text:
    Willie James POPE v. STATE.
    7 Div. 410.
    Alabama Court of Criminal Appeals.
   BOOKOUT, Judge.

On October 19, 1976, 345 So.2d 1388, this Court remanded this cause with directions to the circuit court. On November 16,1976, on rehearing, we extended the opinion, stating:

“Through his brief on rehearing, appellant contends that it is impossible to obtain an accurate transcript or a statement in lieu thereof. While we have no reason to doubt this, it is not a matter appearing of record and this Court is bound by the record, not the allegations appearing in brief.
“The trial court is the proper forum to determine whether or not it is possible to provide an accurate transcript or a statement in lieu of a transcript. If on remand to the trial court, appellant can support the allegations, as expressed in his brief on rehearing, the trial court should make a finding to that effect. The trial court is authorized to-grant a new trial if its findings in this regard are favorable to the appellant.” (Citations omitted.)

The State petitioned the Supreme Court for a writ of certiorari. On January 7, 1977, the trial court, acting on our extended opinion, above, granted appellant a new trial. Certification of that fact was filed with this Court and with the Supreme Court on January 12, 1977. The Supreme Court, by order of January 13, 1977, 345 So.2d 1390, dismissed the petition for writ of certiorari as moot. We therefore dismiss the appeal.

APPEAL DISMISSED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Vanda R. MAGEE, Administratrix of the Estate of Janice Faye Magee, Deceased v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 49382.
    Supreme Court of Mississippi.
    May 25, 1977.
    Michael J. Malouf, Jackson, for appellant.
    Wise Carter Child Steen & Caraway, William M. Dalehite, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before PATTERSON, P. J., and SUGG and WALKER, JJ., and NEAL B. BIG-GERS, Commissioner.

REVERSED AND REMANDED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, BROOM and LEE, JJ., concurring.


text:
    Madeleine Lotterhos ATWELL and First National Bank, Trustee for Robert Russell Lotterhos v. HINDS COUNTY BOARD OF SUPERVISORS et al.
    No. 49410.
    Supreme Court of Mississippi.
    May 25, 1977.
    Young, Scanlon & Sessums, James Leon Young, Jackson, for appellant.
    W. E. Gore, Jr., John M. Putnam, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

Before INZER, P. J., and SMITH and BROOM, JJ.

AFFIRMED.

GILLESPIE, C. J., PATTERSON, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ., concurring.


text:
    Paula BULLOCK v. STATE.
    4 Div. 472.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Earl V. Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and Milton C. Davis, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

A jury convicted appellant-defendant as charged in an indictment (1) for grand larceny of some motor equipment suitable for a boat and (2) of receiving and concealing the equipment, knowing it had been stolen. The trial judge imposed imprisonment for three years.

The trial court, after some evidence on the merits had been taken before the jury, held an in camera hearing at which time evidence was taken on the voluntariness of a written confession by defendant which, during the in camera hearing, was offered in evidence.

Defendant thereupon objected on the ground that the confession had not been shown to be voluntary. “THE COURT: Overruled. I think the voluntariness of it should be for the jury.”

Appellant here contends that the trial court committed reversible error by allowing the confession in evidence without first adjudicating that the confession was voluntary.

It appears to us that the ruling of the trial court fails to meet the mandate of Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), from which we quote:

“[2] Furthermore, Georgia’s . highest court, in finding that its rule satisfied the requirements of Jackson, overlooked the fact that the same safeguards offered by the Georgia practice were present in the procedures of New York in Jackson and were rejected by this Court. A constitutional rule was laid down in that case that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant but it is not for the jury to make the primary determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Here there has been absolutely no ruling on that issue and it is therefore impossible to know whether the judge thought the confession voluntary or if the jury considered it as such in its determination of guilt. Jackson, having been decided June 22,1964, was binding on the courts of Georgia in this case, it having been tried October 7, 1964. Such rule is, as we have said, a constitutional rule binding upon the States and, under the Supremacy Clause of Article VI of the Constitution, it must be obeyed.”

It is not “unmistakably” clear that the trial court made a judicial determination on the issue of voluntariness. It could reasonably be inferred that he left that issue for the jury to decide.

But such issue is a preliminary question for the court and not the jury. It is true that the weight and credibility of the confession, taking into consideration the circumstances surrounding its elicitation, is for the jury after the court has first determined its voluntariness. If the trial court adjudicates the confession to be involuntary, it is inadmissible. Edwards v. State, 51 Ala.App. 433 (pp. 6, 7), 286 So.2d 308, cert. den. 291 Ala. 777, 286 So.2d 313; Dyer v. State, 241 Ala. 679, 4 So.2d 311 (7, 9). Otherwise, it is admissible.

Because the trial court failed to determine with adequate clarity the voluntar-iness vel non of the confession, does not necessitate or require a reversal of the judgment of guilt, but only at this juncture a remand of the cause. We follow the pronouncement in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964) from which we quote:

“It is New York, therefore, not the federal habeas corpus court, which should first provide Jackson with that which he has not yet had and to which he is constitutionally entitled — an adequate evidentia-ry hearing productive of reliable results concerning the voluntariness of his confession. It does not follow, however, that Jackson is automatically entitled to a complete new trial including a retrial of the issue of guilt or innocence, Jackson’s position before the District Court, and here, is that the issue of his confession should not have been decided by the convicting jury but should have been determined in a proceeding separate and apart from the body trying guilt or innocence. So far we agree and hold that he is now entitled to such a hearing in the state court. But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson’s confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. True, the jury in the first trial was permitted to deal with the issue of voluntariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the state court, at an evidentia-ry hearing, redetermines the facts and decides that Jackson’s confession was involuntary, there must be a new trial on guilt or innocence without the confession’s being admitted in evidence.” [Footnote omitted].

The trial court will proceed at a reasonable time after this remand to afford appellant-defendant a hearing that is consistent with due process on the issue solely as to the voluntariness vel non of the confession. This shall be before the court and not before the jury.

The trial court will accordingly supplement the record now on file in this court with a record of the proceedings and its judgment as ordered, supra. We will then adjudicate an affirmance or reversal of the judgment of guilt as the facts mandate.

The cause is remanded.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Retired Circuit Judge, serving as a judge of this Court, under the provisions of § 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REMANDED WITH DIRECTIONS.

All the Judges concur.


text:
    Paula BULLOCK v. STATE.
    4 Div. 472.
    Alabama Court of Criminal Appeals.
    Jan. 4, 1977.
   BOWEN W. SIMMONS, Retired Circuit Judge.

ON THE MERITS AFTER REMAND

The trial court, after remand, proceeded to hold a hearing as directed by this court and has supplemented the record now on file with a record of the proceedings and its judgment on the voluntariness vel non of the confession.

The court ordered and adjudged that the written statement signed by Paula Bullock and introduced into evidence on the previous trial of the case was voluntarily given by defendant.

The record of the trial in chief before the jury adequately shows that the defendant voluntarily made a statement to the State’s witness, Deputy Harry B. Mack, and also voluntarily signed a statement that was introduced in evidence by the State. In both instances, proper predicate of volun-tariness is shown by the evidence before the jury. Deputy Stallings testified about the statement being signed by the defendant in his presence. This statement substantially verified in writing what defendant orally said to Deputy Mack.

We have examined the entire record and it is our opinion that the trial was free of prejudicial error and that the judgment should be and it is affirmed.

The foregoing opinion, Ala.Cr.App., 346 So.2d 1, was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 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.


author: BOWEN, Judge. BOWEN, Judge.

text:
    Leslie Eugene FISHER v. STATE.
    1 Div. 755.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.
    Peter F. Burns, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted on June 28, 1976, for burglary in the second degree of The Pit Stop Package Store in Mobile, Alabama. The jury found him guilty as charged and the trial judge sentenced him to nine years in the penitentiary. Notice of appeal was given. The appellant’s court appointed trial counsel was relieved of his duty of representation and another attorney was appointed to represent this appellant on the appeal of his conviction.

The only question presented for review is whether the trial judge abused his discretion by not granting a continuance after the appellant informed the court that he wanted his court appointed attorney dismissed (“off the case”) because he was not being represented properly.

A discussion of the facts constituting the crime is not necessary. It is sufficient to state that on May 15,1976, at 4:30 A.M., the appellant was caught coming out of The Pit Stop Package Store with a case of beer in his arms.

The appellant was arraigned on August 9, 1976, and an attorney was appointed to represent him. At that time, the trial was scheduled for September 22, 1976. During this time the appellant remained in jail unable to post bond.

On the day set for trial, the appellant’s case was called and a jury venire was brought in the courtroom. Before the proceedings advanced further, the following occurred:

“MR. FISHER: I want this man off my case. He is not representing me properly.
“THE COURT: Mr. Davis was appointed to represent you.
“MR. FISHER: He’s not representing me properly. I need time to get another lawyer.
“THE COURT: You’ve had since May.
“MR. FISHER: He ain’t been to see me and he’s not representing me.
“THE COURT: In what way has he not represented you?
“MR. FISHER: I asked him to get my bond down.
“THE COURT: Let me caution you. Now you’re the Defendant in this case and you’re making this statement in the presence of prospective jurors.
“MR. FISHER: Man, I don’t want this lawyer.
“THE COURT: Listen, don’t interrupt me now when I’m talking to you, do you hear? You are making statements which could be prejudicial to you in the trial of your ease in the presence of jurors from whom I’m going to select twelve to try the case.
“MR. FISHER: My bond should be dropped down and he didn’t do it.
“THE COURT: Let me say this. With respect to reduction of bond, that is a judicial function and only I could reduce the bond.
“MR. FISHER: The other one in the case, his bond was dropped down and my bond should be dropped down.
“THE COURT: I don’t know anything about that at all. The court is going ahead with the trial of this case.
“MR. FISHER: I have no lawyer.”
* * * * * *
“MR. FISHER: This man is not representing me.
* * * * * *
“MR. FISHER: If the court give me time to get a lawyer. I have no lawyer. * * * * * *
“MR. FISHER: I don’t want this lawyer. He ain’t trying to get me a fair trial.
* * * % itt
“MR. DAVIS: Judge, for the record, I’d like to ask to withdraw from this case.
“THE COURT: Deny your request.”

The court then determined that there was no member of the jury venire who felt that he could not disregard the appellant’s comments and give the appellant a fair trial based solely on the evidence. The appellant then voluntarily left the courtroom going to the hall which was the entrance to the jail (the “holding slot”). The trial judge then ordered the appellant taken out of the courtroom and for a second time qualified the jury'as to any bias or prejudice caused by the appellant’s conduct and remarks.

The appellant was returned to the courtroom and the following occurred:

“THE COURT: I want to ask the Defendant this. I remind you that on August the 9th when you were arraigned for this offense, Judge McRae appointed a lawyer at your request. He appointed
Mr. Davis—
“MR. FISHER: I told him my people were trying to get me a lawyer.
“THE COURT: —he appointed Mr. Davis and this court retains the appointment. Now my question to you is are you going to be seated in the courtroom at the counsel table and behave yourself and not interrupt as you have been doing?
“MR. FISHER: I’m not going to behave myself and I’m not going to be quiet.”

The appellant was then removed from the courtroom. Several times throughout the course of the trial, the trial judge ordered the appellant to be brought back into the courtroom to determine whether he was willing to. control himself and participate. The appellant adamantly and obstinately refused stating that he would behave himself, “when I get a lawyer of my own”; “I want to have the lawyer of my choice”.

At the conclusion of the State’s case, the appellant was once again returned to the courtroom.

“MR. DAVIS: For the record I would like to state that there has been a complete breakdown between me and the client. I spoke to him this morning and I advised him that the District Attorney had allowed me to see his record.
“MR. FISHER: That’s discriminating me and that’s why I says I’m not going to Court.
“MR. DAVIS: I have not had an opportunity to talk to him about testifying or not but I would advise him that it would be to his detriment to do so.”
* * * * * *
“THE COURT: Do you wish to testify or not?
“MR. FISHER: I ain’t had no choice of my lawyer.
“THE COURT: Do you wish to testify or not?
“MR. FISHER: When I receive a fair and just trial.
“THE COURT: Do you have any witnesses you wish to put up in this case?
“MR. FISHER: When I have a fair and just trial.
“THE COURT: I’m giving you the choice. Do you wish to take the witness stand?
“MR. FISHER: When I have a fair trial. I ain’t got no lawyer. He ain’t no lawyer. I have nothing to say in this courtroom.” The defense then rested.

I

The rule is universally recognized that the granting or refusal of a continuance rests in the sound discretion of the trial court and its ruling will not be disturbed unless gross abuse of the court’s discretion is shown. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. denied, 294 Ala. 764, 318 So.2d 341 (1975). The appellant contends that this rule is not applicable here because there are no facts in the record which justify a continuance and because there are compelling factors to support a continuance. These reasons, as given by the appellant, may be listed as four: The appellant informed the trial court (1) that his appointed attorney had not been to see him and (2) that he did "not want that attorney representing him. (3) The attorney did not deny the accusation and (4) the trial court did not investigate it.

While the appellant alleges that the trial court did not investigate the allegation that counsel had never been to see the appellant, the court specifically asked the appellant, “In what way has he not represented you”. The appellant responded that the attorney had failed to get his bond reduced. The trial court did not inquire into any other way in which the appellant was not being properly represented. In Browning v. State, 51 Ala.App. 632, 288 So.2d 170 (1974) we held that the denial of a continuance was not an abuse of discretion although the defendant stated that he had not discussed the case with his appointed attorney until a few moments before the request for a continuance was made and that he was seeking another attorney. There it was pointed out that there was no showing of insufficient time to prepare or witnesses could not be obtained.

This court in holding that the trial judge did not abuse his discretion in the instant case relies on the several factors and circumstances in reaching this determination. The appellant protested that his appointed attorney had not been to see him but when questioned as to how his attorney had failed to represent him responded that his bond had not been reduced. The appellant represented to the trial court that at his arraignment when counsel was appointed, that he informed the judge that his people were trying to get' him a lawyer. Throughout the trial of his case, the appellant refused to behave, testify, or participate until he had his own lawyer or a lawyer of his own choosing. The appellant objected because he had not been able to select his own lawyer. The appellant failed to exercise due diligence by waiting until the beginning of his trial to seek a continuance. “The right to counsel ‘cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.’ Judges must be vigilant that requests for appointment for a new attorney on the eve of trial should not become a vehicle for achieving delay.” United States v. Llanes, (2 Cir. 1967) 374 F.2d 712 at 717; Bowman v. United States, (5 Cir. 1969) 409 F.2d 225. The appellant had 44 days in which to obtain, or have his family obtain, counsel of his own choosing. True, the appellant was incarcerated in the county jail at this time unable to post bond. However, we have no reason to even imply that if given a continuance, the accused would have been able to secure private counsel. The appellant’s conduct even before the trial actually started was so disquieting that the trial judge had to order the appellant removed from the courtroom. However, this was only after the appellant had voluntarily attempted to return to the jail. This court is impressed with the fact that the appellant did everything in his power to disrupt the proceedings and prevent the case from continuing.

This was a simple case. There were no complicated facts involved. There was evidence that the court appointed attorney, although silent as to the appellant’s charge that he had not been to see the appellant, had reviewed the district attorney’s “record” of the appellant. He objected at trial and adequately cross-examined the State’s witnesses. Although appellant’s counsel presented no evidence for the defense we do not deem this significant in view of the State’s evidence that the appellant was caught red-handed. In his brief on appeal, counsel for the appellant states that it is not argued that the appellant was denied effective assistance of counsel.

The appellant insists that rather than “forcing” the appointed attorney to proceed, the trial court should have permitted the appellant to. conduct his own defense. The record before us affords not the slightest indication that the appellant in seeking to discharge his appointed attorney was doing so in order that he could exercise his right to conduct his own defense. Hamilton v. State, 270 Ala. 184, 116 So.2d 906, cert. denied, 363 U.S. 852, 80 S.Ct. 1638, 4 L.Ed.2d 1737 (1960). On the contrary it appears and the appellant stated that he wanted his own attorney and one of his own choosing.

We have carefully reviewed the entire record and especially those rulings of the trial court cited as being adverse to the appellant. Having found no prejudicial error, we are of the opinion that this case is due to be and is hereby

AFFIRMED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

Although these facts have been adequately covered, the opinion of this court is extended to include the following testimony at the request of the appellant.

“THE COURT: Mr. Davis was appointed by and at the expense of the State of Alabama. Sit him down Mr. Kelly.
“DEPUTY KELLY: Sit down.
“MR. FISHER: I want another lawyer.
“THE'COURT: Let me say this too. I will not tolerate any disruption in this Courtroom.
“MR. FISHER: This man is not representing me.
“THE COURT: This man is representing you. I will not tolerate any disruptions or interruptions in Court and as long as you behave yourself you may stay in this Courtroom. But if you don’t behave yourself I will cause you to be restrained or removed until such time as I’m satisfied that you will.
“MR. FISHER: I don’t want this lawyer.
“THE COURT: You were appointed a lawyer by the State and he will remain on this case. This Court will not remove him and I don’t want to hear any more about it.
“MR. FISHER: I’m asking time for my people to git me a lawyer.
“THE COURT: I don’t want to hear any more about it. Now are you going to be quiet and behave yourself?
“MR. FISHER: I have no lawyer. I have no lawyer.
“THE COURT: Answer the question that I asked you. Are you going to behave yourself?
“MR. FISHER: If the Court give me time to get a lawyer. I have no lawyer.
“THE COURT: Mr. Davis, you will represent this man according to the orders of this Court. Ladies and gentlemen of the jury, and I talk to the first three panels, one, two and three. First I’d like to speak to you. Those of you who are selected to try this case must do so solely on the evidence which will be presented to you and on nothing else. The remarks made by the Defendant and the remarks made by this Court a few moments ago when I started these proceedings are to be completely and entirely disregarded by you. Because those of you who try this case must do so without any prejudice, must do so solely on the evidence which has been presented to you, or which will be presented to you, the twelve of you. The statements and proceedings which were initiated by the Defendant a moment ago are not a part of the evidence in this case. The name of the game is a fair trial based solely on the evidence. Now is there any member of the three panels whom I am questioning feel that they could not give this Defendant a fair trial based solely on the evidence in view of the proceedings which have just occurred? If so, please stand.
“MR. FISHER: I don’t want this lawyer. He ain’t trying to get me a fair trial.
“THE COURT: Don’t interrupt me anymore please.
“MR. FISHER: I’m trying to get a fair trial.
“THE COURT: If you interrupt me again I’m going to have you taken out of the Courtroom. Do you understand me?
“MR. FISHER: This lawyer is not representing me properly.”

OPINION EXTENDED.

APPLICATION OVERRULED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Leslie Eugene FISHER.
    SC 2491.
    Supreme Court of Alabama.
    May 20, 1977.
   TORBERT, Chief Justice.

WRIT DENIED.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur.


text:
    John Lee WOODS v. STATE.
    2 Div. 186.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied April 19, 1977.
    Philip Henry Pitts, of Pitts & Pitts, Selma, for appellant.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Indictment for murder in the first degree, conviction for murder in the second degree with punishment at sixty years. Appellant is an indigent with free transcript and appointed counsel.

The homicide took place at the home of deceased. As we view the record the victim and appellant were married, but there was some unhappiness in their marital relationship. He came home at 10:00 o’clock in the morning and an argument ensued over this late arrival. He pulled a pistol which was fired and a fatal bullet penetrated the body of the wife and death followed soon thereafter.

The state contended the defendant deliberately fired the pistol at her, while he contended that he was twirling the pistol on his finger or hand and in so doing the pistol fired. There was evidence that the pistol had a hard trigger, making it difficult for the trigger to be pulled by such finger procedure. As to whether defendant deliberately or accidentally fired the bullet into the body of the victim was an issue of fact for the jury.

I

The record indicates that the trial judge allowed the jury to separate. Appellant contends that such separation was contrary to law and that the judgment should be reversed.

There might be some merit in this contention had there been an objection to the separation or a motion for a new trial which asserted such error. There was neither. We will not disturb the judgment because of this separation. Turner v. State, 54 Ala.App. 467, 309 So.2d 503(5).

II

A second assertion of error is that the trial court erred in allowing the introduction of the statement of rights and confession of defendant over his objection.

We have read the record and conclude therefrom that there was no error in the admission of the alleged inculpatory statement. The defendant in his statement admits that his wife was shot with a pistol in his possession, but that it was accidentally fired while he was waving it around just to scare her and that he must have had his finger on the trigger and the gun went off and a bullet hit his wife.

We find ample evidence both in the in camera hearing and before the jury that the inculpatory statement was given after the Miranda warnings were given (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694); also that the statement was voluntary and free of any threats or inducements by any one that induced the statement. Bass v. State, 55 Ala.App. 5, 312 So.2d 576(5)(6).

Ill

Appellant asserts prejudice arising from oral argument of the state’s counsel.

Counsel for appellant ■ objected to the state’s argument.

“Here you have a husband (Defendant) who is separated from his wife (victim) and a wife (victim) who is pregnant.” (R. p. 156)

Louise Walters, sister of deceased, testified (tr. 83) that she had been at her sister’s home for about a week before the shooting; that defendant, who was married to her sister, had come to her sister’s house one night (tr. 84) while she was there, and that was the only time she saw him there. We think the jury could infer from the evidence that they were separated. Horton v. State, 56 Ala.App. 548, 323 So.2d 731(5).

The State Toxicologist testified that the victim was pregnant, (tr. 103)

Another contention of error is that there was prejudicial error in the State’s argument as follows (tr. 159-60):

“And then the defendant, who is hiding in the bushes, hears the police officer come up and when they ask him if she is dead, he says she is not”.

As we recall the evidence appellant was not at the scene of the shooting when Officer Earnest Tate arrived. Officer Tate testified that after leaving the scene, he came back in about forty-five minutes, he came back from the Medical Center, and began looking for defendant (tr. 45) and later found him. After making inquiry, defendant came out from behind the house (tr. 48).

While it might not have been literally true that he was “hiding in the bushes”, we think there was no prejudicial error in the argument. Counsel in a criminal proceeding is allowed much latitude in commenting on the evidence. Horton v. State, supra.

We see no error committed by the court in overruling defendant’s objection to argument. (tr. 161)

“And out in the graveyard is the eighteen year old mother and her unborn child”.

The victim and her unborn child were buried, or at least an inference could be drawn that they were.

So far as we observe the case was well tried and free of prejudicial error. We affirm.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, 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 Judges concur.


author: ALMON, Justice.

text:
    Ex parte John Lee WOODS.
    SC 2535.
    Supreme Court of Alabama.
    May 27, 1977.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Richard Bernard LINDHORST v. STATE.
    8 Div. 881.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied March 29, 1977.
    J. Zach Higgs, Jr., Hornsby, Blankenship, Higgs, Smith & Robinson, P.A., Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   PER CURIAM.

On the morning of October 28, 1974, the bodies of Clyde Johnson and his wife Lucy were found in a field approximately eight miles from Huntsville, Alabama. Clyde Johnson’s death was caused by a gunshot wound to the head, for which appellant was indicted for first degree murder on November 14, 1975. He was convicted and sentenced to life imprisonment on June 16, 1976. '

William Grubbs testified that Lucy Johnson was his mother and Clyde Johnson was his step-father. On October 27, 1974, he went to the Johnson home at 7:30 P.M. and left with his younger brother at 7:45 P.M. The victim was in the back yard at that time working on a shed or a barn with a neighbor. Grubbs returned to the Johnson residence around 10:45 P.M. and discovered the house had been ransacked and that the Johnsons were missing and their Cadillac was gone. He noticed some guns which the Johnsons kept in the house were missing and after checking with his sister and with a neighbor concerning his parents, he called the police. The next morning, he was informed by the police of the death of his mother and step-father.

Grubbs testified that about a year earlier, his step-father had introduced him to the appellant. He said the appellant was in Huntsville, driving a Cadillac in which the Johnsons were passengers. Grubbs said that the appellant and Clyde Johnson went to Atlanta on that occasion, and Johnson returned later without the appellant.

Thomas and James DeSherlia were admitted accomplices in the murders. The State granted James complete immunity from prosecution for the murders if he testified against the appellant. Thomas DeSh-erlia was called as a witness, but refused to testify regardless of his grant of immunity. However, his brother James did testify.

James DeSherlia testified that appellant was married to his sister, Fonda DeSherlia. He said appellant talked to him and his brother Thomas in Iowa in October 1974, and they discussed coming to Huntsville and getting some of the appellant’s personal belongings from the Johnsons and robbing them.

DeSherlia testified that he vaguely remembered that appellant had told him previously that the Johnsons had set him up on a criminal charge in Atlanta and that Clyde had kept over $500.00 in bond money and left him in jail. The witness said they came to Huntsville to rob the Johnsons, and no mention was made of killing them until the appellant shot Clyde Johnson.

James DeSherlia testified that the trio checked into a motel; went to the Johnson home and waited until after the two boys left the house; they were driving a dark green Mustang with Iowa license tags which they parked around the corner of the house; they entered the house armed with guns and seized the Johnsons; the Johnsons were tied up and their mouths taped; the trio put the victims in the Johnson’s Cadillac and with Thomas DeSherlia driving, they went to a field out in the county.

James DeSherlia further testified that the appellant had them stop, and they all got out of the car; that he helped Lucy Johnson up an embankment and saw that appellant already had Clyde Johnson in the field; that appellant then shot Clyde Johnson in the head and told Thomas DeSherlia to kill Lucy Johnson; that Thomas shot Lucy with appellant’s gun; that the witness was told to shoot them also, and he did. The trio then left the scene in the Cadillac, parked it near the Johnson home, and left in the Mustang. The witness said that he went to Arizona when he left Huntsville. On cross-examination, James DeSherlia admitted having previously been convicted and serving time in the penitentiary for burglary and for auto theft.

William Courtney testified that he lived about one hundred yards from the Johnson home. Around 8:00 P.M. on October 27, 1974, he entered his driveway and noticed a strange car parked in front of his house. It was a dark colored Mustang with Iowa license plates. Around 10:30 P.M., he noticed the car was gone.

Wayne McCarty testified that during October 1974, he was desk clerk at the Johnson Economy Inn Motel in Huntsville. He identified a registration card for rooms 310 and 326 dated October 27,1974, and bearing the signature “Paul Nations” as registrant. The card indicated the residence of the registrant was Memphis, Tennessee, and that he was driving a 1967 Ford with a Tennessee license. No color or other description of the car was shown.

The witness also identified the motel’s folio card for the rooms in question. The customer’s copy of the card was still attached, which would “go to the guest upon his check out if he so chose to stop by the desk and pick it up.” The motel, however, had a policy that registering guests must pay in advance by cash or credit card.

Mr. McCarty remembered seeing the DeSherlia brothers at the motel on the date in question and ascertaining from them that they were staying in either Room 310 or 326. However, he could not identify the appellant, and he did not know if appellant was at the motel or filled out the registration card.

An F.B.I. agent testified that the handwriting on the motel registration card (purportedly signed by Paul Nations) contained significant similarities to the appellant’s handwriting. That indicated to him that the handwriting on the card was probably that of the appellant. However, he testified that in order to be positive, he would need to examine additional samples of appellant’s handwriting.

Another F.B.I. agent testified that the fingerprints found on the motel registration card matched appellant’s fingerprints. Therefore, the appellant at some time had handled the card.

After the trial court overruled appellant’s motion to exclude the State’s evidence, the defense put on one witness and then rested. Craig McLaren was serving time in the Madison County Jail on a first degree murder conviction. He testified that he was confined for several weeks in the same cell with the DeSherlia brothers. McLaren testified that during their joint confinement, he heard Thomas and James DeSherlia tell about how they killed the Johnsons, but they never mentioned the appellant as being involved.

The sole issue presented on appeal is whether the State presented enough independent evidence to corroborate the testimony of the accomplice, James DeSherlia.

I

Title 15, § 307, Code of Alabama 1940, provides:

“A conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

The test to determine whether § 307, supra, has been complied with is set forth, in a landmark decision on this point of law, in Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947):

“ . . . ‘ * * * the proper test in determining whether there was sufficient corroboration of the testimony of an accomplice, according to statutory requirements, is first to eliminate the evidence of the accomplice and then, if upon examination of all the other evidence there is sufficient inculpatory evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration.’ . . . ”

The above test has been explained in McElroy, Law of Evidence in Alabama, (1962), Vol. 3, § 300.01(5) as follows:

“Marler v. State, 68 Ala. 580 (quoting Lord Abinger in Reg v. Farler, 8 C & P 106, ‘A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only of the truth of that history, without identifying the persons, that is really no corroboration at all’); Tompkins v. State, 7 Ala.App. 140, 61 So. 479; Alexander v. State, 20 Ala.App. 432, 102 So. 597; Lotz v. State, 23 Ala.App. 496, 129 So. 305.”

II

It is necessary to review the non-accomplice evidence of the State to determine if it tends to connect the appellant with the commission of the crime. If such evidence merely shows the commission of the crime or circumstances of the offense, it is insufficient. Motes v. State, 20 Ala.App. 195, 101 So.2d 286 (1924). This is because the accomplice knows the details of the crime when he testifies, and the law requires independent evidence (not merely repetitions of the circumstances of the crime) connecting the appellant with its commission.

We have often quoted from Sorrell v. State, supra, the following:

“ . . . The corroboration necessary to support the testimony of an accomplice must be of some fact tending to prove the guilt of the accused. It is not sufficient if it is equivocal or uncertain in character and must be such that legitimately tends to connect the defendant with the crime. It must be of a substantive character, must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt. . . . ” (Citations omitted.)

A.

The State contends that the motel registration card corroborates the testimony of the accomplice that the trio were in a dark green Mustang and that such is further corroborated by the Johnsons’ neighbor who saw a dark colored Mustang with Iowa license tags parked some one hundred yards from the Johnsons’ home at the time of the crime.

The neighbor’s testimony does not connect the appellant with the scene of the robbery and kidnapping. He did not see the appellant. He only saw a dark colored Mustang with Iowa license plates.

The motel registration card indicated that “Paul Nations” was driving a 1967 Ford with a Tennessee registration. The State’s contention is that the two cars are one and the same. The motel card does not state that the Ford was a Mustang, nor that it was dark green, or even dark colored. The neighbor did not say what year model the Mustang was, and neither did the accomplice. The motel card indicates a Tennessee license whereas the neighbor saw an Iowa license. The only similarity we find is that both cars were manufactured by the Ford Motor Company; a circumstance that fits several million vehicles in this country. This certainly does not tend to connect the appellant with the murder of Clyde Johnson.

• The State contends appellant had a grudge against the victim, which was corroborated by Grubbs’ testimony that the appellant and the victim went to Atlanta together a year earlier and that appellant did not return to Huntsville with the victim. Such a conclusion is not supported by the evidence. The only testimony in the presence of the jury concerning a grudge came from the accomplice. The fact that appellant and the victim went to Atlanta together and the victim returned alone is neither consistent nor inconsistent with either the guilt or the innocence of the appellant.

Grubbs testified, outside the presence of the jury, that his deceased step-father told him that he and the appellant had gotten into some trouble in Atlanta and that appellant was in jail there, but that Clyde Johnson got away and was trying to raise some bail money for the appellant. Upon objection by defense counsel, the trial court instructed the witness not to pursue the subject. Thus no evidence of motive was presented to the jury by a non-accomplice.

The State next contends that the fact that guns were taken from the Johnson home corroborates the accomplice’s story that appellant wanted to rob the Johnsons for some of his belongings, including “some weapons.” Such corroborates only what the accomplice said was the appellant’s motive for coming to Huntsville. The accomplice knew everything taken from the Johnson house, he knew all the details of the crime, and he could have attributed any number of the details to appellant. There was independent evidence of the place of the kidnapping, the kind of car taken from the residence and used, the place where the victims were taken, the fact that the John-sons were shot, and many other details. The independent proof of these facts all support the conclusion that the accomplice was there and took part in the crime, but they do not, independently of the accomplice’s testimony, connect the appellant with the crime.

By excluding the accomplice’s testimony as per the test in Sorrell, supra, the missing guns do not connect the appellant with the crime, because it was the accomplice who said the appellant wanted to get weapons from the Johnsons.

Finding a still where an accomplice said a defendant was making whiskey was held to be insufficient corroboration to connect the defendant with the offense in Alexander v. State, 20 Ala.App. 432, 102 So. 597 (1925). Likewise, finding stolen articles where the accomplice said a defendant hid them was held insufficient corroboration to connect the defendant to the crime in Lotz v. State, 23 Ala.App. 496, 129 So. 305 (1930).

The same is true of the State’s contention that independent evidence establishes the time frame of the crime and thus corroborates the accomplice’s story. It corroborates details of the accomplice’s story on points which do not connect the appellant with the crime. Again, excluding the accomplice’s testimony, the fact that the crime took place certain times does not connect the appellant with the crime.

The State contends in brief that the accomplice testified that after the murder the trio left the state immediately, that such is evidence of flight, corroborated by the fact that the appellant did not check out of the motel. After DeSherlia testified concerning the murder and the type car he was in, the prosecutor asked the following question and received the following answer:

“Q. Where did you go after you left Huntsville?
“A. Through Alabama, Mississippi, Louisiana, Texas, Mexico — New Mexico, and Arizona.”

DeSherlia did not testify that he left Huntsville “immediately.” In fact, he did not state when he left Huntsville or whether appellant left with him. He only said where he went after leaving Huntsville.

The folio or receipt in question shows the room charges were paid. The fact that a motel guest departs without picking up a copy of the folio or receipt does not evidence flight. This is especially so where the guest pays for the room in advance on checking into the motel. As to why a copy of the receipt was not picked up, we do not know from the evidence. By speculation, the State contends an inference of flight may be drawn. Also by speculation, one may assume the occupants were either forgetful or negligent. This is not a fact which tends to connect the appellant with the crime. He could very well have left town with the accomplices without ever knowing a murder had been committed. He could have been in the motel room asleep during the crime, or in a restaurant, or in a movie. This is why it is incumbent upon the State to present evidence independent of the accomplices’ which connects the defendant to the commission of the crime. Else, any guilty party is apt to implicate an innocent party in exchange for a grant of immunity from prosecution.

B.

We summarize below the non-accomplice evidence concerning the appellant:

1. Appellant knew the victim. He was in Huntsville a year earlier with the victim, and they went to Atlanta together.

2. A Huntsville police investigator testified that appellant was married to the sister of the DeSerlia brothers.

3. Appellant handled a motel registration card, and “probably” signed it, using an assumed name, on the date of the murder, October 27, 1974.

4. The two accomplices, James and Thomas DeSherlia, were at the same motel on that date in one of the rooms registered in the assumed name.

The strongest circumstance against the appellant in this case is the fact that the appellant was registered under an assumed name in a motel with the two accomplices on the date of the murder. That was suspicious conduct on his part without question.

Suspicious conduct alone is insufficient corroboration. There must be something more. Suspicious conduct coupled with close proximity to the crime and opportunity to commit it has been held to be sufficient. Cheatwood v. State, 22 Ala.App. 165, 113 So. 482 (1927).

In Kimmons v. State (1977) Ala.Cr.App., 343 So.2d 542, we stated in pertinent part:

“Being in the company of an accomplice in proximity in time and place to the commission of the crime is not always sufficient corroboration to meet the requirements of our statute. Section 307, Title 15, Code of Alabama; Commander v. State, 28 Ala.App. 42, 178 So. 241; Kemp v. State, 24 Ala.App. 591, 139 So. 437. The rule is often stated that when an accomplice and an accused are seen together in rather unusual places and times in proximity to the locus of the crime, which occurs at an unreasonable hour, the requirements of corroboration are met. Robinson v. State, 40 Ala.App. 74, 108 So.2d 376, cert. denied 268 Ala. 698, 108 So.2d 377 (1959). A more proper and correct statement of the rule is that the fact that at or about the time of the commission of the offense with which the accused is charged, he and the accomplice were together, in or near the place where the crime was committed, may in conjunction with other facts and circumstances, sufficiently tend to connect the accused with the commission of the crime to furnish the necessary corroboration of the accomplice. Kemp, supra; Commander v. State, 28 Ala.App. 42, 178 So. 241 (1938); DeGraff v. State, 34 Ala.App. 137, 37 So.2d 130 (1948); Segars v. State, 19 Ala.App. 407, 97 So. 747 (1923). This conclusion is substantiated by a reading of those cases announcing the general rule. Additional facts and circumstances, however slight, must be adduced to support the testimony of the accomplice in addition to or in conjunction with those of proximity, chronologically and graphically, to the alleged offense in the association of an accomplice. In conjunction with the facts of proximity and association, those additional facts and circumstances may consist of flight of the accused (Ross v. State, 74 Ala. 532); escape of the accused (Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972); suspicious conduct of the accused (Luther v. State, 47 Ala.App. 647, 259 So.2d 857, cert. denied, 288 Ala. 745, 259 So.2d 862, cert. denied, 409 U.S. 877, 93 S.Ct. 129, 34 L.Ed.2d 131) . .

In Kimmons, the defendant was seen immediately prior to and after the burglary in the presence of two admitted accomplices at a recreation center across the street from the drug store which was burglarized. That was held to be insufficient corroboration.

Evidence that a defendant was with the accomplice at a service station near the scene of the burglary late on the night before the burglary was insufficient to corroborate the accomplice’s testimony in Anderson v. State, 44 Ala.App. 388, 210 So.2d 436 (1968).

Evidence that a defendant was at the same motel at which an accomplice was staying and was also in the company of a second accomplice, was insufficient to corroborate the accomplice’s testimony. Dob bins v. State, 45 Ala.App. 190, 227 So.2d 820 (1969).

In the instant case, excluding the accomplice’s testimony, we find:

1. No evidence of motive.

2. No evidence that appellant was in possession of any fruits of the crime.

3. No physical evidence at the scene of the crime to connect the appellant, such as fingerprints on the Cadillac or in the house.

4. No murder weapon was in evidence.

5. Appellant was not seen in the company of the accomplices at unusual times and at unreasonable hours, at or near the scenes of the crimes; in fact, he was not seen in Huntsville at all by any non-accomplice witnesses.

6. There was no evidence of a prior threat on appellant’s part.

7. There is no actual evidence of flight on the part of the appellant.

Appellant’s activities, in registering under an assumed name at a motel, raise a suspicion. But the mere raising of a suspicion is not enough. White v. State, 48 Ala.App. 111, 262 So.2d 313 (1972). Setting aside the accomplice’s testimony, as we must do, we are left only with the suspicion that appellant participated in the murders, but we do not find one hard fact or circumstance which legitimately tends to connect him with the commission of the crime charged. The appellant’s motion to exclude the State’s evidence should have been granted. Refusal to do so entitles appellant to a new trial.

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

PER CURIAM.

The Alabama Supreme Court recently reversed this Court’s affirmance of a conviction in a case in which we considered the corroboration of an accomplice’s testimony to be much stronger than in the instant case. Senn v. State (1977) Ala., 344 So.2d 192. In that case, the accomplice testified inter alia that Senn came by his home in a pickup truck the night of the crime, picked up the accomplice, and they drove to a nearby farm and stole a tractor. The Supreme Court stated, in pertinent part:

“Analyzing the testimony in the ease at bar we have the following corroborative evidence:
“(1) Petitioner and accomplice Griffin were seen by the owner of the tractor about 1:30 or 2:00 p. m. on the day before the tractor turned up missing driving at a high rate of speed on a road petitioner seldom used and near where the tractor was parked; and,
“(2) Petitioner was seen by a witness at accomplice Griffin’s house the evening before the tractor turned up missing when he picked up accomplice Griffin with whom he drove off.
“We are convinced that this testimony is not sufficient to corroborate the two accomplices.
“Other ‘corroborating’ details mentioned in the opinion of the Court of Criminal Appeals are physical facts which simply corroborate the ‘commission of the offense’ but do not tend to connect the petitioner therewith.”

The State’s evidence in the instant case simply corroborates details of the commission of the offense, but does not tend to connect the appellant therewith. Neither are we persuaded by the State’s argument on rehearing that appellant was in “close proximity” to the scene of the crime because he was an out-of-state resident and was in “the very city of the crime, on the very date of the crime,” with no apparent legitimate business in Huntsville. No legal precedent supports such a contention.

OPINION EXTENDED; APPLICATION OVERRULED.


author: JONES, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2476.
    Supreme Court of Alabama.
    May 20, 1977.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: MOORE, Retired Circuit Judge.

text:
    John MOTTENON v. STATE.
    3 Div. 436.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied May 3, 1977.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State, appellee.
   MOORE, Retired Circuit Judge.

The appellant was indicted, tried, and convicted for the offense of robbery. The verdict of the jury fixed appellant’s punishment at imprisonment in the penitentiary for life. Judgment of conviction and sentence was accordingly entered by the trial court, from which the appellant brings this appeal.

On the trial of this cause Homer L. Johns testified, in substance, that he owned Johns Furniture Company located at 624 Mildred Street, Montgomery, Montgomery County, Alabama; that he was seventy-nine years of age; that on September 8, 1975, he was alone in his store; that about 3:00 P.M. that day two young black males came into his store and said they wanted-to buy a stove; that the appellant was one of the men that came in the store; (he pointed the appellant out in the courtroom); that appellant had been in the store a few days before September 8, 1975, about buying a stove; that on September 8, 1975, when they came in he started back to the office to write the sales contract; that the appellant was behind him and as he went into the office he was struck on the head with a bottle; that he was struck more than once with a bottle; that he had a knife in his hand and turned and cut one of them with the knife; that they continued to hit him and knocked him down; that one of them got his wallet and some money out of his pocket; that they got about $104.00 or $105.00; that one of them held him down and the other pulled the cash register onto the floor and knocked its drawer open; that they broke several of his ribs; that he was not knocked completely out; that when he turned and cut at one of them in the beginning of the trouble he heard one of the say, “I’m cut” and that after they got the money they left.

This witness called the police and they came to the store and the witness went to the hospital.

The witness further testified, in substance, that while he was in the hospital he was shown by the police eight pictures and that state’s exhibits 1 to 8 appear to be the pictures shown to him; (he picked four pictures from said exhibits and said they were the ones he picked out at the hospital); that exhibits no. 2, 3, 7 and 8 were the four pictures he picked out; that two of the pictures were of appellant and two pictures were of the other man that came into his store at the time he was robbed; and that he told the police that two black men, one taller than the other, robbed him and he thought he cut one of them.

Herman M. Sims, a Montgomery policeman, testified, in substance, that on September 8, 1975, about 3:00 P. M. he investigated a robbery at Johns Furniture Company; that the office was in disarray; that Johns was there and had been hurt and was bloody; that he talked to Johns very little; that he put on the radio what little description of the suspects he could get; and that other officers completed the investigation.

Detective M. R. Holt testified, in substance, that on September 8,1975, he investigated a robbery at Johns Furniture Company; that when he arrived at the store Johns was being taken to the hospital; that he went to the hospital later that day and saw Willie James Brown; that before he went out there he had reason to believe one of the robbers had been cut; that after he talked with Brown he went to Magnolia Graham’s home and saw a tub with bloody water in it; that Brown had been cut; and that we later located John Mottenon but he (the witness) was not present at the time Mottenon was located.

Mary Rogers testified, in substance, that she knew John Mottenon who was sitting in the courtroom; that she had known him since she started going with Lewis (Willie James Brown, alias Lewis Murrey); that on September 8, 1975, at about 3:00 to 4:00 P.M. she went to Magnolia Graham’s home; that when she got there Magnolia, John Mottenon, and Lewis were there; that Lewis was cut on his right side; that John Mottenon said, “He was robbing an old honky and the old honky cut him”; that Mottenon was talking about how Lewis got cut; and that they all took Lewis to the hospital.

This witness further testified that on the morning of the day she was testifying she was sitting in the hallway of the courthouse and two deputies brought John Mottenon down the hall and Mottenon said to her, “You can go in there and act a fool if you want to”.

The appellant’s objection to this testimony was overruled.

Sidney Williams, a police detective, testified in substance, that on September 9, 1975, he went to the hospital and talked with Mr. Johns and showed him eight photographs; that state’s exhibits no. 1 to 8 are the photographs he showed Mr. Johns; that two of the exhibits were pictures of Willie James Brown and two were of appellant; that he initialed the photographs selected by Johns of the appellant and Brown; that a couple of days after he saw Johns in the hospital he and other policemen went to Magnolia Graham’s home; that he covered the south end and reached the corner of the apartment and saw the appellant come out the back door and when he saw me he ran; and that we followed him and caught him in about five or ten minutes. The defendant’s objection to this evidence was overruled. This witness further testified, over appellant’s objection, that after they caught appellant they went back to Magnolia Graham’s home and saw three suitcases packed with men’s clothing and shoes.

On cross examination he testified that the pictures he showed Johns at the hospital were of people, some of whom were of the same head size and some were not; with a weight range of 140 to 170 pounds and with a height range from 5'4" to under 6 feet; that the height range had a difference of 4 or 5 inches; that persons in the pictures were not all dressed alike; and that Magnolia allowed them to go into the house and see the suitcases.

In his argument to the jury the Assistant District Attorney stated, “The Defendant, you have seen and observed his demeanor here today”. The appellant objected and the court stated to the jury, “Disregard that last statement, ladies and gentlemen of the jury”. The court further stated to the jury, “I have already instructed the jury. Disregard that last statement of the District Attorney, don’t consider it in any way”.

The appellant contends on this appeal that the in-court identification of the appellant was not sufficiently independent of outside sources; and that it was in fact tainted by the action of some of the law enforcement officers or officer in showing pictures of the appellant, before his arrest, to the victim of the robbery who made an in-court identification of the appellant as being one of the persons that robbed him.

In Johnson v. State, 54 Ala.App. 581, 310 So.2d 504, it is stated:

“In this case it appears that each of the State witnesses referred to were shown several photographs, not less than ten being shown to the witnesses and the appellant’s picture was identified from the entire number, in each instance, by two of the witnesses. It does appear that on the day of trial or the day before that one or more witnesses also saw a photograph of the appellant which was attached to the file folder of the assistant district attorney.
But under the testimony as a whole we think that holding in the case of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, that the presentation to the witness of several photographs including one of the defendant, if conducted fairly is not so suggestive as to influence the witness in his choice. This principle has been recognized and followed in the case of Ross v. State, 46 Ala.App. 88, 238 So.2d 887 and Williams v. State, 51 Ala.App. 1, 282 So.2d 349.”

In the case before us the victim was shown eight photographs, two of which were pictures of the appellant. The person photographed in two of the pictures had on the same shirt, but there is no evidence that it was the shirt worn during the robbery. Furthermore, up to that time the police did not have any description of the clothing worn by either of the robbers and certainly there could not have been any effort on the part of the police to make a suggestion by that means of either person engaged in the robbery. It is clearly shown that the police had not seen the appellant at any time between the robbery and the time the photographs were shown to the witness. We have viewed the pictures shown to the witness by the police and we do not find them to be suggestive as to robber’s identity. We find that the showing of the pictures to the victim was fairly conducted and that it did not taint the in-court identification.

We also hold that the victim of the robbery had an independent source of identification. Those persons that committed the robbery in question had been in the store a few days before asking about the purchase of the same stove. The witness, the victim, of the robbery recognized them as having been in the store before when they came in the store on the date of the robbery. He saw the robbers on two occasions for a period of time and he pointed the appellant out in open court as being one of them without hesitation. Unlike Johnson v. State, supra, the evidence in this case does not show that the victim of the robbery had seen a picture of appellant on the day of the trial before he testified.

We do not find error in this case with respect to the showing of the photographs to the victim or his selection of the appellant’s picture as one of the persons that robbed him or his in-court identification of appellant.

The appellant further contends that the testimony of Mary Rogers as to the statement made to her by the appellant in the hall of the courthouse on the day of the trial, to-wit: “You can go in there and act a fool if you want to”, was inadmissible.

Underhill’s Criminal Evidence, Fourth Edition, Section 257, page 484, states:

“Evidence to show that the accused has attempted to fabricate or procure false evidence, to destroy or suppress certain evidence against himself, to corrupt witnesses for the state, procure their absence by threats of violence or otherwise, is always admissible as showing a consciousness of guilt * *.”

In Robinson v. State, 43 Ala.App. 111, 180 So.2d 282, states rule of law with reference to such evidence in this manner:

There is not error in the admission of the evidence complained of, for the statement by the defendant to said witness was in the nature of a threat and could well have been intended as such. It was an effort to intimidate the witness and suppress her testimony. Such threats and efforts may be shown, and if left unexplained, the jury may justly infer a consciousness of guilt on the part of the defendant.

We come now to the contention of the appellant that the argument of the Assistant District Attorney, herein above set out, constitutes reversible error. With that contention we do not agree.

The appellant on arraignment entered a plea of not guilty and not guilty by reason of insanity. We do not find that his plea of not guilty by reason of insanity was withdrawn. While the appellant did not introduce testimony of insanity, the record does disclose that he put on quite an act before the court, the jury at the time being out of the courtroom, as to whether he wanted to testify. Had he done so in the presence of the jury the comment of the Assistant District Attorney would have been proper for his actions would have constituted an effort on his part to make evidence for himself by demeanor before the jury indicative that he was insane. Brothers v. State, 236 Ala. 448, 183 So. 433.

Be that as it may, the comment of the Assistant District Attorney was not so damaging that its effect could not be eradicated. The trial court’s prompt action in sustaining the objection to the comment and its instruction to the jury to “disregard the statement of the district attorney, don’t consider it in any way” was sufficient to eradicate any harmful effect. Willingham v. State, 261 Ala. 454, 74 So.2d 241.

We have searched the record and have not found any error which would justify a reversal.

It is therefore ordered and adjudged by this court that the final judgment of the court below be and is affirmed.

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

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge. BOOKOUT, Judge.

text:
    Clarence WHITE v. STATE.
    6 Div. 20.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied April 19, 1977.

      Robert R. Bryan, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Second degree murder; sentence: thirty-five years imprisonment.

The appellant was indicted for the murder of Felix Underwood, a Birmingham policeman. While the events surrounding the murder were quite bizarre, the facts were not in dispute at trial, and they need not be stated in order to dispose of the present appeal. The only dispute at trial was whether or not the appellant was sane at the time he killed Officer Underwood. M'Naghten’s Case, 8 Eng.Rep. 718 (H.L.1843); Parsons v. State, 81 Ala. 577, 2 So. 854 (1886).

The evidence presented by the appellant regarding the sanity issue consisted of testimony by experts and members of the appellant’s family. The evidence, both in quantity and quality, was to the effect that the appellant was insane on the day of the killing. The State called Bill Carter, a medical assistant, who worked at the county jail where the appellant was incarcerated after the killing. He observed the appellant for a very short time each day over a period of six weeks. It was his opinion that the appellant was sane. That testimony, completely contrary to all expert testimony, presented a question for the jury. The jury is not bound to accept expert testimony if there is other legal evidence to support their verdict. Neither is the jury bound to find in favor of the side offering the largest number of witnesses. See: Pickett v. State, 37 Ala.App. 410, 71 So.2d 102, cert. denied 260 Ala. 699, 71 So.2d 107 (1954); Christian v. State (Ms. August 31, 1976) Ala.Cr.App. (presently pending on certiorari in the Alabama Supreme Court).

The appellant’s sole contention of merit on appeal is whether or not there was a proper determination of the appellant’s competency to stand trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Seibold v. Daniels, D.C., 337 F.Supp. 210 (1972); Wheeler v. State, 47 Ala.App. 457, 256 So.2d 197 (1971); Duncan v. State, 46 Ala.App. 732, 248 So.2d 771 (1971). The killing took place on October 7, 1973. The appellant was indicted on April 17, 1974, and committed to Bryce Hospital on October 9,1974. He was returned to the Jefferson County Jail in early 1975. A competency hearing was held, and the appellant was found to be competent during the week of April 14, 1975. The trial from which the present appeal has been taken began on May 19, 1975. Between April 14 and May 19, a trial was held which ended in a mistrial because the jury could not agree on a verdict.

At the second trial, on May 19, 1975, the appellant’s counsel argued that another hearing should be held to determine whether or not the appellant was competent to stand trial. He contended that the jury’s verdict of competency which was rendered at the competency hearing was not unanimous. He also contends that the appellant’s condition had deteriorated since the first competency hearing and that therefore another competency hearing was required.

I

At the close of the competency hearing, the jury was divided eleven to one. Juror Ward, a woman, was the lone holdout. The jury came out three times with a verdict that the appellant was sane and competent to stand trial. That jury was polled each time. On the first occasion, Mrs. Ward said she did not concur in the result. On the second occasion, she stated she did not agree and that she was not going to change her mind. The following colloquy was then held between the judge and the foreman of the jury:

“THE COURT: Let me ask you, Mr. Guthrie. Is that your opinion, after having been with the Jury and been with their deliberations? Or would the Jury— is the Jury — would they go out and deliberate again for a few minutes, and if they can’t reach a verdict, let me know.
“FOREMAN CHARLES A. GUTHRIE,
JR.: All right.
“THE COURT: Thank you.
“(Whereupon the Jury then left the courtroom at 4:08 P.M. to resume deliberations and then returned to the courtroom at 4:48 P.M., at which time the following occurred:)
“THE COURT: Mr. Guthrie, have you reached a verdict?
“FOREMAN CHARLES A. GUTHRIE,
JR.: We have.
“THE COURT: Would you read it, please sir.
“FOREMAN CHARLES A. GUTHRIE,
JR.: We, the Jury, find the Defendant to be sane and competent to stand trial.
“THE COURT: Thank you. And Mr. McCombs, would you poll the Jury.
“(Whereupon, the Jury was then polled, all giving affirmative answers to their verdict.)”

Mrs. Ward subsequently testified at a hearing which immediately proceeded the May 19, 1975, trial. We quote a condensed version of the testimony from appellant’s brief as follows:

“I was voting that he was incompetent. So the bailiff told me, you know, we cannot accept this. It is unacceptable, it has to be either competent or incompetent but you cannot have a split decision. I came out and said in court twice that I have grave reservations about it. That I did not agree with the verdict. . Well, when we finally went back the third time I began to get the idea that eleven to one is a majority vote so that’s the way it goes. ... It was like eleven to one. I was never gonna change their minds and they were never gonna change mine. ... If you come out three times and you’re told that you can have only one verdict, you know, and you say I don’t agree, and they keep sending you back, I don’t know how else to say I don’t agree with something. ... I said I don’t agree with this. I said that twice, you know. . . . ”

There was absolutely no evidence presented which would indicate that the judge or bailiff at the competency hearing had told the jurors that everyone had to go along with the majority. There was also absolutely no evidence presented which would indicate that the jurors had agreed to be bound by a majority vote. See: Harris v. State, 241 Ala. 240, 2 So.2d 431 (1941). Absent evidence of misconduct, we will not attempt to delve into why an individual juror votes a particular way. Were we to overturn the verdict of the competency jury because Mrs. Ward “began to get the idea” that the majority ruled on a jury, then this Court would be in the position of reviewing every verdict in which a juror subsequently expressed doubt, confusion, or misapprehension over the reason for his or her vote. This we will not do.

We pretermit discussion of whether or not Mrs. Ward’s testimony alone would be the proper vehicle to attack the verdict that appellant was sane and competent to stand trial. See: 7 Alabama Digest, Criminal Law, <&wkey;957(l).

II

The trial judge held, and we affirmed above, that there was a proper determination of competency during the week of April 14, 1975. Appellant’s counsel, while demanding another competency hearing on May 19, 1975, had the following exchange with the trial judge:

“MR. BRYAN: As his attorney I don’t feel that he’s competent.
“THE COURT: You didn’t feel that he was competent then [week of April 14, 1975].
“MR. BRYAN: I sure didn’t. And my understanding of the criteria is that the defendant must be able to rationally consult with his attorney in preparing the defense.
“THE COURT: I assume that was the issue that the jury tried on the fifteenth.
“MR. BRYAN: Are you denying us a competency hearing?
“THE COURT: I’m gonna tell you what I’m gonna do in just a minute, but I want you to get into the record anything that you want in, that’s all.
“MR. BRYAN: I’ve got witnesses that I can call on the competency issue.
“THE COURT: I’m talking about a change.
“MR. BRYAN: In my opinion his condition has deteriorated since the last hearing that we had.
“THE COURT: What do you base that observation on?
“MR. BRYAN: My observations of him.
“THE COURT: Any fact?
“MR. BRYAN: I consider that a fact Your Honor.
“THE COURT: Is there any specific fact that you wish to relate to?
“MR. BRYAN: Yes, sir. I can go into conversations that I have had and also that others have had with him.
“THE COURT: That was different than prior to the fifteenth?
“MR. BRYAN: Yes, sir. In my observations there’s been a continued deterioration and I don’t know whether it’s lack of medication or what.”

It is true that where it appears to a trial judge that there is a bona fide doubt as to an accused’s present mental competency, the judge must immediately and on his own motion cease all proceedings, regardless of the state of the trial, and inquire into the matter. Pate, supra. However, the colloquy above contains nothing more than a bold assertion by the appellant’s counsel that in his opinion the appellant was incompetent. We hold that the trial judge did not err in finding that, based on the previous verdict of competency, the assertions of the appellant’s counsel did not raise a bona fide doubt as ^to the appellant’s competency to stand trial. We should not be construed as holding that an attorney’s testimony cannot by itself raise a bona fide doubt as to a defendant’s competency, nor should we be construed as holding that once a defendant has been found competent to stand trial that later additional developments cannot again raise a bona fide doubt as to his competency.

We merely hold that in the instant case, where only five weeks elapsed between the competency hearing and trial, the bare assertion of appellant’s counsel that appellant is incompetent is alone insufficient to overturn the finding of the trial judge.

AFFIRMED.

All the Judges concur.

On Rehéaring

BOOKOUT, Judge.

Appellant, on rehearing, contends that the facts do not support our statement, supra:

“There was absolutely no evidence presented which would indicate that the judge or bailiff at the competency hearing had told the jurors that everyone had to go along with the majority . . .

Appellant misconstrues the testimony of Mrs. Ward. She did not testify that the bailiff or the judge told her that she must vote with the majority. There is a great difference between telling jurors their verdict must be unanimous and in telling them that the majority governed. She testified that she was instructed that the jury could not render a “split decision.”

“A juror may not testify either in impeachment or support of his verdict as to what effect a matter had upon his mind as causing him to agree to the verdict, as to why he agreed to the verdict, or concerning the mental processes by which he came to agree to the verdict.

See: McElroy, The Law of Evidence in Alabama, (2nd Ed.), Vol. I, § 94.06 et seq., pp. 243-246.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.


text:
    Ex parte Clarence WHITE.
    SC 2524.
    Supreme Court of Alabama.
    May 20, 1977.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


author: CLARK, Supernumerary Circuit Judge.

text:
    Marshall HOLLIDAY v. STATE.
    6 Div. 238.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied May 3, 1977.

      Roderick Beddow, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

A jury found appellant guilty of murder in the first degree of Freddie Lee Turner and fixed his punishment at imprisonment for life. He was sentenced accordingly.

On Saturday, July 19,1975, a tremendous crowd had gathered at North Birmingham Park. The principal attraction, nominally at least, was barbecue. There was also an abundance of wine, beer, music and money. Several witnesses testified they saw defendant shoot Turner in the stomach with a pistol. Turner died soon thereafter, and there was testimony sufficient to support a finding that his death was the result of the bullet wound. At issue on the trial was whether defendant acted in self-defense. There was some evidence, including testimony of defendant himself, to support such defense. There was ample evidence to support a finding of the jury to the contrary, and that the homicide possessed all the elements of murder in the first degree.

Appellant seeks to predicate error on the action or non-action of the court in four respects: (1) the sustention of the State’s objection to a question asked a witness on cross-examination as to the “general reputation in the community” of the victim of the homicide, (2) alleged failure of the court to take proper action as to alleged improper argument of counsel for the State, (3) a portion of the court’s oral charge as to reasonable doubt, and (4) a statement of the court to the jury, prior to the commencement of the trial, relative to the inconvenience the trial of the case would cause them. We consider the contentions of appellant in the order treated by appellant in his brief.

I

While Sergeant Webb, a witness for the State who had investigated the homicide, was testifying on cross-examination, the following occurred:

“Q Did you know Freddie Lee Turner? “A No sir.
“Q Before this happened?
“A No sir I didn’t.
“Q In investigating this case did you come to know his general reputation in the community?
“MR. JOHNSON: I object to that.
“THE COURT: Sustained.
“MR. ROBERTSON: Except.
“MR. ROBERTSON: That’s all.”

The principle that permits evidence touching on the reputation of the victim of a homicide in a case where there is evidence of self-defense has not been extended to “general reputation” but is limited to reputation as to particular traits variously denominated as traits of “violence,” “turbulence,” “blood-thirstiness” and the like.

“Even though the evidence tends to show that the accused was justified under the right of self-defense, he is not entitled to prove the victim’s bad general reputation as a whole, that is, without restriction to a trait of violence or similar trait, for the purpose of showing that the victim was the aggressor . . .. Anderson v. State, 30 Ala.App. 124, 2 So.2d 461, cert. den. 241 Ala. 381, 2 So.2d 463; Montgomery v. State, 2 Ala.App. 25, 56 So. 92; McKenney v. State, 17 Ala.App. 117, 82 So. 565.” McElroy, Law of Evidence in Alabama, § 33.01(9).

Furthermore, as Judge McElroy declares, one does not qualify as a character witness, that is, a witness as to the reputation of another, by information he has gained in the course of a short-time investí-gation conducted after the occasion as to which an inquiry as to reputation may be appropriate.

“To be qualified to testify to another person’s general reputation in a particular community, the witness to such general reputation must have been a member of that community or have had a reasonably close connection with it. “Knowledge of such reputation acquired by a stranger sent to the community to investigate and learn such general reputation is not sufficient. Sorrelle v. Craig, 9 Ala. 534, 539. Thus, in a charge of murder in Madison County, Alabama, testimony of a non-resident of Fayetteville, Tennessee, as to the general reputation of accused at his home in Fayetteville, Tennessee, learned by such non-resident’s going to Fayetteville and making inquiries of persons residing there, is not admissible. Griffith v. State, 90 Ala. 583, 8 So. 812.” McElroy, Law of Evidence in Alabama, § 26.02(10).

The trial court correctly sustained the State’s objection to the question under consideration.

II

During the closing argument of counsel for the State, the following occurred:

“MR. JOHNSON: If he’s endangered them before then Lord help us after you’ve handed him this and you say this is your license to kill.
“MR. ROBERTSON: Judge I object to that line of argument. That’s highly improper.
“THE COURT: Yes sir.”

No part of the context of quoted argument of counsel for the State is shown by the record. We are at a loss to determine the full meaning of the argument. Furthermore, we are somewhat at a loss to determine what the trial court meant by saying, “Yes sir.”

Neither appellant nor appellee cites any authority by which the issue between them can be resolved. We know of no case substantially on the point. We are unable to say that any injury could have resulted to defendant as a result of the particular argument.

III

At the conclusion of the court’s oral charge, there was a conference among the judge, counsel for the State and counsel for the defendant. Thereafter, the court extended its oral charge by additional statements as to a reasonable doubt. No objection was made or exception taken. Both counsel stated that they were “satisfied.”

Appellant’s complaint as to a portion of the court’s charge on the subject of reasonable doubt comes too late. Oral instructions, to which no objection is made or exception taken, cannot be reviewed on appeal. Allison v. State, 281 Ala. 193, 200 So.2d 653; James v. State, 57 Ala.App. 140, 326 So.2d 669; Vernon v. State, 55 Ala.App. 341, 315 So.2d 137; Morris v. State, 53 Ala.App. 236, 298 So.2d 658; Loggins v. State, 52 Ala.App. 204, 290 So.2d 665.

IV

Appellant complains of a statement by the trial court to the jury before the trial commenced as follows:

“Now, some cases are more inconvenient than others. This will be one that is more inconvenient to you than others would be.”

The statement was part of the trial court’s orientative remarks as to what would be expected of the jury, as a prelude to its announcement that the jury would be kept together at all recesses and would not be allowed to go home until after the end of the case. The remarks were entirely appropriate, we think, and were not harmful to defendant. Furthermore, they furnish no ground for reversal as there was no objection, exception, or any kind of complaint at the time. Gilbreath v. State, 23 Ala.App. 162, 122 So. 309; Wadsworth v. State, 45 Ala.App. 62, 223 So.2d 603.

Our search of the record for any error prejudicial to defendant has been futile. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of 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: TYSON, Presiding Judge.

text:
    Steven ROGERS v. STATE.
    6 Div. 248.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied April 19, 1977.
    Arthur Parker, of Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged that the appellant did “unlawfully sell, furnish, or give away 510 milligrams of cocaine, a narcotic drug, to Howard Wayne Lowe . . ..” The jury found the appellant guilty as charged, and the trial court fixed his sentence at six years imprisonment in the penitentiary. Appellant’s motion for new trial was overruled.

In August of 1974, Jefferson County Deputy Sheriff Howard Wayne Lowe was working on a special assignment as an undercover agent with the United Narcotics Detail Operation (U.N.D.O.). On August 16, 1974, around 7:20 p. m., Deputy Lowe, Sergeant James Smith (Lowe’s U.N.D.O. supervisor) and their informant, Rick Hix-on, arrived at the Villa Maria Apartments which are located near Centerpoint, Jefferson County, Alabama. Sergeant Smith, who had followed Deputy Lowe and Hixon to the apartment complex in another car, parked his vehicle across the street from appellant’s apartment, No. 3279 A, and observed as Deputy Lowe and Hixon knocked on Appellant’s door. Deputy Lowe and Hixon were allowed to enter the apartment by an unidentified white male and were therein introduced to several people. Deputy Lowe then walked into the kitchen where he found the appellant and two other persons eating supper. Upon finishing his meal, appellant got up from the table, walked to the living room, motioned to a Henry Publow to follow, then he, Publow, and Deputy Lowe went to the back bedroom. There appellant opened a Marlboro cigarette box, took out two “magazine packs,” opened one pack and displayed the contents (cocaine) to Deputy Lowe. Pub-low informed Deputy Lowe that the price of the two “magazine packs” would be $120.00, and Deputy Lowe gave Publow six twenty dollar bills to make the purchase. Deputy Lowe and Hixon then left the apartment and drove to the Ramada Inn motel in Hoover. Sergeant Smith followed them to the Ramada Inn, and there Deputy Lowe turned the controlled substance over to him. Sergeant White sealed the cocaine in a small envelope and placed it in a metal lock box in the trunk of his car where it remained until he turned the envelope over to State Toxicologist Gerald Wayne Burrow three days later. Mr. Burrow testified at-trial that the envelope he received from Sergeant White contained 510 milligrams of cocaine. The appellant was not arrested for this offense until March 5, 1975, due to Deputy Lowe’s continued employment with U.N.D.O. as an undercover agent.

At trial, the appellant presented an alibi defense, and through his witnesses sought to establish that on the night in question he had been in the continuous presence of his girlfriend and parents from 6:30 p. m. to 9:00 p. m. The appellant emphatically denied the sale of cocaine to Deputy Lowe.

I

During the direct examination of State Witness Deputy Lowe, the district attorney asked the following question to which appellant’s counsel immediately objected and moved for a mistrial.

“Mr. Lowe, do you know, of your own knowledge, if after this occurrence on August 16,1974, Rick Hixon was arrested for burglary?” (R. 24)

Appellant’s objection and mistrial motion were entered before Deputy Lowe was able to answer. The trial judge promptly removed the jury from the courtroom, then questioned the district attorney as to his purpose in propounding the question. The district attorney stated that “from the State’s side, we didn’t have anything to hide [from the jury],” and it was his purpose to bring out the fact that their informant, Rick Hixon, who had worked this case with Deputy Lowe and Sergeant White, had subsequently been charged with and plead guilty to burglary (R. 25). When the jury was brought back into the courtroom, the trial judge instructed the jury “not to consider that remark that was made about this person [Rick Hixon] about what may or may not have happened at some later time”; that such had no bearing on the guilt or innocence of the defendant and was to be entirely disregarded. The trial judge then asked the jury if there was anyone among them who could not disregard the question and completely expel it from their mind; that if no juror could do so, he should raise his hand (R. 29-31). The record reflects that no juror responded to the trial judge’s inquiry, and in light of the instructions given, we are of the opinion that no error resulted. Adair v. State, 51 Ala.App. 651, 288 So.2d 187; Retowsky v. State, Ala.Cr.App., 333 So.2d 193; Shadle v. State, 280 Ala. 379, 194 So.2d 538.

II

Appellant further contends that the following three statements made during the district attorney’s closing argument, to which objection was duly overruled, constitute reversible error (R.130-131).

“1. Ladies and gentlemen, it is time to quit feeling sorry for the defendants;
2. And it is time to feel sorry for the victims in the cases;
3. If you feel sorry for the defendant, you have got to feel sorry for the people who get messed up on this same thing . ..”

We are of the opinion that the above statements did not transcend the bounds of legitimate argument. Here, the district attorney was pointing out the evils which arise from the improper use of drugs and their consequences. Such is clearly within the legitimate inferences which may be drawn from all the evidence in this cause. We find no error.

It is permissible for a prosecutor to comment generally upon the evils of the crime which the law he is seeking to enforce intends to prevent. Robinson v. State, 37 Ala.App. 403, 71 So.2d 843; See Barnett v. State, 52 Ala.App. 260, 291 So.2d 353; Cooper v. State, 55 Ala.App. 576, 317 So.2d 543.

We have carefully examined the entire record, as required by Title 15, Section 389, Code of Alabama 1940, and find no error therein. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Steven ROGERS.
    SC 2528.
    Supreme Court of Alabama.
    May 20, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.