author: HOLMES, Judge.

text:
    Maria Eulalia JONES v. Eddie Lloyd JONES.
    Civ. 4371.
    Court of Civil Appeals of Alabama.
    Sept. 19, 1984.

      R. John Westberry, Pensacola, Fla., for appellant.
    William T. Faile, Selma, for appellee.
   HOLMES, Judge.

This is a child custody jurisdiction case arising under the Parental Kidnapping Prevention Act of 1980, 28 U.S.C.A. § 1738A (West Supp.1984).

This appeal involves two minor children, who have been the subject of custody proceedings in Alabama, Florida, and Mississippi. The Circuit Court of Clarke County modified all prior decrees and ordered the following: “The temporary care, custody and control of said minor children shall remain with the Department of Pensions and Security of Clarke County, Alabama, in Shelter Care pending further hearings in this cause.”

The mother appeals, contending that the Alabama court erred in refusing to extend full faith and credit to a Florida custody order.

The Circuit Court of Escambia County, Florida, had previously ordered the following:

“(N) The minor, John Paul, having resided with the Respondent/father for approximately fourteen years, is able to remain in this environment ....
“2. [Hjowever, Health and Rehabilitative Services is to continue supervision of the minor pending further order.
“3. The minor child, Evelyn, is temporarily remanded to the custody of the Department of Health and Rehabilitative Services for placement into foster care.”
“7. Neither party shall be permitted to remove either child from Escambia County, Florida, without the prior consent of this Court.”

We affirm the decision of the Circuit Court of Clarke County, Alabama, not to extend full faith and credit to the Florida custody order.

The facts pertinent to the issue of jurisdiction are the following: The father moved to Alabama in 1979. The father obtained custody of the son in 1980 as part of a Mississippi divorce decree. The daughter came to live with the father in Alabama in May 1983. The father was awarded custody of the daughter on June 2, 1983, by the Circuit Court of Choctaw County, Alabama. The father took both minor children to Meridian, Mississippi, on July 11, 1983, to stay with the father’s close friend because of threatening phone calls the father received that apparently endangered the children’s lives. The father assisted the close friend’s move to Escambia County, Florida, in early August 1983. The children were to stay with the close friend in Florida until their school year began in Alabama and in order for the father to complete the construction of a house for the children and himself.

The mother got a temporary custody order for both children from the Circuit Court of Escambia County, Florida, on November 8, 1983. The mother then took both children to Mississippi. The son was returned to the father immediately pursuant to a court order. Testimony indicates that the daughter was also ordered returned to the father; however, she was not returned to the father.

Then, as previously stated, the Circuit Court of Escambia County, Florida, on January 16,1984, ordered the temporary custody of the daughter to be placed in the Florida Department of Health and Rehabilitative Services and ordered the custody of the son to remain in the father. The father was apparently arrested for removing the daughter from Florida during an authorized visitation at the daughter’s foster home.

As indicated, the Circuit Court of Clarke County, Alabama, pursuant to the father’s petition, ordered the temporary custody of both children in the Department of Pensions and Security of Clarke County, Alabama. The date of this last custody order was March 30, 1984.

We note that the Parental Kidnapping Prevention Act of 1980, 28 U.S.C.A. § 1738A (West Supp.1984) [hereinafter cited as PKPA], governs the issue of jurisdiction in interstate child custody matters. We stated in Flannery v. Stephenson, 416 So.2d 1034 (Ala.Civ.App.1982), the following: “Because the federal statute, the PKPA, preempts the state law, the UCCJA, in areas where the statutes conflict, questions of jurisdiction arising in interstate child custody matters must now be decided by reference to the PKPA.” Flannery, 416 So.2d at 1038.

This federal statute provides in pertinent part:

“(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:”

PKPA, 28 U.S.C.A. § 1738A(c)(l), (2) (West Supp.1984) (emphasis added).

The mother relies upon four of five conditions listed in subsection (c)(2) of the statute to establish the jurisdiction of the Circuit Court of Escambia County, Florida.

The first condition that the mother relies upon to establish the Florida court’s jurisdiction is the “significant connection” provision. This provision provides in pertinent part:

“[I]t is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State .... ”

PKPA, 28 U.S.C.A. § 1738A(c)(2)(B) (West Supp.1984) (emphasis added).

The mother asserts that both minor children had a “significant connection” with the State of Florida for the following four reasons: (1) the children had lived in Florida three months at the time the Flori-da custody proceeding began; (2) both children were enrolled in school in Florida; (3) the daughter was examined by physicians and a psychologist in Florida; and (4) the father lived in Florida.

We do not find that either child had a “significant connection” with the State of Florida. This is true because the father testified that he was not a resident of Flori-da but a resident of Alabama, and there is no evidence that the mother was a resident of Florida. Furthermore, the testimony indicates that the children were only temporarily staying in Florida and there only for three months.

The language of the statute, in this instance, requires more than the physical presence of the children and their parents, or the children and at least one parent. The facts do not meet this requirement.

The second condition that the mother relies upon to establish the Florida court’s jurisdiction is the “emergency” provision. This provision provides in pertinent part: “(C) the child is physically present in such State and ... (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;” PKPA, 28 U.S. C.A. § 1738A(c)(2)(C) (West Supp.1984) (emphasis added).

The mother asserts that both children were physically present in Florida at the beginning of the custody proceedings there because it was necessary to protect the children from mistreatment and abuse. We do not find this to be an emergency situation because there is no evidence to indicate physical or emotional mistreatment or abuse of the children by the father. Regarding the apparent sexual abuse of the daughter, there is no evidence to indicate whether this occurred while the daughter was in the custody of the father or the mother.

The third and fourth conditions that the mother relies upon to establish the Florida court’s jurisdiction are the provisions based on “continuing jurisdiction.” These provisions provide in pertinent part:

“(D)(i) it appears that no other State would have jurisdiction under subpara-graph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
“(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.”

PKPA, 28 U.S.C.A. § 1738A (e)(2)(D), (E) (West Supp.1984).

The mother asserts that the Florida custody order maintained “continuing jurisdiction” of the minor children and that Florida would continue to be the residence of the children if the father had not taken them to Alabama. Furthermore, the mother asserts that Alabama does not have “continuing jurisdiction” of the children because the children and the father moved to Florida.

We note that there are certain requirements for “continuing jurisdiction” to exist. We have stated the following: “Continuing jurisdiction exists when the initial custody order was rendered in compliance with the PKPA and the child or any contestant continues to reside in the state.” Flannery v. Stephenson, 416 So.2d 1034, 1038 (Ala.Civ.App.1982).

First, we cannot say that Florida’s initial custody order complied with the PKPA unless one of the five conditions listed in 28 U.S.C.A. § 1738A(c)(2) (West Supp.1984) is met. The mother did not assert that the first condition, the “home state” condition, 28 U.S.C.A. § 1738A(c)(2)(A) (West Supp. 1984), was met by the State of Florida. Actually, as discussed later in this opinion, we find that the children’s “home state” is Alabama. Furthermore, as previously discussed, we have determined that the remaining four conditions are not met.

Second, we cannot say that the children or either parent is a resident of Florida. There is no evidence to indicate that any of these people reside in Florida.

Because the custody provisions of the Florida decree did not comply with the PKPA, Alabama was not required to extend full faith and credit to the Florida custody order.

We find that Alabama has “continuing jurisdiction” of the minor children because the Alabama custody order was rendered in compliance with the PKPA and the children and the father continue to reside here.

First, the Alabama court’s custody provision was rendered in compliance with the PKPA per the “home state” provision of the statute. This provision provides in pertinent part:

“(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;”

PKPA, 28 U.S.C.A. § 1788A(c)(2)(A) (West Supp.1984) (emphasis added).

“Home state” is defined as follows: “(4) ‘home State’ means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months_” PKPA, 28 U.S. C.A. § 1738A(b)(4) (West Supp.1984).

Alabama is the “home state” of the son because the evidence indicates that the son has lived in Alabama since 1979. Alabama is the “home state” of the daughter because the evidence indicates that the daughter lived in Alabama from May 1983 until the Florida court ordered temporary custody in the mother on November 8, 1983.

We note that the period of time that the children stayed in Mississippi and Florida with the father’s close friend is counted in determining that the “six consecutive months” requirement is met. This is true because the federal statute provides the following: “Periods of temporary absence of any of such persons are counted as part of the six-month or other period;” PKPA, 28 U.S.C.A. § 1738A(b)(4) (West Supp. 1984). Clearly, in view of the facts as set out herein above, the children’s absence from Alabama was of a temporary nature.

In view of the above, the trial court’s action is correct and is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Judy GRIFFIN v. Darryl C. HARDIN.
    Civ. 4252.
    Court of Civil Appeals of Alabama.
    Sept. 28, 1984.

      F. Wayne Keith of Keith, Keith & Keith, Birmingham, for appellant.
    Sam M. Phelps and Alyee Manley Spruell of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from a directed verdict in favor of the appellee.

Darryl Hardin was an attorney for Jamie Finley, who sued Judy Griffin and obtained a default judgment in the sum of $589.24 plus costs on August 22, 1979. The judgment was not paid and Hardin wrote Mrs. Griffin a letter on February 14, 1980, advising the total amount due on the judgment, $633.69, and stating that if not paid he would execute on her property. Mrs. Griffin, again, did not respond, and her one-half interest in her house was advertised for sale and was sold by the sheriff on May 12, 1980, for the sum of $100. On May 7, 1980, Honorable Joe G. Burns, Jr., on behalf of Mrs. Griffin, contacted Hardin and Hardin made an offer to settle the judgment for $500 plus $102.63 costs. On May 8, 1980, Mrs. Griffin went to the office of Darryl Hardin and talked to Lowell Hardin, a layman, father of Darryl Hardin, and an employee of Darryl Hardin. Lowell Hardin wrote the following:

“5-8-80. Mrs. Griffin wants to pay by weekly payment in the amount of $25.00 per week beginning on May 16, 1980.
“Payments to be made at law office of Darryl C. Hardin located at 2861 7th St. Tuscaloosa, Ala.
“/s/ Judy Hardin
but I am not guilty of this phone 556-7619.”

The sheriff conveyed Mrs. Griffin’s one-half interest in her house to Roberts and Pake, the purchasers at the sale for execution.

Beginning May 17, 1980, Mrs. Griffin made payments until $600 was paid, ending on January 30, 1981. In October 1981, her husband received a tax notice which included the names of Pake and Roberts. Mrs. Griffin eventually repurchased her one-half interest from Pake and Roberts, apparently in the sum of $300. She then filed an action against Hardin for breach of contract, fraud and negligence.

Upon trial of the action the trial judge directed a verdict in favor of Hardin, hence this appeal.

Mrs. Griffin first alleges that the trial court erred in granting Hardin’s motion for directed verdict.

The standard for review for a directed verdict is well established. A directed verdict is proper only where there is a complete absence of proof on an issue material to the claim or where there are no disputed questions of fact on which reasonable people could differ. Deal v. Johnson, 362 So.2d 214 (Ala.1978). In considering a motion for directed verdict, the court must apply Rule 50(e), A.R.Civ.P., under which “a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark ... or a scintilla in support of the theory of the complaint....” Dixie Electric Company v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975). The trial court must view the entire evidence, and all reasonable inferences which a jury might draw therefrom, in the light most favorable to the non-moving party. Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

In this case the offer to settle the judgment for $500, plus certain costs, was not accepted by Mrs. Griffin. Instead, she made a counteroffer to make weekly payments. The offer to settle made by Hardin contained the admonition to let him know before “Monday noon” the day and hour of the sale. When she talked to Lowell Hardin, he advised her he knew nothing about the judgment, that he was not a lawyer and that he could only deliver her message to Darryl Hardin. The record is silent as to when Griffin’s offer was delivered to Darryl Hardin. Griffin stated that she had no agreement with Darryl Hardin to accept weekly payments.

The essential elements of a contract are missing in this case. Prior to the sale there was no offer and acceptance of the same terms and conditions of either party. Contracts call for the meeting of contracting parties’ minds. Protective Life Insurance Co. v. Linson, 245 Ala. 493, 17 So.2d 761 (1944). Mrs. Griffin was under the legal duty to pay the judgment, interest and costs. It is an established principle that the doing or undertaking to do that which one is already under a legal obligation to do by his contract is no consideration for a secondary, subsequent or new agreement. Little v. Redditt, 264 Ala. 371, 88 So.2d 354 (1956). It is stated in 17 C.J.S. Contracts § 111 (1963): “Where a party is under a duty created or imposed by law to do what he does or promises to do, his act or promise is clearly of no value and is not sufficient consideration for a promise given in return.” Hill v. Hill, 217 Ala. 235, 115 So. 258 (1928). A promise to do what one is already under a legal obligation to do is not a sufficient consideration for another contract. South and N.A.R. Co. v. Highland Avenue and Belt Railroad Co., 119 Ala. 105, 24 So. 114 (1898).

As to the claim of fraud, there is no evidence to support any false representations allegedly made to Griffin by either of the Hardins. The gravamen of legal fraud is the assertion or representation of that to be true which is not true. Rudman v. Hooks, 252 Ala. 280, 40 So.2d 866 (1949).

Griffin’s third claim was one of negligence and alleges that although Darryl Hardin was under no duty to her he volunteered to act and failed to use due care therein, resulting in her interest in her home being sold. As stated in her testimony, Griffin had no agreement with Hardin to accept periodic payments prior to the sale. There is no evidence that prior to the sale Hardin accepted Griffin’s counteroffer or agreed to stop the sale for execution on the judgment. As a general rule, the law imposes no duty on one person actively to assist in the preservation of the person or property of another from injury, even though the means by which harm can be averted are in his possession. Louisville & N.R. Co. v. Scruggs and Echols, 161 Ala. 97, 49 So. 399 (1909).

Griffin further cites as error a ruling on a motion in limine by the trial court. Joe G. Burns, Jr., was called as a witness by Griffin, and Hardin made a motion in li-mine to prevent the eliciting of evidence that months after the sale, in a conversation between Mr. Burns and Mr. Hardin, Mr. Burns suggested that Mr. Hardin should pay the $300 to get the property back from Roberts and Pake, and Mr. Hardin’s reply was that he would do that if he had it or when he got it by the way of a compromise or avoiding a dispute. The court ruled that it was evidence of an offer of compromise and was inadmissible.

It is the general rule that evidence of an offer to compromise or settle a disputed claim will not be received as an admission of the party making the offer. An offer or agreement to pay, or even payment, in the way of compromise, is not an admission of indebtedness nor of any fact from which indebtedness may be inferred. Hughes v. Daniel, 187 Ala. 41, 65 So. 518 (1914). The rule does not affect the use of an express admission of fact of responsibility, even though contained in an offer of settlement or compromise. Langham Small Motors v. Thomas, 390 So.2d 1055 (Ala.Civ.App.1980). There is no express admission of liability in the statement of Darryl Hardin, and it could not properly be considered as a legal admission of fact.

In reviewing the evidence in a light most favorable to the non-moving party, we conclude that the trial court ruled properly in granting appellee’s motion for directed verdict.

The foregoing opinion was prepared by retired Circuit Judge ROBERT M. PARKER, serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975, and this opinion is hereby adopted as that of this court.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Lavon HORTON, alias v. STATE.
    7 Div. 84.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    On Return to Remand Nov. 1, 1983.
    Rehearing Denied Nov. 1, 1983 and Jan. 10, 1984.
    Myron K. Allenstein, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The only issue presented by the parties on appeal is whether the trial court was in error in overruling the demurrer of defendant (this appellant) to the indictment, which charged in pertinent part that he:

“... Did, with intent to defraud, possess or utter a forged instrument as follows: a check, having knowledge that said instrument was forged, and with intent to defraud, in violation of Title 13A-9-6 of the 1975 Code of Alabama ...”
Defendant’s demurrer was as follows: “I. The indictment is so vague and so general that Defendant does not understand the charge against him and therefore he cannot adequately prepare his defense.
“II. The indictment fails to describe the check, to state the location or time of the crime, to state to whom it was uttered, to state who was intended to be defrauded, and to state the amount intended to be defrauded.
“HI. Defendant is alleged to have committed a fraud. Under a fraud allegation, the facts which constitute the alleged fraud must be set out with reasonable particularity. Young vs. State, 348 So.2d 544 (Ala.Cr.App.1977).”

The defendant had pleaded not guilty to the indictment, but in doing so he had through his attorney reserved the right to file a demurrer to the indictment, which he did soon after the plea of not guilty. The case came on for a hearing of the demurrer, at which defendants’ counsel in the presence of the defendant, argued in favor of the demurrer and State’s attorney argued to the contrary. The trial court overruled the demurrer, and immediately after the ruling, was announced by the court, the following occurred:

“MR. ALLENSTEIN [Defendant’s Attorney]: Your Honor, what we’d like to do at this time with your permission is that we would offer to the Court that we would plead guilty on the charge on the condition that Your Honor allow us to preserve our right to appeal from your decision on the demurrer, and as I understand the law of Alabama, if you specifically give us that right to appeal from that decision we have the right to raise that issue on appeal. If you don’t specifically give us that right we don’t have the right. So, we would offer to plead guilty on the condition that you allow us the right to appeal your decision on the demurrer.
“THE COURT: The Court will grant your request for permission to appeal the decision on the demurrer as to the indictments. Specifically reserve that right to you to appeal on the ruling.
“MR. ALLENSTEIN: Thank you, Judge.
“(Whereupon this concluded the colloquy on the Motion for Demurrer, after which a plea of guilty of the Defendant was taken by the Court).”

On the same day that the above occurred (November 16, 1982), the record shows that the State gave notice to defendant and his counsel that it would proceed against him under the Habitual Felony Offenders Act by reason of two previous felony convictions of defendant, that the trial court adjudged defendant guilty in accordance with his plea of guilty to the indictment in the instant case and proceeded to fix his sentence as follows:

“And on this the 16th day of November, 1982, the said Defendant being now in open Court and being asked by the Court if he has anything to say why the judgment of the Court and the sentence of law should not be pronounced upon him, defendant says nothing. It is therefore ORDERED AND ADJUDGED BY THE COURT and it is the JUDGMENT AND SENTENCE OF THE COURT that the Defendant be imprisoned in the State Penitentiary for a term of fifteen (15) years concurrent with Cases No. 80-863, 80-864, and 80-865 beginning November 16, 1982.”

There is no semblance in the record proper or in the transcript of the proceedings of any determination by the trial court that defendant’s plea of guilty in the instant case was voluntarily, intelligently and understandingly entered, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and related cases. However, no point is made by appellant as to the validity of judgment of conviction and sentence.

The sole issue on appeal is self-eontradic-tory. As much as we would like to accede to the desire of both parties to decide whether the indictment was demurrable on the grounds asserted, particularly on the ground that “The indictment is so vague and so general that Defendant does not understand the charge against him and therefore he can not adequately prepare his defense,” we would be thwarted from deciding the question in favor of appellant if the plea of guilty was voluntarily, intelligently and understandingly entered.

The case should be remanded to the trial court with directions that it conduct a hearing on defendant’s guilty plea to determine whether it was voluntarily, intelligently and understanding^ entered, in accordance with Boykin v. Alabama, supra, and other applicable authorities on the subject.

Upon compliance with these directions, the trial court shall make a return to the order of remandment, with copies thereof to attorneys for the respective parties. Either party aggrieved thereby will have fifteen days within which to file a brief and the opposing party will have ten days thereafter within which to file a reply brief.

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

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

LEIGH M. CLARK, Retired Circuit Judge.

Since the opinion and the order remanding this case to the trial court with directions rendered on July 5, 1983, the following have been filed with the Clerk of this Court:

On July 19, 1983, appellee filed an application for rehearing and a supporting brief and argument.
On July 20, 1983, a “SUPPLEMENTAL TRANSCRIPT” was filed pursuant to a motion of appellant and an order of the trial court, both dated July 13, 1983, which supplemental transcript, certified by the court reporter, includes the proceeding at which the defendant’s plea of guilty was considered and determined by the trial court to have been voluntarily, intelligently and understanding^ entered, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and related cases. On August 3, 1983, appellant filed a “SUPPLEMENTAL BRIEF.”

The supplemental transcript discloses that, during the colloquy among the trial judge, the defendant and the attorneys for the parties, the following, inter alia, occurred:

“THE COURT: You understand that you stand accused in this indictment of this case of the offense of Possession of a Forged Instrument in the Second Degree?
“THE DEFENDANT: Yes, sir.
“THE COURT: Has a copy of the indictment been handed to you or read to you? “THE DEFENDANT: Yes, sir.
“THE COURT: Do you understand the indictment against you?
“THE DEFENDANT: Yes, sir.
“THE COURT: On what he has — tell me what you did in this case.
“THE DEFENDANT: I received a check from Dorinda Morris. She give me a check for an amount of money she owed me, which wasn’t the total amount of the check and I went into the Food Giant Grocery Store in East Gadsden and I went to the main — not to the cashier but to the main office there, a little glass box, and spoke with, I think, a Mr. Hoover Cotton. I then presented him with the check and asked him could he cash it and he looked at the check and he said— he said, ‘Yes, this appears right.’ Of course, this is — He okayed the check. I then took the check to the checkout place and then I gave it to him and then he wrote Food Giant and cashed it and gave me the money.
“MR. ALLENSTEIN: I believe — did you give the groceries back to Dorinda and Mike Kimble that you bought?
“THE DEFENDANT: Yeah.
“MR. ALLENSTEIN: They gave you about forty dollars for doing this?
“THE DEFENDANT: Yeah.
“MR. ALLENSTEIN: And they got the rest of the money?
“THE DEFENDANT: Right.
“MR. ALLENSTEIN: All right. Now, the fact that Dorinda Morris and Mike Kimble were involved in this check did you have reason to believe this was not a good check?
“THE DEFENDANT: Yeah. I had reason to believe it wasn’t good.”

The above-quoted material is sufficient, we think, to demonstrate the incorrectness and invalidity of ground I of defendant’s demurrer to the indictment, which was quoted in our opinion on original submission and which is repeated as follows:

“The indictment is so vague and so general that Defendant does not understand the charge against him and therefore he cannot adequately prepare his defense.”

As stated in our opinion on original submission, it was “particularly” ground I of the demurrer that “thwarted” us “from deciding the question,” in the absence of information by us as to what transpired when the guilty plea was accepted, whether the trial court should have overruled defendant’s demurrer to the indictment. Apart from ground I, neither ground II nor ground III constitutes a valid ground of demurrer to the indictment, in our opinion.

In the conclusion of appellant’s “SUPPLEMENTAL BRIEF,” it is stated:

“The State might argue that Defendant knew what he was charged with as evidenced by the specifics of the guilty plea. Immaterial. Even if the defendant knows what he is charged with, he is entitled to a proper indictment, legally sufficient in every manner.
“ ‘... It is a settled rule that a bill of particulars cannot save an invalid indictment ... ’
82 S.Ct. 1038 at 1050.
“Defendant has never questioned the guilty plea. He challenges the indictment which as a matter of law is legally insufficient.”

The incomplete citation to the case of the Supreme Court is Russell v. United States, 369 U.S. 749 at page 769, 82 S.Ct. 1038 at 1050, and 8 L.Ed.2d 240, at 254. The sentence immediately before the quoted sentence therein is:

“It is argued that any deficiency in the indictments in these cases could have been cured by bills of particulars.”

The quoted material is inapposite. The basis for our finding that the indictment was not subject to ground I of defendant’s demurrer is not any notion that the indictment was deficient but that the deficiency could have been cured by a bill of particulars or other means of discovery. We are now convinced, as we were inclined to believe on original submission, that the “sole issue on appeal is self-contradictory,” and we now hold that in the light of the supplemental transcript, which we did not have on original submission, that ground I of defendant’s demurrer contained an incorrect allegation which made it invalid and that the other two grounds of demurrer were not valid grounds.

We accept the supplemental record furnished on order of the trial court as if it were a return to the order of remandment. Our determination that the indictment was not subject to the demurrer interposed by defendant renders moot appellee’s application for a rehearing.

The judgment of the trial court should now be affirmed.

REHEARING OVERRULED; AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Lavon HORTON. (In re: Lavon Horton v. State of Alabama).
    83-444.
    Supreme Court of Alabama.
    Sept. 7, 1984.

      Myron K. Allenstein, Gadsden, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ri-vard D. Melson, Asst. Atty. Gen., for respondent.
   ALMON, Justice.

We agree with the Court of Criminal Appeals, 456 So.2d 1117, that the judgment of the trial court is due to be affirmed. We reach this result on different grounds, however, because we disagree with the Court of Criminal Appeals’ conclusion that the indictment was not subject to the demurrer interposed by the defendant.

The indictment was subject to demurrer because it did not specify anything about the forged check which Horton was charged with possessing: the indictment did not set out the amount, the payee, the drawer of the check, nor the time or place when Horton possessed it. The indictment did charge Horton with the crime of criminal possession of a forged instrument in the second degree expressly in the terms of Code 1975, § 13A-9-6. If an indictment charges a crime substantially in the terms of the statute creating the offense and sets out all the material elements thereof, it will generally support a conviction even though it might be subject to a proper demurrer. Duin v. State, 288 Ala. 329, 260 So.2d 602 (1972); Allen v. State, 30 Ala.App. 147, 2 So.2d 320, reversed and remanded, 241 Ala. 137, 2 So.2d 321 (1941). In other words, the indictment was not void but merely voidable.

Objections to an indictment which is not void may be waived, usually by failure to interpose a timely demurrer. Howard v. State, 420 So.2d 828 (Ala.Crim.App.1982); Cusimano v. State, 33 Ala.App. 62, 31 So.2d 139 (1947); Allen v. State, supra; McCleskey v. State, 28 Ala.App. 97, 179 So. 394 (1938); Hudgins v. State, 22 Ala.App. 403, 116 So. 306 (1928).

Although Horton filed a timely demurrer, he waived all non-jurisdictional objections to the indictment by pleading guilty to the offense charged. A guilty plea, if entered voluntarily and with understanding of the consequences, waives all non-jurisdictional defects. Lane v. State, 412 So.2d 292 (Ala.1982); Dingler v. State, 408 So.2d 530 (Ala.1981).

Although the indictment as framed was not sufficient to protect Horton from the possible double jeopardy of being charged again for possessing the same unspecified check, Horton himself prevented this possibility when, during his Boykin colloquy, he described the circumstances of the events charged. The salient facts of the offense for which Horton has been convicted are now a matter of record and he is protected from subsequent charges for this offense.

Although we would affirm the judgment for the reasons above instead of those set out by the Court of Criminal Appeals, we conclude that the writ of certiorari was improvidently granted.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur.

      . These proceedings took place before the effective date of Temp.Rule 16, A.R.Crim.P., which abolishes demurrers in criminal proceedings.


author: TYSON, Judge.

text:
    Earl A. BRYARS, Jr., alias v. STATE.
    3 Div. 304.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 1983.
    Rehearing Denied Oct. 4, 1983.

      Barry Hess and Virginia A. Johnston, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Ed Carnes and P. David Bjurberg, Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Earl A. Bryars, Jr., was indicted and tried for the shotgun slayings of Lemmie Maynard Coleman and Dave Hudson, two murders which constituted a capital felony in violation of § 13A-5-31(a)(10), Code of Alabama 1975, because they occurred during a single event. The jury found the appellant guilty as charged and, pursuant to § 13A-5-31(a), Code of Alabama 1975, fixed his punishment at death. The trial court conducted a separate sentencing hearing, in which it determined that the aggravating circumstances outweighed the mitigating circumstances. As a result, the trial court sentenced the appellant to death by electrocution. See Appendix A, hereto attached and made a part hereof.

Appellant’s subsequent motion for a new trial was duly denied.

On appeal, Ala., 407 So.2d 566, we originally reversed and remanded this cause for a new trial on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). On certiorari the United States Supreme Court vacated our decision and remanded this cause to us for further consideration in light of Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Alabama v. Bryars, 457 U.S. 1114, 102 S.Ct. 2921, 73 L.Ed.2d 1326 (1982). For the reasons set forth below we now affirm appellant’s conviction for the capital felony charged in the indictment, and his death sentence.

On November 21, 1979, between 5:30 and 7:00 p.m. Maynard Coleman and Dave Hudson were killed at Coleman’s farm in Es-cambia County, Alabama. Their bodies were discovered shortly after 7:00 p.m. by Mrs. Coleman and Maynard’s sister and her husband, Dr. and Mrs. Charles Nolan. The Nolans had arrived that afternoon for a visit with the Colemans. When Maynard did not return from the farm as expected, they drove to the farm to look for him. With the aid of a flashlight they found his body where he had fallen after being shot in the back with a slug from a 12-gauge shotgun. Maynard had fallen flat on his stomach and his cigar was still in place between his fingers. Upon further investigation after the authorities arrived, the body of Dave Hudson was found where he had been shotgunned to death approximately 28 feet from Maynard. Unlike Maynard, Hudson had been shot with “buckshot.” Part of one round of buckshot had hit Hudson in the arm and another round had practically blown his face away. 'Both men were dead at the scene.

The physical evidence indicated that Maynard. and Hudson had been killed by a single gunman. The killer fired one 12-gauge slug which struck Maynard in the back, apparently killing him instantly, ejected a second slug which misfired, and then fired three rounds of “buckshot” at Hudson, one of which left a full pattern on the wall of the nearby barn. The four empty 12-gauge shells and the misfired 12-gauge slug were recovered at the scene. Subsequent evaluations of these shells by firearms experts revealed that they were fired from a 12-gauge shotgun that appellant’s wife had purchased for him just four days before the murders.

Ronnie Coleman, Maynard Coleman’s 14-year-old cousin, was the key witness for the prosecution. He testified that while hunting in the woods near Maynard’s barn between 5:15 and 5:30 p.m. on the day of the murders, he saw the appellant’s truck parked in the edge of the woods where it had been “backed in.” Later, while he was talking to Erskin Packard outside his trailer, he heard four shotgun blasts from the vicinity of Maynard’s barn. Two or three minutes later the appellant, heading in a direction away from Maynard’s barn, drove by in his truck. The appellant did not stop to talk, as he usually did, and did not even wave as he drove past Ronnie and Erskin Packard.

Erskin Packard confirmed the fact that there were four shotgun blasts and that several minutes later he saw the appellant’s truck go by. However, he did not see who was driving.

Sheriff G.S. Byrne testified that he went to interview the appellant, as a possible suspect, the morning after the murders. The appellant was very cooperative, and in fact, at the sheriff’s request, gave him his 12-gauge shotgun for comparison with the 12-gauge shells found at the scene of the crime. The appellant retrieved the shotgun from his truck, unloaded it, and handed it to Sheriff Byrne. This shotgun was later conclusively proven to be the murder weapon.

Mrs. Coleman, Maynard’s wife, testified that her husband began carrying a shotgun and a pistol in his truck after an October 12, 1979, incident with the appellant. The appellant and Maynard had had an argument at Thadius Johnson’s home concerning some land in which they shared undivided interests. Thadius Johnson testified that his wife asked the appellant to leave so that there would not be a fight. Junior Coleman, Maynard’s “double” first cousin testified that, because of this incident, Maynard had given him some sort of an agreement concerning the land and had asked Junior to deliver it to the appellant because Maynard did not want to confront the appellant. Aubrey Weaver, Jr., stated that Maynard told him the appellant had told others he (the appellant) was going to “take care of” Maynard. Finally, William V. Williams testified that on the day he was killed, Maynard Coleman told him that he was meeting the appellant later that day to resolve their differences concerning their joint property.

Appellant’s defense was alibi. He and his wife both testified that he was elsewhere when the murders were committed. According to them, the appellant and Jasper Brown, appellant’s hired hand, spent the majority of the day burning brush on appellant’s property. They finished working at 4:30 p.m., returned to appellant’s home and ate supper. The appellant took Brown home at 4:45 p.m. and returned by 5:15 p.m. Appellant’s wife then drove the appellant and their children, in her car, to Atmore, where she did some shopping. The appellant remained in the automobile while his wife did the shopping. They returned home at 6:30 p.m. and the appellant did not leave the house again that night.

Jasper Brown, testifying for the appellant, stated on cross-examination that they left appellant’s house at about 5:15 p.m., and that the appellant drove and bought a newspaper at a nearby store before he dropped off Brown, near Brown’s home, at 5:30 p.m. The appellant left Brown and headed in the direction of Maynard’s barn, where the murders were committed.

The appellant confirmed the detour for the paper, but stated that Brown was incorrect about the time. He admitted driving toward Maynard’s barn but stated that he was going to visit Junior Coleman to borrow a “bush-hog.” After finding no one at home at Junior’s trailer, he returned home and accompanied his wife to Atmore.

Neither the appellant nor his wife could recall anyone they saw on the shopping expedition that might have seen them. They presented no other evidence to corroborate their trip.

The appellant denied that he had had any arguments with Maynard Coleman over their joint property and denied that he had had a meeting scheduled with Maynard for that afternoon. He surmised that Ronnie Coleman had lied about seeing his truck parked in the woods near Maynard’s barn at about 5:30 p.m. When confronted with his testimony at a bond hearing to the effect that he had taken Brown home at 5:30 p.m., he stated that he was confused at the bond hearing, and that the truth was that he took Brown home between 4:30 and 4:45 p.m.

The appellant, specifically, denied shooting Maynard Coleman and Dave Hudson.

The conflicting evidence was put to the jury which resolved the issues against the appellant and returned a verdict of “guilty as charged,” fixing punishment, as required by statute, at death by electrocution.

At the separate sentencing hearing evidence of aggravating and mitigating circumstances was reviewed by the trial court. Several of appellant’s employers and friends testified as to his good work habits and good character. A presentence report revealed that the appellant had two misdemeanor convictions for disorderly conduct. As a result of evidence presented at the sentencing hearing the trial court found as the only mitigating circumstance that the 52-year-old appellant did not have a “significant history of prior criminal activity.” The only aggravating circum.stance he considered was that the crime was especially heinous, atrocious, and cruel. In the trial court’s opinion the mitigating circumstance was insufficient to outweigh the aggravating circumstance. The trial court, therefore, sentenced the appellant to death by electrocution.

i

The appellant was indicted, tried and convicted in accordance with the provisions of §§ 13A-5-30 through 38, Code of Alabama 1975, the Alabama Death Penalty Act then in effect. A clause in § 13A-5-31(a), Code of Alabama 1975, which precluded trial courts from instructing capital offense juries on possible lesser included offenses, was, subsequently, ruled unconstitutional by the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). This clause was, eventually, severed from § 13A-5-31(a) and the remainder of Alabama’s Death Penalty Act left intact. Beck v. State, 396 So.2d 645 (Ala.1980). A later United States Supreme Court decision explained that a case tried when the preclusion clause was in effect did not, necessarily, have to be re-tried. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). “The jury must be permitted to consider a verdict of guilt of a non-capital offense” only when “the evidence would have supported such a verdict.” (Additional emphasis supplied.) Hopper v. Evans, supra.

The appellant contends that he should be granted a new trial either because the evidence presented at trial supports a non-capital felony murder conviction or because he should be given the opportunity to present additional evidence of possible lesser included offenses, an opportunity he did not have when the preclusion clause was part of the Death Penalty Act. We disagree.

Appellant’s arguments have, essentially, been answered in Cook v. State, 431 So.2d 1322 (Ala.1983). In Cook Justice Adams spelled out the Hopper v. Evans two prong test of the effect of the preclusion clause on a trial as follows:

“(1) Was there any evidence presented at trial upon which a conviction of a lesser included offense could have been based?
“(2) If not, has the defendant suggested any plausible claim which he might conceivably have made, had there been no preclusion clause, that is not contradicted by his own testimony at trial?”

He further concluded that negative answers to each of these questions would require an affirmance of the trial conviction.

As in Cook, the appellant in the case before us presented only an alibi defense. All of the state’s evidence, though circumstantial, supported the “double-murder” capital felony charged in the indictment. So the answer to the first prong, as in Cook, is that the evidence presented would not have supported a conviction for a lesser included offense.

But the appellant argues that without the preclusion clause he might have been able to present evidence that the homicides were not murders because they were not intentional or premeditated or because they were the result of “heat of passion,” surprise, inadvertance, accident, or even self-defense. This argument is foreclosed in Cook, however, where the Alabama Supreme Court stated that “when a defendant takes the witness stand and testifies that, because he was in a distant location when the crime took place, he could not possibly have committed it [as the appellant did in the instant case], he has directly contradicted any evidence which he might later produce to show that he was guilty of a lesser included offense.”

Consequently, the answer to both prongs of the Hopper v. Evans test is no, and the appellant is not entitled to a new trial. The appellant was simply not prejudiced by the preclusion clause.

II

The appellant argues that he was unconstitutionally sentenced because he did not have a bifurcated trial before the jury. This argument was foreclosed in Ritter v. State, 429 So.2d 928 (Ala.1983), in which the Alabama Supreme Court held that there was nothing constitutionally infirm in the pre-Beck sentencing procedure, which did not provide for bifurcation. The court reasoned that “[u]nder Alabama’s statute the trial court and not the jury is the sentencing authority.”

“[T]he jury’s determination of a sentence is merely advisory, leaving sentence to the trial court for determination in a separate hearing.” Ritter v. State, supra. The court found in Ritter that the separate sentencing hearing, in which the trial court considered and weighed the aggravating and mitigating circumstances, “afforded [Ritter] a constitutional sentencing procedure which was in nowise tainted by arbitrariness or capriciousness.”

Thus, the absence of a bifurcated trial before the jury is not grounds for reversal of appellant’s pre-Beck trial.

Ill

The state presented, as proof of appellant’s motive for killing Maynard Coleman, evidence that the two men were involved in a continuing dispute over some land in which they held joint interests. The details of the dispute were not clarified at trial. However, the state was permitted to introduce, through the testimony of several witnesses, evidence of general hostility and ill will between the two men due to this dispute, and evidence of a specific conflict which occurred at a mutual friend’s home, several weeks before Maynard was killed. Some of the state’s evidence on this issue was hearsay, statements made by the victim, Maynard Coleman, as testified to by several of the state’s witnesses. The appellant contends that all of the hearsay evidence was inadmissible and that cumulatively, it was unduly prejudicial to him and was, therefore, reversible error.

The first evidence of prior difficulties between the appellant and Maynard Coleman came from Sheriff Byrne. On cross-examination the appellant brought out information concerning a specific incident which occurred at the home of Thadius Johnson, appellant’s neighbor. Sheriff Byrne stated that he had first heard about this incident at the scene of the crime shortly after it had been committed, and that he discussed it with the appellant on the morning after the crime. The appellant read from his diary that the incident had occurred three weeks before, and he accompanied the Sheriff to Johnson’s home to ask Johnson about the details of the incident. According to Sheriff Byrne, Johnson stated that there was not much to it. From what Johnson observed, the appellant discussed something with Maynard Coleman for a few minutes and knocked Maynard’s hat to the back of his head and then left.

Thadius Johnson was, subsequently, called as a witness for the state. He confirmed the incident which occurred at his home on a Sunday afternoon in October, 1979. He was working on Maynard Coleman’s truck. Maynard had been there three or four hours when the appellant arrived. Johnson was working on the other sde of the truck from Maynard and saw the appellant go over and engage Maynard in conversation. Johnson did not pay much attention to, and did not hear, what they were discussing. After a few minutes he heard somebody “stomping the ground” and saw that the appellant had knocked Maynard’s hat to the back of his head. Johnson then witnessed his wife tell the appellant to go home because she did not want any “squabbling” around there. The appellant left after telling Maynard “I’ll see you later.” Johnson testified that he was not particularly alarmed by the incident because the appellant was intoxicated at the time, and because he did not witness any real hostility between the two men.

Shelby Jean Coleman, Maynard’s wife, testified that Maynard started carrying a shotgun in his truck after the incident at Thadius Johnson’s home. She stated that Maynard told her that he had had an argument with the appellant. He did not tell her what the argument was about because she already knew that it involved friction between the two men over the land that they held jointly. She explained that she had first hand knowledge of the original agreement between Maynard and the appellant because she witnessed the negotiations. She was aware of subsequent disagreements over the final payment for the land and the ultimate division of the land between the two men. She identified a new written agreement that Maynard had drafted before his death. She did not actually see the agreement until after Maynard’s death, when it was found among his personal effects. The details of the new agreement were not discussed but the agreement, itself, was admitted into evidence.

On cross-examination Mrs. Coleman admitted that she did not witness the incident at Johnson’s home.

Junior Coleman testified that three weeks before Maynard was killed, just after the incident at Johnson’s home, Maynard asked him to deliver the new written agreement to the appellant because the appellant “wanted to get rowdy” everytime they met. Junior never had an opportunity to deliver the agreement, so he gave it back to Maynard.

The trial court did not err in admitting into evidence the foregoing proof of appellant’s motive for killing Maynard Coleman. Motive was a proper inquiry in this case. See, Bowman v. State, 35 Ala.App. 420, 47 So.2d 657 (1950); Balentine v. State, 339 So.2d 1063 (Ala.Cr.App.), cert, denied, 339 So.2d 1070 (Ala.1976); Dolvin v. State, 391 So.2d 666 (Ala.Cr.App.1979), affirmed, 391 So.2d 677 (1980). The incident at Johnson’s home was evidence of a prior difficulty or hostility between the appellant and the victim, Maynard Coleman, and was relevant evidence of a motive for the crime. White v. State, 380 So.2d 348 (Ala.Cr.App.1980), and cases cited therein.

The appellant, through his cross-examination of Sheriff Byrne, first inquired into the details of this prior incident, thereby, opening the door to the state for the introduction of evidence of the entire transaction. See, Gibson v. State, 91 Ala. 64, 9 So. 171 (1891); Stockard v. State, 391 So.2d 1060 (Ala.1980), reversing, 391 So.2d 1049 (Ala.Cr.App.1979). The Sheriff’s testimony was later verified by Johnson, an eyewitness to the incident, and by the appellant, himself. There was, clearly, no dispute that the appellant and Maynard had a discussion that day at Johnson’s home.

The appellant maintains that it was a friendly discussion and that he flipped Maynard’s hat in fun and jokingly told him he would see him later. He admitted at trial, however, that Mrs. Johnson did ask him to go home because she did not want a fight around her house.

Johnson, though he testified that he did not think there was a serious problem, admitted that a confrontation had taken place, and he related to the jury his wife’s statement to the appellant, language which clearly indicated that she felt there had been a heated argument and there might be a forthcoming fight. Johnson’s testimony as to what his wife told the appellant was hearsay, but it was admissible. The statement was made “in the presence and hearing” of the appellant and was more or less confirmed by the appellant at trial. See, Garrett v. State, 76 Ala. 18, 21 (1884); Beachum v. State, 346 So.2d 531 (Ala.Cr.App.1977).

The damaging part of Mrs. Coleman’s testimony was her observation that Maynard began carrying a shotgun in his truck after the incident. Her observation was not hearsay. It was, however, a strong indication of the growing hostility between Maynard and the appellant, and was, therefore, admissible. See, Padgett v. State, 49 Ala.App. 130, 269 So.2d 147, cert, denied, 289 Ala. 749, 269 So.2d 154 (1972); Hill v. State, 51 Ala.App. 515, 286 So.2d 924 (1973); McClendon v. State, 54 Ala.App. 327, 307 So.2d 723 (1975); White v. State, supra.

Junior Coleman’s testimony that Maynard gave him the agreement to give to the appellant was also a relevant indication of the hostility that existed between the two men at the time of the incident at Johnson’s home. (Cases cited above.)

Mrs. Coleman’s testimony that Maynard told her he had had an argument with the appellant at Johnson’s home, and Junior Coleman’s explanation of why Maynard had given him the written agreement to deliver to the appellant, though hearsay, were not prejudicial to the appellant because they were merely cumulative references to the incident at Johnson’s home. Love v. State, 377 So.2d 8 (Ala.Cr.App. 1979); Wyatt v. State, 419 So.2d 277 (Ala.Cr.App.1982).

William V. Williams testified that, on the afternoon he was killed, Maynard told him that he was going to meet the appellant to try to reach an agreement about the land that he (Maynard) and the appellant held together. This hearsay testimony was admissible as part of the res gestae of the meeting Maynard had planned for that afternoon, the meeting which resulted in his death. See, Harris v. State, 96 Ala. 24, 11 So. 255 (1892); Thornton v. State, 253 Ala. 444, 45 So.2d 298 (1950); Hayes v. State, 395 So.2d 127 (Ala.Cr.App.1980), cert, denied, 395 So.2d 150 (Ala.1981).

In addition to the above, Aubrey Weaver testified that Maynard told him about his disagreement with the appellant and that the appellant had “put the word out” that he, the appellant, was going to “take care of him.” Weaver’s testimony was inadmissible hearsay. Its admission into evidence was error. It did not relate to or reference the prior incident at Johnson’s home, but rather related to the jury the victim’s (Maynard’s) statement about a prior threat made by the appellant. Even though it was relevant to show motive, such evidence should have been excluded because it was a hearsay statement by the murder victim which was not made in the presence of the appellant and was not admissible as part of the res gestae or as a dying declaration. Holland v. State, 162 Ala. 5, 50 So. 215 (1909); Kitchens v. State, 251 Ala. 344, 37 So.2d 428 (1948); Hill v. State, 339 So.2d 1077 (Ala.Cr.App.), cert, denied, 339 So.2d 1082 (Ala.1976); Harris v. State, 395 So.2d 1063 (Ala.Cr.App.1980), cert, denied, 395 So.2d 1069 (Ala.1981).

However, a possible motive for the crime had already been presented by other legal evidence, as noted herein. Thus, such evidence was cumulative on the issue of motive. Furthermore, all of the circumstances pointed to the appellant as the killer. Maynard Coleman and Dave Hudson were killed at Maynard’s barn with a 12-gauge shotgun. One of appellant’s own witnesses saw the appellant driving his truck in the direction of Maynard’s barn just minutes before the two men were killed. The appellant’s truck was seen later where it had been concealed in the edge of the woods near Maynard’s barn. Shortly, thereafter, two witnesses heard four shotgun blasts from the direction of Maynard’s barn and almost immediately afterwards saw the appellant leaving the vicinity in his truck. The next morning appellant’s newly purchased 12-gauge shotgun, which was eventually identified as the murder weapon, was recovered from his truck, the same truck he drove from the vicinity of the crime just after it was committed. Under these circumstances we find that the erroneous admission of Weaver’s testimony was harmless. A.R.A.P. 45; White v. State, supra; See also, Whisenhant v. State, [Ms. 82-333, July 8, 1983] (Ala.1983), on remand, [Ms. 1 Div. 333, August 30, 1983] (Ala.Cr.App.1983), and cases cited therein.

IV

The appellant makes several arguments with reference the murder weapon, appellant’s 12-gauge shotgun, and the shotgun shells fired from it during the crime. These arguments are without merit.

The shotgun was not improperly seized. The appellant voluntarily turned it over to Sheriff Byrne, during the Sheriffs initial interview with him at appellant’s home the morning after the crime. The appellant was a possible suspect, but had not been arrested at that time. Under the circumstances, Miranda warnings were not required.

There was no break in the chain of custody of the shotgun shells.

There was nothing improper in requiring appellant's firearms expert to examine the shotgun and the shotgun shells in Alabama. Appellant’s expert did examine these items at the Mobile, Alabama, Department of Forensic Sciences Laboratory. There was no evidence that the facilities afforded appellant’s expert were in any way inadequate.

V

Appellant’s arguments concerning the introduction of gruesome photographs, appellant’s cross-examination of state’s witnesses, and the state’s compliance with the trial court’s order to produce certain items of evidence, have been carefully reviewed but are without merit.

VI

The appellant further contends that certain of the trial court’s instructions to the jury were inadequate or erroneous.

A

Although the trial court instructed the jurors that if they failed to agree upon a verdict of guilt or innocence, a mistrial would be declared, he refused to instruct them as to the consequences of a mistrial, as requested by the appellant. The appellant argues that this refusal was error, especially in light of the fact that lesser included offense instructions were precluded. We disagree.

The appellant requested the additional instructions that after a mistrial he could be tried again for the aggravated offense or for a lesser offense. The appellant suggests that this additional instruction would have given the jury a “third option” in addition to either “guilty and death” or “not guilty and set free,” and would have somewhat compensated for the absence of lesser included offense instructions. Appellant’s theory is that if the jury had realized that appellant was guilty of a non-capital offense and deserved some punishment other than death, it could have exercised this “third option” to avoid both the death penalty and an acquittal.

We believe that appellant’s theory is faulty for the very reasons discussed in Beck v. Alabama, 447 U.S. 625, 644, 100 S.Ct. 2382, 2393, 65 L.Ed.2d 392 (1980). In Beck v. Alabama the United States Supreme Court commented on the theory that a mistrial was a “third option” as follows:

“We are not persuaded by the State’s argument that the mistrial ‘option’ is an adequate substitute for proper instructions on lesser included offenses. It is extremely doubtful that juries will understand the full implications of a mistrial or will have any confidence that their choice of the mistrial option will ultimately lead to the right result. Thus, they could have no assurance that a second trial would end in the conviction of the defendant on a lesser included offense. Moreover, invoking the mistrial option in a case in which the jury agrees that the defendant is guilty of some offense, though not the offense charged, would require the jurors to violate their oaths to acquit in a proper case — contrary to the State’s assertions that juries should not be expected to make such lawless choices. Finally, the fact that lesser included offense instructions have traditionally been given in non-capital cases despite the availability of the mistrial ‘option’ indicates that such instructions provide a necessary additional measure of protection for the defendant [when justified by the evidence].” (Footnote omitted).

The trial court, in this instance, purposely avoided the additional mistrial instructions so that the jurors would not be distracted from their duty to determine appellant’s guilt or innocence of the capital offense charged in the indictment. He adequately instructed them on the elements of the offense charged and on the “reasonable doubt” standard that governed their ultimate determination. Because his defense was alibi (and the state had sufficiently proven the elements of the offense charged), the appellant was either guilty of the capital offense, or guilty of nothing. The trial court properly focused the jury’s attention on this crucial determination.

B

The appellant also complains that the trial court erred in explaining to the jury that if it returned a verdict of guilty and fixed punishment at death, the trial court would ultimately determine, after a proper sentencing hearing covering aggravating and mitigating circumstances, whether the appellant received the death penalty or, instead, a sentence of life imprisonment without parole.

This instruction by the trial court in no way harmed the appellant, because the trial court exhaustively instructed the jury on its paramount duty to weigh the evidence and determine appellant’s guilt or innocence, and thereby, focused the jury’s attention where it belonged. Compare, Crowe v. State, 435 So.2d 1371 (Ala.Cr.App.1983); and McGinnis v. State, 443 So.2d 1289 (Ala.Cr.App.1983), and cases cited therein.

VII

As the only aggravating circumstance, the trial court found as follows:

“The Capital Felony in this cause was especially heinous, atrocious or cruel. “The basis for said finding in this cause is that the evidence in this cause for the State clearly established that the Defendant threatened to get the deceased, Lem-mie Coleman [Maynard], over a business deal, and proceeded to arm himself on November 17, 1979, with a deadly weapon and on November 21, 1979, traveled to the scene of this crime; crept up on the said Lemmie Coleman and executed this victim while the said victim was working in a barn on the victim’s own farm by shooting the said Lemmie Coleman from ambush in the back. The evidence in this cause further indicates that at the time the Defendant assassinated Lemmie Coleman an elderly colored farm hand named Dave Hudson was on the scene of this crime and when this old gentleman attempted to flee for his life the Defendant deliberately shot him to the ground, and proceeded to blow his brains out even though there was absolutely no evidence of any dispute on the trial of this cause between the said Dave Hudson and the Defendant. The evidence presented on the trial of this cause further indicates that three shots were fired at this innocent elderly farm hand by the Defendant and that this old gentleman was first wounded in the arm before the Defendant executed the coup de grace to this victim by firing a shell from a 12-gauge shotgun into the head of this innocent and helpless bystander.
“It is the opinion of this Court that such shocking and depraved action on the part of this Defendant meets in every respect the definition of heinous, atrocious or cruel as used in the Death Penalty Statute defining aggravating circumstances by the standard encompassing acts which are totally and senselessly bereft of any regard for human life. It is further the opinion of this Court that such a callous act on the part of the Defendant in this cause meets in every respect the definition of “atrocious”, as meaning outrageously wicked and vile as used in State Statutes setting forth aggravating circumstances authorizing the Death Penalty.”

This determination by the trial court is supported by the evidence, which revealed circumstances comparable to those in Bush v. State, 431 So.2d 555 (Ala.Cr.App.1982), affirmed, 431 So.2d 563 (Ala.1983), wherein we stated as follows:

“Execution-type slayings evincing a cold, calculated design to kill, fall into the category of heinous, atrocious or cruel. [Citations omitted]. We recognize that an- instantaneous death caused by gunfire is not ordinarily a heinous killing. [Citation omitted]. However, when a defendant deliberately shoots a victim in the head in a calculated fashion to avoid later identification, after the victim has already been rendered helpless by gunshots to the chest, such ‘extremely wicked or shockingly evil’ actions may be characterized as especially heinous, atrocious, or cruel.” [Citation omitted.]

In addition to .affirming the trial court’s finding that this capital offense was especially heinous, atrocious, and cruel, we also note the existence of the additional aggravating circumstance (apparently not considered by the trial court), that “two or more human beings [were] intentionally killed by the defendant by one or a series of acts” (the aggravation specified in the definition of the capital offense, itself.) See, Kyzer v. State, 399 So.2d 330, 338 (Ala.1981) (reversed on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 supra); See also, Dobard v. State, 435 So.2d 1338 (Ala.Cr.App.1982), affirmed, 435 So.2d 1351 (Ala.1983); Colley v. State, 436 So.2d 11 (Ala.Cr.App.1983).

VIII

Appellant’s argument concerning the admissibility of his pre-sentence report during the sentencing hearing is without merit. Contrary to his argument on appeal, he did challenge, during the sentencing hearing, certain hearsay statements made by the father of one of the victims and had the opportunity to elaborate on his objection at that time. The trial court later ordered that the entire report be included as part of the record on appeal, apparently, considering and overruling appellant’s objections to the alleged hearsay. We are at a disadvantage on appeal, because, in spite of the trial court’s order, the report was not made a part of the record and is not now before us. Nevertheless, it is obvious that any hearsay statements contained in the report were not prejudicial to the appellant. As a result of the sentencing hearing and the pre-sentence report, the trial court found, as a mitigating circumstance, that the appellant had no significant history of prior criminal activity. The only aggravating circumstance found was that the crime was especially heinous, atrocious, and cruel. As demonstrated in its findings of fact, the trial court did not base this aggravating circumstance determination on anything contained in the pre-sentence report, but rather based it upon the evidence produced during the guilt-phase hearing. Consequently, the pre-sentence report, if anything, was beneficial to the appellant in establishing the only mitigating circumstance.

IX

The appellant and his counsel diligently brought to our attention numerous arguments for the reversal of this cause. In addition, we have searched the record for any other reversible errors. We have found no errors which adversely affected the substantial rights of the appellant.

The trial court’s findings with reference the aggravating and mitigating circumstances were supported by the evidence.

After independently weighing the aggravating and mitigating circumstances, ruling out the possibility of passion, prejudice and other arbitrary factors, and comparing the nature and circumstances of this crime and the character and record of the appellant with similar cases, we have concluded that the sentence of death is indeed appropriate for this appellant.

Appellant’s conviction and sentence of death are, hereby, affirmed.

AFFIRMED.

All the Judges concur.

APPENDIX A

STATE OF ALABAMA, PLAINTIFF, VS. EARL A. BRYARS, JR., DEFENDANT.

IN THE CIRCUIT COURT OF ESCAM-BIA COUNTY, ALABAMA

CRIMINAL DIVISION CASE NO. CC-80-29

SENTENCE

This cause coming on to be heard on the 17th day of June, 1980, to hear evidence and argument from the State as to aggravating circumstances which it feels are the basis for upholding the Jury’s Verdict of Death, and also evidence and argument from the Defendant as to mitigating circumstances which the Defendant feels should serve as a basis to reject the Jury’s Verdict of Punishment by Death, the Court, after careful consideration of the testimony taken on the 17th day of June, 1980, and during the trial in chief of this cause from Monday, May 12, 1980, through Friday, May 16, 1980, finds the following aggravating circumstance to exist:

ONE

The Capital Felony in this cause was especially heinous, atrocious or cruel.

The basis for said finding in this cause is that the evidence in this cause for the State clearly established that the Defendant threatened to get the deceased, Lemmie Coleman, over a business deal, and proceeded to arm himself on November 17, 1979, with a deadly weapon and on November 21, 1979, traveled to the scene of this crime; crept up on the said Lemmie Coleman and executed this victim while the said victim was working in a barn on the victim’s own farm by shooting the said Lem-mie Coleman from ambush in the back. The evidence in this cause further indicates that at the time the Defendant assassinated Lemmie Coleman an elderly colored farm hand named Dave Hudson was on the scene of this crime and when this old gentleman attempted to flee for his life the Defendant deliberately shot him to the ground, and proceeded to blow his brains out even though there was absolutely no evidence of any dispute on the trial of this cause between the said Dave Hudson and the Defendant. The evidence presented on the trial of this cause further indicates that three shots were fired at this innocent elderly farm hand by the Defendant and that this old gentleman was first wounded in the arm before the Defendant executed the coup de grace to this victim by firing a shell from a 12-gauge shotgun into the head of this innocent and helpless bystander.

It is the opinion of this Court that such shocking and depraved action on the part of this Defendant meets in every respect the definition of heinous, atrocious or cruel as used in the Death Penalty Statute defining aggravating circumstances by the standard encompassing acts which are totally and senselessly bereft of any regard for human life. It is further the opinion of this Court that such a callous act on the part of the Defendant in this cause meets in every respect the definition of “atrocious”, as meaning outrageously wicked and vile as used in State Statutes setting forth aggravating circumstances authorizing the Death Penalty.

Counsel for the Defendant has called the attention of this Court to the very recent case of Robert Franklin Godfrey vs. State of Georgia decided by the Supreme Court of the United States on May 19, 1980, as negating the imposition of the Death Penalty under the circumstances established in this cause. After study of the facts in the case cited by Defense Counsel and after comparing the Georgia Statute to the Alabama Statute, and taking into consideration the interpretation placed on the Georgia Statute by the Supreme Court of Georgia wherein this State Supreme Court held that under the Georgia Statute as worded the evidence must demonstrate torture, depravity of mind or an aggravated battery to the victim before death, this Court finds this contention unpersuasive and without merit. In short, a careful reading of the Godfrey case will disclose that in the majority opinion of the Supreme Court of the United States, the Georgia Supreme Court found itself hoisted with its own petard. In addition, in the case cited by Defense Counsel, the homicides described were the result of sudden passion growing out of a domestic dispute between husband and wife. In the case now before this Court, the evidence of the State clearly establishes a cold-blooded, carefully planned execution of two citizens of this State without provocation, sudden passion, just cause or good excuse. A careful reading of the Georgia Statute will further demonstrate a completely different wording than the verbiage utilized in the Alabama Capital Statute.

The United States Supreme Court has decreed that: “A capital sentencing scheme must provide a meaningful basis for distinguishing the few cases in which the Death Penalty is imposed from the many cases in which it is not.” Section 13-11-2 of the 1975 Code of Alabama provides aggravated offenses for which the Death Penalty may be imposed. Sub-Section (10) of this Statute provides for the Death Penalty as de- • creed by the Jury in this cause in any case involving Murder in the First Degree wherein two or more human beings are intentionally killed by a Defendant by one or a series of acts, if such a Capital Felony was especially heinous, atrocious or cruel. In the opinion of this Court, the acts of the Defendant established by the evidence in this cause clearly established aggravating circumstances calling for the Death Penalty under the express wording of the Alabama Statute. The evidence in this cause portrayed to this Court a carefully planned, cold-blooded execution of two citizens of this State in such a manner as to be outrageously or wantonly wicked, criminal, vile or cruel as denounced by the Capital Death Statute of this State.

The Court finds the only mitigating circumstance which exists in this case is that the Defendant has no significant history of prior criminal activity. This Court finds this mitigating circumstance insufficient to outweigh the aggravating circumstance listed herein and, therefore, no basis to reject the Jury’s Verdict of Death and impose a Life Sentence in Prison without Parole.

It is ORDERED that the independent pre-sentence investigation of the Defendant by the Probation Officer of Escambia County, Alabama, at the request of this Court, be made a part of the record in this cause over the objection of Counsel for the Defendant, said objection being made at the Mitigation and Aggravation Hearing held in this cause on June 17, 1980.

It is, therefore, ORDERED, ADJUDGED AND DECREED by this Court, after hearing all aggravating circumstances in this cause and after consideration of all mitigating circumstances presented by the Defendant, that you, Earl A. Bryars, Jr., are guilty of Capital Murder as charged in the indictment and that the Warden of the William C. Holman Unit of the Prison System at Atmore, Alabama, or in the case of his death, disability or absence, his Deputy, shall at any time before the hour of sunrise on October 3, 1980, inside the walls of said William C. Holman Unit at Atmore, Alabama, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution, cause to pass through your body, Earl A. Bryars, Jr., a current of electricity of such sufficiency to cause your death, and the application and continuance of such current through your body until you, Earl A. Bryars, Jr., be dead. And may God have mercy on your soul.

Execution of this sentence is herewith stayed pending appeal of this cause to the Appellate Courts of the State of Alabama, in accordance with Section 12-22-150 of the Code of Alabama, 1975, and Section 13-11-5 of the Code of Alabama, 1975.

ORDERED at Brewton, Alabama, on this the 19th day of June, 1980.

/s/ Douglas Webb

Circuit Judge

      . In Beck the United States Supreme Court found unconstitutional that portion of Alabama’s death penalty statute which precluded consideration of lesser included offenses. On the authority of Beck cases were reversed and remanded for new trials in which lesser included offenses could be considered. Hopper v. Evans further explained that new trials were mandated only where there was evidence of possible lesser included offenses.

      . The preclusion clause outlawed in Beck v. Alabama had already been transferred, verbatim, from § 13-ll-2(a), Code of Alabama 1975 (the applicable code section in Beck v. Alabama) to § 13A-5-31(a), the corresponding provision of Alabama’s New Criminal Code. Our comments herein are addressed to the provisions of the New Criminal Code, which is applicable herein, but they are based upon the prior analysis of corresponding provisions in the former death penalty act (§§ 13-11-1 through 9, Code of Alabama 1975).

      . Beck v. State, 396 So.2d 645 (Ala.1980).

      . We make no attempt to reconcile the conclusion in Ritter with the statement in Beck v. State, 396 So.2d 645, 660, that:
      "We [the Alabama Supreme Court], therefore, construe the requirement in § 13-ll-2(a), that the jury 'shall fix the punishment at death' to be permissive and to mean that the jury cannot fix punishment at death until it takes into account the circumstances of the offense together with the character and propensity of the offender, under sentencing procedures which will minimize the risk of an arbitrary and capricious imposition of the death penalty."

      We are bound by the conclusion in Ritter, which is the latest pronouncement by the Alabama Supreme Court.

      . See Appendix A, hereto attached and made a part hereof.


author: FAULKNER, Justice.

text:
    Ex parte Earl BRYARS, Jr. (Re Earl A. Bryars, Jr., alias v. State of Alabama).
    83-378.
    Supreme Court of Alabama.
    Aug. 24, 1984.
    Rehearing Denied Sept. 21, 1984.
    Robert C. Wilson and James H. Lackey, Mobile, for petitioner.

      Charles A. Graddick, Atty. Gen., and William D. Little and P. David Bjurberg, Asst. Attys. Gen., for respondent.
   FAULKNER, Justice.

This is a “pre-Beck ” death penalty case. Beck v. State, 396 So.2d 645 (Ala.1981). Bryars was convicted and sentenced to death for first degree murder of two persons intentionally killed in one or a series of acts. Section 13A-5-31(a)(10), Code of Alabama 1975.

The victims, Maynard Coleman and Dave Hudson, were killed by shells fired from a 12 gauge shotgun on November 21, 1979, between 5:30 P.M. and 7:00 P.M. Investigators at the scene found four spent shells and one full slug which had apparently misfired.

There were no eye-witnesses to the shooting. Maynard’s fourteen-year-old nephew, Ronnie, was in front of the trailer where he lived, talking to his mother’s brother, Erskin Packard, when he heard four shots from the direction of Maynard’s farm. Ronnie testified that he saw Bryars pass by in his truck two or three minutes after he heard the shots. Packard testified that he saw a blue automobile pass immediately after hearing the shots but did not see Bryars’s truck pass by until about twenty minutes later.

Maynard’s wife, sister, and brother-in-law found the bodies at about 7:00 P.M. that evening. They notified authorities, who secured the scene and gathered the shell casings.

The following morning the sheriff and an investigator went to Bryars’s home to discuss the shootings with him. While the sheriff was talking to Bryars, other police cars arrived carrying sheriff’s deputies and Atmore police officers. The sheriff asked Bryars if he owned a shotgun. Bryars replied that he did. The sheriff then stated: “Well, Earl, can I — could I get it and run some tests on it? You have been accused. Your name was brought up. I’d like to either clear you or if it falls the other way, it would fall the other way.” Bryars replied, “Sure,” and retrieved the gun and handed it to the sheriff.

After giving the shotgun to the sheriff, ,, Bryars invited him into his house, where they discussed some land dealings Bryars had had with Coleman. Later, Bryars and the sheriff rode over to the home of an acquaintance of Bryars’s and Coleman’s, Thadius Johnson, to discuss an incident involving the suspect and the deceased at Johnson’s home.

At the trial, an employee of the Department of Forensic Sciences testified that he fired several rounds through the shotgun in question and that, after comparing the test rounds to the shells found at the scene, he was of the opinion that the shells found at the scene had been fired through Bryars’s gun. On cross-examination the expert testified that the breech faces, firing pin extractor, and ejector marks were all present and comparable. He admitted, however, that at the preliminary hearing he had testified that the weapon did not leave a usable breech mark. He admitted that he did not measure the depth of the firing pin mark or fire any other shotguns of the same make and model to compare with the shells.

Bryars’s defense was alibi. His wife testified that he and Jasper Brown worked at the Bryars home until about 4:30 P.M. She testified that Bryars left to take Brown home about 4:45 P.M. and returned home around 5:15 P.M. She claims to have been with her husband the rest of the evening.

Jasper Brown testified that they worked until 4:30 P.M. to 5:00 P.M. and that he arrived home between 5:00 P.M. and 5:20 P.M. Brown testified that after letting him out, Bryars proceeded in the direction of Maynard’s farm.

Bryars testified that he took Brown home about 5:00 P.M. He claimed that he went in the direction of the deceased’s farm after letting Brown out in order to go to Junior Coleman’s house to ask Junior if he could borrow a mowing machine. He testified that when he pulled up into Junior’s driveway he saw that Junior’s truck was gone, so he turned around and went home.

Bryars raised numerous issues in his pe- ' tition. We will discuss only one of the issues raised, because the resolution of that issue is dispositive of the appeal.

The theory of the state’s case was that Bryars and Maynard were embroiled in an ongoing dispute over some land and that as a result of their disagreement Bryars shot Maynard and an unfortunate bystander, Hudson. Testimony about the dispute centered around an incident at Thadius Johnson’s home. Maynard had taken a truck to Johnson’s for him to repair it. While Johnson was working on the truck Bryars arrived and engaged Maynard in a conversation. Johnson testified that he did not pay much attention to what was being said because he was concentrating on repairing the truck. He testified that he heard a sound like someone “stomping the ground” and the next thing he heard was his wife come out and tell Bryars to “go home” because she wasn’t going to have any squabbling around there. Bryars replied, “Yes, ma’mam. I’ll go home.” He turned to Maynard and stated, “I’ll see you later.” Johnson testified that he was not alarmed by the incident and that he never observed any overt hostility between the two.

Bryars testified that his exchange with Maynard at Johnson’s was not acrimonious. He denied ever having had any arguments or disagreements with Maynard.

In addition to allowing Johnson to give his account of what happened during the incident, the trial court, over the defendant’s objections, allowed other witnesses to testify to statements they had heard the deceased make about the alleged dispute with Bryars. The victim’s widow testified that as a result of the incident at Johnson’s, her husband began carrying a shotgun. Aubry Weaver testified that Maynard had told him about the incident and that Bryars had “put the word out” that he was “going to take care of him.” Junior Coleman testified that shortly after the incident the victim gave him a message to give to Bryars. The victim told Junior that he wanted him to deliver the message because every time he saw Bryars himself, Bryars tried to “get rowdy” with him. William V. Williams was allowed to testify that on the day of the shooting Maynard had told him that later in the day he planned to meet with Bryars to discuss the problem with the land.

The state argues that there is an exception to the hearsay rule with regard to statements made by the deceased which show the accused’s motive. C. Gamble, McElroy’s Alabama Evidence, §§ 45.01(1) and 273.02 (3d ed. 1977).

Statements made by a homicide victim introduced for the purpose of showing the intent of the accused do not fall within an exception to the hearsay rule as such. Hearsay involves an out of court statement offered to prove the truth of the matter stated. In addition to the “classical” exceptions to the rule, e.g., admissions of a party opponent, declarations against interest, dying declarations, etc., utterences offered for some purpose other than to prove the truth of the out of court declaration fall outside the rule. Thus, in a homicide prosecution the accused may introduce evidence of communicated threats made by the victim to support a claim of self defense. Hunter v. State, 295 Ala. 180, 184, 325 So.2d 921, 925 (1975); Powell v. State, 52 Ala. 1 (1875). In a prosecution of D for the killing of X, if D’s witness offered to testify that prior to the killing X stated, “D, I am going to kill you,” the value of the testimony would not depend on the truth of the statement, viz., whether X actually intended to kill D, but the statement would be relevant in a claim of self defense to show the fear engendered in the defendant. Since the value of the statement would not depend on its truth, its admission would not violate the hearsay rule. See E. Cleary, McCormick’s Handbook on the Law of Evidence, (2d ed. 1972), § 249, at page 590. Indeed, McEl-roy’s does not state that threats made by a homicide victim constitute an exception to the rule when offered to show the defendant’s motive, but that such testimony would not violate the rule.

The statements by the homicide victim in this case were not offered to show the state of mind they engendered in the accused. The value of each statement depended, instead, on the truth of the matter asserted. Maynard’s statement to his wife that he began carrying the shotgun because of the incident at Johnson’s was offered to show why Maynard began carrying the shotgun. Likewise, statements reiterating threats made by Bryars toward Maynard fell within the rule. Statements by a homicide victim indicating ill will toward the victim by the accused are inadmissible unless the statements are made in the presence and hearing of the accused or fall within some other exception to the hearsay rule. Harris v. State, 395 So.2d 1063, 1066 (Ala.Crim.App.1980), cert, denied, 395 So.2d 1069 (Ala.1981). Thus, it was error to allow a witness to testify that five minutes before he was shot the victim stated that the accused “was going after a gun and was coming back to kill him.” Holland v. State, 162 Ala. 5, 11, 50 So. 215, 217-218 (1909).

The Court of Criminal Appeals, 455 So.2d 278, did not rely on a “motive” exception in ruling against the petitioner on appeal. It concluded that each witness’s testimony was admissible on some other basis or that the admission of the testimony was harmless error. With regard to Mrs. Coleman’s testimony that her husband began carrying a shotgun as a result of the incident at Johnson’s, the court opined that the damaging aspect of the testimony was her observation of the shotgun, not her conclusion based on Maynard’s statement that he began carrying it because of the dispute with Bryars. It ruled that the testimony by Junior Coleman that Maynard had given him something to give Bryars because every time he encountered Bryars he wanted to get “rowdy” with him was merely cumulative of the incident at Johnson’s. It con-ceeded; that testimony by Aubry Weaver that Maynard had told him that Bryars had “put the word out that he was going to take care of him” was inadmissible, but concluded that it was not reversible error because the testimony was “cumulative on the issue of motive.” The court ruled that the testimony by Williams that Maynard told him that he intended to meet with Bryars that evening was within the res gestae of the offense.

We disagree with the conclusions of the Court of Criminal Appeals. The testimony relating statements made by the deceased was clearly inadmissible and in our opinion its admission into evidence constituted reversible error. The damaging aspect of Mrs. Coleman’s testimony was not her observation of her husband carrying the shotgun. The damaging aspect of her testimony was her conclusion, based on Maynard’s statements, that he began carrying the shotgun as a result of the incident. Similarly, Junior Coleman’s testimony that Maynard told him that every time Bryars saw him he wanted to “get rowdy” with him was not merely cumulative of the evidence regarding the incident at Johnson’s. Johnson’s firsthand account of the incident, without more, would not support a conclusion that Bryars got rowdy with Maynard every time he saw him. Nor was the testimony that Maynard said Bryars was “out to get him” cumulative on the question of motive, except as to other inadmissible evidence. Viewed in its totality, there is simply no way to dismiss the inadmissible evidence of the incident at Johnson’s as harmless or cumulative. The bulk of the state’s testimony about the incident and about the alleged disagreement came not from eyewitness accounts but from hearsay statements.

The trial court also erred in allowing testimony by William V. Williams that Maynard had told him that he was going to meet with Bryars that evening. The last time Williams saw Maynard was at 1:45 P.M. on the day he was killed. Some time that day Maynard had made the statement to him at their place of employment in Pensacola, Florida. Maynard arrived home from work at 5:15 P.M. that day and changed clothes before leaving for the farm where he was killed. The statement to Williams could hardly be described as a declaration made by one setting out on a journey or immediately prior thereto. See Thornton v. State, 253 Ala. 444, 448, 45 So.2d 298, 301 (1950); Harris v. State, 96 Ala. 24, 29, 11 So. 255, 257 (1892). A statement made at a distant location some three and one-half hours prior to Maynard’s leaving for the farm cannot be considered a statement made immediately pri- or to setting out on a journey.

The judgment of the Court of Criminal Appeals is hereby reversed and the case is remanded.

REVERSED AND REMANDED.

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


text:
    Earl A. BRYARS, Jr., alias v. STATE of Alabama.
    3 Div. 304.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
   Appeal from Escambia Circuit Court. TYSON, Judge.

Reversed and Remanded for a new trial on authority of Earl A. Bryars, Jr., 456 So.2d 1136, Alabama Supreme Court No. 83-378, August 24, 1984, rehearing denied September 21, 1984.

REVERSED AND REMANDED FOR NEW TRIAL.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Charles E. DRIVER v. STATE.
    8 Div. 987.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    On Return to Remand Oct. 9, 1984.

      Charles E. Driver, pro se.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

Driver’s pro se petition for writ of error coram nobis was summarily denied without an evidentiary hearing. The petition contains an allegation, among others, that Driver was twice put in jeopardy for the same offense when he pled guilty in Circuit Court to the same charges upon which he had previously been adjudicated a juvenile delinquent. The petition is sworn and contains a recital of facts to support this allegation. See Stephens v. State, 420 So.2d 826 (Ala.Cr.App.1982). If the asserted matters are true the petitioner is entitled to relief. Alabama Code Section 12-15 — 66(c) (1975); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). Since the petition is meritorious on its face, the petitioner should have been afforded a hearing on the merits. Kennedy v. State, 409 So.2d 1010 (Ala.Cr.App.1982); Ellison v. State, 406 So.2d 439 (Ala.Cr.App.1981); Henry v. State, 387 So.2d 328 (AIa.Cr.App.1980).

This cause is remanded to the Circuit Court with directions that an evidentiary hearing be held at which defendant is present and represented by counsel.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

BOWEN, Presiding Judge.

On remand of this cause to the circuit court, an evidentiary hearing was held at which Driver was represented by counsel.

Driver alleges that his petition for writ of error coram nobis was due to be granted because (1) he was put in jeopardy when he pled guilty in the circuit court to the same charges upon which he had been previously adjudicated a juvenile delinquent, (2) the ineffective assistance of counsel, and (3) the failure of the Juvenile Court to make the specific findings required by Alabama Code 1975, § 12-15-34(d), before transferring Driver to the circuit court for treatment as an adult.

Driver’s contentions are without merit. Here, there was no juvenile delinquency hearing but only a hearing on a motion to transfer involving only a determination of probable cause. Ash v. State, 424 So.2d 1381, 1382 (Ala.Cr.App.1982). There was no vic:ation of Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), or Alabama Code 1975, § 12-15-66(c). The juvenile court made no adjudicatory finding of delinquency that Driver actually violated a criminal statute. Smith v. State, 368 So.2d 298, 301 (Ala.Cr.App.1978), cert, quashed, Ex parte Smith, 368 So.2d 305 (Ala.1979).

The record shows that Driver’s retained counsel was not ineffective in connection with the handling of the guilty pleas and the plea bargain agreement. Driver was facing eight charges. A rape charge and a burglary charge were dismissed. Driver pled guilty to two cases of kidnapping, two cases of robbery and two assault with intent to murder charges. In accordance with the plea bargain agreement, Driver was sentenced to five years in each of the kidnapping cases, 15 years in each of the assault cases, and 25 years in each of the robbery cases. All of the sentences were concurrent. There was no appeal from any of these guilty pleas. In determining that the pleas were properly entered and accepted, we have reviewed the transcript of those proceedings. That record shows that the guilty pleas were accepted in full compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). That record also shows that Driver received excellent representation by his two attorneys.

The argument that the juvenile court judge failed to issue a proper order was waived when Driver failed to appeal that ruling and when he pled guilty after he had been certified for treatment as an adult.

The issues in this case warrant no further discussion. The petition is without factual and legal merit and was properly denied.

The judgment of the circuit court is affirmed.

OPINION EXTENDED;

AFFIRMED.

All Judges concur.