author: ADAMS, Justice.

text:
    Donald B. WILLIAMS v. MOBILE OIL EXPLORATION AND PRODUCING SOUTHEAST, INC.
    82-1109.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      Gregory Friedlander of Marr & Friedlan-der, Mobile, for appellant.
    W. DeWitt Reams and Nancy Perry Leslie of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
   ADAMS, Justice.

Defendant Donald Williams appeals from the Mobile County Circuit Court’s judgment that: 1) quieted title in the plaintiffs to real property located in Mobile County, Alabama, and 2) allowed plaintiffs a redemption in the property which was sold due to the non-payment of taxes. Williams contends that the trial court committed several errors which require that the judgment be reversed. We disagree, and affirm the decision of the court below.

This case deals with multiple sales of the same land. The pertinent facts are as follows:

Mack Holder was the original owner of the land, and, at his death was survived by several heirs, including his niece, Thelma Holder. In 1978, the heirs initiated legal proceedings to clear the title to the property. In February of 1978, a guardian ad litem was appointed by the court to protect the interests of any unknown parties under disability.

Before the proceedings ended, the State of Alabama purchased the property at a tax sale on June 12, 1979. The State subsequently sold the property to Donald Williams on February 8, 1980.

On July 12, 1979, a decree was entered by the Circuit Court of Mobile County in the proceedings brought by the heirs of Mack Holder. This decree was later amended, and a final decree was entered on March 31, 1980. The decree listed as plaintiffs those persons who owned the property, along with their percentages of ownership. One of those named was Elizabeth Payton, who the court found owned a 10% interest in the land.

Elizabeth Payton, however, had executed a quitclaim deed to Thelma Holder, purportedly selling her interest in the land for $1,000.00. The deed was executed on January 8, 1980, and recorded on April 15, 1980.

Thelma Holder testified that, since the time the court entered its decree in March 1980, she and the other heirs of Mack Holder had claimed the property as their own, visited it from time to time, always claimed ownership of it, and had never given up possession of the property.

On or about February 2, 1982, Elizabeth Payton, for consideration of ten dollars, purportedly sold her interest in the property» by quitclaim deed, to Donald Williams.

Donald Williams testified that, early in 1980, after he bought the property from the State of Alabama, he went to the land and posted “no trespassing” and “no hunting” signs. He did not return to the property until February 1983, but did have his brother, Thomas Killons, visit the property from time to time. The property was uninhabited for a few years prior to this action.

Two other witnesses, Mamie Whitfield and Richard Ogburn, testified that they had each visited the property after Donald Williams had supposedly posted the signs, but neither had seen any of these signs. Mamie Whitfield testified that she was not aware of any signs being posted until the day of the trial. Richard Ogburn testified that he made approximately eight to ten trips to the land over a two-and-one-half-year period, but never saw any signs.

After listening to the testimony and considering all the evidence, the trial judge, sitting without a jury, found that the plaintiffs were entitled to the relief they requested and quieted title in them. In its order of July 19, 1983, the trial court made the following findings of fact:

(1) At the time of the filing of this suit plaintiffs were in legal possession of the subject lands;
(2) At the time of the filing of the complaint herein, there was no other suit pending to contest the plaintiffs’ right to or interest in the said lands;
(3) Title in the plaintiffs was established by a decree of the Mobile County Circuit Court entered on the 31st day of March 1980.
(4) That on the 12th day of June 1979, the above-described lands were sold for nonpayment of 1978 taxes to the State of Alabama, which lands were assessed in the name of Elizabeth Payton, who at that time owned an interest in said lands along with the plaintiffs herein, but who subsequently sold her 10% undivided interest to plaintiff, Thelma Holder, by a quitclaim deed dated January 8, 1980;
(5) That on the 16th day of January 1980, said tax certificate of the State of Alabama was purchased by the defendant, Donald B. Williams, by paying to the State of Alabama $191.78 which amount included taxes and interest for the years 1978 and 1979;
(6) That on the 20th day of December 1982, the said defendant, Donald B. Williams, obtained a tax deed from John L. Moore, Probate Judge of Mobile County;
(7) That the said defendant, Donald B. Williams, continued to pay taxes on said lands for the years 1980 in the amount of $186.01; 1981 in the amount of $194.37; and, 1982 in the amount of $207.39.

Donald Williams appealed from this order. Subsequent to the filing of this appeal, on October 11, 1983, Mobil Oil Exploration & Producing Southeast, Inc. (Mobil Oil), was substituted as a party appellee in this action.

Appellant Donald Williams raises six issues for our review which are:

1. Whether the trial court committed reversible error when it failed to join Mobil Oil, which Williams contends was an indispensable party.
2. Whether the plaintiffs in this case were the original owners of the land, or their successors in interest, and therefore entitled to redeem the property.
3. Whether there was an actual tender of redemption made as required by Alabama Code 1975, § 40-10-80.
4. Whether appellee Mobil Oil perpetrated a fraud on the trial court.
5. Whether the trial court erred in ruling that appellant Donald Williams was not in possession of the property.
6. Whether the decree quieting title in the original plaintiffs in the prior action is valid against appellant Donald Williams, in light of his claim that he had no notice of the proceedings and was not joined as a party in the action pursuant to the Alabama Rules of Civil Procedure.

I, II, and IV

Appellant Williams argues that Mobil Oil was an indispensable party because it was the true owner of the land, and that plaintiffs below were, therefore, not entitled to redemption, and directs this court’s attention to a deed from the plaintiffs below to Mobil Oil. Williams further contends that, since Mobil Oil was not a party to the action, it perpetrated some sort of fraud on the trial court. We disagree with each of these assertions.

It is well settled in Alabama that a deed is not effective until it is delivered to the grantee. Pittman v. Pittman, 247 Ala. 458, 25 So.2d 26 (1946). The record does not contain any evidence that there was a delivery of a deed to Mobil Oil. One of the trial court’s specific findings of fact was that the plaintiffs (the heirs of Mack Holder) were in legal possession of the subject land; that finding resolved issues one and two against Williams. Since the evidence was presented ore tenus, we uphold the trial court’s findings, inasmuch as they were not plainly and palpably erroneous, and were supported by the evidence and reasonable inferences therefrom. Eagerton v. Courtaulds North America, Inc., 421 So.2d 104 (Ala.1982).

Even if the trial court had found that there was delivery of a deed transferring ownership to Mobil Oil, it still was not an indispensable party to the suit. The Alabama Code allows redemption by “the person against whom the taxes were assessed or the owner of the land at the time of the sale, his heir, devisee, vendee or mortgagee_” Code 1975, § 40-10-83. Mobil Oil did not belong in any of these categories. Thus, the proper parties for redemption were before the court, and Mobil Oil was not an indispensable party to be joined under Alabama Rule 19.

There is not even a scintilla of evidence that Mobil Oil perpetrated a fraud on the trial court in not seeking joinder in this action. Therefore, appellant cannot prevail on this issue.

Ill and V

Williams maintains that Mobil Oil was required to make a tender in order to be entitled to redemption of the land, according to Code 1975, §§ 40-10-78, -80. Section 40-10-78, however, is inapplicable in this case, as its use is dependent upon the use of § 40-10-76 or § 40-10-77, neither of which is relied on here. Section 40-10-80, Code 1975, states:

If, in any action brought to recover the possession of lands sold for taxes by or against the purchaser or other person claiming under him, it is shown that the party claiming adversely to the tax title, being entitled to redeem, made within the time allowed for redemption the payment required by law for the redemption of such lands, or made tender thereof, and the amount of such tender has been paid into court for the opposite party, judgment must be rendered in his favor for the costs accruing after such payment or tender, except as against the state. [Emphasis added.]

The statute allows either payment or tender thereof. There is ample evidence to show payment into the court of the amount due, thus satisfying the statute.

A “short statute of limitations” is contained in § 40-10-82, Code 1975, which states that the redemption action must be filed within three years from the date when the purchaser became entitled to demand a deed for the property. Several of our cases hold that this statute does not begin to run until the purchaser is in adverse possession of the land and has become entitled to demand a deed to the land. See Quinn v. Hannon, 262 Ala. 630, 80 So.2d 239 (1955); Tanner v. Case, 273 Ala. 432, 142 So.2d 688 (1962); Grice v. Taylor, 273 Ala. 591, 143 So.2d 447 (1962).

Williams maintains that he was in adverse possession of the property. He relies on the proposition that adverse possession is achieved when one uses the land in a manner consistent with its character. See Turnham v. Potter, 289 Ala. 685, 271 So.2d 246 (1972); O’Connor v. Rabren, 373 So.2d 302 (Ala.1979). Williams’s acts of taking possession of the land consisted at most of a couple of visits to the property, posting some “no trespassing” and “no hunting” signs, paying taxes on the property after he bought it from the State, and having his brother visit the property from time to time.

When a party claims title to land by way of adverse possession, the presumption is in favor of the record owner, and a heavy burden of proof rests on the one claiming by adverse possession. Knowles v. Golden Stream Fishing Club, Inc., 331 So.2d 253 (Ala.1976); Murphy v. Leatherwood, 221 Ala. 61, 127 So. 843 (1930); Lucy v. Tennessee & C.R.R., 92 Ala. 246, 8 So. 806 (1890).

Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 619 (Ala.1980).

The above-stated burden has not been met by Williams. The acts of possession he claims to have performed do not amount to actual adverse possession.

Mere casual acts of ownership as where one authorized persons to go upon land to cut timber, payment of taxes, and requesting another to look after the premises do not constitute adverse possession. [Citations omitted.]

Tensaw Land & Timber Co. v. Rivers, 244 Ala. 657, 15 So.2d 411 (1943).

The acts of possession in the instant case are very similar to those in the Rivers case. Williams said that he posted some signs, but no one else had seen these signs except his brother. In any event, these acts of possession by Williams and his brother were few and far between, and when acts are rare and widely separated in time, as are these, they do not constitute adverse possession, but rather are merely transitory trespasses. Bradley v. Gordon, 240 Ala. 556, 200 So. 736 (1941); Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972); Courtney v. Boykin, 356 So.2d 162 (Ala.1978). Except as to these signs, which nobody saw, the record contains no evidence that Williams tried to notify the plaintiffs of his claim of ownership in the property. Based on the facts before us, we agree with the trial court that Williams was not in possession of the property and, therefore, that a proper redemption was made.

VI

Williams’s final contention is that the original decree quieting title in the plaintiffs is not binding on him, because he had no notice of the proceedings and was not joined as a party in the action. During his testimony at trial, however, Williams admitted to having knowledge of the proceedings and decree in 1978 or 1979. An initial decree was entered in the action on July 12, 1979, and Williams did not purchase the property from the State until February 8, 1980; therefore, he had either actual or constructive notice of a suit pending in the circuit court before he purchased the property. After listening to the evidence presented, the trial court found that Williams had the required notice, and, absent any showing of plain and palpable error on the trial court’s part, we agree with its decision.

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

AFFIRMED.

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


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Julius A. MOSELEY v. COMMERCIAL STATE BANK, a State Banking Corporation, of Donaldsonville, Georgia.
    82-1151.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      C.R. Lewis for Lewis & Brackin, Dothan, for appellant.
    James D. Farmer of Farmer & Farmer, Dothan, for appellee.
   FAULKNER, Justice.

Commercial State Bank of Donaldson-ville, Georgia, brought this action against Southern Distilleries, a partnership, and against the partners of Southern Distilleries for money due on several promissory notes executed by Southern Distilleries. One of the partners, Julius Moseley, appeals from a judgment against him for $303,241.52.

On September 17, 1980, five individuals formed a partnership named Southern Distilleries in order to engage in the business of producing fuel grade alcohol (gasahol). The partners signed an agreement providing that any three partners having an aggregate interest in the partnership of at least 60% were authorized to borrow money and execute promissory notes on behalf of the partnership. The agreement also provided that any persons dealing with any three partners could “conclusively presume that any instrument executed by such partners is ... binding on the partnership and the partners thereof.”

On December 19, 1980, three partners, Adams, Fitch and Moulthrop, executed two promissory notes on behalf of Southern Distilleries to Commercial State Bank. Both notes came due on March 19, 1981. One note was given in exchange for a loan in the amount of $98,784.00. The other note was given in exchange for a line of credit in the amount of $60,000.00. An advance in the amount of $41,400.00 was made by the bank to Southern Distilleries on the second note prior to the date of maturity. Southern Distilleries failed to satisfy either note when they came due.

On April 2,1981, an amended partnership agreement was executed by the five original partners and by three other individuals, including the appellant, Moseley. The purpose of the amendment was to “change the percentage interests of the partners and to admit new partners.” The document indicates that Moseley contributed $100,000.00 to the capital account of the partnership and acquired a “profit and loss interest in the partnership” slightly in excess of 6%. The amended agreement provides that the provisions of the prior agreement were to remain in full force and effect.

On July 21, 1981, Southern Distilleries paid the interest due on the outstanding notes and Adams, Fitch, and Moulthrop executed a new note on behalf of Southern Distilleries to the bank in the amount of $140,000.00. The bank marked the notes dated December 19 “paid” and returned them to Southern Distilleries.

Southern Distilleries failed to satisfy the July 21 note when it matured and the bank brought this action to enforce payment. In support of his contention that the trial court improperly granted the bank’s motion for a summary judgment, Moseley argues:

(1) that the note is void because it was entered into in Alabama by a foreign corporation which failed to qualify to do business in Alabama;
(2) that the action on the note cannot be brought in the courts of Alabama by the bank because it has failed to qualify to do business here; and
(3) that Moseley is not personally liable for the debt because it pre-existed his becoming a partner in Southern Distilleries.

Under Alabama law, a foreign corporation must obtain a certificate of authority from the Secretary of State, authorizing it to do business in Alabama. Alabama Const. § 232. Section 10-2A-247(a), Code of Alabama, provides that if a foreign corporation transacts business in Alabama and enters into contracts in Alabama without first obtaining a certificate of authority to transact business here the contract will be held void at the action of the foreign corporation to enforce the contract or at the action of a party claiming through the foreign corporation.

Commercial State Bank is a foreign corporation which has not qualified to do business in Alabama. One of its officers prepared the note in question and took it to Houston County, where it was signed. Based on those facts, Moseley argues that the contract is void and that the bank should not have been permitted to bring an action based on the contract in Alabama. See Birmingham Term. Assoc. v. United Produce & Products Equipment Co., 289 Ala. 80, 265 So.2d 863, 865 (1972); Calvert Iron Works, Inc. v. Algernon Blair, Inc., 284 Ala. 655, 657, 227 So.2d 424 (1969).

We decline to reach the merits of the question whether Commercial was illegally doing business in Alabama, because the issue was not properly presented. Affirmative defenses, such as illegality, must be affirmatively pleaded. A.R.Civ.P. 8(c). Any matter which does not controvert the plaintiffs prima facie case should be pleaded, and it is not placed in issue by merely denying the plaintiffs allegations. 2A J. Moore, Moore’s Federal Practice ¶ 8.27[3] (2d ed. 1984). Capacity to sue is not part of the plaintiffs prima facie case, and when a defendant wishes to make an issue of the plaintiffs capacity to bring an action, he must do so by “specific negative averment.” A.R.Civ.P. 9(a). The allegation that Commercial was doing business illegally in Alabama was not made until Moseley’s motion for a new trial. Failure to raise an affirmative defense prior to a judgment generally constitutes a waiver. It was within the trial court’s discretion to refuse to allow the judgment to be set aside in order to allow the defense to be presented. Robinson v. Morse, 352 So.2d 1355 (Ala.1977).

Clearly, Adams, Fitch, and Moul-throp bound the partners of Southern Distilleries by executing a note on its behalf to the bank. Execution of an instrument in the partnership’s name for the purpose of carrying on the usual business of the partnership binds the partners, unless the partner executing the instrument has no authority to act and the person with whom he is dealing has knowledge that he has no authority to act. Section 10-8-49, Code of Alabama. A person admitted as a partner into an, existing partnership is liable for partnership obligations arising before his admission into the partnership. His liability for pre-existing obligations can be satisfied only out of partnership property, however. Section 10-8-56, Code of Alabama.

The bank’s judgment is against Moseley personally. The dispositive issue of this case, therefore, is whether the obligation sued on arose before Moseley’s admission into the partnership. In support of Moseley’s contention that the debt pre-ex-isted his admission into the partnership, Moseley argues that the new note was merely a renewal of a pre-existing obligation. Moseley relies primarily on Tyree v. Lyon, Murphy & Co., 67 Ala. 1 (1880). In that case the plaintiff lent $5,000.00 to the firm of Smith, Lyon & Co. A promissory note was executed on behalf of the firm by its two partners, William Smith and Lyon. Smith died and Lyon formed a new company with Murphy and H. Smith under the name Lyon, Smith & Co. When the note came due, Lyon renewed it in the name of Lyon, Smith & Co., without the knowledge or consent of either Murphy or H. Smith. The court concluded that Lyon was not authorized to act on behalf of Murphy and H. Smith in executing the note and, therefore, that it was a debt of Lyon personally, not a debt of the subsequent partnership. 67 Ala. at 5.

It is questionable whether the same result would obtain if Tyree were decided under the law now in effect in Alabama. Under § 10-8-49, the apparent authority of a partner is sufficient to bind the firm’s general partners unless the third person has knowledge that the partner has no such authority. Furthermore, the authority of Adams, Fitch, and Moulthrop to act on behalf of the partnership and to bind the partners is not at issue here. The partnership agreement, to which Moseley became a party by the amendment he signed, expressly granted the three partners who signed the note the authority to bind the firm and its members. We do not consider Tyree to be controlling, therefore.

There is no dispute in this case as to the material facts. Moseley entered into a general partnership agreement with other individuals doing business under the name Southern Distilleries. The partners who executed the note sued on were expressly authorized to bind the other partners. Although the defendant chooses to categorize the debt created by the note sued on as the renewal of a pre-existing debt, it is clear that the obligation created by the old note terminated when the bank accepted the new note. Prior to the execution of the new note the bank could have brought an action to collect the debt. After it accepted the new note and satisfied the old one, there was no obligation which was due and payable to the bank until the new note matured. In agreeing to the forebearanee of its rights to collect the money owed it by Southern Distilleries, the bank relied on the representations of the partnership agreement that the partners, including Moseley, would be bound by the new note. Since the contract sued on was entered into by a partnership which included Moseley, and since there was valid consideration for the contract sued on, the plaintiff is entitled to enforce the contract against the defendant. First National Bank of Winfield v. Perfected Curing & Storage Co., 280 S.W. 737 (Tex.Civ.App.1936).

We understand that Moseley had no knowledge of the day-to-day operations of the partnership and that he did not find out about the note until the bank brought this action. While Moseley apparently considered his interest in the firm to be that of merely an investor (he categorizes his $100,000.00 contribution to the firm’s capital account as a “loan”), he signed an agreement granting him all the rights of a general partner in the firm and authorizing the other partners to obligate him as a general partner, which they did. This is not a case where fraud or overreaching was alleged. The partnership agreement was not an adhesion contract entered into by parties with unequal bargaining strength. The parties are competent business men dealing at arm’s length, who presumably have ample access to counsel. If Moseley had wished to limit his exposure to liability he should have taken steps to do so when he chose to become involved in the enterprise.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


author: ALMON, Justice.

text:
    Emertha J. ANGUS v. LIBERTY NATIONAL LIFE INSURANCE COMPANY.
    82-1268.
    Supreme Court of Alabama.
    Sept. 28, 1984.
    Robert M. Hill, Jr. and Margaret Helen Young, Florence, for appellant.
    William M. Bouldin of Guin, Bouldin & Alexander, Russellville, for appellee.
   ALMON, Justice.

This is an appeal by Emertha J. Angus from a judgment in favor of Liberty National Life Insurance Company.

The appellant brought suit as a beneficiary of a life insurance policy issued to her former husband, Franklin Angus. Mr. Angus died on September 11, 1980, and Liberty National refused payment, contending that the policy had been cancelled or had lapsed because of nonpayment of premium. The jury rendered a verdict for Liberty National.

The question to be resolved is whether the jury was properly charged on the burden of proof regarding cancellation of the insurance policy.

The following written charge, submitted by appellant, was refused by the trial court:

“The Court charges the jury that the burden is upon the plaintiff to reasonably satisfy you by the evidence of (1) the existence of the policy of insurance sued on; (2) the death of the insured, Franklin D. Angus; and (3) the giving of notice of proof of death to Liberty National Life Insurance Company. Once this burden of proof is met by the plaintiff, the burden is upon the defendant, Liberty National Life Insurance Company to prove a valid cancellation of the policy of insurance or the non-payment of premiums.” (emphasis added)

Instead, the trial court instructed the jury as follows:

“Now, ladies and gentlemen, the Plaintiff, in bringing the lawsuit, has the burden of proving to your reasonable satisfaction the following. First of all, the existence of a valid policy of insurance that is sued upon in this case. In other words, the Plaintiffs Exhibit 1, that that policy was in force and effect on September 11, 1980. The Plaintiff further must prove that the person insured under that policy, that is Franklin D. Angus, Sr., died, and further that notice or sufficient notice was given to the insurer, that is, Liberty National Life Insurance Company. Once this burden of proof is met by the Plaintiff, then the burden is on the Defendant, Liberty National, [to] prove a valid cancellation of the policy for nonpayment of premiums, or cancellation of the policy at the request of the Plaintiff, or a lapse of the policy for nonpayment of those premiums.” (emphasis added)

After the instructions were given, but prior to the jury’s retiring, appellant excepted to that portion of the charge which stated that she had the burden of proving that the policy was in effect on September 11, 1980.

In an action to recover under an insurance policy where the insurance company asserts cancellation as a defense, plaintiff has the burden of proving a prima facie case, and then the burden shifts to the defendant to prove cancellation. In National Life & Accident Ins. Co. v. Winbush, 215 Ala. 349, 110 So. 571 (1926), this Court held:

“Plaintiff, to establish a prima facie case, must prove: (1) the existence of the contract or policy sued on; (2) the death of the insured or the happening of the event provided for in the policy; and (3) the giving of notice and proof of death, as required by the policy.”

215 Ala. at 351, 110 So. at 572. See Blue Cross-Blue Shield of Alabama v. Turner, 43 Ala.App. 542, 195 So.2d 807, 813, cert. denied, 280 Ala. 709, 195 So.2d 814 (1967). See generally National Life and Accident Ins. Co. v. Allen, 285 Ala. 551, 234 So.2d 567, 569 (1970); Globe Life Ins. Co. of Alabama v. Howard, 41 Ala.App. 621, 147 So.2d 853, 857 (1962); United Benefit Life Ins. Co. v. Dopson, 26 Ala.App. 452, 162 So. 545, cert. denied, 230 Ala. 660, 162 So. 546 (1935).

In Mobile Fire and Marine Ins. Co. v. Kraft, 36 Ala.App. 684, 63 So.2d 34 (1953), the court held as follows:

“The rule prevails also that, when an insurance company asserts cancellation of a policy as a defense in a suit on the contract, the burden is cast on the defendant to prove the allegations of the plea.” (citations omitted)

36 Ala.App. at 686, 63 So.2d at 36. Trans-America Ins. Co. v. Wilson, 262 Ala. 532, 80 So.2d 253 (1955), states as follows:

“The authorities are clear that an insurer asserting cancellation of a policy has the burden of proof.”

262 Ala. at 534, 80 So.2d at 255. See Iowa Mutual Ins. Co. v. West, 40 Ala.App. 332, 116 So.2d 388, 394 (1959); United States Fidelity and Guaranty Co. v. Williams, 43 Ala.App. 205, 186 So.2d 738 (1966).

That portion of the charge which stated that plaintiff had the burden of proving “that [the] policy was in force and effect on September 11, 1980” was an erroneous statement of the law. In United Benefit Life Ins. Co. v. Dopson, supra, the court was reviewing a jury charge given in a life insurance case. The trial court charged the jury as follows:

“The burden being on the plaintiff to reasonably satisfy you twelve men that the policy was in force and effect on February 4th when the assured, Tennyson Dopson died.” (emphasis added)

26 Ala.App. at 454, 162 So. at 546.

On appeal, the charge was held to be erroneous and therefore to support a motion for a new trial.

Rule 51, Alabama Rules of Civil Procedure, provides in part:

“The refusal of a requested, written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s oral charge or in charges given at the request of the parties.”

In Alabama Power Company v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975), this Court observed:

“Whatever result might have here obtained under the old practice we need not decide. We look, instead, to the new practice prescribed under Rule 51, A.R. C.P., which treats the entire charge as a single entity. When testing the validity of any of its parts, including ‘given’ written requested charges, we must now look to the whole of the court’s charge. See Lyons, Alabama Practice: Rules of Civil Procedure Annotated, Vol. .2, pp. 234-237.”

293 Ala. at 504, 306 So.2d at 255.

Having concluded that the refused written charge is a correct statement of the law and that that portion of the oral charge previously referred to is an incorrect statement of the law, we must decide whether a later correct statement in the oral charge cured or rendered harmless the previous error.

We have carefully studied the entire oral charge and considered what effect it might have had upon the jury, noting the instances in which the correct and incorrect statements were made. Under the applicable law, the burden cannot be upon the plaintiff to prove the insurance policy is in “force and effect” and at the same time be upon the defendant to prove cancellation. When viewed in its entirety, the charge is contradictory and misleading, and we cannot say that a correct statement of the law was substantially and fairly given to the jury.

The judgment is therefore reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

MADDOX, FAULKNER, EMBRY and ADAMS, JJ., concur.

      . In Allen the Court used the term "issuance” instead of "existence.” In Howard and Dopson the Court referred to introduction of the policy into evidence instead of "existence.”


author: BRADLEY, Judge.

text:
    Ed HOLCOMB and Ann Holcomb v. Johnnie MORRIS and Coosa Island Association, Inc.
    Civ. 4309.
    Court of Civil Appeals of Alabama.
    Sept. 5, 1984.

      Richard L. Taylor, Birmingham, for appellants.
    Burgin H. Kent of Bishop, Colvin & Johnson, Birmingham, for appellees.
   BRADLEY, Judge.

This appeal is from a judgment quieting title to real property and awarding $350 damages for unlawfully detaining the property.

On May 2, 1982 Coosa Island Association, Inc., entered into a written agreement with Ann Holcomb to lease lot 2 of the Coosa Island development for ninety-nine years. Mrs. Holcomb issued a check for $100 as a down payment. The agreement provided that the balance of the purchase price, $5,522.55, would be due at closing. The Holcombs never made any further payments on the lot. Mike Gilbert, president of Coosa Island Association, gave the Hol-combs several written notices that he was going to sell lot 2.

In March of 1983 Johnnie Morris entered into a ninety-nine year lease with the Coosa Island Association for lot 2. The Holcombs had a trailer and a storage building on the property after Morris entered into the lease. After leasing the property Morris brought an unlawful detainer action in district court seeking to recover possession of lot 2 from the Holcombs.

The district court granted defendants’ motion to dismiss plaintiff’s suit based on plaintiff’s failure to prove delivery of the required notices for perfection of an action in unlawful detainer. Section 6-6-310(2), Code 1975. Plaintiff appealed to the circuit court and amended his complaint prior to trial to include a count in ejectment. At the close of plaintiff’s evidence, the circuit court permitted plaintiff to amend his complaint to add Coosa Island Association as additional plaintiff and to seek additional relief in the form of a declaratory judgment to quiet title in plaintiffs. The court granted judgment for plaintiffs and denied defendants’ motion for new trial. Defendants appeal to this court.

Defendants’ principal contention here is that the circuit court erred by allowing Morris to amend his complaint to conform to the evidence. They argue that the amendment of the complaint for unlawful detainer to include a declaratory judgment action to quiet title after trial worked a change in the entire cause of action and was therefore impermissible. As authority for their argument defendants rely on rule 13(j), Alabama Rules of Civil Procedure, which provides that a plaintiff who appeals from a district court to a circuit court cannot enlarge the jurisdiction of the lower court by such appeal. To further support their argument the Holcombs cite us to the ease of Vinyard v. Republic Iron & Steel Co., 205 Ala. 269, 87 So. 552 (1921). This case states the jurisdictional boundaries of the circuit court in an appeal from an inferior court as follows:

“The trial of this cause in the circuit court was, under our statute, de nqvo. This means that, subject only to a restriction of the claim to an amount or value within the jurisdiction of the justice court; the trial is had as though the suit originated in the circuit court; and a new complaint or an amendment to the old, may be filed by the plaintiff, provided it does not exhibit an entire change of parties plaintiff or defendant, and does not show a departure from, or change in, the original form of action.”

Vinyard v. Republic Iron & Steel Co., supra (citations omitted).

Defendants’ argument is not without merit. An amendment that changes completely the original form of action is unacceptable. Walker v. Eubanks, 424 So.2d 631 (Ala.Civ.App.1982). However, there is no uniformity in the Alabama case law as to when an amendment does work an entire change in the cause of action. Usually the decision as to whether the amendment changes the cause of action depends on the particular facts of each case. Cases addressing this issue state that, “ ‘... The test is whether the proposed amendment is a different matter, another subject of controversy, or the same matter more fully or differently laid to meet the possible scope ... of the testimony.’ ” Alabama Consolidated Coal & Iron Co. v. Heald, 154 Ala. 580, 45 So. 686 (1907) (quoting from 1 Ency.Pl. & Pr. 564). See also, United States Steel Corp. v. McGehee, 262 Ala. 525, 80 So.2d 256 (1955); Isbell v. Bray, 256 Ala. 1, 53 So.2d 577 (1951). As long as the new claim stated in an amendment is asserted for the same purpose as the original complaint, there is no departure. Thus, it has been stated that an amendment does not constitute a new cause of action where the added count seeks to adjudicate property rights between the same parties, the same property, and arises from the same transaction as found in the original complaint, even where such amendment seeks a different or inconsistent relief. Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962); Garrett v. First National Bank, 233 Ala. 467, 172 So. 611 (1937); Hill v. Almon, 224 Ala. 658,141 So. 625 (1932).

In the instant case Morris originally brought a suit against defendants for unlawful detainer of the disputed property. Unlawful detainer concerns only the right of possession of property and usually does not involve any question of title in the land. Mitchell v. Rogers, 370 So.2d 263 (Ala.1979). Morris amended his complaint after appeal to include a count in ejectment. Plaintiff, in order to recover in an ejectment action, must prove his legal title to the property. Coffee v. Keaton, 248 Ala. 19, 26 So.2d 80 (1946); Henry v. Brannan, 149 Ala. 323, 42 So. 995 (1906); Jackson Lumber Co. v. McCreary, 137 Ala. 278, 34 So. 850 (1903) (ejectment is a favored method of trying titles to land). Despite the differences noted above between unlawful detainer and ejectment, the amendment of an unlawful detainer action to ejectment has been held to be proper. Pearson v. City of Birmingham, 210 Ala. 296, 97 So. 916 (1923).

Morris’s second amendment contains a quiet title action. A quiet title action determines the rights and interests in land as between plaintiffs and defendants. § 6-6-540, Code 1975. This second amendment seeks a different relief than did the original complaint. However, the amendments involve the same property, essentially the same parties, the same facts, and arise from the same transaction as the original complaint. All of the counts in the complaint are asserted for the same ultimate purpose, to allow Morris to recover exclusive possession of his land. Therefore, under the above cited cases, plaintiffs amendments do not constitute an entirely new cause of action, and are permissible.

However, the cited cases must be read and interpreted in conjunction with the liberality introduced into the amendment procedure by the Alabama Rules of Civil Procedure. Rule 15(b) states in part:

“(b) Amendments to Conform to the Evidence.... If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in the maintaining of his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The Court is to be liberal in granting permission to amend when justice so requires.”

Under rule 15(b), A.R.Civ.P., the party opposing the amendment must prove that the amendment would cause actual prejudice in order for an amendment to be properly disallowed by the court. Bracy v. Sippial Electric Co., 379 So.2d 582 (Ala.1980); see also Committee Comments to rule 15(b), A.R.Civ.P.

In the original and amended complaints, Morris alleges that he claims the property under a lease from the fee title owner and that defendants entered the property under an alleged lease with the fee title owner. Defendants were on notice before trial that Morris intended to bring an ejectment action and that, pursuant thereto, plaintiff would assert his title to the disputed lot. Furthermore, defendants were put on notice during the course of trial that plaintiffs were seeking to quiet title to lot 2. The testimony was as follows:

“Q What is the relief you seek in this proceeding? Is it a declaratory judgment declaring you are the title owner to this property and entitle you to possession thereof?
“MR. KLINE: Object to that.
“THE COURT: Overruled.
“A Yes. I’m asking for that.
“MR. KLINE: The pleadings in this case don’t indicate that.
“THE COURT: It is asking the Court to make a determination. Overruled.”

Being informed that plaintiffs were injecting another theory of recovery into the proceedings, defendants could have requested a continuance in order to prepare a defense to this new occurrence. No such request was made, nor does the record reflect any indication that defendants considered that they might be prejudiced by the allowance of such an amendment. Crigler v. Salac, 438 So.2d 1375 (Ala.1983). In fact, defendants presented no defense and no witnesses on their behalf.

We, therefore, conclude that it was within the circuit court's discretion to allow Morris’s complaint to be amended so as to conform to the evidence presented at trial. The original complaint, prior amended complaint, and trial testimony sufficiently apprised defendants of plaintiffs’ claims.

Because the amendments were properly allowed, it is unnecessary for us to address defendants’ second assignment of error—that defendants were entitled to judgment under Morris’s unlawful detainer claim. An amended complaint supersedes the original complaint so that plaintiff’s complaint seeking relief merely on an unlawful detainer action is treated as though it had never been filed. Therefore, we are concerned here with the amended complaint as it appears in the record from the circuit court. See, e.g., Lipscomb v. Bessemer Board of Education, 258 Ala. 47, 61 So.2d 112 (1952).

The evidence fully supports the trial court’s finding that title and possession properly belonged to the plaintiffs. Additionally, the evidence shows that the defendants abandoned and Morris took possession of the property prior to trial. Where a landlord entered and resumed beneficial use of property after tenants had abandoned the premises, lease was terminated and landlord was not required to comply with default and notice provision of lease as condition precedent to reentering. International Tool & Engineering Co. v. Sullivan, 389 So.2d 138 (Ala.Civ.App.1980).

Defendants’ last contention is that the circuit court improperly awarded plaintiffs $350 as damages for defendants’ unlawful detention of the disputed property. We agree. There was no testimony introduced at trial as to the amount of damages to plaintiffs resulting from the defendants’ occupancy of the land. There was no testimony of any fair rental value of the land as required under section 6-6-314, Code 1975, nor any proof of pecuniary loss suffered by plaintiffs. See, e.g., Revel v. Prince, 37 Ala.App. 457, 69 So.2d 470 (Ala.Ct.App.1954) (the party claiming damages has the burden of proving the existence of and amount of such damages).

That aspect of the judgment awarding plaintiffs title to and possession of the property in question is affirmed; that aspect of the judgment awarding damages to plaintiffs is reversed, and the cause is remanded for entry of judgment in favor of defendants on the damages issue.

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

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


text:
    STATE of Alabama By and Through Appellant Thedford HUGULEY v. Eugene SAMUELS.
    Civ. 4222.
    Court of Civil Appeals of Alabama.
    Oct. 10, 1984.

      Thedford Huguley, pro se.
    W.W. Dinning of Lloyd, Dinning, Boggs & Dinning, Demopolis, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a paternity case.

The juvenile court rendered and entered a final judgment on October 14, 1983, which adjudicated that the defendant was not the father of a certain child. Fourteen days later, on October 28, 1983, a notice of appeal to the circuit court was filed on behalf of the state. The defendant moved to dismiss the appeal as not having been filed within ten days from the rendition of the final judgment, as was then required by § 26-12-8, Ala.Code (1975). The circuit court granted the defendant's motion and dismissed the state’s appeal from the juvenile court to the circuit court. A timely appeal was then taken to this court on behalf of the state.

“An appeal is not a matter of vested right, but by the grace of statute, and must be perfected pursuant to the time and manner prescribed in the controlling statute, and if the requirements of such statute are not met, the appeal must be dismissed.” (Citations omitted and emphasis supplied). LeFlore v. State ex rel. Moore, 288 Ala. 310, 311, 260 So.2d 581, 583, cert. denied, 409 U.S. 1007, 93 S.Ct. 436, 34 L.Ed.2d 299 (1972); Moutry v. State, 359 So.2d 388, 389 (Ala.Civ.App.1978). Both of those cases determined that the controlling statute which governed the taking of appeals in paternity cases from the juvenile court to the circuit court was § 26-12-8. For like holdings also see Battles v. State, 386 So.2d 466 (Ala.Civ.App.), cert. denied, 386 So.2d 468 (Ala.1980), and Scribner v. State, 372 So.2d 1311 (Ala.Civ.App.), cert. denied, 372 So.2d 1312 (Ala.1979). It was expressly provided by § 26-12-8 that an appeal could be taken from a final paternity judgment “within 10 days after rendition thereof_” Since a notice of appeal was not filed on behalf of the state within ten days from the rendition of the juvenile court’s final judgment, as was then expressly required by that controlling code section, the circuit court’s jurisdiction never attached and that court properly dismissed the appeal from the juvenile court. All of the cases construing § 26-12-8 dictate that such a holding is correct and required by the law.

The circuit court’s judgment dismissing the abortive appeal on behalf of the state from the juvenile court to the circuit court must be affirmed.

We are not authorized to consider several matters presented in the appellant’s brief because they are completely outside of the record on appeal.

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 § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.

      . The bench and the bar are alerted to the fact that, as of May 7, 1984, § 26-12-8 was repealed and superseded by the Alabama Uniform Parentage Act, Act. No. 84-244 of the 1984 regular session of the legislature. Section 20(a) of that act now provides that a notice of appeal to the circuit court must be filed within fourteen days of either the date of the order appealed from or the denial of a post-trial motion.


text:
    WAREHOUSE GROCERIES, INC. v. SCOTTSBORO NEWSPAPERS, INC.
    Civ. 4525.
    Court of Civil Appeals of Alabama.
    Oct. 10, 1984.
    Robert W. Hanson, Albertville, for appellant.
    Charles Dawson of Dawson & McGinty, Scottsboro, for appellee.
   BRADLEY, Judge.

This is an agency case.

Scottsboro Newspapers, Inc. (the newspaper) brought an action against Warehouse Groceries, Inc. (Warehouse), and Warehouse Groceries of Scottsboro, Inc. (Scottsboro Corporation), to recover $9,782.95 for newspaper advertisements placed for the Scottsboro Corporation. A judgment was rendered in favor of plaintiff and against the defendants. Warehouse appeals.

After an ore tenus hearing the trial court found that the original account at the newspaper was established in the name of Warehouse Groceries, Inc., with all orders at issue placed by its employee Elmer Bishop; that the Scottsboro Corporation and Warehouse had a management contract making Warehouse the Scottsboro Corporation’s agent for all matters pertinent to this suit; and that the agency relationship was undisclosed to the newspaper. The trial court then held that “Where an agent fails to disclose the fact that he acts for a principal or 'fails to disclose the identity of the principal, both the agent and the principal may be bound.”

Warehouse first contends that the trial court erred in finding that the newspaper’s original account was set up in the name of Warehouse Groceries, Inc.; that monthly billings were sent in that name; and that Elmer Bishop placed the ads. We do not agree. The trial court heard the evidence without a jury. Where a trial court hears evidence ore tenus, an appellate court will not disturb the trial court’s findings of fact unless the evidence is insufficient to support it or the decision is plainly erroneous, palpably wrong, and manifestly unjust. Cotton States Mutual Insurance Co. v. Michalic, 443 So.2d 927 (Ala.1983); Belcher v. Versatile Farm Equipment Co., 443 So.2d 912 (Ala.1983). In the case at bar there was ample testimony from which the trial court could have found as it did.

Next, Warehouse argues that the trial court erred in concluding that Warehouse failed to disclose the identity of its principal, the Scottsboro Corporation. Again, we disagree. The tendency of the evidence is to support the trial court’s finding of an undisclosed principal-agency relationship.

The evidence reflects that the newspaper dealt with a man by the name of Bishop, who was an employee of Warehouse. Bills were sent by the newspaper, sometimes in the name of Warehouse and sometimes in the name of Warehouse Grocery, to Albert-ville, Alabama. The management division of Warehouse, acting as the Scottsboro Corporation’s agent, then sent a check back to the newspaper drawn on the account of the Scottsboro Corporation at the same Al-bertville address to which the bills were sent.

The burden of disclosing the principal-agent relationship so that the agent can escape the liability of the principal is on the agent. Armour Packing Co. v. Vietch-Young Produce Co., 39 So. 680 (Ala.1903). The agent has the duty to disclose both that he is acting in a representative capacity and the identity of his principal. 3 C.J.S. Agency § 369 (1973). Here, the agent, Warehouse, failed to disclose that it placed the newspaper advertisements as the agent of the Scottsboro Corporation. When an agent fails to disclose to a third party with whom he is dealing that he is acting for a principal, his liability is the same as that of the principal. Davis v. Childers, 381 So.2d 200 (Ala.Civ.App.1979).

Due to the similarity of the names. of the entities involved and that the address for the two entities was the same, the fact that the ads were paid for by a check drawn on the account of the Scottsboro Corporation is insufficient to constitute a disclosure of the agent’s principal.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: SAM TAYLOR, Judge.

text:
    Lewis FLOYD, Jr. v. STATE.
    5 Div. 767.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
   ON REMAND FROM THE SUPREME COURT OF ALABAMA

Prior report: Ala.Cr.App., 434 So.2d 871; Ala.Cr.App., 438 So.2d 770; Ala., 457 So.2d 961.

SAM TAYLOR, Judge.

The Circuit Court of Elmore County having issued an order to the Department of Corrections to void the disciplinary held against the petitioner on December 28, 1982, and to restore petitioner’s 6 months of good time, this appeal is due to be dismissed.

APPEAL DISMISSED.

All the Judges concur.


author: TYSON, Judge.

text:
    Jayne King MOORE, alias v. STATE.
    3 Div. 914.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
    Rehearing Denied Aug. 14, 1984.
    Certiorari Denied Oct. 19, 1984 Alabama Supreme Court 83-1333.

      Robert Cheek, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Jayne King Moore was indicted for violation of the Alabama Uniform Controlled Substances Act, § 20-2-1, et seq., Code of Alabama 1975. In the first count of the three-count indictment, appellant was charged with the unlawful possession of cocaine. The second count of the indictment charged the appellant with the unlawful possession of Diazepam, and the third count charged her with the unlawful possession of marijuana. The jury found the appellant “guilty as charged in the indictment” and after a sentencing hearing she was sentenced to ten years’ imprisonment.

On the afternoon of July 21, 1982, members of the Montgomery City Police Department, the Montgomery County Sheriffs Department, the District Attorney’s office, and the Alabama Bureau of Investigation executed a search warrant for a mobile home and outbuildings in Lapine, Alabama. The search warrant was the result of an undercover operation which was being carried on in Montgomery County. The mobile home and out-buildings were allegedly owned by Tim and Jayne Moore.

Officer Dennis Bodine of the Montgomery Police Department testified that, upon arrival at the residence of Tim and Jayne Moore, he observed the appellant and her husband working on a fence near their mobile home. He stated that a flatbed truck was parked near the fence, where the appellant and her husband were standing. He stated that, as the officers entered the property of the appellant, she jumped on a ten speed bicycle and began heading towards the mobile home. He also stated that the appellant’s husband started running towards the residence. He stated that the appellant and her husband were stopped before they reached the residence and placed in custody.

Officer Bodine testified that police officers and other law enforcement officials then executed the search warrant. He stated that entry was made into the residence and a large amount of illegal drugs and paraphenalia were found in the mobile home. He stated that several bags of marijuana were found in a brown box on the kitchen counter and he identified such items. He further identified a large number of other items found in the home and outbuildings. Such items were (1) a plastic bag containing white tablets, found in the front bedroom of the home; (2) two plastic bags of white powder, found in the front bedroom of the home; (3) two more plastic bags containing white tablets, found in the front bedroom on a counter top; (4) a plastic bag containing a brown substance, found in the front bedroom on a counter top; (5) a small green box containing marijuana and a white powder, found in the bedroom; (6) a small piece of tin foil with a brown substance wrapped inside, found in closet of bedroom; (7) a bottle of Lactose, found on the counter top in the front bedroom; (8) a small blue dispenser with a white powder inside, found on the front seat of the flatbed truck; and (9) a plastic bag with marijuana in it, found in an outbuilding. He stated that he kept each of these items in his control until he turned them over to Allen Adair at the State Department of Forensic Sciences. He stated that these items were tested and returned to him, where they were placed in the drug evidence room of the Montgomery Police Department.

Officer Bodine further testified that a number of other items were found during the search. Such items were (1) a set of counter weights for a scale, found in front bedroom; (2) a brown vinyl carrying case with a set of scales, found on bathroom counter; (3) a blue porcelain water pipe, with a residue in it, found in the closet of front bedroom; (4) a magazine with an article on growing marijuana in it, a Xerox copy of a book entitled “Drug Manufacturing for Fun and Profit,” a pamphlet entitled “The Marijuana Consumers and Dealers Guide”, a book entitled the “Cocaine Handbook,” and a “Fall Harvest Guide,” all found in a desk in the living room of the home; (5) a field testing kit; (6) a locker containing laboratory glassware which had residue in it, found in an outbuilding; and (7) a box containing a book entitled “Marijuana Grower’s Guide,” a glass jar with residue inside, a “Deering” sifter used for mixing cocaine, found in the front bedroom.

He stated on cross-examination, when questioned as to why he believed the mobile home to be a residence, that there were clothes in the closets, there were food items in the cabinets and deep freeze.

Allen Adair testified that he was employed as a toxicologist with the State Department of Forensic Sciences. He stated that he did an analysis on a number of items turned over to him by Officer Dennis Bodine. He stated that he tested six plastic bags containing plant material, which were located in a brown box. He stated that these contained marijuana. He stated that he tested a white powder found in a plastic bag and that such powder was Dextrose — a cutting agent for various drugs. He stated that he tested a plant material in a big glass jar and it was marijuana. He stated that he tested 508 white tablets and these tablets were identified as Diazep-am — a tranquilizer drug. He stated that he tested two plastic bags containing a white powder and this powder was cocaine. He stated that he tested several more clear plastic bags containing white tablets and these tablets were Diazepam.

Mr. Adair further testified that he tested a brown jar containing a white powder and this powder was Lactose — a growth sugar. He tested a plastic bag containing a brown substance and this substance was identified as hashish. He stated that he tested a plant material and a white powder located in a green box and these substances were identified as marijuana and cocaine. He stated that he tested a brown substance found wrapped in a small piece of tin foil and this substance was hashish. He tested a blue container which had a white powder in it and this powder was cocaine. He tested a green plant material found in a clear plastic bag and this material was marijuana. He also tested two more bags which contained plant material and this was identified as marijuana.

W.J. Walker testified that he was employed by the Montgomery County Sheriffs Department and that he was present when the search was conducted on July 21, 1982. He stated that he found a brown box on the kitchen counter which contained a number of bags with a plant material in them. He stated that he turned this evidence over to Officer Bodine. He further stated that he had been informed that the mobile home was the residence of Tim and Jayne Moore.

On cross-examination, he stated that he observed women’s clothing in the closet of a bedroom in the mobile home.

William Rhegness testified that he was a narcotics agent employed by the Alabama Bureau of Investigation. He stated that he was involved in the search of the appellant’s residence on July 21, 1982. He stated that he recovered a small piece of tin foil, which had a brown substance inside it, from a shelf in a closet in the front bedroom. He stated that he found a water pipe, designed for smoking marijuana or hashish, in the same place he discovered the tin foil. He stated that he turned both of these items over to Officer Bodine.

On cross-examination, he stated that the appellant admitted to him that she lived in the mobile home. He specifically stated that he “recall[ed] asking her name and if she lived there and she told me and affirmed yes she lived there.”

B.G. Bryant testified that he was employed by the District Attorney’s office. He stated that he was present during the search of the appellant’s residence. He stated that previous to this search, during the course of his investigation, he looked in the Montgomery County phone book and observed that the Moore residence was listed at the address they ended up searching. He further stated that he participated in the search and recovered a blue container, which had a white powder in it, from the front seat of the flatbed truck. He stated that he turned this over to Officer Bodine.

N.W. Ward testified that he was employed by the Montgomery County Sheriff’s Department. He stated that he participated in the search of appellant’s residence and found a number of items which he turned over to Officer Bodine. Among the items he recovered from the front bedroom of the mobile home were (1) a book entitled “Marijuana Grower’s Guide;” (2) a big glass jar which had marijuana in it; (3) a bag of pills; (4) a set of weights for a triple beam scale; (5) a plastic bag containing a white powder; (6) a bag of 452 pills which was in plain view on a counter top; (7) a bottle of Lactose on top of a counter; (8) a container with white powder in it. He also found a set of scales in the bathroom, on the counter top. He also searched a desk in the living room of the mobile home and found a number of drug related books.

Officer Ward further testified that he noticed a mailbox across the road from the driveway and this mailbox had the name “Moore” on it.

Ken Halford testified he was employed by the Alabama Bureau of Investigation and that he participated in the search of appellant’s residence on July 21, 1982. He testified that he found women’s lingerie in the mobile home. He also testified that he found a greenhouse setup in an eighteen-wheel trailer, which was located beside the mobile home. He further stated that one Bob Robertson — a suspect in the drug investigation — told him Tim and Jayne Moore lived in the mobile home.

The State rested its case at this point and the appellant moved for a judgment of acquittal and to exclude the State’s evidence.

I

The appellant contends that the trial court erred in overruling his motion to exclude because the State failed to prove a prima facie case.

In considering the question of whether the trial judge properly overruled that motion, we can only consider that evidence which was before the trial judge at the time the motion to exclude was made. Williams v. State, 340 So.2d 1144 (Ala.Crim.App.1976), cert. denied, 340 So.2d 1149 (Ala.1977).

For unlawful possession of a controlled substance, it is not necessary to prove manucaption, but constructive possession may be shown and, where such possession is relied upon, the State must also prove beyond a reasonable doubt that the accused knew of the presence of a prohibited substance. Riggins v. State, 437 So.2d 631 (Ala.Crim.App.1983); Jones v. State, 432 So.2d 5 (Ala.Crim.App.1983); Yarbrough v. State, 405 So.2d 721 (Ala.Crim.App.), cert. denied, 405 So.2d 725 (Ala.1981); Green v. State, 384 So.2d 1215 (Ala.Crim.App.1980); McHellen v. State, 351 So.2d 689 (Ala.Crim.App.1977); Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 (1973). Guilty knowledge of the presence of the illegal substance may be established by circumstantial evidence. Jones v. State, supra; Yarbrough v. State, supra; Mitchell v. State, 395 So.2d 124 (Ala.Crim.App.1980), cert. denied, 395 So.2d 127 (Ala.1981); Green v. State, supra; McHellen v. State, supra; Henderson v. State, 347 So.2d 540 (Ala.Crim.App.), writ quashed, 347 So.2d 543 (Ala.1977); Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971). Since the possession of illegal drugs is susceptible of joint commission, the guilt of the accused does not necessarily depend upon proof of her ownership of the drugs. Mitchell v. State, supra; McCord v. State, 373 So.2d 1242 (Ala.Crim.App.1979); Henderson v. State, supra; Holley v. State, 447 So.2d 829 (Ala.Crim.App.1983).

“While mere proximity to contraband is not enough to establish constructive possession, where other circumstantial evidence ... is sufficiently probative, proximity to contraband coupled with inferred knowledge of its presence will support a finding of guilt on such charges.” German v. State, 429 So.2d 1138 (Ala.Crim.App.1982); United States v. Whitmire, 595 F.2d 1303 (5th Cir.1979). When the presence of the accused at the scene is established and evidence of his knowledge of the presence of the illegal substance is shown — even by circumstantial evidence— along with any other incriminating evidence, the issue of the appellant’s guilt should be submitted to the jury. Riggins v. State, 437 So.2d 631 (Ala.Crim.App.1983); German v. State, supra; Collier v. State, 413 So.2d 396 (Ala.Crim.App.1981), affirmed, 413 So.2d 403 (Ala.1982). Radke v. State, 292 Ala. 290, 293 So.2d 314 (1974). “If presence at the time and place a crime is committed, in conjunction with other facts and circumstances tend to connect the accused with the commission of the crime, then the jury may find the accused guilty.” German v. State, supra; Dolvin v. State, 391 So.2d 133 (Ala.1980).

In this case there is no argument with the proposition that where drugs are found on premises under control of the appellant an inference may arise that the appellant had knowledge and possession of them. The particular difficulty in this case is whether there was sufficient evidence of the appellant’s control of the premises to authorize an inference of her knowledge and constructive possession of the drugs found on those premises. The appellant argues that the evidence of control was insufficient because there was no evidence that she was ever physically present in the mobile home. A thorough review of the evidence in this case, and the authorities on this point, convinces us that this was a question for the jury in this case. “Where, as here, the presence of the accused at the scene is established by both direct and circumstantial evidence, and the evidence of the accused’s knowledge of the presence of the prohibited substance is shown together with other incriminating evidence, the issue of the defendant’s guilt should be submitted to the jury.” Henderson v. State, 347 So.2d 540 (Ala.Crim.App.), writ quashed, 347 So.2d 543 (Ala.1977); Fields v. State, 333 So.2d 861 (Ala.Crim.App.1976). Moreover, a showing that there is a reasonable probability of unlawful possession of narcotics by someone is sufficient to establish the corpus delicti of the crime of possession. It is not necessary to prove the accused’s connection with the drugs to prove the corpus delicti. Laffitte v. State, 370 So.2d 1108 (Ala.Crim.App.), cert. denied, 370 So.2d 1111 (Ala.1979); Reynolds v. State, 346 So.2d 979 (Ala.Crim.App.), cert. denied, 346 So.2d 986 (Ala.1977).

The appellant further argues that her admission of living at the trailer was in violation of her Miranda rights. This testimony was elicited by appellant’s own counsel during cross-examination of Officer Rhegness and was not objected to during trial. As a result, such argument has not been preserved for our review. This court may only review rulings of the trial court which are adverse to the appellant. Moreover, error cannot be predicated upon admission of testimony which is elicited by defense counsel and is responsive to defense questions. Williams v. State, 383 So.2d 547 (Ala.Crim.App.1979), affirmed, 383 So.2d 564 (Ala.1980), cert. denied 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980).

A review of the evidence in this case reveals that the trial judge did not err in overruling the appellant’s motion to exclude the State’s evidence.

II

The appellant contends that the trial court erred in allowing the prosecutor to proceed in a manner that was prejudicial to her.

In her brief the appellant notes a large number of instances where the prosecutor made comments or asked questions and she contends such questions and comments were prejudicial to her. She also argues that several comments made by the prosecutor during opening and closing statements were improper and prejudicial. It should be noted that appellant’s trial counsel did not object to a number of the questions she claims were prejudicial and, while he did object to several other questions and comments, he did not invoke a ruling by the trial court. As regards appellant’s complaint about improper closing argument, we have carefully examined such argument and find the appellant’s contention to be without merit. While in argument to the jury, counsel may not argue as a fact that which is not in evidence, nevertheless, he may state or comment on proper inferences from the evidence and may draw conclusions from the evidence based upon his own reasoning. Sanders v. State, 423 So.2d 348 (Ala.Crim.App.1982); Speigner v. State, 369 So.2d 39 (Ala.Crim.App.), cert. denied, 369 So.2d 46 (Ala.1979); Liner v. State, 350 So.2d 760 (Ala.Crim.App.1977). The prosecutor, as does defense counsel, has a right to present his impressions from the evidence. Sanders v. State, supra; Hayes v. State, 395 So.2d 127 (Ala.Crim.App.1980), cert. denied, 395 So.2d 150 (Ala.1981); McQueen v. State, 355 So.2d 407 (Ala.Crim.App.1978). He may argue every legitimate inference and may examine, collate, shift and treat the evidence in his own way. Sanders v. State, supra; Hayes v. State, supra; McQueen v. State, supra.

Furthermore, in this case appellant’s counsel did not object to any of the statements relied on by appellant. “Generally, improper argument is not a valid ground for motion for a new trial, or subject to review on appeal, unless there is timely and specific objection by counsel or motion to exclude, an adverse ruling thereon by the trial court, or refusal of the trial court to make a ruling, and an objection thereto.” Thomas v. State, 440 So.2d 1216 (Ala.Crim.App.1983); Trawick v. State, 431 So.2d 574 (Ala.Crim.App.1983); Lawson v. State, 377 So.2d 1115 (Ala.Crim.App.), cert. denied, 377 So.2d 1121 (Ala.1979).

We have carefully reviewed the questions and comments of the prosecutor during the trial of the case. As stated above, the complained of questions were not objected to at the trial level, or there was no ruling invoked by the appellant’s counsel. Our review on appeal is limited to matters on which rulings have been invoked at trial court. Robinson v. State, 441 So.2d 1045 (Ala.Crim.App.1983); Cowgill v. State, 426 So.2d 517 (Ala.Crim.App.1982); Whorton v. State, 422 So.2d 812 (Ala.Crim.App.1982); Wood v. State, 416 So.2d 794 (Ala.Crim.App.1982); Parker v. State, 406 So.2d 1036 (Ala.Crim.App.), cert. denied, 406 So.2d 1041 (Ala.1981). Moreover, in the absence of a ruling, a request for a ruling, or an objection to the court’s failure to rule, there is nothing preserved for appellate review. Stewart v. State, 398 So.2d 369 (Ala.Crim.App.), cert. denied, 398 So.2d 376 (Ala.1981); Magro v. State, 384 So.2d 871 (Ala.Crim.App.), cert. denied, 384 So.2d 875 (Ala.1980); Cook v. State, 369 So.2d 1251 (Ala.1979). The trial court did not err on this point.

Ill

The appellant argues that the trial court erred in overruling her motion for a new trial and assigns several reasons therefor.

A

She argues that the trial court erred in failing to exclude the items which were seized from the residence.

The Alabama Supreme Court has held that the admission of various items of drug “paraphernalia” is permissible in order for the State to show the complete story. Furthermore, evidence of other drugs and paraphernalia seized in the search of defendant’s home, but not encompassed in the charge against the defendant, is admissible to show the whole story. Beasley v. State, 408 So.2d 173 (Ala.Crim.App.1981), cert. denied, 408 So.2d 180 (Ala.1982); Casey v. State, 406 So.2d 1029 (Ala.Crim.App.), cert. denied, 406 So.2d 1036 (Ala.1981); Baty v. State, 401 So.2d 308 (Ala.Crim.App.1981); Reed v. State, 401 So.2d 131 (Ala.Crim.App.), cert. denied, 401 So.2d 139 (Ala.1981); Green v. State, supra; McHellen v. State, supra; Brantley v. State, 55 Ala.App. 493, 317 So.2d 337 (1974), reversed, 294 Ala. 344, 317 So.2d 345 (1975), on remand, 55 Ala.App. 717, 317 So.2d 347, cert. denied, 294 Ala. 346, 317 So.2d 348 (1975).

In this case the officers were searching under a valid search warrant and the execution of such warrant was proper. Under these circumstances the evidence seized was admissible as evidence of the crime for which the appellant was convicted. See Baty v. State, supra. Moreover, the State properly showed a complete chain of custody for each item seized and entered into evidence. See Sturdivant v. State, 439 So.2d 184 (Ala.Crim.App.1983); Riggins v. State, 437 So.2d 631 (Ala.Crim.App.1983); Luster v. State, 433 So.2d 481 (Ala.Crim.App.1983); Congo v. State, 409 So.2d 475 (Ala.Crim.App.1981), cert. denied, 412 So.2d 276 (Ala.1982); Holley v. State, 447 So.2d 829 (Ala.Crim.App.1983).

B

The appellant further argues that the trial court should have granted her a new trial because the jury returned a general verdict which did not refer to any specific controlled substance for which she was charged with possessing. She was charged in a three count indictment with the possession of three separate drugs. It is the rule in Alabama that a general verdict of guilty on a multiple count indictment is valid where the evidence would sustain the verdict of guilty under one or more counts and the sentence imposed is no greater than could have been imposed on any one of the counts. In this case the evidence was sufficient to find a verdict of guilty on each count in the indictment. Furthermore, the appellant was sentenced well within the limits for the offense.

C

The appellant also contends that the trial court should have conducted a perjury hearing as to a particular State’s witness and failure to do so was error. She contends that she never made a statement to Officer Rhegness, or to anyone, about living in the mobile home.

In order to obtain a new trial on the basis of the use of perjured testimony by the State, a defendant must allege and prove (1) that the testimony was perjured; (2) that it was on a matter of such importance that the truth would have prevented a conviction; (3) that the State had knowledge that the testimony was perjured; and (4) that the defendant was not negligent in discovering the falsehood and in raising the issue. Waldrop v. State, 448 So.2d 490 (Ala.Crim.App.1984); Phelps v. State, 439 So.2d 727 (Ala.Crim.App.1983); Pennington v. State, 420 So.2d 845 (Ala.Crim.App.1982); Barnes v. State, 415 So.2d 1217 (Ala.Crim.App.1982); Summers v. State, 366 So.2d 336 (Ala.Crim.App.1978), cert. denied, 366 So.2d 346 (Ala.1979). In the present case the appellant failed to satisfy this burden of proof. The trial court did not err in denying the motion for new trial on this point.

Moreover, a decision on a motion for new trial rests largely within the discretion of the trial court, and, in reviewing such decision, the appellate court will indulge every presumption in favor of the correctness thereof. Ward v. State, 440 So.2d 1227 (Ala.Crim.App.1983).

IV

The appellant contends that the trial court erred in refusing several of her written requested charges. However, only one of these refused charges has been preserved for our review pursuant to Allen v. State, 414 So.2d 989 (Ala.Crim.App.1981), affirmed, 414 So.2d 993 (Ala.1982). The appellant’s contention that the trial court improperly refused the preserved written requested charge is without merit.

“The refusal of a charge, though a correct statement of law, shall not be cause for a reversal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s general charge or in charges given at the request of the parties.”

Ala.Code § 12-16-13 (1975). See also Campbell v. State, 423 So.2d 284 (Ala.Crim.App.1982); Lambeth v. State, 380 So.2d 923 (Ala.1979); Williams v. State, 451 So.2d 411 (Ala.Crim.App.1984).

We have reviewed the refused charge and find that it was fully covered in the trial court’s oral charge to the jury. Therefore, there is no basis of error to reversal on this issue.

V

The appellant contends that the trial court’s consideration of a pre-sentence report on her constituted a denial of due process because it consisted of “a pack of lies”. She contends that the report contained false accusations and that her attorney challenged such report at the sentencing hearing. This court is bound by the record and not by allegations or arguments in brief reciting matters not disclosed by the record. Eaton v. State, 423 So.2d 352 (Ala.Crim.App.1982); Harris v. State, 420 So.2d 812 (Ala.Crim.App.1982); Hollins v. State, 415 So.2d 1249 (Ala.Crim.App.1982). There is nothing in the record before us which supports the claim of the appellant.

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

AFFIRMED.

All the Judges concur.


text:
    Dick MOFFETT, alias v. STATE of Alabama
    1 Div. 837.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.
    Dick Moffett, pro se.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

This is an appeal from the denial of a petition for writ of error coram nobis. This court affirmed Dixon Moffett’s 1980 conviction for murder without opinion on January 30, 1981.

This appellant subsequently filed a petition for writ of error coram nobis in the trial court alleging that his retained trial counsel was inadequate in representing the appellant at his trial. He states that such counsel was not prepared for trial and had a “lack of zealousness”. Appellant further argues that he was not afforded effective assistance by his appointed appellate counsel. He states that such counsel did not comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), when filing a no merit letter. For aught that appears in the record, the trial court denied this petition for writ of error coram nobis without a hearing.

I

We affirm the trial court’s denial of the petition as regards the ineffective assistance of his trial counsel. A review of the transcript does not support this allegation.

In Duncan v. State [Ms. 8 Div. 84, August 28, 1984] (Ala.Crim.App.1984), Judge Bowen opined that “[i]n Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984), the United States Supreme Court held that ‘the proper standard for attorney performance is that of reasonably effective assistance.’ ” He further stated that “[t]he Sixth Amendment does not require error-less counsel or counsel judged ineffective by hindsight. Hoppins v. State, 440 So.2d 1125, 1127 (Ala.Crim.App.1983).”

Judge Bowen further stated in Duncan an appellant’s counsel’s performance must be shown to have prejudiced his defense. “The appropriate test for prejudice is stated in Strickland, 104 S.Ct. at 2068: ‘The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Duncan v. State, supra. “In making a determination of prejudice, this Court must consider ‘the totality of the evidence before the judge or jury.’ Strickland, 104 S.Ct. at 2069.” Id.

Not only has the appellant failed to establish that the conduct had reduced the trial proceeding to a “farce, sham, or mockery,” Robinson v. State, 361 So.2d 1172 (Ala.Crim.App.1978), but he has also fallen far short of establishing that he was denied “reasonably effective” assistance of counsel as set forth in Strickland. See Harris v. Oliver, 645 F.2d 327 (5th Cir.1981); Mitchum, v. State, 414 So.2d 168 (Ala.Crim.App.1982); Phelps v. State, 439 So.2d 727 (Ala.Crim.App.1983). “There is no reason for this Court to believe that ‘counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result’ — the ‘benchmark for judging any claim of ineffectiveness.’ Strickland 104 S.Ct. at 2064.” Duncan v. State, supra.

II

Appellant further argues that he was denied effective assistance of counsel by his appointed appellate attorney. The record reveals that appellate counsel and trial counsel were not the same person.

The appellant contends that his rights were abridged when counsel filed the following no merit letter and further when she failed to insure he received a copy of said letter in time to file a brief on his behalf. Counsel’s no merit letter contained the following language: (R. 32).

“Alabama Court of Criminal Appeals
Post Office Box 351
Montgomery, Alabama 36101
“Gentlemen:
“After receipt and review of transcript in the above-referenced matter, it is my opinion that there is no merit in the appeal. The Appellant was charged with the unlawful and malicious killing of Willie Houston, Sr. with a knife and a blunt instrument.
“At trial, Appellant was represented by retained counsel. One of the jurors in the venire stated he knew one of the State’s witnesses. He was struck from the final jury panel. The evidence adduced at trial was sufficient to show that all elements of the offense were established. The appellant was placed at the scene during the beating by an eyewitness. Her testimony was arguably impeached by the jury’s discovery that she had been convicted of a lesser-included offense in juvenile court proceedings arising from the same incident. The appellant took the stand and testified that he had left the State (and why), and that he had not been present when the victim was beaten and killed. Documentary and forensic evidence were properly admitted pursuant to the foundations and predicates laid by the State. It was clearly a jury question as to the credibility of all the witnesses’ testimony which they heard and considered. The question was resolved against Appellant; as such, it was well within the jury’s province to do so. Finally, Judge Hocklander’s charge to the jury covered all points in favor of the Appellant, as well as instructing the jury on the law of a lesser included offense.
“In view of the conclusions drawn by we as appointed counsel for Mr. Moffett, I am forwarding a copy of this letter brief pursuant to the mandate of Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396.
“Respectfully submitted
“KAREN A. ZOKOFF”

The record reveals that the appellant’s copy of such letter was not delivered to him. The envelope which contained such letter was stamped “return to sender.” Through no fault of his own, the appellant did not receive a copy of this letter until too late to file a brief on his own behalf.

This court has dealt with the requirements for such no merit letters on several occasions. See Hawkins v. State, 49 Ala.App. 26, 268 So.2d 492 (1972); Mitchell v. State, 54 Ala.App. 324, 307 So.2d 720 (1975). This “letter brief” was a sufficient compliance with the mandate of Anders. Counsel set out the arguable instances of error which occurred during trial and correctly concluded that such alleged errors would have been decided adversely to appellant’s cause. Our review of the transcript in this cause reveals no errors injurious to this appellant. The trial judge correctly denied the petition for writ of error coram nobis on these grounds.

For the reasons stated, this cause is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: TAYLOR, Judge.

text:
    Glen DAVIS v. STATE.
    2 Div. 432.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.

      James M. Barnes, Jr., Marion, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Ellen Fike Forehand, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Glen Davis, convicted of second degree assault in shooting his mother-in-law, was sentenced as a recidivist to life imprisonment. From his conviction he pursues this appeal.

The state’s evidence tended to indicate that the defendant entered the residence of one Barbara Cook in Moundville, Alabama. This residence was located next door to the residence of Lue Ella Cook, his mother-in-law, who was the victim in this case. The appellant shot his mother-in-law as well as his wife, Chine Davis. He was arrested a short time later, three blocks away, and was charged with burglary and with two counts of first degree assault. The jury convicted the appellant of second degree assault. The state presented into evidence certified copies of three prior felony convictions, and the court sentenced the appellant to life imprisonment in the penitentiary.

I

Appellant contends first that the court erred in denying his motions for a mistrial on the grounds that one of the jurors had been seen speaking to the victim during a recess. The court immediately held a hearing out of the jury’s presence and gave counsel the opportunity to question the jur- or. The court then stated:

“THE COURT: Well, it’s a touchy thing. My thinking is the best thing for me is just to admonish the jury not to have any contact with parties and let the thing go. If you bring the juror in now and question her it is almost certainly going to cause a mistrial situation one way or the other just based on the affect of that individual questioning. But I’ll leave it up to the defendant. If you want her questioned at this time and only questioned by the Court with a specific understanding that the case will proceed if there is no prejudice shown, then we’ll go ahead. Otherwise, I’ll allow you to question her or otherwise I’m going to say that your objection is noted and we’ll look into it after the verdict.”

The motion for mistrial was then denied.

After the verdict was brought in, the court then proceeded to have another hearing at which both Mrs. Cook and juror Lewis were questioned. It turned out that they were childhood friends who had not seen each other for a period of thirty-five years. Mrs. Cook said that she did not recognize Mrs. Lewis and it was during the break in the proceedings that Mrs. Lewis recognized Mrs. Cook. Questioned at length, each of these ladies denied talking about the case at all. Mrs. Lewis said that the conversation had nothing to do with the case that was being tried. She testified that her guilty vote in the case came solely from the facts that she heard in her role as a juror.

Whether or not to grant a mistrial is a matter within the discretion of the trial court. Walker v. State, 416 So.2d 1083 (Ala.Crim.App.1982); Wood v. State, 416 So.2d 794 (Ala.Crim.App.1982); Bowman v. State, 401 So.2d 333 (Ala.Crim.App.1981); Edgeworth v. State, 304 So.2d 911, 54 Ala. App. 93 (Ala.Crim.App.1974). A trial court will not be reversed for denying a motion for mistrial unless a clear abuse of discretion is shown. It is apparent in this case that the court was doing its best to see that the appellant got a fair trial and was also doing its best to salvage the trial, if possible. It is the duty of the court to attempt to salvage a trial by curing potential error if possible, thereby saving the public the time and expense of another trial, and sparing the victim the stress of yet another court appearance. The denial of the mistrial motion was not arbitrary. The court and appellant’s counsel discussed the best way to handle the situation. Alternatives were considered, and appellant’s counsel had an opportunity to question the juror and did not do so. We find nothing but correct conduct on the part of the trial judge in this regard.

II

Appellant next contends that the appellant’s right to a fair trial was denied when the prospective juror, Mrs. Annie Julia Lewis, failed to answer “yes” to the question whether any prospective jurors knew Lue Ella Cook. On the basis of the testimony of Mrs. Cook and Mrs. Lewis, Mrs. Lewis quite properly did not answer in the affirmative at that time, since she had not recognized Mrs. Cook as her childhood acquaintance of 35 years before. This was, at the time, a truthful response. It is not every failure to respond to voir dire questions which entitles appellant to a new trial.

In Pugh v. State, 355 So.2d 386 (Ala.Crim.App.), cert. denied, 355 So.2d 392 (Ala.1977), this court, quoting the Alabama Supreme Court in Freeman v. Hall, 286 Ala. 161, 238 So.2d 330, stated as follows:

“Although the factors upon which the trial court’s determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.
“We are mindful of the heavy responsibility placed on the trial court to maintain the statutory right which parties have to a full and truthful disclosure by jurors on voir dire. However, we must also be aware of inadvertent concealment and failure to recollect on the part of prospective jurors.”

Again, in Pugh, this court stated:

“This Court will review the trial court’s ruling on motion for new trial predicated on a juror’s failure to answer questions propounded on voir dire examination only for abuse of discretion in its determination as to probable prejudice. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970); Smithson v. State, 50 Ala. App. 318, 278 So.2d 766 (1973).”

We find that the appellant was not denied the right to a fair and impartial trial as a result of these occurrences.

Ill

Appellant next contends that the court erred in denying appellant’s motion for a new trial on the ground of the juror’s contact with the witness. Whether or not to grant a motion for new trial is also a matter within the discretion of the trial court. Watson v. State, 389 So.2d 961 (Ala.Crim.App.1980); Hollins v. State, 415 So.2d 1249 (Ala.Crim.App.1982); Young v. State, 346 So.2d 509 (Ala.Crim.App.1977). In Gaffney v. State, 342 So.2d 403 (Ala.Crim.App.1976), cert. denied, 342 So.2d 404 (Ala.1977), the court was faced with a situation where a juror and the mother of the deceased victim had a conversation during the course of the trial. Both of them testified that they said nothing about the case. This court stated:

“The prejudicial effect of communications between jurors and others, especially in a criminal case, determines the reversible character of the error. Whether there has been a communication with the juror and whether it has caused prejudice are fact questions to be determined by the Court in the exercise of sound discretion. The evidence pertaining to the conduct of this juror was submitted at the hearing on Motion for a New Trial. It became the duty of the trial judge to exercise his reasonable discretion in weighing and determining such evidence and making his decision thereon. His ruling and determination will not be disturbed in the absence of a showing of abuse of discretion. Such abuse was not, in our opinion, in any way evident.”

IV

Appellant next contends that the court erred in sentencing the defendant and then overruling his motion for a new trial on the grounds that the state failed to properly prove the prior felony convictions. The state offered certified copies of three prior felony convictions. In rebuttal, the defense offered into evidence pages from the telephone directories of Mobile, Tuscaloosa, Montgomery, and Birmingham, Alabama, to indicate that the name Glen Davis is a common name and that the first name may be spelled in at least two different ways.

There is a prima facie presumption that where two names are identical that those names refer to the same person. Esco v. State, 278 Ala. 641, 179 So.2d 766; Ex parte Davis, 200 Ala. 577, 76 So. 935; Dunaway v. State, 278 So.2d 200, 50 Ala. App. 200, cert. denied, 278 So.2d 205, 291 Ala. 93. We find that introduction from the pages of the telephone directories did not rebut the presumption of sameness of person. The certified copies of the prior convictions were properly received into evidence and the court properly relied on them in sentencing in this case.

Accordingly, this case is due to be affirmed.

AFFIRMED.

All the Judges concur except BOWEN, P.J., who concurs in result only.


author: BOWEN, Presiding Judge.

text:
    Anthony CHAPPELL v. STATE.
    5 Div. 897.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 1984.

      William L. Nix, West Point, Ga., for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas K. Brantley, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

In 1981, Anthony Chappell pled guilty to second degree assault and, after a jury trial, was convicted of attempted murder. For each offense, he received a sentence of six years’ imprisonment. In 1983, Chappell filed a petition for writ of error coram nobis. This appeal is from the denial of that petition.

I

Chappell is entitled to have his appeal from the conviction of attempted murder reinstated. That appeal was originally affirmed by this Court without published opinion. Chappell v. State, 416 So.2d 1115 (1981). Because Chappell’s appellate counsel failed to file a brief in support of that appeal, Chappell is entitled to an “out-of-time” appeal. Longmire v. State, 443 So.2d 1265 (Ala.1982); Peterson v. State, 428 So.2d 201 (Ala.Cr.App.1983). See also Mylar v. Alabama, 671 F.2d 1299 (11th Cir.1982), cert. denied, Alabama v. Mylar, — U.S. —, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983).

II

Chappell contends that he is entitled to a new trial because his retained trial counsel failed to call two eyewitnesses who could testify to his innocence. While the failure of counsel to investigate a potential source of exculpatory information may amount to ineffective assistance of counsel, United States v. Baynes, 687 F.2d 659, 673 (3d Cir.1982), “[t]he decision not to call a particular witness is usually a tactical decision not constituting ineffective assistance of counsel.” Oliver v. State, 435 So.2d 207, 209 (Ala.Cr.App.1983). See also Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Cronic, — U.S. —, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In reviewing a claim of ineffective assistance of counsel, courts must consider the totality of the circumstances of each case. Williams v. Maggio, 695 F.2d 119, 123 (5th Cir.), cert. denied, 461 U.S. 917, 103 S.Ct. 1901, 77 L.Ed.2d 288 (1983); Bell v. Wat kins, 692 F.2d 999, 1009 (5th Cir.), cert. denied, Bell v. Thigpen, — U.S. —, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983); Gray v. Lucas, 677 F.2d 1086, 1092 (5th Cir.1982), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983). For this reason, we withhold a determination of this issue so that we may have the benefit of the trial record and the matter considered on reinstatement of Chappell’s appeal.

The existence of the two eyewitnesses was known to both Chappell and his attorney at trial. Therefore, he is not entitled to a new trial on the ground of newly discovered evidence. Summers v. State, 366 So.2d 336, 340 (Ala.Cr.App.1978), cert. denied, Ex parte Summers, 366 So.2d 346 (Ala.1979). “Evidence is not considered newly discovered where a failure to thoroughly examine a witness prevents the earlier discovery of new or different testimony.” Johnson v. State, 439 So.2d 1340, 1342 (Ala.Cr.App.1983). This rule applies even where the witness does not actually testify at trial but whose existence is known to either the defendant or his attorney. Ward v. State, 49 Ala.App. 710, 712, 275 So.2d 690 (1973); Barnes v. State, 415 So.2d 1217, 1219 (Ala.Cr.App.1982).

The judgment of the circuit court denying the petition for writ of error coram nobis is reversed. The affirmance of Chap-pell’s conviction for attempted murder in Chappell v. State, 416 So.2d 1115 (1981), is set aside and the appeal in that case is reinstated. Chappell’s present counsel, William L. Nix, is appointed to represent him on appeal. The time for filing briefs is to begin to run from the release date of this opinion.

REVERSED AND RENDERED.

All Judges concur.