal of two petitions for writ of habeas corpus.

The circuit court granted the State’s motion to dismiss on the grounds that petitioner failed to comply with the terms of Alabama Code Section 12-19-70 (1975). That section provides there “shall be a consolidated civil filing fee, known as a docket fee, collected from a plaintiff at the time a complaint is filed in circuit court or in district court.” This fee may be waived initially and taxed as costs at the conclusion of the case if the court finds that payment of the fee will constitute a substantial hardship. The section provides that “a verified statement of substantial hardship, signed by the plaintiff and approved by the court, shall be filed with the clerk of the court.”

With each petition for writ of habeas corpus, petitioner filed a “motion for leave to proceed in forma pauperis” and verified “affidavit of poverty.”

The same day the circuit court granted the State’s motion and dismissed the petitions, it “ascertained the petitioner is indigent within the meaning of the statute of the State of Alabama and is without funds to defray any portion of the expenses.”

On July 20, 1982, the defendant filed notice of appeal and a “motion and affidavit in support of motion for leave to appeal in forma pauperis”, which was granted on July 22nd.

It is our judgment that the trial court erred in dismissing the defendant’s petition for a writ of habeas corpus because of his failure to pay the docket fee prescribed by Alabama Code Section 12-19-70 (1975).

To impose any financial consideration between an indigent prisoner and the exercise of his right to sue for his liberty is to deny that prisoner equal protection of the laws. Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961). “While habeas corpus may, of course, be found to be a civil action for procedural purposes, ... it does not follow that its availability in testing the State’s right to detain an indigent prisoner may be subject to the payment of a filing fee.” Smith, 365 U.S. at 712, 81 S.Ct. at 897.

“(I)n order to prevent ‘effectively foreclosed access’ (to the courts), indigent prisoners must be allowed to file appeals and habeas corpus petitions without payment of docket fees.” Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977). See also Burns v. Ohio, 360 U.S. 252, 257, 79 S.Ct. 1164, 1168, 3 L.Ed.2d 1209 (1959), and In Re Green, 669 F.2d 779 (D.C.Cir.1981), involving “in all likelihood the most prolific prisoner litigant in recorded history.”

The action of the circuit court granting the State’s motion to dismiss on the ground that the petitioner failed to pay the docket fee required by Section 12-19-70 is reversed. This cause is remanded with directions that the indigent petitioner be allowed to file his petition for writ of habeas corpus without payment of any filing or docket fee.

REVERSED AND REMANDED WITH DIRECTIONS.

All Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex Parte: State of Alabama (Re: Glennon HOPPINS v. STATE of Alabama).
    82-431.
    Supreme Court of Alabama.
    May 6, 1983.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for petitioner.
    B.F. Lovelace, Brewton, for respondent.
   TORBERT, Chief Justice.

Glennon Hoppins filed two petitions for writ of habeas corpus, pro se, in the Circuit Court of Escambia County, Alabama. The trial court dismissed his petitions because he had failed to pay the docket fee prescribed by Code 1975, § 12-19-70. The Court of Criminal Appeals reversed. 451 So.2d 363.

The only issue presented on appeal is whether the appellate court erred in its application of 45B, A.R.A.P. That rule states:

“In all cases appealed to the Court of Criminal Appeals, except those in which the death penalty has been imposed, the Court of Criminal Appeals shall consider only questions or issues presented in briefs on appeal.”

Rule 45B, A.R.A.P.

In its brief, the State argues that because the petitioner filed no brief and therefore raised no issues on appeal, the Court of Criminal Appeals erred in reviewing the record on appeal. We disagree.

This Court approved Rule 45B, A.R.A.P. (effective January 1,1982), which abolished the “search the record rule” set out in Code 1975, § 12-22-240. That statute stated in part that the Court of Criminal Appeals “must consider all questions apparent on the record or reserved in the circuit court.” Code 1975, § 12-22-240. In approving Rule 45B, this Court did not intend to restrict the authority of the Court of Criminal Appeals to consider obvious errors, but we instead intended to say that that court was no longer obligated to search the record. Any language in Rule 45B indicating otherwise is contrary to the intended effect of that provision.

WRIT DENIED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


author: HUBERT TAYLOR, Judge.

text:
    Michael Coleman JONES v. STATE.
    1 Div. 437.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-684.
    W. Gregory Hughes, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Michael Coleman Jones, was convicted of burglary in the first degree and sentenced to life imprisonment. Two issues are presented on appeal.

I

Jones’s first issue questions the legality of the police search of his home. Jones contends that no consent for the search was given or, alternatively, that it was obtained either while he was intoxicated or by the use of fear and coercion.

The transcript of the suppression hearing clearly indicates that Jones was lucid enough to understand the ramifications of his actions. Jones’s own testimony indicates that he remembers specific questions put to him by police officers, as well as other details of the event. There was no evidence offered during the suppression hearing that would indicate that fear or coercion was used to obtain the consent to search.

The issue, as the trial judge clearly recognized, was who to believe in regard to whether consent was actually given. During the hearing, substantial evidence was introduced which indicated that consent was given. The trial judge did not err by admitting the evidence. Hollander v. State, 418 So.2d 970 (Ala.Cr.App.1982).

II

Jones’s other issue concerns the judge’s action in quashing the subpoena of an eyewitness.

The underlying incident which led to this trial was a particularly depraved case of rape, sodomy, and burglary. The victims were a twenty-eight-year-old woman and her seven-year-old son. The rapist/burglar was masked during the incident except for a brief time when the son was not present. The woman, immediately upon the arrival of the police, identified the attacker as her next door neighbor of six years. Additionally, other evidence pointed to Jones as the perpetrator of the crime.

The defense subpoenaed the son, an eyewitness to a portion of the crime and victim of a sexual assault, for the purpose of having him tell the jury he did not know who the attacker was. The evidence tended to indicate that the attacker’s identity was revealed only to the woman, so the boy’s probable testimony, at best, would show that he had no opportunity to learn the attacker’s identity.

More importantly by far, however, was the evidence produced at the hearing on the motion to quash that indicated that the boy was incapable of reciting or testifying about the event in question. A doctor and social worker, who had examined the boy, testified that he had “blocked out” the event and could not recite any details of the attack. The hearing on the motion was very thorough, and the rights of Jones were honestly examined throughout the proceeding. At the conclusion of the hearing, the judge determined that the boy was incompetent to testify. We agree.

Although we are aware of Jones’s Sixth Amendment rights and feel that it would be poor precedent to allow the prosecutor to interfere with the presentation of defense witnesses, in this case the competency of the child was a legitimate question properly decided by the trial judge. Smith v. State, 380 So.2d 345 (Ala.Cr.App.1980); C. Gamble, McElroy’s Alabama Evidence § 94.01(2) (3d ed. 1977).

The judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Vernon James KING v. STATE.
    1 Div. 608.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-661.
    Stephen K. Orso, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, Vernon James King, was convicted of possession of a pistol after conviction of a crime of violence, possession of codeine, possession of marijuana, and escape in the third degree. He was placed on probation. He was subsequently charged with receiving and concealing stolen property. The trial judge, after a hearing, issued an order revoking King’s probation. This is an appeal from the revocation order.

King raises three issues on appeal, but we reach only one. He contends that his probation revocation must be reversed because the trial judge did not make a written statement as to the evidence relied on and the reasons for revoking .probation, as required in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

A search of the record reveals that the trial judge did, in fact, fail to prepare a written statement of his findings. In revoking probation, the trial judge must make a written statement as to his findings. Taylor v. State, 405 So.2d 55 (Ala. Cr.App.1981); Borst v. State, 377 So.2d 3 (Ala.Cr.App.1979).

The order of the lower court is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: TYSON, Judge.

text:
    Allen Dale CLARK v. STATE of Alabama.
    1 Div. 619.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-650.

      Arthur P. Clarke, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., P. David Bjurberg and Ed Carnes, Asst. At-tys. Gen., for appellee.
   TYSON, Judge.

Allen Dale Clark was indicted for the intentional killing of one William Crawford during the course of a robbery in the first degree, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. The jury found the appellant “guilty of the capital offense as charged in the indictment” and recommended the appellant be sentenced to “life imprisonment without parole.” After independently weighing the aggravating and mitigating circumstances, the trial judge accepted the jury’s advisory verdict and sentenced the appellant accordingly.

On the night of December 21, 1981, the victim and the appellant were at the Bar C Lounge, along with Mary Wilson and Mary Pfitzner, who were the barmaids. The victim bought the appellant several drinks and at some point the appellant told Wilson he was “going to roll the old dude before the night was over.” (R. 161).

While at the bar, the appellant used a large buck knife to open a can of oil for Ms. Wilson. He put the oil in her car and placed the knife back in his pocket. The knife was found in the appellant’s possession when he was arrested and a small amount of blood was on the knife.

At approximately midnight, the appellant and the victim left the bar together in the victim’s Oldsmobile Cutlass automobile. Before the appellant left he asked Ms. Pfitzner to keep an eye on his car for him. When she left the bar around 1:00 a.m., the appellant’s car was still parked outside.

According to the appellant, when he and the victim left the bar, they went to the victim’s room at Palmer’s Hillcrest Motel. At the motel, the victim, who allegedly was a homosexual, made sexual advances toward the appellant. The appellant objected and asked the victim to take him to his car. When he refused,'the appellant shoved him, ran out the door and left in the victim’s automobile.

The appellant then drove to Mississippi where he traded the victim’s Oldsmobile Cutlass for a Volkswagon.

On the afternoon of December 22, 1981, the body of William Crawford was found in a room at Palmer’s Hillcrest Motel in Irv-ington, Alabama. The cause of the victim’s death was determined to be a stab wound to the heart.

I

The appellant claims he was denied a fair trial and due process of law because the jury in his case was death qualified under the requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). He contends this practice produced a jury which was conviction-prone and which did not represent a cross-section of the community, and thus, violates the principles set out in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The appellant relies on a recent case, Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), as authority. In Grigsby, supra, a federal district judge ruled that death qualified juries are “conviction-prone” and that a jury that has been death qualified cannot be considered fair and impartial with respect to the issue of the guilt or innocence of an accused.

First of all, as the State correctly points out in its brief, we are not bound by the decisions of any federal district court. See Ballew v. State, 292 Ala. 460, 296 So.2d 206 (1974).

Secondly, the very issue which the appellant now raises has been considered and decided adversely to the decision rendered in Grigsby, supra, by numerous state courts, the United States Eleventh Circuit, and most importantly, the United States Supreme Court.

In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the United States Supreme Court held that death qualified juries do not violate the principles of Taylor v. Louisiana, supra. Recently, this court in an opinion authored by Judge H. Bowen, Taylor v. State, 442 So.2d 128 (1983), stated that an accused is not necessarily prejudiced by the practice of qualifying the jurors pursuant to Witherspoon v. Illinois, supra, requirements. This court has also rejected the contention that death qualified juries are conviction-prone. McGinnis v. State, 382 So.2d 605 (Ala.Cr.App.1979), cert. denied, 382 So.2d 609 (Ala.1980).

Therefore, in the light of decisions directly on point, we hold that the appellant was not denied a fair and impartial trial according to the standards set out in Taylor v. Louisiana, supra, simply because the jury was death qualified. There is no error on this issue.

II

The appellant’s contention that one of the prospective jurors was improperly excluded under the requirements of With-erspoon v. Illinois, supra, is without merit. Since the appellant was not sentenced to death, Witherspoon is not applicable. See Davis v. State, 440 So.2d 1191 (1983); Eady v. State, 284 Ala. 327, 224 So.2d 876 (1969); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

III

The appellant claims his Fourth Amendment rights were violated because the police officers arrested him in his home without an arrest warrant. Therefore, he contends the admission of this statement, which was obtained as a result of this alleged illegal arrest and detention, was reversible error. We disagree.

The appellant relies on Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) for this proposition. The United States Supreme Court in Pay-ton, supra, states that “... the Fourth Amendment to the United States Constitution ... prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” (Emphasis added). The Court states clearly that “... in both cases we are dealing with entries into homes made without the consent of any occupant.”

In this case, as the State points out in its brief, there is little evidence in the record concerning the facts and circumstances surrounding the appellant’s arrest. The only testimony concerning the arrest came from Officer Estes. As the arresting officer, he stated that when he and Officer Tillman arrived at the appellant’s home to make the arrest, the appellant did not offer any resistance and went with them voluntarily to the police station. The appellant offers no evidence that he did not consent to the officers’ entry or the arrest.

Therefore, the appellant incorrectly relies on Payton, supra, as authority. We find from the evidence contained in this record, that the officers made a warrant-less but consensual entry into the appellant’s home to make this arrest.

Since the appellant does not argue the officers lacked probable cause to effectuate his arrest, we will not delve into that issue. From the little evidence contained in the record, we are of the opinion that the officers did have probable cause to make this arrest.

We find the appellant’s arrest was proper and, therefore, his statement was correctly admitted into evidence.

IV

The appellant objected to'the admission into evidence of certain photographs on the ground that the prejudicial impact of those photographs far outweighed any probative value they might have.

This court has stated on numerous occasions that:

“Photographs are admissible in evidence if they have ‘some tendency to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some evidence offered or to be offered.’ Baldwin v. State, 282 Ala. 653, 655, 213 So.2d 819, 820 (1968). In addition, photographic exhibits are admissible even though they may be cumulative, demonstrative of undisputed facts, Craft v. State, 402 So.2d 1135 (Ala.Cr.App.1981), or gruesome, McKee v. State, 33 Ala.App. 171, 31 So.2d 656 (1947). So long as the exhibits tend to shed light on the issues being tried, their admission is within the sound discretion of the trial judge. Thornton v. State, 369 So.2d 63 (Ala.Cr.App.1979).”

Hopkins v. State, 429 So.2d 1146 (Ala.Crim.App.), cert. denied, 429 So.2d 1146 (Ala.1983).

The trial judge did not allow into evidence every photograph the State sought to introduce. At the motion to suppress hearing, he excluded some photographs because they were irrelevant. We do not find an abuse of his discretion on this issue. Therefore, the photographs at issue were properly admitted.

V

The appellant asserts the alleged murder weapon was improperly admitted into evidence because the State failed to show a proper chain of custody.

“To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain. Dennison v. State, 259 Ala. 424, 427, 66 So.2d 552 (1953); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109 (1975); Jemison v. State, 40 Ala.App. 581, 120 So.2d 748 (I960).” Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert. den., 346 So.2d 1180 (Ala.1977).

We find it unnecessary to detail the chain of custody of the knife because after a review of the record, we believe the State sufficiently established a proper chain of custody of State’s Exhibit 27. Therefore, it was properly admitted into evidence.

VI

The appellant contends the State failed to prove a prima facie case because the State did not properly prove the time of the victim’s death and the State did not prove the robbery occurred before, or at the same time as this homicide.

The appellant failed to cite any authority (and we did not find such) for the proposition that the time of death must be established before a conviction of capital murder may be obtained. The only time element which must be established under § 13A-5-40(a)(2), Code of Alabama 1975 is that the State must prove the intentional murder occurred during the course of the robbery in question.

Even in those cases when a pathologist testifies as to the time of death, he cannot pinpoint the “actual moment of death.” In most instances, a pathologist can only give, at best, a several hour time span in which the victim had died. Furthermore, we believe the State did prove that the victim was killed within a particular time frame. In the State’s case in chief, one of the witnesses testified the victim was last seen leaving the Bar C Lounge with the appellant. The appellant’s statement was admitted in which he stated he was with the victim at his motel in the early morning hours of December 22, 1981. The owner of Palmer’s Hillcrest Motel found the victim’s body some twelve hours later. There was no testimony that the victim was seen by anyone other than the appellant after they left the Bar C Lounge around midnight on the above date. Therefore, we believe the State did prove that the victim was killed sometime between midnight and 1:30 p.m., on December 22, 1981.

Therefore, there is no merit to the appellant’s contention that his motion to exclude should have been granted because the State did not prove the robbery occurred prior to the killing.

“In Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), the Alabama Supreme Court held that the fact that the victim was dead at the time the property was taken would not militate the crime of robbery if the intervening time between the murder and the taking formed a continuous chain of events. See also Baker v. State, Ala.Cr.App., 344 So.2d 547 (1977). In the instant case the intervening time, if any there be, formed a continuous chain of events.”

Clements v. State, 370 So.2d 708 (Ala.Cr.App.1978), aff’d, in pertinent part, Ex Parte Clements, 370 So.2d 723 (Ala.1979). See also Bufford v. State, 382 So.2d 1162 (Ala.Crim.App.), cert. denied, 382 So.2d 1175 (Ala.1980).

At the time the three opinions cited above were rendered, our present capital statute was not in effect. However, the rationale of those cases is sound and will be here applied to the case at bar.

As the Alabama Supreme Court stated in Cobern v. State, supra:

“The jury had the right to infer from the proven facts and circumstances that the robbery began when the attack took place and was consumated when defendant took the car and fled ...”

From our review of the record, there was sufficient evidence presented by the State, from which the jury could infer that the appellant was guilty of the capital offense charged, beyond a reasonable doubt. Therefore, the appellant’s motion to exclude was properly denied.

VII

The appellant urges that the refusal of the trial judge to charge the jury on the lesser included offense of manslaughter was error. We do not agree.

When an accused denies committing the offense charged itself, he is not entitled to charges on lesser included offenses. Daly v. State, [Ms. 4 Div. 156, October 4, 1983], 442 So.2d 143 (Ala.Crim.App.1983); Parker v. State, 337 So.2d 1378 (Ala.Cr. App.1976); Williams v. State, 377 So.2d 634 (Ala.Cr.App.1979).

At trial, the appellant explicitly denied killing the victim. Since the evidence at trial clearly demonstrated that, if the appellant was not guilty of the offense charged, he was innocent, then he was not entitled to a charge on the lesser included offense of manslaughter.. Daly v. State, supra. Cooper v. State, 364 So.2d 382 (Ala.Cr.App.), cert. denied, 364 So.2d 388 (1978).

Furthermore, a charge on a lesser included offense is not proper unless there is a reasonable theory from the evidence to support such a proposition. Daly v. State, supra, Ala.Code, § 13A-1-9 (1975); Weldon v. State, 50 Ala.App. 477, 280 So.2d 183 (1973); Pennell v. State, 429 So.2d 679 (Ala.Cr.App.1983).

“(a) A person commits the crime of manslaughter if:
(1) He recklessly causes the death of another person, or
(2) He causes the death of another person under circumstances that would constitute murder under section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.” Ala. Code, § 13A-6-3 (1975).

The appellant presented absolutely no evidence that he recklessly killed the victim or that he killed him in the heat of passon due to provocation. In fact, as we discussed earlier, the appellant stated he did not kill the victim.

There was absolutely no reasonable theory presented at trial which would have supported a charge on manslaughter. Therefore, the trial judge correctly refused to charge the jury on the lesser included offense of manslaughter in this cause.

We have examined this record and find it free of error. For the reasons stated above, the judgment of the trial court is due to be and is hereby affirmed.

Affirmed.

All the Judges concur.


text:
    Donald Ted WATSON v. STATE.
    1 Div. 699.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.

      James H. Lackey, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

This is an appeal from a denial of a petition for writ of error coram nobis in which petitioner alleged ineffective assistance of counsel. The petition was denied without an evidentiary hearing.

The sworn petition contains specific charges against trial counsel for appellant. These allegations or charges are not mere conclusions but meet the requirements this court has set forth in many cases.

Without ruling on the truth or substance of the allegations, we conclude that petitioner is entitled to an evidentiary hearing at the trial court level. David v. State, 416 So.2d 778 (Ala.Cr.App.1982).

Accordingly, we have no alternative but to remand this cause with instructions that the appellant be given an evidentiary hearing on the matters set forth in the petition.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.


author: PATTERSON, Judge.

text:
    Donald Ted WATSON v. STATE.
    1 Div. 699.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
   ON RETURN TO REMAND

PATTERSON, Judge.

On return to remand, 451 So.2d 373, the record indicates that an evidentiary hearing was held in compliance with our opinion issued on January 10, 1984. That hearing dealt with an issue raised in a petition for writ of error coram nobis that alleged ineffective assistance of counsel.

At the hearing, where Watson was present and represented by counsel, the allegations of his petition were answered by the attorney who represented petitioner at his trial for first degree robbery.

After an examination of the record in that hearing, we find that the lower court had adequate basis upon which to deny the petition and motion to vacate judgment and order, since Watson did not meet his burden of submitting “clear, full and satisfactory proof which extends beyond a mere balancing of probabilities to clearly and convincingly satisfy the court on the merits and allegations of the petition”. Corley v. State, 397 So.2d 223 (Ala.Crim.App.), cert. denied, 397 So.2d 225 (Ala.1981).

The trial court’s denial of this petition, as well as the motion to vacate judgment and order, was entirely proper. The appellant’s contention that he was denied effective assistance of counsel is not supported by the record. Trammell v. State, 420 So.2d 855 (Ala.Crim.App.1982), and authorities therein cited.

Consequently, the judgment of the lower court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Terry Kent RINGSTAFF v. STATE.
    3 Div. 598.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 1, 1984 Alabama Supreme Court 83-652.

      Eric A. Bowen, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence to life imprisonment for murder, a jury having found defendant guilty of the lesser included offense of murder on a trial under an indictment charging him with the capital crime of intentionally killing Mary Henderson in the course of his robbery or attempted robbery of her “in violation of Section 13A-5-31(a)(2) of the Code of Alabama.” Sections 13A-5-30 through 13A-5-38 were repealed by Acts 1981, No. 81-178, § 20, effective July 1, 1981, which provided, however, at page 203, it “shall not affect the application of pre-existing law to conduct occurring prior to July 1, 1981.” The date of the alleged crime was June 10, 1980. The verdict finding the defendant guilty of murder was in accordance with the court’s oral instruction that the expressly charged crime included the lesser crime of murder.

None of the numerous witnesses on the trial testified that he or she saw or heard the occurrence that resulted in the death of the alleged victim at her home at 715 Central Street, Montgomery. The'first witness who testified in detail as to what was observed inside the home of the alleged victim was Lt. Sidney T. Williams, of the Montgomery Police Department, who said that the dispatcher notified him that there had been an apparent death at 715 Central Street that seemed to require investigation, to which he promptly responded and arrived about the same time as the paramedics at about 8:00 P.M. on June 10, 1980. He testified that when he entered the front door he “noticed an elderly black female lying on her back” who was “tied hand, feet, and also an object tied around her mouth” and was not moving. He further testified:

“The paramedics were leaning over her, and that’s when I saw that there wasn’t any signs and there was an apparent death involved. And I asked them to back off and I immediately called back to headquarters to advise them of what we found, and to get investigators en route. And I stood by, more or less, until my first patrol unit arrived on the scene, and advised them to get in certain areas around the house to secure the scene until investigators arrived.”

Investigator and Evidence Technician Marty Cochran, of the Montgomery Police Department, testified that she arrived on the scene at approximately “five, ten minutes after eight o’clock” and saw the body of “Mrs. Henderson,” that she stayed at the scene about five hours and took a number of pictures that were introduced in evidence. She said the body of the victim was “tied up and gagged, bound” and remained in that condition for about an hour and a half after the witness arrived at the scene, when the body was then transported “away from her house.”

Dr. Richard Roper, as Supervisor of the Montgomery Regional Laboratory of Alabama Department of Forensic Sciences, testified that he performed an autopsy on the body of the alleged victim, which commenced a short time before midnight and lasted about two hours. He determined that the victim had been dead about four hours prior to his examination of her and that “the death occurred as a result of asphyxiation due to binding of the mouth with obstruction of the airways by the tongue.”

Vaste Pitts, a close neighbor of the alleged victim, testified she saw on the afternoon of June 10, 1980, an automobile parked next to the victim’s house and two men come out of the house and get in the automobile and leave. She soon thereafter took a bath and went to the victim’s house and “the next thing I seen was one of her feet. And I just broke out of the house hollering” and her grandson called the police and “plenty of them” came out there. As to the identity of the men, she testified:

“Q. And let me just back up then. One more thing. These two black men that you saw leaving her house and getting in the car, you said you really didn’t get a good look at their faces; is that right?
“A. No, I didn’t say anything about that.
“Q. You just don’t know?
“A. Uh-huh.”

She never identified appellant as either of the two men. Some of her testimony was to the effect that, on the morning of the same day, one or both of the two men had been to her house wanting to spray her house, but she didn’t hire them to do so by reason of her not having the money to pay them.

There was considerable testimony to the effect that the defendant and one Willie Phillips were on Central Street and in other areas nearby on the morning and the afternoon of June 10, 1980, and solicited jobs from residents thereof to spray their houses. Both men were arrested the following day. While under arrest, this appellant made and signed the following statement:

“At about 9:00 A.M. Willie Phillips came over to 161 Yougene Street where I stayed to pick me up. This was yesterday morning. He said that he had a house to spray and that he wanted me to go and help him. The house was in Sheraton Heights. When we got to the house, we found that the lady wasn’t at home, and would not be back until about four P.M. I told him that I hadn’t eaten, so he took me back home. That was about nine or ten thirty. Then he left and I stayed home and watched T.V. a little bit, and about 4:00 P.M., I walked downtown and went to the Red Bell. I was going to shoot some pool, and there I saw Willie Phillips again. When we got through shooting, I asked him if he would run me home because I had to go to band practice. He took me home in his car and then left, and this was about four thirty or five. After he left, I went around to Robert Hill’s house to ask him if he was ready to go to band practice. The drummer for our group, named Larry, was at Robert’s house and me and Robert and Larry and my girl friend all went to band practice. ...”

The statement signed by this appellant included the following questions by an officer and answers by this appellant:

“Q. Did you go with him [Willie Phillips] to the house on Central Street yesterday afternoon?
“A. No, I didn’t.
“Q. Did you know a Mary Henderson that lives on Central Street?
“A. No, I didn’t.
“Q. What kind of car were you and Willie riding in yesterday afternoon?
“A. A black Buick.
“Q. Who owns the car?
“A. I guess he does.
“Q. Do you help Willie spray houses often?
“A. No, I don’t.
“Q. Have you ever helped him before yesterday?
“A. No.
“Q. Do you know where Central Street is?
“A. No, I don’t.”

According to the testimony of the appellant, about 9:00 A.M. June 10, 1980, Willie Phillips came by the house where appellant was staying and asked appellant to go with him to help him “spray some houses.” Willie Phillips told him that he had a house to spray at Sheraton Heights. When they arrived at the house at Sheraton Heights, the lady was not at home and Phillips told him that they would try somewhere else. They went to a large number of places, but “everybody was saying no, they didn’t have the money” or that they “didn’t want their house sprayed.” They did not succeed in going into anyone’s houses and spraying them until they came to the house of Mrs. Henderson, who let them in her house. His testimony continues as follows:.

“... the lady was sitting in a chair working on that blue fan [a floor fan].
“Q. You talking about this fan right here?
“A. Yes, sir.
“Q. All right.
“A. She was working on it trying to put the screen on the fan. The screen had come out, and she was trying to put it on. I guess, by her being so old or whatever, she was having a hard time putting the screen on, and so I asked her, I said, hey, do you want me to give you a hand putting it on, and she said yes you can help me. I would sure appreciate it. I put the screen on the fan, and by the time I’m doing this, Willie had already started spraying. When I got through, Willie tells me, hey, man, come on and help me move the sofa out of the way. I helped him move the sofa. He sprays behind the sofa. We do all that, and he sprays the front room completely. We leave the front room.
“Q. All right. Wait a minute. Now, you of course touched the fan?
“A. Yes, sir.
“Q. Okay. All right. And then you say, Willie said come and help me move something. What did you all move?
“A. We moved the sofa. We moved a couple of chairs that was in the living room. The curtains, pulled the curtains back. She had some long curtains.”

The defendant further testified as to the shoes that he was wearing while in the victim’s house. He said that Mrs. Henderson gave Willie a twenty dollar bill, after he had told her that he charged her fifteen dollars and that when he told her he didn’t have the change for the twenty dollar bill, she said for him to keep the five-dollar-dif-ferenee. Willie never succeeded in getting any more business that day and played pool and lost what money he had to another person while playing pool. He asked Willie to take him where he was staying, that he was tired. Willie took him and left him there at about 4:00 P.M., and thereafter, the witness-defendant went to band practice.

Except for some additional evidence that will be discussed in connection with the issues presented by appellant, we think the foregoing summary of the evidence suffices. We now proceed to consider the issues presented in the order of their consideration in the briefs of the attorneys for the respective parties.

I.

The position is taken in appellant’s brief that he was denied his Sixth Amendment right to a speedy trial as now safeguarded by the due process clause of the Fourteenth Amendment to the Constitution of the United States. In a brief argument on the particular issue, he makes it clear that on the authority of Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975), the defendant herein became the “accused” within the meaning of that word as contained in the Sixth Amendment on the date of his arrest, June 11, 1980. He also recognizes that in accordance with Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the balancing test is to be applied and that the intervening approximately two years between the date of his arrest and the date of his trial on May 5, 1982, does not per se constitute a denial of his constitutional right. Nevertheless, he insists:

"... However, the delay must not be purposeful or oppressive. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). In the present case, the tactics used by the State involving the two indictments were purposeful and oppressive in that approximately two years elapsed between appellant’s arrest on June 11, 1980, and his trial on May 5, 1982. Moreover, the Defendant was incarcerated during the entire period thereby being unable to assist his attorney in his defense.”

We agree that incarceration during the entire intervening period is a factor that is to be considered favorably to an accused on the question of his right to a speedy trial, but we do not agree with the conclusion asserted by appellant, without any supporting facts whatever, that the State used tactics involving the two indictments that were purposeful and oppressive.

We are not informed by a record of all that occurred in the proceedings under the first indictment, but we are enlightened by some references thereto in the record of the proceedings in the instant case under the second indictment. We are persuaded thereby, particularly by a plea in abatement as to the second indictment, that the first indictment “embodies the same facts as those embodied in the” second indictment. We are led to believe by the record before us that at one time prior to the return of the second indictment and during the pendency of the first indictment, alleging that his right to a speedy trial had been denied, and therefore a few months after the first indictment, defendant had in writing, with the approval of his counsel, waived his right to a speedy trial, which was not revoked until November 7, 1980. What happened to the first indictment is not clearly shown in the record before us, but apparently it was still pending at the time of the return of the second indictment and continued to be pending until shortly before March 16, 1981, when defendant was arraigned on the second indictment and entered a plea of “not guilty and not guilty by reason of insanity” and the cause was set for trial on July 27,1981. From all of this it is to be observed that a substantial part of the approximately two-year intervention between the defendant’s arrest and his trial is attributable to action by him, with the approval of his attorney, and that not more than about a year and a half of the intervening time is attributable to the State. It is to be further observed that although defendant’s attorneys made it known several times that he claimed that he in the past had been denied a speedy trial, he did not at any time make it known that he desired a speedy trial in futuro, that during all of that time he was represented by able counsel, who continued to represent him until after judgment of conviction and sentence and was succeeded by other able counsel who represented him on his motion for a new trial and continues to represent him on appeal. There is no clear explanation of why the case was not tried on July 27, 1981, the date to which it was set on arraignment, but on June 24, 1981, defendant filed a motion for psychiatric examination, which motion was granted the following day. It is reasonable to assume, we think, that this circumstance induced, or at least had some influence upon, the failure to try the case on or soon after the date it had been set for trial, July 27, 1981.

Although it did not surface with clarity in any of the record before us, we are reasonably confident therefrom that some of the passage of time between the timely first indictment and the trial under the second indictment was influenced by the decisions of the Supreme Court, the Alabama Supreme Court, and the Alabama Court of Criminal Appeals in the Beck case, infra, covering a period commencing before the date of the alleged crime in the instant case and not ending before December 19, 1980. On December 19, 1980, in Beck v. State, Ala. 396 So.2d 645, it was held that, consistent with Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), which had reversed the judgment and sentence to death of Beck, which had been previously affirmed in Beck v. State, Ala.Cr.App., 365, So.2d 985 (1978), cert. denied, Ala. 365 So.2d 1006, the then effective Alabama Death Penalty and Life Imprisonment Without Parole Act could be saved from the constitutional infirmity found therein by the Supreme Court by appropriate instructions from the trial court to the jury on each lesser included offense which has any basis in the evidence. The Alabama Supreme Court then remanded the Beck case to the Alabama Court of Criminal Appeals for it to reverse the judgment of the trial court and remand “the cause to the trial court for proceedings not inconsistent with requirements of law as set forth in” the opinion, in which it is also said at 396 So.2d 656, citing Beck v. Alabama, supra:

“A statute which precludes a judge from instructing a jury on lesser included offenses, even though a lesser included offense is supported by the evidence, is unconstitutional. ...”

In accordance therewith, the Alabama Court of Criminal Appeals reversed and remanded the Beck case to the trial court. Beck v. State, Ala.Cr.App., 396 So.2d 666 (1981). We are of the opinion that it was in the interest of justice according to law, the guiding star of judicial proceedings, that the trial court, the parties and all others concerned with this case, handled it with commendable caution and circumspection rather than rushing ahead without chart or compass to guide them. According to the rationale as finally determined in Beck, supra, if the case had been tried prior to December 19, 1980, the defendant would possibly have been convicted of the crime expressly charged in the indictment, instead of the lesser included offense, and such judgment would have had to be vacated and defendant tried a second time with little likelihood, if any, that the result would have been more favorable to him than the verdict and judgment upon which this appeal is based.

II.

There is no merit in the appellant’s contention for a reversal that “the cumulative effect of the admissions of photographic exhibits [was] so unnecessarily prejudicial as to deny appellant a fair trial.” It is correct, as argued in his brief, that “more than 40 photographic exhibits were entered to show the condition of the deceased and the crime area involved in this case.” However, there is nothing to show appellant’s conclusion that the photographs “were submitted solely to prejudice the jury against the Defendant under circumstances where the State had very little evidence to connect the Defendant to the crime charged.” Although it is not often that as many photographic exhibits are introduced in a case in order to show a scene of a crime and the victim of a crime as were introduced in the instant case, we are persuaded that most, if not all, of them had a desirable and legitimate effect of enabling the judge and the jury to better understand the testimony of the witnesses as to what they observed about the deceased and the crime area after approximately 8:00 on the night of June 10, 1980, Appellant does not particularize any exhibit as subject to a valid objection or specify any ruling of the court as erroneous as-to the introduction of such items in evidence. In conformity with the principle that the trial court is afforded “a wide and liberal latitude in the admission of photographs illustrative of a criminal transaction and the surrounding circumstances,” we conclude that the photographs were properly admitted in evidence. Lawrence v. State, Ala.Cr.App., 409 So.2d 987, 990 (1982); Arnold v. State, Ala.Cr. App., 348 So.2d 1092 (1977), cert. denied, Ex parte Arnold, Ala., 348 So.2d 1097 (1977); Lewis v. State, Ala.Cr.App., 339 So.2d 1035 (1976), cert. denied, Ala., 339 So.2d 1038 (1976).

III.

The next issue presented by appellant is thus stated in his brief:

“WHETHER THE COURT ERRED TO REVERSAL BY OVERRULING APPELLANT’S OBJECTION TO THE TESTIMONY OF ONE RUSSELL McCLOUD CONCERNING THE FACT THAT ONE WILLIE PHILLIPS, AN ALLEGED ACCOMPLICE, POSSESSED FOUR OR FIVE ONE HUNDRED DOLLAR BILLS SOME TIME AFTER THE INCIDENT IN QUESTION.”

A target of this contention of appellant is that part of the testimony of Russell McCloud, a cousin of Willie Phillips, who had stated in his testimony that on the afternoon of June 10, 1980, he saw Willie Phillips and the defendant in Willie’s car, that he asked each of them if they had any money to buy gas and each replied, “No.” He further testified that some time after 7:00 o’clock that evening, the following occurred:

“Yes, sir. He rolled his window down on the passenger’s side. He said, hey, Cuz, you still need some gas money? And I said, yeah. He gave me three one dollar bills.
“Q. What other money did you see at that time?
“A. He flashed his bankroll, so to speak, four one hundred dollar bills.”

Appellant contends, and probably correctly, that such testimony was admitted over his previous objection. He says it constituted inadmissible evidence as held in Dailey v. State, 233 Ala. 384, 387, 171 So. 729, wherein the following principle was stated and applied:

“It is a well-recognized rule that the incriminating acts or statements of one confederate after the ends of the conspiracy have been accomplished, and no longer exist, are not admissible against another in his absence and without his knowledge and consent.”

The principle has been applied in a large number of subsequent cases, from which the facts in the instant case are distinguishable in that there was more involved than a mere act or statement of the confederate. Of primary consideration was the fact that Willie Phillips had in his possession four one hundred dollar bills soon after the alleged victim was killed and did not have as much as three dollars before she was killed. Directly in point in favor of the admissibility of the evidence is the following from Gamble, McElroy’s Alabama Evidence, § 195.03(8): “The state may prove, against the accused, the existence after the crime of a physical fact which tends to show the guilt of his co-conspirator.

IV.

By the fourth issue presented by appellant, he “contends that the search of the residence of Willie Phillips is irrelevant to this case.” One of the officers who participated in the search of the residence of Willie Phillips testified in part:

“We located a sprayer in the southeast bedroom. Blue jogging shoes under the bed in the southeast bedroom. An army shirt in the kitchen in a clothes basket, and a black pair of men’s pants in the kitchen in a clothes basket.”

We doubt that the evidence found in Willie Phillips’s residence (one that he was occupying with another person) was of any great significance or importance, but the items found tend to corroborate testimony of the State’s witnesses as to the activities of Willie Phillips and the defendant on June 10, 1980, and for that purpose, at least, they constituted relevant, competent and material evidence. The contention of appellant to the effect that there was no evidence that appellant and Phillips participated jointly in the slaying of the alleged victim is negated by substantial circumstantial evidence that they were co-conspirators.

By the fourth issue presented by appellant, he contends also that there was “no probable cause for a search of the residence where Terry Ringstaff was living.” We do not agree with the quoted conclusion of appellant’s attorney, but even if there was no probable cause for searching the house where Terry Ringstaff lived, the negative results thereof were not harmful to appellant. In this connection as well as in connection with some of the other issues raised by appellant, we note that some of the evidence introduced by the State could well have influenced the verdict of the jury acquitting the defendant of the capital crime of intentionally killing the victim in the course of robbery or an attempted robbery. In our opinion, no error prejudicial to defendant was committed by the trial court in any of its rulings pertaining to the admission in evidence of the results of the search of either residence, the defendant’s or that of Willie Phillips.

V.

By the fifth issue presented by appellant, he urges that the trial court was in error in overruling defendant’s objection to testimony as to the seizure of four or five one-hundred-dollar bills on the person of Willie Phillips at the time of his arrest. We disagree for the same reason set forth supra, as tersely stated in Gamble, McEl-roy Alabama Evidence, supra. There was substantial, though disputed, evidence that appellant and Phillips were co-conspirators. The possession by Phillips of a sizable amount of money of the kind that Ms. Henderson had previously had in her possession was “a physical fact” tending “to show the guilt” of appellant’s “co-conspirator,” and was admissible against appellant even though appellant was not present at the time Phillips was searched.

VI.

This issue pertains to appellant’s contention here and on the trial that he should have been allowed to show that in the room where and when Phillips was arrested and as the officers were entering the room to make the arrest, one Eugene Glenn, who had been playing cards with Phillips for high stakes “concealed himself under the bed with a pistol.” During the hearing of a motion in limine, it apparently was made clear to the trial judge that the law enforcement authorities had concluded definitely that there was no evidence whatever connecting Eugene Glenn with the death of Ms. Henderson. At the conclusion of the hearing on the motion in limine for the trial court to instruct defendant’s attorneys not to bring to the attention of the jury by evidence or otherwise that Eugene Glenn had concealed himself under the bed on said occasion, and after the attorneys had endeavored to support their respective positions by citations of authorities, the following occurred:

“THE COURT: All these cases have a little age on them.
“MR. MINDELSON [Assistant District Attorney]: We could update it, I think. These articulate a little bit better, and the fact situations are closer. I know it is cited in some of them. I think even in McElroy, if I’m not mistaken, but we’ll be glad to locate them.
“THE COURT: Where is it in McElroy?
“MR. RIGGS [Attorney for Defendant]: 48.01(3).
“THE COURT: I think I ought to grant it to get the motion in limine. For the time being, and at a later time I’ll be glad to hear you.
“MR. RIGGS: All right. If I’m going to bring it up, I’ll mention it to you.
“THE COURT: All right, gentlemen.
“(Whereupon, the jury and all parties being present, the trial proceeds as follows, to-wit:)”

The answer to this issue between the parties is to be found in the following two sentences and the authorities cited in the footnotes of Gamble, McElroy’s Alabama Evidence, § 48.01(3):

“As a general proposition, evidence of the flight or concealment of another person soon after the date of the offense for which the accused is being tried, without more, is not admissible. Where there is additional evidence, however, pointing with strength to such other’s guilt, it then becomes permissible for the accused to prove the flight or concealment of such other.”

Neither on the trial nor on appeal has it been shown that there was any evidence in addition to concealment that pointed with any strength to Eugene Glenn as a guilty participant in the murder of Ms. Henderson. The trial court was correct in granting the State’s motion in limine. As previously indicated, the evidence was undisputed to the effect that even if Eugene Glenn had been a co-conspirator with Willie Phillips in the murder of the alleged victim, such fact would have had no tendency to prove, in all of the circumstances of the instant case, that Terry Ringstaff was not also a co-conspirator.

VII.

Soon after the defendant in this case was placed under arrest, he was questioned by police officers as to his possible connection with the crime, and in the course of his discussion of the matter with them, he signed a written statement which has been quoted above in its entirety. The statement was admitted in evidence over the objection of the defendant. Appellant now says, as his trial attorneys said on the trial, that the statement was not voluntary and that its admission in evidence was in conflict with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant claims that there was “police misconduct” when one of them made a statement to him “that was untrue,” the statement being that Willie Phillips had “put it all on you.” There is evidence that such statement was made by one of the police officers. However, we cannot say with certainty that the statement was true or untrue, as we do not have before us the complete statement of Willie Phillips. Nevertheless, we are convinced that a reasonable and proper construction of any statement by an officer at the time that Willie Phillips had put it all on defendant requires the conclusion that it was not an intentional misrepresentation of the facts. All of the circumstances prior to the written and oral statements of the defendant, including the explanation to him of all of his constitutional rights, including those set forth in Miranda v. Arizona, supra, ensued before defendant made the statements that were admitted in evidence. Furthermore, it is to be noted that defendant’s statements did not constitute a confession. He expressly and categorically denied any participation in the crime for which he was being tried. The statement was introduced in evidence by the State, not as a confession of defendant but, on the contrary, as a false exculpatory statement by him which “is provable without regard to the rules governing the admissibility of confessions.” Gamble, McElroy’s Alabama Evidence, § 200.02(4)(c), wherein supporting authorities are footnoted and cited. The trial court did not err in overruling defendant’s objections to his statements to the officers.

VIII.

Appellant’s eighth issue is thus stated in his brief:

“WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO THE TESTIMONY AND EVIDENCE OF WILLIE PHILLIPS’ FINGERPRINTS AND SHOE PRINTS TAKEN FROM THE LOCATION OF THE INCIDENT.”

This issue is to be resolved by considerations heretofore given to other issues presented by appellant, in which we concluded, in accordance with authorities cited, that evidence of physical facts tending to show the guilt of a co-conspirator of defendant is admissible. The trial court was not in error in overruling defendant’s objections to such evidence.

IX.

Appellant concludes his brief by insisting “that there is no conflict in the evidence concerning his [appellant’s] guilt.” On the contrary, we are of the opinion that there was a definite conflict between the circumstantial evidence tending to show his guilt and the testimony of defendant and several alibi witnesses which, if true, would conclusively establish his innocence. This prevents our agreeing with the concluding sentence of appellant’s argument that the trial court was in error “in failing to grant Appellant’s Motion to Exclude the State’s evidence in that the conviction was based solely on uncorroborated extrajudicial statements of an alleged accomplice under circumstances where the appellant was not present.”

In concluding this opinion adversely to appellant, we think it appropriate to say that we have been most favorably impressed and refreshed by the undisputed evidence of defendant’s unspoiled record for law observance prior to the crime involved in the instant case and by the splendid reputation he had among the people who know him. This should serve him in good stead in the future to such extent, we hope, that he will endure his punishment with courage and will ever after measure up to the enviable record he has established, except for this one ease, and the good reputation that he has enjoyed. Our best wishes to that end accompany him.

In none of the issues presented by appellant do we find any error prejudicial to him, and there is no error in the record prejudicial to defendant that is obvious to us. The judgment of the trial court should be affirmed.

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

AFFIRMED.

TYSON and HARRIS, JJ., concur.

BOWEN, P.J., concurs in result only.

SAM TAYLOR, J., recuses himself.

      . For a thorough recital of citations of reported Ritter cases prior to Feb. 11, 1983, see Ritter v. State, Ala., 429 So.2d 928 (1983).

      . “Lancaster v. State, 21 Ala.App. 140, 106 So. 609, cert. denied, 214 Ala. 2, 106 So. 617 (1925) (murder charge in which murderers got muddy in committing the crime and the trial court admitted, against the accused, the muddy clothing found in the co-conspirator's possession); Dawkins v. State, 20 Ala.App. 54, 100 So. 619 (1924) (stealing hogs; court admitted both that part of the meat found at accused’s house and that found at the co-conspirator’s house); Jones v. State, 18 Ala.App. 626, 93 So. 332 (1922) (charge of distilling and court admitted evidence of 'still slop’ on co-conspirator’s pants soon after the raid.)”