author: HARRIS, Judge.

text:
    Wayne COLE v. STATE.
    8 Div. 682.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Rehearing Denied June 15, 1976.

      Roger H. Bedford, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon a two-count indictment which, omitting the formal parts, reads as follows:

“COUNT I
“The Grand Jury of said County charge that before the finding of this Indictment, Wayne Cole, whose name is unknown to the Grand Jury other than as stated, unlawfully and with malice aforethought, killed Fayrene Wilson, by shooting her with a pistol;
“COUNT II
“The Grand Jury of said County further charge that, before the finding of this indictment,- Wayne Cole, whose name is unknown to the Grand Jury other than as stated, unlawfully, and with malice aforethought, killed Merita Cole, by shooting her with a pistol; against the peace and dignity of the State of Alabama.”

At arraignment, in the presence of his counsel, he pleaded not guilty and not guilty by reason of insanity.

On January 2, 1975, appellant filed a written motion for a psychiatric examination but the record is entirely silent as to whether this motion was ever called to the attention of the Court and a ruling thereon invoked.

When the ease was called for trial on January 14, 1975, appellant withdrew the pleas interposed at arraignment and filed the following plea:

"THE STATE OF ALABAMA, PLAINTIFF VS. WAYNE COLE, DEFENDANT. CASE NO._
"Comes now the defendant m the above styled cause and enters his plea of guilty to murder in the second degree to each Count and demands that a jury be empanelled to determine the degree of his punishment.
Roger H. Bedford Attorney for Defendant
Wavne Cole DEFENDANT
Defendant demands a struck jury.
Roger H Bedford Attorney for Defendant"

The State objected to the filing of the above plea and the Court refused to accept said plea. Appellant then refused to plead further and stood mute before the Court and the Court entered pleas of not guilty to the charges laid in the indictment. A trial was had on the not guilty pleas entered by the Court.

The jury returned separate verdicts as to the counts in the indictment finding the defendant guilty of murder in the first degree under each count and fixed his punishment at life imprisonment under each count. He was adjudged guilty of murder in the first degree under each count of the indictment and was sentenced to life imprisonment under each count. He gave notice of appeal and was found to be indigent. He is in this Court with a free transcript and trial counsel was appointed to represent him on this appeal.

This case was tried solely on the evidence presented by the State. Appellant did not testify or offer any evidence in his behalf.

On the late afternoon or early evening of August 28, 1974, appellant went to the home of his father-in-law, James Willard Wilson, in the Blue Springs Community of Franklin County, Alabama, and shot his wife and mother-in-law with a .38 caliber pistol. Appellant’s mother-in-law died instantly and his wife died shortly after being carried to the hospital.

The record reflects that appellant and his wife had a very stormy marriage and were constantly in and out of the divorce courts. Divorce proceedings were pending on the date appellant committed this double murder.

According to the testimony of Mrs. Dovie McAlister, who was the grandmother of appellant’s wife, appellant had driven by the house on several occasions on the day of the homicide. He finally stopped and sounded the horn on his automobile. The only people present in the house at this time were Mrs. McAlister, her daughter Fayrene Wilson, her granddaughter Marita Cole, and the one-year-old child of appellant and his wife. Mrs. Wilson and Mrs. Cole were in the kitchen eating dinner and Mrs. McAlis-ter was in the kitchen holding the baby. Appellant’s wife asked her mother to go to the door and tell appellant to leave as she did not feel like talking to him. Mrs. Wilson went to the door and gave appellant the message from his wife. Appellant told Mrs. Wilson to tell his wife to come out on the porch and talk.to him and he would stop bugging her. Mrs. Wilson told appellant again that his wife did not feel like talking to him. During this conversation Mrs. Wilson was holding the storm door partially open. Appellant then tore the grill work out of the storm door and entered the house. Mrs. Wilson said, “Marita here he comes and he has a gun.” Mrs. Wilson went back to the kitchen and Mrs. McAlis-ter carried the baby just inside a bedroom door. While standing in the bedroom door Mrs. McAlister heard a gun fire and there was a short pause and she heard four or five more shots in rapid succession. As Mrs. McAlister turned to leave the bedroom, she came face to face with appellant who stated, “I want my _ _ baby,” and grabbed the baby out of the arms of Mrs. McAlister and moved at a fast pace toward the front door. Mrs. McAlister ran in the kitchen to see about her daughter and granddaughter. She saw them on the floor in a sitting position between the back door and the refrigerator. She called their names and got no response. She raised their heads at the same time. Her daughter’s face was bloody and she was dead. Her granddaughter looked like a half gallon of blood had been splashed on her and her eyes were rolling in her head, but she never uttered a sound.

Mrs. McAlister ran to the telephone to call for help but got the telephone numbers confused and had to give up. She then ran to the front door and started calling for help. She further testified that no threats were made to appellant by anyone, and there were no weapons of any kind in the house. She stated she did not see a weapon in the hands of appellant but that she was not looking for one.

She further testified that she was aware that there had been hard feelings between the Wilson family and the defendant but she was not allowed to state whether she was aware that on two occasions the defendant’s father-in-law, James Willard Wilson, had tried to kill the defendant. It should be noted at this point that appellant’s father-in-law was not at home when appellant invaded his home and killed his wife and mother-in-law.

Dianne Wilson testified that she was eleven years of age on August 28,1974, and was living with her parents Mr. and Mrs. James Willard Wilson. She stated that when she came from school on that date, the only people in her home were her grandmother, mother, her sister, Marita Cole, and her sister’s baby. That she went next door to see a friend and that her next door neighbors were Mr. and Mrs. J. T. Stanford and they lived right across the road from her house. While she was at the Stanfords, she saw appellant drive up in an automobile. She saw him walk up on the porch and saw her mother talking to him at the front door but she could not hear the conversation. She saw appellant go in her house and heard five or six shots. She stated that appellant was in the house two or three minutes and that she got a glimpse of him when he came back out of the door, and she did not see anything else.

Mr. J. T. Stanford testified that on August 28,1974, he lived right across the road from the Wilsons and was employed by the State Highway Department. That he got home from work around 4:30 p. m. That between 4:30 and 5:30 that afternoon he saw appellant drive by the Wilson house. That he had the hood of his son’s car up working on the fan belt. While working on the fan belt, he heard a car drive up and stop and then he heard a racket. It was a loud racket and he stepped out from under the hood of the car to see if he could determine where the racket was coming from and at that time he didn’t see anything. He walked around to the side of the car and a minute later he heard a shot and then after a pause he heard four or five more shots. He saw a car parked on the Wilson side of the road and described it as being a 1970 or 1971 model Plymouth that was greenish-gold like in color. The next thing he saw was appellant coming out of the house with a baby in his arms and he was kind of running. He saw him go straight to the car and get in and leave. He went south toward Phil Campbell. About that time he saw Mrs. McAlister come out the front door screaming and crying and said something about Marita. He went back in his house and called the ambulance.

Jerry Stanford, son of J. T. Stanford, testified that he was at his father’s house on the afternoon of August 28, 1974. He got there around 4:30 p. m. and spent the afternoon and night. That it was nearly sundown when he saw appellant drive up and park in front of the Wilson home and sound his horn. Mrs. Wilson stuck her head out the door and said something to appellant but he did not hear what was said. He heard one shot and in five or six seconds he heard continuous firing and everything got quiet. He saw appellant come out of the house with a baby under his right arm and he had a gun in his left hand and appellant got in his car and left.

He further stated he went in the Wilson home and found Mrs. Wilson and Mrs. Cole lying in a corner. He checked their pulse and Mrs. Wilson was dead. Mrs. Cole was still breathing and he tried to wipe the blood off her face until the ambulance got there. He stated he found one piece of lead behind Mrs. Wilson’s back. He picked up the slug and gave it to Rev. Motes who in turn gave it to the Coroner. He was shown State’s Exhibit 12 and identified it as the hunk of lead that he picked up from the floor behind Mrs. Wilson’s back.

Mr. Joe Newton testified that he was the Coroner of Franklin County and had held this position for eight years. That following a call from the Russellville Police Department he went to the Wilson residence. He stated there were a number of people there when he arrived but the victims had been sent to the hospital. While he was at the Wilson home, he was given a .38 caliber bullet from Rev. David Motes and he gave this bullet to John Kilburn of the crime laboratory of the Department of Toxicology in Florence, Alabama. This bullet was identified as State’s Exhibit 12. After leaving the Wilson home he went to the North Alabama Hospital where he observed the victims. That Mrs. Wilson was dead. That he saw Mrs. Cole in the emergency room shortly after 8:00 p. m. and she was alive at that time. Over appellant’s objections he was allowed to testify as to the wounds he observed on the body of Marita Cole. He stated there was one wound in the head about two inches above the left eye and one in the left arm that went into the body. He identified State’s Exhibit 11 as being a photograph of Marita Cole, showing the wounds he described. He further testified that he examined the body of Mrs. Wilson and she had one wound in the left shoulder that went into the body and another wound in the left chest. He identified State’s Exhibits 9 and 10 as photographs of the body of Mrs/ Wilson. He identified State’s Exhibit 13 as the bullet that came from behind Marita Cole’s ear and that he received this bullet at the hospital from Dr. Underwood. He stated he was present the next day when Robert Johnson performed an autopsy on the bodies and that bullets were recovered from each body.

Danny Baxter testified that he was a first cousin to appellant and he saw him around 7:30 p. m. on August 28, 1974, near Haleyville, Alabama, and that he was at his daddy-in-law’s house eating supper when appellant came to the house and called him to come out to his car. Appellant asked him to carry him to another cousin’s house, Bennie Earl Phillips, who lived near Win-field, Alabama, which was some 40 miles away. Appellant asked Danny Baxter not to ask him any questions but just to take him to Bennie Earl Phillips’ house. Appellant got out at Phillips’ house and Baxter left and returned to his house. He stated that appellant did not have the baby with him when he got him to go to Phillips’ house.

Dexter Haney, a State Investigator with the Alabama Department of Public Safety, testified that on August 29, 1974, at approximately 2:00 p. m. he went to the home of Bennie Earl Phillips near Winfield, Alabama, with Sheriff Swanson Hindman and District Attorney John Jolly. He stated that Mr. Phillips gave him a .38 caliber revolver with a 2 inch barrel and that it was loaded. The serial number of the pistol was 10870. That he put the pistol in his briefcase and that same afternoon he turned it over to Toxicologist John Kilburn. He identified State’s Exhibit 14 as the revolver.

Bennie Earl Phillips testified that he was a first cousin to appellant and that he saw appellant at his home on the night of August 28, 1974. He further testified that appellant took him in one of the bedrooms and told him he “had done something terrible and he wished he hadn’t have done what he had done and everything. He said he had shot his wife and mother-in-law.” He stated that appellant further said that he was scared and would like to get away, but he didn’t know where to go. He said something about going to Florida and Chicago but Phillips told him it didn’t make any difference where he went, that sooner or later he would be picked up and that the best thing for him to do was to surrender to the authorities. Appellant had his pistol in a black holster and he left it in the bedroom and got in the car with Phillips who drove him back to Franklin County. He let appellant out in the vicinity of his home and appellant asked him to go to Tim Murphy’s house and call a lawyer about turning himself in. Phillips did as requested and reported to appellant that the lawyer said to meet him the next morning and he would go with him to surrender. Phillips identified State’s Exhibit 14 as appellant’s pistol.

Robert B. Johnson testified that he was a State Toxicologist stationed in Birmingham and had been a Toxicologist for over 19 years. Defense counsel admitted Mr. Johnson’s professional qualifications as a Toxicologist, but the District Attorney wanted to prove his qualifications anyway and was allowed to do so by the trial judge. He stated that he had performed between 1,600 and 1,700 autopsies since he had been a Toxicologist.

Mr. Johnson gave a detailed account of the autopsies that he performed on both victims and made photographs of each victim during the autopsies and illustrated these photographs to the jury showing the wounds on their respective bodies. Over objections of appellant these photographs were admitted in evidence. No useful purpose can be served in reciting the details of what Mr. Johnson found during these autopsies. Suffice it to say that it was Mr. Johnson’s opinion that both victims died as a result of the gunshot wounds inflicted upon them by appellant during the shootings. He testified initially that he recovered a total of three bullets from the bodies and turned them over to Mr. John Kilburn who was director of the laboratory in Florence. Mr. Johnson later stated he was not certain whether it was a total of two or three bullets. He found no powder marks on the bodies which would indicate to him that all shots were fired from a distance of more than one or two feet.

Mr. John Kilburn testified that he was employed as a Laboratory Director with the Alabama Department of Toxicology and Criminal Investigation and had been so employed for six years. The State proved his education, background and experience in making ballistic tests, examinations and comparisons to determine if a particular gun fired a particular bullet. He stated he had made several hundred such tests. He further testified that he was present during the autopsies performed by Mr. Johnson and received from him the bullets identified as State’s Exhibits 15 and 16. He also testified that he received State’s Exhibits 12 and 13 being other bullets from the Coroner. He stated that the ballistic tests performed by him proved that State’s Exhibit 14, appellant’s .38 caliber pistol, was the same pistol which fired the bullets removed from the bodies of the victims. He further identified appellant’s pistol as being a “38 caliber Special Miroku revolver bearing serial number 10870 that was given to me by State Investigator Dexter Haney on August 29, 1974.” The pistol and bullets were admitted in evidence over appellant’s objections.

Glen Demastus, Chief of Police of Phil Campbell, testified that on July 27, 1974, the Sheriff turned over to him a child custody warrant to serve on appellant. This child custody warrant was in connection with the divorce proceedings then pending between appellant and his wife. When appellant was served with this warrant, he told the Chief of Police, “I’m going to kill the whole bunch.”

Appellant proposed to show that on two prior occasions appellant’s father-in-law had attempted to kill him or threatened to do so — one time before appellant and his wife were married and the other time was subsequent to their marriage.

The Court asked the witness at the time he served the warrant “was there any conversation at this time concerning somebody shooting at somebody else?” The witness answered, “No sir.”

The Court asked the witness if there was any conversation concerning difficulties between Willard Wilson and the defendant and the witness answered that he didn’t recall any at all.

The sufficiency of the evidence in this case is not presented for review. There was no motion to exclude the State’s evidence on the ground the State failed to make out a prima facie case; there was no motion for a new trial; there was no request for the affirmative charge, and there were no adverse rulings of the trial court on the admission of evidence which contained any merit. Eady v. State, 48 Ala. App. 726, 267 So.2d 516; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Tally v. State, 54 Ala.App. 34, 304 So.2d 275.

Appellant complains that the trial court was in error in not ordering a mental examination of him prior to trial. We have pointed out that appellant did not press for a ruling on his motion in this regard. Review on appeal is limited to those matters on which rulings are invoked at nisi prius. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256; Richardson v. State, 50 Ala.App. 574, 281 So.2d 286.

Appellant contends that the trial court committed reversible error in not allowing him to show prior difficulties between him and his father-in-law. We do not agree. It is settled law that evidence of prior difficulties as part of the chain of events leading up to the killing is admissible when offered by the State but when offered by the defendant, such evidence is admissible only if the defendant was not the aggressor in the difficulty resulting in the killing and if the defendant has offered some evidence tending to show self-defense. Foreman v. State, 50 Ala.App. 236, 278 So.2d 238; Byrd v. State, 257 Ala. 100, 57 So.2d 388; Sanders v. State, 242 Ala. 532, 7 So.2d 483.

There was not the slightest evidence of self-defense in this case. That the appellant was the aggressor cannot be successfully gainsaid. He invaded the home where the victims were eating supper and shot down two defenseless women. This was a double murder, and a cold-blooded one without any mitigating or extenuating circumstances. After the shooting he kidnapped his baby and took flight to another county.

Appellant relies on the recent case of Sashington v. State, 56 Ala.App. 205, 325 So.2d 205. We have carefully read this case and find that it fully supports the conclusion we have reached herein.

Photographs of the victims and the locus in quo are admissible in murder prosecutions when they shed light upon the character and location of the wounds on the victims’ bodies and when the proper predicate has been laid. Hurst v. State, 54 Ala. App. 254, 307 So.2d 62; Snow v. State, 50 Ala.App. 381, 279 So.2d 552; Boulden v. State, 278 Ala. 437, 179 So.2d 20.

The pistol used by appellant to kill the victims and the bullets removed from the bodies were properly admitted into evidence. Alabama Digest Criminal Law, «8=»404(4).

Appellant contends that the trial court erred in not granting a mistrial because of the prejudicial remarks of the District Attorney in his closing argument. The remarks complained about appear on page 102 of the record and are as follows:

“OBJECTIONS BY ROGER BEDFORD TO ARGUMENT OF JOHN JOLLY: “MR. JOLLY: Whatever they might have done, and we haven’t heard anything that they had done anything to him
“MR. BEDFORD: At this time, I object to that statement by the District Attorney about we have not heard something and that is the third incident or the second that I considered to be a direct comment on the failure of the accused to take the stand and we move for a mis-trial.
“THE COURT: Well, I overrule the motion for a mis-trial, but I will sustain the objection, the use of that term in that I think that it is better not to use it. “MR. JOLLY: The people of this County need protection from this kind of an individual. We know what he has done once, what will he do after a sentence of 10 years? What other kind of encouragement could Wayne Cole have in a light sentence like that?
“MR. BEDFORD: We object to that portion of the District Attorney Argument in which he argues we don’t know what Wayne Cole would do after a sentence of ten years.
“THE COURT: Ladies and Gentlemen, disregard that portion of the District Attorney’s Argument.”

The first remark cannot be construed as a direct reference to the failure of appellant to testify. As a matter of fact it makes no reference to appellant at all. In the context of the language used we cannot say what the District Attorney was alluding to. The trial court sustained appellant’s objections anyway and there is nothing for this Court to review.

As to the second remark the trial judge sustained appellant’s objection and charged the jury to disregard that portion of the District Attorney’s argument. No error intervened here.

See Embrey v. State, 283 Ala. 110, 214 So.2d 567; Fletcher v. State, 52 Ala.App. 303, 291 So.2d 757; Hawes v. State, 48 Ala.App. 565, 266 So.2d 652.

Finally appellant urges this Court to hold that the trial court was in error in not accepting his written plea of guilty to murder in the second degree and he relies on Title 15, Section 277, Code of Alabama 1940, as last amended.

District Attorneys are constitutional officers, Amendment 226, Constitution of Alabama 1901, and their duties are prescribed by statute. Title 13, Section 229, Code of Alabama 1940. One of the duties so prescribed is “To draw up all indictments and to prosecute all indictable offenses.”

The grand jury of Franklin County indicted appellant on two counts of murder in the first degree and it thus became the duty of the District Attorney to prosecute appellant on that indictment. He objected to appellant’s plea of guilty to murder in the second degree and this he had a right to do. The Court sustained that objection and when appellant declined to plead further but stood mute the Court entered a plea of not guilty for him. This the Court was under a duty to do. Title 15, Section 276, Code of Alabama 1940.

There had been no plea bargaining and appellant sought to compel the State to accept his plea of guilty to murder in the second degree and thus control the disposition of the cases against him. We have not been cited to a case, nor has our research revealed one, that gives a defendant the power to control the disposition of a criminal case pending against him. We hold that a defendant has no such power. A defendant cannot compel the State to accept a guilty plea to a lesser included offense any more than he can compel the State to consolidate multiple indictments against him and have one trial. Hopkins v. State, 54 Ala.App. 75, 304 So.2d 629.

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.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    In re Wayne COLE v. STATE. Ex parte Wayne Cole.
    SC 1923.
    Supreme Court of Alabama.
    Sept. 10, 1976.
    Roger H. Bedford, Russellville, for petitioner.
    No appearance for the State.
   MADDOX, Justice.

Petition of Wayne Cole for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cole v. State, Ala.Cr.App., 337 So.2d 40.

WRIT DENIED.

HEFLIN, C. «L, and JONES, SHORES and BEATTY, JJ., concur.


text:
    John Albert BRADLEY v. STATE.
    3 Div. 417.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.

      Wayne P. Turner, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment for ten years.

Observing that the appellant was under the age of twenty-one years and that he had not been informed of his right to petition for arraignment under the Youthful Offender Act, appellee moved that the case be remanded for compliance therewith. Code of Alabama, Recomp. 1958, Title 15, §§ 266(l)-266(6). On February 3, 1976, we remanded accordingly, and on March 24, it was officially certified to this court that the trial court had denied defendant’s application for treatment as a youthful offender. The denial was discretionary with the trial court, and we now proceed to a consideration of the appeal on its merits.

At approximately 11:00 P.M. December 14, 1974, a robbery occurred at Lazenby Service Station on the lower Wetumpka Road in Montgomery. The testimony of Johnny Oates, an employee of the service station, was to the effect that an automobile containing three young black men drove up to the station and the driver ordered two dollars worth of gas; the passenger in the front seat got out of the car and raised the hood; appellant, who had been riding in the back seat, went to a telephone booth. The front seat passenger thrust a gun in Oates’ face and said: “Give it here, son of a b... h.” Oates seized the gun and poured gas on the man with the gun. The two men struggled and the gun went off, scorching Oates’ shirt. The pistol was wrested from Oates by the front seat passenger, who also obtained Mr. Oates’ wallet containing one hundred and twenty dollars. Appellant did not take part in the actual struggle, but according to Oates he ran “back and forward to the front through that little alley” and said “Hurry up and let’s go. Hurry up and let’s go.” Both passengers returned to the automobile and went away in it. Mr. Oates obtained a rifle and fired a shot at them as they left.

Officer George Leak, of the Montgomery Police Department, testified that on December 28, 1974, having been called in on the ease, he interviewed defendant in Tuskegee. At that time, he had Leon King with him in custody. He said that he fully advised defendant of all of his constitutional rights, brought him to Montgomery in a police car, and, after arrival at Montgomery, defendant made a written statement. According to the statement, Marcellus Farrow and Leon King came to defendant’s home in Tuskegee on December 14, 1974, and the three of them went to Montgomery. Marcellus attempted to get defendant to rob an all-night supermarket, but they decided against it; they turned into Lazen-by’s; Marcellus ordered gas and told the appellant to go to the telephone booth and pretend to be using it; Marcellus gave Leon , the pistol and told him to act like he was checking the oil; Leon and the attendant started fighting and Marcellus told appellant to go help Leon. After getting the billfold, the three of them got in the car and drove away and afterwards divided the money, which appellant stated amounted to sixteen dollars; they threw the pistol and the billfold in some bushes. Leon and appellant then went to the bus station and returned to Tuskegee.

Appellant took the stand and acknowledged that he was at the scene of the crime, having gone to Montgomery on December 14, 1974, with Marcellus and Leon, but he denied that any robbery was planned or that he willingly took part in any robbery. He said that Leon had told him to go into a grocery store and “see how much he could get; but he thought it was a joke” and he went in and bought a pack of cigarettes. He later told Marcellus he had to make a phone call. They stopped at Lazenby’s, and he went to the phone booth to make a long distance call to Tuskegee. After he had been in the booth a while, he realized that Leon and the attendant were fighting. He ran over to them and said, “Let’s go. Let’s go.” They then got in the car and left. He said that the pistol that was used in the robbery was one that he had found about a month before and had “loaned” to Leon about three days before the robbery. He said that he never had his hands on any of the money, but that Marcellus gave Leon eight dollars and that Leon bought a bus ticket for defendant with three dollars and seventy-five cents of the eight dollars.

Appellant argues that the predicate for the admission of the typed statement signed by defendant and the remarks made by him before signing the statement did not meet the test of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and related cases. Officer Leak was interrogated extensively by counsel for defendant and counsel for the State before such evidence was admitted. A full explanation to defendant of his constitutional right to counsel even at the expense of the State, his right to remain silent is shown in writing and acknowledged by the signature of defendant. The testimony of Officer Leak and the signed statement of defendant expressly refute any promise, threat or pressure of any kind. Appellant seems to rely upon the youth of defendant, seventeen years of age, and some implication to the effect that he thought in making the statement “he was merely making a statement against” Marcellus Farrow. What he thought, however, was not developed or shown by the evidence at the time defendant’s incriminating statements were admitted in evidence. After the testimony for the State had closed and while defendant was testifying on the merits of the ease, his counsel brought out through him as a witness that defendant was “impressed that they were going to use it against Marcel-lus” and that defendant “blamed everything on Marcellus.” Defendant did not contend then that the impression defendant had, affected the question of the admissibility of his statements. The statements were already in evidence, the voluntariness of them having been established by express evidence, and defendant made no effort to have them excluded from the evidence after defendant’s testimony to the effect that he thought his statements were to be used against Marcellus. But even if what defendant had thought had been shown prior to the court’s ruling on the admissibility of the incriminating statement, it would not have been sufficient to overcome express evidence to the contrary, such as acknowledgment in writing by defendant that he had been told “that anything you say can be used against you in court.” The trial court does not have to accept the testimony of defendant as to the voluntariness of a confession if there is substantial testimony by others sufficient to constitute a predicate for the admission in evidence of the confession. McNair v. State, 50 Ala.App. 465, 280 So.2d 171, cert. denied 291 Ala. 789, 280 So.2d 177.

That defendant was only seventeen years of age was a matter to be considered by the court in determining whether his confession was voluntary and also to be considered by the jury in deciding how much weight or credibility should be given his inculpatory statement, but the youth of an accused does not in and of itself require a rejection of a confession otherwise admissible. Elrod v. State, 281 Ala. 331, 202 So.2d 539; Martin v. State, 90 Ala. 602, 8 So. 858; Hoober v. State, 81 Ala. 51, 1 So. 574; Corbin v. State, 19 Ala.App. 439, 98 So. 132, cert. denied 210 Ala. 369, 98 So. 134.

The court refused defendant’s written charge as follows:

“The Court charges the jury that there are lessor included offenses in an indictment for robbery, including the offenses of conspiracy to commit a felony, attempted robbery, receiving stolen property, larceny, assault and battery, and assault.”

The abstractness of the charge justified the court’s refusal of it. In addition, it was incorrect as applied to the facts of this case. According to the undisputed evidence, including the testimony of defendant himself, John Oates was robbed. It is only in cases where there is a question, according to the evidence, whether the crime, if any, is the offense expressly charged on the one hand or some lesser included offense on the other, that the trial court should give a charge relative to such lesser included offense. Taylor v. State, 48 Ala.App. 443, 265 So.2d 886. In this case the only issue of fact was whether defendant criminally participated in a robbery. The charge requested was correctly refused. Wilson v. State, 268 Ala. 86, 105 So.2d 66.

We find no error prejudicial to appellant. The judgment 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 appealed from is

AFFIRMED.

All the Judges concur.


text:
    Ronnie Lee PRUITT v. STATE.
    4 Div. 406.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.

      Douglas M. Bates, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was indicted for burglary in the second degree, substantially in the language of the Code form. Title 15, Section 259(32), recompiled 1958. He was only sixteen years of age; he petitioned the court for treatment under the Youthful Offender Act; his petition was denied by the court. The action of the court in this respect was within its discretion. Code of Alabama, Recomp.1958, T. 15, § 266(1).

At the conclusion of the State’s ease, defendant moved for the exclusion of the State’s evidence. In support of appellant’s insistence that the trial court erred in overruling the motion to exclude the evidence, appellant sets forth a lengthy statement of the facts. We think it only necessary to summarize some of the evidence in order to show that a jury question as to defendant’s guilt was presented by the evidence, and we will condense our recital of the facts accordingly.

According to the testimony of Mrs. Ver-nell Royer, a bookkeeper for Lindsey Pawn Shop, in Dothan, the pawn shop was broken into and entered between 5:00 P.M. Saturday, July 26, and 8:00 A.M. Monday, July 28, 1975. When she unlocked a door which had not been broken into, she found some of the display cases open and watches, rings and pistols missing. She reported the matter to the police.

Officer Robert Jenkins, Dothan Police Department, testified that he and other officers went to a recreation center in Dothan about 2:30 A.M., July 29, in response to a complaint that there were four colored males inside the place with handguns. While there, the officers took a pistol from appellant, which was stuck down in his belt in the front of his trousers. The particular pistol was positively identified by Mrs. Royer as one of the pistols missing from the pawn shop. Appellant was arrested and taken to jail. The next morning, according to the testimony of one of the officers, appellant made a voluntary statement, after a full explanation had been made to him of his rights, in which statement appellant said that he and three others had been involved in burglaries.

There was testimony that on July 30 officers went to the home of appellant and appellant’s brothers, entered the home with the permission of the brother who was in charge of the home at the time, and found several other items that were identified as personal property located in the pawn shop before the week end it was burglarized.

Appellant testified that he did not take part in any burglary. He admitted, however, that the police found a pistol on him that appeared to be the identical gun that had been identified as a gun taken from the pawn shop. He admitted that he attempted to run from the officers when arrested at the recreation center. He testified that he was coerced by threat of violence and was hit at one time by one of the officers, but that he signed the statement incriminating himself. He testified that he did not steal the pistol found in his possession at the recreation center but that he bought it at the Hobby Shop, which is near the pawn shop. He said that the reason he told the officers that he had broken into the pawn shop was because his brothers had already lost their jobs and he was afraid that the police officers would implicate them. He attempted to explain his effort to leave when he was arrested at the recreation center, by stating that he knew he was in trouble about having the gun. He said he bought the pistol about the middle of the week before the week end of the burglary; that he paid $50.00 for it. He said he also bought a watch from the same person for $25.00. The watch was identified as a watch taken from the pawn shop.

The facts stated constitute substantial evidence of defendant’s guilt, and the court was not in error in submitting the question to the jury for its determination.

In further support of the contention that the motion to exclude the evidence should have been granted, appellant argues (1) that the discovery of the pistol in the possession of the appellant occurred during an illegal search of appellant or seizure of the pistol and (2) a predicate for the admission of the confession was not laid. There was no objection to any of the testimony relative to the pistol found on defendant. It was introduced in evidence without any objection by defendant. In the absence of an objection to evidence relative to the pistol, such evidence is to be considered in connection with the question of the sufficiency of the evidence to support a guilty verdict. Prince v. State, 50 Ala.App. 644, 282 So.2d 83. The same is true as to the necessity for an objection to evidence of a confession. Price v. State, 52 Ala.App. 21, 288 So.2d 803.

Even though no objection was made to evidence now claimed to be inadmissible, we do not agree with appellant that either the evidence as to the pistol or evidence as to the confession was subject to objection.

In conducting the search at the recreation center, a public place, at 2:30 in the morning it was necessary that the police officers find out who had created the disturbance by brandishing arms that had been the occasion for the complaint and the officers’ response to the complaint. The danger was obvious. The immediate need was for a determination of who possessed handguns. The Supreme Court has recognized the need for prompt action under suspicious circumstances, including a search for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612.

Furthermore, our review of all of the evidence relative to the confession of defendant convinces us that a sufficient predicate for admission in evidence was established. In most respects, defendant corroborated the testimony of the officers as to a full explanation of his rights, including his right against self-incrimination and his right to counsel. His own testimony as to any abuse of him was uncorroborated. The trial court was justified in concluding that his constitutional rights had been preserved, except as they were voluntarily and understandingly waived by him, and that his confession was voluntary.

We find no error prejudicial to defendant. The judgment appealed from 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.

CATES, P. J., not sitting.


text:
    Henry SMITH v. STATE.
    5 Div. 332.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Marlin M. Mooneyham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found defendant guilty of robbery, fixed his punishment at ten years imprisonment in the penitentiary, and he was sentenced accordingly by the court.

The testimony was brief. The main question presented on appeal is whether there was sufficient testimony to support a conviction. A scintilla of evidence is not enough. Massengale v. State, 36 Ala.App. 195, 54 So.2d 85; White v. State, 37 Ala.App. 424, 69 So.2d 874; Lloyd v. State, 50 Ala.App. 646, 282 So.2d 85.

The evidence shows without dispute that a robbery was committed by one Willie Frank Reese. The evidence is also undisputed that the defendant did not participate in the actual robbery, that is, that he was not present in the store of Mrs. Ramsay Brown, while she was robbed on October 10, 1974, by Reese. Mrs. Brown testified that defendant and Reese had been in the store about five minutes before the robbery, that they had driven up in a white automobile and that they had left in the same automobile; that when the automobile returned, Reese got out of the car, came into the store, and as she was attempting to wait on him, he struck her over the back of the head, “picked up the money box and out the door he went.” She said she picked up a gun, shot through the córner of the window, but by the time she shot “the car was gone. You could have heard gravel going everywhere.” She said that there was “$1200.00 or a little better.” in the money box. She also said that her husband, who was not in the store at the time, shot a gun just after she had done so. She testified that when defendant and Reese were in the store about five minutes before the robbery, defendant bought a pack of cigarettes while Reese looked around.

According to the evidence, Tallapoosa County authorities located the automobile, which belonged to a relative of Reese, at Auburn. They located defendant, who lived on the road between Auburn and Tuskegee. They placed him in custody. He made a statement that he had been with Reese the day before, October 10; they had ridden around on a motorcycle; they were in Tuskegee and had gone to Auburn, where they picked up the automobile and “went back to Tuskegee.” There was no testimony as to what defendant said happened after he and Reese returned to Tuskegee.

There was some testimony corroborating Mrs. Brown’s testimony; the particular automobile had been to Mrs. Brown’s store twice the day she was robbed and there was only a short interval of time between the two trips to the store. No witness, other than Mrs. Brown, identified defendant as being in or around the store or as being in the automobile while in the community where the robbery occurred.

Appellee contends that defendant’s presence at the store about five minutes before the robbery occurred and evidence to the effect that he then came to the store with Reese and left the store with Reese, justified a verdict of guilty, when considered with all the other circumstances shown by the evidence.

In support of appellee’s contention, Hunter v. State, 55 Ala.App. 475, 316 So.2d 722 and Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81, are relied upon. In Hunter, it is stated:

“We think there was ample evidence from which the jury could infer that appellant-defendant was the driver of the ‘get-away’ car, overtaken by the police, and that he was an accomplice, or accessory in the perpetration of the robbery. T. 14, § 14, Code of 1940.”

A closer connection between defendant and the robbery was shown in Hunter than in this case. In Hunter, the automobile in which Hunter and the actual robber left the scene of the robbery was pursued by officers and after being stopped by the officers, Hunter and the robber were in the front seat and a large amount of money was found under the floor covering. In Gil-breath, defendant and the actual robber were seen in an automobile parked in front of the store just before the robber entered the store and committed the crime. Immediately thereafter, the automobile, the robber and the defendant were missing from the scene.

When defendant was apprehended the day after the robbery, he had on a shirt that was identified as the same or similar shirt he was wearing the afternoon of the robbery. This, of course, corroborates the testimony of Mrs. Brown that defendant was in the store with the robber about five minutes before the robbery occurred.

As we see it, a close connection between defendant and the robber on the afternoon of the robbery is established by the evidence. We look for, and do not find, convincing evidence of a connection between defendant and the robbery that is not reasonably reconcilable with innocence.

During the course of argument of the prosecuting attorney, the following occurred:

“MR. YOUNG: ... We have never said that, or pretended to say, that we were gonna prove that this man here is the one that bludgeoned Mrs. Brown, but he’s just as guilty as if he had. Oh, he says we have never put two people in the car. Mrs. Brown, I believe, in her testimony said there were two the first time they came there, that one cased her storehouse as sometimes criminals do m such a case by looking it over, and one occupies the owner’s attention while the other is doing it, and that they left, and in just a very short time here they come zooming back. Oh, my friend here says there’s no proof that he didn’t come back by himself, the reason he came back by himself — or he got somebody else up the road to do the driving and he dropped this man off. But he forgot, and he kind of stuttered and stammered when he got to Gerald Downing, but he would like to have forgotten, oh, how he would loved to have forgotten and have you forget that Gerald Downing put two males in that automobile when they came by there and they turned and went to Montgomery. You heard the testimony. Now, remember all of this took place in a matter of fifteen minutes from the time Mrs. Brown says they first came in her store until the time that Gerald Downing saw them head toward Montgomery. And then there was Officer Berry who followed the car and got the tag number, and one little statement we got in evidence by investigator Abbett that he admittedly was riding in this automobile with the tag number and the picture of the tag number and all that we have here, he admittedly was riding in that car. Don’t you know if there had been a separation of partnership, as my friend suggests, that they would have had that testimony by persons who knew of the switch of partnership—
“MR. MOONEYHAM: Your Honor, I would object. I think he’s commenting now on the failure of the defendant to testify in which he said if there had been anyone who knew anything about it, someone would have testified. I think it’s a comment on the failure of the defendant to testify, which he has no right to—
“MR. YOUNG: I respectfully submit that is not argument of that.
“THE COURT: Overruled.”

It seems to us that in the above extract from the argument of counsel for the prosecution, he was referring to argument of defense counsel calling attention to what we think of as a gap in the testimony connecting defendant with the robbery. Counsel for the prosecution realized the importance and significance of such argument, if correct, and in response stated that Gerald Downing had “put two males in that automobile when they came by there and they turned and went to Montgomery.” We do not find that Gerald Downing testified that there were two males in the automobile when the automobile turned and went to Montgomery. He testified that he had been asked if he had “noticed a white car with two black males in it.” He said that he had, that he had seen the automobile on more than one occasion that day. His testimony continued as follows:

“Q Tell the Court and jury at what intervals in relation to Mrs. Brown’s coming to your store it was that you saw this car.
“A Well, about three minutes — ten minutes after 3:00 I saw this white car go east up to Mrs. Brown’s store, towards Mrs. Brown’s store.
“Q That’s on 50?
“A On Highway 50; and then about 3:25 this same car came back down the Highway 50 and headed south on 49.
“Q That is toward Reeltown?
“A Right, and then about five minutes later Mrs. Hamby drove up with Mrs. Brown, and Mrs. Brown asked me had I seen this particular car, and she was in the ear with her head all bloodied up and blood running down all over her, and told me what happened and wanted me to call the sheriff’s office.
“Q Did you make a call to the sheriff’s office?
“A I did.
“Q And did you notice anything particular about this white car when it came by your store? The two times it came by your store?
“A Well, the only think I noticed about the car, I noticed the tag number on the car, that it had a Montgomery County tag, and it was a nice looking car, it was white and it was really shiny, and I just paid attention to the car.”

Sincerity of counsel for the State does not assuage the injury to defendant in his statement:

“Now, remember all of this took place in a matter of fifteen minutes from the time Mrs. Brown says they first came in her store until the time that Gerald Downing saw them head toward Montgomery.”

Mr. Downing did not testify he saw “them,” that is, defendant and the other man in the automobile head toward Montgomery. There is no definite evidence in this case that there was anyone in the automobile with Reese at the time he drove up to the store to rob it, that anyone was in the automobile while he was robbing the store, or that there was anyone in the automobile with him as he left the store after robbing it.

We can see that under some circumstances such a gap in the evidence might not be fatal, but it appears that it became such an important matter that it was strongly argued to the jury by both the State and defendant’s counsel, and in that argument the State had to rely upon purported evidence that was not actually in the case.

We agree with counsel for the State that his argument to the effect that defendant should have supplied the missing link or bridged the gap in the testimony, was not necessarily a comment upon the failure of defendant himself to testify, but we consider it of great significance in our effort to determine whether there was sufficient evidence to warrant a conviction. In this connection, we should also note that the State was in a much better position to show that two persons were in the automobile immediately before and immediately after the robbery, if such was true, then defendant would have been to have shown that there were not two people in the automobile at such time,' if only one person was in the automobile. If only one person was in the automobile while it was going to the store immediately before the robbery and returning from it immediately after the robbery, defendant would not necessarily have known it. If there were two in the automobile immediately before and immediately after the robbery, the State should have shown it, and defendant was not subject to criticism for his failure to show it by witnesses who were equally as available to the State as to defendant. This ground of objection to argument of counsel for the State was not interposed, but the argument of the State, the objection of defendant and the response of State’s counsel all emphasize the weakness of the State's position that there was ample evidence to support the conviction and underscores our view that there was not. The evidence is sufficient to give rise to a strong suspicion of defendant’s guilt, but that is not enough. A conviction cannot be sustained on the basis of surmise, speculation and suspicion. Parker v. State, 280 Ala. 685, 198 So.2d 261; Wallace v. State, 52 Ala.App. 331, 292 So.2d 140; McCurdy v. State, 42 Ala.App. 305, 162 So.2d 892; Lloyd v. State, 50 Ala.App. 646, 282 So.2d 85; Black v. State, 52 Ala.App. 528, 294 So.2d 777.

It is obvious that the State endeavored to raise this case before the plane of suspicion, and thought it had done so, by testimony to the effect that defendant returned with the robber to the store on his second trip and that the robbery took place while defendant was on hand at the scene, outside the store, and left with the robber and the loot in the robber’s automobile. There was no such evidence, however. Whether any of this occurred is left to conjecture only. The burden was upon the State to prove, not upon the defendant to disprove, this necessary link in the testimony. In the absence of evidence on the issue, a vital link in the testimony is missing, which can be supplied by another trial only.

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

REVERSED AND REMANDED.

All the Judges concur.


text:
    Unree POLLNITZ, alias, v. STATE.
    6 Div. 888.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    No brief for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for the State.
   HARRIS, Judge.

Appellant was convicted of grand larceny and the Court sentenced him to three years in the penitentiary. He was represented at arraignment and trial by retained counsel. Appellant is not indigent and he is not represented by counsel on this appeal.

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

The stolen property consisted of four suits of clothes from Pizitz Department Store in Birmingham.

Mr. Rex Bennett testified that shortly before noon on April 9, 1973, he saw appellant remove four suits from the rack in the men’s department and carry them into the dressing room. Mr. Bennett was employed in the fine jewelry department at Pizitz, Eastwood Mall, in Birmingham, Alabama, at the time he saw appellant take the four suits from the rack and enter the dressing room which had a curtain over the entrance. Mr. Bennett immediately walked in the direction of the dressing room and heard noises like the crackling of a shopping bag. In a matter of minutes appellant emerged from the dressing room carrying a Pizitz shopping bag and passed within three feet of Mr. Bennett. Appellant proceeded through the boys’ department and left the store through the north entrance which led to the parking lot of the mall. Mr. Bennett stopped appellant and looked into the bag and saw four suits with Pizitz labels and price tags. At this point appellant was joined by his companion and Mr. Bennett told them not to leave and he entered the door of the department store and called for help.

Mr. Bennett had seen both of these men earlier in the men’s department. One was a tall black man and appellant was much shorter. When Mr. Bennett returned to the parking lot after trying to get help he saw appellant and his companion getting into a 1964 Ford car and leave the parking lot. Just before they entered the car, appellant turned over the car tag so that the tag numbers could not be seen.

Bennett went back in the store and called the police department and two uniformed officers arrived in less than 20 minutes and Bennett gave them a detailed description of the two men. Later that night two detectives brought 35 to 50 black and white photographs to the store to see if Mr. Bennett recognized either of the two men and he immediately picked out appellant as the short man who stole the four suits. About a week later Mr. Bennett attended a lineup to see if he recognized the tall black man and he did not. However, appellant was in the lineup and Mr. Bennett picked him out as the man who stole the suits. Mr. Bennett also made a positive in-court identification of appellant as the thief.

The manager of the men’s department testified that the four suits were valued at $110.00 each. The jury returned a verdict finding appellant guilty as charged in the ■indictment and fixed the value of the stolen goods at $440.00.

When the State rested, appellant moved to exclude the State’s evidence without specifying any particular grounds. The motion was overruled and properly so under the case of Young v. State, 283 Ala. 676, 220 So.2d 843, and the cases cited therein.

This was a straight jury case on the question of appellant’s guilt. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731.

There was no motion for a new trial; there was no request for the affirmative charge; no exceptions were reserved to the oral charge to the jury, and there were no adverse rulings on the admission of evidence which contained any merit.

The evidence produced by the State was more than sufficient to sustain the judgment of conviction and the case is due to be affirmed.

AFFIRMED.

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


text:
    Levon FLETCHER v. STATE.
    8 Div. 730.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.

      Robert M. Shipman, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst.. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Súpernumerary Circuit Judge.

This appeal is from a conviction of burglary in the second degree and a sentence of eight years imprisonment.

Sparkman High School teacher Walter Dulaney and two of his students testified that as they drove by Mr. Dulaney’s residence in an automobile they noticed another automobile in or close to the driveway; Mr. Dulaney went to the back door. He testified that the back door had been broken into. The students stayed toward the front of the house and saw a young man coming around the side of the house, whom they identified as defendant. He was also seen by Mr. Dulaney, who also identified him as defendant. The three witnesses testified that defendant hastily took off in the parked automobile. There was little, if any, evidence that anything had been stolen from the house, though Mr. Dulaney said that “the chest of drawers had been pulled out and had been rambled through” and things had been “piled at the door,” including two vacuum cleaners and two or three radios. He said a tire tool, that did not belong to the house, was found in the house near the chest of drawers.

Defendant took the stand and denied the charge against him and said that he was not the person described by the named witnesses for the State.

The only point made by appellant on appeal is as to the identity of defendant and more specifically as to the action of the court in overruling defendant’s objection to the in-court identification of defendant by each of the three witnesses mentioned. Appellant urges that the in-court identification should not have been permitted, that it was tainted by a suggestive lineup in which defendant was identified by each of the witnesses.

The lineup was conducted the day after the alleged burglary. In the lineup were six young men of the same color or race as defendant. Appellant bases his charge of suggestiveness in the lineup procedure primarily upon two grounds: (1) the viewers of the lineup were informed by the officers that the guilty party was in the lineup and (2) a toboggan, like one the witnesses said defendant had in his hand as he left the house to get into his automobile the day of the burglary, was in defendant’s hand, or close to defendant, at the time of the lineup.

In contending that the in-court identification of defendant was rendered inadmissible in evidence by reason of the asserted defects in the lineup procedure, appellant cites United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, as authority for his assertion, “that in any pre-trial lineup or identification procedure, the Defendant must be afforded counsel to protect his rights at such a proceeding.” Neither Wade nor Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, decided the same day as Wade, went as far as urged by appellant. In the case before us, there was no indictment at the time of the lineup and there had been no institution of any prosecution against defendant. To such a situation, the necessity for the presence of counsel for defendant or a waiver of the right to counsel at such time does not apply. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. Even so, an in-court identification is inadmissible if it is so tainted by a previous, unnecessarily suggestive lineup identification that the origin or source of the in-court identification was not independent of the lineup. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Hannon v. State, 48 Ala.App. 613, 266 So.2d 825; Smith v. State, 49 Ala.App. 147, 269 So.2d 164; Houston v. State, 49 Ala.App. 403, 272 So.2d 610; McCay v. State, 51 Ala.App. 307, 285 So.2d 117; Lindsey v. State, Ala.Cr.App., 331 So.2d 797.

Quite understandably, there were some discrepancies in the testimony of witnesses as to the lineup procedure. They are insubstantial when taken as a whole and considered with the frequent impossibility of witnesses to see, to hear and to remember alike all of the details of a transaction, especially when such details are not such as are calculated to impress them deeply. One witness said the police informed him before the lineup that they had a suspect; another said that he was informed by one of the witnesses that the police had told him they had the person who broke into the house, but that the police did not say the man was in the lineup; the third witness said that Mr. Dulaney told him at school the morning of the lineup “that they had caught him.” These statements, whether considered together or separately, whether reconcilable or not, would have had little, if any, tendency toward a misidentification of defendant, unless it be said that a lineup per se tends to lead to misidentification. Reason dictates to any witness attending a lineup that someone suspects someone in the lineup. The statements referred to do not show that the witnesses were any better informed, or any more likely influenced to misidentify defendant, than if nothing had been told any of them other than that they were to view a lineup. A lineup is not a test run, a fire drill or an academic proceeding. The victim of a crime has the right to assume when asked to come to a lineup that he is not being toyed with, that there is more than an infinitesimal chance of a member of the lineup being the criminal, which would be true of a lineup in which no one who arranged it suspected or had any reason to suspect that the criminal had been apprehended. It is perfectly natural for persons called to view a lineup to understand that a suspect is in the lineup. That they are told that he is, by someone connected with the lineup, although generally inadvisable, does not contaminate the proceeding. Furthermore, in a dialogue relative to a lineup, it is readily understandable that the passive one of the two would interpret the language of the other to the effect that a suspect, or that even the guilty person, would be in the lineup, even though such other person had not so expressed himself.

Another criticism by appellant of the lineup is directed to the clothing worn by the participants. It is stated: “Five of the men in the lineup had Tee shirts and shoes on. One man in the lineup had a jacket and sneakers on.” We think earnest and sincere counsel for appellant over simplifies the clothing. Notwithstanding an additional usage of the term “T-shirt” that has evolved, we understand that, historically and typically at least, a man’s T-shirt is a shirt without a collar and with short sleeves, it being usually distinguishable from most undershirts in that they are often sleeveless. Unfortunately, a color photograph in the record, State’s Exhibit No. 2, taken of the lineup cast, was not readily available to appellant’s counsel at that time of the writing of his brief; he stated therein that he “cannot find it. It is assumed that the court has the picture in their possession.” We have. Only one person in the lineup, not the defendant, had on a typical T shirt, one resembling a “T.” Each of the others, including defendant, had on a shirt or jacket with an attached collar, and on all others the shirts were long-sleeved, except one with sleeves reaching close to the elbows. There is quite a variety of colors, lurid enough to make Joseph’s coat of many colors look drab. Appellant’s point as to the shirts is not well taken.

We agree with appellant that apparently defendant was wearing sneakers, while the other five were wearing shoes of leather or the like, This, however, is no more distinctive as to defendant than is the manner of dress as to each of the others in the lineup. There is no more observable singularity in the shoes of defendant than in the garments of any of the other five. One witness said, defendant wore tennis shoes (sneakers) the day of the alleged burglary; another said he did not recall what kind of shoes defendant wore; the third witness was not asked a question about defendant’s shoes as seen at Mr. Dulaney’s house. We have little reason to believe that any of the witnesses in viewing the lineup would have been led to an identification of defendant by reason of the shoes.

The hardest pressed point made by appellant as to any suggestiveness of the lineup is with reference to a toboggan, which the three witnesses said defendant had in his hand as he left the house of Mr. Dulaney and went to his automobile. They testified that defendant ordered them to get out of his way as he left the premises. In the photograph of the characters in the lineup, it appears that defendant is holding in his left hand an item that we are led to believe is a toboggan or some kind of headdress. In defendant’s testimony he said that it was in his hand at the time he was viewed by the witnesses. This is emphatically denied by two of the officers at the lineup. It seems reasonably certain from the testimony as a whole that a toboggan was at the scene of the lineup, but no one other than defendant testified that it was in his hand at the time he was viewed by the witnesses.

It is clear from the record as a whole, and appellant shows nothing definite to the contrary, that whatever of a possibly suggestive nature there was about the lineup, it was not designed or arranged by any of the officers conducting it. On the whole, it seems that the highest standards of fairness were observed. The positive and undisputed testimony was that no one other than each individual in the lineup decided what clothing he would wear. They were “exactly as they were dressed.” The other five persons were prisoners. No preparation was made as to how any one of them would be attired and it was “just a coincidence that it came out that way.” The lineup, in our opinion, was not unnecessarily or illegally suggestive.

In addition, the testimony of the witnesses as to the identity of defendant was extraordinarily strong and convincing, without regard to what occurred at the lineup. Each one had an adequate opportunity to obtain an accurate mental picture of the man observed at Mr. Dulaney’s house. The time between then and the lineup was too short to have dimmed the image. None would have had the possibility of anything to gain by an incorrect identification. The factors to be considered in evaluating the likelihood of misidentification as set forth in Neil v. Biggers, supra, as a guide to determine whether there is “a very substantial likelihood of irreparable misidentification” preponderate heavily in favor of the trustworthiness of the testimony as to identity.

Although we have discussed the only questions raised by appellant, we have undertaken to search the record for any and all error prejudicial to defendant and have found none. The judgment below 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.

CATES, P. J., not sitting.

      . Webster’s New International Dictionary (3rd edition) supports appellant’s counsel to the ef-feet that a T-shirt embraces shirts with long sleeves and collars.

      . Simmons v. United States, 390 U.S. 377 at 384, 88 S.Ct. 967 at 971, 19 L.Ed.2d 1247.


author: TYSON, Judge.

text:
    Damon Shelton NAPIER v. STATE.
    1 Div. 701.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant, Damon Shelton Napier, and Pamela De-Vine, an employee of Weaver and Morris Construction Company, Inc., with embezzling $15,000.00 from said company by virtue of Miss DeVine’s employment with said corporation.

The jury found the appellant guilty, as charged, and the trial court entered judgment, setting sentence at eight years’ imprisonment.

Hosea Weaver testified that he was the owner of Weaver and Morris Construction Company with offices on Howells Ferry Road in Mobile, Alabama. He stated that he had formerly employed a young lady named Pam DeVine as his bookkeeper during March, 1975. He stated that he had met the appellant, Damon Napier. He stated that Miss DeVine began her duties as a secretary and had worked her way to being bookkeeper. She was authorized to sign checks for the company, but that she was to have him examine these before sending them out.

Mr. Weaver further testified that his company maintained its account with Merchants National Bank of Mobile. He then examined five checks, the first one being State’s Exhibit Number 1, payable to Sharon Ann Bryars in the amount of $12,000.00, for Lot 26, Section 47, 2W, bearing the signature of Pam M. DeVine. He stated that he had not authorized this check, and that he did not know anyone by the name of Sharon Ann Bryars.

The second check was made payable to Barnett Secretarial Services, in the amount of $1685.00, again drawn on the company account, and signed by Pam M. DeVine. Mr. Weaver testified that such check was not authorized, nor did his company have any account with Barnett Secretarial Services.

State’s Exhibit Number 3 was a check made payable to Pam M. DeVine, in the amount of $1500.00, which was not authorized.

State’s Exhibit Number 4 was a check made payable to the appellant, Damon S. Napier, for $11,000.00, signed by Pam M. DeVine. This check also was not authorized by Mr. Weaver and his company had never done any business with Mr. Napier, nor had Mr. Napier performed any services for the company, and that his company was not indebted to Mr. Napier. Exhibit 5 was a check for $4000.00, signed by Pam M. DeVine, payable to Damon S. Napier, and marked for “cows.” Mr. Weaver stated that this check was also not authorized by him.

He further testified that he had not purchased anything from Mr. Napier, nor had he ever purchased any cows from him. Mr. Weaver stated that after he discovered these checks, he called his accountant, Mr. Marshall Burden, that he had him go over his company’s records, and also had him go to the Merchants National Bank to check the account with the bank officials. After these were admitted, a stipulation was then placed of record which showed that the appellant, on June 30, 1975, presented Weaver and Morris Construction Company’s check No. 7219 to the Merchants National Bank and received a cashier’s check, No. 426377, in the amount of $11,000.00 from the bank. The stipulation also showed that on July 1, 1975, the appellant presented Weaver and Morris Construction Company’s check, No. 7222, to the Merchants National Bank and received a cashier’s check, No. 426333, in the amount of $4000.00. The stipulation further shows that on June 30, 1975, the appellant, Damon Napier, went to Bill Steber Chevrolet Company and bought two automobiles. The first, a 1971 Chevrolet Corvette, and the second a 1966 Ford Galaxie, for a total of $4466.00, and received from Bill Steber Chevrolet Company in return a check for $6534.00. The stipulation also showed that on July 1, 1975, Damon Napier cashed the $4000.00 cashier’s check for cash, and also on July 1, 1975, he deposited the check which he received from Bill Steber Chevrolet Company for $4000.00 and took the remaining $2534.00 as cash. The stipulation further shows that the appellant, Damon Napier then subsequently wrote a cashier’s check on his account for the $4000.00 remaining. This stipulation was placed in evidence through the district attorney and the appellant’s counsel.

Mr. Marshall Burden testified that he was a practicing CPA in Mobile, Alabama and had handled the account of Weaver and Morris Construction Company for the past fourteen years. He testified that Mr. Weaver contacted him and asked him to go over the company’s books, that he telephoned Merchants National Bank and went down to examine the company’s account. In examining the check for $12000.00 to Sharon Ann Bryars, he determined that she was not anyone that the company had ever done business with and he so notified the bank, and this check did not clear the bank. He further testified that the construction company actually had over $100,000,00 on deposit so that it was not unusual for large checks to be written on the company’s account. He further stated that in his examination of the company's records, the company had not done business with a Barnett Secretarial Services, nor with the appellant, Damon Napier. He stated that Miss Pam M. DeVine was authorized as bookkeeper to sign company checks.

On cross-examination, Mr. Burden stated that insofar as her authority was concerned, she had authority to sign checks for large amounts, but she was to obtain the permission of Mr. Weaver before doing so. He further testified that in examining the company’s check book, he noticed the stubs were marked on the books payable to various companies, such as Leary and Owens Equipment Company, and others that Weaver and Morris Construction Company regularly did business with. He stated that the check to Barnett Secretarial Services for $1685.00 had cleared the bank, along with the $4000.00 and $11000.00 checks made payable to Damon Napier, the appellant.

Mr. Burden further testified that he was familiar with the company’s books and records and that at no time had the construction company ever done business with Barnett Secretarial Services, Sharon Ann Bryars or Damon Napier. He testified that the total sum taken from Weaver and Morris Construction Company through the checks in question amounted to $22,531.23, and that of this, $15,000.00 was in checks made payable directly to the appellant, and other checks had been endorsed by Miss Pam M. DeVine.

Pamela M. DeVine testified that she had formerly been employed, first as a secretary, and then as bookkeeper for Weaver and Morris Construction Company in Mobile, Alabama. She testified that during May and June, 1975, she was bookkeeper and wrote out checks in behalf of the company. She stated that she left the employment of this company in July, 1975. She testified that Mr. Weaver had approached her concerning the writing of the checks, which she admitted she had not obtained his approval for. She stated that she had written out the check to Sharon Ann Bryars for $12,000.00; that she did not obtain anyone’s authority to write this check, but that this check did not clear the bank. She further testified that she did write out the check to Barnett Secretarial Services for $1685.00 and had put in the left hand corner the notation, “Gill Trailer Inventory.” She stated that this check was not authorized, but that it had been cashed, and that she had given it to the appellant, Damon Napier, whom she identified in court. She further identified a check for $1500.00 which she made out to herself and deposited to her account, then gave the proceeds to the appellant, Damon.Napier. She then identified a check for $11,000.00 which she had made payable to Damon Napier and which was endorsed by him. She testified that this check also was not authorized. Miss DeVine then identified a $4000.00 check, also payable to Damon Napier, and endorsed by him, which had not been authorized by the company. She further testified that she and Mr. Napier had been good friends, and that she had once gone on a trip to Arizona with him. She further testified that after Mr. Weaver got in touch with her about the checks, Mr. Napier told her he would try to get up the money to pay back the amounts to Weaver and Morris Construction Company. She also testified that she was taking heroin at the time she wrote out these checks [R. 72].

On cross-examination, Miss DeVine admitted that she was also charged with embezzlement in this case, but that there had been no promises made to her by anyone in return for her testimony in this case.

The appellant’s motion to exclude the State’s evidence was overruled.

The appellant called as his only witness Riley Gatlin, who testified he was employed by Bill Steber Chevrolet Company of Mobile. He testified that the appellant had brought him a cashier’s check from Merchants National Bank, and that on June 30, 1975, he had purchased a 1971 Corvette and a 1966 Ford, that he had turned over the paper work to the finance manager, and that his company had given Mr. Napier a check for the difference.

I

Embezzlement is a statutory criminal offense. Knight v. State, 152 Ala. 56, 44 So. 585; Adams v. State, 43 Ala.App. 281, 189 So.2d 354; Hill v. State, 48 Ala.App. 240, 263 So.2d 696.

The prosecution in the instant case was pursuant to the provisions of Title 14, Section 126, Code of Alabama 1940.

Mr. Justice McCall in Benefield v. State, 286 Ala. 722, 246 So.2d 483, observed the following:

“To support a conviction for embezzlement, the burden is on the State to prove that, after acquiring possession of money, property or effects as the agent of the owner, the accused fraudulently converted it to his own use, or to the use of another. Reeves v. State, 95 Ala. 31, 11 So. 158; Eggleston v. State, 129 Ala. 80, 83, 30 So. 582; Knight v. State, 152 Ala. 56, 44 So. 585; Rogers v. State, 259 Ala. 124, 65 So.2d 531; Boyd v. State, 41 Ala.App. 507, 511, 138 So.2d 60; Hart v. State, 41 Ala.App. 221, 127 So.2d 390. In order to justify the submission of the case to the jury, it is necessary that there should be proof of at least some act from which the jury can infer that the offense was committed. Rogers v. State, 259 Ala. 124, 65 So.2d 531; Knight v. State, 152 Ala. 56, 60, 44 So. 585; Henderson v. State, 129 Ala. 104, 29 So. 799; Hurst v. state, 21 Ala.App. 361, 108 So. 398.”

It is clear from the evidence presented that Miss DeVine had no authority to issue ■the five checks introduced in evidence, two of which were made payable to the appellant, Damon Napier, and the proceeds of two others turned over to the appellant after clearing the bank.

We are of the opinion that the State here presented a prima facie case, and the appellant’s motion to exclude was therefore properly overruled. England v. State, 23 Ala.App. 361, 125 So. 687; Garner v. State, 26 Ala.App. 246, 158 So. 543, cert. denied, 339 Ala. 600, 158 So. 546; Volume 29A C.J.S. Embezzlement Sec. 26b.

II

During the examination of Miss De-Vine, the following occurred [R. 72-74]:

“Q. All right. Now, Miss DeVine, at the time this all transpired, back in June, were you taking any narcotics at that time?
“A. Yes.
“Q. What drug were you taking?
“A. Heroin.
“Q. I’m sorry, I couldn’t hear you.
“A. Heroin.
“Q. Heroin? From whom were you getting the heroin?
“A. A number of people.
“Q. Was Damon Napier one of the ones? “A. Yes.
“MR. STEPHENS: Judge, I’m going to object. I’m going to object to this, and I move to exclude it, it’s highly prejudicial, it has no probative value in this case, and we move for a mistrial.
“MR. HUGHES: Your Honor, may I be heard? Briefly, it goes to show the relationship between these two people, and I submit to the Court it goes to show that he was the dominant force over her.
“MR. STEPHENS: Judge, Mr. Napier is on trial for embezzlement, for embezzling two checks in the amount of $11,000.00 and $4,000.00, and he’s not on trial for any type of narcotics. This can have nothing to do but prejudice the jury when you throw in these narcotics. It’s highly inflammatory, Judge, and it has no probative value on this case whatsoever.
“THE COURT: I’m going to exclude that answer at this time. Gentlemen, here is the situation we are in, and I want you to listen closely. It is important for you to consider the relationship between the parties. You know, as to why people did things. But it’s far more important that you consider only the charge against this man, which is embezzlement. Now, if the witness’s statement that she received or acquired in some manner heroin from the Defendant, Mr. Napier, is going to prejudice you against him in any way, and have any influence on your determination of his guilt or innocence of the charge against him, which is embezzlement, then I am going to declare a mistrial at this point. Because you see, he is not charged with giving her heroin. He’s not charged with being in possession of heroin. He is charged with embezzlement, and that’s the only thing you can find him guilty of. You have to give me your assurance that the reference that has now been made, you know, it is something that was not brought out improperly necessarily, more prematurely than anything else, if improperly, but I have to be absolutely certain that the reference to heroin will not influence you in determining the issues that are going to be presented to you ultimately in this case. Starting with the first Juror, do I have your assurance?
“(Whereupon, the Jury was polled by the Court, and all stated that the reference to heroin would have no effect on their verdict.)
“THE COURT: Very well. Go ahead.
“MR. STEPHENS: Judge, at this time, I would officially move for a mistrial.
“THE COURT: I will deny your motion.
“MR. STEPHENS: We except.”

The rule covering this has been stated by our Supreme Court in Shadle v. State, 280 Ala. 379, 194 So.2d 538:

“. . . [I]t is well recognized that the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have upon the jury’s ability to decide the defendant’s fate fairly and justly. And we will not interfere with the trial judge unless there had been a clear abuse of discretion. . . .”

The able trial judge was very careful, as may be seen, in excluding the statement pertaining to the use of narcotics from the jury, but in addition polled the jury and asked them to disregard such testimony entirely. Each juror then indicated that he would obey these instructions. In light of the prompt action of the trial judge, we are of the opinion that no error is here shown. Adair v. State, 51 Ala.App. 651, 288 So.2d 187, and authorities therein cited; Retowsky v. State, Ala.Cr.App., 333 So.2d 193.

The trial judge, in the instant case, was very careful throughout the trial of this cause to be sure that no evidence was admitted or presented against the appellant except with reference to the embezzlement charge. It would unduly burden this opinion to set forth the several conferences which took place between the attorneys and the trial judge with respect to certain evidence which was to be tendered. We commend the trial judge on the manner in which he handled this cause to see to it that prejudicial matter did not go before the jury.

We have carefully examined the record, as required by law, and find same to be free from error. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.

      . The State’s entire case is based upon the premise of a conspiracy involving the appellant, Napier, and Miss DeVine. See Stokley v. State, 254 Ala. 534, 49 So.2d 284.