author: SCRUGGS, Retired Circuit Judge.

text:
    Gary CHILDS v. ALABAMA BOARD OF PARDONS AND PAROLES.
    Civ. 4188.
    Court of Civil Appeals of Alabama.
    Aug. 29, 1984.

      Frank Caskey, Montgomery, for appellant.
    Charles A. Graddiek, Atty. Gen., and Russell C. Stoddard, Asst. Atty. Gen., for appellee.
   SCRUGGS, Retired Circuit Judge.

This is an employee’s appeal from a circuit court judgment which affirmed the State Personnel Board’s dismissal of the employee, whose employment had been previously terminated by the Board of Pardons and Paroles, where he had been a classified employee. We reverse.

There was evidence before the hearing officer of the State Personnel Board which factually supported the employee’s dismissal on the merits, and we have no issue raised upon that matter.

In October 1982, a personnel officer from the Montgomery central office of the Board of Pardons and Paroles conducted a hearing in Birmingham, where the employee was based, upon only one issue concerning the violation by the employee of an employment rule of the Board of Pardons and Paroles. The employee was present and testified. The personnel officer subsequently made his report to the Board of Pardons and Paroles, and the members thereof voted unanimously to terminate the employee’s employment with them. The following is the only notice which was given to the employee as to his dismissal:

“STATE OF ALABAMA BOARD OF PARDONS AND PAROLES
716 N. 21st Street
Birmingham, Al. 35263-0041
PAROLE AND PROBATION OFFICES
“Mr. Gary Childs
State Probation and Parole Officer
2030 — 3rd Avenue, North
Birmingham, Al.
“Dear Mr. Childs:
“The Board of Pardons and Paroles met today and considered the report of the Personnel Officer submitted to them after the hearing of October 21, 1982.
“After careful consideration, the Board decided to terminate your employment as a Probation and Parole Officer with this department at the end of the working day, October 25, 1982.
“Please turn in to me, or Mr. Strowd, your credentials and badge, keys, and a mailing address where your final check and report of the personnel hearing can be sent.
Sincerely,
/s/
H.D. Walton
Division Manager”

Mr. Walton, as division manager, was in charge of the Jefferson County operations of the Board of Pardons and Paroles. The employee’s immediate supervisor was Mr. Strowd, who reported directly to Mr. Walton. The Alabama Code defines an appointing authority as being, “The officer, board, commission, person or group of persons having the power to make appointments to offices or positions of trust or employment to the state service.” § 36-26-2(1), Code of Alabama 1975. The division manager was not the employee’s appointing authority. The Board of Pardons and Paroles itself was the appointing authority of this employee.

The dispositive dispute before us concerns whether the above notice of dismissal, which was given to this employee, complied with the provisions of § 36-26-27(a) of the Code, which provides as follows:

“(a) An appointing authority may dismiss a classified employee whenever he considers the good of the service will be served thereby, for reasons which shall be stated in writing, served on the affected employee and a copy furnished to the director, which action shall become a public record. The dismissed employee may, within 10 days after notice, appeal from the action of the appointing authority by filing with the board and the appointing authority a written answer to the charges. The board shall, if demand is made in writing by the dismissed employee within 10 days after notice of discharge, order a public hearing and, if the charges are proved unwarranted, order the reinstatement of the employee under such conditions as the board may determine. Upon a majority vote of the board, the board may impose a punishment other than termination including but not limited to a reinstatement with forfeiture of back wages and benefits between the date of termination and the date of the board’s order reinstating the employee, or a suspension up to and including 30 days.”

That particular Code requirement and the issue before us have been previously construed and determined by this court. In Chavers v. State Personnel Board, 357 So.2d 662 (Ala.Civ.App.), cert. denied, 357 So.2d 664 (Ala.1978), it was decided that a notification letter signed by an employee’s immediate supervisor, who was not the employee’s appointing authority, did not comply with § 36-26-27(a), since the duty of the appointing authority to provide the required statutory notice to an employee is not delegable. Here, the Board of Pardons and Paroles, the appointing authority, has never given the required notice to the employee, since the notice which was provided by the division manager was ineffective because he was not authorized by the statute to give the notice. There are no material factual differences between the present appeal and the Chavers case, and, accordingly, this matter must be reversed and remanded to the learned circuit court for the entry of a judgment which is consistent with this opinion.

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 WITH DIRECTIONS.

All the Judges concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Pauline M. KYSER v. Phillip M. KYSER.
    Civ. 4279.
    Court of Civil Appeals of Alabama.
    Aug. 29, 1984.
    Rehearing Denied Sept. 28, 1984.

      John L. Capell, III, of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.
    Richard S. Manley, of Manley & Traeger, Demopolis, for appellee.
   HOLMES, Judge.

This is a divorce ease.

After an ore tenus hearing, the trial court divorced the parties. The wife, through able counsel, appeals, contending that the trial court erred in failing to award the wife alimony and in the division of property.

We find no such abuse of discretion as to require reversal and affirm.

Viewing the record with the attendant presumptions, the following is revealed:

The parties were married in October of 1982 and were divorced shortly thereafter, in January 1984. In fact, divorce proceedings were begun in the eleventh month of the marriage. At the time of the divorce, the husband was seventy-eight years of age and the wife, fifty-six.

The husband has assets totaling over $800,000 and a yearly income of more than $40,000. The wife is retired from the Social Security Administration with a monthly retirement income of approximately $1,100. Along with $13,000 worth of stock, the wife also has a $40,000 certificate of deposit from the sale of a home in May of 1983 that she owned prior to the marriage.

During the marriage, the parties jointly purchased a lot, borrowing 100% of the funds needed for the purchase. There was also evidence that the daily living expenses of the couple were provided from the husband’s Social Security check and the wife did not contribute any of her income to the joint checking account.

The husband filed for divorce and alleged incompatibility of temperament and an irretrievable breakdown of the marriage relationship. There was no evidence of marital misconduct by either party.

The trial court ordered the wife to execute a quitclaim deed conveying her interest in the jointly owned lot and the husband was ordered to pay the indebtedness due on the property. The divorce decree also ordered the husband to pay the attorney’s fees of the wife. Alimony was not awarded.

The areas of alimony and property division are matters that fall within the sound judicial discretion of the trial court, and the trial court’s decision in regard to these subjects will not be disturbed on appeal absent a plain and palpable abuse of discretion. Rothchild v. Rothchild, 434 So.2d 794 (Ala.Civ.App.1983). It is also true that, when a trial judge personally hears the evidence, the judgment appealed from is presumed correct on appeal and may not be altered if it is supported by legal evidence unless the trial court’s decision was palpably wrong. Cory v. Cory, 429 So.2d 1096 (Ala.Civ.App.1983).

When making an equitable division of the property and in considering an award of alimony, some factors to be considered are the future prospects of the parties, their ages, sex, health, station in life, length of marriage, and the conduct of the parties in regard to the cause of the divorce. Masucci v. Masucci, 435 So.2d 120 (Ala.Civ.App.1983).

After considering all the evidence, with particular emphasis on the brevity of the marriage, the wife’s income, her separate estate, and the ages of the parties, this court cannot say that the trial court was plainly and palpably wrong and abused its discretion in disallowing alimony or in its division of property.

Both parties have requested attorneys’ fees on appeal. The requests are denied.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    William McFARLEN v. J.W. EDWARDS; In re David McFARLEN v. Mary Earline McFARLEN.
    Civ. 4290.
    Court of Civil Appeals of Alabama.
    Aug. 29, 1984.
    Richard W. Tingle, Huntsville, for appellant.
    Henri B. McDaniel and Robert V. Wood, Jr., Huntsville, for appellee.
   HOLMES, Judge.

This is an appeal from the confirmation of the sale of certain real estate. The property was sold by court order as part of a property settlement in a divorce action. We affirm the confirmation of the judicial sale.

We note that the present parties are not the parties to the original divorce action. However, the unsuccessful bidder at the judicial sale is the brother of the husband in the original divorce action. The property in question was the “old homeplace” of the parties in the divorce action.

The unsuccessful bidder, the appellant, bid $1,000 less than the successful bidder. The unsuccessful bidder contends that the judicial sale of the “old homeplace” was “fraudulent” because the successful bidder was given ten days to pay for the property. The unsuccessful bidder asserts that the sale was advertised to be a cash sale, that the cash was due the day of the sale, and that, had he known of the additional time allowed for financing, he would have bid more for the property.

The Circuit Court of Madison County held as follows:

“[T]he delay in making payment of the bid price was the result of an agreement made by and between the parties after the sale was concluded. There was no irregularity in the sale so as to cause this Court to set aside the sale under Section 6-9-147, Code of Alabama 1975.”

This statute provides the following: “Courts have full power over their officers making execution or judicial sales, and whenever satisfied that a sale made under any legal process is infected with fraud, oppression, irregularity or error to the injury of either party, the sale will be set aside.” Ala.Code § 6-9-147 (1975).

We note at the outset that the circuit court heard the evidence presented ore terms in determining that the sale was not fraudulent or irregular under the statute. We will not disturb this finding unless it is “palpably” wrong.

The Supreme Court of Alabama stated as follows: “Where the trial judge has the witnesses before him, hears their testimony and observes their demeanor on the witness stand, his judgment, unless palpably wrong, will not be here disturbed.” Singley v. Land, 244 Ala. 692, 694, 15 So.2d 564, 566 (1943) (cites omitted).

In this case, we find there is no “palpable” wrong. As previously stated, the unsuccessful bidder contends that the cash was due the day of the sale because the sale was advertised to be a cash sale; consequently, the sale was fraudulent because the successful bidder was given ten days to pay for the property.

The Supreme Court of Alabama held that a two-day delay in the payment of purchase money was not sufficient cause to set aside a judicial sale. Chilton v. Alabama Gold Life Insurance Co., 74 Ala. 290 (1883).

In the instant case, ten days is not significantly different from two days. The record indicates that this is not an unusual procedure in real estate closings and that the purpose of delay may be for a “title opinion.”

The Supreme Court of Alabama reasoned in Chilton as follows:

“[Tjhere will be an interval which must be consumed in the counting and payment of the purchase-money; and it must frequently occur that the purchaser, while having the money within reach, may not have it present at the place of sale. There can be no objection to an accommodation of the conduct of the officer making the sale, to necessities, or exigencies of this kind, which may arise.”

Chilton, 74 Ala. at 294 (emphasis added). Delay in payment of purchase money for ten days for a “title opinion” may be a “necessity” within the language of the Chilton decision. Whatever the reason for the ten-day delay, it was per agreement of the sellers after the highest bidder was determined.

Furthermore, the successful bidder testified that he was prepared to pay cash at the sale. There was also testimony by a bank employee that a check from the sue-cessful bidder would have been good on the day of the sale.

In view of the above, we find that the ten days allowed for the payment of purchase money is not a fraud or an irregularity under the statute allowing courts to set aside judicial sales. There is no “palpable” wrong and we will not set aside the judicial sale.

Apparently, the unsuccessful bidder additionally contends on appeal that he should have been allowed to intervene in the original divorce action for the limited purpose of acquiring standing to appeal the confirmation of the sale of the property by the circuit court.

We do not find it necessary to address this contention because the unsuccessful bidder has in fact appealed the confirmation. Hence, no error.

This case is due to be and is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    D.W. LANG v. CITY BANK OF CHILDERSBURG, a banking corporation.
    Civ. 4321.
    Court of Civil Appeals of Alabama.
    Aug. 29, 1984.
    Donald W. Lang, Sylacauga, for appellant.
    Ray F. Robbins II, Talladega, for appel-lee.
   BRADLEY, Judge.

The appeal is from the denial of a rule 60(b), Alabama Rules of Civil Procedure, motion.

On February 11, 1983 D.W. Lang executed a promissory note to the City Bank of Childersburg, a banking corporation, in the amount of $7,500. This note was due and payable on August 10, 1983. On November 16, 1983 City Bank filed a complaint against Lang alleging that the note was in default and seeking the sum of $7,500 plus interest and a reasonable attorney’s fee.

On December 21, 1983 Lang asked that the complaint be dismissed. Then on January 11, 1984 plaintiff filed a motion for summary judgment. The trial court scheduled a hearing on the summary judgment motion for February 20, 1984. On the day of the hearing, defendant filed an objection to the summary judgment motion and attached an affidavit.

On February 20, 1984 the trial court overruled the defendant’s motion to dismiss and his objection to summary judgment. The parties thereupon entered into an agreement, which was accepted by the court, providing that defendant would pay one-half of the amount of the note on or before March 20, 1984, accrued interest to that date, plus an attorney’s fee of $200. In addition, the defendant was to execute a new note for the balance of the $7,500. Upon compliance with these conditions the action was to be dismissed.

However, the order further provided that in the event the conditions were not performed as agreed judgment would be entered in favor of plaintiff for the principal amount of the note sued on, plus interest and a reasonable attorney’s fee, to be fixed by the court without further notice to the parties.

The conditions of the consent judgment were not met and the court entered judgment in favor of plaintiff for the full amount of the note, accrued interest, and an attorney’s fee of $1,630. On April 17, 1984 defendant filed a motion for relief from judgment. Rule 60(b), A.R.Civ.P. After a hearing on April 23, 1984, the court denied the motion. Defendant appeals to this court.

Defendant’s initial argument is that the trial court abused its discretion in overruling the rule 60(b) motion.

The grant or denial of a 60(b) motion is within the discretion of the trial court and will be overturned only for abuse of discretion. Waldron v. Fikes, 378 So.2d 1138 (Ala.Civ.App.1979).

The trial court conducted a hearing on the 60(b) motion but there is no transcript of testimony taken at the hearing in the record.

The record reveals a consent judgment wherein the defendant agreed to pay one-half of the $7,500 note, along with accrued interest and an attorney’s fee, by March 20, 1984. Should he not comply with these conditions, the court was authorized to enter judgment in favor of plaintiff for the full amount of the note plus interest and a reasonable attorney’s fee without further notice to the parties.

The defendant did not pay one-half of the principal amount of the note by March 20, 1984 as he had agreed to do, and the trial court, in accordance with the agreement of the parties, entered judgment for the plaintiff without further notice.

The record does show that defendant mailed a check for the amount agreed upon to plaintiff’s attorney on March 22, 1984 and that plaintiff’s attorney received the check on March 30, 1984. It further appears that plaintiff’s attorney’s office was called on March 22, 1984 and advised that the check was being mailed that day. Judgment for plaintiff was entered by the trial court on March 28, 1984. However, there is no evidence in the record explaining why defendant failed to comply with the terms of the consent judgment which required payment of one-half of the face amount of the note by March 20, 1984 and the execution of a new note for the remainder.

As noted above, there is no transcript of the 60(b) hearing in the record, and there is no other evidence in the record before us to support the contention that the trial court abused its discretion in overruling the 60(b) motion.

Lastly, defendant says that the trial court erred by awarding an excessive attorney’s fee to plaintiff.

Again, defendant agreed that the trial court could impose a reasonable attorney’s fee on him should the court enter a judgment in favor of plaintiff for the face amount of the note. Because of defendant’s failure to comply with the conditions of the agreement, the trial court entered judgment for plaintiff and assessed defendant with a reasonable attorney’s fee. There is no evidence in the record relative to the reasonableness of the amount of the attorney’s fee fixed by the court.

Considering the amount involved, the pleadings filed, and the hearings held, we cannot say that the amount of the attorney’s fee assessed against defendant is excessive.

The trial court’s judgment is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Paul WYATT v. BRADFORD & COMPANY, P.C.
    Civ. 4297.
    Court of Civil Appeals of Alabama.
    Sept. 5, 1984.
    Fred K. Granade, of Stone, Partin, Gra-nade & Crosby, Bay Minette, for appellant.
    E.E. Ball of Owen, Ball & Simon, Bay Minette, for appellee.
   WRIGHT, Presiding Judge.

This is a case involving fees owed an accounting firm for preparing Small Business Administration loan applications.

On or about September 12, 1979, shortly after Hurricane Frederic hit Alabama, Paul Wyatt, appellant engaged the services of Bradford & Company, P.C., appellee, to prepare an application for a Small Business Administration loan. Bradford also completed a disaster loan application for Wyatt and upon completion, on November 30, 1979, billed Wyatt for the amount of $1,267.50. Wyatt did not pay the bill and Bradford filed suit January 28, 1983.

The issue in this case is whether the bill for $1,267.50 is an open account or an account stated. This point is critical because suit was brought three years and two months after the bill was rendered and Wyatt claims the statute of limitation has run. The statute of limitation on an open account is three years, § 6-2-37, Code of Alabama 1975, while the statute of limitation on an account stated is six years, § 6-2-34, Code 1975. The trial court found the bill for $1,267.50 to be an account stated. Hence Bradford’s action was not barred. We affirm.

The definition of an account stated is well settled law.

“An account stated is not founded on the original liability but is a new agreement between parties to an original account that the statement of the account with the balance struck is correct and that the debtor will pay that amount. Martin v. Stoltenborg, 273 Ala. 456, 142 So.2d 257 (1962).”

White v. Sikes, Kelly, Edwards & Bryant, 410 So.2d 66 (Ala.Civ.App.1982).

“Stated differently, ‘[A]n account stated is an account balanced and rendered, with an assent to the balance, express or implied; so that the demand is essentially the same as if a promissory note had been given for the balance. (Citations omitted.)’ Sinclair Refining Co. v. Robertson, 247 Ala. 260, 23 So.2d 872 (1945).”

Mobile Rug & Shade Company v. Daniel, 424 So.2d 1332 (Ala.Civ.App.1983).

“An account is rendered when it is ' presented to the debtor. An account which has been rendered but which is not objected to by the debtor within a reasonable time after its rendition becomes an account stated, for the debtor’s failure to object is regarded as an admission by him of the correctness of the account. Home Federal Savings & Loan Association v. Williams, 276 Ala. 37, 158 So.2d 678 (1963).”

Owings v. Gullett, 437 So.2d 1050 (Ala.Civ.App.1983).

In the case at bar, the facts are in dispute as to whether Wyatt initially acquiesced or objected to the bill and whether his ultimate objection came within a reasonable time. This case was tried before the court sitting without jury.

Where evidence is heard ore tenus, or partly so, the trial court’s judgment will not be disturbed unless it is contrary to the great weight of the evidence or is plainly and palpably wrong. Nero v. Moore-Handley, Inc., 370 So.2d 1043 (Ala.Civ.App.1979). We have searched the record and do not find the trial court’s judgment contrary to the great weight of the evidence, nor do we find it plainly or palpably wrong.

For the reasons above stated, we affirm the judgment of the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    In the Matter of Frank YOUNG, A Minor. Annie DAVIS v. Frank KEY.
    Civ. 4262.
    Court of Civil Appeals of Alabama.
    Sept. 12, 1984.

      Daniel W. Molloy, Mobile, for appellant. No brief for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case. The pertinent facts are as follows: Peter Frank Key and Annette Beatrice Young began living together sometime prior to 1976, but were never married. On September 8, 1976, Frank Demarcus Young, the child whose custody is at issue, was born. Key’s paternity of the child was acknowledged on May 5, 1977, when the Mobile County Juvenile Court rendered an order finding Key to be the father of the child and ordered him to pay $15 per week child support. Key complied with this order for about a year but then became delinquent in his payments. On February 1, 1980, Key shot and killed Annette Young and was subsequently convicted of manslaughter. From that point on, the child was cared for by the appellant, Annie Davis, the maternal great aunt of the child. Key visited the child occasionally after 1980 and in recent months has kept the child on weekend visits.

Mrs. Davis brought suit against Key for nonsupport on December 14, 1983, and Key countered with a petition for custody on January 3, 1984. After holding an oral hearing on the custody issue and conducting a home study by the Mobile County Circuit Court’s Investigation and Recovery Division, the trial court placed custody of the child in the father, to take effect at the end of the school year. Hence this appeal.

Appellant contends the change in custody is contrary to the welfare of the child and the trial court inappropriately applied the presumption favoring natural parents in a custody proceeding. Addressing this latter contention first, it is correct that there is a presumption that the best interest of a child lies with custody in a natural parent. Ely v. Casteel, 341 So.2d 730, 734 (Ala.Civ.App.1977). That presumption could have influenced the judgment of the court. However, it need not have been the controlling factor under the evidence. Quoting from the written order which does not conflict with any statement of the court during the hearing, the court said, “[I]t is the finding of the court that it is in the best interest of the child to be placed in the custody of the child’s father_” As appellant notes, the presumption favoring natural parents is not absolute and is subject to the rule that the best interest and welfare of the child is controlling. Parker v. Department of Pensions and Security of the State of Alabama, 437 So.2d 551 (Ala.Civ.App.1983); Gaddy v. Alabama Department of Pensions and Security, 428 So.2d 91 (Ala.Civ.App.1983).

In light of this rule of law, we now turn to the dispositive issue of whether the trial court’s ruling was in the best interest of the child. This interest is the primary consideration in a custody case. McCartney v. McCartney, 45 Ala.App. 308, 229 So.2d 809 (1969); 11 B Ala.Dig. Infants, Key No. 19.2(2) (1981). Where a parent seeks to gain custody of his child, it is not enough that the parent show he has remarried, reformed his lifestyle and improved his financial condition. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966). The parent seeking the custody must show that placement with him/her will materially promote the child’s welfare and best interests. McLendon v. McLendon, 455 So.2d 863 (Ala.1984). Willette v. Bannister, 351 So.2d 605 (Ala.Civ.App.1977).

The record reveals that Key has remarried, is a recovering alcoholic and‘has had a steady increase in income over the last few years. ■ Key has also initiated weekend visits with the child since the mother’s death. He appears to be financially stable and able to provide the child with his own room and a home with many modern conveniences. Key’s present wife has also shown a desire to have custody of the child. On the other hand, Mrs. Davis, with whom the child has been living until this case, is a sixty-nine-year-old widow with no source of income other than her husband’s social security, a small insurance annuity, and welfare payments for dependent children. Her three bedroom, one bath house is neatly kept but is in need of repair and is occupied by seven or eight people.

Upon appellate review, there is a presumption of correctness which accompanies the judgment of the trial court in every case where the evidence was heard ore tenus. Alford v. Alford, 368 So.2d 295 (Ala.Civ.App.1979). Where evidence in a child custody case was heard orally before the trial court, the trial court’s findings as to facts will not be disturbed on appeal unless plainly erroneous or palpably and manifestly wrong. Carter v. Harbin, supra.

Upon review of the record we find evidence that parental custody will materially promote the child’s welfare and best interests. We find no basis for reversal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Warren H. GARTHRIGHT v. Paulette Theresa GARTHRIGHT.
    Civ. 4317.
    Court of Civil Appeals of Alabama.
    Sept. 12, 1984.

      Susan Shirock DePaola, of Pappanastos, Samford, Roberts & Blanchard, Montgomery, for appellant.
    Charles P. Hollifield, of Hollifield & Hol-lifield, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a periodic alimony modification case. Although the parties are divorced, they shall still be referred to as “the husband” and “the wife.”

The Garthrights had been married for twenty-five years and had raised their three daughters to adulthood when the divorce was entered in January 1977 on account of incompatibility of temperament. Their divorce judgment adopted and incorporated into it a separation agreement. In pertinent part that agreement provided that the husband would pay to the wife the sum of $600 per month for her support at the rate of $300 every two weeks. In December 1983 the husband petitioned the trial court that the divorce judgment be modified to decrease the required periodic alimony payments. After an ore tenus trial the circuit court provided in its amended judgment that the alimony payments from the husband to the wife be made at the rate of $600 per month. The husband has appealed and has astutely argued through able counsel that the trial court was palpably wrong in that it abused its discretion in not reducing the alimony payments to a reasonable amount. We disagree and affirm.

In view of the applicable presumptions, we have reviewed the record and the following is pertinently revealed.

The wife is fifty-seven years of age and the husband is fifty-five. She was born and educated in France, having received the United States equivalent of around two years of college. The husband earned a bachelor’s degree and a master’s degree and presently attends a nursing school in preparation of becoming a registered nurse. The wife has not remarried. The husband’s present wife is a self-supporting, full-time registered nurse.

During the entire marriage the wife had no outside job. She has no particular employment skills or expertise, but she has worked as a salesperson at a department store since six months following the divorce. In 1983 her gross income from that job was $8,077. One of her recent larger weekly checks resulted in a net salary to her of $90.72. She testified that her monthly basic expenditures are never less than $950, which'does not include any proceeds for any emergency, or for any maintenance to her house, or for the replacement or repair of her household appliances, all of which were purchased from fourteen to twenty years ago. Neither does the $950 figure include any funds for dental services, nor for any hospital, physician, surgeon, or medical expenses which are not covered by her insurance. Fortunately, she has no medical problems except that she takes daily medication for high blood pressure at a cost of $12 monthly. Her youngest daughter, who is twenty-six ' years of age, unmarried and self-supporting, resides with her and, according to the wife, the daughter averages giving to her about $100 monthly as financial assistance. In the past that daughter has also provided for some house repairs. The wife still owes $20,000 upon the house mortgage which is payable at the monthly rate of $226 until the year 2000. Her income taxes amount to $355 quarterly upon the alimony which is paid to her by the husband.

After being a federal civil service employee for thirty-three years, the husband decided to voluntarily retire and to seek another career because of his fear that the minimum retirement age would be arbitrar- . ily raised from fifty-five to sixty-two, or higher. His retirement was effective on December 30, 1983. At the time of the divorce, his total monthly gross income was $2,385, which included his federal salary, his earnings from a second part-time job, and disability payments from the Veterans Administration. At this time he draws a total of $1,746 each month from his retirement and from the VA. While the husband had hernia and disc surgery as recently as in 1981, his present health is apparently good, except for lifting heavy objects. He itemized his own monthly expenses at $1,380, which included $87 as his part in a time-sharing condominium of two weeks a year and $194 upon a personal note for his one-half of the cost of the construction of a swimming pool in 1982 at his present wife’s home and for a riding lawn mower. One reason for the pool was to permit the husband to conveniently obtain exercise following his back surgery. That personal note will be paid in full in December 1984, but he desires to trade cars about that time.

It is well-established law in Alabama that periodic alimony may be modified when there has been a material change in the circumstances of the parties, and that'the burden of reasonably satisfying the trial court of the existence of those conditions which authorize a modification of an alimony judgment rests upon the moving party. Vines v. Vines, 409 So.2d 839 (Ala.Civ.App.1981). However, a modification of periodic alimony lies within the discretion of the trial court and will be reversed only where there was such an abuse of discretion as to render the judgment to be palpably wrong. Prentice v. Prentice, 440 So.2d 1091 (Ala.Civ.App. 1983). Where the trial court personally presides over an evidentiary trial, the judgment is presumed to be factually correct and will not be disturbed upon appeal unless it was not supported by the evidence or was plainly wrong. Mims v. Mims, 442 So.2d 102 (Ala.Civ.App.1983). After considering all of the evidence, including the wife’s finances and the husband’s expenses and the temporary one-fourth reduction of his gross income because of his retirement, we cannot say that the trial court was either palpably wrong or abused its discretion in this matter. Actually, the amount of alimony as paid by the husband was reduced by the trial court’s judgment since the husband, from the date of the divorce judgment, had consistently and correctly paid $300 to the wife every two weeks under the confusing and somewhat contradictory terms of the 1977 agreement of the parties. Those payments amounted to $7,800 annually. The latest judgment ordered him to pay $600 per month ($7,200 per year), and eliminated the bi-weekly provisions of the 1977 agreement and judgment. Therefore, a reduction of $600 a year, or $50 on a monthly basis, was accomplished as to the periodic alimony required to be paid by the husband. The evidence supports the judgment as rendered by the trial court, which is hereby affirmed.

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:
    Ann Johnson GREGSON v. Lewis O’Neil GREGSON.
    Civ. 4344.
    Court of Civil Appeals of Alabama.
    Sept. 12, 1984.
    Nicholas S. Hare, Jr. of Hare & Hare, Monroeville, for appellant.
    George K. Elbrecht, Monroeville, for ap-pellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Monroe County divorced the parties after an ore tenus hearing. The wife, through able counsel, appeals, contending that the trial court erred in the award of child support and in the division of property.

Viewing the record with the attendant presumptions, the following is revealed. The parties were divorced from a common law marriage with the trial court awarding forty dollars per month to the wife for the support and maintenance of a minor child born during the marriage. The court also ordered the wife to convey her interest in the jointly-owned home with the husband assuming the debt and paying $1,000 for the wife’s interest.

There was evidence that the husband was presently unemployed and his total income from the previous year was approximately $7,000. The wife testified that she was currently employed and had additional monthly income from rental property that she owned.

There was also evidence that the home had a value of less than $20,000, with a mortgage of approximately $10,500 still due. Additionally, the wife testified that she had taken a great majority of the personal property from the home prior to the divorce. There was evidence that the property taken had a value between $7,000 and $8,000.

The ore terms rule is well established. When the trial court personally hears the evidence, the judgment appealed from is presumed to be correct on appeal. If the judgment is supported by legal evidence, it cannot be altered on appeal unless the trial court was plainly and palpably wrong. Cory v. Cory, 429 So.2d 1096 (Ala.Civ.App.1983).

It is also true that an award of child support payments is never res judicata, and, upon a change in circumstances, the payments can be modified at any time. Sanders v. Sanders, 342 So.2d 380 (Ala.Civ.App.1977).

After a review of the entire record, the fact that the husband was unemployed at the time of the divorce, the employment and other income of the wife, the- value of the home and the debt still due, and the disposition of the personal property, we cannot say that the trial court abused its discretion in the award of child support and in the division of property.

For this court to reverse would be to substitute our judgment for that of the trial xourt. This is not permitted by law. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980).

This case is due to be and is affirmed,

AFFIRMED.

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


text:
    Lynda Jane JAMES v. Daniel Allen JAMES.
    Civ. 4346.
    Court of Civil Appeals of Alabama.
    Sept. 12, 1984.

      R.B. Jones, Birmingham, and Fred Blan-ton, Fultondale, for appellant.
    Larry Waites, Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties to this appeal were divorced by decree of the Circuit Court of Jefferson County, Alabama on February 13, 1984. The court awarded custody of the parties’ only child, a four year old son, to the father with certain visitation rights in the mother, and divided certain property between the parties.

The parties were married on November 24, 1976, separated on July 19, 1983, and finally divorced on February 13, 1984.

The issues on appeal are (1) whether the trial court erred in awarding custody of the child to the father, and (2) whether the trial court erred in its division of certain items of property.

The controlling factor in child custody cases is the best interests and welfare of the child. Ex parte Devine, 398 So.2d 686 (Ala.1981). At trial each party made charges of misconduct against the other party. The wife accused the husband of abusive behavior and excessive drinking; the husband accused the wife of committing adultery. The trial court observed the witnesses while testifying and, based on their testimony, awarded custody of the child to the father.

In an ore tenus hearing it has been repeatedly held that the trial court’s judgment is presumed correct and will be reversed “only if after consideration of the evidence, and all reasonable inferences to be drawn therefrom, the judgment or decree is found to be plainly and palpably wrong.” Turner v. Turner, 46 Ala.App. 350, 242 So.2d 397 (Ala.Civ.App.1970). See also, Cory v. Cory, 429 So.2d 1096 (Ala.Civ.App.1983). There is a strong presumption given to a trial court’s findings based on the best interests of the child in a child custody case. See, e.g., Mothershed v. Mothershed, 348 So.2d 501 (Ala.Civ.App.1977).

Clearly, from the evidence presented at trial, the trial court could have determined that it was in the best interests of the child to be placed in the custody of the father. The father appears to be a hard worker, making from $15,000 to $16,000 a year, and has family to help him care for the child. Also, he has enrolled the child in a pre-kindergarten school. Before she separated from her husband, the wife had been seen on two occasions with a man alleged to be her paramour. When the wife left the husband and took the four year old son with her, she first went to a place in Florida and then to Marmaduke, Arkansas. The wife’s alleged paramour had friends and relatives in both Florida and Arkansas. When the father found the wife and child, they were living with relatives of the wife’s alleged lover.

In view of the presumption favoring the trial court’s findings and the evidence contained in the record, we cannot say that the trial court improperly awarded custody of the child to the father.

The wife’s second contention is that the trial court committed reversible error in its division of certain items of property. Specifically, the wife contests the awarding of the 1978 Monte Carlo, 1970 Nova, and 1963 Ford pickup to the husband.

The determination of the division of property is within'the sound discretion of the trial court and “[is] not to be reversed on appeal absent a manifest abuse of discretion.” Goodman v. Goodman, 366 So.2d 281 (Ala.Civ.App.1979). The trial court awarded the parties’ residence to the wife and the vehicles to the husband. The wife had acquired the house by a previous marriage, and the husband alleged that he had paid for the vehicles.

It was made known to the court in the application for rehearing that the 1978 Monte Carlo had been wrecked and the insurance company was holding the money awaiting a claim. The court amended its decree to award the insurance money to husband..

We do not find from the evidence introduced at trial that the award of the remaining vehicles or insurance proceeds to the husband was reversible error. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

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


text:
    Frankie TAYLOR v. UNITED STATES STEEL CORPORATION.
    Civ. 4250.
    Court of Civil Appeals of Alabama.
    Sept. 19, 1984.

      Marcus W. Lee, of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellant.
    J. Ross Forman III of Thomas, Taliafer-ro, Forman, Burr & Murray, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Claimant Frankie Taylor appeals from an adverse ruling of the Circuit Court of Jefferson County. The court denied dependent’s benefits to her after finding that her deceased husband had not contracted an occupational disease from his employment as defined by § 25-5-110, Code of Alabama 1975, and that his employment had not aggravated a pre-existing situation.

Mr. Taylor, the deceased, worked for the United States Steel Corporation for forty-one years. He began working as a yard laborer, and later performed various other jobs at the Fairfield plant. Some of Taylor’s jobs involved exposure to heat, dust and chemical spraying compounds. However, the jobs were performed in an open-ended building almost 1,000 feet long, which had such a natural thermal updraft from the heat inside that workers complained of being cold in the winter when the cold, outside air was drawn in through the openings in the building.

After performing the above jobs for many years with a good work record, Taylor retired in 1977. He passed away in January 1980, from complications related to emphysema.

After his death, Mrs. Taylor instituted an action against U.S. Steel to recover benefits under the Alabama Workmen’s Compensation Act. Her stated grounds for recovery were that her husband, as an employee of U.S. Steel, had contracted severe pulmonary disease as a result of his exposure to dust, smoke, and pollutants at his work place.

After a trial held ore tenus, where much evidence was presented that showed the deceased died of emphysema, caused by cigarette smoking, rather than from an occupational disease or its aggravation, the trial court entered a final judgment in favor of the defendant. It is from that judgment that this appeal is taken.

In a workmen’s compensation case, the proper mode of review is by writ of certiorari. Suit v. Hudson Metals, Inc., 414 So.2d 115 (Ala.Civ.App.1982). On appeal review is limited to whether there is any legal evidence to support the findings of the trial court. Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976). A review of the weight of the evidence or ■whether the finding of fact by the trial court was correct is not properly before this court. Suit v. Hudson Metals, supra.

Section 25-5-110, Code of Alabama 1975, provides the conditions for recovery under the Alabama Workmen’s Compensation law for an occupational disease. To be occupational, the disease must be due to hazards in excess of those ordinarily incident to employment in general, as well as peculiar to the occupation in which the employee is engaged. § 25-5-110, Code 1975; Young v. City of Huntsville, supra.

The fact that an employee had a pre-existing disease does not affect an award of compensation if the job combined with the disease to produce injury or death. Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So.2d 159 (1957); Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.1978).

To recover benefits under this view, however, the claimant must prove aggravation or combination. It is axiomatic that an occupational disease is not compensable if it is not caused or aggravated by the nature of the employment. Chrysler Corp. v. Henley, 400 So.2d 412 (Ala.Civ.App.1981).

After extensive testimony in appellant’s case, the trial court found that the deceased died from emphysema caused by heavy cigarette smoking, beginning at an early age and continuing for twenty-four years, and that the deceased’s employment did not contribute to or aggravate that condition. There was some conflicting medical testimony offered at trial, but findings of the trial court on conflicting testimony are conclusive if there is any testimony to support its conclusion. Suit v. Hudson Metals, supra.

A nationally known authority on emphysema and bronchitis testified that the sole cause of death of the deceased was emphysema and its normal complications. He testified that in this case, the emphysema was due solely to cigarette smoking.In addition, air quality studies taken at the, deceased’s work place showed air quality within permissible limits. Results of studies from other steel mills were also introduced, showing no significant correlation between mill employment and lung disease.

From the above and the record, it appears to this court that there was legal evidence to support the conclusion of the trial court. Therefore, the judgment is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: WRIGHT, Presiding Judge. BRADLEY, Judge,

text:
    Alfred Preston RAYFORD III v. Mollie L. RAYFORD.
    Civ. 4304.
    Court of Civil Appeals of Alabama.
    Sept. 19, 1984.

      Herndon Inge, Jr. of Inge, McMillan & Inge, Mobile, for appellant.
    James B. Rossler of Stout & Roebuck, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

The facts are not in dispute. Alfred Preston Rayford, III, appellant, and Mollie L. Rayford, appellee, were divorced by the Mobile County Circuit Court on October 17, 1980. The custody of their two minor children was awarded to the mother, with specific visitation rights awarded to the father. On his first weekend visit, appellant picked up the children from the appellee’s house, but did not return them. After three years of searching, incurring large expenses for attorney fees, travel expenses and private investigators, the mother found her children in school in Mesquite, Texas. She secured their return to Alabama, where she filed a motion to modify the judgment of divorce and terminate the father’s visitation privileges. She also moved to tax the defendant with the costs of finding and recovering the children. There was testimony by the mother of specific sums spent in the locating and recovery of her children. There was neither challenge nor dispute of such testimony. After hearing, the court found the father in criminal contempt and rendered the full punishment allowed by law. Though the father’s visitation rights were not terminated, he was required to post a five thousand dollar ($5,000) bond to insure his future compliance with the judgment. The motion of the mother to assess defendant with her cost of recovering the children was granted and the cost was calculated by the court to be $16,790.29.

The father contends this is a special damages award which should be reversed because the claim for special damages was not specifically pleaded; there was no evidence of the existence or extent of damages; and the expenses were not shown to be reasonable or necessary. We affirm.

The father has not correctly defined the award in this case. We consider the award to be costs rather than damages. The two are different by their very natures. Damages are a pecuniary compensation or indemnity which may be recovered in the courts by any person who has suffered a loss, detriment or injury, whether to his person, property or rights, through the unlawful act or omission or negligence of another. Black’s Law Dictionary (5th ed. 1979). On the other hand, costs are an allowance by the court to parties for the expenses of a successful prosecution or defense of a case. Opinion of the Clerk, 400 So.2d 406 (Ala.1981); Alabama Rules of Civil Procedure 54(d). In the case sub judice, the costs were the result of expenses incurred in the successful enforcement of a prior custody decree.

In suits in equity, the allowance of costs rests in the discretion of the court. Water Works Board of Town of Parrish v. White, 281 Ala. 357, 202 So.2d 721 (1967). On appeal, a decree will be reversed only for abuse of discretion in the matter of taxation of costs. Harrington v. Texaco, Inc., 339 F.2d 814 (5th Cir.1964), cert. denied, 381 U.S. 915, 85 S.Ct. 1538, 14 L.Ed.2d 435 (1965); City of Birmingham v. City of Fairfield, 396 So.2d 692 (Ala.1981). An improper exercise of discretion appears when the record, after indulging all fair intendments in favor of the ruling, discloses the taxation of costs was unfair and unjust. Walden v. Walden, 277 Ala. 459, 171 So.2d 851 (1965); Dozier v. Payne, 244 Ala. 476, 14 So.2d 376 (1943).

In applying this standard of review, we note the strong public policy against parental kidnapping. See, Uniform Child Custody Jurisdiction Act, § 30-3-20, Code of Alabama 1975 (1983 Repl.Vol.); Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A. Such legislation was passed to prevent such kidnapping and the harm that results to children and to promote stability and security in the child’s homelife. UCCJA, § 30-3-21, Code 1975 (1983 Repl. Yol.). This public policy and legislative intent lead us to the conclusion that the award in this case was neither unjust nor unfair. Our conclusion is further supported by § 30-3-35(b) of the Code, which awards just such expenses to the prevailing party in enforcing an out-of-state custody decree.

We further note, however, that similar awards or assessments have been approved by this court in the case of Lewis v. Douglass, 440 So.2d 1073 (Ala.Civ.App.1983). In that case, probably in response to issue presented and argued on appeal, this court approved the award using the term “damages.” However, the sum requested, as in this case, represented “costs, expenses and attorney fees” incurred in recovering a child by those with legal custody. In each case there was involved á contempt proceeding. We are of the opinion that such an award in a similar case could be made as costs without requirement of a finding of contempt. This may be done under the broad equity powers of the court in child custody matters to adjust the equities between the parties. Ex parte Handley, [Ms. July 20, 1984] (Ala.1984). To conclude, it matters little in this case, whether characterized as damages or costs, we are of the opinion there is no error in the award.

AFFIRMED.

HOLMES, J., concurs.

BRADLEY, J., concurs specially.

BRADLEY, Judge,

concurring specially:

I concur with the result reached by the majority; however, I disagree with the rationale used regarding the funds spent by the mother in locating and securing the return of the children. The majority characterizes the award to the mother as costs of litigation. I consider the award to be damages.

At the outset it is important to note that the money at issue, $16,790.29, was awarded by the trial court as expenses paid by Mrs. Rayford in recovering the children. It also awarded $150.00 attorney’s fees and jailed Mr. Rayford for contempt. I dissent only as to the characterization of the recovery for Mrs. Rayford in securing her children.

The majority is correct in saying that costs and damages are different by their natures. Costs are allowed for the prosecution or defense of a case. Opinion of the Clerk, 400 So.2d 406 (Ala.1981). However, the expenses at issue were not incurred in prosecuting or defending the present case but are for reimbursement of a loss. Damages deal with recompense for losses and injuries suffered. C. McCormick, Handbook of the Law of Damages 1 (1935). Damages are for recovery of a loss or injury at the hands of another. C. Gamble & D. Corley, Alabama Law of Damages § 1-1 (1982).

Here, the recovery at issue is for the mother’s out-of-pocket expenses in locating and recovering her children, not for the expenses generally directly linked to the process of litigation.

The Restatement (Second) of Torts § 700, Comment c (1977), states that, “One parent may be liable to the other parent for the abduction of his own child if by judicial decree the sole custody of the child has been awarded to the other parent.” The section allowing this award is headed “Damages” which includes “any reasonable expenses incurred by him in regaining custody of the child.” Comment g. And it looks to situations just like the one at bar— where a parent without custody wrongfully abducts a child from the parent with custody.

Loss of a child’s services (actual or constructive) is an actionable tort for which a parent “is allowed to recover damages for deprivation of the child’s society, expenses to which he has been put in recovering it, and the wound to his own feelings.” W. Prosser, Handbook of the Law of Torts § 124 (4th ed. 1971) (footnotes omitted, emphasis added). Again, the recovery is characterized as damages and not merely as costs of litigation.

In Plante v. Engel, 124 N.H. 213, 469 A.2d 1299 (N.H.1983), the mother, contrary to a divorce decree granting the father permanent custody, took the children from New Hampshire to Texas without their father’s knowledge or permission. The maternal grandparents assisted the mother. The court held “where a parent has been awarded custody of a child by court decree and the noncustodial parent abducts the child, an action will lie in favor of the custodial parent upon an allegation of damages.” Plante, supra (emphasis added).

In Rosefield v. Rosefield, 221 Cal.App.2d 431, 34 Cal.Rptr. 479 (1963), the appellate court reversed the lower court, allowing the mother an action for damages suffered in locating her child which had been abducted and hidden by the child’s father and paternal grandfather.

It is important to note that when much of the expense at issue was incurred this case was not directly before the trial court. On October 3, 1980 Mrs. Rayford filed a motion for instanter custody which would empower the sheriff to place the children immediately into her custody when they were found. This motion was granted. However, on August 10, 1981 a judgment of dismissal of the action was entered for lack of prosecution. Thus, the custody issue was not directly before the trial court.

The expenses for which reimbursement is sought in the case at bar are the type historically and generally characterized as damages. See Lewis v. Douglass, 440 So.2d 1073 (Ala.Civ.App.1983). They are to recompense a pecuniary injury. They were not incurred in preparing a case for trial, for which one could expect reimbursement in the form of an award of costs of litigation.

The majority’s conclusion in this case is correct. I dissent only from their excursion from the mainstream approach to differentiating between costs and damages in situations such as the present one. A careful reading of the literature and cases leads me to the conclusion that it is error to blur the lines between costs and damages in this way.

Again, regardless of how the award is characterized, I agree that an award to the wife was properly made. An award of damages by a trial court after an ore tenus hearing is presumed correct. Farmer v. Strother, 423 So.2d 252 (Ala.Civ.App.1982). If evidence presented furnishes enough for an approximate estimate of the amount of damages, it is sufficient to support the judgment. Roan v. Johnson, 38 Ala.App. 209, 84 So.2d 379 (Ala.Ct.App.1955). There is ample evidence from the record to support the award given. However, the award is better characterized as damages than as costs of litigation.


text:
    Lavon STEWART v. John MEADOW.
    Civ. 4493.
    Court of Civil Appeals of Alabama.
    Sept. 19, 1984.

      Robert M. Seale, Livingston, for appellant.
    Richard S. Manley of Manley & Traeger, Demopolis, for appellee.
   HOLMES, Judge.

The plaintiff ex-wife sued the defendant ex-husband, alleging that the defendant “unlawfully seized, detained, and converted” certain property of the plaintiff’s. The plaintiff sought monetary damages and, apparently, the return of certain personal property.

After an ore terms hearing, the trial judge entered a judgment in favor of the plaintiff, requiring the defendant to return certain property, and further entered a judgment in favor of plaintiff in the amount of $500.

The plaintiff appeals and we determine the dispositive issue to be whether the judgment is supported by the evidence. We find the judgment to be amply supported by the evidence and affirm.

The plaintiff apparently contends on appeal that she should have received additional personal property and/or a larger monetary award.

We deem it neither necessary nor prudent to set out in detail the facts. The following is sufficient.

The parties were divorced in 1976 after an eight-month marriage. The parties entered into an agreement regarding personal property. The plaintiff was to receive certain personal property. Approximately five years after the divorce, the plaintiff sent a truck for “her” property.

The basis of her lawsuit, as indicated above, was that she did not receive the property she was entitled to receive and, additionally, that she was entitled to damages.

The evidence regarding the basis of the lawsuit was in conflict. The trial court resolved the conflict and took the action as indicated above.

Where a trial is presented before the trial court and the evidence conflicts, the customary presumption applies as to the correctness of the trial court’s findings of fact; and the reviewing court is not authorized to substitute its judgment for that of the trial court unless it is palpably wrong, not supported by the evidence, or manifestly unjust. Tucker v. Tucker, 403 So.2d 273 (Ala.Civ.App.1981); 2B Ala. Digest, Appeal & Error, Key No. 1011.1(7) (1982).

In this instance the trial court’s action is clearly supported by the evidence and is not palpably wrong or manifestly unjust.

This case is due to be and is affirmed.

AFFIRMED.

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


author: BOWEN, Presiding Judge.

text:
    Jimmy Lee TATE v. STATE.
    1 Div. 650.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied Sept. 28, 1984 Alabama Supreme Court 83-937.
    Linda S. Perry, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

Jimmy Lee Tate, the appellant, was indicted and convicted for criminal possession of a forged instrument in the second degree. Alabama Code Section 13A-9-6 (1975). He was sentenced as an habitual offender to twenty years’ imprisonment. Three issues are presented on appeal.

I

Tate argues that the trial judge “misapplied the attorney-client privilege in inappropriate circumstances” when he refused to allow defense witnesses, Attorneys Len White and Paul Brown, to testify to prior inconsistent statements made by State’s witness Anthony Ñaman at the preliminary hearing and to whether State’s witness Marguerite Ñaman testified at the preliminary hearing.

Attorney White represented Tate at the preliminary hearing. He testified that at the hearing Ñaman testified that both Tate and co-defendant Sam McCarty were at the window of his store but that McCarty presented the check. He further stated that Ñaman would be mistaken if Ñaman said that he testified at the preliminary, hearing that Tate presented the check. White testified that Mrs. Ñaman did not testify at the preliminary hearing.

The prosecutor then adduced White’s testimony that the defense could have subpoenaed Mrs. Ñaman to testify at the' preliminary hearing even though the State did not. Defense counsel, on redirect examination and in an apparent attempt to explain why White did not subpoena Mrs. Ñaman, attempted to establish that White did not know anything about Mrs. Ñaman until he got to the preliminary hearing.

“BY MS. PERRY (Defense Counsel):
“Q. Len, did you know anything about Mrs. Ñaman until you got to that preliminary hearing?
“A. I knew nothing about a case until— “MR. BEEBE (Assistant District At: torney): We need to approach the bench on something. I’ve been afraid of this.
“(Bench conference:)
“MR. BEEBE: She is waiving attor-, ney-client privilege that I don’t think this Defendant has even been asked about.
“THE COURT: I think that's correct. Let’s get away from the preliminary hearing.
“MR. BEEBE: That’s why I stayed away from it.
“THE COURT: Thank you.”

Defense counsel then completed her redirect examination of witness White, who was then excused.

The defense called attorney Paul Brown, who had represented co-defendant McCarty at the preliminary hearing. When defense counsel attempted to question Brown about his representation of McCarty at that hearing, the prosecutor objected and the following exchange resulted:

“MR. BEEBE: I’m going to object to any statements or testimony from him concerning McCarty because that violates the attorney-client privilege that exists between him and Mr. McCarty, and I think Mr. McCarty ought to be here waiving anything that went on concerning his case.
“MS. PERRY: Judge, Mr. Beebe has no standing to assert the attorney-client privilege.
“MR. BEEBE: I most certainly do.
“THE COURT: Mr. Brown does and I assume that you would.
“MR. BROWN: Yes, I would.
“MS. PERRY: I don’t think we’re going to be violating the attorney-client privilege. I’m just going to go to matters that were conducted — we’re offering this for impeachment of a statement made by Mr. Ñaman today.
“THE COURT: I understand what you’re offering it for. Mr. Brown understands the attorney-client privilege and I’m going to — you do understand it, don’t you?
“MR. BROWN: Yes, sir.
“THE COURT: I’m going to instruct you to invoke it at any time you feel appropriate.
“MR. BEEBE: The problem, Judge, is it prohibits me from cross examining him.
“THE COURT: I understand your problem on that, but I think he’s going to invoke the privilege on any matter.
“MS. PERRY: Judge, we don’t plan on going into anything.
“THE COURT: Okay. Go ahead.”

Defense counsel resumed her direct examination of Brown and the prosecutor stipulated that Mrs. Ñaman did not testify at the preliminary hearing.

On further direct examination by defense counsel, Brown testified that he did not recall Mr. Naman’s testimony at the preliminary hearing that McCarty presented the check to his wife. However, defense counsel persisted:

“Q. Who did he say presented the check at this preliminary hearing? Who did he say under oath that presented that check?
“MR. BROWN: Can I ask you a question real quick? Could we have a bench conference perhaps?
“THE COURT: Come down here.
“(Bench conference:)
“MR. BROWN: Mr. McCarty has entered a plea to this charge, so I don’t see that it would be prejudicial to him.
“MR. BEEBE: Yes, it would be.
“THE COURT: As long as he files a coram nobis—
“MR. BEEBE: That’s the whole thing as Len White testifying. You’ve violated his attorney-client privilege. That guy can sue his butt off now and probably will.
“(Before jury.)
“MR. BEEBE: I’m going to object to the question.
“THE COURT: I’ll sustain.”

The only other reference in the record to the issue now under consideration appears in Tate’s motion for new trial where he alleges that “the trial court misapplied the attorney-client privilege by allowing the State of Alabama to invoke said privilege in inappropriate circumstances, thereby limiting Defendant’s cross examination and presentation of the defense.”

The transcript before this Court leaves us in a state of confusion as to the exact nature of the allegedly confidential information. We are also in doubt over what further information defense counsel desired to elicit from the two witness-attorneys. There was no offer of proof and counsel had already established that Mr. Ñaman testified at the preliminary hearing that McCarty presented the check to Mrs. Ñaman and that Mrs. Ñaman did not testify at that hearing.

We agree with Tate’s appellate counsel that any testimony given by either Tate or McCarty at the preliminary hearing would not constitute a privileged communication between an attorney and his client. Kling v. Tunstall, 124 Ala. 268, 27 So. 420 (1900); C. Gamble, McElroy’s Alabama Evidence, Section 392.04 (3rd ed. 1977). A question does not call for an answer in violation of the attorney-client privilege where the answer is a matter of public record. International Bhd. of Teamsters v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971). The attorney-client privilege of Alabama Code Section 12-21-161 (1975) does not apply where the answer is a matter of public record. Hobson v. State, 425 So.2d 511 (Ala.Cr.App.1982). “The attorney-client privilege does not cover statements which are intended to be communicated to third persons.” McElroy, Section 392.04.

While we agree with counsel that, at least as far as the record demonstrates, her questions did not call for answers in violation of any attorney-client privilege, we do not agree that the trial judge’s actions in sustaining the State’s objections constitute reversible error. Under the facts of this case, the error, if any, is harmless.

The exclusion of testimony does not require a new trial, where the witness on another occasion testified to the same facts. Palmer v. State, 165 Ala. 129, 51 So. 358 (1909). The error, if any, in ruling testimony inadmissible is cured by the prior or subsequent admission of the same evidence. Siebold v. State, 287 Ala. 549, 253 So.2d 302 (1970). “The rule is well established that the refusal to permit a witness to testify to certain facts does not require a new trial where at another time in the course of the trial the same witness is permitted to testify as to those facts.” Woodard v. State, 253 Ala. 259, 264-65, 44 So.2d 241 (1950). See also Dyer ¶. State, 241 Ala. 679, 4 So.2d 311 (1941) (trial court’s error in advising physician, testifying for defendant, that communications by patient to physician were privileged, was rendered harmless by subsequent full and complete examination of such physician).

II

Based on the same facts as asserted under Issue I, Tate contends that the trial court improperly and prejudicially limited the presentation of the defense at trial. Our further consideration of those facts only confirms our conclusion that the error, if any, was harmless and did not prejudice the defense.

Anthony Ñaman owned Naman’s Super Market in Mobile. On direct examination, he testified that Tate presented Mrs. Ña-man a check which had been stolen from Clinton Requer. He indicated that someone was with Tate when Tate presented Requer’s identification and check for payment.

On cross examination, Mr. Ñaman testified that he did not remember what he stated at the preliminary hearing but that “to his recollection” he believed he indicated that Tate had presented the check. He testified that Tate handed the check to Mrs. Ñaman, who in turn gave it to him. The record reveals that defense counsel was given considerable latitude in the scope and means of her cross examination and attempted impeachment of Mr. Ñaman.

Our review of the record convinces us that Tate received a fair trial and that the adverse rulings of the trial judge did not harm the presentation of his defense. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    William Lamar LOLLEY v. STATE.
    4 Div. 187.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied May 8, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-918.
    C. Lawson Little, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for appel-lee.
   LEIGH M. CLARK, Retired Circuit Judge.

The trial court rendered four judgments of conviction and sentence, one in each of four separate and distinct cases, wherein appellant-defendant pleaded guilty in each ease to theft of property in the second degree, a Class C felony, and was sentenced to imprisonment in each case for a term of two years. The cases were treated by all concerned as consolidated in the trial court, and they are treated likewise on appeal.

The issues presented by appellant are thus stated in appellant’s brief:

“I. Whether or not the trial court erred in overruling Appellant’s Motion for a Psychiatric Examination.
“II. Whether or not the pleas of guilty were intelligently and voluntarily made?
“HI. Whether or not the trial court should have allowed Appellant the opportunity to withdraw his plea of guilty?”

Each contention of appellant is based largely upon the further contention that, during some of the time the cases were pending in the trial court, defendant was mentally deficient.

The indictment in each of the cases was returned on February 16, 1983, and defendant was arrested on March 28, 1983, and committed to jail. The record does not conclusively reveal that defendant did, or did not, make bond for his release, but it indicates that he did not. On March 29, 1983, defendant was brought before one of the judges of the Circuit Court of Houston County, to whom defendant made known that he was “financially unable to employ counsel to represent him,” and the court appointed an attorney to represent him in each of the cases, the same attorney in each case, and set the cases for trial “during the April, 1983, Term of Court.” On April 12, 1983, defendant’s attorney filed a “MOTION FOR PSYCHIATRIC EXAMINATION,” which was set for hearing on April 21, 1983, on which date the motion was denied.

On April 28, 1983, defendant’s then appointed attorney filed a written motion to continue the cases and filed said attorney’s affidavit in support of the motion, which concludes as follows:

“A plea bargain offer has been made in the present cause. I attempted to intelligently discuss the plea offer and the facts underlying the charges against Mr. Lolley. The Defendant was unable to remember or recount the facts underlying the charges. As a practicing attorney, I cannot see how I can effectively assist Mr. Lolley in his defense when he has an insufficient recollection of the facts and events surrounding the charges filed against him. In addition, he does not appear to be understanding what I am telling him. Further, when first appointed to represent him he could tell me little. He seems to be more confident now than he was at his arraignment, but there is doubt in my mind about his competency to stand trial and/or enter a knowing, intelligent plea to the charges.
“I have been informed that a confession was obtained and there is doubt in my mind as to whether the Defendant’s drug addiction allowed a knowing and intelligent waiver of his Miranda rights.
“For all of the above reasons, I respectfully request a continuance until the Defendant has been examined by a psychiatric expert to lay to rest or confirm any of those questions.”

On April 16, 1983, the motion to continue was denied, and on the following day, according to the trial judge’s bench notes, defendant’s previously appointed attorney was “removed as atty for deft.” Another attorney was appointed, who continued to represent defendant until after the judgments of conviction and sentence on defendant’s pleas of guilty.

On May 19, 1983, defendant’s attorney filed a “MOTION FOR PRETRIAL DETERMINATION OF COMPETENCY.” This motion was apparently never ruled upon by the court. On May 26, 1983, the defendant, in the presence of his then attorney, entered a plea of guilty in each case, which plea was accepted by the court, and the judgment of conviction and sentence was rendered thereon, after considerable colloquy as to the voluntariness of the plea and defendant’s knowledge and waiver of pertinent constitutional rights.

On June 8, 1983, defendant filed the following pro se motion:

“Motion to Withdraw Plea of Guilt.
“Comes now the defendant, William Lamar Lolley, and respectfully requests that the Court grant a hearing on the following motion on these grounds.
“(1) That the defendant was coerced into a plea of guilt.
“(2) That the defendant was uneffec-tively represented by counsel.
“(3) That the defendant was not mentally competent at the time of his plea of guilt.
“(4) That the defendant was prompted in to his plea of guilt.”

The “Motion to Withdraw Plea of Guilty” was overruled on June 8, 1983, and on the same day defendant filed a pro se notice of appeal, in which he alleged that he was indigent and requested the appointment of an attorney to handle his appeal. In accordance therewith, the trial court rendered a comprehensive order in which a third attorney was appointed to represent the appellant-defendant, at no expense to appellant, and the Clerk of the Circuit Court and the court reporter were ordered to furnish a record and a transcript of the proceedings without any expense to appellant.

The case was submitted on briefs of attorneys for the parties on September 8, 1983. They have done well in representing their respective clients and in aiding us to reach a just solution of the issues presented, which rival in their intricacies the Forty-seventh Problem of Euclid, which lexicons carry as the Pythagorean proposition.

One of the features of the proceedings in the trial court that puzzles us the most is the off and on status of an attorney-client relationship, existing as to the appointed attorneys during the pendency of the cases in the trial court, and the interspersed representation by defendant of himself. To what extent any subnormal mentality of defendant may have contributed to such a status, we do not know, but basis for some conjecture along this line is probably to be found in the position taken by his first appointed attorney, as made known by said attorney to the court, on the hearing of the motion for a sanity examination, as well as the rather profuse, documented information in the record proper, or the transcript, as to the history of defendant’s mental problems in connection with his use of, and attempted withdrawal from, drugs. It appears that when his first appointed counsel ceased representing defendant, and another attorney had been appointed to represent defendant, the defendant and his second attorney thought the plea bargaining arrangement would be for the best interest of defendant. There does not seem to be any contention that the judgments entered upon the pleas of guilty in the cases were out of harmony with any understanding between the parties. However, it is to be noted that the proceeding on the plea of guilty in each case was only one week after defendant’s attorney filed a motion for “pretrial determination of competence,” alleging that defendant had “a history of mental problems and has been seen by local mental health professionals for several years prior to his arrest in this cause.” It does not appear that said motion was ever called to the attention of the court. It appears that there was no ruling on the motion.

Defendant’s second attorney may have justifiably thought that his services were at an end in the cases when defendant’s pleas of guilty were accepted and the adjudications of guilt were entered and the sentences imposed, on May 26, 1983. Said attorney did not appear in the cases thereafter. He probably was not cognizant for some time of either the pro se action by defendant in moving to “Withdraw Plea of Guilt” or the pro se notice of appeal filed by defendant in each of the cases on June 8, 1983.

The appellant’s attorney, the third attorney appointed for defendant-appellant before the cases actually left the trial court, has proceeded in due course without any pro se interspersion, to a submission of the four consolidated cases on briefs of parties.

When the trial court determined that the pleas of guilty were voluntarily, understandingly and intelligently made, there was little emphasis placed by either party on the question whether defendant was of normal intelligence. The record before us discloses that his mental status was better at one or more appearances in court than at another or others.

The items of the variegated material we have, when considered all together, lead us to the view that had the previous mental problems of the defendant been fully and timely made known to the trial court, it would have considered more acutely and comprehensively the question of whether his pleas of guilty should be accepted. The fact that his mental state changed from time to time leads us to the further view that before we take action as to whether the judgments of the trial court should be reversed, we should remand the cases with directions that another hearing be conducted to determine whether at the time of the trial court’s acceptance of defendant’s pleas of guilty, his mental condition was such that he voluntarily, intelligently and understandingly pleaded guilty, and that each of the parties will be given an opportunity to present any evidence available of a legally admissible nature on the subject. The trial court shall make due return to the order of remandment with notice to each of the parties. Either party aggrieved thereby will have fourteen days within which to file a brief, and the opposing party will have fourteen days thereafter within which to file a reply brief.

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.

REMANDED WITH DIRECTIONS.

All the Judges concur, except SAM TAYLOR, J., who dissents.

      . Webster’s New International Dictionary (2nd ed. p. 2027)


author: HARRIS, Judge.

text:
    Joe MORGAN v. STATE.
    7 Div. 168.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied July 17, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1229.

      Cecil M. Matthews, Albertville, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

On October 7,1981, the Cherokee County Grand Jury indicted appellant, Joe Morgan, for theft in the second degree. On May 11, 1983, he was convicted of the offense and was sentenced to fifteen years’ imprisonment in the state penitentiary as a habitual felony offender.

On October 2,1981, Carden Colley picked up his Sears Model 200 12-gauge shotgun from Max Studdard’s gun shop. Colley then locked the gun in his car and left. When he returned to the car an hour and a half later, the gun had been stolen.

Approximately two hours later appellant entered Studdard’s gun shop with the stolen gun and asked the owner for an appraisal of its value. Studdard, having recently cleaned the gun, recognized it and informed the appellant that he thought the gun was stolen.

Appellant’s wife, sister-in-law and son testified that a teenager, Ricky Studdard, had come to their home with the gun and tried to sell it to appellant. They testified that appellant went with Rickey to the gun shop for an appraisal. Ricky Studdard testified that he stole the gun and that he told appellant it was stolen.

Appellant contends on appeal that the State failed to prove a prima facie case of theft in the second degree and that the jury verdict was contrary to the evidence.

It is well established that possession of recently, stolen property raises an inference of guilt sufficient to submit the issue to the jury for consideration, and that the credibility of the defendant’s explanation of the possession of such stolen property is a question for the jury. Bullock v. State, 400 So.2d 937 (Ala.Cr.App.1981), Simas v. State, 410 So.2d 139 (Ala.Cr.App.), cert. denied, 410 So.2d 139 (Ala.1981); Gunaca v. State, 383 So.2d 590 (Ala.Cr.App.1980).

In the case before us the State proved that appellant was found in possession of the stolen firearm two hours after the discovery of its theft, raising the inference that appellant was the thief. Testimony by defense witnesses indicating that Ricky Studdard stole the gun presented a question for the jury. Where the jury has determined a question based on the credibility of evidence tending to establish guilt or innocence this court will not disturb its findings. Collins v. State, 412 So.2d 845 (Ala.Cr.App.1982); George v. State, 410 So.2d 476 (Ala.Cr.App.1982).

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ronald Wayne GWIN, Alias Ronnie Gwin v. STATE.
    7 Div. 250.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1143.

      Stephen P. Bussman, Fort Payne, for appellants.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

This is an appeal from the denial of a pro se petition for writ of error coram nobis.

The appellant, Ronald Wayne Gwin, and his brother were charged in separate indictments with the murders of Ralph Little and Donald Ray Faulkner. Gwin’s brother was tried first and convicted for Little’s murder. Gwin v. State, 425 So.2d 500 (Ala.Cr. App.1982), cert, quashed, 425 So.2d 510 (Ala.1983).

I

Gwin was tried and convicted for manslaughter in the case involving Faulkner while his brother’s case was on appeal and before it had been affirmed. He gave notice of appeal, trial counsel was appointed to represent him on appeal, and a transcript was prepared. Before the appellate briefs were filed, Gwin pled guilty in the case involving Little. This guilty plea was pursuant to a plea bargain agreement whereby Gwin pled guilty to the lesser included offense of manslaughter in the case involving Little, dismissed his appeal of the Faulkner manslaughter conviction, and received a ten-year sentence to run concurrent with the ten-year sentence he received in the Faulkner case. Gwin did not attempt to appeal this guilty plea. Fifteen months later, he filed a petition for writ of error coram nobis attacking the sufficiency of the evidence to support the Faulkner conviction and alleging that he did not knowingly and voluntarily waive his right to appeal.

Counsel was appointed and an evidentia-ry hearing held on the allegations of Gwin’s petition. On this appeal from the denial of that petition, Gwin contends that “[b]ecause appellant never ‘knowingly’ waived his right to appeal and because no appeal was ever taken he has a jurisdictional basis for this petition assuming he has a valid defense.”

Initially, it should be noted that the petition itself is not verified and does not constitute evidence. See Ex parte Green, 221 Ala. 298, 300, 129 So. 72 (1930).

At the hearing, Gwin testified but never specifically or clearly stated that he did not know what he was doing when he waived his right to appeal, that he did not understand the consequences of dismissing his appeal, or that the waiver was not knowing and intelligent. He only stated that he pled guilty “under the direction of my attorney.”

Gwin testified that during his trial his appointed counsel, A1 Shumaker, “told me all the way through my trial that he was laying the groundwork for an appeal.” Gwin stated that Shumaker’s advice that he plead guilty and “drop” the appeal “contradicted what he told me all through the trial.”

At the coram nobis hearing, Shumaker testified that the basis for his recommendation that the appeal be dismissed was that he “felt like the chance of getting the case reversed on appeal was not real great.... I felt like the thing that we needed in order to insure a reversal, an obvious error, I did not think had occurred.” This recommendation was made after he had reviewed the trial transcript.

“I felt like the chance on appeal was not all that great and if we could plea bargain a concurrent sentence and dismiss the appeal, it appeared to me probably the best thing that he could have done. Now, we discussed it and I don’t ever advise a person to plead guilty to anything. I tell them what the options are and sometimes I encourage them to the point that I say I think this, you know, is the best thing for you to do, but ultimately the plea is the decision of the client.
“Q. All right. Did you coerce Mr. Gwin in any way to get him to enter the plea in the second charge?
“A. Certainly not. We discussed it on a number of occasions and at first I don’t think he wanted to do it, and it was over a period of several weeks time that he made the decision. It may have been several months before he made the decision.”

Contained in the record is a Case Action Summary Sheet containing the signed orders of the trial judge. This record shows that Gwin’s guilty plea was voluntary and intelligent: “The court determined that there was a basis of fact for the defendant’s plea of guilty and that such plea was made voluntarily, intelligently and with an understanding waiver of his rights and without coercion.” Although the trial judge informed Gwin of his right of appeal on May 6, 1982, no appeal was ever taken on the guilty plea. The pro se petition for writ of error coram nobis was filed in August of 1983.

Although there is some authority to the contrary, a defendant may waive his right to appeal as part of a negotiated plea agreement. Annot., 89 A.L.R.3d 864 (1979). The defendant’s mere unhappiness with the condition of a plea bargain whereby he waives his right to appeal does not amount to coercion so long as the defendant was fully advised of this condition and its implications and he voluntarily agreed to it. People v. Jasper, 107 Misc.2d 992, 436 N.Y.S.2d 185 (1981). Here, Gwin has not shown that his decision to withdraw his appeal was not made on the basis of an informed and reasoned judgment, cf. Sta-ton v. Warden, 175 Conn. 328, 398 A.2d 1176 (1978), but admits that it was on the advice of counsel. There is no allegation or evidence of “prosecutorial vindictiveness”. Staton, 398 A.2d at 1178.

In a coram nobis proceeding, the petitioner has the burden of proving the allegations of his petition. Shaw v. State, 283 Ala. 555, 558, 219 So.2d 382 (1969). This burden extends to a petitioner who claims that his guilty plea was involuntary. Ware v. State, 44 Ala.App. 679, 219 So.2d 910 (1969); Champion v. State, 44 Ala. App. 660, 219 So.2d 416 (1969). “This burden extends beyond a mere balancing of probabilities.” Summers v. State, 366 So.2d 336, 343 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979).

“The degree of proof is ‘highly exacting as to facts “and always means more than reasonably satisfying.” ’ Burden v. State, 52 Ala.App. 348, 350, 292 So.2d 463, 465 (1974). The petitioner must convince the trial judge of the truth of his allegation and the judge must ‘believe’ the testimony. Seibert v. State, 343 So.2d 788 (Ala.1977). The petitioner on coram nobis is also confronted with the burden of rebutting the presumptions, among others, of the correctness of the judgment of the trial court, Ware v. State, 44 Ala.App. 679, 219 So.2d 910 (1969), and the truthfulness of the testimony of the witnesses for the prosecution. Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974).” Summers, 366 So.2d at 343.

The trial court’s judgment is presumed correct, as is the voluntariness of a guilty plea. See Howard v. State, 280 Ala. 430, 433, 194 So.2d 834 (1967) (“[Tjhere is a presumption of reliability which attaches to the recital in a judgment entry and we do not think that ordinarily that presumption can be overcome by the mere statement of a petitioner that the judgment entry is incorrect.”). The record does not convince this Court that Gwin sustained his burden of proving that the waiver of his right to appeal was not knowingly made. Hayes v. State, 417 So.2d 579 (Ala.Cr.App.1982); Clark v. State, 396 So.2d 1083 (Ala.Cr.App. 1981). Neither has Gwin demonstrated that counsel was constitutionally inadequate in advising him to dismiss his appeal. Considering the evidence against Ronald Gwin and the fact that a jury convicted him only of the lesser included offense of manslaughter, we find no cause to question Shumaker’s competence at trial. Gwin has presented nothing to cause us to doubt Shumaker’s assessment and advice in regard to the guilty plea, the acceptance of the plea bargain agreement, and the dismissal of the appeal. Here, as in Ex parte Ellison, 410 So.2d 130, 132 (Ala.1982), a reading of Gwin’s petition “convinces this Court that he is seeking to use the writ as a delayed appeal of issues which could have been decided at the initial trial or on direct appeal.” That is not the function of the writ. Summers, 366 So.2d at 339.

II

Moreover, we find no merit to the matters Gwin cites as errors in his trial.

In his petition, Gwin argues that “blacks were systematically excluded from the pet-it jury, that the State failed to prove the corpus delicti; that certain evidence known to State’s attorney that could have impeached the testimony of a key witness (Margaret Hunter) was intentionally suppressed; that new evidence in the form of testimony from James Edward Gwin would absolve your Petitioner from any wrong doing.” The competence of trial counsel (A1 Shumaker) is also questioned.

The record of Gwin’s trial was introduced into evidence at the coram nobis hearing and is a part of the record on this appeal. Included are the clerk’s record and the transcript of the court reporter.

A.

Defense counsel did file a motion to quash the jury venire but on the grounds that a number of jurors had been improperly excused. The record contains no allegation or evidence of systematic exclusion. Since this objection was not raised at trial, Gwin is precluded from presenting it before this Court. Van Antwerp v. State, 358 So.2d 782, 791 (Ala.Cr.App.), cert. denied, Ex parte Van Antwerp, 358 So.2d 791 (Ala.1978). An attack on the jury selection system not raised in the original trial court cannot properly be raised for the first time on a petition for writ of error coram nobis. Thigpen v. State, 374 So.2d 401, 405 (Ala.Cr.App.), cert. denied, 374 So.2d 406 (Ala.1979).

B.

Gwin contends that at his trial the State intentionally suppressed a statement witness Margaret Hunter had given to District Attorney’s Investigator Danny Smith on January 5, 1981. That unsigned statement is included in the record along with Ms. Hunter’s testimony at Gwin’s preliminary hearing and her testimony at the trial of Gwin’s brother.

The motion to produce, filed by defense counsel before Gwin’s trial, did not seek the production of the statement of any witness. There was no general request for evidence favorable to the accused under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963). The transcript of Hunter’s testimony at the trial of Gwin’s brother reveals that defense counsel (Loma Beaty) requested and received a copy of Hunter’s statement to Investigator Smith and used this in his cross examination of the witness. This trial was held before Gwin’s.

The record reflects that Gwin was present and “remained in the courtroom for a portion of ... [his brother’s] trial when he was brought to the courthouse as a witness.”

The transcript of Hunter’s interview by Smith does contain some discrepancies from her testimony at trial and at the preliminary hearing. It could have been used to impeach her trial testimony. However, those discrepancies are not so significant as to require a reversal of Gwin’s conviction had this issue been raised at trial or on motion for new trial. This issue was first raised in the coram nobis petition. Consequently, this issue was not even preserved for direct appeal.

A prosecutor’s failure to disclose favorable evidence when a defendant makes a general request for Brady material, or no request at all, will require a reversal only if the undisclosed evidence would create “a reasonable doubt that did not otherwise exist.” United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976); United States v. Xheka, 704 F.2d 974, 983 (7th Cir.), cert. denied, — U.S. —, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983); United States v. Cochran, 697 F.2d 600, 607 (5th Cir.1983). Here, it is certain that Hunter’s statement to Investigator Smith would not have created “a reasonable doubt that did not otherwise exist.” Gwin’s trial counsel was thorough and competent in his cross examination of Hunter. Thus, even had this issue been preserved for review on direct appeal it would not warrant a reversal of the conviction.

C.

Gwin argues in his petition that his mere presence at the scene of a crime does not make him an accomplice. This was the substance of his defense and testimony at trial. Our review of the trial transcript convinces us that the State presented a prima facie case.

Ms. Hunter testified that Eddie Gwin lost some money in a dice game and said he was “going to kill somebody or get — and get his money back.” Eddie, Gwin, and Ms. Hunter went to Gwin’s trailer where Eddie and his father got a pistol. Then Eddie and Gwin went into their bedroom and got a shotgun. Ms. Hunter, Eddie and Gwin then left the trailer and drove until they “came across” the van that had been at the tavern where Eddie lost his money. Eddie got out of the truck and shot the two men in the van. Gwin remained in the truck until Eddie told Gwin to get out and bring the shotgun. Gwin then got out and stood beside the truck door. Hunter covered her face when she saw Gwin “was fixing to start shooting.” Eddie called to Gwin to come to where he was. Gwin put the shotgun back in the truck and Eddie and Gwin started going through one of the boys’ pockets. Eddie then told Hunter and Gwin what to tell the police if they were questioned.

In a voluntary statement Gwin gave Investigator Smith, Gwin admitted his presence at the scene of the homicides and maintained that he had no prior knowledge of Eddie’s intention to kill the two men. Gwin does admit that he brought the shotgun to Eddie at Eddie’s request and that Eddie fired the shotgun after he had given it to him.

This evidence was sufficient to support a conviction under the principles stated in Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert, denied, Ex parte Cumbo, 368 So.2d 877 (Ala.1979). Here, there was undisputed evidence that Gwin was present at the scene of the crime as well as testimony from which the jury could infer that he knew his brother was ready to kill to get his money back, and that Gwin was ready and willing to help his brother in the commission of the murders, and therefore guilty as an accessory. Alabama Code § 13A-2-23 (1975).

“Aid and abet ‘comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary.’ ” Jones v. State, 174 Ala. 53, 57, 57 So. 31 (1911), quoted in Radke v. State, 292 Ala. 290, 292, 293 So.2d 314 (1974). If the jury is convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, the fact that the defendant is an aider and abettor is established. Jones, supra; Raiford v. State, 59 Ala. 106, 108 (1877). “The culpable participation of the accomplice need not be proved by positive testimony, and indeed rarely is so proved. Fuller v. State, 43 Ala.App. 632, 198 So.2d 625. Rather, the jury must examine the conduct of the parties and the testimony as to the surrounding circumstances to determine its existence.” Miller v. State, 405 So.2d 41, 46 (AIa.Cr.App.1981); Watkins v. State, 357 So.2d 156, 159 (Ala.Cr.App.1977), cert, denied, 357 So.2d 161 (Ala.1978).

D.

Gwin contends that the trial judge erred in refusing to admit a record of the testimony of his brother at the brother’s trial.

At Gwin’s trial, defense counsel called Gwin’s brother as a defense witness. However, Eddie, whose murder conviction was on appeal and who was facing trial for Faulkner’s murder, on the advice of counsel, refused to testify and invoked his constitutional privilege against self-incrimination. Later in the trial, defense counsel attempted to introduce the testimony Eddie Gwin had given at his trial. The trial judge sustained the prosecutor’s objection and refused to allow the admission into evidence of the transcript of Eddie Gwin’s prior testimony. The appellant Gwin maintains that this refusal constitutes error. We disagree.

Simmons v. State, 129 Ala. 41, 29 So. 929 (1901), involved the trial of Joseph Simmons. Before his trial, Mrs. John Simmons had been tried and acquitted for the murder of Houston Webb. Subsequently, Joseph Simmons was also tried for Webb’s murder. At his trial, Mr. Simmons offered to prove what Mrs. House, a State’s witness, had testified to in the trial of Mrs. Simmons, who had died since the trial. Our Supreme Court held:

“Evidence by Mrs. House, given on a former trial in the case of the state of Alabama against Maley Simmons, was properly excluded. The evidence of a deceased or absent witness given upon the former trial is only admissible upon the second trial between the same parties or their privies, and in relation to the same subject matter. Here the parties were not the same, nor was there any privity.” 129 Ala. at 47.

“[T]he testimony of an absent witness given at the previous trial of another for the same offense with which the defendant is charged is not admissible.” 29 Am.Jur.2d Evidence § 745 (1967). “The now-governing Alabama rule is that if either the party now offering the former testimony, or the party against whom it is offered, was not a party or the successor of a party to the former litigation, the former testimony is not receivable for or against either.” C. Gamble, McElroy’s Alabama Evidence § 245.07(7) (3rd ed.1977). In Miles v. State, 366 So.2d 346 (Ala.Cr.App.1978); Miles v. State, 343 So.2d 801 (Ala.Cr.App.), cert. denied, 343 So.2d 806 (Ala.1977); and Bridges v. State, 26 Ala.App. 1, 152 So. 51, cert, denied, 228 Ala. 72, 152 So. 54 (1933), the parties were the same.

E.

As stated in part I of this opinion, we have read the transcript of Gwin’s trial and find no reason to question the competence of defense counsel A1 Shumaker.

Our review convinces us that the judgment of the circuit court denying the petition for writ of error coram nobis is due to be affirmed.

AFFIRMED.

All Judges concur.