text:
    Eddie HARRIS v. STATE.
    6 Div. 952.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Jack Curtis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

On an indictment charging murder in the first degree, appellant was convicted of murder in the second degree and sentenced to thirty years imprisonment in the penitentiary.

On the night of November 11, 1974, several young men, including defendant and victim, had assembled at a home in Tuscaloosa, where they engaged in dancing. An argument ensued between defendant and the victim. The two went outside. There was evidence that the victim slapped at defendant. The evidence is undisputed that the defendant shot the victim, who immediately ran into the house and thereafter died. Some of the witnesses testified to the effect that defendant was the aggressor. The victim was not armed. Defendant testified to the effect that he was acting in self-defense, thinking that he was about to be killed by a deadly weapon. The victim was the larger of the two.

The pivotal issue in the case was whether defendant acted in self-defense. The court correctly charged the jury as to all degrees of unlawful homicide and in detail as to the elements of self-defense.

The verdict of the jury was amply supported by the evidence.

The only contention made by appellant is that the court committed reversible error in its ruling as to an objection of defendant to a statement made by counsel for the State in his closing argument, as follows:

“MR. HARRIS: I want you to look at that pistol. It might have cost fifteen or twenty dollars, maybe not that much, but it is called a ‘Saturday Night Special’ and it has killed more people—
“MR. BURROUGHS: We object to that. No evidence of that.
“THE COURT: Overrule.
“MR. BURROUGHS: Except.”

Strong argument is made by able counsel for appellant that the reference to the weapon that fired the fatal bullet, as a “Saturday Night Special,” which “has killed more people” constituted “prejudicial statements of fact totally unsupported by the evidence” and served “the sole purpose of arousing the prejudice and passions of the jury,” and that the action of the trial court in overruling defendant’s objection constituted prejudicial error warranting a reversal.

It was on a Monday night that the killing took place. The weapon was a .22 caliber pistol, which was admitted in evidence.

Neither the appellant nor the appellee has cited any case in which the question was presented whether the reference to the weapon that produced the alleged homicide as a “Saturday Night Special” is permissible in argument. They agree that prejudicial error occurs when a party is allowed to make statements of fact, unsupported by the evidence, of a nature substantially prejudicial to the other side. They disagree as to the application of the principle to the statement contained in the argument as quoted above.

In the absence of a case directly on the point, appellant relies upon Smith v. State, 51 Ala.App. 527, 287 So.2d 238 (1973); Rogers v. State, 275 Ala. 588, 157 So.2d 13 (1963); Bevins v. State, 39 Ala.App. 228, 97 So.2d 572, cert. denied, 266 Ala. 695, 97 So.2d 574 (1957). Appellee relies upon Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974); Braden v. State, 49 Ala.App. 97, 268 So.2d 877 (1972); Bullard v. State, 40 Ala.App. 641, 120 So.2d 580 (1960); Cross v. State, 68 Ala. 476 (1881). Both cite Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958).

In Smith, supra, the argument was held to be objectionable but that the error in overruling the objection was harmless. In Rogers, in holding that the argument made was objectionable, the court said:

“. . . Counsel should not be permitted to state as fact that which is damaging to defendant, and of which there is no legal proof. Coleman v. State, 87 Ala. 14, 6 So. 290.” (Emphasis supplied) .

In Bevins, supra, the argument held objectionable was that defendant had “walked up and down the depths and breadths of Chicago, steeped in crime.” The court held:

“These remarks by the solicitor were accusations of crime other than that for which defendant was on trial, stated as matters of fact, unsupported by any evidence in the case, were pertinent to the issue, their natural tendency was to influence the finding of the jury. Cross v. State, 68 Ala. 476; Smith v. State, 261 Ala. 270, 73 So.2d 916.” (Emphasis supplied).

In Garrett v. State, supra, the court upheld the action of the trial court in sustaining the State’s objection to argument of defendant’s counsel.

When expressions are found to the effect that counsel may not make argument that is not supported by the evidence, they are to be taken as meaning that counsel’s arguments should not consist of statements of fact calculated to serve the purpose of evidence. This is emphasized in Cross v. State, 68 Ala. 476, to which many of the subsequent cases on the subject refer, even until the present time, as follows:

“ . . . It is only when the statement is of a substantive, outside fact— stated as fact — and which manifestly bears on a material inquiry before the jury, that the court can interfere, and arrest discussion.” (Emphasis supplied).

The statement made by counsel for the State was not a statement of fact, made as such. He was not contending that the particular pistol had killed anyone other than the victim in this case. It is obvious that he was drawing on information in the field of common knowledge, or at least a contention as to which there is common knowledge.

The fact that a particular statement is not based upon evidence in the case is not in and of itself a valid ground of an objection. This was the ground assigned by defendant’s counsel.

In arguing the case on appeal, appellant’s counsel adds the contention that the statement was of a highly prejudicial nature, that it was inflammatory and calculated to deprive defendant of a fair and impartial trial.

Lexicons generally have not caught up with the current vernacularism of a “Saturday night special.” No effort will be here made to define it with accuracy, but we understand that generally the term is referable to a small, cheap, easily concealed handgun, for use, when needed, on hedonistic occasions often reserved for the non-working part of the week, particularly Saturday night. We recognize that in the matter of proposed gun control laws, the term is used with derision by the proponents of such laws. Doubtless much heat has been generated at times by the use of the term in connection with the highly contested issue of gun control, and we see the likelihood of its being unjustly and preju-dicially used in a homicide case in a court of law. The point is made here for the first time, and it deserves a word of caution, but the particular point was not made before the trial court and a reversal is unwarranted. In holding that in general a party cannot justly complain of the overruling by the trial court of an objection to argument based solely on an invalid ground, we follow the lead of Mr. Justice Jones in Owens v. State, 291 Ala. 107, 278 So.2d 693 (1973), wherein it is stated:

“Our holding affirming the trial court’s overruling of the objection is not to be understood as upholding such prejudicial argument, but is founded on the fact that the ground stated in the objection to the argument did not invoke a ruling of the court based on the prejudicial effect of the argument; nor was this contention made a ground of the defendant’s motion for a new trial. Consequently, since we may review only the rulings of the trial court, we find that the above objection was properly overruled. See Anderson v. State, 209 Ala. 36, 95 So. 171.”

We do not understand that Owens, supra, holds that it is always necessary to assign a valid ground of objection to prejudicial argument of opposing counsel in order to effectively challenge the action of the court in overruling the objection, but we take it to announce the principle that in a case such as Owens, in which the court determined the argument to be prejudicial, and in a case such as this, in which a serious question is raised as to the prejudicial nature of the argument but is not now attempted to be resolved by us, the overruling of an objection on a single specific ground that is not well taken, will not serve to place the trial court in error.

We have reviewed the record for error prejudicial to defendant and have found none. 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.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Eric Eugene JARMON, alias v. STATE.
    8 Div. 759.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Carl W. Stolsworth, Tuscumbia, for appellant.

      William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant with the robbery of W. O. Sanders by putting him in fear and by taking $140.00 in money from his person. The appellant’s request for Youthful Offender treatment was denied after a hearing. The appellant was found guilty as charged, and the jury’s verdict fixed punishment at ten years imprisonment. The trial court then set sentence in accordance with this verdict.

The event giving rise to this indictment took place on January 23, 1975, between 3:30 and 4:00 P.M., at W. O. Sanders Grocery, a business establishment located in Colbert County, and owned by the victim, W. O. Sanders. The appellant entered the store armed with a gun and exclaimed, “This is a holdup. Nobody not to move.” (R.p. 41) The appellant made the one customer in the store at the time lie down on the floor and then at gun point instructed W. O. Sanders to put the money contained in the cash register in a sack. The appellant, after making Mr. Sanders also lie down on the floor, then departed with the money. (R.p. 42)

I

The appellant grounds his argument for reversal upon remarks made by the trial judge to the appellant in the presence of the jury venire concerning the appellant’s failure to have subpoenaed witnesses at the time his case was called for trial. After these remarks were made, the appellant’s counsel timely moved for a mistrial on the grounds that the trial judge’s comments in the presence of the jury venire (from which the appellant’s jury was later struck) were prejudicial to the appellant. Appellant’s motion was overruled, and the judge at this point gave no instructions to correct the possibility of error at that time. The remarks in question occurred on September 9, 1975, two days before the trial began and appear in the following recital from the record:

“BY THE COURT: Court will come to order. Now, Jarmon, your attorney announced a moment ago that he was not ready. Yesterday, early in the day, he and the District Attorney — Deputy District Attorney — discussed the case here at the bench, and Mr. Gardner stated that he was not ready — that there was some correspondence — verbal or some sort of communication between himself and you relating to witnesses. And in effect words more or less like this, that you had — you told him that you wanted some witnesses here and that you gave him the names. And that he did not remember you giving him the names. And whereupon it was suggested that he go on and get his subpoenas out and he could possibly get the witnesses here. And later it was divulged that you did not — the addresses of these witnesses were not given — that is, where they could be found. Now, that was yesterday. Nearly or I would say at least 20 hours ago. Now, as to what was said and not said is between you and Mr. Gardner. We don’t— we don’t have any opinion as to what the facts are. However, often times, a witness is subpoenaed to come in immediately and the witness is in Court within say two hours. Now, your witnesses could be somewhere else outside Colbert County, that’s true, but at least the Clerk’s Office and the Sheriff’s Office have a right to know where these witnesses can be found. It has been tried many times and I do not say that that’s the case here — but it’s been tried many times in the law where fictitious names are given as witnesses for the purpose of delaying the proceedings. The fact that they are fictitious they can’t be found — the person subpoenaing the witness saying well, we’ve got to have these witnesses if we are to proceed. Now, it appears to the Court, first, as to what took place between you and Mr. Gardner, that’s your business. But even so, after the Court suggested that the witness subpoenas go out yesterday, I inquired of Mr. Gardner later about the matter, and he says we don’t know where they are. They don’t know where they can find them. Now, without determining — at this time trying to determine — that these witnesses are material or that the defense that you and Mr. Gardner have done everything that the law says that you should do or must do in getting ready for the trial, you or Mr. Gardner — I would like to have you put in the record the materiality of these witness — what you know about the whereabouts of these witnesses — first, let me ask you this Mr. Gardner. Can you make a showing on these witnesses?
“MR. GARDNER: Yes sir. I can demonstrate to the Court our purpose—
“BY THE COURT: I didn’t ask for a demonstration. I said, can you make a showing?
“MR. GARDNER: Yes sir.
“BY THE COURT: Can you accept a showing?
“MR. PATTON: I don’t know what his showing is, at this time. I would like to talk to these witnesses. I never heard of them before. I don’t know who they are.
“BY THE COURT: All right, now I’ll give you a few minutes in all justice to the defendant if something has gone awry here and it can be solved by a showing, it’s permitted, so I’ll give you a few minutes to talk — the attorneys — to see if it can be done.
“MR. GARDNER: Your Honor, for the record’s sake, I would like to move for a mistrial at this time on the grounds that the Court’s comments in regard that the possibilities the defendant may have brought forth these witnesses in an effort to defraud the Court or delay the trial, I feel that these implications could be prejudicial in the minds of the jury ve-nire. I would like the record to show that these comments were made by the trial judge in the presence of the jury venire and we respectively move for a mistrial at this time on those grounds.
“BY THE COURT: Your motion is overruled. All right, go ahead on your showing.
“MR. GARDNER: Your Honor, we wish to have the following witnesses called. They were subpoenaed. James Kennedy, Keith Smith, Levert Lewis, and Ann Pool. We expect their testimony to show that at the time of the—
“MR. PATTON: I’m not going to sit here and let Mr. Gardner make speeches to the jury about what he expects the evidence to show. I agree on him showing it to the jury, but it certainly is not going to go to the jury venire at this time and I haven’t agreed to it, and I don’t know if these witnesses have ever been subpoenaed ; I don’t know — have they ? Have they been subpoenaed?
“MR. GARDNER: Of course not! That’s what the whole process if (sic) about right now.
“BY THE COURT: Well, I think—
“MR. PATTON: Judge, this case has been set for trial—
“BY THE COURT: I don’t think you need' any speeches. If you will — both of you, now, as I requested a moment ago, go outside and discuss the showing.”

The following day the appellant’s case was sounded, and again the appellant’s counsel indicated that they were not able to proceed due to the absence of the appellant’s witnesses. The record indicates that subpoenas had been served on these witnesses, but they nevertheless did not appear. (R.p. 20) The court, on its own motion, issued an attachment for these witnesses then adjourned for the day. (R.p. 21)

On September 11, 1975, during the voir dire examination of the prospective jurors by appellant’s counsel, the record reflects the following:

“MR. GARDNER: . . . Another question, ladies and gentlemen, I would like to ask you I don’t want to make anybody mad, but I’ve got to ask you this question — do any of you feel like that because Mr. Patton is the Assistant District Attorney, and because he is an employee of the state of Alabama, do any of you feel like that because of this, that you might place more weight on what Mr. Patton says than what I say? In the trial of this case. I’m not a state employee. I’m working for this man here today. I do not work for the state of Alabama. Do any of you feel like that possibly, his position as a state employee might cause you — possibly—even possibly — to give more weight to what Mr. Patton has to say before this jury?
“(No one answered)
“MR. GARDNER: One other question and I will sit down. I would like to know if any of you feel like that what transpired here yesterday afternoon, might in any way have any effect whatsoever on your opinion as to the guilt or innocence of this defendant today during this trial ?
“(No one answered)
“BY THE COURT: Anything else by either side?
“(No one answered)
“BY THE COURT: All right, the jury will be struck at this time, the state strikes one first and the defendant two.”

After the jury had been struck, the following remarks were made by the court:

“BY THE COURT: Is the state satisfied with the jury?
“MR. PATTON: Yes sir.
“BY THE COURT: And the defendant?
“MR. GARDNER: Yes sir, we are.
“BY THE COURT: I didn’t understand • you.
“MR. GARDNER: I said, yes sir, we are.
“BY THE COURT: All right, ladies and gentlemen — you that are in the box, you have been duly empaneled by law as the jury to sit and try this case. At this time the rest of the jury venire is excused. You may go- — those that are not sitting in the box — you are excused for the term. That means you are through. Before you leave, let me thank you for your attendance on the Court on behalf of all the Court officials in the county and state. Your diligence, your prompt attention to your duty — you may go now and make your claim for attendance at the Clerk’s Office which is across the hall and in the corner on my right. You’re excused. Now, this is just the jury ve-nire. That’s all. I ask that all the parties having cases, witnesses and attorneys, please remain. I’m going to sound this docket. You may go.
“(At this time the rest of the jury venire left the courtroom)”

A defendant has a duty to give whatever information he has concerning his witnesses to his counsel in order to have his defense ready when his case is called for trial. Johnson v. State, 54 Ala.App. 586, 310 So.2d 509 (1975). Also, Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972). A trial judge is not a robot without emotional reaction, and his impatience with excessive delay caused by a defendant derelict in this duty is a natural and understandable reaction. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973). See also Phillips v. Beene, 16 Ala. 720 (1849). But a trial judge must be ever aware that he wields great influence upon a jury and that his slightest word or intimation may injuriously affect the substantial rights of the defendant. In view of this unquestionable influence, any declaration of the court prejudicing the defendant in the minds of the jury is error which would of necessity effect a reversal. Dennison v. State, 17 Ala.App. 674, 88 So. 211 (1921); Phillips v. Beene, supra. We note, too, that it makes no difference that the court’s prejudicial remarks are made before the jury is impaneled. Two early cases indicate that prejudicial remarks, if heard by the jurors who actually try the case, have the same effect whether made while the jury is in the box or outside the railing of the courtroom. Allen v. United States, 115 F. 3 (9th Cir. 1902); Bowman v. State, 19 Neb. 523, 28 N.W. 1 (1886).

However, after carefully reviewing the record and weighing the circumstances surrounding the alleged infraction, the remarks made by the trial judge in the instant case, though not here condoned, do not in our judgment constitute reversible error.

We do not believe that the court’s remarks were intentionally calculated to deprive the defendant of a fair and impartial trial as guaranteed by the Constitution of this state. Rather they were made in an attempt to insure that this case and all cases on the criminal docket for the week were disposed of both judiciously and expediently. Moreover, neither can it be said that the remarks in question prevented the prospective jurors from entering their service as petit jurors with clear and open minds insofar as the guilt or innocence of the appellant was concerned. As the record here indicates, the trial court permitted extensive individual examination of the prospective jurors. During this voir dire examination, appellant’s counsel asked if the prior transactions of the court, concerning the delay in the proceedings, “might in any way have any effect whatsoever on your opinion as to the guilt or innocence of this defendant. . . . ” (R.p. 34) The silence on the part of all the jurors indicates the the remarks, made by the court two days prior to this questioning, did not inject into anyone’s mind prejudice against the appellant. Furthermore, when appellant’s counsel was subsequently asked at the close of voir dire if he was satisfied with the jury, he announced, “Yes sir. We are.” (R.p. 35) This response, coupled with the fact that no further objections were made by counsel or other motion in regard to this matter, infers that even though counsel felt the remarks were prejudicial error at the time made, this error had been cured by the allowance of extensive voir dire examination. Zuck v. State, (1976) 57 Ala.App. -, 331 So.2d 777, cert. denied, 295 Ala. -, 331 So.2d 796; Murphy v. Florida, (1975), 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed. 2d 589.

II

This Court per Harwood, J., in Tunstill v. State, 33 Ala.App. 460, 34 So.2d 857, cert. denied 250 Ala. 421, 34 So.2d 859, observed:

“ ‘. . . Thomas v. State, 91 Ala. 34, 9 So. 81, 82, contains an excellent discussion by Justice McClellan of the offense of robbery. Therein he defines robbery to be “a felonious taking of goods from the person of another, or in his presence, against his will, by violence, or putting him in fear. And this violence must precede or accompany the stealing.” In Hardis v. State, 28 Ala.App. 524, 189 So. 216, 217, in discussing the offense of robbery Judge Samford wrote: “As defined by our decisions, robbery is an offense against both person and property, and is briefly defined as the felonious taking of money or goods of value from the person of another, or in his presence, by violence or by putting him • in fear. Parks v. State, 21 Ala.App. 177, 106 So. 218.” ’ ”

The thrust of the State’s evidence was the testimony of the victim, W. O. Sanders. Although the appellant wore a mask at the time of the robbery, Mr. Sanders nevertheless was able to positively in court identify the appellant as the perpetrator of the crime, due to the fact he had known the appellant all of his life, and had seen him outside his store the morning before the robbery. (R.pp. 40, 41) The State also offered the testimony of Frederick Ingram who had spent much of January 23, 1975, with the appellant. Ingram testified that at a get-together in the apartment of Keith Smith the night of January 23, 1975, the appellant admitted to him that he had robbed W. O. Sanders. (R.p. 77)

James Kennedy, Keith Smith and Lavert Lewis, all of whom were acquaintances of the appellant and had also been at Keith Smith’s apartment the night of January 23, 1975, testified in the appellant’s behalf. The nature and gist of their testimony was to the effect that they never heard the appellant say he had robbed anyone. (R.pp. 94, 100, 105)

We have carefully examined this record and beyond question, the State proved every element of the offense in question. Clay v. State, 52 Ala.App. 272, 291 So.2d 364, and authorities cited therein.

This judgment is due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.


text:
    Jerry CROWE v. STATE.
    7 Div. 420.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Rehearing Denied June 1, 1976.

      Beck & Beck, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found appellant guilty under both counts of a two-count indictment, one charging him with burglary in the second degree, the other with grand larceny. The court rendered judgment against him accordingly and sentenced him to four years imprisonment in the penitentiary, the punishment being fixed by the court.

No contention is here made, and we see no reasonable basis for any, that the evidence was not sufficient upon which to find defendant guilty of both counts. The owner of an uninhabited dwelling house and the contents thereof testified as to the breaking and entry and the removal therefrom of a color television set, which he valued at $500.00. The circumstances shown by the owner’s testimony was sufficient to establish the corpus delicti of each offense. Another witness for the State testified that he saw defendant and his co-indictee force an entry into the dwelling and remove therefrom the television set.

Under such circumstances, the court should have treated, as it did treat, the two crimes as one crime for the purpose of punishment and sentence. By Code of Alabama 1940, Tit. 14, § 86, the maximum punishment for burglary in the second degree is ten years and by § 331, the maximum punishment for grand larceny is also ten years. The trial court acted appropriately and without any possible prejudice to defendant in its judgment and sentence. There was no splitting up of a single crime into two crimes, as contended by appellant. The very opposite is true. The two crimes were merged into one, as they should have been, and thereby no real or potential injury was caused defendant in the form of exposure to double jeopardy, more than one punishment for the same offense, or otherwise. Mayes v. State, 56 Ala.App. 456, 322 So.2d 746 (1975); Knight v. State, 50 Ala.App. 457, 280 So.2d 163 (1973).

Industrious and resourceful counsel for appellant set forth in their brief fifteen assignments of error, the fifteenth being that the court erred in refusing the requested charge by the defendant that the jury could not convict him of burglary and grand larceny “both in this case.” In accordance with what we have just stated, the trial court correctly refused to give such charge.

Mr. V. E. Satterfield testified that he was an eye witness to the crime. While interrogating an officer with the Alabama Bureau of Investigation, Public Safety Department, the attorney for the State asked him if he talked with Mr. Satterfield when he, the officer, went to the dwelling to investigate the burglary. Defendant’s objection to the question was overruled, and the witness answered that he did talk with Mr. Satterfield. We fail to see any possible harm to defendant in the court’s overruling defendant’s objection to the question, but even so the court was not in error. “It is always competent for a witness to state that he had a conversation with a third person, on a certain subject germane to the issue in dispute, and at a time specified, as a reason for his accurate recollection of a fact to which he has testified.” Adams v. Robinson, 65 Ala. 586.

Defendant objected to a question asked the witness Satterfield by the State, whether the witness showed a Mr. Harold Richards where the witness was sitting when the burglary happened. However, the question was never answered, and the court’s overruling the objection to the question furnishes no basis for a charge of reversible error. Cartlidge v. State, 52 Ala.App. 495, 294 So.2d 462, cert. denied 292 Ala. 715, 294 So.2d 467; Haisten v. State, 50 Ala.App. 504, 280 So.2d 209.

Four assignments of error challenge the action of the trial court in overruling defendant’s objections to questions asked on cross-examination of various character witnesses for defendant, whether they had heard that defendant had committed, or had been indicted for or charged with, certain specific, designated crimes. This is permissible cross-examination. Judge McElroy states:

“. . . [T]he state on cross-examination, for the purpose of testing the credibility of the witness, may ask him whether prior to the time of the alleged offense, he heard reports, rumors or statements derogatory of accused.”

and cites a large number of cases wherein the principle had been applied. McElroy, Law of Evidence in Alabama, (2d ed.) § 27.01(5).

Judge Harris summarized the principle in Frazier v. State, 56 Ala.App. 166, 320 So.2d 99 (1975) as follows:

“Where witnesses testified as to the good reputation of the defendant, it was permissible on cross-examination to test their knowledge of the defendant’s reputation by asking if they had heard of specific acts of the defendant that tended to mitigate against his reputation or character . . . Baldwin v. State, 282 Ala. 653, 213 So.2d 819.”

Although the questions asked the witnesses were not limited, as they should have been limited, to the time prior to the date of the alleged offense, no point was made by defendant to the generality in time of the questions. Furthermore, it is to be noted that as to time the questions asked on cross-examination followed the pattern set by the defense in its questioning the character witnesses for defendant without limiting their questions to his reputation prior to the time of the alleged offense.

One character witness for defendant was asked on cross-examination by the State whether he had often drunk whiskey with the father of the co-indictee. Defendant’s objection to the question was overruled, but the witness did not answer this specific question. He was thereafter asked substantially the same question, to which no objection was made. No reversible error occurs in the overruling of an objection to a question that is never answered or in admitting an answer to a question to which no objection is made. Wade v. State, 49 Ala.App. 601, 274 So.2d 626; Thompson v. State, 44 Ala.App. 414, 211 So.2d 505. Furthermore, the question was not objectionable, it being within the permissible range of cross-examination for the purpose of showing the interest, bias, prejudice, or partiality of the witness. Adams v. State, 280 Ala. 678, 198 So.2d 255.

The wife of defendant, testifying in his behalf, was asked by defendant’s counsel and permitted to testify that she worked at the glove factory. She was asked “What do you make a year?” The State’s objection was sustained, and defendant’s counsel stated:

“We except to that, Your Honor. It goes to whether or not the resources of these people would imply that they would be guilty of stealing.”

This question is well covered in McElroy, Law of Evidence in Alabama, (2d ed.) § 45.03 (2)-(3), in which cases in Alabama are cited upholding action of the trial court in rejecting evidence, offered by accused, tending to show his strong financial condition at the time of an alleged offense such as robbery or larceny. In Parsons v. State, 251 Ala. 467, 38 So.2d 209, it was stated:

“We could well see in connection with evidence of good character or an alibi that a strong financial status [of the accused] could sometimes be material.”

We doubt that what defendant’s wife was making while working was sufficient to place her and defendant in such a strong financial status as to create an exception to the rule that was applied in Parsons and other cases. At any rate, we do not think that anything more favorable to defendant on the particular point can be said than Judge McElroy’s conclusion:

“It is here submitted that the admissibility of evidence of poverty or plenty should be committed expressly, to the discretion of the trial court, subject to reversal for prejudicial abuse of such discretion. Anno: 6 Ann.Cases 349.”

The State was allowed to show by a deputy sheriff that the reputation for truth and veracity of a particular witness for defendant was bad. Objection to such testimony was not well taken. Either party may be able to show by a qualified witness that the general reputation for truth and veracity of an opposing witness is bad. Pugh v. State, 42 Ala.App. 499, 169 So.2d 27; Mason v. State, 37 Ala.App. 122, 64 So.2d 606.

Charge 6,- requested by defendant and refused by the court, was as follows:

“The Court charges the Jury that there is no evidence in this case that the defendant has been convicted of Robbing Roberts Store and stealing a rifle from Mr. Hartline, and should not be considered by you in your deliberation in this case.”

According to the established rule, a “there is no evidence” charge can properly be given at times, but the refusal of such a charge does not constitute reversible error. Smith v. Moore, 278 Ala. 173, 176 So.2d 868; Pollard, v. Williams, 238 Ala. 391, 191 So. 225.

Charge 7 requested by defendant and refused by the court was as follows:

“The Court charges the Jury that the witness Virgil Satterfield has admitted to pleading guilty and being sentenced to Probation of Breaking and Entering in Chattanooga, Tennessee and Assault 'with intent to Murder in Lafayette, Georgia, and you may consider these facts in determining the guilt or innocence of the defendant.”

The content of the charge constitutes good argument in favor of defendant but contains no principle of law to be communicated by the court to the jury. It gave undue prominence to the testimony mentioned and tended to mislead the jury to believe that such testimony bore directly upon the question of the guilt or innocence of defendant and not indirectly only in its possible disparagement of the credibility of the witness. Roden v. State, 5 Ala.App. 247, 59 So. 751.

The record is free of any error that probably injuriously affected substantial rights of defendant, and 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: BEATTY, Justice.

text:
    In re Jerry CROWE v. STATE. Ex parte Jerry Crowe.
    SC 1903.
    Supreme Court of Alabama.
    July 2, 1976.
    W. M. Beck, Sr., Fort Payne, for petitioner.
    None for the State.
   BEATTY, Justice.

Petition of Jerry Crowe for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Crowe v. State, 57 Ala.App. — 333 So.2d 902.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Willie Arthur PARKS v. STATE.
    4 Div. 343.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Rehearing Denied May 18, 1976.

      Smith & Smith, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree. He was convicted of murder in the second degree and the jury fixed his punishment at fifteen years in the penitentiary. He was representéd by retained counsel and at arraignment pleaded not guilty. After sentence was imposed, he gave notice of appeal and requested that the sentence be suspended pending appeal. This request was granted and bond'*was set at $15,000.00.

Appellant was a married man with eight children and he was having a love affair with a married woman who had four children. This affair had been going on for about eighteen months prior to the shooting on the night of October 10, 1974. The shooting occurred in the parking lot behind Gibson’s Department Store in the city of Dothan, Houston County, Alabama, where they often met to engage in illicit intercourse. The woman, Deloris Dozier, stated that she did not consider this liaison with appellant as a “romance” but only a love affair.

Deloris testified that around 6:10 p. m., she parked her car in front of Gibson’s to do some shopping and just happened to run into the deceased, Earlie B. Lawrence, whom she had known for some time as they worked for the same employer. After talking a few minutes they decided to ride around for a while, and Deloris moved her car from the parking space in front of Gibson’s and parked it in the rear where she and appellant had met so many times. She got in the car with the deceased and they rode up the Headland Highway and were gone about two hours. During this trip Deloris said they were discussing personal problems. On the return trip they stopped at a grocery store where she purchased a half gallon of milk.

Prior to October 10, 1974, Deloris’ husband had given her a .38 caliber pistol for her birthday and she obtained a permit to carry the pistol. Appellant also had a pistol and a permit to carry it. Each of them knew about the pistols and the permits and that both carried their pistols with them.

When Deloris and the deceased returned to the rear parking lot at Gibson’s, they did not see another vehicle anywhere around Deloris’ car and the deceased parked his automobile next to her car. She got out of the deceased’s car and started to get in her car. She had her purse and the half gallon of milk in her hands. From this point on the evidence is in sharp conflict. According to the testimony of Deloris, “Just as I put my foot on the ground the back door of my car came open and Willie Arthur Parks was getting out of the back seat of my car,” and he said, “I told you if I was to catch you with someone else I was going to kill you.”

Deloris further testified that she reached for him and had him up around his neck and they were tussling and she ran to the front of her car and tried to get her pistol out of her purse; that appellant started after her and she got her pistol out of her purse. At this point the deceased was getting out of his car and was trying to say something to appellant and appellant turned toward the deceased and she heard gunshots. She started back around her car and when she passed the deceased, he was leaning over and groaning and she heard another shot and felt pain in her back. She turned and fired at appellant and he ran and fell. She stated that she fired at appellant twice, but she didn’t know in what direction the bullets went. She further stated that she fell and appellant ran from the scene but a few minutes later he drove his car back to the scene of the shooting and looked at her and the deceased on the ground and backed his car up and left them lying on the ground.

Deloris stated that appellant told her he would rather see her dead than have somebody else have her. She said he was the only man she was going with during this eighteen months.

Appellant’s version of the occurrence was entirely different from the testimony of Deloris. He testified that he did not know the deceased in his lifetime. He stated that he got off work at 6:00 p. m. saying that he had to go to get some crayons for his little girls. That he went to Gibson’s and when he came out, he walked to the back and saw Mrs. Dozier’s car parked there and that all the doors were locked except the back left door and he got in the back seat and went to sleep and that when he woke up, Deloris knocked him back against the car and started digging in her pocketbook and he ran around the car and came around the car and that was the first time she saw him and he then snatched the gun and shot at her. That Deloris pulled the deceased over in front of her and he went over to another position and tried to shoot her. He said he did not know how many times he shot his pistol and that both Deloris and the deceased were standing up when he ran from the scene. He denied getting in his car and returning to the place of the shooting. He further testified that he was not mad with anybody when he got in the back seat of Deloris’ car. He was expecting to see her when she came back but stated, “I didn’t expect her to be with someone.” He said when he left the scene of the shooting, he threw his pistol in a creek. The officers were unable to find the pistol.

He testified further that he had been going with Deloris since the night of the shooting and that he had sexual relations with her seventeen or eighteen times and this started two weeks after he got out of jail.

On cross-examination he testified that he left work at 6:00 p. m. because he was sick. That he got dizzy and had pain in his side but he didn’t go home. That he parked his car where it could not be seen from where Deloris’ car was parked. He said he had never threatened her but she told him she would have shot him but she was afraid that if she missed him, he would shoot her. He stated that she bit him one time and he cut her with a knife. He stated she started shooting first and he never got hit one time.

He further testified that the deceased was just standing by the side of his car when the shooting started and that Deloris grabbed the deceased and pushed him in front of her and used him as a shield. That he moved over and kept shooting because she kept shooting.

On re-direct examination he testified he was in her car because he wanted to see her.

From the record:

“Q And you were there because you wanted to see her?
“A That’s right. She had some pictures and she said her husband had gotten one of those pictures and carried it somewhere and I wanted the rest of them. When I saw her car, I was waiting for her. She said that she was going to get the pictures. That is the reason I waited for her.
“Q But you expected to see her otherwise too?
“A Yes, sir.”

Lee Norris Jackson testified that he was self-employed in the janitorial business and performed this service for many buildings in Dothan. That he was at the Plaza II Office and shopping complex on October 10, 1974 from 5 o’clock until 8:30 and he heard gunshots in the vicinity of the Headhunter’s Beauty Shop, which was about three doors away from the General Telephone building. He looked in that direction and saw a person running. About a minute later he saw a car come around the corner with the headlights flashing on him and the car backed up and left the scene. He stated the car was a blue Nova and he knew that appellant owned a blue Nova. He further testified that he knew appellant and Mrs. Dozier and had seen them together many times in the rear parking lot of Gibson’s prior to October 10, 1974. He stated he heard about five gunshots and then one or two more.

James Brackin, a Police Officer of the City of Dothan, testified that on the night of October 10, 1974, he got a call to go to Plaza II and when he arrived, he saw two persons, one male and one female, lying on the ground. He said the man was lying next to a car with his feet towards the vehicle and the woman was lying with her head towards the back of the car. He stated there was a gun beside the woman and it was lying adjacent to her left hand. He further testified he retracted a bullet from a block wall nearby, but he did not know the caliber. He did not examine the man to see if he had a weapon but he did not see a weapon near him. He tried to talk to the man but he was delirious and he did not receive any intelligent information.

Marlin Dillard testified that he was a Lieutenant with the Police Department and that at about 10:15 on the night of October 10, 1974, appellant came to the police station and told him his name and asked if the police were looking for him and he was told the police wanted him in connection with a shooting. Appellant said he was ready to give himself up. The officer gave him the Miranda rights and appellant said he understood his rights and signed a waiver of rights form.

Sergeant Larry Lynn of the Dothan Police Department corroborated the testimony of the other officers who went to the scene of the shooting. He stated there was no gun in the vicinity of the deceased and he did not have a weapon on him. He interviewed appellant and took a statement.

The proper predicate was laid as to no threats, promises, rewards or other inducements to get appellant to make a statement.

From the record:

“Q What did he say?
“A I asked him if he had seen Deloris Dozier any where that date and he said yes and I asked him where and he said Gibson’s and I asked him what time and he said about 8:30 or quarter till 9 and I asked him what happened at this time and he said that he had gotten out of the back seat of her car and that she was getting out of this other car and run around the back of the car and got behind the guy that was with her and started shooting and he said that he had his gun in his pocket and I shot back. And I asked him why he got in her car and he said that he was waiting on her and that is where the two of them met a lot of times. I asked him how long he had been going with her and he said right at two years. And I asked him what did he do with the gun and he said that he had thrown it in a creek on Flowers Chapel Road and I asked him why did he run and he said that he didn’t run that he had something to do before he came here. I asked him what was that and he said that he had to go home. I asked him if he knew the man with Deloris and he said no. I asked him if he had ever seen before and he said that not as he recalled. I asked him if he could identify him in any way and he said no. I asked him why did he shoot him and he said that he didn’t, that he was just shooting. I asked him then did he, if anyone else had seen this other than you and he said that he didn’t know. That was the end of the statement.”

An autopsy was performed on the body of the deceased by Dr. James M. Buttram, a State Toxicologist, and he removed four bullets from the body. He stated his education, experience and qualifications and said he had performed between 250 and 300 autopsies. His qualifications were not challenged. He stated that the four entrance wounds were in the chest and stomach area of the body. He also removed a bullet that had entered the back of Deloris Dozier. He sealed each of those bullets in a small manila envelope, put his initials in red ink on the sealing tape and turned them over to Mr. Lamar Miller at the Enterprise Laboratory for delivery to Richard Dale Carter who is a criminalist with the Alabama Department of Toxicology and Criminal Investigation. Dr. Buttram stated the cause of death in the following language:

“Because of the findings on my examination of the body, it is my opinion that death in this case was due to a massive hemorrhage or liver damage and shock as a result of the gunshot wounds, three of which penetrated the liver.”

Mr. Richard Dale Carter testified that he received the sealed envelopes from Lamar Miller with Dr. Buttram’s initials on it and also the initials of the deceased. He stated his education, experience and qualifications in great detail. He further testified that the .32 caliber bullet identified as having been removed from Mrs. Dozier was fired from the same barrel as the four bullets removed from the body of the deceased. He stated further that these .32 caliber bullets that he received and exam-mined could not have been fired from a .38 caliber pistol that was delivered to him by an officer of the Dothan Police Department.

When the State rested, appellant moved to exclude the State’s evidence as to murder in the first degree and murder in the second degree which was overruled. The Court asked appellant’s counsel if he had any more motions and counsel replied that he would not make a motion to exclude the evidence as to manslaughter.

There was no request for the affirmative charge and no exceptions were reserved to the oral charge of the Court. The Court charged the jury on all four degrees of homicide, and the law of self-defense. Appellant’s counsel announced that he was satisfied with the Court’s oral charge.

Appellant filed a motion for a new trial containing nine grounds. The first eight grounds dealt with the sufficiency of the evidence. The ninth ground is as follows:

“(9) The Court erred in that the trial court allowed the jury' to separate at lunch for their midday meal, all to the possible prejudice of the defendant.”

This motion was set for hearing- and the Court made and entered the following judgment or order:

“JUDGMENT ON MOTION FOR NEW TRIAL
“The matter before the Court is the Defendant’s motion for a new trial which was heard orally by the Court this day. The only grounds of any substance, in the opinion of the Court, in the said motion is Grounds 9 which alleges that the Court erred in allowing ‘the jury to separate at lunch for their midday meal, all to the possible prejudice of the Defendant.’ At the hearing on the motion for a new trial the Court questioned Defendant’s Attorney about this allegation and made the statement that the Court distinctly remembered getting permission from the Defendant, the Defendant’s counsel and the prosecuting attorney, out of the presence and hearing of the jury, for the jury to separate during the noon hour on the day of Defendant’s trial. The Court was mistaken. Immediately after the hearing on the motion for a new trial, the Court had the Court Reporter bring his notes from Defendant’s trial into the Courtroom and read to the Court what transpired concerning the jury and whether or not they separated for lunch during Defendant’s trial. The Court Reporter’s notes reveal that the jury did not separate for lunch during Defendant’s trial. The Court Reporter’s notes reveal that they were sent to lunch in a body in the care of the bailiffs, Mrs. Lucy Nelson and Mr. Charlie Boyette; that they were instructed not to talk about the case among themselves or to anyone else; that they were instructed to leave the courtroom in a body, to go to lunch in a body and to return to the courtroom after lunch in a body. In light of this, the Court finds that Grounds 9 of defendant’s motion for new trial is not true and that said motion should be denied. It is therefore,
ORDERED, ADJUDGED AND DECREED by the Court that Defendant’s Motion for a New Trial be, and the same hereby is, denied. The Clerk is directed to furnish a copy of this judgment to Honorable Jack W. Smith, Attorney for Defendant, and the District Attorney of the 20th Judicial Circuit of Alabama.
THIS the 18th day of April, 1975.
S/Jerry M. White
Judge, 20th Judicial Circuit of Alabama.”

Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation, and the defendant’s use of a pistol was sufficient to warrant the jury in finding that he acted with malice. Holcey v. State, 52 Ala.App. 664, 296 So.2d 750.

In Miller v. State, 38 Ala.App. 593, 90 So.2d 166, this Court held:

“ ‘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.”

The conflict in the evidence presented a question for the jury to determine, and the evidence was sufficient, if believed by the jury to the required degree, to support the verdict. Young v. State, 283 Ala. 676, 220 So.2d 843; Harris v. State, 48 Ala.App. 723, 267 So.2d 512; Brand v. State, 46 Ala.App. 41, 237 So.2d 524; Pugh v. State, 51 Ala.App. 164, 283 So.2d 616.

Decision on motion for a new trial rests largely within the sound discretion of the trial court and, in reviewing that decision this Court will indulge every presumption in favor of the correctness thereof. Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624; Hamm v. State, 38 Ala.App. 423, 87 So.2d 863.

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

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


author: SHORES, Justice.

text:
    In re Willie Arthur PARKS v. STATE of Alabama. Ex parte Willie Arthur Parks.
    SC 1876.
    Supreme Court of Alabama.
    July 2, 1976.
    Jack W. Smith, Dothan, for petitioner.
    None for the state.
   SHORES, Justice.

Petition of Willie Arthur Parks for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Parks v. State, 57 Ala.App. -, 333 So.2d 906.

WRIT DENIED.

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


text:
    James N. PARHAM v. STATE.
    1 Div. 613.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied March 30, 1976.
    David L. Barnett, Mobile, for appellant.
    Wnu'prn J. Baxley, Atty. Gen. and Aubrey Ford, Jr., Asst. Atty. Gen., Montgomery, lor the State.
   TYSON, Judge.

The appellant was indicted for the unlawful possession of Heroin. The jury found the appellant “guilty of possessing Heroin as charged,” and the trial court entered judgment, setting sentence at ten years imprisonment.

Doris Ann Reed testified that she had formerly been married and had left a young son with relatives in Houston, Texas. She stated that she originally met the appellant, James N. Parham, when she was working in Tucson, Arizona, at the Tucson Gas and Electric Company. She stated that she had driven with the appellant in March, 1975, from Tucson, through Houston, to Beaumont, Texas, and from there to Mobile, Alabama. She stated that she and the appellant had stopped at a motel in Mobile after first stopping by an apartment.

While at the motel, “two guys” came looking for the appellant, and the appellant left the motel with these two men for a few hours. About forty-five minutes after the appellant had returned to the motel, she and the appellant left in her car, following a “guy to the apartment” (R. p. 21). While at the apartment with the appellant, she testified that a man, whom she identified as Cecil McCreary, gave the appellant a roll of money in the amount of $500.00, and upon their leaving the apartment, the appellant gave McCreary a plastic bag “that had some powdery stuff in it” (R. pp. 22-23). She then stated that she and the appellant returned to the motel where she subsequently stole the above mentioned $500.00 from the appellant and left the motel in her car, which contained all of the appellant’s belongings. Between thirty minutes and an hour later, she called the appellant at the motel and told him, “You know I ripped you off,” to which the appellant replied, “Forget about the money Bring the shaving kit back” (R. pp. 23, 63, 65). However, instead of taking the shaving kit directly back to the appellant at the motel, she called Cecil McCreary who advised her “to let him get the shaving kit back,” and at this time she arranged for McCreary to meet her at the Mobile Airport (R. p. 24). She then testified that after she arrived at the airport, she opened the appellant’s shaving kit and observed a “see through sandwich bag,” which she later learned contained Heroin (R. p. 24). Thereafter she placed the shaving kit in Locker 107 there at the airport, met Cecil McCreary, and they then left the airport in McCreary’s car (R. p. 26). On cross-examination, she reiterated the story about-' placing the shaving kit in the locker at the Mobile Airport. Again she stated she did not know the substance in the kit was Heroin, and that to her knowledge she had never seen Heroin before (R. p. 47). Furthermore, she testified that while in McCreary’s car he pulled a gun on her (R. p. 60), took her purse and the locker key (R. p. 65), then threatened to kill her because he believed she was an undercover agent (R. p. 61). The witness at that time jumped from the car and broke her leg (R. pp. 61, 102).

Sergeant Don Gill of the Mobile Police Department testified he interviewed Doris Ann Reed at Mobile General Hospital and that she gave him some “information concerning the location of narcotics in Mobile County” (R. p. 82). Sergeant Gill relayed this information to Officer George Sullivan (R. pp. 82, 85), who then advised the security guard at the Mobile Airport of the information he had received from Sergeant Gill (R. p. 85).

Officer Douglas Jones of the Mobile Police Department testified that he was on duty at the Mobile Airport the day of the appellant’s arrest (R. p. 77), and upon receiving Sergeant Gill’s information (in reference to the possible existence of narcotics at the airport); he began watching the lockers in the airport terminal (R. p. 78). Officer Jones then testified he observed the appellant enter the airport terminal, walk over to the lockers, then turn and walk away (R. p. 78). Officer Jones stated that the appellant then attempted to make two phone calls, and, shortly thereafter, returned to the locker area where he then placed a key in Locker 107, and slowly opened the door (R. p. 78). Officer Jones continued saying that when the appellant “got down over the bag,” he informed the appellant that he was a police officer at which time the appellant “dropped a plastic bag” (R. p. 79). On cross, Officer Jones admitted that the appellant had not completely removed the bag from inside the locker at the time of the arrest (R. p. 81), and that the appellant did drop the bag inside the locker (R. p. 80).

The appellant testified at length and denied the essential allegations made by Doris Ann Reed. He stated that Doris Ann Reed did call him at the motel and informed him that she had taken his money (R. p. 98), but the appellant did not say he instructed Doris Reed to bring back his shaving kit (R. pp. 98-99). Although the appellant did not deny ownership of the shaving kit that was placed in Locker 107 at the airport, he did deny having knowledge of the Heroin contained therein (R. pp. 102, 103). The appellant stated that the following evening after receiving the call from Doris Reed he was “approached by a young man” (unknown to him) (R. p. 100) and was given two keys for lockers in the Mobile Airport. The appellant testified the stranger stated that the locker keys “were given to me by a girl named Doris Reed, and she told me to tell you that your clothes were there” (R. p. 100). The appellant then went to the airport, opened the locker and was there arrested by Officer Jones. The appellant further testified that he merely opened the locker door and never touched the bag inside the locker (R. pp. 119, 120, 125).

Alilee Pillman testified that after conducting tests on the contents of two packets she had received from the Mobile Police Department, she found the contents of each packet contained Heroin and Diazepal (R. p. 57). It was stipulated by the appellant that there were no irregularities in the chain of possession (R. p. 58).

I

The appellant asserts that he was never in actual possession of the Heroin, hence, his conviction is due to be reversed.

In a prosecution for unlawful possession of narcotics, the element of possession, of course, must be proven. “Possession,” however, is one of the most ambiguous terms in law, and although many courts have attempted to fix its meaning with some definiteness and certainty, what has resulted is that the word has been given a variety of definitions and interpretations.

Presiding Judge Cates, speaking for this Court in Radke v. State, 52 Ala.App. 397, 293 So.2d 312 (1974) has said:

“Possession — the visible possibility of exercising physical control over personalty — is usually divided as actual (manu-captive) or constructive. Possession has three attributes: (1) actual or potential physical control, (2) intention to exercise dominion and (3) external manifestations of intent and control.”

Although the appellant argues failure of proof of constructive possession, the trial court imposed an even heavier burden on the State by charging the jury that in order to convict the appellant of the offense, they had to find that the appellant was in actual physical possession of the Heroin (R. p. 134). There is evidence in the record (testimony of Officer Jones, R. p. 79) that proves that at the time of the arrest the appellant had actual physical dominion and control of the shaving bag containing the Heroin. Since the appellant stated that he never touched the shaving kit, but was arrested by Officer Jones immediately after he opened the locker door, the issue of his actual physical possession was a disputed evidentiary fact. The jury resolved the dispute against the appellant by finding him guilty, and this court is without warrant to disturb the verdict of the jury where the evidence is conflicting. Oury v. State, 53 Ala.App. 240, 298 So.2d 661 (1974); Woodward v. State, 52 Ala.App. 524, 294 So.2d 772 (1974).

We conclude that the State’s evidence was sufficient to let this cause go to the jury.

We have carefully examined this record and find no error therein. The judgment below is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    In re James N. PARHAM v. STATE. Ex parte James N. Parham.
    SC 1806.
    Supreme Court of Alabama.
    June 11, 1976.
    David L. Barnett, Mobile, for petitioner.
    None for the State.
   JONES, Justice.

Petition of James N. Parham for Certi-orari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Parham v. State, 57 Ala.App. -, 333 So.2d 912.

WRIT DENIED.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.


text:
    Jerome MERRITT v. STATE.
    4 Div. 398.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
    Rehearing Denied May 4, 1976.

      Rowe & Rowe and Gary L. McAliley, Enterprise, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of assault with intent to ravish and sentenced to the penitentiary for a term of ten years. Prior to arraignment he was found to be indigent and counsel was appointed to represent him. He pleaded not guilty and not guilty by reason of insanity. After sentence was imposed, he gave notice of appeal and was furnished a free transcript and trial counsel was appointed to represent him on appeal.

Prior to trial appellant’s counsel filed a motion to have the Court institute an investigation as to the sanity of the defendant and 5the Court set the motion for a hearing and considerable testimony was taken. At this hearing appellant testified at length. It developed that appellant was seventeen years of age at the time of the alleged offense and was born in California. He ran afoul of the law in the state of California and spent the better part of ten years in and out of juvenile detention during which time he was examined by a psychologist and treated by a psychiatrist according to his testimony. He was convicted of larceny and burglary and was put on parole from time to time but would invariably get into trouble.

He left California while on parole and moved to Enterprise, Alabama, to live with his grandparents. According to his testimony he finished the twelfth grade while in prison.

He was examined by Dr. H. S. Noe in Enterprise who is connected with the Mental Health Center in that city and who received his Ph.D. in Clinical Psychology from the University of Tennessee. Dr. Noe testified that from his examination he could not find anything to indicate appellant was psychotic and that in his opinion he had an appreciation of what was right and what was wrong. However, he did suggest further evaluation. At the conclusion of the hearing the trial judge made the following order:

"COURTS ORDER GRANTING DEFENDANTS PETITION FOR SANITY EXAMINATION
“The defendant in this cause is under indictment in Coffee County, Alabama, Enterprise Division, in five cases, one for rape and four for assault with intent to rape. The defendant filed petition with this court asking that an'investigation be had pertaining to his sanity. The cause was set for hearing and heard before the court.
“From the evidence submitted, this court has serious doubts whether the defendant is suffering with any mental incapacity, however, in view of much testimony that he had heretofore been treated at numerous times by various psychiatrist in the State of California, considered with some of the other evidence in the case, it is the opinion of the court that he should be examined by a qualified psychiatrist under the Department of Mental Health, State of Alabama, to determine whether or not he was mentally incapable at the time of the offense as charged and whether or not, at this time, he is mentally capable to stand trial.
“IT IS THEREFORE ORDERED by the court that the defendant be ordered to the custody of the Department of Mental Health, State of Alabama, wherever directed by said department, where he shall be examined by a qualified psychiatrist who shall advise this court whether or not this defendant is insane to a degree that he would not be responsible for commission of the offenses charged, viz, rape and assault with intent to rape, and whether or not he is at the present time sane to the degree that he could participate in his trial in the offense of this cause.
“It is further ordered that upon notice that said department will receive this defendant, that the Sheriff of Coffee County, Alabama, proceed to deliver his custody to said department at where ever directed and that said, department shall retain the custody of said defendant until he is improved if he is insane or until such time it is determined that he should be returned to Coffee County for trial. The defendant is incarcerated in Coffee County Jail and not under bond therefore he should not be released by the Department of Mental Health except to be returned to the custody of said county.
“It is further ordered that the costs of transporting this defendant for this purpose shall be born by the State of Alabama as provided by law.
“Done this Sth day of March, 1975.
“ERIS F. PAUL
Circuit Judge
“Filed: March 5, 1975.”

Following this order appellant was sent to Searcy Hospital and was admitted on March 25, 1975.

On May 2, 1975, a report was sent to Judge Paul giving in detail the treatment administered to appellant during his stay in this mental hospital including mental and physical examinations, psychological testing, social history study, treatment team interview, psychiatric evaluation and neurological work-up. The report concluded with these paragraphs:

“Considering the above mentioned evaluative procedures, the treatment team in collaboration with the staff psychiatrist agreed on a diagnosis of Adjustment reaction of adolescence (with features of antisocial personality).
“In view of the foregoing, it is the treatment team’s opinion that this patient is sane, is mentally competent to stand trial, knows the difference between right and wrong and is able to communicate and cooperate with counsel in his defense. This was discussed explicitly with the patient and he concurred in this opinion. Therefore, he should be remanded to the Coffee County authorities as soon as possible for disposition of the pending charges against him.”

Appellant was put to trial on September 15, 1975. There is no dispute in the testimony. Appellant did not testify and offered no evidence in his behalf.

The victim testified that on Wednesday night before the third Sunday in December, 1974, she was walking on Daleville Avenue in Enterprise, Alabama, on her way to Friendship Baptist Church to choir practice. The time was between 6:30 and 7:00 p. m. It was dark except for the street lights and she was alone. She further stated that a person came around the corner of a store next to a vacant lot and stepped in front of her and asked her name. She told him she didn’t have a name and the man had an open switchblade knife and grabbed her and said “he wanted some -, and that he would cut my - -throat.” She said he tore her jacket off and she ran into a barber shop nearby and reported the attack on her. She dropped her brown bag and hymn book at the scene. A man from the barber shop went with her to the place where the man grabbed her and she found her jacket, bag and hymn book. She stated she had never seen the man before that night.

The victim stated she struggled with the man for several minutes and got a good look at him. She made a positive in-c.ourt identification of appellant as the man who attacked her with an open knife.

The victim further testified that she went to the Police Department that same night but they did not let her sign a warrant for anybody’s arrest. Several weeks later the police picked her up and carried her to headquarters where she identified appellant as her attacker. She stated that she had not forgotten the man’s face and would never forget it.

Defense counsel objected to the District Attorney’s closing argument wherein he said, . . What did you tell Mr. Mc-Alily when you talked to him ? And nobody takes the stand to rebut what she tells you,” and asked that it be stricken from the record. The Court said:

“I will sustain that and note the objection is sustained.”

In King v. State, 45 Ala.App. 348, 230 So.2d 538, Judge Cates (now Presiding Judge) wrote:

“Under Washington v. State, 259 Ala. 104, 65 So.2d 704; Welch v. State, 263 Ala. 57, 81 So.2d 901, and Taylor v. State, 279 Ala. 390, 185 So.2d 414, § 305 is read literally, i. e., covert references are construed against the defendant. In other words, no matter what the jury might infer, there must virtually he a direct identification of the defendant alone as the individual who has not become a witness. Earlier cases to the contrary apparently must be viewed askance. See Williams v. State, 43 Ala.App. 343, 190 So.2d 556, and the border line case of White v. State, 44 Ala.App. 312, 208 So.2d 222.”

There was no motion to suppress the identification of appellant by the victim; there was no motion to exclude the State’s evidence; there was no motion for a new trial; there were no exceptions reserved to the Court’s oral charge to the jury; there was no request for the affirmative charge, and no adverse rulings on the admission of evidence which contained any merit. In this state of the record nothing is presented to this Court for review. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Goodman v. State, 52 Ala.App. 265 291 So.2d 358; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613.

The judgment entry is in all things proper. It recites that the Court explained to the defendant that he had a right to apply to be treated as a youthful offender but after a conference between the Court, the defendant and defendant’s attorneys, the defendant in the presence of his attorneys announced to the Court that he waived his right to apply to be treated as a youthful offender, did not apply to be so treated, did not waive his right to a jury trial, and elected to be treated as an adult.

Such an application would have probably been fruitless anyway as he was indicted for one case of rape and four cases of assault with intent to ravish.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    In re Jerome MERRITT v. STATE. Ex parte Jerome Merritt.
    SC 1853.
    Supreme Court of Alabama.
    June 11, 1976.
    Gary L. McAliley and C. Warren Rowe, Enterprise, for petitioner.
    None for the State.
   ALMON, Justice.

Petition of Jerome Merritt for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Merritt v. State, 57 Ala.App. -, 333 So.2d 915.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Clifton ANDERSON, Jr.
    No. 57441.
    Supreme Court of Louisiana.
    June 21, 1976.

      John Clyde Fontenot, Fontenot & Mitchell, Ville Platte, for defendant-appel-' lant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. William Pucheu, Dist. Atty., A. Bruce Rozas, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

At approximately eight o’clock on the morning of January 20, 197S the defendant Clifton Anderson, Jr., Linton Frank, and others, were in the Hollywood Inn, a nightclub and cafe, located in the town of Ville Platte. Some disagreement arose and as a result Anderson and Frank engaged in a scuffle. The owner of the club, a police officer, Berwick “Boy” Jack, asked them to leave.

Outside the argument and scuffling continued, with some exchange of blows. Jack approached the participants, asking them to break it up. After they were separated, Anderson pulled a knife and with one slash cut the left side of Frank’s face from the ear to the corner of his mouth. The wound required 22 stitches.

Anderson was arrested by Officer Jack, the weapon was seized, and Anderson was brought to jail. A grand jury indictment charged him with aggravated battery. La. R.S. 14:34. After a trial by jury he was found guilty of aggravated battery and sentenced to serve ten years at hard labor. Ten assignments of error are urged by defendant on this appeal.

I

While the trial was in progress defense counsel made an oral motion to suppress the knife wielded by Anderson upon the ground that it was seized as a result of an unconstitutional search. The unconstitutionality is said to arise from the fact that the seizure was made without the officer advising Anderson of his rights under the Miranda decision.

Article 703 of the Code of Criminal Procedure requires that a motion to suppress be filed in advance of trial, unless opportunity therefor did not exist or defendant was not aware of the grounds, in which case the court in its discretion may permit the filing during trial. In addition the “filing” contemplated by the article is the filing of a written, not oral, motion.

Nevertheless, despite these technical procedural defects in the motion, it is otherwise without merit. The cutting occurred in the presence of the arresting officer, who gave a first-hand account of the happening. As he was locking the door to his establishment he observed Anderson slash Frank accross the face, thinking it was a slap until he saw the blood. He then ran to Anderson and demanded the knife, at the same time advising Anderson that he was under arrest. Not only were the Miranda warnings not required in this instance, where no interrogation was carried out, but it was the officer’s duty when making the arrest to take from the person arrested all weapons which he had about his person. La.Code Crim.Pro. art. 225.

There is no merit to this assignment.

II

While the victim of the cutting was testifying for the defendant, defense counsel asked, referring to the cutting, “Do you think it was an accident?” When the District Attorney objected that the question called for an opinion which would invade the province of the jury, the judge advised that he would permit the witness to be asked if he thought the defendant intended to cut him. Not being satisfied, defense counsel persisted in his intention to elicit from the witness whether he thought the cutting was an accident, whereupon the judge ruled he could not.

“Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression, or opinion that he may have.” La.R.S. IS :463 (quoted in State v. Kirklin, 283 So.2d 713 [La. 1973])

The ruling of the trial judge was correct.

Ill, IV and V

These assignments complain that the judge committed reversible error in threatening to hold defense counsel in contempt in the presence of the jury. The circumstances surrounding this issue reveal that defense counsel insisted on asking the witness if he thought the cutting was an accident after several rulings by the trial judge that the question sought an opinion of the witness and, as such, was impermissible. The judge then instructed defense counsel not to repeat the question and admonished him that if he did he would be held in contempt of court. Counsel for the defense then moved for a mistrial on the ground that the judge threatened to hold him in contempt in the presence of the jury. These were said to be remarks “not material and relevant and [which] might create prejudice against the defendant in the mind of the jury . . a ground for mistrial under Article 770(1) of the Code of Criminal Procedure.

A remark or conduct by the judge conveying an unwarranted reprimand of, or a severe criticism of the' methods of, or discrimination against, accused’s counsel, or an attack upon the motives of counsel with respect to particular conduct during the trial is improper. Kraft v. United States, 238 F.2d 794 (8th Cir. 1956); State v. Simpson, 247 La. 883, 175 So.2d 255 (1965); cert. denied, 384 U.S. 1014, 86 S. Ct. 1945, 16 L.Ed.2d 1035 (1966); 23 C.J.S. Criminal Law § 989.

None of the elements of the rule referred to and approved in State v. Simpson, supra, are satisfied by the facts of this case, because there was impropriety in the conduct of defense counsel, and the judge’s reprimand was warranted. After the trial judge had ruled several times on the question defense counsel persisted in his attempt to interrogate the witness, contrary to the ruling. The trial judge was therefore justified in invoking his authority to maintain the integrity of his orders.

The remarks of the trial judge were relevant and material to the proper conduct of the trial, and to the preservation of order in the courtroom. " A reading of the transcript convincingly demonstrates that these remarks did not create prejudice against the defendant in the minds of the jury and Article 770(1) cannot, under those circumstances, support the motion for a mistrial. The overwhelming evidence of the cutting in full view of eyewitnesses and a police officer was unaffected by this incident.

VI and VII

[4] Out of the presence of the jury, while cross-examining defense witness Raymond Anderson, the District Attorney asked, “You said you have been knowing Clifton Anderson, Jr., a long time?” The witness answered, “Yes, sir,” after which the District Attorney asked, “How many people do you know of a fact that he cut ?” Before the witness answered defense counsel objected and the trial judge sustained the objection. A motion was then made by defense counsel to strike the question from the record, which the judge refused to order, explaining that the question was propounded out of the presence of the jury and the jury would not read the transcript. The ruling was correct.

VIII

Defense counsel called the defense witness Raymond Anderson on redirect examination after he had been questioned on cross-examination by the State relative to a statement he made to police before trial concerning the cutting, which he witnessed. On cross-examination his testimony did not disclose that the participants in the affray were “playing”. On redirect examination defense counsel elicited from the witness the fact that the reason why the statement did not contain a reference to “playing” was because he was not questioned on that phase of the happening.

On recross-examination the District Attorney sought to emphasize the disparity between the witness’ pretrial statement and his testimony on direct examination to the effect that the participants in the cutting were “playing”.

Defense counsel objeced to this line of recross-examination as being beyond the scope of the redirect examination. The objection was overruled. The ruling was correct. The recross-examination was properly within the scope of the redirect examination.

In addition, the latitude allowed in this area is largely a matter within the discretion of the trial judge. In the absence of an abuse of discretion his ruling will not be disturbed. La.Code Crim.Pro. art. 765; State v. Cordier, 297 So.2d 181 (La.1974).

IX

[6] This assignment of error asserts that after the jury retired to deliberate they asked to return to the courtroom and the request was granted. No foreman had yet been appointed, and one of the jurors asked for instructions on simple and aggravated battery, which the trial judge repeated at defense counsel’s request. Other questions on reasonable doubt and dangerous weapons were asked and explained by the judge without comment on the evidence.

No contemporary objection was made on behalf of the defendant, and the jury retired again to deliberate, returning in forty-eight minutes to announce a verdict of guilty of aggravated battery.

In this assignment of error the defense contends the judge became involved in the jury deliberations in violation of his rights. No violation of rights is disclosed by this record and the defense has not objected. La.Code Crim.Pro. art. 841. A motion for a mistrial filed two days after the trial came too late. Objection to prejudicial remarks or conduct must be contemporaneous. La.Code Crim.Pro. art. 770 (Official Revision Comment); State v. Neal, 231 La. 1048, 93 So.2d 554 (1957).

X

The matters advanced in support of this assignment of error to the ruling of the trial judge denying a motion for a mistrial and a motion for a new trial have been considered and reconsideration is unnecessary here.

For the reasons assigned, the conviction and sentence are affirmed.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Donald ROBINSON.
    No. 57564.
    Supreme Court of Louisiana.
    June 21, 1976.
    Bernard E. Fulghum, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

The defendant, Donald Robinson, was charged by bill of information with the crime of armed robbery, in violation of R. S. 14:64. After a jury trial on November 22, 1974 he was found guilty and sentenced to fifteen years imprisonment. On appeal he relies on three assignments of error.

Assignments of Error Nos. 1 and 2

In these assignments the defendant urges this court to extend the right of discovery in criminal cases. In a pretrial motion for a bill of particulars and prayer for oyer, defendant requested copies of confessions, both written and oral, copies of witnesses’ statements, copies of ballistics reports, a list of the State’s witnesses and other details of the State’s case. The State answered that it had no written confessions and was not required to answer further; the trial judge ruled that the State’s answers were sufficient.

No error is shown. The defendant cannot obtain by bill of particulars pretrial discovery of the State’s evidence. State v. Ball, 328 So.2d 81 (La.1976); State v. Kado, 300 So.2d 461 (La. 1974).

Defendant in this case 'merely argues that liberal discovery is the better practice. This State has not adopted liberal discovery in criminal cases. However, this court has extended the right of pretrial discovery of the State’s evidence in cases where failure to do so might seriously handicap the defense. See e. g. State v. Woodruff, 281 So.2d 95 (La.1973). No such showing has been made in the instant case.

Assignments of Error Nos. 1 and 2 are without merit.

Assignment of Error No. 3

The defendant contends that the trial judge erred in ruling admissible certain testimony by the victim and his twin brother about the return of the victim’s rings and their introduction into evidence. The rings were taken from the victim by the robbers, and were clearly relevant evidence of the crime, and admissible. The basis of the objections is not clear.

This assignment is without merit.

Accordingly, the conviction and sentence are affirmed.

      . Assignment of Error No. 4 was neither briefed nor argued and is therefore deemed abandoned. State v. Carlisle, 315 So.2d 675 (La.1975).


author: SUMMERS, J., TATE, J.,

text:
    STATE of Louisiana, ex rel. Isaac PIERRE v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58139.
    Supreme Court of Louisiana.
    July 1, 1976.
   In re Isaac Pierre applying for Writ of Habeas Corpus.

Writ granted. Evidentiary hearing ordered as to applicant’s knowing free and voluntary entry of guilty plea.

SANDERS, C. J., dissents from granting of writ.

SUMMERS, J.,

dissents from the ordering of this hearing when the minutes of court amply evidenced that the plea was free and voluntary and that applicant was then aware of the consequence of the guilty plea. McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973) cert. denied 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102 (1974).

TATE, J.,

I am concurring in the belief that no contemporaneous recording was made of the colloquy and Boykinization at the time of the plea of guilty was taken as indicated by State ex rel. Jackson v. Henderson. If our records are in error in this regard, application for rehearing should be made by the State.

MARCUS, J., dissents from the granting of this writ.


author: SUMMERS, Justice. CALOGERO, Justice DENNIS, Justice

text:
    STATE of Louisiana v. Lucille SENEGAL.
    No. 57506.
    Supreme Court of Louisiana.
    June 21, 1976.

      Louis B. Guidry, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Robert Thomas Cline, Asst. Dist. Atty., for plaintiff-appel-lee.
   SUMMERS, Justice.

After a conviction in a jury trial on a charge of bribery of voters, La.R.S. 14:119, Lucille Senegal appealed to this Court, contending that her conviction and sentence should be set aside. Five assignments of error are relied upon.

I

From the facts it appears that on March 5, 1974 defendant, in company with Ernest Francis, Jr., Mrs. Ernest Francis, Sr., and three others were together in a car in connection with a trip to Crowley to cast absentee votes. Mrs. Ernest Francis, Sr., was called as a state witness and questioning disclosed that the State’s attorney was apparently preparing to ask Mrs. Francis, Sr., if the defendant had paid her to vote.

Defense counsel asked that the jury be retired and objected that the indictment charged defendant with paying Ernest Francis, Jr., and that defendant paid Mrs. Ernest Francis, Sr., the mother of Ernest Francis, Jr., was inadmissible, for no notice had been furnished to the defendant that evidence of other offenses would be introduced to show knowledge, intent or purpose. The trial judge sustained this obj ection.

When the jury was returned and questioning resumed, the State’s attorney asked if the witness saw defendant in the courtroom, to which she answered: “Miss Keg [the defendant] paid me, yeah. She paid me.” Whereupon defense counsel moved for a mistrial.

The trial judge ruled that the answer was not responsive and admonished the jury to disregard the witness’ remark. He also instructed the witness to limit her answers to the questions, and nothing else.

Considering the fact that the witness apparently had a limited knowledge of English, (some questions she answered in French) and that the trial judge felt the jury may not have heard her objectionable remark, the admonition was sufficient. The State cannot be charged with the impropriety of an unresponsive answer. State v. Lewis, 315 So.2d 626 (La.1975).

II

Three assignments of error are considered under the contention that the conviction should be reversed and the sentence set aside, because the trial judge improperly denied a motion for a directed verdict in this jury trial. A motion for a directed verdict in a jury trial is no longer permissible since the amendment of Article 778 of the Code of Criminal Procedure by Act 527 of 1975. However, since this cause was tried in December 1974 the amendment is inapplicable here.

Nevertheless, under the prevailing jurisprudence at the time of the trial, the judge could only direct a verdict of acquittal when there was no evidence at all of the offense or an essential element thereof, the sufficiency of the evidence being a question for the jury. State v. Evans, 317 So.2d 168 (La.1975); State v. Douglas, 278 So.2d 485 (La.1973) [and the cases to the same effect.]

A review of the record convinces the Court that there is some evidence of the essential elements of the crime charged. Section 119 of the Criminal Code defines bribery of voters in these words:

“Bribery of voters is the giving or offering to give, directly or indirectly, any money, or anything of apparent present or prospective value to any voter at any general, primary, or special election, or at any convention of a recognized political party, with the intent to influence the voter in the casting of his ballot.”

Primarily the thrust of the defense argument is that there is no showing of the requisite intent to influence the voter, an essential element of the crime.

Specific intent, which is applicable here, is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10. And, though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction. La.R.S. 15:445.

Ernest Francis, Jr., testified that defendant gave him a vote ticket containing the numbers of the candidates on the ballot for whom he should vote. He voted the numbers, and defendant gave him $5.00. This, together with the fact that defendant went for him in Rayne and brought him to Crowley to vote an absentee ballot, is some evidence from which the element of intent could be inferred by the jury.

These assignments of error have no mer-

III

While acknowledging that the constitutionality of the Bribery of Voters Statute (La.R.S. 14:119) was not questioned in the trial court and conceding that it is not properly raised on appeal for the first time, defense counsel asserts the unconstitutionality of the statute.

Pretermitting the propriety of raising this issue for the first time on appeal, the constitutionality of the statute has recently been upheld by this Court in State v. Newton, 328 So.2d 110 (La.1976).

This assignment of error has no' merit.

For the reasons assigned, the conviction and sentence are affirmed.

CALOGERO, J., concurs and assigns reasons.

DENNIS, J., concurs with reasons..

CALOGERO, Justice

(concurring).

In the opinion I authored on the original hearing in State v. Newton, 328 So.2d 110 (La. 1976) (a position which did not prevail), I expressed my view that the bribery of voter statute, La.R.S. 14:119, is unconstitutional.

Because the constitutionality of the statute was not attacked in the trial court and being of the view that there are no meritorious bills reserved by defendant, I respectfully concur in affirmance of defendant’s conviction.

DENNIS, Justice

(concurring).

I concur in the majority opinion; although I believe that portions of the bribery of voters statute are unconstitutional, the issue has not been properly raised here. See my concurring opinion on rehearing in State v. Newton, 328 So.2d 110, 119 (La.1976).

I respectfully concur.

      . As it presently is in effect, Article 778 reads:
      “In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
      “If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.”