text:
    James Michael MAINOR v. STATE.
    3 Div. 492.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1976.
    No brief for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to imprisonment in the penitentiary for ten years. He was arraigned in the presence of counsel and pleaded not guilty. After sentence was imposed, he gave notice of appeal and made application for a free transcript. He was found to be indigent and he was furnished a free transcript. New counsel was appointed to represent him on appeal.

The evidence adduced by the State is undisputed that on July 9, 1975, about 7:00 p. m., the Boylston Food Market was robbed by a lone bandit with a sawed off shotgun. The store was closed at the time and there were only two employees in the store at the time of the robbery. Mrs. Nina Gross was the person in charge of the store and one Bobby Kimbro was helping her check the money and to secure the store.

Appellant was employed at the store as a meat cutter and had been so employed for six or seven weeks prior to the robbery. His usual hours of employment were from 8:00 a. m. until 5:00 p. m., but on the night of the robbery his time card showed that he “clocked out” at 5:41 p. m. The State’s evidence tended to show that appellant planned and set the stage for the robbery before he left work on July 9, 1975.

Mrs. Gross testified that she had just counted the money and checks that were taken in from the sales made that day and had put them in two bank bags furnished by the Alabama National Bank and had locked the safe for the night. It was her intention to carry the money with her to her home that night and make a deposit the next day. The next thing she knew, a person was standing next to her with a shotgun and demanding all of the money in bills and told her that if she did not open the safe and give him the money, he was going to kill her. She looked at the bandit and found that he was completely masked and there was no way for her to identify him. She opened the cash register and told him that she would get him the change and he told her that he did not want the change, all he wanted was currency. She opened the safe to show him that all the currency was in the bank bags. He ordered her to the rear of the store along with Bobby Kimbro and when they reached the back of the store, he tied Mrs. Gross’s hands together with tape and put her in the cooler. He discovered that the back door was locked and asked for the keys. She told him the keys were on her key ring and in the lock at the front door. The robber then pointed the gun at Bobby Kimbro and forced him to walk to the front of the store and get the keys and with the gun still pointed on him, he made him unlock the back door. He then put Kimbro in the cooler with Mrs. Gross and tied his hands with tape also. He told them to stay in the cooler and if they came out, he was going to kill them. He made his escape out of the back door.

Mrs. Gross and Bobby Kimbro waited until they could hear no one moving around and they untied themselves and reported the.robbery to the Montgomery Police Department and an officer immediately came to the scene. He went in the back and in the rest room he noticed that the window was raised and was supported by a roll of tissue paper and he saw on top of the cooler the tracks of some tennis shoes in the dust on the cooler, but he found no other evidence of the robbery at that time. Mrs. Gross and Kimbro also saw the raised window and the toilet tissue on the window sill to hold up the window.

Bobby Kimbro testified that he knew appellant well and knew also that he was a friend of one Danny Weeks; that Danny Weeks had a brother named Larry and all of them lived in Boylston at one time. He further testified that a few weeks before the robbery that appellant and Danny Weeks had rented a trailer at Central in Elmore County and were living in the trailer at the time of the robbery.

There was a lot of publicity concerning this robbery and Danny Weeks decided that he would surrender to the police department where he was given the Miranda. rights and warnings and he signed a waiver of rights form. He gave a written statement to the police in which he confessed that he was the bandit with the shotgun and took the money from Mrs. Gross and tied her hands and the hands of Bobby Kimbro and put them in the cooler.

A voir dire hearing was held out of the presence and hearing of the jury and the Court determined that the confession was voluntary. In this confession Danny Weeks stated that appellant had planned the robbery, telling him that a girl that he had been going with was in trouble and he needed a lot of money so that she could have an abortion. The statement of Weeks further detailed how the robbery was set up by appellant. That appellant told him that the store closed at 7:00 p. m. and for him to be at the store at 5:30 and he would let him in the back door and that when the store was closed and all the lights were cut off except one that he would know then that they were counting the money and that was the time for him to leave the rest room and rob the store.

The confession of Weeks further was to the effect that during the lunch hour on July 9, 1975, he and appellant went to the appellant’s mother’s home where appellant got his .410 gauge shotgun and turned it over to Weeks. He told Weeks that he would raise the window to the rest room and prop it open and for him to bring the gun and give it to him through the open window in the rest room. The statement of Weeks further was to the effect that after getting the shotgun, he got a hacksaw and sawed the gun off and placed it in the back of his car, that his brother Larry came to his house and just before 5:30, Danny asked his brother Larry to ride with him to the store.

When they got to the store, Danny asked Larry to take the gun and hand it to appellant through the open window in the rest room of the store and he watched Larry hand the shotgun through the open window and saw appellant take the shotgun; that Larry did not know that a robbery was going to take place. After the shotgun was turned over to appellant, Danny got out of the car and told Larry to drive the car on home and he would pick it up later. Larry was staying with his mother in Chisholm. Danny had gotten a woman’s stocking and a blue pillow case to put over his head and face so that no one would recognize him.

After Larry' drove Danny’s car away from the store, Danny went into the store and appellant put a ladder up beside the cooler so that Danny could get on top of the cooler and wait until the store closed and then commit the robbery. In the meantime appellant had agreed with Larry that at about 20 minutes after 7:00, he would be parked on the northern bypass which was not too far from the Boylston Food Center. Before Danny rode with Larry to the store, he had cut the wire leading to the northern bypass so that he could exit to the bypass and get in the car with appellant.

After the robbery Danny went through the cut place in the wire to the northern bypass and he found that appellant was not there waiting on him as they previously had agreed upon. When Danny found that appellant was not waiting on him, he went down into some woods and hid the sawed off shotgun and the money bags and stayed in the woods until early the next morning when he went to his mother’s house and got his ear and went to the trailer that he and appellant rented in Central, Alabama. Danny engaged in an argument with appellant for leaving him stranded on the northern bypass and appellant told him that he heard the police siren and he thought that they had caught Danny and so he just left.

In Danny’s statement he told the police officers that the arrangement that he had with appellant was that Danny was to get two-thirds of the proceeds of the robbery and that appellant was to get one-third. He stated that a couple of days later he went back into the woods where he had hid the money and the gun and got the money and the gun and carried them to the trailer in Central. He said there were approximately $1700 or $1800 in cash and a great number of checks; that he took the money and most of the checks with him to the trailer at Central where he burned the checks and gave appellant his one-third of the money. Of the balance, Danny spent $150 to $300 buying clothes for himself and that when he surrendered to the police, he turned over to them about $1200.

Based upon the signed confession made by Danny Weeks, appellant was picked up for questioning. He was given the Miranda rights and warnings and the officer asked him if he understood his rights and he said he did. He signed a waiver of rights form and told the investigating officer that he would make a statement but that he was not going to sign it. He gave the officer an oral statement which was taken down by the interrogating officer and after the statement was completed, the officer read the statement to appellant and appellant told him that the facts set out in the statement were true. The statement corroborated the confession made by Danny Weeks in every respect. After the officer completed writing the statement on the typewriter, he asked appellant if he would sign it and appellant stated no, that he was not going to sign anything.

He did tell the officer however that if he would take him to the District Attorney and that if the District Attorney would promise to help him, he would sign it. The officer told him he could not do that and appellant again refused to sign the statement.

After the investigating officer learned that Weeks had taken some of the checks from the Boylston Food Market to the trailer occupied by him and appellant at Central, and had burned them, he went to Wetumpka and secured a search warrant from the Circuit Judge and got a deputy sheriff from Elmore County to accompany him to Central. He looked in a drum in the yard and found several partially burned checks but they were so badly burned that they could not be used for any purpose. He searched the trailer and found some narcotics and narcotic paraphernalia. When they got back to Wetumpka, the deputy signed a warrant for the arrest of appellant and Danny Weeks for possession of narcotics. The investigating officer got a certified copy of the warrants and brought them to Montgomery. He had another conversation with appellant during which he again gave him the Miranda rights and warnings before asking any questions. Appellant admitted that he was a narcotic user and that he was taking narcotics regularly. He further admitted that he was on probation from a federal narcotic conviction at the time the robbery was committed.

There was a voir dire hearing out of the hearing and presence of the jury to determine the voluntary character of appellant’s oral confession to the interrogating officer, but since appellant did not sign the completed statement, the Court ruled that the unsigned statement could not go to the jury but he allowed the officer to read to the jury the statement given to him by appellant, in which appellant admitted-that he had conceived the idea of robbing the Boyl-ston Food Market where he was employed.

There were some minor discrepancies in the oral statement that he gáve to the officer and the written statement signed by Danny Weeks but the discrepancies were of no significance so far as the crime of robbery was concerned.

Appellant took the witness stand in his behalf and repudiated his statement given to the officer in which he admitted his participation in the robbery.

The only issue raised on this appeal, in which reversible error is claimed, is the action of the prosecuting attorney in his closing argument to the jury wherein he expressed his opinion that Danny Weeks did not lie. This argument, if improper, cannot be reached on this appeal as appellant’s counsel did not object to the argument and, thus, no ruling of the trial court was invoked. Irons v. State, 42 Ala.App. 349, 165 So.2d 125; White v. State, 40 Ala.App. 378, 114 So.2d 325; Smith v. State, 46 Ala.App. 99, 238 So.2d 898; Embrey v. State, 283 Ala. 110, 214 So.2d 567.

At appellant’s request the Court gave the following written charge:

“I charge you, members of the jury, that the assertions of counsel are not evidence in this case and should not be considered by you.”

The law is clear that a prosecutor should never express his personal opinion as to the guilt of the accused as such expression invades the province of the jury. The prosecuting attorney did not express such an opinion in this case.

A confession without independent evidence of the corpus delicti is not sufficient to support a conviction. King v. State, 49 Ala.App. 111, 269 So.2d 130; Martin v. State, 44 Ala.App. 395, 210 So.2d 704; Connell v. State, 39 Ala.App. 531, 105 So.2d 695.

The corpus delicti of the crime of robbery was clearly established by the testimony of Mrs. Gross and Bobby Kimbro prior to appellant’s confessory statement. The trial court determined that appellant’s confession was voluntary. The State laid the proper predicate for the admission of appellant’s oral statement to be read to the jury. We hold the statement was properly read to the jury. Elrod v. State, 281 Ala. 331, 202 So.2d 539.

As above stated appellant took the stand and repudiated his confession. This is not unusual as we observed in McNair v. State, 50 Ala.App. 465, 280 So.2d 171:

“This Court has previously recognized the fact that it is not unusual for the volun-tariness inquiry to present conflicting evidence. Edgil v. State, 36 Ala.App. 379, 56 So.2d 677. When such a conflict occurs and the trial judge finds that the confession was- voluntarily made, great weight must be given to his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Emerson v. State, supra [281 Ala. 29, 198 So.2d 613]; Harris v. State, 280 Ala. 468, 195 So.2d 521; Edgil v. State, supra. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Minirth v. State, 40 Ala.App. 527, 117 So.2d 355, cert. denied, 270 Ala. 228, 117 So.2d 360.”

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the judges concur, except CATES, P. J., not sitting.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Lee BOSWELL, alias v. STATE.
    3 Div. 636.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1976.
    Jasper B. Roberts, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Appellant was indicted for unlawfully killing Gertie Mae Boswell “by shooting her with a pistol.” The jury found the appellant guilty of murder in the second degree and fixed punishment at ten years imprisonment. The trial court then entered judgment, setting sentence in accordance with this verdict.

Joe Lewis Berry testified that on January 11, 1975, he was living at the home of his mother, Gertie Mae Boswell, on Auburn Street in Montgomery, Alabama. He stated that he was awakened that morning by the sound of a pistol shot and after walking into the living room of their home, he saw his stepfather, the appellant, Lee Boswell, standing over the body of his mother, Ger-tie Mae Boswell. He stated that the appellant had a pistol in his hand, which was pointed down, and that he asked the appellant what had happened, to which the appellant replied, “She got shot in the arm.” He stated that he then saw that his mother was shot in the heart, that he picked up her body and placed her on a small couch in the room. He stated that a knife was lying on the floor, and that he picked it up and placed it on a table. He stated that the knife belonged to his stepfather. He stated that this occurred between 8:00 and 9:00 o’clock on the morning in question.

On cross-examination, Joe Lewis Berry testified that he observed blood on the hand of the appellant, and that he observed blood coming from the chest wound of his mother.

Robert L. Ingram testified that as a Montgomery Police Officer, he answered a call at 363 Auburn Street, Montgomery, between 8:00 and 9:00 on the morning of January 11, 1975. He stated that when he arrived he went into the living room of the home and observed the- victim, Gertie Mae Boswell, lying on a sofa. He stated that he spoke to Joe Lewis Berry and that he saw a pocket knife lying on the floor. He stated that when he spoke to the appellant, Lee Boswell, he stood up, and as he did so, a .22 caliber pistol fell from between his legs. He testified that he seized both weapons and placed the appellant under arrest. He testified that the .22 caliber pistol was a nine-shot revolver, and in his best judgment only one or two had been fired, and the rest were live rounds. He testified that he examined the body of Mrs. Boswell and noticed a wound in her left chest.

Mary Wisdom testified that she was a toxicologist with the Alabama Department of Toxicology. She stated that she examined the body of' Gertie Mae Boswell at 363 Auburn Street, Montgomery on the early morning of January 11, 1975. She testified that she found a wound on the left chest near the heart. She testified that she performed a blood alcohol test on the body of Mrs. Boswell, and the level of alcohol in the blood was .30. She stated that this level would indicate that the person would be highly intoxicated. She testified that she observed the pistol, and that it was a .22 caliber J. C. Higgins, Model 88, nine-shot revolver with the Serial No. 768080.

Dr. Richard A. Roper, State Toxicologist, testified that he performed the post-mor-tem examination of Gertie Mae Boswell at the Ross-Clayton Funeral Home. He stated that she was a black female, approximately forty-three years of age, and that the cause of death was hemorrhage and shock associated with a gunshot wound to the left chest near the heart. He stated that he removed a small caliber bullet from the body of Mrs. Boswell and turned it over to Mr. Charles Smith of the Department of Toxicology.

Charles Wesley Smith, State Toxicologist, testified that he received a .22 caliber pistol from Mrs. Mary Wisdom of his department, and that upon examination he determined the pistol had eight live rounds and one spent cartridge case. He testified that he made a comparison of the bullet that was turned over to him by Dr. Roper with bullets fired from the pistol in question, and that, in his opinion, the bullet was “possibly fired from the same weapon.”

Over objection, Dr. Smith was allowed to state the following concerning his examination of the pistol:

“ . . . [I]s that weapon likely to go off accidentally, in your opinion?
“A. This weapon would not be classified as one with a hair trigger, which is a common term. It actually has more than average pull on the trigger.
“Q. Has more than average pull on the trigger?
“A. Yes, sir. This is — by firearms standard this is a relatively cheaply made weapon. And, generally, on the cheaper weapons it gets harder and harder to pull the cheaper you go. Some of them are very hard to pull the trigger. This one is relatively firm. Even on single action it is not what you would call a hair trigger, although it takes considerably less force that way. But fired in the double action mode, I would say it would be difficult to fire it accidentally.”

The pistol in question was then admitted into evidence.

Jesse Holloway testified that he was a friend of the appellant, Lee Boswell. He testified that he first saw the appellant on January 11, 1975, shortly after 7:00 in the morning on Holt Street in Montgomery. He stated that the appellant asked him to go with him, that he wanted to pick up his little boy. He stated that the appellant’s girlfriend, Pearlie Mae Jones, was also in the automobile. He stated that they drove out to the Mobile Heights section of Montgomery, and then drove back over to Auburn Street to the home of the appellant’s ex-wife, Gertie Mae Boswell. He stated that Pearlie Mae Jones was driving, that he was seated on the back seat, and that the appellant was seated on the right hand passenger side of the car. He stated that they pulled up in front of Gertie Mae Boswell’s home, that the appellant got out of the car and went into the house for just a few minutes. He stated that he did not hear anything, but in a few minutes, the appellant called to him to call an ambulance. He stated that he got out and went into the house and saw Gertie Mae Boswell lying on the floor. He said that he saw the appellant standing over her with a pistol, and that he picked up Mrs. Boswell and laid her on the sofa. He stated that he saw the appellant put a pistol in his pocket. He said that it was a .22 caliber pistol, and that the appellant had previously shown the gun to him. Under examination by the District Attorney, he stated, “that is it,” referring to the weapon seen on the morning of the homicide. He further stated that he and appellant had formerly worked together for the Coca Cola Bottling Company.

On cross-examination, he testified that the purpose of their driving out to the Mobile Heights section was to find the appellant’s little boy, and that when he did not find him, they decided to go over to Mrs. Boswell’s home to look for him.

Police Officer Robert L. Ingram was then recalled and he identified the knife which he found at Mrs. Boswell’s residence.

Charles Kennedy testified that he lived at 720 Erskine Street in Montgomery. He stated that his wife was a sister to Gertie Mae Boswell. He stated that on the morning of January 11,1975, the appellant came by his home between 8:30 and 9:00 o’clock and told him that he was looking for his son, Lee Andrew Boswell, Jr. He stated that the boy was also the son of Gertie Mae Boswell, and that the appellant was divorced from her. He said that he advised the appellant that he had not seen his son that day, and the appellant told him he had carried his son to Gertie Mae Boswell’s home on Friday evening to spend the night, that when he went back the next day he could not find him. Mr. Kennedy further stated that the appellant said that morning, “If I don’t find my kid this morning, somebody is going to die.” He stated that Jesse Holloway and Pearlie Mae Jones were also in the automobile with the appellant when he came by his home between 8:30 and 9:00 o’clock that morning.

Pearlie Mae Jones testified that she was the girlfriend of the appellant. She stated that she drove the appellant in his automobile on the morning of January 11, 1975, to the Mobile Heights section in Montgomery in order for the appellant to look for his son, Lee Boswell, Jr. She testified that Jesse Holloway rode in the car with them. She testified that they went by the home of Charles Kennedy, that the appellant had a conversation with him, and they then went to the home of Gertie Mae Boswell to look for Lee Boswell, Jr. She stated that they pulled up to 363 Auburn Street, that she turned off the motor, and the appellant got out and went into the house. She stated that she saw Mrs. Boswell open the door, saw the appellant go into the house, and a few minutes later she heard the appellant call out, “Call the ambulance.” She stated that Mr. Jesse Holloway then went into the house. She stated that she did not hear any argument or hear any shots fired.

The appellant called Jesse Holloway to the stand and he testified that he did not hear the appellant make any threats to Charles Kennedy about killing anybody on the morning of January 11, 1975, before going over to Auburn Street.

Lee Boswell testified that he was living at 2660 Laverne Street in Montgomery on the morning of January 11, 1975, and was employed by the Coca Cola Bottling Company. He testified that he had formerly been married to Gertie Mae Boswell, that she had children by a previous marriage, and that he had one child, a son, Lee Boswell, Jr., by her. He stated that Lee, Jr., had been living with him after his mother-in-law died, and that the other children lived with Gertie Mae Boswell. He stated that he had been over to the Boswell home on Friday afternoon, that Lee, Jr., spent the night there, and that when he went back the next day to pick him up, he was not there. He testified that on the morning of January 11, 1975, he picked up Pearlie Mae Jones and Jesse Holloway and they rode with him when he went looking for his son. He stated that they drove over to the Mobile Heights section and upon not finding him there, they stopped by the home of Charles Kennedy, then drove over to the Boswell home on Auburn Street. He stated that Mrs. Boswell looked as if she had been drinking, that he did not know how much, and that this was between 8:30 and 9:00 o’clock in the morning. He stated that she opened the door, that he went inside and asked her where his son, Lee, Jr., was. He stated that she told him that she did not know and that she said, “I have something for you,” and placed her hand inside her bosom, and as she began pulling her hand out, he saw that she had a knife there. He said that he pulled the pistol from his pocket as he saw her pulling out the knife, and that he was simply holding the pistol in his hand when it went off, cutting a gash in the big finger of his right hand, and that he had to have his hand bandaged when they took him to Police Headquarters. He stated that a few minutes later after the gun went off, Joe Lewis Berry, his stepson, came into the room and he was picking up the body of the deceased, that he told him to get someone to call for an ambulance. He said that he did not know how badly wounded the deceased was, and he called out, “Call the ambulance.” He said that he did not have any reason to “fuss” with anyone and that he and his former wife had had an understanding about the visitation rights with the children, that they had been separated about five or six years. He testified that he had always supported the children.

On cross-examination by the District Attorney, the appellant demonstrated how the incident occurred:

“Q. Well, I will tell you this — where was your hand when you put that weapon in it? You show the jury how you took that weapon in your hand?
“A. Just like that.
“Q. Just like that. Stand up. You pulled it out of your pocket?
“A. Yes, sir.
“Q. And you put in your hand. Where was your hand?
“A. (Witness indicating.)
“Q. Just like that? That is the way you put the weapon in your hand, and that bullet hit Mrs. Boswell in the heart?
“A. I don’t know where the bullet went.
“Q. But that is what you are telling the jury? You laid that weapon in your hand just the way you demonstrated' — bring it up a little higher, now.
“A. The exact height and all, and the certain position I had it-—
“Q. And the weapon went off and shot her in the heart?
“A. Yes, sir.
“Q. And you don’t know how tall she is?
“A. No, sir.
“Q. You laid it in your hand just like that?
“A. Yes, sir.
“Q. Pull the trigger on the weapon.
“A. (Witness clicks gun.)
“Q. You have to apply a lot of pressure, don’t you? You have to apply pressure, don’t you, Mr. Boswell?
“A. Yes, sir.”

The appellant called Detective H. E. Hicken of the Montgomery Police Department, who testified that he took a statement from the appellant on the morning of January 11, 1975, at about 11:00 a. m. at Police Headquarters. He stated that he observed a wound on the hand of the appellant and blood on his finger. He stated that the appellant told him at Police Headquarters that he shot his finger accidentally when he pulled the trigger of the gun at the home of Mrs. Boswell on Auburn Street. Detective Hicken then identified some photographs taken at 363 Auburn Street on the morning in question.

I

The appellant contends that the trial judge erred in overruling the appellant’s objection and allowing State Toxicologist Charles Smith to testify that in his opinion it would have been difficult for the alleged murder weapon to have been fired accidently. The appellant cites us to Roan v. State, 225 Ala. 428, 143 So. 454; and Garrett v. State, 268 Ala. 299, 105 So.2d 541, in support of his contention.

In the case at bar, Mr. Smith testified that he performed certain tests on the alleged murder weapon to determine if it, in fact, fired the bullet which caused the death of Mrs. Boswell [R. pp. 35-37]. Moreover, he stated that part of his duties were to test and examine firearms, and that he had considerable training and experience in this area.

We are of the opinion that the trial court properly determined that Mr. Smith was an expert, and we do not therefore believe it was error for him to testify that the weapon required “more than an average pull on the trigger,” and that “it would be difficult for it to be fired accidently.”

We believe the trial court’s rulings in this respect are correct and fully supported by the authorities. Pruitt v. State, 232 Ala. 421, 168 So. 149; Stallings v. State, 249 Ala. 1, 32 So.2d 233; Ellis v. State, 39 Ala.App. 325, 100 So.2d 725, cert. denied 267 Ala. 235, 100 So.2d 732, and authorities therein cited.

We have carefully examined this record and find same to be free from error. The judgment is therefore

AFFIRMED.

All the Judges concur, except CATES, P. J., not sitting.


text:
    Carl Ray WALKER v. STATE.
    4 Div. 475.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1976.

      J. R. Herring, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Appellant, Carl Ray Walker, was indicted for murder in the first degree, by killing Benjamin Floyd “by shooting him with a pistol.” The jury found the appellant guilty of murder in the second degree and fixed punishment at twelve years imprisonment. The trial judge entered judgment in accordance with this verdict.

Herman Floyd, age twelve, testified he lived at his home on 203 Lindsey Street in Headland, Alabama, on November 16, 1975, with his brothers and sisters. He stated that Benjamin Floyd was his uncle. He stated that on the evening in question he was at home playing with his brothers and sisters when the appellant, Carl Ray Walker, came to their home, walked up on the porch and knocked. He stated that his little brother, whose nickname was “Peanut,” answered the door, and that Walker asked for Benjamin Floyd. He stated that “Peanut” went to tell his uncle that Walker was there to see him. He stated that Walker and his aunt, Future Floyd, lived in the same neighborhood.

On cross-examination he testified that he had two brothers and two sisters, all of whom lived at home with him. He stated that his uncle, Benjamin Floyd, lived with Otis Floyd, his grandfather. He stated that the deceased, Benjamin Floyd, was known as “Short Change.” He testified that Juanita Walker was the wife of Carl Ray Walker and lived just down the street from their home.

On cross-examination he testified that he heard Juanita Walker tell the appellant to “Let the boy alone,” referring to the decedent, and that he heard one shot. He testified that some of the adults went outside, and he next saw his uncle lying at the back door of his aunt’s home,. that an R. C. “Sonny” Hudspeth, his aunt’s husband was there. He testified he saw blood on the pants of his uncle.

Terry Floyd, age sixteen, testified that on November 16, 1975, he was a nephew of Benjamin Floyd. He stated that Herman Floyd was his brother, and that all of them were at their mother’s home that evening when they heard a knock on the door, and he saw his youngest brother, Charles Floyd, nicknamed “Peanut,” go to the door. He stated that the appellant,! Carl Ray Walker, was standing there and asked for Benjamin Floyd. He stated the appellant told “Peanut” to “tell Small Change to come out here a minute.” He stated that the appellant had a knife. He stated that he remained inside with his brothers as they were watching television, and the next thing he heard was Benjamin Floyd saying, “You are wrong, son.” He stated that he heard a shot, and he saw the appellant, Carl Ray Walker, crank up his car and drive away. He said that his uncle had gone over to his aunt’s home, the Hudspeth’s, which was next door, and he saw his uncle lying there, and later saw some Headland police officers drive up.

On cross-examination he testified that his uncle, Benjamin Floyd, had been drinking, that his eyes were red, and his speech was slurred. He stated that his uncle appeared to be “high.”

Charles Floyd testified that he was age seven and lived with his mother, and brothers and sisters at 203 Lindsey Street in Headland, Alabama. He testified he remembered the night when Carl Ray Walker came to their home and knocked on the door and asked where was “Small Change.” He said that this was his uncle’s nickname. He said that he had been watching television with his brothers and he went and called his uncle and told him that Walker wanted to see him. He said that he saw a knife in the hands of Carl Ray Walker, and that he did not see a knife on his uncle. He said that his Uncle Benjamin, “Small Change,” Floyd went outside, that after a few minutes he heard some talking, and then he heard a sound like a shot. '

Juanita Walker testified that she was the wife of the appellant, Carl Ray Walker. She stated that they lived at 200 Lindsey Street in Headland, Alabama, and that the deceased, Benjamin Floyd, was her “boyfriend.” She said that she had been dating “Small Change” for some time. She stated that about 7:30 on the night in question, she saw her husband, Carl Ray Walker, go over and knock on the door of the Floyd home. She saw Benjamin Floyd come out, and as he did, she started putting her clothes on because they were arguing and fussing. She stated both men had knives. She said that she came outside and told her husband, Carl Ray, to “leave Benjamin alone,” and that Carl Ray then threw her down. She stated that as she was getting up, she heard Carl Ray say, “You cut me,” and that Benjamin started running around the house, that Benjamin had a knife, and that her husband was standing right beside the car and Benjamin was at his side. She stated that she saw her husband pull a gun from his pocket and shoot one time, and that she saw Benjamin run over to his sister’s, Future Floyd’s house. She said that Future Floyd’s husband, R. C. Hudspeth, was there also.

On cross-examination Juanita Walker admitted that she thought Benjamin Floyd was the father of one of her children. She stated that her husband had come home that evening between 6:00 and 6:30 o’clock, and asked her to go to a movie, and that she had declined. She stated that he went out as though to go to a movie and came back later, that she then saw him go over and knock on the Floyd’s door. She said that the argument between the two men was over her, and that she heard the deceased, Benjamin, say to her husband, “Carl, you are wrong.” She said that when she went outside she told Carl Ray to leave Benjamin alone. She said she saw that her husband was bleeding across his face and that Benjamin had a knife when her husband shot. She said that her husband had a six-shot revolver, and that he shot low at the deceased, Benjamin Floyd.

R. C. Hudspeth testified that he lived at 201 Lindsey Street, Headland, Alabama, on November 16, 1975. He stated that his wife was known as Future Floyd, and that she had a sister named Betty who lived across the street, and who had several young sons. He stated that on the night of November 16, 1975, Benjamin Floyd came to his house and told him that he was shot. He stated that he got up and called the doctor and began putting on his clothes. He stated that he noticed a cut on his lip, and that he had a wound in his stomach. He stated that Headland Police Officer Larry Snellgrove came and they called an ambulance, that he helped him put Benjamin Floyd in the ambulance. He stated he saw blood on the clothes of Floyd. He stated that as they were putting Benjamin “Short Change” Floyd in the ambulance, he looked but he did not see a knife, that as Floyd had tried to get up that he had staggered. He testified that Floyd was taken to the Dothan General Hospital within thirty to forty-five minutes of coming to his house that night.

Future Floyd testified that she lived at 201 Lindsey Street in Headland, Alabama, on November 16, 1975. She testified that Benjamin Floyd was her brother, and that he came to her house that evening and that she was there with R. C. Hudspeth with whom she lived. She stated that when she got up out of bed that she saw her brother lying on the floor, and that she saw that he had been cut near the lip. She testified that she called the police and asked them to send an ambulance, and gave them the address. She stated that she pulled up her brother’s shirt and saw blood. She stated that several police officers came and put her brother in the ambulance and took him to the Dothan General Hospital.

On cross-examination she admitted that her brother, Benjamin Floyd had been going with Carl Ray Walker’s wife for some time.

Larry Snellgrove testified that he was a police officer with the Headland Police Department on November 16,1975. He stated that he went to 203 Lindsey Street in Headland between 7:45 and 7:50 that evening. He stated that he went to the back door of R. C. Hudspeth’s home and saw Benjamin Floyd lying on the floor just inside the back door. He stated that he noticed that there was a cut on the upper lip, and that he did not move Floyd until other officers arrived, among them Sheriff Welcher and Chief Smith, and that they called an ambulance and took Floyd to the Dothan General Hospital. He stated that later that evening he went with Deputy Johnny Bradley to where Carl Ray Walker was working and that he drove them down to Holland Street and then went into a house and came back and brought them a thirty-two caliber pistol, which he turned over to them.

On cross-examination Snellgrove stated that Floyd was not dead as he checked his pulse, that there was some blood about his lip, and he saw blood on his pants.

Sheriff J. Frank Welcher testified on the evening of November 16, 1975, he went to 201 Lindsey Street in Headland, Alabama. After making an investigation at the Hud--speth’s home, and seeing that Floyd was taken to the hospital, he went down to Holland Street as he had known the appellant, Carl Ray Walker, for some time. He stated that he saw the appellant’s automobile in front of the Douglas store, and that he went in, the appellant came out and said that he had been wanting to talk with him. He stated that the appellant just reached into his automobile and handed him an H & R six-shot thirty-two caliber pistol. He stated that the appellant went with them to police headquarters, and that later that evening, after first giving him a Miranda card warning, and in no way threatening, intimidating, or abusing the appellant, the appellant said, “I must have given you the wrong gun,” and that they then drove over toward Holland Street, that appellant went into a house and came back and said, “This must be the one,” giving them a second thirty-two caliber pistol with the serial number AJ41723. He stated that this second pistol had one spent cartridge in it, and that he turned it over to H. G. Brown at the patrol station, and that the following day it was picked up and delivered to the State Toxicology Office. He stated that at the scene he found a knife on the body of Benjamin Floyd, and that he took this to police headquarters, having first putting it in a manila envelope.

On cross-examination the sheriff stated that one of the thirty-two caliber revolvers had six shots in it, and the other had five cartridges, and one expended shot.

Joe R. Roney testified that he was employed as a member of the Henry County Rescue Squad, and on Sunday, November 16, 1975, drove to 201 Lindsey Street in Headland. He stated that he drove an ambulance and that they put the body of Benjamin Floyd in it and then drove it to the Southeast Alabama General Hospital. He stated that he noticed a cut on his face and blood on his clothes. He stated that Floyd was conscious and mumbling when he took him to the hospital.

Sylvia Smith testified that she was a nurse on duty at the Southeast Alabama General Hospital on the night of Sunday, November 16, 1975. She stated that a man identified as Benjamin Floyd was brought to the emergency room where he was treated by Dr. Peterson. She stated that, “Floyd had an open wound about the mouth, and down on the left lower abdomen.” She stated that Dr. Atkinson did two cut-downs, and that he endeavored to sew up the veins. She stated she was present when Coroner Jack Still arrived, and that the wounds were the same as when Floyd was brought into the hospital. She stated that Floyd had lost a great deal of blood on cross-examination. She stated that the bullet had entered the appellant’s bladder and severed an artery, causing massive internal hemorrhaging. She further stated that Floyd was admitted to the hospital between 8:15 and 8:30 p. m., and was pronounced dead by Dr. Peterson at 9:13 p. m.

Deputy Johnny Bradley of the Henry County Sheriff’s Department stated that on November 16, 1975, he, accompanied by Corporal Larry Snellgrove of the Headland Police Department, went to a home on Holland Street. He stated the appellant, Carl Ray Walker, was with them, and stated that the home in question was his aunt’s. He stated that Walker walked in and came back out and handed him a thirty-two caliber pistol which he in turn delivered to Sheriff Frank Welcher.

On cross-examination he stated that it was an H & R thirty-two caliber pistol.

Jack Still stated he was coroner of Henry County on November 16, 1975. He stated he examined the body identified to him as being Benjamin Floyd at the Southeast Alabama General Hospital shortly after 9:00 o’clock that evening. He stated that the body was taken to the morgue where he performed an autopsy, and that the body was in the same condition as when received from Mrs. Smith, the nurse. He stated that he observed two wounds on the body, one a cut on the lower lip, and the second a bullet wound in the lower left abdomen in the general hip pocket area.

Dr. G. R. McCahan, Jr., testified he was toxicologist with the Enterprise Regional Laboratory of the Alabama Department of Toxicology. He stated that part of his duties was to examine bodies and conduct post-mortem examinations. He examined the body of one Benjamin Floyd and found that death was caused by internal hemorrhaging due to a single gunshot wound to the lower left abdomen. He then identified a photograph of the deceased showing the wound. He testified that he also received a thirty-two caliber H & R revolver with the serial number AJ41723, also a small manila envelope which contained the knife. He turned the envelope over to Criminalist Dale Carter. He also identified a projectile which he removed from the lower left abdomen in the area of the wound. He stated this bullet was turned over to Mr. Dale Carter.

Richard Dale Carter testified he was Criminalist with the Enterprise Laboratory of the Alabama Department of Toxicology. He stated that he had many times performed examinations of firearms and made comparisons to determine whether projectiles matched weapons. He stated that he had received a thirty-two caliber revolver and five live rounds of ammunition with one expended cartridge ease. He received a second envelope which contained a pocketknife. He stated that he test fired the thirty-two caliber pistol, and that the bullet removed from the body of Benjamin Floyd had the same twist as those which he test fired, and that in his opinion the projectile-in question was consistent with being fired from the gun which he test fired. He stated that he found a bullet wound in the pants pocket area on the left side of the pants delivered to him, and that he found there was human blood on the knife. He also stated that he did not find any gunpowder burns on the clothes.

Carl Ray Walker testified that he was twenty-seven years of age and married to Juanita Walker by whom he had five children. He testified that he owned a place known as the Rainbow Inn in Headland, Alabama. He stated that he also worked for a Mr. E. W. Twitchell in Dothan. He testified that prior to November 16, 1975, he had caught Benjamin Floyd on four separate occasions with his wife in the year and a half period prior thereto. He stated that he had caught Benjamin Floyd at his home, and that he had observed him on one occasion jump out a window with his clothes in his hand. He stated on one occasion R. C. Hudspeth had taken him off in an automobile after he saw him run out of his house. He stated on the night in question he drove by and saw Ben Floyd’s automobile, and he saw Floyd get up and go out of the back door and over to his sister’s home. He stated that he was still living with his wife but that they were not getting along too well. He stated earlier that evening he had seen Floyd at a place known as the “Quarter,” and that he was either “high” or drunk. He said that earlier that day he had seen Floyd with R. C. Hudspeth, that they had been talking real loud. He stated that he knew that Floyd carried a pocketknife as he had seen him with it several times previously and had seen him with one about 4:00 o’clock on the afternoon in question. He stated that he went home that evening and asked his wife to go to a movie, and that she said “No,” and that he then left and went by the Zippy Mart and bought some gas. He stated that he then went on back down to his club, and that he had a conversation with several people who came in, among them Bobby Nell Walker and Gale Warren. He also saw Benjamin Floyd, and that he overheard Floyd say that “Juanita said you’d better bring your A_ on over cause Carl Ray has gone to the show.” He said that he saw Ben Floyd leave and that he waited a little while, then he drove on over there. He said that he saw Ben Floyd’s car parked over at Betty’s house. He said that he went over and knocked on the door and that a little boy, known as “Peanut” answered it, and he told “Peanut” to tell Ben that he wanted to talk with him. He said that just prior to this time he had seen Ben leave his own home before going over to where he knocked on the door. He said that when Floyd came out of the house, he told him, “Ben, you know I know what is going on,” and that Ben said, “Yeah.” He stated that he told Ben, “The best thing you can do is get the woman and you all get the hell out of here, and don’t let me catch you down here no more.” He stated that he was referring to Juanita. He said that Ben said, “You know who the hell you are talking to don’t you,” and he said, “Yes,” and that Ben then said, “I’ll go to your G.D. house any time I get ready.” He stated that Donald Lee Walker walked by about this time, and as he did so, Floyd cut him across the face with his knife. He stated that as Floyd swung at him, he swung back and hit Floyd in the mouth with his fist. He stated about this time Juanita came out of the house and called to them, and that she was putting her blouse on. He stated that about this time Ben ran up behind him and said, “I will kill you, you s. o. b.” He stated that Ben had a knife in his hand as he approached him and that he told Ben to stop, and he again a second time told him to stop, and that he then pulled his pistol and fired low. He stated that he did not intend to shoot Ben, but was trying to make him stop as he was coming at him with his drawn pocketknife. He stated that he only shot once, and that he carried a pistol because he usually had a great deal of money with him when he left the club as he was the manager, and that it was not unusual for him to have $800.00 or $900.00 with him. He said that that evening when the sheriff came to talk with him he told the sheriff that he had just fired once and took the sheriff and got the pistol and gave it to him. He said that he had no intention to kill Floyd, and that it was only when Floyd threatened him that he fired.

On cross-examination Walker stated that Ben “Small Change” Floyd often times came to the club. He also stated that he had never been in any trouble before or had never shot someone, but that he had once had a fight with a pool cue with a man.

John Henry Williams testified that he lived in Headland on November 16, 1975. He stated that he had been down by the Rainbow Inn on the afternoon in question and had seen Ben Floyd drinking that afternoon, and that he was in his opinion “high” and was talking loud and boisterous and that you could not help but hear things he was saying, and that Carl Ray was working behind the counter, that he never did see Carl Ray do any drinking.

Bobbie Jenkins testified that she lived at 109 Peachtree Street in Headland on November 16,1975. She stated that she knew Carl Ray Walker and Juanita Walker and also Ben Floyd. She said that Ben Floyd, about 5:30 or 6:00 that afternoon, had been down at the Rainbow Inn, and that he was “high” in her opinion, that she heard Ben talking loud and saying things, and that he told her “Bobbie, you had better come talk to me because I am fixing to go F— her.” She stated that she knew he was talking about Carl Ray’s wife.

Milton Fry testified that he was living in Headland on November 16,1975. He stated that he had seen Benjamin Floyd with Juanita Walker on several occasions, and that he had in fact had seen them on one occasion down at the Rainbow Inn where Carl Ray Walker worked.

Deputy Sheriff Johnny Bradley testified that on November 16, 1975, he had participated in the investigation of the shooting of Benjamin Floyd. He stated that he had seen Carl Ray Walker, the appellant, that night, and that he had talked with him about an hour after the shooting. He said that it was not unusual for Carl Ray Walker to have large amounts of money on his person as he ran the Rainbow Inn. He stated that the shooting in question occurred about 7:53 that evening.

The appellant then presented a number of character witnesses who all then testified that in their opinion the appellant was of good character and peaceful reputation, and that his reputation in the community was good. Three of the character witnesses were police officers from Headland.

At the close of the case the appellant requested the affirmative charge in writing, which was refused, and also filed a motion for new trial which challenges the weight and sufficiency of the evidence, the appellant insisting that he had no intention to kill Floyd, and that the evidence would not sustain a verdict and judgment of murder in the second degree.

I

The appellant contends that the State failed to prove a prima facie case of second degree murder.

In Carmichael v. State, 52 Ala.App. 25, 288 So.2d 807, we find the following:

“Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation. Smith v. State, 47 Ala.App. 513, 257 So.2d 372; Young v. State, 47 Ala.App. 674, 260 So.2d 406; Miller v. State, 38 Ala.App. 593, 90 So.2d 166; Warren v. State, 34 Ala.App. 447, 41 So.2d 201.
“In Miller, supra, we find:
“ ‘ “Legal Malice” as an ingredient of murder is an intent to take human life without legal excuse, justification or mitigation, and it may be presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption. Coates v. State, 1 Ala.App. 35, 56 So. 6: Warren v. State, supra.’ “Here, the appellant’s use of the pistol presented sufficient evidence from which the Jury could infer that he acted with malice.
“The fact that the appellant denied having intended to kill the deceased is not a proper criteria.
“In Rogers v. State, 49 Ala.App. 78, 268 So.2d 859, this Court noted:
“ ‘However, as to second degree murder, the crime for which appellant stands convicted, the law in Alabama is such that a finding of specific intent to kill is unnecessary to support a conviction. Smith v. State, 154 Ala. 31, 45 So. 626; Titus v. State, 117 Ala. 16, 23 So. 77; Fowler v. State, 155 Ala. 21, 45 So. 913 .. . .’
“The conflict in the evidence presented a question for the Jury to determine, and the evidence was sufficient, if believed by the Jury, under the required rule to support the verdict. Miller v. State, 38 Ala.App. 593, 90 So.2d 166; Rogers v. State, supra.”

II

At the conclusion of the trial court’s oral charge, the appellant’s attorney announced, “Satisfied.” The trial court then gave some four written requested charges, but refused the affirmative charge, and also requested two charges which had to do with “that the appellant had gone to his house in a peaceful manner for the purpose of adjusting a prior difficulty, i. e., Floyd’s adulterous conduct with his wife.” This charge is faulty, not only in that it is argumentative and invasive of the province of the jury, but such charge does not correctly state the law, and was therefore properly refused. We find that the trial court did properly charge on the elements of self-defense and that the remaining charges were either covered by the trial court’s oral charge, or the given charges, and that the remainder were therefore properly refused. Title 7, Section 273, Code of Alabama 1940.

We have carefully examined this record as required by law and find same to be free from error. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur except CATES, P. J., not sitting.


author: L. S. MOORE, Retired Circuit Judge.

text:
    Luke Jerome ARNOLD, alias v. STATE.
    4 Div. 483.
    Court of Criminal Appeals of Alabama.
    Nov. 16, 1976.
    William M. Jackson, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   L. S. MOORE, Retired Circuit Judge.

The appellant was indicted, tried, convicted and sentenced for possessing marijuana. From the final judgment, the appellant appealed.

On the trial of said cause, Dale Mack testified in substance that he was a police officer; that on March 2, 1976, about 10:30 a. m., he saw the appellant at a Citgo Station at the corner of Fortner and Park; that the appellant was in a car and the witness drove his car broadside to appellant’s car; that a passenger in appellant’s car rolled down the window and that he smelled marijuana smoke; that Winford Arnold was a passenger in the car. This witness further testified that he asked the two people in the car to step out of the car; that the appellant was in the car on the driver’s side and Winford Arnold was in the car on the passenger’s side; that they got out of the car and that they searched the car and found marijuana under the passenger’s mat of the car; that it was green vegetable matter along with seeds and in a bag that looked like a sandwich bag; that he sealed the bag it was in; that he took it to his home and kept it in a strong box with a lock on it for fourteen or fifteen days and then turned it over to Officer Jackson.

This witness further testified that on the occasion in question, it was dark as he approached the filling station and the appellant’s car; that the station was closed and it looked suspicious; that they stopped because the car was there and the station was closed; that as he approached the car there was movement in the car; that the passenger was making the movement while appellant was attempting to get out of the car. This witness was asked the following question and .answered the same:

“Q. Did you find evidence that marijuana had been smoked in the automobile.
“A. No Sir, just the smoke itself.”

He further testified “I smelled the smoke,” that he did not actually see smoke; that appellant offered an explanation for the odor in the car by saying it was soured from spilled milk; that Officer Robert Hawlette came to the scene and assisted him in the arrest; that as he approached the car his attention was directed to the passenger as he was the nearest one to the witness; that he really could not tell what the appellant was doing; that he was paying more attention to the passenger than he was to the driver.

This witness also said the appellant told him he owned the car and that appellant was in the car on the driver’s side as he approached the car.

As to this witness’ qualification to testify “he smelled marijuana smoke” in and about the car we quote from the record the following:

“Q All right. Now, when you say you smelled marijuana, did you smell mari- ' juana or marijuana smoke or—
“A Marijuana smoke, yes, sir.
“Q All right. How long have you been a police officer for the City of Dothan? “A Approximately two and a half years. “Q Have you had occasion during that period of time to observe marijuana, and to smell marijuana smoke?
“A Yes, sir, I have.
“Q On approximately how many occasions have you smelled marijuana smoke?
“A 20 or 25 times, roughly.
“Q So, in your opinion, this was marijuana smoke that you smelled?
“A Yes, sir.
“Q Coming from the vehicle?
“A Yes, sir.”

We also quote from the record the following question addressed to this witness and his answer thereto:

“Q Could Jerome Arnold have reached from the driver’s side all the way across and put it under that mat without you seeing him duck down and move over there?
“A Yes, sir, I guess he could have.”

Robert Hawlette, a policeman for the city of Dothan, arrived at the service station about 10:40 on the day in question and he testified in substance:

That when he got there Officer Dale Mack, the appellant and his brother were present; that at that time the appellant was standing by the patrol car and Dale Mack was standing by the appellant’s car; that appellant said he owned the car and Officer Mack showed him a clear plastic bag with green vegetable matter in it with seed in it. That he had seen marijuana numerous times and in his judgment the bag contained marijuana. He said he noticed the mat in the front of the car was damp and the contents of the bag were dry. He did not arrive with Officer Mack but came in a few minutes and the marijuana had been removed when he got there. He testified that when he got there he looked in the car and that he smelled marijuana smoke and that they had smelled marijuana smoke many times before.

By other witnesses the State proved the chain of possession of the marijuana until it arrived into the hands of the employees of the Department of Toxicology and Criminal Investigation at Enterprise, Alabama, where it was analyzed by Melinda Long, who after stating her qualifications, testified that the package contained marijuana. The State then introduced the records of the Houston County Court which showed that the appellant pled guilty and was convicted in that court and fined $100., and sentenced to hard labor for twelve months on July 12, 1975, and the clerk of the court testified that the said conviction was for the possession of marijuana.

When the State rested its case, the appellant moved to exclude the State’s evidence on the ground that the State had failed to show a prima facie case and the court overruled said motion.

The appellant testified in substance that he owned the automobile in question and that was described by the police officers; that it had two doors; that he bought it on the 18th day of February, and was arrested in this case on March 2; that he had owned the car about two weeks; that the carpets in the car were rotten; that the car leaked and the carpets became wet and had odor; that the policeman that arrested him, pulled up and.asked, ‘“What’s that smell,’ and I said ‘well that’s probably my carpet.’ ” That the policeman shined his light down there and he started searching my car; that he gave the policeman an explanation for the odor; that his brother was riding on the passenger side of the car and he was on the driver’s side; that the police searched each of them and found nothing on either of them; that no one in the car was smoking marijuana; that he had loaned the car during the two weeks he had owned it, to his cousin twice and a number of people had ridden in it; that he had never seen any one put any marijuana in the car and he had not done so. He further testified that it had been quite a while since he had smoked marijuana and that he had not smoked any that night; that he could possibly tell marijuana from other smoke; that the odor in “my car” could have smelled like marijuana; that he rode in the car every day, so they did not “bother me that bad but somebody that hadn’t been riding in it when they would stick their head in there then they know there is a bad odor in it”; that he did not notice any movement on the part of his brother as the police approached; that they found the marijuana under the floor mat; the floor mat was on top of the carpet; that he saw the package the officer got but that he did not put it here.

The brother of the appellant that was with the appellant on the night in question testified in substance that he was not moving around when the police approached; that he did not put the marijuana under the car mat; that they did not know it was there; that no one smoked marijuana while he was in it; that the carpet stunk but that he did not smell marijuana in the car.

The appellant in his testimony admitted that he had been previously convicted for possessing marijuana.

During the argument of the district attorney, the record disclosed the following:

“MR. JACKSON: Your Honor, I want to object to what Mr. Martin is saying. That is prejudicial to the jury.
“THE COURT: I think that is permissible argument for him to say what he believes. I overrule the objection.”

The appellant complained on this appeal that the trial court should have sustained his motion to exclude the State’s evidence and that the general charge should have been given in his favor because the evidence failed to show the appellant’s knowledge of the presence of the marijuana in the appellant’s car.

In Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520, this court said:

“The well established rule in cases involving possession of prohibited liquors is that where actual manucaption is not shown and constructive possession is relied upon, the state must show beyond a reasonable doubt, in addition to the constructive possession, that the accused knew of the presence of the prohibited beverages. Grimes v. State, 38 Ala.App. 94, 76 So.2d 684; Davis v. State, 40 Ala.App. 609, 119 So.2d 236. The rules of evidence in a prosecution for possession of marijuana are the same as those applicable in every other criminal case.”

Judge Price in Adkins v. State, 38 Ala.App. 659, 93 So.2d 519 stated:

“ ‘It has many times been held by this court that a constructive possession alone is not sufficient to justify a conviction for the unlawful possession of whisky. There must be evidence from which the jury can infer a guilty scienter. Burroughs v. State, 24 Ala.App. 579, 139 So. 115.’ Pate v. State, 26 Ala.App. 487, 162 So. 571. See also Wilbanks v. State, 28 Ala.App. 456, 185 So. 770; Grimes v. State, ante, 38 Ala.App. p. 94, 76 So.2d 684.
“It is equally well settled that such guilty scienter may be established by circumstantial evidence, Emerson v. State, 30 Ala.App. 89, 1 So.2d 604; certiorari denied 241 Ala. 141, 1 So.2d 605, and that a charge of unlawful possession of prohibited liquors may be sustained upon circumstantial evidence, just as can any other criminal charge. Walker v. State, 19 Ala.App. 20, 95 So. 205; Ex parte Walker, 209 Ala. 702, 95 So. 922.”

In the case before us the automobile in question belonged to the appellant. He was present in it and had driven a short time before the officers appeared on the scene where the officers found it with him in it. The only other person present in the car was his brother; that officer drove his car up on the passenger side of appellant’s car. When the passenger rolled the window down the officer stated he smelled marijuana smoke coming from appellant’s car and that he searched the car and smelled marijuana and that he found the marijuana under the mat in the front seat. The appellant’s brother testified the car stunk. The appellant admitted he had in the past smoked marijuana and he must have known how it smelled.' The appellant had been previously convicted for possessing marijuana. Appellant’s brother denied knowing the marijuana was in the car.

We are of the opinion that the facts and circumstances shown here presented a jury question and were sufficient to sustain their verdict of guilty. The motion, to exclude the evidence and the general charges were properly denied and refused. Error, therefore in that respect, does not appear.

The appellant endeavors to predicate error on the argument of the district attorney to the jury. In that respect we have set out all the record disclosed on the subject. The record does not set out any part of the argument complained of. We do not know what' the district attorney said he believed. Therefore that question is not presently by the record. Any ruling made by this court on the matter in the state-of the record, would be mere conjecture. Error will not be predicated on such a record.

We have searched the entire record for error and we have found no error sufficient to reverse.

Therefore, it is ordered and adjudged by this court that the judgment of the trial court be and is affirmed.

The foregoing opinion was prepared by Honorable L. S. MOORE, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Mary ANDERSON, alias v. STATE.
    4 Div. 492.
    Court of Criminal Appeals of Alabama.
    Nov. 16, 1976.
    Grady 0. Lanier, III, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon a two-count indictment charging (1) burglary in the second degree, and (2) grand larceny. Prior to arraignment it was determined that appellant was indigent and counsel was appointed to represent her. At arraignment she pleaded not guilty. The jury returned a general verdict finding appellant guilty as charged. The Court sentenced her to three years imprisonment in the penitentiary. She gave notice of appeal and was furnished a free transcript and trial counsel was appointed to represent her on this appeal.

The evidence for the State is not disputed that on the night of January 11,1976, the B & R Grocery Store located at 400 Cadiz Street in the city of Andalusia, Alabama, was broken into. The store was owned and operated by Mr. Donnie Hugh Sellers. When Mr. Sellers arrived at his store on the morning of January 12, 1976, he found that the hasp and lock on the front door were broken and the inside bolt had been removed from the back door. He immediately called the Andalusia Police Department and did not touch anything until the police officers came to his store. After the officers arrived, Mr. Sellers took inventory and discovered that one automatic twelve-gauge shotgun was missing. Also missing were, nine cases of beer, fifteen cartons of cigarettes, fifteen Bic disposable type lighters, five pocketknives, Vienna sausage, a five-pound stick of bologna and various kinds of cookies. He testified that the shotgun was worth $100.00 and the nine cases of beer were worth $65.00.

Police Officer Joe Sanders was assigned to investigate the burglary and Officer Shakespear was assigned to assist him. An intensive investigation led to the arrest of eight persons, including appellant. Four of the arrested persons were juveniles. Officer Sanders arrested appellant at her sister’s house and gave her the Miranda rights and warnings. He then carried her to the Andalusia jail. The next day he brought her from the jail to the Sheriff’s Office and asked her if she remembered the rights that he had read to her at the time she was arrested, and she replied that she remembered her rights. At this point there was a voir dire hearing out of the presence and hearing of the jury.

At the voir dire hearing Officer Sanders testified that when he arrested appellant, he gave her the Miranda rights and warnings, and he asked her if she understood her rights and she responded by saying “yes”. The next day Sanders had another conversation with appellant and before asking her any questions, he asked her if she still remembered and understood her rights and she responded in the affirmative. Sanders further testified that neither he nor anyone in his presence or hearing threatened or abused appellant in any way, nor offered her any reward or hope of reward to persuade her to make a statement. That no promises or other inducements of any kind were made to her to get her to make a statement.

Sanders then related that appellant admitted that she knew they were going to break into the B & R Grocery and that she stood outside to watch and see if anybody was near the store while the men broke into the store. That appellant further told the officer that they carried the beer and food to her home and drank the beer and ate the food. She further stated that the cigarettes and other stolen items were hidden in her loft, and they had a party that night.

Appellant testified at the voir dire hearing and denied telling Officer Sanders she watched while the men and boys broke into the store. On cross-examination appellant admitted she was not mistreated or threatened by the officer to get her to make a statement and that no rewards, promises or other inducements were held out to her to get her to make a statement. She stated that she spoke on her own free will and that she remembered and understood her constitutional rights which were given to her by the officer the night she was arrested.

At the conclusion of the voir dire hearing the trial court ruled that her confession was voluntarily, knowingly and intelligently made.

Before the jury the State laid the proper predicate and appellant’s confession was related to the jury.

All the other seven persons arrested in connection with the burglary of the B & R Grocery Store signed confessions. One co-indictee put appellant as the “look out” at the time of the burglary and his confession was admitted into evidence without objection.

The corpus delicti of the crimes of burglary and grand larceny was clearly established by the testimony of the owner and operator of the store. Appellant’s oral statement was properly read to the jury. Elrod v. State, 281 Ala. 331, 202 So.2d 539.

Appellant contends that reversible error was committed when Officer Sanders did not repeat the Miranda warnings to appellant on the day she was questioned. It is uncontradicted that appellant was given the Miranda rights and warnings the night before when she was arrested. We have held otherwise. Austin v. State, 56 Ala.App. 307, 321 So.2d 272; Jones v. State, 47 Ala.App. 568, 258 So.2d 910.

The sufficiency of the evidence is not presented to us 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 Court’s oral charge; no motion for a new trial was filed; and there were no adverse rulings of the trial court on the admission of any evidence which contained merit. Alabama Digest, Criminal Law, <s=>1063(1).

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Grady Ellis MAGOUIRK v. STATE of Alabama.
    7 Div. 495.
    Court of Criminal Appeals of Alabama.
    Nov. 16, 1976.
    No brief from appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State,, appellee.
   PER CURIAM.

The appellant, Grady Ellis Magouirk, was convicted by a jury in the circuit court of Calhoun County, where he was charged by complaint of the District Attorney with the offense of using nets for commercial fishing purposes in impounded public waters of Alabama in which Morone Saxatilis, commonly known as saltwater striped bass, have been stocked, in violation of Regulation A-719 promulgated by the Commissioner Department of Conservation and Natural Resources of the State of Alabama, and sentenced to pay a fine of seventy-five dollars ($75.00), and court costs, from which he appealed to this Court.

Appellant is now and was at all proceedings in the lower court represented by counsel employed by him. This cause was submitted to this Court on brief of appellee.

Upon the State resting its case the appellant moved to dismiss the complaint because the evidence shows that the offense, if there be any, occurred not in Calhoun County, but in St. Clair County. The court overruled the motion to dismiss.

The appellant then rested his case without offering any evidence, and requested the following charge:

“Defendant’s Charge No. 1
I charge you members of the jury that, if you believe from the evidence that the offense charged in the complaint occurred in St. Clair County, Alabama then you should acquit the defendant.”

Appellant’s Charge No. 1 was refused by the court.

The undisputed evidence is that the offense occurred on the waters of the Coosa River, between Calhoun County and St. Clair County, in the State of Alabama, about four or five miles below Henry Neely Dam, and above Logan Martin Dam, where the river is approximately 600 feet wide, and 15 yards from the bank on the St. Clair County side of the river. The question presented to this Court by this record is: Was venue in Calhoun County, or St. Clair County, or both?

This Court takes judicial knowledge of the fact that the west boundary line of Calhoun County and the east boundary line of St. Clair County is the thread of that portion of the Coosa River running between St. Clair County and Calhoun County. St. Clair County v. Calhoun County, 266 Ala. 177, 94 So.2d 777.

Venue statute reads:

“Offense committed on or near county boundary. — When an offense is committed on the boundary of two or more counties, or within a quarter of a mile thereof, or when it is committed so near the boundary of two counties as to render it doubtful in which the offense was committed, the jurisdiction is in either county.” Code 1940, Title 15, Sec. 95.

We hold that even though the alleged offense was undisputedly committed in St. Clair County, the scene of the crime being less than a quarter of a mile from the county line, venue was proper in either Calhoun or St. Clair County. Humphries v. State, 39 Ala.App. 316, 98 So.2d 625. The lower court did not err in overruling the appellant’s motion to dismiss the complaint, and in refusing to give appellant’s requested Charge No. 1.

After the trial court instructed the jury, and before the jury retired to make up its verdict, the following occurred:

“MR. WILLIAMS: (Attorney for appellant) Your Honor, we except to that portion of the Court’s charge concerning the boundaries of the alleged offense charged with respect to the site of the alleged offense, which is unknown or in doubt. And we further except to that portion of the Court’s charge as to what constitutes commercial fishing.”

The proper way to reserve an exception to part of an oral charge is to recite what the court said, or the substance thereof. Smith, Jr. v. State, 53 Ala.App. 657, 303 So.2d 157. The above objection is merely descriptive and by reference only, and is not sufficiently specific to meet the requirements of the rule. Winn v. State, 38 Ala. App. 156, 79 So.2d 75; Hunter v. State, 38 Ala.App. 351, 83 So.2d 737. The foregoing objection to the oral charge presents nothing to this Court for review.

The validity of the regulation the appellant was convicted under has been upheld by a clear and concise opinion written by Honorable John O. Harris of this Court. Sanders and Bernard Ray Tanner v. State, 53 Ala.App. 534, 302 So.2d 117.

We have examined carefully the entire record before us, and find from such examination that there is sufficient evidence to sustain the jury verdict finding the appellant guilty, and that there are no errors in the record prejudicial to him.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


text:
    William Lewis JONES, alias v. STATE.
    7 Div. 501.
    Court of Criminal Appeals of Alabama.
    Nov. 16, 1976.
    J. Todd Caldwell, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for buying, receiving, and concealing 137 Variator Sections from gasoline pumps of the total value of $685.00, the personal property of An-niston Pump Shop, Incorporated. The jury found the appellant guilty as charged and fixed the value of the stolen property at being in excess of $25.00. The trial court entered judgment which set sentence at three years imprisonment. •

The sole issue presented in this appeal is based upon an objection to certain statements of the district attorney made during closing argument.

Charles W. Brown testified that he was owner of the Anniston Pump Shop, Incorporated, on January 15-16,1975. He testified that upon opening the shop shortly after 8:00 o’clock on Friday morning, January 16, 1975, he discovered a substantial number of computer variators niissi'ng, which were to be used for gasoline pumps. He stated that 137 of these were missing and that he recovered a number of them at Draper’s Scrap Metal and at Oxford Scrap Metal in the City of Anniston, Calhoun County, Alabama, a few days thereafter..

. Paul Butler testified that he did the purchasing for L. A. Draper and Son in Anni-ston, . Alabama. He testified that during January, 1975, the appellant drove up in a white Chevrolet pickup truck and sold a truckload of computer pump variators to him. He positively identified the appellant as being the party who drove the truck and who signed the purchase invoice.

Chester Jones testified that on January 16, 1975, he saw the appellant drive up in a white looking pickup truck and that he sold them á load of scrap metal, some variators which are used for gasoline meters. He said that he had known the appellant for several years and positively identified him in court.

Police Detective James Ramey testified that there was a white Chevrolet pickup truck parked at the appellant’s home when he arrested him.

The appellant’s sole witness was one Bill McKinney. He testified that he was a self-employed concrete finisher, and that the appellant frequently did work for him. He testified that during January, 1975, he was working on a job at Citizens Hospital in Talladega, Alabama. He stated that the appellant was working with him on the night in question, and that they worked all night because they had just poured some fresh concrete, that they did not return to Anniston until about 10:30 a. m., January 16, 1975.

I

The appellant argues that the following colloquy constitutes prejudicial argument, requiring reversal:

“MR. FIELD: . . . [T]hat larceny and stealing and crimes of that type made up the largest portion of .
“MR. CALDWELL: Your Honor, we would like to object to his statement, that it is improper, this man is charged with Buying and Receiving, and not stealing something.
“THE COURT: Overruled.
“MR. CALDWELL: We except.”

We are of the opinion that the statement shown above was a matter of legitimate inference based upon the evidence in this cause. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353, and authorities therein cited.

Moreover, the statement, as set out above, is fragmentary and therefore is not properly presented for our review. McClary v. State, 291 Ala. 481, 282 So.2d 384; Browder v. State, 54 Ala.App. 369, 308 So.2d 729, cert. den. 293 Ala. 746, 308 So.2d 735.

We have carefully examined this record and find same to be free from error. The judgment is hereby

AFFIRMED.

All the Judges concur.


text:
    William James KING, Petitioner, v. STATE of Florida, Respondent.
    No. 48091.
    Supreme Court of Florida.
    Oct. 7, 1976.
    Richard W. Ervin, III, Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for respondent.
   PER CURIAM.

We have granted certiorari without oral argument in this case because of conflict between the opinion of the District Court of Appeal, First District, reported at 317 So.2d 852, and Edwards v. State, 223 So.2d 746 (Fla.3d DCA 1969). We have jurisdiction under Article V, Section 3(b)(3), Florida Constitution.

After examining the briefs submitted by the parties to this cause, we conclude that there is a conflict in decision. Upon review of the authorities and reasoning relied on by the First and Third District Courts of Appeal in reaching the inconsistent results demonstrated by the two opinions, we are persuaded to the conclusion reached by the First District Court of Appeal. Accordingly, we adopt in its entirety the relevant portion of the opinion filed by the District Court of Appeal, First District:

“BOYER, Chief Judge.
“We here consider the issue of whether there exists under Florida law the offense of attempted uttering of a forged instrument. Appellant, defendant below, was charged with and convicted of uttering a forged instrument as defined by F.S. 831.02. He argued unsuccessfully in the court below that the jury should be instructed as to a lesser included offense of attempted uttering, pursuant to Rule 3.510, RCrP.
“Appellant realizes that in order for the trial judge to instruct the jury on the attempt, he must establish that attempted uttering is an offense cognizable under Florida law. In support of this proposition, appellant relies on Edwards v. State, Fla.App.3rd 1969, 223 So.2d 746. For reasons expressed below, we refuse to follow the reasoning of the Third District as revealed in the Edwards case. As recognized by the Third District in its decision, ‘ * * * an uttering is proved as fully by an attempt to negotiate a forged instrument as it is proved by a completed negotiation. Harrell v. State, 79 Fla. 220, 83 So. 922 (1920); Hazen v. Mayo, 90 So.2d 123 (Sup.Ct.Fla.1956).’ Nevertheless, the Third District held that merely because attempted uttering is not a separate crime from the offense of uttering itself, attempted uttering may be considered a separate offense for the purposes of F.S. 919.16. Logic dictates to us a different conclusion. If a crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime. (22 C.J.S. ‘Criminal Law’ § 74) We, therefore, hold that there is no offense nor crime under Florida law of attempt to utter a forged instrument. Accordingly, the trial court was correct in refusing to give the standard jury instruction on attempt as requested by the appellant.
******
“Affirmed.
“RAWLS and McCORD, JJ., concur.”

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

      “1. The language in F.S. 919.16 is virtually identical to the language contained in Rule 3.510, RCrP.”


author: SUNDBERG, Justice.

text:
    CITY OF NORTH MIAMI BEACH, a Municipal Corporation of the State of Florida, Petitioner, v. SOUTHERN GULF UTILITIES, INC., a Florida Corporation, Respondent.
    No. 48887.
    Supreme Court of Florida.
    Oct. 7, 1976.
    Rehearing Denied Dec. 8, 1976.
    Joseph Nazzaro, City Atty., for petitioner.
    Miller Walton and William J. Gray, Walton, Lantaff, Schroeder & Carson, Miami, for respondent.
   SUNDBERG, Justice.

This is a petition for writ of certiorari to review a decision of the District Court of Appeal, Third District, reported at 323 So.2d 669. It is maintained that there is conflict with City of Tampa v. Tampa Water Works Co., 45 Fla. 600, 34 So. 631 (1903), insofar as the decision under review determines that a municipality may not change a rate set in a contract between the parties, by an ordinance, without a showing by the city that the new rate change is reasonable. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

By its opinion in the instant case, the District Court of Appeal held that the petitioner had exclusive power and authority to determine, change and readjust its water rates or charges from time to time and was not bound by the terms of a contract entered into for supply of water at a set rate to respondent’s predecessor in interest. However, the District Court of Appeal then proceeded to hold that petitioner was not authorized to change the contractual rate by ordinance without a showing that the new rate was reasonable. In our judgment such a holding conflicts with City of Tampa v. Tampa Water Works Co., supra, and, also, is not in accord with the recent decision of this Court in Mohme v. City of Cocoa, 328 So.2d 422 (Fla.1976).

There is no dispute with the proposition of law that a municipality must furnish water to its customers at “a reasonable rate.” City of Tampa v. Tampa Water Works Co., supra; City of Miami Beach v. City of North Bay Village, 313 So.2d 126 (Fla.3d DCA 1975). However, the real question posed is upon whom does the burden fall with respect to proof of reasonableness. The conclusion to be drawn from City of Tampa, supra, is that the municipality has the authority, in the first instance, to determine the reasonableness of a utility rate. The Court in that case assumed that the water rates imposed by the city through passage of an ordinance were reasonable. As in the instant case, there was no allegation in the complaint that the rates established by the city were unreasonable and, therefore, the Court’s decision was based upon the assumption that the rates were reasonable. City of Tampa v. Tampa Water Works Co., supra, at 638. In the case at bar there was a complete absence of pleading or proof on the part of the respondent in the trial court relating to the issue of the reasonableness of the water rate established by petitioner in the ordinance under attack. Respondent’s stance in the trial court was predicated upon its asserted rights arising under the contract with its predecessor, and the issue of the reasonableness of the rates without regard to the contract was neither framed nor tried. The trial court, in the absence of any allegation or proof of unreasonableness of the rates, specifically found in its final judgment that Ordinance No. 74-11 (which established the new rate schedule) was duly, legally and constitutionally adopted and approved “after a Public Hearing.”

In adopting its ordinance revising the rates petitioner acted pursuant to Chapter 26054, Laws of Florida, Special Acts' of 1949, which empowered the City of North Miami Beach to create, own, and operate a water works system in and surrounding the City. It also was empowered to set and collect uniform rates for providing water and to readjust such rates or charges from time to time. We believe that the same principles apply when petitioner acted under the chapter as when a municipality acts under Section 180.191(l)(b), Florida Statutes (1975), where the question of burden of proof of reasonableness is concerned. Pursuant to Section 180.191(l)(b), Florida Statutes (1975), water rates charged by a municipality to non-city resident users must be, inter alia, “just and equitable.” In a recent decision holding that the burden of proving injustice and inequity was upon the customer, we stated

“. . . that a municipality which has utilized the provisions of Subsection 180.-191(l)(b), Florida Statutes, should not be required to come forward to prove the efficacy of its rates unless and until a dissatisfied customer has made a prima facie showing based on competent evidence of invalidity.” Mohme v. City of Cocoa, 328 So.2d 422, 426 (Fla.1976).

In the absence of allegation or proof of unreasonableness by respondents at trial the rates established by petitioner through adoption of its ordinance after a public hearing must be presumed reasonable.

The petition for writ of certiorari is granted, and that portion of the District Court’s decision affirming the judgment of the trial court is approved, but the balance thereof is quashed.

It is so ordered.

OVERTON, C. J., and BOYD, ENGLAND and HATCHETT, JJ., concur.