text:
    Richard Darnell ZUCK v. STATE.
    6 Div. 794.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.

      Robert R. Bryan, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and David L. Weathers, Quentin Q. Brown, Jr., Asst. Attys. Gen., Birmingham, for appel-lee, the State.
   DeCARLO, Judge.

In June of 1974, the appellant was placed on trial in the Circuit Court of Jefferson County on an indictment charging him with first degree murder.

A jury was selected and the State presented the following evidence:

At 6:16 A.M. on December 5, 1973, members of the Vestavia Fire Department responding to a radio dispatch went to the Zuck home on Beaumont Circle in Vesta-via, Jefferson County, Alabama. Upon their arrival they were directed to a bedroom where they discovered the body of Gordon D. Zuck.

Captain Gerald of the fire department recalled there was a large amount of blood on the ceiling and walls of the room.

Sergeant Kines of the Vestavia Police Department was the first police officer on the scene and his description of the scene was the same as the fire captain’s. He added that appellant arrived about 7:00 A. M. and became very emotional when told of Mr. Zuck’s death.

During the search of the house for weapons, another policeman found a hatchet and a hunting knife. These items and the general area were dusted for fingerprints but none were identified as appellant’s. A footprint was found on a newspaper near the chair where the body was found, but it was not the appellant’s. A search of the basement revealed that the door leading into the house from the basement was open but nothing was found to indicate it had been forced.

J. O. Butler, the coroner, observed that rigor mortis had begun in the. deceased, and he later concluded time of death to be approximately 12:05 A.M., with thirty or forty minutes range of error on either side of midnight.

Dr. Jean Garrick performed an autopsy on the deceased and estimated the time of death at about an hour and a half on either side of midnight. She recalled there was a total of eighteen lacerations to the scalp of deceased and these, along with the fractures to the skull, caused a large opening that exposed the brain. It was her opinion death was due to the brain injuries.

Morton Hall, a newspaper deliveryman testified that at approximately 2:30 A.M. on December 5, 1973, he saw a car parked in front of the Zuck house with a person standing at the driver’s side. He identified appellant as that person.

Mrs. Douglas Hayes, owner of Plaza Cleaning Center in Vestavia, testified she knew appellant when he brought some cleaning in on December 8, 1973. When the clothing was separated for cleaning she noticed that a pair of pants bore dark reddish spots on the front of the legs. In her presence an employee removed the spots with a chemical used to remove blood stains. It was her judgment that the spots looked like blood.

Barbara Hodge and Alice Salter each testified they were former girl friends of the appellant and stated he had made various incriminating statements about his step-father’s death.

During Barbara Hodge’s testimony she recalled that on December 3, 1973, while she was eating lunch with the accused, he asked for a nerve pill. As she reached into her purse the appellant remarked, “. . . [D]o you have anything to bump off my ole man? . . . [M]y father is driving me nuts.” She laughed and appellant said he was serious. Barbara then responded she knew where he could get a “hit man” real cheap. Later, after she returned to work, appellant phoned and told her that his parents were going bankrupt. He explained they wanted to merge with his company and he could not sit by and watch, everything his mother had worked for go down the drain. Further, she stated that sometime between December 7 and Christmas Eve, Richard told her he was out with his mother and Alice Salter on December 4, 1973, and afterwards he and his mother went to his apartment for the remainder of the night.

Alice Salter testified she saw Richard and his mother on the night of December 4, 1973, in Rodeway Lounge where she worked. It was about 8:30 or 9:00 P.M. when they arrived and Richard left around 9:30 P.M. for about forty-five minutes. On his return he informed Miss Salter he was expecting a phone call which he subsequently received about 11:15 P.M. After the phone conversation appellant remarked, “Alice, I got the money I needed, but you are going to hate me when you find out how I got it.” Before leaving, appellant told Miss Salter: “Alice, daddy is dead . I’ll explain to you later, meet me at the apartment when you get off from work.” Appellant then left the lounge with his mother.

Appellant lived directly above Miss Salter, and the next day around 5:00 or 5:30 A.M. she heard him enter his apartment. She phoned to ask if he would like some coffee and he said yes, bring it up. When she arrived at his apartment he received a telephone call. After hanging up he exclaimed, “Daddy is dead, stay here in the apartment, don’t leave until I get back.”

Each of the former girl friends admitted when she was initially contacted by the police they disavowed any knowledge of the homicide.

Through Gordon Zuck’s business accountant it was established that deceased was losing money in some of his businesses and not showing a profit in others.

Testimony was elicited that deceased was insured for approximately two-hundred thousand dollars and Ruth Zuck, wife of the deceased, was the beneficiary of all except five thousand dollars. Approximately sixty-five thousand was assigned to the City National Bank of Birmingham.

The' State Toxicologist testified he had examined the hatchet and that he did not find any traces of blood or hair.

William Earl Salter testified that he had seen his sister, Alice Salter, shortly before Christmas of 1973. At that time she told him that Richard Zuck had said, “. [T]here were three men in Birmingham on the day or at the time his father was killed and he believed they were responsible for his death and he also believed that they had some connection with organized crime.”

Upon completion of this testimony, the State rested and appellant did not offer any evidence.

The jury subsequently found Richard Zuck guilty of second degree murder and fixed his punishment at forty years.

Following his conviction appellant filed a motion for a new trial, contending among other things that the evidence was insufficient and new evidence had been discovered which absolved him of guilt.

In support of this motion the appellant presented the affidavit and testimony of his fifteen-year-old brother, Lou Zuck. He testified that on the night of his adopted father’s death, he had gone to bed before midnight and was awakened between 3:00 and 4:00 A.M., by what he thought were his father’s screams. He then ran to his father’s room and saw Jennifer Wor-thington striking him with a rod or tire tool. At that moment Jackie Farris came from the doorway of the dressing room and instructed him to return to his bedroom and stay there. Lou ran back to his bedroom where he cried and prayed until approximately 6:00 A.M., when his mother and sister came to his room screaming. They informed him something had happened to “Dad”, and after they called the police, Lou ran down the street to get a doctor.

Although his mother and sister did not question him, Richard did when he arrived, and Lou answered he didn’t know anything about it. It wasn’t until the night of his brother’s conviction on June 14, 1974, did he relate this story to anyone and then to his sister, Susan. Later that same night, Richard’s lawyers were called and Lou told them what had occurred.

Further, Lou stated neither Jennifer Worthington nor Farris ever mentioned the incident or threatened him.

On cross-examination Lou admitted police officers had made numerous inquiries as to what he knew or heard on the night in question, and he told them nothing.

Lou appeared before the grand jury in December, 1973, and exercised his fifth amendment right to remain silent. It was only at the grand jury meeting following Richard’s conviction that Lou related the foregoing facts.

At the conclusion of Lou Zuck’s testimony, the State called Jennifer Worthington who presented this evidence:

In July, 1973, she began working as a secretary with the Automated theaters, a business owned by the Zuck family. At that time, Richard was involved with the sale of franchises and Susan Morton, his sister, was in charge of the accounting.

Jennifer recalled having more than one conversation with appellant prior to December 5, 1973, concerning the financial difficulties of the Zuck business. She remembers one specific conversation with Richard at the Vestavia Cinema two or three days before the Alabama-Auburn game. On that occasion Jackie Farris, Joan Farris and Susan Morton were also present. Richard and Jackie Farris discussed how Mr. Zuck could be killed without their involvement being discovered. Richard said it would be worth fifty thousand dollars to whoever did the killing.

Jackie Farris commented chloroform might be used if Mr. Zuck could be caught sleeping.

Around December 3, 1973, Richard told Jennifer that his mother had checks outstanding that could not clear the bank and the business was in financial trouble. He said his step-father would have to be killed or the business would go bankrupt.

On Tuesday, December 4, 1973, Jennifer talked with appellant in his office about 2:00 P.M. They were alone at the time and again Richard spoke of the businesses’ financial difficulty. He added that something had to be done about his father very soon and inquired if she knew someone who would kill him. Jennifer remarked she was sure someone could be obtained for a price.

Richard left and sometime during the afternoon, Jackie Farris came to the office. Jackie said he had been thinking about what Richard had said and asked if Richard had found anyone to do away with his father. Jackie inquired if appellant had mentioned any specific sum of money, and Jennifer replied, twenty-five thousand.

About 7:00 P.M. that evening, Jennifer spoke with Richard by phone and related her conversation with Jackie Farris. He told Jennifer something had to be done about his father that night and she should have Jackie Farris come to her apartment so they could call appellant at the “Rode-way.” It was Richard’s plan to use some of her pain pills in hot chocolate which he would take to his father that night. He told Jennifer he would have the money when Mr. Zuck’s insurance was settled.

About 10:30 or 10:45 P.M. while Jackie Farris was in her apartment, they phoned appellant at the “Rodeway” and made arrangements to meet at the Pancake House in Vestavia. While at the Pancake House, Jennifer gave Richard a medicine bottle containing four or five dissolved pain pills. Appellant explained he had to return to his father’s house and asked them to meet him later at the Dobbs House in Homewood. Richard stated he was going to pay each of them twelve thousand five hundred dollars. He then purchased two cups of hot chocolate and left.

Jennifer and Jackie waited at the Dobbs House until 1:00 A.M. when Richard came in and told them he had to go to the office with his father. He planned to give his father the hot chocolate then, and after-wards bring them a key to the house. The three of them were to meet again later outside the Pancake House. Jennifer and Jackie waited until 3:30 A.M. when Jackie phoned the Zuck residence. Richard answered the phone and stated he had fallen asleep but would meet them shortly. After appellant arrived he gave them the key to the basement door. He assured her and Jackie they would be twenty-five thousand dollars richer when the night was over.

Jennifer and Jackie drove to the Zuck house and parked in the driveway near the basement. Jackie got out, opened the trunk and removed a tire tool. They unlocked the basement door, went upstairs into Mr. Zuck’s bedroom and closed the door behind them. Mr. Zuck stood up and Jackie hit him with the tire tool. He fell back in the chair and Jackie hit him a couple more times. Jennifer admitted she also hit Mr. Zuck with the tire tool. After-wards, Jackie placed a windbreaker over the head of the deceased and they left with Mr. Zuck’s wallet, watch and the tire tool.

Jennifer stated that Mr. Zuck did not scream and she did not see Lou Zuck on that occasion.

Between 5:30 and 6:00 A.M. they arrived at her apartment and phoned appellant to notify him they were back.

On Thursday night after the killing, Richard told them it looked as though he would be indicted for murder but he didn’t think there was sufficient evidence.

During cross-examination, Jennifer explained she had not been promised any particular number of years in exchange for her testimony. She did admit having an abortion on Monday, December 3, 1973, before the murder but denied the pain pills taken in conjunction with the operation impaired her perception or recall.

At the conclusion of the hearing the trial court denied the motion for a new trial and this appeal followed.

I

Appellant insists that the trial court’s denial of his motion was error and an abuse of discretion.

The general principles applicable to a motion for a new trial on the claim of newly discovered evidence are found in Hodge v. State, 32 Ala.App. 283, 26 So.2d 274. Specifically, the court stated that such a motion must be predicated on the following requirements:

“. . . ‘(1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative, or impeaching.’ ”

Although appellate courts do not favor granting new trials on these grounds, much is left to the trial court’s discretion, and its decision will not be revised unless an abuse is shown. Hodge, supra; Aaron v. State, 181 Ala. 1, 61 So. 812; Slaughter v. State, 237 Ala. 26, 185 So. 373; Welch v. State, 28 Ala.App. 273, 183 So. 879.

In denying appellant’s motion, the trial court concluded:

“1. That the totality of the evidence adduced at the hearing on the motion for new trial is generally supportive of the verdict of the jury and corroborates certain important facts adduced at the trial in chief.
“2. That the defendant has failed to meet the burden that the evidence adduced in the motion for new trial was newly discovered evidence.”

We have no reason to interfere with that exercise of discretion under the facts shown. Their credibility was for the trial judge. Dawson v. State, 44 Ala.App. 525, 215 So.2d 459.

The concept of due diligence was explained by the Iowa Supreme Court in Westergard v. Des Moines Ry. Co., 243 Iowa 495, 52 N.W.2d 39, and we quote approvingly.

“ . . . The showing of diligence required is that a reasonable effort was made. The applicant is not called upon to prove he sought evidence where he had no reason to apprehend any existed. He must exhaust the probable sources of information concerning his case; he must use that of which he knows, and he must follow all clues which would fairly advise a diligent man that something bearing on his litigation might be discovered or developed. But he is not placed under the burden of interviewing persons or seeking in places where there is no indication of any helpful evidence.”

In his effort to satisfy this burden, appellant asserts in sworn affidavit that he had no reason to suspect his brother, Lou Zuck, witnessed the murder. Further he had no reason to suspect that Jennifer Worthington or Jackie Farris was involved in the killing.

From the time the body was discovered it was known that Lou Zuck was in the house at the time of the murder, and it was reasonable to believe that appellant would have questioned him as a “probable source of information.”

Further, Lou Zuck’s refusal to speak before the grand jury should have alerted the appellant. Surely this, in and of itself, should have afforded a “clue” that Lou had information pertaining to the case.

If the evidence presented at the hearing was believed, then the court could have concluded appellant was not diligent.

Added to these facts, the trial court had affidavits of defense counsel stating they had talked to Lou Zuck, Jennifer Wor-thington and Jackie Farris on more than one occasion. Not until the night of June 14, 1974, did anyone of those named, ever indicate in any way, that Lou Zuck had seen Jennifer Worthington kill Gordon Zuck. Also the court had before it Lou Zuck’s admission that he told law enforcement officers “he knew nothing.”

We agree this was not “newly discovered evidence”. It is beyond belief that a fifteen-year old could witness the bludgeoning death of his father and remain silent. It strains comprehension that he would withhold this information after his brother, whom he professed to love, was indicted for the murder. Further, it seems incredible that he could sit in a witness room for five days while his brother was being tried in the adjoining room, knowing full well someone else had struck the fatal blows.

Counsel has argued that the new evidence in all probability would raise a reasonable doubt as to the guilt of the appellant. In support of his position he relies on Davis v. State, 245 Ala. 589, 18 So.2d 282, where the Supreme Court of Alabama stated:

“ . . . [T]he authorities are uniformly to the effect that it is not essential that newly discovered proof would likely have produced an acquittal. It suffices if it would, in all probability, raise a reasonable doubt as to the guilt of the defendant within the degree of culpability of which the jury finds him guilty.”

We do not perceive the foregoing rationale to mean a probability of the jury finding just a different result, whether of a higher or lower degree of guilt. In our judgment this means that the newly discovered evidence, when taken with the other evidence presented, would probably cause the jury to acquit the defendant of the degree of guilt attributed to him in the jury’s initial finding.

The trial judge here was confronted with the problem of evaluating conflicting evidence. Since he saw and heard the witnesses and viewed the courtroom drama as it unfolded before the jury and at the new trial hearing, it is our opinion he was in a better position to make this evaluation. This is a privilege appellate judges do not have, and we are not able to appraise the value of the evidence with the same degree of perception as the trial judge. Mealer v. State, 242 Ala. 682, 8 So.2d 178.

We cannot say what another jury would do after hearing the new evidence. Nonetheless, when it is considered in conjunction with the original evidence, a jury could reasonably find appellant was implicated in the murder. If Jennifer Worth-ington’s testimony is believed, then a new. jury could reasonably find that even though Richard Zuck did not inflict the death blows, he was the principal behind the killing.

The refusal to grant a new trial on the ground of insufficiency of the evidence is also a matter within the court’s discretion. In Moore v. State, 52 Ala.App. 179, 290 So.2d 246, we read:

“In reviewing the refusal of a motion for a new trial this court will indulge every presumption in favor of the correctness of the ruling of the trial judge and the decision thereon rests largely within the sound discretion of the trial court.”

We are convinced that the trial court was correct in denying the motion. The evidence presented was sufficient, and the verdict was in accord with that evidence.

II

During Alice Salter’s testimony it was shown that Richard made this statement to her shortly after his father’s death:

“A. The third story was that the telephone call that he received at the Lounge was someone informing him that a certain man had arrived in town. He left to go meet this man and two other men. They went to his father’s house. They wanted his father to sign some kind of paper. He said he begged his father to sign the paper, his father refused, and he left the house with one of the men, knowing that the other two men were going to kill his father.”

Prior to allowing the testimony of William Earl Salter, the trial court conducted a hearing out of the jury’s presence. The State informed the court Mr. Salter’s testimony was being offered to show that in December, 1973, after Mr. Zuck’s death, his sister Alice told him substantially what the appellant said to her regarding his father’s death. Defense counsel objected and argued this was an attempt to bolster Alice Salter’s testimony by hearsay. The court overruled the objection and gave counsel an exception.

Appellant now contends this ruling was error.

We find the criticized statements in the following testimony by William Earl Salter:

“Q. (MR. WAITES) Mr. Salter, sometimes in December did you become aware of the death of Gordon Zuck?
“A. Yes, I did.
“Q. And was this occasion that your sister came to your house before or after his death ?
“A. It was after his death.
“Q. All right, sir. Did she have a conversation with you about . concerning his death ?
“A. She did.
“Q. Did she tell you—
“MR. BEDDOW: Well, we are going to object to—
“THE COURT: Don’t lead---
“MR. WAITES: Well, I am . . . the point I am—
“THE COURT: Well, did she discuss that with you ?
“A. Yes, she did.
“Q. Did she tell you anything that Richard Zuck had told her ?
“A. Yes.
“Q. Tell us, please, sir, what she said that Richard Zuck told her about that incident?
“A. She said that the defendant, Richard Zuck, told her that there were three men in Birmingham on the day or at the time his father was killed and he believed that they were responsible for his death and he also believed that they had some connection with organized crime.”

While it is true that proof of prior similar statements cannot be used to corroborate a witness’ testimony, such evidence can be considered after an attempt has been made to discredit the witness by attributing her testimony to some act on the part of the person testified against calculated to excite unfriendly feelings in the witness. Yarbrough v. State, 105 Ala. 43, 16 So. 758.

Under the exception to this rule, evidence may be shown that at a prior time the witness made the same statement. The evidence is considered in rebuttal of the inference that the testimony was manufactured or was the result of the unfriendly act. Yarbrough, supra.

It cannot be disputed that cross-examination of Alice Salter indicated she was a rejected lover and her testimony might have been prompted by a feeling of bias. Based on these facts, the prior consistent statements made by this witness to her brother were admissible to show that this testimony by Miss Salter was not the product of any unfriendly feeling toward Richard Zuck.

III

At the conclusion of the trial court’s oral charge the appellant announced, “Satisfied your Honor.” The trial judge then gave thirteen written charges requested by the appellant.

We reviewed the refused charges and found they were either covered by the court’s general charge, other given charges, or were abstract, misleading or invasive of the province of the jury. In our judgment, their refusal was proper. T. 7, § 273, Code of Alabama, Recompiled 1958.

IV

In this jurisdiction the court reporter is not required to report final arguments. T. 13, § 262, Code of Alabama, Recompiled 1958. Browder v. State, 54 Ala.App. 369, 308 So.2d 729.

This record was searched and no error ivas found.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

author: HEFLIN, Chief Justice.

license: Public Domain

text:
    In re Richard Darnell ZUCK v. STATE of Alabama. Ex parte Richard Darnell Zuck.
    SC 1536.
    Supreme Court of Alabama.
    Jan. 22, 1976.
    Robert R. Bryan, Birmingham, for petitioner.
   HEFLIN, Chief Justice.

Petition of Richard Darnell Zuck for Writ of Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Zuck v. State, 57 Ala.App.-, 325 So.2d 531, is denied. In denying this writ this court does not wish to be understood as approving or disapproving all that was said in the opinion by the Court of Criminal Appeals.

Writ denied.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


author: HARRIS, Judge.

text:
    Kelvin W. RICHARDSON v. STATE.
    6 Div. 998.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Rehearing Denied Dec. 9', 1975.
    Robert R. Bryan, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery and Quentin Q. Brown, Jr., Birmingham, for the State.
   HARRIS, Judge.

Appellant was tried and convicted of assault with intent to murder. The court sentenced him to fifteen years imprisonment in the penitentiary. Prior to arraignment, appellant was found to be indigent, and counsel was appointed to represent him. He pleaded not guilty. After conviction he gave notice of appeal and was furnished a free transcript. New counsel represents him on this appeal.

The testimony was in sharp conflict. The testimony for the state tended to show that appellant made an unprovoked attack on him and shot him one time in the back as he was running toward his home. Appellant claims that he shot the victim as he was advancing on him, but he did not see a weapon of any kind in the hands of the victim.

Omitting the formal parts, the indictment reads as follows:

“The Grand Jury of said County, charges that before finding of this indictment Kelvin Richardson whose name to the Grand Jury is otherwise unknown, unlawfully and with malice aforethought, did assault Ike Roberson, III with the intent to murder him, against the peace and dignity of the State of Alabama.”

Ike Robinson, the victim, testified that he and his brother went to a nightclub around midnight on June 13, 1974, known as the Blue Gardenia. They stayed on the inside of the club about twenty minutes watching people dancing. They did not have anything to drink. Ike decided to walk outside and met appellant coming in the club. Appellant stopped him and asked him if he was ready to pay him and Ike said no and walked out of the club. About four or five minutes later appellant came out and walked up to Ike and said, “Hey, man, you been owing me a long time.” Ike said, “Yeah, I’m going to pay you man.” There was some more conversation and appellant told Ike not to put his hand in his face, and appellant pulled an automatic pistol out of his pants pocket. Someone said, “Hey, man, don’t do that.” Appellant then put his pistol back in hfs pocket and walked down the street.

Ike lived about a block from the club and he parked his car at his aunt’s home who lived nearby. His brother came out of the club and asked him what happened and Ike said nothing and his brother reentered the club. Two minutes later his brother came out of the club and asked if he was ready to go home and Ike said, “Yes.” They started walking down the street and came upon appellant and two companions standing on the side of the street. Appellant was on one side of the street and his companions were standing across the street. Ike and his brother walked past these three men.

From the record:

“Q. Okay. Was your brother with you at that time?
“A. Yes, sir.
“Q. What if anything did you and your brother do?
“A. My brother asked me, said something, asked me what he say to me. I told him to keep walking, and pass on by him.
“Q. You passed on by him ?
“A. Yes.
“Q. Now, what if anything happened as you came down the street? Tell the jury what occurred.
“A. As we passed by him he called me, kept walking. Called me again, stopped, turned around and he raised up a gun. My brother had walked side of the road. He said, ‘hold it, man, don’t ■ do that.’ He, you know, turned around, started shooting at him. Then turned around and started shooting at me. And I started running and he shot me in the back.
“Q. Let me ask you this. You got shot in the back?
“A. Yes.”

Ike further testified that neither he nor his brother were armed with any kind of a weapon — pistol, knife, club, etc. He stated appellant shot his brother twice and shot him one time and the bullet went through his body. His brother ran into the yard of a house nearby and fell. He subsequently died from the gunshot wounds fired by appellant. Ike ran to his home and his uncle carried him to a hospital.

Appellant was tried and convicted for killing Ike’s brother and his case was affirmed by this court on October 1, 1975, without an opinion.

Appellant’s version of the shooting was entirely different. He testified in substance as follows:

“In the early morning hours of June 14, 1974, a shooting occurred which resulted in the wounding of Ike Robinson and his brother by the Appellant. The dispute arose as the two parties, one composed of the Appellant and his two companions and the other consisting of the two brothers, were leaving a night club. A few minutes earlier, the Appellant had requested the payment of a five dollar debt which Robinson acknowledged as valid but refused to pay at that time. Due to Robinson’s alleged antagonistic behavior as he ‘began waving his finger’ in the Appellant’s face, the Appellant pulled out a pistol admonishing him to refrain and back away which Robinson did. Shortly thereafter, the Appellant requested his companions, Robert Pearson and Arthur Richardson, to get Pearson’s car and meet him at the end of the street to leave. Following Robinson’s and Appellant’s vérbal exchanges, the brother of Robinson, Robert Hood, asked what had happened to which Robinson testified he said ‘nothing’. Hood entered the club and exited about four minutes later asking Robinson if he was ready to go, to which Robinson responded in the affirmative. A few minutes later, the Appellant noticed Robinson and Hood walking up behind him quickly and proceeded to pass on the walk. The Appellant called to Robinson at which point the accounts differ. Robinson claims he did not answer, but his brother did, and the Appellant started shooting. The Appellant’s account, corroborated by the testimony of his two companions, was that Robinson’s brother, Hood, turned around holding a gun which he was pointing at the three, and the Appellant reacted in self-defense, shooting at his assailant and then at Robinson who was coming after him. The Appellant contended he did not know which of the two shots fired hit Hood, but since he later learned Robinson was hit in the back, he must have been hit running away. Immediately after the shooting, the Appellant ran home with his two companions returning by car. Shortly after learning the next morning that he was being sought by the authorities, the Appellant voluntarily surrendered himself to the Sheriff’s Department of Jefferson County.”

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

Appellant made a motion to exclude the state’s evidence on the ground that the state failed to make out a prima facie case. This motion was overruled and denied, and we think rightly so. In Young v. State, 283 Ala. 676, 220 So.2d 843, the rule applicable is stated as follows:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling o'f a motion for new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

Conflicting evidence always presents a question for the jury as to the guilt of the defendant unless the evidence palpably fails to make out a prima facie case. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Irons v. State, 42 Ala.App. 349, 165 So.2d 125; Bradford v. State, 35 Ala.App. 407, 47 So.2d 599; Jones v. State, 54 Ala.App. 251, 307 So.2d 59.

The evidence was more than ample to make out a prima facie case of guilt of the defendant and there is no warrant for this court to disturb the verdict of the jury.

Appellant contends that the court did not charge the jury that the verdict must be unanimous. This contention is not supported by the record. We quote the following excerpt from the oral charge:

“That’s a matter for each and every one of you to determine, because it will take a vote of all twelve of you to convict.”

As we have pointed out no exceptions were reserved to the oral charge of the court. Numerous cases decided by the appellate courts of this state establish the rule that, in the absence of an exception to the court’s oral charge, there is nothing presented for review. Cox v. State, 280 Ala. 318, 193 So.2d 759.

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

Affirmed.

All the Judges concur.


author: EMBRY, Justice.

text:
    In re Kelvin W. RICHARDSON v. STATE. Ex parte Kelvin W. Richardson.
    SC 1614.
    Supreme Court of Alabama.
    Jan. 15, 1976.
    Robert R. Bryan, Birmingham, for petitioner.
    No appearance for the State.
   EMBRY, Justice.

Petition of Kelvin W. Richardson for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Richardson v. State, 57 Ala.App.-, 325 So.2d 540.

Writ denied.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, TJ., concur.


text:
    Johnny DAVIS v. STATE.
    3 Div. 380.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Rehearing Denied Nov. 18, 1975.

      Robert W. Dick, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of assaulting a peace officer with a deadly instrument while such officer was engaged in the performance of his lawful duty or duties. He was represented at arraignment and throughout the trial by court-appointed counsel. The jury returned a verdict finding appellant guilty as charged in the indictment and the court sentenced him to twenty years in the penitentiary. He was furnished a free transcript and this court appointed counsel to represent appellant on this appeal.

On October 20, 1974, appellant was an inmate in the Montgomery County Jail. He was in solitary confinement and no one was in the cell with him. At about 5:30 a. m. appellant created a disturbance by kicking on the solid steel door to the cell which made a loud noise.

Deputy Sheriff Robert Bryan went to appellant’s cell to try to quiet him but was unable to do so. Bryan called Deputy Lewis Clark to come and assist him. Bryan told appellant that they were going to be forced to move all of his personal belongings if he did not calm down and appellant said they did not have a right to take anything out of his cell and he continued to bang on the steel door. The officers were not armed with any type of weapons when they went to appellant’s cell. Bryan opened the cell door and appellant immediately jumped on him and cut him with a filed down spoon in the shape of a knife. Deputy Clark went in the cell and appellant stabbed him one time and cut him three times requiring seven stitches to close the lacerations. The clothing of both officers was also cut by appellant.

In the meantime someone called the Sheriff’s Office and requested help. Deputy Sheriff Ward came to the cell while the fight was going on. He had the iron part of a mop bucket stick and Clark grabbed it and struck appellant twice to subdue him so that he and Bryan could get out of the cell. Photographs were taken of appellant a short time later and these photographs did not show any cuts, abrasions or bruises on the body of appellant. These photographs were introduced in evidence along with the instrument appellant used to cut the officers. The iron bar used by Deputy Clark to subdue appellant was also introduced in evidence.

We had all of these exhibits sent to this court for our personal inspection. The knife-like instrument could certainly constitute a deadly weapon according to the manner in which it was used.

Appellant testified that he was banging on the door to attract the attention of the jailer to bring him some food, that when Deputy Bryan came to the cell and told him to stop kicking on the door, he told him that he was going to keep on kicking the door until they brought his food to him. Deputy Bryan opened the cell door and hit him with his fist and he started wrestling with him and then Deputy Clark struck him with an iron bar. When this happened, he grabbed Deputy Clark and stabbed and cut him. He further testified he was acting in self defense. He stated it was no accident that he cut and stabbed the Deputy.

Appellant was shown the instrument introduced in evidence as the knife he used to cut the officers but denied that was the knife he used as it had been filed down. He stated one of the Deputies probably had the instrument he used. He denied that he filed the instrument, but admitted he had it in his possession. He denied cutting Deputy Bryan but admitted cutting and stabbing Deputy Clark.

When the state rested, appellant made a motion to exclude the state’s evidence. This motion was overruled and denied. There was no error in this action of the court. Young v. State, 283 Ala. 676, 220 So.2d 843.

In Matthews v. State, 51 Ala.App. 417, 286 So.2d 91, we held that a “deadly weapon” is not only a weapon with which death may be easily and readily produced, but one which is likely to produce death or great bodily harm from the manner in which it is used. In this case we held that a knife and a file were deadly weapons. We also held that a penknife is a deadly weapon when used to strike a person in the neck or other vital part of the human anatomy.

In construing Title 14, Section 374(20), Code of Alabama 1940, in McKinney v. State, 50 Ala.App. 271, 278 So.2d 719, we said:

“The constituent elements of the statute in the instant case are: (1) assault upon a police officer, (2) who was engaged in the active discharge of his lawful duties, and, (3) with a deadly instrument. To read into this statute the additional elements of scienter, murderous intent, and the use of the instrumentality in such manner as to reflect an evil intent, is unwarranted. This statute falls in the class of malum 'prohibitum and not mal-um in se. It was enacted to protect a class of citizens engaged in ferreting out crime and in the enforcement of the criminal laws of the State and thereby for the ultimate protection of society.”
“If malicious intent were an essential element of the offense under Title 14, Section 374(20), Code of Alabama 1940, it would simply be a duplication of Title 14, Section 38, Code of Alabama 1940, which provides, inter alia, that a conviction for assault with intent to murder is punishable by imprisonment in the penitentiary for not less than two nor more than twenty years. The Legislature did not intend such a duplication and overlapping of these specific statutes, but intended to create a new offense for the protection of all police officers in which ‘malice’, ‘intent’, and words of like import are conspicuously absent. This section, unlike section 38, supra, requires the use of a ‘deadly instrument’.
The trial court in its instructions to the jury placed a greater burden on the state than is required in this type prosecution and certainly appellant has no valid complaints in this regard.”

The distinguished trial judge was more generous to appellant in his oral charge than he was due. He charged the jury that assault or assault and battery committed upon a peace officer engaged in the performance of his duty or duties was a lesser included offense than that charged in the indictment. We have held otherwise.

In Lowe v. State, 54 Ala.App. 280, 307 So.2d 86, we said:

“Title 14, Section 374(19), Code of Alabama 1940, deals with a simple assault or assault and battery upon a peace officer or other law enforcement officer of the state while engaged in the discharge of his duty or duties which is: a misdemean- or. If a ‘deadly instrument’ is used the misdemeanor section has no application. Therefore, Section 374(19), is not a lesser included offense in prosecutions under Section 374(20), supra, where a ‘deadly instrument’ is used to commit the offense.”

The testimony of the officers and that of appellant was conflicting. Conflicting evidence always presents a question for the jury as to the guilt of the defendant unless the evidence palpably fails to make out a prima facie case. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Irons v. State, 42 Ala.App. 349, 165 So.2d 125; Bradford v. State, 35 Ala.App. 407, 47 So.2d 599; Jones v. State, 54 Ala.App. 251, 307 So.2d 59.

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 to the jury, and there were no adverse rulings on the admission of evidence that contained any merit.

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

There was more than ample evidence to make out a prima facie case of guilt.

The judgment of conviction is affirmed.

Affirmed.

All the Justices concur.

CATES, P. J., concurs in result.


author: SHORES, Justice.

text:
    In re Johnny DAVIS v. STATE. Ex parte Johnny Davis.
    SC 1585.
    Supreme Court of Alabama.
    Jan. 22, 1976.
    Robert W. Dick, Montgomery, for petitioner.
    None for the State.
   SHORES, Justice.

Petition of Johnny Davis for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Davis v. State, 57 Ala.App. —, 325 So.2d 543.

Writ denied.

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


text:
    Cleven DIXON v. STATE.
    1 Div. 537.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Rehearing Denied Nov. 18, 1975.

      David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The GRAND JURY of said County charge, that, before the finding of this indictment CLEVEN DIXON whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully assault Joseph Harry Puckett, a law enforcement officer of "the Police Department of the City of Mobile, Alabama, a political subdivision of the State of Alabama, with a shotgun, a deadly instrument, while said officer was engaged in the active discharge of his lawful duties, against the peace and dignity of the State of Alabama.”

Prior to arraignment appellant was found to be indigent and counsel was appointed to represent him and he pleaded not guilty and reserved the right to file special pleas within twenty days. New counsel appeared on behalf of appellant and added the plea of not guilty by reason of insanity. The jury returned a verdict of guilty as charged in the indictment and the court adjudged him guilty and sentenced him to fifteen years imprisonment in the penitentiary. He gave notice of appeal and was furnished a free transcript and trial counsel was appointed to represent him on this appeal.

The evidence for the state and appellant was in sharp conflict and only a jury could unscramble these conflicts and arrive at a verdict.

Police Officer Joseph Harry Puckett had been with the Mobile Police Department for four years prior to January 12, 1974. He worked the night shift and was alone in a patrol car when he got a radio dispatch to go to Ghent Street where a domestic quarrel of mammoth proportions was taking place. He was dressed in his police uniform. Police Officer Percy Watkins was dispatched to the scene as a “back-up” officer for Puckett.

When Officer Puckett arrived at the Ghent Street address, he was met by a young black female and he had a conversation with her. She ran out to his car before he could stop and said, “Oh, my God.” She told him what was happening inside the house and she carried him in the house. She stopped at the entrance to the hall in the living room and he heard someone arguing. He had his night stick in his right hand and his service pistol was in his holster. He walked down the hall and stopped in front of a bedroom door. He looked in the bedroom and saw a Negro woman standing there and a Negro man had a shotgun sticking in her ear. The officer said, “You don’t want to shoot that lady. She has probably been married to you a long time.” The officer still had his night stick in his right hand.

The Negro male said, “No you - -, I don’t want to shoot her, I want to shoot you.” At that time the man turned toward the officer with the shotgun. The officer swapped hands with his night stick and drew his revolver and dived to the right of the door.

From the record:

“Q. To this side?
“A. Right here, right to this point right here and, I fired three shots into this door with my hand turned back around like this, around the door, attempting to shoot away from the female, or, him either, I was trying to scare him into dropping the gun. As my third shot was fired, a shot came from inside the room simultaneously with my third shot and blew my hand off. Then, I ran into this back bedroom. I don’t remember what I pushed, but,' I pushed something in the way, here, to keep anybody from following me. I don’t know what it was. And, I heard a voice, a male voice say, I have got that son of a bitch now. I will finish him off.
There was a window in the rear of the room. I decided the only exit from that room would be through the window. So, I ran and jumped on the bed and dove through this window. Just as I dove through the window, I was shot in the hip, then, from the back. And, I fell to the ground right here.
“Q. Joe, did you have a pistol from the time you left here and got to right there ?
“A. No, I did not. My pistol was blown back up behind a heater on the other end of the hall, near the living room. It was knocked out of my hand with the first shot.
“Q. Now, as you got on the ground, right here, did you hear anything else, anything said from inside that house?
“A. I did, sir..
“Q. What did you hear ?
“A. I heard a male voice say I have got him for sure. Now I am going to finish him off.
“Q. What did you do ?
“A. A crawled to approximately — I believe it was right in here. I remember seeing the porch where I was laying. This was as far as I could crawl, then, I just flipped over on my back and I could see w'hat was transpiring in the house.
“Q. Do you see the individual that shot you with the shotgun in this courtroom?
“A. I do.
“Q. Where is he?
“A. He is sitting in the defendant’s chair over there.
“Q. The man in the blue shirt ?
“A. That is right.”

Over objections of appellant the officer testified that he stayed in the hospital over six months and that his leg was paralyzed and only had two fingers and a thumb left on his right hand.

The officer further testified that after he crawled around the house, he saw appellant come to the front door and he had the shotgun with him, but he didn’t come out of the house. Some parts of the injured officer’s uniform were cut off him at the scene of the shooting and he identified his uniform and it was admitted in evidence without objection.

Police Officer Percy Watkins testified that he got to the scene of the shooting about a minute after it was over and found Officer Puckett lying on the steps of the porch and he was bleeding. He went to his car and called for more help and then went to see if he could help Officer Puckett. At this time appellant’s wife walked up and talked to him and went back in the house. She came out of the house with a shotgun and put it out in the yard. Appellant’s wife went hack in the house with Officer Watkins to get appellant. Appellant was found in one of the back bedrooms and the door was locked. When appellant unlocked the door, he came out in his undershirt and shorts. He smelled of the odor of alcohol hut the officer said he was not drunk. The officer carried him to another bedroom and let him put on a pair of pants and a shirt but no shoes. He put him in his patrol car and carried him to the docket room of th'e station house and left him. In the bedroom where appellant was locked up the officer found a shotgun case lying on the bed.

Officer Ronald Stevens Myers worked in the identification division of the Mobile Police Department. He was on call at his home and received a call to go to 1211 Ghent Street, Apartment A, at 1:40 a. m. on January 12, 1974. He arrived at 1:55 a.m. He testified he saw blood on the floor and several other items of evidence. He made photographs of the entire scene of the shooting which were admitted in evidence without objections.

He further testified that he found three bullet holes in a door that swings inward. He found a spent shotgun shell on the floor of this bedroom. It was buckshot and was a twelve gauge Winchester shotgun shell. In the hallway that goes into the back bedroom, he found another spent shotgun shell.

From the record:

“Q. Now, did you have an opportunity to look at this bedroom at all ?
“A. Yes, I photographed this room first, the hallway. Then, I entered this bedroom and photographed this window here, and this bed.
“Q. What did this window look like?
“A. This window, on the farthest side, the last window on the end, at the end of the apartment, had been knocked out. The curtain had a pattern of shotgun pellets through it. The window had been knocked out, and, there was blood all over the floor and bed, and the policeman’s cap was laying in this position, here.
“Q. Did you have an opportunity to see if there was a service revolver in this house at all?
“A. Yes, I did.
“Q. Would you mark that?
“A. Yes. There was a heater in the living room area and a red rug in this position. There was a three fifty seven nickel plated magnum here, and the butt of the revolver was. over here.
“Q. And, this is the window that was blown out?
“A. Yes, it was.”

This witness identified all of the photographs that he took at the scene of the shooting. He described the window in the last bedroom. He said the wood frame and all the glass was knocked outward and the curtains were bloodstained and the curtains had a buckshot pattern. He found a night stick just under this window. This night stick, the shotgun, and Puckett’s broken pistol were all admitted in evidence. At the foot of the bed he found Puckett’s hat on the floor. This witness further testified that he found 35 live shotgun shells in the house and the shotgun had three live shells in it. He stated there was a hole under the window that was broken out. He dug the object out of the hole and it was a buckshot.

Appellant testified that he had been to a “union” party with his wife’s family and they got home about 1:00 a. m. He had planned to go deer hunting at 3:00 a. m. He loaded his gun and put it behind the door in his bedroom and put the gun case on his bed. He and his wife got into an argument in his bedroom and he told her to go to her room and let him alone. She refused to go so he pushed her out and put the ironing board against the door to keep her from coming back in his room. He then went to sleep and fifteen or twenty-minutes later the officer kicked his door in. That he told the officer not to shoot but he did. That three shots were fired at him and he picked up his shotgun, reached with it around the door and returned the fire. After that he went around the corner and shot at the rustling curtain on the window in the next room. He stated that he did not know anyone had called the police.

On cross-examination he testified that after he shot the first time, the officer didn’t fire at him any more. He further stated that he was angry when he was shooting. He denied making the statements that Officer Puckett testified that appellant said before and after the shooting.

Appellant offered the testimony of several character witnesses who testified that he had a good reputation and that they would believe him on oath.

It should be noted here that appellant did not call his wife and daughter to testify in his behalf. Their testimony, no doubt, would have been most damaging to his defense. It can be fairly inferred that his daughter called the police because her father was pointing a shotgun at the head of her mother as testified by Officer Puckett.

In a prosecution for assault it is relevant to show the extent of the wounds as part of the res gestae and the duration of the recovery as tending to prove the severity of the wounds and the intent with which they were inflicted. Phillips v. State, 170 Ala. 111, 54 So. 111; Bailey v. State, 24 Ala.App. 339, 135 So. 407; Jackson v. State, 19 Ala.App. 339, 97 So. 260.

In Phillips v. State, supra, the Supreme Court said:

“The evidence as to the character of the wound was admissible to show the intent accompanying the assault. Brown v. State, 142 Ala. 294, 38 So. 268; Meridith [Meredith] v. State, 60 Ala. 441; Jackson v. State, 94 Ala. 85, 10 So. 509. The condition of the assaulted party, resulting from the assault, was but a method of showing the nature and extent of the assault and the injury therefrom, and these things were of the res gestae of the offense charged. Phillips v. State, 161 Ala. 60, 49 So. 794. Nor was there error, upon the part of the trial court, in refusing to confine this evidence to merely showing the ‘fierceness’ of the attack. The assault may have been mildly committed, but with a murderous intent and may have produced disastrous results. The assault may not have been ‘fiercely’ made, yet could have produced such dangerous results as to afford an inference for the jury that it was made with the intent to murder.”

Appellant claims that the court’s oral charge to the jury was improper as it implied that the burden was on the defendant to prove his plea of self defense. We do not agree.

We have read and re-read the oral charge in this case and nowhere in this charge did the court tell the jury that the burden of proving self defense rested on the defendant. The court charged the jury that the “burden never shifts from the state in any criminal prosecution. The burden is on the state to satisfy you from the evidence beyond a reasonable doubt that the defendant was guilty. The burden is never upon the defendant to prove his innocence or disprove the facts of the crime of which he is charged. The burden never shifts from the state to prove all necessary elements of the case. In all criminal cases, if the evidence or any part of it, after considering it all, leaves in the mind of the jury any reasonable doubt of the defendant’s guilt, he should be acquitted. It is incumbent upon the defendant to establish his plea of self defense if the evidence for the state does not establish it for him. But he meets the legal requirements if the evidence creates a reasonable doubt as to whether or not he acted in self defense. If, therefore, there is a reasonable dovibt of the defendant’s guilt, whether arising from self defense or other facts in the case, the defendant is entitled to an acquittal.” (Emphasis added), i

It is settled law in this state that the only burden resting on the defendant under his plea of self defense is to offer such evidence as will, when considered with the whole evidence, generate in the minds of the jury a reasonable doubt of guilt. Stowe v. State, 49 Ala.App. 13, 268 So.2d 45; Lester v. State, 40 Ala.App. 503, 121 So.2d 107; Certiorari denied (but with approving opinion) 270 Ala. 631, 121 So.2d 110.

It seems clear to us that at no point in the oral charge did the judge imply that the burden of proof rested on the defendant to prove his plea of self defense.

In Young v. State, 283 Ala. 676, 220 So. 2d 843, the Supreme Court held:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

The judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


text:
    In re Cleven DIXON v. STATE. Ex parte Cleven Dixon.
    SC 1583.
    Supreme Court of Alabama.
    Jan. 22, 1976.
    David L. Barnett, Mobile, for petitioner.
   HEFLIN, Chief Justice.

Petition of Cleven Dixon for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Dixon v. State, 57 Ala.App. -, 325 So.2d 546.

Writ denied.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


author: PER CURIAM. BOOKOUT, Judge

text:
    Willie SHEPERD v. STATE.
    1 Div. 564.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 21, 1975.

      D. Wayne Childress, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for the State. . •
   PER CURIAM.

Appellant was convicted in the lower court of murder in the second degree and sentenced to imprisonment for life.

The attorneys representing the parties on this appeal have agreed in brief that the statement of facts set out in the brief of appellant is substantially correct. Since the court concurs in this fact the statement will be adopted as part of this opinion with a brief addition added by the court, and is hereinafter set out as follows :

“On the night of July 12th, and the morning of July 13, 1974, the appellant, Willie Sheperd, was babysitting his stepson; Marc Anthony Earl. The mother of Marc Anthony Earl, the deceased, was at work. (R. 26, 27, 128, 129)

“At approximately 11:00-11:15 on the night of the 12th of July, 1974, Joanne Earl the mother of deceased called appellant and asked him to put Marc to bed. (R. 27, 129, 130) When appellant went to put Marc to bed, he discovered that Marc had wet his pants and asked him why he had done so. The child did not answer and appellant testified that he slapped him. (R. 130)

“Appellant testified that when he slapped him, the child hit it’s head on the table. (R. 130) Appellant called the child’s mother who came home and when she arrived, appellant was administering artificial resuscitation to the child. (R. 30) The mother, Joanne Earl, made several telephone calls, one of which was for an ambulance. (R. 29)

“Shortly afterward, the police arrived. Officer Raderick Steade of the Mobile Police Department testified that when he arrived he found the child lying on the floor near the dining room table. He further testified that he felt for a pulse and found none and noticed that the child felt cold. (R. 63)

“The child was taken to Mobile General Hospital in Mobile, Alabama where he was seen by Dr. William A. Crutwell, III. (R. 69) The doctor testified that the child was dead and upon examination he found several bruise marks over the anterior chest and some bruise marks around the neck. He further stated there were bruise marks down the side of the child’s body. (R. 70) The doctor further testified that he met with appellant and the mother and informed them the child was dead. He further stated that he asked them what had happened and that appellant replied, “That the little boy had peed on the couch” then he stated that, “I hit him” (R. 72)

“Some two and one half days later an autopsy was performed by Dr. Earl Wert, Mobile County Coroner with Dr. Nelson Grubbs, State Toxicologist in attendance. (R. 81,91) Over defense counsels objections, Dr. Wert testified that the cause of death was from massive hemorrhage and shock from rupture of the liver and bleeding. (R. 96) He further testified that in his opinion the damage was caused by a blow from some blunt instrument. (R. 96)

“Defendant testified and admitted slapping the child and then waking up and he (appellant) was on the floor. (R. 130)” We interpolate that appellant claimed to have had a mental lapse, remembering nothing, during that time. He had drunk some beer and whiskey that night.

“At the close of the State’s case, appellant moved to exclude the evidence of Dr. Grubbs and Dr. Wert on the grounds that there was no showing by the state that the condition of the body at the time of the autopsy was the. same as at the time the child was initially admitted to the hospital. This motion was denied. (R. 99-104)”

The indictment under which the appellant was tried and convicted reads as follows :

“The Grand Jury of said County charge, that, before the finding of this indictment Willie Sheperd whose name is to the Grand Jury otherwise unknown than as stated, unlawfully and with malice aforethought killed Marc Anthony Earl by beating him to death with his hands, against the peace and dignity of the State of Alabama.
“The Grand Jury of said County further charge, that, before the finding of this indictment Willie Sheperd whose name is to the Grand Jury otherwise unknown than as stated, unlawfully and with malice aforethought killed Marc Anthony Earl by striking him with his fists, against the peace and dignity of the State of Alabama.”

On October 16, 1974, the appellant was arraigned on this indictment and entered a plea of not guilty.

At the beginning of the trial and before a jury was struck, the question was raised by the district attorney as to whether the indictment charged murder in the first degree or murder in the second degree. After some discussion between the court and the attorneys involved, it was determined by the court that the indictment charged murder in the second degree although it had been understood by all parties, apparently, that, each count charged murder in the first degree. Upon a motion made by the district attorney, the court advised the attorneys and the jury that the cause would proceed on the charge of murder in the second degree, after which ruling the attorney for the appellant moved for a mistrial based on the statement made by the court, above referred to. The motion was overruled and the case proceeded to trial on the charge of murder in the second degree and the lesser charges included as a matter of law.

No effort was apparently made to amend the indictment and the appellant did not agree that it be amended to delete the charge of murder in the first degree.

The court then announced that the jury would be struck from panels 1 and 2, numbering some 32 jurors. The attorney for the appellant thereupon moved that he be permitted to strike from all of those qualified because the indictment charged murder in the first degree and that in effect he should not be restricted to strike from a lower number as would be the procedure in a noncapital case. This motion was overruled by the court and the jury was struck from the panels above referred to.

The gist of the argument for a reversal is summed up in appellant’s brief as follows, to-wit:

First, that the indictment was improperly amended without the consent of appellant and without re-arraignment; second, that the appellant was denied his right to strike from the minimum number of jurors required in a capital case; third, denial of motion to exclude the testimony of Dr. Grubbs and Dr. Wert with regard to an autopsy performed two and one-half days after injury and death of the deceased; and fourth, denial of motion for mistrial based on juror’s failing to disclose information during qualifications.

First, we do not agree that the indictment was, in fact, amended under the action taken in this case, although the State chose to proceed, with the concurrence of the court, under the charge of murder in the second degree which charge was necessarily included within the indictment. The indictment, in fact, charged murder in the first degree on its face according to the language used to describe the charge. Title 14, Section 314; Title 15, § 259 (Forms of Indictment), Form 79, Code of Alabama 1940, Recompiled 1958.

As we view the situation resulting from the confusion as reflected by the record as to what exactly the indictment did charge, the end result was that the State chose to denominate the charge as murder in the second degree and proceeded to try the case under that theory without taking proper legal steps such as a nol pros or amendment which would delete the charge of murder in the first degree. We can see no prejudice to the substantial rights of appellant resulting from such procedure, unless it should be held he was required to strike from a panel of jurors numbered less than would have been required for murder in the first degree.

We think the statement of this court in the case of Burt v. State, 54 Ala.App. 1, 304 So.2d 243, hereinafter set out is apropos to the question posed in this case.

In Burt v. State, supra, this court stated:

“Since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, decided on June 29, 1972, abolished the death penalty in all the States of the Union, all crimes for which the maximum punishment was death must now be considered non-capital felonies in Alabama. Jones v. State, 50 Ala.App. 62, 276 So.2d 647.
“Appellant further objected to being forced to strike from a list of twenty-five (25) qualified jurors. Since robbery is a non-capital felony in Alabama today, a defendant charged with robbery is entitled to strike from a qualified list of not less than 24 jurors as provided by Title 30, Section 62, Code of Alabama 1940. Crowden v. State, 41 Ala.App. 421, 133 So.2d 678.”

Along this same line, dealing with another Code Section, Title 30, Section 63, Code of Alabama 1940, Recompiled 1958, providing that a special venire be drawn in such cases, this court said in McCaghren v. State, 52 Ala.App. 509, 294 So.2d 756, “Since Furman, decided June 29, 1972, all of the statutes of Alabama providing death penalties are now to be considered non-capital felonies.”

The record does not contain the questions or answers of the qualification of the jurors by the court in this case but during the course of the trial one of the jurors interrupted the proceedings and announced that he was acquainted or had been acquainted with one of the assistant district attorneys some eight and one-half years previously and that when asked this question on voir dire concerning his qualifications to serve as a juror on the case, he had apparently forgotten the matter but it had occurred to him the night before at his home. This was all done in open court and the Judge questioned the juror further, with regard to the type of friendship or relationship with the assistant district attorney and was advised by the juror that it was not close at all and that he felt that it would not interfere in any way with his continuing to serve in the present case. The court allowed the juror to continue to serve and an exception was taken to this action of the court by the attorney for the appellant and his motion for a mistrial was overruled.

We are of the opinion that no error appears in this action of the court. A failure of a juror to make a proper response to questions regarding his qualifications to serve as a juror, regardless of situations or circumstances, does not automatically entitle a party to a new trial. The proper inquiry in such cases is whether the defendant’s rights were prejudiced by such failure.

In this case there was no effort made to show prejudice to the rights of the appellant and as we read the record, there is nothing therein to so indicate. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330; Smithson v. State, 50 Ala.App. 318, 278 So.2d 766.

Ordinarily a court will not be put in error under the circumstances shown in this case unless there appears a clear abuse of discretion. Loch Ridge Construction Company, Inc., et al v. Barra, 291 Ala. 312, 280 So.2d 745.

It appears that an autopsy was performed on the deceased child by Dr. Grubbs and Dr. Wert, as is heretofore set out, some two and one-half days after the injury occurred. Appellant moved to exclude the testimony of the findings of these witnesses upon the ground that there was nothing in the case to show what happened to the body of the child from the time of its death in the early hours of the morning on July 13 until approximately 2 o’clock on the morning of July 15, the time of the autopsy.

The record reflects the location of some of the injuries of the child, as testified to by other witnesses, and the body itself was identified by Dr. Wert, when he testified without objection from appellant. The testimony of the doctors, being of expert nature, was most thorough and described in more detail the injuries suffered by the child than the testimony initially introduced by the State.

The fact that an autopsy made at a later time than the death of the child is a matter which would affect the weight and credibility of the testimony rather than the admissibility thereof. Madley v. State, 192 Ala. 5, 68 So. 864. It need not be shown that the body was in the exact condition when the autopsy was performed as when death occurred and the evidence of the autopsy is prima facie admissible if no substantial change appears. Dennison v. State, 259 Ala. 424, 66 So.2d 552.

We have responded to the argument of appellant in brief and in addition thereto, have searched the record for any apparent error which would work substantial injury to the rights of appellant. Having found none, this case is due to be affirmed.

Affirmed.

CATES, P. J., and TYSON, HARRIS ' and DeCARLO, JJ., concur.

BOOKOUT, J., concurs specially.

BOOKOUT, Judge

(concurring specially.)

The Alabama Supreme Court in Ex parte Hugh Otis Bynum, Jr., 294 Ala. 78, 312 So.2d 52, (1975) held that “capital offenses” still exist in Alabama, stating, “ . . . The only effect of Furman was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment.”

Contrary to the broad language above, it is my opinion that the Alabama Supreme Court in Bynum was addressing itself solely to the question of bail. The purpose for a special venire in “capital cases” was to give a defendant, on trial for his life, an additional safeguard not given to those where only their liberty was at stake. At the time Title 30, Sec. 63, Code of Alabama 1940 was enacted, the only distinction between “capital” and “non-capital” cases was the possible imposition of the death penalty. Since the imposition of the death penalty has been suspended, there is no rational justification for a special venire in a case formerly classified as “capital” and one formerly not so classified where the penalties may now be the same.

Should the legislature ever enact a death penalty statute which meets all the constitutional tests for validity, then the Special Venire Statute again would become applicable. Otherwise, I do not believe the Alabama Supreme Court will extend its reasoning in the Bynum decision to require a special venire in cases where the death penalty cannot be imposed. I therefore concur in the result of the instant opinion.


author: JONES, Justice.

text:
    In re Willie SHEPERD v. STATE of Alabama. Ex parte Willie Sheperd.
    SC 1539.
    Supreme Court of Alabama.
    Jan. 29, 1976.
    D. Wayne Childress, Mobile, for petitioner.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for the State, respondent.
   JONES, Justice.

By quashing the writ we are not to be understood as agreeing or disagreeing with the language of the Court of Criminal Appeals’ opinion dealing with the effect of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), on the defendant’s right to a special jury venire because this discussion was not necessary to an affirmance in view of the noncapital offense for which he was tried and convicted, 57 Ala.App.-, 325 So.2d 551.

Writ quashed as improvidently granted.

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


author: TYSON, Judge.

text:
    Cleo JACKSON, Jr. v. STATE.
    1 Div. 582.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.
    Rehearing Denied Dec. 16, 1975.

      J. D. Quinlivan, Jr., and Lionel L. Lay-den, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The indictment charged Cleo Jackson, Jr., with the first degree murder of Paulette Jackson by shooting her with a pistol. The jury found the appellant guilty of murder in the second degree and fixed punishment at twenty years imprisonment. The trial court then entered judgment in accordance with this verdict.

•Charlene Whitt testified that she accompanied the deceased, Paulette Jackson, on the night of May 18-19, 1974, to several clubs where during the evening hours and early hours of Sunday morning they had several drinks. She testified that she and Paulette Jackson had seen the appellant, Cleo Jackson, earlier in the evening at the Dashiki Club where he had bought them a drink and tried to get them to come with him to the Flame Social Club. She testified that they did not go with him. She testified that early Sunday morning, about 3:30, she and Paulette were coming out of the Debonair Club when they saw two men stop and park a van near the curb. She stated that she then saw one of the men, whom she recognized as being the appellant, Cleo Jackson, start walking on the sidewalk toward them. From the record (R. pp. 25-26):

“Q What did Cleo do then?
“A He ran up and he said, ‘Bitch, I got something I want to talk to you about,’ and hit her on the side of the head. Then I saw fire coming from the gun and he was holding her by her right hand and I was looking — fire was coming from the gun, but it didn’t seem at the time he was shooting her then. And she fell back on the blue car, and that is when he pointed the gun to her head and I left. I went to the car — called her father to tell him something happened. By the time I came back to the club, he was — the bartender to the club was outside then. And Cleo was standing up. He shot at Paulette again. She was on the ground. She was lying on the ground and he just ran off.
“Q Now, at the time you saw Cleo hit Paulette, I think you said on the head ?
“A Yeah.
“Q Had you heard any shots before then?
“A No, not before then.
“Q Have you — had you seen Paulette with a gun before then ?
“A No.
“Q Did you see Paulette with a gun that night?
“A No, not that night.
“Q Did Paulette in any way hit Cleo before Cleo hit her?
“A No, she — I called her, she was just standing up there with her head. She didn’t say anything. He just ran up and hit her. They started fighting.
“Q Now, where this club was, is that in Mobile County?
“A Yes.
“Q Is that in the State of Alabama? “A Right.”

On cross-examination, she testified that when Paulette’s body was turned over, she saw that Paulette had a pistol.

Charles W. Green testified that he was leaving the Debonair Club on the early morning of May 19, 1974, between 4:00 and 5:00. He said that he observed some scuffling between the appellant and a young woman, and that he later heard some shots. On cross-examination, he testified that he heard four or five shots in just a matter of a few second’s time.

Wayne Pettway testified that he drove up in a van truck near the Debonair Club between 4:00 and 5:00 a. m., on May 19, 1974. He saw the deceased, Paulette Jackson, and Charlene Whitt come out of the club, and he saw the appellant go up to them and say, “Hi, I want to talk to you.” He then saw the appellant run toward the deceased and hit her. He did not observe the deceased do anything. He said that he later felt her pulse and saw her body placed in an ambulance.

On cross-examination, he testified that he heard five or six shots over a thirty or forty second period, but that he never did see a gun in the hands of the deceased woman.

Arthur Law testified that he was leaving the Debonair Club on May 19, 1974, between 4:30 and 5:00 a. m., when he observed the appellant get out of a van and walk toward two women. He said he heard the appellant call one of them an ugly name, and then he saw the appellant strike the deceased. He stated that he saw the deceased fall hack, and that he did not see a weapon in her hand. He stated that the appellant started shooting and several shots were fired.

On cross-examination he said he heard either four or five shots in less than a minute. He testified that later he saw some empty shells, which were shown to him by one of the officers.

Charlie Outsey testified that he was the father of the deceased, Paulette Jackson. He testified that the day before his daughter’s death, he had bought a .25 caliber automatic pistol, which he gave his daughter “for protection.”

Mary Louise Williams testified that she had known the appellant for about eighteen years prior to May 18, 1974. She testified that the appellant came by her home, and that she was there with her boyfriend, as was her sister, Diane, and her boyfriend. She said that while the appellant was at their home, he made the statement that he “was going to kill her if he met her anywhere that day or night,” and further, “If you kill the head, the body will die.”

On cross-examination, she stated that the appellant stated, in their presence, that, when asked wou'd he take his wife back, “No, he would never take her back . . . they would never go back together.”

Oswald Pendleton testified that he knew both the appellant and his wife, Paulette Jackson, for several years prior to May 19, 1974. He stated that on the afternoon of May 19, around 1:00, he went over to their home and helped Paulette move some furniture in a truck from their home.

■ Over objection, he also testified that about three and one-half weeks prior to the date of the fatal shooting of Paulette, the appellant had fired a shotgun as Paulette was getting out of the truck, that the appellant “got out and shot, he shot the shins out from under her,” and that Paulette started running away.

Mary Bush Foster testified that she had known the' appellant for about nine months prior to May 18, 1974. She did not know his wife. She testified that on the afternoon of May 18, the appellant came by her home and watched TV with her until about 6:30 or 7:00 that evening. She testified that on the early morning of May 19, about 6:30 or 7:00, he came to her apartment, and that he appeared to have some powder burns on his neck. She testified that she was with the appellant when the police stopped them Sunday morning, and that she was driving the car.

Mobile Police Officer John Saxon testified that on the morning of May 19, 1974, he observed the appellant sitting on the passenger side of a “white over gold colored vehicle,' occupied by the appellant and a female driver,” that the car was coming south on Catherine Street in Mobile, that he stopped the vehicle and observed the appellant holding a shotgun on his lap, and he placed him under arrest. Officer Saxon also identified a .25 caliber pistol and clip which were taken from the appellant at the time of his arrest.

Mobile Police Sergeant Marvin Bowman testified that he found the body of a colored woman shortly after 5 :00 on the morning of May 19, 1974, lying on the sidewalk outside the Debonair Club in Mobile. He examined the body for vital life signs and detected none. As he turned the body over, he found a .25 caliber pistol and clip. He further testified that in the immediate area five .25 caliber spent shells, one .25 caliber spent bullet, and three spent .22 caliber shells, and two live rounds of .22 caliber hollow point bullets were found. He stated these were found within a six foot radius of the spot where the body of the deceased, Paulette Jackson, was lying. He testified that he saw the appellant, Cleo Jackson, about 7:45 that morning at Police Headquarters, that he saw a small laceration on the appellant’s thumb, and that the appellant called his attention to what he stated was a burn on his neck, but that it appeared to be fingernail scratches to the officer.

Police Officer Ronald Meyers identified a number of photographs taken at the scene of the homicide.

Police Sergeant Bowman was recalled to the stand and stated that the time of the shooting occurred between 4:45 and 5:02 a. m., Sunday, May 19, 1974.

At this point, the two pistols and the live and empty shells found at the scene were stipulated into evidence. It was also stipulated that D'r. Small, State Toxicologist, would testify that the respective shells came from the respective pistols. Also stipulated into evidence was the coroner’s report, dated May 20, 1974, which established the cause of death as due to bullet wound “over the left ear, which traveled through the left side of the brain and lodged in the left side of the skull.”

Appellant’s motion to exclude the State’s evidence was overruled.

The appellant presented the testimony of a number of character witnesses.

The appellant took the stand and testified that he was thirty-two years of age, and had been married two years and six months to Paulette Jackson prior to May 18-19, 1974. He stated that they had separated only twice, for a couple of days, and this was just a few days prior to the homicide. He testified that they had always gone back together after prior separations. He testified that they had no children, but had lived together as man and wife. He denied making any threat in ■front of Mary Louise Williams and her boyfriend, Walter Mitchell, that he would kill his wife on the day of the homicide. The appellant testified that he did go by the home of Mrs. Foster, who was a friend of his, and that he had been over there that afternoon looking at TV and playing records. He testified that he decided to go out that evening and used Mrs. Foster’s car. He stated that earlier in the evening he had run into the deceased, Paulette Jackson, and Charlene Whitt and bought each of them a drink at the Dashiki Club. He testified that he left the club and drove around, that he later saw his wife and Charlene coming out of the Debonair Club, and that he stopped and asked his wife to come home with him. He said that he stopped the two women and told them he wanted to talk with them a minute, and that his wife, Paulette, reached in her purse to pull a pistol, and that he reached for her hand. He stated that she scratched him, like a burn. He said that he heard two shots and then pulled his pistol and fired in an effort to. defend himself. He testified that he later called over at Mary Foster’s house because his shotgun was over there and he did not want to get her involved. He testified that he was riding in the car with Mary Foster when he was arrested.

I

The appellant raises two contentions which he asserts as error. Appellant argues that the trial court erroneously, and over objection, permitted the State to show details of prior difficulties between the appellant and the deceased. In the first instance he calls attention to the testimony of one Oswald Pendleton, who testified that he assisted the deceased in moving her furniture on the day of the homicide, which testimony was permitted over objection, and that approximately three and one-half weeks prior to this date, the appellant stuck a shotgun through the window of a truck in which his wife was seated, and as she opened the truck door and got out, the appellant “shot the shins out from under her,” and that Paulette got out and started running away (R. pp. 89-90).

Appellant also calls attention to Record Page 165, where, on cross-examination of the appellant, the State was permitted to ask if he had waited at his father’s home for her to come home one night and tried to choke her. This question was answered in the negative (R. p. 165). Lebo v. State, 55 Ala.App. 624, 318 So.2d 319.

As noted by this Court in Hill v. State, 51 Ala.App. 515, 286 So.2d 924:

“Former acts of hostility, including communicated threats, by the accused toward the victim are admissible for the purpose of showing motive or malice, and were here properly admitted. Blue v. State, 246 Ala. 73, 19 So.2d 11; Padgett v. State, 49 Ala.App. 130, 269 So.2d 147, cert. denied, 289 Ala. 749, 269 So.2d 154, and cases cited therein.” See also Tillman v. State, 52 Ala.App. 282, 291 So.2d 373, and authorities therein cited.

We are of the opinion that the trial court here properly admitted the disputed testimony.

II

Appellant next calls our attention to the question asked the appellant, over objection, on cross-examination, as to whether or not he had had sexual relations with Mary Foster (R. p. 168), to which he replied, after the objection was overruled, in the affirmative.

On direct examination, the appellant testified that he had telephoned Mary Foster to come pick him up on the early morning following the homicide as he did not want to involve her. From the record on direct examination of the appellant (R. p. 163):

“Q What did you ask her to do?
“A I asked her to come take me to
“Q Did she?
“A Yes, sir, she came.
“Q Were you on your way to your car when you were arrested?
“A Yes, sir.
“Q Did you have any objects over at Mary Foster’s house?
“A Yes, sir, I had a shotgun.
“Q You had a shotgun?
“A Yes, sir.
“Q Did you want to get it out of the house ?
“A I had it in a storm — you know, I went to get it out because it was out there and I knew she was going to be involved and I didn’t want anybody to see that I was living with her.
“Q Did you get the shotgun out to take it away from her house to shoot somebody else?
“A No.
“Q And when the police stopped you, were you trying to shoot them with the shotgun ?
“A No, sir, the shotgun was in the back of the car.
“Q In the hack seat?
“A Yes.
“Q Or the back floorboard.
“A Back of the car on the seat.
“Q And you were in whose car?
“A Mary Foster’s.
“Q Was there any problem when you were arrested?
“A No, sir.” [Emphasis supplied]

In light of the above testimony on direct examination, we are of the opinion that the trial court properly allowed the State to ask questions, over objection, as to the appellant’s relationship with Mary Foster. Cases cited.

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.


author: BLOODWORTH, Justice.

text:
    In re Cleo JACKSON, Jr. v. STATE. Ex parte Cleo Jackson, Jr.
    SC 1627.
    Supreme Court of Alabama.
    Jan. 15, 1976.
    J. D. Quinlivan, Jr., and Lionel L. Lay-den, Mobile, for petitioner.
    No appearance for the State.
   BLOODWORTH, Justice.

Petition of Cleo Jackson, Jr. for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Jackson v. State, 57 Ala.App. -, 325 So.2d 546.

Writ denied.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    FORD MOTOR CREDIT COMPANY, a corporation v. HOWELL BROTHERS TRUCK AND AUTO REPAIR INC., et al.
    Civ. 623.
    Court of Civil Appeals of Alabama.
    Dec. 31, 1975.

      Howell & Roebuck, Mobile, for appellant.
    E. Graham Gibbons, Mobile, for appel-lees.
   WRIGHT, Presiding Judge.

This was an action in detinue for the recovery of a 1972 Ford diesel truck. Plaintiff appeals.

On May 26, 1972, John W. Faircloth purchased the vehicle in question from Treadwell Ford, Inc., of Mobile. Tread-well retained and properly perfected a security interest in the vehicle to secure the balance of payments due on the truck. The note and security interest were later transferred to plaintiff.

Some time thereafter Faircloth apparently sold the vehicle to a Troy Jones. In August of 1974, at Jones’ direction, the truck was brought to defendants’ place of business for repairs. Defendants found the original engine to be “burnt up” and, with Jones’ approval, installed a rebuilt engine in the truck. The total bill for the work was approximately $4,300.00, of which Jones paid $2,000.00. Defendants did not retain a security interest in the engine.

Defendants released possession of the truck to Jones. He returned it eight days later with a damaged rear end, the result of an accident. One of the defendants testified that Jones informed him that he could not pay the remainder on the engine. Defendants removed the engine from the truck.

There is a conflict as to when the rebuilt engine was removed. Defendants contend it was removed prior to any contact with plaintiff. Two of plaintiff’s employees said that the engine was intact when they first visited the garage and sought possession of the truck. The engine had been removed when the sheriff seized the truck after suit.

Plaintiff then sought and the court issued an order requiring the defendants to show cause why they should not be ordered to deliver and re-install the rebuilt engine, deliver the rebuilt engine and pay the cost of installation or pay plaintiff the diminished value of the truck. In the meantime, default was entered against defendants in the detinue action. After hearing, the court entered judgment for the truck and the return of the original burned-out engine, but denied all further claims for relief.

Plaintiff appeals from this order, contending that under the applicable provisions of the Alabama mechanic’s lien statute and the Uniform Commercial Code defendants had no right to the rebuilt engine and the same should have been granted to plaintiff together with cost of re-installation.

As previously stated, plaintiff held a properly perfected security interest in the vehicle. Under UCC § 9-310 (Title 7A, Section 9-310, Code of Alabama, (1940)) certain liens take priority over a perfected security interest, as long as the statute creating such a lien does not provide otherwise.

Alabama’s mechanic’s lien statute, Title 33, Section 25, Code of Alabama (1940), was amended in 1965 to expressly subordinate the lien to a perfected security interest, unless the secured party authorized the repairs. Bryce Hospital Credit Union, Inc. v. Warrior Dodge, Inc., 50 Ala.App. 15, 276 So.2d 602. One of the defendants testified that no contact was made with plaintiff until long after the work was done. Therefore, there can be no question of authorization.

Further, defendant may not claim priority as to the engine based on a common law mechanic's lien, as they had relinquished possession of the vehicle to Jones prior to the accident which caused its return to their shop. The common law mechanic’s lien is waived by a release of the property. Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944.

It is to be seen that defendants had neither a common law or statutory mechanic’s lien on the vehicle. Defendants therefore rely on the premise that truck engines are interchangeable and, as such, this engine did not become a part of the vehicle. Both parties cite Hallman v. Dothan Foundry & Machine Co., 17 Ala.App. 152, 82 So. 642, a case involving a “Form A Truck” body installed on a mortgaged Ford automobile. The court there said that the body could be followed, identified and severed without detriment to the car. Therefore, it did not become a part of the car and subject to the prior mortgage.

However, the court there relied on a Vermont case, Clark v. Wells, 45 Vt. 4, 12 Am.Rep. 187, which said that ordinary repairs on a chattel become accretions to, and merge into, the principal thing. Prior to the Uniform Commercial Code the question of exactly what repairs, modifications or substitutions on chattels would constitute an accession generated divergent views in the several jurisdictions. See Annotation, 43 A.L.R.2d 813.

Section 9-314 of the UCC specifically deals with accessions to goods subject to a security interest. Section 9-314(1) provides a method whereby repairmen may protect their interests in goods such as the engine in question. This may be done by taking a security interest in the goods which attaches prior to the time the goods are installed in the whole. Had defendants taken a security interest prior to installation their claim to the engine would have been superior to that of plaintiff. In such a situation removal of the engine would have been proper under Section 9-314(4). Having failed to follow such procedure defendants were not entitled to the protection afforded by Section 9-314(1).

Having determined that defendants were not entitled to retake the engine, either under a common law or statutory mechanic’s lien or the UCC, we examine the trial court’s final order. In its order the court directed defendants to return the original engine and all parts associated with it to plaintiff. This was error.

Plaintiff’s action was in statutory detinue. In such an action it was entitled to recover the vehicle and component parts, together with damages for detention. Title 7, Sections 918, 921, Code of Alabama (1940). Where a defendant’s possession is lawful, damages for detention may be recovered only after remand. Davis v. Reid Lumber Co., 204 Ala. 517, 86 So. 379; Electric Lighting Company of Mobile v. Rust, 131 Ala. 484, 31 So. 486. However, where the defendant’s possession of the property is wrongful, a demand is not necessary to recover damages for detention. Hodges v. Kyle, 9 Ala.App. 449, 63 So. 761; Chappell et al. v. Falkner, 11 Ala. App. 382, 66 So. 890. Possession of the truck by defendants was not initially wrongful.

Plaintiff held a properly perfected security interest in the truck which attached to the rebuilt engine when it was installed. Defendants had no right, under either a mechanic’s lien or Section 9-314 of the UCC, to remove the engine from the vehicle. Their removal of the engine, not for repairs but for collection of a debt, was therefore a wrongful conversion insofar as the plaintiff is concerned. However, plaintiff’s action was not for conversion but for recovery of property in specie, its alternate value and damages for detention.

Damages for detention may include deterioration in value occasioned through neglect, abuse or non-use. Louisville & N.R. Co. v. James, 204 Ala. 604, 86 So. 906; Wortham v. Gurley, 75 Ala. 356. Removal of a truck’s engine would logically constitute abuse. If defendants removed the engine after demand of possession by plaintiffs, the damage resulting to the property by such removal would be recoverable for detention in an action in det-inue.

The judgment of the circuit court awarding the truck and the burned-out original engine was error. Plaintiff is legally due the truck with all the component parts possessed by defendants at time of suit, including the engine installed by defendants together with its component parts. This is the engine to which plaintiff’s security interest attached when it was installed by defendants. This is the engine which defendants had no right to remove even though it was not fully paid for. We consider it necessary to remand to the trial court for its determination of the time of the removal of the engine by defendants. If such removal occurred after demand of possession by plaintiff, plaintiff is due to recover damages to the truck resulting from such removal. Such damages to be determined by the court as the evidence requires.

Reversed and remanded with directions.

BRADLEY and HOLMES, JJ., concur.