author: BOOKOUT, Judge.

text:
    Donald C. DELOACH v. STATE.
    6 Div. 216.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    As Corrected On Denial of Rehearing Jan. 24, 1978.

      J. Earl Langner, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry Hutner, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: fifteen years imprisonment.

Around 9:20 P.M. on April 25, 1975, the Majik Market convenience store in the East Lake section of Birmingham was robbed. Deborah Lynn Hutchins, the cashier, was held at gunpoint and a total of $170 was taken from the cash register. The robber fled the scene, and police were unable to find him in the vicinity that night. The appellant was arrested on May 3, 1975, on a charge of possessing a sawed-off shotgun and was charged later that day with the robbery in question.

I

Appellant contends that his arrest, the search, and the seizure of the sawed-off shotgun were not supported by probable cause and therefore were unconstitutional.

On May 3, 1975, Birmingham Police Sergeant John R. Davis received a police radio dispatch to investigate a disturbance at a residence in the East Lake section. He arrived and interviewed Vanessa Ikner, the appellant’s girl friend, who had telephoned the complaint to police headquarters. Davis testified to essentially the same facts on voir dire examination outside the presence of the jury and on three separate occasions in the presence of the jury during trial. He stated: “She told me that her boy friend had been down there waving a gun in her face and threatening her with it, and that he had walked off up the street.” He said that Ikner told him the appellant had a sawed-off shotgun and gave him a description of the appellant and the direction in which he was headed when he left.

Officer Peggy Dawn Lyle had arrived in another patrol car, and the two officers left in separate cars in the direction that appellant had taken. Within less than a minute, they observed the appellant walking down the street. Sergeant Davis stated that he got out of his car, approached the appellant with his revolver in hand, made a pat-down search, and found a sawed-off .410 gauge shotgun under the appellant’s coat. He placed the appellant in Officer Lyle’s car, and the two officers took him to the East Lake precinct where he was booked for possession of a sawed-off shotgun. In route, the appellant was read the Miranda. warning.

After the appellant’s description was compared with that given of the robbery suspect, he was also charged with robbery and transferred to the city jail.

In order to disprove the existence of probable cause, the appellant called Vanessa Ikner to testify outside the presence of the jury. She stated that she had telephoned the police and asked that they send someone out because she and her boy friend had had a fight. She said that she could see the print of his gun under his long coat. She stated that she knew he had a gun although she did not see it at that time. She testified that the appellant had threatened her, but he had not waved the gun or pointed it at her. Ikner stated that she told Sergeant Davis that the defendant had a gun under the back part of his coat and that she described what he was wearing and the direction in which he went. She said that she told Sergeant Davis that the appellant had “jumped on her” and had been hitting her. She had a scar on her neck and her hand was swollen at the time she was interviewed by Sergeant Davis.

The appellant testified, outside the presence of the jury, and stated that he did go by Ikner’s house on May 3 and that he did have a sawed-off shotgun under his coat. He explained that he was moving from one residence to another and had placed the gun under his coat because it had been raining. He admitted that the gun was loaded and that he had three shells in his pocket, but he stated that he did not show the gun to Vanessa Ikner or “flash it.”

The issue appears to be whether the officer had probable cause to stop and frisk a suspect after having been dispatched to the scene of a reported disturbance and also based upon the verbal complaint of an apparently battered woman who stated that the suspect had assaulted her and had a sawed-off shotgun in his possession, (a federal felony, 18 U.S.C.A., § 921, et seq.).

Title 15, § 154, Code of Alabama 1940, provides that an officer may make an arrest without a warrant, “ . . . when a felony has been committed, and he has reasonable cause to believe that the person arrested committed it; or when he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or on a charge made, upon reasonable cause, that the person arrested has committed a felony.” Reasonable cause has been defined by the appellate courts of Alabama, “ . . . as a state of facts in the mind of the officer making the arrest which would lead a man of ordinary prudence to believe that a felony has been committed and that the person to be arrested is guilty of committing it. . ” Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972).

In Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735 (1975), cert. denied, 295 Ala. 414, 327 So.2d 740, we held that an officer had reasonable cause to believe that the suspect had committed a felony and therefore could make a valid arrest and search incident thereto, where the officer observed the suspect within a few minutes of the robbery, within a half block of the scene of the crime, and where the appellant fit the general physical description and his clothing fit the description of that worn by the robber.

We find that it would be exceptionally poor police work, and in fact a violation of the policeman’s duty, if he ignored the complaint of the victim that she had been physically assaulted by the appellant who was carrying a sawed-off shotgun at the time. Also Davis testified that Ikner told him the appellant was waving the gun in her face. To have taken down a full description of the appellant under those circumstances and to have come upon a person meeting that description within a minute and a block and a half of the scene of the reported assault, without stopping the suspect for further investigation, would have amounted to a violation of the officer’s public trust, in our opinion. Any reasonable and prudent person placed in the identical circumstances as Sergeant Davis would have had reasonable cause to believe that the suspect had committed a felony.

Counsel contends that since appellant was merely walking down the street at the time he was stopped, absent any suspicious circumstances, that the stop and frisk rule does not apply, as set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We do not read Terry v. Ohio to mean that the stop and frisk rule is limited to only circumstances where an officer observes some suspicious conduct on the part of the suspect as the officer approaches. The United States Supreme Court has held that the officer may have other information with enough indicia of reliability to justify a forcible stop of a suspect and the protective seizure of a weapon. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In that case the Court stated:

“ . . . The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. .
******
“ . . . [W]e reject respondent’s argument that reasonable cause for a stop and frisk can only be based upon the officer’s personal observation, rather than on information supplied by another person.

The forceful stop of the appellant and the pat-down search therefore would be legal under the theory of a search incident to a lawful arrest pursuant to Title 15, § 154, supra, or pursuant to the stop and frisk rule set out in Adams, supra.

II

Appellant contends that his constitutional rights were violated in that he was not represented by counsel at the time he was placed in a lineup.

The lineup complained of was conducted the day after the appellant’s arrest and prior to his indictment. Appellant has no constitutional right to counsel at a prein-dictment lineup. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

Deborah Lynn Hutchins testified outside the presence of the jury concerning her identification of the appellant. On May 4, 1977, she attended a lineup, consisting of six black males, being conducted under the direction of Police Sergeant Edward Cousins. She said all the men appearing in the lineup were around six feet in height, except one was slightly taller and slim. She estimated that the appellant was the heaviest, and weighed about 170 lbs. After viewing each man, she stated to Officer Cousins that she thought the appellant was the robber, and Cousins told her she had to be certain.

Hutchins said she recognized the appellant immediately when she walked into the lineup room, but she was “afraid to say” until she was positive. She asked Cousins to have each man put on a hat and glasses. She then asked to have the defendant say the words the robber had used when he committed the crime. Immediately after the appellant did so, she positively identified him as the robber. She said no one made a suggestion as to which man in the lineup was suspected by the police, and the identification was left entirely up to her.

Sergeant Cousins testified, outside the presence of the jury, concerning the lineup. He said the appellant was placed in the lineup with five other men from the jail who were of appellant’s general height, weight and age. Cousins said that when Deborah Hutchins first viewed the lineup, she said that she was not certain which was the assailant, but thought that it was “number one” (the appellant). She stated that the robber had worn a hat and glasses and asked if Cousins could have each put on a hat and a pair of glasses. After each had complied, and the appellant had spoken, Cousins said that Hutchins stated, “Positive, number one, puggy face, the way he walks, the way he talks.”

The appellant likewise testified, outside the presence of the jury, concerning the lineup. He stated that he and five other black men from the jail were put in the lineup and that each had been requested to try on the hat and glasses. He was then requested to repeat certain words the robber had used at the time of the crime. After he had done so, the lineup ended and he was brought to an interrogation room where he was questioned by Officer Cousins.

It is our opinion that the evidence presented to the trial court at that point failed to establish that the lineup procedure was suggestive so as to give rise to a substantial likelihood of misidentification. The same witnesses testified repeatedly during the trial to substantially, the same facts. Through lefigthy questioning by defense counsel on direct and cross-examination, those witnesses never established that the lineup was impermissibly suggestive. In fact later in the trial during detailed cross-examination by defense counsel, Officer Cousins’ testimony more strongly supported the fairness of the lineup. He stated that the appellant was 6 ft. 4 in. tall and that the other persons in the lineup were 6 ft. 3V2 in., 5 ft. 11 in., 6 ft. 3 in., 6 ft. 1 in., and 5 ft. 7 in. respectively. As to their ages, appellant told Cousins that he was 24. The others in the lineup were 19, 25, 29, 30 and 37 respectively. Their weights were 225, 185, 160, 189, 172 and 174 lbs. respectively.

During the State’s case in chief, Deborah Hutchins reaffirmed her identification of the appellant. She said that it was based upon the way he walked, talked and looked in the face. She stated that she recognized his voice also. She made a positive in-court identification of the appellant, stating that she was positive that the appellant sitting in the courtroom was the man who robbed her on that night, “[b]ecause he looks the same.”

It is apparent to this court that her in-court identification of the appellant had a source independent of the lineup, that being the robbery itself.

As we have pointed out before, the danger that a procedure will produce a mis-identification may be substantially lessened by a course of cross-examination at trial that exposes to the jury the potential for error. Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976). In the instant case, each identification witness was subjected to extended and detailed examination on cross-examination. Counsel for appellant left no stone unturned in his attempt to discredit the testimony of Deborah Hutchins as to her identification of the appellant.

The trial court, and this court on review, in evaluating the likelihood of mis-identification, whether in court or out of court, must consider certain factors as set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Those factors include: the opportunity of the witness to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the confrontation and the crime.

After reviewing all of the evidence concerning identification given both on voir dire and in the presence of the jury, we find the factors set out in Neil v. Biggers, supra, to be favorable to the State in the instant case. The trial judge did not err in submitting the identification testimony to the jury. The identification testimony considered by the jury was ample to support its verdict in this regard.

Ill

The appellant contends that the trial court erred in allowing two inculpatory statements made by him to go to the jury.

A

On voir dire examination, outside the presence of the jury, Officer Ed Cousins testified concerning a statement the appellant gave him after the lineup had been conducted. Immediately following the lineup, the appellant was taken into an interrogation room, where Cousins informed him that the witness had made a positive identification. Cousins stated that the appellant was given his Miranda rights at that time, read them and signed a waiver of those rights. A full and complete predicate was laid by Cousins’ testimony that the appellant made a statement without any threat, coercion, inducement, promise of reward, etc. The appellant wrote and signed the following statement:

“I, Donald C. Deloach, on April 25, 1975, robbed the Majik Market, 7712 Fourth Avenue, South. I used this sawed-off, .410 shotgun.
“Signed Donald C. Deloach”

The appellant, on voir dire, stated that after the lineup, Cousins brought him to an interrogation room and told him that he had a positive identification of the appellant as the robber. Appellant stated several times that he did not commit the robbery, but he said Cousins kept on alleging that he did. Appellant said he asked how much his bond would be if he cooperated, and Cousins said, “$10,000.” The appellant said he asked Cousins what the sentence would be on the charge, and Cousins said “ten years at most.” Later in his testimony when asked about that incident, appellant stated that Cousins told him the sentence would be at least ten years. [A robbery conviction in Alabama carries a minimum sentence of ten years, Title 14, § 415, Code of Alabama 1940.] Appellant testified that he asked about the possibility of probation if he cooperated, and Cousins said, “It depends on what your record is.”

On voir dire by the State, the appellant testified that he understood his rights and that he was not coerced or intimidated into giving a statement to Sergeant Cousins, or a later statement to federal agents. Appellant stated that he was under the impression that if he cooperated with the police, it would be better for him, although the police did not promise him probation or anything else. Cousins testified as to substantially the same facts on direct examination in the presence of the jury.

The evidence in the instant case clearly shows:

(1) The appellant’s rights were read to him and understood by him in full compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

(2) The voluntariness hearing was held outside the presence of the jury. The trial judge then ruled as a matter of law that the evidence was sufficient to meet the legal standards of Miranda and as to volun-tariness. He properly allowed the evidence to then be presented in the presence of the jury. Lewis v. State, 57 Ala.App. 545, 329 So.2d 596 (1975), affirmed, 295 Ala. 350, 329 So.2d 599 (1976).

(3)The evidence was amply sufficient to support the trial court’s finding that the confession was voluntary and could be submitted to the jury. The question of whether a confession is voluntary is a question of law to be first decided by the court. When the trial court has determined that the confession is voluntary, its decision is entitled to great weight on appeal and will not be disturbed unless it is contrary to the great weight of the evidence and appears to be manifestly wrong. Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967).

B

On voir dire examination, outside the presence of the jury, John D. Williams, a Federal Alcohol, Tobacco and Firearms Agent, stated that he and fellow ATF Agent Edward Armstrong interviewed the appellant in the county jail on May 5, 1975. Williams stated that the appellant was given his Miranda rights and that he signed a form waiver. The proper predicate was laid to prove the voluntariness of the appellant’s statement to the two federal agents, however, the waiver and statement (State’s Exhibits F and G) were not read into the record at that time.

Later, on direct examination before the jury, Agent Williams testified as to his interview with the appellant on May 5. He again stated that the appellant was fully apprised of his rights and signed a waiver. Voluntariness of the appellant’s statement was again proved. Williams emphatically denied that he or Agent Armstrong made any threat or any offer or inducement to the appellant to get him to make a statement and that neither of them told the appellant that it would be better for him, easier for him, or smoother for him if he made a statement.

The waiver and statement given to the ATF agents were admitted into evidence over objection. In the appellant’s statement, he admitted to the federal agents that he sawed off the shotgun with a pipe cutter and a hacksaw, and that about a week later, “I took the sawed-off shotgun to the Majik Market, 7712 Fourth Avenue, South, at night and robbed it. I took over $100 dollars.”

Counsel for the appellant objected that the statement violated some of appellant’s constitutional rights, which ..he failed to specify, and further that the statement was obtained in connection with a federal investigation of a different offense not related to the instant crime and thus was illegal, irrelevant and immaterial.

We know of no rule of law, and are cited to no authority by appellant, to the effect that a legal and voluntary confession taken by federal agents is inadmissible in a state proceeding. Certainly an illegal or involuntary statement taken by either state or federal agents would be inadmissible in either state or federal court, however, such is not the case here. We have found both the confession given to the city police and to the federal agents to have been completely voluntary on the part of the appellant after he had been fully apprised of his Miranda rights. Counsel for appellant, in his brief, contends that the confession was inadmissible since the appellant was held without a probable cause hearing as required by Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Gerstein involved a class action civil rights suit challenging the Florida procedure of pretrial detention based on a prosecutor’s information rather than by indictment. Under the Florida procedure, a prosecutor could merely file an information against a person, who would then be jailed pending trial without an opportunity for a probable cause determination. That part of the Florida procedure was stricken down.

Alabama does not follow the Florida procedure which was condemned in Gerstein. Here, the appellant was arrested on May 3, 1975, as outlined hereinabove, was identified at a lineup the next day, and a warrant for his arrest was issued that same day by a judicial officer. The complaint and warrant of arrest show the following witnesses for the State: Sergeant E. M. Cousins, Deborah Lynn Hutchins, and Sergeant J. R. Davis. We believe there was a sufficient probable cause hearing before a judicial officer in the instant case to comply with Gerstein. That case held that such a probable cause hearing need not be an adversary proceeding wherein the suspect is entitled to counsel. It should be further noted that Gerstein clearly holds that even in the event the arrest and detention is illegal, a subsequent conviction is not voided thereby.

IV

Appellant contends that he was prejudiced by the State’s failure to discover and to furnish him with the record of an arrest of witness Deborah Hutchins on a grand larceny charge which occurred almost five months after the robbery in question. The record shows that Miss Hutchins was arrested on September 16, 1975, on a charge of larceny of a motorcycle, but was released from that charge two days later. There was no conviction on her record. Likewise, there was no connection whatsoever shown between the instant robbery and the larceny charge against Miss Hutchins.

Contrary to appellant’s contention, this is not a case of the State possessing and deliberately suppressing material and relevant evidence favorable to the appellant as in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) cited in appellant’s brief.

Contrary to the appellant’s contention, there is no constitutional right to discovery in a criminal case, and Brady v. Maryland, supra, did not create one. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977).

The law is also clear that a party may not attack the credibility of a witness by showing that the witness had previously been arrested. Title 7, § 434, Code of Alabama 1940, relates to the credibility of a witness as affected by prior convictions of crimes involving moral turpitude. Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967). An arrest has no bearing whatsoever upon the guilt or innocence of an accused. Davis v. State, 21 Ala.App. 637, 11 So. 314 (1927).

V

The trial court committed no error in admitting the sawed-off shotgun into evidence. The gun had been identified by the appellant as the one he was carrying when arrested. It had likewise been identified by the arresting officer. The appellant’s confession established that he used the weapon in the robbery. We have already found the search of the appellant and seizure of the weapon to have been legal. In addition, throughout the trial the weapon had been identified, discussed, examined, testified about, and used in a demonstration. It therefore had become evidence in the case even without a formal offer of admissibility. However, when formally offered into evidence, counsel for appellant objected.

There is no question but that a weapon or other instrumentality used in the commission of a crime, when properly identified, is admissible in evidence. Gentry v. State, Ala.Cr.App., 344 So.2d 1246 (1977), cert. denied, Ala., 344 So.2d 1249 ; 6 Alabama Digest, Criminal Law, <§=>404(3). The rule favoring admissibility of such a weapon is especially applicable where, as in the instant case, the appellant admits possession of the weapon and its use in the crime. Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957).

VI

A record consisting of 6 volumes containing 1,240 pages resulted from this relatively simple and uncomplicated robbery. The trial judge entertained numerous motions, permitted extended voir dire examination of witnesses and patiently heard lengthy arguments of counsel. We have reviewed the record, exhibits and briefs submitted, and we have considered the oral arguments presented in the case. The record discloses that the case was fairly tried. The appellant was accorded every right which due process of law requires under our legal system, and then some. We conclude that the rulings of the trial court, challenged by the appellant, did not constitute harmful or prejudicial error. It is the opinion of this court that the judgment, sentence, and rulings of the trial court were supported by the evidence and the law.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Ex parte Donald C. DeLOACH.
    77-313.
    Supreme Court of Alabama.
    March 24, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Thomas TIDMORE v. The CITY OF BIRMINGHAM.
    6 Div. 484.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Rehearing Denied Jan. 24, 1978.

      James W. May, Birmingham, for appellant.
    W. Otis MacMahon, III, Birmingham, for appellee.
   BOWEN, Judge.

The appellant was convicted by a jury in the Circuit Court of Jefferson County for a violation of Section 16-18 of the General Code of the City of Birmingham 1964, as amended, making it unlawful for any person to knowingly publish, print, exhibit, distribute or have in his possession with the requisite intent any obscene matter. In this instance the obscene matter was a movie entitled Illusions of Love. The appellant was the manager of the Centennial Cinema in Birmingham, Alabama, where the movie was being shown.

On appeal the sufficiency of the evidence is not challenged. Nor does the appellant take issue with the jury’s finding that the film was indeed obscene and pornographic. In light of such we will forego any discussion of the nauseating contents of the film and the facts resulting in the conviction of the appellant.

I

Initially the appellant contends that Section 16-18 of the General Code of the City of Birmingham 1964, as amended, is unconstitutional. Birmingham City Ordinance Number 67-2 was codified without change and became Section 16-18 on January 9, 1976. We have previously held that this particular section is constitutional. McKinney v. City of Birmingham, 52 Ala.App. 605, 296 So.2d 197, cert. denied, 292 Ala. 726, 296 So.2d 202 (1973); Robinson v. State, 353 So.2d 528 (Ala.Cr.App., 1977). The constitutionality of a similar ordinance of the City of Montgomery was confirmed in Gilbert v. City of Montgomery, Ala.Cr.App., 337 So.2d 140 (1976). Under these authorities this contention advanced by the appellant is without merit.

II

The appellant asserts that he was not afforded a speedy trial contrary to the Sixth Amendment of the Constitution of the United States.

The appellant was arrested on January 27, 1976, and was adjudged guilty in the Recorder’s Court of the City of Birmingham. On February 11th, he posted an appeal bond and demanded a jury trial. The appeal was docketed by the circuit clerk on April 22, 1976, and trial was first scheduled for June 21, 1976. The case was rescheduled on three different dates and came to be heard on February 22, 1977. From the record it appears that the trial was reset because other “movie cases” were tried during this time and ultimately due to the congestion of obscenity cases on the trial court’s docket. The presiding judge for the Circuit Court of Jefferson County explained:

“The City appeals docket is set one week a month. It is the policy of this Court on pornograph — as a matter of fact, anything else — we will only try one porno-graph per month because then we have got the jury, in our judgment, we got the jury tainted, having seen one pornographic movie, we don’t want to try another one because then we’ve got trouble getting jurors.”

The record reveals no request for or objection to any continuance by either the city or the defense. The appellant never requested a speedy trial. A motion to dismiss filed by the appellant on February 22,1977, the date of trial, attempted to raise the question of the failure to afford the appellant a speedy trial.

A defendant is not entitled to raise an issue as to a denial of a speedy trial absent an attempt, prior to the trial date, to bring to the attention of the court the alleged denial of a speedy trial. Hodges v. State, 48 Ala.App. 217, 263 So.2d 518 (1972). The appellant did not make a prima facie case for release on grounds of the denial of a speedy trial and has not even alleged that any actual prejudice resulted from the fact that trial was delayed. Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972). A defendant who makes no outcry when there was a delay in his trial is deemed to have waived his right to a speedy trial. Autrey v. State, 44 Ala.App. 53, 202 So.2d 88, cert. denied, 390 U.S. 1030, 88 S.Ct. 1422, 20 L.Ed.2d 287 (1967); Broadnax v. State, 54 Ala.App. 546, 310 So.2d 265 (1975). It is fundamental that an accused must affirmatively exercise his right to a speedy trial. Mayberry v. State, 51 Ala.App. 343, 285 So.2d 507, cert. denied, 291 Ala. 792, 285 So.2d 512, cert. denied, 415 U.S. 929, 94 S.Ct. 1438, 39 L.Ed.2d 486 (1972). Since there was no effort on the part of the appellant to secure his right to a speedy trial prior to the day of trial, he may not complain of any delay on appeal. Harmon v. State, 48 Ala.App. 521, 266 So.2d 325, cert. denied, 289 Ala. 744, 266 So.2d 328 (1972); Moulden v. State, 47 Ala.App. 573, 258 So.2d 915 (1972).

HI

The appellant contends that he was denied the effective use of his peremptory challenges because the trial court did not excuse four jurors for cause.

On voir dire examination of the jury panel, defense counsel asked the following question.

“If during the course of the trial of this case the evidence shows that Tom Tid-more showed or caused to be shown in the City of Birmingham a movie which depicted acts of sexual intercourse including cunnilingus, fellatio, homosexuality and bisexuality, would you merely because of that be prejudiced against him?”

Five jurors responded: Mr. Crabtree, Mr. Parker, Mrs. McLaughlin, Mrs. Keith and Mrs. Grace. The trial judge then instructed the jury on its duties, responsibilities and that the jury must decide whether or not the film was obscene based on certain criteria under the law and upon which the jury would be instructed.

Juror Grace then responded that she could be guided by the law, as did Jurors Keith and Crabtree. Juror McLaughlin was excused by the court. Subsequently defense counsel requested that Jurors Crab-tree, Grace, Keith, and Parker be excused for cause. The court then overruled this request with the following comment.

“My recollection of when I explained to them, namely the charge and the fact that not their personal evaluation is involved, and as we all know, it is contemporary community standards. I think each of them individually answered they would base it on the law in the case and the evidence in the case so I am going to overrule it.”

The City then asked a few questions of the jurors whereupon the trial court, in an abundance of caution, again inquired of the jurors

“I think I am going to ask a question to make sure I understand correctly. I think I do but to make sure, Mrs. Grace, Mrs. Keith, Mr. Parker, Mr. Crabtree, this may be a duplication but I want to make sure that I am correct.
“In answer to the question that you would be prejudiced — would anyone be prejudiced against the defendant because they showed a certain picture with certain acts, then I explained the law and what the proof had to be and particularly I have emphasized that you must be guided by the law and I want you all to be very candid about it, that is really what we are here for, and we want to make very sure everyone is as impartial as is humanly possible for people to be, realizing we are all people. Are you sure, Mrs. Grace, you wouldn’t be — understanding the law and seeing this picture, do you— are you sure that you would not be prejudiced against the defendant but would base it solely on the—
“THE JUROR: Right, after your explanation.
“THE COURT: Mrs. Keith?
“THE JUROR: I could do it, with the law. I could do it.
“THE COURT: Mr. Parker?
“THE JUROR: Applying the federal law to it?
“THE COURT: Yes, it is really Alabama law, too. I used the United States Supreme Court because that is where over the years ease after case has come out of, but this is Alabama law, in fact, right now as far as I know. It changes frequently.
Mr. Crabtree?
“THE JUROR: Yes, sir, I think I could.
“THE COURT: All right, I will overrule the motion again.”

The action of the trial court in overruling the motion to excuse the jurors for cause was proper. The principles of law involved are clear and are concisely set forth under 50 C.J.S. Juries § 242, pp. 998-999.

“A juror is incompetent who has such personal opinions with respect to the subject matter of the suit, or conscientious scruples on any subject, as would influence his verdict, . . . , or who has a fixed opinion as to any of the main issues involved.
* * * * * *
“In general the same test which determines whether a juror’s opinions as to the guilt or innocence of accused disqualifies him, . . . , is applied to determine whether a juror’s scruples will disqualify him; that is, can he eliminate the influence of his scruples and render a verdict according to the evidence? Ordinarily he is not disqualified where it appears that he is entirely willing to accept the law as laid down by the court and able to decide the case impartially according to the evidence. The determination of this question is based on the juror’s answers and demeanor and is within the sound discretion of the trial judge.”

Thus, where jurors testify that they have opinions but that they would try the case fairly and impartially according to the law and the evidence, and that their opinions would not influence their verdict, those jurors are competent to serve. Godau v. State, 179 Ala. 27, 60 So. 908 (1913); Strickland v. State, 151 Ala. 31, 44 So. 90 (1907); Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90, cert. denied, 258 Ala. 579, 64 So.2d 102 (1953). To disqualify a prospective juror, he must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused. Such opinion must be so fixed as that it would bias the verdict a juror would be required to render. McGorvey v. State, Ala.Cr.App., 339 So.2d 1053, cert. denied, Ala., 339 So.2d 1058 (1976); Hammil v. State, 90 Ala. 577, 8 So. 380 (1890).

We have carefully reviewed the entire record as is required by law and it is our opinion that the judgment of the trial court is due to be and is hereby

AFFIRMED.

All Judges concur.


author: SHORES, Justice.

text:
    Ex parte Thomas TIDMORE.
    77-317.
    Supreme Court of Alabama.
    March 24, 1978.
   SHORES, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Roosevelt TURNER v. STATE.
    3 Div. 793.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.
    Frank L. Thiemonge, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the jury fixed his punishment at twenty-five years in the penitentiary. Prior to trial appellant filed a written waiver of arraignment and a plea of not guilty to the indictment. After sentence was imposed, appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The evidence presented by the State tended to show that on November 18, 1976, Mrs. Becky Roberson was operating Wiggins Grocery Store on the Woodley Road which was located about four miles south of the Hunter Loop in Montgomery County, Alabama. Between two and three o’clock in the afternoon of that date two black men entered the store. Appellant was one of the men and he pointed a sawed-off shotgun directly at Mrs. Roberson and said, “You can give me all your cash.” Mrs. Roberson opened the cash register and before she could get the money out appellant reached into the register and got all the currency. He then told her to put the change in a sack. While appellant, was holding the shotgun on Mrs. Roberson the second black man walked into Mrs. Roberson’s living quarters to the rear of the store. He returned in a few minutes and told appellant there was not anything back there they wanted and proceeded to take several packages of cigarettes from behind the counter. In the meantime a third black man entered the store and picked up a six-pack of beer and told Mrs. Roberson to put it in a sack. After the robbery was completed the three men left the store with the money, cigarettes and beer. As they were leaving appellant turned around and said, “We will be back and you better have more money.”

Mrs. Roberson further stated she observed the three bandits enter a white car with dark-colored doors and speed away. After the men left she called her employer and the police.

Mrs. Roberson made a positive in-court identification of appellant as the man who pointed the sawed-off shotgun at her.

From the record:

“Q. And you’re absolutely positive
“A. I am absolutely positive. If you was looking down a double barrel shotgun, you ain’t going to forget their face if they are holding it on you.
“Q. Were you looking at his face or were you looking at the shotgun?
“A. I was looking at him and the gun, because he had it pointed right at my heart. I was looking at him.
“Q. Was he pointing it at anybody?
“A. He was pointing it right at me. Yes, sir. I won’t never forget that face. As long as I live, I’ll never forget it.”

Officer John Presley of the Montgomery Police Department testified that he received a radio dispatch to be on the lookout for three black male robbery suspects driving “a late model Plymouth with dark-colored doors.” Presley stated that he and his partner proceeded to the intersection of the Troy Highway and the Virginia Loop Road and they spotted the late model Plymouth with dark-colored doors. There were three black males in the car and appellant was one of the men. They stopped the car in less than five minutes after receiving the radio dispatch. After removing the three men from the car the officers saw a bag containing bills, some coins, cigarettes, beer and two sawed-off shotguns. They counted the currency in the bag and found $107.00.

Other police officers testified as to the chain of custody of the seized items from the car and there was no broken chain in the possession and custody of the seized items.

Appellant did not testify but offered one witness who stated that appellant did not participate in the robbery; that he was only a passenger in the car and that he did not get out of the car at the store alleged to have been robbed.

At the close of the State’s case appellant made a motion to exclude the State’s evidence for failure to make out a prima facie case. Appellant also requested the affirmative charge and made a motion for a new trial. The affirmative charge was refused and both motions were overruled and denied.

After the jury was struck and the case was ready for trial, appellant made a motion to dismiss the case on the ground that he was denied his constitutional right to a speedy trial. The case had been called for trial on April 19, May 25, and June 28, 1977. The case was continued on motion of the State on each of these occasions due to the absence of a key witness. The witness was Officer Presley whose wife had recently given birth to a child and it became necessary to rush the child to the University Hospital in Birmingham.

Counsel for appellant claims that each of these continuances granted to the State was over his objections. The record in this case does not support these claims of appellant. There was an eight-month delay in getting the case to trial but this is not an inordinate amount of time. Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81; Giles v. State, 52 Ala.App. 106, 289 So.2d 673. Appellant adduced no evidence even tending to show that he was prejudiced by this delay.

It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness of conflicting evidence. Such testimony is for the jury, and a verdict rendered thereon will not be disturbed on appeal. Little v. State, Ala.Cr.App., 340 So.2d 88; May v. State, Ala.Cr.App., 335 So.2d 242.

Where the evidence raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the State’s evidence, refusal to give the affirmative charge, and overruling of a motion for new trial do not constitute error. May, supra; Robinson v. State, Ala.Cr.App., 339 So.2d 145; Young v. State, 283 Ala. 676, 220 So.2d 843.

The trial judge refused to give appellant’s written requested charge, “The State must prove its charge beyond a reasonable doubt by the evidence. The assertions of counsel are not evidence.” In the oral charge, the trial judge substantially and adequately instructed the jury on what constitutes a reasonable doubt. However, he did not charge that the assertions of counsel are not evidence. Appellant claims this was error.

In Lamar v. State, Ala.Cr.App., 356 So.2d 677 this Court reversed defendant’s conviction for the trial court’s failure to give the above charge. The Supreme Court of Alabama granted the State’s petition for certiorari and reversed this Court, 356 So.2d 680.

In Lamar, Justice Shores wrote:

“Clearly, assertions made by counsel are not evidence, but it is not necessary in every criminal prosecution that a charge to that effect be given to the jury. If the trial court adequately charges the jury as to what evidence it may properly consider in its deliberations, and adequately charges that the state has the burden to prove its charge beyond a reasonable doubt, it is not necessary that the charge expressly exclude assertions of counsel from the jury.”

In this case, immediately preceding the closing arguments of counsel, the trial judge told the jury:

“We are getting to the area known as argument to the jury. This is not testimony but this is the way the State sees the case and the way the Defense counsel sees it.” (Emphasis added.)

Furthermore, the trial judge, in his oral charge to the jury, instructed:

“You are the sole judges as to the weight that should be given to all the testimony in this case.”
* * * * * *
“You take the testimony of the witnesses that you heard from the stand, together with all proper and reasonable inferences therefrom, and apply your common sense, and in an honest and impartial way, determine what you believe to be the truth.” (Emphasis added.)

We believe that the trial judge properly instructed the jury as to what evidence it could consider in its deliberations, as required by Lamar, supra. Thus, on the authority of Lamar, the refusal to give the requested charge in this case was not error.

Appellant also requested that the trial judge charge the jury on the lesser included offenses of robbery. These requested charges were refused. Such was not error in this particular case.

In a trial on an indictment for robbery, the defendant is not entitled to charges on lesser included offenses, where the only reasonable conclusion from the testimony is that the defendant is guilty of robbery or no crime at all. Carter v. State, Ala.Cr.App., 340 So.2d 94; Golston v. State, 57 Ala.App. 623, 330 So.2d 446.

Under the evidence in this case, no crime was committed other than the commission of armed robbery. According to the victim, Becky Roberson, appellant took money, beer, and cigarettes from her, in her presence, by use of force, and thus carried that property away.

A thorough search of the record reflects no error injuriously affecting the substantial rights of appellant. The judgment of conviction is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Roosevelt TURNER.
    77-349.
    Supreme Court of Alabama.
    March 31, 1978.
   ALMON, Justice.

WRIT DENIED.

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


text:
    Tony Randall WARD, alias v. STATE.
    1 Div. 790.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.

      Joseph C. Sullivan, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen. and John B. Rucker, III, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

Approximately 10:30 P.M. on June 7, 1976, two teenage cousins, William Burrell and Grover Hudson (the deceased), were walking to a neighborhood convenience store in the city of Mobile. They approached the intersection of Michigan and Bay avenues at which an automobile was stopped for a stop sign and walked behind the automobile to cross to the other side of the street. There was some evidence indicating that either Burrell or Hudson hit on the vehicle and said something as they walked around it. After the two teenagers had walked a short distance past the automobile, a shot was fired from the car which hit and killed Grover Hudson. The vehicle, driven by the appellant, then sped off into the night.

Also riding as passengers in the automobile driven by the appellant were Randy Gibson in the right front seat and Larry Jackson in the rear seat. Burrell testified that he had not known Ward or Gibson previously, but had seen Ward for the first time in the vehicle on the occasion of the shooting. He knew Larry Jackson slightly and recognized him as the occupant in the rear seat of the car. All of the occupants of the vehicle were high school aged boys. Burrell and Hudson, the two pedestrians, were black; of the three boys in the automobile, Ward and Gibson were white and Jackson was black.

Larry Jackson testified that Ward and Gibson came by his home earlier on the evening of the killing and picked him up. They stopped for a short time at “Bump City,” a local nightclub, and then continued riding. After leaving the club, Ward and Gibson used Ward’s .22 caliber pistol to shoot into the windows of two houses. During the course of the evening’s joy riding, the three youths together consumed three six packs of beer, as well as three valium tablets each.

Jackson stated that while stopped at the intersection of Bay and Michigan Avenues, he saw two black youths walk past the car and hit or bang on it. Jackson testified that just prior to the murder, Ward stated that, “Well, if he didn’t stop — stop knocking on the car, he was probably going to shoot him.” Jackson saw Ward lean across the driver’s side of the car past Gibson and heard a shot from the gun. Though Jackson did not actually see Ward fire the shot, he testified that after the gun fired, Ward admitted shooting the victim.

Randy Gibson, the other passenger, testified that while stopped at the intersection he also saw the two youths walk around the automobile. Ward asked whether he should shoot the boys, but Gibson did not think Ward was serious until Ward actually fired the gun and hit one of the youths.

The appellant’s testimony in his own behalf, agreed substantially with that of Gibson and Jackson, with the major exception that he contended Gibson fired the fatal shot. Ward testified that when the two black youths walked around the automobile, Gibson called one of them a “- nigger” and fired the fatal shot.

Angela Pierce, a friend of the appellant, testified that shortly after the murder, she had a conversation with Gibson wherein Gibson stated that he was the number one killer and was going to have her boyfriend sent away.

Gregory Gardner, testifying in rebuttal for the State, stated that he was with the appellant the day after the murder when the appellant bought a newspaper. After reading the paper, Gardner testified that Ward stated, “. . . why did that guy have to mouth off . . .,” and “. why did he make me — why did he make me shoot him?” Gardner stated, however, that Ward later said that he did not shoot the deceased, but knew who did.

I

Appellant contends that the verdict was against the great preponderance of the evidence. We disagree. The weight and probative value to be given the evidence, the credibility of witnesses, the resolution of conflicting testimony, and the inferences to be drawn from the evidence, even where susceptible of more than one rational conclusion, are for the jury. Hall v. State, 57 Ala.App. 132, 326 So.2d 660 (1976). A verdict of conviction must not be set aside on the ground of insufficiency of the evidence unless, after allowing for all reasonable presumptions in favor of its correctness, the preponderance of the evidence against the verdict is so strong as to clearly convince the court that it was incorrect and unjust. Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969). In the instant case, it is clear that there was legal evidence presented from which they jury could, by fair and reasonable inference, find the appellant guilty of the crime charged in the indictment.

II

Appellant next contends that the trial court erred in denying his motion for a mistrial where the prosecutor attempted to impeach him by asking if he had gotten into trouble before. The trial record indicates the following exchange:

“Q. Well, I thought a little while ago you said you were real good friends?
“A. We are pretty good friends. I am good friends with a lot of people.
“Q. As a matter of fact, you all have gotten in trouble before, haven’t you?
“MR. SULLIVAN: Your Honor, we are going to object to that and we move for a mistrial.
“THE COURT: Ladies and Gentlemen, you are not to accept anything from the counselors which pertains to this case. Mr. Valeska, I will appreciate your refraining from any remarks like that.
“MR. VALESKA: Yes, sir; Judge.
“MR. SULLIVAN: Judge, I have a motion before the Court.
“THE COURT: I deny your motion.”

Again, we find no reversible error. First, the appellant gave no answer to the question. Even if the question was considered improper, reversal would not be required because the rule is that, “improper questions not answered are harmless.” Kemp v. State, 278 Ala. 637, 179 So.2d 762 (1965); Wilbanks v. State, 289 Ala. 171, 266 So.2d 632 (1972). Additionally, any problem presented by the question’s possible negative inference upon the jury was cured by the trial judge’s immediate instructions removing the matter from consideration by the jury. Crump v. State, 43 Ala.App. 136, 181 So.2d 620 (1965), cert. denied, 279 Ala. 686, 181 So.2d 624 (1966): Dufresne v. State, 40 Ala.App. 476, 116 So.2d 385, cert. denied, 270 Ala. 737, 116 So.2d 388 (1959).

III

Appellant alleges that the trial court erroneously allowed the prosecutor to, “place the jury in the position of a witness” during his closing argument. The questioned language is as follows:

“MR. VALESKA: And, if you had been there that night .
“MR. SULLIVAN: Your Honor, we are going to object to putting the Jury in the position of being a witness in the case.
“THE COURT: Overrule.
“MR. SULLIVAN: Move for a mistrial.
“THE COURT: Denied.”

Here, we find preserved for review this mere fragment of the prosecutor’s interrupted statement. Without the remarks which preceded it, the statement is altogether too incomplete for us to say that it worked to the prejudice of the defendant. Embrey v. State, 283 Ala. 110, 214 So.2d 567 (1968).

IV

The appellant further argues that the prosecutor made an improper threat to the jury in his closing argument which should have been ground for a mistrial. His argument has reference to the following exchange:

“MR. VALESKA: Because, some day he is going to walk out of that penitentiary.
“MR. SULLIVAN: Your Honor, we are going to object to that.
“THE COURT: Sustained.
“MR. SULLIVAN: Your Honor, we would like to state that what Mr. Valeska said to the Jury that some day he would walk out of that penitentiary that is the words we are objecting to and we move for a mistrial.
“THE COURT: Deny your motion. Ladies and Gentlemen of the Jury, you are to disregard that last remark by Mr. Va-leska and not to consider that in your verdict.”

We point out first that the statement made by the prosecutor and preserved for the record is again incomplete. Without the prosecutor’s preceding statements, it is difficult to determine whether or not the statement was prejudicial. Yet, even assuming the statement to be improper, any harm or possible prejudice was removed by the trial court’s immediate action in sustaining the appellant’s objection and instructing the jury to disregard the remark. May v. State, 42 Ala.App. 401, 166 So.2d 860 (1963), cert. denied, 277 Ala. 700, 166 So.2d 865.

V

The appellant next contends that the trial court erroneously charged the jury as to Title 14, § 14, Code of Alabama 1940. The appellant’s exception to the court’s oral charge came outside the presence of the jury. Further, when later asked in the presence of the jury if counsel had any exceptions, the appellant’s counsel replied, “No, sir.” Exceptions to the court’s oral charge must be made in the presence of the jury before they retire for deliberations. Where, as here, appellant’s counsel made no exception to the oral charge, but to the contrary replied he had no exception and failed to ask for any clarifying instructions, no part of the oral charge is presented for review. Evans v. State, Ala.Cr.App., 338 So.2d 1033 (1976); Franklin v. State, 45 Ala.App. 27, 221 So.2d 919, cert. denied, 284 Ala. 729, 221 So.2d 921 (1969).`

VI

The appellant alleges it was error for the trial court to refuse to give the affirmative charge and to refuse to exclude the State’s evidence. Appellant’s contention is based upon the fact that the appellant was the alleged accomplice of another person in the automobile who testified against him. The appellant argues that there was insufficient corroboration of the accomplice’s testimony to sustain the conviction pursuant to Title 15, § 307, Code of Alabama 1940.

The word “corroboration” as used in § 307, supra, merely means to “strengthen” the testimony of the accomplice. Corroboration of the testimony of an accomplice need not be sufficiently strong in and of itself to support a conviction. It is sufficient if it tends to connect the accused with the offense. Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62 (1975).

Both Randy Gibson and Larry Jackson testified that the appellant did the shooting. The appellant contends that Gibson fired the fatal shot. Excluding the testimony of Gibson, we still have the testimony of Larry Jackson. There is no evidence from anyone that Jackson either fired the fatal shot or knew in advance that anyone actually intended to shoot the deceased. Thus, Jackson would not be considered an accomplice, even if Gibson could be considered as such. In addition to Jackson’s testimony, we have the testimony of Gregory Gardner that after reading the newspaper account of the murder, appellant stated, “. . . why did he make me— why did he make me shoot him?” That is sufficient corroboration, even though Gardner testified that later Ward denied doing the shooting. Such corroboration goes far beyond merely showing the commission of the offense or the circumstances thereof and is sufficient to sustain the conviction.

VII

The appellant’s last contention is that the trial judge erred in refusing to grant a new trial. The grounds argued are the same as those covered above in parts I-VI of this opinion. The granting or refusing of a motion for new trial rests largely within the sound discretion of the trial judge. Dolberry v. State, Ala.Cr.App., 337 So.2d 1328 (1976). Having carefully reviewed this record, we find no abuse on the part of the court below in refusing to grant the motion for new trial.

Affirmed.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Tony Randall WARD.
    77-372.
    Supreme Court of Alabama.
    March 24, 1978.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    James Douglas ODOM v. STATE.
    4 Div. 558.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.

      Myron H. Thompson, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., and Larry E. Craven, Montgomery, for the State.
   BOOKOUT, Judge.

Grand larceny; sentence: ten years imprisonment.

The instant case arises from the same transaction set out in the companion case of Stemple v. State, Ala.Cr.App., 352 So.2d 33 (1977).

Around 2:00 A.M. on February 5, 1977, Sergeant Gerald Monday, of the Houston County Sheriff’s Department, overheard a suspicious conversation between two men on his C. B. (Citizens Band) radio. He was able to locate two men who were using a blue pickup truck, driven by the appellant, and a red tractor-trailer truck, driven by James Stemple, on which was loaded a large tractor with a hay loader attached. The tractor was later identified as the property of Floyd Owens, who testified that he had given no one permission to remove it from his property. Owens estimated the tractor to be worth about $10,000 and the hay loader to be worth about $1,000.

Sergeant Monday testified that both vehicles which he had stopped were equipped with C. B. radios. He stated that he heard the two men speaking over their radios and that he later spoke with both of them. He identified the voices he overheard as those of the appellant and James Stemple. A more detailed account of the facts of the case is set out in Stemple v. State, supra, and it is unnecessary to set them out fully herein as they have no direct bearing on the issues presented for review on this appeal.

I

The appellant contends that the trial judge erred in allowing the prosecution, “to rebut appellant’s general reputation and reputation for truth and veracity with specific acts and conduct of the appellant.”

A character witness had testified as to the appellant’s good general reputation in the community and as to his general reputation for truth and veracity. On cross-examination by the prosecutor, the following occurred:

“Q. Have you ever heard Mrs. Smith that he had ever been arrested three times for worthless checks?
“MR. CARTER: Objection, Your Honor unless he can—
“THE COURT: Overruled. I have already ruled.
“BY MR. SORRELLS:
“Q. Have you ever heard that he was arrested in November of 1974, January of ’77 and February of ’77 for writing worthless checks?
“A. No.”

Appellant asserts that his character can be attacked only by evidence of general repute, and that questions relating to specific criminal acts on his part may not be asked. In support of this contention, appellant relies on Baker v. State, Ala.Cr.App., 344 So.2d 547 (1977), in which we noted the general proposition that, “ . . . the accused, or any witness, may not be impeached by showing a mere arrest on charge of a crime . . . .” While this may be generally true, Baker and the authority cited therein is distinguishable from the instant case because here we do not deal with the impeachment of a witness or an accused as a witness by proof of his own illegal or unworthy acts. The problem here involves an attack on the credibility of a character witness, and that witness’ views of the appellant’s general good character by testing the witness’ knowledge of specific acts of the appellant which might tend to mitigate against his reputation or character.

In Frazier v. State, 56 Ala.App. 166, 320 So.2d 99 (1975), we stated:

“Where witnesses testified as to the good reputation of the defendant, it was permissible on cross-examination to test their knowledge of the defendant’s reputation by asking if they had heard of specific acts of the defendant that tended to mitigate against his reputation or character. . . . Baldwin v. State, 282 Ala. 653, 213 So.2d 819.”

Also see: Crowe v. State, Ala.Cr.App., 333 So.2d 902 (1976); Sexton v. State, 54 Ala.App. 665, 312 So.2d 71 (1975). Such a line of questioning is permissible because an adversary has the right to test the accuracy, credibility, and sincerity of a witness on cross-examination. Mullins v. State, 31 Ala.App. 571, 19 So.2d 845 (1944). At any rate, the question was harmless because of the negative reply. Higginbotham v. State, Ala.Cr.App., 346 So.2d 525 (1977); Baldwin, supra; Binion v. State, 57 Ala.App. 234, 327 So.2d 729 (1976), cert. denied, 295 Ala. 391, 327 So.2d 732.

The appellant, for the first time on appeal, raises objection to similar questions asked of other character witnesses. However, there were no objections raised at trial and no ruling by the trial court thereon, and thus this court is unable to review the propriety of those questions. Tillman v. State, 52 Ala.App. 282, 291 So.2d 373 (1974).

II

Appellant contends that no proper predicate was laid for the introduction of testimony identifying the voice of the appellant as the voice heard by Officer Monday over his C. B. radio.

On direct examination, Sergeant Gerald Monday testified as follows:

“Q. Let me ask you this. Did you see James Stemple later that night?
“A. Yes, sir.
“Q. Did you talk to him later that evening?
“A. Yes, sir.
“Q. When you talked to him, was that voice the same voice that you heard on the CB radio?
“MR. CARTER: I object, Your Honor. He has no way of knowing. He has talked to him one time or twice after-wards and he heard somebody talking—
“THE COURT: He hasn’t said any such thing as that. All right. Go ahead. I overrule you.
“MR. SORRELLS: All right.
“BY MR. SORRELLS:
“Q. That voice that you heard on the CB radio, is that the same one you heard from James Stemple when you stopped him later that evening?
“A. Yes, sir.”

Sergeant Monday also testified that he had known the appellant, Douglas Odom, approximately seven years. He had heard the appellant’s voice many times and, after he stopped the two suspects, he then knew for a fact that one of the voices he had heard was that of the appellant. In fact, Monday said one of the voices on the radio had been referring to the other as “Doug.”

Generally, testimony by a witness that he recognized the accused by his voice is admissible in evidence, provided only that the witness has some basis for comparison of the accused’s voice with the voice which he identifies as that of the accused. Orr v. State, 225 Ala. 642, 144 So. 867 (1932); Hall v. State, 208 Ala. 199, 94 So. 59 (1922); Shaffer v. State, 202 Ala. 243, 80 So. 81 (1918); McGraw v. State, 34 Ala.App. 43, 36 So.2d 559 (1948); Kirby v. State, 16 Ala.App. 467, 79 So. 141 (1918). There is a sufficient basis for comparison of voices even if the witness acquires his knowledge of the accused’s voice after the event testified to by the witness. Stemple, supra; McGraw, supra.

Identification of a voice over a radio or telephone is sufficient where the witness testifies that he knew the person speaking and recognized his voice. Carr v. State, 43 Ala.App. 642, 198 So.2d 791 (1967); Dentman v. State, 267 Ala. 123, 99 So.2d 50 (1958). In neither of those cases was the State required to lay a predicate that a radio or a telephone can accurately reproduce the sound of the voice. It is therefore our decision that a proper predicate for the introduction of voice identification evidence was laid in the present case. Defense counsel’s objections went only to the weight to be given the evidence, not its admissibility. McGraw v. State, supra.

Ill

The appellant contends that in his motion for a new trial, he raised the issue of his denial of a preliminary hearing. The trial judge overruled his motion for a new trial, which he contends was error.

A defendant is only entitled to a preliminary hearing as a matter of right prior to indictment. It has long been held that a preliminary hearing is not a required procedure in a criminal prosecution and that no right to such exists in Alabama after indictment. Johnson v. State, Ala.Cr.App., 335 So.2d 663 (1976), cert. denied, Ala., 335 So.2d 678. In the instant case, a preliminary hearing had been set for the appellant for February 18, 1977, however, he was indicted by the grand jury of Houston County on February 11. He was therefore not entitled to a preliminary hearing as a matter of right after indictment.

IV

The appellant requested fifteen written charges to be given to the jury. The trial court gave eight to the jury and refused the other seven charges. None of the appellant’s written requested charges were numbered. Written charges should be numbered or otherwise designated to avoid confusion. Hendrix v. State, 21 Ala.App. 517, 110 So. 167, cert. denied, 215 Ala. 114, 110 So.2d 168 (1926). However, neither Section 12-16-13, Code of Alabama 1975, nor the prior statute, Title 7, § 273, Code of Alabama 1940, required that charges be numbered. Although we do not approve of submitting unnumbered charges to the trial court and likewise find it cumbersome and difficult to refer to various unnumbered charges in the opinions of this court, we nevertheless must consider each such charge. Bearden v. LeMaster, 284 Ala. 588, 226 So.2d 647 (1969).

One of the refused charges was in the nature of an affirmative charge which was properly refused since there was sufficient evidence presented from which a jury could draw an inference of guilt on the part of the appellant. The other six charges were substantially and fairly covered in the court’s oral charge or in other written requested charges which were given to the jury. Section 12-16-13, Code of Alabama 1975.

The appellant, in his brief, contends that three of his written requested charges setting out the elements of grand larceny should have been given to the jury. We find that the trial court adequately and substantially defined the offense of grand larceny in its oral charge to the jury. Each of the three refused charges in question were predicated upon the statement that the four required elements to prove grand larceny are:

“1. A felonious taking.
“2. A carrying away.
“3. The property of another.
“4. An intent to steal or deprive the owner thereof.”

We find each of the three charges predicated on the above definition of grand larceny to be incomplete statements of the law. Each of the definitions fails to set out the required value of the property. The crime of grand larceny, pursuant to Section 13-13-50, Code of Alabama 1975, requires that the personal property of the category taken in the instant case be valued at $25 or more. Thus, in addition to the other grounds enumerated, the trial judge properly refused the three requested charges as they each omitted an essential element of the statutory definition of grand larceny.

Affirmed.

All the Judges concur.


text:
    Ex parte James Douglas ODOM.
    77-365.
    Supreme Court of Alabama.
    March 24, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


author: CLARK, Retired Circuit Judge.

text:
    Bonnie Dean HARRIS v. STATE.
    6 Div. 255.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    James B. Morton of Morton & Evans, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State, appellee.
   CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty of burglary in the second degree as charged in one count of an indictment and of grand larceny as charged in another count of the indictment. He was adjudged guilty accordingly and sentenced to imprisonment for eight years. In the sentencing procedure, the trial court pronounced sentence on the judgment as to the burglary only, stating that “the other verdict of guilty, insofar as sentencing is concerned is considered sur-plusage.”

The parties are in agreement, as they obviously were on the trial, that defendant was not prosecuted for two separate and distinct crimes, but that the alleged burglary and the alleged grand larceny were so closely related in time, place and all other circumstances as to permit punishment for one crime only, even if both burglary in the second degree and grand larceny were committed. The statutory range of punishment for each felony is the same, imprisonment in the penitentiary for not less than one nor more than ten years. Code of Alabama 1940, Recompiled 1958, Tit. 14, § 86 (Burglary), § 331 (Grand Larceny).

In their respective briefs for appellant and appellee, counsel concentrate their efforts upon the question whether the evidence is sufficient to support the judgment of conviction.

The legal proposition relied upon by appellant, that to justify a verdict of guilt based on circumstantial evidence, the evidence must be sufficient to exclude every reasonable hypothesis but that of defendant’s guilt, is not questioned. Sumeral v. State, 39 Ala.App. 638, 106 So.2d 270 (1958); Bluth v. State, 38 Ala.App. 692, 92 So.2d 685 (1957); Whatley v. State, 37 Ala.App. 706, 75 So.2d 182 (1954).

As to the question of the sufficiency of the evidence in any criminal case, the duty of a court, whether trial or appellate, is not to be confused with the duty of the jury. In a case tried by a jury all twelve must, but neither the trial court nor an appellate court must, be satisfied by the evidence beyond a reasonable doubt and to a moral certainty of the guilt of the accused.

When the question of the sufficiency of the evidence has been properly presented in the trial court and is properly presented to the court on appeal, it is the duty of the court on appeal to vitiate the conviction if there is no substantial evidence of defendant’s guilt as charged. Blue v. State, 246 Ala. 73, 19 So.2d 11 (1944); Ex parte Grim-mett, 228 Ala. 1, 152 So. 263 (1933); Clark v. State, 257 Ala. 95, 57 So.2d 384 (1944); Ford v. State, 50 Ala.App. 343, 279 So.2d 146, cert. denied 291 Ala. 778, 279 So.2d 149 (1973). The cases cited, and many others, hold that a mere scintilla of evidence is not sufficient in a criminal case. The court, however, in each instance is dealing with the question of the kind or quality of evidence that is sufficient to warrant resolution by the jury of the question of defendant’s guilt.

If there is legal evidence of defendant’s guilt, if it is substantial in nature and not a mere scintilla, if it is susceptible of a rational conclusion therefrom that defendant is guilty, the weight of the evidence and its probative value are for the jury. Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969); Hyman v. State, Ala.Cr.App., 338 So.2d 448 (1976); Jones v. State, Ala.Cr.App., 337 So.2d 116; Lewis v. State, Ala.Cr.App., 337 So.2d 108 (1976); Moore v. State, 57 Ala.App. 668, 331 So.2d 422 (1976); Haynes v. State, 57 Ala.App. 653, 331 So.2d 409 (1976); Vines v. State, 57 Ala.App. 117, 326 So.2d 307 (1955); Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813, cert. denied 292 Ala. 723, 297 So.2d 817.

At the conclusion of the evidence presented by the State, defendant moved to exclude the evidence. The motion was overruled. At that time the undisputed evidence showed that some time between 9:30 and 10:00 P.M., Friday, September 12, 1975, and the following Monday morning at about 7:00, the offices of the Sheet Metal Workers Local Union No. 48 at 1108 Twenty-ninth Street in Birmingham had been burglarized and that various items of office equipment and petty cash had been stolen therefrom. A police investigation promptly commenced. Many latent fingerprints and some latent prints of human hands were lifted from pieces of broken glass lying on the floor, the glass being from a door through which the offices had obviously been entered. There was evidence that the personal property stolen was of the value of more than a few hundred dollars.

A fingerprint expert, whose qualification was shown and was in no way challenged, testified that she found, after carefully studied minute examination of the lifted latent prints, that each of seventeen of them matched the known prints of defendant’s fingers or hands.

The court is not required to place itself in the role of the jury and determine whether the evidence thus presented was sufficient to prove defendant’s guilt to the exclusion of every reasonable hypothesis to the contrary, but we note that the strength of the State’s testimony at the time the State rested is tremendously impressive to us. We do not agree with appellant that there is any reasonable conclusion to be reached from such testimony that defendant was not a participant in the burglary of the mentioned premises and larceny of its contents. A fortiori, such is not the only reasonable conclusion to be reached, and the facts thus shown were sufficient upon which to base a verdict of guilt.

After denial of defendant’s motion to exclude the evidence, defendant took the witness stand. He testified he was in Birmingham during the entire week-end in which the burglary occurred until early Monday morning, when he left in a bus to go to Decatur. He had been working about a month in Birmingham on a work release program as a parolee from Draper Prison, to which he had been sentenced for burglary. He emphatically denied participating in any way in the burglary or larceny for which he was being tried. While in Birmingham, he was living at 1323 Twenty-fifth Street, North, but he said that on Sunday and Sunday night he and another man were resting and staying at the Palm Leaf Hotel. He said the first he knew about the burglary was on Saturday when James Robinson, an ex-convict whom he had known at Draper Prison, came around to the house where he was living and told him that “He had some stuff that he wanted me to keep for him.” He said he did not know what the “stuff” was and had never had possession of any of the things that were stolen. When asked as to how he could explain his fingerprints “over that place, broken glass inside on the floor,” he replied, “The only thing I can say, they ain’t mine. He said that when James Robinson asked him to keep the things, Robinson had two bags with him “setting almost at the steps when he asked me,” but that he never saw what was inside. He said Robinson “told me but I didn’t see them.”

Neither at the time the court overruled defendant’s motion to exclude the evidence nor at the conclusion of all the evidence in the case was there a lack of substantial evidence that strongly pointed to defendant’s guilt of both burglary in the second degree and grand larceny.

As the range of statutory punishment for burglary in the second degree and for grand larceny is the same, and only one punishment within such range was imposed, there is no merit to any complaint that defendant was found guilty of both offenses. Singleton v. State, 48 Ala.App. 157, 262 So.2d 772 (1971); Livingston v. State, 44 Ala.App. 559, 216 So.2d 731 (1968). Even if the evidence does not sustain a verdict of guilty under one of the charges, the verdict and judgment of guilt of the charge which is sustained by the proof stands. Carter v. State, 35 Ala.App. 530, 50 So.2d 4 (1951).

When imposing a single penalty and sentence, the trial court is authorized to refer the conviction under more than one count to any one of the counts. Wiggins v. State, 244 Ala. 246, 12 So.2d 758 (1943).

We find no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

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

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    In the Matter of THE FLORIDA BAR-Petition to Amend the Integration Rule to Provide for a Registration and Re-Registration Fee for Group Legal Services Plans.
    No. 51489.
    Supreme Court of Florida.
    Nov. 17, 1977.
    Rehearing Denied April 5, 1978.
    Russell Troutman, President, The Florida Bar, Winter Park, Leonard H. Gilbert, Member, Bd. of Governors, Tampa, Clinton A. Curtis, Chairman, Group Legal Services Committee, Lake Wales, and Elinor P. Smith, Asst. Staff Counsel, Tallahassee.
    J. Michael Shea of Duran, Shea & Cant-era, Miami, for Legal Representation, Inc., as amicus curiae.
   PER CURIAM.

The Florida Bar has requested that we amend Article XIX of the Integration Rule relating to group legal services, to authorize the imposition of a reasonable application and renewal fee for group legal services plans. The Bar represents that the number of plans submitted for approval in recent years has increased, and that the cost attendant to the approval and renewal of plans is a cost which should be borne by plan members rather than the entire Florida Bar through the dues of its members and its other income sources. The thrust of the Bar’s proposal is that the general membership of the Bar should not bear the costs of monitoring group legal services plans which financially benefit a small number of attorneys in the state and reach only a small segment of the general public.

It is not unusual for The Florida Bar to charge a “user” fee for services to members of the Bar. Florida attorneys wishing to continue their legal education must pay a fee for their admission to programs sponsored by the Bar, and those wishing to identify and advertise areas of the law in which they have substantial experience and education must pay a registration fee under our “designation plan”. It is unusual, however, for the Bar to assess a user fee to persons other than attorneys for a Bar activity or service. In fact, the proposed charges for group legal services plans would be the first such user fees to be borne by lay members of the public for a Bar-sponsored or regulated service.

While it may be true, as the Bar asserts, that direct pecuniary benefits from group representation accrues solely to the few attorneys who represent group members, we are convinced that group legal services plans fulfill an essential role which will benefit, with increasing intensity, both the entire legal profession and, more importantly, an increasing number of citizens who are unable to afford any other form of legal representation. We therefore decline to impose any fee on lay citizens of the state for the governance of activities which this Court has assigned to the Bar.

The petition of The Florida Bar for an amendment to Article XIX of the Integration Rule, seeking to authorize the imposition of reasonable fees for the approval and renewal of group legal services plans, is denied.

ADKINS, BOYD, ENGLAND, SUND-BERG and HATCHETT, JJ., concur.

OVERTON, C. J., and KARL, J., dissent.

      . We have exclusive jurisdiction pursuant to Art. V, § 15, Fla.Const.

      . Although a considerable portion of the work connected with the approval and renewal of group legal services plans is assigned to the Group Legal Services Committee of the Bar on a voluntary basis, the Bar estimates that staff time will cost approximately $15,300 in 1977.

      . Fla.Bar Integr. Rule, art. XXI, § 3, and Fla.Bar Integr. Rule By-Laws, art. XVII, §§ 5 and 9.

      . It is noteworthy in this regard that the very first ethical consideration in our Code of Professional Responsibility recites that “[a] basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence.” Fla.Bar Code Prof.Resp., E.C. 1-1.

      .Subsequent to oral argument in this case, an amicus brief was filed by Legal Representation, Inc., challenging the authority of any state, either directly or indirectly through the Bar, to regulate group legal services plans on the grounds that the regulation of certain types of plans has allegedly been preempted by federal legislation. Amicus suggests that until this issue is resolved, a decision on filing fees by this Court would be premature. Our decision today obviates Legal Representation’s concern.


author: ENGLAND, Justice.

text:
    Gilbert A. TUCKER et ux., Appellants, v. Rudy UNDERDOWN, etc., et al., Appellees. DESERET RANCHES OF FLORIDA, INC., etc., Appellant, v. Rudy UNDERDOWN, etc., et al., Appellees. SUN BANK OF OCALA, etc., Appellant, v. Rudy UNDERDOWN, etc., et al., Appellees. F. E. SULLIVAN, III, et al., Appellants, v. Rudy UNDERDOWN, etc., et al., Appellees. A. DUDA & SONS, INC., etc., Appellant, v. Rudy UNDERDOWN, etc., et al., Appellees. Carolyn R. KEMPFER et al., Appellants, v. Rudy UNDERDOWN, etc., et al., Appellees. Roy PLATT, Appellant, v. Rudy UNDERDOWN, etc., et al., Appellees.
    Nos. 50364-50370.
    Supreme Court of Florida.
    Jan. 26, 1978.
    Rehearing Denied April 5, 1978.

      Edward M. Jackson, Cocoa, and Joseph C. Jacobs, Richard W. Ervin and Robert J. Angerer of Ervin, Varn, Jacobs & Odom, Tallahassee, for appellants.
    Robert L. Nabors of Nabors, Potter, McClelland & Griffith, Titusville, Frank L. Watson of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, and Robert L. Shevin, Atty. Gen. and Larry Levy, Asst. Atty. Gen., Tallahassee, for ap-pellees.
   ENGLAND, Justice.

Once again we are called upon to resolve difficult ad valorem tax problems generated in the course of the search by local governments for new revenue sources under the 1968 Constitution. This case, like others of recent vintage, comes to us by direct appeal from a circuit court’s final judgment passing on the validity of one county’s innovative taxing efforts. Here the Brevard County Circuit Court construed Article VII, Sections 2 and 9 of the Florida Constitution, and held valid Sections 125.-01(l)(q), 125.01(l)(r) and 200.071(3), Florida Statutes (1975), insofar as they authorize county taxation for municipal purposes by the creation of “municipal service taxing units” without voter approval. We have jurisdiction to deal with the issues presented.

Appellants are taxpayers who own real property within the unincorporated areas of Brevard County. The trial court consolidated their seven individual lawsuits contesting ad valorem taxes imposed within six municipal service taxing units created by the Board of County Commissioners for street lighting and for solid waste disposal. Three issues of law are presented.

The first issue raised by appellants is easily resolved. They challenge the constitutionality of legislation (and underlying county ordinances) by which Brevard County created six municipal service taxing units. This very issue was recently considered and resolved adversely to appellants’ position in Gallant v. Stephens, No. 48,604 (Fla., opinion filed Jan. 26, 1978). The consolidated cases now before us differ from Gallant on this issue in only one respect. Gallant involved one municipal service taxing unit for the entire unincorporated area of Pinellas County, while five of the six taxing units created by Brevard County provide municipal services (street lighting) in geographic areas embracing less than the entire unincorporated area of Brevard County. The sixth, a solid waste disposal municipal service taxing unit, does encompass the entire unincorporated area of the county.

The statutes which are challenged expressly contemplate taxing units in only a part of a county’s unincorporated area, and appellants do not suggest that the legislation is unconstitutional simply because it permits the establishment of more than one unit within the county. Independently, we know of no reason why a multiplicity of taxing units within a county would be any less consistent with the Constitution than would one unit for the entire unincorporated area of the county. Accordingly, appellants’ challenge to these statutes and the underlying county ordinances on the basis of alleged conflict with Article VII, Sections 2 and 9 of the Florida Constitution, is rejected on the authority of our decision in Gallant v. Stephens.

Appellants’ second difficulty with Brevard County’s taxing, units is that, allegedly, many of the properties taxed for solid waste disposal and for street lighting are not benefited in a real or substantial way by the services provided. Appellants suggest that for this reason the tax levies should be stricken, or at least that they should be limited to property owners who are benefited. This issue, too, is easily resolved on the basis of precedent. The trial judge determined that the governing constitutional provisions and statutes require no consideration of direct “benefit” as a basis for taxation, and he determined, in conformity with well-established principles of taxation, that no benefit-tax nexus is otherwise required. See Dressel v. Dade County, 219 So.2d 716 (Fla.3d DCA), aff’d, 226 So.2d 402 (Fla.1969). Both of the trial judge’s determinations are eminently correct.

Appellants’ final contention challenges only the 1975 tax levy imposed within Brevard County’s Solid Waste Disposal Municipal Service Taxing Unit. The argument is made that the levy of ad valorem taxes for solid waste disposal purposes violates county bond covenants, of, and the authorizing resolution for, a 1972 bond issue for the same purposes. Appellees assert, and the trial judge found, that the covenants referred to do not bar the use of ad valorem tax revenues to pay bond service costs (principal and interest) or operating expenses, but rather only prohibit bondholders from compelling the county to levy taxes for these purposes. Our reading of the covenants comports with that of the trial judge and appellees. In levying new taxes for solid waste disposal purposes, the county did not breach its agreement with the bondholders or renege on its promise to the county’s taxpayers. See Rianhard v. Port of Palm Beach District, 186 So.2d 503 (Fla.1966), approving under the predecessor to Article VII, Section 12 of the Florida Constitution, a bond issue with covenants almost identical to those in Brevard County’s 1972 bond issue.

Accordingly, Brevard County’s use of a municipal service taxing unit to raise tax revenues devoted to solid waste disposal, and its interrelated but optional reduction of user charges imposed to meet debt service and operating costs under the prior bond issue, constitute a permissible financing scheme to meet solid waste disposal needs.

Having decided all issues adversely to appellants, it becomes unnecessary to decide whether the individual litigants in these proceedings have properly established a class action. The trial court’s final judgment for appellees, therefore, is affirmed.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and KARL, JJ., concur.

      . Gallant v. Stephens, No. 48,604 (Fla., opin. filed January 26, 1978); Alsdorf v. Broward County, 333 So.2d 457 (Fla.1976).

      . Art. V, § 3(b)(1), Fla.Const. We are aided in our deliberations by Circuit Judge Waddell’s final judgment, which is not only carefully drawn and clearly worded, but which has meticulously analyzed all of the critical legal issues here presented.

      . Brevard County Ordinance Nos. 75-12 and 75-14.

      . The parties in this proceeding filed briefs in Gallant addressing this constitutional issue, as friends of the court. See note 3 of our opinion in that case.

      . In the aggregate the five street lighting units encompass the entire unincorporated area of the county, but each of the five units has a different millage rate.

      . § 125.01(l)(q), Fla.Stat. (1975), authorizes a county to establish
      “municipal service taxing or benefit units for any part or all of the unincorporated area of the county”.
      § 200.071(3), Fla.Stat. (1975), authorizes a tax levy
      “[i]n any county which, through a special taxing district or a municipal service taxing unit covering a specific area of the county not within the boundaries of any municipality, provides services . . . .”

      . Appellants reason that benefits must flow to the subjects of the tax levy by analogy and dicta from four municipal boundary decisions, and by implication from Alsdorf v. Broward County, 333 So.2d 457 (Fla.1976). Alsdorf, of course, was predicated on the only provision in Florida’s Constitution which expressly ties taxation to benefits received. Art. VIII, § 1(h), Fla.Const. Neither line of authority is persuasive for the proposition asserted.

      . We do not address appellants’ assertion that the record does not support a factual finding of benefit to certain taxpayers in the several municipal service taxing units. A finding one way or the other on this point is simply irrelevant to the proceeding.

      . The 1972 bonds were validated in County of Brevard v. State, No. 72-2366-A, Brevard County Circuit Court, final judgment entered Sept. 26, 1972. The trial court’s final judgment determined that no referendum was required because the issue pledged no ad valorem tax revenues and, consequently, was not a “bond” issue within the meaning of Art. VII, § 12 of the Florida Constitution. A Certificate of No-Appeal was filed by the Clerk of the Brevard County Circuit Court on Nov. 7, 1972.

      . “Section 12 . . . . This bond does not constitute an indebtedness of the County within the meaning of any constitutional or statutory provision or limitation, and it is expressly agreed by the holder of this bond and the coupons appertaining thereto that such holder shall never have the right to require or compel the exercise of the ad valorem taxing power of the County for the payment of the principal of and interest on this bond or the making of any sinking fund, reserve or other payments provided for in the resolution.”
      “Section 13 . . . . No holder or holders of any obligations issued hereunder or of any coupons appertaining thereto shall ever have the right to compel the exercise of ad valorem taxing power of the issuer or taxation in any form of any real property therein to pay such obligations or the interest thereon or be entitled to payment of such principal and interest from any other funds of the issuer except from the special funds in the manner provided herein.”

      . Appellants suggest that in Webster v. North Orange Memorial Hosp. Tax Dist., 187 So.2d 37. (Fla.1966), and Wolfe v. City of Fort Lauderdale, 47 So.2d 781 (Fla.1950), this Court held open the prospect that an exercise of ad valo-rem taxing power would be enjoined under circumstances such as these. We do not read into these cases anything more than a decision not to pass on matters not ripe for consideration. Nothing in Brevard County’s 1972 bond issue prohibits the county or any county-created taxing authority from exercising its plenary power to tax.