author: DON P. BENNETT, Circuit Judge.

text:
    Willie Frank REESE v. STATE of Alabama.
    5 Div. 333.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    For Opinion on Rehearing Dec. 6, 1976.
    See 339 So.2d 1107.

      Marlin M. Mooneyham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   DON P. BENNETT, Circuit Judge.

Willie Frank Reese, indicted April 8, 1975, for robbery, was tried by a jury on April 21, 1975, and convicted; thereby receiving a sentence of ten years in prison. He now appeals from his conviction.

I

The State’s essential evidence was the testimony of the victim, Mrs- Ramsey Brown, who identified the Defendant as the one who robbed her at her store on October 10, 1974. Other than the in-court identification, Mrs. Brown had picked out the Defendant’s picture from a group of six pictures presented to her the day after the robbery on October 11,1974. In addition an automobile fitting the description of the one driven away from the scene of the crime was traced to the Defendant.

The Defendant contended that he did not commit the crime, was not at the place of the crime at the time it occurred, that he had never been to the particular locality, and offered testimony other than his own that he was at another place, miles away, at the time the crime allegedly occurred.

II

The Defendant argues three main assignments of error. The first derives from a question propounded a character witness for the Defendant, who was also Defendant’s grandmother. The witness testified to the good character of the Defendant and then the following question was asked by Defendant’s attorney:

“Does the fact that you’re his grandmother cause you to alter any of your testimony which you’ve made today?”

The State’s objection to the question was sustained and this ruling of the Court constitutes the Defendant’s contention of error.

Both the Defendant and the State agree that the landmark case of Starr v. Starr, 293 Ala. 204, 301 So.2d 78, is the latest authority on the subject of allowing a witness to testify to his mental state. The difference of opinion is in application. The Defendant contends that the question is permissible under Starr, and the State, with most impressive erudition, distinguishes the Starr case from the instant case.

Considering the decision in the Starr case most favorably for the Defendant here, and assuming that the witness would have answered in the negative (also favorable to the Defendant), the Defendant’s ease would be strengthened very little and most likely not at all by allowing the question. The witness was in fact the grandmother of the Defendant and to think that the jury might find the witness more credible or less likely to be guilty, if the grandmother is allowed to personally assert that this relationship to the Defendant would not influence her opinion of him, is absolutely absurd. Besides, the question as worded does not make sense. We are assuming something it does not say. The witness, grandmother, has testified that the Defendant has good character. Now the defense asks her if, because she is the Defendant’s grandmother, she wishes to alter her testimony. We all have assumed, perhaps, that the Defendant’s attorney meant to ask a question similar to the following:

Does the fact you’re his grandmother cause you to testify as you have? or If you were not his grandmother, would your testimony be the same?

And even if we give the question, as worded, the meaning intended and apply the holding of the Starr case, we believe that the question is still objectionable. In the Starr case, referring to a witness testifying to his mental state, the court stated that a witness could do so, “provided (italicized) that the testimony is material to the issues in the case”. The witness, grandmother, was allowed to give material testimony which related to the Defendant’s good character. The other testimony sought and rejected could hardly be considered material. And the Court goes further to say:

“This is another area where the sound discretion of the trial judge will come into play. Thus we will not review the court’s ruling in either admitting or excluding such evidence in the absence of abuse.”

This Court finds no abuse of discretion on the part of the trial judge in rejecting the question. It is also worthy to note that the witness did testify as to her mental state regarding the Defendant. The testimony of his good character is an opinion, which itself is no more or less than an expression of a mental state. The question objected to related to why the witness (the grandmother) thought as she did. Even Starr and later Roynica v. State, 54 Ala.App. 436, 309 So.2d 475, certiorari denied 293 Ala. 772, 309 So.2d 485, does not go that far. In Starr it was a question of an intention to carry out a plan. In Roynica it was whether or not the witness “noticed” something or other. In neither case, did the court say the witness should be allowed to state why he or she had such an intention or noticed such and such. The court did hold that a witness could testify as to “motive”, which does get to the “why” of things. Yet motive we associate with an act rather than a thought. Hence the disallowed question propounded the witness in the instant case would go so far into the workings of the mind that it would be difficult to separate a reasonable mental state from fantasy or surmise. Therefore, the question for the several reasons mentioned was properly refused.

Ill

■ The next specification of error presented by the Defendant is founded mostly in the Alabama constitutional provision that an “. . . accused has a right to have compulsory process for obtaining witnesses in his favor; . . . ” Alabama Constitution, Article 1, Section 6, Code of Alabama of 1940, Vol. 1, Recompiled 1958 (as amended). The facts relied upon in support of this assignment were elicited at the trial out of the presence and hearing of the jury. Defendant issued a subpoena on the day of the trial for Mr. Ramsey Brown, husband of the robbery victim, Mrs. Ramsey Brown. The Sheriff did not serve the subpoena. The Defendant attempted to show by a witness, Arthur Harris, that within fifteen or twenty minutes after the robbery he appeared at the scene and that the husband stated to him that he had shot a hole in the robbers’ automobile and that the automobile, which he saw, was brown or beige in color. The automobile traced to the Defendant, of course, was white with a black top and did not have a bullet hole in it. The court sustained an objection to the testimony of witness, Harris, in this regard and would not require the Sheriff to bring in Mr. Brown, either by subpoena or attachment. The Court did allow the Sheriff to testify that the witness, Brown, was in a nursing home only three blocks away, but that in his opinion he was neither mentally nor physically competent to testify. The Sheriff was also allowed to testify that on the day of the robbery, the witness was incompetent. Other testimony of the Sheriff was that he had known Mr. Brown all of his life and most recently had seen him within three or four weeks of the trial. It is well established law that upon proper predicate a layman can testify as to his opinion of the mental condition of another at a particular time. For what it was worth the Sheriff’s testimony was admissible. Certainly the testimony of the witness, Harris, as to what Mr. Brown told him was hearsay and does not become admissible by any exception to the rule governing such. It would be a much stronger contention for the Defendant if the Defendant’s attorney had attempted to ascertain Mr. Brown’s condition far in advance of the trial, either in person or through testimony, expert or otherwise, of someone at the nursing home where Mr. Brown resided. ' Certainly the defense was aware very early in the proceeding that Mr. Brown arrived at the scene of the robbery within minutes or even seconds after it occurred. It was even known that he shot at the departing automobile. Apparently, however, the defense did nothing to contact Mr. Brown and try to determine what he knew about the case before the day of trial. Even the Sunday afternoon immediately before the day of trial, when the Defendant’s attorney learned of Arthur Harris’s testimony, was not too late for the attorney to ascertain the condition of the witness, Mr. Brown. The Alabama Constitution states that an accused has the right to compel the attendance of witnesses “in his favor” at his trial. That the witness, Brown, would testify in the Defendant’s favor was not established at all.

The Defendant tried two or three times to question Mrs. Brown about what her husband may have told her about his shooting the automobile. Objections by the State initially to these questions were sustained. Eventually, however, the State decided it also wished for Mrs. Brown to answer this question, but the court still would not allow it. The answer to such a question would undoubtedly be hearsay. The court wisely in both instances, Mrs. Brown and Arthur Harris, prohibited such questioning.

The Defendant failed to timely request the attendance of the witness, Mr. Brown, at the trial and failed either to make a showing that the testimony of the witness would be favorable to the Defendant or that the witness was competent, mentally and physically, to testify. As to the requirement that an attachment or subpoena must be requested in timely fashion, see Forrester v. State, 41 Ala.App. 654, 148 So.2d 251. In view of these omissions the trial court did not err in refusing to require the witness, Mr. Ramsey Brown, to appear in court.

The case of Terry v. State, 120 Ala. 286, 25 So. 176, cited by the State as authority for not requiring a witness to appear upon a showing that the witness is sick is not applicable here. Had the State in the Terry case not stipulated with the defense as to the testimony of the sick witness, it would most likely have been error not to have granted a continuance of the case upon motion of the Defendant. Terry, supra, at 178.

IV

We are next brought to the refused written charges requested by the Defendant and which he cites as error. These are as follows:

6. The court charges the jury that the law presumes the defendant innocent of the indictment, and this presumption continues to go in favor of the defendant until the evidence convinces the jury, beyond a reasonable doubt of his guilt; and you cannot find the defendant guilty of any offense charged in the indictment until the evidence in the case satisfies you beyond all reasonable doubt of his guilt, and you cannot find the defendant guilty of any offense charged in the indictment until the evidence in the case satisfies you beyond all reasonable doubt of his guilt, and so long as you, or any of you, have a reasonable doubt as to the existence of any of the elements necessary to constitute the offense you should not find the defendant guilty.

7. The court charges the jury that the law presumes the defendant innocent of the indictment, and this presumption continues to go in favor of the defendant until the evidence convinces the jury, beyond a reasonable doubt of his guilt; and you cannot find the defendant guilty of any offense charged in the indictment until the évi-dence in the case satisfies you beyond all reasonable doubt of his guilt, and you cannot find the defendant guilty of any offense charged in the indictment until the evidence in the case satisfies you beyond all reasonable doubt of his guilt, and so long as you, or any of you, have a reasonable doubt as to the existence of any of the elements necessary to constitute the offense, you should not find the defendant guilty.

8. The presumption of innocence attends the accused as a matter of evidence, and is sufficient in itself to authorize the acquittal of defendant, and, to displace this presumption of innocence, the state is required to offer evidence that convinces you beyond all reasonable doubt as to the guilt of defendant.

10. It is the duty of the State to prove every material fact charged in the indictment to a moral certainty, and to satisfy the mind of the jury of the defendant’s guilt beyond all reasonable doubt, and if they have failed to do this, and the jury can account for the defendant’s innocence upon any reasonable hypothesis, in view of all the evidence, then they should find him not guilty.

14. The court charges the jury that if the evidence for the State consists of testimony as to the truth of which the jury have a reasonable doubt, the jury must not convict the defendant although they may not believe the testimony of defendant’s witnesses.

17. The humane provision of the law is, that there should not be a conviction upon the evidence unless to a moral certainty it excludes every other reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the acts, then the guilt of the accused is not shown by that full measure proof which the law requires.

18. The court charges the jury that the law presumes that the defendant has testified truthfully in this case, and that it is your duty to reconcile his testimony and the testimony of all the other witnesses in the case with the presumption that he is innocent, if you can reasonably do so.

19. I charge you that if defendant was at another place at the time of the robbery, he should be acquitted, where evidence was introduced tending to establish an alibi.

27. Good character itself is part of the evidence in this case, and if the jury upon a consideration of all the evidence have a reasonable doubt growing out of any part of the evidence, the jury will give the defendant the benefit of such doubt and acquit him.

At the outset we should point out that the record transcript shows a given charge numbered 7 and also a refused charge numbered 7, and likewise a given charge numbered 8 and a refused charge numbered 8. The numbered 7 charges are not the same. Neither are the numbered 8 charges. So to minimize confusion they will be referred to as given charge number 7 and refused charge number 7; and given charge number 8 and refused charge number 8.

Refused charges 6 and 7 are identical. Although the same phrase is repeated in each charge, id est:

. . and you cannot find the defendant guilty of any offense charged in the indictment until the evidence in the case satisfies you beyond all reasonable doubt of his guilt; . . .”

the charge is held good (with the repetition) in the case of Smith v. State, 32 Ala.App. 155, 22 So.2d 607. However, the Smith case was reversed for failure to give this charge only because the Smith record did not reveal any other charge, oral or written, which instructed the jury about the presumption of innocence of an accused in a criminal case. In both the court’s oral instructions, and in other written charges given for the Defendant in the instant case, the theory of the Defendant’s presumption of innocence is thoroughly and accurately presented to the jury.

The Defendant cites Burk v. State, 216 Ala. 655, 114 So. 72 as authority for approving his refused charge 8. A close reading of the Burk case actually says just the opposite. That opinion is written by Chief Justice Anderson, who himself dissents from the majority opinion. The majority held that this charge was bad because it requires the State alone to overcome the presumption of innocence. This holding recognizes the right of the jury to consider all evidence — that of the State and defense — in determining whether the presumption is sufficiently rebutted. That court said:

“[T]he presumption continues until overcome by the evidence, whether produced by the state, or defendant.”

Defendant’s charge 7 of given charges is identical to Defendant’s charge 10 of refused charges, and is substantially the same as Defendant’s charge 17 of refused charges. Charge 19 of refused charges is amply covered by given charges 20 and 21. In fact the latter charges are stated more favorably for the defense than charge 19.

Refused charge 18 is covered substantially in the court’s oral charge, id est:

“That it is the duty of the jury to make all the witnesses including the Defendant to speak the truth if it can reasonably be done.”

This, in effect, is the same as saying that all witnesses, including the Defendant, are presumed to be telling the truth and their testimony is to be reconciled with all the other evidence (which would include the defendant’s presumption of innocence) if it is reasonably possible.

Refused charge 22 is certainly well covered in the Court’s oral charge and Defendant’s given written charges 23, 24 and 25. Likewise, refused charge 27, given its most intelligible meaning, is synonymously expressed by Defendant’s given charges 23, 24, 25 and 26. It should be mentioned, however, that charge 27 is vague and quite uncertain in meaning, failing to connect the evidence of good character with the concept of reasonable doubt of his guilt. Contrary to Defendant’s argument of what is held in Caldwell v. State, 36 Ala.App. 229, 55 So.2d 211, certiorari stricken, 256 Ala. 466, 55 So.2d 213; that case found that this charge is “abstract”, and disapproved it.

Perhaps the refused charge presenting the most confusing here is number 14. Evidently the defense attorney mismatched his citations with charges. Refused charge 10 was not an issue in the following cases cited by Defendant as authority for this charge:

Griffin v. State, 150 Ala. 49, 43 So. 197; Jones v. State, 20 Ala.App. 96, 101 So. 67; Odom v. State, 172 Ala. 383, 55 So. 820; Brown v. State, 150 Ala. 25, 43 So. 194; Davis v. State, 23 Ala.App. 419, 126 So. 414.

Refused charge 14 was not the charge approved or at issue in Robinson v. State, 36 Ala.App. 604, 61 So.2d 140. The State points this out, but concludes that the Defendant simply reworded the charges discussed in the Robinson case in order to formulate his charge 14. This is not the case. Defendant’s refused charge 14 was approved verbatim in the case of Jones v. State, cited above, and the refusal to give this charge was held reversible error. The question presented here then is whether or not this charge (14) was covered substantially by the other instructions, oral or written, given the jury. We believe that it was so covered. Such a charge is no different in meaning than the general charge that reasonable doubt of defendant’s guilt arising from any or all the evidence should result in his acquittal. This principle was emphatically and repeatedly stated in Defendant’s given charges 8, 9, 11, 12, 13, 15 and 16, as well as the court’s general instructions.

V

CONCLUSION

We have considered the entire record under Code 1940, Title 15, § 389, including the following:

a. That notice of appeal was timely filed;
b. The Clerk’s certificate;
c. The court reporter’s certificate;
d. The indictment (caption, charge, conclusions and endorsement); and its timeliness;
e. Proceedings to determine applicability of Youthful Offenders Act;
f. Judgment entry (arraignment — presence of counsel, twelve jurors, empan-elling and swearing of jury, verdict, adjudication of guilt, allocutus, sentence and notice of appeal);
g. Proceedings on the motion for, new trial, if any; and
h. Each ruling of the trial judge adverse to the appellant (including without limitation the written charges refused appellant, those given for the State— if any — and appellant’s exception to the oral charge to the jurors).

From this examination we conclude that error is not made to appear.

The foregoing opinion was prepared by the Hon. DON P. BENNETT, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, Title 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED

All the Judges concur.


source: Caselaw Access Project

author: CATES, Presiding Judge.

license: Public Domain

text:
    William CARRINGTON v. STATE.
    5 Div. 339.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.

      Tom Radney, Alexander City, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State, appellee.
   CATES, Presiding Judge.

Assault with intent to ravish: sentence, five years imprisonment.

The evidence was in conflict. The verdict, while it cannot legally be labeled a compromise, certainly finds scant support in the testimony. The appellant was indicted for rape; the prosecutrix’s testimony was to that effect.

The appellant’s case, if it had been credited to the requisite degree, was that the Seventh Commandment to the contrary he partook consensually of fruit of the forbidden tree.

The jury, confronted with dire alternatives, chose a tertium quid — one which was permissible under at least one aspect of the State’s proof and for an offense embraced in the indictment for the capital crime of rape.

Under Rule 28(a)(7) ARAP Carrington’s counsel cites adverse rulings, to wit:

1. Admitting a hospital certificate in evidence to establish the birth before the sexual encounter — of a child by the prose-cutrix; the thrust was to head off an anticipated defense that he was the father and not the man named in the certificate;
2. Permitting claimed details of the prosecutrix’s complaint to be elicited; and
3. Prejudicial conduct, e. g., questioning and argument referring to Carring-ton’s criminal record and association with convicted felons.

I

The grounds of objection to the reception of the hospital’s certificate of birth were that the statutory certificate emanating from the State Health Department was sole and exclusive. Counsel cites Code 1940, T. 22, § 42, as amended.

However, under the peculiar — if not startling — mode of proof here employed by the prosecution, the court below had before it the best proof, i. e., the child’s mother as a witness. The hospital certificate, which was not self proving in this case, came into evidence, not by the viva voce examination of the hospital’s custodian of records, but by the testimony of the prosecutrix.

Certainly a mother, preeminently of all family members, is competent to testify as to the birth of her child even though circumstances might not allow her to be an eye-witness to its delivery. In this case the paternity of the child was testified to by the prosecutrix. The introduction of the hospital certificate, whatever its infirmities under the rules of evidence, was harmless in this case.

II

The prosecutrix’s husband was in Detroit at the time in question. She told her father of the claimed rape. However, there was a delay. The State claimed the father was not available for a prompt “hue and cry.”

A prosecutrix’s delay in complaining of rape is a factor for the jury to consider as to the weight to be given to the woman’s testimony. Here, appellant asked for no instruction as to the fading force of a delayed complaint of rape.

We have examined the entire testimony claimed to have comprised a relation of details and find that no impermissible details were adduced before the jury.

III

The prosecutrix called the defendant “Mad Dog” which was also a name which the indictment ascribed to him by way of alias. Hence, it was within the legitimate bounds of argument for the District Attorney to use this appellation.

In a number of instances the trial judge sustained defense objections. One of the thorny points came from defense counsel’s motion to keep the prosecution from cross examining a proposed defense witness as to his conviction of a crime involving moral turpitude. In view of our statute expressly allowing this questioning, we agree the trial judge had no choice but to deny the motion, Wigmore to contrary notwithstanding.

The prosecutrix on the night in question went to the hospital where she requested treatment for lacerations to her mouth. She told the hospital staff present that she had fallen and hit a coffee table. This, she afterwards said, came from her fear of the defendant, who in truth she asserted was the author of her cut on the mouth and had threatened her.

In closing argument the District Attorney said, inter alia: [R. 95]

“She had fear in her heart, for all she knew, Mr. Mad Dog was around, that Mr. Mad Dog was in and out of that emergency room wagging his tail, back and forth—
TOM RADNEY — We make a motion for a mistrial, * * *.”

Part of the repartee of counsel alluded to Mr. Mad Dog’s not having — at least under the evidence — any tail whatsoever.

No doubt some of this exchange revealed what Justice Merrill once characterized as “forensic nonsense.” Yet we have considered the entire record under Code 1940, T. 15, § 389. From this examination we conclude the judgment below — particularly in view of the verdict and light sentence — is to be

AFFIRMED.

All the Judges concur.

      . Often ascribed as a nickname for Mogen David 20-20.


author: EDGAR P. RUSSELL, Jr., Circuit Judge.

text:
    Donnie DARBY v. STATE.
    6 Div. 150.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.

      Dishuck & Hawkins, Tuscaloosa, for appellant.
    No brief for the State.
   EDGAR P. RUSSELL, Jr., Circuit Judge.

The appellant was tried and convicted in the Circuit Court of Tuscaloosa County upon an indictment charging him with receiving and concealing stolen property, in this case a misdemeanor. Upon the jury’s finding of guilt as charged in the indictment and fixing no fine, the trial judge sentenced appellant to imprisonment in the Tuscaloosa County jail for a term of six months. After the appellant’s motion for a new trial was overruled by the court on December 19, 1975, the defendant immediately gave notice of appeal and duly perfected his appeal to this court.

I

During the morning hours on February 15, 1975, the appellant and three other males left Highpoint Apartments in Tuscaloosa, in an automobile driven by and registered to Miss Deborah Ray with the intention of going to get some beer to drink. The car was low on gas so they stopped at the Indian Hills Exxon Station. The station attendant saw two of the males get out of the car, state to the driver: “pick us up up the road” and walk off in the direction of the Junior Food Mart. The automobile was driven from the station to a point just above the Mart where the two males were picked up, along with three or four six packs of beer which they had acquired.

The group bought some food and returned to the apartment where the beer and food were consumed. There was no proof offered that the defendant drank any of the stolen beer. The only evidence tending to show possession on his part was his statement to Detective John Watkins of the Tuscaloosa Police Department, approximately one week later in which he said that: “all five of them drank some beer, but that they had some beer left in the refrigerator before they went out to get the other beer.”

II

Appellant contends that the State failed to submit substantial evidence that the defendant bought, received, concealed or aided in concealing stolen property. We agree.

The rule in respect to sufficiency of the evidence to support a verdict of guilty is quite succinctly stated in Massengale v. State, 36 Ala.App. 195, 54 So.2d 85 as:

“. . . there must be substantial evidence tending to prove all elements of the charged offense, a mere scintilla of evidence, in view of the presumption of innocence, being insufficient.
“It is also well established that a conviction in a criminal case cannot rest on surmise or conjecture.”

In the instant case, while there was sufficient evidence to show that the defendant knew the beer was stolen, there was insufficient evidence to submit to the jury the question of possession of the stolen property on the part of the defendant. The trial court erred in failing to grant defendant’s motion to exclude the State’s evidence and motion for a directed verdict.

The other questions presented need not be considered.

The foregoing opinion was prepared by Honorable EDGAR P. RUSSELL, Jr., Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, Title 13, Code of Alabama 1940, recompiled 1958; the Court has adopted his opinion as its own.

The judgment below is hereby

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM.

text:
    John David KNIGHT v. STATE.
    6 Div. 180.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant, John David Knight, was in the custody of the Sheriff of Jefferson County, Alabama, by virtue of an arrest under a Governor’s rendition warrant issued by the Governor of Alabama at the written request of the Governor of the State of North Carolina.

Appellant filed a petition for a writ of habeas corpus in the Circuit Court of Jefferson County against A. Melvin Bailey, Sheriff of Jefferson County. A writ of habeas corpus was issued. The Sheriff duly made an answer and a return stating that the petitioner is an escapee from the State of North Carolina of an offense authorizing extradition under Section 52, Title 15, Code of Alabama 1940 (Recompiled 1958); and stating that the cause of the appellant’s detention is a warrant issued by the Governor of the State of Alabama directing the arrest of the appellant and his delivery to a duly authorized agent of the State of North Carolina on a charge of breaking and entering and escape from lawful custody. A copy of the Governor’s writ and supporting papers were attached thereto.

The cause was submitted to the trial judge on the petition, answer, return with supporting papers attached thereto, and argument of counsel for the petitioner and respondent. No other evidence was offered. Judgment was rendered by the trial court finding that Article 2, Title 15 of the 1958 Code of Alabama, (Recompiled), had been complied with, and that the Defendant was an escapee from North Carolina, and remanding him to the custody of the Sheriff of Jefferson County. From this judgment the appellant appealed to this Court.

By agreement of the parties, the appellant being represented by counsel, the record on appeal consisted of the petition, answer, return with supporting papers attached thereto, and the decree of the Circuit Court of Jefferson County, Alabama.

This cause was submitted to this Court upon brief of appellee.

In the record before this Court we find a written request for extradition of appellant by the Governor of the State of North Carolina to the Governor of Alabama, accompanied by a copy of an affidavit made before a Magistrate of the State of North Carolina, with a copy of the warrant issued thereon, substantially charging appellant with having committed the offense of breaking and entering, a crime under the laws of the State of North Carolina, and duly and legally authenticated by the executive authority of the State of North Carolina. The affidavit further stated that the appellant was present in the State of North Carolina at the time of the commission of the crime he is charged with, convicted and sentenced to imprisonment, and imprisoned in the State of North Carolina, and thereafter, and before serving said sentence, escaped from confinement in North Carolina, and is now under arrest in the State of Alabama, and in the custody of the Sheriff, Jefferson County, Birmingham, Alabama, and that the extradition proceedings do not directly, or indirectly, seek to aid in the collection of any debt, demand, claim, or any private purposes whatsoever, and will not be used if the requisition applied for is granted.

The record contains a properly certified copy of the judgment and order of commitment issued by the General Court of Justice, Superior Court Division of the State of North Carolina, adjudging that the defendant be imprisoned for a term of not less than one (1) day not more than two (2) years, in the custody of the Commissioner of Corrections as a committed youthful offender.

All jurisdictional averments required are contained in the record before us, and the rendition warrant complies with the requirements of Article 52, Title 15, 1958 Code of Alabama, (Recompiled). Johnson v. State, 45 Ala.App. 40, 222 So.2d 370; Holcomb, Jr. v. State, 44 Ala.App. 259, 207 So.2d 119; certiorari denied, 281 Ala. 721, 207 So.2d 122.

We hold that under the facts contained in this record the Governor of the State of Alabama was fully authorized to issue the rendition warrant. There is no error in the trial court’s ruling that Article 52, Title 15 of the 1958 Code of Alabama, (Recompiled), was complied with, and in remanding custody of appellant to the Sheriff of Jefferson County, Alabama.

We have examined carefully the entire record before us and find from such examination that there are no errors in the record prejudicial to the appellant.

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

Affirmed.

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

CATES, P. J., concurs in the result.


author: TOM BRINDLEY COGGIN, Circuit Judge.

text:
    Willis Jack DAVIS v. STATE.
    6 Div. 194.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Fite, Davis & Fite, Hamilton, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   TOM BRINDLEY COGGIN, Circuit Judge.

Appellant was indicted by the Grand Jury of Marion County, Alabama, for the first degree murder of Charles Woodrow Pharr, by shooting him with a rifle. The jury returned a verdict of guilty of manslaughter in the first degree and fixed appellant’s punishment at ten years in the penitentiary.

Upon appeal two issues were raised by the appellant. The first being whether or not the trial court erred in granting the State’s challenge for cause of a member of the venire because of his opinion concerning penitentiary confinement and the second being whether or not the trial court erred in allowing into evidence two gruesome pictures of the deceased taken at the scene of the crime, the appellant having stipulated that on the date of the death, appellant did in fact shoot the decedent with a rifle; that he fired three times, and that each of the three bullets entered the body of Woodrow Pharr and caused his death.

With regard to the first issue which concerns the granting of the State’s challenge for cause of the venireman, Roy Clay, the following occurred:

“MR. GUYTON: Is there any member of the jury that feels that, regardless of what the evidence from the stand was, no matter how overwhelming the evidence was, that you just feel like you couldn’t send a man to the penitentiary for the rest of his life? That you are so opposed to penitentiary confinement that it just goes against the grain? Is there any member that fits in that category?
“JUROR ROY LEE CLAY: (holds up hand.)
“JUROR ARTHUR WAYNE NELSON: (Holds up hand).
“MR. GUYTON: Do you feel like you just couldn’t put a man in jail?
“JUROR NELSON: Not for life.
“MR. GUYTON: Anyone else in that category? It just goes against your grain? “Is there any member of the jury panel that is opposed to any type of penitentiary punishment? Any member of the jury panel that feels you couldn’t send a man to the penitentiary for any length of time, regardless of what the evidence shows?
“MR. GUYTON: Comes now the State and does challenge for cause the following members of- the jury venire: Roy Clay and Wayne Nelson, who said they could not imprison a defendant for life
“MR. ATKINSON: I would like to inquire further. Again, this is not for the purpose of embarrassing anyone in any way, because you are entitled to your belief concerning penitentiary punishment, but it is an important issue and I would like to inquire further, particularly as to Mr. Clay and Mr. Nelson. Let me ask you this: You know the defendant is charged with murder in the first degree and the punishment under the indictment could be up to life imprisonment, and I believe that you two gentlemen answered previously that you had strong reservations about imposing penitentiary punishment for life, so I would like to ask you this: Would the fact that you are opposed to penitentiary punishment for life so bias your opinion, should you sit on this jury in the case, that regardless of the evidence . . . regardless of what the evidence might be in this case that you just simply would not vote to give a penitentiary sentence for life if you were to sit as a juror on this case. Mr. Clay?
“MR. ROY CLAY: I have never been on anything like that before, but putting anybody away for life, I just couldn’t do it . .
“MR. ATKINSON: All right, Mr. Nelson. (To the Court) Again, the State would like to renew its challenge for cause to Roy Clay for the same reason given in its previous challenge for cause regarding Mr. Clay, and, further, for the reason that in response to the question that his feelings toward life imprisonment would so bias his opinion that, regardless of the weight of the evidence, he would not as a juror vote to impose life imprisonment. Now, that is as to Mr. Clay only.
“THE COURT: The challenge is granted and he is stricken.
“MR. DAVIS: Exception.

Title 30, Section 57, Code of Alabama 1940, recompiled 1958, as last amended, states that on the trial of any offense which may be punished capitally or by imprisonment in the penitentiary, it is a good cause for challenge by the State that the person has a fixed opinion against capital or penitentiary punishments. That statute has been interpreted for us by the United States Supreme Court in Boulden v. Holman, Warden, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 and by our Supreme Court in Jackson v. State, 285 Ala. 564, 234 So.2d 579 plus others. Both cases concerned a prospective juror’s opinion as to capital punishment rather than penitentiary punishment but the reasoning behind these decisions certainly applies here. The above cited cases make it clear that a general question concerning a prospective juror’s “fixed opinion” will not suffice but that the juror must be examined so as to determine if his opposition is such that he would not inflict a death sentence regardless of the evidence and the instructions of the Court as to the governing law. Likewise, it would appear that (and this Court does hold) that a general question concerning the juror’s “fixed opinion” about penitentiary confinement will not suffice. Instead he should be examined further to determine if his opposition is such that he would not inflict penitentiary confinement regardless of the evidence and instructions of the Court as to the law. Such was done in this case and no error appears in the record.

The appellant argues that Venireman Clay expressed opposition to penitentiary confinement for life as opposed to penitentiary confinement itself and that there is no ground for challenge for opposition to life imprisonment. The statute does not specifically mention life imprisonment but does state that a fixed opinion against penitentiary punishment is a good ground for challenge. Certainly “penitentiary punishments” includes life imprisonment.

The second issue raised by appellant was that the trial court illegally admitted gruesome photographs of the deceased in that the appellant had stipulated to the shooting of deceased with a rifle, the number of wounds and the fact that they caused death.

The test in Alabama relative to this issue is that photographs are properly admitted into evidence if they strengthen or give character to other evidence sustaining the issues in the case. Knight v. State, 273 Ala. 480, 142 So.2d 899; Baldwin v. State, 282 Ala. 653, 213 So.2d 819; Nichols v. State, 267 Ala. 217, 100 So.2d 750. Searching the record, it is clear that the photographs introduced were relevant, material, and give character to other evidence at the trial. The appellant relied upon self-defense. The photographs went to the totality of the evidence at trial relative to the issue of self-defense. No error appears.

Further under the duty imposed upon this Court, the entire record has been considered and from this examination no errors appear.

The foregoing opinion was prepared by TOM BRINDLEY COGGIN, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code 1940, as amended. The court has adopted the opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Thomas TAYLOR v. STATE.
    6 Div. 997.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.

      Holder, Moore & Grocholski, Nolen & En-slen, Fayette, for appellant.
    None for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant-defendant was convicted of burglary in the second degree on an indictment charging that “he . . .did with the intent to steal, break into and enter a shop, store or warehouse, known as Food-way, Inc., a corporation which is specially constructed or made to keep goods, wares, merchandise or other valuable things, . . ”

At the conclusion of the State’s case, defendant moved to exclude the evidence on the ground that there was a variance between the indictment and the evidence as to the identity or description of the place defendant is alleged to have broken into and entered. The court overruled the objection; defendant reserved an exception and then rested.

The evidence was undisputed that the alleged burglary was of a store known as “Vick’s Family Center” located in Sulligent. “Foodway, Inc. is a multi-complex organization which has both drygoods, groceries and super markets. . The Foodway Corporation owns this Vick’s Family Center” and owned the store burglarized. The sign in front of the store was, “Vick’s Family Center.” There were no “identification marks outside” that said “Foodway, Inc.” In the following, are extracts from testimony of the main witness for the State on the question of the ownership, name, etc., of the place burglarized:

“Q. Are there any stores located in Sul-ligent by the name of Foodway Grocery Stores?
“A. In Sulligent?
“Q. Yes.
“A. Not Foodway Grocery, it’s all Vick’s.
“Q. Are there actually any stores in Lamar County that the name of them is Foodway Grocery Store?
“A. Yes, sir.
“Q. Where is that one located?
“A. There is a Foodway in Vernon.” With reference to the particular store, the testimony of the witness was in part as follows:
“Q. What does that store sell?
“A. It sells drygoods and also sells a line of groceries.
“Q. And the west end is drygoods, isn’t it?
“A. I don’t know which direction is which, but it has drygoods and groceries. “Q. Drygoods in one end and groceries in another?
“A. Yes.
“Q. And it is identified on the outside by Vick’s Family Center?
“A. Right.
“Q. And those signs, there is no identification marks outside at all that say Food-way, Inc., are there?
“A. I don’t believe there would be any Foodway name involved on it at all, I sure don’t.
“Q. Do they have their billing or their letterheads or their checks entitled Vick’s Family Center?
“A. On the letterheads, all correspondence goes out under the name of Food-way, Inc.
“Q. That is all the correspondence in reference to that store up there?
“A. It would go out under a Foodway, Inc. letterhead. The checks themselves have a Vick’s logo on the checks but up under the logo is Foodway, Inc.
“Q. What is Vick’s logo?
“A. Vick’s logo is the trade mark or sign that says Vick’s on it.
“Q. Are there any stores located in Sul-ligent by the name of Foodway Grocery Stores?
“A. In Sulligent?
“Q. Yes?
“A. Not Foodway Grocery, it is all Vick’s.
“Q. Are there actually any stores in Lamar County that the name of them is Foodway Grocery Store?
“A. Yes, sir.
“Q. Where is that one located?
“A. There is a Foodway in Vernon.
“Q. I am talking about Foodway Grocery Store, I am not talking about just the word Foodway?
“A. Foodway super market, the word Foodway is all you will ever see. You never see a Foodway Grocery Store as part of the name, it is Foodway and that is it.
“Q. Does Foodway have any stores in Lamar County?
“A. Yes, sir, there are stores in Lamar County.
“Q. Is there one in Vernon?
“A. Yes, sir, there is one in Vernon. “Q. What is it entitled, what is it known as?
“A. Foodway.
“Q. Are there any others?
“A. Millport, is that in Lamar County? “Q. Yes.
“A. There is a Foodway in Millport.
“Q. What is it known as?
“A. It is known as Foodway.”

The principal evidence tending to connect defendant with the corpus delicti consisted of a money bag and nineteen rolls of coins found in defendant’s automobile the night of the burglary, which automobile was being driven about five miles west of Sulli-gent and was occupied by defendant and two others. The money bag had written on it the words “Vick’s, Sulligent, Phil Seag-raves.” In testifying for the state, Mr. Seagraves identified himself as the manager of Vick’s Family Center.

Compliance with the Code form for burglary in the second degree requires that the name of the owner or person in possession be alleged. Code 1940, Tit. 15, § 259, Form 32. A burglary indictment that fails to allege the name of the owner or the person in possession of alleged burglarized property, or to negate defendant’s ownership or possession thereof, is defective. Stehl v. State, 283 Ala. 22, 214 So.2d 299; Emmonds v. State, 87 Ala. 12, 6 So. 54; Wilson v. State, 32 Ala.App. 127, 22 So.2d 600, cert. denied, 247 Ala. 84, 22 So.2d 601; Noojin v. State, 29 Ala.App. 178, 194 So. 414. As defendant did not raise the question of the sufficiency of the indictment on the trial, its insufficiency in and of itself is not a ground for a reversal of the judgment on appeal. Stehl v. State, supra.

The failure of the indictment to allege the ownership or possession of the property so as to negate defendant’s ownership or possession thereof does not lighten the duty of the State to produce evidence to support the averment in the indictment identifying the property alleged to have been broken into and entered. Gilmore v. State, 99 Ala. 154, 13 So. 536; Porter v. State, 17 Ala.App. 550, 86 So. 143; Reeves v. State, 31 Ala.App. 226, 16 So.2d 697, cert. denied, 245 Ala. 237, 16 So.2d 699; Moore v. State, 35 Ala.App. 160, 44 So.2d 789, cert. denied, 253 Ala. 307, 44 So.2d 790.

In ruling on defendant’s motion to exclude the evidence, the court stated:

“THE COURT: Donald [Donald McClure, the accountant for Foodway, Inc.] testified that it was known and sometimes called Foodway Grocery but the indictment goes further and says it is owned by Foodway, Inc., a Corporation and this was a branch of that. As the Court understands the law on that, the indictment is supposed to allege enough to acquaint the defendant with enough for him to know what he is charged with. Now, in this case, I think that it has been done and brought out here and Mr. Holder you mentioned about the Town of Sul-ligent, I don’t recall the testimony to be there was any other Vicks Family Center anywhere other than Sulligent, but it is alleged here in the complaint to be owned by Foodway, Inc., a branch of that, and it will be the order of the Court that the motion will be denied . . .”

The court had well in mind the principles of law applicable to the question before it, but unfortunately it did not have the advantage of the exact language of the witnesses as they testified to the intricacies of the “multi-complex organization” by the name of Foodway, Inc. When Mr. McClure testified as to “Foodway Grocery,” he was distinguishing the term “Foodway Grocery Store,” as shown by the following:

“Q. In other words Mr. McClure, there is no such thing in Lamar County or anywhere else as far as you know that is known as the Foodway Grocery Store?
“A. Only by colloquialism, they say let’s go to Foodway Grocery Store.”

The written record makes it clear by Mr. McClure’s testimony, as well as the rest of the testimony in the case on the point, that the store that was burglarized was known as Vick’s Family Center, or variations thereof, and was not “known as Food way, Inc.,” or any variation thereof. As no point had been made to the effect that the indictment was defective in not averring ownership or possession of the property so as to negate rightful entry thereof by defendant, the court was seemingly led to assume that it did so in the indictment’s reference to “Foodway, Inc.,” which doubtless accounts for the mistaken understanding that “the indictment goes further and says it is owned by Foodway, Inc.”

There was reversible error in the denial of defendant’s motion to exclude the evidence and in the refusal of the affirmative charge requested in writing by defendant.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court; and the judgment of the trial court is hereby reversed and the case remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: NEWTON B. POWELL, Circuit Judge.

text:
    Annie Mae HUNTER, alias v. STATE.
    7 Div. 422.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Rowan S. Bone and Burns, Shumaker & Davis, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   NEWTON B. POWELL, Circuit Judge.

The appellant, Annie Mae Hunter, was charged with first degree murder in the Circuit Court of Etowah County, Alabama, in the killing of Curtis Lee Johnson by shooting him with a gun or pistol. She was found guilty on September 25, 1975, of manslaughter in the first degree, and the sentence was fixed at ten years in the state penitentiary. She appealed this judgment to this Court.

I

The appellant cohabited with the deceased for several months before the incidents of this case. The evidence indicates that the couple engaged in many quarrels and controversies. On April 11, 1975, the appellant received some bruises and cuts during an altercation with the deceased. Later in the day the deceased was in a poolroom, and the appellant came to the poolroom with a pistol in her bosom. She states that she received a message from the deceased asking her to come to the poolroom. The evidence was in conflict as to whether or not the deceased struck the appellant on their meeting in the poolroom before the fatal shot was fired. It is uncon-troverted that the appellant pulled the pistol from her bosom and fired at the deceased at close range, then immediately left the poolroom. The deceased immediately fell to the floor. He was found to have a bullet wound in the side of his head, and fragments from this bullet were taken from the deceased’s brain at an autopsy. All of the evidence points to the conclusion that the deceased died instantly, or within a very short time after the pistol was fired. He was dead on arrival of the police, who responded to a call to the scene promptly. A blood sample of the deceased after his death was shown to contain ethyl alcohol equivalent to 0.25%. Persons with such alcohol level are generally incapable of conducting tasks requiring the skill and coordination required in the operation of an automobile, and would generally exhibit appreciable mental confusion and motor impairment, such as a very thick tongue and a staggered gait.

The coroner of Etowah County, Mr. William 0. Bragg, who is an emergency medical technician licensed by the State of Alabama, and who has worked for one year with an ambulance service and with Eto-wah Rescue Squad for several years, testified to the cause of death. He stated that he has had occasion to investigate a “large number . . . ” of deaths in that county caused by different means. He states that he has had formal training in investigation of wounds and causes of death, etc. He also states that he worked with Etowah County Rescue Squad eight or nine years, and that he has had experience in determining the cause of death resulting from different means. He has a degree from Gadsden State College leading to his licensing as a medical technician, and he took part of his training through a hospital in Etowah County in connection with his study at the Junior College. Some of the subjects covered by his training at the hospital include trauma, heart trouble, gunshot wounds, in-tercranial wounds, nervous conditions, and nervous disorders.

Further qualifications of the witness: The witness testified that he had investigated deaths caused by shots in the head, through the heart and through the lungs. He estimated that he investigated fifteen or twenty deaths of this kind during the eight or nine years he worked with the rescue squad. He states that he was trained in life saving methods. This particular course consisted of ninety hours of training under local doctors. He attended victims at the scene of the injuries, and in emergency rooms. He states that in his training and experience he has acquired a knowledge as to cause of death.

This witness testified that he received a call on the night of the crime in question. He proceeded to the scene and found the deceased apparently in the position in which he had fallen. He described the bullet wound in the head of the deceased and a laceration of his chin. He observed the performance of the autopsy by the Department of Toxicology in Auburn, Alabama. The skull was opened, and fragments of a bullet were removed from the brain.

II

The only error argued by the appellant is her contention that the trial court erred in allowing the witness, Bragg, to testify to the cause of death. The argument is based on appellant’s contention that this witness was not qualified as an expert sufficiently to give such testimony.

III

The ideal expert witness to give testimony as to the cause of death of a human being is a qualified medical doctor. Many witnesses, however, have acquired sufficient knowledge to testify as to the cause of death. The qualification of such witness depends upon whether his or her knowledge in the particular field extends beyond or supersedes that of an ordinary witness as determined by the trial judge. Cobb v. State, 50 Ala.App. 707, 282 So.2d 327. This Court has allowed funeral directors, embalmers, a chemistry professor, an employee of the office of State Toxicology, coroners, and others to testify as to the cause of death. See Cobb v. State, supra, where this subject is discussed and the citations are set out in full. A review of our cases on the subject reveals that a lay witness is not granted the status of an expert witness in this field merely because he may be a mortician, a coroner, or toxicologist, etc., but such witness is accorded the expert status when it is shown sufficiently to the trial judge that this witness has acquired more knowledge in the field than the ordinary witness, and that by training or experience, or both, his or her knowledge is such that a jury would be reasonably justified in relying upon the opinion of the witness. If the trial judge determines that the witness has such knowledge, he may submit the testimony to the jury. On appeal from the exercise of such discretion by a trial court, this court will not disturb the decision of the trial court unless there is clear abuse of this discretion.

We are of the opinion that the trial court did not abuse its discretion in allowing the witness, Bragg, to testify to the cause of death, and we find no error in the ruling of the trial court.

We have considered the entire record under Code of Alabama 1940, Title 15, Section 389. From this examination was conclude that error is not made to appear.

The foregoing opinion was prepared by Honorable NEWTON B. POWELL, Circuit Judge, temporarily on duty on the Court pursuant to Subsection (4) of Section 38, Title 13, Code of Alabama 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: CECIL H. STRAWBRIDGE, Circuit Judge.

text:
    Bob Cornelius PEOPLES v. STATE.
    8 Div. 802.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    J. Norman Roby, Jr., Decatur, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   CECIL H. STRAWBRIDGE, Circuit Judge.

Defendant was convicted of murder in the first degree and from a sentence of life imprisonment brings this appeal.

The appellant, Bob Cornelius Peoples, was indicted by the grand jury of Lawrence County, Alabama, in an indictment which read as follows:

“The Grand Jury of said County charge that before the finding of this Indictment Bob Cornelius Peoples unlawfully, and with malice aforethought, killed Harold Young, by shooting him with a rifle or shotgun, against the peace and dignity of the State of Alabama . . .”

To this indictment the appellant pled not guilty and not guilty by reason of insanity.

On May 19, 1975, a motion for the change of venue was filed by the attorney for appellant which included the following grounds and reasons for the changing of said venue:

“1. That the venue of this cause should be changed from Lawrence County, Alabama, to another county within the discretion and decision of this Honorable Court because there exists throughout Lawrence County so great a prejudice against this defendant that it is not likely that a fair and impartial trial could be had and an unbiased verdict returned if the case should remain for trial in Lawrence County, Alabama.
“2. Defendant would show that since the time of the charge upon which he is to be tried, he has been the subject of many and diverse prejudicial rumors circulated throughout the city and county. Said prejudicial rumors are common knowledge among citizens of Moulton, and Lawrence County from which the veniremen in this case will be selected. “3. Defendant would show that commencing the time of, the alleged crime of which he is accused and continuing almost daily throughout the remainder of the time prior to the filing of this motion the Moulton Advertiser, a weekly newspaper published in Moulton, Lawrence County, Alabama; the Decatur Daily, a daily newspaper published in Decatur, Morgan County, Alabama; the Huntsville Times, a daily newspaper published in Huntsville, Madison County, Alabama; the Birmingham News, and the Birmingham Post Herald, daily newspapers published in Birmingham, Jefferson County, Alabama, along with other newspapers have carried stories, pictures, and articles proporting to relate facts and opinions pertaining to the charge against this defendant and alleged in the indictment. The publicity given this defendant far transcends the normal amount of newspaper comment concerning a defendant and said stories, pictures, and articles and the number thereof have had a prejudicial effect upon the right of this defendant to obtain a fair and impartial trial in Lawrence County, Alabama. Said newspapers have general circulation that extends throughout Lawrence County and into the homes from which the veniremen will be selected for the trial of this case in Lawrence County.
“4. Defendant would show that commencing on the day of the alleged crime and continuing periodically throughout the remainder of the time prior to the filing of this motion, television stations whose coverage extends throughout Lawrence County and into the homes from which the veniremen will be selected for the trial of this case in Lawrence County have sent stories and accounts of these proceedings concerning this defendant into the homes of the veniremen in Lawrence County, far transcending the normal amount of television comment concerning a defendant. Defendant further would show that even upon the day of his initial arraignment, April 18, 1975, television stations from Huntsville sent news teams to cover said arraignment proceedings and made feature stories on said defendant moving from the jail to the courthouse.
“5. Defendant would further show that in addition to the newspaper publicity and that generated by the television stations, each radio station in Lawrence, Morgan and Madison County has likewise carried newscast at various hours of the day and have sent stories and accounts of the proceedings concerning this defendant into the homes of the veniremen in Lawrence County far transcending the normal amount of radio comment concerning a defendant.
“6. The Defendant would further show that from time to time since the commission of the crime of which he is accused, that the sheriff of Lawrence County has shown pictures relating to the crime of which the defendant is accused to citizen of Lawrence County in his office in Moul-ton, Lawrence County, Alabama and has made comment as to the punishment said defendant should receive because of the heinous crime that has been committed. Defendant alleges that said publication by the High Sheriff of Lawrence County is prejudicial and far transcends the normal amount of pretrial comment allowed law enforcement officers in relation to Defendant’s right to fair trial.”

On August 15,1975, appellant’s motion to remove the venue of this case from Lawrence County due to prejudicial pretrial publicity was denied. A trial was set for September 15, 1975, and that said trial was declared a mistrial on the second day, September 16, 1975.

On October 13, 1975, appellant’s case was reset for trial in the Circuit Court of Lawrence County and said trial was commenced on that date. In open court that date, appellant, by and through his attorney, filed a renewed motion for change of venue with the following new and additional grounds for said change in open court:

“1. The earlier mistrial in the State’s initial attempt to try your Appellant which resulted in a mistrial due to a veniremen’s failure to disclose certain information asked during Appellant’s voir' dire of the venire, and
“2. The fact that co-defendant, Junior Borden had been tried one week earlier and said trial had resulted in large amounts of evidence damaging to your Appellant.”

The court denied appellant’s renewed motion for change of venue and proceeded to trial. Defendant was tried and convicted and sentenced to imprisonment in the state penitentiary for a period of his natural life.

The appellant contends the trial court committed error in its refusal to grant his motion for a change of venue. The burden is upon the defendant to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot reasonably be expected in order to achieve the right to a change of venue. Godau v. State, 179 Ala. 27, 60 So. 908 (1913).

The Sixth Amendment guarantees to an accused in a criminal prosecution that he shall be tried by an impartial jury. The case of Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907); held the following: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by outside influence, whether of private talk or public print.”

The First Amendment to the Constitution of the United States provides for “freedom of speech, or of the press”, which certainly gives newspapers the right to report on crimes; “So long as we have newspapers we may expect to have through them the report of crimes, and it is not to be unexpected that, when' a homicide is committed . the newspapers of the community, answering the public interests, will furnish the defendant with at least some material upon which to base an application similar to the one under discussion”. Godau v. State, supra.

In this case the crime was heinous and the victim was well thought of in the county in which he lived. There was also a lot of publicity as the result of this crime. However, publicity alone, even if inordinate, is not sufficient ground for change of venue, Sheppard v. Maxwell 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Patton v. State 246 Ala. 639, 642, 21 So.2d 844, 845 (1945).

The issue presented in this case is whether or not the publicity in this case threatened the fairness of the trial. After considering all of the evidence in this case the Court is of the opinion that the appellant has not met this burden of proof.

The record clearly shows that there was evidence that the appellant was not so prejudiced by the publicity that he could not receive a fair and impartial trial. One journalist testified that his paper’s articles were properly characterized as “routine [and] consistent with the policy of [the] paper to report the news objectively and without other consideration”. Another journalist stated that her objective in preparing the articles was [j]ust to report the basic facts to the people”. Several of the newspaper articles did not even mention the defendant by name and some discussed the arrest of suspects and subsequent judicial proceedings.

There was also a period of eight months between the brutal slaying of Mr. Young and the defendant’s trial which provided an ample cooling off period.

The record also shows some evidence to the contrary but not sufficient to base a just conclusion that a fair and impartial trial would be improbable.

From this examination we conclude that error is not made to appear.

The foregoing opinion was prepared by Honorable CECIL H. STRAWBRIDGE, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: THOMAS E. HUEY, Jr., Circuit Judge.

text:
    George Alan SHARP v. STATE of Alabama.
    8 Div. 811.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Clyde A. Smith, Montgomery, for appellant.

      William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   THOMAS E. HUEY, Jr., Circuit Judge.

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

I

On October 20,1975, two men armed with shotguns entered Bear’s Family Cue Club, ordered everyone in the pool hall to get on the floor, and forced the manager to place the contents of the cash register, $130.00, in a sack. The two men then effected their escape with the money. Both of the men had shirts wrapped around their faces with holes for their eyes.

The police arrived some ten or fifteen minutes later. They were unable to apprehend any suspects.

One month after the robbery, on November 20, 1975, the appellant, George Alan Sharp, and his cousin, Tommy Harbin were taken into custody and taken to the police station. Harbin was found at his apartment and the appellant was found at a nearby recreation center. Their arrests followed the receipt by Detective Patrick Dill-aha of information concerning the involvement of Harbin in the robbery of Bear’s Family Cue Club.

At the police station, Detective Dillaha advised the appellant of his constitutional rights. The appellant was then asked whether he understood his rights, and he replied that he did. The appellant was asked whether he wished to talk with the officers, but he did not reply. Detective Dillaha then advised Tommy Harbin of his constitutional rights. Harbin then agreed to talk with the officers.

Harbin subsequently told Detective Cur-lee that he had been with the appellant at the time he robbed Bear’s Cue Club. When Detective Curlee told the appellant that Harbin had confessed and had implicated the appellant, the appellant agreed to tell the detective about the robbery. The appellant was taken into an adjoining room and was asked to write a statement. The statement was subsequently signed by the appellant in the presence of Detectives Dill-aha and Curlee. In the statement, the appellant confessed to robbing Bear’s Cue Club. He said that he and his cousin, Tommy Harbin, went into the pool hall with tee shirts over their faces and committed the robbery. He said that he had obtained a shotgun from his friend by telling the friend that he was going to use the gun on a hunting trip.

The defense in the case consisted of the alibi testimony of the appellant’s neighbor and testimony of the appellant that he was coerced into signing the confession.

On rebuttal, the State called as a witness Dale Wayne Walker, the jailer who booked the appellant on the night of his arrest. Photographs which the jailer had taken at the time the appellant was booked were introduced into evidence, and the jailer testified that he did not observe any cuts, bruises, or swollen places on or about the appellant’s face. Detective Dillaha was also called on rebuttal and testified that he did not slap the appellant.

II

The first claim of error is that the trial judge, in responding to a question by the jury, made a comment prejudicial to the appellant. After entering upon its deliberation, the jury indicated that it had some questions for the judge. The following occurred:

“THE COURT: Your second question pertains to custody of a prisoner. How long are the police allowed to hold a prisoner without his being able to see his attorney or make a call for help?
“JUROR: That’s correct.
“THE COURT: Your question can not be answered under our law. There is no definite time. With the permission of the parties, you may have seen in old movies that they are holding 48 or 72 hours for investigation or on open charge. That has no basis for substance in our law. I would say this, that there is no time set out in our law as to answer that question. I believe the testimony was in this case that the Defendant was placed under arrest and advised of the charge against him prior to arriving at the police station.”

That portion of the foregoing response by the court to the jury’s question claimed by the appellant to be prejudicial is as follows:

“I believe the testimony was in this case that the defendant was placed under arrest and advised of the charge against him prior to arriving at the police station.”

It should be noted in the first place that defense counsel took no exception to the court’s comment or any part of the comment. Immediately following the court’s response to the jury’s questions the following occurred:

"THE COURT: Anything further from the State?
“MR. LOFTIN: No sir.
“THE COURT: Anything further from the defense?
“MR. BAEDER: No sir.”

We have held in Breedwell v. State, 38 Ala.App. 620, 90 So.2d 845 (1957) that the court does not invade the province of the jury by stating that there is or is not evidence of particular facts, when such is the case. See also, Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970) to like effect. In the latter case, the Supreme Court also held that where defense counsel took no exception to remarks of the trial court, counsel would not be heard to complain of the remarks on appeal from conviction.

The record shows that the remarks of the trial court were accurate. Detective Dill-aha testified that after appellant was handcuffed and on the way to the police station he told appellant he was being “picked up” in connection with a robbery. The appellant himself testified' that he was arrested at an entertainment center ■ and was told before arriving at the police station that he was being arrested for robbery. It is clear that the trial court’s statement to the jury concerning the testimony in the case was correct and that the trial court did not err.

Ill

The next claim is that the court erred in holding that the alleged confession of appellant was voluntary and admissible.

We are cited to the following cases by the appellant: United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48; Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090; Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262.

These cases state the well-recognized rule that the confession of a person accused of crime is admissible in evidence only if voluntarily made without duress, fear, or compulsion in its inducement. It is to be noted that in Wilson v. U. S., supra, the Supreme Court of the United States said:

“When there is conflict of evidence as to whether a confession is or is not voluntary, if the court decides that it is admissible, the question may be left to the jury, with the direction that they should reject the confession if, upon the whole evidence, they are satisfied it was not the voluntary act of the defendant.”

The appellant also cites Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 ALR 3rd 974; Citing Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 and others.

Detective Dillaha and Detective Curlee testified on voir dire examination, out of the presence of the jury, concerning the confession of appellant. Detective Dillaha testified as follows:

“Q. I ask you, Officer Dillaha, at this time did you have a conversation with the Defendant, George Allen Sharp?
“A. Yes sir.
“Q. What did you say to him?
“A. I advised him of his rights under the Miranda warning.
“THE COURT: What did you tell him? “Q. Did you read to him from a card or from your memory?
“A. I read to him from a card.
“Q. Do you have the card with you?
“A. Yes sir.
“Q. Is it the same card you had with you on November 20, 1975, or the early morning hours of November 21?
“A. Yes sir, do you want me to read it?
“THE COURT: Tell us what you said.
“A. You have the right to remain silent. If you chose [sic] to talk you may stop talking at any time. Anything you say can and will be used against you in a Court of law. You have the right to talk to a lawyer of your own choosing or with anyone else and you may have your counsel present during any questioning or during any statement you may make. If you can not afford a lawyer one will be appointed for you free of charge before any questioning. Waiver. Do you understand each of the rights just stated to you? Do you understand that we are not threatening you, nor are we promising you anything in order to secure a statement from you?
“Q. Did he say anything in reply to that?
“A. He answered in the affirmative.”

Detective Curlee testified on voir dire examination, out of the presence of the jury, that he advised appellant of his rights by reading them “off the top of the voluntary statement form.” This portion of the statement form is as follows:

“VOLUNTARY STATEMENT (Under Arrest)
“Date 11-20-75 Time 12:00 P.M. Place HPD I George Allan Sharp, am 18 years of age and my address is 1507 A Randolph.
“I have been advised and duly warned by Pet. Curlee who has identified himself as Pet. City Police Dept, of my right to the advice of counsel before making any statement, and that I do not have to make any statement at all, nor incriminate myself in any manner.
“I hereby expressly waive my right to the advice of counsel, and voluntarily make the following statement to the aforesaid person, knowing that any statement I make may be used against me on the trial or trials for the offense or offenses concerning which the following statement is herein made.
“I declare that the following statement is made of my own free will without promise of hope or 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.”

Following the reading of this, the appellant wrote in longhand on the form a rather detailed confession of the robbery.

Detective Dillaha testified that he did not threaten appellant in any way or offer him any reward or promise any hope of reward. Detective Curlee testified that he had not threatened, coerced, struck, or held out any hope of reward to the appellant to induce him to confess.

We find no error on the part of the trial court in admitting the confession in evidence.

The fact that the appellant made his confession only after being told of his cousin Harbin’s confession did not render the confession inadmissible, for the mere confrontation with a coindictee’s confession is not unlawfully coercive. Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, writ denied 287 Ala. 742, 251 So.2d 246 (1971).

In Sheppard v. State, 49 Ala.App. 674, 275 So.2d 353 (1973) this Court said:

“It has further been held that where evidence of the circumstances surrounding a confession is conflicting on voir dire, the trial court must decide on its admissibility and then, if the confession is admitted, controverted testimony for defendant goes to the jury on its credibility.”

At the conclusion of the oral charge to the jury, the court gave the following written charge requested by the appellant.

“If you believe the defendant was coerced into signing the confession, you may disregard the confession.”

No motion for new trial was filed by the appellant.

IV

We have considered the entire record under Code 1940, T. 15, Sec. 389. From this examination, we conclude that error is not made to appear, and that the judgment below should be affirmed.

The foregoing opinion was prepared by Honorable THOMAS E. HUEY, Jr., Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, T. 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

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


author: TYSON, Judge.

text:
    Thomas Niza WILLIAMS, alias v. STATE.
    1 Div. 737.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Michael F. Scheuermann, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The indictment charged Thomas Niza Williams with the robbery of Cloretta Travis by putting her in fear and taking from her person “approximately one hundred twenty-five dollars.” The jury found the appellant “guilty of Robbery as charged,” and fixed punishment at fifteen years imprisonment. The trial court then set sentence in accordance with this verdict.

Cloretta Travis testified that she was employed at the Colonial Baking Company in Mobile County, Alabama, on January 8, 1976. The witness stated that she, her six year old son, and her “boss” were the only people inside the store around 1:30 p. m. of that day when the appellant’s alleged accomplice entered the store and began to browse around “looking at the cakes and everything.” Mrs. Travis stated that shortly thereafter her “boss” left the store and that the appellant’s accomplice then walked up to the check-out counter under the pretense of making a purchase. The witness testified that the moment she opened the cash drawer, the appellant came into the store armed with a gun and told her “he wanted the money in the drawer,” and also asked her why did she call the “cops” the last time he had robbed her after he had instructed her not to do so. She stated that she turned over, to the appellant’s accomplice “approximately $100 or $125” while the appellant pointed a gun at her from two feet away. Before making an in-court identification of the appellant, Mrs. Travis was taken on voir dire, which revealed that the appellant and another man had robbed her at this store a week prior to the incident in question; that she had observed the appellant during the robbery (for which he was then being tried) some “three to five minutes”; and that she had made a positive and immediate identification of the appellant in a lineup conducted at the police station the day after the second robbery. Upon the jury’s return to the courtroom, Mrs. Travis made a positive in-court identification of the appellant as the man who had robbed her.

Officer John Saxon of the Mobile Police Department testified that on January 8, 1976, he was dispatched to the Colonial Bakery on St. Stephens Road to investigate an alleged robbery. He stated that when he arrived there he interviewed Mrs. Travis who gave him a complete description of the appellant and told him that the appellant had robbed her on a previous occasion. Officer Saxon testified he then broadcasted Mrs. Travis’ description of the appellant over the police radio.

Detective Hubert Bell, also of the Mobile Police Department, testified that the appellant, who is also known in the “streets” as “Wild Man” or “Ray,” was placed under arrest in the late evening of January 8, or the early morning of January 9,1976, at the intersection of Davis Avenue and Hospital Street. Detective Bell stated that the appellant was taken to the Criminal Investigation Division (C.I.D.) of the Mobile Police Department where he was advised of his Miranda rights. The witness testified that the appellant voluntarily gave an oral statement to him at C.I.D., and the substance of the appellant’s statement was disclosed to the jury by Detective Bell after an extensive voir dire examination revealed that the appellant’s statement was not induced by any threat, intimidation, promise, or hope of reward of any kind, and that the appellant fully understood his constitutional rights before making the statement. Detective Bell testified that the appellant orally confessed his participation, not only in the Colonial Bakery Store robbery of January 8, 1976, for which he is now being tried, but in the robbery of the same store on January 3, 1976. Detective Bell further stated that the appellant identified his accomplice in the January 8, 1976 robbery as Benny Ray Fields.

After the State rested, the appellant, out of the presence of the jury, called Benny Ray Fields to testify in his cause, but the witness on the advice of his counsel, the Honorable David Barnett, asserted his privilege against self-incrimination and refused to testify since he too was under indictment for his alleged involvement in the robbery for which the appellant was then being tried.

The appellant also requested William Craig, who was then under indictment for two robberies (unrelated to appellant’s instant cause) and who had been suspected of complicity in other crimes, to testify on his behalf. During a hearing held outside the jury’s presence, the appellant’s counsel made a showing as to what would be asked of the witness. The trial judge then advised the witness that he had a privilege not to testify about the proposed matter, and the witness, through his attorney, indicated to the court that he would not waive his constitutional privilege and declined to testify in this case.

The appellant, Thomas Niza Williams, then took the stand and denied his participation in the Colonial Store robbery of January 8, 1976, and further stated that after his arrest, he never confessed his involvement in that robbery to Detective Bell. The appellant admitted that his criminal record included convictions for assault and battery, robbery, and auto theft, all of which occurred in the State of Florida. The appellant concluded his testimony by stating that he did not even know the location of the Colonial Baking Company store allegedly robbed, nor had he ever seen the victim of that robbery, Cloretta Travis, before she picked him out of the police lineup conducted on January 9, 1976.

I

In the appellant’s pretrial motion to produce, he prayed, inter alia, that the trial court grant him the following:

“11. A copy of the Grand Jury testimony received in connection with the above referenced indictment.
“12. That the Defendant be allowed to transcribe the record or taped testimony given by all witnesses against him who appeared before the Grand Jury that returned the above referenced indictment. “13. That the Defendant be allowed to listen to the recorded testimony of any and all witnesses against him who appeared before the Grand Jury returning the above referenced indictment.” [R. 6]

The trial court properly denied this portion of the appellant’s motion to produce because proceedings before the Grand Jury of Mobile County, Alabama, are not subject to pretrial disclosure. State ex rel. Baxley v. Archer, Ala.Cr.App., 335 So.2d 240 (1976); Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972); State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 799 (1974), and authorities cited therein.

II

Following an extensive oral charge to which the appellant had no exceptions, two of the appellant’s written requested charges were also given. As to the remaining refused charges, we have carefully examined each and find that such were properly refused as being either affirmative in nature, incorrect statements of applicable law, argumentative under the evidence, and therefore invasive of the province of the jury, or were fully and substantially covered in the trial court’s oral charge, or other given charges. Therefore, their refusals were proper. Title 7, Section 273, Code of Alabama 1940. Downs v. State, 45 Ala. App. 415, 231 So.2d 336 (1969); Stinson v. State, 55 Ala.App. 629, 318 So.2d 325 (1975); Prince v. State, 50 Ala.App. 368, 279 So.2d 539 (1973).

We have carefully reviewed this record, as required by Title 15, Section 389, Code of Alabama 1940, and find same to be free from error. The judgment of the trial court is due to be and is hereby

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Billy MITCHELL v. STATE.
    3 Div. 482.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.

      Gray, Seay & Langford and Donald V. Watkins, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: life imprisonment.

As the result of a scuffle over the possession of a pillow, the appellant killed the deceased, Reave Jones, by stabbing him several times with a knife. It appears that the deceased was unarmed. The scuffle and subsequent knifing took place on March 24, 1975, at the Elks Memorial Home in Montgomery, Alabama. The appellant was indicted for first degree murder, and he pled not guilty and not guilty by reason of insanity. The appellant was required to stand trial after he was found to be sane and competent to stand trial by the appropriate officials at Bryce State Mental Hospital. The trial court dismissed the first degree murder charge at the end of the State’s case. There was overwhelming evidence presented from which the jury could find the appellant guilty of-second degree murder which it did.

I

The appellant, at what appears to be his first opportunity, confessed to the murder. The confession was made after the appropriate Miranda warnings were given and waived. It appears from the record that the confession was completely voluntary. The appellant contends he lacked the mental capacity to voluntarily confess.

The record established that appellant suffers from a mental disorder called non-psychotic organic brain syndrome with epilepsy. On occasion he allegedly hears voices. He also has an I.Q. of approximately 65. The appellant periodically suffered from severe depression and in addition he was addicted to beer. The record is void of any testimony that the appellant was incapable of waiving his Miranda rights and voluntarily confessing. There was no evidence indicating the appellant was depressed or under the influence of alcohol when he confessed. Quite to the contrary, the police officer who took the confession testified that the appellant acted like a normal rational person. The appellant could read and write, and he had gone to school through the sixth grade.

In order to hold that the appellant was incapable of voluntarily confessing, we would have to take judicial notice of a fact not in evidence, i,. e. that a person with an I.Q. of 65 does not have the mental capacity to voluntarily confess. This we cannot do. The appellant’s expert witness testified that the appellant knew right from wrong and that an I.Q. of 65 indicated moderate mental retardation. There was no evidence as to what effect an I.Q. of 65 has on one’s capacity to make a knowing, intelligent, and voluntary confession.

The principal case on which the appellant relies is Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). The facts in that case are clearly inapposite to those in the present case. Here the record does not show strong probability that the appellant was insane and incompetent at the time he confessed. Although appellant could not be said to be normal, neither can we find from the record that he lacked the requisite mental capacity to make a voluntary confession.

II

The appellant moved for a mistrial at the end of the State’s case. The colloquy occurred as follows:

“MR. WATKINS: Your Honor, I would like to make one other motion. I would like to move for a mistrial on the grounds that the State has not proved a prima facie case.
“THE COURT: Have you got any other motions?
“MR. WATKINS: No, sir.
“THE COURT: All right. Let the Jury back in.”

Suffice it to say that it is elementary that counsel should have obtained a ruling on his motion. Absent an objection to the lack of ruling, we have nothing to review. Wade v. State, 49 Ala.App. 601, 274 So.2d 626 (1972). Additionally, an adverse ruling by the trial court would not have been erroneous as a prima facie case had been presented.

III

Appellant contends that photographs of the deceased’s body should not have been admitted into evidence since appellant stipulated as to the cause of death. The photographs which depicted numerous stab wounds obviously shed light on the issue of malice. Under the guidelines set forth in Lewis v. State (1976) Ala.Cr.App., 339 So.2d 1035, the photographs were admissible.

AFFIRMED.

All the Judges concur.


text:
    Jeanell YOUNGBLOOD v. CITY OF BIRMINGHAM.
    6 Div. 261.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.

      No brief for appellant.
    William C. Walker, Birmingham, for ap-pellee.
   BOOKOUT, Judge.

Appellant was convicted in the Birmingham City Court of the offense of selling beer on an election day. Appeal from the Recorder’s Court to the Circuit Court resulted in an adjudication of guilt and a sentence to a fine of $35.00 and costs. The fine and costs not being paid, appellant was ordered to perform hard labor for the City of Birmingham for a period of six days and thereafter to perform hard labor for the County for four days in lieu of the fine and costs. There is no adjudication in the record that the appellant is an indigent. The appeal is submitted upon the record proper and a stipulation of facts, which appear as follows:

“THE COURT: It is stipulated and agreed by and between the defendant and the City—the stipulation is as follows. First of all, the Lamp Post Lounge is a private club in the City of Birmingham, Jefferson County, Alabama. Two, all the patrons therein at 12:50 a. m. November 4, 1975, were bona fide members or guests of members of said private club. Three, November 4, 1975, was an election day with the polls opening at 7:00 a. m. and closing at 7:00 p. m. Four, that Officer Wesson, a member of the Birmingham Police Department went to the Lamp Post Lounge and paid a dollar cover charge. He then bought a Schlitz beer for a dollar and ten cents.
“MR. WILKINSON: If you would add to the stipulation that the defendant—the private club had a private club liquor license issued by the State of Alabama at the time of the sale.”

I

The above stipulation is the factual basis upon which the finding of guilt was pronounced by the trial court. The facts related in the stipulation would ordinarily be insufficient to support a finding of guilt. There is no showing that the appellant had any connection with the Lamp Post Lounge, either as the owner or an employee. There is no showing that the appellant sold the beer to the police officer. However, the sufficiency of the evidence is not before this Court on appeal. It has been held by this Court on numerous occasions that where there is no motion to exclude the State’s evidence, no request for the affirmative charge, and no motion for a new trial, the sufficiency of the evidence is not presented for our consideration. Wilcox v. State, 54 Ala.App. 474, 309 So.2d 510 (1975); Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974); 7 Ala.Digest, Criminal Law, 1044.1(7).

II

Appellee filed a motion to dismiss the appeal on the grounds that appellant failed to file a brief with this Court within twenty-eight days from the date the record was completed and failed to apply for an extension of time for filing a brief pursuant to Rule 31, Alabama Rules of Appellate Procedure.

In the case of Watts v. State (1976), Ala.Cr.App., 337 So.2d 91, this Court held that the failure to file briefs in a criminal case was not ground for dismissal of the appeal. There, we had squarely before us the question of whether an appeal must be dismissed for failure of the appellant to file a brief pursuant to Rules 2(a), 31(a) and 31(c), ARAP, or whether Title 15, § 389, Code of Alabama 1940, precludes such dismissal. We held that § 389 would control. That section has long been construed to the effect that the filing of a brief is not essential to an appeal in a criminal case. Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955). Therefore, the appel-lee’s motion to dismiss the appeal is not well taken.

AFFIRMED.

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