author: BEATTY, Justice.

text:
    James G. GIBSON v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, etc., et al.
    83-192.
    Supreme Court of Alabama.
    June 22, 1984.

      E. Terry Brown and Euel A. Screws, Jr. of Copeland, Franco, Screws & Gill, Montgomery, for appellant.
    Michael S. Jackson of Melton & Espy, Montgomery, for appellees.
   BEATTY, Justice.

The plaintiff, James G. Gibson, appealed from the trial court’s judgment granting the motion to dismiss of defendants Fidelity and Casualty Company of New York (Fidelity) and Underwriters Adjusting Company (Underwriters). We affirm in part and reverse and remand in part.

The issue presented for review is whether the trial court erred in finding that plaintiff’s claims in Counts II through V in the complaint are barred by the exclusivity provision of the Alabama Workmen’s Compensation Act, Code of 1975, § 25-5-52:

“No employee of any employer subject to this article, nor the personal representative, surviving spouse or next of kin of any such employee shall have any right to any other method, form or amount of compensation or damages for any injury or death occasioned by any accident proximately resulting from and while engaged in the actual performance of the duties of his employment and from a cause originating in such employment or determination thereof other than as provided in this article.”

The following facts are alleged in the plaintiff’s complaint. The plaintiff was injured in a work-related accident which severed his spinal cord and left him a paraplegic. At the time of the accident, plaintiff was employed by Theo Gibson, who was named as a defendant but who is not a party to this appeal. The employer’s workmen’s compensation carrier was Fidelity. Fidelity’s adjusting firm was Underwriters. Plaintiff filed a claim under Alabama’s Workmen’s Compensation Act, and Fidelity began making payments to plaintiff for temporary total disability. After 300 weeks of payment, the defendants stopped all payments.

In Count I of his original complaint, the plaintiff claimed entitlement to payments for permanent total disability, and alleged that defendants had refused to make those payments. The plaintiff asked the court to direct defendants to reinstate payments for his disability. Additionally, he asked for past due payments and attorneys’ fees, plus costs.

Counts II through V, as amended, are set out below in relevant part:

“COUNT II

“2. Plaintiff alleges that defendants ... refused, intentionally, maliciously, and in bad faith, to pay plaintiff the workmen’s compensation benefits to which he was entitled under the laws of Alabama. Plaintiff further alleges that there is no arguable or debatable reason which can justify the defendants’ refusal to pay these benefits to the plaintiff.

“3. As a proximate and intended result of the said defendants’ intentional, malicious, and bad faith refusal to pay, plaintiff has been left without a source of income and has suffered both physical and mental pain and anguish, suffering and extreme mental distress, injuries which did not arise out of and in the course of his employment with defendant, Theo Gibson.

“WHEREFORE, THE PREMISES CONSIDERED, plaintiff prays for compensatory and punitive damages against the defendants in the amount of One Million Five Hundred Thousand and 00/100 ($1,500,-000.00) Dollars, together with interest, cost and attorneys’ fees.

“COUNT III

“2. Plaintiff alleges that the defendants ... gave plaintiff no reasonable notice that said defendants intended to cut off his benefits and gave no reasonable notice that the defendants did not intend to pay plaintiff for a total, permanent disability. As a matter of fact, for a substantial period of time prior to the fall of 1982, the defendants attempted to settle with the plaintiff for a lump sum, to be calculated on a permanent total disability basis. Without notice and without provocation and without any reasonable justification, the defendants “cut off” all payments to plaintiff, a known, disabled, poverty-stricken individual, and represented to plaintiff that permanent benefits, which had heretofore been the subject of settlement negotiations, were to be cut off and discontinued to plaintiff because plaintiff had allegedly failed to participate in some rehabilitation efforts suggested by defendants. Plaintiff alleges that these reasons and justifications for termination of his benefits were false, unfounded, unsupported by the medical and other records, that he has never refused reasonable rehabilitative help and support and that the reasons for termination of plaintiff's compensation payments were purely spurious.

“3. Plaintiff alleges that the defendants were under a duty to disclose to plaintiff that his alleged failure to participate in rehabilitative programs suggested by defendants might result in the loss of future compensation benefits.

“4. Plaintiff alleges that the defendants intentionally and with malice, fraudulently suppressed such information, despite having a duty to disclose it. As a proximate and intended result of said intentional, malicious and fraudulent failure to disclose, plaintiff has had all the benefits due him under the workmen’s compensation laws ‘cut off’ as of November 1982 causing plaintiff to suffer physical, and mental pain and anguish and economic loss, deprivation, embarrassment, and extreme anxiety, injuries which did not arise out of and in the course of his employment with defendant, Theo Gibson.

“WHEREFORE, THE PREMISES CONSIDERED, plaintiff prays for compensatory and punitive damages against the defendants in the amount of One Million Five Hundred Thousand and 00/100 ($1,500,-000.00) Dollars, together with interest and costs.

“COUNT IV

“2. Plaintiff alleges that in unilaterally and unreasonably cutting plaintiff off from all of plaintiffs workmen’s compensation benefits, knowing of his entitlement thereof, knowing of plaintiff’s poverty condition and plaintiff’s extreme physical impairments, knowing of plaintiff’s age and plaintiff’s education, knowing of plaintiff’s severe medical problems following his paraplegia and continuing to present, and further failing to warn plaintiff as alleged in Count III, paragraph 2, that his said disability payments were going to be ‘unilaterally cut off,’ the defendants have, together and in concert with each other, engaged in outrageous conduct, shocking to the conscience of mankind, and calculated to cause ' and which did cause plaintiff’s severe emotional distress, anxiety, frustration, and embarrassment.

“3. As a proximate result of the aforesaid intentional, malicious and outrageous conduct, engaged in by the defendants, which conduct could reasonably have been foreseen to lead to such consequences as alleged, plaintiff did in fact suffer severe and extreme emotional distress, physical and mental pain and anguish, economic loss and deprivation, embarrassment, and anxiety, injuries which did not arise out [of] and in the course of his employment with defendant, Theo Gibson.

“WHEREFORE, THE PREMISES CONSIDERED, plaintiff prays for compensatory and punitive damages against all defendants in the amount of One Million Five Hundred Thousand and 00/100 ($1,500,-000.00) Dollars, together with interest and costs.

“COUNT V

“3. At the time of the plaintiff’s accident and continuing to date the defendants knew of plaintiff’s education, socio-economic status, nature of his injuries, his probable life expectancy, the severe disabling effect of his injury, and all other relevant and material factors regarding plaintiff’s claim. Plaintiff further alleges that the defendants, at various times during the years 1980 and 1981, attempted to ‘lump-sum settle’ plaintiff’s workmen’s compensation claim based on a permanent, total disability rating in order for the defendants to be able to ‘write off’ and otherwise close the files on plaintiff’s case to cut down on contingent and unknown liabilities. Said settlement was never consummated. Plaintiff further alleges that once the defendants knew and realized that defendants would be unsuccessful in attempting a lump-sum settlement of plaintiff’s severe disabling claim, together with a settlement of future medical benefits, the defendants set about and conspired, connived, schemed and planned to harass, embarrass and humiliate plaintiff and prevent him from receiving his rightful benefits under the laws of Alabama for permanent, total workmen’s compensation disability and attending medical benefits. Plaintiff further alleges that said conspiracy was accomplished by the combined and individual efforts of the defendants which resulted in a cessation of workmen’s compensation benefits to plaintiff in November 1982. Plaintiff alleges that he first discovered said conspiracy when his workmen’s compensation benefits were discontinued in November 1982.

“4. Plaintiff alleges that the aforesaid scheme, conspiracy, connivance and plan was designed to accomplish and did proximately accomplish the intended results and in furtherance of said conspiracy the defendants committed the tort of outrageous conduct, the tort of bad faith, the tort of intentional interference with plaintiff’s contractual rights and the tort of misrepresentation as alleged in Counts II-IV all to the damage and injury of the plaintiff.

“5. As proximate and intended results of the aforesaid conspiracy engaged in by the defendants and the acts committed by them in furtherance of said conspiracy, the plaintiff has been left without a source of income and has suffered both physical and mental pain and anguish, economic loss, deprivation, embarrassment, extreme anxiety and mental distress, injuries which did not arise out of and in the course of his employment with defendant, Theo Gibson.

“WHEREFORE, THE PREMISES CONSIDERED, plaintiff prays for compensatory and punitive damages against the defendants in the amount of One Million Five Hundred Thousand and 00/100 ($1,500,-000.00) Dollars, together with interest and cost.”

Defendants Fidelity and Underwriters filed a motion to dismiss in response to the original complaint, alleging that it failed to state a cause of action against them upon which relief could be granted. The trial court denied that motion. After the plaintiff filed his amended complaint, the defendants filed another motion to dismiss, alleging that the amended complaint failed to state a claim upon which relief could be granted. In its ruling on that motion, the trial court stated:

“This case is presently before this Court on defendant, Fidelity and Casualty Company of New York and Underwriters Adjusting Company’s Motion for Summary Judgment. After consideration of said motion it is the Court’s opinion that it is due to be denied.
“As support for their motion, the defendants have offered the case of Waldon v. Hartford Insurance Group, [435 So.2d 1271 (Ala.1983) ] which quoted the principle of the exclusive remedy provision of the Workmen’s Compensation Act. It is contended that this provision would grant the defendants herein immunity from the above styled claim.
“After thorough research of the Compensation Act, the Waldon decision, and other cases which dealt with the Workmen’s Compensation law, it is the opinion of this Court that the plaintiffs remedy lies within the Compensation Act and its provisions for enforcement of an injury claim.
“It remains a question of fact as to whether the defendant wrongfully ‘cutoff’ the benefits to which the plaintiff was entitled under the Compensation Act. However, any amount which may be recovered for such action must be in accord with the applicable provisions of the Act, (Code of Ala.1975, § 25-5-59).
“For the above stated reasons it is ORDERED, ADJUDGED and DECREED that defendant’s Motion for Summary Judgment as to Count I of the original complaint is hereby DENIED: and as to all remaining counts, in both the original complaint and the amended complaint, said motion is hereby GRANTED.” (Emphasis added.)

Although the trial court referred to the motion as one for summary judgment, the ‘only facts before the court were those alleged in the complaint and the amended complaint. Therefore, the motion was actually a motion to dismiss. See Rule 12(b), A.R.Civ.P.

Plaintiff filed a motion for certification of the judgment as a final order under Rule 54(b), A.R.Civ.P. The trial court granted that motion, and plaintiff appealed the order dismissing Counts II through Y of his complaint.

This Court has said:

“The issue presented by a motion to dismiss is not whether the plaintiff will prevail, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1976); rather, construing the allegations most favorably to the nonmoving party, the test is whether, under , any conceivable theory or any applicable set of facts, the nonmov-ing party would be entitled to recover. [Citations omitted.]” Karagan v. City of Mobile, 420 So.2d 57, 59 (Ala.1982).

COUNT II

This Court has previously addressed the tort of bad faith refusal to pay an insurance claim in the workmen's compensation context, holding that such claims are' barred by the exclusivity provisions of that act. Garvin v. Shewbart, 442 So.2d 80 (Ala.1983); Waldon v. Hartford Insurance Group, 435 So.2d 1271 (Ala.1983). Accordingly, the trial court properly dismissed Count II.

COUNT III

In Wilkins v. West Point-Pepperell, Inc., 397 So.2d 115 (Ala.1981), we considered whether the exclusivity provisions of the Workmen’s Compensation Act barred an employee’s claims against an employer for alleged fraud in misleading the employee into forgoing benefits under the Act. We wrote:

“[T]he ‘exclusive remedy’ sections of the. Workmen’s Compensation Act stand as an impenetrable barrier to the claims here sought to be asserted by the employee against his employer. §§ 25-5-52 and -53, and 25-5-3 and -4; see DeArman v. Ingalls Iron Works Co., Inc., 258 Ala. 205, 61 So.2d 764 (1952).
“Counsel’s argument, particularly with reference to Plaintiffs ‘nonphysical injuries,’ is commendably ingenious and highly persuasive; but it is in the nature of a policy argument which is more properly addressed to the legislature. However inclined we may be to accept Plaintiff’s contention, we have no authority, constitutionally, statutorily, or otherwise, to judicially engraft an exception into the immunity provisions applicable to the employer. Clark v. Chrysler Corp., 342 So.2d 902 (Ala.1977); see, also, Adair v. Moretti-Harrah Marble Co., Inc., 381 So.2d 181 (Ala.1980). By the explicit terms of the Workmen’s Compensation Aet, a compensable injury (and, in the case of pneumoconiosis, its aggravation) has its exclusive remedy against the employer under the act and not otherwise. Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719 (1949). The trial court did not err in dismissing Plaintiff’s claim against West Point-Pepperell.” 397 So.2d at 117-18.

Wilkins was a suit against an employer. The appeal before us now concerns claims against the employer’s insurance carrier and the carrier’s adjuster. Code of 1975, § 25-5-53, provides in part:

“The immunity from civil liability shall extend to any workmen’s compensation insurance carrier of such employer and to any officer, director, agent, servant or employee of such carrier, and such immunity shall further extend to any labor union, or any official representative thereof, making a safety inspection for the benefit of the employer or its employees.”

Therefore, Fidelity and Underwriters are entitled to the immunity extended to employers, and, accordingly, the trial court correctly dismissed Count III.

COUNT IV

Recently we approved the tort of outrageous conduct in the workmen’s compensation context. We recognize the fact that the learned trial court did not have our decision in Garvin, supra, before it when it dismissed Count IV. In that decision, we emphasized the heavy burden on the plaintiff attempting to prove such a claim, stating: “Plaintiff must show that the conduct is so outrageous in character and so extreme in degree so as to be regarded as atrocious and utterly intolerable in a civilized society. Cates v. Taylor, 428 So.2d 637 (Ala.1983).” Garvin, supra, 442 So.2d at 83. Therefore, despite that burden, a claim based upon the tort of outrageous conduct is not barred under the exclusivity provisions of the Workmen’s Compensation Act, and the order dismissing the count based upon that claim is due to be reversed.

COUNT V

In Count V, Gibson alleged that the defendants conspired to commit the torts alleged in Counts II through IV. This Court recently discussed the tort of civil conspiracy, which Alabama recognizes, stating:

“ ‘Where civil liability for a conspiracy is sought to be enforced, the conspiracy itself furnishes no cause of action. The gist of the action is not the conspiracy alleged but the wrong committed.’ O’Dell v. State ex rel. Patterson, 270 Ala. 236, 240, 117 So.2d 164, 168 (1959). Since we have already determined that Spriggs failed to establish a prima facie case of tortious interference as a matter of law, the conspiracy claim must also fail because there is no ‘actionable wrong’ to support the latter theory. Griese-Traylor Corp. v. First National Bank, 572 F.2d 1039 (5th Cir.1978).” Purcell Company, Inc. v. Spriggs Enterprises, Inc., 431 So.2d 515, 522 (Ala.1983).

Therefore, in the case before us, the conspiracy count was properly dismissed with respect to the torts of fraud and bad faith refusal to pay an insurance claim. However, the trial court erred in dismissing the conspiracy count based upon the allegation of outrageous conduct.

In summary, the trial court’s judgment dismissing the counts based on bad faith refusal to pay an insurance claim, fraud, and conspiracy to commit those torts is affirmed. The judgment dismissing the count based on outrageous conduct and conspiracy to commit that tort is reversed, and the cause is remanded for further proceedings consistent with this opinion and the authorities cited. It is so ordered.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

MADDOX, JONES, SHORES and EM-BRY, JJ., concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    GENERAL SALES COMPANY, d/b/a Anniston Lincoln-Mercury-Dodge, et al. v. Jean S. MILLER.
    82-601.
    Supreme Court of Alabama.
    July 13, 1984.

      Ralph D. Porch of Merrill, Porch, Doster & Dillon, Anniston, and J. Wilson Dinsmore of Dinsmore, Waites & Stovall, Birmingham, for appellants.
    Charles H. Rice of Main, Smith & Rice, H. Wayne Love of Burnham, Klinefelter, Halsey & Love, Anniston, for appellee.
   FAULKNER, Justice.

Jean Miller, a registered .nurse, sued An-niston Lincoln-Mercury-Dodge, Tim Brown, Local Mortgage Company, Inc., and Robert L. Jackson, in a complaint alleging fraud, misrepresentation, outrage, bad faith, and violation of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., in the sale to her of a 1978 Chrysler LeBaron. The case was tried before a jury. At the conclusion of the trial, and after the trial court denied motions for a directed verdict, the jury returned a verdict in favor of Miller and against the defendants jointly and severally, for $50,000.00 on the fraud and misrepresentation claim, and for $500.00 on the Truth-In-Lending claim. Following the entry of judgment, the trial court denied motions for JNOV or in the alternative a new trial.

This case arose out of a complex set of facts. Ms. Miller was in need of an automobile to transport her to and from her places of employment — one in Bowden, Georgia, the other in Heflin, Alabama. But, having been adjudicated a bankrupt, and suffering the stigma of bad credit, she was not a prime candidate for a bank loan. So, she went to Anniston Lincoln-Mercury-Dodge in response to an advertisement to the effect that, if one had been in bankruptcy, that firm would assist in financing the purchase of an automobile. Tim Brown was named in the ad as the person to see.

Ms. Miller went to Brown in December 1980, and, according to her testimony, he agreed to finance an automobile for her through the First National Bank of Anni-ston by placing a second mortgage on her home. The mortgage was to be for a period of thirty-six months.

Some five months later, Mr. Brown, accompanied by a Mr. Dinsmore, came to Miller’s house in order to appraise it. According to Miller, Brown and Dinsmore considered the house sufficient for a loan and again mentioned the terms “second mortgage” and “thirty-six.”

On May 2, 1981, Ms. Miller met Mr. Brown at the Anniston Lincoln-Mercury-Dodge car lot. At that time, according to Ms. Miller, Mr. Brown showed her a 1978 Chrysler LeBaron and told her that she could purchase it under the terms they had discussed. Ms. Miller agreed.

Later that evening, Mr. Brown introduced Ms. Miller to a Mr. Robert Jackson. Brown told Ms. Miller that Jackson would handle the paperwork for the sale. Additionally, according- to Ms. Miller, Brown related that the cost of the car, with an allowance for a trade-in, would be $6,300.00, and would be financed over a period of three years.

Mr. Jackson prepared a stack of documents for Ms. Miller to sign and told her she could have the car after signing. Thereafter, Mr. Jackson left the room. Ms. Miller testified that she then reviewed the documents to the best of her ability, and, believing the material terms to be as represented by Brown, signed the documents.

Several months later Ms. Miller discovered that she had not in fact executed a “second mortgage” on her house for a period of 36 months, but rather had signed what is known as a “wrap around mortgage.” This type of mortgage, by its terms, amounted to refinancing the balance due on Miller's first home mortgage in addition to the $6,300.00 purchase price of the Chrysler LeBaron. In sum, Miller executed several agreements which obligated her to a note in excess of $40,000.00, with a term of twenty years and six months.

Three issues are presented on appeal for our review. First, whether the trial court properly denied appellants’ motions for a directed verdict. Second, whether a new trial or remittitur should be ordered based on excessive punitive damages. Third, whether the trial court’s instructions to the jury were erroneous.

Appellants argue that a directed verdict should have been entered on the fraud and misrepresentation count in favor of the defendants, because Miller failed to prove any willful misrepresentations concerning the terms of the loan documents. We disagree.

The definition of “legal fraud” in Alabama may be found in § 6-5-101, Code of Ala. (1975):

“Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.”

Regardless of whether the representations were made willfully, recklessly, or mistakenly, actionable fraud may be proved upon showing (1) a false representation, (2) concerning a material existing fact, (3) upon which representation the plaintiff relied, and (4) as a proximate result was damaged. Cotton States Mutual Insurance Co. v. Thigpen, 448 So.2d 314 (Ala.1984); International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977).

The record is replete with testimony which, if believed by the jury, proves a claim for actionable fraud. According to Ms. Miller’s testimony, on at least three occasions Mr. Brown represented that he would finance the Chrysler LeBaron with a second mortgage for a period of thirty-six months. Ms. Miller further testified that she relied on these representations upon entering into the transaction. As noted above, the mortgage signed by Ms. Miller was not in fact a second mortgage for a term of 36 months, but rather a wrap around mortgage with a term of more than twenty years. After viewing this evidence in a light most favorable to Miller, we find the evidence presented by her sufficient to withstand a motion for directed verdict. Ex parte Bennett, 426 So.2d 832 (Ala.1982); see, e.g., International Resorts, Inc. v. Lambert, 350 So.2d 391 (Ala.1977).

Anniston Lincoln-Mercury-Dodge argues that even if fraud was proven, the evidence presented by Ms. Miller was insufficient to support an award of punitive damages. In order to recover punitive damages, in cases of fraud, the plaintiff must show that a misrepresentation was made with knowledge of its falsity and with an intent to injure. Furthermore, the fraud committed must be gross, malicious, or oppressive. Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So.2d 912 (Ala.1981).

We find that the evidence presented by Ms. Miller was sufficient to allow the jury to infer a knowledge of falsity and a malicious or oppressive intent to injure. For instance, according to Ms. Miller’s testimony, the misrepresentations were made to Ms. Miller on several occasions. At no time did Brown, Dinsmore, or Jackson ever explain the nature of a wrap around mortgage to Ms. Miller. Lastly, among the several documents signed by Ms. Miller and admitted into evidence, two documents contain the terms and figures repeatedly quoted to Ms. Miller, while other documents obligate her to a wrap around mortgage. We must conclude that the jury could have inferred that the defendants knowingly and intentionally misled Ms. Miller as to the terms of her financial obligations. Accordingly, the award of punitive damages was not improper. See, e.g., Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So.2d at 915.

Likewise, after reviewing the record in its entirety, we do not think the jury’s award was based on passion, bias, or any other improper motive. Therefore, we decline to disturb it. U-Haul Co. of Alabama v. Long, 382 So.2d 545 (Ala.1980).

Regarding appellant’s claim that the jury instructions were erroneous, we note that no objections were raised to the instructions. Furthermore, at the conclusion of the trial court’s instructions to the jury, counsel for the appellants announced “satisfied.” Thus, the alleged error was not preserved for our review. A.R.Civ.P. 51; Walker v. Dutton, 401 So.2d 32 (Ala.1981).

Accordingly, the judgment entered by the trial court on the jury’s verdict is affirmed.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    Ernest BENNETT v. Pernell BENNETT, et al.
    82-1056.
    Supreme Court of Alabama.
    July 13, 1984.

      William E. Cassady, Camden, for appellant.
    Wyman 0. Gilmore of Gilmore & Gilmore, Grove Hill, for appellees.
   ADAMS, Justice.

This is an appeal from a judgment entered as the result of a jury verdict by the Circuit Court of Wilcox County in a will contest. The will of Delie Bennett was first filed in the probate court of Wilcox County by a grandson, Ernest Bennett, one of the beneficiaries of the will. The other beneficiaries are a daughter and four grandchildren. The will offered for probate was allegedly executed on October 11, 1974. After the will was offered, nine children of the deceased filed a contest and asked that the contest be tried in circuit court. The proceedings were duly removed to circuit court and on March 1, 1983,. a verdict was rendered in favor of the contestants. Proponents then made a motion for a judgment notwithstanding the verdict or for a new trial, which was denied by operation of Rule 59.1, A.R.Civ.P. The contestants claim that Delie Bennett’s will was invalid for two reasons: 1) she was not of sound mind at the time of the alleged execution of the will; and 2) the will offered for probate was not in fact signed by Delie Bennett. Proponents contended that although their mother was of unsound mind, she was still able to sign her name. The will offered for probate was executed by a mark.

In his attempt to reverse the judgment of the circuit court, Ernest Bennett, one of the proponents, contends that the court erred in several respects. His first claim of error is that the trial court abused its discretion in not allowing the testimony of the two attesting witnesses as to the soundness of the deceased’s mind at the time of the execution of the will. Second, he claims that the court improperly refused to allow into evidence a prior will of Delie Bennett, dated March 13, 1957, which showed a fixed determination on the deceased’s part, expressed by her over a number of years, to leave her property as she did in the will offered for probate. He says, further, that this will was proof that she was signing her name by mark as early as 1957. The contestants had been unanimous in their testimony that the deceased had a handwritten signature. Third, the appellant claims that the court mistakenly refused to allow the proponents to question the contestants as to their financial condition. He claims that such testimony was admissible to prove motive or intent on her part to leave property to her less fortunate relatives. Fourth, the appellant claims that the trial court erred in giving this jury charge:

If you are reasonably satisfied from the evidence that the testator suffered from habitual, fixed or permanent insanity as distinguished from spasmodic or temporary insanity prior to executing the will, the burden is then on the proponent to reasonably satisfy you from the evidence that the will was executed during a lucid interval....

The appellant claims this charge was error because there was not even a scintilla of evidence that the testatrix suffered from “habitual,” “fixed,” or “permanent” insanity-

In response to the above claims made by the proponent, the contestants argue that the court did not err as claimed above, but that if it did, the error was harmless and not prejudicial to the proponents in any way. Citing Nottage v. Jones, 388 So.2d 923 (Ala.1980), Linnard, v. Shields, 368 So.2d 14 (Ala.1979), and Fletcher v. DeLoach, 360 So.2d 316 (Ala.1978), they contend that in cases of this nature, the verdict of the jury will not be overturned unless shown to be clearly and palpably wrong. Furthermore, the trial court’s refusal to grant the proponents’ motion for judgment notwithstanding the verdict or a new trial only goes to strengthen the verdict and the judgment rendered thereon. Although we are of the opinion that each error, if taken singularly, may not have been, under the facts of this case, sufficient to overturn the jury’s verdict, the combination of these errors was sufficient to seriously infect the factfinding process in this litigation. We reverse and remand for a new trial.

Proponent’s strongest argument for reversal lies in the failure of the trial judge to allow the attesting witnesses to the will to give their opinion as to the soundness of the mind of Delie Bennett. The court stated that it would not allow this testimony because these witnesses could not say that they knew Delie Bennett before the execution date of the will, or since. One of the subscribing witnesses was a lawyer. The will was allegedly signed in his office. He did testify that the lady he prepared the will for identified herself as Delie Bennett; that she brought with her a prior will, executed by Delie Bennett; and that she had with her a deed conveying to Delie Bennett property located in Gees Bend. Although ordinarily the trial court is allowed a wide discretion in determining what witnesses will be allowed to testify to, based on opportunity to observe, physical capacity, and other factors, this court has carved out an exception as to attesting witnesses in will probate cases. This court judicially knows that a substantial number of wills in this state are drafted and executed in lawyers’ offices and are attested to by them and members of their staff, although they may never have seen the client before or after the will was drawn and executed. Such persons are competent in this state to testify as to the soundness of mind of the testator without further qualification. Speaking for this court in 1951, Mr. Justice Simpson wrote:

Attesting witnesses to a will are competent to give an opinion as to the mental capacity of the testator when the will was made, without other qualification as to association with the decedent and without stating facts on which the conclusion is based.

He cited earlier cases, Lowery v. Lowery, 225 Ala. 376, 143 So. 556 (1932), and Shirley v. Ezell, 180 Ala. 352, 60 So. 905 (1913), as being in accord with that proposition of law. Inasmuch as one of the two grounds on which the will was claimed to be invalid was insanity, we are of the opinion that the proponents’ cause was prejudiced when this testimony was erroneously disallowed.

Also, we believe it to be of not little importance that the trial court refused to allow the admission of an alleged prior will of Delie Bennett dated March 13, 1957. The alleged 1957 will was offered for two purposes. It was offered as proof of testamentary capacity and to show that the deceased was signing documents by a mark as far back as 1957. Both the issue of mental capacity, and the question of the execution of the will were hotly contested in the trial court. In Towles v. Pettus, 244 Ala. 192, 12 So.2d 357 (1943), this court held:

The execution of a former will in conformity with a fixed purpose entertained and expressed by the alleged testator is admissible in the proof of testamentary capacity.

The converse is also true. In Hughes v. Hughes’ Executor, 31 Ala. 519 (1858), this court reversed the judgment of the trial court because it failed to allow a former will into evidence which showed non-conformity with the will being offered for probate.

The reason given by the trial judge for refusing to admit the 1957 will was that it was too remote in time to the present controversy — but the length of time between the 1957 will and the 1974 will is the very aspect of this testimony that makes it favorable to the proponents. Where a person acts consistently with a purpose he had many years back (and presumably when his mind was stronger and clearer), this is very persuasive evidence that the testator had sufficient testamentary capacity when he made a later will. We conclude that the 1957 will should have been admitted.

The appellant claims as a further basis for reversal the failure of the trial court to allow the proponents’ attorney to cross-examine contestants on their financial condition. The attorney sought to show that the reason the testatrix willed her property to a daughter and grandchildren as opposed to willing her property to her children exclusively, was that the children were financially secure and had homes, while the grandchildren were not financially secure. The evidence was ruled inadmissible on the ground that it was immaterial. This testimony cannot be considered as immaterial. It goes to show the motivation of the testatrix in making the disposition she is claimed to have made in the will offered by the proponents. Eastis v. Montgomery, 95 Ala. 486, 11 So. 204 (1891). Dean Gamble has stated the rule as follows:

In a will contest, evidence of a motive in the testator to make a will of the content of that offered for probate is admissible as tending to support the validity of the will. Consequently, in a contest on the ground of the testator’s mental incapacity to make a will, the proponent has been permitted to prove that the contestants were in excellent financial condition at the time the will was made. Such evidence being admissible as tending to show a legitimate motive in the testator omitting them from the benefits of the will.

C. Gamble, McElroy’s Alabama Evidence, § 45.02(11) (3d ed. 1977).

However, we are inclined to uphold the trial judge’s ruling on this issue, since one of the children had already testified as to the financial condition of the children. Additional testimony would have been merely cumulative. A court cannot be put in error if its ruling is proper, even though it assigns the wrong reasons.

Finally, the appellant says that the trial judge improperly instructed the jury when it charged that if the jury found the testatrix suffered from a habitual, fixed, or permanent insanity, as opposed to spasmodic or temporary insanity, prior to executing the will, then the burden was shifted to the proponents to satisfy them from the evidence that the will was executed during a lucid interval. At the outset, we note that there was not a scintilla of evidence that the testatrix suffered from a habitual, fixed, or permanent insanity. The contestants would not even categorize their mother as insane or “crazy,” but said that her mind was not right and they were of the opinion that she could not make a will in 1974. However, this charge was submitted to both sides before the judge instructed the jury, and was not objected to at that time. It was objected to by the proponents after it was submitted to the jury. A close question is presented as to whether the proponents waived their right to object to this obviously improper charge under the facts in this case. The proposition of law expounded therein is obviously sound, but is irrelevant to the matters sub judice. We discuss the matter here because as the case is remanded for retrial, and assuming that the evidence follows the course of the first trial, we apprise the trial court of the facility of such a charge in the varying fact situations that may come before it.

For the foregoing reasons, the judgment of the circuit court is reversed and the cause remanded for a new trial consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Martha Kay CARRUTH v. Buford BARKER, Dickey A. Tedford, and Johnny Gillette. Martha Kay CARRUTH v. Billy M. BOLTON & Bank of Red Bay.
    83-270, 83-452.
    Supreme Court of Alabama.
    July 13, 1984.
    Dave Beuoy, Russellville, for appellant.
    Jerry C. Porch, Russellville, for appellees Buford Barker, Dickey A. Tedford, and Johnny Gillette.
    Roger H. Bedford, Sr. of Bedford, Bed-ford & Rogers, Russellville, for appellees Billy M. Bolton, and Bank of Red Bay.
   ADAMS, Justice.

These are appeals from the Franklin County Circuit Court’s order granting the defendants’ motions for summary judgment. The evidence was presented to the court in the form of affidavits of defendants Johnny Gillette and Buford Barker and plaintiff Martha Kay Carruth. It is from these affidavits that we obtain the facts of these cases.

Officers Gillette and Tedford responded to a call requesting them to go to the Bank of Red Bay. Upon arriving, they encountered the president of the bank, Mr. Bolton (also a defendant in this case), who asked them to stop the car that was leaving the parking lot. The car was driven by the plaintiff, Martha Carruth.

Gillette states that he and his partner, after stopping the plaintiffs car, called the police station for a license check. They were told that the license number did not match the make of the car, thus making it an improper tag. They then arrested Miss Carruth for having an improper tag and took her to jail.

Miss Carruth, however, claims that she left the bank parking lot and proceeded to a doctor’s office. After discovering that the office was closed, she drove toward Mississippi. According to Miss Carruth, it was at this time that she was stopped by Gillette and Tedford. She was told by the police officers that they stopped her at the request of the bank president, Mr. Bolton.

The single issue for our review is whether the trial court properly granted the motions for summary judgment. After reviewing the evidence, we find that the trial court was correct and we uphold its judgments.

In order to grant summary judgments, the trial court had to find that there was no genuine issue as to any material fact and, therefore, that the defendants were entitled to judgment as a matter of law. Plaintiff contends that she was arrested and imprisoned without probable cause, thus making the arrest unlawful. We disagree.

Defendant Bolton, the bank president, requested that the officers make an investigatory stop of plaintiffs car. This act alone cannot be considered an arrest. The United States Supreme Court case of United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), along with Vogel v. State, 426 So.2d 863 (Ala.Cr.App.1980), holds that persons may be stopped for questioning without probable cause for an arrest. In Vogel, the court defined the proper standard as one of reasonable suspicion, based on objective facts suggesting criminal activity. The Court of Criminal Appeals had already held, in Rutherford v. State, 48 Ala.App. 289, 264 So.2d 210 (1972), that a radio signal from the police station suggesting illegal activity provided sufficient suspicion to stop an automobile.

Bolton merely requested a stop; the ensuing arrest came as a result of the officers’ discovery that the plaintiff was operating a car with an improper tag. Defendant Bolton has no significant connection with the arrest of Miss Carruth, and summary judgment was, therefore, properly granted in favor of Mr. Bolton and the Bank of Red Bay.

Plaintiff also contends that her arrest was invalid because the officers’ reason for arresting her was unclear. When considering whether an arrest is valid, a police officer’s subjective intent is immaterial; the only requisite is that at the time the arrest is made, the police officer have probable cause. United States v. Seay, 432 F.2d 395 (5th Cir.1970). Probable cause exists where facts and circumstances, of which the officer has reasonably trustworthy information, are sufficient to lead a reasonable man to believe that an offense has, in fact, been committed. Fennell v. State, 282 So.2d 373, 378 (Ala.Cr.App.1973). Officer Gillette stated, in his affidavit, that based on the radio call he received from the police station informing him of the plaintiff’s improper tag, he arrested her. The officers’ actions in this case were totally within established legal procedures, and the summary judgment in favor of the police officers was, therefore, properly granted.

For all of the above stated reasons, we agree with the decision of the trial court and uphold its judgments.

AFFIRMED.

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


author: DeCARLO, Presiding Judge.

text:
    LaDonna Lynn Huddleston TUCKER v. STATE.
    4 Div. 44.
    Court of Criminal Appeals of Alabama.
    March 29, 1983.
    Rehearing Denied May 3, 1983.

      Maury Smith, Sterling Culpepper, Jr., and Edward B. Parker, II of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Presiding Judge.

Murder; sentence: life imprisonment.

Appellant was indicted under § 13A-5-31(a)(7), Code of Alabama 1975, for the first degree murder of her husband, Jimmy Eugene Tucker, committed either for a pecuniary or other valuable consideration or for hire. The State’s theory was not that the appellant had committed the actual murder, but that she had hired or caused a third party to kill her husband. After due deliberation, the jury returned a guilty verdict only as to the lesser included offense of murder.

Appellant’s assertion that the evidence was insufficient to sustain her conviction necessitates that we detail the evidence adduced at trial which sustained the State’s case.

Gwin Jackson, dispatcher for the Kinston Police Department, testified that she received a telephone complaint from Kenny Davis at 10:38 p.m. on January 24, 1981, concerning a burning pickup truck. She dispatched the fire department and Police Chief Billy Flemming to the reported scene of the fire at 10:41 p.m.

Kinston Police Chief Billy Flemming testified he responded to a police dispatch concerning a burning truck on County Highway Six on January 24, 1981. He arrived first on the scene, followed immediately by the fire department. After the fire was extinguished, Chief Flemming began to transcribe the vehicle identification number from the truck door, at which time he observed in the vehicle a body which had been burned beyond recognition.

Chief Flemming testified a metal container was also found in the vehicle, located between the legs of the body. There was also a piece of garden hose approximately two feet in length found protruding from the truck’s gasoline fill spout.

Brice Paul, Sheriff of Coffee County, testified he was called to the scene of a burning truck on County Road Six on January 24, 1981. He obtained the burned vehicle’s tag number, called for a registration, and discovered the vehicle was registered to Jimmy E. Tucker. On the morning of January 25, 1981 Sheriff Paul went to Ly-ster Army Hospital at Fort Rucker, Alabama where he obtained the dental records of Jimmy Eugene Tucker.

Charles F. Brooks, a trace evidence analyst, testified his examination of the floorboard of the burned vehicle revealed the presence of a flammable liquid which was consistent with gasoline. In his opinion, an accelerant had been used in the interior of the truck. Mr. Brooks also compared the portion of garden hose which had been found in the fill spout of the burned vehicle with a portion of hose taken from the appellant’s automobile and found that at one time the two pieces had been part of the same hose.

Dr. Richard Roper, a State forensic scientist, testified he compared the X-rays which he ordered on the body removed from the burned vehicle with the known X-rays of Jimmy Eugene Tucker and found they depicted the same person.

Dr. Thomas Gilchrist, a State forensic pathologist, also compared the X-rays taken by Dr. Roper with the known X-rays of Jimmy Eugene Tucker and found they depicted the same person. Further examination of the body by Dr. Gilchrist revealed the cause of death to have been internal hemorrhage from a gunshot wound to the chest which resulted in death prior to the fire’s occurrence.

Testimony indicated the victim left work at Big-K in Enterprise, Alabama in his red Ford pickup at 9:20 p.m. on January 24, 1981. He followed a co-worker, Kenneth Beaty, to a nearby bank’s night depository, and then preceded him as they traveled down Fort Rucker Boulevard. Beaty then turned off the boulevard as the victim continued on toward Fort Rucker. Mr. Beaty indicated he last saw the victim at approximately 9:35 p.m., immediately before turning off Fort Rucker Boulevard.

Ronnie Glover testified that he and a playmate discovered a white plastic bag protruding from the ground in Pinebrook Trailer Park on February 15, 1981. The bag contained a gun and holster, an army jacket, a pair of gloves, and a pouch containing bullets. He and his friend, Eddie, carried the bag to the trailer of Marie Breyer, with whom Eddie lived.

The gun which was found by the two boys was later examined by Lonnie Harden, a State firearms expert, in relation to the bullets removed from the victim’s body. Mr. Harden determined that the bullets from the body were fired from the same gun found by the boys.

Bruce DeVane, Chief Investigator for the District Attorney of the Twelfth Judicial Circuit, testified he was called into the Tucker case by Sheriff Paul after midnight, in the early morning hours of January 25, 1982. After learning the vehicle’s registration, he proceeded to Fort Rucker, Alabama to the Post Trailer Park address indicated by the registration. Arriving at the trailer park address at 3:30 a.m., he found the victim’s two daughters, Tracy and Terry, a friend of Terry’s, and one Sandra Baxter at the victim’s trailer. They reported that the victim was extremely overdue home from work. Investigator DeVane also learned that the victim’s wife, the appellant, did not live at that address, but rather in Pine-brook Mobile Trailer Park in Enterprise.

Investigator DeVane proceeded directly to the appellant’s trailer at Pinebrook, arriving there at approximately 4:00 a.m. on January 25, 1981. At the appellant’s trailer, he encountered the appellant, LaDonna Tucker, and Douglas Ard. He inquired as to the whereabouts of the victim and the appellant stated she did not know where he was. She last saw him at 2:00 p.m. on January 24, 1981 at his trailer while visiting their two girls with her parents. She and the victim were separated and she was living at Pinebrook with Douglas Wayne Ard.

The record indicates that the appellant made the following statements to Investigator DeVane during his 4:00 a.m. visit to her trailer:

“She stated that the past night, January 24th, 1981, Donald Ard, Douglas Ard’s brother had borrowed her car and broke down in it on a road identified as the one with the barricade. She stated that Donald telephoned her residence advising of the breakdown around 8:30 p.m. January 24th, 1981. Subject stated that Douglas Ard telephoned Jimmy Tucker at the Big-K in Enterprise and* asked him to come by and pick him up and go to the broke down car. Subject stated that she heard a .horn blow outside of her residence at approximately 9:30 p.m. and assumed it to be Jimmy Tucker. She stated Douglas Ard went outside and returned approximately thirty to forty minutes later. I asked her at this time did she know the whereabouts of Donald Ard and she replied she did not know."

When Investigator DeVane returned and questioned appellant at 5:30 a.m., appellant added the following to her previous account:

“Subject added the children lived with Jimmy through an agreement she and Jimmy had. Subject stated that she had two children. Subject stated that she and Doug Ard had been living together since November of 1980. Subject stated that she had met Doug at the Rainbow Vacuum Cleaner place in Enterprise through their employment with the company. Subject related that Donald Ard was Doug’s older brother who was from Texas staying with them, but was unemployed.... Subject continued, stating that she and Jimmy Tucker had a good relationship with each other despite of their situation. Subject stated that it was not unusual for Donald Ard to borrow her car. When asked how long it was before Doug and Donald returned from the point Jimmy picked up Doug she replied thirty to forty minutes. Subject stated that when Doug and Donald returned they both walked into her residence together, but Donald left after staying just seconds. To where she did not know. Subject stated that she was alone in the trailer during the time Doug and Donald were gone. When questioned about the phone call Doug Ard got from Donald concerning Donald's break down she replied she did not pay any attention because the phone constantly rang all the time. Subject stated that Doug informed her of the break down and they both decided to call Jimmy.”

In a third statement, made at 6:00 p.m. on January 25, 1981 appellant denied owning a gun, or ever having seen one in the possession of Donald (Donnie) or Douglas Ard. She also stated that a week before her husband’s death she had talked over the telephone with him about “getting back together.”

Gary Michael Snell, a former co-employee with appellant at Rainbow Vacuum Cleaner Service, testified that during a conversation he had with appellant at work in September of 1980, appellant had asked him “to do away with” her husband so she could get her children back. He stated she asked him on three or four occasions to poison Mr. Tucker. Appellant offered him money to kill her husband. Snell finally told appellant that he had poisoned her husband's coffee at Big-K, but he stated he only told her that to placate her.

On another occasion, appellant and Doug Ard asked Snell if he knew someone who would help kill Tucker. Also, in October of 1980, Snell was present at appellant’s trailer with appellant and Doug Ard when he heard appellant ask Doug if he knew someone who would kill Tucker. Doug replied that his brother Donnie would, and then Doug telephoned Donnie in Snell’s presence and told him he had a job for him to do.

William Jenkins, another former employee of Rainbow, testified that he, appellant and Gary Snell were present at the appellant’s trailer in November of 1980 when appellant asked him if he “could get rid of” her husband. When he replied that he could not, appellant indicated she would find someone else.

Art Bond, whose insurance agency represented Mutual of New York, testified that his agency processed an application for a policy insuring the life of Jimmy Tucker for the Military Benefit Association. The policy, underwritten by Mutual of New York, was in fact issued.

Christine Snell, death claims specialist with Mutual of New York, stated the above referenced policy was in full force and effect, with the appellant as beneficiary, on January 24, 1981. Her files also indicated that a claim signed by appellant was filed on that policy on April 1, 1981 pursuant to and at the instigation of a company investigation of Mr. Tucker’s death.

Cynthia Ard, sister-in-law of Donnie Ard, stated she had a conversation with Donnie on December 17, 1980 concerning Jimmy Tucker. He told her he had a job to do that she did not want to know about. She asked if he was going to get rid of Jimmy Tucker, and he replied “maybe.” He later told her that Doug Ard and appellant had asked him to do the job and he was to get ten percent of the insurance money.

During a conversation on December 18, 1980, Doug Ard, who was also Cynthia’s brother-in-law, asked Cynthia if she wanted Donnie, with whom she was having an affair, to get rid of her own husband, Dave Ard. She told him he was crazy and he replied, “Well, that’s what LaDonna and I are doing.” Cynthia testified Doug specifically indicated that Donnie was “to get rid of” Jimmy Tucker.

On that same day, Cynthia had a conversation with appellant in which appellant told Cynthia she had attempted suicide because of Jimmy Tucker, but that pretty soon her problems would be over and she would not have to worry about it any more.

In December of 1980, Cynthia stated Donnie Ard told her he had previously blown up an automobile and killed a man, at the request of the man’s wife, in exchange for insurance money.

Saundra Kay Henderson testified she was present in the mobile home of Cynthia and Dave Ard in December 1980 when she overheard Donnie Ard tell Cynthia “they” were going to kill Jimmy Tucker. On another occasion she also heard both Doug Ard and appellant separately tell Cynthia that they were going to get rid of Jimmy Tucker.

Jacqueline Ledbetter, a former schoolmate of appellant’s, testified she had a conversation with appellant in which appellant stated she was studying a drug to give her husband which would kill him without leaving any aftereffects. Appellant further stated that if she could not live with him and have him, she did not want anybody to do so.

Bruce DeVane, recalled by the prosecution, testified he had a conversation with Donnie Ard on February 17, 1981 in which Ard stated he had obtained a .357 Armenus Magnum revolver from Ted Bradshaw. Ard stated he put the weapon, which was the same type weapon as the pistol used to kill Jimmy Tucker, in a bedroom closet at appellant’s trailer. The last time Ard saw the weapon was on the afternoon of January 24, 1981.

I

Appellant initially contends that she was convicted of second degree murder under Title 14, Section 314, Code of Alabama 1940. Referring the court to § 13A-5-57, Code of Alabama 1975, appellant argues the State was relegated to the imposition of the Title 14 offense by the holding in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). She contends Beck declared that § 13A-5-31, Code of Alabama 1975, was unconstitutional and that the repealer clause found in § 13A-5-57 must be referred to preexisting “constitutionally sound law,” i.e., Title 14, Section 314, Code of Alabama 1940.

Appellant’s specious argument overlooks the Alabama Supreme Court’s ruling in Beck v. State, 396 So.2d 645 (Ala.1980), which corrected those portions of the Alabama Death Penalty Act found to be constitutionally infirm under Beck v. Alabama, supra. As Beck v. State, supra, plainly states, “the Alabama rule concerning lesser included offenses will apply so that juries in capital cases will be instructed on each lesser included offense which has any basis in the evidence....” Beck v. State, at 658. Where an appellant is found guilty of a lesser included offense, the sentencing procedures for non-capital cases which are applicable at the time the offense was committed shall be applied. Beck v. State, supra.

Appellant was properly convicted of the lesser included offense of murder, per the mandates of Beck v. Alabama and Beck v. State regarding lesser included offenses. See, Busby v. State, 412 So.2d 837 (Ala.Cr.App.1982).

II

Appellant argues the State’s evidence was insufficient to prove that she and Douglas Ard “caused” Donnie Ard to kill Jimmy Tucker. Appellant asserts, as did the appellant in Busby, supra, that the jury’s conviction of appellant upon a lesser offense negates the assertion that appellant hired Donnie Ard to kill her husband for a monetary consideration. Appellant contends, just as this court pointed out in Busby, that the State’s evidence therefore must have proven that appellant and Douglas Ard caused, induced or procurred, by suggestion or other non-pecuniary measure, Donald Ard to kill Jimmy Tucker, in order to sustain appellant’s murder conviction. Busby, supra; Alabama Code § 13A-2-23 (1975) and Alabama Code § 13A-6-2(a)(1) (1975).

Appellant further grounds her argument upon the proposition that the evidence the State adduced at trial which tended to prove her guilt was inadmissible because it was introduced in the form of hearsay statements. She divides these alleged hearsay statements into two categories as follows: (1) witnesses who related statements made to them by appellant in which she elicited their help in killing her husband; and (2) witnesses who related statements made to them by appellant’s cohorts, Doug and Donnie Ard, indicating their intent to kill Jimmy Tucker.

As to the first category of statements, it is clear that statements by an accused preceding the criminal act, which assert a design or emotion indicative of guilt, are admissible against her as an admission. C. Gamble, McElroy’s Alabama Evidence § 264.01(1) (3d ed. 1977), Smoot v. State, 381 So.2d 668 (Ala.Cr.App.1980).

Appellant contends the second category of statements were inadmissible because, prior to their admission, the State failed to adequately prove that a conspiracy to kill Jimmy Tucker existed. As well, appellant contends that the State at no point in the trial independently proved that such a conspiracy existed.

Where proof of a conspiracy is shown, statements by the accused’s confederates made before, during, and in furtherence of the crime’s perpetration are admissible against the accused. Even if testimony relating statements made by confederates is objectionable as premature, in that independent proof of a conspiracy has not been established before its admittance, subsequent proof of the conspiracy cures any error in the premature admission. Conley v. State, 354 So.2d 1172 (Ala.Cr.App.1977).

We now review the State’s evidence to determine its sufficiency to sustain the jury’s verdict, as well as to prove, independently of the confederates’ statements, that a conspiracy to kill Jimmy Tucker existed.

The State’s evidence presented prior to the confederates’ statements revealed appellant’s husband was shot to death and that his body was then burned in his pickup truck. A piece of garden hose found in appellant’s automobile after the fire was examined and found to have been a part of the same garden hose found in the fill tank of the burned vehicle. A pistol and other items contained in a plastic bag were found buried in the trailer park where appellant lived. Subsequent examinations of the gun proved it to be the murder weapon.

Statements made to police by appellant shortly after her husband’s death indicated he had picked up Doug Ard at her trailer immediately before his death, after having arrived there in response to a call from Doug Ard indicating Donnie Ard had broken down with car trouble in appellant’s automobile.

Gary Snell testified that appellant had repeatedly requested in September, 1980, that he kill her husband. At this point in the trial, the State introduced Snell’s testimony that he, appellant, and Doug Ard were present during a conversation in October 1981 where appellant and/or “they” asked him about contacting another person to help- kill Mr. Tucker. Also in October 1981 Snell heard appellant ask Doug Ard' if he knew someone who would kill Tucker. Ard replied yes and then called his brother Donnie and told him he had a job for him.

Other testimony of statements made by appellant, Doug Ard, and Donnie Ard is set forth supra, which indicates appellant’s desire to find someone to kill Mr. Tucker, the fact that appellant and Doug asked Donnie to do the job for ten percent of the insurance money, and that Donnie agreed to do the job. Saundra Kay Henderson specifically testified that she heard appellant and Doug Ard state “they” were going to get rid of Mr. Tucker.

Other testimony indicated that Donnie Ard did in fact own a pistol which was the same type as the one with which Tucker was killed.

Keeping in mind that subsequent proof of a conspiracy cures any error in premature admission of a confederate’s statements, we find that the evidence adduced at trial of the gun, the hose, and appellant’s statements to both the police and third parties, independent of her confederates’ statements, was sufficient to prove the existence of a conspiracy. Considering additionally the testimony pertaining to statements made by appellant’s confederates, clearly the State established a prima facie case sufficient to sustain a jury’s finding that appellant caused, induced, or procured either Donnie or Doug Ard, or both, to kill her husband, and that she aided or abetted them in the murder. Conley, supra, Busby, supra.

Ill

Appellant contends that newly discovered evidence entitled her to a new trial. The newly discovered evidence consists solely of the testimony of Douglas Ard, given by him during appellant’s sentencing hearing on March 5, 1982.

Appellant’s written motion for new trial was filed on March 29, 1982. While it referred to newly discovered evidence generally, no specific evidence was mentioned. By letter dated April 15, 1982, appellant affirmatively waived a hearing on her motion and submitted the motion for a ruling without presenting any evidence. The trial court denied appellant’s motion for new trial by order dated April 20, 1982.

Error may not be predicated upon the overruling of a motion for new trial where there was no evidence offered in support of the motion. McKinnis v. State, 392 So.2d 1266 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1270 (Ala.1981). However, even assuming that the introduction of further evidence was unnecessary because the trial judge had prior knowledge of the evidence referred to in appellant’s March 29, 1982 motion, having presided at appellant’s sentencing hearing on March 5, 1982, we find no error. McKinnis, supra.

Douglas Ard testified at appellant’s sentencing hearing that he was responsible for Jimmy Tucker’s death. He indicated he killed Tucker without the knowledge, inducement, or participation of appellant. He stated the killing was motivated by a conversation he had heard between appellant and Tucker in which they discussed getting back together. Ard denied that there was ever any understanding or agreement among himself, appellant, and Donnie Ard to kill Jimmy Tucker. The testimony indicated that his brother’s involvement in decoying Tucker to the murder scene was innocent in nature, apparently having been done at his unexplained request. Donnie participated in disposing of the body because he felt “compelled” to help his brother.

Ard stated he first admitted killing Tucker to his attorney on February 8, 1982. On March 4, 1982 Ard told private investigator Gary Brown he murdered Tucker and requested him to inform appellant’s counsel that he desired to testify at appellant’s sentencing hearing. He did not come forward with his admission earlier because he thought appellant would be acquitted. Appellant also indicated he pleaded guilty to a charge of murder for Tucker’s death on February 9,1982, after appellant was tried. He stated he never actually told appellant that he killed Tucker prior to his testimony at the sentencing hearing.

Even though a new trial may be granted upon newly discovered evidence which indicates that another person has committed the crime for which the accused was convicted, the decision to award the new trial is vested in the sound discretion of the trial judge. Whether the new trial is to be granted depends largely on the credibility of the new evidence. Robinson v. State, 389 So.2d 144 (Ala.Cr.App.), cert. denied, 389 So.2d 151 (Ala.1980).

Motions for new trial based upon newly discovered evidence are viewed with disfavor by appellate courts, and only in cases where the trial judge has clearly abused his discretion will his decision be disturbed. Prince v. State, 356 So.2d 750 (Ala.Cr.App.1978).

Appellant’s testimony indicated in part what the State had already proved— that he and his brother participated in the death and burning of Jimmy Tucker. His admission of individual guilt came after he had already pleaded guilty to that crime and thus he did not risk conviction of the deed for admitting the crime. Also, he admitted that the murder, apparently as well as his present admission, was motivated by his love for appellant. Certainly the inference could be drawn that because he was already convicted, and that because of his relationship with appellant, he had reason to give false testimony.

Based on these observations, we do not find that the trial court abused its discretion in denying appellant’s motion. The credibility of the evidence was therefore for the trial judge to determine, and not for this court to decide. Robinson, supra.

IV

Appellant contends the trial court erred in refusing to grant a mistrial because of a comment made by the prosecutor which appellant alleges impermissibly referred to appellant’s failure to testify.

The comment referred to occurred during the presentation of the State’s case and appears in the record as follows:

“Q Did you then telephone LaDonna?
“A I telephoned her, but it took me I don’t know how long to find out that—
“MR. STEPHENS: We object, may it please the Court, what he found out in a telephone conversation.
“Q What did she state to you?
“MR. STEPHENS: We object to what she stated to him. She’s here, may it please the Court. She can tell what she told him.
“MR. CULPEPPER: Judge, we object to that. Object to the remark just made by Mr. Stephens.
“MR. SMITH: That is a highly improper statement.
“THE COURT: Sustain objection.
“MR. SMITH: And we ask the Court to reprimand—
“THE COURT: I just sustained the objection and charge the gentlemen to disregard the statement of counsel.”

We find the following language in Gamble v. State, 44 Ala.App. 1, 200 So.2d 500, cert. denied, 281 Ala. 720, 200 So.2d 504 (1967):

“The eomments by the solicitor were, in our opinion, not prejudicial to appellant. The statements were not a comment upon appellant’s failure to testify, for at this point in the trial the solicitor could not have known whether appellant was to testify or not. It is evident from the context of the argument at that time that the solicitor was arguing the admissibility of evidence which he thought was hearsay. The objection which he raised was on the basis that the witness could not say what he heard from appellant, and that only the one who spoke could actually say what transpired.
“... This statement by the solicitor was only a comment by him upon the evidence during the trial, and not an unfavorable allusion to appellant’s testimony or silence.”

Here, as in Gamble, the prosecutor’s comment was only a comment upon the evidence during trial, and not an attempt to allude to the appellant’s testimony or silence.

In Cook v. State, 52 Ala.App. 159, 290 So.2d 228 (1974), the court found no error under circumstances similar to those in the instant case. There the court held that the prosecutor’s comment was merely an incident of trial which was not intended, and could not have been construed by the jury, as a comment on the appellant’s failure to testify. Rather, it was intended as argument on the admissibility of other evidence. The court noted additionally that, just as in the instant case, the appellant had not failed to testify at the time the comment was made, and that the appellant did in fact subsequently testify.

In Collins v. State, 385 So.2d 993 (Ala.Cr.App.1979), reversed on other grounds, 385 So.2d 1005 (Ala.1980), this court stated that impermissible comments by the prosecutor need not be made only during closing argument to create reversible error. “An accused’s right to remain silent is inviolable at every stage in the proceedings and must be afforded due protection.” Collins, at 1001. Collins condemns the prosecutorial “tactic,” not here presented, of focusing the jury’s attention on what the accused will or will not testify to at trial.

Further, we have reviewed the remark and do not find it to have been so grossly improper and highly prejudicial as to have been ineradicable. Collins, supra. The trial judge sustained the appellant’s objection and immediately instructed the jury to disregard the remarks. The following then transpired:

“MR. SMITH: Judge, he has made a direct comment on the evidence that the defendant—
“THE COURT: I know what he said.
“Now, let me ask the State. Everybody is talking about eradicating. That requires comments by me to the jury that a defendant on trial has the right to remain silent, that the right to remain silent and not take the witness stand is exercised there can be no comment upon her election to remain silent or any inference or presumption taken against her, that statement by the State was statement saying she could take the witness stand, which might under some circumstances be inferred as a comment on her privelege against self incrimination or right to remain silent. The Court sustained objection and now tells the gentlemen of the jury to forget the comment and not create any presumptions against the defendant for her right to remain silent if she so elects or anything else. Assuming that she doesn’t take the witness stand what position am I going to be putting this case in by those statements at this time? Can it be properly eradicated.
“MR. CULPEPPER: We don’t think that the Court could help the situation by making those statements at this time. If the Court is going to deny the motion for mistrial then we ask that the decision about what instructions to be given along those lines be deferred until—
“THE COURT; Let me find out from all concerned, is this the time for me to start talking about presumptions, the silence and the rights of the defendant to either elect or not to elect. I can’t eradicate it any other way without going to them right now.
“MR. CULPEPPER: But, we are put in a worse position by your making that statement here in a point in the trial when it is not even known by the jury whether she will or she won’t testify.
“THE COURT: So the defense does not wish for me to make any comment at this time other than to rule on the motion for mistrial?
“MR. SMITH: At this time, Judge.”

The court’s failure to go further in attempting to eradicate any potential negative effect of the statement was at the appellant’s insistence. The appellant having affirmatively requested that the trial court refrain from further instructing the jury, she waived her original objection and may not now seek reversal against her own invited error. Collins, supra.

Considering that the remark was made by the prosecutor before the appellant subsequently testified, due to an incident of trial which was not intended or to be understood as a comment on appellant’s failure to testify, and that any potential error was waived by appellant’s request that the court omit further curative instructions, we find no error.

V

Appellant’s final contention is that the court erred in failing to excuse for cause a jury venireman who was the brother of one of the State’s witnesses. Appellant’s challenge appears in the record as follows:

“MR. CULPEPPER: We want to challenge Jerry Bradshaw for cause. He is the brother of perhaps the most material witness in the entire case.
“MR. STEPHENS: That don’t make any difference.
“THE COURT: Challenge denied.
“MR. CULPEPPER: We respectfully except.
“MR. SMITH: We represent to the Court that he was identified and stated to the Court during the qualifying questions that he is a brother to Ted Bradshaw. We represent to the Court that Ted Bradshaw is a material witness; very, very material witness for the State who will testify in this proceeding. We think that should disqualify him.
“THE COURT: I disagree.”

On appeal appellant now argues that because the defendant viewed the evidence presented at trial as indicating that Ted Bradshaw may have been implicated in the crime, Bradshaw’s brother, Jerry, would have had an impermissible interest, under § 12-16-150(6), Code of Alabama 1975, in convicting appellant in order to “draw further suspicion away from Ted.” The appellant does not contend, and the record does not reveal, that the trial court was ever apprised of appellant’s theory during the jury selection process or at any time prior to or during trial.

We note also that the venireman in question did not serve on appellant’s jury, having been peremptorily struck by appellant.

Alabama cases, both criminal and civil, as well as general statements of the law in this area, state that the relationship of a prospective juror to a witness does not as a general rule disquality him as a juror. Rakestraw v. State, 22 Ala.App. 487, 116 So. 414 (1928); Nix v. City of Andalusia, 21 Ala.App. 439, 109 So. 182 (1926); Tidmore v. Mills, 33 Ala.App. 243, 32 So.2d 769, cert. denied, 249 Ala. 648, 32 So.2d 782 (1947); 47 Am.Jur.2d Jury § 315 (1969); see also Jones v. State, 230 Ark. 18, 320 S.W.2d 645 (Ark.1959).

It has been held that the mere fact, standing alone, that a juror is related to a witness does not ipso facto disqualify him from service. State v. Jones, 345 So.2d 1157 (La.1977). The Louisiana court has also held that the relationship between a prosecuting witness and a juror who were step-brothers was not in itself a ground for disqualification. State v. Oliver, 193 La. 1084, 192 So. 725 (La.1939).

Our review of the law indicates there is no general per se rule of the common law which disqualifies a juror because of his relation to a witness. See, State v. Hilton, 87 S.C. 434, 69 S.E. 1077 (S.C.1911). Our statute contains no such disqualification in its enumerated causes for challenge. Watson v. State, 398 So.2d 320 (Ala.Cr.App.1980), cert. denied, 398 So.2d 332 (Ala.1981), cert. denied, 452 U.S. 941, 101 S.Ct. 3085, 69 L.Ed.2d 955 (1981); Ala.Code § 12-16-150 (1975).

We turn to the question of the merits of appellant’s argument that the juror had an “impermissible interest” under § 12-16-150(6), Code of Alabama 1975.

Appellant did not request at trial that either she or the court inquire further of the juror to ascertain the existence of any possible prejudicial interest. While the trial court is under a duty to preserve the rights of an appellant to question a witness to determine interest or bias, no request by appellant was made here, and the grounds for challenge stated by appellant would not have put the trial court on notice to itself inquire further. Smithson v. State, 50 Ala.App. 318, 278 So.2d 766 (1973). No testimony was presented to the trial court, prior to trial, or on motion for new trial, to demonstrate the cause for bias asserted by appellant on appeal.

Smiley v. State, 371 So.2d 469, 470 (Ala.Cr.App.1979) applies the following standard:

“The rule to govern us is succintly stated in Williams v. State, Ala., 342 So.2d 1328, 1329, as follows:
“ ‘We state the rule thusly: A motion challenging the composition of a grand jury, a petit jury, or qualifications of individual jurors, filed after the commencement of trial, must allege, and proof must show, that grounds for the motion were not known to the defendant before he went to trial, or that he could not have known them by exercising due diligence.’ ” (emphasis supplied).

The trial transcript reveals that appellant was aware of the alleged bias made the grounds for challenge on appeal prior to the commencement of trial. In fact, it appears she attempted to base her defense, in part, upon the alleged implication of Ted Bradshaw. Her failure to bring this known issue to the court’s attention prior to trial, and her failure to allege and prove upon her motion for new trial that the grounds were unknown to her prior to trial precludes any finding of error by this ■court. Smiley, supra.

Additionally, in our view, the evidence presented at trial worked as much to exonerate Ted Bradshaw as to implicate him. While Bradshaw may have at one time possessed the murder weapon, Officer De-Vane testified that Donnie Ard stated he obtained ownership of the pistol from Bradshaw for $165 prior to the victim’s murder. Other proof pointed to by appellant in arguing her contention on appeal is vague, equivocal, and inconclusive.

Finally, we note that the entire jury ve-nire, including the veniremen in question, was asked the following:

“MR. STEPHENS: Ladies and Gentlemen, my name is Lewey Stephens. Several of you raised your hand and said that you had read or heard something about the ease, this case and/or the case of Donnie Ard and/or the case of Doug Ard. I ask you if anything you have heard or read would affect your taking the evidence in this case as it is given to you from the stand and the law as the judge outlines to you and base any verdict that you might reach in this case strictly on the evidence in this case and the law as the Judge explains it to you? Any of you have any problem with that. “(No juror responded in the fact they would have a problem. Mr. Stephens asked this question in a similar fashion to all the other groups and no juror responded positive that they would have a problem.)”

To be disqualified as a juror, a venireman must have more than a bias as to the guilt of the accused. The opinion must be so fixed that it would bias the verdict the juror would be required to render. Tidmore v. City of Birmingham, 356 So.2d 231 (Ala.Cr.App.1977), cert, denied, 356 So.2d 234 (Ala.1978), cert, denied, 439 U.S. 836, 99 S.Ct. 120, 58 L.Ed.2d 132 (1978). No such disqualifying bias, under any rationale, is demonstrated on appeal.

For the reasons stated above, the judgment of conviction by the Coffee Circuit Court is hereby affirmed.

AFFIRMED.

TYSON, HARRIS and BOWEN, JJ., concur.


author: EMBRY, Justice.

text:
    Ex parte LaDonna Lynn Huddleston TUCKER. (Re LaDonna Lynn Huddleston Tucker v. State of Alabama).
    82-758.
    Supreme Court of Alabama.
    March 9, 1984.
    As Corrected on Denial of Rehearing May 11, 1984.
    Maury Smith, Sterling G. Culpepper, and Edward B. Parker, II of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen. and William D. Little, Asst. Atty. Gen., for respondent.
   EMBRY, Justice.

On petition of LaDonna Lynn Huddleston Tucker, we granted the writ of certiorari in order to review the decision of the Court of Criminal Appeals affirming petitioner’s conviction for murder and sentence to life in the penitentiary. We reverse.

The first issue which we address is whether the trial court erred in denying Tucker’s motion for a mistrial based on the alleged impropriety of certain comments made by the prosecutor. Tucker contends the disputed comments amount to an impermissible reference to her failure to testify-

During the direct examination of a defense witness, the record shows, the following transpired:

“Q Did you then telephone LaDonna? [the defendant]
“A I telephoned her, but it took me I don’t know how long to find out that—
“MR. STEPHENS: We object, may it please the Court, what he found out in a telephone conversation.
“Q What did she state to you?
“MR. STEPHENS: We object to what she stated to him. She’s here, may it please the Court. She can tell what she told him.
“MR. CULPEPPER: Judge, we object to that. Object to the remark just made by Mr. Stephens.
“MR. SMITH: That is a highly improper statement.
“THE COURT: Sustain objection.
“MR. SMITH: And we ask the Court to reprimand—
“THE COURT: I just sustained the objection and charge the gentlemen to .disregard the statement of counsel.” (Emphasis added.)

Where there is a direct reference to defendant’s failure to testify, it constitutes ineradicable prejudicial error requiring reversal. Section 6, Const, of Ala. of 1901, is violated. Ex parte Beecher, 294 Ala. 674 at 682, 320 So.2d 727 at 735 (1975). See Ex parte Dobard, 435 So.2d 1351 (Ala.1983).

Clearly, the prosecutor’s comments in the case at bar raise the possibility that the jury could have understood them to be a reference to the defendant’s failure to testify. In our view, these comments most probably made an indelible impression upon the jury, alerting the jury to the defendant’s opportunity to refute the State’s case. After such a comment, a defendant must either testify, or admit guilt by silence.

The State argues further that any prejudicial impact was eradicated by the trial court’s instructions to disregard the comments. On this point, we consider the comments to be so prejudicial as to be ineradicable. Ex parte Beecher, 294 Ala. 674, 320 So.2d 727 (1975).

On a second point, we note that during the qualification of the venire, it was discovered that a potential venireman, Jerry Bradshaw, was the brother of a witness for the State. Counsel for petitioner challenged the venireman for cause, stating, “He is the brother of perhaps the most material witness in the entire case.” The trial judge denied the challenge. To do so was reversible error. Nobis v. State, 401 So.2d 191 (Ala.Crim.app.), cert. denied, 401 So.2d 204 (Ala.1981).

For the foregoing reasons, the judgment of the Court of Criminal Appeals is due to be, and it is hereby, reversed.

REVERSED AND REMANDED.

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


author: PATTERSON, Judge.

text:
    LaDonna Lynn Huddleston TUCKER v. STATE.
    4 Div. 44.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
   PATTERSON, Judge.

Reversed and Remanded on authority of Ex parte LaDonna Lynn Huddleston Tucker, 454 So.2d 552 (Ala.1984).

REVERSED AND REMANDED.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Marie Susan HOTALING, Respondent.
    No. 62782.
    Supreme Court of Florida.
    March 29, 1984.
    Rehearing Denied Sept. 18, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Jacquelyn Plasner Needel-man, Branch Staff Counsel, Fort Lauder-dale, for complainant.
    Philip J. Gouze, Fort Lauderdale, for respondent.
   PER CURIAM.

This attorney disciplinary proceeding, against Marie Susan Hotaling, a member of The Florida Bar, is before us on the complaint of The Florida Bar and report of the referee. Pursuant to article XI, Rule 11.-06(9)(b) of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. The Florida Bar has petitioned for review pursuant to article XI, Rule 11.09(1) of the Integration Rule of The Florida Bar. We have jurisdiction. Art. V, § 15, Fla. Const.

The referee found that respondent had neglected the work of two clients and concluded (1) that in handling a personal injury matter the respondent had violated Disciplinary Rule 6 — 101(A)(3) of the Code of Professional Responsibility in that she neglected a legal matter entrusted to her, and also violated Disciplinary Rule 7-101(A)(l) in that she failed to seek the lawful objectives of her client; and (2) that in representing a client in a dissolution and child custody matter she was not competent to handle the matter in violation of Disciplinary Rule 6 — 101(A)(1), that she handled the matter without adequate preparation in violation of Disciplinary Rule 6-101(A)(2), that she neglected a legal matter entrusted to her in violation of Disciplinary Rule 6-101(A)(3), and that she engaged in conduct prejudicial to the administration of justice in violation of Disciplinary Rule 1-102(A)(5). In summary, the referee found that respondent represented these two clients in an incompetent manner. The referee determined that there was no fraud or deceit involved and could only conclude that respondent’s organization and preparation did not meet any type of reasonable standard. The referee found as mitigating circumstances that many of the complainants’ accusations were over-reaching and unbelievable; that some of respondent’s problems appeared to stem from her inability to turn down clients from lower economic levels and from her taking the cases on short notice; and that there was a lack of prejudice to either of the clients involved.

Regardless of these mitigating circumstances, the referee recommended that the respondent be suspended for eighteen months and be placed on a bar-supervised probation for a period of two years after readmittance and reinstatement. Further, he would require respondent to (1) complete an office management course, (2) complete an ethics course or pass the ethics portion of the bar exam, and (3) associate herself with an AV-rated firm to see how the firm is properly operated. The board of governors recommends a three-month- and-one-day suspension, followed by a two-year period of bar-supervised probation, as well as completion of a trial advocacy course and completion of an ethics course or successful retaking the ethics portion of the bar exam.

Our review of prior disciplinary cases reflects that the discipline recommended by the referee for this offense is inappropriate, particularly where the conduct was not dishonest or deceitful, there was no prior disciplinary proceeding against respondent, and the clients suffered no prejudice in the final resolution of their cases.

We concur with the referee in his findings of fact which are supported by clear and convincing evidence. We disagree, however, with the referee and the Bar as to the matter of discipline. Under the facts of the instant case, the proper penalty is a public reprimand together with a two-year period of bar-supervised probation, during which time the respondent shall quarterly report to the Bar an inventory of her pending cases. The publishing of this opinion in Southern Reporter will constitute the public reprimand.

The cost of these proceedings in the amount of $3,499.38 are assessed against the respondent.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.


text:
    David GORHAM, Appellant, v. STATE of Florida, Appellee.
    No. 62882.
    Supreme Court of Florida.
    July 19, 1984.
    Rehearing Denied Sept. 18, 1984.

      Michael D. Gelety, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen. and Max Rud-mann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This direct appeal from conviction of first-degree murder and sentence of death is before us pursuant to article V, section 3(b)(1). We affirm the conviction and sentence.

The body of Carl Peterson was found in a bathroom inside a warehouse on the evening of October 30, 1981, by officers of the Pompano Police Department. The officers were accompanied by Kenneth Gardner, an inmate of Pompano Correction Center who, while returning from work-release, had seen two men at the warehouse and soon after had heard shots. Peterson’s pockets had been pulled inside-out and various papers and Peterson’s wallet were found near the body. Peterson had been shot twice with .38 caliber ammunition.

The next day, Carl Peterson’s credit cards were used at various stores in the area. The phone number on the receipts led police to Moses Jordan, who in turn directed the police to appellant’s cousin. From the cousin, police learned that appellant matched the descriptions provided by store clerks of the man using the credit cards. Appellant’s fingerprints were on file and matched a fingerprint found on one of Peterson’s papers. Also, two of the store clerks were able to positively identify appellant from a photograph.

Police investigation led to an apartment rented by Diane Walker, where appellant lived with Walker’s mother. Upon searching the apartment, with Walker’s permission, the police found some of the purchases charged to Peterson’s credit cards and .38 caliber bullets. After his arrest by the Pompano police, appellant made three tape-recorded statements.

He was tried and found guilty, but a mistrial was declared before sentencing. On retrial, the victim’s wife testified that her husband was in the habit of carrying large sums of money. Ada Johnson testified that appellant had attempted to rent an apartment from her, had shown her a pistol and promised to get the approximately $600 he would need for rent and deposits. Both Gardner and Johnson testified to having seen a man run from the scene of the crime. Gardner said the appellant was definitely not the man; Johnson testified she could not see the man’s face, but that she thought it was the appellant.

The jury found appellant guilty of first-degree murder and attempted robbery and recommended a life sentence. The judge overrode the jury recommendation and imposed the death penalty and a fifteen-year sentence for attempted robbery.

Appellant raises nine points in appealing the conviction, only one of which merits discussion. Before the first trial, Gorham filed a motion in limine to prevent the state from presenting evidence of other criminal activity by the defendant. Specifically, Gorham objected to extensive evidence of the use of the victim’s credit cards, claiming it would simply put his character at issue and tend to show a criminal propensity. The trial court ordered that evidence of Gorham’s use of the cards would be admitted but should not become a major feature of the trial. At trial, Gorham offered to stipulate possession and use of the cards before evidence of every purchase was presented by the prosecution.

On appeal, Gorham contends that the presentation of six witnesses who testified to Gorham’s use of the victim’s credit cards and identified the items purchased with those cards was a major feature of the trial and was unduly prejudicial. The state replies that the discovery of some of the merchandise in the same closet as the box of bullets identical to those which killed Peterson was an important link in the largely circumstantial case against Gor-ham. Appellant concedes the relevance but argues that the stipulation, if accepted, would have served the prosecution’s purpose and would have avoided prejudicing the jury against Gorham because of irrelevant character evidence.

First, we note that the evidence presented is not similar-fact evidence and thus does not fall within the Williams rule, Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). The evidence adduced by the prosecution witnesses did not bring before the jury unrelated bad acts of the appellant, rather it served to link the appellant to the victim circumstantially. Neither is this character evidence, which is offered to show that appellant acted in conformity with past character, as proscribed in section 90.404, Florida Statutes (1981).

We must therefore weigh the danger of unfair prejudice to the defendant against the admitted relevance of the evidence. § 90.403, Fla.Stat. (1981). Not only was the defense willing to stipulate to the purchases Gorham made with Peterson’s credit cards, the prosecution later submitted into evidence Gorham’s own taped statements detailing his shopping spree. To the extent the testimony of the shop assistants who processed these purchases and the merchandise itself reflected on Gorham’s character, it was illustrative only of greed, not of a propensity toward violent crime. The jury’s unfair prejudice against Gorham, if any, which the evidence would promote would have been reflected in its findings on the second count of the indictment, the robbery charge. In fact, the jury convicted Gorham only of the lesser-ineluded offense of attempted robbery. While we do not necessarily approve the repetitious and cumulative nature of the evidence of the purchases in the state’s case, we do not find any prejudice to the defendant which outweighed the evidence’s relevance to the state’s case.

We have considered the other eight points raised and find them meritless. We have thoroughly examined the entire record and find that the evidence more than sufficient to support appellant’s convictions, and we find no error which would require reversal. Accordingly, the convictions for first-degree murder and for attempted robbery are affirmed.

Appellant takes issue with the trial court’s imposition of sentence for both the murder and what appellant characterizes a.s the underlying felony, attempted robbery. However, the evidence presented was clearly supportive of a finding of first-degree premeditated murder; the attempted robbery was an accompanying felony, not a felony necessary to a conviction for felony murder. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); State v. Hegstrom, 401 So.2d 1343 (Fla.1981). We find no error.

In imposing the death penalty, the trial court found four aggravating circumstances: The crime was committed while defendant was under sentence of imprisonment; the murder was committed during the commission of a felony; the murder was especially heinous, atrocious and cruel; and the murder was cold, calculated and premeditated. On reviewing the record, we can accept the first two, but we find the last two improper.

The trial court grounded its finding that the murder was especially heinous, atrocious and cruel on the victim’s having been shot twice in the back, indicating a lack of resistance to the robbery. Evidence establishes that one of the shots penetrated the heart, causing death within ten seconds. There was evidence disproving any possibility of prolonged and torturous captivity and no evidence whatsoever that the victim apprehended certain death more than moments before he died. While the murder was, of course, a cruel and unjustifiable deed, there is nothing about it to “set the crime apart from the norm of capital felonies.” State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). See also Armstrong v. State, 399 So.2d 953 (Fla.1981) (bodies were found fifteen minutes after shots were heard; death was instantaneous and not especially heinous, atrocious and cruel); Menendez v. State, 368 So.2d 1278 (Fla.1979) (in spite of submissive posture of victim who died after being shot twice, murder was not especially heinous, atrocious and cruel). This aggravating factor cannot be sustained.

The trial court based the finding that the murder was cold, calculated and premeditated on the evidence that “the killing was the consumation of a robbery wherein there was no evidence of resistance by the victim. The Defendant ... [has shown] absolutely no feeling or remorse for the act.” This aggravating circumstance applies only to crimes which exhibit a heightened premeditation, greater than that required to establish premeditated murder. Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). This heightened premeditation must also be proved beyond a reasonable doubt. Williams v. State, 386 So.2d 538 (Fla.1980). The record arguably bears evidence that the robbery was premeditated in a cold and calculated manner, but that premeditation cannot automatically be transferred to the murder itself. The physical evidence was not determinative of the issue beyond a reasonable doubt, and there was no other evidence as to this factor. This aggravating factor cannot be sustained. We would also commend to the trial court’s attention this Court’s recent decision, Pope v. State, 441 So.2d 1073 (Fla.1983), in which all consideration of lack of remorse is held to be improper in making findings of fact in support of aggravating factors.

The finding that appellant was under sentence of imprisonment when the murder was committed was based on certified copies of records from North Carolina showing that a David Kidd Gorham, a black male with the same date of birth as the defendant, had been sentenced to prison and had escaped. The records were introduced by a Florida assistant state attorney who had no first-hand knowledge of the identity of the man sentenced in North Carolina and were accompanied by neither photographs nor fingerprints. The defendant contends that the state has not met its burden of proving each aggravating factor beyond a reasonable doubt. We recognize that the introduction into evidence of photographs or fingerprints of the man convicted in North Carolina would have foreclosed any doubt whatsoever on this issue. Nonetheless, in this instance at least, the identical name, sex, race and date of birth of the defendant and the North Carolina convict were sufficient to meet the state’s burden of proving beyond a reasonable doubt they were the same person. Parenthetically, we note that the defendant was provided a copy of the pre-sentence investigation the trial court considered before sentencing the defendant. The North Carolina conviction was included in the report, and the defendant neither voiced any objection to its being considered against him nor took issue with it.

The trial court properly found that the murder was committed during commission of a felony and found no mitigating factors. In spite of the jury’s recommendation of life, the trial court imposed the death penalty. Faced with two proper aggravating factors weighed against the absence of any mitigating circumstances, we agree that the facts suggesting a sentence of death are so clear and convincing that virtually no reasonable person could differ. Tedder v. State, 322 So.2d 908 (Fla.1975). The jury override was proper and a review of similar cases indicates that the death penalty is appropriate to the crime committed.

For the foregoing reasons, appellant’s convictions on both counts and the sentence of death are affirmed.

It is so ordered.

BOYD, C.J., and ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs in the conviction, but concurs in result only in the sentence.

OVERTON, J., concurs in the conviction, but dissents from the sentence.