author: SHORES, Justice. FAULKNER, Justice

text:
    In re Jesse Ray CLEMMONS v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1050.
    Supreme Court of Alabama.
    May 22, 1975.
    Rehearing Denied June 19, 1975.

      William J. Baxley, Atty. Gen. and John M. Gruenewald, Asst. Atty. Gen., for the State.
    H. Edward McFerrin, Greenville, for respondent.
   SHORES, Justice.

Defendant, Jesse Ray Clemmons, was indicted by the Grand Jury of Butler County, Alabama, on May 9, 1973, for first degree murder. He was found guilty of second degree murder and was sentenced to thirty years in the penitentiary. He appealed to the Court of Criminal Appeals, which remanded the case to the circuit court for an investigation and examination of the defendant at a hearing for a determination to be made by the trial court whether, in its discretion, he should be treated as a youthful offender under Tit. 15, §§ 266(l)-(6), Code.

The State filed a petition for writ of certiorari which we granted because of the apparent conflict between Morgan v. State, 291 Ala. 764, 287 So.2d 914 (1973); and Armstrong v. State, 49 Ala.App. 720, 275 So.2d 698 (1972), cert. den. 290 Ala. 256, 275 So.2d 702 (1973).

The record shows that the defendant was nineteen years old at the time of the commission of the act and twenty years old at the time of the trial. There is nothing in the record to indicate that the defendant asked to be treated as a youthful offender under the statute, or that the Youthful Offender Act was called to his attention by the trial court.

Squarely presented, therefore, is the question of whether it is mandatory for the trial court to call the Act to the attention of the defendant, as dictum in Morgan, supra, seems to indicate, or whether Armstrong, supra, controls, which held that the defendant could not raise for the first time on appeal the failure of the trial court to afford him the benefit of the Youthful Offender Act.

The statute provides:

“§266(1). Investigation by court; consent of minor to examination and trial without jury; arraignment as-youthful offender. — A person charged with a crime which was committed in his minority but was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence' of commitment for one year or more shall —and, if charged with a lesser crime, may — be investigated and examined by the court to determine whether he should be tried as a youthful offender, provided he consents to such examination and to trial without a jury where trial by jury would otherwise be available to him. If the defendant consents and the court so decides, no further action shall be taken on the indictment or information unless otherwise ordered by the court as herein provided. After such investigation and examination, the court in its discretion may direct that the defendant be arraigned as a youthful offender, and no further action shall be taken on the indictment or information; or the court may decide that the defendant shall not be arraigned as a youthful offender, whereupon the indictment or information shall be deemed filed.”

In Morgan, supra, the following statement appears:

“The Act therefore charges the trial judge with the duty to refer any person under 21 years of age, whose case has not been disposed of in the juvenile court and who is charged with a crime involving moral turpitude or is subject to a sentence of confinement for one year or more, to a probation officer to make such investigation requested by the court. Referral in such event is not discretionary, but mandatory, on the part of the trial judge. After the investigation, if the youth consents to examination by the court and trial without a jury, and the court so decides, no further action is taken on the indictment or information unless ordered by the court. After investigation and examination, it is within the discretion of the trial judge whether the youth shall be tried as a youthful offender. The duty is upon the trial judge to call the Act to the attention of the youthful offender, just as much as it is the duty of the trial judge to explain to a defendant his constitutional rights when he enters a plea of guilty.” (291 Ala. at 765, 287 So.2d at 915)

The language of the statute is clear that a person charged with a crime committed in his minority (and not disposed of in juvenile court and) which involves moral turpitude or is subject to a sentence for one year or more shall be investigated and examined by the trial court to determine whether he should be afforded youthful offender status. The defendant must consent to the investigation and examination.

We have been cited to no statute from any other state which makes such an investigation and examination mandatory if the defendant consents. A similar New York statute, which has now been repealed and replaced by a much more workable one, reads in part as follows:

“ . . .In any case where a grand jury has found an indictment and it shall appear that the defendant is a youth, the grand jury or the district attorney may recommend to the court to which the indictment was returned . . . that the defendant be investigated for the purpose of determining whether he is eligible to be adjudged a youthful offender.
“3. If the court approves the recommendation of the grand jury or the district attorney, or, if the court on its own motion determines that the defendant shoxild he investigated hereunder the indictment . . . shall be held in abeyance . . .” (Emphasis Supplied) The Code of Criminal Procedure, § 913-g.

It is obvious that the New York statute left the determination to order an investigation to the discretion of the trial court. People v. Roberts, 35 A.D.2d 760, 315 N.Y.S.2d 208 (1970); People v. Judd, 61 Misc.2d 180, 305 N.Y.S.2d 316 (1969).

While our statute seems to require an investigation in certain cases, we do not read it to require the trial court to order an investigation by a probation officer in every case. In fact, § 266(5) of Tit. 15 places a duty on the probation officers to make such investigations as requested by the court. We read this to mean that referral to the probation officer for an investigation is a discretionary matter with the trial court, not mandatory as Morgan seems to suggest.

As we read the statute, the requirement that an investigation be made means only that the trial court should conduct or order such investigation as is necessary in each case, including an investigation by the probation officer, if it sees fit, but not necessarily, for the development of such facts as are required for a determination of whether the defendant is eligible for youthful offender treatment.

Obviously, the court will not require an investigation by a probation officer in every case. In many cases, sufficient facts for a determination will be available without a probation officer’s report.

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.

We do not believe the legislature intended that each case must be referred to a probation officer for an investigation. Nor do we read the statute to require a full, formal hearing in every case. All that is required of the trial court, assuming the defendant consents, is such investigation and examination of the defendant as is sufficient to enable the judge to make an intelligent determination of whether, in his discretion, the defendant is eligible to be treated as a youthful offender, rather than being tried, and if found guilty, sentenced in the normal criminal process.

Most of the states which have attempted to deal with the matter of older adolescents charged with crime follow the English system under which no step in the youthful offender process is taken until conviction. Cal.Welf. & Inst’ns Code, § 1700 et seq., (Deering Supp.1971) ; Mass.Ann.Laws, Chap. 120 (Supp.1971) ; Minn.Stat.Ann., § 242.01 et seq., (Supp.1971); Wis.Stat., § 54.01 et seq. (1969). At that stage, those courts order a presentence investigation. Thereafter, and prior to pronouncing sentence, the court declares its finding on the youthful offender issue. This procedure is said to serve the primary purpose of the youthful offender process, which is to avoid, if feasible, conviction of the young offender for a “crime” and therefore save him the stigma attending criminal conviction.

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.

Unlike the New York statute, however, ours requires the consent of the defendant before the trial court is under the statutory mandate to investigate and examine him. Sequentially, then, the first step that the trial court takes under the scheme of the statute is to advise the defendant that he might be eligible for youthful offender treatment, but before a final determination on that issue can be made, the defendant must decide whether he consents to an investigation and examination. If the defendant does not consent to the investigation and examination, this ends the matter and trial on the indictment or information proceeds. If he does consent, meaningfully —which necessarily assumes that the statute is explained to him, either by his counsel or the court (People v. Marino, 51 Misc.2d 238, 273 N.Y.S.2d 5), and the court is of the opinion that the consent was voluntarily and intelligently made, it then makes or orders such investigation as it deems necessary and holds the examination. Then the court decides, in the exercise of sound discretion, whether the defendant, based upon such investigation and examination, should be treated as a youthful offender under the statute.

In the present case, the defendant has been tried by a jury and found guilty. He has been sentenced to the penitentiary. He was never apprised of the fact that he might be treated as a youthful offender under the statute. Therefore, on remand, the trial court should bring the defendant before it, should inform him of the provisions of the Youthful Offender Act, and that, if he desires, he may consent to an investigation and examination. If the defendant does not consent to the investigation, the judgment of conviction stands. If he does consent, the trial judge should initiate such investigation as he deems necessary. Upon completion of the investigation, he should then proceed to examine the defendant. If, in his discretion, he determines that the defendant is entitled to youthful offender treatment, the sentence imposed in the murder case should be set aside, and the defendant should be afforded youthful offender treatment under the provisions of the statute. If, after the investigation and examination, the court determines that the defendant is not entitled to youthful offender treatment, the judgment of conviction and the sentence imposed stand.

If, by reason of failure of the defendant to consent to the investigation and examination, or by reason of the trial court’s finding, after such investigation and examination, that he is not entitled to youthful offender treatment, the defendant has the right to renew his appeal in the Court of Criminal Appeals, which has retained jurisdiction of the cause, for a decision on the points not heretofore reviewed in that court on the original appeal.

To the extent that Armstrong, supra, is in conflict herewith, it is overruled. We disagree with the statement in Morgan, supra, set out above, that referral to a probation officer is mandatory. Nor do we believe, as Morgan can be read to suggest, that the requirement that the Youthful Offender Act be called to the defendant’s attention is mandated by the Constitution of the United States, or the Constitution of the State of Alabama. As we read the Act, this requirement is mandated by the Legislature.

Affirmed.

HEFLIN, C. J., MERRILL, BLOOD-WORTH, MADDOX, JONES and EM-BRY, JJ., and COLQUITT, Circuit Judge, sitting specially, concur.

FAULKNER, J., concurs in part and dissents in part.

ALMON, J., not sitting.

FAULKNER, Justice

(concurring in part and dissenting in part).

I concur in the result reached by the majority. But, I am still of the opinion that the investigation should be made by a probation officer. He is the most logical person under our system of criminal justice to conduct the investigation. It is not the duty of a trial judge to make investigations. His duty is to judge. I do not believe the legislature intended that the trial judge act as judge, investigator, and probation officer.

The majority opinion opens the gates for appeals which will be based on abuse of discretion on the subject of investigation of the youthful offender.

      . See Ex parte Raines (In re Raines v. State, 294 Ala. 360, 317 So.2d 559, this day decided, treating the jury trial issue.

      . Raines, supra, contains a commendable procedure, which may be helpful in appropriate situations.


source: Caselaw Access Project

license: Public Domain

text:
    Jesse Ray CLEMMONS v. STATE.
    3 Div. 272.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
   After return to remand 294 Ala. 746, 321 So.2d 238: affirmed without opinion.


author: ROBERT E. L. KEY, Circuit Judge.

text:
    Joe Nathan JACKSON, alias v. STATE.
    7 Div. 335.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oet. 28, 1975.

      Myron K. Allenstein, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   ROBERT E. L. KEY, Circuit Judge.

The appellant was indicted in the court below for the offense of robbery and being put to trial thereon was convicted for the included offense of grand larceny and sentenced to the penitentiary for a term of ten years. From this judgment and sentence appeal is prosecuted to this court.

Tanice S. Dunn, after visiting her mother, a patient at the Baptist Memorial Hospital in Gadsden, was waiting on the sidewalk in front of the hospital when her purse which contained certain items of personal property, including prescription birth control pills, all of which exceeded the value of $5.00, was snatched from her shoulder. The prescription had been filled for Mrs. Dunn; was so identified and was found afterwards in an automobile in which appellant was riding.

The identical assignments of error relating to the search of the automobile and the admission of its contents into evidence in this case were made in another case involving the same defendant who committed another offense of purse snatching at another time near the same hospital. This latter case has been before this court on a previous occasion and decided adversely to the contentions of the appellant, therefore, no useful purpose will be served by a discussion of these assignments. Jackson v. State, 55 Ala.App. 334, 315 So.2d 131.

The single question to be resolved by this appeal is whether or not the lineup conducted by the Gadsden Police Department on the day following the commission of the offense was so suggestive and illegal as to contaminate and corrupt the mind and recollection of the victim that her in-tracourt identification was without independent foundation and due to be excluded from consideration of the jury. This must be determined from the totality of the surrounding circumstances. Havard v. State, 50 Ala.App. 147, 277 So.2d 421, cert. den. 291 Ala. 781, 277 So.2d 423.

To support the total weight of circumstances theory appellant submits in brief several factors which he argues indicate an unnecessarily suggestive and therefore illegal lineup. We have examined the record with great care and have concluded that the victim had abundant opportunity for establishing an independent identification of the appellant; that constitutional standards worthy of emulation were adhered to and that, as a matter of law, the motions to suppress were properly denied and the case sent to the jury.

The first three factors assigned by appellant relate to alleged disparities of exclusion of certain physical types, colors and appearances. Exhibits to the record are a complete answer to these contentions and do not lend any weight to the appellant’s position.

One of the factors assigned concern the right of counsel to defendants in a lineup. It must be noted that this occurred on the day following the incident at which time appellant had not been charged therewith being under arrest at that time for disorderly conduct and only under investigation for the offense for which he was afterwards convicted. His right to counsel had not yet attached and his failure to have or waive counsel does not render the procedure illegal. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

On the other hand, the victim testified that as she stood on the sidewalk in front of the hospital, the appellant, wearing a derby-like hat, walked by her and she saw his face at a distance of not more than six or eight inches; that in ten or fifteen seconds the same person snatched her purse and fled to a waiting automobile which sped away. This automobile was after-wards stopped and its occupants, including the appellant, were arrested following information of the automobile and its license number being furnished to the police by State’s witness McDowell who had seen the automobile and the defendant in the hospital parking lot immediately prior to the purse snatching. The witness McDowell also identified the appellant in court although he did not attend the lineup.

The testimony of the victim also was clear and convincing and stood up under rigorous cross-examination. She had a good opportunity to observe the identity of the defendant prior to and at the time of the commission of the offense. There was no evidence of any substantial discrepancy between the defendant’s pre-lineup description and his actual description. Moreover, she testified that she recognized him immediately when she saw him in the lineup. We are of the opinion that the trial judge was correct in admitting the identification of the appellant by the victim. Dawson v. State, 47 Ala.App. 293, 253 So.2d 362.

We have considered the entire record under Code of Alabama 1940, Title 15, Section 389, and conclude that the judgment below is due to be affirmed.

The foregoing opinion was prepared by Honorable ROBERT E. L. KEY, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, as amended, and the Court has adopted his opinion as its own.

The judgment below is hereby affirmed.

All the Judges concur.


author: HARRIS, Judge.

text:
    Issiac BROWN v. STATE.
    3 Div. 386.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.

      Charles C. Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was put to trial upon an indictment charging murder in the first degree. At arraignment, attended by counsel, he pleaded not guilty. The jury returned a verdict finding appellant guilty of murder in the second degree and fixed his punishment at twenty-five years in the penitentiary. He gave notice of appeal but did not request the sentence be suspended pending appeal. He petitioned the court for a free transcript and a lawyer to represent him on appeal. He is in this court with a free transcript and trial counsel was appointed to represent him on appeal.

Appellant admitted that he shot the deceased twice with a .22 caliber pistol in the early morning hours of November 4, 1973, at the home of Mary Ella Williams located at 940 Lincoln Road in the city and county of Montgomery, Alabama. There were several eyewitnesses to the shooting. Several people spent the night at this address the night before the shooting. Most of them had been out on the town the night before and were drinking.

We do not consider it necessary to set out in detail the testimony of all the witnesses as the sufficiency of the evidence is not presented to us for review.

The state’s evidence tended to show that appellant and the deceased were arguing and cursing each other. According to the witnesses for the state the deceased was not armed with a weapon of any kind and was shot the first time by appellant while sitting in a chair, and had made no threats to do any injury to appellant; that after he was shot he fell on the floor on his back; that appellant was standing five or six feet from the deceased when the first shot was fired, and while lying on the floor mortally wounded, appellant walked over to him and shot him a second time. One of the witnesses told appellant not to shoot him again to which appellant replied, “let the-die.” Appellant then went in the back of the house and hid the pistol and left the house. Sometime later he returned to the house and showed a police officer where he hid the pistol. The officer took the pistol and arrested appellant and took him to police headquarters.

Appellant testified that the deceased threatened to kill him and ran his hand toward his pocket and was approaching him when he fired the first shot. His testimony was in conflict with all the other witnesses.

Dr. Richard A. Roper, the County Coroner, whose qualifications were admitted, stated that the cause of death was hemorrhage and shock associated with the gunshot wound to the chest.

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; there were no exceptions reserved to the oral charge of the court, and no adverse rulings on the admission of evidence during the trial. As a matter of fact, all of the photographs taken of the scene of the shooting, the pistol, the bullet recovered from the body of the deceased, and photographs of the dead body were introduced in evidence without objections. In this state of the record nothing is presented to this court to review. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Johnson v. State, 282 Ala. 584, 213 So.2d 644; Grant v. State, 46 Ala.App. 232, 239 So.2d 903; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613.

As we have pointed out appellant’s version of the shooting was in sharp conflict with the state’s evidence. This made a clear cut case for the jury to decide. Smith v. State, 51 Ala.App. 212, 283 So.2d 662.

The judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


text:
    Myrtle M. JONES v. STATE.
    1 Div. 597.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.

      Willis W. Holloway, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon a Solicitor’s Complaint which, omitting the formal parts, reads as follows:

“SOLICITOR’S COMPLAINT
Comes now the State of Alabama, by and through CHARLES A. GRAD-DICK, District Attorney for the Thirteenth Judicial Circuit of Alabama, and complains that within twelve months before the beginning of this prosecution, Myrtle M. Jones did visit or resort to a barred or barricaded house or room or place built or protected or equipped in the manner described in this section, (Section 296, Title 14,) where cards, dice, roulette wheel or to her gaming implements were kept or exhibited or exposed to view when said Myrtle M. Jones visited or resorted to such place for the purpose of gaming in Mobile County, Alabama contrary to law and against the peace and dignity of the State of Alabama.”

The statute under which this complaint was drawn is Title 14, Section 296, Code of Alabama 1940, which provides:

“Exhibiting gambling devices in barred house, or where speaking tubes or electric signals are used. — No person or persons shall exhibit or expose to view in any barred or barricaded house or room, in any place built or constructed in such manner as to make it difficult of access or ingress to police officers or other officers, or protected, furnished, or equipped with speaking tubes, dumb waiters, electric wires or bells, or other apparatus for giving alarm from the outside or from the inside of such house, or room when two or more persons are present, any cards, dice, roulette wheel, or any gambling implements whatever. Any person violating the provisions of this section shall be guilty of a felony, and shall be punished by imprisonment in the penitentiary for not less than one nor more than five years; and all persons who visit or resort to any such barred or barricaded house or room, or other place that is built or protected or equipped in the manner described in this section and where any cards, dice, roulette wheel or any gaming implements whatever are kept or exhibited or exposed to view when said persons visit or resort to such place for the purpose of gaming, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than fifty nor more than three hundred dollars, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months." (Emphasis supplied.)

The facts are uncontradicted. Sergeant Elverd J. Gosdin testified that on December 27, 1974, he was employed by the Alabama Department of Public Safety, Bureau of Investigation and had been so employed for fifteen years. He stated he had worked as a state trooper and was the Governor’s bodyguard for three years. That he worked narcotics for four years and had been a general investigation officer since 1970. That since 1970 he had investigated burglaries, murders, robberies, major crimes, and gambling. He said that in the performance of his duties he worked with other law enforcement agencies including various police departments, the F. B.I. and other state enforcement officers.

He further testified that on December 27, 1974, he was working with a gambling detail with the Mobile Police Department and on that night around ten o’clock he had occasion to go to a place behind Broadus Fruit Stand on the Old Shell Road in Mobile.

From the record:

“Q How did you make your entrance?
“A I came- — entered the rear by about an eighteen inch wide door, just a piece of exterior panel. The cash register is down here and I believe there is a small —I believe about a 12 inch square window with an open and shut solid door. There is where I came in and asked the proprietor lady at the cash register to tell Bill that Boots was coming in.
“Q That is Bill — someone in the
“A Broadus. And she stated that she remembered me; I was there the week before, wasn’t I, and I said that I was and she said well go ahead, so I come in this way and come into towards here which is a solid wood door with a small hole in the top, just a cut out hole.
Somebody looked out the door and removed the bar and I was admitted into the room. When you get inside the room there is a small room here then, a short partition in the door. Then, there is a door here. There is a partition that comes down here to here. There is a table or a bar in this area. There is a converted pool table here, and it was a round poker table here.
“Q How many entrances are there to this room?
“A Only one entrance.
“Q And that is this way ?
“A Yes.
“Q Is it right here ?
“A Yes, sir; you go around through the market back behind the cooler and some supplies are stacked up this window here. It should be up more, but this small window overlooked the poker table.
“Q Now, if you would, Mr. Gosdin, describe the entrance here — the door or any other ?
“A This door as I said, is a solid wooden door with a small hole cut in where you can see from inside out and then on each side of the door they had boards nailed up — I believe one by four’s; had a small two by four with a long one by four, running up with a slot with a two by four to step down into this- — to keep the door shut.
“Q After you entered, was there a bar put back up?
“A After I entered, it was replaced. It was taken down and I was admitted and it was replaced.
“Q And that is the only entrance — exit into the room?
“A Yes.
“Q Besides this small .
“A Yes, well this is just a small, about a twelve inch square window just for handing in drinks and things like this.
“Q Now, if you would, describe the inside of the room.
“A Inside is a large square room basically square, I would say, approximately 20 feet square as you come in. You have a door to the right down here into the bedroom. Then, there is no closed door, anything, just some dividers up, but you can see the poker table and you can see the crap table once you get inside the door.
“Q All this opened to what inside?
“A Yes, once you walk inside the door, you can see the poker table standing there.
“Q If you would, describe these tables you mentioned.
“A This table is just a round, what I would call, just a round poker table. This table is a pool table that has been converted for shooting crap. It has about a twelve inch board that fits down inside. It has a one line across the center; and no other marks on the table.
“Q What about this third table that you have?
“A Well, this was just a long table up here against this wall over here. This is a bar — you know, about so high.
“Q Was there any activity on the night you were there, December 27, surrounding these tables?
“A Yes.
“Q Describe that.
“A People sitting two or three people sitting at the round table, but there was no gambling going on. All the activity was at the crap table.
“Q And would you explain what you observed there?
“A I observed twelve to twenty people there shooting crap.
“Q Did you see who was involved ?
“A Did I see? Yes, shooting dice and betting money.
“Q And you observed money on the table?
“A Yes.
“Q Did you participate in this?
“A Yes.
“Q On that night, did you have occasion to see the defendant in this place?
“A Yes, I did.
“Q Where did you see her?
“A At the dice table.
“Q In this room we are speaking of?
“A Yes.
“Q Did you observe her at this time?
“A Yes, I did.
“Q What was that?
“A She was placing bets and shooting dice.
“Q Were there other people around her?
“A Yes.
“Q Mr. Gosdin, later that night, did your office along with the Mobile Police Department lead to the arrest of the lady?
“A Yes, sir; it did.
“Q Gambling ?
“A Yes.”

On cross-examination he was asked if the place where he saw people rolling or shooting dice was the West Mobile Social Club, Incorporated and he replied that he did not know but had been told that it was a private incorporated club. That he was in this place about a week before as the guest of one of the members of the club.

On re-direct examination he testified that he was not a member of the West Mobile Social Club and was not required to show a membership card on being permitted to enter the place.

The state rested and counsel for appellant stated:

“MR. HOLLOWAY: Judge, I move to exclude the state’s evidence and discharge the defendant based on the following reasons, separately and severally: one, a failure of the state to prove a pri-ma facie case. Two, a failure of the state to prove each and every material allegation of the complaint.”

The court denied the motion.

Appellant then introduced in evidence the Articles of Incorporation of the West Mobile Social Club. It was stipulated that appellant’s name was on the membership register of the club.

Appellant called Mr. William Bekurs as a witness for the defense. He testified that he was Chief Investigator for the Mobile County District Attorney’s Office. He gave the names of all individuals who were arrested on the night of December 27, 1974. Eighteen persons were arrested including appellant.

On cross-examination he testified that they had this place under observation for a period of several months and had observed numerous persons coming and going.

This was all the evidence in the case and appellant again made a motion to exclude, the state’s evidence on the same grounds above set out. The motion was denied.

The court adjudged appellant guilty and assessed a fine of $50.00 and upon default in the payment of the fine, she was sentenced to imprisonment in the Mobile County Jail for a term of twenty days.

On this appeal appellant makes no contention that Sergeant Gosdin was at a place where he had no right to be.

Her major contention is that Title 14, Section 296, Code of Alabama 1940, is vague and overbroad and constitutes an invasion of the rights of privacy. We do not agree.

The “police power” is power of self-protection on the part of the community, and while police power is not paramount to the constitution, its free exercise is never interfered with, unless plainly in conflict with higher law, and courts generally are indisposed to suffer its impairment or defeat by constitutional limitations. State v. Murphy, 237 Ala. 332, 186 So. 487; Blackwell v. State, 230 Ala. 139, 162 So. 310.

“Dice” which are defined as “small cubes used in gaming, or in determining by chance” constitutes a gambling device within the purview of Title 14, Section 296, supra; Jones v. State, 26 Ala. 155.

That the place where appellant was arrested while shooting dice was a barred or barricaded house or room cannot be successfully gainsaid under the testimony of Sergeant Gosdin and it certainly cannot enjoy the protection of a private home. Ingram v. State, 45 Ala.App. 108, 226 So.2d 169.

The courts take judicial knowledge that gambling or running a gaming table is illegal. Cook v. State, 269 Ala. 646, 115 So.2d 101.

It is common knowledge that the gambling evil is often carried on in devious channels. Agnesia v. State, 35 Ala.App. 264, 45 So.2d 712.

What the Supreme Court said in Davidson v. Phelps, 214 Ala. 236, 107 So. 86, is completely applicable to this case. There the court said:

“In the exercise of the police power of the state, there is left to the lawmaking power a wide latitude of discretion, and we are not persuaded the Legislature has overstepped the bounds in the enactment of this law. We conclude in favor of its validity.”

Accordingly, the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


author: CATES, Presiding Judge.

text:
    Mary Frances HOUSTON v. STATE.
    6 Div. 953.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Sheffield & Dunn, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and David L. Weathers, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Under Supreme Court Rule 37 the Attorney General has moved that we strike the record as tardily filed and consequently dismiss the appeal. The motion sets forth the grounds as follows:

“1. For that appellant was convicted in the Circuit Court of Jefferson County, Alabama, on the 6th day of December, 1974.
2. For that the appellant was sentenced and gave notice of appeal on the 6th day of December, 1974.
3. For that the record does not reflect the filing of a motion to extend the time for the filing of the court reporter’s transcript of the evidence, nor does the record reflect an order of the trial court granting an extension for the filing of said transcript.
4. For that a motion for new trial was filed by the appellant on the 10th day of January, 1975.
5. For that the motion for new trial was overruled on the 11th day of March, 1975.
6. For that the record was not filed in this court until the 30th day of June, 1975, which is more than 60 days from the ruling on the motion for new trial.
7. For that it affirmatively appears that the record in this case was not filed according to law.”

Code 1940, T. 13, § 119 controls the time for moving for a new trial in the circuit court. Thirty days after rendition of judgment in Jefferson County the trial court loses “all power over it, as completely as if the end of the term had been on that day, unless a motion to * * * grant a new trial has been filed and called to the attention of the court, etc.” See also, Michie’s Code T. 7, § 827(1) et seq. and Relf v. State, 267 Ala. 3, 99 So.2d 216.

Appellant is not before us in forma pau-peris. Hadley v. State, 288 Ala. 293, 259 So.2d 853, cert. den. 409 U.S. 937, 93 S.Ct. 245, 34 L.Ed.2d 190.

Since the motion for new trial was filed beyond the thirty day period it was a nullity. Hence, the time allowable to get the record to this Court started running on the day the judgment of conviction was rendered, December 6, 1974. The filing on June 30, 1975 was too late. The State’s motion is well taken. Nor do we have the discretion to ignore it.

Motion granted; record stricken; appeal dismissed.

All the Judges concur.


text:
    Willie Arthur POWERS, alias v. STATE.
    5 Div. 311.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Robert M. Harper, Auburn, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to ten years imprisonment in the penitentiary. He was represented by retained counsel and at arraignment he pleaded not guilty. After conviction and sentence he made known to the court that he was not going to take an appeal. Later he changed his mind and gave written notice of appeal. He was found to be indigent and a free transcript was furnished him. Trial counsel was appointed to represent him on appeal.

Mr. Ronald E. Pugh was night clerk and auditor of the Opelika Ramada Inn located on Alabama Highway 280 just off Interstate 85 in Lee County. His hours of employment were from 11:00 o’clock p. m., until 7:00 o’clock a. m. Around 2:00 a. m. on December 9, 1974, two Negro men came to the registration desk where Mr. Pugh was standing and asked him if he had rooms available and he told them yes. One of the men asked him if he had change for a fifty dollar bill and he replied in the affirmative. At this point the man pulled a pistol and pointed it directly at Mr. Pugh and told him to lie flat on the floor on his stomach, and he complied with the order. The man with the pistol was subsequently identified as appellant.

The robbers could not open the cash register and one of them ordered Mr. Pugh to open it and he reached up from his position on the floor behind the counter and opened it. He heard the men getting the money. After getting the money, the robbers snatched the telephone cord and tied Mr. Pugh’s hands behind him and they tied his feet together with a long cord from a calculator. They told him if he moved they would “mess him up.” Mr. Pugh was alone at the time of the robbery and the lobby was well lighted. He got a good look at the men at close quarters. He noticed one of the men was wearing a black leather coat.

It took Mr. Pugh two to three minutes to untie his hands and feet and he got to the telephone switchboard and called the Opelika Police Department. The officers responded immediately and he gave them a description of the men who robbed him. The officers put out a radio dispatch to all stations and units in the area surrounding Lee County giving a description of the robbers.

Mr. Pugh found around $178.00 missing from the cash register along with a bank bag with the name, “Opelika National Bank Bag”, inscribed on the outside of the bag.

Mr. Pugh made a positive in-court identification of appellant as one of the men who robbed him and the one with the pistol pointed on him.

Mr. William O. Weaver of the Opelika Police Department was not on duty on the morning of the robbery but was riding in a car with Mr. J. C. Dodgen, a Deputy Sheriff of Chambers County. They were on Highway 29 just off Interstate 85 when they picked up the radio dispatch giving a description of two black men who had just robbed the Ramada Inn in Opelika. They observed an automobile on Interstate 85 traveling at a high rate of speed. They gave chase and turned on the blue light and stopped the car. Dodgen got out of his marked car and walked up to the driver’s side of the stopped car and asked the driver to get out. The driver was appellant and when he opened the door to get out, the dome light came on and he saw a black leather coat laying on the back seat of the car in plain view. The officer asked him for his driver’s license and he said he did not have one. He pulled out a ticket that a State Trooper had given him for not having a driver’s license. Appellant was placed under arrest for speeding and not having a .valid driver’s license and put in the Deputy’s car along with his companion. The Deputy and Weaver then made a search of the automobile and found a pistol on the floorboard on the driver’s side. They also found the bank bag with the inscription, “Opelika National Bank Bag”, on the outside. The car was stopped less than a half mile from the Georgia state line.

The officers took the pistol and the bank bag but did not remove the black leather coat from the rear seat. They radioed the Opelika Police Department to report they had in custody the two robbery suspects and officers from Opelika came to the scene and took custody of the suspects, the pistol and bank bag and transported the suspects to the Opelika jail. One of the officers drove the car appellant was driving to Opelika. This car had a North Carolina tag on it.

The search of the automobile was constitutionally valid under Daniels v. State, 290 Ala. 316, 276 So.2d 441, and the United States Supreme Court cases cited therein.

There was no error in overruling and denying appellant’s motion to exclude the state’s evidence. Young v. State, 283 Ala. 676, 220 So.2d 843.

Appellant did not testify but offered the testimony of three witnesses who testified to his good character. All of these witnesses testified they had known appellant all or most of his life and that his general reputation in the community prior to December 9, 1974, was good. They further testified that his general reputation for peace and quiet in the community was good.

The first character witness was asked if she had ever heard anything bad against him and she replied, “No, sir.” The other two character witnesses were asked the same question and the state objected and the court sustained the objections. Appellant claims this was error to reverse.

We are familiar with that long list of cases set forth in Singley v. State, 256 Ala. 56, 53 So.2d 729, that negative testimony as to good character is admissible but where a witness was permitted to testify to a fact we do not believe the court should be put in error in not allowing other witnesses to testify to the same facts.

The testimony of one witness that she had never heard anything bad against appellant was before the jury. She was from the same community as the other two witnesses who were not permitted to testify to the same facts. In our judgment the error, if any, was harmless to appellant.

We find no error in the record and the judgment of conviction must be affirmed.

Affirmed.

BOOKOUT, DeCARLO and TYSON, JJ., concur.

CATES, P. J., dissents.


text:
    Allen Lee BOUYER v. STATE.
    3 Div. 331.
    Court of Criminal Appeals of Alabama.
    May 6, 1975.
    Rehearing Denied Oct. 21, 1975.

      Charles C. Carlton, Montgomery, for appellant on original appeal.
    Allen Lee Bouyer, pro se, on application for rehearing.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., on original appeal.
    No brief for the State on application for rehearing.
   CATES, Presiding Judge.

I

On original examination we considered (and still consider) that Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 does not require counsel at lineup held before indictment or other formal accusation. We, on May 6, 1975, affirmed Allen Lee Bouyer’s conviction of first degree burglary.

II

In applying for rehearing pro se appellant who proceeds in forma pauperis requests appointment of a different counsel so as to prosecute an application for rehearing and a petition for certiorari to the Supreme Court of Alabama. Section 1 of Act No. 526, approved September 16, 1963 does not apply to capital cases. Whether or not, that reference in § 1 of that Act carries over to § 4 covering appellate counsel we believe to be answered negatively by the same reasoning given in Echols v. State, 47 Ala.App. 23, 249 So.2d 639.

Nevertheless, the last sentence of § 4 of said Act reads:

“It shall be the duty of such counsel as an officer of the court and as a member of the Bar to represent and assist said defendant in the appeal.” (Italics added).

This sentence means that the Legislature has ordered appointed counsel only for an appeal. See Queor v. Lee, 5 Cir., 382 F.2d 1017.

There is no requirement of the Fourteenth Amendment that a State furnish a pauper counsel beyond the first appeal. See Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 which arose under the two-tiered appellate system of North Carolina.

Application overruled.

All the Judges concur.

      . We also reviewed the whole record under the search the record for error statute. Code 1940, T. 15, § 389.

      . There was no compliance with Rule A, 49 Ala.App. XXI.


author: BOOKOUT, Judge.

text:
    Harry PEOPLES, alias v. STATE.
    3 Div. 379.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Edward B. Raymon, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery. Sentence: ten years imprisonment.

Bertha Stephens, the state’s first witness, testified that she was an employee of Boylston Food Market in Montgomery on the night of the robbery, December 3, 1974. At around 6:45 p. m., near closing time, she noticed a man, later identified as Lynn Williams, standing in the dairy section watching the employees of the market. She reported his suspicious conduct to the manager. Upon the manager inquiring if he could be of assistance, Williams left the store without making a purchase.

As Bertha Stephens left work around 7:00 p. m., she observed a light blue Mercury automobile with a dark vinyl top and a dent in the right fender. She said the car contained more than two black men, but she did not state where the car was located or whether Williams was an occupant. She later identified the car for the police, after the robbery.

On cross-examination, she testified that she did not see the appellant, Harry Peoples, at the market the night of the robbery. She could not identify him as being in the car and could not identify anyone in the car. The robbery took place shortly after she left work and therefore she was not present when it occurred.

Mr. Charles Gross, the owner-manager of the market, testified to the same facts, preceding the robbery, as Bertha Stephens. He further testified that shortly after 7:00 p. m., he was held up and robbed by either three or four black men. Two were wearing ski masks. They held him, his son, and a customer at gun point and robbed him of approximately $680. Around $75 or $80 was “rolled money”; apparently coins.

On cross-examination, Mr. Gross stated that he could not identify Peoples as one of the robbers; that he could not identify any of the robbers due to the masks.

Charles Gross, Jr. was working in his father’s market at the time of the robbery. He testified to essentially the same facts relating to the robbery as his father. He, likewise, could not recognize any of the robbers and could not identify Peoples.

Fletcher Duke, an off-duty deputy sheriff, was in the market as a customer at the time of the robbery. He saw three robbers but could not recognize or identify any of them as being Peoples. He was robbed of forty dollars.

Lynn Williams was called as a witness for the state and testified that the appellant participated in the robbery. He said that he, Peoples, and two others drove to the store, that he went in and looked over the store and reported back to the others. They were in a light blue Mercury with a dark blue top which one of the accomplices was driving.

After reporting to his accomplices, Williams said he stayed in the car and the others went in the store, stayed from five to fifteen minutes, and came back to the car at a fast pace. They then drove to the house of Linda Thomas where he saw some change emptied out on a rug. Williams said he did not see any ski masks or guns. He said Peoples was at the Thomas house with him and the others when the police came and that he ran, leaving Peoples in the house.

On cross-examination, Williams stated that he was also charged with robbery, but had not come to trial and was out on bond. He denied receiving a promise of any favorable consideration from the state in return for testifying against his co-defendants.

T. J. McClain testified that during December 1974, he was employed as a Montgomery City detective. Without specifying when, he testified that he came in contact with Peoples in a local motel room. He said that one of the other officers advised Peoples of his constitutional rights and then they removed from Peoples’ possession some $375.

The state rested and the defense moved to exclude the evidence on the ground that the uncorroborated testimony of Williams as an accomplice was insufficient to prove an offense pursuant to Title 15, Section 307, Code of Alabama 1940. The motion was denied and the defense presented its evidence.

Wendell Stokes, the first witness for the defense, admitted that he was involved in the robbery. Stokes testified that he robbed the store with Eugene Starks and Lynn Williams, but that Harry Peoples did not take part in the robbery. He testified that on the night of December 3rd he paid Peoples $110 for marijuana the appellant had sold him. After the robbery, he had called Peoples to come over to the Thomas home and get paid. Since Stokes had robbed the market, he had the money available and decided to pay the appellant. Peoples was at the Thomas house to pick up his money when the police arrived. Peoples apparently escaped and was arrested later at the motel. Nothing in Stokes’ testimony indicated that Peoples knew the source of the $110.

Stokes reiterated that he, Williams and Starks committed the robbery and that Peoples was not a participant. He said Lynn Williams did not remain in the car, but went in the market with him during the robbery.

On cross-examination Stokes denied that his testimony was influenced by the fact that Lynn Williams was the one who had implicated him in the robbery.

Eloise Boyd, mother of Harry Peoples, testified that in the middle of November 1974, she gave her son $300 from the proceeds of a $500 cash bond. She also testified that her son was at home from 6:00 p. m. to 8:00 p. m. on December 3, 1974. On cross-examination the witness testified that she gave her son the $300 because he had recently been released after five months in jail and he wanted to shop for his little girl for Christmas.

The defense called Peoples’ sister, Marie Watkins, who testified that on the 18th of November, 1974, she gave her brother $50 from her purse and went to the bank and got an additional $240 and gave him. A withdrawal slip was introduced into evidence showing the withdrawal of $240 dated November 18,1974.

The last witness called by the defense, Mrs. Pauline Eubanks, testified that she was the Circuit Clerk of Montgomery County, and that as part of her job she had access to, and keeps records pertaining to bonds, payment of bonds, and restitution of bonds, when someone is released from jail. Mrs. Eubanks testified that she paid $500 to Marie Watkins on November 14, 1975.

Appellant requested the affirmative charge with hypothesis which the trial court refused.

I

Both the motion to exclude the states’ evidence and the request that affirmative charge with hypothesis are sufficient to raise the issue of the use of uncorroborated testimony of an accomplice as a basis for conviction. Alexander v. State, 281 Ala. 457, 204 So.2d 488 (1967); Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966).

II

The sole issue presented is whether Lynn Williams’ testimony was corroborated by other evidence.

Title 15, Section 307 Code of Alabama 1940 provides:

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

In Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947) the Supreme Court of Alabama set forth the rule that:

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

In considering the question as to whether the trial court correctly overruled the motion to exclude, we can only consider the evidence which was before the trial court at the time the motion to exclude was made. Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968). We are required to consider the evidence in its most favorable light for the prosecution. Womack v. State, 34 Ala.App. 487, 41 So.2d 429 (1949).

Excluding the evidence of Lynn Williams, and considering the remaining evidence presented by the state in its most favorable light, we are left with only the fact that the appellant was in possession of some $375 at the time of his arrest.

The record fails to show when the appellant was arrested; whether it was the same night of the robbery or at some other time during the month of December.

In its proof, the state only asked the arresting officer if he was employed as a police officer during the month of December 1974. They then asked where the officer had occasion to come in contact with the appellant. Next, the officer testified that the appellant was in possession of the $375. For ought that appears in the record, the date of the arrest could have been December 31 of that year.

In Davis v. State, 44 Ala.App. 684, 220 So.2d 852, this Court cited McElroy’s Law of Evidence in Alabama (2nd Ed.), Section 50.01: “‘TRACES: POSSESSION OF MONEY AS EVIDENCE OF ITS ACQUISITION FROM A SPECIFIC SOURCE.

“ ‘The fact of a person’s possession of money without some fairly reasonable indication that the money was acquired from a particular source is not provable for the purpose of showing that he acquired it from such particular source, because the inference of such acquisition is too weak. Turner v. State, 124 Ala. 59, 27 So. 272 (larceny); Leath v. State, 132 Ala. 26, 31 So. 108 (forgery; good opinion by Sharpe, J.).
‘But if facts of the amount, denomination, and other circumstances of such possession, reasonably indicate in the circumstances of the case that the money was acquired from a relevant particular source, evidence of such facts is admissible.’ ”
Judge Cates, in the Davis opinion stated: “Under its burden to prove beyond a reasonable doubt and to moral certainty, the State in relying on the possession of money, should at least by implication reasonably exclude the sale of property, the opportunity and credit standing to borrow and the likelihood of gifts, social insurance payments or inheritances. The burden of proof on the general issue never shifts to a defendant.”

The word “corroboration” as used in Title 15, Section 307, supra, has been defined to mean “strengthen”, not necessarily to prove a specific fact testified to by the accomplice. Corroboration was generally not required at common law and therefore Section 307, supra, being in derogation of the common law must be strictly construed. Corroboration of the testimony of an accomplice need not be sufficiently strong of itself to support a conviction. It is sufficient if it tends to connect the accused with the offense. Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62 (1975), and authorities cited therein.

The mere fact that the appellant was in possession of $375, at some time during the month of December 1974, standing alone, does not sufficiently strengthen the testimony of the accomplice and does not tend to connect the accused with the offense.

The state failed to meet the burden of proof necessary to corroborate the testimony of the accomplice and pursuant to Title 15, Section 307, supra, the motion to exclude the state’s evidence should have been granted. Failure to do so constitutes reversible error.

Reversed and remanded.

All the Judges concur.


text:
    Albert HOUSTON v. STATE.
    3 Div. 387.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Joseph T. Carpenter, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Houston was tried and convicted of burglary and sentenced to the penitentiary for a term of two years. He was represented at arraignment and trial by court-appointed counsel. He pleaded not guilty. He gave notice of appeal .and was furnished a free transcript. He is represented in this court by new counsel.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment, ALBERT HOUSTON, alias ALBERT LEE HOUSTON, alias ALBERT McCREE, alias O. L. HOUSTON, alias A. L. HOUSTON, alias ALBERT L. HOUSTON, whose name is to the Grand Jury otherwise unknown, with intent to steal, broke into and entered the shop, store or warehouse of Alabama Fertilizer Corporation, a corporation, in which goods, wares, merchandise or things of value, were kept for use, sale or deposit, against the peace and dignity of the State of Alabama.”

Mr. Charles Scheuerman, owner of the Alabama Fertilizer Company, a corporation, went to mail a letter on Sunday, January 20, 1974, and stopped by the office of his company. He saw a white Ford parked by the building where he kept fertilizer. The trunk of the Ford was open and he started to the car. He did not see anyone in the car. At this point his attention was attracted to the door of the warehouse. He saw two black males swinging the sliding door from the bottom and propping the door open with a big rake. He stated the door had to be opened from the inside. He went immediately to his office and called the police department. The police arrived within five minutes after they were called.

He further testified that when he saw the two Negroes inside the warehouse propping the door open with the rake, he did not recognize them at that moment. When the police patrol car arrived, he observed the two adult Negroes and a teenage Negro boy running from the door of the warehouse to the white Ford. He heard the police say, “there they are,” and drove the patrol car toward the white Ford. The three Negroes got in the Ford and started driving away. They drove a short distance and got stuck in the mud. When the officers got to the Ford car, they ordered the occupants out and searched them for weapons. Mr. Scheuer-man recognized one of the Negroes, Ward Cleveland. Cleveland had worked for him off and on for many years. The time was 2:30 in the afternoon and Mr. Scheuerman got a good look at the trio and made a positive in-court identification of appellant as one of the men who helped Cleveland prop the door open to the warehouse where he kept his fertilizer.

At the time of appellant’s trial Cleveland had already pleaded guilty to burglary and had been sentenced to the penitentiary. The teen-age boy had been turned over to the proper authorities.

Officer Allan Bowen of the Montgomery Police Department and his partner Officer Lashley answered Mr. Scheuerman’s call and were the first officers to arrive at the scene. They went to the white Ford and Officer Lashley ordered the occupants out of the car. He had to order them to get out three times. The driver got out first followed by the other two. The officers walked them to another patrol car occupied by Officers Summers and Wingard who had gotten the original call. The white Ford was owned by appellant but he was sitting in the middle on the front seat when they were ordered by the police to get out of the car.

Officer Bowen identified appellant at his trial as one of the men he and Lashley ordered out of the white Ford.

Officer W. D. Summers, Jr. testified that when he and Officer Wingard arrived at the burglary scene, they took custody of the three men being held by Officers Bowen and Lashley. It was raining and Officer Summers took the three men' around to the front of the building to get them out of the rain where he read them their rights from a Miranda card he had in his possession. He stated that appellant was talking to Cleveland and he had to stop them from talking to be sure they heard and understood the Miranda warnings. This officer did not interrogate the three men but turned them over to Detectives Lisenby and Shirley who were dispatched to investigate the burglary. Detective Lisenby was present when Officer Summers was reading the Miranda warnings and he asked appellant if he understood those rights and appellant said he did. Detectives Lisenby and Shirley assisted the other officers in transporting the arrested persons to the Detective Division at police headquarters.

At the Detective Division office Detective Lisenby re-read appellant his rights from a printed card and asked him if he understood his rights and he said he did. Lisenby read him a waiver of rights form but he refused to sign it saying a lawyer had told him never to sign anything. Appellant said he didn’t want a lawyer but he would tell the truth about what happened. Detective Lisenby suggested to appellant that Lisenby write down what appellant had to say and appellant stated he would not make any statement if the detective was going to make notes while he was talking.

Two voir dire examinations were conducted out of the presence and hearing of the jury. At the conclusion of these hearings the court determined that appellant’s confession was freely, knowingly, intelligently and voluntarily made. After the proper predicate was laid Detective Lisen-by was permitted to relate to the jury appellant’s statement to him concerning the burglary.

From the record:

“Q. (By Mr. Branch) What did he tell you at that time ?
“A. He said that he and Ward Cleveland had been on Council Street at some house, and this young black male, aged fourteen, was with him and driving his car.
“Q. Driving the Defendant’s car ?
“A. Yes, sir.
“Q. Okay.
“A. That he drove the Defendant and Ward Cleveland down to Alabama Fertilizer.
“Q. Okay. Now, prior to the time they went down to Alabama Fertilizer, did he tell you about any arrangement with regard to any fertilizer ?
“A. Yes, sir.
“Q. What did he say ?
“A. He said that Ward Cleveland was to get fifteen bags of fertilizer and that he was to get fifteen bags of fertilizer.
“Q. All right. And then what happened ?
“A. They went to Alabama Fertilizer and drove around back of the plant and got out and went to the door that is only secured by, I believe, a bolt being on a hasp inside. They put the juvenile inside and removed the bolt—
“Q. Now, let’s see. I didn’t understand that.
“A. —The juvenile went in and removed the bolt.
“Q. Did he tell you how he got inside and removed the bolt?
“A. Yes, sir. They held the door back far enough, is my recollection, that he could get in. He was a real small person.
“Q. And he slid in the door ?
“A. Yes, sir.
“Q. All right.
“A. After the bolt was removed, they pulled the sliding door up from the bottom and placed some type of long handle to prop it open and went inside.
“Q. All right. Did he admit to you that he went inside ?
“A. Yes, sir.
“Q. And he admitted to you that he and the other person, Ward Cleveland, had a prearranged plan to steal a total of thirty bags of fertilizer?
“A. Yes, sir.”

When the state rested, appellant made a motion to exclude the state’s evidence on the ground the state had failed to make out a prima facie case. This motion was overruled and denied.

Appellant took the stand as the sole defense witness and denied ever getting out of his automobile at the warehouse. He denied any intention to steal fertilizer and denied having been read his rights at the scene of the crime. He denied making any incriminating statements to any detective.

He further testified that he had arthritis and that a friend had told him that he could mix a wild root with whiskey and make a good medicine for his arthritis, that Ward Cleveland told him that he had a pint of whiskey at the warehouse of the Alabama Fertilizer Company where he was employed and that he could have that whiskey for his arthritis. That he, Ward Cleveland, and a juvenile drove to the warehouse to get the whiskey. He stated that Cleveland and the juvenile got out of the car to go in the warehouse to get the whiskey and that he never got out of his car until the police arrived.

Where the evidence raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain a 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.

To constitute burglary, it is not necessary that a theft be actually committed. Waid v. State, 39 Ala.App. 255, 97 So.2d 598; Wicks v. State, 44 Ala. 398; Jackson v. State, 52 Ala.App. 667, 296 So. 2d 753.

Whether one gains or profits from the burglary is of no significance. Davis v. State, 283 Ala. 686, 220 So.2d 860; Jackson v. State, supra.

Appellant urges a reversal on the ground that his confession was not shown to be voluntary.

An extrajudicial confession, oral or written, is prima facie involuntary and inadmissible, and the duty rests in the first instance on the trial court to determine whether the confession is voluntary, and unless it so appears, it should not be admitted. Myhand v. State, 259 Ala. 415, 66 So.2d 544; Duncan v. State, 278 Ala. 145, 176 So.2d 840, 855, 856.

As we have pointed out appellant was given the Miranda rights and warnings on two occasions before he made an oral confession to Detective Lisenby, and the trial court conducted two voir dire hearings out of the presence and hearing of the jury before concluding the confession was voluntary.

The state laid the proper predicate for the introduction of the inculpatory statement. We hold that appellant knowingly and intelligently waived his right to counsel, and knowingly and voluntarily made the confessory statement. Embrey v. State, 283 Ala. 110, 214 So.2d 567; Luschen v. State, 51 Ala.App. 255, 284 So.2d 282; Jones v. State, 292 Ala. 126, 290 So.2d 165; Guenther v. State, 282 Ala. 620, 213 So.2d 679.

The judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


text:
    Charles Michael ELSTON v. STATE.
    7 Div. 345.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.

      John W. Vardaman, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOWEN SIMMONS, Supernumerary Circuit Judge.

The jury convicted appellant-defendant of robbery which was charged in an indictment. Punishment was fixed at ten years imprisonment. This appeal is from a proper judgment. Appellant, an indigent, was represented at nisi prius by appointed counsel and here also by appointed but different counsel.

Motion to Dismiss

Defendant at the beginning of his trial made an oral motion to dismiss the indictment for that he was denied a speedy trial. The motion was denied.

A stipulation of facts with respect to the motion is substantially as follows: (1) the alleged robbery occurred April 23, 1974; (2) defendant was arrested either on April 24 or 25, 1974; (3) bound over to grand jury during the week of May 8, 1974; (4) a grand jury met during the week of August 19, 1974; (5) a grand jury met again during the week of October 25, 1974, at which time appellant was indicted; (6) that defendant had appointed counsel for the trial of the case October 30, 1974, and also- on May 8, 1974, for the preliminary hearing.

Thus we observe that the earliest time he could have been indicted for the offense was by the grand jury convening August 19, 1974; approximately two months later he was indicted.

It appears in Barker v. Wingo, (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 that an inflexible rule cannot be used to establish a defendant’s right to a speedy trial, but can be done only on an ad hoc balancing basis, in which the conduct of the prosecution and that of the defendant are weighed. The court’s assessment should be based on factors (1) the length of and reason for the delay, (2) the defendant’s assertion of his right, and (3) prejudice to the defendant.

As we view the record, the delay here as shown by the stipulation did not cause any serious prejudice, in fact none at all as we observe, to defendant in the trial of his case; the delay was not unreasonable in the light of crowded trial dockets in jurisdictional courts. It is true defendant was in jail because he was unable to make bail that was authorized. This imprisonment, an inconvenience, was not necessarily prejudicial to his right of a speedy trial. Denial of the motion to dismiss the prosecution was free of error. Moulden v. State, 47 Ala.App. 573, 258 So.2d 915(1).

On the Merits

Appellant next contends that his lineup was illegally conducted for that he did not have counsel, and further that the behavior of the Assistant District Attorney at the lineup was questionable.

The state offered evidence at an in camera hearing that there were only two lineups instead of five, and that on each of the two lineups defendant was represented by appointed counsel. The court ruled against defendant’s contention that the lineups were illegally conducted. Haggler v. State, 49. Ala.App. 259, 270 So.2d 690; Shewey v. State, 48 Ala.App. 730, 267 So.2d 520(2); Havard v. State, 50 Ala.App. 147, 277 So.2d 421. In view of the fact that he heard the evidence ore tenus, we are unwilling to disturb his ruling.

An issue of fact as to the guilt or innocence of defendant was before the jury whose verdict was adverse to defendant’s contention of an alibi. We see no reason to disturb this verdict.

Appellant contends that argument of counsel for the state was injurious to him and that the court erroneously overruled his objection thereto; also the court committed error in denying his motion for a mistrial because of such argument.

We quote the argument:

“ . . . I submit to you ladies and gentlemen of the court that we were lucky no one was hurt in the robbery, and the next time that might not be true.”

This argument was reasonably calculated to call the jury’s attention to the serious aspect of the robbery and to appeal for law enforcement. It was within the realm of a legitimate appeal to the jury. The court’s ruling, supra, was not error.

Another assertion of error is the refusal of the trial court to give defendant’s written charge is as follows;

“I charge you members of the jury, that you must find the defendant not guilty, if the conduct of the defendant, upon a reasonable hypothesis is consistent with his innocence.”

This charge was fairly and substantially covered by other given charges submitted by the defendant; and also by the oral charge. Title 7, Section 273, Recompiled Code, 1958.

We think the judgment of the court free of error. It is affirmed.

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

The judgment below is hereby

Affirmed.

All the Judges concur.


author: TYSON, Judge.

text:
    Aaron HARRIS, Jr. v. STATE.
    6 Div. 788.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Richard D. Shinbaum, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Asst. Atty. Gen., for the State.
   TYSON, Judge.

Appellant, Aaron Harris, Jr., was indicted for the first degree murder of Alexander White by stabbing him with a knife. The jury found the appellant guilty of murder in the second degree and fixed punishment at forty years imprisonment. The trial court then entered its judgment, setting sentence in accordance with this verdict.

Ellen White testified that she lived at 1000 Twenty-Third Place North in the City of Birmingham and was the mother of one Alexander White. She testified that she last saw her son alive during the week after the week of July 4, 1972, that she did not see her son alive after July 16, 1972, that he was forty-one years of age, and resided in Jefferson County at the time of his death.

Larry Smith testified that he lived at 410 Goldwire Circle in the City of Birmingham, and was employed at Arco Welding Company. He stated that on July 16, 1972, he had gone to the home of one Gladys Clemmons, who resided in the Kingston section of the City of Birmingham, shortly after noontime on July 16, 1972. He stated that one Dorothy Faye Reynolds, the daughter of Gladys Clem-mons, was present, along with Johnny Fairley and the deceased, Alexander White, and that the parties were drinking and dancing. He stated that the appellant, Aaron Harris, Jr., came over the early part of the afternoon and joined them. He stated that late that afternoon he heard Dorothy Faye Reynolds yelling and screaming, that he ran into the kitchen part of the house and saw the appellant leaving the house with a butcher knife in his hand. He stated that the deceased, Alexander White, was bleeding from his right side and back, that he helped Dorothy Faye Reynolds ease the deceased to the floor where they attempted to put some towels on him, and called an ambulance. He stated that he saw the appellant later that evening at the Quick-Mart about 9:30, and that the appellant had left the home of Gladys Clemmons about 4:30 that afternoon after the incident.

Charles C. Robey testified that he was an employee of the Jefferson County Coroner’s Office on July 16, 1972. He testified that he saw the body of the deceased, Alexander White, in the autopsy room at University Hospital in Birmingham. He testified that he observed multiple stab wounds on the front and the back of the body, that Dr. Thomas A. Gaston was in attendance at the University Hospital, and had signed the death certificate, which showed death to have been caused by “cardiac arrest due to shock due to stab wound of thoratic aorta.” He testified that this was one of the main vessels leading from the heart to the middle of the body.

Johnny Fairley testified that on July 16, 1972, he was at 1880 North Forty-fourth Place in the City of Birmingham, the home of Gladys Clemmons. He testified that he went over there shortly after 12:00 midday, that three of the daughters of Gladys Clemmons were present, along with Alexander White, Aaron Harris, Jr., and himself. He described the interior design of the home. He testified that he last remembered seeing Alexander White in the living room talking with Aaron Harris, Jr., the appellant; that later he heard Dorothy Faye Reynolds cry out, that he then went into the room, that he saw the appellant leaving, and saw Dorothy Reynolds attempting to put towels on the person of the deceased, Alexander White. He testified that he saw a knife in the hand of the appellant, and that all of the parties had been drinking that afternoon.

Dorothy Archibald testified that she was also known as Dorothy Faye Reynolds and was the daughter of Gladys Clemmons. She stated that she was divorced and that she was at the home of her mother on July 16, 1972, when Larry Smith, and Johnny Fairley came over, along with Alexander White. She testified that a little later in the afternoon Aaron Harris, Jr., also came over, that the parties were all playing records and having some drinks. She testified that she saw Alexander White come out of the kitchen and then go back, that he was engaged in conversation with Aaron Harris, Jr. From the record:

“Q This conversation between Aaron and Alexander, how long did this conversation go on ?
“A About two or three words past. Aaron kept reaching over Alec and accidentally hitting or tipping him with his arm, you know. So he said 'Man, why don’t you stop reaching over me?’ and he started mumbling something.
“Q Now who started mumbling something ?
“A Aaron.
“Q Could you hear any of these words that you say he mumbled ?
“A I couldn’t understand what he was mumbling.
“Q All right. Go ahead.
“A My mother told Aaron to go in the front room and leave Alec alone.
“Q Then what happened ?
“A He mumbled something else. And he walked in the living room. He turned around and he went back in the kitchen.
“Q When you say he, who are you referring to ? '
“A Aaron. He walked back in the kitchen.
"Q Then what happened ?
“A Alec was fixing to get up and come into the living room and Aaron was saying something to him, so my mother told Aaron to leave Alec alone and Alec said, ‘Man, why don’t you leave me alone, I’m not bothering you.’ So Alec started to walk to the living room and Aaron was standing up. And just as Alec was walking to the living room Aaron backed to the kitchen sink and reached and got a knife and started stabbing at Alec.
“Q When you say he started stabbing at Alec, did you ever see him stab Alec?
“A Yes I did.
“Q Where was Alec when Aaron started stabbing him ?
“A He was standing by the refrigerator.
Q Is the refrigerator in the kitchen?
“A Yes.
“Q Where, in the kitchen, is the refrigerator ?
“A It’s by the entrance to the kitchen.
“Q What did Alec do while Aaron was stabbing him ?
“A He was trying to run.
“Q Which way was he going?
“A Toward the front door.
“Q Coming down this way (indicating diagram) ?
“A Yes.
“Q Did he ever get into the living room?
“A Yes.
“Q What happened after he got to the living room?
“A Just as he got to the living room Aaron caught him and he stabbed him in the back with the knife and I guess as he felt it he turned around and threw up his hands and Aaron kept on stabbing at him and Alec was backing up and Aaron kept on coming toward him, stabbing him. And he fell between the chair and the table in the living room. And when he fell Aaron just stood over him and was stabbing down at him.”

She testified that she screamed, “Leave him alone,” at the appellant, that she saw the appellant turn and run toward the front door, that she and one of the men eased Alexander White to the floor and began putting towels on his body. She testified that Alexander White did not have a knife or any other type of weapon, nor did she see him attempt to stab or hurt anyone. She testified that the appellant stabbed Alexander White with a long butcher knife.

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

Della Harris testified that she was the mother of Aaron Harris, Jr., and lived at 809 B Forty-fourth Place North in Birmingham. She testified that she remembered an incident on July 16, 1972, that her son had been at her home, and that he used to date a daughter of Gladys Clemmons by the name of Gerry. She testified that her home was directly across the street from the Clemmons home. She testified that she was cooking some barbeque and she saw her son leave to go over to the Clem-mons’ home. From the record:

“Q How did you first learn that any trouble had occurred over there at Gladys Clemmons’ house on this afternoon?
“A I was sitting on the back and the lady next door she run around and said Della go over there and see what’s happening over there. They’re in a fuss over there.
“Q So did you go over ?
“A Yes sir. I come to the door to go over there and when I come to the door to go over there Eddie was coming to the- door. He was wrapped up in blood. And he pushed out the door and he fell down right in the front door. And Aaron was coming up in my yard. And my son hit him and knocked the knife out of his hand and I grabbed the knife. He come walking fast behind me and I grabbed the knife and run and chunked it in my back yard. And I run on over there to Miss Gladys’ and I didn’t get no further than her porch. And Alex was still laying down there. And I looked into the house. I didn’t go in the house. I went on the last step and I seen Dorothy and Gerry. And I seen her son-in-law and another man. I didn’t know him. And Aaron was hit in the eye and cut on the arm and scarred all up.
“Q Are you saying Eddie was lying on the porch or Alex was lying on the porch ?
“A Eddie was lying on the porch.
“THE COURT: Who is Eddie ?
“MR. CORNELIUS: That’s what I’m trying to straighten out Your Honor.
“Q Are you talking about Alexander White?
“A I didn’t know him.
“Q The one you called Eddie is Alexander White, he was lying there on the porch ?
“A Yes sir.
“Q You say that Aaron came toward your house toward you ?
“A Yes sir. He was over there in the yard just that quick. I come to the door. He had already got over there and had the knife in his hand.”

James A. Harris, Jr., testified that he was a practicing attorney in the City of Birmingham. He testified that on July 17, 1972, he went to the Jefferson County Jail and there made some photographs of the appellant. He testified that there was a cut above the left elbow on the left arm of the appellant, and identified a photograph which depicted this.

Aaron Harris, Jr., testified that he was thirty-one years of age and had been at the home of his mother on July 16, 1972. He testified that Gerry Murray, one of the daughters of Gladys Clemmons, called him and asked him to come over about 1:30 that afternoon to the party. He testified that Roberta Clemmons and Alexander White were there, along with Dorothy Faye Reynolds and a guy named Johnny Fairley or Farris. He stated that all of them were there dancing and drinking that afternoon. He testified that they were in a discussion in the living room over some records. From the record:

“Q You mentioned a table on the left hand side. Are you talking about this table that has been drawn in on this diagram (indicating diagram) ?
“A I was sitting right along in there. I was sitting over there by that table there. Over in the living room. T was listening to records. And some record come up and they were talking about, you know, if they were in New York, you know, what they could do. And I brought up the conversation I said neither one of you ever been in New York, we never be nothing but tramps all our lives no way. Alec he got up like he was gonna go upstairs up some steps. They had a conversation for about a minute. You know a little conversation I’d say about a minute. And Fairley came back and he set over on the left hand side. Alec came back and he had a knife in his hand and I was trying to pull the sling up. Gonna keep the sling up high. And Alec he hit me up over the eye with the back of the knife and I got up and tried to ran. He was trying to cut at me. And I seen a knife in the kitchen over by the table and I grabbed it and turned around and started sticking him.
“Q Where were you when you testified that Alec hit you ?
“A I was along about in there by that table there.
“Q Were you standing up or sitting down ?
“A Sitting down.
“Q You say he struck you with the knife?
“A He struck me first up over the head. He hit me with the back of the knife.
“Q With the back of the knife ?
“A Yes sir.
“Q Did he, at that time, I will ask you whether or not he cut you with the knife ?
“A He didn’t cut me then after he hit me. I asked him what he was trying to do. Then when he hit at me with the knife he cut my arm and I got up and I started running through the kitchen. I seen a knife over there by the sink on the cabinet and I got the knife and I turned around and started stabbing.
“Q Had he cut you on the arm before you got into the kitchen ?
“MR. GARRETT: I object to that Your Honor.
“THE COURT: Overruled. Go ahead.
“Q What?
“A He hadn’t cut me before I left out of the living room going into the kitchen.
“Q He struck you on the eye with the butt of the knife and cut you there before you left the living room ?
“A Yes sir.
“Q You say when you got into the kitchen you found a knife there ?
“A I seen the knife.”

He testified that after the cutting incident he left the Clemmons home, went back across the street to his mother’s home, and that the deceased had struck him over the eye with a knife before he seized the butcher knife, which was used in the stabbing. He said that one of the neighbors asked him to give him the knife, which he did, and that the next day he was arrested and taken to the County Jail.

I

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

Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation. Smith v. State, 47 Ala.App. 513, 257 So.2d 372; Young v. State, 47 Ala.App. 674, 260 So.2d 406; Miller v. State, 38 Ala.App. 593, 90 So.2d 166; Warren v. State, 34 Ala.App. 447, 41 So.2d 201.

In Miller, supra, we find:

“ ‘Legal Malice’ as an ingredient of murder is an intent to take human life without legal excuse, justification or mitigation, and it may be presumed from the use of a deadly weapon, unless the evidence which proves the killing rebuts the presumption. Coates v. State, 1 Ala.App. 35, 56 So. 6; Warren v. State, supra.”

Here, the appellant’s use of the knife presented, under the facts outlined, sufficient evidence from which the jury could infer that he acted with malice.

The conflict in the evidence presented a question for the jury to determine, and the evidence was sufficient, if believed by the jury, under the required rule to support the verdict. Miller v. State, 38 Ala.App. 593, 90 So.2d 166; Rogers v. State, 49 Ala.App. 78, 268 So.2d 859; Carmichael v. State, 52 Ala.App. 25, 288 So.2d 807; Williams v. State, 51 Ala.App. 694, 288 So.2d 753.

As to second degree murder, the crime for which the appellant stands convicted, the law in Alabama is that a finding of specific intent to kill is unnecessary to support a conviction. Smith v. State, 154 Ala. 31, 45 So. 626; Rogers v. State, 49 Ala.App. 78, 268 So.2d 859, and cases therein cited.

II

We have examined the oral charge and find that the trial judge did charge the jury on the elements of self-defense.

Moreover, at the conclusion of the oral charge to the jury, the appellant’s trial attorney announced, “Satisfied.”

Where, as here, appellant’s counsel made no exception to the oral charge, but to the contrary replied, “Satisfied,” and did not ask for any clarifying instructions, no part of the oral charge is here presented for review. Cox v. State, 280 Ala. 318, 193 So. 2d 759; Allison v. State, 281 Ala. 193, 200 So.2d 653; Massey v. State, 49 Ala.App. 341, 272 So.2d 267, cert. denied, 289 Ala. 747, 272 So.2d 270.

As required by law, we have carefully examined this record and find no error therein. The judgment is therefore due to be and the same is hereby

Affirmed.

All the Judges concur.