author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama, ex rel. James H. EVANS, District Attorney, Fifteenth Judicial Circuit of Alabama v. DRUG RELATED OBJECTS (Lonnie Flowers).
    Civ. 3790.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.

      James H. Evans, Dist. Atty., and Patricia E. Emfinger, Deputy Dist. Atty., for appellant.
    Johnny Hardwick, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an action for condemnation of drug-related objects defined in § 20-2-75, Code of Alabama 1975, as amended by 1980 Ala.Acts 80-579.

Condemnation proceedings were brought by the District Attorney of the Fifteenth Judicial Circuit against some ten boxes of articles seized under search warrant from a place of business in the City of Montgomery. After hearing ore tenus, the trial judge entered an order directing forfeiture of the entire lot. Subsequently, on motion to amend or alter, the order was amended to delete from condemnation specific articles which it determined not to be drug related because, “[T]hey are not primarily designed and/or do not have as their purpose the ingestion of controlled substances. ...” From the amended order the district attorney has appealed.

The dispositive issue is whether there was evidence supporting the amended order of the trial court.

We have studied the testimony concerning the relation or nonrelation of the seized objects to the consumption or ingestion of drugs in light of the statute and the judgment in the case of Gasser v. Morgan, 498 F.Supp. 1154 (N.D.Ala.1980). Though there was testimony for the state setting out the primary purpose of some objects was that of use with drugs, the same witness and the owner stated they could be used in the ordinary smoking of tobacco. These items were various pipes and cigarette rolling papers. This court is without judicial or expert knowledge of the accouterments indigenous to smoking parts of the plant Cannabis Sativa Linnaeus or Marijuana. It may appear to this court that some of the papers and pipes found by the trial court not to primarily fit such use, are nevertheless not fitting for any other use. However, the trial judge is the trier of fact. If there is evidence to support his or her finding, we are bound to presume it correct upon appeal.

We find the judgment in this case not so lacking in support by the evidence as to be so clearly wrong as to permit our reversal. Ex parte Allstate Insurance Company, 401 So.2d 749 (Ala.1981).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    STATE of Alabama v. ALABAMA METALLURGICAL CORPORATION d/b/a Alamet, and Ohio Ferro-Alloys Corporation.
    Civ. 3831-X.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.

      Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, Dept, of Rev. and Asst. Atty. Gen., for appellant.
    Walter R. Byars of Steiner, Crum & Baker, Montgomery, for appellee.
   HOLMES, Judge.

The State of Alabama appeals from the trial court’s action finding that carbon electrodes used in taxpayers’ businesses are exempt from use tax under § 40-23-62(11), Code of Ala. (1975). The taxpayers cross-appeal, contending the trial court erred in finding that the purchase of the electrodes by taxpayers was not a wholesale transaction as defined in § 40-23-60, Code of Ala. (1975), therefore making the purchase a taxable transaction.

Alabama Metallurgical Corporation and Ohio Ferro-Alloy Corporation (hereinafter taxpayers) are in the business of manufacturing silicon metal and ferro silicon metal. Taxpayers use carbon electrodes in the manufacturing process to supply the heat for the furnaces. The carbon electrodes are composed of the raw materials coal, coke, and coal tar pitch. The raw materials are baked into the form of carbon electrodes which are composed of not less than 80% of the raw coal and coke.

The carbon electrodes are placed in the furnace among the furnace burden of quartz ore, coal, coke and wood chips. An electric current is passed through the electrodes to generate heat in the furnace burden. When a certain temperature is reached a chemical reaction takes place and the mixture in the furnace becomes silicon metal.

A use tax was assessed on the carbon electrodes against the taxpayers. The taxpayers petitioned for a redetermination with the Department of Revenue. The re-determination was denied and the taxpayers appealed the final determination to the circuit court.

After an ore tenus hearing, the trial court rendered a judgment finding that the carbon electrodes were exempt from use. tax by virtue of § 40-23-62(11), Code of Ala. (1975). Additionally, the trial court found that the purchase of the electrodes was not a wholesale transaction and therefore the electrodes were subject to tax as tangible personal property purchased at retail.

The taxpayers and the Department now appeal. The taxpayers contend that the purchase of the electrodes was a wholesale sale as contemplated by § 40-23-60(4)(b), Code 1975, and is not taxable. The Department contends that the electrodes are not exempt from use tax.

I

First, as to the State’s contention that the trial court erred in finding that the carbon electrodes are exempt from use tax, we find we do not agree.

The pertinent part of the exemption statute reads:

“§ 40-23-62. Exemptions.
“The storage, use or other consumption in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this article:
“(11) Coal or coke to be stored, used or consumed by manufacturers, electric power companies and transportation companies for use or consumption in the production of by-products or the generation of heat or power used:
“a. In manufacturing tangible personal property for sale;
“b. For the generation of electric power or energy for use in manufacturing tangible personal property for sale or for resale; or
“c. For the generation of motive power for transportation.”

It is the State’s position that because the raw coal and coke is baked and mixed to make the electrodes it is different physically and chemically from the materials exempted by the statute; that is, the electrodes are not coal and coke for purposes of § 40-23-62.

The parties stipulated that the carbon electrodes are installed in the furnaces and used to generate heat in manufacturing tangible personal property for sale. Therefore, if the carbon electrodes are appropriately composed of coal or coke the taxpayers qualify for the exemption under § 40-23-62, Code of Ala. (1975).

Without going into the complicated and technical evidence that was presented at trial, suffice it to say that there is ample evidence to support the trial court’s determination that the carbon electrodes are exempt from use tax. There was testimony to the effect that when the coal and coke are baked to make the electrodes some gases are released and what is left is basically coke, although there is some chemical change from the raw materials.

It is undisputed that the electrodes are composed of over 80% coal, coke, and coal tar pitch. Calcined coal, raw coal that has been heated to a certain temperature, is mixed with heat treated by-product coke and then crushed and mixed in a steam-heated mixer with the coal tar. This mixture is then heated until certain gases or volatiles are released and the solid electrode is produced. This process is done in order to make the coal and coke in the electrode more conductive. Under one view of the evidence, this court gathers that the carbon electrodes are basically coke and not significantly different chemically from the raw materials used to form the electrode. See State v. Lamson & Sessions Co., 269 Ala. 610, 114 So.2d 893 (1959), for a more detailed definition of “coke.”

Accordingly, the trial court was correct in its determination that the electrodes are exempt under § 40-23-62(11) as coke used to generate heat in the manufacture of tangible personal property for sale.

II

The taxpayers contend that the trial court erred in finding that the purchase of the carbon electrodes was taxable as a retail sale of tangible personal property and not a wholesale transaction as contemplated by § 40-23-60.

The pertinent parts of the relevant statute, § 40-23-60, Code of Ala. (1975), read as follows:

“For the purpose of this article, the following terms shall have the respective meanings ascribed to them in this section:
“(4) Wholesale sale or sale at wholesale. ...
. “b. A sale of tangible personal property or products, including iron ore, to a manufacturer or compounder which enter into and become an ingredient or component part of the tangible personal property or products which such manufacturer or compounder manufactures or compounds for sale, and the furnished container and label thereof;
“(5) Sale at retail or retail sale.... Sales of tangible personal property or products to manufacturers, quarry operators, mine operators or compounders, which are used or consumed by them in manufacturing, mining, quarrying or compounding and do not become an ingredient or component part of the tangible personal property manufactured or compounded are retail sales.”

The question in the present case is whether the carbon electrodes are used with the intention that they, or some part of'them, become an ingredient of the final product. Robertson & Associates (Alabama), Inc., v. Boswell, 361 So.2d 1070 (Ala.1978), sets forth the test to be applied in situations such as that presented by the case at bar. The test is whether the manufacturer used the material with the intent and purpose of making it an ingredient or component part of the finished product; or was its. presence in the finished product merely incidental to its primary function. In other words, if any part of a product purchased by a manufacturer is intended to remain for a purpose and does remain in the manufacturer’s finished product, the purchase is at wholesale, and therefore is not subject to sales tax. Furthermore, the material in question can serve a dual function, in this case, supply heat and become an appropriate ingredient of the finished product. Boswell v. General Oils, Inc., 368 So.2d 27 (Ala.Civ.App.1978); cert. denied, 368 So.2d 30 (Ala.1979).

To this court the case of Boswell v. Abex Corp., 55 Ala.App. 477, 317 So.2d 314, cert. denied, 294 Ala. 334, 317 So.2d 317 (1975), when viewed in conjunction with Robertson & Associates (Alabama), Inc. v. Boswell, 361 So.2d 1070 (Ala.1978), and Boswell v. General Oils, Inc., 368 So.2d 27 (Ala.Civ.App.1978); cert. denied, 368 So.2d 30 (Ala.1979), is virtually indistinguishable from the present case.

In Abex the taxpayers used carbon electrodes in manufacturing steel railroad car wheels. As in the present case the carbon electrodes were used to generate heat and also to supply carbon that becomes part of the finished product. This court held that the purchase of the electrodes was a wholesale transaction not subject to retail sales tax as provided by statute because the carbon electrodes were used with the intent that they become an integral part of the product.

In the present case it is undisputed that the silicon metal contains carbon, and there is evidence that the carbon electrodes supply approximately 10% of the total amount of carbon in the finished product. It is evident that the taxpayers expect a certain amount of carbon in the finished product and that they make their calculations so that the carbon electrodes provide a certain amount. In other words, the taxpayers intend for the carbon electrodes to provide a percentage of the required carbon in the finished product for sale. There is evidence that carbon is needed in the finished product to assure that the silicon metal does not contain slag.

Applying the Robertson test and the Abex case to the facts of the case at bar, we find that the carbon electrodes are used with the intention that carbon from the electrodes becomes a component part of the finished product thus qualifying the purchase as a wholesale transaction not subject to sales tax.

In view of the foregoing, that part of the trial court’s decree finding that the carbon electrodes are exempt from use tax is affirmed, and that part of the trial court’s decree finding that the purchase of the electrodes was a retail transaction is reversed.

This case is affirmed in part, reversed in part, and remanded for the trial court to enter a judgment not inconsistent with the above opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


author: BRADLEY, Judge.

text:
    Elizabeth Hunter McCOWN v. Raymond Porter McCOWN.
    Civ. 3928.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.

      Ralph E. Coleman and Allan Werner of Coleman & Coleman, Birmingham, for appellant.
    Douglas Corretti of Corretti & Newsom, Birmingham, for appellee.
   BRADLEY, Judge.

This is a child custody modification case.

On August 28, 1979 the parties to this appeal were divorced by a decree of the Circuit Court for the Tenth Judicial Circuit of Alabama. The decree incorporated an agreement which awarded the husband custody of the parties’ three year old son, Joseph Wayne. The mother was given reasonable visitation rights with such visitation to be agreed upon by the parties.

On June 11, 1981 the wife filed a motion to modify judgment of divorce seeking more specific times of visitation. The parties reached an agreement in which they agreed to a more specific visitation schedule and agreed that custody would remain with the father. On October 27, 1981 an order was entered modifying the decree to give the mother more specific visitation with her child and custody remaining with the father.

On November 17, 1982 the wife filed a petition to give her custody of the minor child due to a material change in circumstances.

After an ore tenus hearing, the trial court entered an order denying wife’s petition to modify custody. Wife filed a motion for rehearing which was denied. She appeals.

On appeal wife asserts the trial court erred in refusing to hear evidence concerning a predivorce agreement entered into between the parties in regard to custody of the child and in failing to find a material change in circumstances since the divorce to justify a change in custody.

Wife says that there were material facts at the time of the divorce which were undisclosed but have since been revealed that would support a change in custody but that the trial court refused to hear such facts because it amounted to an attack on the agreement concerning custody that was incorporated into the divorce decree.

“A change in custody must be justified by a material change of circumstances since the rendition of the original decree, or by proof of material facts which, though existing at the time of the original decree, were then undisclosed, and have since been revealed. Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144; Stephens v. Stephens, 47 Ala.App. 396, 255 So.2d 338. However, it is well recognized that the trial judge who hears the evidence ore tenus is in the best position to ascertain if there has been a change of circumstances or revelation of undisclosed facts such as will necessitate custodial change.”

Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976). Once such a finding is made, it will not be disturbed unless it is so unsupported by the evidence as to appear plainly wrong. Zimmerman v. Gibbs, 384 So.2d 1115 (Ala.Civ.App.1980).

As to the wife’s contention that the trial court refused to permit her to introduce proof that she was coerced into making the agreement, we point out that wife’s attorney specifically stated that he was not attacking the divorce agreement but that he wanted only to introduce proof of the circumstances surrounding the making of the agreement.

Evidence concerning the circumstances leading to the agreement that was incorporated in the divorce decree was received by the court. This evidence related to the financial status of the parties, that the husband was represented by an attorney, that the wife was not represented, that the wife was told that the husband would not support the child if the wife received custody, and that the wife was without the means to support the child.

This evidence was before the court and we must assume that it considered such evidence along with all the other evidence introduced by both parties relating to whether there had been a change in circumstances sufficient to warrant a change in custody. We do not consider that the trial court denied the wife the right to introduce proof relating to the circumstances surrounding the making of the agreement. No error in this aspect of the court’s decree.

The primary issue on this appeal is that the trial court erred by failing to find that custody of the child should be changed from the father to the mother due to a material change in circumstances.

If a trial court hears evidence in a child custody modification case ore tenus, its decree will not be set aside except for palpable error or an abuse of discretion. Smith v. Smith, supra.

The evidence heard by the trial court shows that the couple was married approximately three years before the child, Joseph Wayne, was born. They divorced in 1979. There was evidence that wife was pregnant at the time of divorce with husband’s child but did not tell him. Instead, she had an abortion.

Both parties have since remarried. The wife, now twenty-seven years old,-married William Lankford, age forty-six, in 1980. The wife was employed at Woolco, making $3.65 an hour, but is no longer working. Her present husband is retired from Food World, where he worked as a butcher, and gets an income of $990 a month. The couple owns a two bedroom housetrailer on an acre lot which is fully paid for. They also own an automobile which is fully paid for. The mother attends church regularly and her husband attends church occasionally-

It is without dispute that wife loves her child and is a good mother to him. Moreover, her husband, Bill, has a good relationship with the boy and treats him like his own. The child loves his mother and has expressed a desiré to live with her and his stepfather.

There is also evidence that the child has resided with his father since the date of divorce and the father has provided all support for the child. The father married Denise Noll in December 1979 and, besides Joseph, the couple has two other children living with them; one is theirs and one is from a previous marriage. The father worked at United States Steel for a number of years, but is currently laid off. He is receiving unemployment benefits of $90 a week plus supplemental pay of $52 a week. He installs cable television for apartment complexes part time. His present wife is not employed.

There is no substantial evidence that the father is other than a fit and proper person to have custody of his • child. The wife herself testified that the boy’s father has done a good job raising the child. Joseph is in good physical and mental health and is at the top of his class in school. He participates in sports, attends Sunday School and church, and is in every way a well-mannered and well-adjusted child. Although the mother testified that when she went to pick up the child for visitation he was dirty and the knees of his trousers were torn, there was other testimony that these were the child’s play clothes. In addition there was evidence that at church arid school the child was always clean and well-groomed.

There was testimony that on one occasion the child contracted head lice, but it was shown that the child got the lice by trying on Halloween masks at a drug store. The child loves his father and has grown close to his sister and stepbrother. He has a good relationship with his stepmother and she treats him like one of her own. Both she-and the child’s father attend the child’s baseball games.

Based on all the evidence contained in the record, the trial court found that the best interests of the child would be served by his custody remaining with the father. Giving the court’s judgment the presumption it is due in eases of this kind, we cannot say that its judgment is palpably wrong or an abuse of discretion.

We would note that the wife did introduce a considerable amount of proof relating to problems she had encountered concerning visitation with her son, apparently to bolster her contention that she should have custody of her son.

This court has said, however, that disputes over visitation are not alone sufficient to require a change in custody. Pons v. Phillips, 406 So.2d 932 (Ala.Civ.App.), cert. denied, 406 So.2d 935 (Ala.1981). Visitation disputes can and should be resolved by the parents whenever possible; only after this fails should the courts be called on to resolve the dispute. Sain v. Sain, 426 So.2d 853 (Ala.Civ.App.1983).

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Ingrid Bugdoll MECHUR v. DIRECTOR, DEPARTMENT OF PUBLIC SAFETY, State of Alabama.
    Civ. 3962.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.

      George E. Trawick and Henry D. Bin-ford, Ariton, for appellant.
    Donald G. Tucker, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a driver’s license revocation case.

Appellant, Ingrid Bugdoll Mechur, was notified on February 11, 1983, that her driver’s license had been revoked for six months due to her receiving two convictions for driving under the influence of alcohol (DUI). Appellant requested an administrative hearing regarding the revocation of her license, which appellee, Director of the Alabama Department of Public Safety, subsequently denied. Appellant then filed a petition in the District Court of Dale County seeking to have the revocation set aside. The eburt granted appellee’s motion to dismiss. Subsequently, appellant filed a petition in the Circuit Court of Montgomery County seeking declaratory and mandamus relief. Appellant sought to have the revocation of her license declared null and void and have her license returned to her. Appellee then filed a motion to dismiss or in the alternative a motion for summary judgment. Without specifying the exact grounds upon which its decision was based, the circuit court granted appellee’s motion for summary judgment. Appellant appeals.

Appellant essentially makes two arguments: (1) that her constitutional right to due process was violated when she was denied an opportunity to challenge the validity of an alleged second conviction for DUI within a five-year period, and (2) that § 32-5A-195, Code of Alabama 1975 (Cum. Supp.1982) which authorizes the mandatory revocation is unconstitutional.

The due process clause clearly applies to the deprivation of a driver’s license by the state. Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). “Once licenses are issued ... their continued possession may become essential in the pursuit of a livelihood.” Taking away of issued licenses “thus involves state action that adjudicates important interests of the licenses,” and “are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971), citing Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). Constitutional restraints limit a state’s power to terminate an entitlement regardless of whether the entitlement is designated a “right” or a “privilege.” Id., citing Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Goldsmith v. United States Board of Tax Appeals, 270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494 (1926).

There is not an ironclad formula that satisfies due process requirements, for a “procedural rule that may satisfy due process in one context may not necessarily satisfy due process in every case.” Bell v. Burson, supra, 402 U.S. at 540, 91 S.Ct. at 590. The due process clause requires that a hearing be “meaningful,” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965), and “appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). In Bell v. Burson, supra, a case dealing with the deprivation of a driver’s license, the court opined that “[I]t is fundamental that except in emergency situations ... due process requires ... ‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” Id., citing Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971), Opp Cotton Mills v. Administrator, 312 U.S. 657, 61 S.Ct. 524, 85 L.Ed. 624 (1941).

Our inquiry then must be to ascertain what procedure is provided by Alabama statute and whether such procedure passes constitutional muster in light of Bell.

Currently, Alabama statutory law does not provide for either an administrative hearing or judicial appeal in cases of mandatory revocation of a driver’s license. Under prior statute in 1979, § 32-6-47, Code of Alabama 1975, a driver whose license has been cancelled, suspended or revoked had a right of judicial appeal under § 32-6-16 of the Code. However, § 32-6-16 was repealed in 1980 and replaced by the Alabama Rules of the Road Act, specifically § 32-5A-195, Code of Alabama (Cum. Supp.1982). Section 32-5A-195 currently provides an administrative hearing in cases of suspension of a driver’s license or a judicial appeal in cases of nonmandatory revocation.

The specific applicable provision of the Alabama Rules of the Road Act in the case at bar is § 32-5A-195(j), which provides that the Director of Public Safety,

“shall forthwith revoke the license of any driver upon receiving a record of such driver’s conviction of any of the following offenses: (3) Upon a second or subsequent conviction within a five-year period, of driving or being in actual physical control of any vehicle while under the influence of alcohol ... to a degree which renders him incapable of safely driving_” (Emphasis supplied.)

Alabama case law is commensurate with § 32-5A-195 in holding that the director’s duty is- mandatory and that in cases of mandatory revocation no administrative hearing or judicial appeal is afforded, but rather a writ of mandamus is the only available remedy.

Section 68, Title 36, Code of Alabama 1940, as amended, was essentially identical to the current statute, § 32-5A-195(j). The Alabama Supreme Court states in reference to § 68, Title 36, Code of Alabama 1940, that,

“When a person is convicted of driving a motor vehicle while intoxicated and such conviction becomes final, it is the mandatory duty of the Director of Public Safety to forthwith revoke his driver’s license. ... No discretion on the part of the Director of Public Safety is involved. His action is purely administrative so far as mandatory revocations are concerned.... Anything said to the contrary ... is disapproved.” (Emphasis supplied.)

May v. Lingo, 277 Ala. 92, 94, 167 So.2d 267, 268 (1964). See also, Director of Department of Public Safety v. Moore, 54 Ala.App. 351, 308 So.2d 711 (1975).

The case does not “involve an appeal from conviction of driving [under the influence], but is an attempt to review the revocation of the driver’s privileges. There is no provision in the statute and such a proceeding is wholly without, authority of law.” Kelley v. Lingo, 280 Ala. 128, 130, 190 So.2d 683, 685 (1966). Any action for review cannot be by appeal or petition for hearing, but rather can only be by petition for mandamus, Director of Department of Public Safety v. Moore, supra, and such petition must be filed in the Circuit Court of Montgomery County. Kelley v. Lingo, supra.

Appellant properly filed a petition for declaratory and mandamus relief in the Circuit Court of Montgomery County. We must look to determine if present Alabama law passes constitutional muster in light of Bell v. Burson, supra.

As previously noted the Court in Bell stated that due process requires that a state seeking to terminate a driver’s license afford an opportunity for notice and hearing before the termination becomes effective, except in an emergency situation. Though Alabama law, as noted earlier, does not currently afford such an opportunity prior to the mandatory revocation taking effect, the statute is not unconstitutional.

Bell is distinguishable from the case at bar in that the purpose of the Alabama statute differs significantly from the Georgia statute in Bell and would thus come under the exception recognized in Bell. The purpose of the Georgia statute was to ensure financial responsibility in the event of a driver being deemed liable for a vehicular accident. While the purpose of the Georgia statute is laudable, it does not have the pressing and urgent purpose that the Alabama statute has. Alabama’s law seeks to remove as quickly as possible any driver identified to be a life-threatening hazard on the road. We need only consider the overwhelming number of alcohol-related accidents, injuries and deaths that occur each year to recognize the important governmental interest and very strong public interest in promptly removing such persons from the highway. See, Broughton v. Warren, 281 A.2d 625 (Del.Ch.1971); 60 A.L.R.3d 361 (1974); 7 Am.Jur.2d Automobiles and Highway Traffic, § 112 (1980). The purpose of a statute such as § 32-5A-195 is not to punish the driver but to protect the public. The fundamental issue presented by the legislative scheme is whether the licensee has been driving on the highway while under the influence of intoxicating liquor. The showing of convictions for doing so establishes the necessity for the immediate removal of his driving privileges. Thus, in our opinion, the emergency exception in Bell is established.

The driver convicted of driving intoxicated is presumed to have had a hearing upon the critical issue of whether he was intoxicated. The hearing was with notice and opportunity. If such hearing was not held as provided by law, there was available a remedy by appeal under statute. Therefore the only issue remaining is to connect the person whose license is revoked to the record of conviction on which the Director bases the revocation. Mistaken identity or some error on the certificate of conviction may be presented to the director and would provide reason nol; to revoke.

Should the director refuse to act in such case, the courts of this state have provided the remedy of mandamus. May v. Lingo, supra. A three judge panel in the United States District Court of Alabama, Northern District, opinion by Chief District Judge Johnson, held in the case of Rader v. Dothard, 434 F.Supp. 688 (1977), that in such cases, the revoked driver “has had a complete and constitutionally adequate hearing on the basis for the revocation (i.e. whether plaintiff operated a motor vehicle while he was intoxicated).” The court further said, “The additional safeguard provided by the mandamus action is ‘icing on the cake.’ ” Rader v. Dothard, at 690.

Having noted the availability of petition for mandamus against the Director, we now note the issues which may be presented therein. The supreme court reviewed and reversed on appeal the denial of a petition for mandamus against the Director in May v. Lingo, supra. The basis for seeking mandamus was that a conviction upon which the Director acted to revoke a driver’s license was invalid. Presumably, such review collaterally by mandamus of a judgment of conviction is permissible if it is alleged that the conviction is invalid or void. Such is contended to be the case in the present petition for relief by mandamus. Therefore, we find the Circuit Court of Montgomery County to have erred in granting the motion to dismiss or enter summary judgment.

We further consider that petitioner could properly raise the issue of the constitutionality of § 32-5A-195 in the petition for mandamus or declaratory judgment. We consider the trial court to have erred in entering summary judgment or dismissing on that issue.

Though it may be considered that we have already spoken to the constitutional issue, we nevertheless reverse the judgment below and remand for consideration of the contention that one of the convictions upon which the Director acted to revoke petitioner’s driver’s license was invalid or void, thereby requiring the revocation to be set aside.

REYERSEDi AND REMANDED WITH DIRECTION.

BRADLEY and ■ HOLMES, JJ., concur.


text:
    Vernon GOMILLION v. WHATLEY SUPPLY COMPANY.
    Civ. 4009.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.
    Steve Sansom of Prestwood, Prestwood & Grissett, Andalusia, for appellant.
    L. Merrill Shirley, Elba, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal is from a circuit court judgment which dismissed the defendant’s appeal from a final judgment of the district court.

After the district court had granted the plaintiff’s motion for a summary judgment and had rendered judgment against the defendant for $3,294, the defendant timely filed his notice of appeal to the circuit court and paid the fee for docketing an appeal from the district court to the circuit court. However, the defendant did not file any bond for costs. The plaintiff filed a motion to dismiss this appeal for lack of such cost bond, and the circuit court dismissed the defendant’s appeal on that ground.

The defendant had represented himself in the district court and in the circuit court, until an appeal was taken on his behalf to this court. The authorities cited to us by learned counsel for the defendant are Scott v. Kimerling, 417 So.2d 204 (Ala.Civ.App.1982) and Opinion Number 16 of the Clerk of the Supreme Court, 362 So.2d 1259 (Ala.1978). However, neither of those decisions really determined whether a bond for costs is required in order to perfect a civil appeal to the circuit court from a district court final judgment.

We affirm upon the authority of Hardeman v. Mayfield, 429 So.2d 1097 (Ala.Civ.App.1983); Hand v. Thornburg, 425 So.2d 467 (Ala.Civ.App.1982) and Rule 62(dc)(5) of the Alabama Rules of Civil Procedure together with the committee comments as to that rule. The Hand case held that the three requisites for the taking of an appeal in civil cases from the district court to the circuit court are the timely giving of a notice of appeal, the payment of the docket fee for the new filing in the circuit court and the filing of a bond for costs. The supreme court denied certiorari in that case. We will not burden this decision by quoting from or summarizing the Harde-man opinion; however, we emphasize that the present case is on all fours with Hardeman.

The judgment of the'circuit court is affirmed.

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.

AFFIRMED.

All the Judges concur.

      . A docket fee may be waived initially because of substantial hardship if the appellant signs a verified statement and court approval is obtained. § 12-19-70(b), Code of Alabama 1975. An affidavit of substantial hardship, if approved by the trial court, may substitute for a bond for costs. Rule 62(dc)(5), A.R.Civ.P.


text:
    Tommie Findley JONES v. Robert Lamar JONES.
    Civ. 4015.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.
    John T. Kirk, Montgomery, for appellant.
    Frank W. Riggs of Riggs, Nesmith & Halstrom, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce decree modification case.

The parties were divorced in October of 1982. An agreement was entered into regarding a division of property, child support and alimony. This agreement was incorporated into the decree of divorce.

In January of 1983, approximately four months after the divorce decree was entered, the wife petitioned the trial court to set aside the divorce decree or in the alternative to modify the divorce decree. After an ore terms hearing, the trial court denied the relief sought. The wife, through able counsel, appeals and we affirm.

The wife in brief presents three issues. One issue raises the question of whether certain benefits awarded the wife are alimony in gross awards or periodic alimony. Another issue is presented in the abstract and relates to military retirement benefits as a source of income from which periodic alimony may be awarded. The third issue, in view of the issues as raised and presented in brief, is dispositive of the appeal.

The dispositive issue whether the evidence supports a conclusion that there has been no material change in circumstances since the October divorce decree to justify a modification.

We note at this point that, for purposes of the proper disposition of this appeal, we will assume the provision of the decree attempted to be modified is in fact modifiable. Put another way, we will assume the award in question to be periodic alimony.

We do not deem it necessary to set out ■the evidence regarding changed circumstances. In fact, there is little if any evidence regarding changed circumstances occurring since the divorce decree.

The following is appropriate and disposi-tive.

In this state a trial court may modify an award of alimony in a divorce decree upon a showing of the changed circumstances of one or both of the parties. The trial court has wide discretion in such matters and its decision will not be reversed on appeal absent a plain and palpable abuse of discretion. Taylor v. Taylor, 369 So.2d 1240 (Ala.Civ.App.1978), cert. denied, 369 So.2d 1243 (Ala.1979). To support a modification of a divorce decree, the changed circumstances must be a material change in the financial status of the parties. Furthermore, where the decree was based upon an agreement between the parties, as in the case at bar, that decree should not be modified except for clear and sufficient reasons. The burden of establishing the conditions necessitating a modification of the decree rests upon the moving party. Taylor v. Taylor, 369 So.2d 1240 (Ala.Civ.App.1978), cert. denied, 369 So.2d 1243 (Ala.1979).

In the instant case, we find the burden was not met and the trial court is due to be affirmed.

AFFIRMED.

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


text:
    (In the matter of William CALHOUN, a child under eighteen years of age). Ex parte the DEPARTMENT OF MENTAL HEALTH OF the STATE of Alabama.
    Civ. 4022.
    Court of Civil Appeals of Alabama.
    Feb. 1, 1984.

      G.R. Trawick and Bruce Maddox, Asst. Attys. Gen., for Dept, of Mental Health.
    Mary Lee Stapp, and James E. Long, Asst. Attys. Gen., for Dept, of Pensions and Sec.
   BRADLEY, Judge.

This is a petition for writ of mandamus to be issued from this court directing the Honorable William D. McFatter, District Court Judge of the Juvenile Court of Houston County, to set aside his orders requiring the Alabama Department of Mental Health to continue legal custody and to provide certain social services and child welfare services to William Calhoun after his discharge from the Eufaula Adolescent Adjustment Center, a facility operated by the Alabama Department of Mental Health.

In January 1975, in response to a petition by the Alabama Department of Pensions and Security (DPS), the Juvenile Court of Houston County declared William Calhoun to be a dependent child and placed custody with DPS; whereas, in 1982, DPS petitioned the juvenile court to have William Calhoun committed to the Department of Mental Health for treatment at the Eufau-la Adolescent Adjustment Center. Prior to the final hearing on the petition, the Department of Mental Health, pursuant to section 12-15-90(d)(3), Code 1975, notified the Juvenile Court of Houston County that if William Calhoun was committed to the Department of Mental Health he should be sent to Searcy Hospital, a facility operated by the Department of Mental Health, for evaluation to determine his appropriateness for treatment at the Eufaula Adolescent Adjustment Center. By written order dated November 8, 1982, the Juvenile Court of Houston County declared William Calhoun to be “dependent and in need of supervision and a ward of the State of Alabama” and ordered him committed to the Department of Mental Health for evaluation and treatment at the Eufaula Adolescent Adjustment Center.”

Subsequent to said order, William Calhoun was admitted to Searcy Hospital on January 7, 1983 for evaluation. By letter dated February 8, 1983, Searcy Hospital informed the Juvenile Judge of Houston County that the psychiatric evaluation indicated “no evidence of a disorder of his form of thinking” and that his “[intelligence appeared to be in the dull average range.”

On April 29, 1983 the Honorable Judy A. Newcomb, guardian ad litem for William Calhoun, filed a written motion in the juvenile court alleging that William Calhoun would be discharged from the Eufaula Adolescent Adjustment Center on May 7, 1983, and requested that “a comprehensive plan of treatment and rehabilitation be determined by the Court to secure Mr. Calhoun his right of treatment and rehabilitation which are guaranteed to him by the United States Constitution and the Code of Alabama.” In response to this motion, the Department of Mental Health reassessed the decision to discharge Mr. Calhoun.

On or about August 19,1983 the judge of the Juvenile Court of Houston County issued a verbal order transferring the physical custody of William Calhoun to his brother Edward Calhoun and to the guardian ad litem, Judy A. Newcomb. The judge issued a written order on August 19, 1983 to Mental Health to file an in depth treatment plan for Calhoun pending a final disposition of the matter. In response to this order, Mental Health filed a postrelease plan with the court.

On September 9, 1983 Mental Health discharged William Calhoun to the custody of his brother Edward.

After September 9, 1983 several verbal orders were issued to Mental Health concerning the legal custody of William and directing that a plan for certain services to be provided for William by Mental Health be submitted to the court.

On September 26, 1983 the guardian ad litem filed a motion with the juvenile court asking for a hearing on the interim placement of William pending a final disposition of his case. On September 27, 1983 the juvenile court issued a written order setting the matter for hearing “on Wednesday, October 5, 1983 at 8:30 a.m. and every Wednesday thereafter until a satisfactory disposition is made in regard to the said William Calhoun.”

The first issue presented is whether the petition for the writ of mandamus is properly taken to this court. Rule 28 of the Alabama Rules of Juvenile Procedure appears to be applicable in this case. Rule 28 states in pertinent part that:

“(C) In cases arising out of the jurisdiction of the juvenile court over a child, appeal from a final order, judgment or decree shall be:
“(2) To the Court of Civil Appeals in the following cases:
“(c) Proceedings to determine custody or to appoint a legal custodian when the child is otherwise before the juvenile court;
“(e) Proceedings for the commitment of a mentally ill or mentally retarded child.”

Before March 1, 1982 an appeal from the juvenile court was to the circuit court because juvenile proceedings were not recorded; therefore, a trial' de novo was necessary so that a record could be prepared for appeal.

However, rule 20 of the A.R.J.P. now requires a complete record of all testimony in juvenile proceedings. Consequently, rule 20 in conjunction with rule 28, A.R. J.P., makes appeal to the circuit court before appeal to this court unnecessary. Hence, this action is properly before this court.

The next issue for consideration is whether the district court’s verbal orders are valid. Section 12-12-2, Code 1975, provides that the district court is a court of record. Courts of record have been defined as courts whose proceedings are perpetuated in writing. Black’s Law Dictionary 425 (rev. 4th ed. 1968). Additionally, section 12-15-2 provides that the circuit and district courts shall exercise original concurrent juvenile jurisdiction sitting as the juvenile court. Hence, since the district court is a court of record and the juvenile court is part of the district court, the juvenile court must also record its proceedings. Further, section 12-15-2, Code 1975, part (b), provides that all orders and decrees of the juvenile court shall be entered in a separate minute book from the district or circuit courts’ books.

The verbal order issued by the juvenile court on August 19, 1983 placing physical custody of William in his brother Edward and the guardian ad litem is clearly invalid as are the verbal orders issued by the court between September 9, 1983 and September 26, 1983 relating to the legal custody of William and the requirement that a plan for furnishing certain services to William be given to the court.

Absent the verbal orders issued by the court, there is presently pending before the juvenile court a motion by the guardian ad litem to require Mental Health to submit a comprehensive plan for treatment and rehabilitation of William and also a motion for a hearing on the interim placement of William pending a final disposition of his case.

In response to these motions, the juvenile court has issued a written order setting the matter for hearing on Wednesday, October 5, 1983, and every Wednesday thereafter until the matter can be decided. The court will necessarily have to reschedule its hearings on these motions.

^At the hearings scheduled by the juvenile court, Mental Health will have an opportunity to present to the court its views on the authority of the court to require it to retain legal custody of William Calhoun and to furnish the court a plan for treating and rehabilitating him.

Should the court decide that Mental Health does have legal custody of William and must continue giving him treatment in accordance with the court’s directions, Mental Health can appeal to this court and have those issues reviewed. Again, these decisions must be in writing.

As the case now stands before the juvenile court, no final decision has been made about the legal custody of William Calhoun nor has a final decision been made concerning the treatment he should be given and who or what agency should be required to provide that treatment. The relief requested here by Mental Health is therefore premature.

WRIT DENIED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Larry Richard PHILLIPS v. STATE.
    6 Div. 47.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied Jan. 10, 1984.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-426.
    Certiorari Denied June 18, 1984.
    See 104 S.Ct. 3541.

      Harold P. Knight, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence to imprisonment for fifteen years on a jury trial, in which the jury found defendant guilty of theft in the first degree as charged in an indictment in which defendant was alleged to have “knowingly obtained or exerted unauthorized control over the 1982 Freight-liner truck, Serial Number: IDUPY-DYB3CH208084, the property of Owel Newman, of the value of an amount in excess of $1,000.00, with the intent to deprive the owner of said property, in violation of § 13A-8-3 of the Code of Alabama.” Code of Alabama 1975, § 13A-8-3 provides:

“(a) The theft of property which exceeds $1,000.00 in value, or property of any value taken from the person of another, constitutes theft of property in the first degree.
“(b) The theft of a motor vehicle, regardless of its value, constitutes theft of property in the first degree.
“(c) Theft of property in the first degree is a Class B felony.”

Under the heading in his brief of “ISSUES PRESENTED FOR REVIEW” appellant enumerates and sets forth ten separate issues. Appellee’s brief contains a restatement of what it deems to be the issues presented and by doing so enumerates eight issues. Perhaps the difference between the parties as to the number of issues presented on appeal is due, partly at least, to the fact that some of the issues presented and separately treated in appellant’s brief, are jointly treated in appel-lee’s brief. Furthermore, appellant contends that there was a material variance between the indictment and the proof as to the number and ownership of the “Freight-liner truck,” but he makes no contention that the evidence in the case was not sufficient to present a jury issue as to the defendant’s guilt of theft in the first degree of a “Freightliner truck.”

Although appellant’s brief contains a two-page statement under the caption “STATEMENT OF THE FACTS,” the brief does not contain a recital of the evidence bearing on the question of defendant’s guilt or innocence of theft in the first degree of a Freightliner truck in the manner charged in the indictment. Therefore, we think it unnecessary for us to summarize such evidence as to that question. We limit our references to the evidence to the portions thereof that pertain to the specific issues raised on appeal, which we now proceed to define and determine.

I.

The undisputed evidence shows that on May 22, 1982, a Freightliner truck was missing from the place of business maintained by its owner in Fayette County and that on May 25, 1982, parts of it were discovered in Walker County while they were on the premises owned by defendant. Law enforcement authorities of both Fa-yette and Walker County participated in. the search of the premises that resulted in the discovery and seizure of some of said truck parts. No warrant was issued for the search.

Defendant operated a “shop” on the premises owned by him. The premises owned by him were adjacent to the home and premises of his father. Law enforcement authorities had obtained information to the effect that some of the parts of the missing Freightliner truck were on or about the premises searched. At the time of the search, the defendant and his brother were working on a truck. At that time, there were other trucks and truck parts on or about the same premises. Before any search was conducted, one of the officers had seen defendant’s father, whom the officer had known for many years, while defendant’s father was driving down the road near his home. This officer testified:

“Mr. Phillips stopped and I advised him of the nature of our business there and asked him for consent to search his property for any stolen trucks to which Mr. Phillips consented.
“Q. All right. Tell us exactly what was said, if you would.
“A. I just told him that the Fayette County officers had received information that there was some stolen trucks.
“A. I advised Mr. Phillips that we wanted to search his property.
“Q. For stolen property?
“A. Yes, sir.
“Q. All right. What did he say to you?
“A. He said yes I could search his property.
“Q. All right. Did you then go on to his property?
“A. I did, yes, sir.
“I got out of my car, walked up toward the shop where I could see Larry Phillips or Richard and he was by the front of the truck and was working on the bumper of the truck or something and I advised Richard as to what my presence there was that I was there to search the property for some stolen property and was doing so at the consent of his father, Mr. Phillips.
“Q. Did he say anything to you?
“A. He said okay.
“Q. He said okay?
“A. Yes, sir.”

Counsel for both parties on appeal cite authorities in support of their respective positions as to whether the warrantless search was in violation of defendant’s constitutional right to security “against unreasonable searches and seizures.” In none of the cases cited were the facts so nearly the same as the facts in the instant case that we can say that it is dispositive of the issue now presented. Even though neither the consent of defendant’s father nor the “okay” uttered by defendant rendered the search valid, we think that, when considered together under all of the circumstances existing in the instant case, they are sufficient to establish the validity of the search.

“... The colloquial expression ‘O.K.’ or ‘Okay’ means ‘correct, “all right”, to approve.’ Websters New International Dictionary. The expression ‘O.K.’ or ‘Okay’ is of such common usage that it immediately conveys to the mind of the person to whom it is addressed that a proposition submitted is agreed to. The evidence regardless of its probative effect, was sufficient to convey to the jury the question of whether or not a contract was entered into." Muegler v. Crosthwait, Mo.App. 179 S.W.2d 761, 763 (1944).

Appellant endeavors to fortify his position by citations of and quotations from authoritative cases to the effect that in relying upon consent to an otherwise invalid search and seizure, the State has the burden of proving clearly, unequivocally and convincingly that consent was voluntarily given and that the claimed consent was not merely acquiescence. The latest Alabama case cited by appellant is Lietz v. State, 291 Ala. 133, 135, 279 So.2d 116, 117 (1973), in which it is stated:

“Consent to an otherwise illegal search must be clearly, unequivocally and convincingly proven. The courts will not lightly presume waiver of fundamental rights. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Knox v. State, 42 Ala.App. 578, 172 So.2d 787 (1964).
“The record in the instant case not only fails to expressly establish consent but clearly shows that the search was against the will of the defendant.”

We recognize the quoted principle as controlling. In our endeavor to follow it, we note that the facts in that case are materially different from the facts presented in this case, particularly so in the outstanding fact in the cited case that there was not even acquiescence in the search but an unequivocal declaration by defendant that the officer could not go into defendant’s house, and that in the case under consideration there was no protest by word or action of defendant or anyone else against the search.

The most nearly similar case, in one respect only, to the present case, but dissimilar in one material respect, cited by appellant, is United States v. Marra, 40 F.2d 271 (D.C.1930), in which it is stated:

“Under the facts in this case, I find that there was no invitation given by the defendant Sam Marra to the prohibition officers to search his premises. The statement of the officers to the defendant, on presenting themselves at the door, that they were prohibition officers and were going to inspect the premises, and the reply of the defendant, ‘All right,’ might be said to be acquiescence, but under the circumstances did not amount to an invitation to enter and search. In re, Lobosco (D.C.) 11 F.(2d) 892; United States v. Kozan (D.C.) 37 F.2d 415 at page 418.”

According to the court reporter’s transcript of the evidence herein, the defendant’s father was the owner of a large amount of contiguous acreage on which a brick home was maintained by him and his wife, who, about eight years before the prosecution herein commenced, deeded approximately nine acres to defendant and defendant’s wife, which consisted of almost a perfect square of land on which a shop of defendant was erected. The boundary line between the defendant and his wife and the property of defendant’s father was not readily discernible. Apparently, there was no effort upon the part of any of the immediate family of either to keep any of the others from crossing the boundary line. There were trucks and parts of trucks mostly on the land of defendant, it seems, but not so placed thereon as to distinguish the ownership or proprietorship of his land from the land of defendant’s father. The defendant did not live on any of this land. There was some evidence to the effect that he and his wife planned to move thereon, but they had not done so. Of some interest perhaps, but not of great significance, is the fact that after the prosecution against this appellant and others referred to in the transcript as co-defendants, but not included in the indictment in this case (one, at least, of which co-defendants was a brother of this appellant) this appellant and his wife executed a deed by which they (Jeeded the mentioned nine acres of land back to this appellant’s father. The father testified that this was not a gift to the father but that the father paid legal and valuable consideration therefor. The conduct of the officers involved was not of a highhanded or oppressive nature. There is nothing to indicate that, if defendant had let the officers know that he refused to allow them to search the premises, they would have remained on the premises any longer. A mere acquiescence, as distinguished from a voluntary consent on the part of this appellant, is not warranted by the evidence. The evidence as a whole shows defendant’s voluntary consent clearly, unequivocally, and convincingly. There was no violation of defendant’s constitutional right to security against an unreasonable search and seizure, and the trial court was correct in overruling defendant’s motion to suppress the evidence as to what the officers found on the premises.

li-

Another contention of appellant is that there was a material variance between the description of the 1982 Freightliner truck and the evidence as to the description of the 1982 Freightliner truck that was allegedly stolen, in that the serial number stated in the indictment was: “IDUPY-DYB3CH208084” while the evidence shows that the serial number of said truck was “IFUPYDYB3CH208084.” Either by microscopic aid or 20/20 vision, the only difference to be found is in the second capital letter of the serial number description. In commenting on the claimed variance as a ground for a motion for a judgment of acquittal, the trial court said:

“It is obvious, as to the serial number in the indictment, that this is a typographical error and that all 14 out of 15 of the numbers are correct and it would appear that probably the last four numbers are the important numbers which designate a particular automobile or motor vehicle. The last four or five.
“So, your Motion should be denied as to that ground.”

We agree with the ruling of the trial court that there was no material variance between the indictment and the evidence as to the description of the truck. A variance is not a material variance unless it misleads the accused or is substantially injurious to him in making his defense. Coker v. State, Ala.Cr.App., 396 So.2d 1094, 1096 (1981); Tyson v. State, Ala.Cr.App., 361 So.2d 1182 (1978). The transcript fails to disclose any basis for a reasonable contention that the claimed variance misled the defendant or was substantially injurious to him in making his defense.

III.

The indictment alleged that the truck was “the property of Owel Newman.” According to the testimony of Mr. Newman, the truck was owned by a corporation by the name of N and N Trucking, Inc. The corporation had only two stockholders, who were Mr. Newman and Mr. Newman’s wife; Mr. Newman was president and Mrs. Newman was vice president and secretary-treasurer.

Some Alabama cases are cited in appellant’s brief in which it was held that a material variance existed between the allegations in the indictment as to ownership of property in larceny cases and the evidence as to ownership, but in none of the cited cases were the material facts so similar to the facts in this case that the conclusion reached therein should be applied herein. In appellee’s brief, reliance is placed upon Montgomery v. State, 169 Ala. 12, 53 So. 991 (1910); Hobbie v. State, Ala.Cr.App., 365 So.2d 685 (1978); and Baldwin v. State, Ala.Cr.App., 380 So.2d 388 (1980), but in each of said cases, the indictment charged a robbery, not larceny or theft, and the cases would be distinguishable from larceny cases and cases for theft, unless the indictment expressly charges theft of property “taken from the person of another,” as now proscribed by Alabama Criminal Code, § 13A-8-3(a). Substantially the same issue now under consideration has been previously decided adversely to appellant herein in Coker v. State, Ala.Cr.App., 396 So.2d 1094, 1096 (1981), wherein it is stated:

“Appellant asserts that the indictment improperly placed ownership of one stolen television set in Melvin Reynolds when, in fact, Reynolds’ testimony proved that it belonged to his mother, Evelyn Hamm. At trial Reynolds testified that he had bought the television set in question for his mother approximately one year prior to its theft. However, Reynolds’ testimony proved that, although the television was owned by his mother, it was nevertheless within his possession and was located in his bedroom at the time it was stolen.
“Section 13A-8-l(l),' Code of Ala.1975 (Amended 1979), defines an owner as ‘[a] person, other than the defendant, who has possession of or any other interest in the property involved, even though that interest or possession is unlawful, and without whose consent the defendant has no authority to exert control over the property.’ ... In’this regard the new criminal code definition of owner makes no change from our former rulings. See Mauldin v. State, Ala.Cr.App., 376 So.2d 788, cert. denied, Ala., 376 So.2d 793 (1979). Therefore, the trial court properly overruled the appellant’s motion to exclude on that ground.”

IV.

On the back of what purports to be a photocopy of the indictment herein is the following printed information:

Immediately under the above is the following printed statement:

The blank for the amount of the bond has been filled in by ink handwriting with the amount of $25,000.00, and in the second blank line is the signature of the judge who presided at the trial of the case.

Appellant takes the position that the indictment fails to show a compliance with the following provision of Code 1975, § 15-8-70:

“All indictments must' be presented to the court by the foreman of the grand jury in the presence of at least 11 other jurors, must be endorsed ‘filed’ and must have the endorsement dated and signed by the clerk; ....”

We agree. However, we fail to find that this particular point was brought to the attention of the trial court. In holding, as we do, that this particular issue presented by appellant is not well taken, we follow what was said by Justice H.M. Somerville in Jackson v. State, 74 Ala. 26, 29 (1883):

“Numerous objections of the foregoing character, going to the genuineness of the indictment as a court record, can not be interposed in this court for the first time. They should be raised in the court below, before pleading to the merits of the case, by timely motion to quash, or to strike the paper from the files. This course is not shown to have been pursued. Sparrenberger’s case, 53 Ala. 481 [25 Am.Rep. 643]; Clarkson’s case, 3 Ala. 378; Nixon’s case, 68 Ala. 535.”

V.

Under the heading of a single enumerated issue presented by appellant, he groups some contentions to the effect that the trial court erred in overruling defendant’s objections to several items of evidence, or motions to exclude such evidence, on the ground that it constituted hearsay testimony. Some of the items are found during the direct examination of Mr. Newman as follows:

“... Mr. Newman, did you receive information as to where your truck was?
“MR. PARKER: We object to that as hearsay.
“A. Yes, sir.
“MR. PARKER: We move to exclude that answer. That would involve hearsay also.
“THE COURT: Overruled.
“Q. How did you receive this information, Mr. Newman?
“MR. PARKER: We object and assign Constitutional grounds at this point and hearsay also.
“THE COURT: What Constitutional ground?
“MR. PARKER: The Fourth Amendment of the United States Constitution and the Alabama Constitution, I forget the number right off hand.
“THE COURT: Are you asking him how he got this information?
“MR. JOHNSTON: How he received the information.
“THE WITNESS: Phone call.
“THE COURT: Overruled.
“Q. Do you know who it was that called you?
“A. No, sir.
“Q. So, as far as you know, the person that told you where your trucks were is not identifiable by you?
“A. Right.
“Q. Now, just hold up on this answer. Did they tell you where the trucks were?
“MR. PARKER: Object to hearsay and we ask that the witness not respond until the Court rules on my objection.
“THE COURT: I’m going to sustain that.
“MR. PARKER: We move to ask the jury not — he did his head up and down.
“THE COURT: The jury should disregard the answer to the last question. Motion to exclude is granted.
“Q. When did you receive the call, Mr. Newman?
“A. On May 25.
“Q. Do you remember what day of the week?
“A. Tuesday.
“Q. Tuesday?
“A. Tuesday morning.
“Q. And, as a result of that call, have you been able to locate your trucks?
“MR. PARKER: We again object, Judge. This is some sort of procedure that is getting into what I’m objecting to and it applies to identification subsequent to the time he lost the truck.
“THE COURT: I overrule. You can answer.
“Q. As a result of this call, did you find your truck.
“A. Yes, sir.
“MR. PARKER: I ask it, again. I have to object again and say the same grounds.
“THE COURT: Overruled.
“Q. You did?
“A. I did find the truck.
“Q. Where did you find it?
“MR. PARKER: We object and assign the same grounds that it invades our Constitutional rights and it is prejudicial, if Your Honor please.
“THE COURT: I am going to sustain and, I think, probably, you need to, at this point, take up another matter before you go further.”

Promptly thereafter, the jury was excused from the hearing for a rather lengthy period, in response to the statement of the judge:

“Members of the jury, we need to excuse ourselves and take this up outside your presence.”

From this point, on page 30 of the transcript until page 62 of the transcript, testimony was taken and a hearing was conducted out of the presence of the jury, pertaining to the question as to whether defendant’s Fourth Amendment right to security against unreasonable searches and seizures had been violated. It is to be noted from the quoted portion of the direct examination of Mr. Newman, that the trial court definitely ruled for the defendant as to some of the testimony of the witness that could be considered hearsay testimony. Some of defendant’s objections and motions were overruled; some were sustained. We are unable to conclude that there was any error prejudicial to defendant during any of the direct testimony of Mr. Newman quoted above. We have quoted all of Mr. Newman’s testimony that is to be found on page 29 of the transcript, which is the only page to which specific reference is made in appellant’s brief as to any testimony of Mr. Newman that appellant challenges as hearsay.

Appellant also contends that during the testimony of two other witnesses for the State the trial court erroneously admitted “hearsay testimony ... prejudicial to the defendant.” The witnesses were Deputy Vernon Hudson, Jr., of the Fayette County Sheriff’s Department and Deputy Joel Guthrie, of the Walker County Sheriff’s Department. During the direct examination of Deputy Hudson, the following occurred:

“Q. Tell the jury, if you will, how you were first contacted to conduct that investigation.
“A. Mr. Newman called and advised us he had information—
“MR. PARKER: Judge, we object to hearsay.
“THE COURT: Overruled. He’s not offering the truth of it, just the sequence of events.
“A. He called and said he had information where his trucks was and he told us the location of where he thought they might be and me and Trooper Elliot proceeded to that location.
“Q. All right. Was there a conversation between Mr. Hershel Phillips there and Joel Guthrie?
“A. Yes, sir.
“Q. Could you hear what was said?
“A. No, sir, I talked to Mr. Guthrie and advised him—
“MR. PARKER: We object to hearsay.
“MR. JOHNSTON: What he said is not hearsay, Your Honor.
“A. I talked with Mr. Guthrie—
“MR. PARKER: We would like a ruling on that, if it please the Court.
“THE COURT: Overruled, if he’s going to say what he said.
“MR. PARKER: We object to that as a part of a hearsay conversation.
“THE COURT: Overruled.
“A. I talked to Mr. Guthrie and advised him of what the situation was because he was a deputy in Walker County and we was going to need his assistance. Okay. When I talked to him, I told him that about the trucks, that we had information that the trucks was there and that we thought about getting a search warrant and he said, ‘There’s no use in that, let me talk to Mr. Phillips. I believe we can get permission.’ I said, ‘All right.’ He went over there and talked to him and come back and said, ‘Mr. Phillips—
“MR. KNIGHT: Your Honor, I object to what somebody came back and said to this man as being hearsay.
“THE COURT: I sustain.
“MR. PARKER: We move to exclude his entire testimony of that conversation.
“THE COURT: Overruled. The motion is denied.”

During the direct examination of Deputy Guthrie, the following occurred:

“Q. Did you receive a call to assist some Fayette County officers in an investigation of an alleged theft on that day?
“A. Yes, sir, I did.
“Q. Tell the jury, if you would, please, sir, how you received the call and what you did in response to the call.
“A. I was advised by Sheriff Trotter—
“MR. PARKER: We object to hearsay.
“THE COURT: I overrule.
“Q. Go ahead.
“A. Advised by Sheriff Trotter to proceed to the Walker and Fayette County line on Highway 102 to meet with the Fayette County Sheriff’s Department officers. I met with the officers near Hershel Phillips’ residence on 102. I was advised—
“MR. PARKER: We object, again, to hearsay that he’s about to say.
“MR. JOHNSTON: I might point out to the Court that that conversation is already in the record.
“THE COURT: It’s hearsay, but I don’t think it’s inadmissible hearsay. It’s a sequence of events not being offered, as I understand it, for the truth of anything, merely to show what happened. I overrule.
“Q. You may go ahead, sir.
“A. I met Chief Deputy Billy Lay and Deputy Hudson there and they advised me they had received information that there was some stolen truck on the Phillips’ property. And, I asked the officers did they have a search warrant and they said no and shortly after this Mr. Hershel Phillips came down the road and I flagged him down.
“MR. PARKER: We object to any hearsay as to conversations with Mr. Hershel Phillips.
“THE COURT: Overrule.
“A. Mr. Phillips stopped and I advised him of the nature of our business there and asked him for consent to search his property for any stolen truck, to which Mr. Phillips consented.
“Q. All right, tell us exactly what was said, if you could.
“MR. PARKER: We object to the hearsay and, secondly, that is not probative. It’s not evidence that is material to the indictment in this case.
“THE COURT: Overruled.
“Q. Go ahead.
“A. I just told him that Fayette County officers had received information that there was some stolen trucks.
“THE COURT: Excuse me, let me interrupt. Don’t go about it in that manner. I’m in effect sustaining the objection to talking about the property and so forth. Just talk about the search and what you’re going to do there. The jury should disregard this particular statement he just made.
“Q. I advised Mr. Phillips that we wanted to search his property.
“Q. For stolen property?
“A. Yes, sir.
“Q. All right. What did he say to you?
“MR. PARKER: We object to hearsay and it’s not material. It’s not relevant under this indictment.
“THE COURT: Overruled.
“A. He said yes I could search his property.”

The numerous objections interposed by defendant to the testimony of officers as to what was said among themselves and as to what was said by defendant’s father to them when they met defendant’s father in the road “near Mr. Phillips’ residence” were apparently addressed to anything and everything said by the officers or by Mr. Phillips. By specific reference in appellant’s brief to the statements made by Mr. Phillips to the officers, appellant urges that his statement also, all of it, constituted inadmissible hearsay testimony. We are thereby somewhat placed in the position of the Supreme Court of Alabama in the case of Fontaine v. Beers, 19 Ala. 722 (1851), which involved an appeal from a judgment on an execution by officers of an ancillary attachment upon a seagoing vessel, in which it was held, per Justice Chilton, at 19 Ala. 728:

“The authorities, generally, agree that the declarations of one in possession of either real or personal property, explanatory of the possession, may be received as evidence, since they constitute a part of the res gestae; but declarations explanatory of past transactions, or as to the mode in which title was acquired or is held by a third person, not explanatory of the possession, are disallowed. According to this rule, a portion of the proof which the court was asked to exclude was indisputably legal, and if it were conceded that other portions were not, still as the objection applied to the whole, the court properly overruled the motion to exclude it. It is settled that it is not the duty of the court, in such cases, to distinguish and separate that portion which is legal from that which is not; but it may refuse such general motion to exclude the whole. — Borland v. Walker, et al., 7 Ala. 269; Donnell v. Jones, 13 Ala. 490 [48 Am.Dec. 59]. It is unnecessary, therefore, for us to criticize the evidence and to decide what portion, if any of it, was illegal.”

In our opinion, there was no error prejudicial to defendant in any of the rulings of the trial court on any of the objections to the proffered testimony, or motions to exclude the testimony, of any of the witnesses called by the State, on the ground that the same constituted inadmissible hearsay evidence.

VI.

Under the above captioned portion of this opinion, we discuss one of the issues presented by appellant, which is thus stated in appellant’s brief:

“Evidence not alleged in the indictment of highly prejudicial nature permitted over objection.”

Appellant argues such issue in four brief paragraphs in which reference is made to testimony of Deputy Hudson and Deputy Guthrie as to a truck, “a truck engine in the back of a pickup,” a “bumper and tag” of a motor vehicle, various and sundry parts of trucks or other motor vehicles and photographs of some of said items. In each instance of any objection to such evidence, the ground stated by defendant was substantially the same as the following ground:

“We object to that as not being within the pleadings of this case, Your Honor.”

In our opinion, such was not a valid ground of objection to any of such evidence. Certainly, the ground was nothing more than a general ground of objection. In addition, we should note that as to most of such items of evidence, evidence as to such items was introduced without any objection by defendant, as shown by the following, during the direct examination of Deputy Hudson:

“A. After this, we established the fact that there was some stolen stuff on the property that belonged to Mr. Newman so not knowing exactly some of the other stuff that he had stolen—
“MR. PARKER: We object to that, if Your Honor please, and may we request that he ask questions as opposed to letting him answer like this.
“THE COURT: Ask him some specific questions? >
“Q. What else did you find, please, sir?
“A. We found several oil filters. If you will hand me my report I can tell you more.
“Q. Is this your stuff here (indicating)?
“A. Yes, sir. Okay. We found two Delco starters, an 85 amp alternator, two Cummings head gasket sets, one set of rod bearings, two Cummings fuel pumps, about 13 inner wheel nuts, 13 adjustments for wheels, one thin wall set of deep well Craftsman sockets, one set of shallow well inset sockets, one set of 38 drive inset sockets, one-sixteenth deep well socket and one one-eighth deep well socket and, of course, we found several, about four, you know, door mirrors off the trucks and we found the sleepers at the back of the shop, the chrome pipes off of the trucks, numerous items off of both trucks.
“Q. Off those trucks?
“A. Yes, sir.
“Q. Did you come back up there the next day?
“A. No, sir.
“Q. You didn’t?
“A. Huh-uh.
“Q. So, you weren’t there when any of this was removed, if it was?
“A. The only thing I was there when it was removed was the truck with the engine and the sleepers.
“Q. That same day?
“A. Yes, sir.
“Q. With the sleepers?
“A. Yes, we had the sleepers removed.
“Q. If anything else was removed, it was removed after that, as far as you know?
“A. Yeah.
“Q. All right.
“MR. JOHNSTON: You may cross-examine.
“CROSS-EXAMINATION’’

We are unable to determine that there was any error prejudicial to defendant in any of the rulings of the trial court as to the admission in evidence as to various and sundry items, as well as photographs of such items, that were found on the premises of defendant and the adjoining premises of his father on May 25, 1982, or thereafter.

VII.

Appellant complains of the following portion of the Court’s oral charge:

“Now, a person commits the crime of theft of property in the 1st. degree if with intent to deprive the owner of his property he knowingly obtains or exerts unauthorized control over the property of another and the property taken in this case is a motor vehicle.”

Immediately after the recital of the above-quoted portion of the court’s oral charge, it is stated in appellant’s brief, “The question of whether there was a motor vehicle stolen should be determined by the legal proof not a matter of fact stated by the court.” Although the portion of the charge above quoted may have been made clearer by the insertion of another “if” immediately after the word “and” and immediately before the words “the property taken in this case was a motor vehicle,” we have no doubt that the entire sentence, when considered with the language of the entire oral charge, is to be properly construed as in accord with the language of Code of Alabama 1975, § 13A-8-3(b), which states, “The theft of a motor vehicle, regardless of its value, constitutes theft of property in the first degree.” The court had stated in its oral charge:

“To sustain the charge of theft of property in the first degree in this case, the State, by the evidence, must prove beyond a reasonable doubt each of the following elements of the crime: 1) that the defendant, Larry Richard Phillips knowingly obtained or exerted unauthorized control over property that is owned by Owel Newman, 2) that he did so with the intent to deprive the owner of his property and 3) that the property was a motor vehicle.”

The criticism of the quoted portion of the court’s oral charge is not deserved.

Although we have had considerable difficulty in doing so, we have attempted to determine all of the comingled issues presented by appellant. We conclude that none sets forth the commission of error prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . In reaching this conclusion, however, the writer of this opinion thinks it appropriate to confess his deep-seated aversion to the modern invasion into the courtroom of the abuse, by excessive use nowadays, of the expression, "Okay."


author: JOSEPH A. COLQUITT, Circuit Judge.

text:
    Charles SMITH, Sr. v. STATE.
    6 Div. 756.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.

      Henry L. Penick of Shores, Larkin, Pen-ick & Massie, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gain Ingram, Asst. Atty. Gen., for appellee.
   JOSEPH A. COLQUITT, Circuit Judge.

Appellant was convicted of robbery in the first degree and sentenced to twenty years’ imprisonment.

The evidence as produced by the State tended to establish the following facts. Late on the night of November 26, or in the early morning hours of November 27, 1980, Jill A. McFarland left her place of employment, Storkland, Incorporated, in downtown Birmingham. While getting into her car, a man approached her from behind the car.

Ms. McFarland identified the appellant as this man. He repeatedly mumbled that if she did not get into the car he would kill her. She attempted to push him away, and during this struggle the appellant produced a knife. When she tried to knock the knife out of his hand, he cut her cheek with it. He also hit the left side of her face repeatedly with his fists. Ms. McFarland kicked, scratched, and hit appellant in an effort to escape his attack. She also blew her car horn in an effort to attract attention.

The struggle lasted fifteen to twenty minutes. Eventually, appellant got Ms. McFarland’s purse, broke its clasp, and dumped its contents onto the street. He took some twelve to fifteen dollars from the contents and said he would call it even.

At that moment, a police car driven by Officer K.R. Lewis pulled up behind Ms. McFarland’s car. Appellant discarded the purse and ran down the street and through a parking lot. Ms. McFarland ran into the street in an attempt to stop the police car, but it went around her and followed the appellant. Shortly thereafter, additional police officers and paramedics arrived at the scene.

Ms. McFarland pointed out to the police the knife appellant had left behind on the front seat of her car. Officer C.R. Wyatt took the knife and other evidence at the scene and placed the items in evidence bags. Ms. McFarland was taken to the hospital.

Meanwhile, Officer Lewis chased appellant down the street, through a parking lot, and into an alley. The appellant then lunged at the police car and Officer Lewis fired a shot. The appellant was not hit, but he fell to the ground. As he handcuffed appellant, Officer Lewis noticed some money which appellant had dropped. The money had red stains on it. It was taken as evidence.

The appellant was taken into custody and charged with robbery in the first degree. Later on the day of November 27, 1980, Ms. McFarland identified the appellant in a lineup as her assailant.

The appellant testified that he had driven a friend downtown that night. After he dropped his friend off, his car ran out of gas. He jogged up the street looking for his friend and then went back to his car. At that moment, the police came, backed him into a wall, and subsequently took him into custody. Appellant stated that he had never seen Ms. McFarland before seeing her in court.

Appellant was indicted, tried, and convicted for robbery in the first degree.

The appellant maintains that the indictment is defective because it did not charge that there was a “taking” of property belonging to the victim. He also objects to the phrase “in the course of committing a theft” being used because it encompasses both an attempt to rob as well as actual robbery.

As a general rule, an indictment is sufficient when it correctly follows the language of the statute, provided the statute sets out with definiteness the elements of the offense. Frye v. State, 369 So.2d 892 (Ala.Cr.App.1979); Bowen v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied, 293 Ala. 746, 309 So.2d 850 (1975). The elements of robbery in the first degree are outlined in § 13A-8-41, Code of Alabama 1975, as follows:

“(a) A person commits the crime of robbery in the first degree if he violates § 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument; or
“(2) Causes serious physical injury to another.”

Section 13A-8-43, cited above, reads as follows:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

Prior to the adoption of the Alabama Criminal Code, robbery was a common law crime because no statutory definition of robbery existed in Alabama. E.g., Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962); Young v. State, 347 So.2d 1011 (Ala.Cr.App.1977); Golston v. State, 57 Ala.App. 623, 330 So.2d 446 (1975). At common law, the elements of robbery were: (1) felonious intent; (2) putting in fear of force, as a means of effectuating intent; and (3) by that means, taking and carrying away property of another from his person or presence. E.g., Henderson v. State, 172 Ala. 415, 55 So. 816 (1911); Davis v. State, 401 So.2d 187 (Ala.Cr.App.1981).

The robbery statutes contained in the criminal code do not contain the “taking and carrying away” language which comprised part of the common law crime of robbery. See Ala.Code §§ 13A-8-40 through 13A-8-44 (1982 Supp.). Although the common law of England was adopted by this State, the Code of Alabama states that it shall remain in force “except as from time to time it may be altered or repealed by the legislature.” Ala.Code § 1-3-1 (1975). The criminal code definition of robbery has thus altered the common law definition. When robbery was made a statutory offense, the test for the sufficiency of a robbery indictment was changed. The indictment is judged by the statutory language and elements instead of the former common law elements. See Frye, supra; Bowen, supra.

The appellant relies on the decision reached by this court in Watson v. State, 389 So.2d 961 (Ala.Cr.App.1980), as support for his contention that an indictment must charge a “taking and carrying away.” Although this decision was released after the Alabama Criminal Code took effect on January 1, 1980, § 13A-1-11 Code of Alabama 1975, the actual offense occurred prior to this date and Watson was therefore tried under the common law as required by the criminal code. Ala.Code § 13A-l-7(c) (1975). Thus, the fact that Watson required a “taking and carrying away” of property lends no support to appellant’s claim that an indictment for robbery, as defined by §§ 13A-8-41 and 13A-8-43, Code of Alabama 1975, must charge a “taking and carrying away” of property.

This court has previously interpreted the “in the course of committing a theft” phrase. Under the criminal code, the separate offense of assault with intent to rob has been combined into robbery. Simmons v. State, 412 So.2d 1239 (Ala.Cr.App.1982); Marvin v. State, 407 So.2d 576 (Ala.Cr.App.1981). The crime of attempted robbery also constitutes robbery under the new criminal code. Petty v. State, 414 So.2d 182 (Ala.Cr.App.1982). The commentary to §§ 13A-8-40 through 13A-8-44, Alabama Code 1975, states that: “The practical effect of this change is to provide an identical penalty range for robbery and assault with intent to rob, which is justified because the conduct is equally dangerous whether or not the theft is technically completed.” The legislature is free to define crimes and provide the ranges of punishment for those crimes. Livingston v. State, 419 So.2d 270 (Ala.Cr.App.1982); State v. Skinner, 20 Ala.App. 204, 101 So. 327 (1924). The appellant’s contention that the phrase is impermissibly broad is without merit. The language of the statute conveys sufficient definite warning as to proscribed conduct when measured by common understanding and practices. Jordan v. State, 411 So.2d 816 (Ala.Cr.App.1981).

The appellant also maintains that the indictment is due to be quashed because it did not state that he took Ms. McFarland’s property “feloniously.” Again, the inclusion of the word “feloniously” was a requirement in the old common law form of indictment. See Ala.Code § 15-8-150(86) (1975). It is not a part of the robbery statutes found in the Alabama Criminal Code. Again, the case relied upon by the appellant to support this claim, Frye, supra, is a pre-criminal code case and is therefore inapplicable. Frye, in fact, goes on to state the general rule regarding indictments for statutory offenses, which we have already addressed. Since the indictment in the instant case substantially followed the language of the robbery statutes, it was sufficient and there is no reason why it should be quashed. Thatch v. State, 432 So.2d 8 (Ala.Cr.App.1983).

The appellant’s second contention is that he was denied the effective assistance of counsel guaranteed him by the Sixth Amendment to the United States Constitution. The first basis for this argument is that appellant’s trial counsel failed to make a motion to quash the indictment on the grounds that it was defective. As we stated earlier, the indictment was sufficient, and therefore there was no reason for appellant’s trial counsel to make such a motion. Thus, there is no merit to this argument.

The next fact that appellant relies on is that his trial counsel failed to object to the introduction into evidence of the money recovered from appellant because of a break in the chain of custody. He maintains that his trial counsel should have raised an objection because there was a period of thirty seconds when the money was out of the sight of Officer Lewis. The State maintains that there was no need for trial counsel to object as there was no real break in the chain and any objection was due to be overruled.

As a general rule, the establishment of a chain of custody is needed to show a reasonable probability that the evidence has not been tampered with. Williams v. State, 375 So.2d 1257 (Ala.Cr.App.), cert. denied, 375 So.2d 1271 (Ala.1979); Waters v. State, 360 So.2d 358 (Ala.Cr.App.), cert. denied, 360 So.2d 367 (Ala.1978); Bell v. State, 339 So.2d 96 (Ala.Cr.App.1976).

There is no evidence which would indicate that the money was tampered with in any way. Officer Lewis approached the appellant and saw money lying beside him. He took appellant to his patrol car and immediately went back to the money, where he waited until photographs of the scene were taken by other police officers. He then took custody of the money. The presence of other officers at the scene and the fact that Officer Lewis was away for only thirty seconds indicate that there is no reasonable basis to believe the money had been tampered with.

In Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert. denied, 346 So.2d 1180 (Ala.1977), we held that:

“To warrant the reception of an object in evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.” Sexton at 1180.

See also Dennison v. State, 259 Ala. 424, 66 So.2d 552 (1953); Mullins v. State, 56 Ala.App. 460, 323 So.2d 109 (1975); Jemison v. State, 40 Ala.App. 581, 120 So.2d 748 (1960). It has been shown to a reasonable probability that the money admitted into evidence was in a condition not substantially different from its condition at the commencement of the chain. It was therefore not error for appellant’s trial counsel to fail to object, because the evidence was admissible.

The final basis upon which appellant bases his ineffective assistance of counsel argument is the fact that his trial counsel failed to object to alleged acts of prosecuto-rial misconduct. The alleged acts involved asking defense witnesses on cross examination about rumors of appellant’s prior arrests and the introduction of a photograph of the victim’s battered face.

There was no duty upon appellant’s trial counsel to place an objection to the prosecutor’s questions regarding rumors of appellant’s prior arrests. In these circumstances, the questions were proper. Because the witnesses were asked on direct examination about appellant’s good reputation for both peacefulness and truthfulness, it was proper for the prosecutor on cross examination to question the witnesses about whether they had heard rumors imputing acts of violence to the appellant which occurred prior to the time he was charged with the present offense. Jarrell v. State, 251 Ala. 50, 36 So.2d 336 (1948); C. Gamble, McElroy’s Alabama Evidence § 27.01(6) (3d ed. 1977). These rumors were relevant to negate the witnesses’ testimony as to appellant’s good reputation for peacefulness.

Appellant also maintains that it was improper to ask him on cross examination if he had in fact been arrested for certain crimes. As a general rule, evidence of separate criminal acts is not admissible. Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966). However, this issue was first brought up on direct examination. A question in explanation or rebuttal of statements made by a witness on direct examination is proper even if the facts elicited may not have been admissible as independent evidence. Bradley v. Jones, 282 Ala. 331, 211 So.2d 465 (1968); Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975). Thus, it was not error for appellant’s trial counsel to fail to object to this line of questioning.

Appellant also maintains that the introduction into evidence of a photograph of victim’s battered face constituted prosecutorial misconduct, and that it was error for his trial counsel not to . object because the photograph served no purpose other than to prejudice the jury. Photographs, if relevant, are admissible as evidence. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Hurst v. State, 397 So.2d 203 (Ala.Cr.App.), cert. denied, 397 So.2d 208 (Ala.1981); Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (1973). The fact that the photograph may be gruesome or inflammatory is insufficient to merit its exclusion. Hurst, supra; Richards v. State, 337 So.2d 171 (Ala.Cr.App.), cert. denied, 337 So.2d 173 (Ala.1976). The photograph was relevant. It tended to show that appellant used force against, and caused serious physical injury to, his victim — an element of the crime of robbery. It was therefore not error for appellant’s trial counsel to fail to place an objection to the admission into evidence of the photograph.

In order to have a criminal conviction reversed because of incompetent counsel, a defendant must show that his representation was only perfunctory, that the conduct of his attorney reduced the trial to a farce, sham, or mockery of justice, or that the representation shocks the conscience of the court. Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); Bridges v. State, 391 So.2d 1086 (Ala.Cr.App.1980); Lewis v. State, 367 So.2d 542, 546 (Ala.Cr.App.1978), cert. denied, 367 So.2d 547 (Ala.1979).

Based upon our examination of the record, we conclude that appellant’s representation did not fall below this standard. In the absence of a clear showing of improper or inadequate representation, matters of trial strategy will be left to the judgment of trial counsel. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974); Bridges, supra; Goodman v. State, 387 So.2d 862 (Ala.Cr.App.), cert. denied, 387 So.2d 864 (Ala.1980); Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973).

We have reviewed the entire record and find no reversible error. The judgment of conviction is therefore due to be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH A. COLQUITT, Circuit Judge, temporarily on duty on the court pursuant to § 12-2-30(b)(6), Code of Alabama 1975; his opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.