text:
    Robert BROWN, alias v. STATE.
    6 Div. 769.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      J. Douglas McElvy and Joel L. Sogol, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: twenty years imprisonment.

The appellant has been previously convicted for the September 1,1977, robbery of the Cannon Oil Company gasoline station in Tuscaloosa, Alabama. This court affirmed that conviction without opinion on October 3, 1978. Brown v. State, 6 Div. 707. The assault with intent to murder, with which this appeal is concerned, occurred while appellant was perpetrating the robbery of the gasoline station. The testimony was that on September 1, 1977, at approximately 4:00 a. m., Albert Hallman (a cashier employed by the gasoline station) was hit on the head and knocked to the floor by appellant. Within the next several minutes, appellant placed a “coke” box over Hallman’s head, kicked him, threatened to kill him, shot him twice, and left him for dead.

I

The appellant alleges that the trial judge should have granted his plea of autrefois convict to the assault with intent to murder charge because it arose out of the same factual situation as did the robbery for which appellant was earlier convicted. More specifically, appellant maintains that the State has in effect prosecuted him for separate parts of a single offense which is prohibited by the Fifth Amendment to the United States Constitution.

In the determination of this question, we must look to the rule enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), concerning former jeopardy:

“. . . The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not. . . . ”

In Colston v. State, Ala., 350 So.2d 337 (1977), the Alabama Supreme Court, in holding that a murder and a robbery arising from the same transaction were two separate offenses, quoted from Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973), which held that:

“A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and on fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law. . . ” (Citations omitted.)

In the instant ease, the issue is whether the offenses of robbery and assault with intent to murder are the same in fact and in law. The three essential elements of robbery are: (a) a felonious intent, (b) force, or putting in fear as a means of affecting the intent, and (c) by that means, the taking and carrying away the property of another from his person or in his presence, all three elements concurring in point of time. Gissendaner v. State, Ala.Cr.App., 338 So.2d 1025 (1976), cert. denied, Ala., 338 So.2d 1028; Tarver v. State, 53 Ala.App. 661, 303 So.2d 161 (1974).

It has likewise been held that an essential element of robbery is a larcenous intent. Odom v. State, Ala.Cr.App., 348 So.2d 277, cert. denied, Ala., 348 So.2d 282 (1977); Root v. State, 247 Ala. 514, 25 So.2d 182 (1946). An essential element of assault with intent to murder, which is not an element of robbery, is an intent to take life. Sanders v. State, Ala.Cr.App., 354 So.2d 44, cert. denied, Ala., 354 So.2d 48 (1977).

It is therefore apparent that the appellant committed two separate and distinct crimes which arose out of the same transaction, but which required two separate intents; one, the intent to rob, and the other, the intent to kill. Colston, supra. The evidence in the instant case also showed that after the robbery was consummated and before the appellant left the scene, he repeatedly shot the victim and left him for dead. This was clearly proof of an additional fact to show the appellant’s intent to kill which was not a required element of proof of the offense of robbery. See: Whitehead v. State, 144 Ga.App. 836, 242 S.E.2d 754 (1978).

II

Appellant argues alternatively that even if the two convictions are upheld, the sentences should run concurrently instead of consecutively. We disagree. The question of whether a sentence for conviction of a crime is to be consecutive or concurrent is within the sound discretion of the trial judge. Clift v. State, Ala., 352 So.2d 838 (1977). The case of Blockburger v. United States, supra, quoting from Morey v. Commonwealth, 108 Mass. 433 (1871), is dispositive of this question:

. . ‘A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ . ” (Emphasis supplied.)

See also: Beckley v. State, Ala.Cr.App., 357 So.2d 1022 (1978); Brown v. State, 30 Ala. App. 27, 200 So. 630 (1941).

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Robert BROWN.
    78-244.
    Supreme Court of Alabama.
    March 2, 1979.
   BEATTY, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Eddie Franklin ASHLOCK, alias Skip v. STATE.
    6 Div. 784.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.
    Walter W. Furner of Furner, Boyce & Nave, Bessemer, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for an intentional killing while committing a robbery. Section 13-ll-2(a)(2), Code of Alabama 1975. Sentence was fixed at death.

We have carefully reviewed the evidence and find that this cause must be reversed due to the failure of the trial judge to properly instruct the jury.

Throughout the course of the trial evidence showing the bad character of Wanda Cassidy, the State’s chief witness, was introduced. Among other acts it was shown that she assisted the appellant in escaping even though she knew he committed the murder. She was absent without leave from the Army. Her nickname was “Wicked Wanda” which she was called “by everybody”. Her former husband testified that the appellant and his brother were “living with” her during the week but had to find another place to stay when her husband, who was on prison work release, came home on the weekends.

The trial judge refused to give the following written charge requested by the appellant.

“I charge you, gentlemen of the jury, if the evidence convinces you that Wanda Cassidy is a woman of bad character, and unworthy of belief, then you may disregard her evidence altogether.”

This charge was initially held proper in Prater v. State, 107 Ala. 26, 18 So. 238 (1894). It was recently approved in Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973), and Johnson v. State, 349 So.2d 110 (Ala.Cr.App.1977).

Notwithstanding the contention of the State to the contrary, this charge was not covered in substance by the court’s oral charge. No other written charge to the same effect was given. Under the evidence presented the charge is not abstract as there was evidence of her “bad character”.

This Court recently set forth the controlling principles of law governing the refusal of the trial judge to give a written requested charge.

“In determining whether a requested charge should be given, the question is not whether the court believes the evidence supporting the charge, ‘but simply whether such evidence was presented.’ Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1976).
“The trial judge may have had reason to disbelieve the appellant’s version of the facts, however, he did not have legal cause to withhold that version of the facts from the jury’s consideration.
“In Burns v. State, 229 Ala. 68, 155 So. 561 (1934), our Supreme Court held in part as follows:
‘Our decisions are to the effect that every prisoner at the bar is entitled to have charges given, which without being misleading, correctly stated the law of his case, and are supported by any evidence, however weak, insufficient, or doubtful in credibility. Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am.St. Rep. 96. And in Morris v. State (Ala. Sup.), 39 So. 608, 611, it is said: ‘It matters not how slight the tendency of evidence may be towards establishing any material fact involved, the court cannot exclude it from the jury. Its weight is for their determination. . . ’
(Emphasis supplied.)

“Likewise, in Chavers v. State, Ala., 361 So.2d 1106 (1978), the Alabama Supreme Court stated:

‘. . . (O)ur decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.
Giles v. State, 366 So.2d 351 (Ala.Cr.App. 1978).

See also Miller v. State, 40 Ala.App. 533, 119 So.2d 197, cert. denied, 270 Ala. 739, 119 So.2d 210 (1960); Bradberry v. State, 37 Ala.App. 327, 67 So.2d 561 (1960); Degro v. State, 34 Ala.App. 232, 38 So.2d 354 (1949); Duncan v. State, 30 Ala.App. 356, 6 So.2d 450, cert. denied, 242 Ala. 329, 6 So.2d 454 (1942).

We have examined the other issues presented by the appellant and found them to be without merit. Though not raised on appeal, the sentencing hearing contained a number of errors which must be corrected if this appellant is retried and found guilty. The trial judge failed to set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentence hearing as required by Section 13-11-4, Code of Alabama 1975. The aggravating circumstance that the capital felony was committed for pecuniary gain, Section 13-11-6(6), Code of Alabama 1975, covers the “murder-for-hire” situation and not the circumstance where the intentional killing was committed by the appellant while stealing money. Cook v. State, 77-320 (Ala. Ms. September 15, 1978). The aggravating circumstance that the “defendant knowingly created a great risk of death to many persons”, Section 13-11-6(3), Code of Alabama 1975, is not applicable to the situation where the only possible risk of death is to the two victims of the robbery. Though the trial court found “no mitigating circumstances worthy of consideration” we emphasize the remarks of the Alabama Supreme Court in Cook, supra, concerning the mitigating circumstances of no significant history of prior criminal activity. Section 13-11-7(1), Code of Alabama 1975.

Regardless of the repulsive cruelty of the killing involved, the failure of the trial judge to instruct the jury as requested is fatal. Our only course is to reverse the conviction and remand for new trial.

REVERSED AND REMANDED.

All Judges Concur.


author: ALMON, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-248.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   ALMON, Justice.

WRIT DENIED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Dwight SLATEN v. STATE.
    6 Div. 831.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.
    Charles W. Gorham, Birmingham, for appellant.

      William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen. for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was tried on an indictment that charged, inter alia, that he “did unlawfully take or attempt to take immoral, improper or indecent liberties with . a female child under the age of sixteen years . . The omission herein of other language contained in the indictment, including the name of the alleged victim, is of no detriment to appellant, we think, and may be a contribution to the victim’s future welfare. The indictment charged a crime defined and denounced by Code of Ala.Re-comp.1958, Tit. 14, Chap. 51B, § 326(2) and Code 1975, § 13-1-113. In accordance with the maximum punishment fixed by law, the court sentenced him to imprisonment for five years. Appellant does not challenge the sufficiency of the evidence to support the verdict, and we see no reasonable basis for such challenge. A recital of essential evidence as to the details of the crime would serve no useful purpose.

Defendant, in a written statement signed by him, almost a year after the alleged crime, confessed to it and to another incident like it with the same victim, and expressed a sense of nausea and remorse by reason of his conduct.

The confession of defendant became a target of his defense in a pre-trial motion to suppress. The motion was not heard until the State called and identified, as a witness for the State, Mr. Larry Waldrop, a criminal investigator for the Cullman County Sheriff’s office, to whom defendant made the confession. As soon as Mr. Waldrop was identified and it became apparent that the State planned to offer the confession or other statements by. defendant in evidence, the jury was excused, and the State proceeded with Mr. Waldrop to lay a predicate for the admission in evidence of the conversation between Mr. Waldrop and defendant, and the written confession made by him. In lengthy testimony, the witness said that before any statement was made by defendant, defendant was not offered any reward or hope of reward or any inducement to make a statement. He showed that before making a statement, defendant had been advised fully as to his right to remain silent, as well as his right to a lawyer at the expense of the State. He fully covered the field of the requirements set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and all of the pre-Miranda requirements preliminary to the admission of a confession or incriminating statement. He further showed that defendant, in effect, acknowledged orally and in writing that he had been fully apprised of his rights, that his statements and confession were voluntary and made of defendant’s “own free will without promise or hope of reward, without fear or threat of physical harm, without coercion, favor or offer of favor, without leniency or offer of leniency, by any person or persons whomsoever.”

Appellant does not question the sufficiency of the evidence to show the voluntariness of the confession other than as stated in his brief as follows:

“. . . However, two important points about the circumstances surrounding the confession were brought out on cross-examination of Detective Waldrop. First, it was revealed that Detective Wal-drop is related to the defendant by marriage (R. 68) a factor which would certainly increase the trust which the defendant had in the officer. Secondly, it was revealed that while talking to the defendant before he gave the confession, Detective Waldrop told the defendant that he was going to get him some help, (R. 72) and that he did not remember, but he could have told the defendant specifically that he would help him when the case came to trial. (R. 75).”

Appellant does not argue his first point. It could well be that relation by consanguinity or affinity between a defendant and an officer to whom a confession is made would have a bearing on the question of voluntariness and other requisites for the admission into evidence of a confession, but if voluntariness and all of the other requirements are shown, the relation between the two as shown here is not of itself an obstacle to the admission in evidence of the confession. As appellant does not amplify in any way the first point as quoted above, we think it appropriate for us not to amplify what we say on the point.

As to appellant’s second point, we quote from portions of the testimony of Detective Waldrop relied upon by appellant:

“Q A couple of minutes, and he made the corrections on the thing and signed the statement. How long, now, during the time that you were talking to him, you told him you were going to get him some help, is that correct?
“A I did.
“Q How many times did you tell him you were going to help him?
“A Once.
“Q Did you tell him you would help him up here in the court?
“A I don’t have the power to help anybody up here.
“Q I understand that, you told him you would help him didn’t you?
“A If I did I don’t remember it.
“Q You could have said that, is that correct?
“A Again, if I did I don’t remember it. “Q I am asking you, Larry, you could have said it, you don’t remember it? “A It is possible, yes.
“Q It is possible that that could have been said?
“A Yes.
“Q You wouldn’t deny it if he said that you did say it, you wouldn’t deny it, would you?
“A Mr. Gorham, I wouldn’t lie on the witness stand if they turned everybody here loose.
“Q I’m trying to find out, Larry, what was said down there before the statement.
“A No, sir, I would not deny it.
“Q You would not deny it?
“A No, sir.
“Q Then, what you are saying is that the statement could have been made, you don’t remember it?
“A I don’t remember it.

On redirect examination of the witness, he testified as follows:

“Q Mr. Waldrop, when he was asking you about — he asked you to help him, was that at the time, were you talking about his mental condition, mental situation? “A Yes, sir, we were.
“Q And help him get to see — who is the man that you said you got a call to get in touch with him?
“A Bill Thornton, the Mental Health worker.
“Q When you said you would help him, that is what you did, help him get some mental health treatment?
“A It is, yes, sir.
“Q You called Mr. Thornton, did you get an appointment with him or what happened?
“A I had my secretary call him, they said he was out. I believe they said he would call when he came in and sometime later he came in and interviewed Mr. Slaten.
“Q He asked you to do that?
“A Yes, sir.
“Q What did he talk about, his mental condition at that time, were you and he discussing his mental condition at that time?
“A Yes.

Then on recross-examination, the witness testified:

“Q You used the words I’ll help you, didn’t you, when you were talking to him, I’ll help you out?
“A No, sir, I told him that if he did do this something was wrong with him, I would get him some help.
“Q All right. Now, the help that you are talking about, you don’t know what he understood, do you?
“A I told him I would tell Bill Thornton of the Mental Health Department, I told him I would get him over there.
“Q You also told him you would help him, is that correct, Larry.
“A Yes, sir, that is correct.
“Q And then you talked about the Mental Health Clinic, is that correct?
“A No, sir, we were talking about the Mental Health Clinic when we were talking about helping him.
“Q Did you ever say these words, I will help you, if you will tell me what happened?
“A No, sir.
“Q All right. What you are saying is that you never told him that you would help him in any way with this case? “A I did not indicate that I would help him in court, no.
“Q You did not indicate that you would help him?
“A I did not tell him.
“Q You told him you would — you have already testified to that, you told him that you would help him?
“A Yes, sir.”
It is contended by appellee in its brief: “Appellee submits that the offer of mental treatment was a mere collateral benefit and not one to produce in the mind of the Defendant any hope of favor.”

If by this appellee means that the offer of a collateral benefit is never sufficient to constitute such an offer of benefit that would invalidate as involuntary the confession of an accused, we cannot agree. Any such thought should be dispelled by what was recently said by the Alabama Supreme Court in Holt v. State, Ala., rev’g Holt v. State, Ala.Cr.App. (1978). The Supreme Court held that the admissibility of a confession is not to be determined by any distinction between the offer or promise of a “collateral” benefit and the offer or promise of a “direct” benefit. Any confession induced by the promise or offer of a “collateral” benefit lacks voluntariness as much as a confession induced by the offer or promise of a “direct” benefit.

We must take all of the circumstances as to the confession into consideration. The testimony of the officer may have lacked, to some extent, desirable precision and positiveness, particularly when made in answer to double-barrel questions, not conducive to a meeting of the minds of the questioner and the answerer. Even so, we are favorably impressed with the forthrightness of the witness, with his obvious efforts to state the unvarnished facts. We are convinced from his testimony as a whole, which is the only testimony for or against appellant on the point under consideration, that the only thing said by him that could be construed as an offer or promise to help pertained to his statement to the effect that he would ask or tell Mr. Bill Thornton of the Mental Health Department to confer with defendant. We are convinced that his statement to defendant did not constitute any offer or promise conditioned upon the incriminating statement or confession. We have no reason to discount the following in his testimony:

“Q You used the words I’ll help you, didn’t you, when you were talking to him, I’ll help you out?
“A No, sir, I told him that if he did do this something was wrong with him. I would get him some help.
“Q All right. Now, the help that you were talking about, you don’t know what he understood, do you?
“A I told him I would tell Bill Thornton of the Mental Health Department, I told him I would get him over there.
“Q You also told him you would help him, is that correct, Larry?
“A Yes, sir, that is correct.
“Q And then you talked about the Mental Health Clinic, is that correct?
“A No, sir, we were talking about the Mental Health Clinic when we were talking about helping him.
“Q Did you ever say these words, I will help you, if you will tell me what happened?
“A No, sir.”

Notwithstanding the persistence of defendant’s able counsel in asking the witness as to the possibility of the witness’ having made a statement to defendant in addition to what the witness remembered that he said and the concession by the witness of such possibility, there is no substantial premise upon which to base a reasonable conclusion that any such unremembered statement was made.

The facts pertaining to the question of the admissibility in evidence of the confession in the instant case are clearly distinguishable from the facts that necessitated a reversal in Womack v. State, 281 Ala. 499, 205 So.2d 579 (1967), relied upon by appellant. In the cited case there was evidence by defendant that the officer, a sheriff, had told defendant that “it would go lighter” for him if he “told them about it.” The officer did not deny that he made such statement to defendant. Upon being questioned thereon, he frankly admitted, “I could have.” This left undisputed evidence in the case that the officer had made an offer or promise calculated to induce the confession of the defendant.

We are convinced that it cannot be reasonably found from the evidence that Officer Waldrop made any promise or offer to defendant calculated to induce him to make a confession. We are also convinced that there is no reasonable basis in the evidence for a conclusion that anything said or implied by Officer Waldrop served as an inducement to defendant to make the confession. The confession met all of the requirements as to voluntariness. Speaking to the requirement of voluntariness, it has been stated:

“If from a review of the surrounding circumstances it appears that an extrajudicial confession has not been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor, then such confession is admissible as evidence. Guenther v. State, 282 Ala. 620, 213 So.2d 679.” Bass v. State, 55 Ala.App. 5, 312 So.2d 576 (1975).

Appellant makes a special point as to the admissibility of the confession by saying that “Detective Waldrop knew at the time that the defendant was under severe emotional strain, and made no effort whatsoever to explain to the defendant his rights,” and contends “that under all the circumstances the State has failed to show that he made a knowing and intelligent waiver of his Miranda rights.” We do not understand that appellant takes the position that Detective Waldrop failed to inform defendant fully as to his constitutional rights or to warn him as to the consequences of a waiver of his rights, particularly his right against self-incrimination and his right to counsel, at the expense of the State, but suggests that in view of the condition of defendant at the time of the confession, which appellant describes as a “severe emotional strain” to the knowledge of Detective Waldrop, the officer should have done more than is usually required as a predicate to the admission in evidence of a confession.

In our opinion, taking all the circumstances into consideration, the statements made to defendant, the reading of the information and warnings contained in the Miranda card, as contained in the record, the reading by defendant of a printed acknowledgment that he signed, in which he stated that he had “been advised and duly warned by” Detective Waldrop of all of such rights, the evidence was sufficient to convince the trial court that the officer did “explain to the defendant his rights.”

There is nothing in the record to indicate that any physical, mental or emotional condition of defendant made him incapable of an understanding of his rights or of intelligently and knowingly waiving them. The abnormality of the particular crime demonstrates the abnormality of the one committing it, but we are convinced that he was physically, mentally and emotionally capable of fully understanding his rights, that he did understand them and that the waiver by him of them was knowingly and intelligently made by him.

One of the witnesses testifying against defendant was the victim of the crime. She was nine years and one month old at the time of her testimony. Appellant urges that she was an incompetent witness because she did not understand the nature of an oath or affirmation.

“(a) Persons who have not the use of reason, such as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, are incompetent witnesses.
“(b) The court must, by examination, decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness or infancy.” Ala. Code 1975, § 12-21-165

Immediately upon call of the witness, the trial judge, very appropriately in view of her immaturity, spoke to her, told her where she should be seated and asked her her age. Without then attempting to administer to her the oath of a witness, he continued appropriately to ask her preliminary questions as to her family, her school, whether she went to Sunday school and church, and some questions as to her knowledge of the Bible. The questions of the court and answers of the one called as a witness continue as follows:

“Q . do you know what happens to people from a religious standpoint that would tell a story an untruth, tell a lie?
“A Yes.
“Q What happens to them, from a [Bjible standpoint, do you know if that is good or bad to tell a story?
“A Bad.
“Q [Name], do you know what it means, I want to put you under oath to tell the truth, to swear to tell the truth, do you understand what that means that you are obligated to tell us the truth, do you understand that?
“MR. GORHAM: Let the record reflect that she said no to that other question. “THE COURT: And she said yes to the last one.
“Q Do you understand what it means [Her Name], I want to swear you to tell the truth?
“MR. GORHAM: Let the record reflect that she said no.
“THE COURT: Do you know what that means, that means I want to, in a moment, for you to raise your right hand and I want you to affirm or swear that you will tell us, all of us the truth to questions that the lawyers may ask you, do you understand that?
“MR. GORHAM: Let the record reflect that she doesn’t understand that, she said no.
“THE COURT: If I swear you, [Her name], you are obligated to tell the truth here, can you do that, you will do that? Is someone making you nervous, particularly, maybe it is me, in my loud suit.
“I want you to stand up and raise your right hand and I want to put you under oath. [Her name], you swear the statements you make here will be the truth so help you God, speak up, now, say yes, for the record, will you? Will you speak the truth, tell us the truth?
“A (Witness nodding head).
“MR. GORHAM: May I start objecting now?
“THE COURT: If you will, stand over there, I would appreciate it.
“MR. GORHAM: She is looking at her mother.
“THE COURT: I have been trying to get her relaxed.
“MR. GORHAM: I ask that she be placed under the rule and again, because of the circumstances here I ask again that her mother be placed out of the courtroom during her testimony.
“THE COURT: Because of her age and the nature of the proceedings here I am going to deny your motion.
“MR. GORHAM: Because of her age and nature of these proceedings I don’t think she is qualified — .
“THE COURT: The Court has ruled on that motion, the motion denied, go ahead, Mr. Bland.
“MR. GORHAM: I except. Are you denying me the right to stand between her and her mother?
“THE COURT: I am not denying you the rights, I am asking you to get back so he can ask questions, I am not going to let him stand between you and the witness, Mr. Bland.
“MR. BLAND: For the convenience of asking of this witness, may I stand over there, closer to her?
“THE COURT: Don’t stand in between each other. You can stand up here if he is going to stand over there.
“I direct traffic in the courtroom.”

Thereafter, the proceedings continued with reasonable placidity for an extended series of questions and answers of the witness until questioning came to the immediate circumstances of the alleged crime. It appears from the record that at that time the witness became unresponsive to questions asked her by counsel for the State and by the trial judge. It is indicated by the record that during that time, and, in fact, during most, if not all, of the time, from the commencement of her testimony, counsel for the State and counsel for defendant were standing and moving around; the witness’ mother was seated at the table of counsel for the State; defendant was, of course, seated at the table of his counsel, and in front of the witness had been placed a microphone into which she had been directed to talk and with which she was not familiar. Her subsequent testimony disclosed that after the crime defendant had threatened to kill her if she told about it. Before any testimony by the witness as to the crime, the court declared a recess for the express purpose of allowing her to be questioned by counsel for the State out of the courtroom, but in the presence of her mother and others. After the recess of five minutes, she testified readily as to the crime committed by defendant.

On cross-examination, the witness was asked what her mother told her at the recess, and the witness answered that her mother told her to tell the truth.

Irrespective of who was chiefly at fault in the matter of the witness’ not responding to questions as to the crime itself until after the recess, we are persuaded that the fault was not entirely that of the witness, and we are not convinced by such fact that the witness was incompetent.

The principle to be applied is succinctly stated in Gamble, McElroy’s Alabama Evidence § 94.02(3) (1977):

“Whether a child is qualified to take a witness’ oath is a matter that is lodged necessarily in the discretion of the trial court because, among other things, the trial court has the opportunity of observing the manner and appearance of the child while being examined, an opportunity which the appellate court does not have.”
“Kendrick v. State, 52 Ala.App. 230, 291 So.2d 165 (1974) (holding that seven-year old witness was qualified and of sufficient age and mental maturity to understand and appreciate binding effect of oath; citing McElroy); Rodgers v. State, 42 Ala.App. 660, 177 So.2d 460, cert. denied, 278 Ala. 712, 177 So.2d 464 (1965) (admitting testimony of daughter, almost 14 years old, with whom defendant was charged with having carnal knowledge); Horsley v. State, 42 Ala.App. 567, 1972 [172] So.2d 56 (1965) (accepting girl who was between seven and eight years old as competent witness in trial of her father for allegedly abusing her in attempt to carnally know her); see herein § 94.-01(5).” Id. n. 4

We can hardly imagine a case in which it would be more difficult for an appellate court to visualize with satisfaction the courtroom scene in plain view of the trial judge. We hold that the trial court was not in error in holding that the witness was competent to testify.

Even though not necessary, we note that there was strong evidence, in addition to the confession of defendant and the testimony of the victim, that tended to show defendant’s guilt of the crime charged.

We find no error in the record prejudicial to appellant. The judgment appealed from should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.

      . The specific act was fellatio.


author: BLOODWORTH, Justice.

text:
    Ex parte Dwight SLATEN.
    78-252.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

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


text:
    Jimmy Warren CARLISLE, alias v. STATE.
    6 Div. 859.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.
    Mark B. Poison, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Larry R. Newman, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for robbery, tried before a jury, and convicted. The jury fixed punishment at 21 years imprisonment. He was represented at nisi prius by appointed counsel because of his indigency; also on this appeal by different but appointed counsel.

It appears that appellant was previously tried and convicted for the same offense. The jury fixed punishment at 12 years imprisonment. He was represented at nisi pruis by employed counsel. He took an appeal and was again represented by employed counsel. This Court reversed the first judgment of guilt because the trial court refused to give a written charge, tendered by defendant, with respect to the legal effect of the alibi which defendant sought to establish. Carlisle v. State, 356 So.2d 702.

It appears in the indictment and in the record that the victim of the robbery was a pharmacist working in a drugstore in Jefferson County. He was on duty where the alleged robbery took place about 4 p. m. on November 6, 1975. There were two or three customers in the store at the time.

Two men entered the store, one of them presented a pistol and demanded narcotics. The other remained in the front while the pharmacist and the other robber went to the rear where the victim surrendered a quantity of narcotics of a proven value as alleged in the indictment. An unsuccessful attempt was made to open the cash register and take the money therein. Mechanical failure prevented the theft from the register.

The two robbers left the drugstore in a hurry to an outside area of the store.

One of the customers notified the policy by telephone. The incident was put on the radio police dispatch and picked up by an officer who was patrolling near the drugstore — the scene of the robbery.

This officer immediately put out dispatch to other officers and alerted them to watch for the offenders who were riding in a described Pontiac. It seems that one of the alerted officers knew defendant and spotted him on the highway not so far from the drugstore. These officers gave chase. They lost the Pontiac for a while, but later recognized the car and the defendant in another area, close to where they had seen him. As they approached, defendant and his two companions abandoned the Pontiac and ran. The record shows that an alerted detective saw defendant, drew his gun, and demanded that he stop. The defendant obeyed and was put under arrest.

As to what became of the other two, it appears that they were arrested and pled guilty to the robbery. They did not appear as witnesses for either side in the trial here under review.

Suffice it is, that there is no evidence that defendant was physically present with the two who went in the drugstore. Defendant was tried as an accomplice and as the alleged driver of the Pontiac, the getaway vehicle.

Defendant in the present trial took the stand. He admitted that he used his brother’s Pontiac to transport the two actual robbers to a point near the drugstore to get some “pot.” It seems from his testimony that the two told defendant that the person from whom they were to get the “pot” would not make the sale in the presence of a stranger. Hence, defendant remained behind and on their return took them in the Pontiac for further transportation. It was after this that the chase began and defendant was apprehended and arrested.

One witness testified that he was in his car riding on a ramp where a Pontiac passed at a rapid speed from which one of the occupants threw a pistol to the ground that fired when it hit and fired again as it bounced the second time. The witness got out and retrieved the pistol with the aid of a pencil to keep from erasing fingerprints. He delivered this pistol to the police authorities. Fingerprints lifted from the pistol were not identifiable.

Appellant’s counsel here asserts that his client was denied effective assistance of counsel by the circuit court’s failure to timely appoint counsel after request and to grant a continuance to allow appropriate preparation.

It appears in the record that there was some uncertainty as to whether or not defendant would need appointed counsel. It seems from the evidence on motion for a new trial that defendant, with the aid of employed counsel, filed an appropriate petition in the circuit court for reduction of bail. This petition was prepared and presented by Mr. Sutton, a Birmingham attorney, who contended in the circuit court that bail should be reduced. Upon denial, he obtained a review of this Court. Mr. Sutton was subsequently appointed by the circuit court to represent defendant on the trial below.

It appears in the record that the petition for reduction of bail was filed on April 22, 1978. The petition, after denial and appeal taken, was argued in the court on May 8, 1978. Mr. Sutton testified on motion for new trial as follows:

“Q All right, sir. Now what preparation, if any, did you make for this bond reduction petition?
“A Mr. Carlisle, Jimmy’s father, had a copy of the transcript from the first trial and I had that available and I think primarily I depended upon that.
“Q All right, sir. In your preparation for drafting the motion and so forth and presentation to the Circuit Court and then to the Appellate Court? (sic)
“A And also checked the court file upstairs and I read all the things that had been done in his case prior to that time. “Q All right, sir. You were aware that the case had been reversed on appeal, that it had been tried by a lawyer from Tuscaloosa and that it had been appealed by Roger Brown or Rusty McDonald? “A Yes.”

The present nisi prius trial was begun on June 12, 1978. Mr. Sutton was appointed on June 6,1978, and notified in Mr. Sutton’s best judgment on June 8, 1978.

It appears that before the trial that Mr. Sutton made an informal request for a continuance. This request was submitted to Judge Jasper’s law clerk who came back and reported that Judge Jasper would not agree to a continuance. Judge Jasper, at the time, was in charge of setting criminal cases for trial. No formal motion was ever presented to the trial court nor objection made to going to trial. There was no arraignment following reversal of the first judgment of guilt.

After hearing the evidence on the motion, the trial court (Judge Cole) made an observation that appears as follows:

“Let’s see, what else I have got. I might also say this. Sutton is a good enough lawyer. He can handle this case. Sutton tried a case this week and got the guy off clean. I though they had a lock on him. I thought the State was going to win hands down on a grand larceny case, it was a decoy case where the State puts a decoy out and catches him.
“I think that is the one he tried. I have tried four this week, but I think that is the one. But, anyway, he won a case this week before a jury. I can’t say anything more.
“I don’t think there is error in the case. I think this man got a fair trial. He has had two now and I think Sutton, considering what he had to work with “I mean, pshaw, he had this defendant — I mean there wasn’t much doubt about his guilt. Of course, that is just my opinion and I guess I would feel that way anyway since I have seen him convicted twice. I think Sutton did a creditable job with what he had to work with and I don’t mean he couldn’t be prepared. He was prepared but his trying the case was no different in this case than the first case except the first case they used the guy that had taken a fall for twenty years from the pen, upstairs.
“He put the defendant on the stand this time. The defendant didn’t take the stand in the first trial, as I recall, so I guess Sutton figured lose one way, try another way. I don’t know but I would say I think the defendant himself wanted to take the stand in this case, but I don’t know that.
“So I am just going to overrule this motion for a new trial and let the thing sit where it is.”

We have read the entire record and in our opinion the motion was properly denied. Attorney Sutton does not point out that we can find what he would have done different if he had been granted a continuance. We conclude that Mr. Sutton handled the case responsively as a sincere and conscientious attorney in his efforts to get his client a fair trial. It is sheer speculation that the results would have been different had the informal motion for a continuance been granted. Mr. Sutton having read the prior record, we conclude that it is doubtful that continuing could have been added to Mr. Sutton’s information had he been given more time. We think Judge Cole’s impression, supra, was pertinent to the issue here asserted.

II

Appellant further asserts an issue as follows: “Trial counsel was ineffective because of lack of time for adequate preparation.”

As we have already observed, we think the judgment of guilt and fixation of punishment should not be charged to the alleged ineffectiveness of Mr. Sutton. He was laboring to free a guilty client in the judgment of the jury. He presented his case to the jury in an able fashion and lost. Appellant’s present and able attorney on this appeal per chance might not have achieved different results had he been defendant’s attorney at nisi prius. Lankford v. State, Ala.Cr.App., 354 So.2d 297(3, 4, 5).

We hold that defendant got a fair trial and was ably represented. We think the judgment should be affirmed. It is so ordered.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Jimmy Warren CARLISLE.
    78-253.
    Supreme Court of Alabama.
    March 2, 1979.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Everett Stanley LINDSEY v. STATE.
    8 Div. 28.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      Frank W. Riggs, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted for the first degree murder of Robert Dewayne Waits by shooting him with a rifle. A jury convicted him of second degree murder and fixed punishment at thirty-five years’ imprisonment. The only issue presented for review is whether the trial judge erred in refusing to charge the jury on the issue of self-defense.

In brief the appellant maintains that the evidence on the question of self-defense came solely from the statement given to the police by the appellant and from the testimony of Doris Campbell. No witness testified for the appellant.

The facts of the incident contained in the confession are set out below.

“At approximately 2:00 A.M. 11/20/76 I was at Doris Cambell’s apartment at 1014 17th Avenue, Southeast. Doris and I have been going together for the past month or so. While I was at Doris’ house she asked me to go next door and ask her brother to come home. I returned a few minutes later and Doris started telling me that Dewayne Waits had come to her door while I was gone and tried to force his way inside. I told Doris to go get her sister to babysit while we went to eat. Doris had left to get her sister when I saw Dewayne start down the alley in his car. I approached Dewayne and told him to leave Doris alone because we were going together and after a brief argument Dewayne pulled a pistol and pointed it at me. I don’t know what kind of pistol it was. I then ran back in the house. Doris drove up about this time and Dewayne drove off. Doris and I went to the corner of the apartment to see where he went, and he turned around in his car and tried to run over us. Dewayne then drove on around the alley, and I told James, my nephew, to park the car. Just a few seconds later Dewayne drove through the alley again. The third time Dewayne pulled in the alley I got my rifle out of the trunk, and James, my nephew, grabbed the gun away from me and started toward the house. Dewayne in the meantime had stopped in the alley just off 17th Avenue, Southeast. I then ran and got the gun from James and took it out of the gun case and fired two shots in the direction of the car. Dewayne then started backing his car up the alley and out onto 17th Avenue, Southeast. I fired the last shot at the back fender of the car which was headed toward the East Acres office. Doris, James and I got in the car to take Doris to the hospital, but decided not to go in after we got there. I decided to come to the police station to see if I was in any trouble.”

Doris Campbell testified that she dated Waits for about eight months approximately one year before she began seeing the appellant. When Waits was killed she had been dating the appellant for four months. While Ms. Campbell initially testified that she did not know whether Waits was trying to run over herself and the appellant, she later stated that she received a cut on her hand from Waits’ automobile when he drove close to them. After the appellant fired two warning shots into the ground, her brother “yanked” her back into her house because “he was afraid I was going to get hurt”. “I was wrestling to get the gun from him (the appellant).” After she was in the house the appellant fired a third shot which struck and killed Waits.

The rifle slug penetrated the driver’s door of Waits’ automobile. The cause of death was “exsanguination or excessive bleeding as a result of hemorrhage caused by a gunshot wound delivered to the left upper hip”.

The appellant’s insistence that the trial court should have charged the jury on the subject of self-defense has been answered adversely in a number of cases which have held that, for an accused to be entitled to charges on the law of self-defense, he must first produce evidence warranting findings that he was in actual or apparent imminent peril and was unable to escape. Deloney v. State, 225 Ala. 65, 142 So. 432 (1932); Johnson v. State, 221 Ala. 632, 130 So. 175 (1930); Underwood v. State, 179 Ala. 9, 60 So. 842 (1913); King v. State, 71 Ala. 1 (1881); Lowery v. State, 340 So.2d 830 (Ala. Cr.App.), cert. denied, 340 So.2d 836 (Ala.1976); Cauley v. State, 33 Ala.App. 557, 36 So.2d 347, cert. denied, 251 Ala. 163, 36 So.2d 354 (1948).

Even if the testimony shows that Waits had been trying to hit the appellant and Ms. Campbell with his automobile, at the time the appellant shot neither he nor Ms. Campbell was in any immediate or imminent peril. In fact Ms. Campbell and the appellant’s nephew had struggled with him and attempted to take the rifle away from him. Also Ms. Campbell had retreated into her home before the shot killing Waits had been fired. A charge on self-defense would have been in total disregard of and contrary to the evidence. Therefore the refusal to give the requested charges on this subject was proper.

We have searched the record and finding no error prejudicial to the appellant affirm the judgment of conviction.

AFFIRMED.

All Judges Concur.


author: FAULKNER, Justice.

text:
    Ex parte Everett Stanley LINDSEY.
    78-250.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: DeCARLO, Judge.

text:
    Raul OYARZUN v. Alex PITTMAN et al.
    1 Div. 965.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      Robert B. French, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for appel-lees.
   DeCARLO, Judge.

This is an appeal from a judgment of the Baldwin Circuit Court, denying the appellant’s petition for the issuance of a writ of mandamus.

On December 31, 1977, law enforcement officers in Baldwin County arrested and charged approximately ten individuals with possession of marijuana. One of those charged and arrested was the appellant, Raul Oyarzun.

After indictment, but prior to arraignment, the appellant filed a petition for a writ of mandamus on relation of State of Alabama against the clerk, chairman, and members of the Baldwin County Jury Commission, alleging that the jury commission and the clerk had failed to carry out their duties, as prescribed by the laws of the State of Alabama, in selecting potential jurors, maintaining the jury rolls, and filling the jury box with prospective jurors.

A hearing was held and the appellant presented the testimony of a number of witnesses. Among those testifying were the respondents, Alex Pittman, Walter Foster and Isola Faust (members of the jury commission of Baldwin County), and Lois Hughes, the clerk of the commission. The Baldwin Circuit Court denied the petition at the end of the hearing and Oyarzun appealed the judgment to the Supreme Court of Alabama.

The appeal was transferred to the Court of Criminal Appeals by the Alabama Supreme Court on May 9, 1978. On May 16, 1978, the Court of Criminal Appeals struck the appeal of Oyarzun.

After an application for rehearing was overruled, the appellant filed a petition for a writ of certiorari in the Alabama Supreme Court, requesting that the Supreme Court require the Court of Criminal Appeals to hear the appeal. The petition for certiorari was denied by the Supreme Court of Alabama on June 9, 1978.

A petition for reconsideration of the denial of writ of certiorari was filed by the appellant on June 20,1978, and on June 28, 1978, the Alabama Supreme Court restored the case to its docket. On September 6, 1978, the Alabama Supreme Court restored the case to its docket. On September 6, 1978, the Alabama Supreme Court issued an order stating that it was the opinion of that court that the Court of Criminal Appeals had jurisdiction of the appeal and it was transferred to the Court of Criminal Appeals for review.

During the hearing on the petition, the three commissioners of the Baldwin County Jury Commission and its clerk were called to testify in support of the writ of mandamus. For the sake of brevity, we have summarized the testimony of these witnesses.

Lois Hughes was the clerk of the jury commission. She was appointed in December, 1976, and had served approximately one year at the time of this hearing. According to Mrs. Hughes, she was instructed to “get the names on the cards that were to go in the jury box and enter them into the jury roll.”

She testified that she was not to prepare a jury roll, but merely to add names. Further, she stated it was the commissioner’s job to gather the names of potential jurors to be placed on the jury roll. Also, that she had never been instructed to prepare a list of citizens of Baldwin County between the ages of nineteen and sixty-five. She explained that the names had listings of beats next to them, rather than precincts; and that the beats numbered one through fifteen. She said they endeavored to use the citizen’s “full name,” rather than initials.

Mrs. Hughes testified she had used the telephone directory of the Bay Minette area as a source for gathering names of citizens to be included on the jury roll.

Mrs. Hughes recalled that she had not prepared a list of names of the citizens in the county between the ages of nineteen and sixty-five, but stated, “we have been working on putting some younger ones in there.” She said that she had started this task approximately in January of 1978, about the time the Code was changed permitting nineteen year-olds to be placed on the list, which was several weeks prior to the hearing.

Further testimony by Mrs. Hughes was that she had been helping the commissioners to gather names and that this effort was being made “mostly on the telephone.” She testified she had approximately one-hundred and fifty to two-hundred cards prepared that were included in the jury box.

Mrs. Hughes testified that the ages of those on the jury roll were not listed and she could not tell how many people on the jury roll were over the age of sixty-five.

During further questioning, it was shown that specific named individuals did not appear on the jury roll. She stated there were some names that appeared on certain venires that had not been purged from the list. She explained that she had not had sufficient time to get to some of them, but did have correspondence in her folder on those to be taken off the jury roll. She said that the correspondence was from the circuit judge and the sheriff’s office.

Mrs. Hughes also stated she had added approximately three-hundred names to the jury list during her tenure as clerk of the commission. These names would appear at the bottom of the particular page on which they were added. There were names of individuals in the jury box, whose names did not appear on the jury roll, but she produced another list of about forty-five names, which she said she would compare with the jury roll to determine whether or not they were listed.

Mrs. Hughes stated that, during her tenure in office, approximately five-hundred names had been supplied to her by the commissioners. She said she did not know “how many ways they have for getting them (names),” but the commissioners brought them in during their meetings, and that she had also received them by mail. She said as to investigating the qualifications of the person whose name she had been given, such task was left up to the person who supplied her with the name; that she had received names only from friends and the jury commissioners.

Mrs. Hughes testified that the jury commission met four times a year usually in the probate judge’s office. Further, she said that on only one occasion had one of the commissioners been absent and that was due to illness. Mrs. Hughes said the names of the people to be added to the roll were discussed during these meetings, as well as those to be removed; that she did not strike any names from the roll unless she had letters from the circuit judge or the sheriff’s office. She admitted there were few names that she had typed on cards that were in the jury box that had not been entered on the jury roll and that she did not know the other ways the commissioners used to gather names, but she did know they used the telephone book and some personal contacts.

During further questioning, Mrs. Hughes stated that during her tenure in'office the jury roll had not been purged to determine those persons over the age of sixty-five.

Walter Foster had been the chairman of the jury commission for five years and he identified the jury roll as being the only one in existence. Further, he admitted, that, during his tenure of office, it had been the practice of the jury commission merely to add names to the pages in the jury roll.

Mr. Foster admitted he had not instructed the clerk to prepare a list of those citizens in Baldwin County from the ages of nineteen to sixty-five; that he had never instructed the clerk of the commission to examine the list of names prepared by the tax assessor, but did say he had asked the members of the commission to use telephone books and other methods to try to get names; and that he had instructed the clerk to examine the records maintained by the utility department within the county as a source of names. Mr. Foster stated that Ms. Garner, the previous clerk, had such a list which involved the “lower end” of the county.

Mr. Foster explained that he knew, personally, some five thousand people in Baldwin County, and by using the telephone book, making contacts and other sources, he gathered names. Mr. Foster testified he had not gone to every precinct in the county but that he had instructed some of the other commissioners to go to other precincts or districts.

Mr. Foster stated that the last jury commission meeting in Baldwin County was on February 1, 1978, and the meeting was for the purpose of going through the list of some forty or fifty names to be “purified.” During cross-examination, Mr. Foster stated he had received a list of people who had automobile tags registered in their name in Baldwin County. He said that the intent of the meeting was to use the automobile tag list names for the purpose of gathering names for the jury roll and that this was in addition to the use of his personal contacts and the telephone directories. He also testified that, if he did not know the particular people, he would call the solicitor to determine if they had been charged with a crime.

Isola Faust had been a member of the jury commission in Baldwin County for a period of two years at the time of the hearing. She testified she had been given a list of the rules by Mr. Foster and that she had worked “from Spanish Fort back to Point Clear, and in Robertsdale” for the purpose of gathering names. She said that she lived in Fairhope and had worked up and down the eastern shore; and that she had gathered names by calling people on the telephone and by contacting people that she knew.

During cross-examination, Mrs. Faust said she was seventy years old and had lived in Baldwin County for approximately thirty-five years, and that she had one son who lived in Foley and three daughters in Fair-hope.

Alex Pittman had been a member of the jury commission in Baldwin County for seven years. Pittman stated that his duty on the jury commission was to gather names to go in the jury box; that he did not know of any list that had been prepared showing the citizens of Baldwin County between ages of nineteen and sixty-five.

Mr. Pittman explained that, in gathering names, he visited different places in the county other than where he lived, and he had visited Robertsdale, Foley, Alberta, Lillian, Gateswood and Loxley; and that in gathering names, he not only relied on his own personal knowledge of the individuals he placed on the jury roll, but on the knowledge of other law-abiding citizens of the county.

During cross-examination, Mr. Pittman stated that he was seventy-four years old and had lived in Baldwin County all of his life. Further, that he had been born and raised in Gateswood a section of Baldwin County; and that he knew a “goodly portion” of the people in the county.

The petition for writ of mandamus contained fourteen allegations, three of which were jurisdictional in nature. The last two, numbered thirteen and fourteen, were not allegations in support of the petition. Thirteen was an assertion that the appellant would be tried by a jury not constituted in accordance with the laws of Alabama, and fourteen was an averment of standing of interest to seek such relief.

These allegations are grounded on the alleged fact that the jury commission of Baldwin County committed fraud in the performance of its duty. We will review the grounds of the petition in the light of appellant’s contention and the evidence submitted during the hearing.

The allegations set forth in the petition will be discussed in the order of their appearance, beginning with allegation number four.

From the petition, Number 4 reads:

“The Respondents have willfully, knowingly and intentionally failed to place the names of substantially all of the citizens of Baldwin County who are generally reputed to be honest and intelligent and who are esteemed to the community for their integrity, good character and sound judgment on the jury roll of Baldwin County, Alabama, and in the jury box of said county.”

In Fikes v. State, 263 Ala. 89, 81 So.2d 303, the Alabama Supreme Court stated:

“There is no legal reason for quashing an indictment or a venire simply because the jury commission did not put the name of every qualified person on the roll or in the jury box, in the absence of fraud (or a denial of constitutional rights). . . . ”

The court went on to say that the commissioners must act in good faith and “not omit a segment of the people who are qualified to serve without a fair representation.”

In recognizing this principle, the Federal District Court for the middle district of Alabama, in 1966, in Mitchell v. Johnson, 250 F.Supp. 117, stated that the purpose of the Alabama statute was to insure that at least “a reasonable approximation to the requirements of the jury venires include all qualified persons, and, hence, represent a cross-section of the community, with no significant groups being excluded without justifiable reasons . . .” See State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198.

The failure to place the name of every qualified person on the jury roll is not sufficient basis for quashing an indictment or venire without a showing of fraud or a denial of constitutional rights. Substantial compliance with the first paragraph of § 12-16-41, Code of Alabama 1975, is all that is required absent of fraud or a denial of constitutional rights. State ex rel. Gregg v. Maples, supra.

In Gregg v. Maples, supra, in defining the necessary fraud, the Supreme Court stated:

“Fraud used in this sense has been construed as encompassing more than criminal wiles: ‘Fraud is a relative term, it includes all acts and omissions which involve a breach of legal duty injurious to others.’ Inter-Ocean Gas Co. v. Banks, supra. And it has been held that ‘When it affirmatively appears that the names of a large number of citizens who possess the qualifications required by law of jurors, are intentionally omitted from the jury roll * *

Further, this court in Smith v. State, 54 Ala.App. 561, 310 So.2d 484, stated that the fraud required is that of an intentional omission from the jury roll and the jury box of large numbers of legally qualified citizens. Also, in Smith v. State, supra, this court said the aim and the purpose of the law is to obtain juries which truly represent a “cross-section of the community.”

The burden of showing fraud is upon the petitioner and there is a presumption that no legal fraud exists. Nixon v. State, 291 Ala. 657, 286 So.2d 315.

The U.S. Census of 1970 showed that Baldwin County had a population of 59,382. Of this figure, there were approximately 35,000 people between the ages of nineteen and sixty-five years of age. Presently, there are 3,145 names on the jury roll in Baldwin County, which is about ten percent of those within the age range eligible for jury service. Over five percent of the total population of Baldwin County is on the jury roll.

We cannot state that because only five percent of the total population of Baldwin County is on the jury roll, in and of itself as a matter of law, violated the constitutional rights of the petitioner. See Smith v. State, 364 So.2d 1 (Ala.Cr.App.1978).

Proof of what constitutes a fair cross-section of the community must be offered before the jury roll can be condemned for its alleged inadequate representation. No proof was shown to illustrate that a significant portion of the community had been consistently omitted from, or underrepresented on the jury roll. Smith v. State, supra.

From the petition, allegation Number 5 reads:

“Neither of the Respondents, their agents, servants or employees, has scanned voter registration lists, any list returned to the Tax Assessor, city directories, nor telephone directories. The Respondents have neither individually nor collectively visited every precinct within Baldwin County within twelve (12) months next preceding the filing of this Petition for Writ of Mandamus to enable said Commissioners, or the Clerk thereof, either as individuals, or as a group, to properly perform the duties required of them by the laws of the State of Alabama.”

No legal requirement exists, either by statutory or case law, mandating the use of any particular source of names. The only requirement being that there exists no systematic exclusion of the members of any race, creed, social or economic group. Gregg v. Maples, supra.

Mr. Alex Pittman, the jury commissioner, testified that he had visited Robertsdale, Foley, Alberta, Lillian, Gateswood and Lox-ley, for the specific purpose of gathering names of individuals to place on the jury roll.

Section 12-16-41, Code of Alabama 1975, (in effect at the time this was heard) required the clerk of the jury commission to visit every precinct in the county at least once a year for the purpose of gathering names. The clerk of the jury commission was Lois Hughes and not Mr. Pittman, but this court has held that another member of the commission can carry out this task. See Smith v. State, Court of Criminal Appeals Ms., supra.

Testimony was given by the probate judge regarding the location of the two precincts in Baldwin County. According to Judge D’Olive’s directions, we find that Mr. Pittman and Mrs. Isola Faust visited communities in both precincts.

Walter Foster, the chairman of the jury commission, stated that he had used telephone directories and automobile tag lists to gather names. Further, he said that he personally knew some five thousand people in Baldwin County, some of which he had placed on the jury roll. The other members of the jury commission testified that they had placed names from the various communities on the jury roll.

From the evidence, we conclude that the jury commission of Baldwin County substantially complied with § 12-16-41, Code of Alabama 1975, (in effect at the time this was heard). See Mitchell v. Johnson, 250 F.Supp. 117 (M.D.Ala.1966); White v. Crook, 251 F.Supp. 401 (M.D.Ala.1966). The use of the so-called “key man” system, along with the use of other lists of people (i. e. telephone books, automobile tag lists), would establish substantial compliance. Smith v. State, supra.

In short, appellant has not shown where any significant population group of Baldwin County was not represented on the jury roll as a result of the actions of the commissioners. No evidence was offered to show that the key man system did not furnish a representative sampling of all relevant segments of the county, or that the lists reflected disproportionate representation and were a product of discrimination. Smith v. State, Court of Criminal Appeals Ms., supra; White v. Crook, supra.

From the petition allegation Number 6 reads:

“The Respondents have failed to comply with the statutes of the law of the State of Alabama for making the jury roll, preparing a well-bound book of said roll, and filling the jury box of Baldwin County, Alabama, in that they have wilfully, knowingly and intentionally used a method other than that prescribed by law for the making of said Jury roll and the filling of said jury box. They have instead substituted their own system in that they individually and collectively gathered names in a random and unorganized manner and placed the names of various persons on the jury roll and in the jury box. Instead, the Respondents have relied almost entirely upon their subjective decisions as to the names which will be added to the jury roll and placed in the jury box.”

This court recognized in Smith v. State, 54 Ala.App. 561, 310 So.2d 484, that even if there were some irregularities in the actions of the jury commission in filling the jury box, as required by law, the venire is not void in the absence of fraud.

The use of the “key man” system by the Baldwin County Jury Commissioners has not been shown to produce a significant under-representation of any group. Although under-representation alone is not sufficient to show a prima facie case of discrimination, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the U.S. Supreme Court in Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536, stated that it would offer an opportunity for racial discrimination. In Alexander v. Louisiana, supra, the commissioners had selected names of potential jurors from a variety of sources. Afterwards, they mailed out questionnaires which included a space for indicating the race of a person filling out the questionnaire. When these questionnaires were returned the commissioners selected those people who were either qualified or exempt from service. The Supreme Court in Alexander v. Louisiana, supra, stated that the opportunity to discriminate occurred because the jury commissioners had the ability to invoke such “subjective selection.” The possibility of identifying each potential juror from the information on the questionnaire concerning race provided the factual information on which the “tainted subjective” decision could be based.

No evidence had been produced to show that the jury commission in Baldwin County had an opportunity to discriminate against any group. The commissioners stated that there was no indication on the list or the cards which would demonstrate the race or the sex of the potential juror named.

From the evidence presented during the hearing, it has not been shown that any group had been eliminated by the Baldwin County Jury selection process.

From the petition, allegation Number 7 reads:

“The Clerk of the Jury Commission of Baldwin County, Alabama, under the direction of the Jury Commission, has failed to obtain the name of every citizen of Baldwin County over nineteen (19) years of age and under sixty-five (65) years of age, listing their occupation, place of residence and place of business in such a manner as to obtain a full cross section of the county to compose the jury roll of said county.”

Absent fraud or denial of constitutional rights of the failure to place on the jury roll the name of every qualified person may not be the basis for quashing a venire. Bokulich v. Jury Commission of Greene County, D.C., 298 F.Supp. 181.

We cannot say procedures used by the Baldwin County Jury Commission did not demonstrate that the jury roll was not a cross section of the county. The Supreme Court of the United States in Swain v. Alabama, supra, reads:

“Neither the juiy roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.

Under the evidence presented by the appellant in this case it was not shown that any group was under-represented or had been consistently omitted from the jury roll. On the contrary, Ms. Blackmon, clerk of the Baldwin County Circuit Court, testified that she had seen black people, women and young people serving on the jury over the years.

From the petition, allegation Number 8 reads:

“The system employed by the Clerk of the Jury Commission to compose the roll of jurors in Baldwin County, Alabama, does not include the unregistered voters of Baldwin County. Thus a substantial segment of the population of said county has been excluded from jury service.”

We recognize that unregistered voters would seem to comprise a segment of a population of any county. Gregg v. Maples, supra. Nonetheless, a system of jury selection utilized by Baldwin County was not shown to have omitted them.

The only significant evidence on this point, came from Ms. Lois Hughes, Clerk of the Jury Commission, and she stated that she did not know whether the names of unregistered voters had been placed on the jury roll.

On the other hand, we have evidence showing that names were gathered from telephone directories, tax assessor’s lists, and tag ownership lists. We are sure that these lists contained names of unregistered voters.

Under these facts, we do not believe that the petitioner has met the burden or proof required of him. Nixon v. State, 291 Ala. 657, 286 So.2d 315.

From the petition, allegation Number 9 reads:

“The system of preparing the jury roll of Baldwin County, Alabama, as employed by the Respondents, excludes a substantial segment of the population in the area by failing to place on the jury roll and in the jury box the names of substantial numbers of women and blacks.”

No figures or statistics are shown in the record which would support this allegation. On the contrary, Ms. Blackmon, Clerk of the Baldwin Circuit Court, testified:

“MR. HENDRIX: By young people, I mean people that you consider to be young, like in their twenties, and so forth — people you might even know their ages.
“A Yes, sir. We have quite a few young people.
“Q Have you seen any black people serving on the jury venire in this county? “A Oh, yes. Plenty.
“Q Since the law went into effect for women to serve on the juries, have you seen many, many, many women called on the jury venires?
“A Yes, sir.”

From the petition, allegation Number 10 reads:

“The roll prepared by the Respondents and the box filled from said roll, comprising the jury roll and the jury box of ' Baldwin County, Alabama, excludes a substantial number of eighteen (18), nineteen (19) and twenty (20) year-old potential jurors. Thus, a cross section of the county is not included as potential jurors on the jury roll and in the jury box.”

One must be over the age of nineteen to be eligible for jury service, and eighteen-year-olds are not eligible. § 12-16-43, Code of Alabama 1975 (now § 12-16-60(a)(l) 1978 Supp., Code of Alabama 1975).

As to the exclusion of nineteen and twenty-year-olds, no evidence was presented to support this allegation.

The U.S. Supreme Court in Swain v. Alabama, supra, stated:

“That purposeful discrimination may not be assumed or merely asserted . it must be proven . . . ”

From the petition, allegation Number 11 reads:

“The Respondents have relied almost entirely on personal knowledge and personal contacts in preparing the jury roll. As a result, a substantial majority of the people of Baldwin County, Alabama, have been systematically excluded from jury duty in said county. Further, the Respondents have failed to arrange a jury roll alphabetically by precinct, in numerical order, listing the name of every person qualified to serve upon the jury in Baldwin County, Alabama, along with the occupation, residence and place of business of every person so selected.”

The only significant evidence that we have on this point came in the testimony of Ms. Lois Hughes, Clerk of the Jury Commission. She testified that when new names were added to the jury roll she removed the appropriate page in the jury roll and typed the new names at the bottom of the page. Aside from this, we have not found any evidence in the record concerning this point. This testimony by Ms. Hughes could, or could not, infer that the roll was kept in an alphabetical order.

Although the names on the jury roll did not have designations of precinct that corresponded to the two precincts in Baldwin County, the names on the roll did show designation by beats, which paralleled those beat numbers used by the tax assessor on his list.

We recognize that the purpose of having the precinct number next to every name is so the sheriff can easily locate prospective jurors when their names appear on the ve-nire list of potential jurors. The use of the beat numbers, of which there were fifteen, would make the job of locating these people a less difficult task. Designation by beats is geographically more specific than the úse of precinct numbers.

Under these circumstances, we fail to see how this prejudiced the petitioner in any way, and find substantial compliance. § 12-16-42, Code of Alabama 1975. Also, the evidence showed that the individuals on the roll had listed next to their names, their occupation, residence and place of business.

In Ms. Hughes’ testimony we find the following:

“Q I will ask you to look at that jury roll and tell me whether you can tell the ages of any of the individuals whose names appear on the first page of Precinct Number Four, the page I was reading from a moment ago — Béat Number Four.
“A No, sir, the ages are not on here. “Q The ages are not listed?
“A No, sir.
“Q The occupations — are they not?
“A Yes, sir.
“Q And their residence address?
“A Yes, sir.”

From the petition allegation Number 12 reads:

“The Respondents have failed to purge the roll of jurors in the immediate past to eliminate deceased persons, persons who have departed the county, and persons over the age of sixty-five (65) years. As a result, the jury roll of Baldwin County, Alabama, contains a substantial segment of the population over sixty-five (65) years of age, who have the option to serve or not to serve on the jury. This action has resulted in the jury roll of Baldwin County, Alabama, failing to comprise a cross section of the county.”

There was testimony from Ms. Hughes that the jury commission met four times a year. It was at these meetings that discussions were held on whether or not certain persons were still qualified to serve. She said that, if it was determined they were not qualified to serve, then their names were removed from the list. She testified that, unless the commission became aware that someone on the roll had since been disqualified, the name would remain on the roll. She explained that often the circuit judge or the sheriff would inform her of those persons to be exempted or disqualified.

As far as persons, over sixty-five years of age remaining on the jury roll, we are not aware of any such prohibition in § 12-16-43, Code of Alabama 1975, (nor Act No. 594, Acts of Alabama 1978).

Under the circumstances in this cause, we believe that the jury commission in Baldwin County has sufficiently followed the statute in an effort to carry out the intent for which it was adopted. We believe the facts in the record demonstrate that the purpose of the statute was substantially served. Smith v. State, Court of Criminal Appeals Ms., supra. Although it may be said that the system utilized by Baldwin County was imperfect in many respects, it cannot be said that the jurors did not reflect a cross section of that community.

It is therefore our opinion that the judgment of the Baldwin Circuit Court, in denying the petition for writ of mandamus, should be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Raul OYARZUN.
    78-238.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   ALMON, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Zannie MURPHY v. STATE.
    2 Div. 229.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      Charles H. Sims, III, Selma, for appellant.
    William J. Baxley, Atty. Gen., and Eddie Hardaway, Jr., Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted for the possession of marijuana and the Court sentenced him to fifteen years in the penitentiary. At arraignment, in the presence of counsel, he pleaded not guilty. After sentence was imposed, he gave notice of appeal. Appellant was found to be indigent, and a free transcript was furnished him. Trial counsel represents him on this appeal.

There are two issues raised on this appeal which appellant contends entitle him to a reversal of this case.

In the light of the view we take of this case, we do not deem it necessary to set out in detail the evidence presented by the State. A Deputy Sheriff of Dallas County received a telephone call from a confidential informant on the night of September 29, 1977, advising him that he had just left the camper trailer of appellant where he had seen several bags of marijuana and at that time he had purchased some marijuana from appellant. The officer met the informant a short time later that same night in downtown Selma at which meeting the officer was given additional information relative to appellant’s having marijuana in his automobile.

Early the next morning the officer went before Honorable J. C. Norton, Circuit Judge of Dallas County, Alabama, and signed two affidavits for search warrants for the camper trailer and the automobile. The officer revealed the name of his informer to Judge Norton, and Judge Norton issued two search warrants, one for appellant’s camper trailer and the other for his automobile.

Armed with these two search warrants the officer and Chief Deputy Duke went to appellant’s trailer and executed the search warrants. Upon arriving at the trailer, the officers knocked on the door of the camper and made known their identity. They ordered appellant to open the door and heard a noise in the back of the trailer. The Chief Deputy walked to the rear of the trailer and looked in a window. He saw appellant remove several bags from a table and put them in a closet. The officers told appellant, if he didn’t open the door they were going to shoot the door knob off. Appellant opened the door, and the officers entered the camper and served appellant with the search warrants. Officer Duke went straight to the closet where he found several bags of plant material. Appellant was placed under arrest and he was given the Miranda rights and warnings. Appellant was told to sit on the bed while the officers completed their search. In appellant’s automobile the officers found marijuana cigarettes, a smoking pipe, and a large suitcase with residue of marijuana therein.

In appellant’s camper the officers also found three sets of scales. According to their testimony one of the scales was “used to measure grams, one used to measure ounces and one used to measure pounds.”

While the officers were transporting appellant to jail he voluntarily stated that “the pills that you found in the car, I didn’t even know they were there. What I hate about the marijuana is that it had to be so much.”

The officers made a return to the search warrants to Judge Norton and the return showed the following:

“Eight (8) large clear plastic bags containing marijuana, one (1) brown paper wrapped container holding marijuana, and three (3) sets of scales.”

State Criminologist, Arthur Craig Bailey, testified that the substance seized from appellant’s camper trailer and automobile was, in fact, marijuana.

Appellant testified that he left Selma around 3 o’clock on the afternoon of September 29, 1977, and drove to Greenville, Alabama, to seek employment as a truck driver but was unable to locate anyone at the business where he had hoped to be employed. He did not return to Selma until after midnight as he went to a motel where he watched on television the heavyweight boxing championship match between Muhammad Ali and Earnie Shavers. The night manager of the motel supported appellant’s testimony in this regard.

Appellant further testified that he saw the officers remove the bags of marijuana from the closet of his camper trailer, but denied this marijuana belonged to him, and said that it was not in his trailer when he left for Greenville on the afternoon of September 29,1977. He did admit the marijuana found in his car belonged to him for his own personal use. ' He denied telling the officers that he had the only keys to the trailer. He stated the camper trailer was eighteen and one-half feet long.

On rebuttal, the State called one of the officers who executed the search warrants, and this officer testified that appellant told him that he had the only keys to the trailer.

The first issue raised by appellant which he contends constitutes reversible error is the ruling of the trial court in not permitting the State to furnish him the name of the confidential informer. We do not agree.

Public policy forbids the disclosure of an informant’s identity unless it is essential to the defense set up by the accused and is necessary to show his innocence. Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151; Dixon v. State, 39 Ala.App. 575, 105 So.2d 354; Parsons v. State, 251 Ala. 467, 38 So.2d 209; Kilgore v. State, 50 Ala.App. 501, 280 So.2d 206.

Under the undisputed testimony in this case the confidential informer was not an active participant with appellant in the possession of the marijuana found in appellant’s small camper trailer to which appellant had the only keys.

The other issue raised by appellant contains merit. Appellant requested the following written charge:

“The Court charges the jury that if you have a reasonable doubt of the defendant’s guilt growing out of the evidence or any part of it, you must acquit him.”

This charge was not covered in the Court’s oral charge or in the given charges requested by appellant.

In a long line of cases this Court and the Supreme Court have held this identical charge good and its refusal error to reverse. For a collection of these cases see Tillman v. State, Ala.Cr.App., 360 So.2d 1074.

Because of the refusal of this charge we are compelled to reverse the judgment and remand this case for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte STATE of Alabama, Ex rel. ATTORNEY GENERAL.
    78-240.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


text:
    Tommy JENKINS v. STATE.
    3 Div. 945.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.
    Charles M. Law, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Karen Neal Daniel, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for escaping from a penitentiary or guard under Section 13-5-65, Code of Alabama 1975.

The evidence is without dispute that on May 30, 1976, the appellant was serving a thirty year sentence for robbery and was assigned to Honor Camp No. 400 (Red Eagle Honor Farm) of the Alabama Prison System as a member of the inmate staff. On that day he was granted an eight hour furlough. The escape occurred when the appellant failed to return. He was eventually captured in Oregon.

The appellant’s inmate file was admitted in evidence and reveals that the appellant was not on work release when the escape occurred. See Miller v. State, 349 So.2d 129 (Ala.Cr. App.1977).

I

The specific question initially presented by this appeal is whether the failure of a convict, sentenced to imprisonment in the state penitentiary, to return to his designated place of confinement from a permissive and temporary release (furlough, eight hour pass) is an escape within the terms of Section 13-5-65, Code of Alabama 1975. The appellant contends that the failure to return from a furlough is an escape within the meaning of Section 13-5-68, Code, governing escapes not otherwise provided for.

The appellant was indicted and convicted under Alabama’s general escape statute for state prisoners which provides that:

“Any convict who escapes or attempts to escape from the penitentiary or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall, on conviction, be imprisoned for an additional term of not less than one year.”

The facts do not bring this case within the influence of any escape statute other than Section 13-5-65 (general) or Section 13-5-68 (escapes not otherwise provided for). The appellant was not sentenced to imprisonment in the county jail, Section 13-5-63; was not being removed from jail, Section 13-5-64; was not a United States prisoner, Section 13-5-66; was not being conveyed to the penitentiary, Section 13-5-67; was not on work release, Sections 14-8-8 and 14-8-42; and was not temporarily released for educational purposes or purposes of seeking employment and residence, Section 14-8-67.

Though there is some authority to the contrary, the majority view as recognized by a significant number of cases is that

“for the purposes of a prosecution for escape from custody under a general escape statute, a prisoner remains, in law, as much in custody when he is allowed outside the prison without supervision as when he is confined within the prison walls.”
76 A.L.R.3d 658 at 670 (1977).

The underlying theory is that the “critical factor” in escape is the

“defendant’s voluntary departure from an underlying and continuing ‘legal’ custody by the institution of commitment of the person of the defendant — it being unessential whether at the particular moment of defendant’s departure such ‘legal custody’ is being objectively manifested in fact by a physical restraint of defendant’s person.”
State v. Holbrook, 318 A.2d 62, 76 A.L.R.3d 646, 652 (Me.1974).

Clearly, the granting of a furlough or temporary pass does not discharge the prisoner from legal custody. In no sense could it be said to constitute a release from the prisoner’s term of sentence or confinement. Without question, the time the prisoner is outside the physical restraint of the penitentiary or of a guard while on a furlough is counted as part of his sentence.

Though this question has never been specifically answered before by the appellate courts of this State, some authority for the majority view exists.

“By the giving of the bond the prisoner is not discharged from custody, but is as much within confinement as if enclosed within the walls of the jail, because the stipulation of the bond is that he will continue in the custody of the keeper of the jail, his steward, deputy or other officer within the prison bounds as by law established. For the space of sixty days these bounds extend to the limits of the county; but after that period they were restricted to the walls of the jail; it is therefore just as much an escape to remain out of the jail, after the expiration of sixty days, as it would be within that time to withdraw from the county.” McMichael v. Rapelye, 4 Ala. 383,384-385 (1842).

In Thornton v. State, 356 So.2d 667 (Ala.Cr.App.1978), this court held that the defendant was “not actually, but constructively, in jail at the time of his flight”. There the defendant had been convicted for a felony and sentenced to ten years’ imprisonment. He was a “penitentiary prisoner” though he had not yet been transferred to the penitentiary. The escape occurred when the defendant was in the sheriff’s office waiting to be taken to a doctor’s office for treatment. During the temporary absence of the deputy sheriff in whose custody the defendant had been, the defendant took flight and was therefore subject to prosecution under Section 13-5-65, Code (at that time Title 14, Section 153, Code of Alabama 1940). In Hall v. State, 352 So.2d 8 (Ala.Cr.App.), cert. denied, 352 So.2d 11 (Ala.1977), this court held a defendant was, “in the statutory sense of the word, in the penitentiary”, where he was serving his ten year sentence for robbery in the county jail, receiving time credit as though time were being served in the penitentiary and simply awaiting transfer to the penitentiary. The defendant was therefore properly prosecuted under Section 13-5-65.

While the legislature has seen fit to reduce the crime of escape from a felony to a misdemeanor for an inmate on the work release program, Miller v. State, 349 So.2d 129 (Ala.Cr.App.1977), such reduction has not been extended to those inmates on furlough from an honor camp. Though the minimum statutory punishment permissible may be harsh in certain instances, it is not within the jurisdiction of this court to review sentences within statutory limits. Wilson v. State, 268 Ala. 86, 105 So.2d 66 (1958); Smoke v. State, 347 So.2d 564 (Ala.Cr.App.1977).

Based on the above, we find that a prisoner on furlough is as much in the legal custody of the institution for purposes of escape as is a prisoner confined within the prison walls. The appellant was therefore properly indicted and convicted under Section 13-5-65, Code, and the motion to exclude the State’s evidence was properly denied.

II

Because of his escape, prison disciplinary action was taken against the appellant resulting in his loss of twelve months’ good time. The action of the Disciplinary Board and the conviction are based on the same factual situation. The appellant contends that the action of the Disciplinary Board constituted a bar to further prosecution for the same offense.

The double jeopardy provision of the Fifth Amendment is not violated because a prisoner is subjected to administrative punishment (either reclassification or loss of good time) by prison authorities for violating prison regulations and is also prosecuted in a criminal action based upon the same facts. Fano v. Meachum, 520 F.2d 374 (1st Cir. 1975); United States v. Stead, 528 F.2d 257 (8th Cir. 1975); United States v. Apker, 419 F.2d 389 (9th Cir. 1969); United States v. Boomer, 571 F.2d 543 (10th Cir. 1977). This is well established in the United States Court of Appeals for the Fifth Circuit. United States v. Herrera, 504 F.2d 859 (5th Cir. 1974); Gilchrist v. United States, 427 F.2d 1132, citing authority at 1133 (5th Cir. 1970). It is also the law in Alabama.

“Infliction of disciplinary penalties to be endured contemporaneously with a sentence being served under a judgment of a competent court does not lengthen the court-imposed sentence. Therefore, the administrative determination does not put the convict in jeopardy because the punishment is only of a harsher degree (but within the law) and not of a new term.”
Artrip v. State, 41 Ala.App. 492, 493-494, 136 So.2d 574, 575 (1962).

We have carefully searched the record and finding no error prejudicial to the appellant affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


text:
    Ex parte Tommy JENKINS.
    78-225.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

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