author: BRADLEY, Judge.

text:
    Sidney B. BLEDSOE v. CARGILL, INCORPORATED.
    Civ. 4014.
    Court of Civil Appeals of Alabama.
    Feb. 29, 1984.
    Rehearing Denied April 11, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-760.

      Harry D. Raymon of Raymon, Nathan-son & Raymon, Tuskegee, for appellant.
    Dennis R. Bailey of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellee.
   BRADLEY, Judge.

This is an action on a guaranty agreement.

Cargill, Inc., sued Sidney B. Bledsoe upon a written guaranty. Bledsoe had entered into a written agreement personally obligating himself for the debts of Roadside Milling Company to Cargill, Inc. up to the amount of $10,000. Bledsoe filed a general denial and the special defenses of accord and satisfaction and novation.

Cargill moved for and was awarded summary judgment. This court reversed the granting of summary judgment, Bledsoe v. Cargill, Inc., 376 So.2d 735 (Ala.Civ.App. 1979), and remanded the case to the Circuit Court of Macon County for a trial. A jury trial was had on August 5, 1983 and a verdict in the amount of $9,000 in favor of plaintiff and against defendant was rendered. Judgment entered accordingly.

Defendant filed a motion for judgment n.o.v. or, in the alternative, for a new trial. Motion denied. Defendant appeals.

Bledsoe argues here that his guaranty to plaintiff had been satisfied, or that there had been a novation of the guaranty, thus releasing him from liability, that the trial court erred in admitting into evidence certain ledger sheets and testimony concerning them, in refusing two of his requested jury charges, and in denying his motions for directed verdict and judgment n.o.v. or new trial.

The record reveals the following facts: Cargill was in the business of selling and financing the sale of feeds and supplies for use in livestock production. Bledsoe was one of four incorporators and stockholders of Roadside Milling Co., a Georgia corporation. In order to enable the corporation to buy merchandise on credit from Cargill, Bledsoe, on January 18, 1969, signed a guaranty agreement with Cargill for $10,-000. The three other shareholders also executed $10,000 bonds guaranteeing payment of purchases made by the corporation from Cargill.

In March 1970 Bledsoe sold his stock to the corporation. In May 1971 Gibson, a new shareholder, and the remaining three shareholders met with representatives of Cargill and, in order to obtain more credit for Roadside, signed $50,000 personal guaranties. It was understood that the $50,000 guaranties were to supersede and replace the $10,000 guaranties and that the $10,000 guaranties would be returned to the shareholders. In January 1972 the shareholders executed additional guaranty bonds in the amount of $50,000 to Cargill which included additional security by way of real estate liens. There were no discussions between the shareholders and Cargill about the $10,-000 guaranty signed by Bledsoe at the time of these transactions. Bledsoe was not present when these transactions took place and he did not sign a $50,000 guaranty. In fact, he did not have any contact with Car-gill after he sold his interest in Roadside Milling in 1970 until March 1973.

On March 2, 1973 Bledsoe received a letter from Cargill stating he owed Cargill $10,000 on his guaranty. There was evidence that as of March 1973 Roadside owed Cargill some $417,000 on its account. On March 7, 1973 Bledsoe notified Cargill in writing that he had sold his interest in Roadside. Bledsoe also testified at trial that this was the first time that he had informed Cargill in writing or otherwise that he did not intend to be bound by the guaranty.

In Bledsoe v. Cargill, Inc., supra, we said that “Novation is the substitution of one contract for another, the effect of which is to release or discharge from liability him who is bound by the original contract of which novation is asserted; i.e., the new independent contract extinguishes the old.” Whether there has been a novation depends on the intention of the parties, which may be determined from the facts and circumstances. American National Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So.21 (1937).

Also, a guarantor is deemed discharged from his guaranty if the principal debt is paid or satisfied. Shur-Gain Feed Division William Davies Co. v. Huntsville Production Credit Association, 372 So.2d 1317 (Ala.Civ.App.1979).

Bledsoe contends that once he sold his interest in the corporation and once the shareholders of the corporation executed the $50,000 guaranties, there was, in effect, a substitution of the $50,000 bonds for the earlier $10,000 bonds. Moreover, once the shareholders paid on their individual guaranties, there was a satisfaction of the debt due. Thus, Bledsoe argues, he was released from any and all liability under his personal guaranty.

The evidence shows that the guaranty agreement entered into between Bled-soe and Cargill provided that Cargill could take, extend, or renew collateral from other persons “without changing or releasing or discharging” Bledsoe from his obligation under the guaranty. More importantly, it stated it was “an absolute continuing guarantee which shall remain in full force and effect until the delivery to Cargill of a notice in writing signed by [Bledsoe] terminating the said guarantee.” (Emphasis added.) Bledsoe did not notify Cargill of his intention to terminate the contract until March 7, 1973. Since the agreement was a continuing guaranty, Bledsoe was bound by its terms until he gave sufficient notice of revocation. See Shur-Gain Feed Division, supra. Thus, Bledsoe was not released from liability until March 1973, unless, of course, there was a novation or substitution of the contract before March 1973. Bledsoe v. Cargill, supra.

The jury did not find a novation and there is evidence to support that conclusion. The evidence shows that Bledsoe was not a party to the substitution of the $50,000 guaranties for the $10,000 guaranties, nor did he consent to the substitution of the new guaranties for the old guaranties. Thus an essential element of a novation was not proved, i.e. the new obligation and the extinguishment of the old obligation did not include Bledsoe. See Butler v. Walton, 36 Ala.App. 319, 56 So.2d 369 (Ala. Ct.App.1951). The evidence thus fails to show that the parties intended that the new guaranties were supposed to discharge Bledsoe from his $10,000 guaranty.

As to the satisfaction of the debt due and owing at the time Bledsoe informed Cargill that he was no longer bound by the guaranty, it does appear that the other shareholders did pay on the indebtedness owed by Roadside Milling.

Whether there has been a satisfaction of the indebtedness of Roadside Milling by the other shareholders so as to relieve Bledsoe of his obligation depends upon the state of the evidence. The evidence shows that at the time Cargill made demand on Bledsoe in March 1973 for payment under his guaranty the outstanding indebtedness of Roadside was in excess of $400,000. Between 1973 and 1974, when Cargill filed its action against Bledsoe, the other shareholders had reduced Roadside’s indebtedness to about $71,000. At the time of trial, the indebtedness had increased to about $82,-000 due to the addition of interest. We conclude that the evidence supports the jury’s finding that the debt upon which Bledsoe was sued had not been satisfied by the other shareholders.

We therefore hold that the defendant’s motion for directed verdict and motion for judgment n.o.v. or, in the alternative, for a new trial were properly overruled. First, there was ample evidence to the effect that defendant was obligated to plaintiff on his personal guaranty. Second, the verdict is not contrary to the great weight of the evidence and the motion for new trial was properly overruled. See Walker v. Cardwell, 348 So.2d 1049 (Ala.1977).

Defendant’s next contention is that the trial court erred in refusing two of his requested charges to the jury. The first requested charge asked for a verdict if the jury found that Cargill had accepted the new bonds as substitutes for the old bonds. The second requested charge asked for a verdict if the jury found that there was no written release of the guaranty but that Cargill had intended to substitute the new bonds for the old bonds.

The oral charge of the trial court is, in pertinent part, as follows:

“[Sjhould you be satisfied that a ... new' contract of guaranty was substituted for the old contract of guaranty with the intention of releasing Mr. Bledsoe, then ... you could find that there had been a release of Mr. Bledsoe.”

Refused requested charges which are fairly and substantially covered by the trial court’s oral charge cannot be the basis for reversible error. M.C. West, Inc. v. Battaglia, 386 So.2d 443 (Ala.Civ.App. 1980); rule 51, Alabama Rules of Civil Procedure. No reversible error here.

Defendant’s final contention is that the trial court erred in admitting into evidence certain business ledger sheets showing the transactions of Roadside with Cargill.

Any writing or record made as a memorandum or record of any transaction is admissible into evidence as proof of said transaction if said record was made in the regular course of any business. Rule 44(h), A.R.Civ.P. The testimony shows that the ledger sheets in question were records of Cargill and that they were kept in the ordinary course of business. The trial court did not commit reversible error by admitting these business records into evidence. Carroll v. State, 370 So.2d 749 (Ala.Cr.App.), cert. denied, 370 So.2d 761 (Ala.1979).

No reversible error having been shown, the judgment of the trial court is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Albert F. KALETA v. Joan C. KALETA (Patterson).
    Civ. 3918.
    Court of Civil Appeals of Alabama.
    March 21, 1984.
    Rehearing Denied April 25, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-810.

      J. Huntley Johnson, Dothan, for appellant.
    Joel M. Nomberg, of Nomberg & Mc-Cabe, Daleville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal concerns proceedings to enforce a provision of a divorce judgment whereby the former husband was ordered to pay a debt of the parties to a third person.

Although the parties were divorced in 1979, they shall still be referred to as “the husband” and “the wife” for clarity. The divorce judgment approved and ratified a many faceted agreement of the parties. By the provisions of the agreement which is now in controversy, the husband agreed to pay the “wife’s father the sum of $5,000.00, which represents the balance of a loan made to the parties. Husband agrees to pay the sum of $5,000.00 without interest, 36 months following the date of any divorce decree rendered between the parties.”

In December 1982 the wife filed her complaint for a rule nisi, one of the grounds therein being that the husband had failed and refused to repay the loan to her father. At the trial the husband testified that he had made no payment upon that debt. After the ore tenus hearing, the trial court rendered its final judgment on June 27, 1983. The court found for the wife and against the husband for $5,000 for the use and benefit of the wife’s father for the husband’s failure to pay the debt due the wife’s father, as agreed upon in the separation agreement.

The husband appealed. His primary complaints are: (1) that, since the wife’s father was not a party to the litigation, the court erred in rendering the judgment because it did not take into consideration the rights of the father to claim interest, and (2) that he would be unprotected in a civil action against him by the wife’s father upon the debt if the wife collects the judgment from the husband but fails to pay the proceeds to her father.

The separation agreement was approved by the trial court and its provisions were incorporated by reference into the final divorce judgment. Thus, the entire agreement became merged into the divorce judgment, and the judgment, and not the agreement itself, became the controlling enforceable instrument. Horan v. Horan, 259 Ala. 117, 65 So.2d 486 (1953); East v. East, 395 So.2d 78 (Ala.Civ.App.), cert. denied, 395 So.2d 82 (Ala.1981). The terms of the agreement of the parties became terms of the divorce judgment and were enforceable by all remedies available for the enforcement of a judgment, including contempt where appropriate. However, the personal obligations imposed upon the husband to the wife to pay the debt to the wife’s father as being a loan to the parties, insofar as the agreement-divorce judgment was concerned, was a simple business transaction between the husband and the wife, a debt ex contractu, which was not enforceable by a contempt citation. Null v. Null, 423 So.2d 887 (Ala.Civ.App. 1982).

It is within the discretion of a trial court to require that one spouse assume and pay one or all of the marriage debts. Bryant v. Bryant, 401 So.2d 65 (Ala.Civ.App.) cert. denied, 401 So.2d 67 (Ala.1981); Smythe v. Smythe, 376 So.2d 1101 (Ala.Civ.App.1979); Patterson v. Patterson, 372 So.2d 329 (Ala.Civ.App.), cert. denied, 372 So.2d 330 (Ala.1979); Wilson v. Wilson, 53 Ala.App. 194, 298 So.2d 616 (Ala.Civ.App.1973), cert. denied, 292 Ala. 759, 298 So.2d 622 (1974). Where that is done, no valid reason has been presented to us as to why the other spouse cannot enforce the judgment. This is especially true where the debt was “for a loan made to the parties,” as was recited in the agreement-judgment in this case. In the absence of fraud, duress, or other similar reasons, both parties are, between themselves, precluded from collaterally attacking that clause. Accordingly, the wife has a vital interest in the repayment by the husband of her father’s loan to them and she may enforce the payment thereof.

Since the husband had not paid the debt as ordered by the divorce judgment, the method of enforcement of the judgment which was utilized by the trial court was permissible. Under rule 71 of the Alabama Rules of Civil Procedure, a court order may be made in a divorce case in favor of a person not a party, but the creditor would have no standing to enforce it under the divorce judgment. Wilson v. Wilson, supra. However, the benefited former spouse may attempt to enforce its judgment. Under the 1983 judgment in favor of the wife for the use and benefit of the creditor, if she received any payments upon the judgment, the proceeds would belong to her father. In effect, it was not a personal judgment for the wife, but was one for her father.

While, as between the husband and the wife’s father, interest upon the loan may or may not be due to be paid by the husband, that possibility does not diminish the fact that, by the agreement-judgment merger, the husband agreed with the wife to pay and was ordered to pay only $5,000 without interest for three years. In this litigation between the husband and the wife for the enforcement of the 1979 divorce judgment, the trial court enforced only that provision of the agreement-divorce judgment.

As to the husband’s concern that the wife might misappropriate the proceeds when the judgment is satisfied in whole or in part, he has many remedies. Among other means, he may protect himself by simply making payments upon the judgment by checks payable jointly to the wife and to the wife’s father, or he can pay the proceeds into the trial court and interplead the wife and her father therein, or he may move or petition the trial court for instructions, directions, and a protective order as to the application of any voluntary or non-voluntary payment or payments thereon. We will not reverse for future crystal ball predictions or fears expressed by a party which are remediable at that future date by that party’s self-help.

There being no error as to any issue which was presented by the husband’s argument, we affirm.

The wife’s request for an award of an attorney’s fee as to this appeal is denied. We are not cognizant of any authority to grant such a request on appeal from postdivorce litigation between the former spouses as to the enforcement of a mere debt. Smith v. Smith, 365 So.2d 88, 94 (Ala.Civ.App.1978). Properly, there was no finding of contempt as to the nonpayment of the indebtedness which is the sole subject of this appeal, and, accordingly, section 30-2-54, Code 1975, has no application. Hartsfield v. Hartsfield, 384 So.2d 1097 (Ala.Civ.App.), cert. denied, 384 So.2d 1100 (Ala.1980).

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    STATE of Alabama, DEPARTMENT OF REVENUE v. WELDING ENGINEERING AND SUPPLY COMPANY, INC.
    Civ. 4075.
    Court of Civil Appeals of Alabama.
    March 21, 1984.
    Rehearing Denied April 25, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-846.

      Charles E. Crumbley, Montgomery, for appellant.
    Thomas E. Bryant, Jr. and Carole W. Delchamps, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a lease tax case.

The final tax assessment was entered against the taxpayer by the Department of Revenue of the State of Alabama (state or department) on January 10, 1979. The taxpayer filed a notice of appeal in the appropriate circuit court on February 8, 1979, and deposited a notice of appeal in the United States mail on February 8, 1979, addressed to the secretary of the department. That notice normally would have arrived in Montgomery on February 9, 1979; however, the notice of appeal was not received by the secretary of the department until February 12, 1979. Only a fifteen-cent postage stamp was affixed to the taxpayer’s envelope, which contained the notice of appeal, and the front of the envelope bears a notation of “Postage due 13c.” The state filed in the trial court a motion to dismiss the appeal upon the ground that the appeal was not taken in accordance with the terms and provisions of § 40-2-22, Code of Alabama 1975, since the taxpayer failed to file a notice of appeal with the secretary of the department within thirty days from the date the final tax assessment was made and entered by the department against the taxpayer. The department contended that the trial court was without jurisdiction to hear the taxpayer’s appeal on that account. The state’s motion to dismiss was denied by the trial court. After the parties submitted the merits of the appeal upon a written stipulation, the trial court set aside the lease tax assessment and reduced it. The state timely appealed.

The primary issue is whether the taxpayer properly perfected its appeal under § 40-2-22, which provides, in pertinent part, as follows:

“If any taxpayer against whom an assessment is made by the department of revenue under any assessment required by law to be made by the department of revenue is dissatisfied with the final assessment as fixed by said department of revenue, he may appeal from said final assessment to the circuit court of Montgomery County or, in cases other than public utilities, to the circuit court of the county in which the taxpayer resides, if the taxpayer has within the state a permanent residence, at the option of the taxpayer, by filing notice of appeal with the secretary of the department of revenue and with the clerk or register of the circuit court of the county to which the appeal shall be taken within 30 days from the date of said final assessment made and entered on the minutes of the department as required by law....” (Emphasis supplied.)

§ 40-2-22, Code 1975.

That code section clearly provides that a timely filing of a notice of appeal with the secretary of the department is one of the prerequisites which must be met by a taxpayer in order to perfect an appeal to the circuit court from the department’s final tax assessments. That is a jurisdictional requirement, and there must be compliance with it before a circuit court has jurisdiction over the subject matter, the appeal. The appellate courts of this state have uniformly held that, if such a notice of appeal is not filed with the secretary of the department within thirty days from the entry of the final tax assessment, the taxpayer’s appeal to the circuit court should be dismissed. Some of those opinions to that effect are Dowda v. State, 274 Ala. 124, 145 So.2d 830 (1962); Lambert v. State Department of Revenue, 414 So.2d 983 (Ala.Civ.App.1982); Mitchell v. State, 351 So.2d 599 (Ala.Civ.App.1977), and State v. Empire Building Company, 46 Ala.App. 565, 246 So.2d 454 (1971).

The taxpayer, however, contends that Rule 25(a) of the Alabama Rules of Appellate Procedure should govern this matter since that rule provides that a filing of appellate papers required or permitted to be filed with the appellate clerk are deemed to be filed on the day of mailing if certified or registered mail is utilized in transmitting them to the clerk of the appellate court. We disagree with that contention for the reasons which follow.

“Contrary to the defendants’ argument, Rule 25(a), ARAP does not apply to all filings, but only to filings in an appellate court. That rule does not allow a certified mailing date as this was to be deemed the filing date in a trial court.” Holmes v. Powell, 363 So.2d 760, 762 (Ala.1978). That rationale is equally applicable to the required filing of the notice of appeal with the secretary of the department.

Since compliance with the provisions of § 40-2-22, supra, is jurisdictional, that code section applies and Rule 25(a) does not provide the mechanism by which a party may invoke the jurisdiction of the circuit court over such a tax appeal. To apply the Alabama Rules of Appellate Procedure so as to find an external exception to the jurisdictional time requirements of § 40-2-22 would constitute an unauthorized extension of jurisdiction. Holmes v. Powell, supra; Mitchell v. State, supra; State v. Empire Building Company, Inc., supra.

When the legislature has prescribed the means and method of perfecting an appeal from a tax assessment to the circuit court, that procedure must be followed. The legislature requires the filing of a notice of appeal with the secretary of the department within the specified thirty-day period. That means that mailing was not enough but that the notice had to be actually received by the secretary of the department before it was filed. Holmes v. Powell, supra. In that case, it was stated, “[I]t is obvious from a comparison of the Rules and the authorities that, in connection with filing a notice of appeal, the hazards of mail traffic have been studiously avoided.” 363 So.2d at 762.

In any event, even if Rule 25(a) applied, no compliance therewith is reflected by the record. The record furnished to this court does not disclose that the mailing of the notice of appeal by the taxpayer to the secretary of the department was by either certified or registered mail.

Since the jurisdiction of the trial court over the appeal was never invoked, the circuit court was without jurisdiction over the subject matter, and the taxpayer’s appeal should have been dismissed by the learned trial court. We must reverse and remand this case to the circuit court, where a judgment shall be entered, setting aside its final judgment of October 4, 1983, in this cause, reinstating the final tax assessments in full against the taxpayer, and dismissing the taxpayer’s appeal.

The foregoing opinion was prepared by retired Circuit Judge Edward N. Scruggs, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Diane Vick OWENS v. Henry Othel BLAIR.
    Civ. 4069.
    Court of Civil Appeals of Alabama.
    May 30, 1984.

      William Ken Rogers, Sylacauga, for appellant.
    Tommy R. Dobson, Sylacauga, for appel-lee.
   BRADLEY, Judge.

This is an appeal from a modification of a custody decree.

The parties to this proceeding were divorced on March 22, 1982. By agreement, the husband was awarded custody of the parties’ eldest child, a son, and the wife was awarded custody of the parties’ three minor daughters.

On or about June 16, 1983, husband filed a petition to modify the decree, requesting custody of his three daughters due to changed circumstances since the divorce, and a motion for instanter custody to prevent wife from taking the children to California. The court granted the motion for instanter custody and awarded temporary custody to the father.

Subsequently, a hearing was held on the instanter order. The parties agreed that custody of the three girls would be returned to wife until August 15, 1983, or until one week prior to the hearing on the petition to modify, provided wife post a bond to secure the return of the children. The court approved the agreement and returned temporary custody to wife.

An ore tenus hearing on the petition to modify was held on August 31, 1983. The trial court entered an order modifying the original custody decree and awarding custody of the three girls to their father.

Wife filed a motion for new trial and a motion for finding of facts. Both were denied by the court. She appeals.

Wife argues here that the trial court erred in denying her motion for new trial without a hearing on the motion, in denying her motion for finding of facts, and in granting husband’s petition to modify-

Rule 59(g), Alabama Rules of Civil Procedure, requires that a posttrial motion not be ruled on until the parties have had an opportunity to be heard thereon. Rule 6(d) provides that notice of the hearing must be served no later than five days before the time set for hearing. Wife contends that since there was no hearing on her motion for new trial the trial court erred in denying the motion. We disagree.

In the case at bar, no request for a hearing on the motion was made by either party. Wife had from September 29, 1983, when she filed her motion, to October 5, 1983, when it was ruled upon, to have requested a hearing. She did not. Therefore, the trial court did not commit reversible error when it denied the motion for new trial without holding a hearing. Clark v. Brister, 451 So.2d 350 (Ala.Civ.App.1984); Frederick v. Strickland, 386 So.2d 1150 (Ala.Civ.App.1980).

Wife next contends that the trial court erred in denying her motion for finding of facts.

In the instant ease the court entered its judgment on the petition to modify, but failed to set forth any findings of fact. It will be assumed that the trial court found the facts sufficient to support its judgment. Watts v. Talladega Federal Savings & Loan Association, 445 So.2d 316 (Ala.Civ. App.1984); Thomas v. Davis, 410 So.2d 889 (Ala.1982). No error here.

The final issue is whether the evidence discloses changed circumstances sufficient to warrant modification of the custody decree.

It is well established that a change in custody can be justified only if there exists a material change of circumstances since the original decree which affects the best interests of the children. McEntire v. McEntire, 345 So.2d 316 (Ala.Civ.App.1977). Husband, as the person seeking the modification, has the burden of showing circumstances which would justify disturbing the children’s custody. White v. White, 423 So.2d 867 (Ala.Civ.App.1982); Lightfoot v. Bylsma, 412 So.2d 813 (Ala. Civ.App.1982).

Where the trial court hears the evidence ore tenus, its judgment carries a presumption of correctness and will not be overturned except for plain or palpable error. Simpson v. Gibson, 420 So.2d 782 (Ala.Civ.App.1982).

The evidence in several aspects is in sharp dispute. However, the evidence supporting the decree shows that the parties were divorced in March 1982. Father resides in Talladega County, Alabama where the children were born and lived most of their lives. The children’s relatives live in that area also.

In the initial consent decree, the father was granted custody of the oldest child, a boy, and the mother was granted custody of the other three children, all girls. The mother, however, agreed that the father should have physical custody of all the children until the end of the school term. She said that she did not have a proper place to keep the children.

In June 1982 the mother remarried and in August 1982 she moved with the two younger children to California. The eldest daughter stayed with her father in Alabama until December 1982, apparently with the consent of the mother. At that time she went to live with her mother in California.

The mother and the three girls returned to Alabama at Christmas to visit. The three girls decided to remain with their father and not return to California. Again this appeared to be with the mother’s consent. The mother did not return to Alabama until June 12, 1983. During the January to June period that the children were with the father, the mother stayed in touch with the children and the father by phone and letters. The mother did express a desire to return to Alabama to visit the children but said she did not have the money. The father offered to pay her way back but she did not accept his offer. Later in this period the mother had an operation that hospitalized her for about a week, and that was another reason she gave for her inability to return to Alabama to see her children.

In June 1983 the mother said she was taking the children to California. At the request of the children, the father obtained their temporary custody. The children said that they wished to stay in Alabama with their father during the school term and live with their mother in California during the summer vacation.

The mother was permitted to take the children to California.

The evidence shows that the husband is a maintenance superintendent for Catalytic, Inc. in Wilsonville, Alabama, earning $37,-000 a year. Husband lives near Fayette-ville, Alabama within blocks of where his mother and sister live. During the time the children have been in the father’s custody, they have been well fed, clothed, and cared for not only by the father but by his relatives and the relatives of the mother. The father takes the children to church and participates in recreational activities with them.

The evidence shows that the mother has consumed alcoholic beverages in the past and that this was one of the causes of the breakup of the parties’ marriage. The mother also has a heart condition and suffers with periods of nervous depression. The evidence reveals that the mother has taken valium and is now taking tranquilizers. It also appears from the record that the mother had moved five times since the divorce. The mother did say that the children should stay together and that they should be with one parent nine months out of the year, i.e., the school term, and with the other parent for the rest of the year.

The trial court granted primary custody to the father for nine months out of the year, i.e. the school term, and granted the mother custody for the three months the children are not in school. We find no reversible error in this custodial arrangement.

It is accepted doctrine that remarriage of a parent or change of residence, absent a showing of adverse effect on the children, alone does not justify a modification of an existing trial custody award. Robertson v. Robertson, 415 So.2d 1085 (Ala.Civ.App.1982). However, both changes in residence and a party’s subsequent marriage are factors to be considered, along with others, by the trial court in making its determination of whether a material change in circumstances has been shown. Robertson v. Robertson, supra.

In addition to remarriage and change of residence five times in a period of about a year and one-half, the evidence shows that the mother has emotional problems which could affect her performance as a custodial parent. The evidence also reflects that the children wished to live with their father during the school term and their mother during the summer. Although a child’s wish to live with one or the other of his parents is not conclusive as to the award of custody, it is a factor for the trial court to consider in making its custodial award. Parks v. Parks, 275 Ala. 613, 157 So.2d 212 (Ala.1963).

The record is replete with instances where the children had been pulled back and forth between their parents, resulting in their lives being very unstable during the time since their parents’ divorce. The evidence warrants the trial court’s conclusion that the children’s welfare would best be served by injecting as much stability in their lives as it could by awarding primary custody to the father during the school term and secondary custody to the mother during summer vacation. We do not find such a custodial arrangement to be plainly or palpably erroneous based on the evidence in this case.

AFFIRMED.

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


author: TAYLOR, Judge. TAYLOR, Judge.

text:
    Richard EDDINGS v. STATE.
    7 Div. 131.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    On Return to Remand March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-829.
    John T. Wildsmith, Jr., Childersburg, for appellant.
    Charles A. Graddick, Atty. Gen. and Debra Jean Williams Brown, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

This appeal raises the same issues as raised in the case of Ervin v. State, 442 So.2d 123 (Ala.Crim.App.1983) and is controlled by the same principles as set out therein and by the same directions to the trial court.

This case is accordingly remanded with directions to the trial court to make a factual determination as to whether there existed a conflict of interest in this case as herein noted. The trial court is further directed that the appellant and his counsel should be present at the hearing conducted on the issue herein set forth. A transcript of this hearing shall be prepared following this hearing with the appropriate findings set forth in writing by the trial judge, such transcript be returned to this court.

REMANDED WITH DIRECTIONS.

All The Judges concur.

ON RETURN TO REMAND

TAYLOR, Judge.

This is a companion of Eddings v. State, 443 So.2d 1308 (Ala.Crim.App.1983). Appellant Richard Eddings is a brother of Johnny, and he was charged with participating in the same offense. He, too, is of extremely limited mental capacity — intelligence quotient measured at 53 — in the same range as his brother’s 48 I.Q. While Judge Hubert Taylor and I dissented, the majority of the court, in that case, expressed itself on all the issues which arise in this case. Accordingly, this case is reversed and remanded upon authority of Eddings v. State, 443 So.2d 1308 (Ala.Crim. App.1983), cert. denied, [Ms. 83-209 Jan. 13, 1984], for further proceedings not inconsistent with the principles as set out therein.

REVERSED AND REMANDED.

All the Judges concur.


author: SAM TAYLOR, Judge.

text:
    Lewis DeWayne McGEE v. STATE.
    5 Div. 702.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied March 20, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-634.

      G. Houston Howard, II of Howard, Dunn & Howard, Wetumpka, for appellant.
    Charles A. Graddick, Atty. Gen. and John Gibbs, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant, Lewis DeWayne McGee, was convicted of promoting prison contraband in the second degree and was sentenced under the Habitual Felony Offenders Act to 15 years’ additional imprisonment. He appeals on several grounds.

The state’s evidence tended to prove that the appellant was an inmate at the Staton Correctional Facility in Elmore County where he worked at the canning plant. A tower guard, Bernard Shindell, saw appellant and another inmate drive away from the plant on a farm-type tractor and trailer going to the garbage dump about a mile away. As they returned, Mr. Shindell saw the tractor stop about 300 to 350 yards away. He saw the appellant dismount and go around to the rear of the trailer, where he secured some object in his hand, and then return to the tractor carrying the object. Appellant got on, leaned forward, and placed the object somewhere beneath the steering wheel area. Mr. Shindell then called another guard and when the two inmates reentered the canning plant gate on the tractor, they were searched. Nothing was found on the person of either inmate. A search of the tractor turned up a Coca-Cola can lodged between the engine cover and the engine near the steering wheel area. Inside the can was found a plastic bag containing a grass-like substance and some pills of various colors. Allen Adair of the Department of Forensic Sciences testified later that the plant substance was marijuana. He said that some of the pills were Phentermine. The driver of the tractor appeared to take no part in handling the contraband.

I

Appellant first asserts that Adair’s testimony should not have been received because, he contends, there was a failure to prove the chain of custody for the controlled substances. From the record we determine that Officer Lyons, who conducted the search and discovered the substances, took both inmates and the can to his office and called his supervisor. He then turned the can and its contents over to his supervisor, Sergeant Smith. Later, Officer Lyons put the evidence into an envelope and marked it. He identified state’s exhibits 1 and 2 as being that can and its contents. Sergeant Smith testified that he received the can containing the pills and the grass-like material from Officer Lyons and put them in a locker while he did the paper work in connection with the discovery of the contraband. Later, the evidence was bagged by Officer Lyons and taken to the warden’s office. The warden, Mr. Charles Ronald Sutton, testified that he met Sergeant Smith in his office at Staton and received some evidence from him. He put the evidence in his desk, which he locked and to which he had the only key. Later he turned the evidence over to Mr. Paul Sides. Mr. Sides, an investigator with the Department of Corrections, testified that he went to Staton and received a package containing evidence from Warden Sutton; he took the evidence to his office and put it in his evidence locker. The next day he opened the package and found the cola can and plastic bag, which in turn contained pills and vegetable material. He took the pills and the vegetable matter to the Department of Forensic Sciences. Mr. Allen Adair of the Department of Forensic Sciences testified that after he received them he identified two yellow and two black capsules as Phenter-mine, and the green vegetable material as marijuana. We find no “break” in the chain of custody which would render testimony regarding the evidence inadmissible. The state met its burden of showing a reasonable probability that the evidence had not been altered. See Congo v. State, 409 So.2d 475, (Ala.Cr.App.1981), writ, denied, 412 So.2d 276 (Ala.1982); Williams v. State, 375 So.2d 1257 (Ala.Cr.App.), cert. denied, 375 So.2d 1271 (Ala.1979); Bell v. State, 339 So.2d 96 (Ala.Cr.App.1976). Appellant contends that the state has failed to meet its burden of proof in this respect because several witnesses did not testify that the evidence was in the same or substantially the same condition at one time or another; we find that these witnesses’ testimony was to the same effect and agree with counsel for appellee that failure to use these specific words is not fatal in proving a chain of custody.

II

Appellant contends that the warden of Staton Correctional Facility should not have been allowed to testify that appellant was an inmate there; further, he asserts that the court erred in denying the appellant’s motion for judgment of acquittal on the grounds of failure to prove that the appellant was an inmate. This contention requires a review of the statute alleged to have been violated, § 13A-10-37, Code of Alabama 1975, and the statute regarding means of proof of certain facts, § 14-3-57, Code of Alabama 1975. The indictment charges violation of § 13A-10-37, promoting prison contraband in the second degree. This statute provides that:

“(a) a person is guilty of promoting prison contraband in the second degree if: ... (2) Being a person confined in a detention facility, he intentionally and unlawfully makes, obtains or possesses any narcotic, dangerous drug, or controlled substance as defined in Chapter 2 of Title 20 of this Code....”

More challenging to interpret is § 14-3-57, which provides:

“On the trial of any convict for any offense committed within the penitentiary or other convict prison or convict camp, the fact of confinement in the penitentiary shall be presumptive evidence of a legal conviction and sentence of imprisonment, and copy of the transcript of the conviction and sentence filed with the board of corrections and certified by it to be correct shall be received as evidence of such conviction.”

At first blush, § 14-3-57 seems to contradict itself. The first half of this statute, part of our Code since 1852, says that the fact of confinement in the penitentiary shall be presumptive evidence of a legal conviction and sentence. The second half of the statute then provides that a copy of the transcript of the conviction and sentence shall be receivable as evidence of such conviction. In interpreting this section of the code, we do not have completely satisfactory guidance from the available precedents. We recognize the rule of statutory construction that a statute should be interpreted so as to give meaning to all of its parts, if feasible. We interpret the second half of this one-sentence code provision to authorize the introduction into evidence of a certified copy of the transcript of a conviction and sentence as proof of such conviction. There are some statutes which provide that proof of such a conviction is necessary. The statute prohibiting possession of a pistol after conviction of a violent felony is an example, as are the escape statutes. Proof of conviction of a felony is in fact an essential element of proof for such offenses.

The first half of the sentence in § 14-3-57 addresses a different subject. It provides a means for proving a legal conviction and sentence without the introduction of a certified copy of same and it creates a rebuttable presumption of a legal conviction and sentence upon proof of confinement. For a person to be guilty of promoting prison contraband, it must be proved that the accused is “a person confined in a detention facility.” We hold, and intend this case to be authority for the proposition, that the first portion of the compound sentence of § 14-3-57 permits proof by any lawful evidence that a person is confined in a penitentiary. Once this fact is proved then the presumption of a legal conviction and sentence necessarily arises. The statute limits the use of the presumption to the trial of a convict for an offense committed within the penitentiary, or other convict prison or convict camp.

Applying this ruling to the instant case, we find that the court did not err in permitting Warden Sutton to testify that the appellant was one of the inmates incarcerated in this prison. Neither did the state fail to prove that element of its case. The motion for judgment of acquittal was properly denied.

Ill

Appellant was serving a sentence after having been convicted of two robberies, a forgery and an assault with intent to murder. He contends that it was necessary to prove these prior convictions in order to make out a prima facie case. He then reasons that it should be improper to use these same prior convictions to enhance his punishment under the Habitual Felony Offenders Act, § 13A-5-9, Code of Alabama 1975. Appellant cites, as authority for this contention, the case of Wigley v. State, [Ms. 8 Div. 685, November 23, 1982] (Ala.Cr.App.1982). In that case this court held that use of a prior felony conviction was an element of the offense of possessing a pistol after having been convicted of a crime of violence. Here again a distinction must be made. Proof of a prior conviction is not an element of the offense of promoting prison contraband. It is only necessary that the state prove that the accused is a person confined in a detention facility. This being true, the appellant’s prior convictions may be employed to enhance the possible range of his sentence.

IV

Appellant contends that the trial court erred in permitting Warden Sutton to testify that the Staton Canning Plant was a part of the prison system; he alleges that such testimony invaded the province of the jury. Witness Sutton, who had responsibility for the overall administration of Staton Correctional Facility, was asked, “Now, is the canning plant out there — is that a part of the prison?” He replied, “Yes, sir. It is part of the prison system.”

Since it was the jury’s duty to decide whether the canning plant constituted a detention facility, no error was committed.

V

Appellant next contends that the trial court erred in failing to give a charge that the jury had to acquit the appellant if they found that he possessed the substances while outside the detention facility but not while confined within the detention facility. The language of § 13A-10-37(a)(2) does not limit the offense to possession within the walls of a prison. The statute provides that the offense if committed whenever a person who is confined to a detention facility comes into possession of a drug. We recognize that inmates exit the prison walls for various purposes every day. Conveying garbage, as was done in this case, is an example. It is the status of the accused as a confined person, not the location where he possessed the drugs, that is an element of the offense. The court did not err in refusing appellant’s incorrect charge; the charge misstates the law. We observe from the record that the appellant was in fact in possession of the drugs after the tractor entered the canning plant gates.

VI

Appellant contends the court erred in refusing to charge that the fact that the appellant was an inmate at the time of trial was not evidence of his guilt. We find that the substance of this charge was adequately covered by the trial court’s oral charge. The court’s charge regarding the presumption of innocence, regarding the requirement placed on the state to prove each element beyond a reasonable doubt, and regarding the requirement placed on the jury to decide the case based on the evidence and not upon any prejudice, taken together, rendered the requested charge redundant.

VII

Appellant contends that the court erred in denying the motion to exclude Allen Adair’s identification of two yellow capsules as Phentermine, contending that Adair had not established the accuracy of the test he used. Adair later testified that the marquis test and the infrared spectrophotometry test are accurate and conclusive. He also testified in the absence of a timely objection that the two black capsules also contained Phentermine. He again testified to this on cross-examination. We find that no prejudice accrued to the appellant by virtue of the admission of Adair's testimony the first time, since the presence of the controlled substances and the accuracy of the tests were later established by him at trial without objection.

VIII

Appellant contends that the indictment did not adequately inform him of the charge against him because “Phentermine” was misspelled in the indictment as “phet-ermine.” Our Supreme Court in McKessick v. State, 291 Ala. 564, 284 So.2d 516 (1973), has held that a defect such as the misspelling of the name of a drug does not affect the rights of a defendant and does not mislead him as to the charge he faces. Thus, we find no merit in appellant’s contention.

Based on the foregoing, this case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Charles Tobin HUFF v. STATE.
    1 Div. 634.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-838.

      G. Wayne Ashbee, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Mark G. Montiel, Asst. Atty. Gen., for ap-pellee.
   SAM TAYLOR, Judge.

Charles Tobin Huff was convicted by a Mobile County jury of robbery in the first degree. Applying the Habitual Felony Offenders Act, the court sentenced him to life without parole; from that conviction he brings this appeal.

I

Appellant contends first that his constitutional rights were violated because he was required to open his mouth and show his teeth during his trial. The victim testified that one of the two men who robbed him had a “bigger gap than mine” in the man’s upper teeth. The district attorney then asked the victim, “All right. Now, would it aid you in your identification today if you were able to see the Defendant’s teeth?” Answer: “Yes, sir.” The trial court ordered the appellant to stand up and open his mouth. The appellant contends this violated his 5th Amendment privilege against self-incrimination.

There is no merit in this contention. Appellant’s protection against compulsory self-incrimination applies only to evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). This court stated in Jones v. State, 54 Ala. 167, 306 So.2d 33 (1974), that the 5th Amendment

“offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” Quoting Schmerber.

We can think of no set of circumstances under which the appearance of appellant's teeth could qualify as testimonial rather than physical evidence. See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Suggs v. State, 403 So.2d 303 (Ala.Cr.App.), writ denied, Ex parte Suggs, 403 So.2d 309 (Ala.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1428, 71 L.Ed.2d 648 (1982).

II

Appellant next contends that the court erred when it considered a previous conviction for sentencing purposes. He contends that the sentencing hearing record fails to show that he entered his plea of guilty to the earlier charge with an understanding of his constitutional rights, the nature of the crime charged in the indictment, the consequences of his guilty plea or that he understandingly and voluntarily waived his constitutional rights and pleaded guilty. In sum, he attacks the colloquy between the court and the accused in that case. He cites Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). In that case, the records on their face made it apparent that the accused was not represented by counsel, and so the pri- or conviction could not be used to enhance punishment. In this ease, all of the records of previous convictions did demonstrate that appellant was represented by counsel. The convictions were certified to as required by the temporary rules of criminal procedure, A.R.Crim.P., Temp. 6, and the proceedings were in accordance with Highsmitk v. State, 55 Ala.App. 272, 314 So.2d 874 (1975).

We find that the requirements under Burgett were met in this case. Cf. Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.), cert. denied, 406 So.2d 1053 (Ala.1981) (in which this court found that a docket sheet showing that a defendant was represented by counsel was sufficient to satisfy the Burgett requirement).

Appellant’s challenge of the colloquy between himself and the court during the 1973 sentencing hearing has no place in this appeal. The record of that hearing, to which the appellant refers by page number in his brief, is not part of the record in this case. Even if that earlier colloquy were at issue, the judgment entry from that case, which was introduced at the sentencing hearing in the instant case, indicated that the 1973 trial court ascertained that the appellant understood his constitutional rights. The earlier judgment entry also stated that appellant understood the “nature of the crime charged in the indictment, and the consequences of his guilty plea...” and that he “understandingly and voluntarily” waived his constitutional rights before he pleaded guilty.

In any event, once it had been determined by the trial judge in the instant case that appellant had been represented by counsel at the time he pled guilty to the prior offenses, it was not necessary to inquire further into the colloquy that occurred during the earlier sentencing hearing. As we said in Jones v. State, 431 So.2d 1367 (Ala.Cr.App. 1983),

“... before a trial judge may sentence a defendant following a plea of guilty, he must inquire if the defendant’s plea has been given knowingly and voluntarily. However, this rule of law.. .only applies during the sentencing of the defendant following his guilty plea. There is no authority that these matters must be reviewed when that conviction is used pursuant to the Habitual Offender Act.”

We hold that it is not required that the state prove anything regarding prior convictions other than matters required by statute. In addition, we hold that details of the colloquy between court and accused in a previous case from which a conviction is employed to enhance punishment in a later case, even if demonstrated by appellant, will not prevent the use of that case for the purpose of sentencing under the recidivist statute.

Thus, we find no merit in appellant’s second issue.

ni

Appellant finally contends that the state failed to give reasonable notice of its intention to use certain prior convictions in asking for enhancement of his sentence under the Habitual Felony Offenders Act. We cannot agree.

The purpose of the notice required under A.R.Crim.P., Temp. 6(b)(3)(ii), is to inform the accused of which convictions will be relied upon by the state to enhance his punishment. Wilson v. State, 428 So.2d 197 (Ala.Cr.App.1983).

The required notice must be “reasonable” and must be given prior to the sentencing hearing. Holsclaw v. State, 406 So.2d 1019 (Ala.Cr.App.), cert. denied, 406 So.2d 1020 (Ala.1981).

The record shows that on May 20, 1983, the appellant was served a copy of the state’s motion for habitual offender status. That motion included certified copies of the prior convictions which the state planned to introduce at the sentencing hearing.

The original sentencing hearing was scheduled for May 20, 1983, but it was continued until June 2, 1983, for the expressed purpose of allowing appellant to receive sufficient notice. The record clearly reflects that appellant received a copy of the presentence report prior to the June 2 hearing.

We find that as long as appellant is given reasonable notice of the state’s intention to proceed under the Habitual Felony Offenders Act, and as long as that notice is given before the hearing at which the appellant is actually sentenced, then it is not crucial that any specific time period elapse between the filing of the motion by the state and the sentencing hearing.

For the reasons cited above, we find that the judgment of the trial court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Karen Denise COLEMAN v. STATE.
    1 Div. 682.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-825.

      James M. Byrd, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Karen Denise Coleman was indicted and convicted for the murder of Rubin Fitzgerald Johnson, Jr. Sentence was twenty-five years’ imprisonment.

The only issue on appeal involves the prosecutor’s use of statements Coleman made to her probation officer in an attempt on cross examination to prove that Miss Coleman was a “set-shooting bitch” and used drugs.

The State’s evidence shows that sometime after midnight on August 3, 1982, several people had gathered in front of Beverly Dumas’ house. Miss Coleman and Rubin Johnson became involved in an argument and blows were exchanged. The two were separated and Coleman left the scene, only to return within a very short time and stab Johnson with a knife.

There is no significant conflict in the evidence, although there is some discrepancy as to what happened during the first incident. Basically, and ignoring these minor discrepancies, what occurred was that Johnson was expressing his sexual desire for Deloris Dixon when Miss Coleman told him he was vulgar. Johnson approached Coleman and, after some further comments were exchanged, slapped her. Johnson and Coleman fought until they were separated. Miss Coleman was either taken to or walked to the house where she remained for a short time. All would have been well had Coleman not returned to the scene.

The State’s evidence tends to show that Coleman returned to pursue the matter and to ask Johnson why he slapped her. After confronting Johnson, she attacked him, stabbing him before anyone discovered that she was armed with a steak knife. Miss Coleman cut two of the individuals who attempted to stop the fight. After the two were separated, Miss Coleman “struggled to get aloose” and refused to surrender the knife. Johnson had been stabbed four times and died “as a result of blood loss through the stab wounds.”

The defense presented testimony that Miss Dixon and Miss Coleman were leaving after the initial encounter, when Johnson grabbed Coleman, held a knife to her throat and told her in crude language that he intended to have sexual relations with her. Miss Coleman began to struggle and when Johnson dropped the knife she grabbed it and stabbed'him twice.

On direct examination by defense counsel, Miss Dixon testified that, before Johnson slapped Miss Coleman during the first incident, Johnson called her an “old set-shooting bitch.”

Miss Coleman testified that Johnson twice called her a “set-shooting bitch”: once before he slapped her, and the second time when she and Dixon were walking home.

On cross examination of Miss Coleman, the assistant district attorney attempted to establish that “set” referred to drugs and that Miss Coleman had personal experience with “sets”:

“Q. (Assistant District Attorney): Do you know what sets are?
“A. Well, I’ve heard that they were barbiturates.
“Q. You’ve heard? You don’t have any personal experience with sets?
“A. No, I don’t.”
“Q. Do you know how sets are used? “A. Not exactly.”
“Q. Are you familiar with Talwin?
“A. No, I’m not.
“Q. You don’t know that Talwin is called sets on the street and it’s used to shoot up in your veins, give you a cheap heroin high? You’re not familiar with that?
“A. I know sets are used to shoot up.
“Q. Have you ever used sets to shoot up yourself?
“A. No, I have not.
*“Q. You remember talking with Terri Luker, a probation officer of this State? “A. No, I don’t.
“Q. You don’t recall that?
“A. No, I don’t.”
“Q. You remember talking with Terri Luker, a probation officer? That’s a woman now, a probation officer, in regard to a Youthful Offender request? “A. No, I don’t.
“Q. You deny that you ever talked with Terri Luker?
“A. Yes, I do.
“Q. You don’t recall telling Terri Luker that you regularly used Talwin?
“A. No, I don’t.”

The above exchange does not reflect the vigorous and strenuous objections interposed by defense counsel. The State makes no contention that this issue has not been preserved by proper objection. Our review shows that counsel was most diligent in this regard. Counsel not only objected but, after the last answer, moved to exclude. The trial judge denied the motion because “she’s already denied it.”

After the defense rested its case, defense counsel requested curative instructions on this issue.

“ME. BYRD (Defense Counsel): Your Honor, before we go to the rebuttal I would request in the alternative either a curative instruction as to use of the Y.O. report or a mistrial, based on the grounds that the Prosecutor has used information which was privileged. When obtained it was not to be used against the Defendant in any court proceeding.
“THE COURT: You’re the only one that’s said that and for the record I deny it if your request was a mistrial.
“MR. BYRD: I requested curative instruction, Your Honor.”

After the State presented its rebuttal' testimony, defense counsel made another objection, and the following occurred:

“MR. BYRD: The Defendant renews the motion for directed judgment, assigns all the grounds stated previously and adds to that the ground that Prosecutor conducted improper cross examination of the Defendant, referring to statements she allegedly made to a State Probation Officer during an examination to consider whether the Defendant would be granted her Youthful Offender status request.
“THE COURT: Are you through?
“MR. BYRD: Yes, sir.
“THE COURT: I deny it, and I’ll also state for the record that I specifically told both the attorneys up here, which I don’t believe was on record, that I would not let him go into any such report, told him I felt there was a statute right on point on it and—
“MR. HARGETT (Assistant District Attorney): I have since looked it up, Judge.
“THE COURT: And you’ve since found out I was correct?
“MR. HARGETT: Yes, sir.
“THE COURT: Bring the jury in.
“MR. BYRD: Sir, just one second. While we’re on the record, Mr. Hargett, that was Miss Luker of the State Probation and Parole and it was a Youthful Offender investigation that you were reading from in questioning the Defendant, wasn’t it?
“MR. HARGETT: I wasn’t reading from anything at the time.
“MR. BYRD: The state—
“THE COURT: I don’t know why we’re playing games. Put anything you want in the record.
“MR. BYRD: Well, I wanted — Mr. Har-gett, it was a Youthful Offender report that you were quoting from?
“MR. HARGETT: Certainly.
“MR. BYRD: And it was for Youthful Offender consideration is the reason that report was made, right?
“MR. HARGETT: Yes.”

Alabama Code Section 15-19-5 (1975) provides: “No statement, admission or confession made by a defendant to the court or to any officer thereof during the examination and investigation referred to in section 15-19-1 (for determining whether an individual should be tried as a youthful offender) shall be admissible as evidence against him or his interest.” Here, the prosecutor’s use of a statement Coleman made to a state probation officer as part of a youthful offender investigation clearly violated this statutory prohibition. Despite this flagrant violation, we find the error to be harmless.

Whether or not Miss Coleman was a “set-shooting bitch” is entirely immaterial and irrelevant to the issues involved in this case. Moreover, the general rule is that the accused is not prejudiced by the trial judge allowing the State to question him as to statements alleged to have been made by him to a witness, where he denied making the statements. McGehee v. State, 171 Ala. 19, 55 So. 159 (1911); Beavers v. State, 151 Ala. 5, 44 So. 401 (1907); Thompson v. State, 100 Ala. 70, 14 So. 878 (1894). Negative answers to improper questions constitute harmless error. Young v. State, 416 So.2d 1109 (Ala.Cr.App.1982); Wyrick v. State, 409 So.2d 969 (Ala.Cr.App.1981); Allen v. State, 390 So.2d 676 (Ala.Cr.App.1980); McGhee v. State, 41 Ala.App. 669, 149 So.2d 1 (1962), affirmed, 274 Ala. 373, 149 So.2d 5 (1963); McClendon v. State, 21 Ala.App. 494, 109 So. 526 (1926). “A negative answer to a question asked on cross-examination even though the question itself was improper cannot result in harm to the appellant.” Barton v. State, 376 So.2d 756, 760 (Ala.Cr.App.), cert. denied, 376 So.2d 761 (Ala.1979). While we find the question offensive, examination of the cited cases reveals that this rule has been applied in cases far more egregious than that presented here.

“Error in asking, or allowing the asking of, questions which are improper on cross-examination may be prejudicial and reversible error; and this principle is particularly applicable where the evidence in the case is fairly evenly balanced....”
However, such error is not a ground for reversal where the rights of accused are not substantially prejudiced thereby.... So, also, such error is not a ground for reversal where the answer is such as to render the error harmless, as, except, according to some decisions, in extreme cases, where the witness answered in the negative and such denial on his part was not contradicted by the opposing side, particularly where the court admonished the jury to disregard such cross-examination, although such admonition was not necessary....”
24B C.J.S. Criminal Law, Section 1914(5) (1962).

We fully recognize that some questions may be so highly prejudicial in and of themselves, that their very asking constitutes reversible error, even if answered in the negative. West v. State, 17 Ala.App. 353, 85 So. 833 (1920). However, the prosecutor’s questions do not rise to such a level under the facts of this case.

We find that, although the prosecutor’s attempts to impeach the defendant with statements she made to a state probation officer were improper because of the youthful offender statute, the error was harmless because (1) the questions were answered in the negative, (2) the reference to the defendant as a “set-shooting bitch” was initially introduced by a defense witness, and (3) the questions are not so prejudicial as to be ineradicable.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    John GOLDEN v. STATE.
    3 Div. 830.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    As Corrected on Denial of Rehearing April 24, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-782.
    Certiorari Denied Oct. 9, 1984.
    See 105 S.Ct. 260.
    Paul M. Harden, Monroeville, for appellant.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

John Golden was convicted of robbery in the first degree and sentenced to twenty years in the penitentiary from which he prosecutes this appeal. He asserts several grounds for reversal.

The state’s evidence tended to show that on the 18th of January, 1983, James Bird, Alvin Sellers, and Lehman Tucker met with the appellant, John Golden, at Golden’s house. Golden mentioned that he was due to pay off a fine and suggested robbing the local Jiffy Mart to get the necessary money. A plan was made whereby Bird, Sellers and Tucker would go in the Jiffy Mart and take the money while Golden would be waiting behind a nearby school in the getaway car. Around 10 p.m. appellant drove the others to the Jiffy Mart. As they were getting out of the car, appellant told Lehman Tucker to take his homemade nightstick from under the car seat. Tucker took the nightstick and passed it to Alvin Sellers who put it in his pants. The three went into the store, cased it, and left. They returned about 11:40 p.m., twenty minutes before closing. They called the state’s witness, Juanita Trawick, over to the ice cream counter. Bird held Miss Trawick while Sellers beat her until she fell to the floor. The three took $655 cash and ran out of the store. Meanwhile, appellant had driven to the nearby school as planned. While appellant was waiting there, he was observed by Officer Stallworth. When the three men ran to the school, they found that the appellant was not there. They went to James Bird’s house and from there to appellant’s house. At Bird’s house they divided the money three ways as previously planned. Each was to give appellant $20 to $30. When they got to appellant’s house, they asked him to drive them out of the county, but he refused to do so because he believed the police were watching his car. The appellant took all of the money and hid it in a paper sack inside a drawer in his house. Lehman Tucker left but James Bird and Alvin Sellers remained at appellant's house until they were arrested about four or five hours later. These three individuals all pleaded guilty to robbery and two of them testified against the appellant at his trial.

I

Appellant first contends that there was no probable cause to arrest him at the time of his arrest. Appellant stated that his wife had been stopped by the police while driving his car around after the robbery. He went to the police station to see if they were looking for him. The Miranda warnings were administered to him. During this time police testified that appellant was not under arrest and was free to leave. Appellant told Investigator Powell that he and one Curtis Tucker had played cards the night of the robbery. The police chief and two other officers went to the north end of town where they picked up Curtis Tucker and Lehman Tucker. At the station, during questioning, Lehman Tucker implicated the appellant in the robbery. Until this point, the appellant, who came to the police station as a volunteer, had not been arrested. The police then placed him under arrest for “investigation of robbery” and took him to jail. Several hours later, at about 8:45 a.m., Police Chief Bundy questioned the appellant. The appellant admitted transporting the other three men to the Jiffy Mart. He said that all of them told him what they were going to do and he told them he was not going to do that. He said he drove to the school, then returned to the store and did not see them so he drove home. They arrived at his house about forty-five minutes later, told him what they had done and that the law was after them and gave him the money, which he put in a drawer in a paper sack. Appellant signed a statement to this effect. He was then charged with and arrested for robbery.

Golden’s first arrest was for “suspicion of robbery.” The police, when they effected this arrest, had been told by Lehman Tucker of the robbery and the appellant’s part in the robbery. They also knew that the appellant was in his car in the area of the robbery at about the time of the crime. This information provided probable cause for the arrest of the appellant.

II

Appellant next contends that the court erred in denying a motion for mistrial because an exhibit had been handed to the jury before being admitted into evidence. The challenged exhibit was the homemade nightstick, state’s exhibit 1. The victim, cashier Juanita Trawick, identified the homemade nightstick as looking exactly like the one with which she was beaten during the robbery. The following occurred:

“MR. HYDE: That’s all.
“MR. OWENS: [Defense Attorney] Judge, I think our objection to the introduction of this stick is still pending.
“THE COURT: Was it offered?
“MR. PEARSON: [District Attorney] No, sir.
“MR. OWENS: Well, we move for a mistrial on the grounds that it was handed to the jury before it was entered into evidence—before the Court allowed it into evidence.
“THE COURT: I overrule your motion. “MR. OWENS: We except.
“THE COURT: Call your next witness.”

The record does not show at what point the nightstick was handed to the jury. The testimony of the witness formed an adequate basis for reception of the nightstick into evidence. The stick was subsequently received into evidence. Without approving the procedure employed regarding the introduction of the exhibit, the issue was rendered moot when the exhibit was subsequently admitted into evidence.

III

Appellant next contends that the oral charge of the court to the jury was erroneous in that the court charged that the jury had to be “reasonably satisfied” rather than “convinced beyond a reasonable doubt.”

The record reflects that the court, during a long charge, did use the words “reasonably satisfied” but instantly corrected itself, and said “convinced beyond a reasonable doubt.” The manner in which the court corrected the charge, we believe, entirely eradicated any error. See Ala.Digest, Criminal Law, Key No. 823(15).

IV

Appellant asserts that the state failed to present sufficient evidence to overcome a motion for a directed verdict of acquittal. The evidence before the jury consisted of direct evidence of the robbery by the testimony of the victim about the beating and the theft of the money. The evidence of appellant’s participation included the testimony of two accomplices and appellant’s own statement. We find that this testimony constituted more than enough evidence of a violation of § 13A-8-41(a)(1), Code of Alabama 1975, to submit the case to the jury.

V

Appellant argues that there was insufficient evidence to corroborate the testimony of his accomplices. Under the provisions of Code of Alabama 1975, § 12-21-222, appellant’s own statement furnishes sufficient corroboration of the testimony of his accomplices. He admits taking the accomplices to the convenience store, dropping them off and going to the school where he was to pick them up after the robbery to effect their get-away. He admits knowing the money was taken in the robbery and hiding the money in his house. This evidence supplies the requisite tendency to connect the defendant with the crime. See Ware v. State, 409 So.2d 886 (Ala.Cr. App.1981), writ quashed, 409 So.2d 893 (Ala.1982).

We have considered the other contentions of the appellant and find them without merit.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    John Pervie MORTON v. STATE.
    5 Div. 713.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-818.

      Michael D. Cook, Lanett, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   HUBERT TAYLOR, Judge.

Appellant, John Pervie Morton, was convicted of possession of cocaine in violation of the Alabama Uniformed Controlled Substances Act. Sentence was six years and a fine of $1000 imposed. Issues concerning search and seizure are raised on appeal.

Morton, while driving along a highway, was clocked with radar by Officer William Weaver of the Opelika Police Department. Weaver determined that Morton was speeding. Morton stopped in the parking lot of a commercial business, then got out of his car. Weaver had arrested Morton two years earlier for cocaine charges and so recognized him once he pulled over (Morton had been found not guilty on that charge).

Weaver checked with his dispatcher and found that Morton’s driver’s license had been revoked, so he charged Morton with “speeding” and “driving while revoked.” A two-man unit was called to the scene so that Morton and his automobile could be taken to the Opelika City Police Station because, as Weaver testified, “It’s required by the City of Opelika that a bond be made on ‘Driving Revoked.' ” One of the backup officers drove Weaver’s patrol car and Morton to the station, while Weaver drove Morton’s car. While enroute to the station, Weaver noticed a bank bag underneath the front seat. He also looked behind the car’s sun visors.

Weaver took the bank bag out of the car, carried it into the station, and there removed its contents. Along with address books, bank books, and other papers, there were five small cellophane containers which held what Weaver believed to be cocaine. Morton was immediately arrested for possession of cocaine. Weaver called a narcotics detective and asked him to come to the station. Once at the station, the detective was shown the contents of the bank bag. Weaver and the detective then conducted a very thorough search of Morton’s car, which the police characterized as an inventory search. A small amount of cocaine was found in a bottle found inside an armrest located in the middle of the seat. The material in the cellophane turned out not to be a controlled substance.

The question in this case is whether the police had the authority to impound Morton’s vehicle. If the seizure was improper, the fruits of any subsequent search are due to be suppressed. An automobile may be impounded when it is reasonable under the circumstances or there is no reasonable alternative (Jones v. State, 407 So.2d 870 (Ala.Cr.App.1981)), or under authority of statute.

The propriety of the impoundment is, of course, grounded on the propriety of the initial arrest. In the case sub judice, Morton was improperly placed under custodial arrest. The traffic violations charged against Morton are commonly known as “speeding” and “driving while revoked,” which are both misdemeanors. See §§ 32-5A-8, 32-6-19, Code of Alabama 1975. In turn, § 32-1-4, Code of Alabama 1975, reads in part as follows:

“(a) Whenever any person is arrested for a violation of any provision of this title [Title 32] punishable as a misdemeanor, the arresting officer shall, unless otherwise provided in this section, take the name and address of such person and the license number of his motor vehicle and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice .Such officer shall thereupon and upon the giving by such person of a sufficient written bond, approved by the arresting officer, to appear at such time and place, forthwith release him from custody. Any person refusing to give such bond to appear shall be taken immediately by the arresting officer before the nearest or most accessible magistrate ....
“(c) Any officer violating any of the provisions of this section shall be guilty of misconduct in office and shall be subject to removal from office.” (Emphasis ours.)

The clear import of this section is that the police have no authority to take a motorist into custody and then require him to go to the local stationhouse when that motorist has committed a misdemeanor traffic violation but is willing to sign the summons to court. This interpretation is supported by Daniels v. State, 416 So.2d 760, 765 (Ala.Cr.App.1982), in which this court said, “Except for the exceptions provided by Section 32-l-4(b), a person arrested for a misdemeanor traffic violation is not subject to further detention for that offense once the arresting officer has obtained the necessary information and given the motorist the ‘summons or notice’ to appear.” See also Gaskin v. State, 338 So.2d 1041 (Ala.Cr.App.1976). This statute requires strict compliance by the arresting officer as is evidenced by the penalty provisions of subsection “c.”

Without question, a person who is subject only to a non-custodial arrest may not have his property seized on the basis of that same arrest. Absent some extenuating circumstances, such a seizure would be unreasonable and in violation of the Fourth Amendment. The statutory language which sets out the penalty for driving with a revoked license is specific and unambiguous. There is no provision for the seizure of property when § 32-6-19 is violated. Additionally, since Morton should not have been taken into custody, there was no need for the police to “protect” the car by impounding it.

It was not illegal for Morton to possess or own the car simply because he did not have the proper identification; if it were otherwise, the police would be justified in taking the car from his front yard. The police may have felt justified in taking the car because of their suspicion that Morton was going to break the law sometime in the future by driving away in the car. Although this may have been a well founded suspicion on their part in Morton’s case, the judiciary of this country does not sanction the use of pre-emptive seizures to thwart suspected future criminal activity. An individual finding himself stopped under these same circumstances cannot legally be placed under a custodial arrest, and, therefore, it is just as probable as not that the average law abiding citizen will make the proper arrangements for the care of his vehicle and it cannot be presumed that he will do otherwise.

Nor were the police justified in impounding the vehicle under color of authority of § 32-5A-139, Code of Alabama 1975, since it was legally parked upon private property, creating no safety risk to the public. It was not stolen, the driver was able to provide for its custody, and the driver was not required to be taken before a magistrate.

Lastly, it must be determined if the impoundment could be justified as reasonable under the circumstances. Jones, supra. It has been held that the police have an inherent authority to impound vehicles, aside from statutory authority based on what is called the community caretaking function. Cody v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). That function was explained as follows:

“In the interests of public safety ... automobiles are frequently taken into police custody_ To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.” 428 U.S. at 368-69, 96 S.Ct. at 3096-97.

In the instant case, it is clear that the vehicle was in no way a traffic hazard and its impoundment was outside the scope of the community caretaking function. In Drinkard v. State, 584 S.W.2d 650 (Tenn. 1979), the driver’s car was impounded after an arrest for drunken driving. The court said:

“The guideline that has been persuasively applied in numerous cases, and with which we are in agreement, is that if the circumstances that bring the automobile to the attention of the police in the first place are such that the driver, even though arrested is able to make his or her own arrangements for the custody of the vehicle, or if the vehicle can be parked and locked without obstructing traffic or endangering the public, the police should permit the action to be taken rather than impound the car against the will of the driver and then search it. Just cause to arrest the driver is not, alone, enough; there must also be reasonable cause to take his vehicle into custody. The rule was succinctly expressed in State v. Bales, 15 Wash.App. 834, 552 P.2d 688 (1976), in which defendant was stopped for speeding and arrested on an outstanding warrant. His car was impounded despite his plea to have a friend pick up the vehicle within a few minutes and after giving police the friend’s telephone number. The court stated:
“ ‘When a friend or relative is available to move a vehicle for defendant just arrested for a traffic charge, the arresting officer is not justified in calling for an impoundment absent other circumstances. ... Impoundment of a citizen’s vehicle following his or her arrest on a traffic charge is inappropriate when reasonable alternatives exist. To permit a subsequent warrantless inventory search to be accomplished thereby would be improper.’ ” 584 S.W.2d at 653.

Impoundment has also been justified on the grounds that it is necessary to protect the vehicle from damage and the police from liability. The Supreme Court of Washington in State v. Houser, 95 Wash.2d 143, 622 P.2d 1218, 1224 (1980), said:

“[Njothing in the record indicates the officer believed that appellant’s presence at the police station to post bond for the charges called for anything but a temporary absence. The officer could have left the car locked and parked where it was and if it had later become apparent that appellant would not be able to return for the car and that it could not be left safely on the street, the officer could have ordered impoundment at that time. It is unreasonable to impound a citizen’s vehicle following his or her arrest when there is no probable cause to seize the car and where a reasonable alternative to impoundment exists.”

Even when there is a possibility that the car will be damaged, the driver should be able to elect to take this chance rather than have it impounded. This presents no problems to police if the driver assumes responsibility for any damage. In the case of Gunn v. State, 336 So.2d 687 (Fla.App.1976), the defendant, after arrest, asked the officer to allow him to call his mother so she could come get the car. The court said:

"... the impounding and towing of an automobile and its concomitant inventory search is of questionable validity where the location of the automobile does not create a traffic hazard or nuisance and the owner operator chooses not to have his car impounded. The individual in custody should be advised of and given the choice of leaving the car in its location, contacting someone else to take charge of the car or having it impounded. An individual who is taken into custody ought not to have his vehicle impounded, inventoried and towed away under such circumstance where alternative steps can be taken to secure the vehicle and the individual is willing to accept the responsibility for the safekeeping of the contents of such vehicle.” 336 So.2d at 689.

In the case sub judice, of course, the driver should not have been taken into custody and, therefore, any questions of liability to police or damage to the car should not have arisen. Even assuming proper custody of the defendant, there was no showing that the car was in any greater danger of being damaged than any other locked car left in a private parking lot.

In State v. Goodrich, 256 N.W.2d 506 (Minn.1977), the defendant was arrested for driving under the influence after he pulled his car off the road and parked it at a service station. The court said:

“[Wjhere police assumed custody of defendant’s automobile for no legitimate purpose other than safekeeping, and where defendant had arranged for alternative means, not shown to be unreasonable, for the safeguarding of his property, impoundment of defendant’s automobile was unreasonable and, therefore the concomitant inventory was an unreasonable search under the Fourth Amendment. ... The sole remaining reason given in this case for impoundment and inventory ... is the necessity of protecting the arrested individual’s property from theft and the police from claims arising therefrom. But the defendant’s assumption of responsibility for his property obviated that necessity in this ease.... The State has not shown that the impoundment was a reasonable means of furthering a reasonable state purpose.” 256 N.W.2d at 507, 511.

Although the many jurisdictions do not use uniform language or identical tests when resolving the issue of whether the impoundment of a vehicle was proper, the weight of authority makes it clear that the circumstances of each case must show that the impoundment was reasonable and necessary. See also Dunkum v. State, 138 Ga.App. 321, 226 S.E.2d 133 (1976); City of Danville v. Dawson, 528 S.W.2d 687 (Ky. Cr.App.1975); State v. Thirdgill, 46 Or. App. 595, 613 P.2d 44 (1980); and Rodriquez v. State, 641 S.W.2d 955 (Tex.App.1982).

In Jones, supra, the driver of the vehicle had run away, the passenger was incoherent, and the vehicle was blocking a private drive. This court found impoundment reasonable under the circumstances. In the present case, the driver should not have been placed under a custodial arrest; that fact vitiated any reason for impoundment and, for that reason, the results of the inventory search should have been suppressed.

For the foregoing reasons, the judgment of the lower court is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.