author: HARRIS, Judge.

text:
    Jerry Wayne FISH v. STATE.
    8 Div. 468.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Joe Gilliland, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the state.
   HARRIS, Judge.

Appellant was put to trial upon a two-count indictment charging, (1) murder in the first degree, and (2) robbery. Prior to arraignment he was found to be indigent and counsel was appointed to represent him. He pleaded not guilty. The jury returned a verdict finding him guilty of murder in the first degree and fixed his punishment at life imprisonment in the penitentiary. The jury also found him guilty of robbery and fixed his punishment in the penitentiary for a term of ten years. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

This was a cold-blooded murder perpetrated in the robbery of a service station attendant on Sunday night, May 27, 1973, near Russellville, in Franklin County, Alabama. The attendant, J. W. Brown, was shot twice with a .22 caliber rifle and was found dead inside the station the next morning about 6:30 by Mr. Earl Mc-Cluskey, the manager of the Red Ace Petroleum Company. An inventory was made and it revealed that $189.59 was missing consisting on $119.54 in checks, $10.30 in credit cards and $59.75 in cash.

Mr. Joe Newton, the Coroner of Franklin County, was called to the scene of the homicide and found the deceased lying on the floor behind the counter and pronounced him dead. The body was removed to the Spry Funeral Home and an autopsy was performed by Mr. Van Pruitt, Assistant State Toxicologist in charge of the Huntsville Division. The clothing of the deceased was removed from the body by the coroner before the autopsy and turned over to the Sheriff of Franklin County.

Mr. Van Pruitt described the autopsy as follows:

“A Wound number 1 was in the left upper abdomen this being the area of the abdomen a measured distance of one and three-quarters inches to the left of the .midline and six inches below the horizontal line which would be the approximate location indicated by the tip of my finger. The other was in the right back and was located three and one-half inches to the right of the midline of the body and one and one-half inches below the horizontal of the axle which would be the approximate area of the tip of my finger.
“Q Let’s refer to the abdomen. Was that an entrance or exit one ?
“A Entrance.
“Q Did you probe that wound ?
“A I didn’t probe it no sir.
“Q The wound in the back was that an entrance or exit wound ?
“A It was an entrance wound.
“Q Did you follow the path of that wound or the bullet that made that wound ?
“A I followed the path yes sir.
“Q Were any bullets removed from this body at the time you performed your autopsy ?
“A Yes sir.
“Q How many and just describe what you removed from the body please?
“A I removed a single projectile which was in the right plural cavity. The path of the projectile was traced from the wound in the left abdomen which ranged in respect to the body from left to the right slightly upward past across the border of the liver, a major vessel of the liver, the lung, and it struck the sixth in-terspace which would be the space between ribs six and seven in the right plural cavity in the back.
“Q The path of the bullet you have just traced was that the wound on the front or back of the body ?
“A The one in the left abdomen anter-iolly, front.
“Q You say you recovered a projectile that would be the same as a bullet or slug or something like that ?
“A A slug, a bullet.
“Q Were you able to determine what caliber that bullet was ?
“A It appeared to be a 22 caliber. I did not mike it or examine it in detail at that time.
“Q What was the size of the hole there in the left abdomen. Did you measure it?
“A It measured one-quarter of an inch in diameter which a prorifiral abrasion color.
“Q What do you mean by that ?
“A An abrasion is a skinned place and when a small skin area or denuted area surrounds the prorifory of the wound this indicates it being a wound of entry and the cause of the abrasion is the spinning of the projectile as it penetrates the flesh.
“Q The bullet going in as it spins around will cause the tissue to break or split ?
“A Its not split its a skinned place actually something like if you fell and skinned your knee but it circles the wound.
“A On the back — well first of all did you measure the diameter of the wound in the back ?
“A Yes sir.
“Q What was that measurement please sir?
“A One-half inch in its breadth.
“Q Could you tell the jury then the path of that bullet ?
“A From the point of the back the projectile ranged through the tenth inter-space which would be the muscle between the ribs numbered ten and eleven and in respect to the body it ranged upward through the musculature and into the upper medius-stynal area which is the mid portion about the base of the neck and at that point its path transversed the subclavian artery, it severed it, which is the artery located in the base area of the neck and then into the back portion of the larynx or the voice box or what is commonly called I think the adams apple in everyday language and from that point its path was traced into the upper portion of the larynx and the pharnyx which is the back of the mouth and at that point the path was lost. There was no other disruption of tissue in the area so that the head was X-rayed by me at that time and no projectile was found in the head area. The neck was X-rayed again' in detail and there was no lead or solid material found in that area. Each of the organs which I had recovered from the body was X-rayed and no solid mass was obtained in that portion so I concluded based upon this and no other path that the projectile exited the mouth.
“Q What if anything did you do with the bullet that was recovered from the entrance wound in the abdomen?
“A It was secured by me and returned by me to the laboratory, my laboratory in Huntsville and I then turned the slug or projectile over to an employee, Mr. Brant Wheeler, a criminolist in my office for examination and comparison.
“Q Mr. Pruitt, based on your background and your training and your experience, do you have a judgment as to the cause of death of this victim.
“A Yes sir.
“Q What is that judgment please sir?
“A Multiple gunshot wounds as I have described which resulted in injury to various organs and hemorrage into the cavities.
“Q Do you have a judgment as to what kind of gunshot wound it was ?
“A The projectile as I have described which was recovered from the chest cavity was of the approximate 22 caliber. The projectile in the back at its point of entry effected a somewhat larger opening than would be normally encountered by a 22 caliber however, due to the irregularity of the wound and the absence of clearly defined abrasions and irregularity of the wound it would seem that the projectile may have made impact with some other object prior to the time it made impact with the body and for these reasons I am not able to positively ascertain the caliber of that projectile.
“Q You said it was a 22 caliber projectile that caused the wound in the abdomen, was this a rifle or a revolver type of weapon?
“A It could be either.”

Mr. McCluskey further testified that there was a bullet hole in one of the windows tc the station and on the desk he found a written shift report and a pad with the license number and description of an automobile all in the handwriting of the deceased.

Photographs were made of the scene showing the exterior of the station and there were photographs of the interior of the station showing the body of J. W. Brown, the shift sheet and the pad on which the deceased had written the tag number and description of an automobile. On the pad was the notation, “62 White Buick 4 door-20-10683.”

Mr. Gale Cummins and his wife Betty drove a flatbed truck to the Red Ace Service Station where the homicide occurred to get gas. When they arrived, they saw an old White model automobile parked a short distance from the gas pumps. The rear of this car was to the front door of the service station. This car had the hood up and they saw two young white men around the car and one of them was putting water in the old White model car. The time was between 10:30 and 11:00 o’clock on Sunday night, May 27, 1973. The outside of the station was well lighted. They both got a good look at these two men and described one of them as having a short haircut and the other one as being rough looking and had bushy hair that had been wet down. This was a self service station but the attendant came to the gas pumps to assist Mr. Cummins put gas in the saddle tanks to his truck. After the tanks were filled, Mr. Cummins went inside the station to get a cash receipt so that he could get reimbursed from his employer. While the attendant was writing out the receipt, he asked Mr. Cummins if he knew the two young white men outside saying they had been acting strange. Mr. Cummins told the attendant he was from Marion, Kentucky and did not know the men and suggested he get the tag number of their car. Mr. Cummins called off the tag number and Mr. Brown wrote it down on the pad that was found on the desk the next morning.

Both Mr. and Mrs. Cummins made a positive in-court identification of appellant as being one of the men they saw at the service station that night. Both testified they based their identification on seeing the men that night in a well lighted area and not on any photographs they were previously shown by any officials. While they were on the witness stand, the District Attorney called appellant’s co-indictee to the door of the court room and both identified him as the other man they saw at the service station on Sunday night, May 27, 1973. The co-indictee was subsequently identified as Ronald Steve Heupel.

Mr. Heupel turned state’s evidence and testified that he had known appellant four or five years. He stated that the 1962 Buick automobile which was observed at the Red Ace Service Station on the night of the homicide was his automobile. Before permitting him to testify the court warned him of his constitutional rights in the presence of his attorney and he told the court that he had discussed the matter with his attorney and his rights had been fully explained to him and he wanted to testify. He further told the court that he had not discussed being a witness with the District Attorney or any official connected with the case and had not been promised anything in exchange for his testimony.

According to Heupel’s testimony he lived alone at Herne’s Trailer Park in Florence, Alabama. That he met appellant on the afternoon of May 27, 1973, at Junior Johnson’s house in Florence. At the Johnson house were Mr. and Mrs. Johnson, Pat Priest and a young man by the name of Junior Earl James. That he, appellant and James left the Johnson’s house to go to Russellville. His car was running hot and he drove to the Red Ace Service Station to get water for the car. That he and appellant got out of his car to get the water and James stayed in the car. While they were at the station a red truck drove in to get gas in the saddle tanks. That they left the station and went to a drive-in. They saw a white car there and were afraid the watchman might shoot them so they left. Appellant said he planned to kill the service station attendant and said let’s go back to the station. He drove near the station and appellant opened the glove compartment and pulled something that opened the trunk of the car. . He thought appellant was going to get a lug wrench but he came out with a .22 caliber bolt-action rifle and told the witness to come back for him in ten to fifteen minutes. When he returned, he found appellant on the side of the road waiting for him. He had the .22 rifle in his hand and a bank bag. When appellant got in the car, he said, “I had to kill the_” Appellant tried to put the rifle under the seat and Heupel told him to get rid of it. He told appellant he could ride but the gun wasn’t going to stay in the car. Appellant took the bolt out of the rifle while they were going toward Sheffield and threw it out on the right side of the highway and then he threw the rifle out on the same side of the highway.

Heupel further testified that on the way back to Florence appellant unzipped the bank sack and pulled out some rolls of money and some dimes and quarters. There were some checks in the bank bag and appellant threw them out of the car. Appellant then started dividing the money. He gave Heupel and James ten dollars each and kept the rest of the money.

Later appellant told Heupel he shot the deceased twice to be sure he was dead and would not be able to recognize him. They got back to the Johnson house between 12:00 and 1:00 o’clock and James got in his car and left.

Pat Priest testified that she knew both appellant and Heupel and that they left the Johnson house some time on the afternoon of May 27, 1973, and did not return until some time after midnight. That the next day they were standing around drinking beer and that appellant started talking about killing a man at the Red Ace Service Station in Russellville. She said one of the men gave her $3.00 in dimes. That appellant said he shot the man twice because he didn’t want to see him suffer, but later said he shot him twice because the man saw him and thought he could identify him.

A number of spent cartridges were found inside and outside the service station. They were turned over to the Toxicologist. A few days after the murder the .22 rifle was found in the grass about three feet from the paved portion of the highway but the bolt was not found.

Mr. Brent Wheeler, a criminologist with the Department of Toxicology at Huntsville, testified to his education and qualifications. He stated that on May 30, 1973, he received from Mr. Pruitt a spent .22 caliber slug identified by him as having been removed from the body of J. W. Brown.

This witness further testified:

“A June 1st 1973 at 11:50 a. m. I received — I am referring to my notes here — I received from Investigator Haney two 22 caliber spent cartridge cases identified by Investigator Haney as having been removed at the scene. Also I received from Mr. Haney one 22 caliber spent projectile identified as coming from the scene and on June 13 which is some two weeks later of the same year I received from Investigator Haney one Winchester 22 caliber bolt action type rifle model 69.”

He further testified that he did not test fire the rifle for comparison with the slug and spent cartridges as the barrel of the rifle was bent and the bolt was missing. That he did examine the barrel of the rifle with the spent slug and spent cartridges and they had the same lands and grooves.

J. C. Hurston testified for the state. According to his testimony he was in the same cell with appellant in the Lauderdale County Jail. That the Funari brothers were also in the same cell and in the bullpen. He testified that he heard appellant telling the Funari brothers that he shot the attendant at the Red Ace Service Station. That he shot him in the back through a window and then went in and held the gun over his stomach and shot the old _ through the stomach. He quoted appellant as saying, “blood was running out of the _’s mouth and nose like a sprouting spring.” He stated that appellant said he shot him with a .22 rifle and that it was his rifle. He further testified that no one connected with the District Attorney’s office nor any law enforcement officials had asked him to seek any information from appellant.

Appellant did not testify but offered the testimony of the Funari brothers who testified that appellant made no such statements as testified to by J. C. Hurston.

In rebuttal the state called Mr. James Triplett who testified that he was an investigator for the District Attorney’s office in Lauderdale County. Mr. Triplett stated that he knew both of the Funari brothers. He testified that he knew their general reputation in the community in which they lived and it was bad. He further testified that he knew their reputation in the community in which they lived for truthfulness and veracity and that reputation was also bad.

There was no motion to exclude the state’s evidence; there was no motion for a new trial; there was no request for the affirmative charge; there were no exceptions reserved to the oral charge to the jury, and there was no error in the court’s rulings on the admission of evidence. In this state of the record nothing is presented to this court for review. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Grant v. State, 46 Ala.App. 232, 239 So.2d 903; Robinson v. State, 46 Ala.App. 684, 248 So.2d 583.

Appellant got a fair and impartial trial and he was entitled to nothing more. The trial judge was more generous in his charge to the jury than the evidence in this case warranted. He charged the jury on the four degrees of homicide and this was wholly unnecessary under the facts in this heinous and cold-blooded murder.

The case is due to be affirmed and it is so ordered.

Affirmed.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    John Ellington SIMMS v. STATE.
    4 Div. 313.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.

      J. Huntley Johnson, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to twenty years in the penitentiary. At arraignment, attended by counsel, he pleaded not guilty. After conviction he was found to be indigent and a free transcript was furnished him, and trial counsel represents him on this appeal by appointment of the court.

The victim of this alleged robbery was Mr. Lon Wright who lived three miles east of Cottonwood, Houston County, Alabama, on Highway S3, leading from Dothan to Malone and Marianna, Florida. On the day of the robbery the victim was a seventy-five year old retired man and lived with his brother in a five room house.

On April 30, 1974, two white men came to Mr. Wright’s home around 8:00 o’clock a. m. He was alone at the time. His brother had gone to have some work done on his car. The men were subsequently identified as appellant and one Ollie Ma-guire. They asked Mr. Wright if he had any moonshine whiskey and he told them he didn’t mess with it. The men left and returned in about thirty minutes. They walked in the house and found Mr. Wright in the kitchen. Maguire pulled a pistol on him and said, “Let’s go,” and they carried Mr. Wright into his brother’s room. Ma-guire held the pistol on Mr. Wright and told him to put both of his hands on top of his head and told appellant to search him. They took his billfold out of his pocket and spread the money out on the bed and according to Mr. Wright there was between $143.00 and $150.00. They took the money and the billfold. Maguire then snatched the phone out and carried Mr. Wright into the living room. They made him lie on the floor with his arms behind him and Maguire told appellant to tape his arms and legs. Appellant went to the car and returned with some tape and taped Mr. Wright’s hands and legs while Maguire held the pistol on him. After he was securely bound, Maguire told him if he called the law, he was going to come back and kill him. They walked out of the house and Mr. Wright heard the car leaving.

After the robbers left, Mr. Wright got off the floor and went out front to try and stop someone to call the officers and tell them he had been robbed. He stopped a man from Malone, Florida, who reported the robbery to Officer Don Smith who in turn called the Sheriff’s Department. Officer Don Smith and Deputy Sheriff Hunter came to Mr. Wright’s home to investigate the robbery.

Mr. Wright gave the Deputy a description of the men who robbed him and he knew one of the men as he had been to his house before. He could not recall his first name but his last name was Simms. He said Simms had long hair way down to his shoulders and had a mustache. He was not certain as to the car they were driving but thought it was a Pontiac and was black. He made a positive in-court identification of appellant as one of the men who robbed him on the morning of April 30, 1974. He further testified that both appellant and his wife had been to his house prior to the date of the robbery.

On cross-examination he admitted that on June 3, 1968, he was convicted for violating the prohibition law but that he quit bootlegging after that conviction. He further stated that his brother was the bootlegger.

From the record:

“Q Mr. Wright, let me ask you something now. Is there any mistake in your mind that the man that came there and robbed you is this young man ?
A That’s him right there.
Q There’s no doubt whatsoever ?
A No, sir, no doubt.
Q You have seen him how many times before?
A I had never counted them.
Q Would you say you seen him more than one time?
A Well, it had to be.
Q Are you sure about it ?
A I know him.
Q But you didn’t know his name until somebody told you, is that right ?
A I didn’t know his first name, but I knowed his last name.”

Mr. Donnie Smith, Chief of Police of Cottonwood, testified for the state. He stated that he. was on duty on April 30, 1974, when a Mr. Everrett Pelham of Malone, Florida, contacted him and reported that Mr. Lon Wright had been robbed. He followed Mr. Pelham back to Mr. Wright’s house and found him sitting on his front porch with his hands bandaged up and he told the Chief he had been robbed.

The Chief further testified that Mr. Wright called him later and told him that he knew one of the men who had robbed him and that he was “Tink” Jacob’s son-in-law. The Chief knew Jacob’s son-in-law to be John Simms and he had known him a year or two. He stated that about a month before April 30, 1974, he saw him at a family reunion dinner given by Simms’ sister-in-law and on that occasion he had long hair and wore a mustache. The hair was shoulder length. He made an in-court identification of appellant as John Simms.

Deputy Sheriff Buddy Hunter testified that he worked as an investigator for the Sheriff of Houston County. He stated he investigated the robbery of Mr. Wright and got a description of the two men involved. Mr. Wright told him one of the men was about six feet tall, weighed about 170-180 pounds, had shoulder-length dark hair and a mustache. That he was wearing blue clothes, with writing on the left shirt pocket. That Mr. Wright told him the other robber was about five-six or five-eight inches tall, and weighed about 140 to ISO pounds, and that he had blond hair and it was a regular hair cut. That he was wearing gray pants with a white shirt with brown stripes in it.

Mr. Hunter further testified that the next time he saw John Simms was on May 6, 1974, in the Marianna County Jail. Simms waived extradition and was brought to the Houston County Jail where the jailer took his picture. Mr. Hunter identified this photograph as a picture of John Ellington Simms and it was received in evidence without objection.

On cross-examination Mr. Hunter stated that appellant told him he came to Dothan on the morning of April 30, 1974, in an automobile with Ollie Maguire to see if they could find jobs. He claimed they went to a number of places seeking jobs, viz., Atlas Truck Line; Sunnyland Packing Company ; Allied Truck Lines; Metcalf and Shivers; Swift and Company; R. C. Cola Bottling Company; and Couch Construction Company. He stated he checked out these places to see if Simms or Maguire had been there and was told they did not remember.

On re-direct examination Mr. Hunter stated he gave Simms his Constitutional rights before asking him any questions by reading him his rights from a Miranda card. Simms told Mr. Hunter that he had been working with law enforcement and he understood his rights.

From the record:

“A Then I read them to him: ‘You have the right to remain silent; anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statement. Do you understand each of these rights I have explained to you?’ He answered, ‘Yes.’ ‘Having these rights in mind, do you wish to talk to us now?’ His answer was ‘Yes.’
Q All right, did he sign anything at that time?
A Yes, sir. I read the waiver to him: T have read or had read to me this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time; I understand and know what I am doing. No promise, or threats have been made to me and no pressure of any kind has been used against me to get me to make a statement.’ This he signed.
Q At that time, did you offer him any reward to get him to make a statement?
A No, sir.
Q Did you promise him anything?
A No, sir.
Q Did you offer him any other inducement to get him to make a statement?
A No, sir.
Q Did he make a voluntary statement at that time?
A Yes, sir.
Q Do you have the statement there ?
A Yes, sir.
Q Did you reduce the statement to writing ?
A Yes, sir, I did.
Q Did he sign it?
A Yes, sir.
Q Is the one typed been compared by you and is a true and correct copy of the one he signed?
A Yes, sir.
MR. MARTIN: I offer State’s Exhibit Two, consisting of two pages, in evidence.
THE COURT: Do you have any objection to the statement being admitted ?
MR. JOHNSON: No, sir.”

When Mr. Hunter first interviewed appellant, he denied that he was involved in the robbery of Mr. Wright and he offered to take a lie detector test. This was on May 9, 1974, but the operator of the Polygraph machine could not be located that day. He located the operator the next day or the day after and Simms told him that his attorney advised him not to take the lie detector test.

Appellant offered the testimony of Johnny McDaniel, a Captain with the Jackson County Sheriff’s Department from Mar-ianna, Florida. He stated that he had known Simms all of his life and he worked for him as an undercover agent in making drug buys. He said that in working narcotics and working the streets, such as Simms was doing, he has to wear his hair long, in the fashion of a hippie-type individual, and hang out at places where drug users would go. He further stated that Simms worked in this capacity from February 27th until April 20th of 1974, and his job was terminated on April 20, 1974, because he went to a local tavern and got drunk and there was a disturbance.

Appellant testified in his behalf and denied any connection with the robbery of Mr. Wright. He admitted coming to Dothan on the morning of April 30, 1974, with Ollie Maguire in search of employment. He said he went to the places mentioned above but they were not hiring people at the time; that he got back home about eleven-thirty, ate lunch and went fishing with members of his family and fished the rest of the day. He admitted he knew where Mr. Wright lived and passed by his home on the way to Dothan on April 30, 1974.

On cross-examination he testified that he weighed 183 pounds and was six feet one inch tall. He said Maguire was over five feet tall, but under six feet and was shorter than he. He could not remember how Maguire was dressed that day. He was asked about the trouble he got involved in at the tavern and said, “A lady approached me as a prostitute and asked me did I want to go to a party that night.” He went to this woman’s house and got into an argument with someone there and the woman called the officers. That he was arrested but the case was later nolle prossed.

On re-direct examination he testified that prior to April 30, 1974, he and the girl he was dating went to Mr. Wright’s house to buy a bottle of whiskey but he didn’t actually meet Mr. Wright at that time. The girl, whom he later married, bought the whiskey.

Appellant offered two witnesses who testified they knew his reputation in the community for truth and veracity and that it was good.

There was no motion to exclude the state’s evidence; there was no request for the affirmative charge, and no exceptions were reserved to the court’s oral charge to the jury.

There was a motion for a new trial and a hearing was held on October 7, 1974, before the trial judge. Much testimony was adduced at this hearing. The main thrust of the testimony was that before the jury was struck, the wife of appellant claimed to have seen the prosecuting witness talking to a member of the jury panel. She did not hear any of the conversation and was unable to identify the juror. Mrs. Simms testified she told her husband’s attorney what she had seen and he asked her to try and locate the juror. She looked in the court room but was unable to identify him. She claimed she saw the juror on the trial jury during the closing arguments of the lawyers. It was never brought to the court’s attention that a juror was seen talking to the prosecuting witness. At the conclusion of the hearing the trial court overruled and denied the motion for a new trial.

We think it not amiss to set forth the judgment on the motion for a new trial.

“JUDGMENT ON MOTION FOR NEW TRIAL
Defendant moved this Court for a New Trial of his case and in support thereof offered orally before the Court on October 7, 1974, the testimony of three witnesses, one being the sister-in-law, who is a convicted felon presently on probation in this Court. The deposition of a fourth; being a Mr. John Pelham, was offered by the Defendant. The witnesses, Mrs. McGuire (wife of co-defendant) and Mr. Pelham were known to the Defendant prior to his trial. Their names were mentioned throughout the trial of the case by various witnesses. These witnesses did not testify to anything at the motion for a new trial which was unknown to the Defendant at the time of his trial, and in the opinion of this Court, their testimony would not add anything to the testimony given by Defendant’s witnesses who testified during the course of the trial. Further, from aught that appears to this Court these two witnesses .could have been present at the trial if the Defendant and his attorney had made a diligent effort to have them there.
The wife of the Defendant, Mrs. John Simms, on the motion for a new trial, testified that prior to the time that the jury was qualified and selected in her husband’s case that she saw a member of the jury venire talking to the victim and prosecuting witness in this case, Mr. Lon Wright, on another floor of the Court House. She testified that she made this known to the Defendant’s Attorney prior to the qualification and striking of the jury in this case and that the Defendant’s attorney asked her to come into the court room and point this juror out to him while the jurors were being qualified. The jurors were brought in panels of 15-18 before the bench and questioned carefully about any knowledge they might have about the case; any interest by blood or marriage to the victim; any opinion they might have as to the guilt or innocence of the defendant; any promise that they might have made to convict or acquit Defendant; as well as other qualifying questions. Mrs. Simms testified that at no time while the jurors were being qualified or the jury stricken was she able to recognize or identify the juror she said she saw talking to the prosecuting witness earlier in the morning on another floor of the courthouse. Mrs. Simms testified that after the jury came back with a verdict of guilty against her husband that she realized that the juror she had seen talking to the prosecuting witness was on her husband’s case. Mrs. Simms did not hear anything that was said between the juror and the prosecuting witness. There is no evidence that the juror, who Mrs. Simms testified she saw talking to the prosecuting witness, discussed the case at all with the prosecuting juror and the prosecuting witness took place prior to the qualifying and selection of the body and instructed repeatedly not to discuss the case among themselves until it was submitted to them for a verdict; not to discuss the case with anyone else and to report to the Court immediately if anyone approached either of them and attempted to discuss the case with them. There is no evidence that any juror talked to the prosecuting witness at any time after the jury was selected.
The witness, Hettie Mae Carraway, the sister-in-law of the Defendant, who is a convicted felon and is presently on probation in this Court, testified on motion for new trial that she talked to a juror, Mr. William Madison, who was a member of the jury which convicted the Defendant, several days after the trial. Mrs. Carraway testified that Mr. Madison made the statement to her that ‘the Defendant could be identified by a mole on his face’. Defendant points out that there was no testimony to this effect elicited during the course of the trial. Mrs. Carraway did not testify whether or not Mr. Madison told her that he or any other juror considered this in arriving at the verdict in this case. She did not testify, if she even knew, when Mr. Madison acquired this information. From aught that appears to this Court Mr. Madison could have acquired such information after the jury returned its verdict and was discharged in this case. The Court feels that Mrs. Carraway’s credibility, at best, is questionable and that her sketchy testimony should not serve to impeach the verdict in this case. For the reasons appearing heretofore in this judgment, the Court is of the opinion that the Defendant’s motion for a new trial should be, and the same is hereby, denied. The Clerk is directed to notify the attorney for Defendant and the District Attorney of the Twentieth Judicial Circuit of Alabama of this order.
This the ISth day of October, 1974.
/S/ Jerry M. White
Judge, Twentieth Judicial Circuit of Alabama”

In reviewing the refusal of a motion for a new trial this court will indulge every presumption in favor of the correctness of the rulings of the trial judge and the decision thereon rests largely within the sound discretion of the trial court. Heath v. State, 30 Ala.App. 416, 7 So.2d 579; Espey v. State, 270 Ala. 669, 120 So.2d 904; Page v. State, 41 Ala.App. 153, 130 So.2d 220; Moore v. State, 52 Ala.App. 179, 290 So.2d 246.

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

Alibi evidence is an issue to be determined by the jury. Price v. State, 53 Ala.App. 465, 301 So.2d 230.

Where there is legal evidence from which the jury can by fair inference find the . defendant guilty, this court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value is for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Price v. State, supra.

In Willcutt v. State, 284 Ala. 547, 226 So.2d 328, the Supreme Court said:

“The scintilla rule does not apply in criminal cases. There must be substantial evidence tending to prove all the elements of the charge. Ex parte Grimmett, 228 Ala. 1, 152 So. 263. The burden is on the State to prove beyond a reasonable doubt that the crime has been committed and that the defendant was the person who committed it. Jarrell v. State, 251 Ala. 50, 36 So.2d 336. The weight of the evidence, the credibility of the witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury alone. Byrd v. State, 213 Ala. 333, 104 So. 830.
We cannot say in the instant case that there was not enough evidence to allow the jury to draw the inference that the defendant was the person who committed this robbery. The defendant presented a strong case in support of his alibi. The testimony of his witnesses was in direct conflict with the testimony of the State’s witness. Yet the State’s witness made a positive identification of defendant as the person who robbed and burned him. The State presented substantial evidence and the jury had before it an adequate basis for drawing inferences and conclusions against the defendant. It is for the jury, not the trial court or this court, to find the facts and to determine guilt or innocence. The State presented sufficient evidence upon which the jury could base its verdict.”

The prosecuting witness was impeached by court records showing he had been convicted of more crimes than violating the prohibition law. This involved his credibility as a witness but it was the duty of the court to leave the question of his credibility to the jury. Brown v. State, 20 Ala.App. 178, 101 So. 224; Gladden v. State, 23 Ala.App. 416, 125 So. 398; York v. State, 21 Ala.App. 155, 106 So. 797.

We find no reversible error in the record and the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


text:
    Willie James DUKE v. STATE.
    6 Div. 770.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Edward S. Zanaty, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the offense denounced by Section 374(20), Title 14, Code of Alabama 1940, which makes it a felony to commit an assault with a deadly instrument upon a peace officer or other law enforcement officer of this state engaged in the active discharge of his lawful duty or duties.

At arraignment, with counsel present, he pleaded not guilty. The jury returned a verdict of guilty as charged in the indictment, and the court sentenced him to a term of ten years in the penitentiary. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

Omitting the formal parts, the indictment reads as follows:

“The grand jury of- said county charge that, before the finding of this indictment, WILLIE JAMES DUKE alias ALBERT THOMAS whose name is otherwise unknown to the grand jury, did, with a deadly instrument, to-wit: a pistol, feloniously assault James Alfred Hyde, a law enforcement officer, to-wit, a police officer for the City of Birmingham, Jefferson County, Alabama, while the said James Alfred Hyde was engaged in the active discharge of his lawful duty or duties as such police officer for Birmingham, Jefferson County, Alabama, against the peace and dignity of the State of Alabama.”

Mrs. Maggie Henderson testified that on May 18, 1973, she, her husband, their six children and her mother lived at 1609 B Eighth Avenue North, Birmingham, Alabama. That between 6:00 and 6:30 p. m., it was good daylight and a hot afternoon. She went out on her front porch to get some fresh air. There was a rooming or boarding house next door at 1605 Eighth Avenue North. She looked next door and saw three women and appellant on the porch. She heard the three women arguing and she saw appellant pull a pistol out of his pocket and fire it one time. She could not tell in what direction the pistol was pointed. The women kept arguing and she saw appellant pull the pistol and fire it the second time. Two of her children were riding bicycles in the street during this shooting and they ran in her house. She went inside her house and called the police and reported what she had observed. She stayed inside her screen door, until, two po'licemen came. She identified Officer James A. Hyde as one of the officers who came to her house and asked her where all the shooting had occurred, and she told them next door at 1605 Eighth Avenue North and the officers went, to that address. She further testified that about ten minutes later she heard another pistol shot at the house next door and saw the officers come out with appellant handcuffed and put him in the police car. In court she pointed to appellant as the man doing the shooting on the porch next door while the women were arguing.

Isaiah Howard testified that he lived at 1608 16th Street North in Birmingham. According to this witness he had a back room in the rooming house where Catherine Westbrook lived with her husband. He stated that he knew appellant and on May 18, 1973, he saw him in Catherine West-brook’s room. He further testified that about thirty minutes before he saw appellant, he heard two gunshots; that appellant stood in the door of the Westbrook room with a pistol in his hand. He stated that Mrs. Westbrook told appellant to come in and put the gun down but he just stood there holding the pistol in his hand. He was shown State’s Exhibit 1 and said that was the same pistol that appellant had on the occasion. He said that when an officer came in, the officer said, “Police,” and he saw appellant point the pistol toward the officer and fire one time. He further testified that after appellant fired the pistol at the officer, he threw the pistol behind a chair; that appellant was placed under arrest and the officers found the pistol where appellant had thrown it.

Mr. James A. Hyde testified that he was a police officer with the Birmingham Police Department and had been so employed for fourteen years. He stated that he and his partner answered the call to investigate the shooting incident at 1605 Eighth Avenue North; that he entered the front door and walked down the hallway to a room where he heard loud talking. That he took his flashlight and pistol out and stepped to the door of the first room to his left and said, “This is the police.” He was standing squarely in the door but was not in the room. After saying, “This is the police,” he heard a shot and saw a flash of light coming from the hands of appellant. He further testified that the slug from the pistol struck the jam of the door just inside the door frame. He stated that appellant was standing five to six feet from him when he fired the pistol and the bullet came within three to four inches of his body when it went into the door frame. He said he immediately arrested appellant and put handcuffs on him and then and there read him the Miranda rights and warnings. Appellant was then placed in the police car.

He further testified that his partner, Officer Miller, who was an evidence technician, recovered the pistol in his presence. It was a .25 caliber pistol and was behind the chair that Isaiah Howard was sitting in when appellant fired the shot. He stated that there was one unfired cartridge in the clip and one spent shell in the chamber. Officer Hyde identified the pistol and it was received in evidence over appellant’s objection that the recovery of the weapon was the result of an illegal search and seizure. The court overruled the objection on the ground that the search was incident to a lawful arrest.

Officer Hyde further stated that he was present when Officer Miller dug the slug out of the door frame but the bullet was so damaged that a ballistics test could not be run on it to determine that it came from the pistol that was admitted in evidence.

Photographs were made of the scene of the shooting. The proper predicate was laid and the photographs were admitted in evidence without objections.

The state then rested and appellant made a motion to exclude the state’s evidence on the ground the state had failed to make out a case. The motion was overruled.

Three witnesses, including appellant, testified for the defense. The other two witnesses were Catherine Westbrook and Titus Echols. These last two witnesses testified they heard some shooting but never saw appellant with a gun in his hand.

Mrs. Westbrook testified on cross-examination that she gave a statement to the police after the shooting incident. She stated that she could not remember telling the police that the appellant was the one that shot the pistol nor that she saw a gun in appellant’s hand and told him to put the gun down.

Appellant testified and denied shooting a pistol at the police officer. He said he went to this house on the occasion in question because he had a gun in pawn to Willie Williams for $20.00. He admitted that the pistol in evidence was the one he pawned to Willie Williams and that Willie Williams had the gun in his possession while they were in the Westbrook room. That he had been there about five 'minutes when there was a knock on the door and he asked who it was and they said, “Police.” That Mrs. Westbrook asked him to open the door and when he did, a whole bunch of policemen came in and they asked him who was shooting on the porch and he said he did not know. That they arrested him for being drunk and put him in the police car. After a few minutes they got him out of the car and carried him back in the house and as he entered the room, the officers found a gun in the corner with some rags.

On cross-examination he testified that he did not know where Willie Williams was but thought he and his wife had left town. He admitted giving a statement to Sergeant Felts at the city jail but that he did not say in that statement that he owned a .25 automatic pistol and got it pawned on May 18, 1973, and that he was drunk on that occasion; that he had left the gun at a lady’s house (1605 Eighth Avenue North) ; that when he got the gun back he put it in his pocket; that when there was a knock on the door, and it was the police that he pitched the gun into some rags and it went off. He admitted signing the statement but said he did not read it.

The state called Detective H. B. Felts of the Birmingham Police Department and he testified that he interviewed appellant and some civilian witnesses and took detailed statements from each of them. He stated that he advised appellant of his rights and he signed a waiver of rights form and gave him a written statement.

He testified that Mrs. Westbrook signed a statement saying that appellant had a gun in his hand while standing in her door. That the police identified themselves as they approached the doorway. That she heard a gunshot and found out later that Willie Dukes (appellant) fired it.

He further testified that appellant made the following statements: (1) He owned a .25 automatic pistol which was in pawn until he got it out on May 18, 1973, at 4:30 or 5:00 p. m.; (2) He had a drink and went to the Westbrook room; (3) He got the pistol and put it in his right pocket after calling a cab; (4) He heard a knock on the door and the police identified themselves so he removed the gun from his pocket and threw it in a corner with some rags and it went off; (5) That he was the first person the police grabbed and handcuffed and put in the patrol car and they carried him back in the house and searched for and found the gun.

Appellant admitted a grand larceny conviction on March 31, 1955, and that he got a five-year sentence. On the same date he admitted two grand larceny convictions and got a year and a day on each of those convictions.

It is abundantly clear that appellant and his chief witness were thoroughly impeached.

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

There was no motion for a new trial; there was no request for the affirmative charge; there were no exceptions reserved to the court’s oral charge to the jury, and no adverse rulings on the admission of evidence. In this state of the record nothing is presented for review since we have disposed of the motion to exclude. Eady v. State, 48 Ala.App. 726, 267 So.2d 516.

Conflicting evidence is for the jury, and a verdict rendered 'thereon is conclusive on appeal. Eady v. State, supra; Pugh v. State, 51 Ala.App. 164, 283 So.2d 616.

A careful review of the record discloses that the state proved a prima facie case and that the defense consists of testimony denying the evidence of the state. Clearly, such a conflict presents issues within the province of the jury who may give credit to such witnesses as in their discretion merit belief and may disregard the testimony of those witnesses who stand impeached before them. Haney v. State, 42 Ala.App. 94, 153 So.2d 652.

The judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


text:
    Herman FRAZIER v. STATE.
    7 Div. 365.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.

      William T. Denson, Rockford, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Frazier was convicted of robbery and sentenced to ten years in the penitentiary. He had appointed counsel both at arraignment and trial. He pleaded not guilty. After conviction he gave notice of appeal without suspension of sentence and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that before the finding of this Indictment Herman Frazier alias Herman Frazure whose true name is to the Grand Jury unknown, otherwise than as stated, feloniously took $400.00 in lawful currency of the United States of America, a more particular description, of which is to the Grand Jury otherwise unknown, of the value of $400.00 and one 38 Caliber Derringer pistol Serial No. 029257 of the value of $60.00, the property of Walter Farr, from his person and against his will by violence to his person or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.”

On October 29, 1974, Mr. Walter Farr, age seventy-five, lived in the Barfield Community of Clay County about five miles from Lineville, Alabama. He owned and operated a service station on County Highway 9 close to his home. On that date, around two o’clock in the afternoon, two Negroes came to his service station and the driver asked him to put a dollar’s worth of gas in his car. The driver was subsequently identified as appellant. Appellant’s companion who was subsequently identified as Ricky Searcy got out of the car and walked in the service station. Searcy hollered from the door of the station and said, “Put in two more dollars worth of gas.”

Mr. Farr further testified that this was a 1965 Chevrolet Impala, beige in color, and had a trailer hitch on the bumper and he noticed a broken radio aerial on the left rear fender. He noticed the tag number but could remember only the first two numbers. They were “11” and he knew that number represented Calhoun County. After putting the gas in the car Mr. Farr walked into the service station followed by appellant. As Mr. Farr started to go behind the counter Searcy grabbed his arm with his left hand and pointed a pistol in his face saying, “This is a stick-up, I want your money, give me your money or I will kill you.” Appellant started closing in on Mr. Farr, and Mr. Farr raised his foot and shoved appellant off him. At this point Searcy struck Mr. Farr on the head and pushed him down on the floor and told him to lie flat and put his hands behind him. Both appellant and Searcy bound Mr. Farr’s hands behind him using a piece of telephone wire. Mr. Farr said, “Take my money, but don’t kill me.”

Mr. Farr stated that Searcy took his billfold out of his pocket which contained around $400.00. He had a metal box under the counter and appellant took this box which had about twenty to thirty one dollar bills in it and some old silver. Mr. Farr had a .38 caliber double-barrel derringer pistol on the counter. It was not loaded but there were two cartridges on the counter. When Mr. Farr bought the pistol, he wrote down the serial number— “029257.” Appellant took the pistol and the two cartridges.

Mr. Farr was bleeding profusely from his head as a result of the blow from the pistol in the hand of Searcy. He stayed on the floor in a pool of blood until he heard the robbers crank the car and leave his station. He got up and walked out of the store calling his son who lived forty-five to fifty yards from the station. His son got his truck to carry him to a doctor in Lineville and while he was getting the truck, his wife helped untie Mr. Farr’s hands.

While enroute to Lineville, they saw State Trooper Jack Whatley and they stopped and reported the robbery. Mr. Farr gave the trooper a description of the automobile as above described. He also described the two Negroes as to weight, height and what they were wearing. Mr. Whatley radioed the base station in Oxford, Alabama, and an all-points bulletin was dispatched for the suspects.

Mr. Farr’s son, Richard Elton Farr, testified that he observed the 1965 Chevrolet pulled into his father’s service station occupied by two black men. He saw the driver get out and go to the rear of this car. He did not think anything unusual was going to take place and he remained in his home. A short while later he heard his father hollering for him to come and look after him. He went to his father and saw blood coming down his face and it was going down on his shirt. He put him in his truck and started for Lineville to put him under the care of Dr. George Smith at the clinic. That it took sixteen sutures to close the laceration on his head.

On the way to Lineville, they saw Trooper Whatley and stopped and gave the trooper a description of the car and the occupants. Young Farr told Mr. Whatley that the car was an old Chevrolet, dark in color and that it had three tail lights across the back. He described the two black men. He stated one of the men looked to be about six feet tall and the other one was not quite as tall and “sort of chunky like.”

Both Mr. Farr and his son made a positive in-court identification of appellant as one of the robbers.

State Trooper Jack Whatley confirmed the testimony of Mr. Farr and his son as to the description of the 1965 Chevrolet with a trailer hitch on the rear bumper. He called the base station and gave them a description of the car and the two men in it. He was told to go north on Highway 9 and about the time he got to the Hollis Crossroads, he received a radio call from another unit stating that he was in pursuit of the car that had been described. He then proceeded in that direction, 1-20 and Highway 431, and found the car which had been stopped by another officer with the Oxford Police Department. One of the officers who stopped appellant found a derringer pistol lying on the front seat of appellant’s car in “plain view.” This officer gave this pistol to Trooper Whatley who turned it over to the Sheriff of Clay County when he arrived at the scene. Appellant had been removed from his car and was in the back seat of the Oxford Police car when Whatley arrived.

This officer further testified that just before appellant’s car was stopped, be heard on his radio that Officer Pitts said that some things had been thrown out of the car on the passenger’s side and gave the location as being on 1-20 just at Highway 431. Officers Whatley and Pitts went to this location and found a metal box and a bunch of papers, cancelled checks and things of that nature. From an examination of these papers, it was determined that they belonged to Mr. Farr. There was no money in the box.

State Trooper Raymond Pitts who was stationed at Anniston, Alabama, picked up the broadcast on his radio and pulled upon the ramp at the 431 exit and stopped his car. Five or ten minutes later he saw a 1965 blue Chevrolet Impala on Highway 431 headed south and saw it turn right, going toward Calhoun County on the interstate. As he was pursuing this car, he saw a box thrown from the car and the papers from the box were scattered all over the highway. He pursued the car for a half of a mile and when he came up to it, he found that Officer Ray Henson of the Oxford Police Department had stopped the car. Pitts looked in the car and saw a nickel-plated derringer lying on the front seat. Just as the Chevrolet was coming to a stop, he saw a black man running across a bank and he jumped the fence. He went into the woods trying to catch this man but he could not locate him. This officer made an in-court identification of appellant as the driver of the Chevrolet stopped by Officer Henson.

Police Officer Ray Henson of the Oxford Police Department testified that he was on patrol on October 29, 1974, and while on patrol, he received a radio dispatch giving a description of the car that was suspected of being involved in a robbery in Clay County. He spotted the car and gave chase going as fast as ninety miles per hour. He turned on the blue light and finally stopped the car. As the car was slowing down, he saw the occupant on the passenger side open the door and escape. He put the driver under arrest and hand-cuffed him. He gave him the Miranda rights and warnings. He made a personal search of the driver at the scene after his partner showed him a loaded derringer on the front seat of the car. He unloaded the pistol for safety reasons and gave the pistol and two cartridges to Trooper Whatley when he arrived on the scene. He made a positive in-court identification of appellant as the driver of the car he chased and finally stopped.

Henson further testified that in searching appellant at the scene, he told him to take off his hat. Inside the hat was a newspaper and inside the newspaper was marihuana or what appeared to be marihuana. At this point in the trial the following occurred:

“MR. DENSON: Objection, Your Hon- or, and I make a motion for a mistrial on the grounds that it’s highly prejudicial. This man has been brought before the Bar of Justice and he is not charged with anything that relates to this, he is charged with robbery and I make a motion for a mistrial.
THE COURT: Overruled. The Court understands that and the Court notes that the defendant is not on trial for marijuana in this case.
MR. DENSON: Reserve an exception.”

The pistol was introduced in evidence without objection and appellant’s counsel stipulated that the automobile driven by appellant on this occasion was his automobile.

Ricky Searcy was called as a witness for the state. He testified that on October 29, 1974, he and appellant drove to Clay County in appellant’s car. They had planned to rob the Farr service station before leaving Anniston. He stated that he pulled a .22 caliber pistol on Mr. Farr and hit him on the head in the presence of appellant; that he made Mr. Farr lie face down on the floor with his hands behind him and both he and appellant tied Mr. Farr’s hands with wire they brought with them. He stated that he took Mr. Farr’s billfold out of his pocket and that appellant got Mr. Farr’s money box, pistol and cartridges.

He further testified that they got in Frazier’s car and left to return to Annis-ton. He said that on the trip back they started counting the money and that Frazier watched him count every dollar. He got the money from the metal box and put it with the money from Mr. Farr’s billfold. After counting it they rolled it up and put a rubber band around it. He stated that after the officers got after them, he threw the money and the money box out of the car and that he got out of the car and ran up the mountain. He said they counted $357.00. He said he had not been promised anything in exchange for his testimony or threatened in any way. He stated the reason he was testifying for the state was that he had been tried and convicted and sentenced to twenty years in the penitentiary. That he did not think it was right for him to be going down the road by himself when Frazier had just as much to do with it as he had saying, “Yes,, sir, I think he should go down there with me.”

At the conclusion ' of the state’s case counsel for appellant moved to exclude the state’s evidence on the ground there was a fatal variance between the state’s evidence as to the amount of money charged in the indictment as being four hundred dollars and the amount proven being much less. He further contended that the value of the pistol was stated in the indictment to be of the value of sixty dollars and according to Mr. Farr’s own testimony, the value of the pistol was thirty-five dollars. The trial court overruled the motion.

Appellant offered two witnesses who testified as to the good character of appellant, and both testified that he possessed a good character.

On cross-examination both of these witnesses were asked if they had heard that appellant was arrested for assault with intent to murder in 1971, and arrested for burglary in 1973. Both answered they had not heard that. The District Attorney asked both witnesses if they had heard that if their answers as to appellant’s good character be the same. Appellant’s objections were overruled and both witnesses said their answers as to his good character would be the same.

Appellant testified in his behalf and denied that he participated in the robbery of Mr. Farr. That he was unaware that Searcy had planned to rob Mr. Farr and that he only carried him to Lineville as a favor, but Searcy did agree to buy the gasoline for the trip. He stated that he was a witness to the blow on Mr. Farr’s head with a pistol in the hands of Searcy. He denied that he helped tie up Mr. Farr and that he did not take the money box or Mr. Farr’s pistol. That this was done by Sear-cy alone. That after he heard Mr. Farr say, “Take the money but please don’t kill me,” he just walked out of the station and got in his car. In sum, his testimony was that he just happened to be in the wrong place at the wrong time.

There was no fatal variance between the averments of the indictment and the proof as to the value of the property-taken. In a robbery prosecution the amount of money taken is immaterial. Wilson v. State, 268 Ala. 86, 105 So.2d 66; Turk v. State, 53 Ala.App. 106, 298 So.2d 37.

There was no prejudicial error in denying appellant’s motion for a mistrial because a personal search of appellant at the time of his arrest revealed he had marihuana in his hat. The search was incident to a lawful arrest. The court stated that appellant was on trial for robbery and not possession of marihuana. The word “marihuana” was not mentioned again during the entire trial. Daniels v. State, 290 Ala. 316, 276 So.2d 441.

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. In any event their negative answers were harmless to appellant. Baldwin v. State, 282 Ala. 653, 213 So.2d 819.

In Mullins v. State, 31 Ala.App. 571, 19 So.2d 845, the rule is stated to be:

“ ‘Confusion sometimes arises in distinguishing between the right to cross-examine a witness who testifies to good character as affecting his creditability and the prohibition against inquiring as to specific conduct. In the former inquiry it is complying with the rule for the opposing counsel to ask the witness if he has not heard of certain misbehavior which would tend to mitigate against the character of the person whose good repute the witness is seeking to uphold. This is allowed for the reason that an adversary has the right to test the accuracy, creditability and sincerity of a witness when the privilege of cross-examination is exercised.

‘In other words, on cross-examination of a witness who has testified as to the general good character of defendant, it is permissible to ask the witness if he had not heard it reported in the community that the defendant had committed certain unworthy acts, naming them, but this even is not allowed for the purpose of affecting the character of the defendant but as evidence affecting the credibility of the witness testifying to good character. Carson v. State, 128 Ala. 58, 29 So. 608; Williams v. State, 144 Ala. 14, 40 So. 405; Smith v. State, 103 Ala. 57, 15 So. 866. Such examination is also permitted for the purpose of either showing that the witness was mistaken in his estimate, or for shedding light on his estimate of such character. Stout v. State, 15 Ala.App. 206, 72 So. 762.’ (Emphasis added)”

In Brown v. State, 21 Ala.App. 371, 108 So. 625, the court said:

“There were several objections by defendant to questions propounded to witnesses, the objections overruled, and exceptions reserved; but when the questions were answered there were no motions to exclude. This was equivalent to a waiver. Taylor v. State, 20 Ala.App. 161, 101 So. 160; Bailum v. State, 17 Ala.App. 679, 88 So. 200.

There was no motion to exclude the state’s evidence; there was no motion for a new trial; there was no request for the affirmative charge, and no exceptions were reserved to the court’s oral charge to the jury. In this state of the record nothing is presented to this court for review. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Grant v. State, 46 Ala.App. 232, 239 So.2d 903; Robinson v. State, 46 Ala.App. 684, 248 So.2d 583.

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

The judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Michael Junior CHAMBERS v. STATE.
    3 Div. 369.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Wayne P. Turner, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Robbery. Sentence: Ten years imprisonment.

The undisputed evidence establishes that the appellant and an accomplice robbed Wyman Hamm by holding a pistol on him and taking his automobile. An exerpt from the testimony of the victim establishes the taking of the car by “putting him in such fear as unwillingly to part with the same,” as charged in the indictment:

“Q Now, did you voluntarily of your own free will give them the car or did you do it pursuant to the pistol ?
“A I done it because they had the gun on me.
“Q Were you put in fear?
“A Yes, sir.
“Q Extreme fear?
“A Yes, sir.”

Both the testimony of the victim and that of an eyewitness, Thomas B. Mellos, establishes, (1) the elements of robbery, .(2) the identity of the appellant as one of the robbers, and (3) venue.

The appellant did not take the witness stand and did not present any witnesses in his behalf. The record is brief, and the sole issue presented is whether the trial court erred in refusing to give certain requested charges dealing with lesser included offenses.

I

There was no evidence presented except as to an armed robbery. There is nothing in the record to suggest any of the following offenses set out in the refused charges: assault and battery, larceny, assault with intent to rob, attempted robbery, or assault.

In Chamberlain v. State, 48 Ala.App. 254, 263 So.2d 709 (1972), a case squarely in point, Judge Tyson, writing for this Court, held that:

“We are of the opinion under the evidence in this case, the trial court properly refused the above two charges since such evidence if believed would not support a conviction for larceny on the one hand or assault and battery on the other. Kelly v. State, 235 Ala. 5, 176 So. 807; Reeves v. State, 17 Ala.App. 684, 88 So. 197; Segers v. State, 283 Ala. 682, 220 So.2d 848.
“Where, as here, since, if any offense was committed, it was robbery, the court’s refusal to charge on grand larceny was proper. Brooks v. State, 36 Ala.App. 310, 55 So.2d 366.
“While the refused charges may be correct statements of the law, such were abstract due to the nature of evidence in the case at bar, and their refusal is not error. Brown v. State, 39 Ala.App. 149, 96 So.2d 197.” Also see Trammell v. State, 51 Ala.App. 168, 283 So.2d 620 (1973).

II

Both the State and the defense announced “Satisfied” at the conclusion of the court’s oral charge.

We have searched the record for error and find none prejudicial to the appellant.

Affirmed.

All the Judges concur.


author: CATES, Presiding Judge.

text:
    Arthur LEWIS, alias v. STATE.
    3 Div. 385.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Charles C. Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

The appellant was convicted of first degree murder in killing Manferd E. Furr with a sawed off shotgun October 12, 1974, in broad daylight in the first block of Dexter'Avenue in Montgomery. The jury set his punishment at life imprisonment.

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

a) The clerk’s certificate; [T. 7, § 767];
b) The court reporter’s certificate;
c) The statement of the organization of the court; (Sup.Ct.R. 52) ;
d) The indictment (including caption, charge, conclusions, and required endorsements) ;
e) Judgment entry (arraignment, presence of counsel, twelve jurors, em-panelling and swearing of jury, verdict, adjudication of guilt, allocutus, sentence and notice of appeal); and
f) Each ruling of the trial judge adverse to the appellant.

From this examination we conclude that the judgment below should be

Affirmed.

All the Judges concur.


text:
    John Robert GODBEE v. STATE.
    3 Div. 378.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Charles C. Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of robbery and sentenced to ten years in the penitentiary. At arraignment, attended by counsel, he pleaded not guilty and not guilty by reason of insanity. After conviction he was furnished a free transcript of the record and trial counsel was appointed to represent him on appeal.

On March 8, 1974, two men robbed the Majik Market on Madison Avenue in-Montgomery, Alabama. Mrs. Margaret Louise Ledbetter Cooley was alone in the store at the time. Mrs. Cooley was a school teacher by profession and taught physical education at Carver Junior High School, but during the spring holidays during March of 1974 she was an employee of the Majik Market. She testified she worked the 3:00 to 11:00 shift. She stated that between six and seven o’clock that evening two white men came in the store and one of them picked up a six-pack of beer and brought it to the counter. He appeared to be younger than twenty-one years and she asked to see his ID and he pointed to the other man and he walked over to the sunglasses rack and stood there' looking out the window and then looking back. The other man came forward and she asked to see his ID.

“THE WITNESS: He reached back in his back, I thought to get his billfolder, and he pulled a pistol out. And he told me to put all the money in the sack with the six pack of Paps (sic) Blue Ribbon Beer. I opened the cash register and told him he could put his gun up, that I wasn’t going to give him any problem; I was scared. I put the money in the bag, and he asked me where the big money was, and I told him that it was in the the safe down on the floor; and he asked me to get down on the floor for fifteen minutes, and I got down on the floor and looked at my watch, because I didn’t want to get up too quick. And I was down on the floor, and apparently they left.”

At this point Mrs. Cooley made an in-court identification of appellant as the younger of the two men who robbed her on the evening of March 8, 1974.

After the robbers left, she got up and called Police Headquarters. Detective Thomas McLain came to the store and she gave him a description of the robbers. The store manager came and made an audit that night and found over $43.00 missing from the cash register.

Mrs. Cooley then went to Police Headquarters and gave a written statement in which she described the two men. She described appellant as being 5'7" or 5'S" and of average weight. He had dark brown hair that was just above his collar in length. She thought it was a very neat cut at.the time and that he was clean looking. He was wearing a sport shirt and sport pants but she did not notice the color at all. She stated that the other man was a much bigger muscular man with a broad neck and he had blondish to red hair that came below his collar in length, and he had a beard. She said he had on a blue denim shirt and dark pants.

Mrs. Cooley was asked to look through a mug book while she was at the station house to see if she recognized the men who robbed her. She viewed a great number of photographs and did not recognize either of the two men. A few days later Detective McLain brought some different photographs to the school where she was teaching and after viewing these photographs, she immediately recognized both men who robbed her.

Detective McLain testified that the two suspects identified by Mrs. Cooley were Robert Godbee, appellant, and one Barry Keen. Mr. McLain further testified that during the course of their investigation he went to Motel 6 on the Eastern Bypass and talked to Jimmy McQueen, the manager of the motel. He was asked the reason he went to this motel and replied that:

“A We got a teletype from a detective in Louisville, Kentucky, that stated that two subjects had been arrested for armed robbery. I called the detective and talked to him, and one of the subjects was this gentleman here. They had him.”

Appellant objected to this conversation but this objection came after the question and the answer. The objection was overruled, and the judge told the prosecutor to go ahead. Mr. McLain further said:

“A I called him and talked to him, yes, sir, and I checked at the Motel 6; and after we got photographs, we put them in a mug book, took them out and got this Jimmy McQueen to identify the subjects.”

Appellant objected to this testimony and the court sustained the objection.

From the record:

“Q (By Mr. Dozier) Based on your information, were you able to determine what type car that Barry Keen and the Defendant were in Louisville, Kentucky?
“A Yes, sir.
“Q Will you state whether or not the two cars were identical ?
“A They were in a small sports Chevrolet, and it had a Florida tag on it.
“Q All right.
“A And the tag number was registered at the motel; and also, the police department in Louisville, Kentucky gave us a copy of that number.
“THE COURT: You mean registered at the motel here ?
“THE WITNESS: Yes, sir.
“Q (By Mr. Dozier) Based o'n your investigation, were you able to determine whether or not more than two people were registered at that motel ?
“A There were two men and a girl, a young lady.
“Q And a girl ?
“A Yes, sir.
“Q Were you given a description of this girl?
“A They said that she was short, dark headed, sort of pretty, was the only description that they gave me.
“Q All right. Let me ask you this, Mr. McLain; when you showed Margaret the mug books and she identified the Defendant in this case, did she identify more than one person ?
“A Yes, sir.
“Q Who was the other person ?
“A It was Keen.
“Q Keen?
“A It was Keen and Godbee, both.
“Q All right, sir. Did she identify anybody else other than these two ?
“A No, sir.
“Q It was a positive ID ?
“A It was a positive ID on her part, yes, sir.”

On cross-examination appellant’s counsel brought out all, and more, of the above-quoted testimony.

Appellant did not testify but offered the testimony of an uncle from Georgia who testified that appellant and Keen spent the entire night of March 8, 1974, and, of course, were at his house at the time of the alleged robbery.

It is to be noted that most of appellant’s objections to illegal questions calling for hearsay testimony were not made until the questions were answered and there were no motions to exclude the answers on the ground of hearsay testimony. Therefore, the objections were not timely made, or were waived. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353; Lucky v. State, 50 Ala.App. 324, 278 So.2d 772.

The state made out a prima facie case with the testimony of the robbery victim. We have repeatedly held that in our system of criminal justice we do not travel on the numerical number of witnesses. A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Gray v. State, 38 Ala.App. 508, 88 So.2d 798; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

Alibi testimony, like all other testimony in a criminal prosecution, raises issues for the jury’s determination. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Price v. State, 53 Ala.App. 465, 301 So.2d 230.

The testimony of Detective McLain was, in the main, the .rankest kind of hearsay and proper objections thereto should have been sustained. This hearsay evidence would work a reversal of this case except for the following excerpts from the oral charge of the court:

“THE COURT-: Ladies and gentlemen of the jury, eradicate from your mind and your thinking any of the testimony given by the Detective McLain, what conversations he had with the officers in Louisville, Kentucky. I’m excluding that from the evidence, and please don’t consider it.
The Defendant in this case is charged with the offense of robbery. — Now, ladies and gentlemen of the jury, since I made mention of the fact not to consider or give any weight or consideration whatsoever to'any conversation between Detective McLain and the detective or the officer in Louisville, that’s not to be considered.”

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

The judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


author: TATE, Justice.

text:
    HOOD MOTOR COMPANY, INC., Plaintiff-Appellee-Relator, v. James W. LAWRENCE, Defendant-Appellant-Respondent.
    No. 55976.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    Rehearing Denied Oct. 31, 1975.

      Thomas L. Giraud, New Orleans, for defendant-appellant-respondent.
    Joseph H. Simpson, Amite, for plaintiff-appellee-relator.
   TATE, Justice.

Here contested is the validity of execu-tory proceedings to seize and sell mortgaged property without citation or judgment. La.C.Civ.P. art. 2631 et seq. The issue before us is whether an order of seizure and sale, La.C.Civ.P. art. 2638, signed by the parish clerk of court, La.C.Civ.P. art. 283, rather than by a judge, is sufficient compliance with the federal due process requirement of judicial control of ex parte seizures. Mitchell v. W. T. Grant Company, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).

For reasons to follow, we find no constitutional infirmity in executory proceedings based upon an order of seizure and sale signed by a clerk instead of by a judge.

The plaintiff creditor (“Hood Motor”) initially seized a mortgaged Chevrolet and sold it by executory process. It then sued the defendant debtor Lawrence and obtained a judgment for the deficiency between the mortgage debt and the price brought at judicial sale. The debtor’s chief defense is that the ex parte seizure by executory process offended the federal constitution.

On the debtor’s appeal, the court of appeal reversed. 307 So.2d 143 (La.App. 1st Cir. 1974). The court denied a deficiency judgment because it held the initial seizure offended federal due process. The basis for this holding is that the order of seizure and sale was signed by the parish clerk of court, not a judge, as authorized (for parishes other than Orleans) by Article 283(2) of the Louisiana Code of Civil Procedure (1960). The code article was held unconstitutional insofar as thus providing.

We granted certiorari, 309 So.2d 678 (La. 1975), because of the policy of this court to afford review of right when the intermediate court declares a statute unconstitutional. Bradford v. Department of Hospitals, 255 La. 888, 233 So.2d 553 (1970).

I.

Before we consider the narrow issue before us, we deem it advisable to advert to its statutory and jurisprudential context.

An executory proceeding in Louisiana is an in rem action derived from the civil law. Buckner v. Carmack, 272 So.2d 326 (La.Sup.Ct.1973); McMahon, The Historical Development of Executory Procedure in Louisiana, 32 Tul.L.Rev. 555 (1958). By an executory proceeding, a creditor may effect ex parte “the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment.” La.Civ.P. art. 2631.

To exercise his right to obtain an ex parte order of seizure and sale, La.C. Civ.P. art. 2638, the creditor must submit with his petition authentic evidence or its statutory equivalent “necessary to prove his right to use executory process”. La.C. Civ.P. art. 2635. This requirement includes not only the instruments evidencing (1) the obligation secured by the mortgage or privilege and (2) the mortgage or privilege importing a confession of judgment, but also (3) evidence “necessary to complete the proof of plaintiff’s right to use executory process.” La.C.Civ.P. art. 2635.

Before the order is signed for issuance of a writ of seizure and sale, the court is required by La.C.Civ.P. art. 2638 to satisfy itself that the plaintiff’s petition is supported by authentic evidence and other showings which affirmatively establish the right to the relief sought. Buckner v. Carmack, 272 So.2d 326 (La.1975).

(In the present case, the order was signed by the clerk of court, not a judge, as authorized by La.C.Civ.P. art. 283. The contention that the present seizure and sale under executory process is constitutionally infirm is based solely on this circumstance.)

After the order is signed, a demand for payment must be made upon the defendant, unless it has been waived by the debtor in the act of mortgage (as is often the case). La.C.Civ.P. arts. 2639, 2640. In all cases, however, after the property is seized by the sheriff, written notice of its seizure must be served upon the defendant. La.C.Civ.P. art. 2721.

The defendant may contest the order of seizure, either by a suspensive appeal or by an injunction procedure to arrest the sale. La.C.Civ.P. art. 2642.

In the latter event, the debtor is entitled to an injunction without bond on numerous grounds. La.C.Civ.P. art. 2753. They include that the debt is not due, that the act evidencing the mortgage. was the product of fraud or other illegality, and that the ex parte order directing the issuance of the writ of seizure and sale was not based upon sufficient or actual authentic evidence. The debtor is entitled to a full evidentiary hearing on his contentions that the sale should not be held. Cf. American Bank & Trust Co. v. Carson Homes, Inc., 316 So.2d 732 (La.1975).

In Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), Florida and Pennsylvania pre-judgment replevin proceedings were held to offend federal due process of debtor’s rights. Upon ex parte allegations of the creditor, these proceedings permitted a creditor to effect seizure of a debtor’s property without prior notice to him nor any prior opportunity for him to be heard.

Shortly thereafter, based on Puentes, the Louisiana seizure and sale by executory process, La.C.Civ.P. arts. 2631 et seq., and the Louisiana pre-judgment sequestration procedures, La.C.Civ.P. arts. 3571 et seq., were attacked as constitutionally invalid. Neither attack was successful.

Louisiana executory proceedings were held not invalidated by Fuentes in Buckner v. Carmack, 272 So.2d 326 (La.1973). Based essentially upon the safeguards above set forth, we held that our executory proceedings afford a debtor adequate opportunity to assert defenses and objections and that issuance of the order of seizure did not rest upon the ex parte allegation of the creditor. The United States Supreme Court indicated that this result was correct when it dismissed the appeal to it “for want of a substantial federal question”. Carmack v. Buckner, 417 U.S. 901, 94 S.Ct. 2594, 41 L.Ed.2d 207 (1974).

Some two weeks earlier, the United States Supreme Court had rejected Fuentes-based attacks on our Louisiana pre-trial sequestration seizure. Mitchell v. W. T. Grant Company, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). The sequestration procedure gave the debtor at least the protections afforded him in exec-utory proceedings. Based upon these safeguards (including that the writ did not issue simply upon conclusory allegations of the creditor) and the “judicial control of the process from beginning to end”, 94 S. Ct. 1904-05 our high- tribunal held these pre-trial seizure procedures did not offend due process, even though the debtor was afforded no opportunity to contest the seizure prior to his dispossession by it.

Both Carmack and Mitchell involved orders of seizure signed by a judge, not a clerk. Mitchell noted this circumstance and expressly left open the validity of procedures based upon an order signed by a clerk. See footnote 5 at 94 S.Ct. 1895.

II.

In its excellently reasoned opinion, the court of appeal held that the Fuentes-Mitchell test of constitutionality was not met where the clerk of court instead of a judge signs the order of seizure.

The shifting rationales of our nation’s high court indicate, a substantial basis for this holding. The rationale of Mitchell itself is not entirely clear. See Notes, 35 La.L.Rev. 451-46 (1975), 35 La.L.Rev. 221 (1974), 49 Tul.L.Rev. 467 (1975).

Furthermore, since Mitchell a George pre-trial garnishment proceeding was held to be invalidated for Fuentes reasons where, upon the creditor’s affidavit, a court clerk was under a mandatory duty to issue a writ garnishing the debtor’s bank account. North Georgia Finishing, Inc. v. Di-Chem Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975). Our nation’s high court there noted that the debtor’s bank account was “put totally beyond use . by a writ of garnishment issued by a court clerk without notice or opportunity for an early hearing and without participation by a judicial officer.” 95 S.Ct. 722. In noting the infirmities of the procedure, including the lack of opportunity for an early hearing, the court also stated: “The writ is issuable, as this one was, by the court clerk, without participation by a judge.” 95 S.Ct. 722.

III.

Nevertheless, although with some diffidence, we conclude that Louisiana’s executory proceedings do not deny a debtor due process because an order of seizure and sale is signed by a clerk instead of by a judge.

In the first place, the safeguards to the debtor are far greater than in the prejudgment seizures invalidated by Fuentes and North Georgia Finishing. Unlike these latter invalidated proceedings, Louisiana executory process is issued not upon conclusory allegations by the creditor but instead upon narrowly circumscribed proof, such as authentic evidence and a confession of judgment. Also, unlike the invalidated procedures, the Louisiana executory process provides for an early opportunity for the debtor to contest and set aside a seizure as unjustified in law or in fact. See Mitchell.

In the second place, the clerk upon signing the order of seizure and sale is under no less a duty than is a judge to satisfy himself that the requirements of law have been met before the order to issue the writ is signed. La.C.Civ.P. 2638 (quoted in footnote 3) ; Buckner v. Carmack, 272 So.2d 326 (La.1975).

In this latter instance, the clerk is exercising a quasi-judicial power authorized by the constitution (La.Const. of 1974, Art. V, Section 28(A); La.Constitution of 1921, Art. VII, Sections 37, 66) and by statute (La.C.Civ.P. art. 283). See the holding to this express effect in McCoy v. Hunter, 167 La. 1032, 120 So. 767 (1929) and see also the decisions therein cited. Actions by the clerk may be nullities if in excess of the specifically granted and narrowly limited judicial and quasi-judicial powers granted to him. Hicks v. Hughes, 223 La. 290, 65 So.2d 603 (1953). (In Louisiana, the parish clerks are also granted limited judicial powers to confirm and sign judgments by default, etc., for small claims. La.C.Civ.P. art. 284.)

As we apprehend them, the emphasis in the Fuentes, Mitchell and North Georgia Finishing decisions is upon a judicial officer’s examination of the creditor’s petition to assure that the ex parte seizure is based upon legal and factual reason rather than merely at the direction of the creditor or automatically upon his conclusory allegations. We can see no constitutional necessity that this state officer be one holding the office of judge itself, nor can we find constitutional prohibition against delegation to an officer other than judge of the signing of an order of seizure and sale; especially when such officer has the duty and discretion to decide whether the creditor has made the narrow and specific showing upon which the legislature has authorized issuance of the writ of seizure and sale under executory process.

As suggested in Mitchell, the concept is that the debtor should not be “at the unsupervised mercy of the creditor and court functionaries”. 94 S.Ct. 1904. Rather, “a state official” should make “at least a summary determination of the relative rights of the disputing parties before stepping into the dispute and taking the goods from one of them.” 94 S.Ct. 1904 (Italics ours).

The concept thus enunciated is that the basis for the pre-judgment seizure must be established before a neutral officer of the state, not necessarily a judge himself. Prior to the ex parte seizure, this neutral officer must determine that legal and adequate basis for the seizure has been established, and he must have discretion to deny the pre-judgment seizure sought if such basis has not been established.

If we additionally consider the judicial control exercisable by the readily and immediately available judicial review of the seizure and (if justified) rescission of it, see Mitchell, the signing of the order by a clerk exercising a quasi-judicial function is no less and no more constitutionally deficient than is the action of a judge in doing so. The statute narrowly limits the availability of the remedy and requires fairly certain proof of the creditor’s right to use it. The duty to sign or refuse to sign the order of seizure and sale is the same, whether the officer authorizing the remedy be the judge or the clerk.

We are thus unable to find any reason rooted in constitutional necessity to invalidate the order for executory process because signed by the clerk in a quasi-judicial capacity rather than by the judge himself. We therefore must overrule the court of appeal’s decree.

IV.

The debtor alternatively urges that the deficiency judgment cannot be entered against him on yet another ground. He contends that, at the time of the initial sale under executory process, he did not receive the notice of seizure and the notice to appoint appraisers which are pre-requi-site to his being subjected subsequently to a deficiency judgment.

The court of appeal did not reach this issue. The usual policy of this court in such instances is to remand the case to the intermediate court for consideration of those issues not passed upon by it, when resolution of them is necessary before entry of final decree.

Decree

For the reasons assigned: The judgment of the court of appeal is reversed. This case is remanded to it for further proceedings consistent with our opinion. The costs of the review in this court are to be taxed against the defendant; all other costs to be determined on remand.

Reversed and remanded.

BARHAM, J., does not participate.

      . An authentic act is one executed before a notary in the presence of two witnesses. La.Civ.C. art. 2234.

      . A confession of judgment by authentic act is imported when the obligor acknowledges the obligation secured by mortgage or privilege and confesses judgment whether before or after its maturity. La.C.Civ.P. art. 2632.

      . Article 2638 provides: “If the plaintiff is entitled thereto, the court shall order the . issuance of a writ of seizure and sale commanding the sheriff to seize and sell the property affected by the mortgage or privilege, as prayed for and according to law.
      As the Official Revision Comment notes: “In the absence of any injunction to arrest the seizure and sale, the order rendered by the’ court directing the seizure and sale of the property is the only action taken by the court in an executory proceeding.” The order' is not, however a judgment in any technical sense, Reed v. Meaux, La., 292 So.2d 557, 572 (1973), although it is appealable. La. O.Civ.P. art. 2642.

      . A quasi judicial function is one which involves the use of some discretion, but of a type different from a judicial decision. State ex rel. Board of Liquidation, of City Debt v. Briede, 117 La. 183, 41 So. 487, 489 (1906) contained the following language:
      “The duty, quasi judicial, is defined generally as a duty lying in the judgment or discretion of an officer other than a judicial officer. Throop, Public Offices, Sec. 533.
      “The function is not strictly judicial, nor, on the other hand, ministerial. It is midway between the two; that is, quasi judicial. When an officer is charged with looking into and acting upon facts ‘not in a way which it specifically directs, but after a discretion, in its nature judicial, the function is termed quasi judicial.’ Bishop on Contract Law, Section 785 et al.”
      It is distinguishable from a ministerial function, as to which there is no occasion to use judgment or discretion. See In re Perez, 194 La. 763, 194 So. 774, 776 (1940) and Houeye v. St. Helena Parish School Board, 213 La. 807, 35 So.2d 739, 740 (1948). In Lemoine v. Ducote, 45 La.Ann. 857, 12 So. 939, 940, (1893), this Court defined the term “ministerial act”, as follows:
      “A ministerial act may be defined to be one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of, his own judgment upon the propriety of the acts being done.”
      See also Black’s Law Dictionary, verbo “Ministerial”, “Ministerial Act”, “Quasi Judicial”, and “Quasi Judicial Act” (Rev. 4th ed„ 1968).