author: EMBRY, Justice.

text:
    GENERAL MOTORS CORPORATION v. Neal VAN MARTER, et al.
    81-899.
    Supreme Court of Alabama.
    March 2, 1984.

      Charles A. Stewart, Jr. and Frank E. Lankford, Jr. of Huie, Fernambucq & Stewart, Birmingham and Otis M. Smith, Detroit, Mich., for appellant.
    Herbert D. Jones, Jr. and J.L. Klinefelter of Burnham, Klinefelter, Halsey & Love, Anniston, for appellees Neal Van Marter and Martha Van Marter.
    Clarence Simmons, Jr., George P. Ford, and Martha Lynn McCain of Simmons & Ford, Gadsden, for appellee Auto Owners Ins. Co.
   EMBRY, Justice.

This is an appeal from a judgment entered on a jury verdict awarding $251,000 to Dr. Neal Van Marter, Mrs. Van Marter, and Auto Owners Insurance Company on a products liability claim. We affirm.

The facts are as follows: Dr. and Mrs. Van Marter owned a 1978 Oldsmobile Regency automobile, which had been purchased from a General Motors dealer in February of 1978. The car was parked in the Van Marters’ carport on 30 May 1978 when their carport and home caught fire, resulting in extensive damage to the home and its contents.

The Van Marters filed suit against General Motors Corporation and others, alleging that the fire began in the carport as the result of an electrical malfunction within the automobile and then spread throughout the remainder of the home. The original complaint sought $500,000 in damages based upon theories of negligence and/or wantonness, breach of express or implied warranty, and the Alabama Extended Manufacturers Liability Doctrine. Auto Owners Insurance Company (Auto Owners) asserted a subrogation claim for the amount paid to the Van Marters pursuant to a homeowners insurance policy.

General Motors answered by general denial. The thrust of its defense was the assertion that the fire did not begin in the carport, but rather in the basement, where it then proceeded to climb the common wall to the carport and the house.

The case originally went to trial in January of 1981; however, it ended in a mistrial. On 22 March 1981, the case again went to trial. After denying General Motors’ motion for a directed verdict, the trial court submitted the Alabama Extended Manufacturers Liability Doctrine claim to the jury. It returned a verdict in favor of the Van Marters and the trial court entered judgment thereon. General Motors’ motion for judgment notwithstanding the verdict, or in the alternative, a new trial, was denied.

The first issue raised is whether the depositions of Carolyn and Donald Crouch, concerning a separate automobile fire allegedly caused by a wiring malfunction in their automobile, were properly admitted to prove a wiring defect or an unreasonably dangerous condition within the Van Mar-ters’ automobile. Mr. and Mrs. Crouch testified that they had purchased a 1980 Buick Regal and that shortly thereafter the car had caught fire, the fire allegedly beginning underneath the front seat of the vehicle and caused by a short in the wiring system.

GM contends that a 1980 Buick Regal and a 1978 Oldsmobile Regency, although both manufactured by GM, are so substantially dissimilar as to preclude admission of evidence of a defect in one model in order to prove a defect in the other. In support of this argument, GM claims the Regal and the Regency are, in effect, different products. Additionally, GM argues that an incident occurring two years after the incident in question is too remote in time to have any probative value.

Both parties agree upon the relevant proposition of law about this:

“On an issue of whether a place or thing was safe or dangerous at the time of the accident in question, evidence of the occurrence or non-occurrence of accidents to others at other times, in the use of such place or thing, is admissible if the condition of the place or thing at such other times was substantially the same as the condition existing at the time of the accident in suit.” (Footnote omitted.)

C. Gamble, McElroy’s Alabama Evidence § 83.01 (3rd ed. 1977); see also Southern Ry. Co. v. Lefan, 195 Ala. 295, 70 So. 249 (1915). Each ruling under this standard must be considered on a case-by-case basis. That being the case, admissibility of such evidence is within the trial court’s discretion. Birmingham Electric Co. v. Woodward, 33 Ala.App. 526, 35 So.2d 369 (1948); accord State Farm Mutual Auto. Ins. Co. v. Griffin, 51 Ala.App. 426, 286 So.2d 302 (Ala.Civ.App.1973); Blount County v. Hollingsworth, 45 Ala.App. 401, 231 So.2d 324 (Ala.Civ.App.1970).

The question before the trial court in the instant case was whether the electrical system in the 1980 Regal was substantially similar in its influential characteristics to the 1978 Regency. Ricky Joe Nelson, an expert witness for the Van Mar-ters, who had extensive experience with the wiring systems on General Motors’ automobiles, testified that he had examined both the 1980 Regency and the 1978 Regal and determined the power accessory system in each to be “basically the same.” While the distinguishing features of each vehicle were brought out on cross-examination, Nelson considered these differences to be of no significant import. Under these facts, this court cannot conclude that the trial court abused its discretion.

This court has never before expressly stated the proposition that a defect in one product may be admissible, in an appropriate instance, as evidence of a defect or dangerous condition within a similar product made by the same manufacturer; however, neither has it patently rejected it, nor have other jurisdictions. See Detroit Marine Engineering v. Maloy, 419 So.2d 687 (Fla.Dist.Ct.App.1982); see also Hasson v. Ford Motor Co., 32 Cal.3d 388, 185 Cal.Rptr. 654, 650 P.2d 1171 (1982); Berry v. Fruehauf Trailer Co., 371 Mich. 428, 124 N.W.2d 290 (1963).

Additionally, a two-year period between the manufacture of the Regency and the Regal is not necessarily too remote in time as to preclude the admission of the Crouch depositions. See Louisville and Nashville R.R. Co. v. Sandlin, 125 Ala. 585, 28 So. 40 (1900); see also M.C. West, Inc. v. Battaglia, 386 So.2d 443 (Ala.Civ.App.1980). Accordingly, we hold the trial court did not abuse its discretion by admitting the relevant portions of the Crouch depositions.

The second issue raised on appeal is whether the trial court abused its discretion by denying GM’s motion for a new trial. Specifically, GM contends the jury verdict can only be understood as a compromise verdict, and as such, must be set aside. In support of this argument, GM cites the allegedly uncontradicted testimony of Mrs. Van Marter. She testified about the fair market value of her home, its contents, and two of the Van Marters’ automobiles, all allegedly destroyed by the fire. The aggregate amount, including interest, of Mrs. Van Marter’s valuations is approximately $476,000. The jury verdict was in the amount of $251,000. Therefore, GM concludes, the jury verdict can only be viewed as the result of a compromise. We disagree.

It has long been the law in Alabama that whether an action is based on contract, see Stokely v. Bessemer Coal Iron and Land Co., 202 Ala. 576, 81 So. 78 (1918), or on tort, see Alford v. Samuel, 8 Ala. 95 (1845), a party against whom a verdict for money damages was rendered may not complain of its inadequacy. Alabama Waterproofing Co., Inc. v. Hanby, 431 So.2d 141, 144 (Ala.1983); see generally Annot., 31 A.L.R. 1091. Consequently, at the outset, we find several cases cited by GM to be inapplicable because they involve a plaintiff challenging a favorable jury verdict on the grounds of inadequacy. See Stinson v. Acme Propane Gas Co., 391 So.2d 659 (Ala.1980); Bibb v. Nelson, 379 So.2d 1254 (Ala.1980). See also Farmers and Ginners Cotton Oil Co. v. Reliance Insurance Co., 341 So.2d 147 (Ala.1976).

The defendant may challenge an adverse jury verdict where it appears the jury reached a verdict, not through unanimous accord, but rather through compromise. Holcombe & Bowden v. Reynolds, 200 Ala. 190, 75 So. 938 (1917). This court noted in Holcombe:

“[Wjhere the verdict which the jury returns cannot be justified upon any reasonable hypothesis presented by the evidence, it ought obviously to be set aside. Neither the court nor jury have the right to arbitrate or compromise differences between the parties, and hence, when it appears that the verdict cannot be justified on any reasonable hypothesis of fact found in the evidence, the finding must be held to have been the result of compromise or mistake and, upon proper proceedings, must be set aside or re-versed_” (Emphasis added.)

Thus, the relevant inquiry is whether this jury verdict may be justified on any reasonable hypothesis other than compromise. GM contends that, in light of Mrs. Van Marter’s uncontradicted testimony, the jury could return a verdict only for $476,-000. The jury verdict of $261,000, GM argues, shows on its face the verdict is a compromise. In support of this position, GM relies heavily upon Holcombe & Bowden v. Reynolds, 200 Ala. 190, 75 So. 938 (1917), and Posey v. Meyers, 370 So.2d 986 (Ala.1979).

The facts of this case are clearly distinguishable from either Holcombe or Posey. Holcombe involved a suit on a note secured by mortgage. Defendant-appellee asserted at trial that the note had been satisfied, while the plaintiff alleged there was a considerable amount still due. Thus, the issue in the case centered upon whether the plaintiff was entitled to all of the alleged remaining balance, or none of it. The trial court erroneously entered a judgment for an amount between the two figures.

Similarly, Posey v. Myers concerned an action in contract, with the disputed issue being whether a $19,000 transaction between two parties was a loan or a business investment. Once again, either the plaintiff was due the entire amount or nothing. The jury returned a verdict in the amount of $5,000.

Other cases cited by GM are equally unpersuasive, as they too are ex contractu actions where the possible damages under the pleadings could only be one of two calculable figures. In other words, they involve unimpeached testimony as to damages in fact. See S.D. Winn Cigar Co. v. Wilson, 35 Ala.App. 466, 48 So.2d 64 (1950).

Central to GM's argument is the proposition that where an owner testifies as to the fair market value of personal property before and after a tortious act, and this testimony is uncontradicted, the jury is bound to return the stated amount or nothing at all. This very proposition was rejected by the Court of Civil Appeals in Birmingham Slag Div. of Vulcan Materials Co. v. Chandler, 45 Ala.App. 406, 231 So.2d 329 (Ala.Civ.App.1970). Since we find Holcombe, Posey, and the other cases unpersuasive as authority for the above proposition, we likewise reject the latter.

Mrs. Van Marter s testimony was merely opinion evidence as to value. Dr. Van Marter himself contradicted her estimates of the fair market value of their home. In any event, evidence of value is necessarily opinion evidence and is not conclusive upon a jury or the trial court, even where it is without conflict. State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965). Where, as in the case at bar, testimony comes from one who stands to gain unduly, the jury is authorized to give minimum weight to such testimony. Stone v. Echols, 351 So.2d 902 (Ala.1977).

We cannot conclude the jury verdict was a compromise simply because the verdict was for a smaller amount than GM contends it should have been for. The simple explanation behind the lesser amount rests with the jury’s prerogative to give such weight to opinion evidence as its general knowledge and experience dictate. Andrews v. Frierson, 144 Ala. 470, 39 So. 512 (1905). Here, the jurors examined numerous photographs of the house and automobiles. Based on those observations, it may have concluded that Mrs. Van Marter overestimated either the extent of property damage, or the property’s value. Second, the jurors may have considered that the Van Marters failed to satisfy their burden of proof regarding a portion of their damages. On this point, we note the Van Mar-ters offered a particularly weak documentation of over $200,000 worth of personalty claimed to have been destroyed by the fire.

We hold that the jury verdict, under the circumstances, is not the result of improper compromise. To hold otherwise would be to judicially usurp the judgment and discretion which has traditionally rested exclusively with the jury.

Accordingly, the trial court did not err in denying GM’s motion for a new trial. The judgment below is due to be, and is hereby, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    HAMRICK CONSTRUCTION CORP. v. RAINSVILLE HOUSING AUTHORITY, et al.
    82-517.
    Supreme Court of Alabama.
    March 2, 1984.

      John Baker, Port Payne, for appellant.
    P.J. Allen, II, Boaz, for appellees.
   ALMON, Justice.

This is an appeal from an order and judgment quashing garnishments and executions against the defendant housing authorities.

Hamrick Construction Corporation recovered judgments against the Rainsville Housing Authority and the Housing Authority of the City of Boaz. Hamrick sought execution against the housing authorities’ real property and filed garnishments against several banks holding money belonging to the housing authorities.

The housing authorities filed a motion to quash the garnishments, stating that they were prohibited by Code 1975, § 24-1-40, which reads:

“No interest of the authority in any property, real or personal, shall be subject to sale by the foreclosure of a mortgage thereon, either through judicial proceedings or the exercise of a power of sale contained in such mortgage, except in the case of the mortgages provided for in section 24-1-35. All property of the authority shall be exempt from levy and sale by virtue of an execution, or other process, to the same extent as now enjoyed by the properties of towns, cities and counties of Alabama. No judgment against the authority shall be a charge or lien upon its property, real or personal. The provisions of this section shall not apply to or limit the right of obligees to foreclose any mortgage of the authority provided for in section 24-1-35 and, in case of a foreclosure sale thereunder, to obtain a judgment for any deficiency due on the indebtedness secured thereby and issued on the full faith and credit of the authority. Such deficiency judgment shall be a lien and charge upon the property of the authority which may be levied on and sold by virtue of an execution or other judicial process for the purpose of satisfying such deficiency judgment.”

Hamrick makes two arguments that this statute should not bar the process sought by Hamrick to recover on it's judgment: first, that the property is not exempt because municipal or county property used for the purpose to which the housing authorities put their property would not be exempt; second, the statute is unconstitutional because it allows foreclosure and execution by the mortgagees specified in § 24-1-35 and by certain holders of tort judgments, but not by other creditors or judgment holders.

The first argument begins with the proposition that housing authority property is exempt only “to the same extent as now enjoyed by the properties of towns, cities and counties of Alabama.” Code 1975, § 6-10-10, provides that “[a]ll property, real or personal, belonging to the several counties or municipal corporations in this state and used for county or municipal purposes shall be exempt from levy and sale under any process or judgment whatsoever.” This Court has applied this statute and held that city property not used for public purposes may be seized and sold. Russell v. Town of Oneonta, 199 Ala. 64, 73 So. 986 (1917); Equitable Loan & Sec. Co. v. Town of Edwardsville, 143 Ala. 182, 38 So. 1016 (1905); Ellis v. Pratt City, 111 Ala. 629, 20 So. 649 (1896); Murphree v. City of Mobile, 104 Ala. 532, 156 So. 544 (1894).

Hamrick asserts that the property of the housing authorities is used not for public, but for private purposes, i.e., private housing for low-income individuals and families. There is ample authority to refute the contention that such a use is a “private” use.

The following excerpt from the legislative findings and declaration of necessity of the Housing Authorities Law indicates the legislature’s judgment that the housing authorities’ property is used for a public purpose:

“[T]he provision of safe, sanitary and uncongested dwelling accommodations at such rentals that persons who now live in unsafe or unsanitary or congested dwelling accommodations can afford to live in safe, sanitary and uncongested dwelling accommodations, [is a] public use[] and purpose[] for which public money may be spent and private property acquired. ... The necessity in the public interest for this article is hereby declared as a matter of legislative determination.”

Code 1975, § 24-1-21.

The legislature declared that “[a]n authority shall constitute a public body and a body corporate and politic exercising public powers ...” (§ 24-1-27(a)), and gave authorities the power of eminent domain, § 24-1-28. The whole tenor of the Housing Authorities Law thus indicates a legislative finding that the use of property for the purposes set out in that Law is public use. There is no contention that the appel-lees use any of their property in a manner other than as allowed by statute.

We see no reason to disturb this legislative declaration of public purpose. Indeed, in Rayborn v. Housing Authority of Washington County, 276 Ala. 498, 499, 164 So.2d 494 (1964), the parties and the Court took for granted that the defendant’s “property for certain purposes is that of a municipal (county) corporation,” and did not question the applicability of the parallel exemption of county housing authority property, § 24-1-78. See generally 40 Am. Jur.2d Housing Laws and Urban Redevelopment, esp. §§ 3 and 7 (1968), and cases cited therein.

The above-cited authorities amply establish that public housing projects are a “public use” within the meaning of the municipal exemption which applies to the appellees’ property. The argument that the public housing projects of the housing authorities are private uses and thus not exempt must therefore fail.

We next address Hamrick’s arguments that the exemptions granted to the housing authorities are unconstitutional. We understand Hamrick to make two such arguments: that the different treatment of creditors violates Hamrick’s right to equal protection of the laws, U.S. Const, amend. 14, and that the preclusion of Hamrick from collecting on its judgment violates Hamrick’s right not to be deprived of property without due process of law, id., and Ala. Const, of 1901, art. I, § 13.

Section 24-1-35 grants the right to foreclose and execute on mortgages made by housing authorities “[i]n connection with any project financed in whole or in part by a government_” This right is granted only to a government holding bonds secured by the mortgage and to trustees or obligees “but only with the consent of the government which aided in financing the housing project involved.” Hamrick argues that § 24-1-40, read in light of § 24-1-35, violates the equal protection clause of the 14th Amendment of the United States Constitution because it grants some creditors the right to foreclose against housing authority property while denying other creditors the right to execute on judgments, without a meaningful distinction between the two types of creditors.

Hamrick also argues that § 24-1-40 violates the right to equal protection of the laws by exempting housing authority property “to the same extent as now enjoyed by the properties of towns, cities and counties of Alabama.” Section 11 — 47—191(b) allows for execution against municipal property under certain conditions by holders of tort judgments, and Hamrick argues that this creates an unconstitutionally unequal treatment of judgment holders. We find no merit in this argument, because we are not inclined to hold in the context of this case that § 11 — 47—191(b) allows execution against municipal property which is exempt under § 6-10-10. In other words, nothing in the record before us indicates that a holder of a tort judgment could reach the appellees’ property under § 11 — 47—191 (b) in any way in which Hamrick cannot.

Although Hamrick has not raised a substantial equal protection claim regarding § ll-47-191(b) executions, the claim regarding § 24-1-35 creditors requires more detailed analysis.

The United States Supreme Court has recently addressed the standard of review of equal protection challenges to economic regulations such as those at issue here:

“When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations_ Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discrimina-tions and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.”

City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976) (citations omitted).

There is no suspect classification involved in this case, so the only basis on which Hamrick’s claim should receive stricter scrutiny than the rational relationship test is if the classification “trammels fundamental personal rights.” Among such fundamental rights is the right to civil justice or access to courts. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). See generally, Antieau, The Jurisprudence of Interests and Adjudication of Equal Protection Controversies, 57 U.Det.J.Urb.L. 831, 838 (1980). Because this right is a right to due process of law, Boddie v. Connecticut, supra, the decision of whether Hamrick has been deprived of this right in a discriminatory manner first requires a determination of whether it has been denied the right to due process.

Hamrick’s initial access to court, the proceeding by which it acquired the judgment on which it is suing, is not at issue. Section 24-l-27(a)(22) grants housing authorities the power to sue and be sued. The access at issue here is that of going to court to enforce a judgment.

In 10 McQuillin, The Law of Municipal Corporations § 28.57 (3d ed. 1981 rev. vol.), the exemption of municipal property is discussed as follows:

“The reason for the exemption is obvious. Municipal corporations are created for public purposes and for the good of the citizens in their aggregate or public capacity. That they may properly discharge such public functions corporate property and revenues are essential, and to deny them these would impede and in some instances practically destroy the purposes of their creation. Respecting this subject the supreme court of Louisiana early remarked: ‘On the first view of this question there is something very repugnant to the moral sense, in the idea that a municipal corporation should contract debts, and that, having no resources but the taxes which are due to it, these should not be subjected by legal process to the satisfaction of its creditors. This consideration, deduced from the principles of moral duty, has only given way to the more enlarged contemplation of the great and paramount interests of public order and the principles of government.’ [Edgerton v. The Third Municipality of New Orleans, 1 La.Ann. 435, 440 (1846) (corrected from the original)].”

(Footnotes omitted.)

This discussion does not answer Ham-rick’s assertion of the right to due process, but it does indicate the principle on which the question is to be resolved. The longstanding principle of exemption of public property, especially when bolstered by the broader exemption of § 24-1-40, put Ham-rick on notice before it ever contracted with the appellee housing authorities that it could not attach the authorities’ property to satisfy a claim such as it now has against them. This is not a situation such as that in Boddie v. Connecticut, supra, in which the state denied Boddie access to the only means available for severing the fundamental relation of marriage. Hamrick contracted with the appellees at its own risk, with statutory notice that the legislature had determined that the rights of those with claims against housing authorities were outweighed by the public purpose of maintaining the operation of the housing projects, which were designed to serve a pressing public need.

Moreover, Hamrick may not be entirely without a remedy. In certain circumstances mandamus may lie against municipal officials to compel them to subject surplus revenues of the municipality to the payment of a judgment, Mayor and City Council of Anniston v. Hurt, 140 Ala. 394, 37 So. 220 (1904), or even to levy authorized taxes, Graham v. City of Tuscumbia, 146 Ala. 449, 42 So. 400 (1906). See Ex parte Jones, 399 So.2d 246 (Ala.1981). A similar remedy may be available to Ham-rick, and thus it is not entirely precluded from bringing an action to enforce its judgment.

For these reasons, we find that Hamrick has not met its burden of demonstrating the unconstitutionality of § 24-1-40 on due process grounds under either Amendment 14 to the Constitution of the United States or § 13 of the Constitution of Alabama of 1901. For the same reasons, strict scrutiny is not invoked to insure equal protection in the denial of the fundamental right of access to courts. All that remains is to analyze Hamrick’s equal protection claim under the “rational basis” standard.

The standard for review of equal protection claims is well expressed in Board of Trustees of Employees’ Retirement System of the City of Montgomery v. Talley, 291 Ala. 307, 311, 280 So.2d 553 (1973):

“The equal protection clause is violated by a classification only when it is without any reasonable basis and is arbitrary. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369. This court has previously set forth the tests to be applied in determining the constitutionality of a classification system. The class
“ ‘(1) must be germane to the purpose of the law; (2) must bring within its influence all who are under the same conditions and apply equally to each person or member of the class, or each person or member who may become one of such class; (3) must not be so restricted and made to rest upon existing circumstances only as not to include proper additions to the number included within the class; (4) must be based on substantial distinctions which make one class different from another; and (5) must be reasonable under the facts of the case, and not oppressive and prohibitive.’
“State v. Pure Oil Co., 256 Ala. 534, 55 So.2d 843 (1951).”

Statutes creating classifications of creditors and allowing garnishments in some eases and not in others have been upheld in First National Bank v. Dimmick, 190 Ala. 359, 67 So. 309 (1914), and Knight v. Knight, 409 So.2d 432 (Ala.Civ.App.1982). To determine the constitutionality of the classification in this case, we must look at the statutory scheme as a whole and to the circumstances of the case.

The provision in § 24-1-35 for mortgages and foreclosures thereof in connection with projects financed by a government must be read in conjunction with other sections of the Housing Authorities Law pertaining to financing. Section 24-1-34, for example, states in part:

“It is the purpose and intent of this article to authorize every authority to do any and all things necessary to secure the financial aid and the cooperation of the federal government in the construction, maintenance and operation of any housing project which the authority is empowered by this article to undertake.”

The Legislature passed the Housing Authorities Law in 1935, when financing was difficult. Thus, there was a rational basis for extending security in the form of mortgages and the right to foreclose to certain parties which might finance housing projects but to protect housing authorities from creditors generally.

We note also that § 24-1-41 provides that purchasers at a sale of housing authority property, “whether pursuant to any foreclosure of a mortgage, pursuant to judicial process or otherwise, shall obtain title subject to any contract between the authority and a government relating to the supervision by a government of the operation and maintenance of such property and the construction of improvements thereon.” This provision limits the right granted in § 24-1-35 and is in accordance with the apparent intent of § 24-1-40 to protect the operation of housing projects from termination because of financial liabilities incurred by housing authorities.

A further distinction between creditors such as Hamrick and those protected by § 24-1-35 is that the latter are either government agencies supplying public funds or other obligees co-financing with a government. Thus, the protection of the mortgagees and obligees listed in § 24-1-35 is rationally related to the purpose of the Housing Authorities Law both because it helps secure financing for housing projects and because it protects the public interest by insuring that public funds used for such projects may constitute a lien against the property.

Because we find that § 24-1-40 withstands constitutional scrutiny and Hamrick was not entitled to the garnishments and executions sought, the judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.

      . The motion does not mention the executions, but the order quashing the garnishments and executions recites that the housing authorities had moved the court to quash garnishments and cxccutions. There is no contention that the order to quash the executions is improper for failure to include them in the motion.


author: ADAMS, Justice.

text:
    Amy STONE and Glenn Stone v. SMITH, KLINE & FRENCH LABORATORIES, et al.
    82-695-CER.
    Supreme Court of Alabama.
    March 9, 1984.
    Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellants.
    Lawrence B. Clark and Craig A. Alexander of Lange, Simpson, Robinson & Somer-ville, Birmingham, for appellees.
    Ted Taylor, Prattville, amicus curiae for appellants.
   ADAMS, Justice.

Pursuant to Rule 18 of the Alabama Rules of Appellate Procedure, the United States Court of Appeals for the Eleventh Circuit has certified certain questions concerning the Alabama Extended Manufacturer’s Liability Doctrine for resolution by this court. The certification opinion states:

Amy and Glenn Stone appeal from the district court’s grant of summary judgment in favor of Smith, Kline & French Laboratories claiming that the court misapplied the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD). We conclude that this appeal presents an important issue of Alabama law which we believe is appropriate for resolution by the Supreme Court of Alabama. Accordingly, our decision in this matter will be deferred pending certification pursuant to Rule 18 of the Alabama Rules of Appellate Procedure. The following is a statement of facts and certified questions of law proposed to the Alabama Supreme Court.
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA PURSUANT TO RULE 18 OF THE ALABAMA RULES OF APPELLATE PROCEDURE. TO THE SUPREME COURT OF ALABAMA AND THE HONORABLE JUSTICES THEREOF:
It appears to the United States Court of Appeals for the Eleventh Circuit that the above-styled case in this Court involves questions or propositions of law of the State of Alabama which are determinative of the cause, and there appears to be no one clear, controlling precedent in the decisions of the courts of the State of Alabama. This Court certifies the following questions of law to the Supreme Court of Alabama for instructions concerning said questions of law, based on the facts recited herein.
I. STYLE OF THE CASE
The style of the case in which this certification is made is Amy Stone and Glenn Stone, Plaintiffs-Appellants, versus Smith, Kline & French Laboratories, et al., Defendants-Appellees, Case No. 82-7232, United States Court of Appeals for the Eleventh Circuit on appeal from the United States District Court for the Northern District of Alabama.
II. STATEMENT OF THE FACTS
Glenn and Amy Stone, husband and wife, live in Moundville, Alabama. In November 1980, plaintiff Amy Stone developed an emotional problem later diagnosed as a “brief reactive psychosis.” She was placed in Druid City Hospital, Tuscaloosa, Alabama, on November 7, 1980, under the care of Dr. Lewis Shar-man, a psychiatrist. While at Druid City Hospital, Amy Stone received 150 mgs. of Thorazine per day. Her emotional condition improved and she was discharged on November 26, 1980. She was instructed to continue taking 50 mgs. of Thorazine two times each day.
After her discharge Amy Stone became ill and developed pruritus, dark urine, jaundice, malaise, anorexia and a 102° fever. She continued to take Thorazine. On December 5, 1980, Mrs. Stone was readmitted to Druid City Hospital and placed under the care of Dr. John Burnum, an internist. Mrs. Stone remained in Druid City Hospital until January 13, 1981, when she was admitted to the University of Alabama Hospital in Birmingham and placed under the care of Dr. Leonard Ou Tim, a specialist in gas-troenterology. Dr. Ou Tim diagnosed Mrs. Stone’s problem as Thorazine-induced hepatitis. By April 1981, Mrs. Stone had recovered from the hepatitis.
The district court found that Thorazine, a prescription drug, was an “unavoidably unsafe product” as described in Comment k to Section 402A of the RESTATEMENT (SECOND) OF TORTS, and that the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD) is virtually identical to Section 402A. Relying on Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1274 (5th Cir.1974) (interpreting Section 402A under Texas Law), the court held that “an unavoidably unsafe product is neither defective nor unreasonably dangerous if such a product is ‘properly prepared and is accompanied by proper directions and warnings.’ ” The district court found that Alabama would not impose a duty to warn the ultimate consumer of the potential dangers of a prescription drug, concluding that, under the facts of the ease, “where a warning given by a drug manufacturer adequately warns a prescribing physician of the potential danger of a prescription drug, and no contention is made that the drug could be altered or changed by the manufacturer to avoid or reduce that danger, then the drug manufacturer should not be held to strict liability when injury results from the use of the drug.”
III.CERTIFIED QUESTIONS
Relying on the foregoing undisputed facts, this Court requests that the Supreme Court of Alabama address the following questions:
(1) In the case of an unavoidably unsafe and properly prepared prescription drug, does the adequacy of the accompanying warning determine whether a patient assumed the risk of taking the drug, see Casrell v. Altec Industries, Inc., 335 So.2d 128, 134 (Ala.1976); Atkins v. American Motors Cory., 335 So.2d 134, 143 (Ala.1976), or does it determine whether the product is unreasonably dangerous? See Casrell, supra, at 133; Atkins, supra, at 142.
(2) If the adequacy of the warning determines whether a plaintiff assumed the risk, can prescribing physi-dans assume the risk for their patients?
(3) If the adequacy of the warning determines whether an unavoidably unsafe prescription drug is unreasonably dangerous, is an adequate warning to the prescribing physician, but not to the ultimate consumer, sufficient1 as a matter of law?
The Clerk of this Court is directed to transmit this certificate, as well as the briefs and records filed with the Court, to the Supreme Court of Alabama and simultaneously to transmit copies of the certificate to the attorneys for the respective parties.
CERTIFIED.

Plaintiffs-appellants object to both the district court’s tacit finding as a matter of law that Thorazine, an ethical drug, is an “unavoidably unsafe product” as described in Comment k to Section 402A of the Restatement (Second) of Torts (1965), and the predication of the first certified question on that finding. They assert that defendant-appellee should have been required to submit the question of whether Thorazine is “unavoidably unsafe” to the jury, as is ordinarily required when the defense of assumption of risk is raised under the Alabama Extended Manufacturer’s Liability Doctrine. See Atkins v. American Motors Corp., 335 So.2d 134, 143 (Ala.1976).

In response, defendant-appellee insists that it never raised the defense of assumption of risk in the trial court or on appeal, and that plaintiffs-appellants presented no facts from which the district court could conclude that Thorazine was not “unavoidably unsafe.” Having carefully studied the record of this case and the briefs of the parties, we agree with these assertions of Smith, Kline & French.

The district court rightly recognized the applicability of Comment k to Section 402A of the Restatement (Second) of Torts (1965), which we have said “retains its utility” under our modification of the Restatement’s theory of strict liability, Atkins v. American Motors Corp., 335 So.2d at 143 n. 5, to the facts of this ease. As has been noted, Comment k provides for drugs and vaccines an exception to the strict liability defined in Section 402A. L. Frumer and M. Friedman, 3 Products Liability § 33.02[4] (1983). Indeed, “[f]or adverse reactions to prescription drugs, section 402A does no more than codify the principles of negligence.” R. Merrill, Compensation for Prescription Drug Injuries, 59 Va.L.Rev. 1, 50 (1973).

The district court correctly held that under Comment k, the adequacy of a manufacturer’s warning regarding dangerous conditions associated with the use of its product is not only relevant to establishing a defense of assumption of risk, but, “under the facts in this case, the issue of adequate warning pertains to the initial establishment of liability rather than constituting some type of affirmative defense.” Stone v. Smith, Kline & French Laboratories, CV 81-P-1146-W (N.D.Ala. July 7, 1982). In accordance with Comment k, the district court concluded, and we agree, that in the case of an “unavoidably unsafe” yet properly prepared prescription drug, the adequacy of the accompanying warning determines whether the drug, as marketed, is defective, or unreasonably dangerous. Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1274 (5th Cir.1974), quoting Restatement (Second) of Torts § 402A comment k (1965). Thus, the adequacy of the warning issued by a drug manufacturer bears on whether a plaintiff has proved a prima facie case under the Alabama Extended Manufacturer’s Liability Doctrine. See Casrell v. Altec Industries, Inc., 335 So.2d at 132; Atkins v. American Motors Corp., 335 So.2d at 141.

Inasmuch as the defense of assumption of risk is not at issue in this case, we see no need to address the second certified question. Therefore, we proceed to answer the third question.

Cholestatic jaundice is a risk known to attend the use of Thorazine, even though the jaundice occurs only in a small percentage of patients for whom the drug is prescribed. In seeking a determination of liability on the part of Smith, Kline & French, plaintiffs-appellants have not indicated that they are prepared to prove that the risk is unreasonable, but only that it materialized in the course of Amy Stone’s treatment with Thorazine. They concede that Amy Stone’s physician was adequately warned of the adverse side effects, including cholestatic jaundice, which sometimes accompany the use of Thorazine. Nevertheless, they contend that the warnings issued are of no consequence, because prescribing physicians cannot accurately predict which of their patients will develop jaundice as a result of treatment with Thorazine. In essence, they assert that Amy Stone’s physician was incapable of making an informed choice to prescribe Thorazine, because he was unable to predict the occurrence of an adverse reaction. We disagree.

Plaintiffs-appellants misconceive the physician’s role in prescribing ethical drugs, and the significance of a drug manufacturer’s warnings in undertaking that responsibility. A proper understanding of that role has been articulated by the United States Court of Appeals for the Fifth Circuit as follows:

We cannot quarrel with the general proposition that where prescription drugs are concerned, the manufacturer’s duty to warn is limited to an obligation to advise the prescribing physician of any potential dangers that may result from the drug’s use. This special standard for prescription drugs is an understandable exception to the Restatement’s general rule that one who markets goods must warn forseeable ultimate users of dangers inherent in his products. See Restatement (Second) of Torts, Section 388 (1965). Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative. Pharmaceutical companies then, who must warn ultimate purchasers of dangers inherent in patent drugs sold over the counter, in selling prescription drugs are required to warn only the prescribing physician, who acts as a “learned intermediary” between manufacturer and consumer.

Reyes v. Wyeth Laboratories, 498 F.2d at 1276. (Emphasis in original.) Accord, Timm. v. Upjohn Co., 624 F.2d 536, 538 (5th Cir.1980). Based on this sound reasoning, which we adopt, we answer the third certified question in the affirmative.

QUESTIONS ANSWERED.

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

      . k. Unavoidably unsafe products. There are some products which, in the present state of human knowledge, arc quite incapable of being made safe for their intended and ordinary use. These arc especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine arc fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of lack of time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they arc properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

      . Professor Merrill indicates that Comments j and k to Section 402A clearly retain the tort concept of fault in the context of "unavoidably unsafe” products such as drugs:
      Although section 402A is commonly thought to impose liability without fault, in most prescription drug cases it does not. The requirement that the product be unreasonably dangerous, as amplified by comments j and k, produces essentially the same result as traditional negligence theory in cases of the manufacturer’s alleged failure to provide adequate warnings.

        59 Va.L.Rcv. at 31. Thus, the Restatement’s blueprint for the liability of drug manufacturers substantially comports with our remodeling of Section 402A in Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), and Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976). In both of those cases, this court declared that Alabama’s version of extended manufacturer’s liability is not a "no-fault” doctrine: Casrell v. Altec Industries, Inc., 335 So.2d at 132; Atkins v. American Motors Corp., 335 So.2d at 138-39.

      . Plaintiffs-appellants have not attempted to prove that the Thorazine administered to Amy Stone was improperly or negligently prepared.

      . In response to Smith, Kline & French’s motion for summary judgment, plaintiffs-appellants stated:
      Plaintiffs admit that the physician of Amy Stone was so adequately warned. However, plaintiffs dispute the legal conclusion drawn from that fact by defendant. Plaintiffs’ position is that Thorazine is unreasonably dangerous and defective, under Alabama law, because the drug causes a small percentage of users to develop cholestatic jaundice. There is no way for the prescribing physician to prevent the reaction once the drug is used. The only "treatment" for the reaction is to discontinue use of the drug. These facts make the drug defective.


text:
    OPINION OF THE JUSTICES.
    No. 306.
    Supreme Court of Alabama.
    April 2, 1984.
   Members of the Senate

State Capitol

Montgomery, Alabama

Dear Senators:

We have received Senate Resolution 105, which requests an advisory opinion on several questions relating to Act No. 81-889, the Budget Isolation Amendment. The Secretary of State, Don Siegelman, has also filed with this Court a copy of a “Petition for Writ of Mandamus, Prohibition, and for Declaratory and Other Relief,” which has been recently filed and is now pending in the Circuit Court of Montgomery County.

After a careful review of the questions posed in the request for an advisory opinion and the matters currently being litigated in the Montgomery Circuit Court, we are compelled to respectfully decline your request for an advisory opinion.

The advisory opinion request contains the following questions:

“(1) Pursuant to the facts stated ... concerning the return of said Act No. 81-889 to the Legislature, was any further official action on the part of the Legislature prior to returning said Act to the Secretary of State on April 26, 1982 necessary to ensure that said Act No. 81-889 remained a viable proposed Constitutional Amendment?
“(2) Was said Act No. 81-889 properly placed on the March 13, 1984 election ballot in view of HJR 16, Act No. 84-48, 1984 Regular Session, which directs that Act No. 81-889 be kept in the Secretary of State’s office?
“(3) Does House Bill 159, Act No. 84-53 of the 1984 Regular Session effectively repeal said Act No. 81-889 of the First Special Session of 1981?
“(4) Are the Governor’s responsibilities of giving notice of a proposed constitutional amendment and the proclamation of the results of an election held thereon as provided in Amendment 24 of the State Constitution absolutely essential for the ratification of a proposed constitutional amendment?
“(5) Did the advertising ordered by the then Governor Fob James pursuant to his proclamation of September 7, 1982, substantially satisfy the notice requirements for proposed constitutional amendments pursuant to Amendment 24 of the state constitution?
“(6) Can the various media coverage of the amendment proposed by said Act No. 81-889 combined with the substantial number of voters who voted thereon at the March 13, 1984, election be construed to have given constructive notice of the election, and thereby substantially satisfy the notice requirements of Amendment 24 of the state constitution?
“(7) Was the amendment proposed by Act No. 81-889, S. 32 of the First Special Session 1981, ratified at the March 13, 1984 election?
“(8) If Act No. 81-889 was ratified at the March 13, 1984 election, does the amendment apply to the conduct of business in the 1983 Regular Session and the current 1984 Regular Session, or both?
“(9) If the amendment does apply to the 1983 Regular Session and the current 1984 Regular Session, were the .bills which were enacted in the 1983 Regular Session and those bills which were passed by the Legislature and delivered to the Governor prior to March 13, 1984 validly enacted?
“(10) Have the pending House and Senate bills which have received a third reading in the house of origin been legally transmitted to the respective other house?
“(11) If the pending House and Senate bills have not been legally transmitted, can the Legislature pass a joint resolution with retroactive application transmitting those bills from one house to the other?
“(12) If the Legislature can pass a joint retroactive resolution to transmit the pending bills from one house to the other, would such a joint resolution have to pass the Legislature by a majority vote of a quorum present, by a % vote of a quorum present, or by a ¾ vote of all elected members?
“(13) Did the Governor of the State of Alabama have authority to instruct the Probate Judges of the various counties of Alabama not to count and report the votes which were cast by the people of Alabama on March 13, 1984, on the Constitutional Amendment?”

These questions can be grouped into two broad categories. Questions one through seven and question thirteen deal with the validity of the proposed amendment, that is, whether it was properly on the ballot, was approved by a vote of the people, and is now valid and binding. The remaining questions, eight through twelve, deal with the effect the Budget Isolation Amendment, if found to be valid and binding, would have on the conduct of business by the Legislature.

The relief requested in the petition filed in circuit court is as follows:

1. That defendant probate judges be required to promptly certify the votes with respect to the proposed amendment.
2. That defendants Wallace and Grad-dick be required to certify the statewide vote totals and perform all other constitutional and statutory responsibilities with regard to said election.
3. That defendant Wallis and those acting in concert with him be enjoined from further interfering with the election process.
4. To declare that if the proposed amendment was approved by a vote of the people, it is valid and binding in all respects.
5.If the court finds that the proposed amendment was not properly advertised by defendant Wallace and the proposed amendment is not valid and binding, then that the court set a new election date and order that the proposed amendment be advertised in accordance with law.

The issues in the proceedings in circuit court can also be categorized as dealing with the validity of the proposed amendment, that is, whether it was properly on the ballot, whether it was approved by the people, whether the votes should be certified, and whether the proposed amendment is now valid and binding. On March 26, 1984, the Honorable William R. Gordon issued a writ of mandamus ordering the defendant probate judges to certify, in compliance with Code 1975, § 17-17-2, the election results of all votes cast in the March 13, 1984, election on the proposed amendment, so that the trial court could proceed with the orderly resolution of the remaining issues. Judge Gordon refused to issue a writ of mandamus to compel defendants Wallace and Graddick to certify the statewide results of the election, because plaintiffs had not shown that they would refuse to do so. Judge Gordon refused to enjoin defendant Wallis from further interference in the election certification process. Resolution of the remaining issues was postponed until the election results were certified and the parties submitted additional briefs on the remaining issues.

Whenever the questions posed in a request for an advisory opinion have been the subject of pending litigation, we have declined to issue an advisory opinion. Opinion of the Justices No. 298, 431 So.2d 496 (Ala.1982); Opinion of the Justices No. 289, 410 So.2d 388 (Ala.1982). This policy of allowing the questions to be answered in the adversarial proceeding stems from the preference for using a process that allows all interested parties to have their day in court and an attempt to avoid prejudicing the rights of the litigants in the pending civil action. Opinion of the Justices No. 298, 431 So.2d 496 (Ala.1982). Therefore, we decline to answer questions one through seven and question thirteen, because they are the subject of pending litigation.

We observe that the circuit court has acted expeditiously with respect to holding an early hearing and has already issued a writ of mandamus. Governor Wallace, through his attorney, has requested that Judge Gordon decide the remaining issues on the basis of the evidence and exhibits received at the prior hearing, if the parties feel no additional evidence is necessary, and the briefs, which are to be filed with the court by March 30, 1984. We are confident that the circuit court will give this important case the priority it deserves.

Without the resolution of the question of whether the proposed amendment is now valid and binding, questions eight through twelve, dealing with the effect of the proposed amendment on the conduct of business by the Legislature, are hypothetical. In order to answer those questions, we would have to assume that the proposed amendment is valid and binding. Opinions on hypothetical questions are not authorized by Code 1975, § 12-2-10. Opinion of the Justices No. 273, 396 So.2d 46 (Ala.1981). Therefore, we must also decline to answer questions eight through twelve.

In conclusion, we respectfully decline to issue an advisory opinion as to questions one through seven and question thirteen, in view of the pending litigation, and we decline to issue an advisory opinion on questions eight through twelve because, without the resolution of the threshold question of the validity of the proposed amendments, they are merely hypothetical.

Respectfully yours,

C.C. Torbert, Jr. Chief Justice

Hugh Maddox

James H. Faulkner

Richard L. Jones

Reneau P. Almon

Janie L. Shores

Eric Embry

Sam A. Beatty

Oscar W. Adams, Jr. Justices


author: BRADLEY, Judge.

text:
    Jerry Samuel LANSDELL v. Sharon Sanderson Lansdell RUSSELL.
    Civ. 4050.
    Court of Civil Appeals of Alabama.
    March 14, 1984.

      Robert Straub, Decatur, for appellant.
    W.H. Rogers, Moulton, for appellee.
   BRADLEY, Judge.

This is a child custody modification case.

Jerry Lansdell and Sharon Sanderson Lansdell Russell were divorced in 1976. The decree granted Mrs. Russell custody of their two children, Jerry Lynn (age 12) and Misty (age 7).

On August 18, 1982 Lansdell filed a modification petition asking the court to award him custody of his children. Lansdell was granted temporary custody of the children and the matter was set for a hearing.

Mrs. Russell answered and counterpeti-tioned for an increase in child support. After a hearing the trial court refused to change the custody of the children, and increased child support to $300 per month. There was a request by Lansdell for a new trial and a request that Judge Burney re-cuse himself. Judge Burney granted a new trial and then recused himself. A new judge was appointed to hear the case.

Lansdell filed a motion seeking a psychological examination of his son, Jerry Lynn. The motion was denied. A trial was held on the merits and an order issued refusing to change custody of the children, increasing child support to $300 a month for both of the children, and giving the parties specific visitation rights. Mr. Lansdell’s motion for new trial was overruled and he appeals.

Petitioner’s first contention is that the trial court abused its discretion in not giving him custody of the children.

We have consistently held that the trial court is in the best position to determine whether there has been a sufficient change in circumstances to warrant a change in child custody. Hutchinson v. Davis, 435 So.2d 1303 (Ala.Civ.App.1983). Furthermore, child custody is a matter that is addressed to the sound discretion of the trial court and the exercise of that discretion will not be overturned except for an abuse of discretion or plain error. Sanders v. Sanders, 435 So.2d 123 (Ala.Civ.App.1983). Also, the party seeking a change in custody has the burden of proving a material change in circumstances that adversely affects the welfare of the child. Sanders v. Sanders, supra.

Although the evidence is in sharp dispute in several material areas, there is evidence in the record to support the trial court’s decision to leave custody of the children with the mother.

The evidence shows that the parties to this proceeding were divorced in 1976 and the two children were placed in the care and custody of the mother. The children have been with the mother for most of the time since then. The son, now twelve years old, spent about one year in the custody of his father by agreement of the parties. He is now back in the custody of his mother.

The mother is now married and she and her husband both work. When she is not working, she does her own housekeeping and cooking. She loves her children and, according to other witnesses, is a good mother. Several of the children’s teachers testified that the mother was interested in the welfare of her children and came to the school when needed. The father never cheeked on how his children were doing in school.

During the year that the son was in the custody of his father, the son made failing grades in school and was taken out of school by his father before the end of the school year. The son is now in school and making average grades.

The record shows that the mother takes good care of her children and sees that they are clean and properly dressed.

The mother testified that she did not drink alcoholic beverages, that she was not abused by her husband, and they did not have drunken parties.

The mother said that her son has had emotional problems in the past but is doing much better now. He will do even better when the present litigation is concluded. We find no error in this aspect of the case.

Mr. Lansdell says next that the trial court erred by increasing the child support to $300 a month.

Child support awards may be modified by a trial court upon a showing of a material change in circumstances, and such a modification will not be reversed except for an abuse of discretion. Ezell v. Ezell, 440 So.2d 560 (Ala.Civ.App.1983).

The evidence shows that by agreement of the parties child support was reduced in 1979 from $50 a week to $10 a week. The mother testified that she cannot support the children on her salary. She said she provides ninety percent of their clothing and all of their school supplies. The husband is presently earning about $900 a week. The children are twelve years old and seven years old and, in view of the needs of the children, especially when school lunches amount to $20 a week, we do not consider the award of $300 a month for the support of both children to be an abuse of discretion. No error in this aspect of the decree.

Mr. Lansdell’s final issue is that the trial court erred in refusing to order a psychological examination for the son.

Rule 35, Alabama Rules of Civil Procedure provides, in pertinent part, as follows:

“When the mental or physical condition ... of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control.” (Emphasis added.)

We said in Balfour v. Balfour, 413 So.2d 1167 (Ala.Civ.App.1982), that a motion made pursuant to rule 35(a) should not be routinely granted as of right but should be carefully scrutinized. Such an order should be granted only after good cause therefor has been shown. In essence the same thing was said in Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), by the United States Supreme Court concerning the requirements of , rule 35 of the Federal Rules of Civil Procedure, which is identical to Alabama rule 35.

We find that Mr. Lansdell failed to establish the required “good cause” for granting the motion and the trial court properly overruled his motion.

The record does show that the son had been having school problems and emotional problems. However, the record also shows that the son is now doing much better in school. His grades have gone from F’s while in his father’s custody to C’s and B’s after being' in his mother’s custody. Also, it was shown that once his custody is established by the courts, his emotional health will improve. His mother testified that his emotional problems were due mainly to the custody dispute.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    John W. BOGGAN v. Vincenta Sanchez BOGGAN.
    Civ. 4078.
    Court of Civil Appeals of Alabama.
    March 14, 1984.
    Horace N. Lynn of Piel & Lynn, Montgomery, for appellant.
    Stephen M. NeSmith of Riggs, NeSmith & Halstrom, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

John W. Boggan and Vincenta Sanchez Boggan were divorced on June 2, 1982, after a ten-year marriage. Pursuant to a separation agreement, Mr. Boggan was ordered to pay alimony of $430 per month. On May 17, 1983, he petitioned for modification of the original divorce decree, requesting the elimination of alimony. After an ore tenus hearing held August 31, 1983, alimony was reduced to $350 per month. Mr. Boggan thereafter filed a motion for new trial which was denied. He appeals here, asserting that the trial court abused its discretion in failing to further reduce or eliminate the alimony due. We affirm.

It is axiomatic that in a modification proceeding the burden of establishing a material change in circumstances necessitating modification rests on the moving party. Taylor v. Taylor, 418 So.2d 148 (Ala.Civ.App.1982). The only evidence of changed circumstances presented by Mr. Boggan is his remarriage and his ex-wife’s increase in income due to her recent employment. Although both of these factors may be considered, neither in and of itself warrants a reduction in alimony. Jeffcoat v. Jeffcoat, 423 So.2d 888 (Ala.Civ.App.1982); Blackwell v. Blackwell, 399 So.2d 313 (Ala.Civ.App.1981). A review of the record indicates that these factors were considered and that alimony was in fact reduced.

We have frequently stated that modification of alimony provisions of a divorce decree is within the sound discretion of the trial court whose judgment will only be reversed by this court upon a finding of an abuse of discretion. Lamar v. Lamar, 429 So.2d 1055 (Ala.Civ.App.1982). Where, as here, a modification is granted after an ore tenus hearing, it is presumed correct. Brothers v. Vickers, 406 So.2d 955 (Ala. Civ.App.1981). Keeping this presumption in mind along with the trial court’s proper consideration of the only alleged change in circumstances, we see no abuse of discretion and no error in the trial court’s decision.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: TYSON, Judge.

text:
    Everett Stanley LINDSEY v. STATE of Alabama.
    8 Div. 493.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Everett Stanley Lindsey, pro se.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Everett Stanley Lindsey filed a petition for Writ of Error Coram Nobis in the Circuit Court of Morgan County, Alabama, seeking to set aside a second degree murder conviction and thirty-five year sentence received on November 9, 1977 in said court. This cause was appealed to this court and affirmed in an opinion reported as Lindsey v. State, Ala.Cr.App., 367 So.2d 572 (1978), cert. denied, Ala., 367 So.2d 574 (1979). The original record filed with this court indicates that Lindsey was indigent at the time of his original trial and appeal therefrom.

In the eoram nobis petition, Lindsey challenges the “trial atmosphere”, specifically averring that certain key witnesses changed their testimony and that he was not able to present certain witnesses in his behalf at the time of his trial and conviction. Lindsey also avers that his trial counsel was inadequate.

The Judge, through the Circuit Clerk, directed the petitioner to file a motion seeking a determination of his status as an indigent or pay a filing fee of $37.00, citing § 12-19-70, -71, of the Code of Alabama 1975. The petitioner was given thirty days in which to file this motion and the petitioner has filed a notice of appeal and request for a transcript from the order of the circuit court.

I

We are of the opinion that this cause should be remanded to the circuit court with directions and that a hearing be held on the original Petition for Error Coram Nobis, specifically before hearing the merits of the allegations, that the circuit court determine, after the appointment of counsel in petitioner’s behalf, whether or not the petitioner is an indigent as a matter of law within the meaning of the applicable Alabama statutes. The circuit court is instructed to conduct such hearing promptly and to enter an order making appropriate findings, both as to the indigent status of the appellant and if such be determined, then to proceed with a second hearing on the merits of the petitioner’s allegations.

Thereafter, the trial court shall make written findings of fact and conclusions of law and enter same, together with a copy of the record of such hearing, and such shall be filed with the office of the circuit clerk. The trial court is further instructed that such hearing be conducted speedily and that the complete transcript of these proceedings under the certification of the circuit clerk then be transmitted to this court for our review.

REMANDED WITH DIRECTIONS.

All the Judges concur.


text:
    David Robert PHILLIPS v. STATE of Alabama.
    6 Div. 174.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
    Rehearing Denied March 20, 1984.

      Harold P. Knight, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

David Robert Phillips was indicted for unlawfully obtaining or exerting unauthorized control over one 1982 Freightliner truck, Serial Number: 1FUPY-DYB3CH208084, the property of Owel Newman, of the value of an amount in excess of $1,000.00, contrary to the provisions of § 13A-8-3, Code of Alabama 1975.

The jury found the appellant guilty as charged in the indictment, and the trial court set sentence at 15 years’ imprisonment as punishment for theft of property in the first degree.

Owel Newman testified he operated a trucking company in the Belk community of Fayette County in May of 1982. He stated that he returned to his home on the evening of May 21, 1982, and found a large 18 wheel Conventional Cab Freightliner with sleeper and a 400 Cummings engine in it missing. Mr. Newman stated that he had paid in excess of $64,000 for the truck and that as of May 21, 1982 the vehicle was worth at least that amount. He then gave the serial number for the truck from the bill of sale, showing the number as 1FUPY-DYB3CH208084.

Mr. Newman stated that he had left the vehicle at his home and it was missing when he returned that night about 10 o’clock from a visit to Columbus.

The State then presented the testimony of several deputy sheriffs from both Fa-yette and Walker counties who went to the home of Mr. Hershel Phillips, the appellant’s father, and there received his permission to search the premises, including a shop which was located nearby. The appellant was observed working over a truck with the hood raised when the deputies went on the premises.

The appellant’s father, Mr. Hershel Phillips, testified and stated that he had given the sheriff’s deputies in question permission to go on the premises and to make a search for missing property. This was on May 25, 1982.

A part of the missing truck taken from the Newman premises was found, together with clothing which belonged to the driver. An inventory was made of several missing items and this was placed in evidence.

The consent by Mr. Hershel Phillips to search the premises was verified by several of the deputies who went to the premises in question on May 24, 1982. The appellant and his companions were advised that they had received consent to search by the officers in question. An inventory was made of items found on the premises and photographs taken at the time of the search. These were placed in evidence.

The appellant testified that he was simply working on the premises and was not aware his companions had purchased some items which ultimately turned out to have been stolen. The appellant made a motion to exclude and a motion for a judgment of acquittal at the close of the State’s evidence. He also filed a motion for new trial' which was overruled by the trial court.

I

The appellant first avers in brief that “there is a fatal material variance in the indictment which charges property taken was personal property of a named individual and proof showed the property belonging to a corporation.” We have carefully examined this record and find no challenge to the indictment anywhere in this record. It should be noted that the motion for new trial avers that the trial court erred in-overruling the demurrer to the indictment but the aforesaid demurrer is nowhere to be found in this record. Secondly, there was no challenge either by motion to quash the indictment or demurrer challenging the legal sufficiency of the indictment or pointing out that there was some variance between the allegations made and the proof offered.

Moreover, the State’s proof at trial, through Mr. Newman, was simply that he owned and operated a trucking business in Fayette County, Alabama, on the date in question and that there was the large truck removed from his premises on the date and gave its description and stated where he had left it. It was the appellant, through counsel, who brought out the fact that the bill of sale was made out to N & N Trucking Company, Inc., and on inquiry on cross-examination, Mr. Newman stated that he and his wife owned all of the stock. He stated that he was president of the company and that she was secretary-treasurer and that he owned 99 of the 100 shares of stock. He also owned the land on which the truck was situated at the time it was taken. Following this testimony, there was no challenge or motion made with reference to the alleged discrepancy between ownership as laid in the indictment and proof offered at trial.

Some time later during the trial, and after an issue was made with reference to a conversation with a juror, appellant’s counsel moved to exclude the testimony of Mr. Owel Newman, who he stated the proof showed was not the owner of the truck as charged, but rather the truck was owned by N & N Trucking Company, Inc. This is not the proper way to raise a discrepancy between the ownership of the property at issue.

Moreover, we fail to see how the appellant is injured, since his own counsel brought out on cross-examination the ownership by the corporation when the proof offered on direct was simply that Mr. Newman was the owner of the business and of the truck in question. Thus, the trial court properly overruled the motion to exclude on this basis. See Boutwell v. State, 432 So.2d 531 (Ala.Cr.App.1983).

II

Appellant next challenges the indictment in that the appellant states that the indictment fails to show that the Code of Alabama 1975, § 15-8-70, was complied with by a presentment to the judge in open court in the presence of eleven other grand jurors. Appellant’s counsel states that the circuit clerk failed to sign the indictment.

The provisions of the Code section above referred to indicate that the endorsement by the circuit clerk is merely directory. Russell v. State, 33 Ala. 366 (1859).

Moreover, any challenge to the indictment pointing out that such has not been properly endorsed or properly presented in court must be made before pleading the general issue in the case. Jackson v. State, 74 Ala. 26 (1883). Thus, the issue is not properly presented for review in this case.

Ill

The appellant argues that the seized items taken at the premises of Mr. Hershel Phillips were the result of an illegal search and seizure carried on by sheriff’s deputies of Fayette and Walker Counties, acting jointly, but without a search warrant and without probable cause. This contention is without legal merit. Each of the officers who took part in the search of the premises on May 25, 1982, told of finding the appellant standing over the hood of a truck with his companion and also stated that the appellant’s father told them that they could come back and search the premises in question. The appellant simply replied, “All right” and turned around and walked off. The consent to search, moreover, was borne out through the testimony of Mr. Hershel Phillips, who stated at trial that he did, in fact, give his permission to the deputies to make the search in question.

Taylor v. Alabama, 399 So.2d 881, 891 (Ala.1981) states:

“A search warrant is not required when the party in control of the searched premises gives his consent to the search, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). The consent, however, must be ‘freely and voluntarily given,’ and the prosecution has the burden of proving voluntariness, Bumper v. North Caroli na, 391 U.S. 543, 548, 88 S.Ct. 1788,1791, 20 L.Ed.2d 797 (1968). Consent given after a claim of authority to search by a police officer is not valid, since he has in effect told the occupant of the house that he has no right to resist the search. ‘Where there is coercion there cannot be consent.’ 391 U.S. at 550, 88 S.Ct. at 1792. However, ‘knowledge of a right to refuse is not a prerequisite of a voluntary consent.’ 412 U.S. at 234, 93 S.Ct. at 2051. Although consent may not be coerced, either explicitly or implicitly, ‘[vjoluntariness is a question of fact to be determined from all the circumstances.’ 412 U.S. at 248-49, 93 S.Ct. at 2058-59. While knowledge of the right to refuse consent to a search, or lack thereof, is a factor to be considered in assessing voluntariness, it is not determinative. 412 U.S. at 249, 93 S.Ct. at 2059.” Jackson v. State, 414 So.2d 1014 at 1021 (Ala.Crim.App.1982).

As noted above, the appellant’s father gave consent for the search to be made of the premises in question and he in fact, being the owner, had the authority to do so. See Scott v. State, 337 So.2d 1342 (Ala.Cr.App.1976) and Toston v. State, 333 So.2d 161 (Ala.Cr.App.1976).

Under the evidence here presented at trial, a jury question was presented and the State therefore properly presented a prima facie case and appellant’s motion to exclude and motion for judgment of acquittal were properly overruled. Diggs v. State, 54 Ala.App. 414, 309 So.2d 123 (Ala. Cr.App.1975).

IV

The appellant argues that the district attorney made prejudicial remarks to the venire being selected just before trial. (R. 5-9)

“THE COURT: Anything further for the State?
“MR. JOHNSTON: I’d just like for Mr. Knight to know which case we will be trying today. There are five pending cases and I just want him to know that of the five cases we want to try case number CC-82-134.
“THE COURT: Anything further?
“MR. JOHNSTON: Nothing further.
“THE COURT: Mr. Knight?
“MR. KNIGHT: No, sir.
“THE COURT: Ladies and gentlemen, you can be excused for about 30 minutes. The attorneys will strike a jury and when you return twelve of you will stay and the rest of you will be released. You can now be excused.
“(Prospective jurors were dismissed for 30 minutes.)
“(Prospective jurors not present.)
“MR. KNIGHT: Judge, I’d like to file a Motion for Mistrial on the basis of statements and comments made by the District Attorney that there were five pending cases and that he wanted to tell me which of the five pending cases was going to be tried. I think that is highly prejudicial. I think it influences the ve-nire prior to striking in placing in their mind that there are five pending cases against this defendant which, in fact, there isn’t and I’d like to move for mistrial at this time.
“MR. JOHNSTON: I might say this. The fact is that the five cases are against three different defendants and they are on this docket and, until this morning, I didn’t know that Mr. Knight knew which case we were going to try.' He telephoned me last night to ask which case it was and at that time I didn’t know.
“The purpose of what I said was to let him know which defendant in which case and since he hadn’t asked, I didn’t know whether he knew or not which case we were talking about.
“MR. KNIGHT: There are actually only four cases pending on today’s docket and I don’t think it can be erased in their mind that this guy has got five cases pending against him.
“THE COURT: He didn’t say five cases pending against this individual. He said of the five cases pending we want to try this case. The other cases could have been pending against anybody. He didn’t say there were five cases pending against this individual or that these other cases were in any way related. I took it he was merely pointing out which case on the docket we were trying.
“MR. KNIGHT: Judge, you and I understand what his statement was, but the venire that knows nothing about it could only assume from that statement that the five pending cases were against this defendant.
“THE COURT: I don’t think the statement was an announcement to the jury venire. He didn’t make it in a loud voice, he made it directed toward the Court and you and I don’t know that the Jury, for that matter, even heard it and if they did, it’s not my opinion that the total circumstances surrounding what was said and the way it was said was such as to taint their minds.
“MR. KNIGHT: In answer to that, Your Honor, I would have to say that some of those jurors were as close to his statement, where he was standing, as you and I were. In fact, some of them were probably closer to have heard his statement and there’s no way for me to know whether they all heard it or only half of them heard it, but I think it would be highly prejudicial to put this man on trial.
“THE COURT: I’ll give you the opportunity, if you would like, to voir dire the jury on that point. The jury has not been selected. I’ll give you the opportunity to ask the jury if they heard the question and then follow it up with additional question as to whether or not, if they said they did, this was something they couldn’t erase from their minds and, if they- say they cannot give the defendant a fair and impartial trial, then they can be struck for cause.
“MR. KNIGHT: I just think the damage has been done and I don’t know if it can be removed.
“THE COURT: I think your choice is to make an objection and give the Court the opportunity to remove it. Moving for a mistrial is not the way to do this because to merely move for a mistrial and have a hearing in Chambers does not give the Court an opportunity to correct it.
“MR. KNIGHT: I will enter it also as an objection and if the Court wants to make a comment, that, of course, is in your purview for today.
“THE COURT: You want to enter it as an objection in open court in front of the jury?
“MR. KNIGHT: I also, of course, want to enter it as a Motion for Mistrial.
“THE COURT: I want you to make your choice. You’re trying the case, but you recognize the fact that if you make an objection in open court I’m going to voir dire the jury, if you don’t, on this point and ask them individually if they heard the statement and if it tainted them.
“We can’t sit back here and assume that the entire jury is tainted. So, you’re either going to have to make your objection — -that’s going to be your choice and it will be made in open court and I’ll then voir dire the jury on this point.
“MR. KNIGHT: I stand on my motion for mistrial.
“THE COURT: You decline to object to the statement made by the District Attorney?
“MR. KNIGHT: In the form of an objection, yes, sir. .I’m objecting in the form of a mistrial.
“THE COURT: Requesting a mistrial is not an objection to the statement. So, your Motion has been made and your Motion for Mistrial is overruled.
“(Prospective jurors present.)”

As noted by the trial court, the assistant district attorney was simply informing defense counsel as to the case number óf the particular case that would be tried that morning. Counsel had telephoned him the night before and asked which case would be tried first. The appellant’s name was not mentioned nor was there any indication that the remaining cases were all against this appellant. In fact, the cases were against two other defendants. We see no error in the trial court’s ruling denying appellant’s motion for mistrial. The granting of a motion for a mistrial is an extreme measure and in light of the record here presented, we are of the opinion that such motion was properly denied. See Nix v. State, 370 So.2d 1115 (Ala.Cr.App.1979), cert. denied, 370 So.2d 1119 (Ala.1979).

V

Finally, appellant’s counsel urges that error occurred when a discussion took place between Mr. Newman, the owner of the truck, and a juror in the hall during a recess. (R. 96-99).

“MR. KNIGHT: First, Judge, I want to make a Motion for Mistrial and as basis for that state to the Court that a juror, Joel Killingsworth, was observed yesterday, after our recess, shaking hands with and talking to Mr. Owel Newman in the hall outside the courtroom.
“Also, the same juror was observed going into the Judge’s Chambers or secretary’s office on two occasions and I feel like it’s highly improper and that’s contrary to the Judge’s instructions to them. I feel like that that’s the basis for an attempt to influence or an overt act on the part of the complaining witness with one of the jurors and I move for Mistrial.
“THE COURT: You say ‘going into the Judge’s office’, he didn’t go into my office as such.
“MR. KNIGHT: Not into your private office. On two occasions he went into your secretary’s office.
“THE COURT: What did he do in there?
“MR. KNIGHT: I was not there. The two witnesses who observed him are sitting out here in the hall.
“THE COURT: I have a bathroom right there.
“MR. JOHNSTON: I know one thing he did. He asked me where there was a phone he might use and I told him he might use that one in there.
“THE COURT: If you want me to call the juror in and ask him if he and the complaining witness discussed the case or ask both of them if there was any discussion of the case, you have the right to do so, but I don’t know what the duration of the conversation was. You’re going to need to go further. On the face of you just making the motion without supporting it in any way I'll deny it. At the same time, Fni telling you that you have the opportunity to try to go further with it, if you’d like to.
“MR. KNIGHT: The fact that the complaining witness in the case who sat at the trial table takes the opportunity and time to talk to one of the jurors and shake hands with him, Judge, I think, is highly prejudicial. I think that for me to question him would certainly aggravate and make the jeopardy of my client even worse.
“MR. JOHNSTON: Your Honor, my position is he’s going to have to prove his allegation that it’s prejudicial. The mere fact he states its prejudicial, I don’t think, has any weight to the motion at all.
“MR. KNIGHT: Well, if the Court allows, ask Mr. Newman to come in and ask him.
“THE COURT: I’ll allow you to do whatever you want.
“MR. KNIGHT: May I have him come in and put it on the record?
“THE COURT: Yes.
“OWEL NEWMAN was previously sworn and testified as follows:
“DIRECT EXAMINATION
“BY MR. JOHNSTON:
“Q. You’ve already been sworn as a witness. Mr. Knight has questioned your shaking hands with one of the jurors — what’s his name?
“MR. KNIGHT: Joel Killingsworth.
“Q. —and says you had some kind of conversation with him, and for the record, we need to know what that conversation was about and then the Judge is going to decide whether it’s prejudicial as far as the case is concerned. Could you tell us?
“A. I know when you’re talking about. It’s after the map was drawn yesterday and I walked by and Joel was standing there looking at the map and I said, ‘Pretty good artist’, you know, we just commented on the drawing and that was the extent of the conversation.
“Q What did he say, if anything?
“A Seems like he said yeah it is or something like that.
“Q Did you shake hands with him?
“A I can’t remember if I shook hands or not now. I can’t remember. I don’t think I did, but I wouldn’t say. A lot of times you might walk up and shake hands with somebody. I do whether I know them or not, but that was the extent of it.
“THE COURT: I believe you said it took place in the hallway. Did you see him again outside the courtroom that you recall?
“THE WITNESS: Not that I recall. The only time I’ve been back there was to use the restroom or get a cup of coffee and he’s been on the stand every-time I’ve been back there.
“THE COURT: He’s been in the jury box?
“THE WITNESS: Yeah, right.
“MR. KNIGHT: Do you know Joel Killingsworth?
“THE WITNESS: No, sir, never seen him before the trial.
“MR. KNIGHT: Judge, I think that comment on the evidence that’s been introduced by the State is involving discussion of the case.
“THE COURT: Do you want to ask him anything?
“MR. KNIGHT: No.
“THE COURT: Your Motion for a Mistrial on those grounds will be denied.
“MR. KNIGHT: I except.”

As indicated in the trial court’s ruling, Mr. Newman had simply indicated that he was going into the secretary’s office to wash his hands and there was, in fact, no discussion with reference to the particular map which had been placed in evidence. Mr. Newman indicated that he.really did not know Mr. Killingsworth, the juror, and, in fact, the record discloses that there was no discussion with reference to the evidence before them. The appellant’s motion for mistrial was properly denied. There has been no showing of prejudice to appellant which would justify the granting of such motion. See Cox v. State, 394 So.2d 103 (Ala.Cr.App.1981) and Woods v. State, 367 So.2d 974 (Ala.Cr.App.1978), also Anderson v. State, 389 So.2d 180 (Ala.Cr.App.1980).

We have carefully examined this record, including all assertions of error made by the appellant on this appeal. This record is free of error and the judgment of the trial court is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Michael Dutch BLUES, alias v. STATE of Alabama.
    1 Div. 732.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Paul D. Brown, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

The appellant in this case was indicted for burglary in the third degree in violation of § 13A-7-7, Code of Alabama 1975. The jury found the appellant guilty as charged in the indictment and the trial judge sentenced the appellant to 20 years’ imprisonment as a habitual offender.

I

The appellant raises three issues on appeal. First, he contends his constitutional rights were violated because the prosecution used its peremptory strikes to exclude young, black males from the jury. This white appellant has failed to demonstrate that he was prejudiced by the prosecution’s use of its peremptory strikes. Walker v. State, 428 So.2d 139 (Ala.Cr.App.1982). Therefore, there is no error for reversal on this issue.

II

Secondly, the appellant alleges error in this cause, because the trial court failed to instruct the jury on trespassing as a lesser included offense. The appellant failed to submit a written charge on the subject and, therefore, this issue is not preserved for our review. Ala.Code § 12-16-13 (1975). Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed 414 So.2d 993 (Ala.1982).

III

Thirdly, the appellant claims his sentence was disproportionate to the nature of the crime he committed. Considering the appellant’s prior record, his sentence does not offend the holding of the United States Supreme Court in Solem, Warden v. Helm, - U.S. -, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Jackson v. State, 440 So.2d 1181 (Ala.Cr.App.1983).

Therefore, for the reasons stated above, this case is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Amelia MOORE, alias v. STATE of Alabama.
    3 Div. 726.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    William W. Gobrecht of Skinner & Go-brecht, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

On June 5, 1982, Amelia Moore stabbed 72 year old Leroy Sankey with a knife. She was indicted for assault in the first degree in violation of § 13A-6-20, Code of Alabama 1975. The jury found the appellant guilty of the lesser included offense of assault in the second degree and the trial judge set sentence at 15 years’ imprisonment in the penitentiary.

I

The appellant contends the trial judge erred by failing to instruct the jury on assault in the third degree as a lesser included offense. We do not agree.

First of all, § 12-16-13, Code of Alabama 1975 requires the trial judge to mark all written charges as “given” or “refused” and sign them. None of the charges in this case were so marked or endorsed by the trial judge and therefore, this issue is not preserved for our review. Rush v. State, 397 So.2d 195 (Ala.Cr.App.), cert. denied, 397 So.2d 197 (Ala.1981); Davis v. State, 401 So.2d 218 (Ala.Cr.App.), cert. denied, 401 So.2d 221 (Ala.1981).

Secondly, § 13A-l-9(b), Code of Alabama 1975, states that the court should not charge on a lesser included offense unless there is a rational basis for giving such a charge. We do not believe a rational basis exists in this case which would support a charge on assault in the third degree, under the evidence.

Assault in the third degree requires only physical injury as opposed to assault in the second degree which requires serious physical injury. Serious physical injury is defined by § 13A-l-2(9), Code of Alabama 1975 as:

“Physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

The appellant claims the jury should have been given the charge on assault in the third degree because the question of whether the physical injury sustained by the victim was serious or not was a question to be determined by the jury. See Alvis v. State, 434 So.2d 859 (Ala.Cr.App.1983).

In the case at bar, the elderly victim was stabbed within one inch of his heart and he required three weeks of hospitalization in intensive care due to this injury. We believe the trial judge was correct in characterizing the victim’s wounds as serious and therefore refusing to give a charge on assault in the third degree.

Thus, we find no error on this issue.

II

The appellant was convicted of assault in the second degree which is a Class C felony. This offense was committed with a deadly weapon. The proper sentence for a Class C felony committed with a deadly weapon is exactly 10 years. Smith v. State, 447 So.2d 1327 (Ala.Crim.App. 1983). Therefore, in light of the fact the appellant was sentenced to 15 years’ imprisonment, we must remand this cause for proper sentencing in accordance with Smith v. State, supra.

Por the reasons stated above, the judgment of the trial court is affirmed, but the case is remanded for proper sentencing.

AFFIRMED; REMANDED FOR PROPER SENTENCING.

All the Judges concur except SAM TAYLOR, J., who recuses self as he was trial judge.


text:
    James TERRY, Jr. v. STATE of Alabama.
    8 Div. 957.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      James D. Chadbourne, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

James Sidney Terry, Jr. was charged with the murder of one Susan Diane Terry, by shooting her with a pistol, in violation of § 13A-6-2, Code of Alabama 1975.

The appellant pled not guilty and not guilty by reason of insanity. The jury found the appellant “guilty of murder” and following a sentencing hearing, the trial court fixed punishment at life imprisonment.

There is no challenge in this appeal as to the sufficiency of the evidence from which the appellant was convicted.

On September 16, 1982, at approximately 7:00 p.m., neighbors of the victim observed the appellant drive up to the victim’s house. He entered the home through the garage and was observed carrying a pistol. A short time after his arrival, the neighbors stated that they heard three gunshots and observed the appellant leave the home carrying his young son with him. The appellant then drove away. The police were summoned and upon arrival they found Diane Terry’s body in the kitchen of the home.

The appellant drove to the home of his parents, left the child with his mother, and he and his father went to the police station. The appellant admitted the shooting and told police that he threw the gun down in the garage of Diane Terry’s home.

During the trial of the case, the appellant introduced evidence of a long history of mental illness, dating back to 1971. The State submitted this evidence with a deposition from Dr. Alexander Salillas, a psychiatrist on the staff of the Taylor Hardin Secure Medical Facility. Dr. Salillas stated that the appellant was competent to stand trial and cooperate with his attorney, and that he could find nothing to support that the appellant would have been inculpable and not responsible at the time of the shooting.

I

The appellant contends on this appeal that the trial court erroneously limited the examination of witnesses in three specific instances during trial, thus depriving him of effectively asserting his insanity defense.

(A)

The appellant first argues that his cross-examination of the State’s forensic pathologist, Dr. Josephino C. Aguilar, was improperly limited. It should be noted initially that the range and extent of the cross-examination of a witness is a matter within the sound discretion of the trial court, and if the trial court determines that a question is not on a material issue in the case or is irrelevant, this court should not reverse that determination, unless the record reveals a clear abuse of discretion by the trial court. Coburn v. State, 424 So.2d 665 (Ala.Cr.App.1982); Maund v. State, 361 So.2d 1144 (Ala.Cr.App.1978); Turner v. State, 48 Ala.App. 754, 265 So.2d 885 (1972). A review of the record in this cause reveals that the trial court did not abuse its discretion in sustaining the State’s objection to the question posed and therefore this determination will not be overturned.

(B)

The appellant’s next contention is that the trial court improperly limited the testimony of James S. Terry, Sr., and Lee Terry, parents of the appellant, regarding high school awards of the appellant. The general rule propounded in such a situation as this is that one cannot show the character of the accused by prior specific acts of a good nature. Gamble, McElroy’s Alabama Evidence, § 26.01(1), 1975. Generally, great latitude is allowed in admitting evidence having a tendency to throw light on the mental condition of a defendant whose insanity is in issue. Winford v. State, 16 Ala.App. 143, 75 So. 819 (1917); Hembree v. State, 21 Ala.App. 577, 110 So. 171, cert. denied, 215 Ala. 246, 110 So. 172 (1926). However, in the instant case, the limitation placed on this appellant’s examination of witnesses in no way deprived him of asserting his insanity defense. In fact, the record reflects that ample testimony was elicited concerning this man’s sanity. Our examination of the record reveals no abuse of discretion by the trial court in this case on this matter.

II

The appellant finally argues that the trial court committed reversible error in its oral charge to the jury. The short answer to this contention is that no exceptions were reserved to the oral charge. When the trial judge asked if there was anything further, after his giving the oral charge to the jury, the appellant’s counsel announced, “No, sir, Your Honor”. (R. 208). In this state of the record nothing is presented for review. In the absence of an exception to the oral charge, the claimed error cannot be raised for the first time on appeal. Not only must the exception be reserved to the oral charge to invite a review, but it must be done before the jury retires to deliberate on the verdict. Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967); Showers v. State, 407 So.2d 169 (Ala.1981); Johnson v. State, 421 So.2d 1306, 1307 (Ala.Cr.App.1982); Williams v. State, 390 So.2d 310 (Ala.Cr.App.1980).

Our examination of the record in this cause reveals no error.

The judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte David WAKEFIELD. (Re: STATE of Alabama v. David WAKEFIELD).
    6 Div. 166.
    Alabama Court of Criminal Appeals.
    April 20, 1983.
    Rehearing Denied May 9, 1983.
   PER CURIAM.

PETITION GRANTED. ORDER ISSUED FOR TRIAL COURT TO VACATE AND SET ASIDE THE SENTENCE OF 45 YEARS’ IMPRISONMENT; AND FURTHER THAT THE TRIAL COURT IS ORDERED TO SET SENTENCE AT 10 YEARS’ IMPRISONMENT IN ACCORDANCE WITH ALABAMA CODE 1975, SECTION 13A-5-6(a)(5).

All the Judges concur.