text:
    U. S. H. PROPERTIES CORPORATION, Appellant, v. INTERCOASTAL INVESTMENTS INCORPORATED, Appellee.
    No. 75-1785.
    District Court of Appeal of Florida, Second District.
    May 7, 1976.

      Harold Bowman, Clearwater, for appellant.
    Reese A. Waters, Jr., of Towers, Cowart, Bolling & Waters, Jacksonville, for appel-lee.
   PER CURIAM.

The parties will be referred to as in the trial court where the appellant was plaintiff and appellee was defendant.

This interlocutory appeal was taken from an order transferring venue on defendant’s motion from the Circuit Court of Pinellas County to the Circuit Court of Duval County. We reverse.

The plaintiff, U. S. H. Properties Corporation, with its main office in Pinellas County, entered into an option agreement with defendant, Intercoastal Investments Incorporated, its principal office being in Duval County, giving the plaintiff the exclusive right to purchase certain real estate, located in Duval County and owned by the defendant. The plaintiff’s obligation to purchase the property or forfeit the option fees was subject to certain conditions, one of them being a change in the existing applicable zoning ordinance in order that the premises would conform to the plaintiff’s requirements. Plaintiff/buyer was obligated to cooperate with defendant/seller by providing information necessary to the seller with respect to rezoning proceedings, and was to procure at its expense a regional impact study. In the event that the subject property was not rezoned within the time limits set out in the contract, plaintiff/buyer could elect to terminate the agreement and recover the option fees.

On August 6, 1975, the plaintiff filed suit in the Circuit Court of Pinellas County for breach of contract, alleging therein that the defendant had been notified of the plaintiff’s election to terminate due to the failure of the defendant to obtain rezoning of the property, and that the defendant had refused, after demand, to return $30,000 in option fees to the plaintiff as required by their agreement.

Defendant moved to dismiss the complaint for failure to allege sufficient facts to show proper venue pursuant to Fla.Stat. § 47.051, which provides that an action against a domestic corporation shall be brought only in the county where such corporation keeps its business office, where the cause of action accrued, or where the property in litigation is located. The trial court based its order transferring venue to Duval County on the fact that both the property and the defendant’s business office were located there, and on its finding that the plaintiff’s cause of action accrued upon the alleged breach of the defendant’s obligation to obtain rezoning of the property. It would necessarily follow, based on such reasoning, that venue could be laid properly only in Duval County, the place that the alleged breach occurred as determined by the trial court.

The plaintiff has raised four points on this appeal. Points II and III may be considered as one question, that being whether the trial court was correct in finding that the gravamen of the complaint was the defendant’s failure to obtain rezoning of the subject property. The answer to this question is dispositive of Point IV, whether the trial court erred in transferring venue, and, therefore, we need not discuss defendant’s Point I.

We do not agree with the trial court’s determination of what constituted the defendant’s alleged dereliction in this controversy. We believe that a reading of the language of the agreement aforesaid shows the parties expressly and unequivocally intended that the rezoning of the property was only a condition precedent, one of four such conditions, the compliance with which would obligate the plaintiff to either close the contemplated purchase or forfeit the option fees as liquidated damages. The plaintiff’s rights to terminate and to the return of the option fees, should any of the four conditions remain unsatisfied, were clearly stated in the contract. There is nothing in the instrument to suggest that the defendant was absolutely bound to see that these conditions were met. Moreover, it is clear that the parties contemplated the possibility that the conditions might not be susceptible of fulfillment. In that event, the contract would cease to exist at the plaintiff’s election. Since plaintiff elected to terminate, the gist of its grievance, we submit, was the failure of the defendant to return the option fees in accordance with the termination provision of the agreement.

Having concluded that the gravamen of the complaint was the alleged failure of the defendant to repay monies owed to the plaintiff, we turn now to the question of whether venue was properly laid in Pinellas County. It is the established law of this jurisdiction that where a contract involves the payment of money and no place of payment has been expressly agreed upon, payment is to be made where the payee resides or maintains its business office. Our sister court in reviewing a similar factual situation as presented here, in the case of M. A. Kite Co. v. A. C. Sam-ford, Inc., Fla.App.1st, 1961, 130 So.2d 99, held: “In such cases the cause of action accrues where the default occurred, though it be in the county where the plaintiff resides, and the action may be maintained in such county for the defendant’s breach.” See also Croker v. Powell, 1934, 115 Fla.733, 156 So. 146 and B & F of Clearwater, Inc. v. Wesley Construction Co., Fla.App.2d, 1970, 237 So.2d 790. Applying this rule to the facts of this case we hold that the defendant’s alleged default occurred in Pinellas County where the plaintiff maintains its business office and not in Duval County. Thus the plaintiff’s choice of venue was permitted under the applicable provision of the venue statute. Fla.Stat. § 47.-051.

Concluding as we do that the cause of action was based on the defendant’s failure to repay the option fees and that the action accrued in Pinellas County, we hold that the trial court erred in transferring venue to Duval County. Accordingly, we reverse.

McNULTY, C. J„ and BOARDMAN and SCHEB, JJ., concur.


source: Caselaw Access Project

author: GRIMES, Judge.

license: Public Domain

text:
    Willie LIGHTFOOT, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1196, 75-1197.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.
    Rehearings Denied May 25, 1976.
    Jack O. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, and Paul J. Martin, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was convicted of the sale and possession of heroin on consecutive days. The overwhelming evidence supports the jury’s findings of guilt. The only point which warrants our consideration is whether the court committed reversible error in failing to give a requested jury instruction on attempted sale. Rule 3.510, RCP, requires the court to charge the jury on an attempt where a defendant is being tried for any offense in which the attempt to commit such offense is also an offense. Since the attempted sale of heroin is undoubtedly a separate offense, the court erred in failing to charge the jury on this offense.

The evidence in this case clearly reflects that any sales of heroin in which the appellant was involved were fully consummated. An attempt to commit a crime contemplates an incompleted act as distinguished from the completed act necessary for the crime. Robinson v. State, Fla.App.3d, 1972, 263 So.2d 595. Therefore, it may logically be said that the evidence did not support a charge of attempted sale of heroin.

In similar circumstances, this court recently held in Lomax v. State, Fla.App.2d, 1975, 322 So.2d 650, that where the evidence of the completed crime was so great that there was no rational basis for the jury to have concluded that the attempted crime was the only crime committed the failure to charge on attempt as required by Rule 3.510, RCP, constituted harmless error. Lomax was grounded in substantial part upon the recent case of Gilford v. State, Fla.1975, 313 So.2d 729, in which the Supreme Court held that it was not error to refuse to give a requested charge of breaking and entering with intent to commit petty larceny where the only evidence indicated that the value of the property that the defendant intended to steal was over $100.

However, since our opinion in Lomax, the Supreme Court has revisited the ever perplexing problem of instructions for lesser included offenses in State v. Terry, Fla., 336 So.2d 65 (Opinion filed February 25, 1976). By a four to three decision, that court held that where the defendant was charged with assault with intent to commit first degree murder and was convicted of aggravated assault, the trial court committed reversible error in failing to give requested instructions on assault and battery and bare assault. In so doing, the Supreme Court reversed the District Court of Appeal which had held, in effect, that since the defendant had shot the victim with a pistol and interposed a plea of self defense, if she was guilty of anything, she was guilty, at the very least, of aggravated assault. In rejecting this reasoning, the Supreme Court quoted with approval from Hand v. State, Fla.1967, 199 So.2d 100, as follows:

“ . . . The giving of such instruction should not hinge upon whether the trial court believes the evidence is susceptible of inference by the jury that the defendant is guilty of the lesser offense and not of the greater offense charged. In our opinion such judicial determination at trial level obviously takes a most critical evidentiary matter from the proper province of the jury and vests it improperly as a matter of law with the trial judge. . . .”

Tacitly acknowledging that its opinion may appear to be at variance with its recent decision in Gilford v. State, supra, the court explained that the circumstances of Gilford constituted an exception to the rule.

While the court in Terry did not specifically address itself to the question of whether the error in refusing to give the requested charge could be harmless error, the fact that the conviction was reversed necessarily indicates that the court did not believe this error was harmless. Cf. Ward v. State, Fla.App. 4th, 1973, 287 So.2d 138. In Terry, as in the instant case, the rule of DeLaine v. State, Fla.1972, 262 So.2d 655, holding harmless the failure to give an instruction “two steps removed” was not involved.

While Terry involved lesser included offenses rather than attempts, the language of the majority opinion unmistakably suggests that the Supreme Court has now returned to a strict adherence to Brown v. State, Fla.1968, 206 So.2d 377, whereby the trial court is unequivocally mandated to charge on attempts to commit offenses (category 2), offenses necessarily included in the offense charged (category 3), and offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence (category 4). The fact that the evidence conclusively demonstrates that if a crime was committed at all it had to be the more serious crime is irrelevant. Without saying so, the Supreme Court has now apparently adopted the theory of “jury pardon” which was advanced as a minority position in Gilford.

No error was assigned or argued in the instant case with respect to whether the court should have given an instruction on attempted possession, so we need not decide whether we agree with our sister court that attempted possession is a crime. See Nichols v. State, Fla.App. 4th, 1971, 248 So.2d 199.

Since the jury returned four verdicts of guilt, we would have expected four judgments to have been entered. Presumably, because the respective sale and possession charges each arose out of single transactions, only two judgments were entered, each of which adjudicated appellant guilty of the sale and possession of heroin and imposed a single ten year sentence. The two sentences were concurrent. Therefore, we hereby reverse the judgments as they relate to the sale of heroin with instructions that upon the state’s election, the appellant shall either be adjudicated guilty of attempted sales of heroin, or in the alternative be granted a new trial on the sale charges. McCann v. State, Fla.App. 4th, 1974, 288 So.2d 285. The judgments of conviction for possession of heroin are affirmed. Appellant must be resentenced on all judgments.

McNULTY, C. J., and HOBSON, J., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. William Hollis RICHARDSON, Appellee.
    No. 74-1757.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Abbott M. Herring, State’s Atty., Titus-ville, and C. A. Van Hook, III, Asst. State’s Atty., Sanford, for appellant.
    No appearance for appellee.
   PER CURIAM.

Pursuant to this court’s opinion of July 31, 1975 and reported in 318 So.2d 167, Fla.App., jurisdiction of this interlocutory appeal was temporarily relinquished to the trial court “for the sole and only purpose of having the court enter an order setting forth therein the grounds upon which it granted the order of suppression.”

The pertinent factors giving rise to a relinquishment of jurisdiction and the circumstances giving rise to the interlocutory appeal are more fully set forth in this court’s prior opinion (see State v. Richardson, supra).

As a consequence of our remand and in an effort to assist this court in arriving at a proper appellate solution the trial court obligingly proceeded to enter an order setting forth the basis upon which the prior order of suppression was granted.

The state previously contended that the trial court’s order of suppression had been based entirely upon an erroneous interpretation of this court’s recent decision in Laiser v. State, 299 So.2d 39 (Fla.App.4th 1974). In Laiser, this court agreed with the defendant’s contention that the search warrant there was invalid “in that it failed to command a return of the property to the issuing court as required by Florida law”. However, this decision was reversed by the Supreme Court (see State v. Laiser, 322 So.2d 490 (Fla.1975)).

The trial court’s order entered upon remand reflects that the trial court’s order of suppression was based upon a consideration of factors other than Laiser v. State. The order indicates that the trial court considered the companion trial proceeding of State of Florida v. John L. Martin, Jr., which arose out of the same episode for which the appellant Richardson was informed against. In the Martin proceedings the court similarly entered an order of suppression which reflected consideration of certain facts, Martin’s motion, a deposition and the recent decisions in State v. Schectman, 291 So.2d 259 (Fla.App.4th 1974); Wolff v. State, 291 So.2d 15 (Fla.App.3d 1974), and Laiser v. State, supra.

Upon review of the trial court’s order on remand and upon examination of the pertinent documents and orders in the appellate record we are of the opinion that the trial court’s order of suppression in the instant appeal was erroneous. In particular, the recent decisions of the Supreme Court in State v. Laiser, supra (reversing Laiser v. State, supra) and State v. Wolff, 310 So.2d 729 (Fla.1975) (reversing Wolff v. State, supra), support the proposition that the search warrant in question was consistent with the statutory and decisional law. See also Findlay v. State, 316 So.2d 33 (Fla.1975). The trial court did not have the benefit of the aforementioned decisions since they were rendered after the entry of the order under review.

In Lasier the Supreme Court held that it was not necessary that a search warrant direct the physical return of the evidence to the issuing magistrate in all cases. In Wolff the Supreme Court held that an affidavit for a search warrant may be based on hearsay information. In Findlay the Supreme Court held that an affidavit in support of a warrant was sufficient despite the fact that it may have contained information obtained from informants whose reliability was not established where the affidavit also reflected personal observations. The affidavit and search warrant in the instant case fall within the permissible limits of the aforementioned decisions.

Accordingly, the order of suppression is vacated and set aside and the cause remanded to the trial court for such other proceedings as may be consistent herewith.

REVERSED AND REMANDED.

CROSS, OWEN and MAGER, JJ., concur.

      . This court previously commented upon the failure of the state to furnish a stenographic record of the suppression proceedings or a stipulation of pertinent events. Although the state contended no testimony was taken and that the hearing consisted solely of argument of counsel a stenographic record or stipulation would have enabled this court to determine the underlying rationale for the entry of the appealed order without having to further burden the trial court and this court.


author: PER CURIAM. DOWNEY, Judge

text:
    John Henry BOOKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 75-286.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

CROSS and OWEN, JJ., concur.

DOWNEY, J., dissents, with opinion.

DOWNEY, Judge

(dissenting).

Appellant pleaded guilty to one count of first degree murder and one count of second degree murder. Judgment and sentence was rendered on December 11, 1975.

On January 7, 1976, appellant filed a pro se “Motion for Apeal” in which he petitioned the court to modify his life sentence by suspending sentence and imposing a period of probation because “petitioner has a girl friend who has a year and a half (1J4) year old child to support” and his mother and sister are also in need of his support. The trial court treated this motion as one for modification of sentence and denied it by order rendered January 13, 1976.

On February 17, 1976, appellant filed a notice of appeal to review the judgment and sentence of December 9, 1975 (rendered December 11, 1975).

If we had jurisdiction to reach the merits of this appeal I would concur in an af-firmance. However, resisting the temptation to overlook the jurisdictional deficiency as a matter of expedition, I would dismiss the appeal for lack of jurisdiction.

The notice of appeal was untimely from either the judgment and sentence rendered December 11, 1975, or the order denying appellant’s motion to modify his sentence. The only basis upon which the appeal would be timely is to treat the “Motion for Apeal” as a proper notice of appeal. But the purpose of that motion was to petition the trial court to modify the sentence, clearly a prerogative of the trial court. In no stretch of the imagination was it intended to seek appellate review, unless use of the word “apeal” suffices.

Accordingly, I would dismiss the appeal as untimely.


author: OWEN, Judge.

text:
    STATE of Florida, Appellant, v. Gary GUYTON, Appellee.
    No. 75-446.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellee.
   OWEN, Judge.

Appellee charged with attempted robbery and aggravated assault, filed a motion to dismiss pursuant to Rule 3.190(c)(4) RCrP on the basis that the State’s case consisted solely of circumstantial evidence and did not exclude every reasonable hypothesis of innocence. The court, relying upon Lockett v. State, 262 So.2d 253 (4th DCA Fla.1972) ; Douglas v. State, 214 So.2d 653 (3rd DCA Fla.1968); Williams v. State, 206 So.2d 446 (4th DCA Fla.1968); and McGuire v. State, 288 So.2d 271 (4th DCA Fla.1974), entered an order dismissing the information.

The charge rose out of an attempted robbery of and assault upon the desk clerk of the Carolina Moon Motel. Appellee had earlier entered the office of the motel and asked the victim if she had a room for three. Upon receiving an affirmative response, appellant left the premises to “talk to the fellows.” A short time later appellee was observed on the sidewalk outside the motel looking down the street and gesturing with his head and still later he was observed on the street walking back and forth in front of the motel office. A short time later appellee and two other men drove up to the motel in an automobile from which appellee and one of the men emerged and walked into the motel office then occupied by the desk clerk. Appellee’s companion pointed a gun at the desk clerk while ap-pellee watched. When the desk clerk tried to move away, appellee’s companion pursued her and struck her with the pistol inflicting serious injuries upon her. He then demanded money but abruptly left the premises when a gas truck drove up to the motel. Appellee watched but did not participate or speak. His sworn motion to dismiss alleged that he did not have a weapon, did not touch the victim nor make any attempt to strike her, did not say a word, and did not know, prior to hearing the desk clerk screaming, that the other man present in the office was going to attempt to rob the clerk or that the man had a gun, and that when the clerk started to scream ap-pellee walked out of the office.

It is clear that the court, in dismissing the information against appellee, accepted as true the assertion in his sworn motion to dismiss that he “did not know that the other man present in the office at the time was going to rob the office or that the man had a gun.” While appellee’s self-serving expression relating to his subjective knowledge was not categorically denied by the traverse (nor could it have been), it was clearly traversed by factual allegations from which the trier of fact could reasonably and fairly infer that appellee did have prior knowledge of his companion’s possession of the gun and his intention to use it in commission of the robbery. Likewise, the facts set forth in the traverse were such that the trier of fact could fairly and reasonably infer that appellee was aiding and abetting in the perpetration of such crime, which necessarily would carry over into any other crime committed in pursuance of the felonious plan. Under the facts here the case was one which was simply not proper for disposition under Rule 3.190(c) (4) RCrP. See, Camp v. State, 293 So.2d 114 (4th DCA Fla. 1974); State v. West, 262 So.2d 457 (4th DCA Fla.1972); State v. Giesy, 243 So.2d 635 (4th DCA Fla.1971).

The order dismissing the information is reversed and the cause remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

CROSS and MAGER, JJ., concur.


text:
    STATE ex rel. Robert H. LICKERT, Petitioner, v. William T. ROBERTS, as Sheriff of Pinellas County, Florida, Respondent.
    No. 76-441.
    District Court of Appeal of Florida, Second District.
    March 30, 1976.
   Upon consideration of the petition for writ of habeas corpus and the response thereto, it is

ORDERED that the trial court shall treat petitioner’s status for purposes of bail as pre-conviction until adjudication of guilt, according to the rationale of Andress v. Coleman, Fla.App. 4th 1975, 320 So.2d 451.


text:
    STATE of Florida, Appellant, v. Kevin Arthur BYRNE, Appellee.
    No. 75-1412.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Phillip S. Shailer, State’s Atty., and Jon H. Gutmacher and Linda Ann Naze, Asst. State’s Attys., Fort Lauderdale, for appellant.
    Steadman S. Stahl, Jr., and Edward M. Kay of Varón, Stahl & Kay, Hollywood, for appellee.
   PER CURIAM.

We affirm the trial court’s order discharging the defendant as he was denied a speedy trial, Rule 3.191, F.R.Cr.P.; State v. Wells, 326 So.2d 175 (Fla.1976); State v. Wilson, 305 So.2d 232 (Fla.App.3rd 1974).

AFFIRMED.

WALDEN, C. J., DOWNEY, J., and MELVIN, WOODROW M., Associate Judge, concur.


text:
    Simpson L. WRIGHT, Appellant, v. Carol T. WRIGHT, Appellee.
    No. 75-1273.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    S. Robert Zimmerman, Pompano Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

We have considered appellant’s brief and appendix and find that paragraph 3 of the order of June 13, 1975, is erroneous because it purports to find appellant in contempt for failure to make payments due in the future. It may be when the time comes for these payments to be made appellant will be financially unable to do so without being contemptuous. In other words, an adjudication of contempt should relate to past conduct, not prospective conduct.

However, except for paragraph 3, the order is proper. We therefore direct that the order appealed from be modified by deleting paragraph 3 therefrom.

Affirmed as modified.

WALDEN, C. J., and OWEN and DOWNEY, JJ., concur.


text:
    Richard MIXON v. STATE.
    1 Div. 663.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Lloyd E. Taylor, Fairhope, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

A jury’s verdict convicted appellant-defendant of selling marihuana, a controlled substance. Act No. 1407, p. 2378, Acts of 1971; § 29(d), Alabama Uniform Controlled Substances Act, Title 22, (Supplement) Recompiled Code 1958. The court sentenced defendant to seven years imprisonment. The record does not indicate that appellant was an indigent.

It appears from the evidence that the alleged sale was made to J. D. Burchett, an undercover agent for the state; that the sale was made at the home of defendant. The sale price was $30.00 for two “lids.”

I

Appellant contends that the trial court committed prejudicial error in sustaining the State’s objection when the defense attempted to question the witness about any purchases made the day before the alleged offense. The question was:

“Q. Did you buy any marijuana from anybody else that day ?
“A. Right off hand, I don’t recall. I could have.
“Q. Did you buy any the day before?
“MR. HENDRIX: I object to that. It’s immaterial, incompetent and irrelevant.”

After further discussion, the court sustained the objection. Only the alleged sale charged in the indictment was at issue and not other sales.

If defense was trying to test the memory of the witness as he here argues in brief, he should have informed the court of such purpose. The court was under no duty to cast about to ascertain it. Lester v. Jacobs, 212 Ala. 614, 103 So. 682; Ala.Digest, Vol. 2, Appeal and Error ®=,205.

II

Defendant was allowed to show that he came out of the Army in March 1974, but objection was sustained as to how long he served in the Army; also objection as to where he had been stationed was sustained. Objection of State was also sustained as to what kind of discharge the Army issued to him. Defendant’s counsel told the court, “It goes to his reputation.”

We fail to see that the questions or expected answers tended to enlighten the jury as to defendant’s reputation. Smith v. State, 36 Ala.App. 209, 55 So.2d 202; Cox v. State, 33 Ala.App. 192, 31 So.2d 378.

III

Appellant contended in the lower court that the chief witness for the State, J. D. Burchett, the undercover agent, was mistaken in his identity of appellant as the person who sold him the marihuana. He asserted error on the part of the court in refusing to let him show that a third party, who resembled appellant in appearance, wore rings. It appears that the agent testified that appellant at the time of the sale wore rings. This ruling of the trial court, so appellant here asserts, was prejudicial to appellant.

We quote the record before us:

“Q. [by defendant’s counsel] Did you ever see him wear rings ?
“A. He always does.
“MR. HENDRIX: I object to him leading the witness.
“MR. SMITH: I’m not leading.
“THE COURT: Sustained.
“Q. Did he ever wear jewelry ?
“MR. HENDRIX: Judge. . . .
“THE COURT: Sustain the objection.”

The State did not make a motion to exclude the witness’ answer that defendant always wore rings.

The rulings of the court were free of prejudicial error to defendant. There was prior evidence by this witness as to resemblance in appearances of the two. The minor detail of rings was insignificant.

We hold that the judgment should be and it is affirmed.

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

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    James W. CORDELL v. Lurleen Cordell POTEETE.
    Civ. 759.
    Court of Civil Appeals of Alabama.
    April 14, 1976.

      Powell & Powell, Decatur, for appellant.
    Kenneth Shelton, Decatur, for appellee.
   BRADLEY, Judge.

Appeal is taken from a decree requiring defendant to pay plaintiff the sum of $9,495.99, which was one-half of the net proceeds received by defendant in the settlement of an out-of-state lawsuit.

Plaintiff and defendant were divorced by the County Court of Morgan County on September 5, 1972. The divorce was awarded on the basis of the wife’s complaint, the husband’s waiver and answer, and the deposition of the wife. The decree provided that the husband pay the wife: “ . . . one-half of any net proceeds derived from the net proceeds of that certain case styled James W. Cordell and Lurleen Cordell versus Jeffrey D. Pale, which is pending in the Eighth Judicial Circuit Court of Adams County, Illinois.” The husband, in his waiver and answer, had agreed that the wife was to receive said portion of any recovery in the named lawsuit.

The Illinois lawsuit resulted from a motor vehicle accident which left the husband hospitalized for some time with a fractured skull and, according to a psychiatrist, with permanent brain damage.

In October 1974, about two years after the divorce, the husband and his lawyer dismissed his ex-wife as a party plaintiff in the Illinois damage suit and settled it for $35,000. After paying the hospital, his doctors and lawyer, defendant received $16,991.98. He did not pay plaintiff one-half of this amount as directed by the divorce decree.

Plaintiff-wife, after learning of the settlement of the Illinois lawsuit, filed a petition in the court that granted the divorce, asking that defendant be required to pay her one-half of the net proceeds of the settlement as directed by the previous decree. The defendant answered by saying that he is now mentally incompetent, and was incompetent both at the time of the divorce and at the time he signed the waiver and answer agreeing to give his ex-wife one-half of the net proceeds of the Illinois lawsuit. He says his incompetency results from the brain damage suffered in the vehicle accident which was the subject of the Illinois lawsuit. He asked that the divorce decree be set aside or, in the alternative, that “. . . plaintiff should receive only an apportionate share of the proceeds he received from his accident of January of 1972, which would be nothing.”

Trial was had before the court sitting without a jury. Submission was taken on the depositions of plaintiff and Dr. Roland Hawkins, the answers of defendant to interrogatories, and the oral testimony of the defendant, which was not taken by the court reporter. The court decreed that defendant was competent at the time he executed the waiver and answer in the divorce action and that the decree rendered in said cause is valid and should be enforced.

The facts show that the parties to this proceeding were married in June 1971; that the defendant suffered brain damage as a result of a motor vehicle accident in January 1972; and that the parties separated in June 1972 and were divorced in September 1972.

In her deposition plaintiff stated that she had known defendant for a long time before their marriage and has seen him and talked to him since their divorce, and she has not seen any significant changes in his mental condition either before or after the accident. She said that her husband was sane, in control of his mental faculties and could handle his business affairs at the time he signed the waiver and answer and at the time the divorce request was submitted to the court. She said at the time he signed the waiver and answer, he was able to dress himself, feed himself, drive his car, carry on a normal conversation and transact his own business. He has also been employed on occasion since his release from the hospital.

In his deposition, Dr. Hawkins stated that defendant has chronic brain syndrome or brain damage which is permanent. The doctor said defendant is incompetent. His judgment is impaired; his memory for recent events is practically nil; and his ability to reason or carry on everyday business affairs is gone. The doctor did say that defendant’s psychosis could be ameliorated it he regularly took the prescribed medication. However, he also said that the medication would not restore him to competence; this condition resulted from the brain damage which is irreversible.

The trial court’s decree stated that defendant had testified in open court and had been personally interviewed; however the testimony was not taken down by the court reporter and it is not before this court.

Defendant contends on appeal that the evidence was insufficient to warrant a decision that he was competent at the time he signed the waiver and answer and at the time the divorce proceedings were submitted to the court for a decision. However, the law presumes every person to be sane and casts the burden of establishing the basic matter of incompetence on the one asserting it. Equitable Life Assur. Soc. of United States v. Welch, 239 Ala. 453, 195 So. 554.

In the instant case the initial burden was cast on defendant to prove his incompetence. He attempted to do this by introducing his testimony and that of his psychiatrist.

The testimony of the doctor, although expert testimony on the question of incompetence, is to be given such weight as the trier of facts deems warranted, for the opinion of an expert as to insanity is not conclusive on the trier of fact, but is to be weighed like other evidence, and the trier of fact may totally reject the expert’s testimony even though it is without conflict, Smith v. Smith, 254 Ala. 404, 48 So.2d 546. Here, there was a conflict between the doctor’s testimony and that of the plaintiff. And, where there is a conflict in the testimony of witnesses, the trier of fact has the duty to resolve it as best it can under the circumstances, General Mut. Ins. Co. v. Dennis, 280 Ala. 434, 194 So.2d 838. The trial court resolved this conflict in favor of the competence of defendant. Of further significance is the absence of defendant’s testimony from the record. We do not know what his testimony consisted of since it is not reported; however, the trial court, as the trier of fact in this case, observed defendant testify and could assign such weight to his testimony as it saw fit. Where the trial court had the benefit of evidence not included in the record, and such evidence may have influenced the trial court’s decision, the unrecorded evidence is conclusively presumed to support the finding, which therefore cannot be disturbed on appeal, Eaton v. Shene, 282 Ala. 429, 212 So.2d 596.

No reversible error being presented to this court, the judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    Willie STATEN v. STATE.
    8 Div. 800.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Beard & Beard, Guntersville, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent at nisi prius and here, was convicted by a jury pursuant to an indictment for violation of Alabama Controlled Substance Act of 1971. Heroin was the involved charge. The Court sentenced him to ten years imprisonment.

We have examined the entire record and fail to find any ruling of the court that was prejudicial to appellant. This search is mandated by T. 15, § 389, Code of Alabama 1940, Recompiled 1958.

Appellant’s appointed attorney, who defended appellant at nisi prius and appointed to represent him here, has advised this court by letter dated March 17, 1976, that he is unable to find any error in the transcript and record of the proceedings. The attorney certifies in his letter that he mailed a copy of his letter to this court, postage prepaid, to defendant.

In view of our research and this “no merit” letter, we affirm the judgment.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, serving as a judge of this Court under § 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

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


text:
    Roger FRAZIER v. STATE.
    6 Div. 913.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Roger A. Brown, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found defendant guilty of robbery and fixed his punishment at imprisonment in the penitentiary for ten years. He was adjudged and sentenced accordingly.

On appeal no question is raised, and our review of the record convinces us that no serious question can be raised, as to the sufficiency of the evidence to support the verdict and judgment.

Only two questions are raised by appellant: (1) whether the trial court committed error in charging the jury on the subject of flight and (2) whether the trial court erred in allowing in-court identification of defendant and ruling that it was not unduly suggested by the lineup procedure as conducted.

We see no necessity for narrating any testimony other than some of that which bears upon the two questions presented.

Defendant was identified by the victim of the robbery, Mrs. Hattie Bell Burns. She testified that in robbing her, defendant and an accomplice grabbed the cash register drawer and ran out of the door of the Majik Market together. Three days after the robbery, defendant was arrested at his apartment by Officer Robert Walker and another officer. While the other officer was knocking on the front door, Officer Walker said that he watched a back upstairs window of the apartment and saw “half of a body come out of the top window.” Officer Walker, armed with a shotgun, ordered the person to come on out but he “went back inside of the house.” The other officer, Sergeant Newfield, testified that as he heard Officer Walker on the outside hollering from “outside of the apartment” he went inside the room, found defendant there and arrested him.

Officer Walker, upon being interrogated by defendant’s counsel, was unable to testify that the person he saw attempting to come out of a window of the apartment was defendant, but the circumstantial evidence presented pointed persuasively to defendant, and to him alone, as attempting to flee and escape apprehension or arrest. This constituted a sufficient basis for the court’s charge as to flight.

The charge as to flight is justified by reason also of the flight from the store by the robbers. Muse v. State, 29 Ala.App. 271, 196 So. 148, cert. denied 239 Ala. 557, 196 So. 151. In this particular case, the flight from the store had no relevancy to the question of whether defendant was one of the robbers, but the burden of proof was, at all times, on the State to convince the jury beyond a reasonable doubt by the evidence that defendant was guilty of the robbery alleged. Although perhaps unnecessary, evidence as to all of the circumstances of the alleged robbery, including the manner in which defendant left the store, was pertinent to the question of whether all of the elements of robbery existed.

In urging that the in-court identification of defendant by the victim of the robbery should not have been allowed in evidence, appellant relies upon the principle that an illegally suggestive pretrial identification proceeding may preclude an in-court identification. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Edid 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). As compelling as the cited trilogy is, it has no application in this case. From some of the testimony of the victim on the subject, when considered alone, it can be inferred that when she viewed the pretrial lineup conducted by the Birmingham Police Department, she had been told by Sergeant Newfield that “they had caught them” and that she knew when she went to the lineup that “the robbers had been apprehended and that she was going to identify them.” However, from the testimony in its entirety, it is clear that all the information on the subject that she had obtained, prior to her actual viewing of the defendant in a lineup, was a message that had come to her at the store from the Police Department that she was “to appear for a line-up,” that the police had not told her anything; that the only thing said to her prior to her viewing defendant in the lineup was Sergeant New-field’s statement to her as she arrived for the lineup as to where she should go. The evidence is almost conclusive that no police officer did anything to suggest the identity of defendant to the victim. The lineup was composed of six individuals, all males of the same race as defendant. The lineup was five days after the robbery, two days after defendant’s arrest. There was no evidence that defendant was distinguishable in any way from other participants in the lineup other than by his appearance as he was observed by the victim while the robbery was committed. According to the evidence, there was nothing done at or prior to the pretrial lineup of a suggestive nature. Nothing that was done or said there could have added to the chance of an error in the in-court identification. The evidence further shows that irrespective of the pretrial lineup the victim had sufficient knowledge and ability to identify defendant on the trial as one of the robbers and that there was little chance, and certainly no likelihood, of misidentification.

We have considered all claim errors and have searched the record for others. It is free of any error prejudicial to defendant. 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 below is hereby

AFFIRMED.

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


author: HARRIS, Judge.

text:
    Anderson HUNTER, alias v. STATE.
    3 Div. 506.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.

      Donald V. Watkins, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant, represented by court-appointed counsel at arraignment and trial, was convicted for the offense of possession of a pistol after having been convicted of a crime of violence. At arraignment he pleaded not guilty and not guilty by reason of insanity. At the time sentence was imposed, the Court told appellant he had in mind a three-year sentence in the penitentiary but noted that he had been in jail six months awaiting trial and that he was due credit for this time. The Court sentenced appellant to thirty months in the penitentiary. Appellant is in this Court with a free transcript and trial counsel was appointed to represent him on appeal.

Detective H. C. Norton of the Montgomery Police Department testified that on the night of January 18, 1975, he came into possession of a .38 caliber Smith and Wesson revolver from Police Officers Frank Robinson and Roy L. Nix. At the time he received the pistol there were three spent cartridges and two live ones in the pistol. He stated that the pistol and bullets had been in his exclusive possession from the time he received them until he produced them in Court at appellant’s trial. Over appellant’s objections the pistol was admitted in evidence as State’s Exhibit No. 1, and the bullets were admitted as State’s Exhibit No. 2.

Officer Robinson testified that he and his partner were on patrol duty and while traveling near Monroe and Lawrence Streets, he heard what sounded like gunshots and observed two black males running from the scene and further observed appellant standing in front of a telephone booth with a pistol. He identified State’s Exhibit No. 1 as the pistol in appellant’s possession on January 18, 1975.

On cross-examination he stated he saw appellant throw the pistol down as the patrol car approached him. Appellant was placed under arrest for discharging a firearm and not having a pistol permit.

Officer Roy L. Nix testified that on the night of January 18, 1975, he was on patrol with Officer Robinson and saw appellant in the vicinity of Monroe and Lawrence Streets in Montgomery. He stated he heard a gunshot and saw appellant drop a pistol and begin to leave the scene. Upon examination of the pistol he found three spent shells and two unspent shells. This witness also identified the pistol and bullets introduced in evidence by the State.

Mrs. Pauline C. Eubanks, Clerk of the Circuit Court of ’Montgomery County, was called as a witness for the State. She testified that as Circuit Clerk she was the custodian of the records in the Clerk’s Office. She produced a certified copy of a judgment of conviction against appellant for assault with intent to murder prior to indictment and conviction in this case. Over appellant’s objection this certified copy of a prior felony conviction was admitted in evidence.

James Floyd testified for appellant. According to his testimony he was with appellant on the night- in question and that he did not see appellant with a pistol at any time during the afternoon and night of January 18, 1975.

Appellant testified and denied owning or possessing the pistol and bullets presented as evidence by the State.

On cross-examination he admitted that he was one and the same Anderson Hunter who was named in State’s Exhibit No. 3, being a certified copy of a judgment of conviction for assault with intent to murder. He further admitted that in 1968 and 1970 he was convicted for the possession of a pistol after a prior conviction of a crime of violence, and that in 1968 he was sentenced to 18 months in the penitentiary and that he got 20 months for the 1970 conviction.

There was no error in the admission of the certified copy of the judgment of conviction of appellant for assault with intent to murder. Prior convictions can be shown by Court records, or by certified copies of such records, or by the testimony of the convict himself. Smothers v. State, 39 Ala.App. 292, 98 So.2d 66.

A defendant who testifies for himself as a witness, may be impeached in the same manner as other witnesses by showing that he has been convicted of a crime involving moral turpitude. Mayberry v. State, 281 Ala. 573, 206 So.2d 585; Muse v. State, 29 Ala.App. 271, 196 So. 148.

Conflicting evidence presented a question for the jury on the issue of defendant’s guilt. Mayberry v. State, supra; Jones v. State, 55 Ala.App. 466, 316 So.2d 713.

There was no motion to exclude the State’s evidence; there was no motion for a new trial; there was no request for the affirmative charge; and no exceptions were reserved to the Court’s oral charge to the jury. In this state of the record nothing is presented for review by this Court. Jones v. State, supra; Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Jackson v. State, 52 Ala.App. 667, 296 So.2d 753.

We find no reversible error in the record and the judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


text:
    Jackie Curtis HAYNES v. STATE.
    7 Div. 441.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    William S. Halsey, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis III, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Haynes was convicted of grand larceny and the Court sentenced him to three years imprisonment in the penitentiary. Prior to arraignment appellant was found to be indigent, and the Court appointed counsel to represent him. He pleaded not guilty. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. New counsel was appointed to represent appellant on appeal.

When the State rested, appellant moved to exclude the State’s evidence on the ground the State failed to prove a prima facie case of grand larceny against him. The motion was overruled. This was the only adverse ruling of the trial court during the trial of this case. This ruling puts us to a recital of the evidence.

Harold G. Anderson testified that on April 26, 1974, he lived at Indian Hills Apartments in Anniston, Alabama, and was the owner of a 1974 Honda 360 Motorcycle which bore the number CB360, engine number E 1008741. On that date he left his motorcycle in a parking space at the apartments to attend a banquet at Weaver High School. He returned around midnight and found his motorcycle missing. The next morning he reported the probable theft of his motorcycle to the Anniston Police Department and gave a detailed description of the missing property. The next time he saw his motorcycle was at the Police Department. When he examined it at the Department, the key he had fit the ignition switch and the serial number on the motor matched. He stated that many parts were missing and it appeared to have been spray-painted with blue paint. He stated that the original color of the motorcycle was orange. He said the blinker lights were stripped, the luggage rack and crash bar had been removed, that it had an electric starter but when he saw it at headquarters, it had been straight-wired and that the mufflers had been re-welded. He stated that some tools were also missing. He positively identified the motorcycle as belonging to him as the key fit the ignition and the serial number on the motor matched the number he had on his bill of sale. He further stated that he had given no one permission to use or move his motorcycle.

Mr. Ralph Smith, an officer with the Anniston Police Department, testified that he was on regular patrol on April 29, 1974, looking for Jackie Curtis Haynes who was thought to be riding a blue motorcycle. He saw him at the intersection of Clydesdale and 202 Highway sitting on a blue motorcycle. He asked him for his license and a bill of sale. Haynes gave him a piece of paper with the words, “Bill of Sale” written on it. He attempted to compare the numbers on the alleged bill of sale with the numbers on the motorcycle which Haynes was riding but the numbers on the frame had been scraped off. The officer told Haynes that he was going to call headquarters to run a check on the serial number but before he could do so, Haynes took off on the motorcycle and headed west on Highway 202 and the officer started after him. Haynes cut off on Smith Street, went up to a side area and abandoned the motorcycle and disappeared in the woods. The officer did not get close enough to see Haynes abandon the motorcycle but found where he had left it. He was positive it was the same one that Haynes was riding when he made his escape. The motorcycle was removed to police headquarters where it was later identified by the owner.

Detective Earl Taylor of the Anniston Police Department testified that he made an examination of the motorcycle to see if it fit the description of the one reported stolen. He scraped a sample of the paint off and found an orange coating under the blue coat of paint. He noted that several items were missing off the motorcycle such as a 360 emblem, the turn signal, the tag, and found the ignition had been straight-wired. The blue paint appeared to be from a spray can as opposed to a factory paint job. The identification number, or frame number, located at the front had been scraped off. He examined the motor number on the block and found it to be the same number as reported missing on April 27, 1974.

Detective Taylor interviewed appellant in his office after he was arrested. He gave him the Miranda rights and warnings and appellant told him he understood his rights. Appellant did not ask to see a lawyer. He refused to sign a written statement but told the officer that he did not steal the motorcycle. He stated that he bought it on Sunday morning, April 27, 1974, from a man named David Cash. He told the officer that Cash wanted $450.00 but he paid him $250.00 and was to pay $50.00 per month on the balance and that he got a bill of sale at the time he made the down payment. No one had heard of David Cash and he could not be located.

Appellant did not testify but offered his half brother as a witness in his behalf. According to this witness he and appellant were at home on Sunday morning, April 27, 1974, when a man drove a motorcycle to the house and had a conversation with appellant about buying the motorcycle. He did not hear the conversation between the man and appellant but saw appellant hand the man some money and a bill of sale was prepared and signed by the man and appellant. After the transaction was completed, appellant rode off with the man and he did not know where they went. He stated he did not see the alleged bill of sale and did not know what was written on it. He had never seen or heard of this man before April 27, 1974. He further testified that the following Tuesday or Wednesday appellant and his father went to police headquarters and appellant turned himself in at the station house.

There can be no question that the State made out a prima facie case against appellant.

Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the State’s evidence does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

The distinguished lawyer representing appellant on this appeal, Honorable William S. Halsey, wrote a brief stating he has been unable to find a reversible error after a careful search of the record. We are in full accord with the conclusion of Mr. Halsey.

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


text:
    James B. PENNINGTON, alias v. STATE.
    6 Div. 12.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of Indecent Molestation of a female child ten years of age and the jury assessed a fine against him in the amount of $5,000.00, and the trial judge sentenced him to five years imprisonment in the penitentiary. At arraignment and trial appellant was represented by the Public Defender’s Office of Tuscaloosa County and he is represented by these lawyers on this appeal.

The law under which he was convicted is Title 14, Section 326(2), Code of Alabama 1940 (Supplement) and provides as follows:

“It shall be unlawful for any person to take or attempt to take any immoral, improper, or indecent liberties with any child of either sex under the age of sixteen years, with intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child, or to commit, or attempt to commit any lewd or lascivious act upon or with the body, or any part or member thereof, of such child, with an intent of arousing, appealing to, or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child. Provided, this section shall not apply to the enumerated acts where the purpose of the person committing such act or acts is to render medical 'or surgical treatment, or when the persons are married legally one to another.
“Any person violating this section shall be guilty of a felony and shall upon his first conviction be punished by confinement in the penitentiary for a period not to exceed five years, or by a fine not to' exceed five thousand dollars, or by both fine and imprisonment; any person who shall be convicted for the second violation of this section shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than two nor more than ten years; and any person who shall be convicted for the second violation of this section shall not be eligible for probation.”

This is a sad and tragic case and demonstrates a marked degree of human depravity. We will not dwell to any great degree on the sordid and revolting details leading up to appellant’s conviction. For background information the record reveals that appellant met a woman in Texas who had four children, two girls and two boys, ranging in ages from two to twelve years. He presumably married her in Texas and shortly thereafter they moved to the children’s grandmother’s home in Florida. They stayed in Florida a short time and moved to Northport in Tuscaloosa County, Alabama. They moved in an apartment complex where the alleged offense was committed. The mother was working that night, the two girls testified for the State.

According to their testimony the apartment was bare of any type of furniture. They rode with appellant to visit an aunt somewhere near Tuscaloosa and on the way back to the apartment appellant was drinking and he made an improper suggestion to the oldest girl and she told him no. He then made the same suggestion to the ten year old girl and she, too, said no. When they arrived at the apartment, appellant told the twelve year old girl to take the two boys to one of the bedrooms and close the door. He told the ten year old girl to stay in the living room with him, and she stated that appellant told her to pull her pants down and he performed an act of cunnilingus on her. Over her protest he made her perform fellatio on him.

The victim further testified that while they were living in Florida, appellant (who was nude) took a picture of her, her mother, and her sister who were in bed together and who were also nude. She then stated that she took a photograph of her mother, appellant, and her sister while they were nude in the same bed. These photographs were offered in evidence by the State, but appellant’s objections to them were sustained. Later in the trial the prosecution again offered these photographs in evidence and they were admitted over appellant’s objections. There were no specific grounds of objections to the admission of these photographs.

The victim’s mother had a warrant issued for the arrest of appellant. When he was arrested, it was learned that he had both of the photographs in his possession. A hearing was had in the Juvenile Court and these photographs played a prominent part in the decision of the judge to take the care, custody, and control of these four infants from the mother and place them in a foster home where they were living at the time of appellant’s trial. Their mother was not present at the trial and no one knew where she was then living.

Appellant did not testify and there was no evidence offered in his behalf.

Appellant contends that he is entitled to a reversal on two grounds: (1) that the victim was incompetent to testify and (2) the Court erred in admitting the nude photographs in evidence.

In Kendrick v. State, 52 Ala.App. 230, 291 So.2d 165, this Court held that the' trial court did not abuse his discretion in holding that a seven year old witness was qualified and of sufficient age and mental maturity to appreciate the binding effect of the oath administered to him when he appeared as a witness.

There was an extensive voir dire of the victim to determine her competency as a witness. She testified that the day before she testified she had a birthday and she was eleven years old and was in the fourth grade. She stated that she went to Sunday School regularly and was taught the difference between the truth and a lie. That she knew it was right to tell the truth and that it was wrong to tell a lie. She said if she told a lie that she would not be telling the truth. She further stated that if she did not tell the truth,' she would get into more and more trouble, and that if she told a lie, she would not be telling the true facts.

The trial court ruled that she was competent to testify and we agree with that ruling. Rodgers v. State, 42 Ala.App. 660, 177 So.2d 460; Hutcherson v. State, 40 Ala.App. 77, 108 So.2d 177; Segrest v. State, 44 Ala.App. 673,219 So.2d 890.

We fail to see the probative value of the two nude photographs introduced in evidence over appellant’s objections. They certainly do not depict the commission of a crime. They may be relevant to show appellant’s familiarity with his two stepdaughters but at the same time we do not see that these photographs were prejudicial to his cause. In this crazy quilt society in which we live, nude photographs are no longer shocking and have almost become commonplace.

If these photographs were inadmissible they were rendered innocuous by the statements of the trial judge.

From the record:

“MR. ANDRES: It boils down to this: these children posed for those photographs at his request—this Defendant’s request—in Florida; that en route back from the country to Deerfield Apartments—
“MR. BURROUGHS: Your Honor, I hate to interrupt Mr. Andres, but that— What happened in Florida is not evidence in this case.
“THE COURT: It is not evidence, you are right.
“MR. BURROUGHS: It is what happened here.
“THE COURT: That’s right.
“MR. BURROUGHS: He keeps dwelling on that.
“THE COURT: Well, I am going to charge them on that.
“MR. ANDRES: I withdraw that earlier statement, then, Judge.”

The Court gave the following written charge requested by appellant:

“Defendant’s Charge No. 1”
“I charge you members of the jury that you cannot punish James B. Pennington for any act or acts that were committed in Florida, specifically for any photographs that were taken in Florida.”

We find no reversible error in the record and the judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, TT., concur.


text:
    Autry EAST v. STATE. William Anthony COFIELD v. STATE.
    8 Div. 793, 794.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Rehearing Denied April 20, 1976.
    Carnes & Carnes, Albertville, for appellant. '
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

The issues involved on appeal in these two cases are identical. Both appellants were originally charged with robbery and were represented by the same attorneys both at arraignment and trial. They both pleaded not guilty at arraignment. They both applied for Youthful Offender treatment and their cases were referred to a Probation Officer for a report and upon the filing of the probation report, each of their applications to be treated as Youthful Offenders was denied. The same attorneys represent them on appeal and filed separate briefs in each case, but the same authorities are cited and relied on in each case.

We think that these cases should be consolidated for consideration and disposition.

East. Case 1

This appellant was indicted for robbery. Omitting the formal parts of the indictment reads as follows :

“The Grand Jury of said County charge that before the finding of this Indictment Autry East whose name to the Grand Jury is otherwise unknown, felo-niously took, to-wit: $123.00 in lawful United States money, the exact description and denomination of which is to the Grand Jury otherwise unknown, the personal property of Ellis Gilliland, from his person, or from or in his presence, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

Upon arraignment appellant applied for Youthful Offender status and his application was referred to a Probation Officer for a report and after the report was filed, his application was denied on the sole ground that he was charged with robbery. Thereupon, appellant pleaded not guilty.

When the case came up for trial, appellant withdrew his not guilty plea and pleaded guilty to grand larceny. Before accepting the guilty plea, the Court in a rather lengthy colloquy with the appellant explained all of his Boykin rights to be certain that he knowingly, voluntarily and intelligently waived them. The Court ascertained that appellant had reached his decision with the advice of his attorney and that the guilty plea was made voluntarily and that he was in fact guilty of grand larceny, a lesser included offense of the robbery indictment. The Court then accepted appellant’s guilty plea, and, after al-locutus, sentenced him to seven years imprisonment in the penitentiary.

After his conviction and sentence for the offense of grand larceny, appellant filed another motion for Youthful Offender status and the Court made the following order:

“ORDER
“The foregoing motion being presented to the Court and in view of the fact that the Defendant requested Youthful Offender status at arraignment which request was denied after hearing and in further view of the fact that the statute providing for Youthful Offender status does not authorize a motion to be filed after conviction, the Court is of the opinion that this motion should be denied without hearing.
“It is therefore considered, ordered and adjudged that said motion be and hereby is denied.
“Done this 3rd day of December, 1975.
/s/ Clark Johnson
CIRCUIT JUDGE”

Appellant then gave a written notice of appeal to this Court, “from the judgment rendered against him in this cause and from the orders of the Court herein denying him Youthful Offender status and denying him a hearing on his post-conviction motion for Youthful Offender status.”

We have again carefully read the Youthful Offender Act, Title 15, Section 266(1) et seq., Code of Alabama 1940 (Supplement), and we do not find a provision for a second or successive applications for treatment as a Youthful Offender after the Court has, in his discretion, denied the first application.

Section 266(1), supra, provides, in pertinent part,

“. . . After such investigation and examination, the court in its discretion may direct that the defendant be arraigned as a youthful offender, . or the court may decide that the defendant shall not be arraigned as a youthful offender . . .” (Emphasis supplied).

In Morgan v. State, 291 Ala. 764, 287 So.2d 914, held that after investigation and examination, it is within the discretion of the trial judge whether the youth shall be tried as a Youthful Offender.

In Clemmons v. State Ala., 321 So.2d 238, the Supreme Court said:

“The court would naturally consider such matters as the nature of the crime charged, prior convictions, or absence thereof—all of which can be ascertained without a lengthy, time consuming investigation by the probation officer.”
Further—
“However, our statute requires that the determination to grant or refuse youthful offender treatment be made at a point near the commencement of the criminal action, and before entry of a plea.” (Emphasis supplied.).

Appellant pleaded guilty to grand larceny and then reapplied for Youthful Offender treatment. As we read Clemmons, supra, such procedure is not justified or authorized.

We find no error to reverse in this case and the judgment of conviction is affirmed.

Affirmed.

Cofield. Case 2.

Cofield was indicted for robbing the same victim that East was indicted for robbing.

The same procedure was followed in Co-field’s case as that in East with one exception. The Probation Officer reported to the Court that Cofield had another robbery charge pending against him in Eto-wah County.

Cofield withdrew his not guilty plea to the robbery indictment and pleaded guilty to grand larceny. He, too, was sentenced to seven years imprisonment in the penitentiary.

Cofield relied on the same argument that East made and cited the same authorities.

What we said in East applies equally to Cofield and this case is affirmed on authority of East.

AFFIRMED.

All the Judges concur.


text:
    Arthur BURR v. STATE.
    8 Div. 467.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Robert T. Meadows, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of burglary in the night time and the jury fixed his punishment at ten years imprisonment in the penitentiary. With counsel present at arraignment appellant interposed a plea of not guilty. After sentence was imposed, he gave notice of appeal. He was furnished a free transcript and this Court appointed counsel to represent appellant on this appeal.

The testimony adduced by the State made out a clear case of burglary in the night time. Appellánt made a confession which the trial court held to be voluntary and it was admitted in evidence. At trial appellant repudiated the confession and set up the defense of an alibi.

Mr. D. W. Hester, a man about 86 years of age, was living some three miles south of Russellville, Franklin County, Alabama, on December 23, 1972. Two of his sisters lived with him. He testified he and his sisters were in the home when the house was broken into around 5:30 p. m. That it was dark and the lights were on in his home. He heard the back door being broken and the next thing he knew he was grabbed from behind in his bedroom. He stated that he could not identify the man who grabbed him but he saw him well enough to know that he was a black man. He further stated that this person hit him on the head twice with his own walking stick and knocked him across his bed causing him to bleed considerably. The man who assaulted him asked him twice, “Where is the money?” Mr. Hester had about $600.00 in a cigar box which he kept in his top dresser drawer and when the man left the house, he checked the cigar box and found the money missing. Mr. Hester, was taken to the hospital by ambulance where the two lacerations on his head were sutured. He stayed in the hospital four days and the scars on his head were still visible at the time of appellant’s trial.

Ms. Cecile Hester testified that she was living with her brother and sister on the night of the burglary and robbery. She said she heard loud noises at the back door about 5:30 p. m. and shortly thereafter there were three black men in the den she was occupying. She stated one of the men pushed her down on the floor and that he had a gun. She saw two other men run out of her brother’s bedroom and then the three men left the house. After the three black men left, she inspected the house and discovered the rear storm door was broken open and the glass in the door was broken. She also found that one of the windows was broken out and it was not broken prior to the night of the burglary.

The Sheriff of Franklin County, Swanson Heardman, testified that he investigated the burglary and robbery and found the back door had been broken open and the glass in the door had been broken out. He stated there was blood on the bed and pillow in Mr. Hester’s bedroom. He found three sets of human foot tracks outside the house and a black stocking was found in the back yard at a point just south of the house. He also found car tire tracks at a nearby creek and that a plaster cast was made of the car tracks. A tire from the car of George West was confiscated and these were kept in his custody until he sent these items to the laboratory of the Federal Bureau of Investigation to have comparison tests made but the lab report stated that there were not sufficient identifying characteristics in the cast to conclude that it was made by the tire in question. The Sheriff also found that the kitchen telephone wire had been cut.

Mr. Dexter Haney, Criminal Investigator with the Alabama Department of Public Safety, testified that he interviewed appellant on December 30, 1972, at the county jail in Russellville in the presence of Jim Hickman, Deputy Sheriff at the time of the burglary. That before any questions were asked, Mr. Haney gave appellant the Miranda, rights and warnings. Haney interviewed the appellant two or three times prior to December 30, 1972, and each time he gave him the Miranda rights. None of these interviews lasted longer than fifteen minutes. On December 30, appellant stated he wished to waive his rights and give a statement concerning the burglary and robbery. Mr. Haney wrote the statement as given to him by appellant and initialed each paragraph. Appellant made one correction in the written statement and initialed it, and then he signed the statement. The statement is as follows:

“Q Would you read that statement to the Jury, please sir?
“A Yes sir. The statement is dated December 30, 1972, at 1:00 P.M., Statement of Arthur Lee Burr and it gives his birth date as May 28, 1950. About a week ago I was with Hoyt McGee, George West, and Harry Abernathy. We was in George West’s car, a Pontiac with wide tires. About dark, we went to a place South of Russellville. We saw a large house and pulled into a field passed the house, turned the car around and parked there for a while. We all had a drink of whiskey while we were parked. We were drinking from a bottle. Someone suggested that we go to the large house, we could see from where we were parked and rob the people. We went up to the house, George stopped the car and let me, Hoyt McGee, and Harry Abernathy out at the car. Then he left and drove around. He said when we got out of the car that he would pick us in about five minutes. I went to the front of the house. Hoyt and Harry went to the back of the house. I could hear them breaking in the door. I heard glass breaking, then I went to the back of the house. They were already in the house, when I got to the back door. I went on in the house and saw two old ladies lying face down on the floor. I saw one of them was with the old ladies. I went to the room where the other one was. I looked in the room and saw an old man lying on the bed. I don’t remember if it were Hoyt or Harry in the room with the old man. Hoyt had put a dark colored stocking before he went in the house. I started to go back out of the house and heard the old man hollering. I could not understand what he was saying. When I got out of the house, Hoyt and Harry came out right behind me.
We ran to the blacktop road in the front of the house and ran down the road to the creek. We hid in some bushes until George came along and picked us up. After we got in the car, we divided the money. I got about $100.00. We then all went to Sheffield. We got some wine in Sheffield and rode around for a while and went to the GOT Club. We all smoke some reefers while we were riding around after the robbery. We got separated in Sheffield. I don’t how I got home. Signed, Arthur Burr.”

There was a voir dire hearing out of the presence and hearing of the jury. The trial judge determined that the above statement of appellant was freely and voluntarily made and the same was admitted in evidence.

According to appellant’s statement he and George West, Hoyt McGee and Harry Abernathy were in West’s car. West parked his car near a house south of Rus-sellville and appellant, Abernathy and McGee got out of the car with intent to rob the house. Abernathy and McGee went to the back of the house and appellant went to the front of the house. Appellant heard the other two men break the back door and heard glass breaking. He stated that McGee put on a dark stocking before he went in the house. Appellant admitted that he entered the house. Appellant did not know whether McGee or Abernathy were in the bedroom with Mr. Hester but he heard the old man hollering. He admitted there were two old women in the house. When the three left the house, they ran down to a creek nearby and West appeared shortly thereafter and picked them up in his car. The robbers then split the money that was taken in the robbery and appellant said he got $100.00.

James Hickman, who at the time of the trial was Assistant Chief of Police at Red Bay, Alabama, testified that he talked with appellant on December 30, 1972, and the defendant carried him to the place where he was staying and gave him the money remaining of that he received from the robbery. Appellant told Mr. Hickman that he received $100.00 as his part from the robbery.

Appellant testified that he signed the statement admitted in evidence by the State but claimed he did so because the police were harassing him. He stated that on the night of the robbery he went to the hospital to see his sister, Malinda Cummings, and after leaving the hospital he went to Sheffield with Thomas Hamm. He said he got to the hospital “somewhere like 5:00 or 6:00 or 6:30 p. m.”

On cross-examination appellant testified that he finished high school and attended a junior college for a while. That he could read and write. That he signed the statement implicating himself and the others in the burglary but the police would not let him read the statement after he signed it.

His alibi was supported by his father and sister but they were mixed up and confused as to the time they claimed to have seen appellant at the hospital.

On rebuttal the State called Roger Hamm as a witness. He testified that shortly after the burglary and robbery occurred on December 23, 1972, appellant came to him and told him that if the police questioned him to tell the officers that appellant, George West, Champ Hillman and Richard Randolph were with him at the time of the burglary and robbery. Hamm further testified that he was in the Franklin County Jail when he talked to Mr. Dexter Haney, the criminal investigator for the State of Alabama but no one suggested to him what to say when he took the witness stand and he was not told that he would get a lighter sentence if he testified at appellant’s trial.

There was no motion to suppress appellant’s confession; there was no motion to exclude the State’s evidence; there was no request for the affirmative charge; there was no motion for a new trial; there were no exceptions reserved to the Court’s oral charge to the jury, and there were no adverse rulings on the admission of evidence during the trial that contain any merit. In this posture of the record there is simply nothing to review by this Court. 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; Hall v. State, 57 Ala.App. 132, 326 So.2d 660.

The weight of the evidence, the credibility of witnesses and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Braswell v. State, 51 Ala.App. 179, 283 So.2d 630.

Alibi evidence, like all evidence in a criminal prosecution, is a matter for the jury to resolve. Price v. State, supra.

In face of testimony of witness that the defendant confessed to the crime and that no threats or inducements were made to the accused to obtain it, and in absence of evidence of threats, promises of reward or other inducements, appellant’s confession was admissible as voluntary. Rogers v. State, 275 Ala. 588, 157 So.2d 13; Smith v. State, 253 Ala. 220, 43 So.2d 821.

We find no reversible error in the record and the judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


text:
    Matthew WINDLE v. STATE.
    3 Div. 483.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.

      George H. B. Mathews, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

The only question presented by appellant is whether the judgment of conviction should be reversed by reason of the omission from the court’s oral charge (to which there was neither an objection nor an exception) of the principle that .the presumption of innocence attends defendant as a matter of evidence.

Appellant leans heavily upon Davis v. State, 284 Ala. 135, 222 So.2d 719 (1969), in which it was held that the refusal to give a written charge that defendant “ . . . is presumed by law to be innocent, and that presumption of innocence attends him, as a matter of evidence . . . ” was reversible error, in the absence of a covering of the principle by some portion of the court’s oral charge or by some given written charge.

Neither in the oral charge nor in any written charge given in this case was it stated that the presumption of innocence attends a defendant as a matter of evidence.

Appellant cites Jones v. U. S., 113 U.S. App.D.C. 352, 308 F.2d 307 (1962); U. S. v. Levy, 153 F.2d 995 (3d Cir. 1946); Findley v. U. S., 362 F.2d 921 (10th Cir. 1966), in support of his contention that even in the absence of a request for a particular instruction and in the absence of any objection or exception to the court’s oral charge, there can be an omission of such important principles as to necessitate a reversal. In Jones and Findley, there was a failure to make it clear to the jury that the burden of proof was upon the state to convince the jury beyond a reasonable doubt of the existence of a particular essential element of the crime charged. Although the trial court charged generally on the necessity for proof of the crime charged beyond a reasonable doubt, the charge as a whole could have reasonably been construed to the effect that it was not necessary to prove beyond a reasonable doubt the existence of one particular essential element thereof. In U. S. v. Levy, supra, it was said:

“The case appears to have been tried to the jury upon the inadvertent assumption of both court and counsel that if the whiskey was sold above a certain price the sale would be illegal. But the basis for the illegality was never given to the jury.”

The crime charged in the instant case was murder in the first degree. The defendant was convicted of murder in the second degree. The court charged fully and correctly as to the elements of murder in both degrees and manslaughter in both degrees. The court stated in its oral charge:

“Now, we will move to the questions of law that are applicable in this factual situation this defendant is charged in an indictment; a document I display to you at this time. It is a written document. This written document is nothing more than the form used to record a charge against a defendant. It is not evidence for or against anyone. And when someone is charged with an indictment with a criminal offense, they are immediately presumed to be innocent. Everyone charged in our system with the commission of a crime is presumed innocent of that crime. That presumption of innocence places, therefore, upon the prosecuting authorities—the people bringing the charge, which in this case is the State of Alabama claiming that this defendant is guilty of the offense of murder, and that such an offense is against the peace and dignity of the State of Alabama. Now that prosecuting authority is immediately placed, also, with a burden. That burden is designed to overcome the presumption of innocence. And the burden of proof is in effect, to say that the evidence must convince the jury beyond a reasonable doubt before that presumption of innocence is overcome and before the jury would be authorized to return a verdict of guilty. That expression, beyond a reasonable doubt, is the measure of proof required in our system of law as it pertains to criminal matters. To, once again, successfully meet the burden of proof imposed upon the authorities—namely, the State of Alabama—and, also, to overcome the presumption of innocence.”

Immediately thereafter, almost two record pages of the charge are devoted to the necessity for the jury to be convinced by the evidence beyond a reasonable doubt of defendant’s guilt and an explanation of the term “reasonable doubt.”

We would readily go as far as Davis v. State, supra, but we can go no further. We have no authority for the proposition that the importance of the principle that the presumption of innocence attends defendant as a matter of evidence is so transcendent as to make it impervious to well established rules governing trials of criminal cases. If a party desires the trial court to extend its oral charge to cover some particular principle of law, his remedy is to request a written charge on the subject. Smith v. State, 53 Ala.App. 657, 303 So.2d 157; Gray v. State, 52 Ala.App. 481, 294 So.2d 448; Bonner v. State, 52 Ala.App. 346, 292 So.2d 460, cert. denied 292 Ala. 713, 292 So.2d 463; Edwards v. State, 51 Ala.App. 433, 286 So.2d 308, cert. denied, 291 Ala. 777, 286 So.2d 313.

We have searched the record for any 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.


text:
    Venice MOORE v. STATE.
    4 Div. 434.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.

      Myron H. Thompson, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Moore was convicted of robbery and sentenced to ten years imprisonment. With court-appointed counsel present at arraignment appellant pleaded not guilty. After conviction he gave notice of appeal and he is in this Court with a free transcript. Trial counsel was appointed to represent him on appeal.

The facts are undisputed. Appellant did not testify or offer any evidence in his behalf.

The State’s evidence, according to the victim, was that on the night of November 11, 1974, Johnny Reeves, the victim, and one Tom Richards, were sitting in Reeves’ car near John Baker’s Cafe in Abbeville, Henry County, Alabama. Reeves did not have his driver’s license with him at the time and that is the reason Richards was driving the car. While they were parked at Baker’s Cafe, appellant, whom the victim did not know, came to the car and asked Richards for a ride home. Richards knew appellant and agreed to take him home. Reeves was on the passenger side in the front seat and appellant got in the back seat directly behind Reeves. After Richards had driven for a while, appellant told him to pull over and stop the car. As the car stopped, Reeves felt cold metal on the back of his neck. The victim caught a glimpse of the gun in appellant’s hand when he turned around. Appellant ordered both Richards and Reeves to get out of the car and told Reeves to put his hands against the side of the car. Reeves still felt the gun against his neck as appellant reached in his back pocket and removed his wallet which contained $18.00 made up of three five-dollar bills and three one-dollar bills. Moore then asked Richards for his wallet and Richards told him it was at home. Appellant told Richards to “go get your pocketbook,” and, “if you don’t come back, then you will have a dead buddy.”

All three men got back in the car and while riding behind the county courthouse, apparently on their way to get Richards’ wallet, Reeves jumped out the car and ran behind it. They were almost in front of the old Police Department. A police officer on duty heard a disturbance and heard someone say something about a gun and he went out to investigate. After Reeves jumped out of the car, Richards parked the car. The officer approached the car and found appellant sitting in the back seat. He ordered appellant out of the car and searched him and found $18.00—three five-dollar bills and three one-dollar bills. The officer looked in the back seat of the car and found a .38 Smith and Wesson pistol and an empty wallet. Appellant was arrested and carried to jail where the officer gave him the Miranda rights and warnings by reading his Constitutional rights to him from a card he had in his possession.

The officer further testified that when he first saw Reeves, he was crawling from around the back of the car on his hands and knees and he looked “frightened to death.” Reeves testified he was scared when the pistol was pressed against his neck.

Richards testified and corroborated the testimony of Reeves in many details except as to the number of times they stopped after leaving Baker’s Cafe and he also stated he did not see a pistol that night. He admitted that appellant ordered him to stop the car and made Reeves get out and put his hands on the side of the car. He also admitted appellant asked him for his wallet and he told him it was at home.

Reeves testified that before appellant’s trial appellant came to him and offered him $300.00 if he would drop the charges against him and to go tell his lawyer that he was not guilty.

The pistol was introduced in evidence over appellant’s objections that it was not identified as belonging to the defendant and was used by him in the robbery. This objection was overruled and rightly so as the gun was found in the back seat of the car where appellant was found at the time he was arrested.

Appellant moved to exclude the State’s evidence on the ground that a prima facie case had not been made out against appellant. This motion was overruled.

The three essential elements of the crime of robbery are: (1) felonious intent, (2) force, or putting in fear as a means of effecting the intent, and (3) by that means of taking and carrying away of the personal property of another from his person or in his presence, all of these elements concurring in point of time. Cobern v. State, 273 Ala. 547, 142 So.2d 869; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382; Johnson v. State, 54 Ala.App. 586, 310 So.2d 509.

The testimony adduced by the State proved all the material elements of the offense charged and the trial court properly overruled appellant’s motion to exclude the State’s evidence. Tarver v. State, 53 Ala.App. 661, 303 So.2d 161; Rayford v. State, 53 Ala.App. 86, 297 So.2d 409.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Bolton v. State, 21 Ala.App. 373, 108 So. 631; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

There is no error in the record and the judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.