text:
    Ronald C. MILLER v. Wilma Ireates MILLER.
    Civ. 3708.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.

      Judith S. Crittenden of Clark, James & Crittenden, Birmingham, for appellant.
    L. Drew Redden and Stephen W. Shaw of Redden, Mills & Clark, Birmingham, for appellee.
   HOLMES, Judge.

This is a domestic relations case.

The husband appeals the circuit court’s modification of child support and the awarding of attorney’s fees.

The parties to this appeal were divorced in 1977. The wife was awarded custody of the only minor child and the husband was required to pay $300 a month in child support. In 1982 the decree was modified to increase child support payments to $600 per month. In addition, the trial court ordered the husband to pay the wife’s attorney’s fees. The husband, through able counsel, appeals and we affirm.

The dispositive issues on appeal are whether the trial court so abused its discretion as to require reversal in increasing child support and whether the trial court, erred in awarding attorney’s fees.

A trial court’s modification of a pri- or decree for child support, because of changed circumstances of the parties, is a matter within the trial court’s sound discretion. We will not reverse unless the trial court’s determination is so unsupported by the evidence as to be plainly and palpably wrong. Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979).

Furthermore, this court has held that the increase in age of minor children and the correlative increase in need for support, when coupled with the increase in the cost of living due to inflation,- is sufficient to constitute a material change of circumstances and support a modification. Young v. Young, supra. All of these factors in varying degrees are present in the instant appeal.

In the present case, the husband’s income has increased substantially since the original decree. His income tax return for 1981 reflected a total income of approximately $60,000. His income at the time of the divorce was some $30,000. In addition, the husband has acquired a fair amount of real property which he owned “free and clear” at the time of the modification hearing. The husband is in the process of building a home at a cost of $80,000 and he owns other buildings. The husband further testified that since 1978 he has spent approximately $150,000 acquiring land and buildings. At the time of the modification hearing the husband’s property was unencumbered.

The wife testified that she earns a fixed income or salary of $14,000 a year plus commissions. She testified to earning approximately $20,000 the previous year. The wife also testified as to the needs of the child. While some of the expenses testified to might border on luxury and not need, there is evidence of some increase in need.

In view of the above presumptions, the husband’s increased ability to pay and the testimony regarding the child’s needs, we find that the trial court did not abuse its discretion in increasing child support required to be paid by the father. We so find even in view of the fact that the mother does have income as mentioned earlier.

The husband next contends that the trial court erred in awarding attorney’s fees.

Award of attorney’s fees in eases of this nature is a matter within the sound discretion of the trial court. Young v. Young, supra.

This court has held that there are three factors to be considered in determining whether the trial court properly exercised its authority: 1) the earning capacity of the parties; 2) the results of litigation; and 3) the labor and skill involved. Peterson v. Peterson, 403 So.2d 236 (Ala.Civ.App.), cert. denied, 403 So.2d 239 (Ala.1981).

In the present case the proceedings commenced with the husband’s petition to modify. All issues were settled except child support and attorney’s fees. The wife was successful in increasing child support. There was expert testimony concerning the labor and skill and the expense involved. The husband’s financial capacity, as discussed previously, is more than double the wife’s. It is apparent that between the two, the husband is in a better position in that regard. Clearly, there was sufficient evidence to support the trial court’s actions.

Following the guiding principles set forth above, this court cannot say the trial court erred in its determination of child support and the awarding of attorney’s fees. To do so would be to substitute our judgment for that of the trial court. This we cannot do. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

The wife has requested an attorney’s fee for her representation on appeal. In view of the rather liberal award of child support, coupled with the wife’s earning capacity, the request is denied.

This case is due to be and is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    DIXIE HEATING AND COOLING COMPANY, INC., a Corporation v. BANK OF GADSDEN, a Corporation.
    Civ. 3710.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.
    Jack W. Torbert, Jr. of Torbert & Tor-bert, Gadsden, for appellant.
    Jim L. Wilson, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is a dispute between a construction money mortgagee and a materialman as to priority of their respective liens.

The Bank of Gadsden (Bank) entered into a contract with Vandiver, the owner of a lot and a speculative building contractor, to furnish construction money up to the amount of $42,000, for the building of a house on the lot. In pursuance of the contract, Vandiver executed a mortgage of the lot to Bank on November 8, 1979. The mortgage was filed for record on November 15, 1979. (There was subsequently another mortgage executed and recorded in April 1980. We perceive no relevance of that mortgage to the issue presented on appeal.)

On November 14, 1979, according to its owner and its records, Dixie Heating and Cooling Company (Dixie) in pursuance of an oral contract with Vandiver to furnish and install heating and air conditioning, began to furnish material and labor in the construction of the house.

There is an unusual aspect to this case arising from the fact that subsequent to November 1979, construction of the house was apparently delayed. The work of Dixie was not completed until August 25, 1980. There is no indication that delay was caused by Dixie. We perceive such delay to have no relevancy to the issue of priority. However, it explains why the lien of Dixie was not filed until January 22, 1981, with suit for enforcement filed on February 18,1981.

The case was heard orally by the court and judgment entered on February 8, 1983, determining priority to be in favor of the mortgage of the Bank. Dixie has appealed. We find the judgment to be in error.

The primary and dispositive issue in this case is one of law — which has priority, the mortgage or the mechanic’s lien? It is our opinion that § 35-11-211, Code of Alabama 1975, and its interpretation by our supreme court in the case of Empire Home Loans, Inc. v. W.C. Bradley Co., 286 Ala. 449, 241 So.2d 317 (1970) clearly answers the question of priority in this case. That answer is simply that a mechanic who, under a contract with the owners, began work on the construction of a building prior to the recording of a construction money mortgage, has a lien on both land and building, with priority over the mortgage lien. Scholl, Priorities Between Mechanic’s Liens and Construction Loan Mortgages in Alabama, 23 Ala.Law 398 (1962); Comment, The Priority Problem Between Construction Mortgages and Mechanic’s Liens in Alabama, 6 Cumb.L.Rev. 243 (1975). The subject of priorities has been so thoroughly discussed in Empire, supra, and the cited articles that we deem it unnecessary to reiterate in this opinion. The language of the court in the case of Kilgore Hardware & Building Supply v. Mullins, 387 So.2d 834, 836 (Ala.1980), relied upon by Bank, is stated therein not to be inconsistent with the decision in Empire, supra.

Bank contends that a question of fact as to whether or not Dixie began its work before the recording of its mortgage, is presented by the evidence. Our review of the evidence does not support Bank’s contention. There was evidence by the president of Dixie and from the business records that work was begun on November 14, 1979. The president stated that on that date the house had been framed and “blacked in.” There was testimony by an officer of Bank that he had visited the vacant lot with the owner prior to the execution of the mortgage on November 8, 1979. He had no recollection of the date of that visit, but it possibly could have been within two or three days prior to the execution of the mortgage. Whatever the date of the visit, the lot was vacant with no construction evident. Bank submits that the court could have concluded that if the lot was vacant on the 5th or 6th of November, that it could not have been “blacked in” on the 14th of November. Thus the court could disbelieve the work of Dixie was begun on November 14.

We do not accept the contention that a reasonable view of the evidence permits such a conclusion. The uncertainty of the testimony of the witness for the Bank as to the date he observed the lot vacant, when considered in light of the absence of evidence that the work could not have proceeded to the point stated by Dixie in the interval from the 5th to the 14th, does not present a conflict in the evidence. We consider that there is no reasonable dispute presented but that the work of Dixie was begun on November 14, 1979. Of course, it is purely speculation that the trial court found otherwise or based its judgment on such finding. There is no basis for such speculation in the record.

It is the opinion of this court that the lien of Dixie has priority over the construction mortgage of Bank, both as to the land and the building, because Dixie began construction November 14, 1979, and the mortgage of Bank, though executed on November 8, was not filed for record until November 15, 1979. The judgment of the trial court must be reversed and set aside and judgment entered for Dixie upon its suit to enforce its mechanic’s lien.

The issue of the amount of the lien of Bank, in view of this opinion, is not necessary to decide. We note, however, that that issue is also addressed in the decision in Empire, supra.

Reversed and remanded with direction to enter judgment for Dixie.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Dwayne MEARES v. Donna Kay MEARES.
    Civ. 3728.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.
    Loma B. Beaty, Fort Payne, for appellant.
    Charles E. Mauney, Fort Payne, for ap-pellee.
   HOLMES, Judge.

The trial court refused to set aside a divorce decree obtained by default. The husband appeals and we affirm.

The wife filed for divorce in the Circuit Court of DeKalb County in April, 1982. The husband could not be found, necessitating service by publication. The husband failed to make an appearance or otherwise defend. On August 3, 1982, the learned trial judge signed a final decree divorcing the parties. There was no entry of default prior to the final decree nor were any affidavits filed pursuant to rule 55, A.R.Civ.P.

Thereafter, the husband petitioned the trial court to set aside the final decree pursuant to rule 60(b), A.R.Civ.P., alleging that no entry of default was made before the final judgment. In addition, the husband alleged that the final decree was due to be set aside because no affidavits were filed as required by rule 55. As indicated, the trial court denied the husband’s petition and the husband appeals.

The dispositive issue on appeal is whether the final judgment is void in that the procedural requirements for obtaining a default judgment were not observed, to wit, the lack of entry of default and the lack of affidavits.

The husband in urging error relies heavily upon Weaver v. Travel Inn, Inc., 350 So.2d 444 (Ala.1977). While this court can appreciate able counsel’s reliance thereon, we believe Weaver to be clearly distinguishable from the instant case.

In Weaver no judgment of any kind had been rendered or entered by either the clerk or the court. In the instant case the trial judge clearly rendered and entered a judgment.

As to the effect of lack of an entry of default, we believe that what this court stated in Hilbish v. Hilbish, 415 So.2d 1114 (Ala.Civ.App.1982), is appropriate. In that case we held that the failure to enter default as required by rule 55 is a procedural irregularity that, considering the particular facts of the case, amounts to harmless error or error without injury under rule 45, A.R.A.P., and rule 61, A.R.Civ.P. Simply stated, we have found no authority which supports the contention that the omission of an entry of default renders a default judgment entered by the court void. Graham v. University Credit Union, 411 So.2d 144 (Ala.Civ.App.1982). Therefore, we find that the trial court did not err in the instant case by denying the motion to set aside the default judgment for lack of entry of default. Error in the instant case cannot be predicated upon the lack of entry of default as required by rule 55, A.R.Civ.P.

The husband further contends that the trial court erred in refusing to set aside the default judgment in that there was no affidavit or other proof of competency, etc., as required by rule 55.

When default judgment is entered by the clerk, rule 55(b)(1) appears to require an affidavit stating certain things, to wit, the defendant is not an incompetent person, etc. The Alabama Rules of Civil Procedure regarding default judgment by the court do not specifically refer to an affidavit. The rule merely states that:

“In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered (A) against an infant, or (B) against an incompetent person, unless represented in the action by a general guardian or other representative as provided in Rule 17(c) who has appeared therein.”

To this court it would seem far better practice to have such an affidavit or other proof in the record to indicate competency, etc. However, we do not find that in this instance, where service was properly obtained and the trial court had the benefit of pleadings and depositions which indicate no lack of competency, etc., that the trial court is required to set aside a judgment by default entered by the court without affidavits or other specific proof of competency, etc.

The lack of an affidavit does not make the judgment void. Graham v. University Credit Union, supra. Therefore, when considered in the context of a rule 60(b) motion to set aside the judgment, the lack of an affidavit ultimately becomes a question of competency and should be alleged as a meritorious defense. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978). In other words, the judgment is not void for lack of an affidavit or other proof; therefore, to support a 60(b) motion the lack of an affidavit becomes a question of competency, etc., that should be pled as a meritorious defense. This is especially so in the instant case where the record contains evidence that suggests or implies competency, etc.

To reiterate, when default judgment is entered by the court the procedural requirements concerning affidavits of competency are less exact. The mere lack of affidavit does not make the judgment void; therefore, to use the lack of such in the context of a 60(b) motion to set aside the judgment, it should be pled as a meritorious defense which was not done in the instant appeal.

The mere allegation that there is a lack of an affidavit is not enough to require setting aside the judgment. This is so especially in view of the fact that the trial court entered the judgment and the record contains evidence from which one could infer competency.

This case is due to be and is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Dr. Thomas A. GASKIN, III v. Ellen BOOTH.
    Civ. 3736.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.
    Rehearing Denied Sept. 7, 1983.
    Bibb Allen and James B. Carlson of London, Yancey, Clark & Allen, Birmingham, for appellant.
    Shay Samples of Hogan, Smith & Als-paugh, Birmingham, for appellee.
   BRADLEY, Judge.

This appeal is from a judgment in favor of the plaintiff in a personal injury action.

Ellen Booth, the plaintiff, had superficial telangiectasias, a vascular condition commonly referred to as spider veins. After reading an article in a popular women’s magazine on the treatment for spider veins, Mrs. Booth consulted her obstetrician about treatment. He recommended that she see . the defendant, Thomas A. Gaskin, III, M.D., a general surgeon, for the treatment. Although this condition posed no threat to her health, the plaintiff wanted the veins eradicated for cosmetic reasons. On June 6,1978 Dr. Gaskin treated her by inserting a fine needle in the veins and injecting a scleros-ing agent, a chemical solution which dries up the vein. The magazine article that Mrs. Booth read discussed treating the veins with a saline solution rather than a sclerosing agent. When the defendant began injecting the solution, Mrs. Booth mentioned that she felt a slight stinging sensation. Dr. Gaskin assured her that this was normal. After the injection the doctor massaged the area and wrapped her leg in an elastic bandage. A few days later the plaintiff returned to Dr. Gaskin’s office to have the treated leg checked by the office nurse. Upon removal of the bandage, plaintiff discovered a chemical burn and ulceration on her leg in the area of the treatment. The plaintiff and her husband returned to the office the following Monday for the doctor to check her leg and to consult with him about the burn. Dr. Gas-kin stated that to cause such a burn he must have injected too much of the chemical solution. Mrs. Booth sought treatment from a dermatologist for her burn.

On May 27, 1980 Ellen Booth filed an action for personal injuries against Dr. Gas-kin in the Jefferson County Circuit Court. She averred in her complaint and subsequent amendment that the defendant negligently or wantonly treated her and that he failed to completely and adequately inform her of the complications and risks involved, thus performing the procedure without her informed consent.

In December 1982 a jury trial was held. The plaintiff testified that prior to receiving the treatment Dr. Gaskin did not tell her about any risk involved other than that a small brown freckle may appear at the point of the injection. She stated that he did tell her the name of the solution and how it worked, but he did not mention that the treatment was a burning process.

Dr. Gaskin’s testimony at trial conflicted with that offered by the plaintiff. The defendant said that he did discuss the use of a sclerosing agent with the plaintiff, as well as the pros and cons of this procedure. He also testified that he told Mrs. Booth the procedure worked by chemical burning of the vein and the end result may not be what she wanted. Further testimony was given that he told her she could get a chemical burn. Dr. Gaskin testified that after the plaintiff knew all this she still wanted to submit to this treatment. He admitted that he injected too much of the chemical solution.

The jury returned a verdict in favor of Mrs. Booth and against Dr. Gaskin in the amount of $10,000. The doctor filed a motion for j.n.o.v. or in the alternative for new trial. The motion was denied and he appeals.

The defendant raises two issues on appeal. The first issue raised is whether the trial court erred by refusing to allow the defendant’s former receptionist to testify as to what the doctor told his other patients about the treatment.

The defendant testified that he had performed this procedure approximately thirty times in the last couple of years on about twenty people. In an attempt to show that he had plaintiff’s informed consent, Dr. Gaskin attempted to introduce testimony from Kathy Keys, his receptionist and assistant at the time he treated plaintiff, to the effect that he had informed his other patients of the pros and cons of the procedure he was about to perform on plaintiff and, thus, he must have so informed the plaintiff. Keys was questioned out of the jury’s presence and the trial court decided that her testimony should be excluded.

In brief, as at trial, Dr. Gaskin argues that Kathy Keys’ testimony was intended to show that it was his habit to disclose the dangers involved in the treatment of this vascular condition. He contends that a person’s habit is admissible as tending to prove his conduct on a particular occasion. See C. Gamble, McElroy’s Alabama Evidence § 42.01(2) (3d ed. 1977). Therefore, by Ms. Keys’ testimony, he wanted to show that his habit was to inform his patients of the possible complications which may result from this treatment. He wanted to show that he adequately informed Ellen Booth prior to performing the procedure and thus had her informed consent before he commenced the treatment.

Evidence of habit or custom is generally recognized as admissible evidence in this state. See Carwile v. State, 148 Ala. 576, 39 So. 220 (1905). Admissibility of evidence of habit or routine practice is governed by two criteria:

“(1) Is the occurrence of the routine practice numerous enough to indicate regularity? and (2) Is the occurrence of the routine practice substantially similar?”

Dothard v. Cook, 333 So.2d 576 (Ala.1976).

Keys’ testimony as to Dr. Gaskin’s habit of informing patients of the possible complications pf the procedure he was about to perform on plaintiff was inadmissible because it failed to meet the first test of admissibility set out above. In other words Keys’ testimony failed to establish a sufficient regularity of Gaskin’s alleged routine practice of informing patients of the possible complications of such a procedure to make such habit admissible.

As mentioned above, Dr. Gaskin testified that he had performed this treatment on approximately twenty people over the past two or three years. Kathy Keys testified that she worked for the defendant for only one year and she did not know the number of times that she assisted the doctor with this treatment during that year. She also did not know the number of times Dr. Gas-kin performed the procedure during this period. The trial court did not err by excluding her testimony.

The second issue is whether the trial court erred by refusing to give the following requested jury charge:

“Unless by express undertaking, a physician or surgeon does not warrant a cure or successful result, and he is not liable for an honest mistake or error of judgment in making a diagnosis, or prescribing a mode of treatment, where the proper course is subject to reasonable doubt.”

The defendant asserts that his proposed charge was a correct statement of the law as set out in Ingram v. Harris, 244 Ala. 246, 13 So.2d 48 (1943), and Piper v. Halford, 247 Ala. 530, 25 So.2d 264 (1946).

Although defendant’s requested charge was refused, the court did charge the jury that:

“[Wjhere there are several recognized methods of treatment of a particular patient, a physician is at liberty to follow the recognized method of treatment which he thinks best although witnesses have given their opinion that some other method would have been preferable.
“A physician does not guarantee the success of his treatment and has fulfilled his duty to a patient if he prescribes a proper treatment, even though it does not produce good results.”

This charge is substantially the same charge as that requested by Dr. Gaskin. The refusal to give charges, although a correct statement of the law, is not reversible error if the same area of the law is fully and substantially covered by the trial court’s oral charge. Long-Lewis Hardware Co. v. Lightsey, 392 So.2d 545 (Ala.Civ.App.1980), cert. denied, 392 So.2d 548 (Ala.1981).

The trial court’s decision is affirmed.

AFFIRMED.

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


text:
    Ronald L. WEST v. Ingrid Ute WEST.
    Civ. 3782.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1983.
    Walter E. Duffey, Huntsville, for appellant.
    John Mark McDaniel and Henri B. McDaniel, Huntsville, for appellee.
   BRADLEY, Judge.

This is a divorce case.

On January 24, 1983 Ingrid Ute West filed a complaint for divorce in the Madison County Circuit Court against her husband, Ronald L. West. The couple was married on March 27, 1981. No children were born of their marriage but two children from the wife’s prior marriage lived with the couple. The wife alleged complete incompatibility of temperament as the ground for the divorce. She requested, among other things, that the court order her husband to reimburse certain monies to her including $1,600 she paid to her husband for support of her children.

On April 11,1983, after an ore tenus trial, the court rendered a divorce decree in which the wife was awarded $2,250 to reimburse her for the monies she gave her husband. This included the amount she paid for child support. She was also awarded $550 as attorney fees and alimony of $75 per month for five years. The husband appeals and raises three issues.

The first issue raised is whether the trial court erred by making an alimony award to the wife. The husband asserts that the wife failed to ask for alimony in her complaint or amendment. He also states in brief that after the couple separated the wife resumed employment. The thrust of his argument is that the wife does not need or deserve the $75 per month alimony award.

The awarding of periodic alimony is a matter within the broad discretion of the trial court. The exercise of this discretion will not be disturbed on appeal absent a showing of such an abuse of discretion as to render the judgment plainly and palpably wrong. Rich v. Rich, 402 So.2d 997 (Ala.Civ.App.1981). The wife’s failure to request alimony in her pleadings does not prevent the trial court from making such an award if the evidence supports it. Awad v. Awad, 54 Ala.App. 154, 306 So.2d 21 (Ala.Civ.App.1975). The purpose of alimony is to preserve the economic status quo of the parties as it existed during the marriage. Madden v. Madden, 399 So.2d 304 (Ala.Civ.App.1981).

From our review of the record we find no abuse of discretion by the trial court in awarding as alimony $75 per month for five years. The testimony at trial indicated a substantial disparity of income between the parties.

The next issue raised is whether the court abused its discretion by awarding to the wife $2,250 as reimbursement for monies she paid the husband. The testimony at trial showed that the wife received $500 as a wedding present from her aunt. The husband used this money to purchase items that he still has. The wife asked the court to order the reimbursement of half that amount. She testified that over the course of the marriage she loaned her husband money on several occasions and he usually paid her back. On one occasion he borrowed $500 and paid only $100 of the loan back. She also stated that, at her husband’s insistence, she paid him $200 a month for support of her children. She made this payment for eight months for a total of $1,600. She asked that this amount and the $400 outstanding on the loan also be reimbursed to her. The court ordered the reimbursement.

The husband argues that the $200 a month child support payments were used to offset some of the house expenses. He asserts that he owed no duty to support the wife’s children, yet they received the benefits of living in the marital home, which exceeded the $200 payments.

The trial court has wide discretion in making a division of property. Jerrell v. Jerrell, 418 So.2d 157 (Ala.Civ.App.1982). Furthermore, the trial court in a divorce case has the power to use any reasonable means to effect a just property settlement. Simmons v. Simmons, 422 So.2d 799 (Ala.Civ.App.1982).

There is evidence in the record that the wife did lend the husband money that he failed to repay and that the husband did agree to support the wife’s children even though later he required her to pay him $200 a month for their support. Consequently, we consider the trial court’s award of $2,250 to the wife as a reimbursement for money paid to the husband to be an effort on its part to effect a just property settlement. We find no abuse of discretion here.

The final issue on appeal is whether the trial court erred by awarding to the wife $550 as attorney fees. The husband claims the court abused its discretion in making such an award since the evidence showed that the wife had $3,000. He contends this money could have been used by the wife to pay her attorney fees. He also states that the wife failed to show need.

The granting of attorney fees to the wife in a divorce action rests in the trial court’s discretion and will not be reversed except for abuse of that discretion. Cozad v. Cozad, 372 So.2d 1322 (Ala.Civ.App.1979). The factors to be considered in making an attorney fees award include the earning capacities of the parties, results of the litigation, and the financial circumstances of the parties. Gilliland v. Gilliland, 422 So.2d 299 (Ala.Civ.App.1982); Peterson v. Peterson, 403 So.2d 236 (Ala.Civ.App.), cert. denied, 403 So.2d 239 (Ala.1981). The court did not abuse its discretion in making the attorney fees award. The husband’s trial counsel stipulated that the amount was reasonable. Moreover, the $3,000 which the husband argues should be used to pay the fees was given to the wife by her mother to meet the children’s needs. The husband is financially able to meet this award.

The trial court’s decision is affirmed.

AFFIRMED.

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


text:
    Jackie STOUDEMIRE v. Willie E. STOUDEMIRE.
    Civ. 3596.
    Court of Civil Appeals of Alabama.
    Aug. 10, 1983.

      Frank B. Angarola of Legal Services Corp. of Alabama, Andalusia, for appellant.
    Eugenia L. Loggins of Loggins & Log-gins, Opp, for appellee.
   BRADLEY, Judge.

This is a child custody modification case.

Willie and Jackie Stoudemire were divorced on January 12, 1981. Two children were born of their marriage. According to the separation agreement which was incorporated into the final decree, the children’s mother, Jackie Stoudemire, was given custody of the minor children. Willie Stoude-mire, the father, was ordered to pay $120 per month as child support. He was granted reasonable visitation rights.

On May 21, 1982 the father filed a petition in the Coffee County Circuit Court for modification of the custody decree. He alleged a material change in circumstances since the original decree, including poor supervision or care of the children. The mother answered and counterpetitioned for a rule nisi alleging that the father was delinquent in his child support payments.

On November 30,1982 after an ore tenus trial the court rendered its decree modifying the original decree. The children, a girl and boy, were four and five years old, respectively, at the time of the trial. The court awarded custody of the children to the father and ordered that the mother be given liberal visitation privileges. The court provided a visitation schedule in its decree in the event the parties could not reach an agreement as to visitation. The mother's counterpetition for rule nisi was denied but the court stated:

“[T]he modification set out in this decree is ONLY to be effective when the [father] pays to the [mother] any child support owed for the month of November 1982. That is the [father] is to have his child support owed to the [mother] current to the date of December 1, 1982; otherwise this decree is of no force and effect.”

The mother appeals.

The child custody provisions of a divorce decree may be modified if the evidence shows a substantial change in conditions pertaining to the child’s welfare since the rendition of the original decree. Reaves v. Reaves, 399 So.2d 311 (Ala.Civ.App.1981). The burden of showing a material change in circumstances is on the party seeking the modification. Jenkins v. Jenkins, 395 So.2d 1045 (Ala.Civ.App.1981). The prevailing consideration in ruling on a motion for change of custody is the best interests of the child. Keith v. Keith, 380 So.2d 889 (Ala.Civ.App.1980).

The first issue raised by the mother is whether the father met his burden of proving a material change in circumstances affecting the children’s welfare so as to justify a change in custody.

The testimony presented at trial showed that since the original decree the father has married a woman with two minor children. He has purchased a home and has continued his employment with the Opp Micolas Mills. The father testified that he attends church. He does not smoke, drink alcoholic beverages, or take drugs.

Further testimony was presented by the father that the mother did not adequately supervise the children. The father stated that his former wife did not always know where the children were. She had sent the boy, age five, into a neighborhood bar or nightclub to make a purchase for her. The father stated, in a deposition which was in the record, that the mother drank alcoholic beverages and smoked marijuana. Since the divorce the mother has had relationships with men characterized by the men staying overnight. Her children were at her apartment when she entertained her overnight guests.

Also presented was testimony that on two occasions when the apartment was broken into, the mother fled to get help but left her children in the apartment. The testimony supports the trial court’s modification.

The second issue is whether the trial court erred by admitting, over the objection of the mother, testimony relating to the mother’s current circumstances. During cross-examination of the mother, the mother was asked about her current employment status. She objected and argued that no predicate was laid as to her employment situation at and prior to the previous decree. Without such a predicate, she contends, the testimony would be immaterial as tending to show changed circumstances.

We note from our review of the record that the mother, during direct exam- • ination by her attorney, stated that she was unemployed. Her attorney then questioned her about her attempts to find employment. Furthermore, testimony was given, without objection, by the father and one of the mother’s witnesses that the mother was unemployed. The overruling of objections to testimony already received or subsequently received without objection is not reversible error. Coker v. Ryder Truck Lines, 287 Ala. 150, 249 So.2d 810 (1971); Bentley v. Independent Life & Accident Insurance Co., 47 Ala.App. 15, 249 So.2d 631 (Ala.Civ.App.1971). The trial court did not err by overruling the mother’s objection in response to the question about her employment.

The mother also argues that the trial court erroneously overruled her objection to a question about whether she fed her male friends when they were visiting. The mother argues that the testimony sought to be elicited was immaterial.

We disagree. As we have already mentioned, the primary concern in a child custody case is the best interests of the child. The testimony given at trial was that the mother’s only means of supporting herself and her children were the support payments, food stamps, and an occasional loan from her mother. Obviously, the mother had to operate on a tight budget. The testimony was material as to the environment and care she provided her children. The trial court did not err by hearing such testimony. This case is affirmed.

The mother’s request for attorney fees is denied.

AFFIRMED.

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


text:
    Clifford N. MANSELL v. Brenda MANSELL.
    Civ. 3776.
    Court of Civil Appeals of Alabama.
    Aug. 10, 1983.
    James Francis, Decatur, for appellant.
    Travis W. Hardwick, Decatur, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

After an ore tenas hearing the trial court divorced the parties, awarded the wife custody of the couple’s four minor children, required the husband to pay child support, and made a division of property. The husband, through able counsel, appeals the trial court’s decree on the custody, child support, and property division issues, and we affirm.

The dispositive issue is whether the trial court so abused its discretion in the awards of custody and child support and in the division of property as to require reversal. We find no such abuse of discretion as to require reversal and accordingly affirm.

The parties were married for approxi-' mately fourteen years. There were four children of the union: a four-year-old boy and three girls ages 6, 8, and 12.

The husband is 39 years old. He is employed by Monsanto Company as an electronics technician earning approximately $2,200 a month. He also serves in the National Guard, earning an additional $300 per month.

The wife is 33 years old, and worked very little outside the home after the marriage. However, prior to the separation she entered the pre-nursing program at a local community college. Her only income at the time of trial was $65 a week earned babysitting a friend’s children, $40-$50 a month earned tutoring, and some money from cake decorating.

I

Evidence was presented that both parents were fit custodial parents. As indicated, the trial judge awarded custody to the wife, finding that the wife “could provide for a more stable and routine method of caring for and controlling the children than is presently provided.” The trial court found that the arrangements the husband had made for the care of the children during the separation were awkward and not in the best interests of the children. After having reviewed the record we find these actions of the trial court to be supported by the evidence.

In a child custody case, the issue of paramount importance is the best interest of the child. Reaves v. Reaves, 399 So.2d 311 (Ala.Civ.App.1981). The determination of the custody issue is addressed to the sound discretion of the trial judge, and when such discretion is exercised after an oral hearing of the evidence, the decision will not be set aside unless it is so contrary to the evidence as to be clearly and palpably wrong. Fassina v. Fassina, 401 So.2d 113 (Ala.Civ.App.1981); Reaves v. Reaves, 399 So.2d 311 (Ala.Civ.App.1981). Furthermore, when the trial court must resolve conflicts in the facts testified to, it is not for this court to substitute its judgment for that of the trial court. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

II

In providing for child support the trial court fixed the husband’s monthly obligation at $150 per child, or $600. In addition, the trial court required the husband to provide health and dental insurance coverage for the children, to pay any health and dental costs not covered by the insurance provided, to pay the first and second mortgage and one-half of all maintenance or repair bills on the family home, and to make the remaining payments on the family station wagon. The husband complains that this burden is excessive.

“The duty of the [trial] court to make provision for the maintenance and education of minor children is evident and its powers are broad.” Hardy v. Hardy, 46 Ala.App. 253, 256, 240 So.2d 601, 605 (1970). In providing for child support, the trial court must consider the needs of the children and the ability of the parent to pay. Butts v. Butts, 418 So.2d 161, 164 (Ala.Civ.App.1982). The child support decision is committed to the sound discretion of the trial court; unless there is plain and palpable abuse of that discretion, the trial court’s award will not be upset on appeal. Id.

In reviewing the instant case, this court cannot find an abuse of discretion in the child support provisions. As the wife has only a minimal present ability to provide financially for the four minor children, the trial court had no alternative but to place the obligation on the husband. Therefore, this court must reject the appellant husband’s contention that the payments as indicated will be excessive.

Ill

This court is likewise unable to find error in the property division portion of the divorce decree. The wife was granted possession of the family home (and furnishings) until the youngest child reaches majority, the wife remarries, or the wife voluntarily vacates the premises. At that time the residence will be sold and the proceeds divided equally between the parties. The wife was also given title to the family station wagon, and the husband was ordered to pay all outstanding debts of the parties.

A property division need not be equal, but it must be equitable and graduated according to the nature of the particular case. Hinds v. Hinds, 415 So.2d 1122, 1127 (Ala.Civ.App.1982). This court can find no abuse of discretion in the division of property, especially since the use of the family home and car is given to the custodial parent. See, e.g., Cranton v. Cranton, 347 So.2d 997 (Ala.Civ.App.1977); Hardy v. Hardy, 46 Ala.App. 253, 240 So.2d 601 (1970). Accordingly, the judgment below is due to be affirmed.

The wife has requested an attorney’s fee for representation on appeal. A fee of $350 is hereby awarded.

AFFIRMED.

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


text:
    James E. JONES v. Shirran M. JONES.
    Civ. 3590.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.
    Sheldon Perhacs, Birmingham, for appellant.
    Joe L. Tucker, Jr. of Holliman, Tucker & Ladner, Bessemer, for appellee.
   WRIGHT, Presiding Judge.

The parties were divorced in 1981. Subsequently, the former wife (wife) filed a petition for rule nisi for failure of the former husband (husband) to pay child support and alimony as ordered. Husband responded with his own petition for rule nisi and a petition to modify the judgment as to alimony and child support. Oral hearing was held on all petitions. On November 3,1982, judgment was entered denying modification, finding arrearage against husband for alimony, child support and unpaid attorney fees of $12,510. Husband was held in contempt of court and ordered confined to jail unless he purged himself of contempt by payment of the arrearage within fourteen days. Husband failed to make payment and was ordered confined in jail.

Upon motion for stay for purpose of appeal and filing of a supersedeas bond, the court granted a stay of confinement pending appeal. Appeal was filed from the judgment denying modification and the finding of contempt and from the order of confinement. However, the only issue presented to this court is whether the trial court erred in denying husband’s petition to modify the original judgment of divorce. Therefore, we do not have before us the propriety of the finding of contempt nor of the determination of arrearage.

There is no transcript of the evidence. The appeal is presented for review under Rule 10(d), A.R.A.P. There is included in the record a statement of the evidence as settled and approved by the court. There appears no objection to that statement. That statement is in accord with Rule 10(d). It is the only record of evidence available for our consideration. Counsel for each party has presented in brief a statement of facts which does not refer to the statement of the evidence as settled by the court and in some instances refers to facts not appearing therein.

Merits

The record reveals that on September 18, 1981, the court divorced the parties and required payment of $1,299 monthly by the husband to the wife as alimony and child support. The husband was then employed by U.S. Pipe and also operated an electrical business with a gross income of $78,000. When the petition for modification was heard a year later, the husband was laid off at U.S. Pipe. However, the gross income from his electrical business from September 1981 to May 1982 (eight or nine months) was near $111,000. The trial court in its decree denying the petition to modify because of reduced income found from the evidence that husband’s income was not substantially decreased since September 1981. (The court no doubt considered the fact that in the interim since the divorce, the husband, had paid practically nothing for alimony and support.)

Our review of the record as settled finds the decree sufficiently supported therein to sustain it against the charge of abuse of discretion. We therefore affirm.

Appellee’s request for attorney fees on appeal is granted in the sum of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Joseph HORNADY v. PLAZA REALTY COMPANY, INC.
    Civ. 3719.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.

      J. Milton Coxwell, Jr. of Coxwell & Cox-well, Monroeville, for appellant.
    Windell C. Owens, Monroeville, for appel-lee.
   BRADLEY, Judge.

Judgment for the plaintiff in a breach of contract case and defendant appeals.

Prior to August 1981 Joseph Hornady listed his commercial building for sale with Plaza Realty Company, Inc. Efforts to sell the building were unsuccessful; however, in August 1981, Plaza was contacted by Motion Industries about the possibility of leasing the building. Hornady consented to lease the building for a five year period with a rental of $950 per month. Should these terms be accepted by Motion Industries, Plaza would then collect the rental each month, deduct its ten percent commission, remit the balance to Hornady, stay in touch with the tenant, and take care of any problems it may have relating to the property. No writing of the alleged agreement between Hornady and Plaza was made and Hornady denied the existence of any such agreement.

Hornady and Motion Industries subsequently entered into a five year lease arrangement with a rental of $1,000 per month. Plaza received no commission on this lease arrangement and it sued Hornady for breach of contract and Motion Industries for conspiracy, i.e. Motion Industries had conspired with Hornady to deprive Plaza of its commission by dealing directly with Hornady in leasing his building. Later, Motion Industries was dismissed as a party defendant.

Prior to a hearing on the merits of the complaint filed by Plaza, Hornady answered by denying the allegations of the complaint and asserted, as an affirmative defense, the Statute of Frauds. The court, sitting without a jury, heard the case on its merits and rendered a judgment for Plaza in the amount of $1,900. Hornady appeals.

In brief Hornady argues that the Statute of Frauds applied to the sued-upon agreement and that it was thus unenforceable. He contends that an oral agreement which provides for performance over a term of five years is within the Statute of Frauds and is void and unenforceable unless in writing. Section 8-9-2(l), Code 1975, provides: “Every agreement which, by its terms, is not to be performed within one year from the making thereof” is void unless it is evidenced by some writing. However, in order to bring a contract within the purview of this section of the Statute of Frauds, the contract must be incapable of being performed within one year. Land v. Cooper, 250 Ala. 271, 34 So.2d 313 (1948).

Hornady strongly contends that the agreement could not be performed within one year because Plaza’s obligations under the contract extended over the entire five year period of the proposed lease.

In support of his contention, Hornady cites us to. similar decisions from other jurisdictions which have held that the oral agreements involved were within the Statute of Frauds and therefore unenforceable: for example, Spokane Canal Co. v. Coffman, 61 Wash. 357, 112 P. 383 (1910), concerning an oral agreement to cultivate fruit trees for a five year period; Hanrihan v. Parker, 19 Misc.2d 467, 192 N.Y.S.2d 2 (1959), dealing with an oral agreement to pay commissions on sales over a period of five years; Dworkin v. Alamo Auto Leasing, Inc., 334 So.2d 77 (Fla.Dist.Ct.App.1976), concerning an oral agreement to pay an employee commissions on sales for a period of more than one year, and others.

In reply Plaza says that the oral agreement is enforceable because the main purpose of it was to obtain a lessee for Horna-dy’s building and once that had been accomplished the oral agreement became executed and without the purview of the Statute of Frauds.

The rule in Alabama is that the Statute of Frauds applies only to executory contracts, not to executed contracts. Landrum & Co. v. Wright, 11 Ala.App. 406, 66 So. 892 (Ala.Ct.App.1914); Scott v. Southern Coach & Body Co., 280 Ala. 670, 197 So.2d 775 (1967).

Plaza asserts that its contract with Hor-nady was executed when it obtained a lease for Hornady’s building at a satisfactory rental. The other aspects of that agreement, so it contends, were incidental to the primary purpose and therefore did not prevent the agreement from being executed.

Hornady disputes this contention by arguing that the obligations to collect the rent, remit Hornady’s portion to him, stay in touch with the tenant and solve any problems that it might have, extended over the term of the lease and were just as important to him as the obligation to obtain a tenant. The obligations for performance which extend over the entire five year term of the lease make the agreement executory and subject to the Statute of Frauds.

In support of this argument, we note that an entire contract cannot be within the Statute of Frauds as a part, and without it as to the remainder. Bunch v. Gardner, 208 Ala. 271, 94 So. 114 (1922). Where the parts of the contract are so interwoven that the parties cannot reasonably be considered to have contracted with other than full performance of the entire agreement in mind, the agreement comes within the Statute of Frauds and is unenforceable. Bunch v. Gardner, supra.

In the case at bar, the evidence supports the conclusion that Plaza’s commission depended not only on obtaining a tenant for a certain term and rental but also on the collection of that rental and servicing the lease over its entire term. It is not unreasonable to conclude from this evidence that the parties intended full performance of the entire agreement. That being so, the agreement is incapable of being performed in one year and, not being in writing, is unenforceable.

The judgment of the trial court is reversed and the cause is remanded for entry of judgment consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


text:
    Ruth R. BEATTY v. Lynda A. HART, et al.
    Civ. 3645.
    Court of Civ. Appeals of Alabama.
    June 1, 1983.
    Rehearing Denied June 15, 1983.
    Certiorari Denied Sept. 2, 1983 Alabama Supreme Court 82-912.
    Donald R. Harrison and Jim L. DeBarde-laben, Montgomery, for appellant.
    Wesley Romine, and Clyde C. Owen, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellees.
   ON REHEARING

WRIGHT, Presiding Judge.

This court’s original opinion dated May 11, 1983 is withdrawn and the following is substituted therefor:

This is an appeal by appellant, Ruth R. Beatty, from the order of the circuit court denying her petition for writ of certiorari and affirming the State Personnel Board’s action in dismissing her from her State job. Appellant’s dismissal arose from the following facts:

FACTS

Appellant took a one-year leave of absence without pay for medical reasons from her position with the Department of Industrial Relations. Appellant’s supervisor, Robert Langley, informed her when she took the leave that she could not draw unemployment compensation benefits if she was on sick leave.

During her leave, appellant took a temporary Christmas job at Gayfers, after which she applied for unemployment compensation benefits. Appellant made no reference on her unemployment compensation application to the fact she was on sick leave from the State, but did make such a reference in her employment application. Each application is filed in a separate office and as a consequence, the fact that appellant was on sick leave was only brought to the attention of the unemployment compensation office after benefits had been paid to appellant and after an investigation had been ordered. Section 25^4-78(2), Code of Alabama 1975, disqualifies one on sick leave from receiving unemployment compensation benefits. Upon being informed she had received such benefits illegally, appellant returned all she had received. However, Lynda A. Hart, as appointing authority for the Alabama Office of Employment and Training, decided the facts and circumstances warranted appellant’s dismissal and so informed appellant of that fact and of a scheduled hearing on the matter before a panel of three employees.

The panel determined appellant had only used poor judgment and recommended no disciplinary action. Nevertheless, after reviewing the nature of appellant’s job, the investigation report as to appellant’s illegal receipt of benefits, and the panel’s finding of appellant’s use of poor judgment, Ms. Hart decided to dismiss appellant for the good of the service.

Appellant appealed Ms. Hart’s decision to the State Personnel Board. After a hearing, the Board found that the dismissal charges against appellant were proved and that such charges warranted her dismissal.

Appellant then filed a petition for writ of certiorari in the Circuit Court of Montgomery County. The court found the action of the Board affirming appellant’s dismissal was substantiated by the facts and denied appellant’s petition. Appellant appealed.

The issue for review is whether the facts as established warrant the dismissal of appellant. We find that they support the dismissal.

Section 36-26-27, Code of 1975 provides that an employee may be dismissed for stated reasons by the appointing authority whenever he determines it will serve the good of the service and that the Personnel Board’s review of such a determination is limited to whether the reasons stated for the dismissal are sustained by the evidence presented at the Board’s hearing. Hilyer v. Blackwell, 377 So.2d 1090 (Ala.Civ.App.), cert. denied, 377 So.2d 1092 (Ala.1979). Ms. Hart stated appellant was dismissed for the good of the service due to poor judgment, and the Board determined the facts substantiated that reason. It is not the province of this court to substitute its judgment for that of the Board. Roberson v. Personnel Board of State of Alabama, 390 So.2d 658 (Ala.Civ.App.1980). Moreover, poor judgment has been held as sufficient grounds for dismissal. See Hilyer, supra.

We note appellant makes no issue of the circuit court’s dismissal of her damages count against Ms. Hart. Matters not raised on appeal are waived. Williams v. Clark, 50 Ala.App. 352, 279 So.2d 523 (1973).

APPLICATION FOR REHEARING DENIED.

OPINION SUBSTITUTED.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Section 25-4-77, Code of Alabama 1975, requires one to be able and available for work in order to show oneself eligible for benefits. One must therefore apply for other employment to make himself eligible for unemployment benefits.


author: BARRON, Judge.

text:
    Arthur D. MALLORY v. STATE.
    3 Div. 510.
    Court of Criminal Appeals of Alabama.
    March 1, 1983.
    Rehearing Denied May 31, 1983.
    Certiorari Denied Aug. 26, 1983 Alabama Supreme Court 82-826M & 82-855.
    Certiorari Denied Jan. 9,1984. See 104 S.Ct. 722.

      Richard A. Lawrence, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Arthur D. Mallory was charged and convicted of robbery in the first degree in the Circuit Court of Montgomery County and was sentenced as a habitual offender to life without parole. This appeal follows.

In early August of 1981, appellant approached one Ray Stanford, the assistant manager of a Montgomery jewelry store, and proposed buying some jewelry from him “under the counter without a written receipt.” About two weeks later, appellant returned to the jewelry store accompanied by Willie James DeBruce, both of whom attempted to persuade Stanford “to meet them later on.” DeBruce exhibited “three to four thousand dollars” in hundred dollar bills to Stanford. Appellant and DeBruce looked at the most expensive diamonds, inquiring of Stanford the quantity of such diamonds on hand and the closing hours of the store. The two left the store after Stanford “would not sell illegal, steal any of it,” and they told Stanford they would contact him later.

Due to the actions and demeanor of appellant and DeBruce while they were in the store, Stanford became suspicious that they “might want to rob the place.” After his manager arrived at the store, Stanford informed the manager of the incident and of his suspicions. They then called the Montgomery Police Department and relayed the information to them.

Later that day, either appellant or De-Bruce called Stanford, setting up a meeting with Stanford at 7 p.m. at the parking lot of a Montgomery motel. According to Stanford, “they sounded very forceful.”

After coordinating the scheduled meeting with the Montgomery Police Department, Stanford met appellant and DeBruce. They invited Stanford to their motel room and offered him “a large amount of drugs.” Stanford refused in both instances and, instead, invited DeBruce, who was standing with appellant, to join him in Stanford’s car, parked near the swimming pool. Appellant remained outside of the car, De-Bruce got in on the passenger side, and Stanford entered on the driver’s side. Appellant then walked over to the corner of the motel building, about thirty or forty feet from the car, “acting as a lookout.” Just as Stanford closed the car door, De-Bruce requested to see “the merchandise.” As Stanford reached into his pocket for the bag containing the jewelry, he looked up and saw DeBruce pointing a pistol at him. DeBruce also demanded, and received, two diamond rings which Stanford was wearing.

Stanford then engaged the car’s starter with the car in gear; as the car lunged forward, Stanford was able to open the door and make his exit. As he ran, he yelled “[h]e’s got a gun.” As DeBruce (who had the jewelry) got about twenty feet away from the car, he was stopped and arrested by Officer Strope of the Montgomery Police Department who, by prearrangement, was on a stakeout at the motel’s swimming pool.

The value of the store’s jewelry was estimated at “more than ten thousand dollars,” and the value of Stanford’s personal rings was estimated to be three thousand dollars.

I

Appellant questions the sufficiency of the evidence for a conviction of robbery in the first degree, urging that the trial court erred in the denial of his motion to exclude the State’s evidence and his motion for a new trial. We disagree.

The requisite elements of the charged offense are adequately demonstrated by the evidence; therefore, the only question presented on the motion to exclude is whether there was sufficient evidence at the conclusion of the State’s case in chief for the jury to reasonably conclude that appellant was an accomplice and knew that DeBruce had a gun. The fact that appellant himself was unarmed is not fatal.

Section 13A-2-23, Code of Alabama 1975, provides: “A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense: ... (2) He aids or abets such other person in committing the offense; .... ”

Appellant had made the initial contact with Stanford at the jewelry store, and it was he who brought DeBruce to the store to meet Stanford.

Witness Stanford testified, without objection, that based from the actions and demeanor of appellant and DeBruce while they were in the jewelry store earlier that day, he feared they “might want to rob the place.” Both Officers Burks and Strope of the Montgomery Police Department, without objection, characterized the action of the appellant during the time of the robbery as that of a lookout. Also, at the time Officer Strope stopped and arrested De-Bruce, appellant immediately ran.

When this evidence is considered in the light most favorable to the State, as we are required to do in considering the motion to exclude, there is sufficient basis for the jury to reasonably conclude that appellant did aid and abet DeBruce in the robbery and that appellant knew that DeBruce had a gun. The motion to exclude the State’s evidence was, therefore, properly denied.

The only evidence offered by appellant was the testimony of DeBruce, who testified that he and appellant came to Montgomery from Birmingham to buy some jewelry, and that he did not indicate to appellant that he had a gun. However, on cross examination, when the State was attempting to impeach DeBruce’s testimony, he testified that he had previously pleaded guilty to the robbery charge in this case, and that at the time of entering his guilty plea, he had told the trial judge accepting the plea that appellant knew about the gun.

The question of whether the State met its burden of proving the necessary elements of appellant’s complicity, including his prior knowledge of the gun, and his intent to promote or assist in the commission of the offense, was fairly put to, and resolved by, the jury. We find no error in the trial court’s denial of appellant’s motion for a new trial.

II

Appellant urges that the trial court erred to reversal in its failure to grant a mistrial on the basis of a question to one of the State’s witnesses by the prosecutor.

The State asked Officer Burks if he knew whether the Pinto (which appellant was driving at the scene when the robbery occurred) was a stolen car. Appellant interposed an objection, which was sustained by the trial court. Appellant also moved for a mistrial on the basis that the question was prejudicial in nature and for a jury instruction that the question be disregarded. The mistrial motion was denied, and the jury instruction motion was granted. The trial court instructed the jury to “totally disregard” the question in that it was “totally improper and doesn’t have anything to do with this case.”

A motion for a mistrial should not be granted when the prejudicial qualities of a comment can be eradicated by action of the trial court. Further, there is a prima facie presumption against error where the trial judge immediately charges the jury to disregard the remark. See Nix v. State, 370 So.2d 1115 (Ala.Cr.App.), cert. denied, 370 So.2d 1119 (Ala.1979).

The prosecutor’s question was not of such magnitude as to be ineradicable, and the trial court immediately charged the jury to disregard the question. We find no error in the trial court’s denial of appellant’s motion for a mistrial.

Ill

Appellant contends that some of the State’s questions to DeBruce on cross examination were prejudicial to the extent of being an impermissible denial of his Sixth Amendment right to confront and cross examine his accusers. He further contends a denial of due process under the Fourteenth Amendment on the basis that the State withheld from him the statements DeBruce made at the guilty plea hearing. We find that these contentions are without merit.

DeBruce testified on direct examination that appellant was not aware of the gun. The questions by the State were for the purpose of rebutting and impeaching this testimony.

The pertinent portion of the testimony was:

“Q. And when you pled guilty you told the Court, with myself present and your attorney, Mr. Law, who is seated over there, who was also present, that Arthur did know about this gun and that y’all went out there to get these jewels from this man; didn’t you?
“A. Yes, sir, but I ain’t said Mr. Malloy [sic] knew nothing about the gun.
“Q. But you said that at the plea; didn’t you?
“Mr. Hartley: We object, Your Honor. “The Court: Overruled.
“Q. Didn’t you say that at the plea? When you pled guilty and told the court all the truth, that’s what you told Judge Thomas—all I want to do, Judge, is tell you the truth—didn’t you tell the Judge that he knew about that pistol? This pistol right here that’s sitting up on this table?
“The Court: Answer the question.
“A. I could have said that, Judge.
“Q. And that’s the day you told the Judge that y’all had talked about all this and that the Defendant, Arthur Malloy or Arthur Mallory, saw that gun and knew you were going up there with that gun. Now you said that, didn’t you?
“A. I said it.”

It is apparently the appellant’s position that the form of these questions served to give the jury the impression that the trial judge and the prosecutor were confirming the accuracy of the information being elicited by the questions. We disagree and hold that such questions are clearly permissible on cross examination for impeachment purposes in that the information sought constitutes self-contradiction in the form of prior inconsistent statements. See C. Gamble, McElroy’s Alabama Evidence § 155.02(1) (3d ed. 1977).

The prior inconsistent statements of DeBruce used by the State to impeach his credibility are not within the scope of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as appellant contends. The distinguishing features are that (1) the prior inconsistent statements of De-Bruce were made in open eourt, rather than being statements accessible only to the prosecution and undiscoverable by the appellant prior to their surprise use at trial, and (2) the prior inconsistent statements were used to impeach appellant’s witness, not the appellant. We find that the facts in the case before us do not fall within the intent and reach of Brady v. Maryland, supra, and that failure of the prosecution to furnish appellant with DeBruce’s prior inconsistent statements does not violate appellant’s due process rights.

IV

Appellant contends that he was denied a fundamentally fair trial in that (1) the trial court erroneously failed to charge the jury as to the use of impeachment evidence, and (2) that DeBruce’s admission of his guilty plea to the robbery charge prejudiced the jury against the defendant.

Our review of the entire proceedings leads to the inescapable conclusion that appellant was, in fact, afforded a fundamentally fair trial. Additionally, neither of the matters cited by appellant was brought to the attention of the trial court and, therefore, they are not preserved for appellate review. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981).

V

Appellant’s appointed counsel filed a motion for a new trial on a timely basis. Also, appellant filed, pro se, a motion for a new trial, together with an amendment to the motion. The trial court denied the motions, and appellant then filed, pro se, a request for an evidentiary hearing on the motion for a new trial, which request was denied by the trial court. Appellant complains that the trial court erred in denying his request.

Appellant’s request for an evi-dentiary hearing was filed after the trial court had ruled on his motions for a new trial. Consequently, appellant’s contentions are lacking in merit. Additionally, a trial court’s decision on a motion for a new trial rests largely within the sound discretion of the trial court and, in an appellate review of such decisions, this court will indulge every presumption in favor of the correctness thereof. Ala.Dig.Cr/m.Law, § 911.

We find no error in the trial court’s denial of appellant’s request for an evidentiary hearing.

VI

Appellant argues that he was unconstitutionally denied effective assistance of counsel for the reasons that (1) a written jury instruction should have been requested to the effect that DeBruce’s prior self-contradictory statement is proper to be considered only for impeachment and not as evidence of the truth of the matter, and (2) objections should have been interposed to certain of the State’s questions to the police officers and to DeBruce. We find that these cited reasons do not rise to the level of an inadequate defense in the context of a constitutional right to counsel.

The trial tactics and strategy employed by a defense counsel during the course of a criminal trial are easily quarterbacked when viewed after the fact and in a deliberate manner. This hindsight always tests a perfect 20/20. However, complete absence of error on the part of a defense counsel is neither required nor anticipated by the Sixth Amendment.

Effective assistance of counsel does not mean that counsel must be free of error. Graham v. State, 403 So.2d 275 (Ala.Cr.App.), writ quashed, Ex parte Graham, 403 So.2d 286 (Ala.1980); Bridges v. State, 391 So.2d 1086 (Ala.Cr.App.1980). A defense counsel’s mistake in a trial, which results in an unfavorable judgment to the accused, is not alone sufficient to demonstrate ineffective assistance of counsel. Lewis v. State, 367 So.2d 542 (Ala.Cr.App.1978), writ denied, Ex parte Lewis, 367 So.2d 547 (Ala.1979).

The standard of determining the issue of ineffective assistance of counsel is that either (1) the counsel was only perfunctory, or (2) his conduct reduced the trial to a farce, sham or mockery of justice, or (3) the representation was such as would shock the conscience of the court. Bridges, supra; Summers v. State, 366 So.2d 336 (Ala.Cr.App.), cert. denied, 366 So.2d 346 (Ala.1978). Clearly, the conduct of which appellant complains falls far short of the mark. Neither are we persuaded that the “reasonably effective assistance” standard has been violated in this case. See Harris v. Oliver, 645 F.2d 327 (5th Cir.1981).

VII

Appellant’s arguments that his sentence of life without parole was improper lacks merit.

The issue of the validity of the Habitual Felony Offender Act and its application to offenses committed prior to its enactment were answered.to the appellant’s detriment in James v. State, 405 So.2d 71 (Ala.Cr.App.1981).

The prior offenses on which the court relied in invoking the Habitual Felony Offender Statute occurred in Jefferson County. By virtue of a local act applicable to Jefferson County (Act No. 1037, Acts of Ala. 1971, p. 1847, approved September 7, 1971), certified copies of trial docket sheets have the same force and effect as minutes of the courts. Thomas v. State, 395 So.2d 1105 (Ala.Cr.App.1981). The certified copies of the docket sheets, i.e., the minutes of the trial courts, used to prove the prior convictions affirmatively show that appellant was represented by counsel on all of the prior convictions which were used to enhance appellant’s punishment under the Habitual Felony Offender Act. Although two of the docket sheets show that counsel was appointed to represent the appellant (in cases No. 13854 and 14127), the docket sheets do not specifically recite that the appellant was attended by counsel (or had waived counsel) when he withdrew his not guilty pleas and entered guilty pleas. The showing on the docket sheet that appellant was represented by appointed counsel is sufficient to satisfy the requirement that prior convictions can be used to enhance punishment only where it has first been affirmatively established that the accused was represented by counsel or waived counsel at the time of the prior convictions. See Douglas v. State, 406 So.2d 1051 (Ala.Cr.App.), cert. denied, 406 So.2d 1053 (Ala.1981).

The requirements of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), having been met, we find no error in appellant’s sentence.

VIII

The issues of the trial court’s failure to charge on complicity and the refusal to give appellant’s written charge No. 2 were not preserved for appellate review. Allen v. State, supra.

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

AFFIRMED.

All the Judges concur.

      . The reader’s attention is called to the inadvertent omission of the word “not” between the words “does” and “specifically” on the 12th line of Issue I at page 1052 of the reported opinion.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Douglas BILLINGSLEY v. STATE.
    7 Div. 949.
    Court of Criminal Appeals of Alabama.
    May 31, 1983.
    Rehearing Denied July 5, 1983.
    Certiorari Denied Sept. 23, 1983 Alabama Supreme Court 82-1019.

      B. Greg Wood, and Huel M. Love, Sr., Talladega, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence in accordance with the verdict of a jury finding defendant guilty of murder in the second degree of John Alvin Abrams and fixing punishment at imprisonment for ten years and one day. The indictment charged murder in the first degree; defendant had been previously found guilty of murder in the second degree by a jury that fixed his punishment at imprisonment for twenty years. On appeal from the former judgment, the judgment was affirmed by the Alabama Court of Criminal Appeals, 402 So.2d 1052 (Ala.Cr.App.1980), which judgment was reversed by the Alabama Supreme Court, 402 So.2d 1060, (Ala.1981), and after remandment to the Alabama Court of Criminal Appeals, the judgment of the trial court was reversed and the cause remanded (402 So.2d 1062 (Ala.Cr.App.1981)).

There is little difference between the evidence on the first trial and the evidence on the second trial, which is comprehensively covered by the opinion of this court on the former appeal, and there is no occasion for a repetition thereof. We think worthy of note, however, a matter which perhaps is insignificant — that the sole basis for the reversal of the judgment on the first trial was the argument of State’s counsel in criticism of the defense in not calling defendant’s wife as a witness for the defendant in corroboration of the defendant’s testimony that he did not kill the alleged victim, while on the second trial the defendant did not testify and his wife did testify when called by the defense, substantially as defendant had testified on the first trial.

Appellant presents three separate issues as bases for a reversal. We proceed to consider them in the order presented in appellant’s brief.

I

The case came on for the second trial on a Tuesday, February 16, 1982, after having been set for trial on the preceding day but not being called for trial on that day. At 8:47 A.M. on February 16, defendant’s attorneys filed a written motion for a continuance of the case by reason of an article that appeared in the Talladega Daily Home-Sylacauga News. A copy of the article was attached to the motion for a continuance and is as follows, under the caption of “THATCH FOUND GUILTY; MURDER TRIAL CONTINUED”:

“TALLADEGA A second murder trial of Douglas Billingsley of Sylacauga, slated to begin Monday, was continued until 9 a.m. Tuesday, but Michael Thatch was tried and found guilty of robbery during a May escape of the Talladega County Jail.
“Billingsley was convicted in 1979 of second degree murder in the shotgun slaying of his next door neighbor, John Alvin Abrams, and sentenced to 20 years. “The sentence was upheld by the Criminal Court of Appeals, but was then reversed in August 1981, and the case remanded for a new trial.
“Abrams was 71 years old when he died from a shotgun blast to the head. Bill-ingsley was 68 years old at the time. The incident occurred at Billingsley’s home at 701 Park St., Sylacauga.
“SELECTION OF A jury was slated to get under way Monday. However, because Monday was a state holiday, assistants to the attorney general who are to prosecute the case did not appear, according to Supernumerary Judge William Bibb. Bibb continued the case until 9 a.m. Tuesday.
“Billy Wayne Roberts and Edmond Earl Payne, who fled the jail both times with Thatch, already have been convicted of escape, kidnapping, and robbery charges from the first escape. Roberts, a convicted murderer, was handed down a life sentence and two sentences of life without parole.
“Thatch was serving life without parole for a crime committed in Madison County, but was in the Talladega County Jail awaiting court action on charges here when the trio escaped.”

The first matter heard at the call of the case at 9:00 A.M. was defendant’s motion for a continuance. In a colloquy among the court and counsel for the parties it was agreed that the copy of the newspaper article would be considered as evidence. Thereupon, the following occurred:

“THE COURT: Do you have any other evidence on this motion?
“MR. LOVE: [Defendant’s attorney]: I’d call the members of the jury if it’s necessary, Your Honor, to prove how many of them has read it. How many has read it this morning, and how many has had it in the court room over there now at this time.
“THE COURT: Well, I think we can assume this. I believe I’m right. You gentlemen speak up if you disagree with me. We can assume that you are not going to be able to put a jury in the box that does not contain a substantial number of persons who have read this article.
“MR. LOVE: That’s true, sir.
“THE COURT: Now, with that assumption or that stipulation, if any of you want to object to that, just object to it now. With that stipulation I think we can save putting each juror on the witness stand. Now, do you have anything else you want to present?
“MR. LOVE: No, sir, not with that stipulation, Your Honor.
“THE COURT: Do you have any evidence you want to present opposing this motion?
“MR. VALESKA [Assistant Attorney General]: No, sir, Judge. I don’t have any evidence. I would ask the Court not—
“THE COURT: Well, we are just going to say the evidence is closed. Now, we are going to let the defendant’s side argue the motion, if they choose to do so.”

After considerable argument by the attorneys for the parties as to the motion for a continuance, the court overruled the motion with a statement by the trial judge as follows:

“... Therefore, I am going to give the reason — in fact, two reasons that appeal to me — why I’m going to deny this motion for a continuance.
“Number one, the evidence on the motion must show, or at least raise a presumption, that the defendant has been harmed by the publicity. To put it another way, the burden rests upon the defendant on asking for a continuance to show that injustice would result if he didn’t get a continuance.
“The other reason is that I’ve read the article and the article substantially states, in addition to what has already been brought out, that the gentleman took an appeal and the Supreme Court of the State of Alabama reversed the case and ordered a new trial. And I’m just not at all satisfied, in my own mind, that anybody would be prejudiced by that or would be unable to sit in the jury box without any preconception. The paper says the case was reversed and a new trial was ordered. That, in itself, is a notice to everyone that the defendant did not get a fair trial on the first trial.... ”

Appellant cites splendid authority in arguing his contention that the denial of defendant’s motion for a continuance constituted prejudicial error, but he does not cite any applicable authority to support him. In the cited case of Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the ruling of the trial court under consideration was its denial of appellant’s motion for a change in venue. As shown by the opinion in the case at 366 U.S. 725, 81 S.Ct. 1644:

“... A reading of the 46 exhibits which petitioner attached to his motion reveals that a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his trial.... These stories revealed the details of his background, including a reference to crimes committed when a juvenile, his convictions for arson almost 20 years previously, for burglary and by a court-martial on AWOL charges during the war.... Finally, they announced his confession to the six murders and the fact of his indictment for four of them.... ”

It is true, as argued by appellant, that publicity as to an approaching or existing trial can be so extraordinarily unfavorable to a party as to be presumptively prejudicial to such party. Thus, in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), according to appellant, a presumption of prejudice to defendant’s right to a fair trial was found to exist by reason of the broadcast three times in the rural community from which the jury was drawn of a film of defendant’s confession. Also, as argued by appellant, it was held in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), that “jurors apprised of a criminal’s prior record by news sources are presumed to be prejudiced.”

We see no basis for any presumption of prejudice to defendant arising out of the newspaper article quoted above. It is a correct recital of past and existing facts with reference to the case. Even so, it could have been prejudicial to defendant if the facts stated tended to show defendant’s guilt or otherwise adversely reflected upon him. In our opinion, it did not do so. We think the trial court viewed the matter realistically and correctly. On both trials there was large number of witnesses, largely the same witnesses on each trial. Irrespective of what was stated in the news item, a postponement of the second trial for even an extraordinary length of time would not have prevented any of the jury selected to try the case from knowing that there had been a previous trial of the case. The fact that there had been a previous trial of itself furnished a proper basis for cross-examination of most of the witnesses as to some of their testimony on the previous trial. Certainly the jurors were intelligent enough to know that he had not been acquitted on the previous trial, that, if he had been, he could not be tried again. In the light of these facts, facts that the jury would have known irrespective of the news item, it cannot be said that the news item was any more unfavorable to defendant than it was favorable to him.

In commendable zeal by appellant’s counsel on behalf of his client, he states in his brief:

“... Indeed, had a prosecutor or a witness in the instant trial uttered, in the presence of the jury, that the defendant had previously been found guilty of this same charge, a mistrial would have been mandated. See ... [a number of cases appearing in the following]; Anno. Sect. 13, 31 A.L.R.2d 417, 428 (1953).”

Our consideration of the cited section of 31 A.L.R.2d 417 and the corresponding section in A.L.R.2d Later Case Service (1981) convinces us that neither the cited annotation, nor any of its contents nor any of the cases cited are referable to the jury’s being informed as to the previous conviction of the defendant on a former trial in the same case. Some of the cited cases do involve a former conviction of the defendant that could be classified as the “same” charge in the broad signification of the word “same” but not in the sense that it would encompass a previous conviction in the same case in which a defendant is in the process of being tried a second time. The cases upon which appellant relies for support, in respect to his contention now under consideration, pertain to previous ■ convictions in cases other than cases in which defendants had been previously tried.

We do not disagree with the action of the trial court in overruling defendant’s motion for a continuance, but even if we did, the trial court should not be reversed. A motion for a continuance is addressed to the sound discretion of the trial court, and the exercise thereof will not be disturbed in the absence of a clear abuse by the trial court of such discretion. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Graham v. State, 403 So.2d 275 (Ala.Crim.App.1980) writ quashed, Ex parte Graham, 403 So.2d 286 (Ala.1981); Wilson v. State, 395 So.2d 1116 (Ala.Cr.App.1981).

II

The second issue presented by appellant pertains to the action of the trial court in overruling defendant’s motion captioned a “MOTION TO SUPPRESS ILLEGALLY SEIZED EVIDENCE” and defendant’s motion captioned a “MOTION IN LIMINE,” in which defendant moved the court to direct the prosecution to refrain from asking questions or commenting upon, inter alia, “Any firearm or firearm ammunition seized or located in defendant’s place of residence subsequent to the death alleged in the indictment” and “Any tangible item seized from the defendant’s person during his incarceration .... ”

There is considerable difference between the way the search and seizure of items in the house where the recently deceased body was readily observed by the police upon their being called to the residence were questioned on the first trial and the way defendant questioned such search and seizure on the second trial. However, in large part, the question presented now, as well as the question presented then, was resolved adversely to appellant by the following language of this court in Billingsley v. State, supra, at 402 So.2d 1059, 1060:

“Relying on Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), the defendant contends that a shotgun found in his bedroom closet was illegally seized. Mincey held that there was no ‘murder scene exception’ to the warrant requirement of the Fourth Amendment. ‘[The warrantless search of Mincey’s apartment was not constitutionally permissible simply because a homicide had recently occurred there.’ However, the Supreme Court did not condemn all investigating and warrantless searches .at the scene of the crime.
“ ‘We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.... And the police may. seize any evidence that is in plain view during the course of their legitimate activities.’
Mincey, 98 S.Ct. at 2413-14.”

The fact that a recently fired shotgun was found in the defendant’s bedroom closet was doubtless the prime damaging item found in defendant’s residence. Although the closet was closed and the gun was not in plain view until the officers opened the door, it is clear that the situation the officers observed presented a puzzling question as to whether a “killer” other than or in addition to the defendant, or perhaps a victim other than or in addition to Mr. Abrams, was in the residence at the time. Probably the best place for any other killer was in the bedroom closet of the defendant. In our opinion, the opening of the closet door under the emergency circumstances without any search warrant was not in violation of defendant’s Fourth Amendment right to security “against unreasonable searches and seizures.” Furthermore, we are convinced that the undisputed evidence shows that the officers were invited to the residence of defendant by Mrs. Black at the direction of the defendant, which Mrs. Black accomplished indirectly by calling the telephone operator and telling her to report to the police that a man had been killed. She was vague in her testimony as to what she told the operator, but it is clear that in a few moments thereafter police were at the residence of defendant and the residence of Mrs. Black and that they proceeded promptly to enter the residence of defendant without any objection or remonstrance whatever, and the first noteworthy object that came to their view was the then recently deceased body of Mr. Abrams.

Defendant’s motion to suppress evidence and his motion in limine were heard jointly, apparently with the consent of all concerned. There was lengthy testimony consisting almost exclusively of that of law enforcement officers testifying on call of the defendant, interspersed by objections or comments of the attorneys and the court, which was concluded as follows:

“MR. WOODS: [Attorney for defendant]: That’s all we have, Judge.
“THE COURT: Do you want to argue this motion?
“MR. LOVE: [Attorney for defendant]: No, we submit it to the U.S. Supreme Court.
“THE COURT: Well, I’m going to overrule the U.S. Supreme Court on the basis of the Court of Appeals of Alabama. They say you can do it, so I’m going to overrule your motion.
“MR. LOVE: To which we have an exception to.
“THE COURT: Very well.
“MR. WOODS: Yes, sir, we except to Your Honor’s ruling.”

We disapprove of the language of the trial court, “I’m going to overrule the U.S. Supreme Court on the basis of the Court of Appeals of Alabama. They say you can do it, so I’m going to overrule your motion.” The reference is doubtless to that part of the opinion of this court in Billingsley v. State, supra, at 402 So.2d 1059, 1060, wherein this court distinguished the facts in the instant case from the facts constituting the prolonged search in Mincey, supra, and further stated, “Additionally, the record shows that, when the shotgun was offered into evidence by the State, there was no objection.” We look to the transcript for the first reference on the trial involved in the instant appeal to the shotgun and find it during the direct examination of Officer Haye as follows:

“Q. Officer Haye, did you see any items that were found in the defendant, Mr. Billingsley’s house that evening?
“MR. WOODS: May it please the Court, we object on the grounds earlier stated to the Court.
“MR. LOVE: That question is so general.
“THE COURT: I will sustain the objection to the particular question or to the form of the question.
“MR. WASDEN: I’ll rephrase the question, Your Honor.
“Q. While you were in the house, were any shotgun shells found?
“A. Yes, sir, it was.
“Q. And was a shotgun found in the house that evening, Officer Haye?
“A. Yes, sir.
“Q. And did you happen to see Captain Bryant examine that shotgun?
“MR. LOVE: May it please the Court, we object.
“MR. WOODS: We object to his leading the witness and asking for a conclusion.
“THE COURT: Well, that might be leading to a degree, but I don’t think it’s particularly — I don’t think it’s harmful. I’ll overrule that objection.
“A. Yes, sir, it was in the closet in the bedroom.
“Q. Well, did you see Captain Bryant examine the shotgun?
“A. Yes, sir.
“Q. In what way did he examine it?
“A. He picked it up out of the closet and smelled of it and then laid it on the bed.”

It is to be readily observed from the matter last quoted that evidence as to the shotgun, that it was found in the closet of the bedroom and that an officer smelled it and laid it on the bed, was introduced in evidence without any objection by defendant. It then became a proper subject of further inquiry by both the State and the defendant. Whatever right of the defendant to security against unreasonable searches and seizures was violated by the search of the house and the seizure of the shotgun, there was no error prejudicial to defendant in any of the rulings of the trial court on the subject.

III

Appellant’s third contention for a reversal pertains to the action of the court in sustaining the State’s objection to proffered evidence by defendant of the hospital records of Mrs. Wilma Black, a witness for the State and a neighbor of defendant whom he had told that he had shot someone and whom he asked to call the police. The records indicate that Mrs. Black was in the hospital during a period commencing November 23, 1978 “with a long history of abuse of Darvon,” and defendant proposed to show by expert testimony that “Darvon affects a person’s ability to perceive things by sight and hearing, and, further, it affects their ability to relate.”

The witness had admitted that she was in the hospital about ninety days before the homicide involved in the instant case, but she stated that she was in the hospital for phlebitis and her doctor had prescribed Darvon for her to take every six hours and she was complying with such prescription at the time of the homicide. The scope of the evidence proffered by defendant broadened while the presentation of the matter to the court in the absence of the jury continued. It developed that the witness was again admitted to the same hospital on November 16, 1979, and discharged on December 6, 1979, that she was again admitted on January 18,1980, and discharged on February 1, 1980, and that the record of the last admission listed a history of “chronic abuse— drug abuse — and, further, ... Mrs. Black at that time suffered symptoms of withdrawal from Darvon and Meprobamate.” After extended argument by counsel as to the admissibility of the hospital records for the three mentioned hospitalization periods, the trial court said:

“I’m going to rule them all out on the ground of remoteness. That’s a part of the reason, and the other part of why I’m moving them out is that they do not actually show or do not tend to show, in my consideration, in any material way that at the time of the incident, which is the subject of this prosecution, the lady was taking more than one Darvon tablet every 6 hours, which she testified to herself, and, therefore, there would not be impeachment.
“Now, let me say this: Of course, I don’t have anything to do with whether something is true or false. That’s up to the jury eventually and finally. The lady is a little eccentric in her statements. I mean, she doesn’t talk just like a lawyer does. If one lawyer says she does not testify in the language of the Supreme Court Reporter, but my impression of her is that she is doing the best she can, and unless something substantial could be brought forward to disprove that or shake that initial idea, she should at least be entitled to the same respect that all of us are entitled to, that is, just as a fellow human being.
“MR. WOODS: We except to Your Hon- or’s ruling.

In Gamble, McElroy’s Alabama Evidence, § 141.01(3), it is stated:

“A witness’ addiction to a narcotic drug is not admissible to impeach him unless one of the following are found: (1) that he is under the influence of the drug at the time of his testifying, (2) that he was under the influence of the drug at the time of the event of which he testifies or (3) that his mind is generally impaired by the habitual use of narcotics [sic] drugs.”

The case relied upon for the statement just quoted is Standard Oil Co. v. Carter, 210 Ala. 572, 98 So. 575 (1923), in which the following is also stated:

“... The question to Dr. Greer, as to whether or not the plaintiff had not for many years prior to the injury and subsequent thereto been an ‘opium habitue,’ did not show that he was under the influence of the drug at the time of the injury or at the time of testifying. Nor did it show that the habit was so excessive as to have impaired the memory of the plaintiff. True, it was essential to prove the habitual use of opium as a predicate to establish the extent of the same, but in order to put the trial court in error, the question should have been followed up by a statement or assurance that defendant expected to show that the habit was so excessive as to impair the memory of the plaintiff.”

In appellant’s brief, he urges that the offer made by him met the requirement set forth in the last sentence of the statement quoted above from Standard Oil Co. v. Carter, but we do not think so. The following is the offer upon which he relies:

“Judge, we would make an offer that these records would establish, as set out in MeElroy, that the witness was under the influence of these drugs at the time of the event of which she testifies, and, further, we would offer these showing her habitual use of these drugs that her mind is generally impaired by the habitual use of narcotics drugs. We would further offer to prove that she was under the influence of one or the other of these drugs at the time of her testimony in this case.”

We think rather that by defendant’s proffered evidence of the contents of the hospital records of the witness, he was offering a matter from which it could be argued that the witness “was under the influence of a drug at the time of the injury or at the time of testifying or that it was so excessive as to impair the memory of the [witness],” but there was no offer by defendant’s counsel to show, or assurance that he would show by other competent evidence, that, according to the hospital records, when considered with the other evidence in the case, the witness sought to be impeached was “under the influence of the drug at the time of the injury or at the time of testifying ... or that the habit was so excessive as to impair the memory of the [witness].”

In our opinion, the trial court properly appraised the proffered evidence and the proposed impeachment of the witness Mrs. Black and its ruling adverse to defendant on the subject did not constitute prejudicial error.

CONCLUSION

We have not endeavored to convince ourselves as to the factual question as to whether the appellant killed Mr. Abrams. We know of no reasonable contention to be made, however, under the undisputed evidence, other than that the defendant or some other man in defendant’s residence at the time killed Mr. Abrams. According to some of the evidence, which has not been definitely disputed, another man was in the house a short time prior to the death of Mr. Abrams, a man who has not testified in the case and whose whereabouts at the time of the homicide is not clearly shown by the evidence. We find no claim by either of the parties, or anyone else, that he was the killer.

In the final analysis, we find that there is no basis for reasonable belief that any person or group of persons, without actual knowledge of the identity of the killer, is in a better position to determine the guilt or innocence of the defendant than was the jury that rendered the verdict in the case.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.