author: HARRIS, Presiding Judge.

text:
    Larry GOLSTON v. STATE.
    6 Div. 289.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.
    Mark B. Poison, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and sentenced to twelve years in the penitentiary. Throughout the trial in the lower court he was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads:

“The grand jury of said county charge that, before the finding of this indictment, Larry Golston, whose name is otherwise unknown to the grand jury, feloni-ously took one Pontiac Tempest automobile of the value of two thousand and three hundred dollars and one 25 automatic Titan pistol of the value of seventy five dollars, the personal property of Virginia Vann, from her person and against her will, by violence to her person or by putting her in such fear- as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

Some facts are undisputed and others are in sharp conflict. Around one o’clock of the afternoon of July 11,1975, the victim of the robbery drove a friend, Mrs. Pam Powell, and her young son, to the Fairmont Foundry to pick up a house key from Mrs. Powell’s husband who was an employee of the Foundry. While Mrs. Powell went inside the Foundry to get the key, Mrs. Vann and the Powell boy waited in the automobile. While waiting Mrs. Vann saw four black males enter the front door of the Foundry. Shortly thereafter Mrs. Vann saw one of the black men emerge from the building and disappear. Then suddenly the other three black men surrounded her car. One of these men who was later identified as appellant approached the driver’s side of Mrs. Vann’s car and tried to open the door which was locked. Appellant pointed the gun straight in the face of Mrs. Vann and demanded that she surrender her car to him. She told him he could not have her car. At this time one of the other men pulled a gun on Mrs. Vann and demanded the car. Mrs. Vann told the bandits they could have the car but they could not carry the boy. Appellant protested and Mrs. Vann got out the car and was going to get the boy from the back seat. In the meantime the third black man was entering the back seat to keep Mrs. Vann from getting the boy. A tussle ensued and appellant told the man in the back seat to drop the boy and he threw the boy from the car. Mrs. Vann picked up the boy and ran into the Foundry as the men drove away with her car. Appellant was driving and the bandits abandoned the car in some woods a short distance from the Foundry. A search of the automobile revealed that Mrs. Vann’s pistol had been removed from under the front seat of her car.

Later Mrs. Vann positively identified appellant at a lineup as the robber who first pointed the pistol at her and demanded the car. She also made a positive in-court identification of appellant and testified that she could not be mistaken in her identification of appellant as she got a face to face look at him in close quarters and in broad daylight at the time he pointed the pistol at her.

Mr. Bill Powell testified that he was an employee of the Fairmont Foundry and that appellant and three other black men robbed the Foundry at the time Mrs. Powell was inside attempting to get the key from her husband. Around $3900.00 was taken from the office of the Foundry and the robbers took $52.00 from Mr. Powell’s billfold. Mr. Powell also identified appellant at a lineup as one of the bandits. He, too, made a positive in-court identification of appellant.

Appellant testified in his behalf and denied that he participated in the robbery of Mrs. Vann. He claimed that he was at another place at the time of the robbery. At trial, Lou Ray Driver, a convicted murderer and bank robber, and Charles Tillman, both testified that they participated in the Vann and Foundry robberies but that appellant was not involved.

Appellant claims that he was denied due process and the right to counsel of his own choice when the trial court refused a continuance so that retained counsel could adequately prepare his defense.

From the record:

“MR. POLSON: Yes, sir. It comes to my attention from talking to the defendant and from talking with the defendant’s wife that they don’t wish me to serve as counsel for this case. We have discussed this out in chambers. They are under the impression that they had hired Mr. Dunn to handle the case, and apparently this is not the circumstances from talking with Mr. Dunn. Maybe the defendant would want to say something.
“THE COURT: Let me say something. This case has been on the docket since September, 1975. I know personally of at least two habeas corpus petitions Mr. Dunn has filed on behalf of this defendant, maybe more, in which he has consistently advised the Court, other Courts not this one, but other Courts, that he did not represent this defendant in this case. No one has ever mentioned the fact that you did not represent the defendant in this case at any time other than right now when this case is sent out for trial. Now, Mr. Dunn has just again informed me awhile ago — he informed me just now that he does not represent the defendant. So far as I’m concerned, either you or Mr. Dunn is going to try this case today.
“MR. POLSON: Your Honor, I’m ready to try the case. The defendant, however, does not wish me to serve as his attorney. He wants to hire Mr. Dunn to act on his behalf. Just for the record, I’m ready for trial. I’m here and ready. However, it is the defendant’s wish that Mr. Dunn represent him and that I not represent him.
“THE COURT: Again, I’ll state again for the record that Mr. Dunn has told probably every judge in the courthouse that he does not represent this defendant, that is up until this morning, in which case he wished for a continuance which I denied and I’m going to deny. I don’t think that after nine months that the defendant can come up and occasion a continuance by saying he doesn’t want a particular lawyer to represent him, and I’m not going to so hold in this case.”

The record shows that appellant was represented by at least three different attorneys in various proceedings relating to the robbery charge against him. He retained Mr. Charles Dunn in October of 1975. Mr. David Webster was appointed to represent him at arraignment. Trial counsel was appointed to represent him on November 14, 1975 and this was seven months before trial. It was not until the very day of trial that appellant made any complaint about appointed counsel.

In United States v. Sexton, 473 F.2d 512, Fifth Circuit, Chief Judge John R. Brown, writing for the Court held:

“While it cannot be disputed that the Sixth Amendment to the Constitution grants an accused in a criminal prosecution an absolute unqualified right to have the assistance of counsel for his defense, it does not necessarily follow that his right to a particular counsel is absolute and unqualified.”

The Court went on to say:

“Sexton’s freedom of choice of counsel may not be manipulated to subvert the orderly procedure of the Courts or to interfere with the fair administration of justice.”

Finally, in Bowman v. United States, 409 F.2d 225, (5th Cir.) the Court said: “Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay.”

We hold the trial judge did not abuse his discretion in refusing to grant a continuance in this case. Under our system of criminal justice a defendant is entitled to a fair trial but not to a perfect trial. Appellant was ably represented and he had a fair trial.

In the Court’s oral charge the jury was instructed that if they believed the State’s evidence beyond a reasonable doubt and to a moral certainty they could find the defendant guilty of either taking Mrs. Vann’s automobile or the pistol from her car. Appellant claims this was error since the indictment charged robbery of the automobile and the gun. We do not agree.

It is sufficient to prove so much of an indictment as shows that the defendant has committed a substantial offense therein specified. Owens v. State, 291 Ala. 107, 278 So.2d 693; Stone v. State, 55 Ala.App. 663, 318 So.2d 359.

Lastly, appellant contends that the trial court erroneously made comments which tended to demean the credibility of defense witness Charles Tillman.

We quote from the record:

“CROSS-EXAMINATION
“BY MR. BLOCKER:
“Q. Did you plead guilty?
“A. No, I didn’t.
“Q. Have you ever seen Larry Golston before?
“A. No, I haven’t.
“Q. Did you see him at the Fairmont Foundry?
“A. No.
“Q. Were you at the Fairmont Foundry?
“A. Was I at the Fairmont Foundry?
“Q. When it was robbed?
“A. No, I wasn’t.
“THE COURT: You were innocent, too.
“MR. POLSON: Your Honor, I want to make a motion.
“THE COURT: I’m just saying — he’s saying he’s innocent. Ladies and gentlemen, I didn’t mean anything by that.
“MR. POLSON: We still object to it, and I move for a mistrial on those grounds.
“THE COURT: Overrule. Let me say this: Ladies and gentlemen, I’m just asking. I want to make it clear he was contending he was not there, and that’s what I wanted to clear up.”

The Court made it clear to the jury that he was only clarifying Tillman’s testimony and that nothing more was intended by his question. In the light of the Court’s explanation we find no reversible error. Smith v. State, 57 Ala.App. 151, 326 So.2d 680, certiorari denied, 295 Ala. 419, 326 So.2d 686; Johnston v. City of Birmingham, Ala.Cr.App., 338 So.2d 7.

A careful examination of the entire record fails to reveal any errors which injuriously affected the substantial rights of appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte Larry GOLSTON.
    77-360.
    Supreme Court of Alabama.
    April 28, 1978.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Arthur Brennan MALLOY, II v. STATE.
    1 Div. 819.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.

      Ian F. Gaston, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of forgery in the first degree and the Court sentenced him to four years imprisonment in the penitentiary. He was represented by Court-appointed counsel and at arraignment he waived the reading of the indictment and pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. New counsel was appointed to represent him on this appeal.

The evidence presented by the State is undisputed. Appellant did not testify nor did he offer any evidence in his behalf.

The sufficiency of the evidence is not presented for review. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; no exceptions were reserved to the oral charge of the Court, and there were no adverse rulings on the admission or exclusion of any evidence which contained any merit. No motion was made to quash the indictment on the ground of invidious racial discrimination in the selection of the venire for the grand and petit jury prior to the trial in chief.

Appellant’s new counsel, appointed to represent him on appeal, did file a motion for a new trial, alleging that the jury rolls from which the grand jury which indicted appellant and the petit jury which convicted him were “unconstitutionally constituted” in that blacks were systematically excluded therefrom. Following several special continuances and a hearing on this motion the motion for a new trial was denied. More will be said about this motion later in this opinion.

The testimony presented by the State on the trial in chief tended to show that prior to July 5,1975, the ILA Local 1410 building in Mobile, Alabama was broken into and a checkbook containing the Local’s checks together with a check writing machine were taken. The break-in was reported to the Police Department, the local banks and the Mobile Check Exchange. Some time after July 5, 1975 appellant presented one of the stolen ILA Local’s checks for cashing at the Mobile Check Exchange. The Exchange had been notified to be on the alert for the presentation of the Local’s checks for cashing and advised that all checks belonging to the Local required the signature of three officers of the Local to be authentic. The three officers were Ison Clemmon, Sennor Irby and Raif Daniels.

Appellant presented one of the stolen checks to Ms. Loraine Brown at the Mobile Check Exchange and she immediately advised her supervisor who told her to stall appellant by asking for some identification. Appellant presented Ms. Brown with a driver’s license in the name of Wilson Paige III. The check bore only the signature of Ison Clemmon, and Mr. Clemmon testified that what purported to be his signature was not his true signature but was a forgery.

Ms. Brown’s Supervisor, Mr. J. B. Ward, came out of the back office with a pistol and confronted appellant who started begging Mr. Ward not to shoot him. Mr. Ward informed appellant that he was not going to shoot him and told him to sit in á chair near the door. Appellant started toward the chair and decided it was best for him to depart the premises. He ran out the door and in his haste to escape he ran into a post supporting a part of the building and knocked it down. As appellant was getting up from a prostrate position, Mr. Ward almost caught him but appellant eluded Mr. Ward and Mr. Ward told him to halt and fired a shot in the ground. In the words of Mr. Ward, “I almost caught him before he got back up and when he did get up he was in super duper high gear and as he got around the next dip right into the arms of the police.”

It developed during the trial that there was, indeed, a Wilson Paige III but he had been committed to Searcy Mental Hospital in June of 1975. Before he was committed someone broke into his house and stole his billfold in which he had his driver’s license. The father of Wilson Paige III testified that the endorsement on the back of the check was not the signature of his son. He identified his son’s signature on the driver’s license and it was introduced into evidence. The facts in this case point unequivocally to the guilt of appellant.

We turn now to a consideration of the issues raised by appellant in his motion for a new trial. In pertinent part appellant alleges:

“3. That the Grand Jury which returned the present indictment herein was unconstitutionally drawn in that blacks were systematically excluded thereon.
“4. That the venire from which his petit jury was selected was unconstitutionally drawn in that blacks were systematically excluded therefrom.
“5. That the fact that both his Grand Jury and petit jury were constitutionally infirm was unknown to the Defendant prior to the time of trial and could not have been known to him through the exercise of due diligence.”

At a hearing on the motion for new trial, Mary T. McCord testified that she was Chief Clerk of the Mobile County Jury Commission. She stated that in 1973 there were approximately 28,000 names on the County jury roll. This number was reduced to 24,000 or 25,000 by December of 1975.

Mrs. McCord stated that she was familiar with the 1973 opinion of Preston v. Mandeville, 479 F.2d 127 (5th Cir. 1973), in which the Court of Appeals held that the jury rolls of Mobile County were invalidly compiled, resulting in systematic exclusion of blacks from the rolls. That opinion also ordered the implementation of steps to correct the defects in the selection process.

Appellant introduced the Mandeville opinion into evidence and it is part of this record. He also introduced an order, dated December 16, 1975, from the United States District Court for the Southern District of Alabama. This order, signed by Judge W. B. Hand, states that the jury rolls of Mobile County should be filled in accordance with provisions in a letter from George M. Callahan, Director of Mobile County Data Processing to Maury Friedlander, Attorney for Mobile County. This letter was written January 23, 1975. Judge Hand’s order further states that the Callahan letter is on file in the records of the Federal District Court for the Southern District of Alabama.

Mrs. McCord testified that, although she was familiar with the District Court order, she did not receive a copy of it before January of 1977. Mrs. McCord further stated that the Grand Jury which indicted appellant and the Petit Jury which convicted him were drawn from the jury rolls which were not in compliance with the orders of the Circuit Court of Appeals and the District Court.

Since 1975, Mrs. McCord stated, no new names had been added to the rolls until a consent decree was filed on April 15, 1977. This decree is signed by James S. Ward, Assistant Attorney General for the State of Alabama. It states in part, “The parties (Preston, et al., Mandeville) hereby acknowledge and agree that the jury list presently being used in Mobile County, Alabama, shall no longer be used for the selection of juries.” This decree was introduced into evidence by appellant at the hearing on motion for new trial.

Appellant then testified that he was not aware of any defect in the manner in which the jury rolls were compiled in Mobile County at the time he was indicted and tried.

Appellant’s motion for new trial was denied.

In support of his contention that his motion for new trial was erroneously denied, appellant relies solely on Williams v. State, Ala., 342 So.2d 1328. We think that this reliance is misplaced.

Williams announces a rule of procedure for the preservation for appellate review adverse rulings on jury composition. The Supreme Court of Alabama in Williams v. State, 342 So.2d 1328 held:

“We state the rule thusly: A motion challenging the composition of a grand jury, a petit jury, or qualifications of individual jurors, filed after the commencement of trial, must allege, and proof must show, that grounds for the motion were not known to the defendant before he went to trial, or that he could not have known them by exercising due diligence.”

This, appellant failed to do.

The Supreme Court based its ruling on Higdon v. State, 20 Ala.App. 649, 104 So. 913. There the Court of Appeals held:

“ ‘If the defendant or his attorney knew about the matter of drawing the jury, or, by the exercise of due diligence, could have ascertained the facts, he cannot for the first time raise the question [of improperly drawn venire] by motion for a new trial.’ ” (Emphasis added).

Appellant, in his reading of Williams, supra, has overlooked the important factor that representation by counsel has on this question. He cannot satisfy the procedure rule of Williams by testifying that he, alone, was unaware of the defect in the compilation of the jury rolls.

The decision in Preston v. Mandeville, supra, was announced in 1973. Judge Hand’s court order was issued in 1975. Available at that time in the records of the District Court for the Southern District of Alabama were letters setting forth proposals for correction of the defectively compiled jury rolls. This preceding fact was set out in Judge Hand’s order of December 16, 1975. Finally, the Alabama Supreme Court’s pronouncement of a new rule governing this matter was made on February 25, 1977, a month before appellant was tried. Through “due diligence” these facts could have been discovered. This Court has also reiterated the rule set forth in Williams in Manson v. State, Ala.Cr.App., 349 So.2d 67.

It is inconceivable that appellant’s trial counsel, who is widely known as an experienced trial lawyer, did not know of the previous decisions and orders concerning the composition of the jury roll and the jury box of Mobile County. Failing to file a motion to quash the jury venire prior to trial could well have been trial strategy. He gambled and speculated on the verdict of the jury thinking, perhaps, this issue could be raised later and he could get a new trial.

Thus, we hold that appellant, by failing to raise proper objection to the composition of the grand' and petit juries prior to trial of the case constituted a waiver of his right to do so, and he cannot now be heard to complain.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Arthur Brennan MALLOY, II.
    77-402.
    Supreme Court of Alabama.
    April 28, 1978.
   SHORES, Justice.

Writ Denied.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    George T. CLARK v. CITY OF MOBILE.
    1 Div. 843.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing. Denied March 7, 1978.

      Thomas M. Haas and Chris N. Galanos, Mobile, for appellant.
    John L. Lawler, Mobile, for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted and fined for petit larceny in violation of a Mobile city ordinance in the Municipal Court of Mobile. From this conviction, appellant received a trial de novo in the Mobile County Circuit Court. Appellant entered a plea of not guilty and represented himself throughout the proceedings. Following a trial before a jury, appellant was found guilty of petit larceny and fined $25.00. In addition, the trial judge imposed four days jail time. No jail time was imposed in the Municipal Court.

Appellant contends now that the trial judge erroneously allowed him to represent himself in that the judge did not ascertain whether or not appellant’s waiver of counsel was knowing and intelligent.

Before the appellant’s trial began, the following occurred.

From the record:

“THE COURT: You are George T. Clark?
“DEFENDANT: Yes, sir.
“THE COURT: How old are you, Mr. Clark?
“DEFENDANT: Thirty-seven.
“THE COURT: You are charged with a City complaint; the City says that you did unlawfully take and carry away one magic marker Hi-light of the value of twenty-five cents, the personal property of Montgomery Ward; that charges the violation known as petit larceny. Do you have an attorney?
“DEFENDANT: I do not have an attorney.
“THE COURT: Are you employed?
“DEFENDANT: Not employed at the present.
“THE COURT: You’re a man of some considerable means, though; aren’t you? In other—
“DEFENDANT: I have money to take care of my bills at the present, Your Honor.
“THE COURT: In other words, you from time to time have employed attorneys, have you?
“DEFENDANT: Very definitely.
“THE COURT: And you did have Mr. Alidor, but I believe you told Mr. Alidor that you could handle your jury case as well as — well, maybe satisfactorily anyway, did you?
“DEFENDANT: I told him I would get by; I’m sure I’ll make many mistakes and errors. If the Court will bear with me, I’ll try to do the best I—
“THE COURT: You are not applying to this Court as being, say, an indigent person; are you?
“DEFENDANT: No, I’m not.
“THE COURT: All right. Now, do you realize that if you were convicted of this offense — do you realize that this City Ordinance would carry with it a punishment; that a jury could impose a fine of up to $200.00; and do you realize that this Court if it saw fit, in addition to anything the jury did, could impose confinement in the City Jail of up to thirty days?
“DEFENDANT: Yes, I realize that?
“THE COURT: You realize that?
“DEFENDANT: Yes, sir.
“THE COURT: And you are willing to submit your case to a jury and handle it yourself?
“DEFENDANT: Yes, sir.
“THE COURT: All right. Now to this charge of petit larceny, how do you plead — guilty or not guilty?
“DEFENDANT: Not guilty.
“THE COURT: All right. And I believe you have asked for a trial by jury?
“DEFENDANT: Yes, sir.”

It is undeniable that the State cannot force a lawyer upon a defendant in a criminal trial, where the defendant has voluntarily and intelligently elected to proceed without counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562; Beckley v. State, Ala.Crim.App., 333 So.2d 875. However, in order to competently choose self-representation, the defendant should be “made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268.

We think that the record supports a finding that appellant knowingly and willingly waived his right to be represented by counsel. This case presents a factual situation very close to that of King v. State, 55 Ala.App. 306, 314 So.2d 908, cert. denied 294 Ala. 762, 314 So.2d 912.

There, the defendant contended that the record must show accused was offered counsel but intelligently and understanding^ rejected the offer. This Court stated:

“The question is not whether the trial judge adhered to a specific procedure but whether accused was competent to exercise an intelligent, informed judgment. United States v. McGee, 7 Cir., 242 F.2d 520.” King, supra, at 909.

In King, supra, no interrogation of the defendant by the trial judge appeared on the record. However, a knowing and intelligent waiver of counsel was inferred from the record as a whole and from the fact that defendant was not a newcomer to the criminal judicial process.

Mr. Clark stated that he had employed attorneys on previous occasions. He first employed counsel in this case but decided that he did not need his service prior to trial: From his conduct at trial, it can be readily inferred that appellant was familiar with the trial process. He filed a motion to produce, requested a jury trial, cross-examined witnesses, made objections to questions which were sustained, presented evidence, made opening and closing statements, and requested numerous jury instructions, several of which were given. Several times he made reference to the fact that this was a trial “de novo.”

Following conviction appellant filed a motion to dismiss. At this time he was represented by counsel. Appellant stated that he had elected to represent himself at trial.

As this Court stated in King, supra, the problem presented by such a case as this one could constitute a “built-in error.” Had appellant not been allowed to represent himself at the trial below, he could now easily argue that he had been denied his right to do so under Faretta, supra.

Next appellant argues that the trial court erroneously added four days imprisonment to the jury-imposed fine of twenty-five dollars. He argues that there had been no showing of any change of circumstances between conviction in the inferior court and conviction in the circuit court.

Appellant bases his contention on the rule of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. There the Supreme Court of the United States held that violation of due process resulted when a defendant received a greater punishment after having succeeded in obtaining a new trial following conviction. The violation of due process results where no factual data is made of the record in new trial, which serves as a justification for the imposition of the increased sentence.

Appellant correctly interprets Pearce, supra. However, that case is not applicable to the present case on this appeal. Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584, controls the question raised by the appellant.

In Colten, supra, the defendant was charged with a misdemeanor and tried in an inferior court, where he received a fine of ten dollars. Defendant then “appealed” to a court of general criminal jurisdiction by means of a trial de novo. There the defendant was convicted and punishment was a fine of fifty dollars. The United States Supreme Court held that this did not constitute a violation of due process.

Kentucky, as does Alabama, allows a trial de novo as a right as long as the defendant applies within the statutory time. For an explanation of the function and procedure of the trial de novo, see Diane Yarbrough v. City of Birmingham, Ala.Cr.App., 353 So.2d 75, 1977, wherein we said:

“In Guin v. City of Tuscaloosa, 21 Ala.App. 61, 106 So. 64, 66, certiorari denied, 213 Ala. 685, 106 So. 67, the Court held that a ‘trial de novo’ means that the Circuit Court ‘assumes control of the case afresh or anew with all the powers, privileges, duties, responsibilities, and authority that was vested by law in the recorder while the case was pending in said recorder’s court.’ A trial de novo means that the slate is wiped clean and a trial in the Circuit Court is had without any consideration being given to prior proceedings in another Court.
“When a case is appealed to the Circuit Court for a trial de novo the judgment in the Recorder’s Court is only a step toward the jurisdiction of the Circuit Court and such judgment is of no effect if the Circuit Court makes final disposition of the case. The judgment of the Recorder’s Court is reinstated by the Circuit Court only where the appeal is dismissed. Anthony v. City of Birmingham, 240 Ala. 167, 198 So. 449.”

Examining the trial de novo in Kentucky, the United States Supreme Court wrote in Colten, supra:

“Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record or presented in the briefs to show, that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement. Nor are we convinced that defendants convicted in Kentucky’s inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness. The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system.
“We note first the obvious: that the court which conducted Colten’s trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it is not the court that is asked to do over what it thought it had already done correctly.”

The same reasoning readily applies to the case at bar and Alabama’s trial de novo procedure. Thus the imposition of four days jail time in addition to' a fine of twenty-five dollars was not error. See also State v. Royal, 113 N.H. 224, 305 A.2d 676.

Appellant also argues that the Circuit Court never acquired jurisdiction of his case because the City of Mobile failed to file with the Court the original complaint against him. In support of his contention, appellant cites Title 37, Section 587, Code of Alabama 1940, which states in pertinent part:

“When an appeal is taken, as provided for herein, said appeal shall be filed by the city in the court to which said appeal is returnable within sixty [60] days; and if the city shall fail to file said appeal within said time, the city shall be deemed to have abandoned the prosecution of said cause, and the defendant shall not be required to further answer or appear, and the bond shall thereafter be void.”

Further, Title 13, Section 428(1) Code of Alabama 1940 states:

“When an appeal is taken under Section 428 of this title from a conviction in a criminal case tried before a justice [or judge] of the peace or court of like jurisdiction, the justice or judge shall file with the clerk of the court to which the appeal is taken all papers and documents pertaining to the case, within sixty [60] days from the filing of the appeal bond. In the event such papers and documents are not filed within the time allowed by this section, prosecution of the defendant will be deemed to have been dismissed or abandoned, and the defendant discharged.”

This question was resolved in Chaney v. City of Birmingham, 246 Ala. 147, 21 So.2d 263. ' There, in responding to questions certified to them by the Alabama Court of Appeals, the Alabama Supreme Court, through Justice Simpson writing for the full Court, held that a judgment on trial de novo is not rendered void for want of jurisdiction where the original complaint (affidavit) is not in the record. The defendant must demand that the written complaint be given him prior to trial or he waives this right and cannot raise it for the first time on appeal. Jurisdictional recitals in the appeal bond (which is present in the record of this case) give the Court to which the trial de novo “appeal” is taken jurisdiction of the case. Thompson v. City of Huntsville, 57 Ala.App. 607, 329 So.2d 664, cert. denied 295 Ala. 425, 329 So.2d 666.

Here the City Solicitor filed an un-sworn complaint charging appellant with petit larceny. Prior to trial appellant affirmatively agreed to proceed to trial upon the Solicitor’s complaint. This case comes squarely under the facts and law of Chaney, supra. See also Miller v. City of Birmingham, 44 Ala.App. 628, 218 So.2d 281.

Neither can appellant argue that the Solicitor’s complaint does not apprise him of the nature of the charge against him. Chaney, supra; Miller, supra.

The ordinance of the City of Mobile under which appellant was charged and convicted is as follows:

“Sec. 41-59. State Misdemeanors.
“It shall be unlawful for any person to violate within the City or within the police jurisdiction thereof any law of the state, now or hereafter enacted, the violation of which is a misdemeanor under state law.” (Code 1955, Section 36-63.)

We now examine the sufficiency of the evidence which appellant raised by means of a motion for new trial.

Raymond McDade testified that on February 25, 1977, he was employed by Montgomery Ward as a store detective. At approximately 6:30 p. m., McDade stated, he saw appellant pick up a Hi-Lighter marker which was in a plastic package. Appellant ripped open the package and walked behind a “Gondola”, which was a display stand, McDade stated, and began to walk out of that department area. McDade noticed that appellant had his hand in his pocket.

McDade walked over to the spot where he had seen appellant drop something. There he found an empty Hi-Lighter package. McDade followed appellant outside of the store and confronted him. Appellant claimed he did not have the pen.

Appellant and McDade walked back to the display case for the pens. Appellant picked up a yellow magic marker and said that he had left it there. McDade and a policeman escorted appellant back to the security office of the store and McDade told appellant that they were going to search his pockets. Appellant then pulled a Hi-Lighter marker from his rear pants pocket and said that he had brought it into the store to exchange it because it did not write properly. Appellant did not have a receipt and he offered to pay for the pen. McDade stated that the following day appellant came into the store and bought a Hi-Lighter pen. McDade further stated that a piece of plastic wrap from the package was attached to the clasp of the pen recovered from appellant.

Ted Arnett testified that he was Security Manager for Montgomery Ward in Mobile. Arnett testified that he was present on February 26, 1977 at the store when appellant had a conversation with the store manager. Appellant wanted to know if Mong-tomery Ward planned to pursue the matter of the pen “legally.” He did not want to be prosecuted.

Arnett further testified that he later received a call from a man who identified himself as Officer Burrell with the Mobile Police Department. The caller wanted to know “how everything’s going on the George Clark case.” Arnett identified the voice as that of appellant.

Ronald Dunavant and Bill Goodman testified on behalf of appellant. Both testified that they had seen appellant holding a yellow Hi-Lighter before he entered Montgomery Ward. Both also testified that they had seen appellant inquiring at a nearby bookstore whether or not they carried a similar item.

The offense of larceny involves the trespass on the possession of another, and is the felonious taking and carrying away of the personal property of another with the intent to convert it to the taker’s own use. Woods v. State, 57 Ala.App. 1, 325 So.2d 517.

The loss of property by felonious taking may be proved by facts and circumstances as well as by direct and positive evidence. If the evidence affords an inference that larceny has been committed, as it does here, it is sufficient for the jury. Woods, supra. Where there is legal evidence from which the jury can by fair inference find the defendant guilty, the Court of Criminal Appeals has no right to disturb the verdict; whether there is such evidence is a question of law, with the weight and probative value for the jury. Woods v. State, Ala.Cr.App., 344 So.2d 1225; Williams v. State, Ala.Cr.App., 348 So.2d 1142.

This was a strong case of circumstantial evidence. It could be readily inferred by the jury that appellant shoplifted the Hi-Lighter pen.

A careful search of the record reflects no error injuriously affecting the substantial rights of appellant.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte George T. CLARK.
    77-407.
    Supreme Court of Alabama.
    April 28, 1978.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: TYSON, Judge.

text:
    Alfonzo Eugene MANNING v. STATE.
    6 Div. 256.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.
    D. Lee Hodges, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Alfonzo Eugene Manning was charged by indictment with the robbery of Eunice H. McDonald by taking $179.00 from her person, etc. The jury found the appellant guilty as charged and fixed punishment at thirteen years imprisonment. The trial court set sentence accordingly.

Eunice H. McDonald related that she was employed at Grant’s Convenience Store, a quick mart, located at 1224 12th Street West, in Jefferson County, Alabama, on November 10, 1975. She was working the shift from 7:00 in the morning until 3:00 in the afternoon. Shortly after 10:00 that morning she was mopping the floor near the cash register when a black male approached her with a soft drink bottle in hand (R. p. 11):

“Q. Now, in brief, what did this man do?
“A. He got a Coke. He come around. I sat the mop down. I went behind the cash register. I asked did he want the drink opened. He said, yes. I opened it and he gave me a dollar. I started to give him change back. He had a gun on me.”

Mrs. McDonald stated that she handed $179.00 from the cash register to the appellant. She stated that the following day Sergeant Cousins of the Birmingham Police Department brought her nine photographs of black males and that she selected the appellant’s photograph without hesitation and without any suggestion whatever from Sergeant Cousins. She further stated that the appellant was wearing a blue boggan, an overall jumper made of blue jean material, had a mustache, was about five feet nine inches tall, and weighed between 145 and 160 pounds.

Mrs. McDonald further stated that, after taking the proceeds from the cash register, the appellant marched her to the back of the store and locked her in a bathroom. She stated that she began screaming and beating on the door shortly after she heard him leave, and the door was subsequently opened by a man who heard her cries. She stated that she immediately notified the police.

Jerald E. Ash testified that he was a patrol officer for the City of Birmingham, and on December 4, 1975, he stopped a truck that had no “tail lights.” Upon asking the driver for his- license he recognized the name and immediately ran it through NCIC. Officer Ash then placed the appellant under arrest and took him to jail.

The appellant’s motion for a directed verdict was overruled.

Alfonso Eugene Manning stated that he was employed as a truck driver for Reliable Transfer Company in Birmingham in the Fall of 1975. He testified that he had a conviction in Texas in 1960 for larceny of an automobile and an assault in 1961.

Manning related, that on November 10, 1975, he did not go to work that morning because a girl named Issie Nelson, who operated a “shot house” for him, called to say that her son was sick and she could not go to work. Manning then described the “shot house,” located at 2711 2nd Avenue North in Birmingham, which he operated. Manning testified that Leon Robinson, Vernon Johnson, Henry C. Webb, and another fellow called “Shine,” came over on the morning of November 10th, shortly after 9:00 o’clock, and they began a card game called “Georgia Skin.” Manning contended this game went on into the afternoon, and from time to time different individuals came in for a shot or to play craps. He stated that this was on a Monday, and he was at this place until late afternoon. Manning stated that he was earning $125.00 per week as a truck driver and had been on this job for about fourteen years.

Upon being shown several photographs made of the appellant around December 5th or 6th in 1975, Manning stated that he had a full beard at that time and had been wearing such for “about a year.”

Harold Vernon Johnson, Jr., stated that, accompanied by Henry C. Webb, he went to 2711 7th Avenue on Monday, November 10, 1975, which he knew to be the appellant’s “shot house.” He stated that he arrived there shortly after 9:00 that morning and later a fellow named “Shine” and another one named “Joe” came in. He stated that they played a card game called “Georgia Skin.” He said that this game continued until after 1:00 in the afternoon and the only time the appellant stopped playing cards was just to wait on customers. Johnson further stated that Manning had a full beard at this time.

The State called Sergeant Edward Cousins in rebuttal. Cousins advised that he had been with the robbery detail for almost eleven years and had investigated an incident which occurred on November 10, 1975, on 1224 12th Street West, in Jefferson County, that this was a convenience store and the victim was one Mrs. Eunice H. McDonald. Cousins then identified nine photographs, black and white in color, of black males, which he carried to the store on the morning of November 11, 1975. Cousins related that without any suggestion whatever he handed Mrs. McDonald a stack of photographs and a few minutes later she handed one back of the appellant and stated, “This was the man.”

He further stated that he talked with the appellant at Police Headquarters on December 8, 1975, and without any threat, intimidation, coercion, or inducement, and after giving him a Miranda warning, the appellant told him that he worked for Reliable Transfer at 1137th Place North and had gone to work there on the morning of November 10, 1975. Cousins stated that no lineup was conducted, but that subsequently Mrs. McDonald did identify the appellant at preliminary hearing.

I

Counsel for the appellant earnestly contends that the photographic identification in the case at bar was unduly suggestive and therefore was in violation of the appellant’s rights under Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

As required by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, we must consider the totality of circumstances to determine whether or not the exhibition of the photographs to Mrs. McDonald on the day following the robbery was so suggestive as to make her in-court identification subject to be stricken.

Mrs. McDonald testified that the store was well lighted and she was near the front when the appellant approached her within two or three feet and asked that a Coke bottle be opened. She stated that she had a good look at his face and subsequently as she handed him the money he was armed with a short barrelled pistol. She stated that she observed him as he pushed her into the bathroom and closed the door. Mrs. McDonald further related that she immediately selected his photograph from among a group of nine black and white photographs shown to her the following day by Sergeant Cousins.

Sergeant Cousins stated that he handed her a stack of photographs, that he made no suggestion to her whatever, and without any hesitation Mrs. McDonald selected the appellant’s photograph.

Mrs. McDonald stated that her identification of the appellant in court was from her viewing the appellant at the time of the robbery.

Judge Bowen, in Henry v. State, Ala.Cr.App., 355 So.2d 411, states the applicable law in this manner:

“After carefully reviewing all the testimony, we are of the opinion that there was no taint of suggestiveness in any pretrial identification which would vitiate the eyewitness’s in-court identification of the appellant. The facts simply do not lend themselves to such an interpretation. Schillaci v. State, Ala.Cr.App., 347 So.2d 552, cert. denied, Ala., 347 So.2d 556 (1977); Fletcher v. State, Ala.Cr.App., 337 So.2d 58 (1976); Impson v. State, Ala.Cr.App., 331 So.2d 837 (1976); Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976); Jackson v. State, 56 Ala.App. 276, 321 So.2d 243 (1975); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). As the corporeal identification of the appellant was conducted before the initiation of any adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment or arraignment, the right to counsel at the line-up had not attached. Moore v. Illinois, United States Supreme Court, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 decided December 12, 1977.”

Moreover, the record here does not disclose a lineup as such. Mrs. McDonald stated that her in-court identification was due to her viewing the appellant at the time of the robbery though she subsequently selected him from the group of the photographs shown to her on November 11, 1975, by Sergeant Cousins, and subsequently at preliminary hearing.

As to the issue of the assistance of counsel at the time of the out of court photographic identification process, this issue was determined adversely to the appellant by the Supreme Court of the United States in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619. See also McGhee v. State, 48 Ala.App. 330, 264 So.2d 560, and Terry v. State, 50 Ala.App. 299, 278 So.2d 748.

After careful review of this record, we find same free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Alfonzo Eugene MANNING.
    77-423.
    Supreme Court of Alabama.
    April 28, 1978.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: BOWEN, Judge.

text:
    Gene A. HERBERT v. STATE.
    6 Div. 258.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    Rehearing Denied March 21, 1978.

      Quentin Q. Brown, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted for the first degree murder of his pregnant wife. Prior to trial the appellant was ordered committed to Bryce Hospital for an investigation of his sanity pursuant to Title 15, Section 428, Code of Alabama 1940, Recompiled 1958. Approximately three months later the Forensic Evaluation Board of that hospital found that the appellant was competent to stand trial, but that he “was probably psychotic and not legally sane at the time of the alleged crime”. A jury found the appellant guilty of murder in the second degree and fixed his punishment at twenty-five years’ imprisonment. Both at trial and on appeal the appellant is represented by court appointed counsel. Additionally, the appellant was represented by retained counsel at trial.

The only contention presented on appeal is that it was error for the trial judge to refuse to give the affirmative charge and instruct the jury that the evidence of insanity was so clear and the proof so strong and undisputed that they were bound to accept such testimony of insanity. Because of the nature of this issue, it is important to detail the testimony of each witness bearing on this point.

On the 28th of May, 1975, the deceased was killed by a blast from a shotgun fired at a distance of less than two feet. She was found in the bathroom of the house where she and her husband, the appellant, lived. The murder weapon was found lying on the floor outside the bathroom door.

When Patrolman William C. Cater of the Birmingham Police Department arrived at the scene of the crime, the appellant drove up behind the patrol car. Officer Cater asked the appellant if he called the police and the appellant stated that he shot his wife and she was in the bathroom. Cater testified that the appellant appeared calm and answered questions for the police report.

A Jehovah’s Witnesses’ bible was found open on the dining room table in the house. Two empty shotgun shells were recovered from the scene. A live shell was found in the shotgun. A hole made by a shotgun blast was noticed in the ceiling of the house over the dining room table.

Detective Charles M. Melton of the Birmingham Police Department interviewed the appellant at the Birmingham City Jail on the day of the murder. During their conversation, Detective Melton made the following notes which were as close to what the appellant actually said as he could manage.

“Last night you could hardly breathe. Wife’s breath hurt him. Woke up and found himself breathing like life. I heard voices. One more thing we would have to do before we transformed into one another. Wife wanted to lay down longer. Feels wife was possessed. Wife got up. Wife asked bacon or sausage. Wife put book on table. Poured orange juice. Voice told him about transition. Got gun from closet, fired one in ceiling, and then fired at wife. (Signed) Gene A. Herbert.”

After reading and signing Detective Melton’s notes, the appellant added the following statement in his own handwriting.

“There are some things that happen that I feel was controlled me. I felt my wife had a control over my mind. (Initialed) G. A. H.”

Detective Melton testified that the appellant was calm, that “he didn’t appear to be outwardly upset and nervous”. Though the appellant was carrying on a completely coherent conversation with Detective Melton, Melton did not consider the statement to be one of a rational and sane individual. Detective Melton stated that the appellant was a Jehovah’s Witness and that the appellant told him that he didn’t trust attorneys.

The state then rested and the appellant’s records from Bryce Hospital were admitted into evidence by the defense without objection.

The defense presented the testimony of three employees of U. S. Steel Corporation who had worked with the appellant before the murder. A. B. Jones stated that he worked with the appellant on a daily basis as a wireman for the past three years. Mr. Jones testified that until about three months before May 28, 1975, the appellant was quiet, well-mannered, and very cooperative; that he read his bible a lot and was nonviolent. However, about two or three months before the murder the appellant’s personality “completely changed”.

“ . . (H)e was different. He would stare. And he couldn’t comprehend. He would ask you a question and you would tell him, and he couldn’t comprehend it. He definitely changed * * And he would start home and then he would come back. And then he would go and come back.”

The appellant got his work shifts confused and reported for work at the wrong time. Although he had previously been a good worker he had difficulty in doing his job properly. He had a “far away” look in his eyes and “would just have his eyes fixed on you and looking straight at you” but did not comprehend. During these last three months the appellant lost about forty pounds. Mr. Jones stated that he saw the appellant the day before May 28, 1975, and that in his opinion the appellant was “demented or insane”.

On cross examination Mr. Jones stated that the appellant had his bible with him every day he was at work for the past two years; that he saw the appellant “sometimes maybe three, four or five times a day”. The appellant had not just become “more peculiar” in his actions but had “completely changed”.

Lee Alford was also an employee of U. S. Steel, had known the appellant for two years, and worked directly with him. He testified to substantially the same effect as Mr. Jones and stated that the appellant

“got so that you would have to tell him when to move. And when he got still it was like he was in a trance or something. You would have to go touch him and tell him to move, to call him out and tell him when to move or do the work, and like that.”

The appellant would stare at “something in one direction” and would go a long time without blinking his eyes. Several days before the murder Mr. Alford did the appellant’s work for him because the appellant “wasn’t at himself at that particular time”. The appellant’s eyes were glazed and he appeared to have his mind on something else. The appellant “got to where he went to getting worse and worse”. Mr. Alford saw the appellant the day before the murder and in his opinion the appellant was insane.

Cross examination of Mr. Alford revealed that although the appellant had always been a quiet type individual, during those last three months

“He wasn’t like he was, he was in a nervous condition and just in a — just like he wasn’t at hisself, like he was always in a daze.”

Raymond L. Howard, Jr. was the third employee of U. S. Steel to testify for the defense. Mr. • Howard described the changes in the appellant’s personality occurring in a period of two to three months before May 28, 1975.

“Well, he just was in a daze, you know, like he 'didn’t know what he was doing or where he was at most of the time.” The appellant became confused about his working schedule and had to be told over and over again and instructed on his work shift. He was “just blank”; he “wasn’t here”. Mr. Howard saw the appellant just about every morning and noticed that he was acting strange “as though he wasn’t even in this world”. Howard suggested to Mr. Jones that someone would do the appellant a favor if they would take him to the hospital or to a doctor.

During this time the appellant lost forty or fifty pounds. In Mr. Howard’s opinion, the appellant was insane.

Each of these three witnesses testified that they saw the appellant the day before the murder was committed. Each testified that, in his opinion, the appellant was insane. Expert testimony confirmed the conclusions of these lay witnesses.

Dr. Gerald Lower testified that he was employed at the Forensic Branch at Bryce Hospital. The state stipulated that he was a qualified psychologist for the State of Alabama. Dr. Lower was the chairman of the Forensic Evaluation Board.

Dr. Lower testified that when the appellant was admitted to Bryce Hospital by order of the Jefferson County Circuit Court on June 17, 1975, he was in a catatonic state.

“ . . .he would sit or stand mute; he wouldn’t say anything; he wouldn’t answer questions; and he would sit in strange postures and stare rigidly. And at first he, for several days, wouldn’t eat. “And in general, he was just completely out of contact.”

A catatonic state is a condition in which the person is out of touch with reality, not responsive to conversations and cannot be communicated with. Dr. Lower testified that typically people who are in this state do things

“that aren’t related to anything that is going on around them. And it’s just as if they were shutting out the world and they are in their own world doing this posturing or this jesturing, whatever, not responding to the world around them.”

A fixed stare is one of the features associated with a catatonic state. The appellant was interviewed by Dr. Lower, a staff psychiatrist and a medical doctor at Bryce Hospital,

In Dr. Lower’s interview with the appellant’s mother and father, he learned that the appellant was born with a “large lump” on the side of his head which eventually disappeared. According to his parents the appellant had always been “sickly” and had had headaches whenever he exerted himself.

“He had always been very quiet and kept to himself. He was frightened of crowds. And he felt that people were trying to hurt him.
“ * * * That when he was an adolescent, when he was a young man, he never had a girlfriend, had never gone out with girls particularly until he finally married in November of 1974.
“That the day after the wedding he got very suspicious and afraid of his wife, and believed she was trying to poison him. That he stopped eating and lost 60 pounds very rapidly.
“ * * * And his wife took him to the hospital for some tests. And he later went back and admitted himself. But then he got the idea that they were trying to harm him at the hospital — that they were trying to kill him at the hospital, rather.
“So, he then left the hospital and went back to work.”

In a history obtained from the appellant himself, during the first part of the interview the appellant said “that he wasn’t married and that he never had been and he thought his charges were for murder, but he didn’t know who he was supposed to have murdered”. When it was called to his attention that he was charged with murdering his wife the appellant “put his head in his hands and he said, ‘Now, I remember’ ”. The appellant

“. . . indicated that he had been married for about six months before the murder, and that he begin to get suspicious of his wife shortly before it happened. That he thought that his wife was — and these are his own words — ‘A wicked demon angel’, and that he was a demon angel. And he begin to see his wife’s shoes in some boxes in the car each day. And he thought that this was some kind of a ritual.
“He also says that he heard voices that were telling him what to do. And he felt that he must obey them. And that he got a gun shortly before this because someone had tried to steal his car.
“And let’s see, that’s about it. He said that he had a 12th grade education. He worked as an electrician for a number of years. And he had never been married until about six months before, has no children.
“And he mentioned that he had attended the Smolian Clinic two years before this for a period of time.
“And the final statement here is that he seems to have no memory for the actual murder, but does realize that ‘something’ was wrong. And that he appeared quite depressed and quite vague about things during this interview.”

At Bryce Hospital the appellant was given a number of psychological tests. Based on these tests and the different interviews with the appellant, the Forensic Evaluation Board unanimously agreed that the appellant was insane at the time the murder was committed. The appellant was diagnosed as suffering from schizophrenia-catatonic type, withdrawn, which is a mental disease. This Board was composed of two psychologists, a social worker, two medical doctors and a psychiatric nurse.

The appellant was discharged from Bryce Hospital diagnosed as “schizophrenia, catatonic type, not psychotic”, which means that

“we had cleared up the psychotic (insane) symptoms to the point where even though he still had the disease he was able to function more or less normally.”

Dr. Lower further testified that the appellant had no control over this mental disease; the “tendencies are largely inherited”. In his opinion, the appellant did not know right from wrong with regard to the actual killing. In his best opinion “it probably wouldn’t have mattered who was there, he would have probably done it anyhow”, because he thought he was killing a demon who was real to him.

Cross examination of Dr. Lower revealed the facts that the appellant was a Jehovah’s Witness and that a tenant of that religion was a belief in demons; and that the appellant was committed approximately twenty days after the crime at the request of his attorney. Dr. Lower stated that it was possible to be in a catatonic state without being insane and that a person could withdraw into a catatonic state after a crime such as this, though Dr. Lower stated that he didn’t believe that it happened here. The symptoms exhibited by the appellant would be pretty difficult to fake over an extended period of time. On the I.Q. tests the appellant had an overall score in the borderline retarded range but his potential abilities probably lie within the average range, the test results being affected by his emotional status. There was some evidence from the psychological tests that seemed to indicate a mild brain disease.

Dr. Lower testified that the intensity of the appellant’s catatonic state varied somewhat from time to time.

On redirect examination, Dr. Lower testified in substance that the testimony of the three fellow employees of the appellant was consistent with the development and progression of the mental illness of the appellant and what these men generally described as a “stare” was probably the beginning of the solid and rigid catatonic state that the appellant exhibited in the hospital. Dr. Lower further stated that people in these states “often do appear calm because they are not doing anything or saying anything”.

Dr. Howard Lee Miller is a professor in psychology at the University of Alabama in Tuscaloosa teaching primarily diagnostics and psychopathology. Based upon his review of the medical records of the appellant and a personal interview with the appellant, Dr. Miller concluded that the appellant was insane at the time of the crime. He concurred with the diagnosis that the appellant was a catatonic schizophrenic throughout his stay at Bryce Hospital. Dr. Miller stated that the appellant was “clearly schizophrenic”, and that the symptoms described by his three fellow workers were “undoubtedly the beginning of the catatonic phase of the disorder”. Dr. Miller stated that

“. . . it is most important to obtain a family history positive for schizophrenia, because it is almost always obtained in the case of a schizophrenic person, because there would be some history, say, within the first cousin of the family within maybe two generations back at the most.”

A family history of mental illness would certainly increase the probability of schizophrenia in the appellant in Dr. Miller’s opinion.

The appellant’s family history revealed that his grandfather

“was apparently hospitalized for some five years for what appeared to be a schizophrenia like disease; his two cousins were hospitalized; and a paternal uncle has been hospitalized for some 30 years with what appeared to be schizophrenia.”

Dr. Miller testified that the evidence of the appellant’s schizophrenia in his file was “voluminous”.

“There were notes from at least a half a dozen people at the beginning of his hospitalization attesting to a very typical withdrawn catatonic behavior.
“He was apparently so far out of contact with reality when he came into the hospital that he was unable to respond to what he was there for. He was evidently unable to be clothed because he was in a semi-rigid catatonic stooper. He was not eating and so on.”

The more formal mental status exams were “very clear cut with respect to the symptoms of schizophrenia”. Virtually all of the psychological tests confirmed the diagnosis of schizophrenia and these tests were given after his behavior had already improved considerably.

Cross examination by the state revealed that Dr. Miller’s specialty was diagnostics; that some of the answers the appellant gave on the “Proverbs” test could be those of a sane person; that Dr. Miller interviewed the appellant for twenty to thirty minutes before he testified and at no other time; and that his conclusions were based primarily on the record and the history— the conclusion from the interview only being “confirmatory”.

Dr. Miller stated that schizophrenics can know right from wrong and that at one point in a deteriorating thought disorder one of the things that people fairly often do is become “obsessional” about religion.

Dr. Miller frequently testifies for the District Attorney’s office and as a court’s witness.

The defense rested and the presentation of evidence by both sides was concluded.

The general principles of law regarding the burden of proof and the defense of insanity were most recently set forth and considered in Christian v. State, Ala., 351 So.2d 623 (1977). Those principles may be summarized as follows:

1. By statute, there is a presumption of sanity extending to all persons over the age of 14.
2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.
3. The burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence and to the reasonable satisfaction of the jury.
4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.
5. In making its determination, the jury may reject all expert testimony though it is without conflict.
6. However, opinion testimony, even of experts must be weighed by the jury and may not be arbitrarily ignored.

Authority for each of these principles may be found in Christian, supra, at 351 So.2d 624.

The one exception to these rules is found in those cases where the proof of insanity is overwhelming and uncontradict-ed.

“Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.” Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 (1934).

A review of the case law in this state reveals that on only two occasions has this exception been invoked by an appellate court and a judgment of conviction reversed because the jury verdict was contrary to the preponderance of the evidence on the issue of insanity. Those cases are Christian, supra; and Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied, 260 Ala. 699, 71 So.2d 107 (1954). Boyle, supra, although speaking to this issue, was reversed on other grounds. After careful consideration and long deliberation, we are of the opinion that the overwhelming evidence presented by the appellant has amply overcome the presumption of sanity.

In Boyle, supra, at 229 Ala. at 222, 154 So. 583 and Pickett, supra, at 37 Ala.App. 414, 71 So.2d 106, it was noted that

“. . . courts should be careful not to invade the province of the jury in cases of this character. Although the evidence may be offered only by the defense, and all tend to one conclusion, yet, in view of the presumption of sanity, if the evidence is inconclusive, and reasonable inferences may be drawn that the act was that of a sane man as defined by law, the affirmative charge should be refused.”

From a consideration of the testimony in this case, we are convinced that not only does the evidence of insanity all tend to one conclusion but that such evidence is conclusive. From all the evidence we see no facts which would support a reasonable inference that the homicide was that of a sane man as defined by law.

We make the following observations which were considered in Howard v. State, 172 Ala. 402, 409, 55 So. 255 (1911). The antecedent conduct and declarations of the defendant were thoroughly indicative of actual insanity and responsible men could not differ as to this conclusion. While the appellant was able to carry on a coherent conversation with Officer Melton his statements concerning the homicide are not the statements of a sane and rational man. Three of the witnesses, the three fellow employees, testified from more or less intimate acquaintance and prolonged personal observation of the defendant, that he was undoubtedly insane and irresponsible up to and including the day before the murder was committed. Two experts testified, one from some three and one-half months’ period of personal observation of some degree or another, and another based upon a review of the appellant’s medical history and hospital records together with a brief personal interview with the appellant, that he was legally insane at the time of and after the commission of the crime. Finally, there was apparently nothing before the jury to rebut the great mass of testimony directly showing actual insanity before, at the time of, and after the act in question. In other words, there were simply no facts before the jury from which opposing inferences might have been rationally drawn. Here, the evidence of insanity is not merely strongly persuasive; it is conclusive.

There was no evidence that the appellant was sane aside from the mere presumption of sanity. The appellant did not take the witness stand and therefore the jury was not afforded the “fruitful opportunity” to form an estímate of his mental condition and to view, in some measure at least, the operations and perceptions of his mind. Howard, supra.

We further note that the evidence concerning the defendant’s insanity was especially trustworthy. The three employees were not, strictly speaking, social acquaintances of the appellant. Apparently they knew little of his family and personal life away from the job and would have no special bias or prejudice for or against the appellant. No members of the appellant’s family testified. Certainly there is no reason to suspect that the two psychologists who testified had any bias or interest in the appellant’s cause. Dr. Miller often testified for the District Attorney’s office and as a court’s witness.

True, the jury may reject all expert testimony though it is without conflict and may do so if the testimony is weak, subject to bias or interest, unclear, or if there is another basis upon which to believe a defendant sane. Christian v. State, Ala.Cr.App., 351 So.2d 616, 623 (dissent) (1976). Yet here the expert testimony was subject to none of these criticisms and there was no basis for the jury to reject the overwhelming and uncontradicted proof of the appellant’s insanity.

This appellant’s conviction can only be sustained on the bare presumption of sanity prevailing as to every accused and afforded by statute. That presumption, being a presumption, is rebuttable by clear and sufficient evidence reasonably satisfying the jury of the existence of the claimed mental incapacity. However, we consider the undisputed and substantial evidence as to the appellant’s mental defectiveness to have overcome this presumption.

The verdict and judgment being contrary to the evidence and the legal principles applicable, this cause must be reversed for the failure of the trial judge to give the affirmative charge.

REVERSED AND REMANDED.

. All Judges concur.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-430.
    Supreme Court of Alabama.
    April 28, 1978.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.