author: EMBRY, Justice.

text:
    Patricia H. LLOYD v. SERVICE CORPORATION OF ALABAMA, INC., a corporation.
    82-409.
    Supreme Court of Alabama.
    June 8, 1984.

      James W. May, Birmingham, for appellant.
    Jasper P. Juliano, of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellee.
   EMBRY, Justice.

This is an appeal occasioned by a Jefferson County trial court’s grant of summary judgment against Patricia H. Lloyd in a tort action.

I

The circumstances from which the conflict developed are as follows: On 1 April 1979, Patricia Lloyd, a young Birmingham woman, leased an apartment at Shadowood Circle, a residential apartment complex owned by John T. Strain. The printed form lease agreement which Lloyd signed contained the following clause:

“As a part of the consideration hereof, the lessee hereby covenants and agrees to hold the Lessor, the Lessor’s Rental Agents, and the Servants and Employees of either, free and harmless from any and all liability for claims for damages, or other claims for personal injury, or death, sustained by Lessee, or sustained by any other person, while on the leased premises or adjacent thereto during the terms of this lease as the result of negligence, or other conduct of the lessor, or of the Lessor’s Servants, Agents or Employees.”

Such is generally known as an “exculpatory clause.” It operates to release the lessor from liability for future negligent conduct, so that he or she can negligently cause the lessee injury, yet avoid the otherwise fixed legal responsibility to compensate the lessee.

After moving into the apartment, Lloyd realized the sliding glass patio door in her apartment had been installed improperly so that the locking mechanism was operable from the outside. Also, because the door slid on the wrong runner, it did not open and shut properly. Due to this defective installation, there was an exposed and open area around the glass. Lloyd notified Strain of these problems on a number of occasions, but he did not repair the door.

On 8 September 1980, Strain assigned to Service Corporation of Alabama, Inc. (Service), his leasehold rights, title, and interest in Shadowood Circle Apartments. Service began immediately to convert the apartments into condominiums, but allowed Lloyd to remain in her apartment under the preexisting lease. As part of this conversion, Service removed the draperies from almost all of the units in Lloyd’s building.

On 29 September 1980, Lloyd was awakened early in the morning by a burglar. When encountered, the burglar fled as he had entered, through Lloyd’s bedroom window, which he had unlocked from the outside.

Lloyd immediately reported the incident to the police. The next day she complained to Service, requesting that it take the following steps to provide security for her apartment: 1) replace her sliding glass door so that the locking mechanism could not be disengaged from the outside; 2) place screens on all the windows to prevent entrance through the apartment windows; and 3) replace the draperies in the empty units. Service did not make any of the repairs at that time, but eventually began to rehang the draperies.

During the last week of November 1980, Lloyd repeatedly observed a strange man on the premises near her apartment and reported the incidents to a deputy sheriff, who investigated the man. Lloyd notified Service employees of this investigation and asked that Service make the repairs which she had previously requested. Service did not accommodate Lloyd’s requests.

On 27 December 1980, Lloyd was assaulted and raped in her apartment. The rapist entered Lloyd’s apartment by disengaging the locking mechanism on the sliding glass door from the outside.

Subsequently, Lloyd filed a complaint in Jefferson County Circuit Court against Service Corporation. In her complaint, she alleges that Service was negligent in failing and refusing to repair the defective sliding glass door. She alleges that Service’s negligence proximately caused the physical injury and emotional distress she suffered because she was raped. A later amendment to that complaint further alleges that Service Corporation’s negligence in providing security proximately caused her injuries.

Service filed a motion to dismiss and a subsequent motion for summary judgment based upon the presence of the exculpatory clause in Lloyd’s lease. After hearing oral arguments, the trial court granted summary judgment in favor of Service based on the presence of the exculpatory clause in the lease agreement. That court entered final judgment in accordance with Rule 54(b), ARCP. Lloyd appealed to this court. She contends the trial court erred in granting summary judgment in favor of Service based on the exculpatory clause.

II

Lloyd acknowledges, as indeed she must, that this is a request for reexamination and reconsideration of our treatment, in Alabama, of exculpatory clauses in residential leases as valid and enforceable. She contends, because such clauses are typically part of adhesive contracts, that they are not truly bargained for, and that their enforcement is against the public interest.

Service argues that modification of our present law is not needed and points to this court’s strong policy in favor of freedom of contract. Service contends that change, even if needed, should be initiated by our Legislature. We have supplied ample authority to support these arguments.

Exculpatory contract provisions have, in various other circumstances, been found by this court to be void on the grounds of being contrary to public policy. See Ala bama Great So. R.R. v. Sumter Plywood Corp., 359 So.2d 1140 (Ala.1978); Housing Authority of Birmingham District v. Morris, 244 Ala. 557, 14 So.2d 527 (1943); Smith v. Kennedy, 43 Ala.App. 554, 195 So.2d 820 (1966), cert. den., 280 Ala. 718, 195 So.2d 829 (1966). The rationale behind these holdings is that such clauses tend to encourage negligence and, in circumstances where there is a strong public interest to discourage negligence, the clauses should be unenforceable.

As Service Corporation notes, in Alabama, residential leases have consistently-been characterized as not involving the public interest and exculpatory clauses therein as not violative of public policy. Lloyd begs our reconsideration of this issue and our acknowledgement that, at least when not fairly bargained for between parties having substantially equal bargaining power, exculpatory clauses in residential leases are violative of public policy in Alabama.

A single, but two-pronged, issue is presented. First, whether there is, at this time, a public policy justification for modification of the law in Alabama regarding the enforcement of exculpatory clauses in residential leases. Second, whether such a change, if needed, should originate with the judiciary.

Ill

The issue whether it is contrary to the public interest to allow escape from liability in a specific situation involves a complex of considerations. Among the factors we will consider and which other courts have considered in order to make such a determination regarding residential leases are: whether the service provided by the underlying contract is one necessary to the public; whether a significant number of people are compelled to seek the service; whether the transaction places one party to the contract under the control of the other and subject to his or her carelessness; the relative bargaining power of the parties and whether there is stated legislative policy against judicial enforcement of “unconscionable” contracts. See Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 573 P.2d 465, 143 Cal.Rptr. 247 (1978), and Weaver v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144 (1971).

First, it is clear we no longer live in an era of the occasional rental of rooms in a home or over the corner store. The rental industry provides a basic necessity of life, shelter, to thousands of inhabitants of this state. Approximately 30% of the total occupied housing units in the state are rental units. In Birmingham, the state’s largest metropolitan area, approximately 47% of the total housing units are rental units.

It requires no imagination to see that the rental industry is now a major commercial enterprise which directly touches the lives of thousands of people who depend on it for shelter. If the rental industry was small, the effect of the use of exculpatory clauses in residential leases would be minuscule. However, the existence of a large number of leases containing exculpatory clauses affects thousands of citizens who are concerned with the quality and safety of housing offered for rent in the state. See, e.g., McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093, 1098 (1971).

Second, it is evident that modern residential lease transactions subject tenants to the carelessness of the landlord. That has not always been true. During the past several decades, there have been occurring important societal changes in relationships between landlords and tenants in Alabama. In the past, many Alabama tenants were farmers. In agrarian situations, land, not housing, was the important part of a rental arrangement. A tenant would rent a property “as is,” but he had the right to improve the dwelling.

Since simple carpentry and construction skills were part of a farmer’s basic knowledge in that area, it was easy for him to make his house “livable,” according to the standards of the day. He did not need to know about plumbing, electricity, elevators, or other modern necessities. In comparison, as is illustrated by Patricia Lloyd’s circumstances, the modern urban tenant is almost totally dependent upon the landlord to make repairs and is vulnerable to his or her refusal to do so.

Third, the very nature and effect of the exculpatory clause makes clear the lack of bargaining power on the part of the tenant when negotiating a lease agreement. In his special concurrence in Taylor v. Leedy and Co., 412 So.2d 763, 766 (Ala.1982), Justice Faulkner spoke to this problem:

“Clearly, landlords have greater bargaining power .than tenants in residential leases. A tenant must live somewhere. The tenant has no meaningful choices. He can accept this landlord or go to another landlord who charges the same rent and asks the tenant to sign the same standard form lease. In other words, the modern standard form lease is in essence an adhesion contract. A survey of residential leases in Alabama would show that almost all leases contain these exculpatory clauses. A reasonable person with equal bargaining power would not accept a term whereby they or their children may be injured or killed, and they would have no recourse against the guilty party....”

Concern with this problem has developed because of the increasing use, in Alabama, of the standardized mass contract by business enterprises. Traditionally, a contract was the result of free bargaining of parties brought together by the play of the market, parties who met each other on a footing of approximate economic equality. Today, however, an individual consumer often faces an enterprise with strong bargaining power and position. That consumer, in need of goods or services, is frequently not in a position to shop around for better terms, because all competitors use the same clauses. Weaver v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144, 147 (1971).

There is a nationwide trend for courts to refuse to enforce agreements proven to be unconscionable. An unconscionable contract has been defined as one “such as no man in his sense and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” West Point-Pepperell, Inc. v. Bradshaw, 377 F.Supp. 154 (M.D.Ala.1974) (quoting Hume v. United States, 132 U.S. 406, 10 S.Ct. 134, 33 L.Ed. 393 (1889)).

Reflecting that general trend, our Legislature has expressed a clear concern for consumers in a situation analogous to that here considered. In § 7-2-302, Code 1975, the legislative body has mandated that the Alabama -judiciary not enforce “unconscionable” clauses in sales agreements. We think it reasonable to surmise that, because our Legislature has expressed so strong a concern for the effect of unequal bargaining power on sales agreements, its concern with the issue relative to the provision of the basic human need of shelter is substantially stronger.

For the above reasons we find the enforcement of “unbargained for” exculpatory clauses in residential leases against the best interests of the citizens of Alabama and contrary to public policy. We now proceed to determine whether a change in the law should be effected by the judiciary.

IV

While the preferred method for modification of a rule of law is by legislative action, it is clearly within the power of the judiciary, and, at times, appropriate for the judiciary, to change an established rule of law. A number of factors lead this court to the conclusion that it is here appropriate. We will discuss three of our primary considerations below.

First, the judiciary originally created this rule of law. It has not been altered, amended, or expanded upon by our legislative body. In this circumstance, where a judicial creation has become outmoded or unjust in application, it is more often appropriate for the judicial body to act to modify the law. Further, it is not uncommon for the Legislature to defer to the court’s wisdom regarding such a rule of law. See Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68, 73 (1975); Haney v. City of Lexington, 386 S.W.2d 738, 741 (Ky.1964); and Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618, 626 (1962). McAndrew v. Mularchuk, 33 N.J. 172, 193, 162 A.2d 820, 832 (1960).

Second, this is a tort law issue. An unjust tort law may indirectly affect every citizen of the state, but it will almost never directly affect enough people at any given point in time to generate a great deal of attention. It is not likely, therefore, to be placed on the Legislature’s crowded agenda for consideration. For that reason, tort law issues are, when certain other factors are present, proper subjects for judicial reform.

Last, when it has determined that a judicially created law is unjust in its application, this court cannot long permit itself to be used as an instrument of inequity by refusing to act to change the law. To do so undermines our credibility in the public perception. The judicial branch of government cannot avoid action. It must continuously apply the law to resolve the conflicts between citizens of this state. To continue to apply a judicially created rule this court has recognized as obsolete and unjust is a violation of its integrity.

In United States v. Bethlehem Steel Corp., 315 U.S. 289, 326, 62 S.Ct. 581, 599, 86 L.Ed. 855 (1942), Justice Frankfurter, of the United States Supreme Court, described the judiciary’s responsibility regarding this problem:

“It is said that familiar principles would be outraged if Bethlehem were denied recovery on these contracts. But is there any principle which is more familiar or more firmly embedded in the history of Anglo-American law than the basic doctrine that the courts will not permit themselves to be used as instruments of inequity and injustice? Does any principle in our law have more universal application than the doctrine that courts will not enforce transactions in which the relative positions of the parties are such that one has unconscionably taken advantage of the necessities of the other?
“These principles are not foreign to the law of contracts. Fraud and physical duress are not the only grounds upon which courts refuse to enforce contracts. The law is not so primitive that it sanctions every injustice except brute force and downright fraud. More specifically, the courts generally refuse to lend themselves to the enforcement of a ‘bargain’ in which one party has unjustly taken advantage of the economic necessities of the other....”

For this court to continue to sanction the enforcement of exculpatory clauses in adhesive contracts and thereby encourage landlords to neglect the duties imposed on them by law for the protection of tenants is to allow itself to “be used as [an instrument] of inequity and injustice.”

We think that, under these circumstances, the responsibility for modification of the law rests with this court. The enforcement of adhesive exculpatory clauses in modern residential leases where not explicitly bargained for by the parties cannot be rationally defended. In fact, it is almost incredible that we have so long allowed landlords to shift the consequences of their negligence to tenants in that manner. We thus proceed to consider the manner in which the law should be modified.

V

As above noted, our Legislature has expressed strong concern for the effect of the consumer’s unequal bargaining power when purchasing goods, by enacting § 7-2-302, Code 1975. In light of that clear statement of legislative policy and this court’s determination that exculpatory clauses in residential leases are violative of public policy where not “bargained for,” we think it reasonable for this court to apply § 7-2-302 by analogy to lease agreements. At least one state has done so. See Weaver v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144 (1971). There is authority for such treatment.

Therefore, when a lessee can show that an exculpatory provision in a residential lease contract is in fact an unconscionable one, due to a prodigious amount of bargaining power on behalf of the lessor, which is used to the lessor’s advantage, causing a great hardship and risk to the lessee, the contract provision, or the contract as a whole, if not separable, is void on the grounds that the provision is contrary to public policy. The lessor seeking to enforce such a contract has the burden of showing that the provisions were explained to the lessee and came to his knowledge and that there was in fact a real and voluntary meeting of the minds and not merely an objective meeting.

We do not hold that exculpatory clauses in residential leases are void per se. When clearly “bargained for,” such contract provisions are enforceable and valid.

We choose not to believe that any landlord, or any of his or her agents, would commit a tort deliberately, in reliance on this court’s enforcement of an adhesive exculpatory clause. Therefore, we see no particular reasons why we should not apply this modified rule of law in the instant case and permit all others who have been injured, and who are not barred by the statute of limitations, to take advantage of the rule. Our prior decisions regarding this issue are reversed only to the extent that they conflict with this holding.

The judgment of the trial court that Patricia Lloyd’s cause of action is barred by the exculpatory clause in her lease agreement with Service Corporation is reversed, and this cause is remanded to that court for proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

FAULKNER, JONES, BEATTY and ADAMS, JJ., concur.

MADDOX, ALMON and SHORES, JJ., dissent.

TORBERT, C.J., not sitting.

      . See, e.g., Matthews v. Mountain Lodge Apartments, Inc., 388 So.2d 935, 938 (Ala.1980), where this court held to precedent and declined to hold unenforceable exculpatory clauses in residential leases. One reason cited for this court’s decision was deference to the Legislature, due to its superior ability "to assess the conditions of the marketplace.”

        . See, e.g., Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 143 Cal.Rptr. 247, 573 P.2d 465 (1978); and McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971), where the increase in number of renters is considered relevant regarding continued enforcement of exculpatory clauses.

      . Based on 1980 Census of Population and Housing, Bureau of the Census, United States Department of Commerce, Washington.

      . Id.

      . A number of courts have refused to enforce exculpatory clauses in residential lease agreements due to lack of bargaining power by the tenant. Jackson v. First Nat. Bank, 415 Ill. 453, 114 N.E.2d 721 (1953); Sweney Gasoline & Oil Co. v. Toledo, P. & W.R. Co., 42 Ill.2d 265, 247 N.E.2d 603 (1969); Simmons v. Columbus Venetian Stevens Bldgs., Inc., 20 Ill.App.2d 1, 155 N.E.2d 372 (1958); Strauch v. Charles Apartments Co., 1 Ill.App.3d 57, 273 N.E.2d 19 (1971); Weaver v. American Oil Co., 257 Ind. 458, 276 N.E.2d 144 (1971); Talley v. Skelly Oil Co., 199 Kan. 767, 433 P.2d 425 (1967) (by implication); Mayfair Fabrics v. Henley, 48 N.J. 483, 226 A.2d 602 (1967); Kuzmiak v. Brookchester, Inc., 33 N.J.Super. 575, 111 A.2d 425 (1955); Midland Carpet Corp. v. Franklin Associated Properties, 90 N.J.Super. 42, 216 A.2d 231 (1966); Swisscraft Novelty Co. v. Alad Realty Corp., 113 N.J. Super. 416, 274 A.2d 59 (1971); Cardona v. Eden Realty Co., 118 N.J.Super. 381, 288 A.2d 34 (1972); Galligan v. Arovitch 421 Pa. 301, 219 A.2d 463 (1966); Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966).

      . For an excellent discussion of the relevant factors in determining the appropriate body to institute legal reform, see Comment, Reforming the Common law, 34 Ala.L.Rev. 631 (1983).

      . It is interesting to compare with this case our abrogation of municipal immunity as against public policy in Alabama. Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975). The widespread use of exculpatory clauses in residential lease agreements has effectively provided landlords with a similar immunity from suits for negligence.

      . A statute may be extended by analogy, beyond its apparent boundaries, to include situations which would reasonably have been contemplated by the Legislature in light of the purposes giving impetus to the legislation. Sutherland, Statutory Construction, 3rd ed. (Horack) § 6005 (1943). Thus, principles of the Uniform Negotiable Instruments Law have been extended beyond the letter of the statute to non-negotiable instruments. Sheldon v. Blacman, 188 Wis. 4, 205 N.W. 486 (1925). The Court reasoned that the NIL represented codification of the law on all instruments of debt. Similarly, an Illinois statute authorizing contests of county elections was held applicable to municipal elections. Harding v. Albert, 373 Ill. 94, 25 N.E.2d 32 (1939).


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Perry L. UNDERWOOD v. FIRST ALABAMA BANK OF HUNTSVILLE, et al.
    Civ. 3449.
    Court of Civil Appeals of Alabama.
    Jan. 26, 1983.
    Rehearing Denied March 2, 1983.
    Trey Riley, Huntsville, for appellant.
    James T. Baxter, III of Berry, Abies, Tatum, Little & Baxter, Huntsville, for ap-pellees.
   HOLMES, Judge.

This is a Truth-in-Lending Act case.

The debtor, Mr. Perry L. Underwood, purchased an automobile from Huntsville Dodge, Inc., on January 5, 1981 and financed the purchase through First Alabama Bank of Huntsville (Bank). The debtor defaulted on the payment agreement in March. The Bank then repossessed the vehicle and sold it at a private sale. The debtor then filed suit in July, 1981, contending that the Bank had violated the disclosure requirements in the Truth-in-Lending Act, 15 U.S.C. § 1631-1638 (1976) and Regulation Z, 12 C.F.R. § 226.8 (1979). The debtor also contended that the Bank had violated § 7-9-504 of the 1975 Alabama Code in that the Bank failed to provide adequate notice of the resale of the automobile. The Bank filed a counterclaim to recover the deficiency due on the contract price after the resale of the automobile.

The trial court entered judgment against the debtor on his complaint and in favor of the Bank on its counterclaim. The debtor appeals from the trial court’s actions regarding his claims against the Bank. The debtor took no appeal on the counterclaim. We affirm.

A review of the record reveals the following pertinent facts:

The debtor purchased an automobile from Huntsville Dodge, Inc., and financed it through the Bank. When the debtor failed to make the first two payments, the Bank repossessed the car on March 4,1981.

The debtor testified that he called the Bank to find out how to get his automobile back. The substance of that conversation was in dispute, the debtor testifying that the Bank told him that he would have to pay two payments and the Bank claiming that they told the debtor he would have to pay the whole purchase price to get his car back.

According to the debtor’s testimony, he attempted to raise the money to retrieve his vehicle and heard nothing further from the Bank until March 17, 1981. On that date, the debtor called the Bank and was informed that his automobile had been resold the day before, March 16.

After his telephone conversation with the Bank on March 17, the debtor met personally with Bank employees who again informed him that the automobile had been resold the day before. The debtor was then presented with a copy, of the notice of resale which had been mailed to the debtor. The notice was post-marked March 4, 1981 and had been returned to the Bank stamped, “Attempted. Not Known, Return to Sender.” It is not in dispute that the debtor did not receive the letter.

The notice explained that the debtor had until the end of the business day, March 16, 1981, to redeem the automobile or it would be resold the next day, March 17. The Bank, however, admittedly sold the vehicle on March 16.

After reading the notice letter, the debt- or was sent to another Bank employee in order to collect personal belongings he had left in the car. This Bank employee returned debtor’s belongings to him and then the debtor signed a document that consisted of a single page divided into three parts. The top part was labeled, “Repossession Report,” a check list of the condition of the car and its contents. The bottom half of the document was divided into two parts, each labeled in bold type. The part that the debtor signed was entitled, “Release Agreement.” This release purported, among other things, to waive debtor’s right to redeem the collateral and right to notice of resale. After reading and signing the release agreement, the debtor left the Bank.

On appeal, the debtor contends that the Bank did not supply adequate notice of the resale according to the provisions of Ala. Code § 7-9-504(3) (1975). Additionally, the debtor contends that a certain clause contained in the sale contract is an undisclosed security interest in violation of the federal Truth-in-Lending Act.

I

We first address the debtor’s contention regarding the alleged “Undisclosed security interest.” The Truth-in-Lending Act requires a creditor to disclose a “description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit.” 15 U.S.C. § 1639(a)(8). Regulation Z, promulgated by the Federal Reserve Board pursuant to authority granted in the Act, defines “security interests” and “security” to “mean any interest in property which secures payment or performance of an obligation.” 12 C.F.R. § 226.2(gg). Regulation Z provides that the definition of security interests includes, but is not limited to, security interests under the Uniform Commercial Code. 12 C.F.R. § 226.2(gg).

It is a requirement of the Act and Regulation Z that the debtor receive from the creditor a disclosure statement containing certain information. This information must be on the same side of one page. If the statute is not followed, a penalty of twice the amount of the finance charge plus a reasonable attorney fee is assessed against the creditor.

In the instant case a document entitled, “Sales Contract and Security Agreement,” was introduced into evidence. This contract was for the purchase of an automobile and was signed by the debtor. On the back of the contract there is a clause numbered 16 which reads as follows: “Buyer waives all rights of exemption of property under the Constitution & Laws of Alabama, except Alabama statutory exemptions from garnishment, or any other jurisdiction, as to all obligations of Buyer aris-kg under this contract.”

The debtor, through able counsel, contends that the waiver of exemption rights found in the contract constitutes a security interest for the purposes of the Truth-in-Lending Act & Regulations and that the Bank failed to make the proper disclosure as required.

The debtor supports his position for the most part by relying on Elzea v. National Bank of Georgia, 570 F.2d 1248 (5th Cir.1978).

In that case, the debtor assigned a homestead exemption to the creditor as part of an extension of consumer credit. The court held that the assignment was a security interest for the purposes of the Truth-in-Lending Act & Regulations because it was an interest in property which secures payment of an obligation.

The Fifth Circuit Court of Appeals analyzed the question of whether a security interest exists by examining the rights of the creditor. They determined that an assignment of homestead exemptions under Georgia law gave the creditor enforceable rights in the exempted property.

The Elzea case can be distinguished from the present case in one important aspect. The Elzea case concerned an assignment of property exemptions. The instant case concerns a waiver of property exemptions. This distinction to this court is fatal to the debtor’s argument.

Any person, by an instrument in writing, may waive his right to an exemption in any property. Ala.Code § 6-10-120 (1975). Regarding personalty, this waiver may be included in any promissory note or other written contract executed by the person making the waiver. Ala.Code § 6-10-121 (1975). Without making a determination one way or the other, we will assume for the sake of argument that the debtor in the instant case effectively waived his right to an exemption for his personal property. In light of Elzea, the question then arises, what effect does this waiver have on the creditor’s rights in the exempted property? Put another way, does the waiver give the creditor an interest in debtor’s property that secures payment on an existing obligation? We answer, as indicated, in the negative.

It has long been the law of this state that a mere waiver of exemptions does not of itself confer any title, estate, interest, or equity in the property of the debtor. “It is in no sense a lien or pledge.” In re Tune, 115 F. 906 (D.C.N.D.Ala.1902); In re Moore, 112 F. 289 (D.C.M.D.Ala.1901); Craft v. Stoutz, 95 Ala. 245, 10 So. 647 (1892); 35 C.J.S., Exemptions § 111(b). Applying that theory to the instant case, it appears that a waiver of exemptions under Alabama law fails to meet Regulation Z’s definition of a security interest. If the waiver confers no interest to the creditor, there can be no interest in property which secures payment.

In view of the above, we affirm the trial court’s actions regarding debtor’s claim on the Truth-in-Lending Act & Regulations.

II

The debtor next contends that there was no “reasonable notice” of the resale provided to the debtor in accordance with the governing statutory provisions. The debt- or contends notice was insufficient for two reasons: one, that though mailed, the notice was never received by the debtor, and secondly, that the Bank failed to abide by the terms of its own written notice by selling the collateral one day too soon.

The relevant statute in pertinent part reads:

“Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, .... ”

Ala. Code § 7-9-504(3) (1975).

The comments to § 7-9-504(3) state in pertinent part that:

“ ‘Reasonable notification’ is not defined in this Article; at a minimum it must be sent in such time that persons entitled to receive it will have sufficient time to take appropriate steps to protect their interests by taking part in the sale or other disposition if they so desire.”

In the instant case, the Bank mailed the written letter of notice to the address provided in the sales contract between the parties. The contract stated that the parties agreed that any notices to which the debtor was entitled would be mailed to the address as listed on the contract. The address as provided on the contract did not contain the debtor’s apartment number. The Bank mailed the notice to the debtor at the address provided on the contract. But the document was returned undelivered.

We note there is a split of authority among the states on the question of what constitutes “reasonable” notice in situations where the notice is mailed but not received. Regardless of decisions in other states, our supreme court addressed this matter in Low Cost Cars, Inc. v. Munn, 399 So.2d 277 (Ala.1981), holding that where written notice was properly addressed and mailed with postage affixed the notice requirements of the statute were met. “The notice requirement that reasonable notification be sent to the debtor, however, clearly does not require that the debt- or receive it.” Low Cost Cars, Inc. v. Munn, supra, at 280.

In this instance, in view of the language in Low Cost Cars, Inc., we cannot say that reasonable notice was not sent since the Bank mailed the notice to the address stated in the contract as the proper address of the debtor for such purposes.

The debtor next contends notice was insufficient because the automobile was not sold in accordance with the time specified in the notice. According to the terms of notice, the debtor had until the end of the business day, March 17. By the Bank’s own admission, the automobile was sold March 16, 1981. The debtor contends this premature sale of the automobile renders the notice insufficient because the proper time element is essential in meeting the requirements of reasonable notice, and the time element was not properly stated in the notice.

The statutory language itself requires that a statement of the correct time element of resale is an essential element of reasonable notice. Ala.Code § 7-9-504(3) (1975). Our cases have also recognized that the proper time element is essential. Notice given after the time of the sale or when there is no time to redeem the collateral prior to the sale is clearly insufficient. Wells v. Central Bank of Alabama, N.A., 347 So.2d 114 (Ala.Civ.App.1977). A letter which did not identify the timing of the resale was held insufficient notice in Simmons Machine Co. v. M & M Brokerage, Inc., 409 So.2d 743 (Ala.1981). Cf. First Alabama Bank of Montgomery, N.A. v. Parsons, 390 So.2d 640 (Ala.Civ.App.1980). It therefore appears the premature sale of the automobile rendered the notice insufficient for lack of a correct statement of the time element.

However, in this case, the debtor signed a waiver on March 17 which waived his right to notice. Although not all courts are in agreement as to whether a debtor may waive his right to notice under § 7-9-504(3), our supreme court has held:

“Although our present § 7-9-504(3) does not specifically allow a post-default waiver of notice by a debtor, we are of the opinion that the better position on this issue is to allow such a waiver. We are mindful that a default debtor’s right to notice of the intended disposition of the secured collateral is one of the most important rights affording a debtor protection of his interest in the secured collateral under the U.C.C. Accordingly, we hold that a post-default waiver by a debt- or of his right to notice under § 7-5-504(3) can be made where the debtor knowingly and specifically agrees to waive his right to such notice.”

Simmons Machine Co. v. M & M Brokerage, Inc., supra, at 748.

There was evidence presented at trial which supports the trial court’s implied finding that the debtor “knowingly” waived his right to notice. The debtor himself testified that he read the waiver, and signed it. The paragraph containing the waiver is clearly labeled in large, bold print, “Release Agreement.” The pertinent part stated the debtor “waives all rights to redeem said collateral and waives all right to receive notice of method of disposition of said collateral....”

The fact that the waiver was signed after the car was already sold does not appear to affect its validity. Although apparently there are no Alabama cases directly on point, a Florida court held that where the debtor wrote a letter disclaiming any interest in the collateral after the collateral was already sold that the debtor had waived his right to notice of the sale. Applestein v. National Bank of Tulsa, 358 So.2d 106 (Fla.Dist.Ct.App.1978).

The debtor’s waiver then was effective to waive his right to notice regardless of the fact that the Bank’s premature sale of the automobile rendered the notice ineffective.

In view of the above, the trial court is due to be affirmed.

AFFIRMED.

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

      . We note that § 7-9-504 has been revised effective February 1, 1982. However, the above quoted section is the law applicable in this case, and at any rate, no changes were made to the quoted section of § 7-9-504(3) in the revision.


author: WRIGHT, Presiding Judge.

text:
    Tommie L. EDWARDS v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO.
    Civ. 3584.
    Court of Civil Appeals of Alabama.
    July 6, 1983.
    Rehearing Denied July 27, 1983.
    Certiorari Quashed July 13, 1984 Alabama Supreme Court 82-1059.

      Robert J. Varley and Shirley D. Howell of Legal Services Corp, of Ala., Montgomery, for appellant.
    Sanford D. Weiss of Weiss & Sawyer, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a consumer credit case involving application of the Alabama Mini-Code (§§ 5-19-1 to -31, Code of Alabama 1975), and the federal Truth-in-Lending Act (15 U.S.C.A. §§ 1601-1667 (West 1982)). Defendant below, Tommie L. Edwards, appeals from summary judgment granted Alabama Farm Bureau Mutual Casualty Insurance Company (Farm Bureau).

Tommie Edwards was an uninsured motorist involved in an accident with a motorist insured by Farm Bureau. The amount of damages to the insured’s vehicle was $2,544. On March 16, 1979, Edwards signed an installment note promising to pay Farm Bureau the $2,544, plus a finance charge, in exchange for a conditional release signed by Farm Bureau enabling Edwards to retain possession of his car tags. The finance charge on the note was $1,424.16 (an annual percentage rate of 13.69%). The note obligated Edwards to pay eighty-four monthly installments of $47.24 each.

On April 12, 1982, Farm Bureau filed a complaint against Edwards in the District Court of Montgomery, seeking $3,873.68 due on the note plus an attorney’s fee of $581.00 and costs of $32.00. On May 4, 1982, Edwards filed an answer and counterclaim alleging violations of the Truth-in-Lending Act, supra, Regulation Z (12 C.F.R. § 226 (1981)), and the Alabama Mini-Code, supra. On July 21 the district court granted judgment in favor of Farm Bureau.

On appeal taken by Edwards to the circuit court, Farm Bureau amended its complaint by deleting its claim for finance charges and attorney’s fees. Thus, in circuit court Farm Bureau sought only the unpaid principal, $2,449.52. On August 31, 1982, the circuit court granted Farm Bureau’s motion for summary judgment and entered judgment for Farm Bureau for $2,449.52. The circuit court denied Edwards’ motion to alter, vacate or amend the summary judgment, and this appeal followed.

The first issue raised on appeal is whether the note executed by Edwards and Farm Bureau is a consumer credit transaction subject to the provisions of the Truth-in-Lending Act and the Alabama Mini-Code. If so, the court should have considered Edwards’ counterclaim, and the grant of summary judgment was improper.

The trial court granted summary judgment below on the basis that the note was not a consumer transaction. Farm Bureau argues on appeal, as it did successfully below, that the note was not issued for a consumer purpose. Credit was extended for repayment of damages caused by Edwards’ negligent operation of his motor vehicle. Farm Bureau argues such is not a “personal, family, household or agricultural” purpose, as is required by the Truth-in-Lending Act and the Alabama Mini-Code. 15 U.S.C.A. § 1602(h) (West 1982); § 5-19-1(2), Code 1975. Farm Bureau cites no authority in support of its argument, and we find no cases dealing with this specific issue.

Section 5-19-1(2), Code 1975, defines “consumer” as used in the Alabama Mini-Code:

“Such term, when used as an adjective with reference to a credit transaction, characterizes the transaction as one in which the party to whom credit is extended by loan, sale of property or services, lease or otherwise is a natural person and the money, property or services which are the subject of the transaction are primarily for personal, family, household or agricultural purposes.”

The relevant section of the Truth-in-Lending Act, 15 U.S.C.A. § 1602(h) (West 1982), is essentially the same.

We find Farm Bureau’s argument to be without merit. There is no dispute that Farm Bureau extended credit to Tommie Edwards; that credit was extended in order to satisfy the personal debt Edwards incurred by agreeing to pay damages arising from the negligent operation of his motor vehicle. Such extension of credit and acceptance of notes was a common practice by Farm Bureau in the exercise of its subrogation rights after payments to its insureds. Having extended credit to a natural person for the purpose of satisfying a personal debt, Farm Bureau was subject to the various provisions of the Truth-in-Lending Act and the Alabama Mini-Code. Id.

In reviewing the trial court’s ruling on Farm Bureau’s motion for summary judgment, “we must determine whether there exists any genuine issue of material fact and, if not, whether the substantive law was correctly applied to undisputed facts.” Watts Construction Co. v. Cullman County, 382 So.2d 520, 522 (Ala.1980). The trial court incorrectly decided that the Truth-in-Lending Act and the Alabama Mini Code did not apply to the transaction involved herein. The judgment of the trial court is therefore due to be reversed and the case remanded for a full hearing on Farm Bureau’s claim and Edwards’ counterclaim.

The first issue being dispositive of the appeal, we find it unnecessary to discuss Mr. Edwards’ other arguments.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: TYSON, Judge.

text:
    Willie Byrd KNIGHT, alias v. STATE.
    4 Div. 7.
    Court of Criminal Appeals of Alabama.
    May 3, 1983.
    Rehearing Denied May 31, 1984.

      Jack W. Smith of Smith & Smith, Do-than, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Appellant was indicted by the Houston County Grand Jury for the offense of murder. The jury returned a verdict of guilty of the lesser included offense of manslaughter and the trial court sentenced appellant to seven years’ imprisonment. Because appellant questions the sufficiency of the State’s evidence, we will detail those facts necessary to sustain the conviction rendered at trial below.

Calvin Grooms, brother-in-law of the victim, Stuart Maddox, testified that he drove Maddox to the 500 Club in Houston County on the night of February 20, 1981. Appellant and his wife, Rebecca Knight, were the 500 Club owners and proprietors. Sometime after midnight, in the early morning of February 21, 1981, Grooms and Maddox exited the night spot. Grooms got into his automobile and started his engine to warm it. As Maddox was getting into the vehicle, he told Grooms, “Give me thirty minutes,” and then he quickly reentered the club.

Thereafter, Grooms saw Maddox backing out of the club door, followed by appellant’s wife, Rebecca Knight, who was pointing a pistol at Maddox. Mrs. Knight pointed the pistol down and fired one shot. Grooms immediately drove up by the club door and told Maddox to come on and leave. Maddox got into the waiting vehicle. Grooms backed the vehicle around, and before he could start forward to leave, appellant came out of the club with a pistol. Appellant walked up to the passenger side of Grooms’ automobile and Maddox yelled “Man, don’t shoot in this car.” The vehicle door was then opened, and just as Maddox came out of the automobile, Grooms heard a shot fired. The two men then fell down out of Grooms’ view on the passenger side of the car, and then another shot was fired. Grooms exited the vehicle and saw Maddox on the ground leaning back on his hands. His left side was covered with blood.

Grooms helped Maddox into his automobile and immediately drove him to the hospital.

Officer Jackie Mendheim of the Dothan police department, testified he took a statement from appellant at police headquarters on February 21, 1981, after first reading appellant his Miranda rights. Appellant’s statement, in pertinent part, appears in the record as follows:

“He caused some type of trouble in your place and your wife asked him to leave? Yes, sir. Your wife shot into the ground to make him not come back into the building. Where were you at when she shot? I was in the back — standing beside the disco guy. So, you were in the building when your wife shot at him? Yes, sir. You went outside? Yes. Did you have a pistol drawn at that time? When I went out the door, no, sir, but, afterwards, I — where was this subject at when you went outside? When I got out the door he was on his way back in and I asked him to leave. Did he leave? No, sir, not right then. What happened? Well, I walked out and I asked him and I asked the guy driving the car to carry him home. He refused to leave. Is this after your wife shot? Yes. Did he ever get in the car? He got in and jumped out. Where were you at in relationship to the car? I was standing about five or six feet away. Had you drawn your pistol at that time? Yes, I had drawn it for — and he jumped out of the car? What did he do when he jumped out of the car? He rushed me and jumped on me. Did he grab you? Yes. Where did he grab you at? He grabbed me around the neck. Was he choking you? Yes, sir. Did you go down on the ground? Yes, sir. I went down on my knees and later fell. Who was on top? He was. Do you remember at what point the pistol went off? No, sir, I know I told my wife to get him off of me, but, I don’t remember. I was practically under the car, my head — did you aim the pistol at him? I can’t say the way I went down. I may have. Were the shots real close together or was one shot and then a minute later the other shot? I believe they were close together. Do you know where you hit him at? No, sir, I know there was blood on his shoulder and pants and he run and jumped in the ear again.... Did you ever see any type of weapon that he had? Did he have a pocket knife? I didn’t see no weapon. Did he ever threaten you? He did on the inside, but not on the outside. He just kept telling me on the inside that Rebecca was his lady and what he was going to do to the guy that was playing disco. When you were down, could you see him when he was shot? I didn’t know he had got hit until I saw the blood on him. So, you didn’t point the pistol at him and pull the trigger? Ya’ll were just tussling? Right. And it went off? Yeah. Did he have hold of the pistol? He did at one time. Do you know if he had hold of it when it went off? I don’t quite remember. I know he did catch me. Anything else you want to tell me about this? No. I didn’t mean to shoot him.” (R. 69-71)

Officer Mendheim also obtained the pistol fired by appellant and the pistol fired by appellant’s wife at the time he went to bring the couple in for questioning.

Dr. John Hilbert testified he treated the victim at the emergency room of the Southeast Alabama Medical Center on February 21, 1981. He stated that the victim had a bullet wound to the left thigh which had transversed down his leg and cut a major blood vessel. In the doctor’s words, “essentially he was dead when he came in,” having bled to death from the gunshot wound to the thigh.

Dr. Thomas Gilchrist, a State forensic pathologist, testified his examination of the deceased indicated he died of a gunshot wound to the left thigh. The bullet traveled downward and severed the femoral artery which caused the victim to bleed to death.

Lonnie Harden, a State firearms coordinator, testified it was not possible for a bullet to be fired down toward the ground, and then go back up and strike someone, and then cause a downward path of damage.

The State rested at the close of Mr. Harden’s testimony.

Appellant’s evidence indicated the victim had created a disturbance at the 500 Club on the night of the shooting by threatening the disc jockey. Maddox thought the disc jockey was flirting with his girl friend. Accordingly, Mrs. Knight and then the appellant were required to use weapons to force the victim to leave the club, in order to protect themselves, their employees, their customers, and their business. Appellant presented uncontroverted evidence that he and his family were using the 500 Club as their residence at the time of the shooting.

I

Appellant contends the trial court erred in refusing to give his requested written instruction on defense of his home, business, and the safety of those therein. The record reflects the following transpired at the close of the court’s charge to the jury:

“THE COURT: Let the record show this is out of the presence and hearing of the jury. Let the record show that at the point during the instructions that I called the attorney for the State and the attorney for the Defendant up to the Bench, the attorney for the State asked me to read the further definition of intentionally, that I read it and the attorney for the State said he had no objection to the Court’s charge at that point. The attorney for the Defendant did request that I give further instructions and I denied his request—
"MR. SMITH: As to his home, this accident happened at his home; in defense of his home and in defense of third person.
“THE COURT: You asked me to give further instructions—
“MR. SMITH: As to defense on his home—
“THE COURT: —as to defense of his home and as to defense of third person.
“MR. SMITH: Right.
“THE COURT: Yes, sir. And I denied your request at that time. And I did not give further instructions.
“MR. SMITH: And the Defendant excepts.” (R. 349-350)

The bench conference referred to by the court occurred at the end of the court’s own oral charge, but prior to the court’s reading of the given written charges requested by appellant. Whether appellant was informed prior to the court’s charging the jury as to which written charges would be given and which refused is not apparent from the record. The record is not clear, therefore, as to whether the appellant’s objection quoted above was directed at the court’s refusal to give his requested written charge on that matter, or whether the appellant merely orally requested an extension of the court’s charge because of the court’s partial failure to orally instruct on certain aspects of the principle of self defense.

The refused written charge referred to by appellant in brief reads as follows:

‘The Court charges you that the law does not require one who is assailed in. his own dwelling to retreat from, but the law permits him, and says that it is his right, to stand his ground and kill his assailant if it necessary so to do to save his life, or to protect himself from great bodily harm, provided he was without fault in bringing on the difficulty; and in this case the Court charges the jury that if they believe from the evidence that the deceased so acted as to create in the mind of defendant reasonable belief that he himself or any member of his family was in danger of life or sustaining great bodily harm, at the hands of the deceased, then the defendant, under the law, had a right to shoot deceased and take his life if such shooting was necessary to protect his own life, or that of any member of his family, from sustaining great bodily harm at the hands of the deceased.’ ” (R. 385)

The partial failure of the trial court to instruct in his oral charge in regard to principles of law which are applicable to the case can only serve as a basis for review when the defendant objects to the oral charge and requests appropriate written extensions to the charge. Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978). It appears appellant may have attempted both actions, if the refused charge cited in his brief is deemed to have been submitted in response to the court’s omission to orally charge on those points. However, the requested written charge does not comport with the same principles of law requested in appellant’s oral exception. The oral exception dealt with defense of property and third persons, while the written requested charge deals with defense of persons and duty to retreat when defending persons assailed on one’s property.

This being so, did appellant take the necessary actions to preserve for review the trial court’s refusal to give his requested written charge? Under Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), affirmed Ex Parte Allen, 414 So.2d 993 (Ala.1982), a defendant must both object to the trial court’s refusal to give his requested written charge and state his grounds before the jury retires. The record indicates that appellant took neither action following the court’s reading of the given written charges. Neither does it appear that appellant, in the above quoted exception to the court’s oral charge, pointed out a specified written charge nor offered grounds to the court as to why any refusal to such charge was error. Even assuming that appellant’s objections at that time were addressed to a preannounced refusal by the trial court to give appellant’s particular requested written charge, we find that, upon the face of the record before us, appellant failed to meet his burden in preserving error under Allen and its progeny. See, Lidge v. State, 419 So.2d 610 (Ala.Cr.App.), cert. denied, 419 So.2d 616 (Ala.1982); Blakely v. State, 418 So.2d 935 (Ala.Cr.App.1982); Chambers v. State, 418 So.2d 948 (Ala.Cr.App.1982). While appellant partially stated the matter to which he objected, he certainly did not make it clear to the court that he was addressing the principle of law contained in the written charge. In fact, his exception refers more to a concept of protecting his real property, of which there was no evidence of endangerment, rather than to the issue of retreat in one’s home or business. Additionally, appellant in no wise presented clear and adequate legal or factual grounds for this objection to the court’s failure to so charge.

The court did charge in its own oral charge as to the aspect of appellant’s request which related to defense of third persons, and therefore there was no error in refusing appellant’s request as to that aspect of the law. Allen, supra.

We note that part of the problem on appeal is the manner in which the appellant’s exceptions to the court’s charge are presented for our review. The actual exceptions made by the appellant’s attorney prior to the jury retiring for deliberations are not present in the record. Rather, we have only a piecemeal, second-hand rendition of what occurred, as recollected by the trial court, with appellant’s acknowledgment of the same. However, if more occurred, or if the exceptions were misstated, it was the appellant’s duty to secure a correct and intelligible record on appeal. Allen v. State, 382 So.2d 1147 (Ala.Cr.App.), cert. denied, 382 So.2d 1158 (Ala.1980). As the record appears before us, appellant has failed to preserve any error for our review. Ex Parte Allen, supra.

II

Appellant asserts the trial court erred in giving additional instructions, at the jury’s request, on the definitions of first and second degree assault, as those crimes related to the court’s instructions on the definition of self-defense. He argues such instructions confused the jury in their deliberations on murder and manslaughter.

The court made it clear to the jury that his instructions on assault did not relate to any crime charged against appellant, but related rather to misconduct of the victim which could have justified the appellant in acting in self-defense.

Section 13A-3-23(a)(3), Code of Alabama 1975, specifies that the use of deadly physical force in self-defense may be used when one believes another is committing or about to commit an assault in the first or second degree. The evidence justified the court in charging the jury accordingly, and it was appropriate for the court to define the legal terms used in so instructing the jury.

As well, the judge’s initial oral charge to the jury covered the same terms and was given without any objection thereto by appellant.

The objection stated by appellant at trial appears as follows:

“MR. SMITH: Now, Your Honor, the Defendant excepts to the charge of self defense in that self defense wasn’t charged as applicable to murder in the sense that it was charged as being applicable to first and second degree assault and not as to murder itself. And we except on that basis.” (R. 359)

The actual import of the objection itself is difficult to decipher. However, it appears clear to us that whatever grounds appellant was attempting to assert below, they were not the same grounds as those argued on appeal — that the giving of the definition of assault would be confusing to the jury. In fact, it appears appellant was not objecting to the charge, but requesting a new charge as to murder. An objection not having been raised below, it cannot now be made for the first time on appeal. Showers v. State, 407 So.2d 169 (Ala.1981); Sprinkle v. State, 368 So.2d 554 (Ala.Cr.App.1978), cert. quashed, 368 So.2d 565 (Ala.1979).

Ill

Appellant’s final contention is that the State’s evidence was insufficient to establish a prima facie case against him. He contends the State’s evidence merely presented facts which proved the victim was shot, without implicating him, rather than his wife, as the one who fired the fatal shot. He points to testimony by Dr. Gilchrist which appellant argues indicated the victim may have received a wound by the ricocheting of the bullet fired toward the ground by appellant’s wife. As well, he relies on expert testimony which indicated the bullet was fired from a minimum distance of twenty-four to thirty inches.

When Dr. Gilchrist’s testimony is read in context with the record and with the State’s picture exhibit number ten to which his comments had reference, it is clear that the doctor was referring to a slight superficial wound, and not the fatal wound.

Also, the State presented positive testimony from Lonnie Harden, a State firearms expert, that it was not possible for a bullet to have been fired by someone toward the ground and have same ricochet and cause a wound with a path of downward passage to a second person, assuming both parties were erect. This testimony negates appellant’s contention that appellant’s wife fired the fatal shot, and such testimony was uncontroverted.

The evidence detailed in the statement of facts clearly presented the jury with evidence sufficient to sustain the conviction. The fact that the bullet was fired at a minimum range of twenty-four inches does not negate the contention that the bullet was fired by appellant. Evidence presented by the State indicated the victim was in a friend’s automobile, attempting to leave appellant’s premises, when appellant approached the automobile. The victim shouted, “Man, don’t shoot in this car,” and then either jumped or was pulled out of the vehicle. During the scuffle which followed the victim received the fatal shot. There was, therefore, prima facie evidence of an unjustified homicide. While the events might be viewed as a case of self-defense, any conflict in the evidence was for the jury to resolve. Mack v. State, 348 So.2d 524 (Ala.Cr.App.1977). As well, the credibility of the defendant as to evidence of self-defense was for the jury. Whether appellant was aiding his wife or his employee was for the jury’s determination. Mack, supra. There was no error in the trial court’s refusal to grant appellant’s motion to exclude the evidence. No error harmful to the substantial rights of appellant having been demonstrated on appeal, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Willie Byrd KNIGHT. (In re Willie Byrd Knight v. State of Alabama).
    82-861.
    Supreme Court of Alabama.
    June 8, 1984.

      Jack W. Smith, of Smith & Smith, Do-than, for petitioner.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for respondent.
   ALMON, Justice.

Certiorari was granted in this case to determine whether the objections interposed by defense counsel were sufficient under the case of Allen v. State, 414 So.2d 989 (Ala.Crim.App.1981), aff'd, Ex parte Allen, 414 So.2d 993 (Ala.1982); and, if so, whether the Court of Criminal Appeals, 453 So.2d 748, erred in affirming the judgment of conviction.

Willie Byrd Knight was found guilty of manslaughter in the shooting death of Stuart Maddox. It is undisputed that the shooting occurred outside a nightclub which Knight and his family were using as their residence.

At trial, the court refused Knight’s requested written charge on self-defense in the context of defense of one’s home. At the close of the court’s charge to the jury, the following transpired:

“THE COURT: Let the record show this is out of the presence and hearing of the jury. Let the record show that at the point during the instructions that I called the attorney for the State and the attorney for the Defendant up to the Bench, the attorney for the State asked me to read the further definition of intentionally, that I read it and the attorney for the State said he had no objection to the Court’s charge at that point. The attorney for the Defendant did request that I give further instructions and I denied his request—
“MR. SMITH: As to his home, this accident happened at his home; in defense of his home and in defense of third person.
“THE COURT: You asked me to give further instructions—
“MR. SMITH: As to defense on his home—
“THE COURT: —as to defense of his home and as to defense of third person.
“MR. SMITH: Right.
“THE COURT: Yes, sir. And I denied your request at that time. And I did not give further instructions.
“MR. SMITH: And the Defendant excepts.”

The Court of Criminal Appeals upheld the lower court’s judgment of conviction, based upon a finding that the defense counsel’s objections to the court’s charge were insufficient to preserve error under Allen v. State, 414 So.2d 989 (Ala.Crim.App.1981), aff'd, Ex parte Allen, 414 So.2d 993 (Ala.1982).

In Allen v. State, supra, the Court of Criminal Appeals held that the automatic exception to refused requested written charges no longer exists and that the aggrieved party must object and state his grounds before the jury retires, in order to preserve alleged errors in the trial court’s refusal to so charge. Because Allen’s defense counsel failed to make any objections at the trial level, the Court of Criminal Appeals declined to review the alleged errors resulting from the trial court’s refusal to grant certain requested written charges.

The purpose of the objection rule is to give the trial court an opportunity to correct any alleged error or defect called to its attention before submission of the case to the jury.

Although the trial in this case occurred before the Allen decision was rendered, Knight’s defense counsel did make an objection to the court’s oral charge before the jury retired to consider its verdict. We do not know exactly what transpired during this time, but it is clear from the trial court’s synopsis of this off-the-record discussion that the defense counsel called to the court’s attention its failure to charge on the specific principle of self-defense in the context of defense of one’s home. It is also clear that the trial judge understood the nature of this objection and refused to give the requested written charge, which we find is a correct statement of law, and which should have been given.

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

REVERSED AND REMANDED.

All the Justices concur.

      . Although not applicable to this case, see Temporary Rule 14, A.R.Crim.App., which prescribes the current procedure in criminal cases in the same manner as Rule 51, A.R.Civ.P.


text:
    Willie Byrd KNIGHT, alias v. STATE of Alabama.
    4 Div. 7.
    Court of Criminal Appeals of Alabama.
    July 17, 1984.
   TYSON, Judge.

Reversed and Remanded for a new trial on authority of Willie Byrd Knight, alias, 453 So.2d 754, Alabama Supreme Court, 1984.

REVERSED AND REMANDED FOR NEW TRIAL.


author: BOWEN, Presiding Judge.

text:
    Cully Max BRAGG v. STATE.
    7 Div. 64.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied June 22, 1984 Alabama Supreme Court 83-817.

      Jake B. Mathews, Jr., of Merrill, Merrill, Mathews & Allen, Anniston, for defendant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for the State.
   BOWEN, Presiding Judge.

Following a transfer from juvenile court, the defendant, a fourteen-year-old boy, was indicted for the murder of George Edward Alsobrook, Jr., by shooting him with a shotgun. A jury convicted him of manslaughter and the trial judge sentenced him to ten years’ imprisonment. Three issues are raised on appeal.

I

Defendant claims that the indictment against him was void because it was returned after he had perfected his appeal of the transfer order and before the appellate court ruled. He maintains that during the pendency of the appeal the circuit court had no jurisdiction of his case and, thus, the grand jury had no authority to indict him.

The juvenile court issued an order to transfer the defendant to the adult division of the Calhoun Circuit Court on December 23, 1981. Defendant filed notice of appeal of the transfer order on January 6, 1982. Two days later, the Calhoun County grand jury indicted him. The Alabama Supreme Court affirmed the order of the juvenile court on June 25, 1982. Bragg v. State, 416 So.2d 715 (Ala.1982).

A similar argument was rejected in Carpenter v. State, 395 So.2d 110, 112 (Ala.Cr.App.1980), cert. denied, 395 So.2d 115 (Ala.1981), wherein this Court observed that “(a)t the time of the indictment, there had been no appeal from the judgment or order transferring the cause, but even if there had been an appeal, it would not have stayed ‘the order, judgment or decree appealed from. ’ Code of Alabama 1975, Section 12-15-120(d).” (Emphasis added.) Section 12-15-120(d) provides that an appeal from a judgment or order of a juvenile court “shall not stay the order, judgment or decree appealed from....”

The defendant seeks to distinguish Carpenter by arguing that, although Section 12-15-120(d) keeps the orders of the juvenile court alive during the pendency of an appeal, that statute governs only de novo appeals to circuit court. In contrast, the juvenile court from whose order he appealed was a circuit court and his appeal went directly to the Alabama Supreme Court. See 1977 Ala.Acts 1386, No. 804 (May 23, 1977) (providing for a circuit court to exercise jurisdiction over juveniles in Calhoun County); A.R.Juv.P. 28 (effective Jan. 16, 1977) (“providing uniformity of appeals from juvenile courts whether a district or circuit judge sits as the juvenile judge.”), amended by A.R.Juv.P. 28(C)(1) (effective Mar. 1, 1982) (providing that appeals from juvenile transfer orders shall be to the court of criminal appeals).

While Juvenile Procedure Rule 28 undoubtedly modified Section 12-15-120 insofar as the statute directed the route of appeals from juvenile court, the rule did not, at least on its face, alter the subsection (d) provision that “(t)he appeal shall not stay the order, judgment or decree appealed from ....” Rule 28 is simply silent on the subject of whether an appeal stays the juvenile court order. Because the commentary to the rule speaks of “reconciling” rather than of “superseding” former statutes, A.R.Juv.P. 28 (effective Jan. 16, 1977) (Comment), presumably those provisions of Section 12-15-120 not specifically altered by Rule 28 remained intact, including subsection (d). See D. Sands, Sutherland Statutes and Statutory Construction, Sections 22.32, 67.10 (4th ed. 1974).

If subsection (d) survived the adoption of Rule 28, then the grand jury was not prevented from indicting the defendant after the transfer order but before the case was decided on appeal. It is clear that the appeal of a juvenile transfer order does not deprive the adult criminal court of jurisdiction to receive an indictment under a statute providing that the appeal shall not suspend the order of the juvenile court. See Carpenter v. State, supra. Accord, Strange v. State, 616 S.W.2d 951 (Tex.Civ.App.1981). See generally Unif.Juv. Court Act, Section 59, 9A U.L.A. 85-86 (1979).

We note, however, that the recent decision by the Alabama Court of Civil Appeals in Wright v. Montgomery County Dep’t of Pensions & Security, 423 So.2d 256 (Ala.Civ.App.1982), casts some doubt on the efficacy of Section 12-15-120 after the adoption of Juvenile Procedure Rule 28. Although the Wright court was construing the 1982 amendment to the rule, and not the 1977 version at issue here, when it observed that “rule 28 supersedes Ala. Code Section 12-15-120”, 423 So.2d at 257 (emphasis added), both versions purport to change only the route of juvenile appeals and neither speaks to whether the subsection (d) non-stay provisions continue in effect. Thus, because the vitality of Section 12-15-120(d) is somewhat doubtful, we do not rest our decision on statutory grounds alone. We conclude that, even if subsection (d) was completely inoperative when defendant appealed his transfer order, the circuit court still was not ousted of its jurisdiction to receive the indictment against the defendant by virtue of the principles enunciated in Stewart v. State, 287 Md. 524, 413 A.2d 1337 (1980), a case indistinguishable from the one before us.

Like the defendant here, Stewart also insisted that the indictment was void because the circuit court lost jurisdiction during the pendency of his appeal. The Maryland court upheld the indictment, pointing out that the term “jurisdiction” embraces two concepts: the power of a court to act (“fundamental jurisdiction”) and the “propriety of granting the relief sought.” 413 A.2d at 1338. While an appeal does not divest a court of its fundamental jurisdiction, or its power to act, it may make judicial action inappropriate until the completion of appellate proceedings. If fundamental jurisdiction was lost, it would be unnecessary to require stays since the court could not act in any event.

“(P)ending an appeal the trial court retains its ‘fundamental jurisdiction’ over the cause, but its right to exercise (this judicial) power may be interrupted by (i) statute or ... Rule, (ii) the posting of an authorized appeal bond, or bail following a conviction and sentence, or (iii) a stay granted by an appellate court, or the trial court itself, in those cases where a permitted appeal is taken from an interlocutory or final judgment.... If the trial court does, however, decide to proceed during the pendency of the appeal, it, absent a stay required by law, or one obtained from an appellate court, has authority to exercise the fundamental jurisdiction which it possesses.”

Stewart, 413 A.2d at 1339 (quoting Pulley v. State, 287 Md. 406, 412 A.2d 1244, 1250 (1980) (appeal of interlocutory order denying Double Jeopardy claim)).

In Pulley, the same Maryland court explained that the public policy underlying its holding was to prevent the innumerable delays resulting from halting every criminal proceeding in which an interlocutory appeal was taken. In the case before us, the trial judge suggested an additional reason for not denying the power of the grand jury to indict the defendant: the possibility that the delay could precipitate a speedy trial problem.

In our judgment, therefore, the circuit court retained its jurisdiction over the subject matter of defendant’s case pending the outcome of his appeal and the indictment was valid.

II

The defendant contends that the trial court’s instruction regarding lesser included offenses impermissibly shifted to him the burden of proving his innocence. He complains of the following charge:

“Now, if on the other hand, after you have considered all of the evidence in the case, all of the reasonable and proper inferences to be drawn therefrom, and the law as the Court has stated it to you, if from that then you are satisfied beyond a reasonable doubt that the Defendant is not guilty of the felony offense of murder as charged in the indictment, but you then are satisfied beyond a reasonable doubt that the Defendant is guilty of the lesser included felony of manslaughter, then this would be the form of your verdict: ‘We, the Jury, find the Defendant, Cully Max Bragg, guilty of manslaughter, in violation of Section 13A-6-3 of the Code of Alabama.’
“Now, if on the other hand, Ladies and Gentlemen, in your deliberations, after having considered first the felony charge of murder, and then the felony offense of manslaughter, and if you are at that point satisfied beyond a reasonable doubt that the Defendant is not guilty of either of those offenses, but you then are satisfied beyond a reasonable doubt, considering fully and completely all of the evidence and testimony in the case, and the reasonable and proper inferences to be drawn therefrom, and the law as stated to you, if at that point then, you are reasonably satisfied beyond a reasonable doubt that the Defendant is guilty of the misdemeanor of criminally negligent homicide, this would be your verdict form: ‘We, the Jury, find the Defendant, Cully Max Bragg, guilty of criminally negligent homicide, in violation of Section 13A-6-4 of the Code of Alabama.’ ” (Emphasis added.)

This charge is erroneous and should not have been given. When a greater and a lesser included offense are charged, the proper course is for the trial judge to instruct the jury to consider first the greater offense and then consider the lesser offense only if a reasonable doubt exists concerning the accused’s guilt of the greater offense. Fuller v. United States, 407 F.2d 1199, 1227 (D.C.Cir.1967), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969) (emphasis added).

The erroneous instruction provides no ground for reversal here, however, since a review of the court’s entire charge indicates that the objectionable portion was cured by the instructions considered as a whole. See Gosa v. State, 273 Ala. 346, 139 So.2d 321 (1961); Harris v. State, 412 So.2d 1278 (Ala.Cr.App.1982). Excluding the two isolated clauses which were misleading, the balance of the charge fully explained the presumption of innocence, the State’s burden of proof, and the elements of the included offenses.

When the charge is viewed in toto, we find no reversible error and we do not believe the jury was misled about its duty to consider a lesser offense only in the event it had a reasonable doubt of the defendant’s guilt of the greater crime.

Ill

The defendant argues that his ten-year sentence for manslaughter, enhanced pursuant to Section 13A-5-6(a)(5), Code of Alabama 1975 (providing for increased punishment for a felony involving the use of a firearm or deadly weapon), is unconstitutional. He maintains that it violates the due process and equal protection clauses, subjects him to double jeopardy, and constitutes cruel and unusual punishment.

We have answered his first two constitutional challenges in Smith v. State, 447 So.2d 1327 (Ala.Cr.App.), cert. denied, (Ms. 82-998, Nov. 4, 1983) and Baker v. State (Ms. 4 Div. 199, Nov. 29, 1983), 441 So.2d 1061 (Ala.Cr.App.1983). In addition, his double jeopardy argument, though not raised below, is also addressed by Smith v. State, supra, and authorities cited therein. Finally, it has been uniformly held that similar firearm-use statutes do not impose cruel and unusual punishment. See, e.g., State v. Williams, 115 Ariz. 288, 564 P.2d 1255 (Ariz.App.1977); State v. Nelson, 224 Kan. 95, 577 P.2d 1178 (1978).

The judgment and sentence of the circuit court are affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Judge.

text:
    Terry Lynn TEAT v. STATE.
    7 Div. 192.
    Court of Criminal Appeals of Alabama.
    April 24, 1984.
    Rehearing Denied June 26, 1984.
    Larry W. Dobbins, Ashville, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

This appeal is from the trial court’s denial of Terry Lynn Teat’s petition for a writ of error coram nobis. Teat, the appellant herein, was convicted of third-degree burglary and sentenced as a habitual offender to 25 years’ imprisonment. In his coram nobis petition he sought a new trial on the grounds that newly discovered evidence had revealed that he had been mistakenly identified during the burglary proceedings. At the hearing on this petition he presented the three eyewitnesses who had previously testified at his burglary trial. The appellant now claims that all three witnesses clearly recanted their prior identification testimony and that, therefore, the trial court erred in denying his petition on newly discovered evidence grounds. We disagree.

A decision to grant or deny a petition for a writ of error coram nobis on newly discovered evidence grounds is a decision which rests heavily on the credibility of the evidence presented during the coram nobis hearing. Consequently, this decision is a matter properly left to the sound discretion of the trial court. See, Howton v. State, 432 So.2d 548, 550 (Ala.Cr.App.1983), and cases therein cited; see also, Peterson v. State, 426 So.2d 494 (Ala.Cr.App.1982). From aught that appears in the record before us, the trial court properly exercised its discretion in the instant case. Compare, Peterson v. State, supra.

Because of the presumptions associated with the burglary trial, the correctness of the judgment of the trial court and the truthfulness of the testimony of the prosecution witnesses, the appellant had the burden of convincing the trial court, with clear, full and satisfactory proof, that the allegations in his petition were true, that the witnesses at the coram nobis hearing were telling the truth, and that he was innocent of the instant offense. Seibert v. State, 343 So.2d 788 (Ala.1977); Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979); Howton v. State, supra. This he failed to do.

Although the appellant presented evidence that all three identification witnesses had, to some extent, recanted their prior testimony, there was also evidence that they changed their testimonies because of harassment from appellant’s family. Two of the three witnesses testified that they signed the affidavit recanting their prior testimony simply to put an end to the post-trial harassment by appellant’s family. Moreover, at the coram nobis hearing neither could say positively whether or not the appellant was the man she saw on the day of the burglary. The third identification witness, the burglary victim, stated that he mistakenly identified the appellant during the burglary trial. However, he admitted that it was only at the insistence of appellant’s family that he realized that he might have made a mistake. He explained that appellant’s wife told him that she knew the man who had actually committed the burglary, and she showed him a photograph of the alleged burglar. He agreed that the man in the photograph looked like the burglar. Appellant’s wife told him that the man pictured in the photograph was Steve Chamblee. However, he never identified Steve Chamblee in person and neither the photograph nor Steve Chamblee was presented during the coram nobis hearing to confirm this new identification.

The trial court’s decision to deny appellant’s coram nobis petition was a proper exercise of its discretion, based upon its assessment of the weight and credibility of this evidence presented at the coram nobis hearing in light of the aforementioned presumptions associated with his prior burglary trial. See, McDonald v. State, 437 So.2d 1342 (Ala.1983), reversing, 437 So.2d 1337 (Ala.Cr.App.1982). Consequently, the trial court’s ruling will not be disturbed on this appeal. Its judgment denying appellant’s coram nobis petition is, therefore, affirmed.

AFFIRMED.

All the Judges concur.


text:
    Diane NANCE, Alias Wanda Diane Nance v. STATE.
    8 Div. 4.
    Court of Criminal Appeals of Alabama.
    May 8, 1984.
    On Return to Remand June 26, 1984.

      F. David Lowery, Russellville, for appellant.
    Charles A. Graddick, Atty. Gen. and Fred F. Bell, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

It affirmatively appearing that the appellant’s probation was revoked and that she was not given “[a] written statement by the judge as to the evidence relied on and reasons for revoking probation”, as required by Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620 (1975), this cause is remanded with directions that the requirements and guidelines set forth in Armstrong be satisfied.

REMANDED WITH DIRECTIONS.

All Judges concur.

ON RETURN TO REMAND

The return to remand shows that the appellant’s probation revocation was in full compliance with Armstrong, supra. Therefore, the judgment of the circuit court is affirmed.

OPINION EXTENDED;

AFFIRMED.

All Judges concur.


text:
    Carl Arthur PERRY, Jr. v. STATE.
    1 Div. 632.
    Court of Criminal Appeals of Alabama.
    May 22, 1984.
    Rehearing Denied June 26, 1984.

      James H. Lackey, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.
   HARRIS, Judge.

On December 17, 1982, the Mobile County Grand Jury indicted appellant, Carl Arthur Perry, Jr., for the murder of Paul Laporte. On May 18, 1983, he was found guilty of the murder and was sentenced to life imprisonment without parole under the habitual felony offender statute.

Testimony at trial revealed that Laporte died from a stab wound to the chest, and that his hands were cut in an apparent attempt to fend off the attack. The fatal stabbing took place at about 1:00 a.m. on July 10, 1982, at a bar called Casey’s Clubhouse in Mobile County. Both Laporte and Perry were intoxicated at the time.

Appellant was seen at Casey’s at 11:00 a.m. when the bar opened, at 2:00 p.m. and from 10:00 p.m. till 11:00 p.m. At about 10:00 p.m. the bartender refused to serve him any more liquor and appellant left at about 11:00 p.m. He returned around 1:00 a.m.

On returning to Casey’s, appellant went directly to Laporte at the bar and put his arm around his shoulders. Laporte responded by placing his arm around appellant’s shoulders. Witnesses interpreted this as a display of camaraderie.

James David Henderson saw appellant standing at the bar talking with Laporte. He observed appellant bend over at the waist, straighten up and then start to wrestle with Laporte, the two men falling to the floor.

Lamule Miller, one of the owners of the bar, with the aid of some patrons, immediately pulled the two men apart. The episode began and ended so quickly that by the time Henderson made his way to the area the two men were gone. He discovered a bloodied knife at the top of the stairway and turned it over to Miller, who later gave it to the police.

Miller’s wife screamed, “Carl, no,” when she saw the affray begin. Miller responded quickly and was the first person to reach the men and attempt to separate them. When he got to them Laporte had already been stabbed. He heard Laporte say, “I’m going to kill you.”

As the men pulled appellant away, Jeanette Burgess, the bartender, saw a scabbard concealed between appellant’s trousers and his back.

Appellant fled both the scene and the jurisdiction in his truck. He was chased back into Alabama by the Jackson County, Mississippi, Sheriff’s Office. He was finally captured after a high speed chase during which he wrecked his truck.

Henderson reported that earlier in the evening Laporte remarked to him that he was going to jump all of them down there, referring to approximately six men playing pool. Henderson did not think the remark was a serious one.

Morgan Thomas, Jr., testified that he was in the bar that night around 11:00 p.m., and that Laporte sat down at his table and said of appellant, “I know he’s got a knife, because I’m going to pull it and cut his_head off with it.”

There were no other reports of antagonistic remarks, and no report of any quarrel or altercation between Laporte and appellant, or between any other persons, pri- or to the fatal brawl.

Appellant first contends, on appeal, that the trial court erred in allowing the state to use leading questions, and questions calling for speculation on the part of witnesses.

The testimony in question was given on redirect examination by the state, and was regarding the statement made by the deceased, “I’m going to kill you.” The statement was overheard by Mr. Miller, and Miller testified that Laporte had already been stabbed when he made the threat to appellant. The testimony in question was as follows:

“BY MR. STEELE:
“Q. He was already pulled apart when he said that, made that statement; is that what you are saying?
“A. No, sir. He was on top of him. And as I was reaching for him to pull him apart is when Mr. Laporte said that.
Q. Is it safe to say he had already been stabbed at that time?
“MR. BROWN: Judge, I object. He has no knowledge of that.
“THE COURT: If he knows.
“MR. STEELE: Judge, if he had blood on his hand, he knows.
“THE COURT: Overruled.
“MR. STEELE:
“Q. Did you have blood on your hand at that time?
“A. No, sir.
“Q. Did you see the stabbing?
“A. No, sir.
“Q. Okay. But when you broke them apart, Mr. Laporte had been stabbed, is that right?
“A. Yes, sir.
“Q. Then would it be safe to say that he was stabbed before making that statement?
“MR. BROWN: Judge, I object to him leading the witness.
“THE COURT: Overruled. If he knows.
“BY MR. STEELE:
“Q. Had he been stabbed prior to him making that statement?
“A. Yes, sir.”

An examination of the testimony set out above reveals that after appellant’s counsel first objected to the State’s question as calling for speculation, and the objection was overruled, that the State nevertheless rephrased the question so that it concerned a matter within the knowledge of the witness.

Similarly, when appellant’s counsel next objected to a question as leading, the objection was overruled, but the State rephrased the question so that it no longer suggested an answer.

We find no error here, but if there is error it did not injuriously affect the substantial rights of appellant, and thus would not constitute reversible error under A.R. A.P. 45.

Appellant next contends that the evidence was not sufficient to support a finding of murder, and that the killing could only have amounted to manslaughter.

Applicable sections from Code of Alabama 1975 are as follows:

“Section 13A-6-2. Murder.
“(a) A person commits the crime of murder if:
“(1) With intent to cause the death of another person, he causes the death of that person or of another person; ...
“(b) A person does not commit murder under subdivisions (a)(1) or (a)(2) of this section if he was moved to act by a sudden heat of passion caused by provocation recognized by law, and before there had been a reasonable time for the passion to cool and for reason to reassert itself. The burden of injecting the issue of killing under legal provocation is on the defendant, but this does not shift the burden of proof. This subsection does not apply to a prosecution for, or preclude a conviction of, manslaughter or other crime.
“Section 13A-6-3. Manslaughter.
“(a) A person commits the crime of manslaughter if: ...
“(2) He causes the death of another person under circumstances that would constitute murder under section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.”

In Buffalow v. State, 219 Ala. 407, 122 So. 633, 635 (1929), where the deceased had been shot and defendant claimed self-defense, the court held that, “If one assaulted, suddenly and under the maddening influence of the blow, slays his assailant, and there is nothing else in the transaction, this is manslaughter, and not murder.” (citation omitted) The court in Easley v. State, 246 Ala. 359, 20 So.2d 519, 521 (1944), however, held that, “Mere words, no matter how insulting, never reduce a homicide to manslaughter.”

In the case before us there is evidence to support a conviction of murder, but no evidence of legal provocation which would reduce the crime to manslaughter. There was evidence that the victim made drunken threats when talking to two different men, but no evidence that he threatened appellant. Even assuming that he did so, this would not have amounted to legal provocation under Easley supra. There was no evidence whatever that the victim hit, or otherwise physically provoked appellant. Appellant’s claim that the charge of murder should have been reduced to manslaughter is, therefore, untenable.

Appellant contends lastly that the trial court erred in its failure to charge the jury on killing in the sudden heat of passion caused by provocation recognized by law.

Appellant, however, did not state such an objection at trial, 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, cert. denied, 342 So.2d 412 (Ala.1977); Cox v. State, 193 So.2d 749 (Ala.1967). In addition, even if the issue had been properly preserved for review, an accused is not entitled to have the jury charged on a lesser-included offense unless there is a reasonable theory from the evidence to support the lesser offense. Oglen v. State, 440 So.2d 1172 (Ala.1983); Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981).

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

AFFIRMED.

All the Judges concur.


author: PATTERSON, Judge.

text:
    Edward Dean BRYAN v. STATE.
    1 Div. 770.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.

      M.A. Marsal of Seale, Marsal & Seale, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Susan McKinney, Asst. Atty. Gen., for appel-lee.
   PATTERSON, Judge.

A Mobile County Circuit Court jury found the appellant, Edward Dean Bryan, guilty of first degree sodomy. He was sentenced to ten years’ imprisonment.

The facts as they were revealed by the State’s case in chief showed that on the night of January 3,1983, the victim’s mother invited to her home two men whom she had met earlier that evening at the restaurant-lounge where she worked. Her seven-year-old son was at home when his mother and the visitors arrived. The child left to go bike riding, and when he returned his mother had packed his bag so he could go over to appellant Bryan’s house to spend the night. It was the child’s understanding that he was going so that he could “go hunting and go dirt bike riding and go fishing.” After appellant and the child arrived at the house, the boy put on his pajamas and got into bed to go to sleep. At that time the appellant got into bed with the boy and sodomized him. The child told him to stop, and appellant refused. Eventually Bryan took the child home, telling him on the way not to tell his mother what had happened.

The boy told his mother what Bryan had done, and she took him to the hospital immediately. The physician who examined the victim in the emergency room testified that the area around the child’s anus was “very reddened and irritated.” His testimony indicated that the child’s physical condition was compatible with being sodomized.

One issue is raised on appeal.

Defense witness Glenn Scott Harris was present at the victim’s home on the evening of the crime. During the cross-examination of the witness the following occurred:

“Q. And do you know whether or not Dean [appellant] engages in homosexual acts with other people?
“A. Yes, sir, I do,
“Q. All right. I believe you testified that Gail3 the victim’s mother2 asked you what men can do with other men. And I’m going to ask you that same question.
“MR. MARSAL: Of course, I’m going to object to that, Judge. It’s not necessary.
“THE COURT: Overruled.
“MR. HARGETT:
“Q. What do other homosexual men do with other homosexuals?
“MR. MARSAL: Judge, I object to that. I don’t see the probative need of going into that in this trial or any other trial.
“THE COURT: Overruled.
“MR. MARSAL: We except.
“MR. HARGETT:
“Q. You can answer.
“A. Sexual intercourse and oral sex.
“Q. When you say sexual intercourse, that term ordinarily denotes insertion of a male penis into a female vagina. Well, what do you do with other men?
“A. You insert it in the anal canal.
“Q. All right. In the anal canal or the rectum?
“A. Yes, sir.
“Q. Have you ever done that?
“A. No, sir.
“Q. Do you know whether or not Dean has ever done that?
“A. No, sir.
“Q. Have you ever had that done unto you?
“A. Yes, sir.
“Q. You have?
“A. Yes, sir.
“Q. Do you know whether or not Dean has ever had that done unto him?
“A. No, sir.
“Q. Your answer is you don’t know?
“A. I don’t know.”

Appellant claims that the above quoted testimony was irrelevant and prejudicial and that the trial court committed reversible error by not sustaining his objection to it.

We cannot agree with appellant since we can find no evidence of any prejudice resulting from inclusion of the quoted portion of the transcript in evidence. The determination of the relevancy of a particular line of questioning lies within the sound discretion of the trial court. See Ala. Digest, Criminal Law, Key No. 338(1) and cases cited therein, and C. Gamble, McElroy’s Alabama Evidence, § 136.01 (3d ed. 1977). Evidence is considered relevant if it has “any tendency to throw light upon the matter in issue, even though such light may be weak and falls short of demonstration.” McCain v. State, 46 Ala.App. 627, 247 So.2d 383 (1971). Any fact having a logical relation or a causal connection with another fact and which makes that other fact either more or less probable, is relevant to prove it. Austin v. State, 434 So.2d 289 (Ala.Crim.App.1983).

While the witness did state that appellant was a homosexual, his testimony is ambiguous as to whether he knew if appellant engaged in sodomy with others. However, later testimony elicited directly from the appellant indicated that he had engaged in certain deviate sexual practices in the past. His testimony on cross-examination also revealed evidence concerning certain specific practices among homosexuals. Appellant gave this testimony without objection. Thus, even if the admission of the earlier testimony to which appellant objects was erroneous, we conclude that there is no showing that any of appellant’s “substantial rights” have been in any way injured by the testimony. (See Rule 45, A.R. A.P.) Thus the judgment of the lower court is due to be affirmed.

AFFIRMED.

All the Judges concur.

BOWEN, J., concurs in result only.