text:
    ALA-MISS ENTERPRISES, INC. v. Gene BEASLEY.
    Civ. 3946.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1984.
    Augustine Meaher, III and James E. Robertson, Jr. of Lyons, Pipes & Cook, Mobile, for appellant.
    Edward P. Turner, Jr. and Gordon Kevin Howell of Turner, Onderdonk & Kim-brough, Chatom, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The trial court awarded compensation benefits to Beasley. The trial court based its decision in part on the finding that the relationship of employer/employee existed between Ala-Miss and Beasley at the time of Beasley's injury. Ala-Miss, who through able counsel has favored this court with an excellent brief, appeals and we affirm.

The dispositive issue on appeal is whether the trial court was justified in finding that certain deductions by Ala-Miss to pay workmen’s compensation insurance premiums established an employer/employee relationship between Beasley and Ala-Miss for purposes of compensation coverage.

Viewing the record in light of the standard of review in workmen's compensation cases, the following is revealed. Beasley worked as a “sawman” or woodcutter on a pulpwood truck owned and operated by the Hamiltons. Mr. Hamilton had been hauling wood exclusively to Ala-Miss, except for three or four loads of hardwood, from February 1980, up until Beasley’s injury in October 1980. Beasley had been working with the Hamiltons approximately three weeks when a tree fell on him and broke his leg. Beasley’s injury demanded considerable medical attention, including surgery.

It is undisputed that the Hamiltons hired Beasley and that they supervised his work. Hamilton did not have a contract with Ala-Miss and Ala-Miss could accept or reject any timber tendered. However, from those loads of wood Ala-Miss did accept, it deducted from the price it paid for every cord a certain amount to pay workmen’s compensation insurance premiums.

The trial court found specifically that Beasley

“[W]as supervised by the Defendants Hamilton on a daily basis; that the Defendants Hamilton regularly employed less than two persons and therefore the Defendants Hamilton were not subject to the Workmen’s Compensation Law of Alabama; that the Defendant, Ala-Miss Enterprises, Inc., deducted from the amounts of money due the Hamiltons and the Plaintiff for wood delivered it certain sums of money as and for premiums for Workmen’s Compensation Insurance for the Hamiltons and the Plaintiff; and that therefore the Plaintiff was the employee of the Defendant Ala-Miss Enterprises, Inc., as aforesaid, under the definition thereof as set forth in the Workmen’s Compensation Laws of Alabama.”

The trial court further found that Beasley was injured in the course of his employment with Ala-Miss and awarded compensation benefits.

Ala-Miss now appeals, contending the trial court erred in finding that Beasley was its employee for purposes of workmen’s compensation law.

In workmen’s compensation cases this court looks at the record only to determine if the finding of facts by the trial court is supported by any legal evidence and if the law has been properly applied to the facts. We will not look to the weight of the evidence. American Tennis Courts, Inc., v. Hinton, 378 So.2d 235 (Ala.Civ.App.); cert. denied, 378 So.2d 239 (Ala.1979); Craig v. Decatur Petroleum Haulers, Inc., 340 So.2d 1127 (Ala.Civ.App.1976), cert. denied, 340 So.2d 1130 (Ala.1977).

Also, in reviewing the issues on appeal, an appellate court must keep in mind the principle that the Workmen’s Compensation Act should be given a liberal construction to accomplish its beneficent purposes, and all reasonable doubts must be resolved in favor of the employee. American Tennis Courts, Inc. v. Hinton, 378 So.2d 235 (Ala.Civ.App.), cert. denied, 378 So.2d 239 (Ala.1979).

Considering the facts and circumstances of this case, along with the applicable law, we cannot say the trial court erred in finding that an employer/employee relationship existed for purposes of workmen’s compensation coverage.

Viewing the record with the attendant presumptions, the evidence and the reasonable inference therefrom reveals that on every load of wood Hamilton delivered to Ala-Miss, Ala-Miss deducted a certain amount per cord to pay the premiums for workmen’s compensation insurance. This occurred continuously from February 1980 until three days before Beasley’s accident. It can be reasonably inferred that the deductions were to provide coverage for Hamilton and his employees. The scale tickets, or receipts, given Hamilton show at the bottom in the same size print as the rest of the document that $1.50 per cord was deducted for “W-C Insurance.”

Ala-Miss contends that Beasley and Hamilton were not hauling wood to Ala-Miss on the day Beasley was injured based on the fact that on the day of the accident and the two previous days the Hamilton truck delivered wood to Scott Paper Company.

Be that as it may, there is evidence that Ala-Miss had informed Hamilton that, although it would still take pine, it would not accept any more hardwood; thereafter, Hamilton delivered three loads of hardwood to Scott.

On the day of the accident the owner of the timber being cut told Hamilton that they should clear out the rest of the pine with the understanding that it would be delivered to Ala-Miss, who would accept pine. Scott would not take any pulpwood such as pine at that time. Beasley testified that he understood at the beginning of the workday that he would be cutting pine for delivery to Ala-Miss. Beasley was cutting the top out of a pine tree when he was injured.

As soon as Beasley was injured, Hamilton took him to the hospital. As Beasley was the man cutting the wood, there was no more pine cut that day and none was delivered to Ala-Miss. However, the owner of the timber had some hardwood already cut from previous days; he and Hamilton’s remaining employee loaded the hardwood on Hamilton’s truck and delivered it to Scott Paper Company without Hamilton or Beasley’s knowledge.

Clearly, given the presumptions accorded the trial court, there is evidence to support the finding that Beasley was cutting wood to be hauled to Ala-Miss when he was injured.

It may well be true that Ala-Miss’s relationship with Beasley, via the Hamiltons, does not meet the traditional test of “right of control” in determining if an employee relationship exists. American Tennis Courts, Inc. v. Hinton, 378 So.2d 235 (Ala.Civ.App.), cert. denied, 378 So.2d 239 (Ala.1979). Nevertheless, under the peculiar facts and circumstances of this ease, considered along with certain principles of insurance law, we are of the opinion that Ala-Miss is precluded through its actions from denying that Beasley was its employee for purposes of workmen’s compensation coverage. Put another way, in this instance, Ala-Miss, by deducting for workmen’s compensation from the monies owed Hamilton, elected to treat Beasley, Hamilton’s “employee,” as its employee for workmen’s compensation coverage.

We feel compelled to comment that we are not expanding the definition of “employee” to include, in every instance, anyone for whom deductions are made. We only find that, under the present fact situation,'the trial court was within its authority in finding an employer/employee relationship existed. For a general discussion of the instant problem, see 1C A. Larson, The Law of Workmen’s Compensation § 46.40 (1982).

We reach our decision that Ala-Miss is precluded from denying an employer/employee relationship in part by way of analogy to certain principles of insurance law.

“There is a general rule of estoppel extant in the field of insurance law. This rule prohibits an insurer in employer’s liability, who collects premiums based upon a payroll listing, from denying liability as to an employee who was included therein. See Couch on Insurance 2d § 44:126 (1963 Ed.).”

Employers Insurance Co. of Alabama v. Lewallen, 293 Ala. 574, 577, 307 So.2d 689, 691 (1975). See also Strickland v. Al Landers Dump Trucks, Inc., 170 So.2d 445 (Fla.1964); Thundereal Corp. v. Sterling, 368 So.2d 923 (Fla.Dist.Ct.App.1979); Tallco, Inc. v. Queenan, 253 Miss. 709, 178 So.2d 665 (1965); Garrett v. Garrett & Garrett Farms, 39 N.C.App. 210, 249 S.E.2d 808 (1978).

In Lewallen, the insurance carrier collected premiums based on the monthly size of the total payroll of two businesses that were incorporated into one. Although the insurance policy listed only one of the pre-incorporated businesses and the policy was never changed to reflect incorporation, the supreme court held that the insurer was estopped to deny that the injured worker was an employee of the business that was insured based on the fact that the worker’s salary was used to compute the premiums.

Although the relationship of the parties in this case is different from that of the parties in the above cited authorities, we believe that the situation is sufficiently analogous to apply the same reasoning in the instant ease.

Ala-Miss deducted premiums from the price it paid per cord to Hamilton. It can be reasonably inferred that the premiums were deducted to cover the people cutting and hauling the wood, in this case Beasley. It was established by competent evidence that Beasley was cutting wood to be hauled to Ala-Miss. Therefore, Beasley would have been covered under Ala-Miss’s workmen’s compensation insurance by virtue of Ala-Miss’s actions in making the deductions for that very purpose. Hence, the trial court did not err in finding that an employer/employee relationship existed between Ala-Miss and Beasley at the time of the accident.

In view of the above, this ease is due to be and is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BRADLEY, Judge. HOLMES, Judge

license: Public Domain

text:
    (In the matter of Gregory Blake HICKS and Allison Denise Hicks). Glenn E. HICKS and Anna Hicks v. W.D. CORNELIUS and Bernice Cornelius.
    Civ. 3993.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1984.

      Robert S. Gargis of Gargis & Gargis and Gary Alverson, Tuscumbia, for appellants.
    D. Marcel of Hewlett & Black, Tuscum-bia, for appellees.
    Lee B. Osborn, Huddleston & Osborn, Sheffield, amicus curiae.
   BRADLEY, Judge.

This is an appeal from a judgment of the Juvenile Court of Colbert County in a child custody case.

On January 18, 1982 the maternal grandparents, W.D. Cornelius and wife, Bernice, filed a petition in the Colbert County District Court sitting as a juvenile court seeking custody of their minor grandchildren, Gregory B. Hicks and Allison D. Hicks. The children’s parents had been killed in an automobile accident. The paternal grandparents, Glenn E. Hicks and Anna Hicks, opposed the custody request. On October 22, 1982, after a final hearing, permanent custody of the children was given to the Corneliuses. No appeal from this decision.

On June 16, 1983 the Hickses filed a modification petition seeking custody of their grandchildren. After a hearing the request for modification of the children’s custody was denied on August 12, 1983. On August 25, 1983 the Hickses filed a motion for rehearing or a new trial. On September 14, 1983 the juvenile court denied the motion. The Hickses filed notice of appeal on September 27, 1983.

The Corneliuses have filed a motion to dismiss the appeal on the ground that the appeal was not taken within the required time periods and is therefore late.

Section 12-15-2, Code 1975, provides in part as follows: “(c) The supreme court shall promulgate rules governing procedure in the juvenile court.” The Alabama Rules of Juvenile Procedure do not provide a specific rule for the time periods which would apply to posttrial motion practice. However, rule 1, A.R.J.P., provides: “If no procedure is specifically provided in these rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to the extent not inconsistent herewith.” The Comment to rule 1 states in part:

“Because juvenile jurisdiction may be exercised by district courts as well as circuit courts, the Alabama Rules of Civil Procedure referred to in Rule 1 contemplates said rules as modified for applicability in the district courts where juvenile jurisdiction is exercised at the district court level.”

The Corneliuses argue that the motion for rehearing was denied by operation of rule 59.1(dc), Alabama Rules of Civil Procedure, on September 8, 1983 and that the time for appeal began to run on this date rather than September 14, 1983, the date on which the trial court overruled the motion.

Rule 59.1(dc), A.R.Civ.P., provides as follows: “Rule 59.1 applies in the district courts except that the time period of 90 days is reduced to 14 days.”

Thus, it appears that the Alabama Rules of Civil Procedure as modified for district courts shall apply to all juvenile court proceedings when a district court judge presides. Hence the applicable time limit for ruling on a posttrial motion in a juvenile proceeding in district court is fourteen days. Rule 59.1(dc). Failure to rule within the applicable time period results in the motion being deemed denied by operation of law. The time period for appeal begins to run from the date the motion is deemed denied by operation of law.

In the case at bar the posttrial motion was deemed denied by operation of law on September 8, 1983 and the appeal was not taken until September 27, 1983, which was more than fourteen days from the date when the posttrial motion was deemed denied. Appeals from all juvenile courts to this court must be taken within fourteen days of the judgment on the merits or any posttrial motion. Rule 28(C)(3), Alabama Rules of Juvenile Procedure. This applies to circuit juvenile courts as well as to district juvenile courts. Wright v. Montgomery County Department of Pensions & Security, 423 So.2d 256 (Ala.Civ.App.1982).

To the uninitiated the application of the rules in the above manner can have harsh and, to this court, unintended results.

At this time there is no valid reason for there to be two different time periods for denying posttrial motions in juvenile proceedings depending on whether the proceeding is in district court or circuit court.

This hiatus in the rules regulating appeals from juvenile courts has apparently just been overlooked because the supreme court has drastically altered the juvenile court system by adopting rules 20 and 28 of the A.R.J.P. effective March 1, 1982.

These two rules require records to be made of juvenile court proceedings and authorize appeals from certain classes of juvenile cases directly to the appellate courts. The effect of these changes has been to unify and simplify juvenile court procedure so that it no longer matters whether the proceeding is in district court or circuit court. Consequently, we can perceive of no valid reason why the time period for posttrial motions in juvenile court should be different depending on whether the juvenile proceeding is in district court or circuit court. However, rule 59.1(dc) is very clear and can be changed only by the supreme court, not this court.

The posttrial motion filed in this case was deemed denied by operation of law on September 8, 1983 and the appeal to this court was not filed until September 27, 1983, which is more than fourteen days after September 8,1983. The appeal is late and must be dismissed.

Appellants in their response to the motion to dismiss request this court to extend the time for appeal by extending the time for the ruling on the posttrial motion pursuant to rule 59.1, A.R.Civ.P. However, the motion to extend must have been filed in the appellate court prior to the end of the applicable time period. Crowder v. Zoning Board of Adjustment, 409 So.2d 837 (Ala.Civ.App.1981). This was not done here.

APPEAL DISMISSED.

WRIGHT, P.J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully but with some reservation dissent. Quite frankly, there is authority and sound reasoning in the majority opinion. However, I believe there is a better approach that can be taken, and this approach reaches a more equitable result.

I agree with the conclusion stated in the majority opinion that there is no valid reason for two different time periods for denying posttrial motions in juvenile proceedings depending on whether the proceeding is before a district or circuit judge. Promulgation of Alabama Rules of Juvenile Procedure rules 20 and 28 has fundamentally restructured the juvenile court system. Now all types of juvenile cases listed in rule 28(C)(2) are appealed directly to this court.

To me there are two reasons for concluding that the ninety-day rule of 59.1 is applicable in the instant case.

The first reason is based on my analysis of rule 1. Careful scrutiny of the Comment to rule 1 reveals a concern for maintaining procedural distinctions between “district court proceedings” at the “district court level” and proceedings at the circuit court level. For those cases governed by rule 28(C)(2), a district judge does not now sit at the “district court level” (with appeal to the circuit court for trial de novo); rather, the district court judge sits at the circuit court level with appeal directly to this court on the record. Rules 20 and 28(C)(2). Thus, the ninety-day rule should apply.

The second reason is a policy reason. One of the fundamental cornerstones of modern procedure is the principle of uniformity. To require different procedural timing rules for a now unified court system runs counter to this desirable procedural objective and should be rejected. There is no longer any valid reason for having a different timing principle applicable to juvenile proceedings included in the scope of rule 28(C)(2). When the reason for the rule no longer exists, the rule should “fall.” In fact, the supreme court recognized this goal of uniformity of practice by setting a uniform rule of fourteen days from which to appeal such proceedings. Rule 28(C)(3).

I would deny the motion to dismiss the appeal as untimely taken.


author: BRADLEY, Judge.

text:
    Virginia Nell OYLER v. Harry J. OYLER, Sr.
    Civ. 4021.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1984.
    Terry Gillis of Kellett & Gillis, Fort Payne, for appellant.
    Lee Clyde Traylor, Fort Payne, for appel-lee.
   BRADLEY, Judge.

Alimony reduced; wife appeals.

The parties to this appeal were divorced in 1976. Under the decree of divorce, the husband was ordered to pay wife $300 per month as alimony.

On August 8, 1983 wife filed a petition for contempt and modification of the divorce decree, seeking to hold her ex-husband in contempt for failing to pay alimony and for an increase in alimony. Husband counterclaimed by requesting that the alimony be reduced or eliminated due to a change in circumstances since the divorce.

After an ore tenus hearing on September 23, 1983, the trial court entered an order finding wife was entitled to an arrearage in alimony of $1,300. The court declined to hold husband in contempt and reduced alimony to $200 a month. Wife appeals.

Wife argues here that the trial court erred in denying her petition to increase alimony and in reducing the alimony payments. She contends there has been a substantial change in circumstances since the divorce that would justify an increase in alimony, i.e. that she is unable to obtain employment and that her living expenses have increased since the divorce. Husband contends there has been a change in circumstances since the divorce that would justify a reduction in alimony, i.e. that he has retired from the military and his income has decreased.

The evidence shows that wife is fifty-three years old and lives in a trailer park in Fort Payne, Alabama. She has a ninth grade education and has not worked in over twenty years. Her last job experience consisted of babysitting and working in a hosiery mill. Wife testified she has tried to find work in a hosiery mill since the divorce but that her skills are outdated and they will not hire her. Husband disputes the fact that wife has sought employment. There was evidence that wife has never applied through an employment office. She attributes her difficulty in finding a job to her physical limitations. Wife testified she has poor vision and cannot read or see up close without her glasses. In addition, wife suffers from “leg and nerve problems,” has had pneumonia several times, and tires easily.

Wife also testified that she was receiving help from her son, but that he is now married and has his own family to support. Wife estimates she would need between $450 to $500 per month alimony in order to meet her living expenses. Wife owns household furniture worth about $500 and an inoperable automobile worth $50.

The record also revealed that husband presently lives in Niceville, Florida and has remarried but is separated. His present wife was contributing substantially to the couple’s living expenses, but has not contributed anything since the separation. Husband says her support was the only way he could pay wife’s alimony.

At the time of divorce from wife, husband was a sergeant in the army and was earning $12,705 a year plus a housing allowance of an unspecified amount. He retired from the army in June 1979 and receives a retirement pension of $1,234 a month. In addition to his retirement income, husband works at a country club in Niceville and makes $4.50 an hour. In 1982 he worked an average of forty hours per week at a rate of $4.00 an hour. He received about $8,300 from this employment in 1982. In 1983 he has averaged working only thirty-five hours a week due to stomach problems. This would average about $8,200 per year. Husband testified that he has had a nerve problem for three or four years. He testified his monthly expenses have increased and are currently about $1,112.

This court has consistently held that an alimony award can be modified only upon a showing of a material change in circumstances, and the modification of such a decree is within the sound discretion of the trial court and will not be reversed except for an abuse of that discretion. Sansom v. Sansom, 409 So.2d 430 (Ala.Civ.App.1981). Also, the party moving to modify the alimony has the burden of proving a material change in circumstances. Taylor v. Taylor, 418 So.2d 148 (Ala.Civ.App.1982).

In a case such as the one at bar, the burden on the movant is to prove a material change in the financial status of the parties. Taylor v. Taylor, supra; O’Dell v. O’Dell, 57 Ala.App. 185, 326 So.2d 747 (Ala.Civ.App.1976). The trial court found that the husband had retired from the military service and his income had been reduced; therefore the husband had proved a change in his financial situation.

While the evidence shows that neither party is in the best physical condition, we are unable to find any evidence in the record showing that husband’s retirement from the army has caused a reduction in his income.

In 1976, the year of the divorce, the husband was receiving between $1,400 and $1,500 a month in compensation from the army. This included quarters and meals allowance as well as salary. At the time of trial in 1983, husband was receiving about $1,865 per month in income. This sum is made up of $1,234 in monthly retirement income and about $630 a month from his job.

Based on this evidence we do not find that the husband has suffered a reduction in income; if anything, his income is more than it was in 1976. Accordingly, we cannot agree with the trial court that there has been such change in husband’s financial circumstances as to authorize a reduction in the wife’s monthly alimony. Consequently, this aspect of the trial court’s judgment is reversed.

On the other hand we are not convinced that the trial court’s conclusion that the wife’s alimony award should not be increased is plainly and palpably wrong.

The husband’s income has not increased that much over the years and his expenses have increased during this time.

We recognize that the wife’s expenses have increased during this time also, but the evidence showed that the wife had not made a diligent effort to obtain work to help pay her expenses.

That aspect of the trial court’s judgment denying wife’s request for an increase in alimony is affirmed; that aspect of its judgment reducing the alimony from $300 a month to $200 a month is reversed and the cause is remanded for entry of judgment restoring wife’s alimony payments to $300 per month.

Wife is awarded $350 as an attorney’s fee on appeal.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

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


author: WRIGHT, Presiding Judge.

text:
    Donna Jane MESSER v. Ronald H. ANDERSON & Auto-Owners Insurance Company.
    Civ. 4031.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1984.

      Benton H. Persons of Murphy & Murphy, Andalusia, for appellant.
    J.M. Albritton of Albrittons & Givhan, Andalusia, for appellees.
   WRIGHT, Presiding Judge.

A subrogation suit was begun in the names of the insured and insurer against defendant for recovery of $7,500 paid by the insurer to its insured under the uninsured motorist coverage of a policy of automobile liability insurance. Defendant moved to dismiss, and plaintiffs amended to correct the date of the accident. Defendant filed a general answer. About one year later, plaintiffs amended the complaint by adding as a party plaintiff the son of insured who was operating the insured motorcycle involved in the accident and claiming in count two damages for his personal injury. Defendant moved to strike the amendment, alleging it was filed without leave of court contrary to Rule 15, Alabama Rules of Civil Procedure (A.R.Civ. P.). The motion was denied. Trial by the court without a jury followed. Judgment was entered for plaintiffs in the sum of $7500.

Defendant appeals, charging error in the denial of her motion to strike the last amendment and the insufficiency of the evidence to support the judgment.

As to the first charged error, defendant relies upon Rule 15, A.R.Civ.P., as it was first adopted. Her reliance is misplaced, as Rule 15 was amended on June 15, 1975, to remove the requirement of obtaining first leave of court by written pleading before amending a complaint after answer. The rule now provides that amendments, though subject to motion to strike, are to be “freely allowed when justice so requires.” The allowance of amendment is subject only to'the discretion of the court. The opposing party must show actual prejudice or undue delay. Bracy v. Sippial Electric Co., 379 So.2d 582 (Ala.1980). There being no such showing by defendant in this case, there was no error.

Having determined that allowing the amendment to the original subrogation claim which added to the suit the personal injury claim of the operator of the insured vehicle, recovery was not limited to the amount paid by the insurer. By the terms of the policy, the insurer is obligated to its insured under uninsured motorist coverage only in the amount of the damages due insured from the uninsured motorist.' A judgment against the uninsured motorist obtained by the insured after notice to insurer, is conclusive against the insurer within the limits of the policy. Almeida v. State Farm Mutual Insurance Co., 53 Ala.App. 175, 298 So.2d 260 (1974). However, settlement between insurer and insured for a lesser amount before suit against the uninsured motorist, does not limit the amount of recovery by insured in that suit.

The contention of appellant that the actual monetary loss shown suffered by plaintiffs Anderson was $2,675.25 is correct. However, there was evidence presented indicating pain and suffering, scarring and possible future skin grafts. The trial court, as the trier of facts, was at liberty to award additional sums for those things. This court upon review of the judgment rendered after ore tenus hearing must presume it to be correct. Only a showing of an absence of supporting evidence and manifest unjustness will support our reversal. Wallace v. Auto-Owners Insurance Co., 421 So.2d 131 (Ala.Civ.App.1982). We find no such ground for reversal.

Appellees’ answer in brief to the second and third issues presented by appellant is insufficient. The reliance upon the authority of Perdue v. Gates, 403 So.2d 165 (Ala.1981), and similar cases, is in this case misplaced. The rule of those cases, requiring the filing of motions for directed verdict or J.N.O.V. in order to obtain review on appeal of the issue of sufficiency of the evidence, applies only to jury cases. The rule as to non-jury cases is to be found in the case of Securitronics of America, Inc. v. Bruno’s, Inc., 414 So.2d 950 (Ala.1982).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Carrie GREEN v. Ronnie GREEN.
    Civ. 4058.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1984.

      Robert L. Austin, Birmingham, for appellant.
    . John R. Christian, Birmingham, for ap-pellee.
   HOLMES, Judge.

This is a child custody case.

The parties to this appeal were divorced in 1982, and the wife was awarded custody of the two minor children. Thereafter, the husband petitioned the court seeking a change of custody.

The trial court, after an ore terms hearing, found that it was in the best interest and welfare of the children to change custody and the father was awarded custody. The wife now appeals and we affirm.

Viewing the record with the attendant presumptions, the following is revealed:

In late 1982, the husband discovered that his wife and his father, the children’s paternal grandfather, were having an adulterous affair. The wife and the husband’s father both admitted their relationship with each other prior to the divorce.

After the divorce decree became final, the wife and the two minor children moved into a housetrailer with the husband’s father. The wife and her ex-father-in-law subsequently married. The father petitioned for a modification of the divorce decree alleging that the wife’s marriage to the children’s paternal grandfather constituted sufficient change in circumstances to warrant a change in custody. After an ore terms hearing, the trial court awarded the father custody of the two minor children conditioned upon the husband maintaining custody in Jefferson County.

The paramount consideration in any child custody case is the welfare and best interest of the children involved. Parsons v. Parsons, 337 So.2d 765 (Ala.Civ.App.1976). Additionally, the award of custody is always' a matter for the exercise of judicial discretion by the trial court, and this court will reverse only where such discretion is abused. Quinn v. Quinn, 351 So.2d 925 (Ala.Civ.App.1977). It is also an applicable principle of law that a party seeking modification of a child custody provision in a divorce decree has the burden of showing a material change of circumstances which will warrant modification. Small v. Small, 412 So.2d 283 (Ala.Civ.App.1982).

Suffice it to say that considering the welfare and best interest of the children, even in light of the burden on the person seeking modification, we do not feel the trial court erred to reversal in removing the children from a situation where, under these facts, their mother has married their paternal grandfather, the mother’s ex-father-in-law.

The mother through able counsel further contends that the trial court erred in conditioning the award of custody to the father upon the father’s maintaining his “custodial control of the children within Jefferson County.” However, we fail to see how this aspect of the trial court’s decree is prejudicial to the mother. It would appear that this issue would.be more properly raised by the father. In any event, this issue was not properly presented or argued on appeal. Rule 28, Alabama Rules of Appellate Procedure.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Nettie Faye McCAIN v. Floyd J. McCAIN.
    Civ. 3967.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1984.
    George C. Simpson, Lineville, for appellant.
    Michael A. Givens and Donald W. Lang, Sylacauga, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

We have studied all of the ore tenus trial testimony. The following summary of some of the evidence is relevant to the argued issues when due consideration is given to the applicable presumptions.

The husband is forty-seven years of age, the wife is forty-four. They married in December 1955 and separated for the last time twenty-seven years later. Three children were born of their union. The son is eleven years of age and the two daughters are adults. The minor son and one adult daughter reside at home with the wife. That daughter is employed full time and contributes towards the wife’s household expenses.

The husband is a truck driver and is paid on a per-mile-driven basis. His gross wages vary from month to month but averaged $1,622 per month from January to July 1983. His listed monthly expenses, not including any withholdings from his gross income, amount to approximately $1,030.

The wife did not work during the first twenty-five years of the marriage but she has been employed for the past two years. Her enumerated monthly expenses of $619 for herself and the son included a house mortgage payment of $157. Those listed expenses, however, did not cover incidental, social, medical, dental, or recreation expenditures. Her employer will provide hospitalization insurance for her. Monthly take-home pay for the wife is $519.

The parties acquired a jointly-owned home about fifteen years ago and they presently owe $8,000 upon the house mortgage. The house and two and one-half acre lot are worth around $20,000. The couple also acquired their furniture and household appliances, which are debt-free, and a 1978 Chevrolet automobile, which is mortgaged. The wife does not drive.

Some of the trial evidence, as above summarized, was disputed. After personally hearing the testimony, the trial court rendered a final judgment which divorced the parties for incompatibility, granted custody of the minor son to the wife, and ordered the husband to pay semi-monthly to the wife $75 as child support and $50 as periodic alimony. Medical insurance for the minor child must be maintained by the husband. The trial court further granted the use of the home to the wife until it is sold pursuant to and under the contingencies stated in the divorce judgment, with the wife to be responsible for the house expenses including the house mortgage payments. The wife was awarded all of the furniture and appliances and the husband received the automobile.

On appeal the wife complains that the child support and periodic alimony awards were insufficient and that the husband should have been required to pay the mortgage indebtedness upon the house.

The trial court is granted much latitude in the exercise of its judicial discretion as to the amounts for child support and periodic alimony to be awarded, as well as to making an equitable division of property and providing for the payment of debts. We are not allowed to disturb the findings of the trial court upon those matters unless the holdings were so palpably wrong as to constitute an abuse of discretion. Further, when an evidentiary trial is conducted before a trial court upon those issues, the final judgment is presumed to be factually correct and must be affirmed if it was supported by credible evidence. Kaiser v. Kaiser, 434 So.2d 264 (Ala.Civ.App.1983); Casey v. Casey, 421 So.2d 128 (Ala.Civ.App.1982). Under some tendencies of the evidence, the wife’s earnings, when added to the awarded child support and periodic alimony, total more than her and the minor son’s listed living expenses including the house mortgage payments. Stated differently, according to some of the evidence, she will have total receipts which will provide for their living expenses and the monthly installments. Under those circumstances, there was credible evidence which upholds the judgment of the trial court. Accordingly, we cannot conclude that the amount of child support, the periodic alimony award, or the requirement that the wife pay the mortgage payments was palpably -wrong. The trial court did not abuse its discretion as to any of the issues in controversy. We affirm the judgment of the trial court.

The wife’s request for an attorney’s fee on appeal is denied.

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

AFFIRMED.

All the Judges concur.


author: JERRY M. WHITE, Circuit Judge.

text:
    Richard Owen LONG v. STATE.
    6 Div. 967.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1983.
    Rehearing Denied Oct. 4, 1983.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-77.

      Jon B. Terry of Bains & Terry, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen. and Ger-rilyn V. Grant, Asst. Atty. Gen., for appel-lee.
   JERRY M. WHITE, Circuit Judge.

Richard Owen Long was convicted, after trial by jury, of unlawfully breaking and entering a vehicle, a violation of Section 13A-8-ll(b), Code of Alabama 1975. This offense is designated a class C felony. After the jury verdict, a date for sentencing was set; and a pre-sentence report was ordered by the court. The appellant was notified in writing immediately after the jury verdict of the state’s intentions to pursue sentencing under the Habitual Felony Offender Act, which notice also listed the prior felony convictions upon which the State would rely. At the sentencing hearing some eight days later, the Assistant District Attorney introduced certified copies of minute entries of judgments reflecting that appellant had been convicted previously of five separate felony offenses in the United States District Court, Northern District of Alabama; and the appellant was sentenced in accordance with the applicable portion of the Habitual Felony Offender Act (Section 13A-5-9(c)(l), Code of Alabama 1975), to a period of fifteen years’ imprisonment in the penitentiary.

At the trial of this case, Ricky E. Bradbury testified that he had driven his 1978 blue, Z-28 Camar’o automobile, on the evening of February 14, 1981, to a lounge known as Al’s Crossroads on Parkway East in Birmingham. He had arrived there sometime between the hours of 9 and 10 p.m. and parked his car in a lot behind the lounge building. He locked the doors to his vehicle before going inside, where he met a number of friends. Later, he was asked by someone over the public address system to go to his car; and upon arriving at the place where he had left it, he found that the door on the driver’s side was open, that a policeman was standing nearby, and that the console was standing open. At the officer’s request, Bradbury searched his automobile to ascertain whether or not anything was missing. At some point thereafter, Bradbury determined that a watch which belonged to him was missing. He identified a watch which, at this time, was in the possession of the police officer as belonging to him and as being the one which had disappeared from his car.

Richard Landers, a police officer for the City of Birmingham, testified that he was working the 11 p.m. to 7 a.m. shift in the Parkway East area on February 14-15, 1981. At approximately 11:20 p.m. on the 14th, he arrived in the parking lot of Al’s Crossroads, where he left his patrol car and began to walk about the lot. In the rear part of the parking area, he observed a man (whom he later identified as the appellant) walking alone from car to car, peering inside these vehicles, and “pulling on door handles”. He then saw the appellant proceed to the 1978 blue, Z-28 Camaro belonging to Ricky E. Bradbury, remove a coathanger wire from under his overcoat, and stick it through the window on the driver’s side. Within ten seconds, he saw the appellant unlock the door and open it. He testified that the appellant then got into the car, sitting in the driver’s seat. Officer Landers, at this point, radioed for a backup unit and began walking toward the Bradbury car. The officer opened the car door and asked the appellant to step out, which he did. Long began walking to the back of the vehicle, where he dropped the coathanger wire, which, at this time, had been rolled or folded into a ball. Officer Landers asked him if the car were his, to which question the appellant replied, “What car?” Appellant also denied that he had just gotten out of any car. Landers then placed the appellant under arrest and proceeded to search him for weapons. During the search, he removed the man’s watch from the appellant’s pocket which Ricky Bradbury later identified as belonging to him and as having disappeared from his automobile.

After the testimony of Ricky Bradbury and Richard Landers, the State rested its case.

The appellant offered only one witness, his cousin, James Earl Hodges. Mr. Hodges testified that he had met appellant at Al’s Crossroads between 9 and 9:30 p.m. on the evening in question, that they had had four or five drinks, and then walked out of the lounge building into the parking lot together around 11:15-11:20. They talked for a few minutes and then parted company, each going his own way.

The appellant presents five issues for review on this appeal, and those issues will be covered basically in the same order presented by the appellant.

The first issue presented, which is broken into three sub-issues, questions the application of Alabama’s Habitual Felony Offender Act in increasing the appellant’s punishment beyond that ordinarily prescribed for a class C felony. He contends that prior felony convictions under federal law dating back to January 9, 1969, and April 11, 1969, should not have been considered in the sentencing process in that they were too remote and in that these convictions were governed by a different set of procedural and evidentiary rules. Appellant also argues that he was not given proper notice of the State’s intentions to proceed under the Habitual Felony Offender Act. He likewise says that he was not properly notified of the prior convictions upon which the State would rely. Appellant further questions the State’s use of his prior federal conviction under the Dyer Act (interstate transportation of a stolen vehicle) to enhance his punishment.

Section 13A-5-9(c), Code of Alabama 1975, in very clear and concise language, provides that:

“In all cases when it is shown that a criminal defendant has been previously convicted of any three felonies ... he must be punished as follows: ” (Emphasis added.)

No age limit on convictions which may be used to enhance punishment has been prescribed by the legislature and, therefore, it can only be assumed that none was intended. The trial court did not err in considering felony convictions which had been obtained thirteen years previously in sentencing appellant, nor did it err in considering his federal conviction under the Dyer Act, or any of his other federal convictions for that matter. All prior felony convictions may be considered in connection with the Habitual Felony Offender Act, regardless of what their origin may be. Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). Assuming for the sake of argument that the conviction under the Dyer Act should not have been considered, the error would have been harmless as there were four other prior felony convictions proven against appellant.

Appellant’s contention that he was not given proper notice of the prior felony convictions upon which the State relied is without merit. Written notice of the State’s intentions listing his prior convictions was given him after the trial on August 11, 1982, and the sentencing hearing was not held until August 19, 1982. He knew for eight days prior to sentencing what the State intended to prove. This meets the requirements of the applicable Alabama law. Section 13A-5-10(a), Code of Alabama 1975; Rule 6(b)(3)(ii), Alabama Rules of Criminal Procedure-Temporary Rules; Holley v. State, 397 So.2d 211 (Ala.Cr.App.1981); Holsclaw v. State, 406 So.2d 1019 (Ala.Cr.App.), cert. denied, 406 So.2d 1020 (Ala.1981).

The second issue which appellant presents for review on appeal, which once again is divided into three sub-issues, deals with the application of the. law to the facts in the case. He first insists that the criminal offense of unlawful breaking and entering a vehicle was not proven because the State failed to establish the value of the watch which was allegedly taken by appellant from the vehicle. Secondly, he says that there were material inconsistencies in the State’s evidence which should bar the jury’s verdict from standing, and then he argues that the evidence concerning the watch was improperly admitted because of conflicting testimony concerning its identity. None of these contentions are meritorious.

The code section (13A-8-11) proscribing the offense at issue recites:

“(b) A person commits the crime of unlawful breaking and entering a vehicle if, without the consent of the owner, he breaks into and enters a vehicle or any part of a vehicle with the intent to commit any felony or theft”. (Emphasis added.)

Section 13A-8-2, Code, defines theft of property as follows:

“A person commits the crime of theft of property if he:
(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property .... ”

There was sufficient evidence produced by the State from which the jury could have concluded that the appellant, in breaking and entering Ricky Bradbury’s automobile, intended to obtain or exert unauthorized control over property belonging to another and to deprive the owner of that property. Whether or not a theft was actually perpetrated is not the deciding factor in determining if facts exist which are essential to constitute the offense. The appellant’s intent at the time of the breaking and entering is the important element, and the jury certainly had evidence from which it could conclude, not only that the appellant broke into and entered this vehicle, but also that he intended to steal when he did this. A failure to prove the value of the watch in question is immaterial.

The inconsistencies in the State’s evidence which the appellant points out, including the identification of the watch, were matters, the weight and credibility of which, addressed themselves to the jury. The jury resolved those against the appellant. There was no error in the trial court’s submission of the case to the jury, as substantial evidence was produced to prove that the crime was committed and that the appellant was the perpetrator.

Appellant’s third point, upon which he asks for reversal of this case, is that the Assistant District Attorney in making his final argument to the jury referred to the appellant as a “pro” and, by this reference, implied that appellant had been involved in this sort of activity before. The word “pro,” as used here, is an abbreviation for the word “professional.” A professional is defined as “one who engages in a particular pursuit, study or science for gain or livelihood” or “one who belongs to one of the learned professions or is in an occupation requiring a high level of training and proficiency.” Webster’s Third New International Dictionary (1961). The uncontradicted testimony of Officer Landers was that it took appellant only five to ten seconds to unlock and open the car door with a coathanger wire. The State has a right to draw proper inferences from the evidence and to draw conclusions from the evidence based on its own reasoning. Borden v. State, 337 So.2d 1388 (Ala.Cr.App.1976); Speigner v. State, 369 So.2d 39 (Ala.Cr.App.), cert. denied, 369 So.2d 46 (Ala.1979). There was nothing improper here in the State’s implication that the appellant was proficient or skillful in his manner of gaining entry to this vehicle, notwithstanding that this implication may have also carried with it the implication that appellant had engaged in such activity previously. Surely, it would not be unfair to infer that one who unlocks and opens a locked car with a coathanger wire within five to ten seconds has had previous practice at this feat.

The appellant next contends that the trial court committed reversible error in denying his motion for new trial and his “motion for judgment of acquittal after verdict or judgment of conviction.” At the oral hearing of the latter motion, no additional evidence was offered except for affidavits of appellant and his cousin, James Earl Hodges. Hodges was present and testified at the trial. Nothing appears in either of these affidavits which appellant and his attorney did not know, or by the exercise of reasonable diligence could not have known, before or during the trial. There was, therefore, no error in the denial of these motions. Davis v. State, 245 Ala. 589, 18 So.2d 282 (1944); Mealer v. State, 242 Ala. 682, 8 So.2d 178 (1942).

Finally, appellant insists that the trial court erred to reversal by allowing into evidence an excerpt from the police report prepared by Officer Landers. On cross-examination of Officer Landers by appellant’s trial counsel, extensive questioning took place concerning this particular part of the report. It was clearly not error for the court to allow this excerpt to go to the jury. The appellant opened this line of questioning; therefore, he cannot now complain of the admission of this evidence to which he himself first made reference. Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967); Tiner v. State, 271 Ala. 254, 122 So.2d 738 (1960).

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is, therefore, affirmed.

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

AFFIRMED.

All the Judges concur.


author: SAM TAYLOR, Judge.

text:
    Lee Arthur RICHARDSON v. STATE.
    2 Div. 378.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-280.

      Robert H. Turner of Chestnut, Sanders, Sanders & Turner, Selma, for appellant.
    Charles A. Graddick, Atty. Gen. and Linda K. Oswald, Asst. Atty. Gen., for appel-lee.
   SAM TAYLOR, Judge.

Appellant was convicted of escape in the third degree and was sentenced to 10 years’ imprisonment under the Habitual Felony Offenders Act.

The circumstances surrounding appellant’s arrest were as follows:

After using radar to time appellant’s car at 74 miles per hour, state trooper K.D. Garner engaged in pursuit, during which the vehicles exceeded speeds of 100 miles per hour. After stopping appellant’s car and approaching it, Garner detected a strong odor of alcohol and suspected that appellant was intoxicated. The trooper took appellant to the patrol car and informed him that he was under arrest for reckless driving.

While Garner was warming up an alcohol sensor device, the appellant got out of the car. The trooper tried to stop him but appellant jerked away and “took off” in his car. This time, appellant did not speed, but he would not stop in response to the blue light, a spotlight and the siren. The trooper repeatedly tried to block appellant’s vehicle but was unable to do so until the appellant drove up into his own yard. Appellant then picked up a stick of wood, the trooper radioed for assistance, and a struggle ensued. Officers from the Marion Police Department arrived and assisted the trooper. The four of them succeeded in getting the appellant into the patrol car, but not before two of the officers suffered bites from the appellant.

I

The appellant first contends that his initial arrest was unlawful under the provisions of Code of Alabama 1975, § 32-1-4, which provides that upon being arrested for a traffic violation, a person shall be released from custody upon giving written bond unless that person is “charged with an offense causing or contributing to an accident resulting in injury or death to any person ...” or that person is “charged with driving while under the influence of intoxicating liquor or of narcotic or other drugs ...” or unless “the arresting officer shall have good cause to believe [the arres-tee] has committed any felony....”

The officer in this case had informed the appellant that he was under arrest for reckless driving. Garner said he was getting the alcohol sensor ready to administer an alcohol test. Presumably the outcome of this test would have determined whether or not the charge to be brought against appellant was DUI.

The trooper in question possessed a clear understanding of this statute, as shown by the following questions and answers from the trial transcript:
“Q: All right. Now Trooper Garner, I got confused earlier. You said something about people signing a bond when there was a traffic violation.
Yes. <J
What did you mean by that exactly? O’
When we issue a citation for speeding or reckless driving, we allow a person to sign an appearance bond.
And they aren’t arrested and taken to Jail? £>
It’s actually an arrest, but they’re allowed to sign their own bond.
What about if you have an opinion as to whether or not someone is intoxicated, what do you do? <y
They’re brought in. <d
Where are they brought in to? o*
Brought in to the Police Department.” <⅞

It is apparent that if the appellant had proved to be intoxicated, the trooper intended to take him to jail. If he had proved not to be intoxicated, the trooper intended to allow him to sign an appearance bond at the place of arrest. A law enforcement officer is justified in effecting an arrest for reckless driving after observing a driver speeding and weaving on the road. No doubt many DUI cases begin in precisely this manner.

II

Appellant further contends that the record fails to indicate that he was given an opportunity to speak before sentence. Even though the court reporter’s transcript does not show the allocutus, the judgment entry at page 96 of the record does. In the case of Tuberville v. State, 348 So.2d 868 (Ala.Cr.App.1977), Judge Bookout states:

“In a felony case the judgment entry must show the allocutus. McCray v. State, 46 Ala.App. 588, 246 So.2d 475 (1971). The judgment entry in “the instant case satisfies that requirement of the law.”

Thus, wc find no merit in appellant’s contention.

Ill

Finally, the appellant contends that the sentence given him was illegal. The maximum sentence for escape in the third degree is 1 to 10 years’ imprisonment in the penitentiary according to § 13A-10-33, Code of Alabama 1975, which defines escape as a Class C felony. The sentence in this case was ten years’ imprisonment. This is a legal sentence for the offense. It appears however, that the sentencing was performed with the intent to apply the Habitual Felony Offenders Act for purposes of enhancement.

The record shows that the district attorney gave notice of intention to proceed under the Habitual Felony Offenders Act and told the court that appellant had committed two prior felonies both in Perry County, Alabama, and both resulting in five-year sentences. There is, however, an absence of any proof of these prior convictions in the record. We must consider that in the absence of these prior felonies, the sentence might have been different. The sentence enhancement provided for under § 13A-5-9 is as follows:

“In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows: “(1) On conviction of a Class C felony, he must be punished for a Class A felony;

The sentencing court, relying on the representations of the district attorney, was under the impression that ten years was the least penalty provided by law in this case. In fact, it was the greatest penalty provided by law, unless there was proof of prior felonies, and since no proof of appellant’s prior convictions appears in the record, the case is remanded to the trial court for resentencing.

The state’s motion to supplement the record by adding certified copies of the prior convictions seeks to add judgment entries in cases CC-77-69 and CC-81-141, Perry County, Alabama. These judgment entries are properly certified by the clerk of the circuit court. There is no contention that they were offered in evidence previous to sentencing in this case. The issue presented therefore, is whether a defendant’s punishment may be enhanced under the Habitual Felony Offenders Act by reference to prior convictions, certified copies of which are not offered until after appeal is perfected. We hold that the state’s burden of proof in the trial court is not met by providing certified 'copies of the convictions to the appellate court.

AFFIRMED; REMANDED FOR SENTENCING.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    William George WABBINGTON v. STATE.
    6 Div. 69.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-328.

      Arthur Parker, Birmingham, for appellant.'
    Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Presiding Judge.

William George Wabbington, the appellant, was indicted and convicted for robbery in the first degree in violation of Alabama Code Section 13A-8-41 (1975). He was sentenced as an habitual offender to a term of life without parole. Seven issues are argued on appeal.

I

We find no variance between the averments of the indictment and the proof at trial. The indictment alleged “the theft of three (8) hams of the aggregate value of Thirty-Nine Dollars ($39.00).”

Arthur Lee Walker, the manager of Consumer Foods grocery store in Tarrant City, testified on cross examination that he did not tell the grand jury that “3 hams worth $39” were taken but only testified that “it was 3 kinds of hams.”

At the close of the State’s evidence, defense counsel made an oral motion for a judgment of acquittal. One of the grounds argued in that motion was that the State’s evidence was insufficient because of the absence of any testimony before the grand jury as to the value and the number of hams stolen. On appeal, Wabbington argues that since the general rule is that a variance exists if matters alleged to be unknown to the grand jury were actually known to them, DeFranze v. State, 46 Ala.App. 283, 241 So.2d 125 (1970) (variance where indictment alleged description of money as being unknown where proof showed that description was in fact known by the grand jury), the reverse of that rule also constitutes a variance, and there is a variance if the proof shows that an allegation in the indictment was not known to the grand jury. The substance of this argument is that the State presented no legal evidence to the grand jury of the value and amount of property stolen. However, this contention is not the law in this state.

Where it appears that one witness was examined by the grand jury, public policy forbids inquiry into the sufficiency of the evidence before the grand jury. Loyd v. State, 279 Ala. 447, 449, 186 So.2d 731 (1966); Hall v. State, 134 Ala. 90, 32 So. 750 (1902). “(T)he general rule is that when competent witnesses are examined by the grand jury or the grand jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged.” Fikes v. State, 263 Ala. 89, 97, 81 So.2d 303 (1955). A defendant may not ordinarily challenge an indictment valid on its face on the ground .that the State presented insufficient eyidence. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956); United States v. Short, 671 F.2d 178, 182-83 (6th Cir.), cert. denied, 457 U.S. 1119, 102 S.Ct. 2932, 73 L.Ed.2d 1332 (1982). The weight or sufficiency of the evidence on which the grand jury acted in finding an indictment cannot be inquired into. Wright v. State, 421 So.2d 1324 (Ala.Cr.App.1982). Here, the testimony shows that Walker told the grand jury that “3 kinds of ham” were stolen. Since he was a competent witness, the sufficiency of the evidence before the grand jury is not a proper subject of inquiry.

II

Wabbington argues that the use of the aliases designated and alleged in the indictment was prejudicial and prevented him from receiving a fair trial. In this regard, the indictment charged “WILLIAM GEORGE WABBINGTON, alias RONNIE LEE WABBINGTON, alias WILLIAM GEORGE WEBBINGTON, alias RANDE WABBINGTON, alias LEON JONES, alias STANLEY WILLIAMS, alias ROBBINE WABBINGTON, whose name is otherwise unknown to the grand jury.”

Prior to trial, Wabbington filed a motion to strike the aliases. Although the trial judge overruled that motion, in his opening instructions to the jury he read the indictment omitting any reference to the aliases.

The motion to strike was renewed after the State had rested its case. At that time the trial judge stated:

“I always resented putting all of these aliases in. There’s not one iota of evidence about aliases in here. It’s just a waste of time. It’s a prejudicial thing. People get this aliases business in their mind and they think something. I’m going to grant the thing (motion to strike). I’m going to tell them it’s struck. I’m not going to let the indictment go back with them”

When the assistant district attorney was making her closing arguments to the jury, the judge stated:

“Ladies and Gentlemen, a motion has been made to eliminate and to strike and for you not to consider the aliases on this case. This is not going out anyway so it doesn’t matter, but disregard the aliases. If you want to eliminate them it’s alright with me.”

After the judge had instructed the jury on the law they were to apply in the deliberations, defense counsel made the following objection to the verdict forms:

“MR. PARKER: First, Judge, we object to the verdict forms. I understood you struck the aliases and then you used the name William George Wabbington which is one of the aliases.
“THE COURT: That may be. That’s the way it’s listed in the indictment and that’s why I used it.
“MR. PARKER: All the evidence is that Ronnie Wabbington is the Defendant’s proper name. We except that.”

Before the jury retired to begin deliberations, the judge cautioned them:

“Sometime yesterday, probably at the conclusion of the State’s case, I told you to disregard all the aliases. I am retracting that and telling you this, the name of the Defendant is Ronnie Wabbington. Ronnie Wabbington is named as one name in the aliases, one of the aliases. The only name that’s involved in this is the name of Ronnie Wabbington. Disregard all the others.”

At the hearing on the motion for new trial, Wabbington proved that there had been no testimony offered of any aliases before the grand jury. The general rule is that it is not necessary for the evidence to show that the defendant was known or called by his unnecessarily alleged aliases, where the defendant is identified by proof as to one name designated in the indictment. Hogan v. State, 346 So.2d 1184, 1187 (Ala.Cr.App.1977). The rule on the use of aliases in the indictment was stated in United States v. Clark, 541 F.2d 1016, 1018 (4th Cir.1976).

“If the Government intends to introduce evidence of an alias and the use of that alias is necessary to identify the defendant in connection with the acts charged in the indictment,' the inclusion of the alias in the indictment is both relevant and permissible, and a pretrial motion to strike should not be granted_ However, if the prosecution either fails to offer proof relating to the alias or alias, though proven, holds no relationship to the acts charged, a motion to strike may be renewed, the alias stricken and an appropriate instruction given the jury.” (citations omitted).

See also Harris v. State, 48 Ala.App. 723, 725, 267 So.2d 512 (1972).

Although the use of aliases in some cases may be permissible and even necessary, the practice of using aliases not relevant to identifying the defendant has been criticized.

“We strongly disapprove the practice of including aliases in indictments. As the court stated in Petrilli v. United States, 129 F.2d 101, 104 (8th Cir.1942), cert. denied, 317 U.S. 657, 63 S.Ct. 55, 87 L.Ed. 528 (1942), ‘The preliminary reading of the aliases in an indictment is not a practice which should be encouraged in an ordinary criminal prosecution, but rather one which should be curbed.’ Only when proof of an alias is relevant to identifying the defendant should a court allow its inclusion in the indictment and its subsequent introduction at trial.” United States v. Wilkerson, 456 F.2d 57, 59 (6th Cir.1972).

However, even where the prosecution does not offer proof of the aliases, and “it appears that the principal use to which the aliases were put was to indicate to the jury that people who use aliases are inherently suspect”, error with respect to the use of the aliases in the indictment or the prejudicial effect of the prosecution’s references to all the aliases may not warrant a reversal in view of the strength of the evidence against the defendant. Wilkerson, 456 F.2d at 59.

We find that the mere use of aliases in the indictment, although subject to criticism, is not always so inherently prejudicial as to warrant a reversal. Although the State did not show that the aliases were material in identifying Wabbington, it does not appear from the record that the prosecutor attempted to draw inferences prejudicial to Wabbington in her argument to the jury. The particular aliases used in the indictment carried no incriminating or corrupt connotation. The trial judge instructed the jury to disregard the aliases and the jury did not see the indictment. The State presented a solid case based on eyewitness identification. Considering all these factors, we find that the use of the aliases in the indictment is not a basis on which to predicate a reversal in this case.

III

The trial judge refused to give Wab-bington’s written requested charges concerning “identification and reasonable doubt of the accuracy of the witnesses’ testimony.”

The trial judge carefully and clearly instructed the jury on their duty to judge the credibility of each witness and determine whether or not they could “believe” each witness. With reference to the issues presented in requested charges 1, 2, and 14, he specifically charged that if they had a reasonable doubt that the identification was wrong they should find the defendant not guilty. Covering the material in requested charge number 5, the judge charged that the jury may consider any contradictory statements a person may have made in determining the weight and credibility of a witness. Where the import and intent of a defendant’s requested charge are covered in the oral instructions of the trial judge, the refusal of the requested charge does not constitute reversible error even though the oral charge is not in the actual language of the request. White v. State, 410 So.2d 135, 136 (Ala.Cr.App.1981). “The oral charge need not state the legal principle exactly as it appears in the requested charge. The principle expressed in the requested charge need only be fairly and substantially covered in the trial court’s oral charge.” Tyson v. State, 361 So.2d 1182, 1188 (Ala.Cr.App.1978).

IV

Wabbington’s requested charge number 6 stated, in substance, that the jury could not convict if they found that the circumstances only led to a suspicion of the defendant’s guilt. The trial judge charged the jury on circumstantial evidence and reasonable doubt. The judge charged that the defendant should not be convicted “unless the evidence excludes to a moral certainty every reasonable conclusion but that of the Defendant’s guilt.” We think that this was sufficient. Tatum v. State, 20 Ala.App. 24, 100 So. 569 (1924).

V

Wabbington’s requested charge number 19 stated, in substance, that, notwithstanding the defense of alibi, the burden of proof does not shift from the State. This charge was properly refused.

Instructions which place the burden on the accused to prove alibi are improper and should not be given. Ragland v. State, 238 Ala. 587, 591, 192 So. 498 (1939). Here, the trial judge instructed the jury on alibi and at the conclusion of his charge on that subject instructed that “this in no way puts any burden on the Defendant. The burden is on the State throughout this case to convince you beyond a reasonable doubt.”

VI

In cross examining two State witnesses, defense counsel used a transcript of a “prior hearing” in an attempt to impeach the witnesses’ trial testimony. In the jury’s presence, the prosecutor asked defense counsel if she could see the transcript. Wabbington argues that this request constitutes prosecutorial misconduct that required a mistrial. This was a matter within the sound discretion of the trial judge which will not be overturned unless palpably erroneous. Brinnon v. State, 376 So.2d 769, 772 (Ala.Cr.App.), cert. denied, Ex parte Brinnon, 376 So.2d 772 (Ala.1979). We find nothing improper in the prosecutor’s conduct. Pate v. State, 415 So.2d 1140 (Ala.1981).

VII

A prior felony conviction which occurred before the effective date of the Habitual Felony Offender Act is properly used to enhance punishment. James v. State, 405 So.2d 71, 74 (Ala.Cr.App.1981). At the sentencing hearing the State introduced five prior convictions involving controlled substances, burglary (auto), grand larceny (2), and forgery. Wabbington’s sentence to life without parole does not constitute cruel and unusual punishment under Solem v. Helm, — U.S. -, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637 (1983), when the proportionality analysis under the Eighth Amendment is guided by the objective criteria set out therein including “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.” Considering the fact that the present appeal is from a conviction of armed robbery, we find that the sentence is not constitutionally disproportionate.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

      . The written charges Wabbington requested were:
      "1. The Court charges the jury that if the guilt of the Defendant depends upon the testimony of the State witness; and there is a reasonable doubt of the accuracy of this witness’s testimony, then you cannot convict the Defendant.”
      “2. The Court charges the jury that you are not authorized to find a verdict of guilt on the testimony of a single witness if there is a reasonable doubt as to the accuracy of the witness’s testimony."
      "5. The Court charges the jury that if you find from the evidence that any witness has made contradictory statements as to the material facts in this case, or any of such facts, you may look to these contradictory statements in order to determine what credence you will give to the testimony of said witness.”
      "14. The Court charges the jury that if there is a reasonable doubt as to the identification of the Defendant as the person who committed the offense alleged in the Indictment, then you cannot convict the Defendant.”


author: TYSON, Judge.

text:
    Terry Wade McDANIEL v. STATE of Alabama.
    6 Div. 128.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    Certiorari Denied March 2, 1984 Alabama Supreme Court 83-299.

      Arthur Parker, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Leura J. Garrett, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Terry Wade McDaniel was charged with intentionally causing the death of Michael McLaughlin, “by stabbing him with a knife,” contrary to § 13A-6-2, Code of Alabama 1975.

The jury found the appellant “guilty of manslaughter as charged” and after a sentencing hearing at which two prior felonies were placed in evidence before the court, the appellant was sentenced to 16 years’ imprisonment in the penitentiary.

Four issues arise from the stabbing of Michael McLaughlin by Terry McDaniel on the .afternoon of February 4, 1982, after the two had been together drinking beer for a period of time that day. The evidence relating to the homicide will be discussed with the issues as hereinbelow set forth.

I

Appellant contends that Fairfield Police Officer Charles Estes lacked probable cause to effect the arrest of the appellant, Terry Wade McDaniel.

The principal issue here is whether or not Officer Estes had the right to rely upon and did, in fact, rely upon information communicated to him by his superior, Sergeant Manuel R. King, prior to effecting the arrest of the appellant.

The Supreme Court of the United States in Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), clearly indicates that where the arresting officer did not have probable cause for the arrest of the defendant, he may nevertheless rely upon information relayed to him by a superior officer, provided that, in fact, the superior officer upon whom he relies, had the necessary basis for the issuance of a legal warrant. In making this determination, a magistrate must look to the source of information in the superior officer and the reliability and credibility of such information. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965).

As heretofore noted by this court in Hadley v. State, 391 So.2d 158 (Ala.Cr.App.1980), cert. striken, 391 So.2d 162 (Ala.1980), information supplied by citizen informants is accorded more reliability than that provided by criminal confidential informants who may expect some concessions or gain in exchange for such information.

In the case at bar, Sergeant King testified that he received a telephone call from Jean McDaniel during the afternoon of February 4, 1982, at approximately 2 o’clock. He related that she advised him of receiving a telephone call from the appellant, Terry McDaniel, that he was crying and stated to her that he “had cut somebody and didn’t know whether they were dead or not”, that he did not know where the victim was and that he (McDaniel) was at the Elk’s Club in Fairfield. Sergeant King then related that he telephoned Officer Estes who was investigating an auto accident at Lloyd Noland Hospital where one Mike McLaughlin was involved and that Estes informed him that McLaughlin was dead. He related that he asked Estes to find out from the doctor as to the cause of death which he did and informed King that McLaughlin was a victim of a knife wound. Sergeant King stated that he then directed Estes to proceed to the Elk’s Club in Fairfield and pick up Terry McDaniel and bring him to headquarters “so that we can find out more about it.” Moreover, he stated that he received a pocket knife from Estes which was subsequently identified in court. This knife contained a reddish-looking substance on the blade which appeared to be human blood. Sergeant King stated that he knew there was a very bad relationship between Terry McDaniel and Mike McLaughlin and that he had once heard McDaniel, while he was spending time in jail, make a threat that he would kill Mike McLaughlin. There was some dispute at trial between Sergeant King’s testimony and that which he had given at an earlier hearing. We believe that this was a matter which was properly submitted to the trial judge and his judgment in this matter must be given great weight on appeal. Lentini v. State, 406 So.2d 998 (Ala.Cr.App.1980), cert. denied, 406 So.2d 1003 (Ala.1981).

We have carefully examined this record and the testimonies presented at trial and find that the trial court properly resolved this issue determining that Officer Estes made a proper arrest of the appellant and that there was in fact probable cause for the arrest of the appellant based on the information hereinabove set forth. Robinson v. State, 361 So.2d 379 (Ala.Cr.App.1978), cert. denied, 361 So.2d 383 (Ala.1978); Aaron v. State, 54 Ala.App. 71, 304 So.2d 625 (Ala.Cr.App.1974).

II

The appellant next argues that the statement given by the appellant, Terry McDaniel, to the officers on the evening of February 4, 1982 at Fairfield Police Headquarters was involuntary and not the product of a rational intellect because he had not been properly advised of his constitutional rights and, moreover, that his request for counsel or right to counsel had not been honored by the officers involved.

Again, the evidence on this issue is conflicting. The appellant was a 24-year-old white male who appeared to be in good health. Soon after being brought to police headquarters he talked with Officer Mosely who testified that he read the appellant his Miranda rights and also advised him that he was charged with murder. (R. 41). Officer Mosely further testified that neither he nor any other officer threatened, intimidated, abused or used any coercive tactics to the appellant in order to obtain a statement from him.

There was absolutely no testimony presented that the appellant was suffering from any physical or mental disability. The appellant’s contention primarily is that he was upset and that he had requested to see an attorney. The police officers point out, however, that appellant was allowed to make a telephone call and that his father and stepmother came to the Fairfield Jail soon after the telephone call was made and talked with appellant and they were advised that his father had talked with the Honorable Arthur Parker who had advised McDaniel not to make any statement. The father relayed this to his son, the appellant, in the officers’ presence. This was on the evening of February 4, 1982, his father’s visit having taken place somewhere between 8 and 8:30 that evening. The appellant at this point had twice been given his Miranda rights by the testimony given by the police officers. The officers stated that they knew his father and that the appellant did not ask to see his lawyer that evening.

It should be herein noted that the appellant testified himself on this issue. "I was so tore up I really don’t remember what went on to tell you the truth the whole time I was there”, (R 73), but acknowledged that he did talk with the officers on the evening in question and also talked with his parents while at the jail.

The testimony presented through Officer Mosely indicated that the appellant’s statement was given at approximately 9:35 p.m. on the evening of February 4, 1982, at the Fairfield Jail. The statement indicated that McDaniel and the deceased had been drinking beer together for some hours at several different places before getting into the argument. The appellant contended that the deceased drew a knife while they were in the parking lot near a Shoney’s Drive In and that the appellant then pulled his knife and just “stabbed him in the chest area” and that the victim got back into his car and drove away. A steak knife was later retrieved from the automobile of the victim, but no pocket knife belonging to the victim was ever found, nor did the steak knife appear to contain blood, though blood was found in the victim’s car on the door handle and seat.

Under the testimony presented in this record, we are of the opinion that the trial court properly determined that the appellant gave a knowing, voluntary and intelligent statement after being properly advised of his constitutional rights. The trial judge properly determined this matter was voluntary. Hardy v. State, 409 So.2d 996 (Ala.Cr.App.1982), Snider v. State, 422 So.2d 807 (Ala.Cr.App.1982).

HI

The appellant next asserts that the jury should have been charged on criminally negligent homicide because he claims that the deceased was killed in self defense. This charge was properly refused under the evidence presented in this cause. Daly v. State, 401 So.2d 274 (Ala.Cr.App.1981); Rogers v. State, 417 So.2d 241 (Ala.Cr.App.1982) and Quates v. State, 439 So.2d 199 (Ala.Cr.App.1983).

Moreover, the charge as herein tendered contained a misspelled word, “homocide”. Thus, such charge would have been properly rejected on this basis also. Akers v. State, 399 So.2d 929 (Ala.Cr.App.1981).

The trial judge gave several of the appellant’s written requested charges and refused several others. We have carefully examined each of these and determined that they were either covered by the oral charge of the court or other given written charges, inapplicable or abstract under the evidence presented at trial or incorrect statements of applicable law. Therefore, the remaining charges were properly refused at trial. Section 12-16-13, Code of Alabama 1975.

IV

Appellant contends that he was not properly sentenced in that the trial court considered felony convictions which occurred prior to the effective date of the current Alabama Criminal Code which has the effective date of January 1, 1980.

This court has upheld the constitutionality of the Alabama Habitual Felony Offender Act in an opinion written by Judge De-Carlo in Watson v. State, 392 So.2d 1274 (Ala.Cr.App.1980), cert. denied, 392 So.2d 1280 (Ala.1981). Moreover, this court has expressly rejected the argument that such act violates the United States Constitution’s prohibition against cruel and unusual punishment because it retroactively imposes additional punishment for offenses previously committed. Serritt v. State, 401 So.2d 248 (Ala.Cr.App.1981), cert. denied, 401 So.2d 251 (Ala.1981) and Smith v. State, 401 So.2d 251 (Ala.Cr.App.1981), cert. denied, 401 So.2d 257 (Ala.1981). The precise argument herein made was expressly rejected by this court in Lidge v. State, 419 So.2d 610 (Ala.Cr.App.1982), cert. denied, 419 So.2d 616 (Ala.1982). Thus, both of appellant’s prior convictions for grand larceny and escape were properly considered by the trial court in imposing punishment herein.

As noted in Lidge, supra, and Julius v. State, 407 So.2d 141 (Ala.Cr.App.1980), reversed on other grounds, 407 So.2d 152 (Ala.1981), the trial court’s are specifically authorized to consider the records of Jefferson County convictions which are set forth on trial docket sheets and have not been reduced to “minute entries.” Ingram v. State, (1982) 437 So.2d 128 (Ala.Cr.App.1982), cert. denied (Ala. September 2, 1983).

We have also considered appellant’s argument that the judgment which shows the plea of guilty to the escape charge did not comply with the requirements of Amendment 37 of the Constitution of Alabama 1901. There is nothing on the face of State’s Exhibit Two, which shows this conviction, to indicate that it does not comply with Amendment 37. Thus, the trial court did, in fact, properly consider both of appellant’s prior convictions in setting sentence in this cause.

This court has carefully considered each argument made and find same to be without merit. The judgment below is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . The officers’ testimony indicates that the appellant initiated the conversation because he "wanted to get the matter off his chest.”