text:
    Millard A. NELSON and Nancy S. Nelson v. Carl Ray VICK.
    Civ. 4253.
    Court of Civil Appeals of Alabama.
    Oct. 31, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-199.
    ' Pamela W. Baschab and Thomas W. Underwood, Jr. of Chason & Underwood, Foley, for appellants.
    John D. Whetstone, Gulf Shores, for ap-pellee.
   ON APPLICATION FOR REHEARING

EDWARD N. SCRUGGS, Retired Circuit Judge.

Upon rehearing, the original opinion in this cause is withdrawn and the following is substituted in its stead in order to clarify or correct certain factual matters.

This civil action concerns a contract to sell a small house and lot.

Under the terms of their June 19, 1978 agreement, the Nelsons (the sellers) agreed to sell the property to Vick (the buyer) in consideration of a down payment of $1,000, which was paid, and the balance of the purchase price, $24,350, was to be paid by monthly installments of $185, which included interest to date at the rate of eight and one-half percent. According to the contract, the payments were to commence on June 15, 1978 and to continue on the fifteenth of each succeeding month until the entire principal sum and all interest had been paid. All installments were to be made to the sellers’ savings account at a certain savings and loan association. The buyer was required to pay all taxes levied against the property but, if he failed to do so, the sellers, at their option, could pay the taxes; however, a tax payment by the sellers could not be construed as a waiver of the breach of the agreement until full repayment had been made to and accepted by the sellers of all monies so expended by them. The agreement further provided that time was of the essence as to the contract and the following was an additional provision:

“Should the Purchasers fail to pay said installments as the same become due or should they breach any of the other conditions. of this contract, in any of said events, at the option of the Sellers, all rights of the Purchasers to said land shall cease, determine and be void, and they shall immediately vacate said property, and all payments made by them to the Sellers shall be retained by the Sellers as rent and liquidated damages.”

The agreement did not contain any acceleration clause in the event of a breach by the buyer. There was no provision to the effect that acceptance by the sellers of late installments would not constitute a waiver on their behalf.

From June 15, 1981 through July 1982, the buyer’s monthly deposits of payments to the sellers’ savings and loan account were not made on a timely basis. During that time fourteen payments became due and on thirteen occasions he was either late or missed a payment according to the savings and loan records. One of the sellers testified that “they were due on the 15th of each month and he made them at all times of the month.” It is reasonable to infer from the evidence that the sellers were aware of the untimeliness of the buyer’s payments during that period, yet there is no testimony that any complaint about that matter was made to the buyer by the sellers. There was a dispute in the evidence as to whether, at the end of that period of time, the buyer was current in his installments or whether he failed to make either two or four monthly payments. A representative of the savings and loan association testified that they only accepted deposits to the savings account of the sellers and that, as such, they did not collect contract payments from the buyer.

There was evidence that the sellers for the first two years sent a bill to the buyer for the taxes but the buyer disputed receiving any bill. The property was assessed in the name of the sellers. The taxes were paid for four years by the sellers and the buyer admits that he did not reimburse them therefor.

The buyer had rented the house to his tenant. In July 1982 the sellers wrote to the buyer that they were repossessing the property. In September 1982 the buyer inquired of the sellers as to the payoff and was informed that he had two weeks to pay the balance then due. The buyer having failed to pay that amount within three weeks, the sellers required the buyer’s tenant to move, repossessed the property, and sold it to third parties subject to the outcome of this litigation.

The sellers sought to quiet title to the house and lot, and they further requested a declaratory judgment as to their rights under the contract with the buyer. The trial court determined the evidentiary disputes through the final judgment of January 12, 1984. In accordance with the issues presented at the ore tenus trial, the findings of the trial court were as follows:

“1. That the parties entered into a land sale contract on June 19, 1978.
“2. That a total of 49 payments came due under said contract as of July 25, 1982.
“3. That the defendant made only 47 payments under the contract prior to July 25, 1982 and that the defendant is not due credit for payments in August, 1979 and January, 1982.
“4. That the defendant has failed to pay the ad valorem taxes due on the property described in said contract for 1978, 1979, 1980 and 1981.
“5. That the plaintiffs’ continued acceptance of payments has waived any default by the defendant.
“6. That because of such waiver, the plaintiffs wrongfully took possession of the property described in said contract and have wrongfully withheld the same since that time.
“7. That the plaintiffs received rents after wrongfully retaking possession of said property in the sum of $400.00.
“It is therefore ORDERED, ADJUDGED and DECREED that the defendant shall be given possession of the property in question on or before March 1, 1984.
“It is further ORDERED, ADJUDGED and DECREED that the defendant shall pay to the plaintiff as a condition precedent to receiving possession of the homeplace, the sum equal to the payment due under the contract for August, 1979 and January, 1982 plus interest at the lawful rate from the date on which said payment should have been made plus the amount expended by the plaintiffs for taxes on the property plus interest at the lawful rate from the date the plaintiffs paid such taxes less the sum of $400.00 as the amount of rents received by the plaintiffs during the period of wrongful possession by plaintiffs.
“It is further ORDERED, ADJUDGED and DECREED that the defendant is not liable for taxes falling due on the property in 1982 and 1983 but shall be fully responsible for all ad valo-rem taxes coming due October 1, 1984.
“It is further ORDERED, ADJUDGED and DECREED that all payments accruing from July 25, 1982 to February 15, 1984 shall be suspended and that the defendant shall resume payment of the remaining balance due under the land sale contract according to its original amortization; that the date of the first payment due from the defendant to the plaintiffs shall be March 15, 1984 which shall be construed as payment No. 50 on the original amortization schedule of the remaining balance due under the land sale contract.”

The decisive primary question presented for our review is whether the trial court erred in determining that the sellers’ acceptance of the buyer’s late monthly payments waived the buyer’s default.

The contract expressly provided that time was of the essence as to the agreement. Nevertheless, even that provision may be waived by the seller. Waiver is the intentional relinquishment of a right. It is ascertained from the external acts manifesting the waiver, and may be found when one’s course of conduct either indicates a waiver or is inconsistent with any other intention. Givens v. General Motors Acceptance Corp., 56 Ala.App. 561, 324 So.2d 277 (Ala.Civ.App.1975). Facts vary from case to case and ordinarily the question of a waiver is a factual issue, but if the evidence, or any reasonable inference therefrom, fails to furnish a scintilla of evidence in support of a waiver, the fact-finder is precluded from factually deciding that a waiver exists. Auto-Plaza, Inc. v. Central Bank, 394 So.2d 6 (Ala.1980). While the Auto-Plaza case was concerned with an equitable estoppel, that aspect of it is general law and is fully applicable to a question of waiver by a seller of a buyer’s late payments. In Putman Realty & Auction, Inc. v. Bailes, 371 So.2d 658 (Ala.1979), it was determined that a jury question as to estoppel was presented. When the evidence of estoppel was present and susceptible to different reasonable inferences, the issue was one of fact. Here, there was evidence that, as to these last fourteen payments which were due before the July 28, 1982 notice, the sellers accepted thirteen late or missed monthly payments from the buyer without complaint from them. There was nothing to prevent the sellers from instructing their savings and loan association to reject any and all late payments, but they did not do so. There is no evidence of any warning, request, demand, or complaint in that regard having been made to the buyer prior to their giving him the July 1982 repossession notice. The contract contained neither an acceleration clause nor a nonwaiver provision as to late payments, and that is one major distinguishing factor as to many of the eases cited by the sellers.

A decree of a trial court which is rendered after sitting ore tenus carries with it a presumption of correctness and will not be disturbed unless it is palpably wrong or is without supporting evidence. Moseley v. Lathan, 448 So.2d 341 (Ala.1984). We find nothing in the record to overcome this presumption of correctness. A question of fact was presented for the trial court to determine whether the sellers had waived the contract provision that time was of the essence and whether the many defaults of the buyer in making late payments constituted a waiver. Those issues were decided in favor of the buyer by the trial court. That decision was supported by the evidence and was not palpably wrong. There was no misapplication of the law to the facts by the trial court.

We affirm.

The sellers’ application for rehearing is overruled.

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

AFFIRMED.

APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.

      . The original purchasers were Vick and his then-wife. Prior to the commencement of this action, the Vicks were divorced, with that wife conveying her interest in the property to the husband.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    In the Matter of Rodney Cornelius MASTIN, Allenedra Mastin, Quintet Mastin, Children under the age of eighteen years. Susie MASTIN v. STATE of Alabama, DEPARTMENT OF PENSIONS AND SECURITY.
    Civ. 4310.
    Court of Civil Appeals of Alabama.
    Nov. 14, 1984.
    Rehearing Denied Dec. 21, 1984.

      Jerry S. Barclay, Huntsville, for appellant.
    Mary Lee Stapp and John Coleman Campbell, Asst. Attys. Gen., for appellee.
   BRADLEY, Judge.

This is a parental rights termination case. The Juvenile Court of Madison County terminated the parental rights of the mother, Susie Mastín, to all three of her children, Allenedra, Rodney Cornelius, and Quintet. Additionally, the court terminated the parental rights of Allenedra’s father, George Moore.

From this decree the mother appeals and presents two issues: (1) Did the trial court fail to recognize the right of the mother to the custody of her own children? (2) Did the trial court terminate the parental rights when there was no clear and convincing evidence before it?

The applicable law on this subject is as follows:

“ ‘Where the dispute over custody of a child is between the child’s natural parent and a party who is not the child’s natural parent, the natural parent has a prima facie right to the child’s custody. However, the right is not absolute but is subject to the equally well settled rule that the best interests and welfare of the child are controlling in child custody cases. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973).’
“Ely v. Casteel, 341 So.2d 730 (Ala.Civ.App.1977).
“In a termination of parental rights case, the ore tenus rule applies. This means that the judgment of the trial court is given every favorable presumption and will not be overturned unless it is palpably wrong. Hudgins v. State, 418 So.2d 913 (Ala.Civ.App.1982).
“Before a trial court can terminate a parent’s right to custody of its child, there must be clear and convincing evidence before the court that it would not be in the child’s best interests to be in the natural parent’s custody. Vinson v. AGAPE of Central Alabama, Inc., 416 So.2d 1075 (Ala.Civ.App.1982).”

Matter of Rivera, 444 So.2d 858 (Ala.Civ.App.1983).

Viewing the testimony with these presumptions, we find the following:

Susie Mastín was taken from her mother by the Department of Pensions and Security at an early age. Her mother had been diagnosed as schizophrenic. Susie was placed in several of DPS’s facilities, all of which she ran away from on numerous occasions. At least four times she was sent to the detention home. While in DPS’s care, Susie achieved an eighth grade education.

At age fifteen Susie gave birth to her first child, Allenedra. At sixteen Susie gave birth to Quintet. At nineteen her son, Rodney, was born. Each child has a different father. Quintet’s father is unknown. Susie has never been married.

Once released from the control of DPS, Susie fared badly. In March 1981 Susie’s mother complained to DPS that Susie was leaving Allenedra and Quintet with her for days at a time, and without adequate food. A DPS social worker, Irene Smith, began a lengthy involvement with the case. She visited Susie and found that Susie depended on friends for food, even though by then Susie was receiving extensive government assistance. Mrs. Smith took Susie to the mental health center, the well-child clinic, an OB-GYN physician, and to a family physician. She enrolled Susie in GED courses to prepare her to take a high school equivalency exam, which she eventually passed. DPS also provided homemaker services to Susie, whereby an agent, Margaret Morris, attempted to teach Susie parenting and housekeeping skills. Mrs. Morris helped Susie obtain completely government subsidized housing, government subsidized utility payments for at least one year, food stamps for sixteen months, ADC checks, free milk, and furniture for the house. She helped Susie prepare food and kept the children while Susie attended GED classes, to which she provided transportation. Mrs. Morris worked with Susie for sixteen months, meeting sixty-two times and accumulating one hundred forty-one hours with her. Even with all of the government assistance she was receiving, Susie was unable to fulfill her financial obligations. According to Mrs. Smith, this was due to Susie’s unwillingness to budget or follow the financial guidelines she had been shown. Mrs. Smith testified that Susie had adequate financial resources but would not use them properly. At times Susie reacted well to the assistance she was given. At other times Susie refused to even speak to Mrs. Smith when Mrs. Smith tried to talk to her.

Susie was enrolled in vocational rehabilitation to prepare her for employment. She was involved with this program for thirty-nine weeks, from March 1983 until September 1983. While there, Susie developed work skills but was demanding, inflexible, and lacked motivation and stability. Susie was terminated due to her unwillingness to cooperate and lack of motivation. She has since refused to reapply to the program.

In December 1983 Mrs. Smith took Susie to the employment office and later to a job interview at SCI Systems. SCI hired Susie and put her through a two and one-half day training program, which she successfully completed. Susie was terminated after two months and several attempts to find a job on which she could maintain the work pace.

In November 1981 Toney Pitts, a management coordinator for the Huntsville Housing Authority, was notified that Susie had vacated her government subsidized house. He visited the house, found that the utilities had been turned off, and that the house was unacceptably dirty. He terminated her involvement in the rental assistance program, only to give her another chance at DPS’s request. When he returned for a prearranged visit, he found that the utilities had still not been turned on and the house had still not been adequately cleaned. He again terminated her involvement with the program. Susie had had about one year’s free housing. Since then Susie has refused to reapply for the program, though she has been urged to do so.

In February 1982 DPS investigated a complaint that Susie had overdisciplined her children. Mrs. Smith found that Quintet, then fifteen months old, and Allenedra, then six years old, had been kept locked in a room. Quintet had seventy-five to eighty switch marks on her back, buttocks, thigh, stomach, and the top of her genital area. Allenedra also had bruises. The children were dirty and unkempt. When Mrs. Smith asked for some clean clothes for the children, Susie pointed to a pile of dirty, soiled clothes in the corner and said she had not had time to wash.

On March 4, 1982 Susie voluntarily entered into a foster care agreement with DPS. Under the agreement Susie would be able to regain custody of the children if she would secure adequate housing and financial means to care for the children.

On May 24, 1982 the court entered a shelter care order, placing custody of Rodney with DPS. Susie agreed to this. This was four days after Rodney’s birth. When questioned about where she would go from the hospital, Susie had stated that she could live with a half-sister and that she and the newborn child could sleep on a couch. Custody of the child has not been placed with Susie since then.

On July 12,1982 the court entered another order, placing custody of Quintet, Al-lenedra, and Rodney with DPS.

On August 18, 1982, and again on December 3,1982, Susie entered into a service agreement with DPS setting forth guidelines to allow her to regain custody of her children if she would obtain employment and housing. Susie never met the guidelines.

The court held a review hearing on March 1, 1983. The court again entered an order providing that DPS retain custody of the children until the mother obtained income and housing.

Susie continued to fail to find housing or income, and on July 28, 1983 DPS filed for permanent custody of the children. The court entered an order placing permanent custody of the children with DPS on April 2, 1984.

Since the order, Susie has not obtained employment or housing. She admits that she also has no place for the children to stay should they be returned to her, since she is living with her mother and three others in a two room house that is heated by a wood stove and does not have adequate ventilation.

From January 1981 until the hearing on permanent custody, Susie had had twenty-two residences, her longest one for six months. Mrs. Smith asserted that Susie has received the benefits of every service DPS has, as well as some from the community, and has not responded. The record is replete with attitude problems on Susie’s part and a general lack of willingness to assist herself or to avail herself of the many kinds of help that were offered to her.

Susie asserts that the trial court erred in not recognizing and protecting the natural parent’s right to custody of her children. We do not agree. A natural parent has a prima facie right to custody of children. Vinson v. AGAPE of Central Alabama, Inc., 416 So.2d 1075 (Ala.Civ. App.1982). However, these rights are not absolutely controlling and are subject to the best interests of the child. Vinson, supra. Here, the best interests of these children will be served by termination of the mother’s parental rights.

Next, Susie contends that there was no clear and convincing evidence upon which the court could terminate her parental rights. Again, we disagree. From the facts as stated above, there was ample evidence from which the trial court could have terminated her parental rights.

For the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    HILYARD DRILLING COMPANY, INC. v. Graham JANES.
    Civ. 4472.
    Court of Civil Appeals of Alabama.
    Jan. 2, 1985.
    Augustine Meaher, III and James E. Robertson, Jr. of Lyons, Pipes & Cook, Mobile, for appellant.
    Broox G. Garrett, Jr. of Garretts, Thompson & Hines, Brewton, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

The employer appeals from an award of permanent total disability benefits to the claimant by the Escambia County Circuit Court. A detailed statement of the facts is unnecessary, as the employer does not contest the finding of disability, but only contends that the duration of the award was not properly limited or defined.

The employer raises two issues on appeal. First, it contends that any award of permanent total disability benefits under the Workmen’s Compensation Act should terminate when the claimant reaches age 65. The employer argues that the claimant would have retired then anyway, and that because of that fact, would have suffered no further loss of earning capacity after age 65.

Second, the employer contends that the trial court should have made provisions in its award for subsequent unrelated injuries or infirmities to the claimant that would impair his ability to return to work.

The workmen’s compensation laws are remedial in nature and are to be liberally construed and applied in order to effect their beneficient purposes. Orkin Exterminating Co. v. Williams, 389 So.2d 935 (Ala.Civ.App.1980). An employee covered under the workmen’s compensation law is entitled to be fully compensated for his job-related injury, and provisions of the law should be liberally construed to accomplish that result. Haggard v. Uniroyal, Inc., 423 So.2d 865 (Ala.Civ.App.1982). All reasonable doubts regarding a provision of the Workmen’s Compensation Act should be resolved in favor of the employee. American Tennis Courts, Inc. v. Hinton, 378 So.2d 235 (Ala.Civ.App.), cert. denied, 378 So.2d 239 (Ala.1979).

Before the Alabama Legislature amended the Workmen’s Compensation Act in 1975, an award for permanent total disability was limited, as were other disability awards, to a specified number of weeks (650). Title 26, § 279(D)(1), Code of Alabama 1940 (Recomp.1958) (as amended 1973).

Act No. 86, Acts of Alabama 1975, amended the Workmen’s Compensation Act. The preamble to Act No. 86 stated that, among other things, the Act was “defining permanent total disability and extending benefits for the duration of the disability.” 1975 Ala.Acts 86. (Emphasis added.) Title 26, § 279(D)(1) was amended to provide that an award for permanent total disability “shall be paid during such permanent total disability.” 1975 Ala.Acts 86 § 5. This amended section, now § 25-5-57(a)(4)a., Code of Alabama 1975, deletes the statutory limitation on the duration of payment of permanent total disability benefits.

Under the new section, it is true that an award for permanent total disability compensation may not be made for a period defined as “for and during his natural lifetime,” because the period of compensation lasts only as long as the disability continues. Thompson & Company Contractors v. Cole, 391 So.2d 1042 (Ala.Civ.App.1980) [construing § 25-5-57(a)(4)a.]. However, the employer’s contention that the claimant’s imminent retirement (age) should be considered to reduce an award of compensation is a contention that has been expressly rejected by the courts of this state. Black Diamond Coal Mining Co. v. Wilson, 274 Ala. 220, 147 So.2d 810 (1962); Allen v. Metro Contract Services, Inc., 421 So.2d 1289 (Ala.Civ.App.1982). While age may be considered in arriving at the percentage of a claimant’s disability, Carroll Construction Co. v. Hutcheson, 347 So.2d 527 (Ala.Civ.App.1977), it may not be considered to reduce the amount or duration of a disability compensation award. Allen, supra.

In view of the statute and these cited authorities, we find no error in the judgment of the trial court.

The employer’s second contention of error is without merit. There is no evidence in the record before this court of any supervening or subsequent injuries to the claimant. Errors committed below must be affirmatively demonstrated by the record before this court. Daniels v. Bona Fada Federated Club 1979-80 Members, 403 So.2d 255 (Ala.Civ.App.1981). If the record does not disclose the facts upon which the error is based, the error may not be considered on appeal. Daniels, supra.

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

AFFIRMED.

HOLMES, J., concurs.

BRADLEY, J., recuses himself.


author: HARRIS, Judge. HARRIS, Judge.

text:
    Edward S. WILLIAMS v. STATE.
    1 Div. 494.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    On Return to Remand Jan. 22, 1985.
    Robert F. Clark, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Judge.

Appellant was indicted by the Mobile County Grand Jury for the offense of robbery in the first degree. The jury returned a verdict of guilty as charged, and the trial court sentenced appellant to fifteen years’ imprisonment. Because the sufficiency of the state’s evidence to sustain the conviction is raised as an issue on appeal, we detail those facts which are sufficient to sustain the jury’s verdict below.

The victim of the robbery, Charles Michael Boatwright, testified he owned and operated a flea market on Dauphin Island Parkway called “The Shop and Swap” on January 21, 1981. Shortly before closing time that day, two young black males entered the store and asked to see a television. Around 4:45 p.m., as Mr. Boat-wright was occupied plugging in the set, a gun was placed against his side by appellant. He was told he was being held up and that he was not to move or get excited. The other assailant, who was unarmed, was instructed by appellant to empty the cash register while appellant went through Mr. Boatwright’s pockets.

Appellant’s accomplice was unable to open the cash register, so Mr. Boatwright was forced to open the drawer. After the money was taken from the register, Mr. Boatwright was instructed to walk toward the rear of the store. The two men fled the store as he began to walk. Out of the corner of his eye, Mr. Boatwright saw a part-time employee, Larry Garrett, drive up and he turned and yelled for him to stop the two men. Before Mr. Garrett could react, the two men fled the scene in an automobile.

Mr. Boatwright talked by telephone with the police. They dispatched officers to his business, and the officers took the robbery report. Approximately fifteen to thirty minutes later, the police returned with two suspects. Mr, Boatwright was able to positively identify one of the suspects as the robber who had carried the gun. He did not recognize the other suspect. Boat-wright then identified appellant in court as being the same man he had identified that day to the police.

Larry Garrett, a former employee of Mr. Boatwright, testified that when he arrived at “The Shop and Swap” on January 21, 1981, he saw two young black males run out the door and get into a large, older model green automobile. Hearing Mr. Boatwright’s calls to stop them, Garrett took down the tag number of their vehicle, which he gave to the police. Subsequently, when the police returned with the suspects, he also was able to identify one of them as one of the men he saw fleeing the store.

Officer Gerard Bolton, Jr. of the Mobile Police Department testified he received a police report of a robbery at Mr. Boat-wright’s store around 5:00 p.m. on January 21, 1981. Included in the report was a tag number, vehicle description, and owner registration and address for the automobile involved in the robbery. Officer Bolton, upon learning the automobile had been located in the vicinity of the owner’s residence, went to its location and then proceeded to the owner’s residence. '

While Officer Bolton was talking with the owner, Zaek Williams, at his residence, Mr. Williams received a telephone call from his son, Eddie Williams, the appellant herein. Officer Bolton then followed Mr. Williams to a nearby location where he arrested the appellant.

Officer Bolton then took appellant and Mr. Williams to the robbery scene. He arrived at the store with the two men approximately twenty minutes after the robbery occurred. After viewing the two men, both Mr. Boatwright and Mr. Garrett identified one of the men as having been involved in the robbery. At that point, Officer Bolton placed appellant under arrest and gave him his Miranda warnings. He was taken to the Criminal Investigation Division of the police department, where he was again advised of his Miranda rights. After signing a waiver form, appellant gave a statement to police in which he admitted driving the automobile to the store for an acquaintance. However, he denied any participation in the robbery, stating that he remained in the automobile, and that he was not aware of his friend’s intention to rob the store. When his friend exited the store, he drove him away. After parking the vehicle, both men ran off in different directions. Appellant then called his father from a friend’s house and told him the car had been stolen. Shortly thereafter, his father arrived with a detective and he was taken to the robbery scene for identification.

The state rested at the close of Officer Bolton’s testimony. Appellant’s motion to exclude the state’s evidence was denied.

Appellant testified on his own behalf and substantiated his earlier statement to police. However, at trial he testified that there had been three people, rather than two, involved in the robbery. He stated he had remained in the vehicle, while his friend and an unknown cousin of his friend robbed the store. He again denied any knowledge of their intention to rob the store.

On rebuttal for the state, Larry Garrett testified he observed only two men running to the vehicle at the time of the robbery. They both entered the front seat, one on the passenger side and one on the driver’s side. He saw no one in the rear seat of the automobile.

Appellant argues that the state’s proof failed to establish that the appellant or his accomplice actually took or attempted to take any property from Mr. Boatwright during the encounter at Mr. Boatwright’s business. Appellant states in brief that the record reflects that “... at no time did the State prove that Edward Williams or anyone acting within concert with him [took] any property from anyone and therefore [he] cannot be guilty of robbery.” We find appellant’s argument to be both factually and legally without merit.

During direct examination by the state, Mr. Boatwright testified as follows:

“Q All right. Did you go up and open the cash register?
“A Yes, I did.
“Q And was there any money in the cash register?
“A Yes, there was.
“Q Do you know how much money? “A I’d say somewhere around forty-five dollars — that I was really sure of.
“Q Okay. What happened after they got all this money out of the cash register?
“A They told me to walk — ”

On cross-examination by appellant’s counsel, Mr. Boatwright testified further as follows:

“Q Okay. And they took some money out of the cash register, you say?
“A Right.
“Q Which one took the money out of the cash register?
“A Let me see, at that time they were both there, so, I think it was the one closest to me with the gun reached in there got the drawer — slipped the thing out and then just poured it into a bag or something. I don’t remember what it was poured into. But I remember some of the change went over the floor.
“Q You don’t remember which one took the money out of the cash register?
“A I believe it was the one with the gun.
“Q If you don’t recall, say you don’t recall. If you recall, say which one he was.
“A I’ll have to say I’m not really sure then.
“Q Okay. That’s all. And do you recall exactly how much money?
“A It was around forty-five dollars.”

As the quotes from the record indicate, the state presented adequate testimony by the victim at trial to furnish sufficient evidence of the elements of the crime charged and to sustain the jury’s verdict of guilty. Pickett v. State, 417 So.2d 589 (Ala.Crim.App.1982).

We point out as well, that robbery in the first degree, as set forth in §§ 13A-8-40, 13A-8-41, and 13A-8-43, Code of Alabama 1975, embraces acts which occur in the “attempt to commit” theft, as well as in the actual commission of theft. Therefore, it was not necessary that the state prove that property was actually taken by the appellant during any attempted theft, where the state’s proof otherwise met the statutory requirements of §§ 13A-8-40, 13A-8-41, and 13A-8-43, Code of Alabama 1975. See, Marvin v. State, 407 So.2d 576 (Ala.Cr.App.1981); Petty v. State, 414 So.2d 182 (Ala.Cr.App.1982). See also, Commentary to Ala.Code §§ 13A-8-40 through 13A-8-44 (1975).

Appellant’s final contention is that his conviction must be reversed because the trial court failed to investigate and examine the appellant in determining whether he should be tried as a youthful offender. The record does not show, and the state does not contend in brief, that appellant was examined for youthful offender status by the court prior to the instant trial. Neither does the state deny that appellant was a minor at the time the crime was committed.

The state asserts, however, that the court's failure to act was harmless error because such an examination was conducted by the trial court pursuant to a prior indictment of appellant for this same offense. That indictment was nol-prossed after a reindictment of appellant for the same offense was returned. A supplemental record submitted by the state, consisting of the ease action summary sheets and the minute entries, is the only reflection of those preceding events. The trial court’s actions are reflected therein as follows:

“3/18/82- Defendant waived trial by jury and requested to be treated as a Youthful Offender-Defendant’s oral request to be treated as a Youthful offender — Denied — Defendant waived reading of indictment and plead not guilty — Defendant’s attorney, Robert Clark, in court— -/4/82 Case crowded out — Defendant’s attorney, Robert Clark, in court.
6/17/82 A Re-Indictment having been re-' turned on defendant; It is ordered and adjudged by the court that this case be and the same is hereby Nolle Prossed— Defendant’s attorney, Robert Clark, in court.
“This day in open court came the State of Alabama by its District Attorney and the defendant in his own proper person and with his attorney, Robert Clark, and the defendant in open court on this day waived trial by jury and requested to be treated as a Youthful Offender.
“And thereupon in open court on this day; It is ordered and adjudged by the court that the defendant’s request to be treated as a Youthful Offender be and the same is hereby denied.
“And the defendant in open court on this day waived reading of the indictment in this case charging him with the offense of Robbery First Degree and plead not guilty.
“Thereupon in open court on this day, defendant’s attorney, Robert Clark, was in court.”

A report of a pre-sentence investigation of appellant is also included in the supplemental record. However, the record reflects the report was not ordered until July 1, 1982. The report is dated July 23, 1982, some four months after youthful offender status had been denied by the trial court on March 18,1982. See Carthon v. State, 419 So.2d 293 (Ala.Cr.App.1982); Reese v. State, 381 So.2d 107 (Ala.Cr.App.1980) (trial judge aware of report and contents prior to determination).

Whether the trial judge’s failure to call the youthful offender act to the attention of the minor appellant and allow him to waive trial by jury and consent to an investigation was harmless error because of the prior proceeding under the original indictment need not be decided per se. The record and supplemental transcript do not reflect that at any time during any of the proceedings “some investigation, examination, or inquiry was had of the defendant before the request was denied.” Watkins v. State, 357 So.2d 156, 161 (Ala.Cr.App. 1977), cert. denied, 357 So.2d 161 (Ala.1978). This court will not overturn the trial court’s exercise of discretion in denying youthful offender status except where it affirmatively appears that the decision was made without some examination or investigation of the youthful offender. Morgan v. State, 363 So.2d 1013 (Ala.Cr.App.1978). However, under the facts reflected by the record herein, we find it necessary to remand the case for further determination. The record reflects no examination of appellant by the trial judge who denied the motion. It affirmatively establishes that the only investigation shown to have been conducted was ordered by a different trial judge from the one who denied the motion. This subsequently conducted investigative report was not admitted until four months after the determination to deny youthful offender status to appellant had been made by the first judge. The judge who actually reviewed the investigative report on appellant never ruled on youthful offender status in any fashion.

Accordingly, this case is remanded to the trial court with instructions, as set forth in Prince v. State, 392 So.2d 853 (Ala.Crim.App.1980), cert. denied, 392 So.2d 857 (Ala.1981), to investigate and examine the appellant at a hearing and determine whether, in its discretion, the appellant should be tried as a youthful offender. Watkins, supra; Edwards v. State, 294 Ala. 358, 317 So.2d 512 (1975).

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

HARRIS, Judge.

An evidentiary hearing was held in this cause in accordance with our instructions. At the close of the hearing the judge denied appellant’s motion to be tried as a youthful offender. The denial was properly based on matters in the record and an investigative report. Appellant appeals the ruling of the court.

On examination of the record, we find no merit to the appeal. The trial judge properly denied appellant’s motion. Prince v. State, 392 So.2d 853 (Ala.1980), cert. denied, 392 So.2d 857 (Ala.1981); Morgan v. State, 363 So.2d 1013 (Ala.Cr.App.1978).

The judgment of the circuit court is affirmed.

OPINION EXTENDED; AFFIRMED.

All the Judges concur.


author: TAYLOR, Judge. BOWEN, Presiding Judge,

text:
    Leroy BLAKE v. STATE.
    3 Div. 903.
    Court of Criminal Appeals of Alabama.
    April 10, 1984.
    Rehearing Denied May 22, 1984.
    Thomas M. Goggans, of Goggans & Mclnnish, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

On October 28, 1982, appellant Leroy Blake was ordered transferred from the juvenile court to the circuit court to be tried for robbery as an adult. In circuit court, the charge was reduced to robbery in the second degree and a guilty plea was entered on July 7, 1983. The court sentenced appellant under the split sentence provisions to one year in prison and one year on probation. The court did not order that appellant be credited with time already served in jail awaiting disposition of his case.

The sole issue presented by appellant is whether the court should have ordered that he be given credit for the time he was incarcerated before sentence. This question must be answered in the affirmative.

Section 15-18-5, Code of Alabama 1975, provides that:

“Upon conviction and imprisonment for any felony or misdemeanor, the sentencing court shall order that the convicted person be credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the board of corrections.” (emphasis added)

The state contends that this court cannot review the appellant’s claim to time served, when neither the transcript nor the brief gives any proof that there was any time served, and that the appellant cannot raise this issue on appeal if he did not raise the issue at the time of sentencing.

We do not find any leeway in the language of the statute, which we are obliged to apply. This order is just another thing that a trial judge must do at sentencing.

Accordingly, this ease is remanded for the sole purpose of compliance with Ala. Code § 15-18-5 (1975).

REMANDED WITH DIRECTIONS.

TYSON, HARRIS and HUBERT TAYLOR, JJ., concur;

BOWEN, P.J., dissents with opinion.

BOWEN, Presiding Judge,

dissenting.

I dissent from the majority opinion. The issue of credit for pre-sentence incarceration was not raised in the circuit court. This Court should not assume that the appellant was incarcerated for this particular offense before sentence. It is a fundamental principle of appellate review that this Court will not presume a fact not shown by the record. Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968); Duncan v. State, 88 Ala. 31, 7 So. 104 (1890). “A reviewing court cannot predicate error on matters not shown by the record.... Indeed, a silent record supports a judgment.” Robinson v. State, 444 So.2d 884 (Ala.1983).

The majority opinion also collides violently with a second traditional and fundamental principle of appellate review. That principle is that, except in those cases where the error is the most flagrant and apparent on the record, this Court will not consider matters which were not raised or considered in the court below. McKissick v. United States, 379 F.2d 754 (5th Cir.1967).

While the particular issue on which this case is remanded is relatively insignificant in that it only concerns sentence and has nothing to do with guilt or innocence or the manner in which the trial was conducted, the principles which the majority disregards are of vital consequence in maintaining a fair and orderly appellate review process. For these reasons, I dissent.


author: PER CURIAM. MADDOX, Justice

text:
    Ex parte State of Alabama (In re Leroy BLAKE v. STATE of Alabama).
    83-963.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for petitioner.
    Thomas M. Goggans of Goggans & Mclnnish, Montgomery, for respondent.
   PER CURIAM.

This cause is remanded to the Court of Criminal Appeals for an order remanding the cause to the Montgomery Circuit Court with instructions for that court to determine the incarceration time, if any, served by the Defendant incident to the instant criminal offense prior to his conviction and sentence, and to correct the sentence previously pronounced accordingly, if so indicated by such determination.

REMANDED TO THE COURT OF CRIMINAL APPEALS.

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

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

I agree that the writ should be denied. I was almost persuaded by the reasoning set forth by Judge Bowen that the burden is on an appellant to show from the record that prejudicial error was committed by the trial court; however, I assume that the defendant will be able to show, on remand, that he did actually serve some time which was not credited. The fact that I have to make this assumption almost compels me to dissent, but I have to agree that a person should not serve more time in prison than the law requires. Procedurally, if the clerk failed to make the certification as the law required, the defendant should have raised the point at that time, but his failure to do so in a matter as grave as serving more time than the law requires should not be fatal. Consequently, I agree with the judgment which remands the cause to the trial court to allow the defendant to show, if he can, that he was not given credit for time served.

On remand, Ala.Cr.App., 462 So.2d 950.


author: TAYLOR, Judge. TAYLOR, Judge.

text:
    Leroy BLAKE v. STATE.
    3 Div. 903.
    Court of Criminal Appeals of Alabama.
    Oct. 23, 1984.
    On Return to Remand Jan. 8, 1985.
   AFTER REMANDMENT

TAYLOR, Judge.

In compliance with the decision of the Alabama Supreme Court in Blake v. State, 462 So.2d 949 (Ala., 1984), this case is remanded to the Montgomery Circuit Court for further proceedings not inconsistent with the opinion issued by the Supreme Court.

REMANDED WITH INSTRUCTIONS.

All the Judges concur.

ON RETURN TO REMAND

TAYLOR, Judge.

The trial court having complied with directions on remandment, the judgment of the circuit court is due to be and is hereby affirmed.

OPINION EXTENDED;

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Phillip James TROHA v. STATE.
    5 Div. 826.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied June 12, 1984.

      Thomas E. Jones, Auburn, for appellant.
    Charles A. Graddick, Atty. Gen. and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   BOWEN, Presiding Judge.

Phillip James Troha was indicted and convicted for rape in the first degree. Alabama Code § 13A-6-61 (1975). He was sentenced as an habitual offender to life imprisonment.

I

Troha argues that he was denied due process of law because he was denied a mental examination based solely on the fact that such an examination would involve too much time. This allegation is not supported by the record.

On October 6, 1983, appointed counsel filed a motion seeking an investigation of Troha’s sanity and mental competency. The only grounds for that motion are:

“1. That conversations of the undersigned attorney with the Defendant, leads the said Attorney to believe that such an investigation is necessary and essential to insure proper disposition of this case.
“2. That the Defendant is an indigent person without funds and has no way to pay for a psychological examination.”

The trial judge granted this motion the same day it was filed and issued a form order directing that Troha be examined by the East Alabama Comprehensive Mental Health Center.

On October 12th, defense counsel filed a “motion for authority to expend funds” for an expert to examine Troha’s mental capacity. That motion alleged that “proper medical practitioners are not available in the State Mental Health System and/or if they are available, the caseload is of such magnitude so as to preclude the proper examination of the Defendant.” The trial judge denied this motion with the following order:

“10-13-83. By order of this Court entered on October 6, 1983, the Defendant in this case was ordered examined by the East Alabama Comprehensive Mental Health Center. On October 11, 1983, this Court was advised by Dr. James Walter of that center that they had insufficient personnel to make an examination of this Defendant and other Defendants and recommended that if the Court felt that examination was needed, that they be sent to the Taylor-Hardin Secure Medical Facility at Tuscaloosa, Alabama. The Court has since been informed that the Taylor-Hardin Secure Medical Facility is now full and it would be nearly two (2) months before that facility could examine this Defendant. In light of this, the Court has reconsidered the Defendant’s motion for authority to expend funds filed on October 12, 1983, and after careful consideration thereof and the allegations contained in said motion, both of said motions are hereby denied.”

On October 18, 1983, the day of trial, defense counsel renewed his motions for mental examination and for authority to expend funds. In denying the request, the trial judge stated:

“Well, let the record show, that the Court again denies the motion. In the opinion of the Court, the motion states no facts that the Court could consider in determining whether or not this defendant is incompetent, or competent to stand trial. And in the opinion of the Court, the motion is very conclusionary; and therefore, both motions are most respectfully denied.”

The record shows no reasonable grounds to doubt Troha’s sanity or competency nor has any demonstration been made that the trial judge abused his discretion in changing his original order.

Here, defense counsel did not even allege that he had reasonable cause to question Troha’s sanity. “On a hearing of a motion for a sanity or competency investigation, the defendant has the burden of persuasion.” Wilson v. State, 371 So.2d 932, 941 (Ala.Cr.App.1978), affirmed, Ex parte Wilson, 371 So.2d 943 (Ala.1979). “(I)n the absence of any evidence, the mere allegations by counsel that the accused is incompetent to stand trial do not establish ‘reasonable ground to doubt [defendant’s] sanity’ which would warrant an inquiry into his competency.” Whorton v. State, 422 So.2d 812, 813 (Ala.Cr.App.1982). “Where the trial court finds that there are no reasonable grounds to doubt the accused’s sanity, the standard of appellate review is whether the trial judge abused his discretion.” Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979). Judges of courts of record “have the inherent power to set aside and vacate their orders and judgments, although a judge should not merely ‘change his mind’ without sufficient cause or reason.” Carter v. State, 435 So.2d 137, 141 (Ala.Cr.App.1982). Since there is nothing in the record which tends to generate a reasonable and bona fide doubt of Troha’s sanity or mental competency, we cannot find an abuse of discretion by the trial judge. The judge’s order denying the mental examination was based on the judge’s “reconsideration” and does not appear to be either arbitrary or capricious.

II

The trial judge did not commit error in refusing to grant Troha’s motion for new trial. The motion was based solely on the affidavit of juror Ralph Duncan. In pertinent part, that affidavit states:

“I was a juror during the trial of Phillip James Troha, with said trial having been conducted on the 18th and 19th day of October, 1983. I am a Christian and was quite upset and concerned that my actions as a juror were proper and just to include insurance that I adhere to Christian principles during my service as a juror on this particular case. My concern was of such nature that I felt compelled on the night of October 18, 1983, to call my brother in Mississippi who is a minister. I discussed my situation with my brother and asked him for guidance and scripture references so as to enable me to make a proper and just decision.”

The motion for new trial was submitted to the court on Mr. Duncan’s affidavit. The trial judge denied the motion stating, “The Court has carefully read and considered the said affidavit ... and finds nothing therein that improperly influenced Mr. Duncan, ... or any other juror during the trial.”

The ruling of the trial judge denying a motion for new trial will not be disturbed in the absence of a showing of abuse of discretion, and this Court will indulge every presumption in favor of the correctness of his ruling. Hall v. State, 348 So.2d 870, 875 (Ala.Cr.App.), cert. denied, Ex parte Hall, 348 So.2d 875 (Ala.1977). “(W)here the trial court investigates the circumstances under which the remark was made, its substance, and determines that the rights of the appellant were not prejudiced by the remark, reversible error will not be found absent a clear showing of an abuse of that discretion.” Bascom v. State, 344 So.2d 218, 222 (Ala.Cr.App.1977).

Although the communication was improper, there is nothing to indicate that the juror was improperly influenced. In our opinion the affidavit only shows that the juror was conscientiously attempting to perform his legal duty as a juror within the framework of his Christian faith. Such an attitude could only be beneficial to the accused.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Phillip James TROHA. (Re: Phillip James Troha v. State of Alabama).
    83-1077.
    Supreme Court of Alabama.
    Dec. 7, 1984.
    Thomas E. Jones, Auburn, for petitioner.
    Charles A. Graddick, Atty. Gen. and Susan McKinney, Asst. Atty. Gen., for respondent.
   TORBERT, Chief Justice.

Phillip James Troha was convicted of rape in the first degree and sentenced as a habitual offender. The Court of Criminal Appeals, 462 So.2d 950, affirmed the trial court’s judgment. This case is before this Court by writ of certiorari to the Court of Criminal Appeals.

The only issue we need to address is whether there was juror misconduct. The only evidence of juror misconduct is found in the affidavit of juror Ralph Duncan:

“I was a juror during the trial of Phillip James Troha, with said trial having been conducted on the 18th and 19th of October, 1983. I am a Christian and was quite upset and concerned that my actions as a juror were proper and just to include insurance that I adhere to Christian principles during my service as a juror on this particular case. My concern was of such nature that I felt compelled on the night of October 18, 1983, to call my brother in Mississippi who is a minister. I discussed my situation with my brother and asked him for guidance and scripture references so as to enable me to make a proper and just decision.”

It is a well settled principle of law, and, further, it is fundamental to a fair trial, that jurors should consider only the evidence presented at trial. In determining whether a new trial is warranted in a criminal case because of outside influence, we look to the standard set forth in Roan v. State, 225 Ala. 428, 435, 143 So. 454, 460 (1932):

“The test of vitiating influence is not that it did influence a member of the jury to act without the evidence, but that it might have unlawfully influenced that juror and others with whom he deliberated, and might have unlawfully influenced its verdict rendered [emphasis added].”

The case before us is analogous to Roan, supra, and Smith v. State, 39 Ala.App. 501, 105 So.2d 662 (1958). In Roan, the Court held that the motion for a new trial should have been granted because a citizen of the community in which one of the jurors lived told that juror, “He [the defendant] will get it poured into him now.” It was determined that the statement might have unlawfully influenced the jury’s verdict. In Smith, a juror heard his wife discussing the juror’s ease with other people in his presence, and the Court of Appeals held that the State failed to show that the juror “was not subjected to influences or contacts which might have (consciously or subconsciously) worked upon his mind in deliberating on the case.” 39 Ala.App. at 505,105 So.2d at 666 (emphasis in original).

In this case, the Court of Criminal Appeals determined that any outside influence exerted “could only be beneficial to the accused.” We disagree. The defendant was convicted as charged. We do not know the extent of the conversation between the juror and his brother, the minister, nor the scripture references that were recommended to help him make his decision. As we all know, the Bible portrays God as vengeful, as well as merciful and forgiving. The minister may have recommended scriptures reflecting his own thoughts on the case.

The Roan test mandates reversal whenever the misconduct might have unlawfully influenced the verdict. Even the ambiguous evidence before us is sufficient to support such a light burden. It is difficult to deny that the juror’s conversation with his minister brother and the selective reference to specific Biblical passages might have unlawfully influenced the verdict rendered.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY, BEATTY, and ADAMS, JJ., concur.


text:
    Phillip James TROHA v. STATE.
    5 Div. 826.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1985.
   BOWEN, Presiding Judge.

The conviction of Phillip James Troha for rape in the first degree must be reversed and remanded under the direction of the Alabama Supreme Court in Ex parte Troha, 462 So.2d 953 (Ala.1984).

REVERSED AND REMANDED.

All Judges concur.


author: PATTERSON, Judge. PATTERSON, Judge.

text:
    J.T. ALEXANDER v. STATE.
    8 Div. 81.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    On Return to Remand Nov. 27, 1984.
    Rehearing Denied Jan. 22, 1985.

      J.T. Alexander, pro se.
    Wesley M. Lavender and J. Leslie Doss, Decatur, and Rod M. Alexander, Moulton, for appellant.
    Charles A. Graddick, Atty. Gen. and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   PATTERSON, Judge.

Alexander appeals the trial court’s summary dismissal of his pro se petition for writ of error coram nobis. In attacking his 1982 conviction for escape, Alexander alleged that (1) the trial court and his court-appointed attorney used mental coercion to force him into pleading guilty; (2) his counsel was ineffective by applying such mental coercion and acquiescing to the trial judge’s use of coercion; and (3) his two prior felony convictions were improperly used to enhance his punishment because they occurred prior to the enactment of the Habitual Felony Offender Act. In support of his first two allegations, Alexander claimed that his attorney conveyed to him the trial judge’s message that he had better change his plea to guilty or he would get the maximum sentence. He further alleged that the trial judge expressed the same warning in his presence and that, if his attorney and the trial judge had not applied this coercion, he would not have changed his plea to guilty.

In dismissing Alexander’s petition, the trial court granted the State’s motion to strike the petition on the ground that the claims were res judicata. The court made the factual finding that the allegations in the present petition are the same as those raised in a 1982 petition for writ of error coram nobis. This 1982 pro se petition attacked the same conviction on various grounds, including the allegations that (1) the Habitual Felony Offender Act was unconstitutionally applied and (2) his guilty plea was the result of coercion. The claim of ineffective counsel was not raised. This first petition was summarily denied on the State’s motion to strike. The motion set forth four grounds, as follows: (1) Alexander’s allegations fail to set forth particular facts; (2) the petition contains no allegation and proof of a valid defense; (3) Alexander was represented by his attorney; and (4) Alexander did not appeal his conviction and coram nobis is not intended as a substitute for appeal. The trial court’s denial of this first petition was affirmed by this court without opinion. Alexander v. State, 434 So.2d 869 (Ala.Cr.App.1983).

It is a well-settled rule that matters adjudicated in a hearing on a petition for writ of error coram nobis are considered “quasi res judicata;” in other words, repeated applications or petitions merely resting on the same allegations which have been previously adjudicated should not be entertained. See McCray v. State, 282 Ala. 315, 211 So.2d 450 (1968); Bies v. State, 418 So.2d 940 (Ala.Cr.App. 1982); Allen v. State, 42 Ala.App. 9, 150 So.2d 399, cert. denied, 275 Ala. 691, 152 So.2d 439, cert. denied, 374 U.S. 854, 83 S.Ct. 1922, 10 L.Ed.2d 1074 (1963). The doctrine of res judicata bars reconsideration of an issue if four elements are present: (1) a prior judgment rendered by a court of competent jurisdiction; (2) substantial identity of the parties; (3) identity of the issues; and (4) prior judgment rendered on the merits. See Ozley v. Guthrie, 372 So.2d 860 (Ala.1979). Hence, the provision that the trial court need not entertain a second or successive petition presupposes adequate consideration of the merits of the first petition; if the judgment rendered is not on the merits, the defense of res judica-ta fails.

This adjudication on the merits is a consideration delineated in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), in determining whether an issue in a federal post-conviction relief petition should be barred as successive. There, the United States Supreme Court stated:

“Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely- to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.” Id. at 15, 83 S.Ct. at 1077.

The Sanders Court recognized two instances in which the denial of a prior application raising factual issues may be considered to have been “on the merits” within the meaning of the second guideline: (1) if the court in the earlier proceedings denied relief after finding that the files and records conclusively resolved the issues, or (2) if relief was denied after an evidentiary hearing. Id. at 16, 83 S.Ct. at 1077. The Court ruled that a petitioner cannot be denied an evi-dentiary hearing on his second or successive petition unless the petition is shown to be conclusively without merit on the basis of the application, files, and records of the case or unless the three conditions are present to deny the petition on “res judica-.ta” principles. Id. at 1.5, 83 S.Ct. at 1077.

In view of the foregoing principles, we find that the trial court erroneously denied Alexander’s petition on the basis that it was a second and successive petition asserting the same grounds. We do not look upon the denial of Alexander’s first petition without a hearing as such a consideration as would relieve the court of its duty to entertain the second petition. The court’s denial of the first petition was certainly not a determination on the merits; rather it was merely a refusal to entertain the petition because of its deficiencies. Accordingly, the refusal to consider the second petition on this ground cannot be sustained. Furthermore, Alexander is entitled to a hearing on his second petition because the second petition made factual allegations which, if true, would entitle him to relief and which are not shown by the petition, files, and records to be conclusively without merit.

The Attorney General argues that we cannot review a conviction based upon a guilty plea on a collateral attack after the time for direct appeal has lapsed and no appeal was taken. The opinion of Kilgore v. State, 342 So.2d 947 (Ala.Cr.App.), cert. denied, 342 So.2d 949 (Ala.1977), is cited as authority for this proposition. We believe that this case stands for the proposition that only those coram nobis petitions asserting issues which could have been raised on appeal are barred from collateral consideration.

Accordingly, we remand this cause to the trial court with directions that an evidentia-ry hearing be held at which Alexander is present and represented by counsel.

REMANDED WITH DIRECTIONS.

All the Judges concur.

On Return to Remand,

PATTERSON, Judge.

Appellant was appointed counsel and an evidentiary hearing was held in this cause as instructed by this court and appellant was given an opportunity to substantiate the claims he asserted in his petition for writ of error coram nobis. The only claim made by appellant which can be properly reviewed on writ of error coram nobis is his claimed ineffective assistance of counsel due to his appointed counsel’s applying mental coercion and the trial judge’s use of coercion in obtaining appellant’s plea of guilty to escape in 1982. Appellant’s claim of his prior felony convictions being improperly used to enhance his punishment because they occurred prior to the enactment of the Habitual Felony Offender Act, is an issue properly raised on appeal, which appellant failed to do. The writ of error coram nobis does not provide a review by appeal where the complaining party has not sought an appeal and the time for an appeal has long since expired. Corley v. State, 397 So.2d 223 (Ala.Crim.App.1981); Kilgore v. State, 342 So.2d 947 (Ala.Crim.App.1977). Regardless of this well known rule, appellant’s contention is without merit, being foreclosed by James v. State, 405 So.2d 71, 74 (Ala.Crim.App.1981), wherein we held that “the Habitual Felony Offender Act was to authorize the infliction of a more severe penalty on one who is a persistent offender regardless of when the prior convictions occurred and even if they occurred before the enactment of the act.”

The transcript of the proceeding wherein appellant entered his guilty plea to escape, which was introduced at the coram nobis hearing, and is before us, indicates that appellant was facing two charges of escape in the first degree. On one charge, appellant pleaded guilty to escape in the second degree and the second charge was reduced to resisting arrest, a misdemeanor, to which appellant also pleaded guilty. Appellant was informed of his Boykin rights by the trial judge and further told he was to be sentenced in accordance with the Habitual Felony Offender Act. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Appellant admitted his guilt, stating, “I don’t remember what I done it for, but I got a hacksaw blade and sawed the window out and went out,” and stated he was gone from jail “about seven months.” The trial court specifically asked if anyone had threatened or coerced appellant into pleading guilty, to which appellant responded, “No, sir.” Appellant then admitted in open court to four prior felony convictions. The court then sentenced appellant to fifteen years for escape in the second degree, which was the minimum sentence under the Habitual Felony Offender Act. Appellant was then sentenced to twelve months on the resisting arrest charge, which was to run concurrent with the escape sentence.

Thus, appellant received a reduction of both charges and the minimum sentence allowable under the Habitual Felony Offender Act. The consequences to appellant could have been much more severe, i.e., he could have had a maximum sentence of 99 years imposed upon him for each of the two charges of escape in the first degree. It is our opinion that appellant’s appointed trial attorney worked out a very attractive plea bargain arrangement for his client under the circumstances.

During the evidentiary hearing held on this matter, appellant testified that his court appointed attorney explained the elements of the offense of escape in the first degree. He was further informed of the application of the Habitual Felony Offender Act. It clearly appears that appellant intelligently and voluntarily entered into the guilty plea. In the record, we find the following testimony:

“Q. Did you maintain that not guilty plea and go to trial?
“A. No, sir.
“Q. What happened?
“A. I changed my mind and plead guilty.
“Q. Why did you change your mind?
“A. Well, because I did escape. I knowed that if I took it to trial, I knowed that I would lose and wind up with ninety-nine years; that fifteen years was better than ninety-nine.”

On cross-examination, appellant reaffirmed that he had no defense to the escape charges and that he had escaped as charged. Appellant’s claim of innocence in his petition was an obvious falsehood.

Appellant’s testimony as to his being coerced by his counsel and the trial court consisted of claimed conversations with his court appointed attorney and the trial judge. Appellant stated that his court appointed attorney, “told me that I did escape and that it was going to be hard to beat; that the best thing to do would be to go ahead and plead guilty.” Appellant testified that he was told this twice; once while in jail and once just before the plea was taken. Appellant further stated that, in explaining the application of the Habitual Felony Offender Act, his court appointed attorney told him that he was subject to a minimum of fifteen years and a maximum of ninety-nine years. There was no testimony to the effect that appellant’s court appointed attorney threatened him with a ninety-nine year sentence if the case went to trial.

Appellant’s testimony concerning coercion by the trial judge is as follows:

“A. Well, when I come up here to court I pleaded not guilty, and Judge Burney told me that my lawyer said that I was going to plead guilty, and I told him that I wasn’t. And he threatened to take it to court by jury trial and found guilty that I was going to get the maximum, which would be ninety-nine years.
“Q. And is it after that that you decided to change your plea?
“A. Yes, sir.
“Q. And had it not been for those statements? you would not have plead guilty?
“A. No, sir.”

These alleged statements by the trial judge would constitute coercion and thus require reversal if true. Kelly v. State, 44 Ala.App. 307, 208 So.2d 217 (1968); Weaver v. State, 44 Ala.App. 268, 207 So.2d 134 (1968). However, appellant’s attorney testified that no such statements were made by the trial judge, and we have carefully searched the transcript of the guilty plea proceeding and find that the record is devoid of any such statements or conversations.

In reviewing the facts or lack of facts disclosed by the evidentiary hearing, we are guided by the following principles:

“In a coram nobis proceeding the petitioner bears the burden of submitting clear, full and satisfactory proof. The degree of proof is ‘highly exacting’ as to facts and ‘always means more than reasonably satisfying’ the judge of the truth of his allegations. [Citation omitted.] In reviewing the allegations contained in a petition for writ of error coram nobis, the trial court’s judgment is presumed correct as is the voluntariness of a guilty plea. [Citations omitted.]”

Chapman v. State, 412 So.2d 1276, 1277 (Ala.Crim.App.1982).

Our review convinces us that the appellant’s claim of ineffective assistance of counsel is without merit. His counsel did an admirable job of representing appellant’s best interest under the facts and circumstances of his case.

In order for a convicted defendant to succeed on a claim of ineffective counsel, he must not only show that counsel’s performance fell below an objective standard of reasonableness, but he must also show there is a reasonable probability that but for the deficient performance, the result of the proceedings would have been different. Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The appellant has utterly failed to demonstrate that his counsel fell below the standard for reasonably effective assistance.

Furthermore, appellant’s claimed involuntary guilty plea is simply not supported by the record. We have thoroughly reviewed the record and are convinced that the only mental coercion present was a product of appellant’s after-the-fact imagination. We are convinced that appellant intelligently and voluntarily entered into the guilty pleas in order to obtain a lesser sentence. This is clearly evidenced by appellant’s own testimony. “A guilty plea is not invalid because motivated by a desire to obtain a lesser sentence”. Little v. State, 426 So.2d 527 (Ala.Crim.App.1983). We have carefully reviewed the record and find no error prejudicial to the appellant. Therefore the judgment of the Lawrence Circuit Court dismissing appellant’s writ of error .coram nobis is due to be, and is hereby, affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Judge.

text:
    Leon ABERNATHY, Jr. v. STATE.
    6 Div. 142.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied Oct. 23, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 84-153.
    George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

The appellant, Leon Abernathy, Jr., was convicted of third-degree escape and was sentenced, pursuant to Alabama’s Habitual Felony Offender Act, to fifteen years’ imprisonment.

Appellant’s indictment charged that he “did escape or attempt to escape from the custody of Gardendale Jail, in violation of Section 13A-10-33 of the Code of Alabama.”

The state’s evidence proved that the appellant escaped from the custody of Grady Love, the jailor at the Gardendale Jail. Love had escorted the appellant from his cell and had instructed him to clean the jail and city hall. The appellant escaped before completing this work detail.

The appellant argues on appeal that his conviction should be reversed either because his indictment is void or because there was a material variance between the indictment and the proof at trial. We disagree.

Appellant’s contention that an indictment charging a third-degree escape under § 13A-10-33, Code of Alabama 1975, is void unless it avers an escape from the custody of “a public servant” is without merit.

Section 13A-10-33, by definition is a “catchall” statute for escapes. It is applicable to all escapes, including those from city or county jails or from city or county jail officials. See, Ala.Code §§ 13A-10-31 through 13A-10-33 Commentary (1975). It applies to escapes from “any detention pursuant to a lawful arrest or court order.” See, Ala.Code §§ 13A-10-31 through 13A-10-33 Commentary (1975). It specifies that a person commits third-degree escape “if he escapes or attempts to escape from custody.” Ala.Code § 13A-10-33, supra.

Appellant’s indictment refers to this statute “and tracks almost the identical language of the relevant portion of the statute.” Compare, Pinkard v. State, 405 So.2d 411, 414 (Ala.Cr.App.1981).

Furthermore, the indictment satisfies the sufficiency standards outlined in Summers v. State, 348 So.2d 1126 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978). It is specific enough to identify the offense intended by the grand jury, to enable the defendant to prepare his defense, to protect against double jeopardy, and to enable the trial court to pronounce judgment on the record. See, Summers v. State, supra. Compare, Black v. State, 401 So.2d 320 (Ala.Cr.App.1981); Pinkard v. State, supra.

Therefore, the indictment is not void.

Moreover, the variance between the indictment and the proof at trial did not constitute a material variance under the circumstances presented in this case. The material (fatal) variance rule protects a defendant against misidentifications and improper notice in an indictment which result in substantial injury to the defendant in defending himself at trial. When the requirements of “identification and notice to the defendant” are satisfied there is no fatal variance. See, House v. State, 380 So.2d 940 (Ala.1979), reversing, 380 So.2d 938 (Ala.Cr.App.), and cases therein cited.

In this case, the appellant could not have been misled by the language in the indictment alleging an escape from the Garden-dale Jail rather than an escape from Grady Love’s custody somewhere in the immediate vicinity of the Gardendale Jail. As in House, we distinguish Owens v. State, 46 Ala.App. 591, 246 So.2d 478 (1971), because “[i]n that case, unlike the instant ease, the defendant was indicted under the wrong statute.” House v. State, 380 So.2d 940, 944, supra. In Owens, the indictment charged an escape under one statute and the evidence proved an escape covered by a different statute. In the instant case, the state’s evidence proved the same third-degree escape offense as that charged in the indictment. Therefore, the variance did not cause any substantial injury to the appellant.

For the reasons outlined above, this cause must be affirmed.

AFFIRMED.

All the Judges concur.

      . Section 13A-10-33 is part of Alabama’s new Criminal Code which only became effective on January 1, 1980. Any cases dealing with indictments under the prior law of escape, cases which support a contrary conclusion with respect to the sufficiency of this indictment, are simply inapplicable. See, Pinkard v. State, supra.


author: BOWEN, Presiding Judge. BOWEN, Presiding Judge.

text:
    Archie NELSON v. STATE.
    1 Div. 774.
    Court of Criminal Appeals of Alabama.
    June 12, 1984.
    On Return to Remand Jan. 22, 1985.
    J.R. Tucker, Atmore, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Archie Nelson was indicted and convicted for the first degree assault of his ex-wife, Diane Nelson. Sentence was five years’ imprisonment.

Assault in the first degree requires a “serious physical injury.” Alabama Code § 13A-6-20 (1975). A “serious physical injury” is “[pjhysical 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.” § 13A-l-2(9). We reverse Nelson’s conviction for first degree assault because the district attorney failed to produce any evidence of serious physical injury as defined by statute.

Saraland Police Sergeant Henry Bradford investigated the assault and testified that Nelson was threatening to kill Mrs. Nelson, who “had some blood about her forehead and it had run down in each eye on each side of her nose.” When Bradford arrived, Mrs. Nelson was “real bloody”. Less than an hour later at the police station, she “still had a place on her forehead that was bleeding.” Bradford saw Nelson hit Mrs. Nelson: “He would punch the small of his hand together against her head.” When asked what serious injury Mrs. Nelson sustained, Sergeant Bradford replied, “This bleeding spot on the head.” Nelson “kept hitting her with the pistol (.25 caliber) when he was real mad” and Mrs. Nelson had some other injuries “on the left side of her head near her hairline.”

Mrs. Nelson testified that Nelson was bringing their three-year-old son back home when he began to hit her with his fist. He grabbed her by the hair and threatened to kill her. He forced her over to the couch and hit her with the butt of a gun on her forehead. Nelson told her that she was “bleeding like a stuck pig.” When asked what injuries she suffered, Mrs. Nelson replied, “Well, I had bruises all over my head, and cut on my forehead and bruises all underneath my ear where he had kept the gun, poking it at me, and different places on my head.” The next morning Mrs. Nelson went to a doctor. No stitches were required.

The extent of the injuries sustained by Mrs. Nelson is best characterized by her own testimony on cross examination by defense counsel:

“Q. So physically there wasn’t any serious injury about you, was there not?
“A. Yes, sir; I had been beaten.
“Q. You had been beaten. Your testimony is that he was poking a gun at you; is that right? And that was the extent of inflicting serious personal injury on you?
“A. He hit me with his fist and then hit me with the butt of the gun on my forehead.”

This is all the testimony that was presented during the State’s case concerning the injuries sustained by Mrs. Nelson. Defense counsel moved to exclude the evidence because “the State had absolutely failed to prove any serious bodily harm.” Although the trial judge denied this motion, he questioned the propriety of charging the jury on assault in the first degree:

“THE COURT: How can I charge on first?
“MR. BARBEE (Assistant District Attorney): He asked her did she have serious physical injury. She said yeah.”

The State’s evidence and the verdict of the jury show that Nelson is guilty of assault. However, there was absolutely no evidence that any injury Mrs. Nelson sustained created a substantial risk of death or caused serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ. § 13A-l-2(9). Consequently, the conviction for assault in the first degree cannot stand.

The State’s evidence, which the jury believed as evidenced by their guilty verdict, does support a conviction for assault in the second degree as defined by § 13A-6-21(a)(2) (“With intent to cause physical injury to another person, he causes physical injury to any person by means of a deadly weapon or dangerous instrument”). Here, Nelson’s fists and the pistol, even if unloaded, qualify as dangerous instruments. Hollis v. State, 417 So.2d 617 (Ala.Cr.App.1982); Alabama Code § 13A-1-2(12).

It is the judgment of this Court that Nelson’s conviction for assault in the first degree be reversed and set aside. However, it is the further judgment of this Court that Nelson is guilty of assault in the second degree and is due to be sentenced accordingly. Therefore, this cause is remanded with directions that the conviction for assault in the first degree be set aside and that Nelson be properly adjudged and sentenced for assault in the second degree.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Presiding Judge.

On remand, the trial court set aside the conviction for assault in the first degree and adjudged Nelson guilty of second degree assault. The trial court has fully complied with our directions and the judgment of the circuit court is affirmed.

OPINION EXTENDED; AFFIRMED.

All Judges concur.


text:
    Timothy STOKES v. STATE.
    6 Div. 303.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Feb. 1, 1985 Alabama Supreme Court 83-1346.

      William M. Dawson and George H. Jones, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Timothy Stokes was convicted of theft of property in the second degree in violation of Ala.Code (1975), § 18A-8-4(e), and sentenced to seventeen years in the penitentiary as a habitual offender. On appeal, he argues that the State’s evidence was insufficient to support his conviction and that the closing argument of the District Attorney was reversibly prejudicial.

The State’s evidence established that John Beam, a security guard for K-Mart Corporation, observed Timothy Stokes and Diane Levert enter the K-Mart store where he was employed. The pair obtained a shopping cart, went to the cigarette stand, and began removing cigarette cartons from the rack. Stokes handed several cartons to Levert and she, in turn, put the cigarettes into the shopping cart. Then they went to the candy department where, according to Beam, Levert put the cigarettes into her purse as Stokes “was standing there with his back to her and looking across the store, just looking around.”

Stokes and Levert then proceeded to the check-out lane where Levert paid for one small item but did not present the cigarettes for payment. At that point, Beam approached Levert and told her he was a security guard. She resisted his approach, and began to scuffle with him. Meanwhile, Stokes “turned and went back into the store, back into the automotive department.”

Beam stated that, after he subdued Le-vert, he went to the automotive department, identified himself to Stokes, who was standing about ten feet from an exit, and requested that Stokes accompany him to the security office. Stokes said, “I don’t know that woman.” Beam testified that eight cartons of cigarettes belonging to K-Mart Corporation, worth a total of $54.96, were found in Levert’s purse. On cross-examination, Beam acknowledged that Stokes never “rolled the [shopping] basket” and that Stokes “couldn’t have seen [Levert] put the cigarettes in the bag because he had his back to her.”

Jacquelyn Wilkes, a K-Mart check-out employee on the day in question, echoed Beam’s testimony and characterized Stokes’s conduct as “looking around the store like he was watching for [Levert].”

I

In order to prove a case of shoplifting, the State must show “[t]he theft of property which exceeds $25.00 in value, and which is taken from or in a building where said property is sold or stored....” Ala.Code (1975), § 13A-8-4(e). It must further establish that the defendant “[k]nowingly obtained] or exert[ed] unauthorized control over the property of another, with intent to deprive the owner of his property.” Ala.Code (1975), § 13A-8-2(l).

The evidence here clearly established the statutory requisites of ownership, value, and location of the goods, as well as unauthorized control over the property. The only element of the offense with which Stokes takes issue is the criminal intent required for theft. He claims that even the testimony of the State’s two witnesses negates his knowledge of Levert's theft, i.e., that he had his back to her while she put the cigarette cartons into her purse.

We find, however, that it was this very testimony which provided an inference of Stokes’s guilt and was sufficient to make the matter of intent a jury question. As we said in Kimble v. State, 448 So.2d 429, 431 (Ala.Crim.App.1983).

“Although ... there was evidence that the appellant actually took Gordon’s money, the evidence was, nevertheless, sufficient for the jury to infer appellant’s participation in the robbery.
‘While mere speculation, conjecture, or surmise will not authorize a conviction, the jury is under a duty to draw whatever permissible inferences it may from circumstantial evidence and to base its verdict on whatever permissible inferences it chooses to draw. Kontos v. State, 363 So.2d 1025, 1034 (Ala.Crim.App.1978).’
Stewart v. State, 405 So.2d 402 (Ala.Crim.App.1981). A permissible inference from the evidence in this case was that the appellant conspired with McHarris immediately before the robbery and participated therein as either a decoy or a look-out.” (Emphasis added.)

The jury here was likewise authorized to draw the inference that Stokes and Levert had planned to shoplift before they entered the store and, once inside, Levert would conceal the cigarettes while Stokes acted as a lookout. In our judgment, the question as to whether Stokes intended to deprive K-Mart of its property was a question for the jury, which the jury decided adversely to him. Craig v. State, 410 So.2d 449, 453 (Ala.Crim.App.1981).

II

Stokes claims the court erred by denying his motion for mistrial following the District Attorney’s reference in closing arguments to Diane Levert’s conviction, a fact of which there was no evidence at Stokes’s trial. From the record:

“MR. BOUDREAUX [Assistant District Attorney]: We are not trying Miss Le-vert even though Mr. Dawson’s got up here so he can heap abuse on her. Just part of the big smoke screen.
“MR. DAWSON [Defense Counsel]: Judge, he could have called Miss Levert as a witness if he wanted to.
“THE COURT: Overrule.
“MR. BOUDREAUX: Somebody that’s been convicted by this office, she’d make a damn good witness for me, wouldn’t she? She’d be a real good witness.
“MR. DAWSON: I don’t believe there’s any testimony about that either. We’d have to object and move for another mistrial.
“THE COURT: Overrule as far as a mistrial. Ladies and gentlemen, you are to consider only that evidence which was before you in the form of testimony and any of that which was introduced into evidence. Consider none other.
“You may proceed.” (Emphasis added.)

Citing Hill v. State, 210 Ala. 221, 97 So. 639 (1923), Stokes directs our attention to the general rule that evidence of the conviction or acquittal of a co-defendant for the same offense with which the accused is charged is inadmissible. “It is usually prejudicial for the prosecution to observe ... that another defendant has been convicted or has pleaded guilty.” Whartons Criminal Procedure § 534 at 496 (C. Torcia 12th ed. 1975). “A prosecuting attorney’s argument or disclosure during trial that another has been convicted or has pleaded guilty is, of course, arguing from a fact not in evidence and getting before the jury a fact not admissible in evidence.” Annot., 48 A.L.R.2d 1016, 1018 (1956).

A survey of the Alabama cases on this point reveals that disclosure of the outcome of a co-defendant’s case has been denounced whether it occurred in argument, see Knowles v. State, 44 Ala.App. 163, 204 So.2d 506 (1967) (Prosecutor’s statement that other defendants had already pled guilty). Bell v. State, 41 Ala.App. 561, 140 So.2d 295 (1962) (Prosecutor’s statement that co-defendant had confessed); Lowery v. State, 21 Ala.App. 352, 108 So. 351 (1926) (District attorney’s comment that one person had already been convicted); Felder v. State, 20 Ala.App. 603, 104 So. 444 (1925) (Prosecutor’s comment that, “The other man had pleaded guilty”), in the State’s case-in-chief, see Williams v. State, 369 So.2d 910 (Ala.Crim.App.1979) (State’s witness asked whether he testified in case when co-defendant was convicted); Lane v. State, 40 Ala.App. 174, 109 So.2d 758 (1959) (State asked co-indictee the outcome of his prosecution); Evans v. State, 39 Ala.App. 498, 105 So.2d 831 (1958) (District attorney asked accomplice whether he was guilty of same offense with which defendant was charged), or during the presentation of the defense, see Dickens v. State, 49 Ala.App. 480, 273 So.2d 240 (1973) (Defendant questioned, on cross-examination, about co-defendant’s guilty plea); McGhee v. State, 41 Ala.App. 669, 149 So.2d 1 (1962) (Defendant sought to present evidence of co-defendant’s acquittal); Hill v. State, 210 Ala. 221, 97 So. 639 (1923) (Defendant claimed his own prosecution should be barred by accomplice’s acquittal).

In all of the Alabama cases cited above, the reviewing courts have disapproved of reference to the disposition of a co-defendant’s case on the theory that the outcome of another’s prosecution is simply irrelevant to the guilt or innocence of the defendant and may not be received as substantive evidence at defendant’s trial. See, e.g., Hill v. State, 210 Ala. 221, 97 So. 639 (1923). This is not to say, of course, that for impeachment purposes, a co-defendant may not be questioned regarding his conviction for the same offense. See generally C. Gamble, McElroy’s Alabama Evidence § 149.01(8) (3d ed. 1977). The trial court should receive the latter kind of evidence, however, only as it bears on the testifying co-defendant’s credibility and should, on request, instruct the jury regarding its limited purpose. See generally 1 Wigmore, Evidence § 13 (Fillers rev. 1983).

While we recognize the general rule of inadmissibility of a co-defendant’s conviction, we find that in the circumstance of this case the error was cured by the trial court’s admonition to the jury to disregard the prosecutor’s comment. See Williams v. State, 369 So.2d 910 (Ala.Crim.App.1979) (Error cured by court’s instruction to disregard); Bell v. State, 41 Ala.App. 561, 140 So.2d 295 (1962) (Error cured by court’s admonition that statements of attorneys are not evidence and that jury should decide case on what the evidence showed). See generally Annot., 48 A.L.R.2d 1016 (1956).

Moreover, we note that the District Attorney’s reference to Miss Levert’s conviction was not at odds with the characterization apparently given her by defense counsel himself. The defendant’s strategy in closing argument was obviously to paint Miss Levert as the guilty shoplifter and to exonerate Stokes as unaware of her criminal purpose. In this regard, we deem the prosecution’s closing argument to be closely akin to the comments of the District Attorney in People v. Petrov, 75 Mich.App. 532, 255 N.W.2d 673, 675 (Mich.Ct.App.1977), wherein the Michigan Court of Appeals observed the following:

“[Wjhen read in context of the trial testimony and the entire closing argument of both attorneys, we find no prejudicial error. The prosecutor was commenting on the accomplice’s involvement in crime as it related to his credibility. Defense counsel himself had characterized the accomplice as the ‘mastermind’ behind the extortion plot. In addition the accomplice had plead guilty of a lesser offense. The prosecutor was not expressing an opinion as to a disputed fact.”

In his closing argument, the prosecutor also stated, “You are the ones that pay the prices when you go into K-Mart because folks like him are in there shoplifting.” Defense counsel objected: “Judge, we submit that is improper argument and we’d take exception and move for another mistrial.” The trial judge overruled this request.

Even though this argument was improper, a reversal is not required. This argument is related to that of appealing to the jurors’ interests as taxpayers, a summary of which is found in Annot. 33 A.L.R.2d 459, 460 (1954):

“The courts are agreed as to the impropriety of argument, in a criminal case, appealing to the jurors’ interest as taxpayers, either by reference to the fact that the particular effect on such interest, or by dwelling upon the expense involved in prosecuting and punishing the offense, and enforcing the laws generally-
“However, while such argument is admittedly improper, it constitutes reversible error only where, under all the circumstances, it appears to have generated prejudice actually affecting the verdict, and where the court is convinced from all the evidence that the conviction was proper, or it appears that the trial judge took effective action to remove any improper consequence of the argument, it has been held not to amount to reversible error.”

See also Stewart v. State, 18 Ala.App. 92, 95-6, 89 So. 391, cert. denied, 206 Ala. 9, 89 So. 395 (1921) (Prejudicial error for prosecutor to argue in murder prosecution that three small children of the deceased were in state institutions, that “the State of Alabama is now taking care of them,” and that they are “being cared for by the taxpayers”); Gilbert v. State, 19 Ala.App. 104, 106, 95 So. 502 (1923) (Prosecutor’s argument, “Do you realize what an economic drain” such men as the defendant are on “your country and your community,” and “Do you think of the amount of money and expense it takes to make a good man of him?” were proper as reply to defense counsel’s argument concerning the expense of prosecution).

We do not consider this reversible error, because we are convinced from all the evidence that the conviction was proper. Additionally, this comment did not warrant the declaration of a mistrial. “A motion for a mistrial implies a miscarriage of justice and should only be granted where it is clearly manifest that justice cannot be afforded.” Diamond v. State, 363 So.2d 109, 112 (Ala.Crim.App.1978). The request for a mistrial “does not serve the same function as a mere objection or motion to strike and is not ordinarily used to indicate a mere erroneous ruling of .law.” Diamond, supra. “A motion for a mistrial should not be granted where the prejudicial qualities of the comment can be eradicated by the action of the trial court.” Nix v. State, 370 So.2d 1115, 1117 (Ala.Crim.App.), cert. denied, Ex parte Nix, 370 So.2d 1119 (Ala.1979).

In our judgment, Stokes received the fair trial to which he was entitled. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). The judgment of the Jefferson Circuit Court is affirmed.

AFFIRMED.

All Judges concur.