author: WRIGHT, Presiding Judge.

text:
    In the Matter of Laura Leigh McKENZIE, a minor child, twelve years of age. Sara R. SISTRUNK v. Gerald F. McKENZIE.
    Civ. 3537.
    Court of Civil Appeals of Alabama.
    April 6, 1983.
    Rehearing Denied May 11, 1983.

      T. Thomas Cottingham, of Thomas, Tal-iaferro, Forman, Burr & Murray, Birmingham, for appellant.
    William J. Baxley and Joel E. Dillard, of Baxley, Beck & Dillard, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

The mother and custodian of a minor female child, age twelve, brought a petition alleging a need for the immediate protection of the child under § 12-15-30(c)(l)a, Code of Alabama 1975. The premise of the petition was that the Chancery Court of Hines County, Mississippi, had recently modified a divorce decree granted by it in 1978. Such modification, entered upon the petition of the father, provided certain specific times and circumstances for the exercise of the visitation privileges of the father with his daughter. The judgment of modification is presently on appeal by the mother before the Supreme Court of Mississippi. The mother and her minor daughter are residents of Jefferson County, Alabama. The mother, claiming possible harm to the child from her compliance with the Mississippi decree, asks the Jefferson County Court to protect her under its emergency powers from the Mississippi judgment.

The Jefferson County Juvenile Court, acting upon motion of the father, dismissed the petition for want of jurisdiction under the Federal Parental Kidnapping Prevention Act of 1980 (28 U.S.C. § 1738A).

The Federal Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A (PKPA) and its state corollary, the Alabama version of the Uniform Child Custody Jurisdiction Act (UCCJA) enacted in 1980, prohibit Alabama courts in this case from modifying the Mississippi court’s child custody determination unless Alabama courts have jurisdiction and the Mississippi courts either no longer have jurisdiction or have declined to exercise jurisdiction. The Mississippi courts obviously have not declined to exercise jurisdiction. Therefore, Alabama courts are not allowed to modify the custody order of the Mississippi court under the federal act. Pitts v. Sutter, 408 So.2d 105 (Ala.Civ.App.1981), cert. denied, 408 So.2d 114 (Ala.1982).

The mother asserts in brief that a protective order issued under § 12-15-30(c)(l)a is not a modification of a custody determination under the PKPA. The PKPA in subsection (b)(5) defines modification as a custody determination which modifies, replaces, supersedes or otherwise is made subsequent to, a prior custody determination concerning the same child, whether made by the same court or not. Subsection (b)(3) defines a custody determination as a judgment, decree, or other order of a court providing for custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modification. The petition filed by the mother and the exhibits before the court not only fail to show the necessary basis for the assumption and exercise of jurisdiction of the juvenile court under § 12-15-30(c)(l)a, but very clearly show the purpose of the petition to be the blocking or thwarting of a properly entered judgment of a court of general jurisdiction of a sister state. Such judgment is due statutory full faith and credit in this state. 28 U.S.C. 1738A (PKPA). It is additionally entitled to recognition and enforcement under our own statute (UCCJA) § 30-3-33, Code 1975.

Section 30-3-23(a)(3) (UCCJA) and § 8(c)(2)(C) of PKPA each contain similar provisions as those of § 12-15-30(c)(l)a. Such provision in our UCCJA act is as follows:

“§ 30-3-23(a)(3) — A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if
“(3) The child is physically present in the state and:
“a. The child has been abandoned; or
“b. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.”

The provisions of PKPA are almost identical to the above. It is evident that it was anticipated in both federal and state statutes that emergency circumstances as defined might arise which required immediate protection of a court of the state where the child was at the time. The provisions of UCCJA following that above quoted, clearly indicate that if there are then simultaneous proceedings in another state with jurisdiction, this state shall not exercise its jurisdiction without first consulting with the court where such matters are pending in the other state. § 30-3-26, Code 1975.

Whether the petition is filed as here or under UCCJA, there must be pleading and proof that a defined emergency exists requiring the protection of the child by the courts of this state as opposed to the courts of another state where there is an order in force. We find the trial court correctly found that there was no basis for invoking its emergency jurisdiction. Such finding was proper and in accord with the PKPA and UCCJA.

It was also proper under § 12-15-30(c)(l)a for the reason that there was shown no emergency sufficient to invoke its jurisdiction. The mother’s proper forum for relief is the Mississippi court.

The contention of the mother that 28 U.S.C. § 1738A (PKPA) violates the tenth amendment if it prohibits this state from protecting children within its boundaries from abuse is not well taken. We have above shown that there is no such prohibition in the Act. The provisions of the Act expressly provide to the contrary.

The Juvenile Judge of Jefferson County was emminently correct in not permitting the court to be used to circumvent the judgment of the Mississippi court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . The UCCJA provides substantially the same definition in § 30-3-22, Code of Alabama 1975.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Sara R. SISTRUNK (Re In the Matter of Laura Leigh McKENZIE; Sara R. SISTRUNK v. Gerald F. McKENZIE.
    82-804.
    Supreme Court of Alabama.
    Sept. 23, 1983.
    T. Thomas Cottingham of Thomas, Tal-iaferro, Forman, Burr & Murray, Birmingham, for petitioner.
    William J. Baxley and Joel E. Dillard of Baxley, Beck & Dillard, Birmingham, for respondent.
   PER CURIAM.

Writ quashed, 439 So.2d 700, as improvidently granted. Ex parte Dean [MS. September 16, 1983], (Ala.1983).

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


author: BRADLEY, Judge.

text:
    GOLD KIST, INC., a corporation v. Albert Lee BARNETT.
    Civ. 3646.
    Court of Civil Appeals of Alabama.
    June 1, 1983.
    Rehearing Denied July 6, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-992.
    Michael B. Maddox of Clark & Maddox, Birmingham, for appellant.
    Margie Keener Carnes of Carnes & Carnes, Gadsden, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Albert Lee Barnett, employee, was, as a result of a childhood accident, blind in his left eye. While at work on December 7, 1981, employee sustained an injury to his blind eye. The eye was surgically removed and he was fitted with a prosthetic device. Employee filed a complaint in the Etowah County Circuit Court for workmen’s compensation benefits against his employer, Gold Kist, Inc.

After discovery employee filed a motion for summary judgment. The trial court granted summary judgment and held that employee’s injury fell within the scheduled injury provision for loss of an eye as provided in the Workmen’s Compensation Act, section 25-5—57(a)(3)(a)(17), Code 1975. In reaching this conclusion the trial court relied on Minnesota case law in which the Minnesota Supreme Court determined that removal of a previously blinded eye, necessitated by a work-related accident, is com-pensable as “loss of an eye” under the scheduled injury provisions of the Minnesota code. Mosgaard v. Minneapolis St. Ry. Co., 161 Minn. 318, 201 N.W. 545 (1924). Employer appeals.

The sole issue raised by the employer is whether the loss of a sightless eye is com-pensable under Alabama’s workmen’s compensation statutes. Although this is a case of first impression for this court, several jurisdictions have confronted this issue. However, there exists a split among the jurisdictions as to whether compensation should be granted in such circumstances. See generally 82 Am.Jur.2d Workmen’s Compensation § 354 (1976); 99 C.J.S. Workmen’s Compensation, § 316 (1958).

The jurisdictions which do not allow scheduled injury compensation for removal of a previously blinded eye generally hold that for there to be a “loss of an eye,” the eye must, prior to injury which causes uselessness of the eye or necessitates enucleation, perform in some degree the functions of a normal eye and therefore have some usefulness in industry. See, e.g., D’Amico Macaroni Co. v. Industrial Commissions, 44 Ill.2d 519, 256 N.E.2d 9 (1970); Rye v. Chevrolet Motor Co., 229 Mich. 39, 201 N.W. 226 (1924). The requisite degree of vision in the eye before the injury varies widely among these jurisdictions from the ability only to distinguish light from darkness, Purchase v. Grand Rapids Refrigerator Co., 194 Mich. 103, 160 N.W. 391 (1916), to a twenty percent of normal vision, with glasses, requirement. Cook v. Colby College, 155 Me. 306, 154 A.2d 169 (1959).

Employer urges this court to follow this approach and asserts that the basic premise of the Workmen’s Compensation Act is that compensation should be paid in accordance with loss of earning capacity. Gold Kist recognizes that the scheduled injury provisions of the Act are not dependent upon actual wage loss. However, scheduled injury statutes should not be construed in a manner which would thwart the controlling purpose of the compensation act — that the worker be compensated for his loss of ability to earn, not physical injuries as such. Employer claims that Barnett’s injury did not affect his earning capacity.

As noted by the trial court in its conclusion of law, our Workmen’s Compensation Act was modeled after the Minnesota act and our supreme court has held that the Minnesota construction of their laws is of persuasive value to our courts. Eley v. Brunner-Lay Southern Corp., 289 Ala. 120, 266 So.2d 276 (1972); Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958); Swift & Co. v. Rolling, 252 Ala. 536, 42 So.2d 6 (1949); Pow v. Southern Construction Co., 235 Ala. 580, 180 So. 288 (1938).

The Minnesota Supreme Court, in granting compensation for loss of a blind eye, looked to the plain language of the statute, which gives compensation for loss of a body member without reference to the ability of the member to perform its natural functions. The inequalities such an award created was a matter for the legislature, not the courts. Shaughnessy v. Diamond Iron Works, 166 Minn. 506, 208 N.W. 188 (1926); Mosgaard v. Minneapolis St. Ry. Co., supra.

In Riegle v. Fordon, 273 App.Div. 213, 76 N.Y.S.2d 523 (N.Y.App.Div.1948), the New York appellate court responded to an employer’s argument that “loss of a member” compensation should not be awarded for loss of a useless member — a sightless eye— by stating:

“The statute makes no such distinction. Workmen’s Compensation Law, § 15, subd. 3. If the word ‘useful’ is to be interpolated it should be done by the Legislature. Moreover, there are other considerations beside disfigurement. Doubtless most people would prefer to retain and not lose a natural eye even though the eye may be sightless. An artificial eye may well produce discomfort and irritations. And beyond this there usually remains with the average person the hope that the advancement of medical science may provide a way for restoration of sight. These considerations should not be ignored by judicial interpolation.”

Riegle v. Fordon, supra.

The Kansas Supreme Court in Hemphill v. Co-operative Refinery Association, 174 Kan. 301, 255 P.2d 624 (1953), took a similar approach and held that their statute did not restrict compensation for “loss of an eye” to the loss of a perfect eye. Recovery should be allowed under the statute for loss of a sightless eye.

When faced with the same issue as in the case at bar, the Supreme Court of Mississippi stated that:

“The [Mississippi] legislature provided that an employee shall receive benefits for 100 weeks for the loss of an eye and it made no distinction between a good eye and a defective eye nor did it limit recovery to the loss of vision in an eye. The employee in this case has unquestionably lost an eye and under our declared policy of interpreting the statute favorably to the workman we cannot write into the act that it covers only the loss of vision for the act does not so provide. If it is to be so limited, that is a matter for the legislature and not for the courts.”

McKenzie v. Gulf Hills Hotel, 221 Miss. 723, 74 So.2d 830 (1954).

The plain language of the Alabama statute does not limit “loss of an eye” recovery to the loss of an eye with vision. Given the persuasive authority of the Minnesota decisions on this court and our policy to construe the workmen’s compensation statute liberally in favor of the employee we affirm the trial court’s decision.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Troy E. LANGSTON, Jr., et al. v. BESSEMER CARRAWAY MEDICAL CENTER, INC.
    Civ. 3801.
    Court of Civil Appeals of Alabama.
    Oct. 5, 1983.
    J. William Thomason, Bessemer, for appellants.
    Crawford S. McGivaren, Jr. and Frank D. McPhillips of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellee.
   HOLMES, Judge.

Plaintiff sued the defendant. A summary judgment was granted in favor of the plaintiff. The defendant appeals and we affirm.

Defendant was hospitalized at the Bessemer Carraway Medical Center, Inc., between May 19, 1976, and June 19, 1976. It is undisputed from the record before this court that he incurred charges in the amount of $5,303.90. When the bill was not paid on December 11, 1977, the plaintiff hospital filed the suit which is the basis of this appeal. Suit was for “$5,303.90 due by note” plus interest and reasonable attorney fees.

The complicated procedural history of this case need not be detailed as the instant appeal is concerned only with the May 11, 1979, summary judgment entered against defendant. Defendant, through able counsel, contends that this judgment should be overturned as the proof offered on the summary judgment motion varied fatally from the allegations of the complaint. In support of this argument, defendant cites Mid-State Homes, Inc. v. Cone, 294 Ala. 310, 316 So.2d 333 (1975); and W.B. Davis Hosiery Mill, Inc. v. Word Lumber Co., 49 Ala.App. 492, 273 So.2d 469 (1972), cert. denied, 290 Ala. 372, 273 So.2d 474 (1973). The “fatal variance” upon which defendant relies is the following: the complaint urges that the indebtedness is “due by note” whereas the proof offered on the summary judgment, to wit, a supporting affidavit, established that the indebtedness was based not on a note but instead on an open account.

Plaintiff opposes, citing Alabama Rule of Civil Procedure 15(b), and urging this court to find that because defendant has never before objected to the open account evidence presented on the summary judgment motion the pleadings were by operation of rule 15(b) automatically amended to conform to the evidence. See, e.g., Haynie v. Byrd, 429 So.2d 973 (Ala.1983);. Bischoff v. Thomasson, 400 So.2d 359 (Ala.1981).

After having reviewed the record in this case this court must adopt plaintiff’s argument and find that the “fatal variance” between the complaint and the proof was waived by defendant’s failure to object to the proof offered on the summary judgment motion, and, further, that by operation of A.R.Civ.P. 15(b) the complaint was amended to support an action on an open account. The facts of this case establish that plaintiff’s motion for summary judgment with supporting affidavit proffering the amount was due by open account was filed on December 5, 1978, that the motion was heard — with defendant’s counsel present — on April 27, 1979, and that summary judgment was rendered on May 11, 1979. At no time does the record reveal defendant objected to evidence of the open account debt, nor offered evidence to the contrary. This total failure to object to the open account issue injected by plaintiff’s motion, especially in light of the response obligation imposed by A.R.Civ.P. 56(e), see Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976), supports plaintiff’s contention that rule 15(b) should apply. Although defendant later filed a motion to set aside the summary judgment, that motion cited other grounds and made no mention of the variance here relied upon. Under these circumstances, this court has no option but to hold the variance, if there in fact be one, to be in effect waived. See, e.g., Johnston v. U-Haul of Southern Alabama, Inc., 357 So.2d 665, 666 (Ala.Civ.App.1978); McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573, 575-76 (1975).

We further note that, as indicated above, the plaintiff filed a supporting affidavit to the effect that the amount claimed was in fact owed by the defendant to the plaintiff. The defendant in response to the plaintiff’s evidence offered no evidence to the contrary. As the Supreme Court of Alabama stated in Hart v. General Motors Acceptance Corporation, 437 So.2d 1255 (Ala.1983): “ ‘When no evidence is offered to contradict that presented by the movant, then the court has no alternative but to consider the evidence uncontroverted and summary judgment, if warranted by such evidence, may be entered against the non-moving party.’ ...”

This case is due to be affirmed.

AFFIRMED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Maurice McKENNIE v. STATE.
    3 Div. 386.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1982.
    Rehearing Denied Nov. 23, 1982.

      James T. Upchurch, III of Rushton, Stakely, Johnston & Garrett, Montgomery, and David B. Cauthen, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

This appellant was found guilty under Counts 2 and 4 of an indictment. The only two other counts therein had been nol-prossed. Count 2 charged in pertinent part the following:

“... [Maurice McKennie] did, with intent to defraud or deceive, make or cause to be made a false statement of material fact in a claim or application for payment from the Medical Services Administration of Alabama, to wit: The 1977 Uniform Cost Report for Nursing Facilities under Title XIX (Medicaid), for the period January 1, 1977 to June 30, 1977, knowing the same to be false, in the amount of, to wit: $81,028.40 which amount is included in the figure to wit: $181,236.25 which appears in Schedules C and K of the said 1977 Uniform Cost Report for Nursing Facilities under Title XIX (Medicaid) for the period January 1, 1977 to June 30, 1977, which said amount of to wit: $81,-028.40 was alleged to have been for equipment purchased by the said Maurice McKennie for Flint City Nursing Home, when in fact some of the items of equipment so claimed had not been purchased and used at the Flint City Nursing Home, or some of the prices attributed to particular items of equipment purchased were false, or which said amount to wit: $81,-028.40 included loans not the indebtedness of Flint City Nursing Home, against the peace and dignity of the State of Alabama.”

The only difference between Counts 2 and 4 is that in Count 2 the time involved stated is “for the period January 1, 1977 to June 30,1977,” while in Count 4 it is alleged that it is “for the period July 1, 1977 to June 30, 1978.”

The court fixed defendant’s punishment at imprisonment for three years and sentenced him accordingly; upon consideration of defendant’s application for probation, the following order was made:

“And the defendant having heretofore applied for the benefit of probation and having requested that he be given a suspended sentence and upon consideration of such request the court is of the opinion that the same should be granted. It is therefore considered and ordered by the Court that the sentence of the law imposed upon the defendant in this cause be and the same is hereby suspended and the defendant placed on probation for three years conditioned upon defendant’s serving eight weeks in the Montgomery County Jail and making restitution to the State of monies collected illegally.”

The law that defines the crime for which defendant was charged and convicted is found in Acts 1976, No. 645, p. 895, which was superseded by Acts 1980, No. 80-539, p. 837, which left unchanged that part of Act No. 645 of Acts 1976, that is now set forth in Code of 1975 (1982 Cum.Supp.) § 22-1-11 as follows:

“(a) Any person who, with intent to defraud or deceive, makes, or causes to be made or assists in the preparation of any false statement representation or omission of a material fact in any claim or application for any payment, regardless of amount, from the medicaid agency, knowing the same to be false; or with intent to defraud or deceive, makes, or causes to be made, or assists in the preparation of any false statement, representation or omission of a material fact in any claim or application for medical benefits from the medicaid agency, knowing the same to be false; shall be guilty of a felony and upon conviction thereof shall be fined not more than $10,000.00 or imprisonment for not less than one nor more than five years, or both.
“(e) Any two or more offenses in violation of this Section may be charged in the same indictment in separate counts for each offense and such offenses shall be tried together, with separate sentences being imposed for each offense of which defendant is found guilty.”

A major contention of appellant is that “The trial court erred in denying defendant’s motion to dismiss for proper venue.” Appellant argues that whatever offense, if any, was committed by defendant was not committed in Montgomery County, the county in which the indictment was preferred and in which the trial and conviction occurred. Appellant relies upon Code of Alabama 1975, § 15-2-2 that provides that “Unless otherwise provided by law, the venue of all public offenses is in the county in which the offense was committed.” To be considered also, however, is Code, § 15-2-6, as follows:

“When an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, venue is in either county.”

Appellant is correct in stating in his brief that “Flint City Nursing Home is located in Flint City, Alabama, near Decatur” and that “Cost reports were prepared, and the accounting work necessary to prepare the costs reports were done there.” However, the evidence is clear and undisputed that the “claim or application for payment from the Medical Services Administration of Alabama” alleged in each count of the indictment as supported by the “Uniform Cost Report for Nursing Facilities” was sent or caused to be sent by defendant to that agency at Montgomery, in Montgomery County.

Appellant seeks to distinguish the instant case from Medical Service Administration v. Dickerson, Ala., 362 So.2d 906 (1978), in which it was held that Montgomery County, as well as Cullman County, was a proper venue in a case based upon a complaint that defendant had sent “faulty financial statements” to the plaintiff at “its Montgomery offices” and that plaintiff “relied upon these statements in reimbursing the nursing homes.” The appellant’s only point of distinction is that the cited case “was a civil case.” We fail to see that the same rationale does not apply in this, a criminal, case.

Appellant also attempts to distinguish the instant case from Seay v. State, 21 Ala.App. 339, 108 So. 620 (1926), cert. denied, 214 Ala. 666, 108 So. 622, in which it was held that the presentation in Pike County of an instrument that had been forged in another county constituted an utterance of the forged instrument and that the prosecution for forgery was proper in Pike County.

In our opinion, the submission in Montgomery County to the Medical Services Administration of Alabama of defendant's claim “or application for payment,” which included a “Uniform Cost Report for Nursing Facilities,” gave rise to a situation in which Code of Alabama, § 15-2-6, as quoted above, applies and proper venue was in Montgomery County.

Another issue presented by appellant pertains to the following portion of the transcript, as quoted in appellant’s brief, during the direct examination of State’s-witness David Billingsley:

“Q. What did you do and where did you go in Greenville, South Carolina?
“A. I went to the office of United Medical and Surgical Supply Company and interviewed Mr. C.D. Stone in regard to invoices and whatever other supporting documents he may have in order to substantiate a purchase money security agreement.
“Q. Did he have them?
“A. No, sir, he did not.
“MR. UPCHURCH: I object, your Hon- or, this is hearsay.
“THE COURT: Did he have them? I don’t see That calls for hearsay. Overruled.
“Q. You may answer, Mr. Billingsley.
“A. Sir?
“Q. Did he have any documents?
“A. No, sir.”

The portion of the transcript quoted by appellant in his brief does not, we think, show clearly whether the information sought by the question constituted hearsay, and we are unable to determine therefrom that it did or that the trial court was in error in ruling otherwise. Furthermore, the objection was made after the witness had answered the question and was too late.

“When a question is asked of a witness calling for inadmissible matter, it is mandatory upon the party against whom it is offered to object after the question but before the answer. The effect of such a rule is that a timely objection is a condition precedent to assigning the admission of such an answer as grounds for error on appeal.” Gamble, McElroy’s Alabama Evidence, § 426.01(3) (1977)

The only other issues presented by appellant (A, B, C and D) pertain primarily to action of the trial court in denying “defendant’s motion for directed verdict of acquittal.” By Issue A, appellant contends that there was error in denying such motion “based on the failure of proof that certain ‘items of equipment so claimed had not been purchased and used at Flint City Nursing Home,’ as claimed by the indictment.” By Issues B and C, respectively, appellant asserts that the denial of the motion was error “based on the failure of proof that ‘some prices attributed to particular items of equipment purchased were false,’ as claimed by the indictment” and in denying such motion “on failure of proof that an amount shown on Cost Reports ‘A’ and ‘B’ ‘included loans not the indebtedness of Flint City Nursing Home,’ as claimed by the indictment.” By Issue D, appellant urges that the “trial court erred in denying defendant’s motion for directed verdict of acquittal based on failure of proof to support the allegations of the indictment.”

It is to be seen from the above and from defendant’s “motion for directed verdict of acquittal” that defendant sought a “directed verdict of acquittal,” on separate and several grounds. In Issues A, B and C, appellant contends that he was entitled to a directed verdict of acquittal as to each of the three alternative means of committing the offense as alleged in each count of the indictment. The validity of the indictment was not challenged by demurrer or otherwise. In this connection, reference is made to Code of Alabama 1975, § 15-8-50, as follows:

“When an offense may be committed by different means or with different intents, such means or intents may be alleged in an indictment in the same count in the alternative.”

Both parties apparently treated the indictment as in compliance with § 15-8-50, and no contention to the contrary is here presented.

In our opinion, defendant’s motion “for directed verdict of acquittal” did not preserve for review, separately and severally, the question of the sufficiency of the evidence to support each of the alternative averments of the indictment. No written charge on the subject was requested. Although motions for a directed verdict have been appropriate procedure in civil cases in the courts of Alabama for a long time pursuant to Rule 50 of Alabama Rules of Civil Procedure, they are not now appropriate procedure in criminal cases in the state courts of Alabama either by rule or by law. Rule 29(a), Federal Rules of Criminal Procedure, has abolished the motion for directed verdict in criminal cases and substituted for it the motion for judgment of acquittal. Such has been the fate since the trial of instant case of Rule 12, Alabama Rules of Criminal Procedure, Temporary Rules, which had a history of suspension for the period from April 6,1981, to March 1, 1982, and has provided thereafter for motions for “Judgment of Acquittal.”

In defendant’s motion for a new trial, which was denied by the trial court, defendant raised the question of the sufficiency of the evidence to uphold the verdict. By such motion and the court’s ruling thereon, defendant has preserved for review the question of the sufficiency of the evidence to uphold the verdict, which we now proceed to discuss, after an unduly prolonged consideration of the recondite record herein and the briefs of counsel, which unfortunately had a disorderly beginning that has not tended to be helpful in our effort to arrive at a correct determination of the problem now discussed. No brief had been filed by appellant on the submission of the case on appeal. The submission was taken on brief of appellee and on the merits. Thereafter appellant’s brief was filed to which there was a reply brief by appellee.

The parties are in agreement that the figure $81,028.40 that is in each count of the indictment, or at least substantially that amount, represents an amount that defendant as the owner and operator of Flint City Nursing Home had claimed as the correct amount to be allocable to major movable equipment in each alleged cost report that would have been a material factor in a correct determination by Medical Services Administration of Alabama of the amount he was to be paid out of available public funds for the operation of Flint City Nursing Home during the period covered by each of the Uniform Cost Reports that defendant made or caused to be made. We have no difficulty in determining that defendant made or caused to be made each of said reports as the report for the first half of 1977 is signed by defendant and verified before a notary public and a certified public accountant, who certified that he prepared the report and the other report was signed by and verified by the then manager or administrator of the nursing home.

In August of 1976 the defendant executed a Purchase Money Security Agreement in favor of United Medical and Surgical Supply Corporation of Greenville, South Carolina, in which there are numerous items of movable equipment listed and which shows on the first page thereof the “Cash Price of Goods, Sales” as “$81,-028.40.” It also shows as the “Amount Cash of Down Payment” the sum of “$20,-000.00,” and the “Amount of the Finance Charge” as “$30,771.60.” It is to be noted that the said quoted amount of $81,028.40 is exactly the same sum as the smaller of the two sums alleged in each of Counts 2 and 4 of the indictment. The evidence shows that by reason of many vicissitudes in the operation of Flint City Nursing Home from the time it was acquired by defendant on November 1, 1973 until August, 1976, which included a period in which the nursing home had been leased by defendant for approximately two years to an individual. Thereafter for nearly a year it was managed by a management corporation, with no responsibility exercised by defendant. According to appellant’s brief, the management corporation, “failed to supply McKennie with operating statements as required by the management contract” and when “McKennie re-entered the nursing home in July of 1976, he discovered that nursing home checks had bounced, employees were unpaid, that federal and state payroll tax liabilities were due, and their lien had been filed by the State (294-295).” The defendant’s explanation of his execution of the document in favor of United Medical and Surgical Supply Corporation, which was secured, partly at least, by what purports to be a list of movable equipment of Flint City Nursing Home, is in part as follows:

“Q. Mr. McKennie did you also receive a statement from United Medical and Surgical Supply Corporation regarding this equipment that is shown on defendant’s exhibit 2 from United Surgical?
“Q. Did they send you a bill for those, or an invoice?
“A. I assume they did.
“Q. Did you know when, if you did get a statement?
“A. No, as I said this was a running account over a period of almost two and a half years, and I really didn’t know what the balance of the account was because we didn’t get statements month to month normally until after I got rid of Denbeck people and Mr. Stone [of United Medical and Surgical Supply] called me and told me that that bill was so big that they had to have payment pretty soon. I told him then, and I think he told me what the bill was at that time, but I don’t believe he sent me a statement as to the amount.
“Q. Okay. Was there any discussion at the time you talked with Mr. Stone when he called you about paying the bill, about how you were going to pay it?
“A. I told him, Mr. Stone, you know there is no way for me to pay that size bill all at one time, and if you can arrange some sort of monthly payment, or contract, or whatever, that’s the way I will have to pay you. He agreed that he would try to do that and he would get back with me.
“Q. Did he mention how that was going to be secured, if it was going to be secured?
“A. He said he would have to take a mortgage on this equipment, the new equipment that he had already sold me, plus the other equipment to secure the entire bill.
“Q. All right. Now, when you say the other equipment what other equipment are you talking about?
“A. The other equipment that was in the nursing home already.
“A. Well, when we got there, in fact his plane was already setting and waiting and he was almost late, but he said, Mac, I have prepared this contract for the balance of this account you owe me, and while you and your wife are both here together, I would like for you to sign it. I said, well, what are you going to do with it, and he said I am going to try to sell it to a finance company so you can repay it on a monthly basis.
“Q. All right, sir, did you sign that agreement?
“A. Yes, sir.
“Q. Did he tell you what kind of an agreement it was?
“A. No, other than he told me I would have to mortgage. We have to take the mortgage on the new equipment plus the old equipment to secure the indebtedness, because the indebtedness was bigger than the amount of new equipment.
“Q. At the time that you signed this, or he presented it to you, there was a considerable amount owed him for loans that you had used in the Flint City Nursing Home?
“A. Yes, sir.
“Q. Did you read the document you signed?
“A. No, not really.
“Q. Oh, excuse me, was the document completed, was it filled out when you signed it?
“A. No.”

Eight witnesses, including two certified public accountants, testified on call of the State, and two witnesses, including defendant, testified on call of defendant. About fifty exhibits were introduced in evidence, with approximately the same participation by each party, including some lengthy documents and a large number of photographs, as well as the tape of a recorded telephone conversation between a witness for the State and the defendant that was played to the Judge and the jury. We have reviewed all of the exhibits except the tape, to which we have not listened, as neither party has asked that we do so, and we do not believe that it, when considered with all the other evidence in the case, would alter our determination of the case.

We are not convinced that the evidence is conclusive as to defendant’s guilt, but we are convinced that the evidence presented was sufficient to take the case to the jury and that the trial court did not abuse its discretion in its holding in effect that the verdict was not contrary to the weight of the evidence. The trial judge and the jury had the opportunity, which an appellate court does not have, to observe carefully the witnesses as they testified, which in this type of case especially make them better judges of the facts than anyone else. The record does not indicate any kind of prejudice against defendant or any malice on the part of any individual participating in the prosecution of the case. This is vividly illustrated by the testimony of an attorney, who at the time was employed in the “Attorney General’s office, specifically in the Medicaid Fraud Division”, and as such interviewed the defendant. His testimony was in part as follows:

“Q. He indicated a willingness to cooperate with you?
“A. Yes, sir.
“Q. A willingness that he had nothing to hide?
“A. He was very cooperative, yes, sir.
“Q. Did he talk like a man who had nothing to hide?
“A. I can’t tell, sir.
“Q. Is your judgment from the way he talked? You have interviewed witnesses before?
“A. Yes, sir.
“Q. Many times, haven’t you?
“A. Yes, sir.
“Q. Both as an attorney general, and as a private practitioner?
“A. Yes, sir.
“Q. Did he talk like somebody that had something to hide?
“A. He didn’t act like it. No, sir.
“Q. He talked like a bad business man, didn’t he?
“A. Very much so, yes sir.”

Notwithstanding our reluctance to believe that appellant was deliberately guilty of highly flagrant fraud, but, like the witness we have just quoted apparently tended to believe, that his conduct was largely related to lack of business acumen, we cannot say that the verdict was palpably wrong and unjust. As much as can be said in defendant’s favor that he was a victim of unfortunate circumstances that could be attributable to others in the operation of Flint City Nursing Home, and to the inability of defendant as a business man to cope with the unfortunate circumstances that befell him, it cannot be said that he was a novice as to nursing homes. He had performed renovation work on 4 or 5 nursing homes and had owned or had an interest in 3 of them in Alabama. Although apparently not well acquainted with a “Uniform Cost Report for Nursing Facilities under Title XIX (Medicaid)”, he executed and verified one of them under the following certificate:

“I hereby certify that I have examined the accompanying Uniform Cost Report and the allocation therein between covered and non-covered services, as applicable for the period January 1, 1977 through June 30, 1977 and that, to the best of my knowledge and belief they are true and correct statements prepared from the books and records of Flint City Nursing Home, in accordance with applicable instructions, except as noted.”

Frye v. State, Ala.Cr.App., 369 So.2d 892 (1979) cited by appellant is not a precedent for our holding that the verdict of the jury should not be disturbed under the facts of the instant case, for the facts in Frye were substantially different from the facts of this case, but it is authority for the proposition that the verdict herein should not be disturbed, unless it is “clearly wrong and unjust.” To that extent we follow in its path.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur, except BOWEN, J., who concurs in the result only.


text:
    Ex parte: Maurice L. McKENNIE. (In re: Maurice McKennie v. State of Alabama).
    82-218.
    Supreme Court of Alabama.
    July 1, 1983.
    Rehearing Denied Aug. 5, 1983.
    James T. Upchurch, III of Rushton, Stakely, Johnston & Garrett, Montgomery, and David B. Cauthen, Decatur, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley and Ferris W. Stephens, Asst. Attys. Gen., for respondent.
   PER CURIAM.

Reversed on the authority of Ex parte Hunter, 806 So.2d 436 (Ala.1983).

REVERSED AND, REMANDED.

FAULKNER, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and MADDOX, J., dissent.

On remand, Ala.Cr.App., 439 So.2d 713.


text:
    Maurice McKENNIE v. STATE.
    3 Div. 386.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
   AFTER REMANDMENT

PER CURIAM.

On the authority of the Alabama Supreme Court in this case 439 So.2d 713 (Ala.1983), the judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur, except SAM W. TAYLOR, J., who recuses himself.


author: BOWEN, Judge.

text:
    Earl Wayne MAXWELL v. CITY OF MOBILE.
    1 Div. 460.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.
    Rehearing Denied March 1, 1983.
    Willis W. Holloway, Jr., Mobile, for appellant.
    J.D. Quinlivan, Jr., Mobile, for appellee.
   BOWEN, Judge.

The defendant was charged by complaint with assault in the third degree in violation of Mobile city ordinance 41-136 (the same crime as Alabama Code Section 13A-6-22 (1975)). He appealed his conviction in the municipal court to the circuit court where he was also convicted. Sentence was six months’ imprisonment (thirty days to be served with the balance suspended for a period of two years), a fine of $500, and restitution.

The defendant argues that, under Jacobs v. City of Prichard, 46 Ala.App. 497, 243 So.2d 769 (1971), it was incumbent on the city to plead and prove the ordinance under which it sought a conviction in a criminal proceeding since no statute provides for taking judicial notice of the ordinances of a city.

“Municipal ordinances must be proven on prosecutions for their violation.” Cooper v. Town of Valley Head, 212 Ala. 125, 127, 101 So. 874 (1924); Thompson v. City of Sylacauga, 30 Ala.App. 72, 75, 200 So. 795 (1941). “In a prosecution for the violation of the terms of a city ordinance, except in certain specified cases, of which this is not one (Acts 1915, p. 294) (Title 7, Section 429(1)), it is essential that the ordinance in question, properly authenticated, be introduced into evidence.” Redding v. Phenix City, 22 Ala.App. 119, 113 So. 318 (1927).

Formerly, Alabama Code Title 7, Section 429(1) (1940), provided that any court could take judicial notice of a municipal ordinance if that city was composed of a given population. However, that section was omitted in the new 1975 Alabama Code, see Table of Comparative Sections in volume 2, and was therefore repealed. Shapiro v. City of Birmingham, 30 Ala.App. 563, 565, 10 So.2d 38 (1942).

Section 429(1) was superseded by Rule 9(d) of the Alabama Rules of Civil Procedure. Appendix II, A.R.C.P. These rules “have no application in criminal proceedings.” Committee Comments, Rule 1, A.R. C.P.

Although Alabama Code Section 12-14-7 (1975) provides that “a municipal court shall take judicial notice of the ordinances of the municipality in which it sits”, there is no comparable provision for the circuit or appellate court. Judicial notice will not be taken of the ordinances of a city unless authorized by statute. State v. Friedkin, 244 Ala. 494, 497, 14 So.2d 363 (1943); Case v. Mayor of Mobile, 30 Ala. 538, 539 (1857). This rule is a “rule of evidence” and not of substantive law. King v. City of Montgomery, 42 Ala.App. 462, 168 So.2d 30 (1964); Shapiro, 30 Ala.App. at 566, 10 So.2d 38.

It has been held that because the prosecutor did not introduce any ordinance, the City failed to make out its case against the defendant and the court erred in pronouncing a judgment of conviction. Jacobs, supra; Felder v. City of Huntsville, 42 Ala.App. 488, 168 So.2d 490 (1964); Thompson, 30 Ala.App. at 76, 200 So. 795.

However, this issue was never raised in the trial court. As appellate counsel states in brief: “No evidence of Mobile Ordinance No. 41-136 was ever introduced in court, and no mention of the ordinance was ever made during the trial, except when the trial judge asked what penalty the ordinance carried.”

This issue cannot be presented for the first time on appeal. The defendant’s general motion to exclude the City’s evidence on the ground that it had “failed to prove a prima facie case” did not preserve the City’s failure to prove the ordinance under which the defendant was prosecuted. The attention of the trial judge should have been directed toward this particular defect.

The validity and applicability of the ordinance are not questioned. The defendant makes no contention that he was not informed of the nature of the charge or of the contents of the ordinance. “This court will not take note of error raised for the first time on appeal unless our refusal to do so would result in manifest injustice.” United States v. Davis, 656 F.2d 153, 155 (5th Cir.1981).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Earl Wayne MAXWELL. (Re Earl Wayne MAXWELL v. CITY OF MOBILE).
    82-563.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      Willis W. Holloway, Jr., Mobile, for petitioner.
    J.D. Quinlivan, Jr., Mobile, for respondent.
   FAULKNER, Justice.

This review is of the Court of Criminal Appeals’ 439 So.2d 714 judgment affirming the conviction of Earl Wayne Maxwell for intentionally causing physical harm to another. We reverse.

The prosecution was brought by the City of Mobile in municipal court. Maxwell appealed to the Circuit Court of Mobile County for a trial de novo. In the circuit court, Judge Robert Hodnette found Maxwell guilty and sentenced him to imprisonment in the City of Mobile jail for six months (thirty days to be served with the balance suspended for a period of two years), a fine of $500, and restitution.

Appeal was made to the Court of Criminal Appeals based on the City’s failure to plead and prove at trial the ordinance under which it prosecuted Maxwell. The Court of Criminal Appeals held that the “defendant’s general motion to exclude the City’s evidence on the ground that it had ‘failed to prove a prima facie case’ did not preserve the City’s failure to prove the ordinance under which the defendant was prosecuted. The attention of the trial judge should have been directed toward the particular defect.”

As expounded by Judge Bowen of the Court of Criminal Appeals, it is well established that in a criminal prosecution for violation of a city ordinance the city must plead and prove the ordinance. Cooper v. Town of Valley Head, 212 Ala. 125, 101 So. 874 (1924); Jacobs v. City of Prichard, 46 Ala.App. 497, 243 So.2d 769 (1971); Thompson v. City of Sylacauga, 30 Ala.App. 72, 200 So. 795 (1941). And it has been held when the city does not introduce the ordinance into evidence, it has failed to make out its case against the defendant and the trial court has erred in pronouncing the judgment of conviction. Jacobs v. City of Prichard, supra; Felder v. City of Huntsville, 42 Ala.App. 488, 168 So.2d 490 (1964); Thompson v. City of Sylacauga, supra.

Upon reviewing the record of the circuit court, we agree with the Court of Criminal Appeals that there is no question that the City of Mobile did not introduce the ordinance into evidence. Therefore, the matter on review here is whether the defendant’s motion to exclude the evidence preserved the issue of the City’s failure to prove the ordinance.

During the trial and after the close of the prosecution’s case, the following took place:

“MR. BODIFORD: That’s all, Judge.
“MR. HOLLOWAY: Judge, we would move to exclude on the—
“THE COURT: Deny the motion.
“MR. HOLLOWAY: Can I make my grounds, Judge?
“THE COURT: Yes, sir. Go right ahead and then I will deny it.
“MR. HOLLOWAY: We move to exclude on the grounds that the City has failed to prove — on the following grounds, separately and severally: One, that the City has failed to prove a prima facie case. Two, that the City has failed to prove each and every allegation on the indictment. Three, the City has failed to prove facts of charge.
“THE COURT: This place in the City of Mobile?
“MR. DUNKLIN: Yes, sir.
“THE COURT: I am going to deny your motion, Mr. Holloway. I considered each one of your grounds and I will deny it. I think the City has proved a prima facie case. Do you wish to put on a case?
“MR. HOLLOWAY: Yes, sir.
“THE COURT: All right. Go right ahead.”
(emphasis added)

It is well settled in Alabama that a motion to exclude evidence which does not state the grounds on which the motion is based is properly overruled. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Bell v. State, 19 Ala.App. 169, 95 So. 784 (1923); Allen v. State, 18 Ala.App. 346, 92 So. 18 (1922). In Bell and Allen the Court of Appeals upheld the lower court’s actions overruling the motion to exclude evidence because the defendants stated no grounds.

In Espey, the appellant argued that the court erred in overruling his motion to exclude a statement made by the solicitor to the jury. Relying on Bell and Allen, this court said that “no ground was stated for the motion to exclude and the rule is that a motion to exclude without stating the grounds therefore is properly overruled.” Espey v. State, 270 Ala. at 674, 120 So.2d 904. In that case, however, this court did not apply the rule because the State and the defendant had stipulated prior to trial that when objections were made no grounds needed to be assigned unless called for by opposing counsel or the court.

In the case at hand, no such stipulation was made, and the rule can be applied. However, when defendant’s counsel moved to exclude the evidence, he stated the ground that the City had failed to make a prima facie case. In fact, the City had failed to establish jurisdiction and enter the ordinance, both necessary elements for its prima facie case. The trial judge subsequently established the City’s jurisdiction, but the ordinance was never offered into evidence.

To preserve the issue for appeal, it is necessary for defendant to state his grounds upon moving to exclude evidence; however, it is not necessary to draw the trial court’s attention to the particular defect. It is sufficient that the defendant state the ground that the prosecution has failed to make a prima facie case. Turner v. State, 266 Ala. 250, 96 So.2d 303 (1957); see also, R. Williams, Williams' Alabama Evidence § 308 (1967). Because the appellant here stated such grounds, the issue of the necessity for introduction of the city ordinance was preserved by defendant’s motion to exclude the evidence.

REVERSED AND REMANDED.

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


author: BOWEN, Presiding Judge.

text:
    Earl Wayne MAXWELL v. CITY OF MOBILE.
    1 Div. 460.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
   AFTER REMANDMENT

BOWEN, Presiding Judge.

Maxwell’s conviction is reversed on authority of Alabama Supreme Court’s finding that error was preserved and that the City failed to prove a prima facie case in that the City had failed to establish jurisdiction and had failed to plead and prove the ordinance under which Maxwell was prosecuted. Maxwell v. City of Mobile, 439 So.2d 715 (Ala.1983). This cause must be rendered under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

REVERSED AND RENDERED.

All Judges concur.


author: DeCARLO, Presiding Judge.

text:
    Willie Charlie CAMPBELL v. STATE.
    8 Div. 602.
    Court of Criminal Appeals of Alabama.
    March 1, 1983.
    Rehearing Denied March 29, 1983.

      William R. Hovater, Tuscumbia, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.
   DeCARLO, Presiding Judge.

Possession of methaqualone; fifteen years’ imprisonment.

On the afternoon of February 21, 1981, a search warrant was executed at a house located at 506 West Grand Avenue in Muscle Shoals, Alabama. Two brown paper bags sealed with duct tape were found under a bed. Inside the paper bags were fifteen small plastic “baggies,” each containing approximately one hundred white pills. These pills were later determined to contain methaqualone. The search also yielded a bag of plant material later identified to be marijuana. Appellant was present in the house at the time of the search, along with Kathy Davenport, Sheryl Davenport, and Tommy Grissom.

Kathy Davenport was called as the court’s witness. She testified that the house at 506 West Grand was rented in her name and that her sister, Sheryl, lived there with her. Appellant was a friend of Sheryl’s and frequently stayed overnight at the house, although his permanent residence was at his sister-in-law’s. Appellant stayed at Davenport’s house an average of three to four nights a week and had spent the night before the raid there.

The paper bags containing the pills were found in the bedroom occupied by Sheryl. According to Davenport, appellant and Sheryl “shared” this room, meaning that appellant had “some clothes and some things” in the room and used the room to change clothes. Appellant did not sleep in that room; he slept on the sofa in the living room.

The witness was confronted with a written statement she had given to police shortly after the search in which she had stated that appellant and Sheryl slept in the bedroom on the southwest corner of the residence. She denied making this statement, maintaining that she had said appellant and Sheryl “shared” this room. She also denied making the statement that “[t]he room where the officers found the illegal drugs belonged to my sister Sheryl Davenport and Charlie Campbell.”

Lt. Doug Aycock of the Sheffield Police Department, Capt. Robert Hall of the Muscle Shoals Police Department, and Colbert County Deputy Sheriff Ronnie May all testified that the house at 506 West Grand had been under surveillance for approximately two weeks prior to the raid. Although the officers observed many people coming and going, Kathy Davenport, Sheryl Davenport, and appellant were at the house most frequently. Aycock and Hall stated that they observed appellant at the house every day except one during the surveillance period.

All three officers participated in the search and Aycock actually found the paper bags containing the pills. Aycock stated that there were both men’s and women’s clothes in the bedroom where the drugs were found. Some of the clothing was in the closet, some was on a dresser.

At the conclusion of the search, appellant, Sheryl, Kathy, and Grissom were taken to the police station for questioning. According to Deputy May, appellant was given his Miranda warnings, but did not make a written statement. Shortly afterward May heard the following conversation between appellant and Aycock:

“Doug Aycock came into the room [where appellant was being interrogated] and said ‘Hey, Charlie.’ Charlie said ‘Hi, Doug.’ Doug asked him when was the last time he had seen Joe Adams and, ah, Charlie said, ‘Well, the only Joe Adams I know sells beer in Huntsville and it’s been awhile since I seen him’ or something to that effect. And Doug said ‘Well, I think I’m talking about a different one.’ Charlie asked Doug, he said, ‘Why have you got the rest of those people in here for?’ And Doug said, ‘We’re just talking to them.’ He said, ‘Well, Doug you know that stuff is not theirs’ ”.

Aycock testified that appellant told him, “Those kids doesn’t [sic] know anything about that stuff.” However, Aycock stated that the conversation took place in the hallway outside the room where appellant was being questioned.

At the close of the State’s case appellant made a motion to exclude, which was denied.

Appellant called Sheryl Davenport, who testified that she had pleaded guilty to the offense of possessing methaqualone and was presently serving time for that conviction. According to Sheryl, a friend of hers, Art Burleson, brought the two'brown paper bags to the house on the morning of February 20, and requested her to keep them until the next afternoon. Burleson told her the packages contained drugs and said that he would pick them up by 4:00 P.M. the next day. At 3:40 the next day, the police searched the house and found the drugs.

Sheryl stated that appellant was not at the house when Burleson brought the drugs over. Further, appellant kept some clothes in her closet, but he did not sleep in her room. She denied being in love with appellant and maintained that she would not take the “rap” for anybody, but neither would she put the blame on someone else for something she had done.

I

Appellant contends that the trial court erred in denying his motion to exclude because the State’s evidence was not sufficient to prove his possession of the pills containing methaqualone.

Clearly, appellant was not in actual possession of the pills. However, possession of an illegal substance may be either actual or constructive. Radke v. State, 52 Ala.App. 397, 293 So.2d 312 (1973), aff’d, 292 Ala. 290, 293 So.2d 314 (1974).

Constructive possession arises only where the illegal substance is found on premises owned or controlled by the accused. Williams v. State, 340 So.2d 1144 (Ala.Cr.App.1976), cert. denied, 340 So.2d 1149 (Ala.1977). Appellant argues that he neither owned nor controlled the premises at 506 West Grand, relying on Crane v. State, 401 So.2d 148 (Ala.Cr.App.), cert. denied, 401 So.2d 151 (Ala.1981); Collins v. State, 391 So.2d 1078 (Ala.Cr.App.1980); and Williams v. State, supra, to support his argument. In Crane, Collins, and Williams this court found no evidence to show the appellants’ control over the premises where illegal drugs were found.

The facts in the present case are, in our judgment, markedly different. The evidence shows that appellant kept clothing and “some things” in the bedroom in which the pills were found. Appellant also used that room to change clothes. Whether he slept in that room or not, it is clear that appellant had ready access to the room. In addition, appellant had been seen at the house every day except one in the two weeks prior to the raid.

When constructive possession is relied on, the State must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substance. Yarbrough v. State, 405 So.2d 721 (Ala.Cr.App.1981). This knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises. See Temple v. State, 366 So.2d 740 (Ala.Cr.App.1979). Where the accused is not in exclusive possession of the premises, however, this knowledge may not be inferred “unless there are other circumstances tending to buttress this inference.” Temple, supra. Judge Bowen, writing for this court in Temple, enumerated several circumstances which may provide the necessary connection between an accused and contraband to buttress the inference that he knew of its presence. One of the circumstances enumerated is an admission by the defendant tending to show his connection with the drugs.

Appellant stated to Lt. Aycock in Deputy May’s presence either “Those kids [don’t] know anything about that stuff,” or “You know that stuff is not theirs.” Either statement raises an inference that the appellant was aware of the presence of the drugs.

In our judgment, the evidence was sufficient to show both appellant’s constructive possession of the methaqualone and his knowledge of its presence. The motion to exclude was properly overruled.

II

Appellant maintains that the trial court should have granted his motion for new trial in which he alleged that the State failed to prove he was in possession of the illegal drugs and that the verdict was contrary to the evidence presented. Our discussion in Part I disposes of the first allegation.

The evidence adduced by the State and the appellant was conflicting and therefore clearly presented a jury question. Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). A motion for new trial on the grounds that the verdict is contrary to the evidence will not be granted “where it affirmatively appears that the questions involved are for the determination of the jury unless it is clearly apparent that the verdict is palpably wrong or unjust.” Smith v. State, 342 So.2d 422 (Ala.Cr.App.1977). We do not think the verdict in this case is “palpably wrong or unjust.”

Ill

Appellant claims that the methaqualone tablets were inadmissible because they were seized pursuant to a search warrant which was invalid because it authorized a “general exploratory search” in violation of the Fourth Amendment.

To support his claim, appellant relies on Peavy v. State, 336 So.2d 199 (Ala.Cr.App.), cert. denied, 336 So.2d 202 (Ala.1976), wherein this court held a search warrant invalid as a “dragnet instrument.” In Griffith v. State, 386 So.2d 771 (Ala.Cr.App.), cert. denied, 386 So.2d 775 (Ala.1980), we observed:

“In Peavy the affidavit alleged that there were ‘controlled substances in a mobile home.’ The search warrant authorized a search of all persons ‘present in or near said mobile home and any motor vehicle adjacent to said mobile home.’ When the warrant was executed twenty people were in the mobile home and twelve automobiles were parked outside.”

The circumstances in the present case are very different. The affidavit recited that information had been received from a reliable informant that “illegal drugs, to-wit: Marijuana” were presently contained “in the residence of Kathy Davenport, Sharal [sic] Davenport, and Charles Campbell, 506 West Grand Avenue, Muscle Shoals,” and also “inside one (1) 1969 Beige Volkswagon [sic] automobile, one (1) 1973 Brown and Gold Torino automobile, and one (1) 1965 Green Chevrolet automobile, said vehicles normally being kept at the above residence.” The search warrant stated that affiant “says that he has probable cause for believing and does believe that Sharal [sic] Davenport and Charles Campbell have in their possession at this time at their residence located at 506 West Grand Avenue ... illegal drugs, to-wit: Marijuana” and authorized a search of “the persons and their residence located at 506 West Grand Avenue,” including the automobiles described above.

This search warrant is far more limited than the warrant condemned in Peavy v. State, supra. We conclude that the seizure of the pills containing methaqualone was not the result of a general exploratory search and therefore the pills were properly admitted. See Satterwhite v. State, 364 So.2d 345 (Ala.Cr.App.1977), rev’d on other grounds, 364 So.2d 359 (Ala.1978).

IV

Appellant asserts that the affidavit underlying the search warrant was defective, and therefore, that the search warrant was invalid and the evidence seized during the search should have been suppressed.

Appellant first attacks the affidavit because it recites Tom Berryman’s name as affiant in the body, yet Robert Hall has signed as affiant. The Court of Appeals in Sopcjak v. State, 42 Ala.App. 608, 173 So.2d 403 (1965), held that where the affiant did not appear before the issuing magistrate, the warrant was void. It is clear from the record in the present case that Hall was actually the affiant and had appeared before the issuing judge and attested to the validity of the information contained in the affidavit. He testified at the suppression hearing that Lt. Berryman was his partner and both of them had received the information from the informant. The fact that Berryman’s name was typed in as affiant was a mere clerical mistake and, at most, amounted to harmless error.

Appellant also maintains that the affidavit “did not show that the informant had a basis in fact from which the magistrate could infer that the factual representations were true.” The affidavit recites, in pertinent part:

“The aforesaid informant stated that he saw the illegal drugs at said residence within the past 24 hours and that the substance at said residence did in fact appear to be Marijuana and was in the possession of the said Sharal [sic] Davenport and Charles Campbell. Informant further stated that he saw what appeared to be Marijuana located inside [three described automobiles].”

The informant’s personal observation of the illegal drugs was clearly sufficient to form the basis for his representation that the drugs were on the premises. See Thornton v. State, 390 So.2d 1093 (Ala.Cr.App.), cert. denied, 390 So.2d 1098 (Ala.1980); Grissom v. State, 386 So.2d 514 (Ala.Cr.App.1980).

Appellant argues that the affidavit failed to show .probable cause to search the house. As quoted above, the informant stated that he saw illegal drugs “at said residence.” The term “at said residence” clearly includes the house. See Griffith v. State, supra.

We find no defect in the affidavit which would invalidate the search warrant. Therefore, the trial court correctly denied appellant’s motion to suppress.

V

The search warrant was not returned until the date of trial. Appellant contends that this violated § 15-5-12, Code of Alabama 1975, and constituted reversible error.

Section 15-5-12 requires that a warrant be executed and returned within ten days of issuance; “after that time, if not executed, it is void.” (Emphasis added). A failure to return the warrant within the allotted ten days will not invalidate the warrant or a search and seizure made thereunder because the return is “merely a ministerial act which may be performed later, at least within a reasonable time.” Donovan v. State, 359 So.2d 1181 (Ala.Cr.App.1978) (emphasis added).

“A reasonable time” will vary depending on the circumstances of each case, but generally will not extend to the date of trial. A search warrant should be returned sufficiently in advance of trial to enable defense counsel “to see, inspect and examine same and chart the course of their defense.” Owens v. State, 51 Ala.App. 50, 282 So.2d 402, cert. denied, 291 Ala. 794, 282 So.2d 417 (1973).

We certainly do not condone the practice of officers keeping search warrants in their possession until the time of trial. See Owens v. State, supra. However, in this case appellant has made no allegation that he was unable to see the affidavit and search warrant or obtain copies thereof pri- or to trial. In fact, substantial portions of the affidavit are quoted in appellant’s motion to suppress, leading us to conclude that appellant was allowed to review and/or copy the warrant and affidavit prior to trial. We find no showing of any prejudice to appellant because of the failure to return the warrant until the date of trial.

VI

Appellant asserts that the district attorney made a highly prejudicial statement during closing argument which warrants reversal of his conviction. The statement complained of, “he [appellant] had this sacked up for sale,” was a legitimate inference drawn from the evidence and properly argued by the district attorney. See Green v. State, 389 So.2d 537 (Ala.Cr.App.), cert. denied, 389 So.2d 541 (Ala.1980); Malone v. State, 406 So.2d 1060 (Ala.Cr.App.), cert. denied, 406 So.2d 1066 (Ala.1981).

We have reviewed every contention raised by appellant and have found no reversible error. Therefore, the judgment of conviction by the Colbert Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.

      . Appellant does not challenge the informant’s reliability. We note that the affidavit recited sufficient facts from which the issuing judge could have found that the informant was reliable.


text:
    Ex parte William Charlie CAMPBELL. (Re Willie Charlie Campbell v. State of Alabama).
    82-671.
    Supreme Court of Alabama.
    Aug. 5, 1983.
    William R. Hovater, Tuscumbia, for petitioner.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Certiorari was granted by this Court to review the decision of the Court of Criminal Appeals in Campbell v. State of Alabama, 439 So.2d 718 (Ala.Cr.App.1983). The dispositive issue is whether a statement made by Willie Charlie Campbell, the defendant/appellant, in the presence of law enforcement officials, was sufficient as a matter of law to support an inference by the jury that the appellant had knowledge and thus constructive possession of the methaqualone. A synopsis of the pertinent facts of this appeal is as follows:

Lt. Aycock, a member of the Sheffield Police Department and one of the law enforcement officials who participated in the search of the residence at 506 West Grand, stated that items of men’s and women’s clothing were found in the bedroom of Sheryl Davenport, the room where the drugs were discovered. Testimony at the trial indicated that although Campbell kept some clothes in Sheryl Davenport’s bedroom, he slept on the sofa in the living room when he stayed overnight. This was the only evidence actually linking Campbell to the drugs found in the bedroom.

In the following passage from its opinion, the Court of Criminal Appeals states:

“When constructive possession is relied on, the State must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substance. Yarbrough v. State, 405 So.2d 721 (Ala.Crim.App.1981).... Where the accused is- not in exclusive possession of the premises, however, this knowledge may not be inferred ‘unless there are other circumstances tending to buttress this inference.’ Temple [v. State, 366 So.2d 740 (Ala.Cr.App.1978) ], supra. Judge Bowen, writing for this court in Temple, enumerated several circumstances which may provide the necessary connection between an accused and contraband to buttress the inference that he knew of its presence. One of the circumstances enumerated is an admission by the defendant tending to show his connection with the drugs.”

439 So.2d 718 (Ala.Cr.App.1983).

The testimony by Lt. Aycock and Colbert County Deputy Sheriff May concerning the details of Campbell’s statement differed. Lt. Aycock testified that Campbell said, “Those kids doesn’t [sic] know anything about that stuff,” while Deputy May testified the statement was “You know that stuff is not theirs.” Likewise, Lt. Aycock’s testimony that the conversation between Campbell and him took place in the hallway outside the room where Campbell was being questioned was inconsistent with Deputy May’s testimony that he heard the conversation in the interrogation room.

In Batson v. Birmingham Trust & Savings Co., 241 Ala. 629, 632, 4 So.2d 307, 310 (1941), we stated that “[w-]hen the existence of a fact is sought to be established by proving another fact, the fact so proven must be a fact from which the existence of the fact sought to be proven can be naturally and rationally inferred or presumed.” We do not think either statement without further evidence is sufficient in this instance to constitute an admission by Campbell from which a jury could “naturally” or “rationally” infer or presume that he in fact had knowledge of the methaqualone.

Because Campbell’s statement could in no way support a rational inference by the jury that he had knowledge of the drugs, the state failed to prove beyond a reasonable doubt that the accused had constructive possession of the controlled substance. See County Court of Ulster City v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777 (1979). See also Ex parte Story v. State, 435 So.2d 1365 (Ala.1983) (there was reasonable doubt as to appellant/passenger’s knowledge of drugs discovered in a cosmetic bag or man’s shaving kit (State’s Exhibit 1) on the floorboard under the passenger’s seat of an automobile, especially in view of testimony by a witness that he could not be sure whether State’s Exhibit 1 was in fact the bag he had seen in appellant’s hand.

REVERSED AND REMANDED.

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


author: HUBERT TAYLOR, Judge.

text:
    Willie Charlie CAMPBELL v. STATE.
    8 Div. 602.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
   AFTER REMANDMENT

HUBERT TAYLOR, Judge.

Reversed and remanded on authority of the Supreme Court of Alabama, Ex parte Campbell, 439 So.2d 723 (Ala.1983).

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Judge. BOWEN, Presiding Judge.

text:
    Herbert L. CRUTCHER v. STATE.
    8 Div. 785.
    Court of Criminal Appeals of Alabama.
    March 29, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Oct. 28, 1983 Alabama Supreme Court 82-993.

      James M. Gaines of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

Crutcher appeals the denial of a petition for writ of error coram nobis. The petition alleges and the stipulated facts show that Crutcher’s suspended sentence was revoked and he was ordered imprisoned for thirty days when he failed to pay the $200 fine and court costs of $35.50 assessed against him when he pled guilty to driving under the influence.

Two days after he was imprisoned Crutcher filed an “affidavit of indigency.” The next day (September 2) he filed a petition for writ of habeas corpus. After a hearing wherein the facts were stipulated, including the fact of Crutcher’s indigency, the trial judge denied the petition because Crutcher “did not properly raise the issue of indigency in the Court where the sentence ensued and it was post-judgment that that issue was formally filed with the Court.”

It is clear as a matter of constitutional law that an indigent defendant cannot be required to serve jail time for nonpayment of fine and costs. Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Lingle v. State, 51 Ala.App. 210, 283 So.2d 660 (1973); Smith v. State, 51 Ala.App. 212, 283 So.2d 662 (1973). “To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws.” Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir.1977). This is not a case of a defendant who, though capable of paying a fine, refuses or neglects to do so.

Although Section 15-22-52, Alabama Code 1975, states that payment of fine and costs may be made a condition of suspension of sentence or probation, in State v. Esdale, 253 Ala. 550, 45 So.2d 865 (1950), our Supreme Court indicated that such a condition was contrary to our constitution.

“These benefits (probation and suspension of sentence) are not the subject of bargain and sale to be conditioned on the payment of costs and fees assessed as an incident to the prosecution and trial and to condition these benefits on the payment of such costs and fees violate the letter and spirit of Section 13 of the Constitution of 1901 which provides that ‘justice shall be administered without sale, denial or delay.’ ”
Esdale, 253 Ala. at 553, 45 So.2d 865.

In Ex parte Hutchinson, 264 Ala. 447, 451-52, 87 So.2d 847 (1956), our Supreme Court “assumed” invalid a provision in a judgment conditioning probation on the payment of costs but noted that it did not “wish to be understood as reaffirming what was said in the Esdale case.”

The principles announced in Tate and Barnett make it clear that a court cannot order payment of a fine and costs as a condition of suspending sentence where the convicted person is unable to pay because of his indigency and there is no likelihood that his indigency will end. See also Fuller v. Oregon, 417 U.S. 40, 55, 94 S.Ct. 2116, 2125, 40 L.Ed.2d 642 (1974).

We find the Attorney General’s argument that habeas corpus is not the proper remedy is without merit. “Clearly habeas corpus is the appropriate remedy to examine the term of a sentence set within lawful limits.” Carter v. State, 339 So.2d 594, 595, 596 (Ala.Cr.App.1976). Here, it appears that Crutcher may be entitled to a discharge “by means of some subsequent act, omission or event.” Alabama Code Section 15-21-24(2) (1975).

We decline to follow the holding in Gatlin v. City of Andalusia, 342 So.2d 37 (Ala.Cr.App.1977), which involved a direct appeal wherein this Court refused to reverse the imposition of a jail sentence for nonpayment of a fine and costs upon the appellant’s claim of indigency where no finding of indigency was made until after conviction and sentence.

The judgment of the circuit court denying Crutcher’s petition for writ of habeas corpus is reversed and this cause is remanded for action consistent with this opinion.

REVERSED AND REMANDED.

DeCARLO, P.J., and TYSON and HARRIS, JJ., concur.

ON REHEARING

BOWEN, Presiding Judge.

The Supreme Court resolved the issue of when the probation of an indigent may be revoked for his failure to pay a fine in Bearden v. Georgia, - U.S. -, 103 S.Ct. 2064, 76 L.Ed.2d 221 (U.S., 1983).

“We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine.”

Here, the trial judge did not even consider Crutcher’s indigency because the issue was not “properly raised”.

The application for rehearing is overruled. The judgment of the circuit court is reversed and the cause is remanded for a new sentencing determination.

OPINION EXTENDED;

APPLICATION FOR REHEARING OVERRULED;

REVERSED AND REMANDED FOR NEW SENTENCING DETERMINATION,

All Judges concur.