author: BOWLING, Justice,

text:
    Donald William DUFOUR v. STATE of Mississippi.
    No. 55053.
    Supreme Court of Mississippi.
    June 6, 1984.
    Rehearing Denied July 25, 1984.

      P. Kent Stribling, R.L. Houston, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by William S. Boyd, III and Marvin L. White, Jr., Sp. Asst. Attys. Gen., Ed Peters, Jackson, for appellee.
   BOWLING, Justice,

for the Court:

Appellant Donald William Dufour was indicted by the Grand Jury of the First Judicial District of Hinds County for the crime of capital murder of Earl Wayne Peeples. The indictment charged that Pee-ples was killed while Dufour was engaged in the commission of the crime of robbery, the alleged offense having occurred during the early morning hours of October 14, 1982. In a bifurcated trial, the jury found appellant guilty of capital murder and, after a sentencing hearing, the jury found that appellant should be sentenced to death. Other than hereinafter discussed corroborating evidence, the principal evidence submitted by the state to the jury was that of Robert Taylor, an admitted companion of Dufour, who, according to his testimony, engaged in the murdering activities when Peeples and another man named King were killed with knives and screwdrivers.

Taylor’s testimony revealed that he and Dufour arrived in Jackson around midnight on October 13, 1982. Dufour was driving and Taylor had been asleep for a number of hours on the back seat of the vehicle. They had come from Florida by way of Georgia. According to Taylor, when he awakened, the car was in front of what was reputed to be a “gay bar” named “The Other Side Lounge.” Dufour preceded Taylor into the bar. When Taylor went therein, he was informed by Dufour that they were going to rob two men. They were pointed out to Taylor by Dufour and later developed to be Peeples and King. Shortly after 1:00 a.m., the four hereinbe-fore described individuals, along with a 16-year-old male, who had accompanied Pee-ples and King to the bar, drove away in Peeples’ car to what is known as Windsor Park Apartments on West Capitol Street in Jackson. When the group reached the apartment complex, the sixteen-year-old male, who lived with his family in the complex, went directly to his home. One item of corroborating evidence was the testimony from this sixteen-year-old regarding his accompanying Peeples and King to the bar and his returning with them and Dufour and Taylor to the apartment complex. He positively testified that the four were on the way to Peeples’ apartment when he left them to go to his family’s apartment.

Taylor then testified in much detail, the majority of which wp shall not repeat here. As soon as the four men entered Peeples’ apartment, they began undressing. Taylor decided to go into the apartment kitchen and look for weapons to use in the robbery. He found knives and screwdrivers in drawers. Then, in order to create a diversion, he threw a mug of water against the wall and broke it. Upon Peeples and King entering the kitchen, a knife was given to Dufour by Taylor. Dufour then grabbed Peeples and Taylor grabbed King. According to Taylor, he saw Dufour immediately stab Peeples at least three times in the chest. Taylor was stabbing King in the chest with a screwdriver.

After it appeared Peeples and King were dead, Dufour instructed Taylor to take a shower to remove the blood on him. This Taylor did, after which he saw that the pockets of Peeples’ pants had been turned wrong side out and that appellant Dufour was placing articles on a bedspread and folding the bedspread so that it could be carried.

Shortly before Peeples received the stabbing blows from Dufour, Taylor heard Duf-our demand information as to the location of Peeples’ money. Taylor heard him tell Dufour that it was in the trunk of his car.

Dufour and Taylor left the apartment, got in Peeples’ car and drove away. About a mile from the apartment complex they were on what is known as Dixon Road, when Dufour told Taylor, who was driving, to pull off the road to ascertain what they had. Taylor pulled off too far and the car became stuck in the wet ground. It could not become unstuck. Dufour then opened the trunk of the vehicle and stated that he found nothing of value therein. Dufour then took the folded up bedspread and down Dixon Road and put it in á dfccln He then instructed Taylor to go back to the apartment complex and secure the car owned by King that was parked there. Taylor was on the way back to the apartment, walking at a fast pace or running on West Capitol Street, when he was observed by a city policeman. Taylor was stopped by the patrolman, who was suspicious of Taylor hurrying along Capitol Street on a cool night, barefooted and wearing no other clothes, except pants. Taylor was taken to the city jail, where it was ascertained that he was wanted in Florida for the alleged crime of armed robbery. He was therefore held in jail.

It suffices to say that a reading of Taylor’s testimony shows a very detailed account of the events leading up to and surrounding the murder of Peeples, whom Dufour is accused of killing.

Evidence from the Jackson Police Department reveals that during the early morning of October 15, they were contacted by members of King’s family with information that he could not be found by them, but that they understood he was supposed to visit Peeples in Jackson. Policemen went to the Windsor Park Apartments and found King’s car parked in the parking lot of the apartment complex. They then contacted the manager, who opened the Pee-ples’ apartment door and found the two bodies and the situation that existed in the apartment when, according to Taylor, he and Dufour left. The police conducted their usual on-site investigation duties through the crime lab, including taking photographs.

From the history of the place and the manner of Taylor’s arrest on the early morning hours of October 14, the police questioned him in a proper manner, and he admitted his involvement in the murder. It should be stated here that during all of the time involved in the history of this cause, subsequent to Taylor’s arrest, he was represented by a court-appointed, competent and reputable attorney.

Corroborating evidence included the tes-ni mony of police officials, who found Pee-ples’ car where it was stuck on Dixon Road and who also found the folded up bedspread, which revealed that everything had been removed therefrom except for one penny.

We need briefly to discuss the evidence presented by the appellant Dufour. He testified that after staying in the gay lounge for a relatively short time, he went to the car that was parked on the street nearby, got on the backseat and went to sleep. He stated he did not wake up until sometime the next morning. He did not have means to drive the vehicle, as Taylor had the keys. After waiting most of the morning for Taylor to appear, Dufour stated he went to McDonald’s and ate a hamburger. He then secured a paper shopping bag from a store and went back to the car. After putting some pants and shirts in the shopping bag, together with a “scuba diving knife”, he found a run-down boarding house in the area and arranged to stay there and receive board and lodging, if he would take care of an aged invalid, who resided at the house. According to Duf-our, the next day he read in the newspaper about Taylor having been arrested. He then learned that Taylor had implicated him in the homicides.

Dufour then testified that after learning of his being wanted, he went to a barber school and had his normally black hair dyed blonde and cut shorter, explaining that he was on parole and was in the wrong state and therefore did not want to be arrested. He stayed in seclusion at the boarding house until the night of October 29, 1982, when a young acquaintance invited him to go to the same gay bar, where the acquaintance would buy him some beer. They went to the bar and while there, at about 11:30 p.m. Dufour was arrested by city policemen.

One Roger Harris related during the course of the state’s evidence the manner in which Dufour’s identification and arrest took place. Harris was a part-owner and the security guard at the lounge. He testified that he was present on the night of October 13 and the early morning hours of the 14th, when Taylor and Dufour were there. According to Harris, he had to call Dufour down on more than one occasion for improper conduct and had occasion to talk with Dufour.

On the night of October 29, Harris, while close to Dufour, recognized Dufour’s voice as one he had heard before and identified him in his own mind as Dufour, even though his hair had been dyed. Harris called the police and managed to keep Duf-our occupied until the police arrived.

The defendant introduced evidence from a lady who worked in a business establishment next door to the gay bar. She testified that on the early morning of October 14, she saw a young man asleep on the back seat of a strange car with Georgia license plates parked in front of the business. She observed the young man get out of the car on occasions during the course of the morning and sit in the car for periods of time as if he were waiting for someone.

Appellant submits seven assignments of error as follows:

I. THE TRIAL COURT ERRED IN REFUSING THE APPELLANT’S REQUEST TO HIRE AN INVESTIGATOR.
II. THE TRIAL COURT ERRED IN EXCUSING FOR CAUSE JAMIE HO-NEYCUTT BECAUSE OF HER BELIEFS REGARDING THE DEATH PENALTY.
III. THE TRIAL COURT ERRED IN EXCUSING FOR CAUSE PAMELA SUMMERS IN VIOLATION OF THE WITHERSPOON RULE.
IV. THE TRIAL COURT ERRED IN REFUSING TO EXCLUDE GERALD H. BAGWELL FOR CAUSE.
V. THE TRIAL COURT ERRED IN ADMITTING CERTAIN PICTURES DEPICTING THE DECEASED IN GRUESOME ASPECT, WHICH PICTURES WERE CUMULATIVE, AND NO OTHER PURPOSE THAN TO INFLAME THE JURY AGAINST THE DEFENDANT, AND CONNECTED THE DEFENDANT WITH ANOTHER CRIME |pR WHICH HE WAS NOT BEING TRIED.
VI. THE TRIAL COURT ERRED IN ADMITTING PICTURES OF SCREWDRIVERS NOT USED IN THE COMMISSION OF THE CRIME.
VII. THE STATE FAILED TO PROVE THE ESSENTIAL ELEMENTS OF THE CRIME OF ROBBERY.

ASSIGNMENT OF ERROR NO. I.

Appellant, through his attorneys, filed a motion requesting the state to furnish funds to hire an investigator to aid in the preparation of appellant’s defense. An evidentiary hearing was had on this motion. An investigator was presented as a witness, who testified that an investigation involving such a charge as that against appellant would cost somewhere between $2,000 and $6,000.

The motion was overruled by the trial court. In overruling the motion, it was stated that all the motions and arguments requested a “carte blanche” authority to hire an investigator. A reading of the motion and evidence shows nothing concrete in the way of investigation that had been planned either in Mississippi or Florida. No proposed names, locations or investigative possibilities were pointed out to the court. The hearing revealed nothing that was unusual to any other charge similar to that against appellant.

In Davis v. State, 374 So.2d 1293 (Miss. 1979), we held that the determination of furnishing the indigent accused any expert, other than psychiatric or other mental experts, would be made on a case by case basis. This was reiterated in Bullock v. State, 391 So.2d 601 (Miss.1980). Other jurisdictions have held that an accused is not entitled to an investigator at public expense. See Hager v. State, 665 P.2d 319, (Ok.1983); People (of the State of Illinois) v. Veal, 110 Ill.App.3d 919, 66 Ill.Dec. 679, 443 N.E.2d 605, (Ill.App.1982), State v. Carroll, 629 S.W.2d 483 (Mo.App.1981).

There is no merit to Assignment of Error No. I.

ASSIGNMENTS NO. II AND III.

Under Assignments No. II and III, appellant contends that the lower court committed reversible error in refusing two jurors for cause; namely, panel jurors Jamie Ho-neycutt and Pamela Summers. We first discuss Jamie Honeycutt. The voir dire examination of the jury panel consumes 210 pages of the record before us. On the 166th page, we first find reference to Ms. Honeycutt. Needless to say the court and the state at that point had extensively examined the prospective jurors on a number of subjects, both general and specific. At the time Ms. Honeycutt appears in the picture, the topic involved whether or not each juror could return a death penalty verdict in the bifurcated trial when the guilt of the accused was based almost exclusively on the testimony of a co-perpetrator of the alleged murder. The district attorney had completed interrogating one jury panel member, when the record shows he, for the first time, addressed Ms. Honeycutt by saying “I am going to wait you out now, Ms. Honeycutt.” Any member of the bar, experienced in courtroom observations, knows that some action of Ms. Honeycutt not shown in the record, resulted in this type of introduction to Ms. Honeycutt. Whatever that was is not material, except to emphasize that the interrogation of Ms. Honeycutt was being conducted by the state in regard to the extent of evidence she would require before returning a death penalty verdict.

In answer to the district attorney’s statement, Ms. Honeycutt said, “I would have to have a lot of evidence before giving somebody the death penalty.” The next question by the district attorney was, “Do you feel that probably you could not vote for the death penalty based on a co-defendant’s testimony?” Ms. Honeycutt answered “Right.” Then the district attorney said, “Thank you for your honesty, ma’am.”

The only other time that Ms. Honeycutt appears in the picture is after 185 pages of the voir dire. At this point, the record clearly shows that the individual jury panel members were being interrogated regarding accusations of crime against members of their families or close friends. This specific interrogation had been going on for a number of pages. Ms. Honeycutt was reached on this point and the following occurred:

BY MR. PETERS: Mrs. Honeycutt.
BY THE COURT: First of all, Mrs. Honeycutt, just tell me who it was that was charged or convicted of an offense and what relationship were they to you.
BY MRS. HONEYCUTT: It was just a friend. It was George Malvaney.
BY THE COURT: And where did this take place?
BY MRS. HONEYCUTT: In New Orleans.
BY THE COURT: Do you know anything about the facts and circumstances surrounding the charge.
BY MRS. HONEYCUTT: A little bit, not much.
BY THE COURT: Do you know whether or not he committed the offense?
BY MRS. HONEYCUTT: He didn’t.
BY THE COURT: He did not?
BY MRS. HONEYCUTT: No, sir.
BY THE COURT: Was he found guilty or not guilty?
BY MRS. HONEYCUTT: He was found guilty.
BY THE COURT: And to your knowledge, he did not commit the offense.
BY MRS. HONEYCUTT: Right.
BY THE COURT: I assume that would affect you. As a result of that, do you have any hard feelings concerning law enforcement or our prosecutors, or our judicial system?
BY MRS. HONEYCUTT: Well, it was in New Orleans. The Court was in New Orleans, so to New Orleans, I do.
BY THE COURT: But it wouldn’t affect you regarding Mr. Peters or law enforcement in Hinds County.
BY MRS. HONEYCUTT: No, sir.
BY THE COURT: Mr. Peters, do you have any questions?
BY MR. PETERS: What was he charged with?
BY MRS. HONEYCUTT: He was part of the Bayou of Pigs in New Orleans.
BY MR. PETERS: Was that that thing where they were going to take that country over?
BY MRS. HONEYCUTT: Yes, sir.
BY MR. STRIBLING: And what is your name, ma’am?
BY MRS. HONEYCUTT: Jamie Ho-neycutt.
BY THE COURT: Is he presently confined, ma’am?
BY MRS. HONEYCUTT: No, sir, he’s out now.
BY THE COURT: Is he in New Orleans or Mississippi?
BY MRS. HONEYCUTT: He’s in Mississippi again.
BY MR. STRIBLING: And what was his name again?
BY MRS. HONEYCUTT: George Mal-vaney.
BY MR. PETERS: Did you say they released him?
BY MRS. HONEYCUTT: Yes.
BY THE COURT: You could be a fair and impartial juror in this case and that would not affect you?
BY MRS. HONEYCUTT: No, sir, it wouldn’t.
BY MR. STRIBLING: If it goes to the penalty phase, you could consider life or death as a penalty?
BY MRS. HONEYCUTT: Yes, sir.

The established law on this assignment of error raised by appellant shall be discussed later. We should emphasize the situation regarding Ms. Honeycutt before going further.

Ms. Honeycutt obviously was interrogated only during the voir dire questions involving two specific situations. That is, (1) if the case presented by the state is based on a co-defendant’s testimony, or (2) if pri- or experience with criminal charges against family members or friends would keep that juror from being properly qualified. As above shown, in the first situation Ms. Ho-neycutt stated positively and without reservation that she would not base a death verdict on the testimony of a co-defendant.

Under the second appearance of Ms. Ho-neycutt, she was being questioned only about prior experience of a friend tried under a charge growing out of the “Bayou of Pigs” incident. These questions were being asked by the court and by the state, at the end of which appellant’s attorney asked Ms. Honeycutt, “If it gets to the penalty stage, you could consider life or death as a penalty?” It is readily apparent that the construction of this layman’s answer meant that she would only “consider” “life or death”. It in no way stated that she, in answer to the questions under the subject being discussed, could grant a death penalty. She already had said positively that she would not vote for the death penalty under the state’s evidence. While being questioned about her friend’s trouble with the courts, she merely said that she could “consider life or death.” This could only be interpreted as in effect saying, “Yes, I will ‘consider’ both but it will be life.” The trial court cannot be faulted for not pursuing further this one injected question and answer. She already had made her position clear.

At the time the jury was being selected, the state requested that Ms. Honeycutt be excused for cause based upon her stating that she could not vote for the death penalty based on the testimony of a co-defendant regardless (emphasis supplied). The trial court excused Mrs. Honeycutt for cause for that reason only. So as not to be repetitious, we will not discuss the authorities here, but state that in our opinion it is clear that the second appearance of Ms. Honeycutt in no way overcame or interfered with her positive statement that she would not vote for the death penalty in a case where the state relied primarily on the testimony of a co-defendant as developed in this case. The Witherspoon question is not involved. There is only involved the positive statement that she would not vote for the death penalty under the proof to be developed in this case.

Going to the jury panel member Pamela Summers, she first appeared when the court was questioning the panel. The following occurred:

BY A JUROR: Pamela Summers. If I were on the jury and I didn’t know they were going for the death penalty and I said guilty, you know, that would be okay. But I don’t think I would like to sit on a jury where I know that they were going for the death penalty.
BY THE COURT: Before you sit down, ma’am, just let me ask you a further question. As I understood what ydu said to me, you wouldn’t have a problem sitting on the jury to determine the guilt or innocence of this Defendant but did I understand you to say that you would have difficulty—
BY MRS. SUMMERS: I wouldn’t have difficulty in deciding the guilt or innocence, but I would have—
BY THE COURT: Let me stop you a moment. Did you say you would have difficulty in deciding his guilt or you would not have difficulty?
BY MRS. SUMMERS: I would not have.
BY THE COURT: And what would you have difficulty with, ma’am?
BY MRS. SUMMERS: I wouldn’t have any difficulty. I’m just saying that I would not like to sit on a jury that’s going for the death penalty.
BY THE COURT: But let me ask you this question, ma’am. Although you have these feelings, would you nevertheless be able to sit and follow the testimony and the evidence in the case and deliberate and return a verdict, although you know that verdict might result in the death penalty?
BY MRS. SUMMERS: Yes, sir.
BY THE COURT: You would do that.
BY MRS. SUMMERS: Yes.
BY THE COURT: Thank you ma’am. Have I covered everybody?
(NO RESPONSE FROM ANY JUROR.)

During the voir dire of the panel by the state, the following occurred as to Mrs. Summers:

BY MR. PETERS: Thank you. Mrs. Summers is that your response also; that you could never personally vote for the death penalty?
BY MRS. SUMMERS: That’s right.
BY MR. PETERS: Under any circumstances?
BY MRS. SUMMERS: I wouldn’t like to.
BY MR. PETERS: Well, nobody has to like what we do. It’s a matter of whether you would follow the law if that was one of your options.
BY MRS. SUMMERS: Yes, sir.
BY MR. PETERS: In not liking to do that, would you put an unreasonable burden on the state in proving its ease of guilt or innocence?
BY MRS. SUMMERS: Well, it wouldn’t affect the decision of if he was guilty or innocent. It wouldn’t affect that.
BY THE COURT: Let me get you to stand, ma’am. I’m having trouble hearing you.
BY MR. PETERS: It wouldn’t affect your decision of guilt or innocence.
BY MRS. SUMMERS: Right.
BY MR. PETERS: A good way to get out of doing something you wouldn’t like to do is just not have to do it, and so if you vote not guilty, you don’t have to consider voting for the death penalty or not.
BY MRS. SUMMERS: I wouldn’t do that though.
BY MR. PETERS: Another good way of getting out of having to do something you don’t want to do is just not do it. If you don’t like to vote for the death penalty, you just don’t do it. Would that be your position?
BY MRS. SUMMERS: Part of it.
BY MR. PETERS: Would you take the position of, “I don’t like the death penalty and I wouldn’t like to sit on the jury involving the death penalty, so I just won’t vote for the death penalty”? You’re being honest now and I’m not trying to put you in any position. I’ve got to know an honest answer, the Court’s got to know an honest answer, and the record’s got to know an honest answer. Honestly, would you vote for the death penalty?
BY MRS. SUMMERS: No.

On voir dire examination by the attorney for appellant, we find the following in regard to Mrs. Summers:

BY MR. STRIBLING: And now, Mrs. Summers, I’ll ask you the same question. If you are selected as a juror and this case goes in to penalty phase, can you consider the death penalty and the life penalty, one of the two?
BY MRS. SUMMERS: Probably life.
BY MR. STRIBLING: I beg your pardon.
BY THE COURT: You’ll have to speak up, ma’am.
BY MRS. SUMMERS: Probably life.
BY MR. STRIBLING: I’m not asking you probably now. I’m asking you could you consider, after hearing the evidence and the law as given to you by His Honor, either life or death as a penalty? Could you do that? I’m not asking you if you will give life or give death. I’m asking you if you could consider the penalty of either life or death in the second phase of the trial, if it goes to the second phase of the trial?
BY MRS. SUMMERS: You mean one or the other?
BY MR. STRIBLING: -1 beg your pardon?
BY MRS. SUMMERS: You mean could I give one or the other?
BY MR. STRIBLING: That’s correct. Could you consider one or the other?
BY MRS. SUMMERS: Yes.

It is, therefore, inescapable that Mrs. Summers made the positive and unequivocal statement that she would not vote for the death penalty. When first asked this she gave an unequivocal “No,” as shown above. Further to the prior question “Mrs. Summers, is that your response also; that you could never personally vote for the death penalty?” Mrs. Summers answered, “That’s right.”

Appellant’s attorney attempted to rehabilitate Mrs. Summers and toward the end, in answer to the question “Could you consider one or the other?” Mrs. Summers’ only answer was “Yes,” after asking “you mean could I give one or the other?” This answer certainly did not state that she would consider “both life or death.” It only stated that she would consider one or the other, which according to her previous positive answers was life only.

Under this assignment of error regarding the above discussed two jurors, appellant relies on the bellwether case of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). They also cite the fairly recent case of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). The court further spoke in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

The principles announced in Wither-spoon, supra, have been discussed in a large number of cases, both federal and state. Undoubtedly, Witherspoon set out in clear language that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious religious scruples against its infliction.

In examining the above cited cases, we find a number of clarifications of Wither-spoon,. which clarifications have been carried over as stated in federal and state cases. In Lockett, supra, the United States Supreme Court in discussing With-erspoon went further and stated:

We specifically noted, however, that nothing in our opinion prevented the execution of a death sentence when the veniremen excluded for cause make it “unmistakably clear ... that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.”

In Adams, supra, the Court, after discussing Lockett, supra, said:

This line of cases establishes the general proposition that a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The State may insist, however, that jurors ivill consider and decide the facts impartially and conscientiously apply the law as charged by the court. (Emphasis added).

We specifically note the post-With-erspoon cases of the Fifth Circuit; namely, O’Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983); Porter v. Estelle, 709 F.2d 944 (5th Cir.1983); Bell v. Watkins, 692 F.2d 999 (5th Cir.1982); and Williams v. Maggio, 679 F.2d 381 (5th Cir.1982). A reading of the opinions in the above Fifth Circuit cases clearly bears out our holding here that there is no reversible error as a result of the trial judge excusing for cause either juror Honeycutt or juror Summers.

ASSIGNMENT NO. IV.

Appellant contends that the trial court erred in refusing to excuse juror Bagwell for cause. The sole reason was that on voir dire examination, he, in answering a specific question about news coverage, stated that on the morning of the trial there was an article in the local morning paper stating that appellant’s case would be tried that day. The trial court and the attorneys thoroughly examined this prospective juror as to whether or not that news article would influence him. A reading of the questions and answers of this prospective juror [who did not serve] clearly shows no prejudicial error. His answers reveal that he had just glanced over it and remembered no specifics of the article. It is interesting to note that other prospective jurors answered the same as Bagwell, but were not challenged. One of those actually served. There is no merit to this assignment.

ASSIGNMENT NO. V.

Appellant contends that the trial court erred in admitting photographs made of the conditions existing in Peeples’ apartment when they entered on the morning of October 15. These pictures included the bodies of Peeples and King and showed the entrance of knife and screwdriver stabs inflicted on the bodies.

All courts are frequently presented with the age-old question as to when photographs should be admitted or excluded. All cases have held that this primarily is a question for the trial court to decide in its discretion, considering all other elements existing and surrounding the trial in its court. Bullock v. State, 391 So.2d 601 (Miss.1980); Irving v. State, 361 So.2d 1360 (Miss.1978); and Mallette v. State, 349 So.2d 546 (Miss.1977); and many others. We have carefully examined the photographs in question, all of which were made as stated at the scene. We find without reservation that the lower court did not abuse its discretion in permitting a jury of grown laymen to see them, specifically when considering the testimony of Robert Taylor, one of the alleged killers.

ASSIGNMENT NO. VI.

One of the photographs made in the apartment after the bodies were found was of two screwdrivers lying on a counter. Appellant contends that the introduction of this photograph, along with the other photographs, was error. Appellant contends that it was not shown that these instruments were used in the crime, although the bodies admittedly bore screwdriver stab-related marks. We decide this assignment of error in the same manner as Assignment No. V. It is only a continuation of that argument and our decision thereon. If anything, the photographs would aid appellant by showing that Peeples and King had screwdriver weapons in the house in an amount exceeding that necessary for usual household use. Furthermore, the picture verifies Taylor’s testimony that he looked through the drawers and secured articles that could be used as weapons. The introduction of this photograph was not reversible error.

ASSIGNMENT NO. VII.

Appellant contends that the case allegedly against Appellant Dufour was not capital murder as the murder was not committed during the course of a robbery, as charged. We disagree.

See Voyles v. State, 362 So.2d 1236 (Miss.1978); Shanklin v. State, 290 So.2d 625 (Miss.1974); and Thompson v. State, 258 So.2d 448 (Miss.1972). In Shanklin, supra, we stated:

“Intent to do an act or commit a crime is also a question of fact to be gleaned by the jury from the facts shown in each case. The intent to commit a crime or to do an act by a free agent can be determined by the act itself, surrounding circumstances, and expressions made by the actor with reference to his intent.” (citations omitted).

We need only to refer to what heretofore has been set out regarding the evidence by the state. When Taylor went into the lounge, Dufour pointed Peeples and King out to him and stated that they were going to rob the two men. Dufour and Taylor went with Peeples and King to Peeples’ apartment, after that intent was made known. Both Peeples and King were cold-bloodedly murdered without any inkling in this record for any reason other than taking what they had. There is no indication whatever of animosity — just cold-blooded murder. Peeples’ pants’ pockets were turned out. Dufour placed articles in a bedspread and placed them in Peeples’ car. Peeples’ car was taken away after Peeples had told Dufour, immediately prior to being stabbed, that his money was in the trunk of the car. As soon as practical, the trunk was searched by Dufour, trying to find the alleged money. The articles were taken from the rolled up bedspread [except for a penny] and taken by Dufour. What other evidence is needed for a jury to find that the cold-blooded murder was done to effect a robbery? We also note the definition of robbery as set out in Mississippi Code Annotated, Section 97-3-73 (1972), which states as follows:

Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.

We find no error in the trial of the guilt phase of the bifurcated trial of appellant and therefore are required to affirm the jury’s verdict and the resulting finding of appellant guilty of capital murder.

PENALTY PHASE

Appellant propounds no argument regarding alleged errors in the sentencing phase of the bifurcated trial. He testified in person during the guilt phase and relied on that testimony in the sentencing phase. The evidence submitted by both the state and appellant was reintroduced during the sentencing phase. Admittedly, the instructions given by the court to the jury in the sentencing phase were proper and contained no error.

The jury found that the capital murder was performed during a robbery for pecuniary gain and the murder was especially heinous, atrocious and cruel. An examination of the record before us reveals that it would be hard to find a murder that was more heinous, atrocious or cruel.

This Court, after hearing oral arguments, while sitting en banc, has fully reviewed the record and briefs as required by MCA § 99-19-105 (Supp.1983), and have fully reviewed the imposition of the death penalty of the jury. In reviewing the sentence of death, we particularly have considered it as to whether or not the verdict was a result of the influence of passion, prejudice or any other arbitrary factor. We find unhesitatingly that those elements do not exist.

We further have reviewed the jury’s findings regarding the aggravating circumstances that (1) the capital offense was committing while the defendant was engaged in the commission of robbery for pecuniary gain and (2) the capital offense was especially heinous, atrocious and cruel. As hereinbefore discussed, which we are here adopting, there is an abundance of evidence to sustain both findings.

We have considered the appellant’s sentence of death as to whether or not it is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. We have considered prior capital murder cases resulting in the death penalty and affirmed or reversed by this Court and find without hesitation that the death penalty sentence in the case sub judice is not excessive or disproportionate to the penalty imposed in those cases.

After full consideration of the death penalty verdict and judgment thereon, fully considering everything required by the statutes of this state and the prior decisions of the Courts, both state and federal, we find that the evidence presented as a result of appellant’s indictment for capital murder fully justified the finding that he committed a gruesome and horrible murder and under all statutes and prior court opinions, his sentence of death should be and is affirmed.

AFFIRMED AND WEDNESDAY, JULY 11, 1984, IS FIXED AS THE DATE ON WHICH THE DEATH SENTENCE SHALL BE EXECUTED, AS PROVIDED BY LAW.

PATTERSON, C.J., AND WALKER AND ROY NOBLE LEE, P. JJ., AND HAWKINS, DAN LEE, PRATHER, AND SULLIVAN, JJ., CONCUR. ROBERTSON, J., NOT PARTICIPATING.

APPENDIX “A”

DEATH PENALTY CASES AFFIRMED BY THIS COURT:

Neal v. State, 451 So.2d 743 (Miss.1984).
Booker v. State, 449 So.2d 209 (Miss. 1984)
Wilcher v. State, 448 So.2d 927 (Miss. 1984)
Caldwell v. State, 443 So.2d 806 (Miss. 1983)
Irving v. State, 441 So.2d 846 (Miss. 1983), and 361 So.2d 1360 (Miss.1978)
Tokman v. State, 435 So.2d 664 (Miss. 1983).
Leatherwood v. State, 435 So.2d 645 (Miss.1983).
Hill v. State, 432 So.2d 427 (Miss.1983).
Pruett v. State, 431 So.2d 1101 (Miss. 1983).
Gilliard v. State, 428 So.2d 576 (Miss. 1983).
Evans v. State, 422 So.2d 737 (Miss. 1982).
King v. State, 421 So.2d 1009 (Miss. 1982).
Wheat v. State, 420 So.2d 229 (Miss. 1982).
Smith v. State, 419 So.2d 563 (Miss. 1982).
Edwards v. State, 413 So.2d 1007 (Miss. 1982).
Johnson v. State, 416 So.2d 383 (Miss. 1982).
Bullock v. State, 391 So.2d 601 (Miss. 1980).
Reddix v. State, 381 So.2d 999 (Miss. 1980).
Jones v. State, 381 So.2d 983 (Miss.1980).
Culberson v. State, 379 So.2d 499 (Miss. 1979).
Gray v. State, 375 So.2d 994 (Miss.1979).
Jordan v. State, 365 So.2d 1198 (Miss. 1978).
Voyles v. State, 362 So.2d 1236 (Miss. 1978).
Washington v. State, 361 So.2d 61 (Miss. 1978).
Bell v. State, 360 So.2d 1206 (Miss.1978).

DEATH PENALTY CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT:

Dycus v. State, 440 So.2d 246 (Miss. 1983).
Edwards v. State, 441 So.2d 84 (Miss. 1983).
Coleman v. State, 378 So.2d 640 (Miss. 1979).

DEATH PENALTY CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY:

Cannaday v. State, 455 So.2d 713 (1984).
Williams v. State, 445 So.2d 798 (Miss. 1984).
Wiley v. State, 449 So.2d 756 (Miss.1984).

      . Cases reviewed are listed and attached hereto as Appendix "A" to this opinion.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Jerry W. BROOKS and Melody Brooks v. Ronald INLOW, Frank Chapman, et al.
    No. 82-1119.
    Supreme Court of Alabama.
    May 25, 1984.
    Stephen J. Flynn and James F. Barter, Jr. of Diamond & Flynn, Mobile, for appellants.
    William C. Roedder, Jr. of Hand, Aren-dall, Bedsole, Graves & Johnston, Mobile, for appellees.
   MADDOX, Justice.

This case involves the issue of whether the trial court properly granted summary judgment for seven nonresident defendants because it lacked in 'personam jurisdiction over them. The Court granted each defendant’s motion to dismiss on the ground that it lacked personal jurisdiction over him. We affirm as to those nonresidents who never were physically present in Alabama; we reverse as to those defendants who did come into Alabama.

I

Plaintiff Jerry Brooks was employed as a diesel truck mechanic at a Mobile terminal operated by Enterprise Transportation Company (hereinafter Enterprise). In May of 1981, Brooks ruptured a cervical disc while manually lifting transfer truck tires. Brooks and his wife brought suit in the Mobile County Circuit Court on theories of co-employee negligence, breach of contract, breach of implied contract, and products liability. Numerous individuals were named in the complaint as defendants. The trial court granted summary judgments as to seven of these defendants and entered an appropriate order under Ala.R. Civ.P. 54(b), making his judgments as to these defendants final. The plaintiffs appealed these judgments.

The affidavits of the plaintiffs and the defendants submitted in connection with the motions to dismiss show that all seven defendants are supervisory level employees of Enterprise or its parent company, Enterprise Companies, Inc., both of which have their corporate offices in Texas, and that each defendant is a resident of Texas. None of them had property in Alabama and their only contacts with Alabama were in connection with their employment. Each defendant’s admitted contacts with Alabama and his employee classification was as follows:

(1) DAN DUNCAN:

Chairman of the Board of Enterprise Companies, Inc., Duncan had never been in Alabama, and had never had any personal contacts with the personnel at the Mobile terminal.

(2) FRANK CHAPMAN:

Corporate Risk-Director of Claims for Enterprise Companies Inc., Chapman had never been personally to Alabama but had talked with Renfro, the Mobile terminal manager, on at least five occasions regarding claims made at the facility.

(3) VIM MATTINGLY:

Director of Maintenance for Enterprise, Mattingly had been to the Mobile facility on at least one occasion to check the maintenance program and had had at least two telephone conversations from Texas with Brooks, one of which occurred before the injury.

(4) RONALD LEE INLOW:

Safety Supervisor for Enterprise, Inlow had visited the Mobile terminal on at least four occasions between July of 1979 and May of 1982, and at least one of these meetings was termed a “safety meeting.” Inlow had had telephone contact with the Mobile terminal on at least three occasions.

(5) DOUGLAS TIPTON:

President of Enterprise, .Tipton had been to the Mobile Terminal “no more than five times.” On at least one of these visits, he attended what was termed a “safety meeting.” He also made monthly telephone contact with the Mobile terminal from Texas.

(6) GERALD MARTINDALE:

“Field Safety Man” for Enterprise, Mar-tindale had visited the Mobile terminal on at least six occasions and had made at least six telephone calls per month to the Mobile terminal from Texas.

(7) ROBERT A. GAINES II:

Also a “Field Safety Man” for Enterprise, Gaines had made at least ten trips to the Mobile terminal and at least two telephone calls a month from Texas.

The affidavits of Brooks dispute to some extent those of the defendants:

(1) DAN DUNCAN:

Brooks claimed Duncan owned the company.

(2) FRANK CHAPMAN:

Brooks did not dispute Chapman’s affidavit.

(3) VIM MATTINGLY:

Brooks claimed that he had complained of the safety problem to Mattingly in Texas during a training session and that he had discussed the operation at the Mobile facility with Mattingly on at least one occasion.

(4) RONALD LEE INLOW:

Brooks stated that he had seen Ronald Inlow in Mobile in 1981, and further stated: “[H]e red-tagged one of my trailers, which meant that it had to be fixed immediately. Mr. Inlow was inspecting my shop and taking pictures of it. I asked him to please give me some help. Inlow watched me have to lift tires by myself. He never got me any help.”

Brooks also stated: “I talked to Ron Inlow every time he came to Mobile. Every time he came, I told him of the unsafe job conditions that I was being forced to work under, I told him how I had to lift these tires manually, I told him how a hydraulic dolly would help me, and I told him how I needed some more men to help me. Every time, Inlow told me, I’ll check into it and let you know. He never gave me any assistance .... ”

(5) DOUGLAS TIPTON:

Brooks’ affidavit stated that Tipton was in charge of maintenance for the Enterprise Transportation Company. Brooks stated: “He was at numerous meetings we had in Mobile, including safety meetings. At these safety meetings, I pleaded for more help and for better equipment, including a decent hydraulic dolly that would not force me to manually lift truck tires. Mr. Tipton was at these meetings as a representative of management when I asked management for safe equipment and more men to help me....”

(6) GERALD MARTINDALE:

Brooks stated that he met with Gerald Martindale frequently about unsafe working conditions. He stated: “Jerrell [sic] Martindale on many occasions saw me having to lift 100-pound tires over three feet into a spare tire rack on the trailer. He saw me having to manually lift 400-pound tandem wheels. I told him that the homemade dolly that the defendants had given me was worthless and that I was going to get hurt unless they gave me a good hydraulic dolly and some more men to help me. I expressed this frequently to Jerrell [sic] Martindale.”

(7) ROBERT A. GAINES II:

Brooks stated he had met with Robert Gaines frequently about unsafe working conditions. He stated: “Robert Gaines on many occasions saw me having to lift 100-pound tires over three feet into a spare tire rack on the trailer. He saw me having to manually lift 400-pound tandem wheels. I told him that the homemade dolly that the defendants had given me was worthless and that I was going to get hurt unless they gave me a good hydraulic dolly and some more men to help me. I expressed this frequently to Robert Gaines.”

II

For convenience and analysis, we will discuss the defendants in two separate groups. Duncan and Chapman, who were never in Alabama, constitute the first group, and the remaining five constitute the second group.

A. The first group, or the “Texas Two”:

These defendants argue they are protected by what they refer to as the “Fiduciary Shield Doctrine,” which they claim was recognized by this Court in Thames v. Gunter-Dunn, Inc., 373 So.2d 640 (Ala.1979). In Thames, supra, this Court held that bank officers of an out-of-state bank, who had never been in Alabama and over whom the plaintiff sought in personam jurisdiction in a suit for breach of a lease, an accounting, and foreclosure of a landlord’s lien, or alternatively damages for breach of a lease, were not subject to the jurisdiction of Alabama courts. The Court held:

“ ‘[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ ... [Quoting from International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945).]
“While it is sometimes proper to hold that a foreign corporation or bank whose agents acted in Alabama, and caused ramifications in this state, has sufficient contacts with the state to warrant jurisdiction, it is a totally different matter to hold that individual officers have such minimum contacts. In this case the officers had never been present in Alabama, and there was no proof that the appellees were conducting any personal business either through the use of the corporation as an alter ego, or through personal agents in this state. Thus this Court finds that the minimum contacts necessary to extend personal jurisdiction are lacking. [Emphasis added.]
“Based upon the record, these bank officers performed all acts within the scope of their bank employment. To allow personal jurisdiction over them when they acted solely in the furtherance of their official positions would be to extend the long-arm statute too far. Accordingly, the exercise of jurisdiction over these appellees would be improper under ARCP 4.2.”

Thames, supra, at 642-643. See also, Mann v. Frank Hrubetz & Co., 361 So.2d 1021, 1022 (Ala.1978).

Earlier in the Thames opinion, this Court quoted approvingly language from another court’s opinion:

“In Idaho Potato Com’n v. Washington Potato Com’n, 410 F.Supp. 171, 181 (D.Idaho 1975), the court said:
“ ‘[UJnless there is evidence that the act by the corporate officer was other than as an agent for the corporation, then personal jurisdiction over the corporate officer will not lie. Fashion Two Twenty, Inc. v. Steinberg, 339 F.Supp. 836, 842 (E.D.N.Y.1971).’ ”

Thames, supra, at 642.

The Brookses argue that the doctrine recognized in Thames is not applicable to the “Texas Two” because even though never physically present in Alabama, they owed a personal duty to Jerry Brooks which they had either assumed or were delegated responsibility for, and that they breached that duty under the principle set out in Fireman’s Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980), and, therefore, that jurisdiction over them could be acquired under Ala.R.Civ.P. 4.2(a)(2)(D). They further argue that these two defendants should have clearly foreseen that they could be haled into court in Alabama for an injury occurring at the Mobile terminal.

Ala.R.Civ.P. 4.2(a)(2) reads in pertinent part:

“Sufficient Contacts. A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person’s
(( # * * *
“(C) causing tortious injury or damage by an act or omission in this state including but not limited to actions arising out of the ownership, operation or use of a motor vehicle, aircraft, boat or watercraft in this state;
“(D) causing tortious injury or damage in this state by an act or omission outside this state if the person regularly does or solicits business, or engages in any other persistent course of conduct or derives substantial revenue from goods used or consumed or services rendered in this state;
“(E) causing injury or damage in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when the person might reasonably have expected such other person to use, consume, or be affected by the goods in this state, provided that the person also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
a * * *
“(I) otherwise having some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action. The minimum contacts referred to in this subdivision (I) shall be deemed sufficient, notwithstanding a failure to satisfy the requirement of subdivisions (A)-(H) of this subsection (2), so long as the prosecution of the action against a person in this state is not inconsistent with the constitution of this state or the Constitution of the United States.”

Under Ala.R.Civ.P. 4.2(a)(2)(A) and 4.2(a)(2)(C), Thames found no jurisdiction over nonresident defendants who had never been in Alabama. Section 4.2(a)(2)(D) applies to tortious acts committed outside the state and so is more liberal in permitting Alabama courts to hale nonresidents into court through process issued pursuant to the “long-arm” rule. The holding in Thames, supra, although not discussing the application of Rule 4.2(a)(2)(D), seems to be most appropriate to the jurisdictional questions presented here. The United States Supreme Court recently spoke to the issue of whether under another state’s “long arm” statute, that state had personal jurisdiction over certain nonresident defendants. See Calder v. Jones, — U.S. —, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). There, the plaintiff, an entertainer who lived and worked in California and whose case was centered there, brought suit in California, claiming she had been libeled by an article published by the “National Enquirer,” a national magazine which has its principal place of business in Florida. The suit named as defendants, in addition to the magazine and its distributing company, the reporter who authored the article and the editor of the magazine. The reporter and editor were residents of Florida and had written and edited the article in Florida. The reporter frequently traveled to California on business unrelated to the article, and the editor had been to California on two occasions, once on a pleasure trip and once to testify in an unrelated trial. The reporter had researched the article in Florida by means of telephone calls to sources in California. The trial court held that there was no personal jurisdiction over the reporter and editor. The California District Court of Appeal reversed. Jones v. Calder, 138 Cal.App.3d 128, 187 Cal.Rptr. 825 (1982). The rationale of the state appeals court was that even though the actions causing the effects in California were performed outside the state, this did not prevent the state from asserting jurisdiction over a cause of action arising out of those effects. The U.S. Supreme Court approved this reasoning. Colder v. Jones, supra. Justice Rehnquist, speaking for the Court, succinctly summarized the law:

“The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction over a defendant in any State with which the defendant has ‘certain minimum contacts ... such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Milliken v. Meyer, 311 U.S. 457, 463 [61 S.Ct. 339, 343, 85 L.Ed. 278].’ International Shoe Co. v. Washington, 326 U.S. 310, 316 [66 S.Ct. 154, 158, 90 L.Ed. 95] (1945). In judging minimum contacts, a court properly focuses on ‘the relationship among the defendant, the forum, and the litigation.’ Shaffer v. Heit-ner, 433 U.S. 186, 204 [97 S.Ct. 2569, 2580, 53 L.Ed.2d 683] (1977). See also Rush v. Savchuk, 444 U.S. 320, 332 [100 S.Ct. 571, 579, 62 L.Ed.2d 516] (1980). The plaintiff’s lack of ‘contacts’ will not defeat otherwise proper jurisdiction, see Keeton v. Hustler Magazine, Inc., [— U.S.—, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) ], but they may be so manifold as to permit jurisdiction when it would not exist in their absence. Here, the plaintiff is the focus of the activities of the defendants out of which the suit arises. See McGee v. International Life Ins. Co., 355 U.S. 220 [78 S.Ct. 199, 2 L.Ed.2d 223] (1957).
(( * * * ⅜
“Jurisdiction over petitioners is therefore proper in California based on the ‘effects’ of their Florida conduct iñ California. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-298 [100 S.Ct. 559, 567, 62 L.Ed.2d 490] (1980); Restatement (Second) of Conflicts of Law § 37.”

Colder v. Jones, supra, at —, 104 S.Ct. at 1486. This “effects” test approved by the Supreme Court appears quite similar to the “consequences” test enunciated in Alabama Waterproofing Co. v. Hanby, 431 So.2d 141 (Ala.1983). Cf., Helicopteros Nacionales de Columbia, S.A. v. Hall, — U.S. —, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (holding that the Texas contacts of defendant, a corporation headquartered in Columbia, South America, were not “related to” the cause of action brought in Texas for wrongful death; the deaths occurred in Peru).

Interestingly, the Colder court also discussed an argument quite similar to the fiduciary shield doctrine argued by the ap-pellees herein:

“Petitioners argue that they are not responsible for the circulation of the article in California. A reporter and an editor, they claim, have no direct economic stake in their employer’s sales in a distant state. Nor are ordinary employees able to control their employer’s marketing activity. The mere fact that they can 'foresee’ that the atticle will be circulated and have an effect in California is not sufficient for an assertion of jurisdiction. World-Wide Volkswagen Corp. v. Woodson, 444 U.S., at 295 [100 S.Ct. at 566]; Rush v. Savchuk, 444 U.S., at 328-329 [100 S.Ct. at 577]. They do not ‘in effect appoint the [article their] agent for service of process.’ World-Wide Volks-wagen Corp. v. Woodson, 444 U.S., at 296 [100 S.Ct. at 566]. Petitioners liken themselves to a welder employed in Florida who works on a boiler which subsequently explodes in California. Cases which hold that jurisdiction will be proper over the manufacturer, Buckeye Boiler Co. v. Superior Court, 71 Cal.2d 893 [80 Cal.Rptr. 113], 458 P.2d 57 (1969); Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), should not be applied to the welder who has no control over and derives no direct benefit from his employer’s sales in that distant state.
“Petitioners’ analogy does not wash. Whatever the status of their hypothetical welder, petitioners are not charged with mere untargeted negligence. Rather, their intentional, and allegedly tortious, actions were expressly aimed at California. Petitioner South wrote and petitioner Calder edited an article that they knew would have a potentially devastating impact upon respondent. And they knew that the brunt of that injury would be felt by respondent in the State in which she lives and works and in which the National Enquirer has its largest circulation. Under the circumstances, petitioners must ‘reasonably anticipate being haled into court there’ to answer for the truth of the statements made in their article. World-Wide Volkswagen Corp. v. Woodson, 444 U.S., at 297 [100 S.Ct. at 567]; Kulko v. Superior Court, 436 U.S. 84, 97-98 [98 S.Ct. 1690, 1699-1700, 56 L.Ed.2d 132] (1978); Shaffer v. Heitner, 433 U.S. 186, 216 [97 S.Ct. 2569, 2586, 53 L.Ed.2d 683 (1977). An individual injured in California need not go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California.
“Petitioners are correct that their contacts with California are not to be judged according to their employer’s activities there. On the other hand, their status as employees does not somehow insulate them from jurisdiction. Each defendant’s contacts with the forum state must be assessed individually. See Rush v. Savchuk, 444 U.S., at 332 [100 S.Ct. at 579] (‘The requirements of International Shoe ... must be met as to each defendant over whom a state court exercises jurisdiction’). In this case, petitioners are primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis.” (Emphasis added.)

Calder v. Jones, supra, at —, 104 S.Ct. at 1487; see also; Columbia Briargate Co. v. First National Bank, 713 F.2d 1052 (4th Cir.1983) (there the court stated that the fiduciary shield doctrine is not a constitutional doctrine, but is more an equitable doctrine).

These “Texas Two” defendants are charged with “mere untargeted negligence”; thus, assertion of personal jurisdiction over them would offend traditional notions of fair play and substantial justice. Calder v. Jones, supra. See also Alabama Waterproofing Co. v. Hanby, 431 So.2d 141 (Ala.1983).

B. Mattingly, Inlow, Tipton, Martindale, and Gaines, or the “Alabama Five”:

The remaining five defendants also claim to be out of the reach of personal jurisdiction under the doctrine recognized in Thames, supra. The holding of Thames, supra, applied only to nonresident defendants who had never been in Alabama and who had never “personally ‘performed any act or omitted to perform any act in Alabama which resulted in tor-tious injury in Alabama.’ ” (Emphasis added.) Thames, supra, at 642. These defendants do not fall into the class of defendants who are protected by the holding of Thames, because each had been to Alabama on at least one occasion and each had allegedly performed an act or omitted to perform an act in Alabama which act or omission proximately caused the plaintiffs’ injury. The defendants next argue that if Thames, supra, does not apply to them, nevertheless their “contacts with Alabama are simply insufficient to satisfy the requisite ‘minimum contacts' standard of constitutional due process,” citing Hanson v. Denkla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Sporting Goods Distributors, Inc. v. Whitney, 498 F.Supp. 1088 (N.D.Fla.1980). The defendants argue that the analysis of Whitney, supra, is particularly appropriate for the five defendants. We set out below all the analysis of the Whitney court:

“Whitney’s contacts with Alabama were few. He made two brief visits to Alabama, both after the contract in dispute was entered and before the alleged breach and conversion. Whitney’s only other contacts with Alabama were phone calls and letters to Sporting Goods’ Mobile headquarters. The contacts were not important and in no way could be construed as placing Whitney in a position where he relied on and enjoyed the benefits of Alabama’s laws. The visits were brief and not important to a business which was carried on primarily through the United States mail. As significant contacts with Alabama the phone calls and letters are particularly inadequate. Interstate communication is today an almost inevitable accompaniment to doing business and cannot fairly be considered a contact justifying exercise of jurisdiction. See, Lakeside Bridge and Steel Co. v. Mountain State Construction Co., Inc., 597 F.2d 596 (7th Cir.1979); Aaron Ferer and Sons Co. v. American Compressed Steel Co., 564 F.2d 1206 (8th Cir.1977). Whitney’s two visits are peripherally related to the cause of action. He made them during performance of the contract involved. But they are not related to either the breach or the conversion and were at Sporting Goods’ urging.
“Contacts Whitney did not have are much more significant and demonstrate the constitutional defectiveness of the Alabama judgment. The contract in dispute was made in Florida. Performance was in Florida. Any breach occurred in Florida. In short, every significant event happened in Florida. The significant party-state contacts actually were between Sporting Goods and Florida, not between Whitney and Alabama.
“The secondary factors also call for finding Whitney’s contacts insufficient to justify the Alabama court exercising jurisdiction over him. Alabama has no particular interest in this type of litigation. Thus the situation is not comparable to McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). All the significant events occurred in Florida. The contract was made in Florida; witnesses other than the parties will most likely be found in Florida. The breach occurred in Florida, as did the conversion. Sporting Goods does business in Florida and thus is much better equipped to come to Florida than Mr. Whitney is to go to Alabama.”

Whitney, supra, at 1091 (emphasis added).

In Whitney, supra, the employer of a salesman sought to enforce an Alabama judgment against the salesman'in a Florida federal district court. The Alabama judgment was based on breach of an employment contract, account, and conversion, and was in regard to property of the employer held by the defendant in Florida. The defendant argued that the Alabama judgment was invalid because the Alabama court lacked personal jurisdiction. The salesman had made an oral contract of employment in Florida and his sales territory was in Florida. He traveled to his employer's headquarters in Mobile on only two occasions. These trips were instigated by the employer and were for purposes of instruction, merchandise inspection, and picking up samples. The trips were in no way related to the cause of action in the Alabama court. We think the facts of Whitney distinguish it from the instant case. The inquiry in cases such as the one before us is particularly factual. Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). Two recent Alabama cases and one U.S. Supreme Court case are more appropriate to the instant case: Calder v. Jones, supra; Cagle v. Lawson, 445 So.2d 564 (Ala.1984); Alabama Waterproofing Co. v. Hanby, 431 So.2d 141 (Ala.1983).

In Hanby, supra, this Court upheld personal jurisdiction over a nonresident defendant who had signed a guaranty agreement in Mississippi in connection with a sale of stock of an Alabama corporation. Although most of the documents in connection with the sale were executed in Alabama, this Court did not find these contacts significant in regard to the analysis of personal jurisdiction.

The Court summarized the law:

“The Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant. Kulko v. Superior Court of California, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978). Under Alabama’s long-arm procedure, Rule 4.2, ARCP, as interpreted by Court decisions, an Alabama court may acquire in per-sonam jurisdiction over a nonresident defendant if the defendant has sufficient ‘minimum contacts’ so that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); World-Wide Volkswagen Corp. v. Woodson 444 U.S. 286, 290, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); Bryant v. Ceat S.p.A., 406 So.2d 376, 377 (Ala. 1981), cert. denied, 456 U.S. 944, 102 S.Ct. 2008, 72 L.Ed.2d 466 (1982).
H * * * *
“This state’s long-arm procedure for service of process is not limited to rigid transactional categories. Instead, in personam jurisdiction of an Alabama court under Rule 4.2(a)(2), ARCP, is as broad as the permissible limits of due process. See DeSotacho, Inc. v. Valnit Industries, Inc., 350 So.2d 447 (Ala. 1977); Schoel v. Sikes Corp., 533 F.2d 930 (5th Cir.1976). See also Rule 4.2, ARCP, Committee comments.
“In determining whether the nonresident appellants possessed sufficient contacts with this state for the trial court to obtain in personam jurisdiction, we must necessarily examine all the relevant facts and attendant circumstances of the case. J. Moore, 2 Moore’s Federal Practice § 4.41 — 1[3] at 4-449.
“The guaranty agreement which was signed by all of the appellants, including the non-resident appellants, stated as follows:
“ ‘Guarantee of the performance of the above contract [the “agreement not to compete”] by the shareholders of Alabama Waterproofing Company, Inc., and their spouses: We, for $1.00 and other sufficient consideration, hereby guarantee the performance of the foregoing agreement.’
“While the ‘Agreement Not to Compete’ was a contract between Alabama Waterproofing Company, Inc., and each of the appellees, the guaranty agreement was a separate contract signed by each appellant. Irrespective of the singular fact that the nonresident appellants actually signed the guaranty in Mississippi, the Court is of the opinion that the trial court could have found that the guaranty signed by each appellant was a significant aspect of the negotiations which occurred in Alabama and that it was foreseeable that appellants’ transaction would have consequences in this state. See Chemical Bank v. World Hockey Ass’n, 403 F.Supp. 1374, 1379 (S.D.N.Y.1975); see also Bond v. Montego Bay Dev. Corp., 405 F.Supp. 256, 259 (W.D.Tenn.1975). Furthermore, based on the facts as presented, it is quite evident that the trial court could have found that the nonresident appellants had good reason to expect to be sued in an Alabama court in the event Alabama Waterproofing failed to fulfill its obligations to appellees. See Shaffer v. Heitner, 433 U.S. 186, 217, 97 S.Ct. 2569, 2586, 53 L.Ed.2d 683 (1977); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 290, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). In World-Wide Volkswagen Corp. v. Woodson, supra, the Supreme Court of the United States opined:
“[T]he foreseeability that is critical to due process analysis ... is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. See Kulko v. California Superior Court, supra, 436 U.S., at 97-98, 98 S.Ct., at 1699-1700; Shaffer v. Heitner, 433 U.S., at 216, 97 S.Ct., at 2586, and see id., at 217-219, 97 S.Ct. at 2586-2587 (Stevens, J., concurring in judgment). The Due Process Clause, by ensuring the “orderly administration of the laws,” International Shoe Co. v. Washington, 326 U.S., at 319, 66 S.Ct., at 159, gives a degree of predictability to the legal system that allows potential defendants to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.”
“444 U.S., at 297, 100 S.Ct., at 567.”

Hanby, 431 So.2d at 144-146.

The more recent case by this Court, Ca-gle v. Lawson, 445 So.2d 564 (Ala.1984), summarized the law in this manner:

“Recently, in View-All, Inc. v. United Parcel Service, 435 So.2d 1198 (Ala. 1983), this Court, quoting Professor Moore, summarized the correct constitutional requirements in this area:
“ ‘The first requirement is that there must be some minimum contact with the state which results from an affirmative act of the defendant. But it is not necessary that the defendant have been in the state or that it have had agents there.
“ ‘In addition to some minimum contact with the state, it must be fair and reasonable to require the defendant to come into the state and defend that action.... [I]n determining what is fair and reasonable, the court may consider factors associated with the doctrine of forum non conveniens, but need not give them overriding importance. ...
“ ‘Based as they are on notions of fairness and reasonableness, the Supreme Court decisions do not permit a simple generalization of the rule pertaining to in personam jurisdiction over foreign corporations....
“ ‘If there are substantial contacts with the state, for example a substantial and continuing business, and if the cause of action arises out of the business done in the state, jurisdiction will be sustained. If there are substantial contacts with the state, but the cause of action does not arise out of these contacts, jurisdiction may be sustained. But if there is a minimum of contacts, and the cause of action arises out of the contacts, it will normally be fair and reasonable to sustain jurisdiction. If there is a minimum of contacts and the cause of action does not arise out of the contacts, there will normally be no basis of jurisdiction, since it is difficult to establish the factors necessary to meet the fair and reasonable test.’
“ ‘2. J. Moore, Federal Practice, Para. 4.25, pp. 4-258 through 4-267 (2d Ed.1982).’
435 So.2d at 1201.
“Where, as here, there is a minimum of contacts, and the cause of action arises out of the contacts, we consider the quality and nature of the activity in this state in order to determine whether maintenance of the suit will offend ‘traditional notions of fair play and substantial justice.’ Williams v. Barrington Ford, 402 So.2d 903 (Ala.1981). Also relevant are the foreseeability by the defendant of being sued in Alabama as a result of his activity in this state and the level of inconvenience to the defendant in defending the suit.”

445 So.2d at 565 (Ala.1984) (emphasis added in Cagle).

We also find that the principle of Calder v. Jones, supra, is applicable, and conclude that the court erred in dismissing the cause as to defendants Mattingly, Inlow, Tipton, Martindale, and Gaines.

On the basis of the authorities cited, we hold that the defendants Mattingly, Inlow, Tipton, Martindale, and Gaines were subject to personal jurisdiction of an Alabama court and that the defendants Duncan and Chapman were not. We, therefore, affirm, in part, and reverse, in part, the action of the trial court, and remand the cause to the circuit court.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.

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


author: PER CURIAM.

text:
    AMOCO PRODUCTION COMPANY, et al. v. James WHITE, as Commissioner of Revenue of the State of Alabama, et al.
    83-131.
    Supreme Court of Alabama.
    June 29, 1984.

      G. Sage Lyons and J.P. Courtney III, of Lyons, Pipes & Cook, Mobile, for appellants.
    Charles A. Graddick, Atty. Gen., B. Frank Loeb, Chief Counsel, and John J. Breckenridge, Asst. Counsel, Dept, of Revenue, and Asst. Attys. Gen., for appellee Com’r of Revenue.
    Norborne C. Stone, Jr. of Stone, Partin, Granade & Crosby, Bay Minette, for appel-lee The Baldwin County Com’n.
   PER CURIAM.

This appeal involves the constitutionality of the Baldwin County Severance Tax Act, a local act, which provides:

“In addition to the state privilege tax levied upon persons engaging in the business of producing or severing oil or gas or other hydrocarbons from the soil or waters of this state pursuant to Act No. 2, H. 47, approved May 19, 1945 Gen. Acts 1945, p. 20, there is hereby levied, and to be collected as hereinafter provided, annual privilege taxes upon every person engaging or continuing to engage within Baldwin County, Alabama, in the business of producing or severing oil or gas as defined herein, from the soil or the waters, or from beneath the soil or the waters of said county for sale, transport, storage, profit, or for use. The amount of such tax shall be measured at the rate of one per cent of the gross value of said oil or gas at the point of production.”

1971 Ala.Acts, No. 2120, § 2(a).

At the time the House and Senate passed this local act, a general act existed which provided for “annual privilege taxes upon every person engaging or continuing to engage within the State of Alabama in the business of producing or severing oil or gas.” 1945 Ala.Acts, No. 2, § 2(a). The general act, as amended, is now found at § 40-20-2, et seq., Alabama Code 1975. A 1971 amendment to the 1945 general severance tax act increased the tax rate and, in addition, mandated that “[a] county ... shall not establish, levy, impose or collect as a condition of doing business or otherwise, any tax ... with respect to the production ... of any oil or gas produced in the State of Alabama and on which severance taxes have been paid to the State of Alabama.” 1971 Ala.Acts, No. 2057 § 2(c). This amendment was passed by the House and Senate before the passage of the Baldwin County Severance Tax Act.

Appellants, five companies engaged in the business of producing oil in Baldwin County, Alabama, challenge the constitutionality of the Baldwin County Severance Tax Act. These oil companies filed suit seeking a judgment declaring that the act is unconstitutional and seeking a refund of all taxes paid pursuant to the act. The trial court granted summary judgment in favor of the Commissioner of Revenue and the Baldwin County Commission. The oil companies appeal from this final judgment. We affirm.

Appellants contend that the Baldwin County act is unconstitutional under Article IV, § 105, of the 1901 Alabama Constitution, which states, in pertinent part: “No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law....” They submit that the Baldwin County act was passed in violation of § 105 because there was already a general oil severance tax act in existence.

Before we address this issue directly, we must consider appellants’ argument that it has been decided conclusively in a prior lawsuit. The earlier lawsuit involved the Choctaw County Severance Tax Act, 1971 Ala.Acts, No. 2119, which provided for an oil severance tax in Choctaw County. This local act was passed by both houses after the passage of the 1971 amendment to the General Severance Tax Act of 1945. The Choctaw County act was challenged by two companies producing oil in that county who were liable for the local and state severance taxes. They sought to have the Choctaw County act struck down, alleging that: (1) the act, as passed, was in conflict with the advertisement of the act, the Legislative Journal description of the act, and the summary of the act; (2) the act was pre-empted by the passage of the amendment to the general oil severance tax act; (3) the act created an unreasonable classification for tax purposes; and (4) the act was unconstitutionally vague. The Circuit Court of Choctaw County in 1972, after an ore tenus hearing, held that “Act No. 2119 [Choctaw County Severance Tax Act] is unconstitutional, invalid and unenforceable.” Pruett and Hughes Co. v. Charles Boswell, as Commissioner of Revenue of the State of Alabama, No. 1115-A (Circuit Court of Choctaw County, July 13, 1972) (unpublished).

Appellants contend that the Baldwin County act and the Choctaw County act are essentially identical in pertinent part, and therefore that the judgment of the Circuit Court of Choctaw County precludes litigation of the issue now before us. We disagree.

“Collateral estoppel operates where the subsequent suit between the same parties is not on the same cause of action. Requirements for collateral estop-pel to operate are (1) issue identical to one involved in previous suit; (2) issue actually litigated in prior action; and (3) resolution of the issue was necessary to the prior judgment. Stevenson v. International Paper Co., [516 F.2d 103 (5th Cir.1975)]. If these elements are present, the prior judgment is conclusive as to those issues actually determined in the prior suit. Gulf American Fire & Casualty Co. v. Johnson, 282 Ala. 73, 209 So.2d 212 (1968).”

Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1199 (Ala.1978).

We hold that the judgment of the Choctaw County Circuit Court does not bar the present litigation of the constitutionality of the Baldwin County Severance Tax Act. First, the issues are not identical, because the two acts are not identical. Second, the Choctaw County Circuit Court decreed only that the Choctaw County act was “unconstitutional, invalid and unenforceable.” It did not state the grounds of its decision. Any of the four grounds alleged by the oil companies in Choctaw County could have supported the judgment, without any determination of the remaining grounds. Thus, we cannot say what issue was actually resolved in the Choctaw County case. It follows, therefore, that the third requirement, that the resolution of the same issue was necessary to the prior judgment, is not met either.

To reiterate, appellants contend that the Baldwin County act is unconstitutional under Article IV, § 105, of the 1901 Constitution. They urge us to apply the holding of Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978), to this case. In Ped-dycoart, this Court held that “the presence of a general law upon a given subject ... is primary, and means that a local law cannot be passed upon that subject.” (Emphasis in original.) Peddycoart v. City of Birmingham, 354 So.2d at 813. However, the holding in Peddycoart is expressly applicable only to legislation enacted after that decision. Peddycoart v. City of Birmingham, 354 So.2d at 814. The Baldwin County act was passed seven years before Ped-dycoart was handed down and, hence, is not controlled by it.

Under pr^-Peddycoart decisions, local legislation is not prohibited merely because there is already a general law dealing with the same subject. Drummond Co. v. Boswell, 846 So.2d 955 (Ala.1977). Instead, the test under § 105 for legislation passed pri- or to Peddycoart is whether “the object of the local law is to accomplish an end not substantially provided for and effectuated by a general law, notwithstanding there is a general law dealing with the subject or system affected by the local law.” Polytinsky v. Wilhite, 211 Ala. 94, 95, 99 So. 848, 844 (1924), cited in Yancey & Yancey Construction Co. v. DeKalb County Commission, 361 So.2d 4, 5 (Ala.1978), and Drummond Co. v. Boswell, 346 So.2d at 957.

The question, then, is whether the Baldwin County Severance Tax Act “accomplishes an end not substantially provided for and effectuated by” the 1945 general act, as amended. We hold that it does.

In Standard Oil Co. of Kentucky v. Limestone County, 220 Ala. 231, 124 So. 523 (1929), this Court held that a local act levying a gallonage tax only in Limestone County was not enacted in violation of § 105. A general law providing for a gal-lonage tax was in existence at the time of the passage of the local act. This Court wrote:

“Section 105, above, has been often considered by this court. Suffice to say it is fully settled that this section does not forbid local legislation on subjects not prohibited by section 104, merely because a general law deals with the same matter. If, in the judgment of the Legislature, local needs demand additional or supplemental laws substantially different from the general law, the Legislature has power to so enact. Courts are charged with the duty to determine whether there is a substantial difference between the general and the local law, but cannot invade the legislative domain to determine whether a county should have a local law substantially different and in addition to the state law. State v. Bowles, 217 Ala. 458, 116 So. 662, and authorities collected on page 461 (116 So. 664).
“Certainly the 3-eent gallonage tax in the Limestone County Act is not the same tax levied by the general law. It is an additional tax.”

Standard Oil Co. of Kentucky v. Limestone County, 220 Ala. at 235-36, 124 So. at 526.

The same conclusion was made in the coal severance tax cases. Yancey & Yancey Construction Co. v. DeKalb County Commission, supra; Drummond Co. v. Boswell, supra. Local acts were passed that levied a privilege tax upon persons severing coal within the county, which was in addition to all other state severance taxes. These local acts were held to be substantially different from the general act, Title 51, § 431 (now Ala.Code 1975, § 40-13-9), which levied a severance tax on persons severing coal in Alabama, because the local acts levied a tax different from that levied by the general act.

Such is the case here. The Baldwin County act expressly provides for the levy of a tax which is “in addition to the state privilege tax.” It is not the same tax that is levied under the 1945 act, as amended. It is an additional tax. Furthermore, the Baldwin County act is not in conflict with the general law. It does not repeal or change the general law as applied to Baldwin County; it merely makes provisions for a different tax, which shall be in addition to that levied under the general law.

We, accordingly, hold that the local act is not unconstitutional as having been enacted in violation of Article IV, § 105, of the 1901 Alabama Constitution.

Appellants also argue that the 1971 amendment to the General Severance Tax Act of 1945 repealed the Baldwin County Severance Tax Act. A prior act of the legislature cannot repeal a subsequent act. 1A Sands, Sutherland Statutory Construction § 23.17 (4th ed. 1972). The 1971 amendment was passed before the passage of the Baldwin County act and could not have repealed the local act.

Subsequent to the passage of the Baldwin County act, the Alabama legislature passed three more acts to amend § 40-20-2 (“Levy and amount of tax upon business of producing or severing oil ... ”), the present codification of the 1945 act. 1979 Ala.Acts, No. 79-434; 1980 Ala.Acts, No. 80-708; 1983 Ala.Acts, No. 83-39. Each of these amendments increased the general severance tax rate.

The question then is whether any of these later amendments to the general act repealed the Baldwin County act. The passage of these amendments did not repeal the Baldwin County act unless repeal is provided for by express words or arises by necessary implication. Vaughan v. Moore, 379 So.2d 1240 (Ala.1979).

None of the recent amendments contains an express provision for the repeal of the Baldwin County act. Repeal by implication is not favored and results only when the two laws are repugnant or are in conflict. Fletcher v. Tuscaloosa Federal Savings and Loan Association, 294 Ala. 173, 314 So.2d 51 (1975).

There is no conflict between the local act and the amendments; they are complementary.

We hold that the Baldwin County Severance Tax Act has not been repealed by the 1971 amendment to the act of 1945, nor by the later amendments to § 40-20-2 of the Alabama Code.

The trial court correctly granted the motion for summary judgment of the Commissioner of Revenue and the Baldwin County Commission, and we, accordingly, affirm the judgment.

AFFIRMED.

MADDOX, JONES, SHORES, BEATTY and ADAMS, JJ., concur.


author: ALMON, Justice.

text:
    MT. GILEAD CHURCH CEMETERY v. Lottie WOODHAM and Frankie W. Johnson.
    82-794.
    Supreme Court of Alabama.
    June 1, 1984.

      E.C. Orme and Joseph E. Faulk, Troy, for appellant.
    John B. Crawley, Troy, for appellees.
   ALMON, Justice.

Lottie Woodham and her daughter Frankie W. Johnson filed a complaint against Mt. Gilead Church Cemetery, a corporation, and against the trustees of the corporation. The complaint included a count in trespass, a bill to quiet title, and a count in ejectment. The trial court ruled for the plaintiffs.

In 1893, J.J. Herndon and his wife Kitty Ann Herndon deeded to “Mt. Gilead Church and their successors of the Primitive Baptist faith and order” a described parcel of land comprising “four acres more or less.” The deed included the following condition: “It is expressly agreed that if the said Mt. Gilead Church should cease to exist as a church of the Primitive Baptist faith and order, the said lot of land shall revert back to original tract.”

The Woodhams claim to own the land by virtue of a deed from S.M. Powell and wife, Mattie Powell, to Mrs. Woodham and her husband, dated January 15, 1936. This deed conveyed 241 acres, including the northeast quarter of the southwest quarter, less fourteen acres on the east side, of Section 25, T. 11, R. 20. The church property lies in this quarter-quarter section. Old highway 231 runs in a north-south direction in the eastern part of the quarter-quarter. The church property lies on the west side of the road. See Appendix A.

Mrs. Woodham moved onto the property near the old church in 1929. She and her husband began paying Mr. Powell for the property about this time. In January 1932, the Mt. Gilead Church was destroyed in a storm. Mr. Powell used some of the lumber and gave the rest of it to the Wood-hams. Mrs. Woodham testified that the building had not been used for church services since she first moved into the area in 1927.

There was, however, a cemetery on the church property, and people were occasionally buried there up until the current controversy arose. The Woodhams cut timber from the church property, except in the immediate area of the graves. In 1979, they had the area cleared for planting pine trees. In 1980, some fifteen or twenty individuals, most of them with relatives in the cemetery, held meetings at the cemetery, removed the trees planted by, and a fence erected by, the Woodhams, and formed the Mt. Gilead Church Cemetery corporation. The Woodhams instituted the instant lawsuit.

The defendants argue that the cemetery was an integral part of the church and thus that the title conveyed to the Mt. Gilead Church continues in existence. We find no merit to this argument. The deed to the church mentioned only a church, not a cemetery. Moreover, defendants’ exhibit showing dates of burials shows only one between 1923 and 1960. Several took place in the 1960’s and 1970’s, but the testimony indicated that these were not Primitive Baptist funerals, and none of the defendant trustees who testified were Primitive Baptists.

The allegations of the complaint in the count denominated “Bill to Quiet Title” are decisive in the resolution of this appeal:

“9. The plaintiffs are the owners of and in the peaceful possession of the [church] property described [by reference to the iron pins — see footnote 1],
“10. The defendant claims, or is reputed to own the said lands or a part thereof, or an interest therein by virtue of the quitclaim deed attached as Exhibit D to this complaint.
“11. There is no suit pending to enforce or test the validity of the defendant’s title or claim to or upon the said lands.
“WHEREFORE, the plaintiffs pray that the defendant be required to set forth and specify [its] title, claim, interest, or encumbrance, and by what instrument the same is derived and created and that upon a hearing of this cause, the plaintiffs’ title to said lands be quieted.”

This language precisely tracks the requirements for an in personam bill to quiet title found at Code 1975, §§ 6-6-540 and -541:

“§ 6-6-540. Right of action to settle title to lands by person in peaceable possession thereof.
“When any person is in peaceable possession of lands, whether actual or constructive, claiming to own the same, ... and his title thereto, or any part thereof, is denied or disputed or any other person claims or is reputed to own the same, ... and no action is pending to enforce or test the validity of such title, claim or encumbrance, such person ... so in possession, may commence an action to settle the title to such lands and to clear up all doubts or disputes concerning the same.”
“§ 6-6-541. Contents of complaint.
“The complaint authorized by section 6-6-540 must describe the lands with certainty, must allege the possession and ownership of the plaintiff and that the defendant claims, or is reputed to claim, some right, title or interest in, or encumbrance upon, such lands and must call upon him to set forth and specify his title, claim, interest or encumbrance and how and by what instrument the same is derived and created.”

A suit to quiet title under these Code sections requires peaceable possession and a claim of title, not actual ownership. Standard Contractors Supply Co. v. Scotch, 247 Ala. 517, 25 So.2d 257 (1946). Isolated acts by the defendant, indicating possession but not amounting to interference with plaintiff’s peaceable possession, do not defeat plaintiffs claim. Denson v. Gibson, 392 So.2d 523 (Ala.1980); Adams v. Bethany Church, 380 So.2d 788 (Ala. 1980).

Mrs. Woodham testified that she had always regarded all of the land west of old highway 231 to be hers, and that the fourteen acres excepted from her deed was the land east of the road. Indeed, the trial court held that the property had been assessed to the Woodhams since 1937, and the property tax records reflected the exclusion of fourteen acres on the east side of the quarter-quarter section. Both peaceable possession and claim of title are indicated by the evidence that the Powells and Woodhams appropriated the lumber from the storm-damaged church and the evidence that the Woodhams cut timber from the land over the years, including large-scale operations and plantings shortly before the suit was brought. It is the character of possession at the time suit is commenced which is decisive, Denson v. Gibson, supra, but the Woodhams’ possession continued at least up to the time suit was filed.

The question of the fourteen acres exempted from the Woodhams’ deed is significant, however. In 1894, J.J. Herndon and his wife deeded the following property to their son Winston:

“NEV4 of SWV4 Sec. 25 T. 11 R. 20 Less 15 acres 10 acres of which was sold to W.J. Chancey which lot or part lies on the East side of Troy and Orion Road [old highway 231], 5 acres of which was deeded to Mt. Gilead Church and for Burying Ground on West side of said Road .... ”

The Woodhams’ chain of title was not introduced into evidence. If it traces to this deed, the fourteen acres excluded from their deed may well have included the church property. They do, however, “claim to own” the land sufficiently for purposes of this action.

The fee simple determinable conveyed to Mt. Gilead Church left a possibility of reverter in J.J. Herndon. Burby, Real Property, § 170 (2d ed. 1954). Upon the expiration of the church, the property reverted to J.J. Herndon’s heirs. On June 2, 1980, George W. Herndon and his wife executed a deed to the trustees of the cemetery corporation. Although George Herndon testified that he was J.J. Hern-don’s grandson, defendants put on no evidence regarding J.J. Herndon’s heirs, so they have not “specified and set forth the title” which they might claim under the quitclaim deed. Code 1975, § 6-6-542.

Although the quitclaim deed was included as an exhibit to the complaint and mentioned (but not introduced) at trial, it was not the basis on which defendants sought to establish title so as to defeat the Wood-hams’ quiet title action. They proceeded on the theory that the continued, though occasional, burial of people in the cemetery was a continuation of the purpose for which J.J. Herndon deeded the land to the Mt. Gilead Church and that the defendant corporation was the successor in interest to the church. The trial court correctly held that the church ceased to exist at least by 1932 and that title then reverted out of the church.

The trial court held that title to the church property “rests in the Plaintiffs and not the Defendants.” This judgment does not precisely follow the form specified in Code 1975, § 6-6-543, which says that the trial court shall

“finally adjudge whether the defendant has any right, title or interest in, or encumbrance upon, such lands ... and such judgment is binding and conclusive upon all the parties to the action.”

We point this out only to note that the judgment is binding only against the defendant corporation and its trustees. By the nature of the action, absolute judgment that title rests in the plaintiffs should not be entered. The judgment is not res judi-cata against, for example, the heirs of J.J. Herndon. The judgment should be modified to read that defendants have no right, title, or interest in the property.

Defendants raise other assertions of error concerning the trespass and ejectment aspects of the judgment, but we pretermit discussion of these because the above disposes of the merits of the action. The trial court’s judgment is affirmed as modified.

AFFIRMED AS MODIFIED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.

      . The lot was described with a pine tree as the point of beginning. At some point iron pins were placed which at least approximated the corners of the lot described in the deed to Mt. Gilead Church, but the land bounded by these pins comprises five acres. In most cases, we shall refer to this four- or five-acre lot as "the church property.”