text:
    Barry SCOTT v. HARLEY DAVIDSON MOTOR COMPANY, INC.; Tom Foley; Commercial Union Insurance Companies, Inc., et al.
    Civ. 4065.
    Court of Civil Appeals of Alabama.
    April 18, 1984.

      Stephen Harrison of Burns, Shumaker & Davis, Gadsden, for appellant.
    Mark W. Lee of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellees.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Barry Scott, an employee of Harley Davidson Motor Company, was injured on August 5, 1981 while performing his job of a test rider mechanic. After being treated in Citizens Hospital, Talladega, Alabama, as an emergency patient, Scott was released that same day. Later that day Scott consulted Dr. Graves. Dr. Graves found that Scott had suffered bruises and scrapes to his left hand and arm and to his back. There was no complaint of neck injury.

The first time that Scott complained of pain to the neck was in February 1982, when he consulted a chiropractor.

Scott filed a workmen’s compensation claim in the Circuit Court of Etowah County in July 1982, alleging that he had suffered a neck injury while working for Harley Davidson. The case was tried on August 29, 1983 and judgment rendered for employer on September 20, 1983. Scott appeals.

Scott says here that the trial court erred by failing to comply with the requirements of section 25-5-88, Code 1975. He says that the trial court's findings of fact and conclusions of law failed to include a statement or reference to the law upon which the court made its decision.

In essence, section 25-5-88 requires the trial court to include in its judgment a statement of the law applicable to the case, the facts as they relate to the law, and the resulting conclusion. We have held that substantial compliance with this section is sufficient. Republic Steel Corp. v. Kimbrell, 370 So.2d 294 (Ala.Civ.App.), cert. denied, 370 So.2d 297 (Ala.1979).

Of course, as we have also said, it would be helpful to this court for the trial court to include in its judgment the applicable section or sections of the workmen’s compensation law being relied on by the court. Henderson v. Johnson, 49 Ala.App. 191, 269 So.2d 905 (Ala.Civ.App.1972). But, where it clearly appears from the record that the case is a workmen’s compensation case and that a determination has been made by the trial court that the claimant is not entitled to benefits, we consider that a substantial compliance has been made with that portion of section 25-5-88 which requires the trial court to include a statement of the law in its judgment.

In the case at bar, it was clearly evident that Scott was an employee of Harley Davidson, that he was injured while on the job, and that he was claiming benefits as a result of that injury. After detailing the facts relating to Scott’s injury, the trial court found that Scott had not proved that he had suffered a compensable injury while employed by Harley Davidson.

We consider the trial court’s judgment to be in substantial compliance with the provisions of section 25-5-88.

AFFIRMED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Hallie C. WILSON v. Walter M. WILSON.
    Civ. 4079.
    Court of Civil Appeals of Alabama.
    April 18, 1984.
    Norborn C. Stone, Jr. of Stone, Partin, Granade & Crosby, Bay Minette, for appellant.
    Julian B. Brackin and Thack H. Dyson of Foster, Brackin & Bolton, Foley, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

The circuit court divorced the parties and made a division of property. The wife, through able and distinguished counsel, appeals contending that the trial court erred in its division of property.

The parties to this divorce were married in 1974. At the time of the divorce, the husband was eighty-three years old and the wife was sixty-six. The trial court granted the divorce on the grounds of incompatibility of temperament.

The trial court in its division of property awarded the parties each their separate estate that they had accumulated both before and during the marriage. Among the property jointly owned, the husband received the homeplace, which included a house and small cottage, with an approximate value of $225,000. The wife was awarded real property on which is located two rental houses; the total approximate value of this property is $80,500. In addition, the parties owned during the marriage fifty percent of certain real estate. The trial court gave each party an undivided one-half interest in the fifty percent interest. Put another way, of the property jointly owned, certain property was equally divided; the wife received sole title to one parcel, and the husband was awarded the home.

It is axiomatic that division of property is within the sound discretion of the trial court and each case must stand on its own facts. Boggan v. Boggan, 398 So.2d 710 (Ala.Civ.App.1981). The division of property does not have to be equal, only equitable. Factors to be considered in the division of property include the future prospects of the parties, their ages, sex, health, station in life, and length of marriage. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981).

Furthermore, we find the following general principle of law to be appropriate to the instant appeal. When the parties to a divorce action submit themselves to the jurisdiction of the court for the division of jointly owned property, the court has the authority to make such division as equity requires. Morgan v. Morgan, 402 So.2d 984 (Ala.Civ.App.), cert. denied, 402 So.2d 990 (Ala.1981). Also, the trial court has the power to use any reasonable means to effect a just property settlement and just equities between the parties. Simmons v. Simmons, 422 So.2d 799 (Ala.Civ.App.1982).

In the present case the marriage between the parties was of a relatively short duration, some eight years. The husband is over eighty years old and it is doubtful that his earning capacity will increase, or for that matter, remain at its present level. By comparison the wife is younger. She opened a business in January 1983 which at the time of trial had an inventory of somewhere between $10,000 and $40,000. The wife had previously owned a similar business and presumably she has some experience in that area. The husband is in poor health and is required to take medication daily. There is no indication that the wife’s health is anything other than normal for a woman some sixty-six years old.

Throughout their marriage the parties maintained separate estates. At the time of the divorce, the wife had a separate estate of over $400,000, mostly unencumbered real estate, including a recently built house situated on land owned by the wife where she now resides. The husband also has a separate estate worth several hundred thousand dollars.

The wife contends that consideration should be given to financial contributions she made for the parties’ benefit during their marriage, and the fact that the husband gave her half interest in the marital homeplace shortly after they were married.

The home was the husband’s before the marriage. After the parties married, they lived temporarily in the wife’s house while the husband’s house was being enlarged to accommodate the newlyweds. The wife contends that she contributed sums towards the remodeling of the house. When they moved into the newly remodeled house, the wife sold her house. It is not clear from the record where the proceeds from the sale of the wife’s house went nor how much she contributed towards the remodeling of the husband’s house. In any case, it is apparent from the record that both parties contributed financially to the marriage in an effort to maintain a comfortable standard of living.

Be that as it may, the trial court is empowered to adjust all equities between the parties in a divorce proceeding. Tidwell v. Tidwell, 379 So.2d 614 (Ala.Civ.App.1980). Here each party kept his or her own separate property. The jointly owned property was divided almost equally with the husband receiving a slightly larger share in that he retained the marital home. However, in all fairness, this home had been the husband’s home for some thirty years, long before the parties married. Also, the wife was not left without a place to live as seen from the above.

In view of the wife’s sizable separate estate, the husband’s age and health, the relatively short duration of the marriage, and the favorable presumptions accorded the trial court’s decree, it was not an abuse of discretion to divide the property as was done in this case. In fact this court would comment that the trial court’s action appears to be quite equitable to all concerned. Hence, no error.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Elman Huey ROBERTS v. Josephine C. ROBERTS.
    Civ. 4137.
    Court of Civil Appeals of Alabama.
    April 18, 1984.
    Bill Wynn, Hueytown, for appellant.
    Stephen R. Arnold of Durward & Arnold, Birmingham, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

In this divorce case the issue is whether the trial court’s award of periodic alimony and division of property was so palpably wrong as to constitute an abuse of discretion.

The wife was given the residence of the parties and two adjoining lots with a total value of about $40,000 subject to a mortgage of $31,000 which the wife was required to pay. She also received the furniture and home furnishings. The husband was awarded a river lot worth about $8,000, two lake lots valued at between $11,000 and $20,000 and an automobile, boat and motor.

As periodic alimony, the husband was ordered to pay $400 per month commencing in November 1983, however, that amount was to be reduced automatically to $200 monthly when the wife became eligible to draw social security benefits in March 1984. Both parties are unemployed. The husband receives disability benefits from his former employer of $499 monthly together with $450 each month from the Social Security Administration. In two years the husband will be eligible for retirement benefits from his former employer.

Since the evidence was heard orally by the circuit court, the final judgment is presumed to be factually correct and must be affirmed if it was supported by credible evidence unless it was palpably wrong. Further, the trial court is granted much latitude in exercising its discretion in the award and amount of periodic alimony as well as in making an equitable division of the property of the parties and we cannot disturb the decision of the trial court as to those matters unless that discretion was clearly abused. Kaiser v. Kaiser, 434 So.2d 264 (Ala.Civ.App.1983); Casey v. Casey, 421 So.2d 128 (Ala.Civ.App.1982).

The division of property favored the husband. The real estate awarded to him was worth between $19,000 and $28,000, while the house and two lots granted to the wife had a net value of only about $9,000. The $400 per month of periodic alimony lasted but five months and was reduced in March 1984 by the terms of the divorce judgment to $200 monthly. His present total monthly disability income amounts to $949.

The trial court did not abuse its judicial discretion regarding any argued issue. According to the statement of the evidence as settled and approved by the trial court pursuant to rule 10(d), Alabama Rules of Appellate Procedure, the holdings of the trial court were fully supported by the testimony. The judgment was reasonable and was not palpably wrong.

We affirm;

The wife has requested an attorney’s fee upon this appeal. The defendant shall pay the amount of $350 for that purpose.

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.


text:
    MITCHELL BROTHERS CONTRACTORS, INC. v. Will BENSON and Louise Benson.
    Civ. 4162.
    Court of Civil Appeals of Alabama.
    April 18, 1984.

      William A. Scott, Jr. and W. Scott McGarrah, III of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellant.
    Rodney E. Nolen of Cicio & Nolen, Birmingham, for appellees.
   HOLMES, Judge.

The plaintiff sued the defendants, Wood and Mitchell Real Estate Company, as a result of an automobile accident. A judgment by default was entered against Wood and Mitchell Real Estate Company. The defendants thereafter via a rule 60(b) motion, Alabama Rules of Civil Procedure, sought relief from the judgment contending that there was no service of process. The trial court denied the relief sought.

The plaintiff then by appropriate motion sought to “amend” the judgment by changing Mitchell Real Estate Company to Mitchell Brothers Contractors, Inc., alleging that they are one and the same entity. The trial court granted relief to the plaintiff amending the judgment to read in pertinent part “Mitchell Brothers Contractors, Inc., doing business as Mitchell Real Estate Co.”

The defendant, Mitchell Brothers Contractors, Inc., through able counsel appeals and we affirm.

The dispositive issues are whether the trial court erred in refusing to set aside the “original” judgment against Mitchell Real Estate Co. for lack of proper service and whether the trial court erred in allowing the judgment-to be amended as indicated previously.

I

As to the first issue, it appears there was competent evidence that service of process upon Mitchell Real Estate Co. was properly effected.

The following is relevant to the issue of service of process:

The summons shows the defendant’s address as 1052 Forestdale Blvd, Birmingham, Alabama. The defendant submitted an affidavit to support its motion to set aside the judgment which admitted that Mitchell Brothers Contractors, Inc. has the same address and does business under the name Mitchell Real Estate Co.

A hearing was held on defendant’s motion for relief and evidence was heard by the trial court on the issue of whether service of process was effected. The summons shows on its face the sheriff’s return of service. It is suggested in brief that the deputy sheriff who served the summons testified at length and in detail on this matter. Unfortunately, the record does not contain a transcript of this evidence. Be that as it may, a sheriff’s return of service is prima facie evidence of its correctness, and the party challenging it has the burden of establishing lack of service by clear and convincing proof. Raine v. First Western Bank, 362 So.2d 846 (Ala.1978). Furthermore, a sheriff’s return will not be invalidated upon the uncorroborated statement of the parties in which they deny service upon them. Raine, at 846.

In the case at bar, the trial court heard evidence on the issue of whether service of process was properly effected. In the absence of any record showing what occurred or what was presented to the trial court, we must assume that the action of the trial court was supported by the proof. Chiriaco v. Jacks, 421 So.2d 1272 (Ala.Civ.App.1982). This combined with the favorable presumption accorded the sheriffs return of service leads us to the conclusion that service of process upon Mitchell Real Estate Company was proper in this case.

II

The defendant, Mitchell Brothers Contractors, Inc., contends that the trial court erred in amending the judgment to read “Mitchell Brothers Contractors, Inc., doing business as Mitchell Real Estate Co.” We respectfully do not agree.

As alluded to earlier, Mitchell Brothers Contractors, Inc. submitted an affidavit in support of its 60(b) motion for relief from the judgment wherein it admitted to doing business under the name Mitchell Real Estate Company. The address on the summons to Mitchell Real Estate Company and the address given in the affidavit as being that of Mitchell Brothers Contractors is the same.

The amendment to the judgment was in fact and effect a mere change in the capacity of the defendant. First National Bank of Birmingham v. Chichester, 352 So.2d 1371 (Ala.Civ.App.), cert. denied, 352 So.2d 1376 (Ala.1977); appeal after remand, 360 So.2d 284 (Ala.1978). It can be said that Mitchell Brothers Contractors, Inc. and Mitchell Real Estate Company are one and the same, and service on Mitchell Real Estate Company is notice to Mitchell Brothers Contractors.

“There was such an identity of interest between [Mitchell Bros. Contractors, Inc. and Mitchell Real Estate] that a suit against [it] in one capacity was notice to [it] in the other capacity.” First National Bank of Birmingham v. Chichester, 352 So.2d 1371, 1373 (Ala.Civ.App.), cert. denied, 352 So.2d 1376 (Ala.1977); appeal after remand, 360 So.2d 284 (Ala.1978). In fact, as shown above Mitchell Brothers Contractors admitted by the aforementioned affidavit that Mitchell Real Estate Company and Mitchell Brothers Contractors, Inc. are one and the same.

In view of the instant facts in this case, specifically the same entity doing business under different names, no prejudice occurred in allowing the judgment to be amended to reflect the correct name of the defendant.

This ease is due to be and is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Roderick MITCHELL v. STATE of Alabama.
    Civ. 4206.
    Court of Civil Appeals of Alabama.
    April 18, 1984.

      L. Dan Turberville, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   BRADLEY, Judge.

This is a paternity case.

Roderick Mitchell was charged with being the father of an illegitimate child. The mother is Carla Tompkins. A jury found Mitchell to be the father of the child and, after being so adjudged by the Circuit Court of Jefferson County, he appeals to this court.

Mitchell’s first issue is that he was denied the right of confrontation because the complaining witness, Carla Tompkins, did not identify him in court as the father of her child.

The confrontation clause of the sixth amendment to the United States Constitution provides that a person charged with a criminal offense has the right to be confronted by the witnesses against him. To like effect, is the sixth section of article one of the 1901 Alabama Constitution.

In Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), the United States Supreme Court said that the primary interest secured by the confrontation clause is the right to cross-examination, and that adequate opportunity for cross-ex-animation may satisfy the clause even in the absence of physical confrontation.

The Alabama Constitution has also been construed to accord to a criminal defendant the right to confront the witnesses against him and to cross-examine them. Hembree v. City of Birmingham, 381 So.2d 664 (Ala.Cr.App.1980).

Carla Tompkins, the mother of the illegitimate child, testified that she knew Roderick Mitchell, the defendant in the case. She later testified without objection that in her opinion Roderick Mitchell was the father of her child. Moreover, the mother of Carla Tompkins and Joyce Tank-ersley, a neighbor, identified Roderick Mitchell as the defendant in open court. All of these witnesses were cross-examined by Mitchell’s attorney. No error in this aspect of the case.

Mitchell next says that the court erred in not excluding the following testimony by the witness Carla Tompkins:

“Q. Who is currently providing the support for Brandon Tompkins?
“A. I receive ADC and my brother helps me take care of my baby.
“Q. What is ADC, please, ma’am?
“A. Aid To Dependent Children by the state.
“MR. ADAMS: That is all I have at this time, answer 'Mr. Turberville’s questions.
“THE COURT: Mr. Turberville.”

As noted by the State, Mitchell did not object to the above questions when they were asked, nor did he move to exclude the answers after they were given.

An objection to the introduction of evidence must be made after the question is asked and before an answer is given. An Objection made after an answer is given is too late. Harrison v. State, 358 So.2d 759 (Ala.Cr.App.1977), rev’d, on other grounds, 358 So.2d 763 (Ala.1978). Moreover, the court will not be put in error in the above situation unless a motion to exclude is made and an adverse ruling given thereon. Harrison v. State, supra.

In the instant case no objection was made to the questions asked, nor was there a motion to exclude the answers. No error here.

Mitchell’s next contention is that the trial court erred in allowing the State’s attorney to read only a part of the complaint against him. Mitchell says that by not requiring the prosecutor to read the entire complaint to the jury they were not fully apprised of the charges against him.

The State answers that a reading of the entire complaint is not required; all that is required is that the jury be fairly apprised of the charges against an accused.

The reading of an indictment to the jury is not required; only that the jury be fairly informed of the charges against the accused. Wiggins v. State, 347 So.2d 543 (Ala.Cr.App.1977). We also note that it has been accepted practice for the indictment to go to the jury room with the jury. Wiggins v. State, supra. But see, Temp.R. 14, A.R.Crim.P.

Prior to the beginning of the trial, the trial judge informed the jury of the charges against Mitchell, the prosecutor read the portion of the complaint detailing the charges against Mitchell, and the trial judge, again when he instructed the jury on the law at the conclusion of the trial, informed the jury of the nature of the charges against Mitchell.

The jury was fairly informed of the charges against Mitchell and the trial court did not commit reversible error in not requiring the State’s attorney to read every word in the complaint.

Mitchell’s final contention is that the verdict of the jury finding Mitchell to be the father of Carla Tompkins’s child was against the great weight of the evidence.

The evidence shows that Carla met Mitchell the last of December 1980 and went with him on a steady basis until the latter part of 1981. She started having sex with Mitchell on a regular basis the last of January 1981. These sexual encounters continued until the fall of 1981. She stated she had sex with no one else. The baby was born February 24, 1982. There was testimony from Carla’s mother and a neighbor that Mitchell saw Carla regularly during the spring and summer of 1981.

There was testimony that Mitchell and several of his friends had sexual relations with Carla a few times in April and May of 1981. Mitchell and his friends testified that Carla was a prostitute and that she was paid for her services.

The weight of the evidence, the credibility of the witnesses, and the inferences to be drawn from the evidence are for the jury to determine. Walker v. State, 416 So.2d 1083 (Ala.Cr.App.1982).

We find the verdict of the jury to be amply supported by the evidence, and the overruling of the motion for new trial on this ground was not error.

Although not presented as an issue on appeal, Mitchell, in a one paragraph statement containing no citation of authority, argued that the trial court erred in not retracting a statement made to the jury that the purpose of the paternity proceeding was to require Mitchell to support his illegitimate child.

Rule 28(a)(3), Alabama Rules of Appellate Procedure, requires that a brief contain a statement of the issues presented for review, with principal authorities cited in support of such issues.

As noted, Mitchell did not make this contention one of his issues on appeal, nor did he support the contention with a citation of authority. In this posture we consider that this argument has not been properly presented to this court for review.

No reversible error having been properly pointed out, judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Daniel L. MURPHY v. Veronica L. MURPHY.
    Civ. 3964.
    Court of Civil Appeals of Alabama.
    April 25, 1984.

      S. Mark Jordan, Enterprise, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a child support case.

The parties were divorced on December 2, 1982, by an Ohio divorce decree, which granted the custody of Jennifer, the minor child of the parties, to the mother and ordered the father to pay the mother $100 per month as child support. The mother became a resident citizen of Alabama and on May 18, 1983, filed a complaint in the Circuit Court of Dale County, seeking satisfaction of the Ohio decree as to custody, an increase in child support and her attorney’s fees. The father answered the complaint on June 8, 1983, and filed a motion to dismiss and a counterclaim on July 13, 1983, the date of the trial. His motion to dismiss was never ruled upon by the trial court. The counterclaim alleged that the mother had denied him visitation privileges with the child. He sought ratification of the Ohio divorce judgment and the enforcement of his visitation privileges as granted in a June 1983 Ohio judgment.

Before the trial started, the parties reached a full agreement that the Alabama court enforce the Ohio court’s June 1983 decree as to the father’s rights to visit with Jennifer. Evidence from both the mother and the father was heard by the trial court, and the testimony was limited to the sole issue of Jennifer’s support. The final judgment of July 21, 1983 enforced the Ohio adjudication of the father’s rights of visitation with the child in accordance with the pretrial agreement of the parties. As to future child support, the father was ordered to pay to the mother $200 each month. The father was directed to pay $150 as an attorney’s fee for the mother’s legal representation in the case. The father appealed.

His first issue is that the trial court erred “by not granting” his motion to dismiss. The circuit court did not rule upon that motion. In the absence of an adverse ruling thereon by the trial court, we have nothing to review. Statham v. Statham, 282 Ala. 322, 211 So.2d 456 (1968); Rountree v. Sanders, 413 So.2d 1159 (Ala.Civ.App.1982).

The father further complains that the trial court should not have modified the Ohio decree by increasing the child support award. He contends that no material change in the circumstances was disclosed by the evidence.

In viewing the testimony under the prevailing presumptions, the following pertinent facts are revealed. The mother testified that $100 per month was inadequate support for the three-year-old child. Jennifer’s clothing costs $20 monthly and she will be enrolled as a first-time student in a church school for above average three-year-olds at a per-month cost of $84. The mother, her parents and Jennifer reside together and their total monthly food bill is about $400, while their rent is approximately $600 each month. She estimated Jennifer’s monthly expenses at $270. After the divorce, the mother began to work, but recently became unemployed in order to nurse a seriously-ill parent. The mother then had no income. The father’s gross military salary and allowances is $1,965 each month and he nets $1,308. Among deductions from his earnings are allotments of $171 to a credit union for the repayment of loans and $200 for the support of his two children by his first marriage. His present income is the same as when the parties were divorced.

A provision in a divorce judgment for the support of a child, as to installments not yet accrued, is not entitled to the protection of the full faith and credit clause since no money is yet due. Green v. Green, 239 Ala. 407, 195 So. 549 (1940). In Murphy v. Murphy, 395 So.2d 1047 (Ala.Civ.App.1981), a Georgia divorce decree ordered the husband to pay $50 per week for child support. Subsequently, both parties moved to Alabama, and litigation ensued in Alabama concerning child support. From an adverse final judgment, the wife appealed and, as to presently relevant matters, this court determined as follows:

“The appellant next claims that the trial court erred in setting the amount of support payable in the future at $30 per week. Appellant views this as a modification of the Georgia decree’s $50 per week support provision and challenges the authority of the circuit court to so modify. Alabama courts may modify support provisions in a sister state’s divorce decree with respect to future installments when the parties are properly before it. Wood v. Wood, 275 Ala. 305, 154 So.2d 661 (1963); Green v. Green, 239 Ala. 407, 195 So. 549 (1940). Although this matter was initiated by the appellant as a contempt proceeding, and we find no petition for modification, the record tends to indicate that it evolved into inclusion of present ability of appel-lee to pay future child support.
“We view the order setting future support at $30 per week not as a modification of the Georgia decree, but as an original order of support. The parties were before the court. It had jurisdiction to enter an order for support.”

395 So.2d at 1049.

These parties also were both before the trial court. The child resided with the mother in Alabama. The circuit court had both in personam and subject matter jurisdiction and was authorized to enter a child support judgment.

A modification in child support must be founded upon changed circumstances as to the child’s needs or as to the means of the parents and is a matter for the exercise of the judicial discretion of the trial court. Taylor v. Taylor, 412 So.2d 1231 (Ala.Civ.App.1981). Where the evidence was heard by the trial court, that court’s finding is presumed to be correct and will not be disturbed upon appeal if it was supported by the evidence unless it was palpably wrong. Kaiser v. Kaiser, 434 So.2d 264 (Ala.Civ.App.1983); Casey v. Casey, 421 So.2d 128 (Ala.Civ.App.1982). In a child support case, a support award based upon the needs of the child and the ability of the parents to pay falls within the discretion of the trial court. Tucker v. Tucker, 403 So.2d 262 (Ala.Civ.App.1981). Here, the judgment of the trial court was not palpably wrong and was supported by the testimony regardless of whether the final judgment be viewed as an original order of support or as a modification of the Ohio support judgment. No abuse of discretion is revealed by a thorough study of the entire evidence. We find no error as to that issue.

The grant of an attorney’s fee to the mother in this case was within the discretion of the trial court, and there was no abuse in that award of $150. Taylor v. Taylor, supra.

The judgment of the trial court is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Lucy MILLER v. Evelyn PARVIN.
    Civ. 3982.
    Court of Civil Appeals of Alabama.
    April 25, 1984.
    Dan C. Totten, Athens, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a statutory ejectment case.

The plaintiffs complaint sought the possession of certain land and damages for its detention. In her answer the defendant disclaimed any interest, legal or equitable, in and to the suit property.

At the nonjury trial it was uncontradict-ed that in July 1977 the plaintiff, through inheritance from her father, became and still remains the owner of the property, and that, at that time and ever since, the defendant possessed a portion of the plaintiffs land. The defendant owns adjoining property upon which is located a motel. The motel’s field lines for its septic system are situated upon the plaintiff’s real estate. The plaintiff did not demand possession of the land from the defendant prior to filing her complaint. The plaintiff testified that the reasonable rental value of the part of her property which was used by the defendant was $50 per month. As was stated in the defendant’s brief, the sole contested issue at the trial was the amount of damages, if any, to be awarded to the plaintiff. The trial court rendered a judgment for the plaintiff for the possession of the property, and entéred a judgment for the plaintiff and against the defendant for $3,450 for the use, detention, and occupancy of the land. That figure is obviously an award of $50 for each of the sixty-nine months from July 1977 to the date of the trial.

The defendant has appealed and complains that the evidence was inadequate and that an excessive judgment was rendered against the defendant. The plaintiff’s motion to strike the defendant’s brief is overruled. The plaintiff has filed no brief in this court.

A plaintiff may recover for mesne profits and for other damages in a statutory ejectment action. § 6-6-280, Code 1975. Only mesne profits are here involved. The term “mesne profits” has been stated to mean compensation for the use and occupation of land which is the fair rental value of the property during the period of the tortious holding. Profile Cotton Mills v. Calhoun Water Co., 204 Ala. 243, 85 So. 284 (1920); Scott v. Coulson, 156 Ala. 450, 47 So. 60 (1908). The Profile Cotton Mills case is cited by general legal treatises as authority for the proposition of law that, ordinarily, mesne profits consist of the reasonable rental value of the real estate during the period of the defendant’s wrongful possession or occupancy of it. C. McCormick Handbook of the Law of Damages, § 126 (1935); 28 C.J.S. Ejectment § 144 (1941). The general definition of “mesne profits” is the value of the use or occupation of land during the time that it was wrongfully possessed by one, and it is commonly measured in terms of rents. Black’s Law Dictionary 893 (5th ed. 1979). The courts of this state in employing the words “tortious holding” did not mean that it was essential that the defendant commit a separate tort in order for the plaintiff to recover mesne profits in a statutory ejectment action, but “tortious” is used synonymously with “wrongful.” Our supreme court has held that the words “during the detention” mean the same thing as “during the period of tortious holding.” Wiggins v. Stewart Brothers, 215 Ala. 9, 109 So. 101 (1926).

The defendant claimed no interest whatsoever in the property and that disclaimer included and extended to any right to its possession. The evidence does not disclose the reason the defendant possessed the land of the plaintiff for the previous sixty-nine months. The record, evidence, and the defendant’s brief are entirely devoid of any lawful reason or right which the defendant claimed at any time in order to possess the land, such as the defendant being a licensee, a lessee, or a tenant. Since she had no legal interest in the property and no possessory right in and to the plaintiff’s land, the defendant's possession of it was wrongful and mesne profits were recoverable from her.

In some instances a demand by a landowner of an occupant for the possession of the land is necessary to terminate the occupier’s right to possession. This is true where the person who occupies the land was originally rightfully in possession of it. Accordingly, a demand for possession is ordinarily essential to end the right of possession of a tenant at will, or of a licensee, or of a mortgagee of a foreclosed mortgage. In those instances, a holding over after the demand and the subsequent expiration of any Code-specified time constitutes a wrongful possession of the property by the occupant for which a recovery of the reasonable rental of the land may be had for the time that the occupier thereafter remains in such wrongful possession. The defendant contends that, no demand having been made by the plaintiff of the defendant for the possession of the land until suit was filed, the plaintiff could, at most, recover only the reasonable rental value of the land for the nine months from the time of the filing of the case to the date of the judgment. However, under the situation that existed m this case, no demand by the plaintiff for its possession was a prerequisite to the recovery of mesne profits from the defendant for the entire period of sixty-nine months.

We affirm since the award to the plaintiff was supported by the record and by the law. The opinion on rehearing of the supreme court in Profile Cotton Mills v. Calhoun Water Co., supra, is especially applicable.

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

AFFIRMED.

All the Judges concur.


text:
    Rhonda Gail EMMONS v. Steve Jessie EMMONS.
    Civ. 4030.
    Court of Civil Appeals of Alabama.
    April 25, 1984.
    Julian L. McPhillips, Jr., McPhillips & DeBardelaben, Montgomery, for appellant.
    James E. Hart, Jr., Brewton, for .appel-lee.
   HOLMES, Judge.

This is a child custody case.

The trial court divorced the parties and entered in pertinent part the following order regarding the parties’ now approximately three-year-old child.

“That the care, custody and control of the minor child of the parties, namely: Steve Jessie Emmons, Jr., is hereby awarded jointly to the Plaintiff and Defendant who shall alternate custody as follows: The Plaintiff and Defendant shall alternate the care, custody and control 'of the minor child every six (6) weeks.... The Defendant shall have the right to have said minor child visit with him at his home every other weekend, during the Plaintiff’s custody period, from Friday until Sunday.... The Plaintiff shall have the right to have said minor child visit with her at her home every other weekend, during the Defendant’s custody period, from Friday until Sunday.”

The mother, through able counsel who has favored this court with an excellent brief, appeals contending that the trial court erred to reversal in its award of custody. We find no error and affirm.

This court recognizes a form of “joint or split” custody in Kilgore v. Kilgore, 54 Ala.App. 336, 308 So.2d 249 (1975). In Kilgore, the following is found which is appropriate and dispositive.

“[I]t is also a generally accepted proposition that each child custody case is to be decided on its own peculiar facts and circumstances. Sneed v. Sneed, 248 Ala. 88, 26 So.2d 561. And, the trial court’s judgment in these matters will not be overturned unless it is plainly and palpably wrong, for much discretion is reposed in the trial court for the settlement of lengths of custody in each parent when that custody is divided between the parents, and visitation rights. Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891.”

Id. at 252. See also Ala.Digest, Divorce, Key No. 296.

In the instant case, evidence which supports the trial court’s action is as follows: The child is only approximately three years old (non-school age); both parents appear to be fit and loving parents; neither party must travel a great distance (approximately thirty-five miles) to obtain physical custody; each party resided with his or her respective parents and the grandparents’ homes were “proper” homes for the child to reside in, and furthermore, a prior temporary order providing for a form of joint custody or split custody appears, by the mother’s own testimony, to have worked out well.

In view of the above, for this court to reverse would be to substitute our judgment for that of the trial court. This the law does not permit. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980). We should not be understood as finding that under different facts the instant order would be proper. Of particular note, in this instance, .is the fact that the child is very young. As counsel for the father stated to the trial court, a different result might be appropriate when the child reaches school age.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Thomas C. ADAMS, III v. BAY MINETTE PRODUCTION CREDIT ASSOCIATION.
    Civ. 4117.
    Court of Civil Appeals of Alabama.
    April 25, 1984.

      Robert E. McDonald, Jr., Mobile, for appellant.
    Charles C. Simpson, III of Owens, Latour & Simpson, Bay Minette, for appellee.
   ROBERT M. PARKER, Retired Circuit Judge.

This is an appeal from summary judgment granted in favor of plaintiff-appellee.

Bay Minette Production Credit Association filed suit on a promissory note executed by Offshore Trawlers, Inc. and appellant on January 30, 1980. The promissory note arose out of these facts: Bay Minette Production Credit Association arranged to make a shrimp boat loan to Offshore Trawlers, Inc. and Thomas C. Adams, III as co-maker. Under the provisions of 12 U.S.C. § 2094 (1982), a borrower must own Production Credit Association Class “B” Stock, at value of $5 per share, equal to ten percent of his indebtedness to the Association. Two loans were made to Offshore Trawlers, Inc. and Thomas C. Adams, III. One loan was in the sum of $316,900 for purchase of the shrimp boat and one note in the sum of $35,220 for purchase of stock required by law to be eligible for the boat loan. Both loans defaulted and the United States Department of Commerce paid off the shrimp boat loan and, under 12 U.S.C. § 2094(k) (1982), the shares in the Association issued to Offshore Trawlers, Inc. and Thomas C. Adams, III were retired at book value, $5 per share, toward liquidation of the note, then suit was filed against appellant for $6,596 plus interest and attorney’s fee.

Appellant contends that the trial court committed error in refusing to require plaintiff to add Offshore Trawlers, Inc. as a defendant. Appellant cites Rule 19, Alabama Rules of Civil Procedure, in support of this contention. Rule 19 is inapplicable and this situation is governed by § 6-5-283, Ala.Code (1975), which states: “When two or more persons are jointly bound by judgment, bond, covenant or promise in writing of any description whatsoever, the obligation or promise is in law several as well as joint, .... ” As this court has stated, the effect of the above statute is to permit the plaintiff to sue one or all joint obligors. Ford Motor Co. v. Tindol, 380 So.2d 904 (Ala.Civ.App.1980).

Appellant further contends that the trial court erred in granting summary judgment. Appellee-plaintiff filed affidavit of its president, Joe R. Newell, in support of its motion stating the existence of two loans (one for the shrimp boat and one for the Class B Stock), the default in the loans, payment of the shrimp boat loan by the United States Department of Commerce, the retirement of the stock towards liquidation of the other note and the balance due and unpaid. On the date of hearing on the motion, the appellant filed the counter-affidavit of Ethel M. Adams, Vice-President of Offshore Trawlers, Inc. and wife of appellant. Her affidavit admits that Thomas C. Adams, III “indorsed these notes,” and at the time of the loan her husband signed a number of papers and appellee represented to him he would receive and become owner of shares of stock in the Association. The affidavit of Adams also stated that neither Offshore Trawlers, Inc. nor Thomas C. Adams, III ever received any stock, or money, certificate, dividends or voting rights in return for the note sued on. Hence, appellant apparently contends this affidavit raises a genuine issue of a material fact regarding the stock and/or lack of consideration.

The procedure under the Farm Credit Act of 1971, as to Class B Stock is ably stated in Loomis v. Blacklands Production Credit Association, 579 S.W.2d 560 (Tex.Civ.App.1979). Upon the borrower’s request, the stock certificates are delivered to him. Without such request, certificates are not delivered, but the stock transfer to the borrower is reflected in plaintiffs books. The borrower may borrow from plaintiff’s funds needed for the stock purchase in addition to his advances for farm or ranching operations, or he may purchase the stock with funds from a source other than plaintiff. All that is required is that he own Class B Stock equal in value at $5 per share to ten percent of the total amount of his loan. Class B Stock may not be sold publicly and it does not pay dividends. However, only owners of that stock are eligible to be elected to the plaintiff’s Board of Directors or to vote for the Directors, and for that reason many owners retain the stock after their loans are paid.

Under Rule 56, A.R.Civ.P., summary judgment is appropriate only when the moving party has demonstrated by the pleadings, answers to interrogatories, depositions and affidavits, that there is no genuine issue of material fact and that the movant is entitled to the requested relief as a matter of law. Campbell v. Alabama Power Company, 378 So.2d 718 (Ala.1979). Once the movant supports his motion by affidavit or other testimony, the adverse party may not rest upon the allegations or denials contained in his pleadings; he must respond and show a material issue of fact does exist. Campbell, at 718. In the event the opposing party fails to offer any evidence to contradict that presented by the moving party, the court is left with no alternative but to consider that evidence uncontroverted. Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980).

Appellant further contends that in view of § 7-8-314(b), Ala.Code (1975), a genuine issue of a material fact is created. This code section applies to negotiable instruments, § 7-8-105(1), Ala.Code (1975), and does not apply to this transaction.

The record shows without contradiction that appellant borrowed from plaintiff all the money used by him for the purchase of his required Class B Stock. It further shows that after he became delinquent ap-pellee redeemed the stock, at par value of $5 per share, and credited that amount to the principal of the appellant’s note. The appellant does not negate the requirements of 12 U.S.C. § 2094 (1982), nor does he show any failure of consideration for said note.

There being no material issue of fact presented to the trial court, it was not error to grant summary judgment.

Judgment affirmed.

The foregoing opinion was prepared by Retired Circuit Judge ROBERT M. PARKER while serving on active duty status as 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.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation v. Don HARTMAN.
    Civ. 4110.
    Court of Civil Appeals of Alabama.
    May 2, 1984.
    Lester L. McIntyre, Mobile, for appellant.
    W. Donald Bolton, Jr. and Thack H. Dyson of Foster, Brackin & Bolton, Foley, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal solely concerns a monetary judgment for towing and storage charges upon a stolen automobile. We omit all other aspects of the case since they are not issues.

Mr. Hartman sued State Farm for the recovery of wrecker and storage charges as to a 1979 Mercury Cougar automobile. A contested non-jury trial was held. In viewing the testimony through the eyes of the ore tenus rule, the following evidence is pertinently revealed.

On October 5, 1982, the automobile was stolen in Mobile from the original owner, who was insured against such a loss by State Farm. That owner reported its theft to the Mobile Police Department on October 5, 1982. Upon payment to him by State Farm, title to the Mercury was transferred by the owner to that insurer.

On the date of the theft, the Loxley Police Department located the stolen vehicle. It was parked in the center of a highway in Baldwin County and Mr. Hartman, being in the wrecker and storage business, was orally requested by the Loxley Police Department to tow the car to his place of business and to store it until they gave him further notice.

Shortly after finding the vehicle, the Lox-ley police ascertained, through a national computer check, that it had been stolen. After the automobile was secured, the chief of police notified the Mobile Police Department of their repossession of the stolen Cougar and, under standard operating law enforcement procedures, it then became the responsibility of the Mobile agency to notify the owner of the vehicle of its recovery. The Mobile Police Department was the only agency that could cancel the entry (that the Mercury had been stolen) in the national computer system.

Mr. Hartman was promptly notified by the Loxley police that it was a stolen vehicle and he was informed that the department would contact him again later. The police chief of Loxley instructed Mr. Hartman not to release the vehicle to anyone until the chief, or someone in his department, permitted him to do so.

No one claimed the vehicle during the next three months and, during that time, Mr. Hartman made inquiries with the Lox-ley Police Department for the identification of the owner of that stolen ear. The only person to make any inquiry of Mr. Hartman about the vehicle for those three months was a Mobile police officer, who told him that someone would come after it. Mr. Hartman was not concerned about attempting to locate the owner of the car because of the instructions and assurances which he had received from the law enforcement authorities; however, around the first week of February, Mr. Hartman examined the glove compartment of the Cougar and discovered a bill of sale in it. He contacted the person named in the bill of sale and learned that State Farm had paid the owner for the vehicle and that State Farm then owned it. The original owner had not heard from anyone about the recovery of his vehicle until that telephone conversation with Mr. Hartman on February 5, 1983. State Farm contacted Mr. Hartman within the next week whereupon he made his claim of them for storage to that time. His normal storage charge per day was $5. At the time of the trial, he had stored the vehicle in his building for approximately 310 days. His wrecker charge for the October 5, 1982, call was $45.

The Abandoned Motor Vehicle Act, §§ 32-13-1 through -8, Ala.Code (1975) and the Uniform Certificate of Title and Antitheft Act, §§ 32-8-1 through -87, Ala. Code (1975), have requirements for the filing of specified notices or forms with particular agencies in order to perfect a lien upon a vehicle for wrecker and storage charges under certain instances or circumstances. No such notice or forms were filed by either the police or by Mr. Hartman with any agency.

The trial court rendered a final judgment against State Farm and in favor of Mr. Hartman for $1,595. State Farm appealed. We affirm.

Mr. Hartman had no common law, equitable or statutory lien upon the automobile; however, the lack of such a lien did not prevent him from the recovery of a reasonable fee from State Farm for towing and storage services provided by him for the protection of State Farm’s automobile. The law to that effect was recently determined by Allstate Insurance Co. v. Reeves, 440 So.2d 1086 (Ala.Civ.App.1983), in a manner which is contrary to State Farm’s present legal contentions.

From a factual standpoint, the evidence supports the monetary judgment of the trial court which was rendered after an ore tenus hearing. That decision was not palpably wrong. Consequently, the holding of the trial court is presumed to be correct on appeal and we have no authority to overturn it. State v. St. Paul Fire & Marine Insurance Co., 431 So.2d 1237 (Ala.1983); Cash v. Mayo, 429 So.2d 1092 (Ala.Civ.App.1983).

In short, the law is adverse to State Farm’s position and we cannot override the factual holding of the trial court. The judgment of the circuit court is affirmed.

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.


author: BOWEN, Presiding Judge.

text:
    Arthur JONES v. STATE.
    1 Div. 519.
    Court of Criminal Appeals of Alabama.
    Aug. 2, 1983.
    Rehearing Denied Aug. 30, 1983.

      W. Gregory Hughes, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Edward E. Carnes and Martha Gail Ingram, Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

Seventy-one-year-old William Hosea Waymon was a cab driver in Mobile. In August of 1981, his body was discovered near his cab with four bullet wounds in his head and neck area. The defendant was indicted for the capital offenses of murder during a robbery in the first degree, Alabama Code Section 13A-5-40(a)(2) (1975), and murder committed while the defendant is under a sentence of life imprisonment. Alabama Code Section 13A-5-40(a)(6) (1975). A jury found the defendant “guilty of the Capital Offense as charged in the indictment” at the guilt-finding phase of the trial. At the sentence-determining phase, the jury fixed the defendant’s punishment at death by a vote of eleven for death and one for life imprisonment without parole. The trial judge then held the hearing mandated by Sections 13A-5-32 and -33, accepted the death penalty recommended by the jury, and sentenced the defendant to death.

The trial and sentencing proceedings were conducted in accordance with Beck v. State, 396 So.2d 645 (Ala.1981), following the decision of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Four issues are presented on appeal.

I

Testing the sufficiency of the evidence by the principles of Dolvin v. State, 391 So.2d 133 (1979), and Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), we find that the evidence, although circumstantial, was sufficient to permit the jury to exclude every reasonable hypothesis except that of guilty beyond a reasonable doubt, and was sufficient to sustain the verdict of guilt.

The State’s evidence reveals that during the early morning of August 17, 1981, Mr. Waymon picked up his last fare at 12:41. A witness testified that the defendant stated that he wanted to go to Plateau and got into Mr. Waymon’s cab at Mike’s Cab Stand. The defendant was on parole from a sentence of life imprisonment for a robbery conviction from Clarke County.

The dispatcher tried to contact Waymon by radio even before he went “around the corner.” She tried three or four additional times but never did receive any response although Waymon “always answered his radio.”

Mobile Police Officer LeRoy Sieck found Waymon’s body near his cab at 1:11 that morning, approximately 35 minutes after Waymon had left with the defendant. Waymon had died from four .22 caliber gunshots fired at close range. The body was found in Plateau, in north Mobile, approximately two and four-tenths miles from the cab stand. Only $35 was found in Waymon’s shirt pocket although there was evidence that he usually carried a “roll of money” in his pants pocket and could have had as much as $254.81.

It was established that the defendant was residing in Plateau and that his residence was eight-tenths of a mile from the scene of the crime. Witnesses testified that the defendant owned a .22 caliber pistol.

During the month of August, the defendant was employed by Industrial Services and received $373 for that month. The defendant was employed by this company as a “four-fifty an hour laborer” from May 29, 1981, till September 17, 1981.

In August of 1981, the defendant was three months delinquent in his automobile payments. His account was at the “maximum delinquency” and was roughly in the amount of $420. On August 12, 1981, a field representative with General Motors Acceptance Corporation attempted to repossess the car but the defendant refused to release the car. The defendant stated that he “didn’t have the money at that time but ... would try and borrow it and come out to G.M.A.C. and pay it ... the next day.”

The State also showed that the defendant made the following expenditures: on August 18th, the day of the murder, the defendant made a $139 car payment; on September 2nd, the defendant paid $32.74 for an automobile license tag, $297 on his G.M. A.C. account, and $40 as a deposit to Alabama Power Company. The defendant changed his address between August 17th and September 2nd. On November 2nd, his automobile was repossessed because the defendant “never did catch up in his back payments.”

Taking all the evidence and the manner in which the individual facts connect and mingle, United States v. Hinds, 662 F.2d 362, 367 (5th Cir.1981), and viewing it in the light most favorable to the prosecution, we find that the evidence excluded every reasonable hypothesis or explanation but that of guilt.

The defendant had the opportunity, the motive and the means to commit the offense.

II

There was no error in the trial court’s refusal of the defendant’s written request charge which stated:

“The Court charges the jury that the possibility of human error or mistake, and the probable likeness or similarity of objects and persons are elements that you must act upon in considering testimony as to identity. You must carefully consider these factors passing upon the credibility that you attach to the witness’s testimony, and you must be satisfied beyond a reasonable doubt as to the accuracy of the witness’s identification of the defendant.”

In Brooks v. State, 380 So.2d 1012, 1014 (Ala.Cr.App.1980), we noted that a “requested identification instruction which deals realistically with the shortcomings and trouble spots of the identification process should be given where the principle has not been covered by the court’s oral charge.” In Smith v. State, 54 Ala.App. 248, 250, 307 So.2d 57 (1975), this Court recognized the above charge as a correct statement of law. However, we have held that there is no basis for such a charge where the witness was positive in the identification, Minnifield v. State, 392 So.2d 1288, 1291 (Ala.Cr.App.1981); Rowser v. State, 346 So.2d 533, 535 (Ala.Cr.App.), cert. denied, Ex parte Rowser, 346 So.2d 536 (Ala.1977), or harmless error because identity was never in question. Shields v. State, 397 So.2d 184, 187 (Ala.Cr.App.), cert. denied, Ex parte Shields, 397 So.2d 189 (Ala.1981).

A number of federal circuit courts have held that requested instructions dealing with the dangers of misidentification by an eyewitness are required where the identification is crucial to the prosecution. United States v. Dodge, 538 F.2d 770 (8th Cir.1976), cert. denied sub nom., Escamilla v. United States, 429 U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 527 (1977); United States v. Hodges, 515 F.2d 650 (7th Cir.1975); United States v. Holley, 502 F.2d 273 (4th Cir.1975); United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972); People v. Hurley, 157 Cal.Rptr. 364, 369, n. 3, 95 Cal.App.3d 895 (1979) (J. Hopper dissenting).

In contrast, some state courts have held that this issue is more properly a concern for cross examination and argument of counsel, implying that such instructions invade the province of the jury, People v. White, 15 Ill.Dec. 815, 58 Ill.App.3d 226, 374 N.E.2d 250 (1978); State v. Jordan, 17 Wash.App. 542, 564 P.2d 340 (1977), although some courts have held that neither counsel’s argument nor cross examination may substitute for proper instructions on mistaken identity. Hodges, 515 F.2d at 653. Still, other courts have held that identification instruction constitutes an improper comment on the evidence and either should never be given, Jordan, 564 P.2d at 341, or great care should be exercised before giving an instruction approved by a federal court because a federal judge may comment on the evidence. State v. Valencia, 118 Ariz. 136, 575 P.2d 335 (1977).

Between these extremes lies the view that the giving of identification instructions is a matter resting within the sound discretion of the trial court. United States v. Collins, 559 F.2d 561 (9th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977); State v. Higgins, 592 S.W.2d 151 (Mo.1979), app. dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980); State v. Guster, 66 Ohio St.2d 266, 20 Ohio Op.3d 249, 421 N.E.2d 157 (1981); see also People v. Whitmore, 86 Mich.App. 177, 272 N.W.2d 346 (1978), vacated on other grounds, 407 Mich. 890, 299 N.W.2d 720 (1979), on remand, 100 Mich.App. 214, 299 N.W.2d 721 (1980); Commonwealth v. Wilcox, 481 Pa.2d 284, 392 A.2d 1294 (1978).

This Court recognizes the dangers of eyewitness identification. United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18 L.Ed.2d 1149 (1967). Consequently, we are unwilling to hold that cross examination and argument will always supply a sufficient forum in which to cover the issue of identification without proper instructions from the trial judge. See Shields, supra; Brooks, supra. However, we are equally reluctant to hold that identification instructions must be given in every case involving eyewitness identification for, in some cases, the instruction is not needed and would serve only to confuse the jury. See Whitmore, supra; Cf. Shields, supra (identification instruction properly refused because “the identity of the appellant ... was never in question”); Minnifield, supra (identification instruction properly refused where eyewitness was positive in her identification); Rowser, supra (identification instruction properly refused where there was “not one iota, scintilla, suspicion, or shadow of evidence that the State’s (only) witness was anything but positive in her identification of appellant as the robber”).

We see no reason to give a charge involving the various principles of eyewitness identification any more weight or importance than any other charge requested by a defendant. Therefore, the governing principle as to whether the charge should be given is found in Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978):

“(O)ur decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however, weak, insufficient, or doubtful in credibility.”

See also Ashlock v. State, 367 So.2d 560 (Ala.Cr.App.1978), cert. denied, 367 So.2d 562 (Ala.1979).

Under the circumstances of this case, the defendant was not entitled to have the charge given. The eyewitness, John Banks, saw a man leave with Waymon in Waymon’s cab some thirty-five minutes before Waymon’s body was found. Prior to the cab’s departure, Banks observed this man for approximately five minutes at the well-lighted cab stand. Later that night, he assisted a police artist in drawing a composite of the man he saw leave with Waymon. Several attempts were made before the artist completed a composite which satisfied Banks. We note that this composite bears a marked resemblance to the defendant.

One month after the murder, Banks, without any hesitation, identified the defendant out of a five-man lineup. He also made a positive in-court identification of the defendant. At all times, Banks’ identification of the defendant was unequivocal. Even defense counsel’s vigorous cross examination did not substantially impair his identification of the defendant as the man who left the cab stand with the victim. Further, the trial court gave instructions on both the credibility of witnesses and alibi. Under these circumstances, we find no abuse of discretion in the trial court’s refusal of the defendant’s requested charge. Minnifield, supra; Rowser, supra. See also People v. Whitmore, supra; State v. Smith, 607 S.W.2d 737 (Mo.App.1980); State v. Guster, supra.

Even if the failure to give the instruction constitutes error, our review of the evidence convinces us that there is no probability that the refusal injuriously affected the substantial right of the defendant. Turner v. State, 238 Ala. 352, 355, 191 So. 396 (1939); A.R.A.P. 45.

Ill

The defendant contends that the pretrial lineup was impermissibly suggestive and therefore rendered inadmissible Banks’ in-court identification. This argument is based on the facts that the defendant was the shortest person in the lineup and that there was a delay between the murder and the lineup.

In determining whether a pretrial identification process was unduly suggestive, a “totality of the circumstances” test is used. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Caver v. Alabama, 537 F.2d 1333 (5th Cir.1976), cert. denied, 430 U.S. 910, 97 S.Ct. 1183, 51 L.Ed.2d 587 (1977).

The murder/robbery in the present case occurred on August 17,1981. As discussed above in Part II, that night Banks assisted in the drawing of a composite. During the month that followed, Mobile Police Sergeant John Boone showed Banks several photographic arrays, none of which contained defendant’s photograph. Banks never identified any of the photographs as being a photograph of the man he saw at the cab stand on the night of the murder. On September 16, 1981, Banks positively identified the defendant out of a five-man lineup. According to Sergeant Boone, Banks did not hesitate in any manner in identifying defendant at the lineup. Moreover, at no time did anyone tell Banks that the man who had killed Waymon was in the lineup, nor did anyone suggest which person he should identify.

We have reviewed the color photograph of the lineup participants. Although it is true that the defendant is the shortest person in the lineup, that fact alone does not render the lineup impermissibly suggestive. Lewis v. State, 399 So.2d 907 (Ala.Cr.App.1981); McGee v. State, 383 So.2d 881 (Ala.Cr.App.), cert. denied, 383 So.2d 884 (Ala.1980); Tate v. State, 346 So.2d 515 (Ala.Cr.App.1977). See also Caver v. Alabama, supra. On the whole, the physical appearance of the defendant is not so dissimilar to that of the other lineup participants that it renders the lineup unduly suggestive. Moreover, Banks testified that he did not count how many other participants there were in the lineup or pay any attention to their relevant heights, because the defendant was the only person he knew in the lineup. See McGee, supra.

The lapse of time between the murder and the lineup was barely one month. In view of the other facts involved, it does not appear that this affected the identification procedure. Cf. McCay v. State, 51 Ala.App. 307, 285 So.2d 117, cert. denied, 291 Ala. 788, 285 So.2d 122 (1973) (upholding an identification made in a lineup conducted seven months and six days after a robbery).

We have carefully reviewed the circumstances involved in this case and find that the lineup procedure was not unduly suggestive. Therefore, Banks’s in-court identification was properly admitted.

IV

As required by Section 13A-5-53(a), Code of Alabama 1975, this Court must review the propriety of the imposition of the death penalty in this case. Our review must include a determination of the following questions:

(1) Was any error adversely affecting the rights of the defendant made in the sentence proceedings?
(2) Were the trial court’s findings concerning the aggravating and mitigating circumstances supported by the evidence?
(3) Was death the proper sentence in this case?

As to the first question, we have reviewed the sentence proceedings and have found no error adversely affecting the defendant’s rights. We are also satisfied that the trial court’s written findings concerning the aggravating and mitigating circumstances are fully supported by the evidence.

To answer the question of whether the death penalty was properly imposed in this case, we must determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
(2) whether an independent weighing of the aggravating and mitigating circumstances at the appellate level indicates that death was the proper sentence; and
(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Alabama Code Section 13A-5-53(b) (1975); see also Beck v. State, 396 So.2d 645 (Ala.1981).

There is nothing in the record before us which even intimates that the death penalty was imposed under the influence of passion, prejudice, or any other arbitrary factor.

Our independent weighing of the aggravating and mitigating circumstances leaves us with no doubt that the death penalty was appropriate in this case. There were no mitigating circumstances. However, there were three aggravating circumstances: (1) the defendant committed this crime while on parole from a life sentence for robbery, Section 13A-5-49(l), Code of Alabama 1975; (2) the defendant had a previous capital conviction, Section 13A-5-49(2); and (3) the present capital offense was committed while the defendant was engaged in the commission of a robbery, Section 13A-5-49(4).

In regard to the final determination this Court must make, we note that the Alabama Supreme Court has compiled figures which show that approximately two-thirds of the death sentences imposed in this state are for capital offenses involving robbery. Beck v. State, 396 So.2d 645, 654, n. 5 (Ala.1981). We find that the death penalty imposed on the defendant is not excessive or disproportionate to the penalty imposed in similar cases. See e.g., Coulter v. State, 450 So.2d 186 (Ala.Cr.App.1982); Bush v. State, 431 So.2d 555 (Ala.Cr.App.1982), affirmed, 431 So.2d 563 (Ala.1983); Raines v. State, 429 So.2d 1104 (Ala.Cr.App.), affirmed, 429 So.2d 1111 (Ala.1982), cert. denied, — U.S. -, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983).

We have searched the entire record as required by Rule 45A, A.R.A.P., and have found no error which adversely affected the rights of the defendant. Therefore, the judgment of the Mobile Circuit Court is affirmed.

AFFIRMED.

All Judges concur.

      . Although this conviction was proved by the State, the trial judge did not include it in his written findings.


author: ADAMS, Justice.

text:
    Ex parte: Arthur JONES. (Re: Arthur JONES v. STATE of Alabama).
    82-1248.
    Supreme Court of Alabama.
    March 9, 1984.
    Rehearing Denied May 11, 1984.

      W. Gregory Hughes, Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Edward E. Carnes and Martha Gail Ingram, Asst. Attys. Gen., for respondent.
   ADAMS, Justice.

Arthur Jones, petitioner, was indicted for the capital offenses of murder during a robbery in the first degree, Code 1975, § 13A-5-40(a)(2), and murder committed while the defendant was under a sentence of life imprisonment, Code 1975, § 13A-5-40(a)(6). A jury found petitioner “guilty of the capital offense as charged in the indictment,” and later recommended that his punishment be fixed at death. The trial judge accepted the jury’s recommendation and sentenced petitioner to death by electrocution. We granted a writ of certiorari, which petitioner is entitled to as a matter of right, in order to review the decision of the Court of Criminal Appeals affirming petitioner’s conviction and sentence of death.

The Court of Criminal Appeals directed the trial court to make written findings of fact summarizing the crime and petitioner’s participation in it, in accordance with Code 1975, § 13A-5-47(d). In its opinion, 450 So.2d 165, the Court of Criminal Appeals incorporated and expanded upon those written findings. Therefore, the facts need not be restated here.

Petitioner raises several issues in his brief. We first consider his argument that the State failed to produce sufficient evidence to sustain the jury’s verdict of guilt.

We have reviewed the evidence in this case, and find that there was sufficient evidence presented from which the jury could exclude every reasonable hypothesis except that of guilt. (Petitioner claimed that he was not riding in the victim’s cab at the time of the crime and that someone could have entered the cab after he exited.) Dolvin v. State, 391 So.2d 133, 137 (Ala.1979); Cumbo v. State, 368 So.2d 871, 874 (Ala.Cr.App.1978).

Petitioner also contends that the trial court committed reversible error in refusing his requested charges on identification. We disagree. Having reviewed the trial court’s oral charge to the jury, we think that the instructions given on the credibility of witnesses, alibi, reasonable doubt and burden of proof adequately informed the jurors concerning their responsibility in evaluating the evidence presented on the issue of identity. Moreover, we agree with the Court of Criminal Appeals that where a witness is positive in identifying the defendant, as witness Banks was in this case, there is no good reason for giving a charge on the human error or mistake that may occur in the identification process. Rowser v. State, 346 So.2d 533, 535-536 (Ala.Cr.App.), cert. denied, Ex Parte Rowser, 346 So.2d 536 (Ala.1977).

Petitioner additionally argues that the pretrial lineup in which he was identified by witness Banks was impermissibly suggestive, rendering Banks’s testimony inadmissible. He rightly points out that reliability is “the linchpin in determining the admissibility of identification testimony.” Flowers v. State, 402 So.2d 1088, 1092 (Ala.Cr.App.), cert. denied, Ex parte Flowers, 402 So.2d 1094 (Ala.1981). Therefore, he urges that Banks’s testimony, is inadmissible because it is unreliable under the criteria for reliability outlined by the Court of Criminal Appeals in Flowers v. State, supra. We disagree.

In Flowers, the Court of Criminal Appeals simply reiterated five aspects of all the circumstances surrounding a pretrial identification that the United States Supreme Court has said must be taken into account in deciding the issue of reliability. Id. at 1092. We will address briefly the evidence presented as to these aspects.

Witness Banks testified that he was able to view petitioner for approximately five minutes in good light at the time of the crime. Petitioner had obtained Banks’s attention by asking him whether he was the cab driver. Based on his observation of petitioner, Banks was able to assist a police artist in making a composite drawing; moreover, having been shown several groups of photographs without a photograph of petitioner, Banks never indicated that any photograph was a likeness of the man who had approached him at the time of the crime. Lastly, testimony as to Banks’s identification of petitioner at the lineup, which was held within a reasonable time after the commission of the crime, indicated a high degree of certainty by Banks. We think, the evidence clearly supports the conclusion of the Court of Criminal Appeals that the lineup was not unduly suggestive.

After reviewing the record for any error in the conviction or in the sentence proceedings conducted by the trial judge in this case, we find no error adversely affecting petitioner’s substantive rights. Additionally, we think the trial judge’s written findings concerning the aggravating and mitigating circumstances were supported by the evidence presented.

We independently weighed the aggravating and mitigating circumstances, and we conclude that the trial court’s sentence of death was supported by the facts. Additionally, we find that the sentence was not imposed under the influence of passion or prejudice, and was not excessive or disproportionate to the penalty imposed in other robbery-murder cases.

For the foregoing reasons, we affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

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

      . Like the Court of Criminal Appeals, we find no evidence of police misconduct in the lineup that included petitioner.


author: SAM TAYLOR, Judge.

text:
    Billy Hagan BRADLEY v. STATE.
    7 Div. 58.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Rehearing Denied March 20, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-689.

      Stephen B. Levinson, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   SAM TAYLOR, Judge.

Appellant was convicted of burglary in the third degree in violation of § 13A-7-7, Code of Alabama 1975. His range of punishment was enhanced by application of the Habitual Felony Offenders Act, and he was sentenced to 18 years’ imprisonment.

The state’s evidence tended to show that the appellant, Billy Hagan Bradley, together with Danny Joe Bradley and James Robert Barnes, decided to burglarize a store so they set fire to a vacant house in Piedmont, Alabama, to divert the local authorities. They then proceeded to the Miller Hardware Store, where they effected entry by throwing a large chunk of concrete through the glass. Taken from the store were several handguns, some ammunition and several Timex watches. The following morning a search warrant was obtained upon the affidavit of Police Chief Amber-son of Piedmont, and authorities proceeded to a house trailer, where they found the appellant, his brother Danny, his brother’s wife, and James Robert Barnes. In one room they found appellant sitting on a mattress; they also found a watch and a .25 caliber pistol taken from the hardware store the night before lying on the floor by the mattress. A further search of the premises produced two more weapons. Thereafter, Danny Bradley took the officers to a location about six miles from Piedmont, where he showed them other weapons taken in the burglary.

At the trial of the appellant, James Robert Barnes testified as a state’s witness saying that he and both Bradley brothers participated in the burglary of Miller’s Hardware. One week after this trial, appellant’s brother, Danny Bradley, executed an affidavit stating that Barnes, the state’s witness, had committed the burglary alone. The affiant, Danny Bradley, entered his guilty plea two days after he executed the affidavit. This affidavit was offered in support of appellant’s renewed motion for new trial.

I

Appellant first contends that the search warrant and supporting affidavit were constitutionally inadequate and the court erred to reversal by admitting evidence secured as a result of the search warrant; specifically he contends that some of the information given in the affidavit was faulty and was hearsay.

The search warrant affidavit stated:

“My name is David Amberson. I’m a Police Officer with the City of Piedmont, Alabama. During the night of December 28, 1981, Miller Hardware Store in Piedmont was burglarized. Taken in this burglary were several handguns, some ammunition and approximately four (4) Timex watches. A complete description of the guns is presently being compiled by Mr. Miller. I have a confidential and reliable police informant who has proved to be reliable in the past by giving me information that has led to the recovery of stolen property and the arrest and conviction of several persons. My informant has told me that he has seen the guns and ammunition stolen from Miller Hardware at a house trailer located at 605 Ray Street, Piedmont, Alabama in the possession of Billy Hagan Bradley, Jr. The Bradley subject has a reputation of committing burglary and has just been released from probation on a burglary case. I believe the property stolen from Miller Hardware to be on the above-described premises.”

The trial court conducted a hearing out of the presence of the jury on the defendant’s motion to suppress. The motion was denied. Applying the “totality of the circumstances” test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), we are satisfied that the trial court did not err in denying this motion to suppress, since the issuing authority had sufficient information to conclude that the circumstances justified issuance of the search warrant. The objection of appellant that the affidavit was based on hearsay information refers to one of the tests set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Aguilar is no longer controlling. The objection of appellant that there were inaccuracies in the affidavit does not render the affidavit insufficient. There is no evidence that any inaccuracy in the supporting affidavit was a false statement knowingly and intentionally made or made with reckless disregard for the truth. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

II

Appellant next contends that the court erred in denying his motion for mistrial after a particular statement was made by state witness Sergeant Cecil Parris, during his cross-examination. The relevant portion of the record reads as follows:

“Q You inventoried; okay. Relative to this particular case here, what is the total evidence that was seized, that my client is charged with possession from the burglary?
“A I would have to see the list, but—
“Q Found in that particular bedroom.
“A That particular bedroom, the only thing that was taken was a watch and the pistol.
“Q Watch and pistol. Any other evidence from that trailer that my client is charged with possessing?
“A I’m not sure. There were several boxes of shotgun shells and I’m not sure if it came out of that one or one he’s charged with in Cherokee Gounty.
“MR. LEVINSON [Defendant’s attorney]: Your Honor, I would move that last statement be stricken. I would further move for a mistrial based on the statement of Sergeant Parris.
“THE COURT: Overrule the motion, and direct the jury to disregard that aspect of the witness’s testimony. Don’t give it any weight at all in your deliberations. This Defendant is charged only with those things with which he is accused in the indictment in this case.
“You may continue.”

Where the trial court immediately instructs the jury not to consider a fact, that instruction in effect removes or excludes that matter from the jury’s consideration. The prejudicial effect of the statement is deemed to be cured by such instructions. Richardson v. State, 874 So.2d 433 (Ala.Cr.App.1979). The trial judge’s immediate charge to the jury to disregard an impropriety raises a prima facie presumption against error. Kelley v. State, 405 So.2d 728 (Ala.Cr.App.), cert. denied, 405 So.2d 731 (Ala.1981). The court did not err in denying the motion for mistrial.

Ill

Appellant next contends that the evidence was insufficient to support the jury verdict of guilty. We find that the evidence if believed was ample to sustain a conviction. The testimony of the accomplice Barnes was corroborated by a broad range of evidence tending to connect the accused with the offense. Officer Parris’s testimony that appellant was seen in a ear driving down a street past the house that had been torched placed the appellant in the general vicinity of the hardware store at the time of the burglary. Finding the stolen gun and watch, the fruits of the crime, on the floor beside the mattress where appellant was sitting during the search of the house trailer is persuasive. This corroborative evidence is sufficient. See, McConnell v. State, 429 So.2d 662 (Ala.Cr.App.1983).

IV

Appellant finally contends that the court erred in denying his motion to consider denial of motion for new trial. At the trial, both the appellant and his sister-in-law testified that the appellant did not take part in the burglary itself. As previously stated, a week after appellant was sentenced, his brother Danny gave an affidavit saying that Barnes, the admitted burglar who testified for the state, committed the burglary alone. Two days later, appellant’s brother himself pleaded guilty. The nisi prius court took testimony on this issue at a hearing on the motion and made written findings. The court found that the allegedly newly-discovered evidence did not constitute newly-discovered evidence in that it was discoverable and available before trial. Of course, the evidence was the statement of the brother of the appellant accused of participating in the same crime. Appellant asks us to assume that he and his brother could not have communicated and that their lawyers could not have communicated before trial. We find this highly unlikely.

The court next found the evidence to be merely cumulative and impeaching in nature. We agree. The court then found that the allegedly newly-discovered evidence probably would not change the result if a new trial were granted. Again we agree. Granting or denying motions such as this one lies largely within the sound discretion of the trial judge. The decision of the lower court should not be reversed by an appellate court in the absence of an abuse of discretion. Page v. State, 273 Ala. 5, 130 So.2d 227 (1961); Maund v. State, 254 Ala. 452, 48 So.2d 553 (1950). A review of the record in this case leads us to conclude that the appellant failed to meet any one of the three requirements to prevail on a motion for new trial on the ground of newly-discovered evidence, much less all three. The trial court did not err in the denial of this motion.

This case is due to be affirmed.

AFFIRMED.

All Judges concur, except HARRIS, J., who dissents.


author: HARRIS, Judge.

text:
    Evelyn Keller MARSCHKE v. STATE.
    1 Div. 609.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-697.
    Joseph P. Givhan, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

On September 28, 1982, the Mobile County Grand Jury indicted Evelyn Keller Marschke, appellant, for possession of pen-tazocine, a controlled substance. Trial was held on January 26, 1983; appellant was found guilty as charged and was sentenced to fifteen years in the state penitentiary.

Deputy James Wyatt, an undercover narcotics officer for the Mobile County Sheriff’s Department, testified that he received information that appellant was smuggling drugs into the penitentiary for her son. On August 19, 1982, acting on this information, he made three telephone calls to appellant at her residence, all of which were recorded and presented in court as evidence. During the last conversation appellant agreed to meet Deputy Wyatt at a McDonald’s Restaurant.

Deputy Wyatt and three other police officers set up surveillance at the McDonald’s Restaurant. When appellant arrived, Deputy Wyatt walked up to the automobile, talked with appellant a few minutes, handed her a clear plastic bag containing one hundred pentazocine tablets, talked with her a minute more and left. Deputy Wyatt testified that during this time appellant confirmed that either she or her son’s girl friend would get the drugs into the penitentiary.

Officer Mike Roland testified that the total time for the transaction between Deputy Wyatt and Mrs. Marschke was five minutes or less. As Deputy Wyatt left appellant’s car the surveillance team came out of McDonald’s and arrested the appellant. After she was informed that she was under arrest, her purse was opened and the officers found one hundred pentazocine tablets. In the McDonald’s parking lot, Officer Roland read the appellant her Miranda rights from his card. He stated that she appeared to be sober, was coherent and agreed, without inducements or threats, to answer his questions without an attorney being present. Appellant then related two versions of the events leading to her arrest. She first reported that a stranger ran by her car and threw the bag of pills in the window. Then she said that a fellow named Mark came up, leaned in the window and talked with her before he tossed the pills in.

Appellant testified that she had no knowledge that the package she was to deliver to the penitentiary would contain illegal drugs. She also testified that her Miranda rights were never read to her, and that at the time of her arrest she suffered from angina and was very upset.

Appellant raises two issues on appeal. First, appellant contends that the trial court erred in Its determination that appellant’s statements to arresting officers were voluntarily made.

It is a well settled rule of law in Alabama that a statement made subsequent to arrest is prima facie involuntary and inadmissible at trial. The state must demonstrate voluntariness and a Miranda predicate in order to get admission of the statement. Thomas v. State, 373 So.2d 1167 (Ala.1979); Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976). Whether there was a waiver of the right to silence and to counsel and whether it was knowingly, voluntarily and intelligently made must necessarily be determined from the facts and circumstances surrounding a particular case. Sullivan v. Alabama, 666 F.2d 478 (11th Cir.1982); Wright v. State, 340 So.2d 74 (Ala.1976); Dotson v. State, 288 Ala. 727, 265 So.2d 162 (1971), cert. denied, 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1973). The voluntariness of a statement is a question of law for the court to be determined upon preliminary proof, taken outside the presence of the jury, and such finding will not be disturbed on appeal unless it appears contrary to the great weight of the evidence, or is manifestly wrong. Balentine v. State, 339 So.2d 1063 (Ala.Cr.App.) cert. denied, 339 So.2d 1070 (Ala.1976); Daniels v. State, 53 Ala.App. 666, 303 So.2d 166 (1974); Stewart v. State, 49 Ala.App. 681, 275 So.2d 360 (1973). Where evidence of the circumstances surrounding the defendant’s statement is conflicting on voir dire, if the trial court allows the statement to be admitted, then the controverted testimony for the defendant must go to the jury on its credibility. Taylor v. State, 337 So.2d 1368 (Ala.Cr.App.1976); Godfrey v. State, 333 So.2d 182 (Ala.Cr.App.1976).

In this case, the trial court held appellant’s statement to be voluntary and admissible, and her testimony to the contrary was submitted to the jury. The trial court’s decision was not contrary to the great weight of the evidence and we find no error.

Appellant next contends that the trial court erred in refusing to give one of defendant’s requested written charges. Appellant, however, made no objection to the oral jury charge, and the correctness of the trial court’s oral charge cannot be challenged for the first time on appeal. Jackson v. State, 375 So.2d 558 (Ala.Cr.App.1979); Hafley v. State, 342 So.2d 408 (Ala.Cr.App.1976) cert. denied, Ex parte Hafley, 342 So.2d 412 (Ala.1977); Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967).

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

AFFIRMED.

All the Judges concur.


author: JAMES S. GARRETT, Circuit Judge.

text:
    Army THORN v. STATE.
    3 Div. 681.
    Court of Criminal Appeals of Alabama.
    Jan. 10, 1984.
    Rehearing Denied March 20, 1984.
    Certiorari Denied May 25, 1984 Alabama Supreme Court 83-644.
    John Nile McGee, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   JAMES S. GARRETT, Circuit Judge.

Appellant was convicted by a Lowndes County jury of the offense of manslaughter and sentenced to a term of five years.

The evidence revealed that on November 6, 1981, Deputy Sheriff Julius Bennett of the Lowndes County Sheriff’s Department, received a radio dispatch directing him to the home of the appellant. On arrival, he found several people in front of the house, and his investigation revealed the body of a James Thorn on a bedroom floor, at the foot of a bed. The deputy observed no signs of a struggle. A further investigation led to the recovery of a small handgun from a clothes basket inside the home. It was further brought out by the evidence that the deceased was the husband of the appellant in this ease and they both lived at this address with the mother of the appellant, Mrs. Lagrand Alexander.

Additional testimony given by Lagrand Alexander, a prosecution witness, established that the deceased had threatened the appellant before the shooting occurred. It would appear further from the testimony of the witnesses that the appellant shot the deceased with the small handgun while it was still in the purse of the appellant.

The State further presented a witness, Lonny Ray Hardin, who was established as an expert in the fields of firearm and tool mark identification and who testified as an expert in this case. Mr. Hardin’s testimony revealed that the firearm was in fact discharged while inside the appellant’s purse. Blood stains of the same type as the blood of the deceased were found on the back of the appellant, which indicated that the victim was behind the defendant at the time the fatal shot was being fired.

At the close of the State’s case, the appellant presented one witness, a Mrs. Washington, who testified that in the community in which she resided the appellant enjoyed a good reputation, as well as a good reputation for being peaceful. The State, over the objection of the appellant, called a rebuttal witness, who was allowed to testify as to a specific incident which occurred at some time during the year 1980 or 1981, wherein it is alleged that the appellant had threatened the witness that, “If you said anything about my brother, I am going to take this pistol and juge [sic] it up your nose and blow your damn head off.”

The first issue raised by the appellant on appeal concerned the judge’s allowing the State to call a rebuttal witness. This witness testified about a specific act allegedly committed by the appellant prior to the commission of the instant offense. This testimony contradicted the defendant’s earlier testimony regarding her reputation. It is stated as a general rule in C. Gamble, McElroy’s Alabama Evidence § 27.02(1) (3d ed. 1977), that the prosecution may not take the initiative in its case in chief to introduce any evidence of the accused’s bad character, either generally or specifically. However, if the defense calls character witnesses to testify as to the accused’s general reputation for a specific trait which is germane to the crime for which he is being prosecuted, the State in rebuttal of such testimony may prove that the accused had a bad reputation for the specific trait brought out by the defense. The ease of Smith v. State, 38 Ala.App. 23, 80 So.2d 302 (1954), holds that when the accused introduces evidence of general good character, the State may introduce evidence of his bad reputation for the particular trait or conduct involved in the offense. The Smith case expanded the rule as set out in Vaughn v. State, 17 Ala.App. 35, 81 So. 417 (1919), wherein the court held that after evidence has been introduced as to general character, either good or bad, negative evidence as to the particular phase in which character is put in issue is admissible; however, such evidence was confined to specific traits involved in the charge. In Pierce v. State, 228 Ala. 545, 154 So. 526 (1934), the supreme court held that where the defendant has offered evidence of his general good character, the State could in rebuttal show the defendant’s general reputation as to peace and quiet was bad before the killing.

Appellant next contends that the trial court erred in excluding the public from the courtroom while being asked for further instructions by the jury without an express waiver by the defendant. This issue was first raised on appeal, and, at the time of the exclusion, neither the defendant nor her attorney voiced an objection to the exclusion of the public. From the record, it would appear that the court stated in the presence of both the attorney and the defendant that they had agreed to the exclusion of the audience for the question, and neither raised objection at that time. This matter has been previously addressed in Streeter v. State, 406 So.2d 1024 (Ala.Cr.App.1981), wherein this court stated that matters not objected to in the trial court cannot be considered for the first time on appeal, since review applies only to rulings invoked at trial.

After considering each contention raised by the appellant, we find no reversible error. Therefore, the judgment of the lower court is affirmed.

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

AFFIRMED.

All the Judges concur.