author: BOWEN,' Judge.

text:
    Timothy WATTERS v. STATE.
    6 Div. 730.
    Court of Criminal Appeals of Alabama.
    May 30, 1978.
    Rehearing Denied June 30, 1978.

      J. Wilson Dinsmore and D. Larry Waites, Dinsmore & Waites, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and James L. O’Kelley, Asst. Atty. Gen., Birmingham, for appellee.
   BOWEN,' Judge.

The appellant was indicted under the Alabama Death Penalty Act for attempted robbery when the victim is intentionally killed. This Act is now codified as Section 13-11-2, Code of Alabama 1975. Forty-seven minutes after the jury began their deliberations they found the appellant guilty as charged.

The appellant is represented by court appointed counsel both at trial and on appeal. Application for youthful offender treatment was waived.

The state’s evidence was not contradicted. On August 11, 1976, at approximately 3:15 that afternoon, Mrs. Chester L. Brown, her husband, Army recruiter Sergeant Larry D. Moss, and another Army recruiter were present in the Office of the Army Recruiter in Ensley, Alabama. Next door to this office is the Nu-Way Shoe Rebuild-ers which had been operated by Anthony Joseph Campisi for thirty-eight years. These two offices are immediately adjacent to each other and the only two offices to occupy the building which was owned by Mrs. Brown.

At approximately 3:15 that afternoon these individuals heard a “blast”, “explosion”, or a “loud noise” just as Mrs. Brown was leaving the recruiting office. Immediately they ran next door to the shoe shop. As Sergeant Moss opened the door to the shoe shop, the appellant came out and said either, “That man in there has been shot in the back”, or, “He’s in the back”. “He’s been shot.”

The appellant shoved Mrs. Brown aside and ran down the street. He was wearing a green Army fatigue jacket bearing the name of “Jones” and a black cap. Sergeant Moss entered the store and found Mr. Cam-pisi holding his chest “beginning to go down saying ‘help me’ ”. The Sergeant then ran to the nearby police station.

The appellant was seen running through traffic within a block of the shoe store. Portia Mahoney identified him and testified that he had a gun hanging under his jacket because she could see the handle protruding from underneath his jacket. She stated that this handle was too large for a pistol. She saw the appellant run up in front of a blue automobile parked in an alley, get “under it in some kind of way” and “fumble around up under there”.

Michelle Turner, Ms. Mahoney’s cousin, corroborated this testimony to the extent that she saw a male running across the street and noticed the handle of a gun under his jacket. However she could not identify the man as the appellant.

Ms. Mahoney told a police officer what she had seen. Birmingham Police Officer J. L. Sumner proceeded to the alley. Under a parked car he found a sawed-off shotgun and an Army fatigue jacket with the name “Jones” on it. A black leather cap was also discovered.

The appellant’s fingerprints were found on the front door of the shoe shop. Investigating officers found the cash register closed. It contained seventeen dollars and eighty cents. Seven dollars and ninety-five cents in loose change and rolls of pennies were found next to and on a shelf underneath the cash register. A total of twenty-five dollars and seventy-five cents was found in the store.

Expert testimony revealed that Mr. Cam-pisi was shot with a shotgun in the back area of the left shoulder. This caused massive hemorrhage which resulted in his death. The “shot piston” and the wadding from the shotgun shell were found in the wound.

The appellant was arrested around 6:15 or 6:30 P.M. on the evening of August 12, 1976, at a residence in Pratt City. He was advised of his constitutional rights and transported to City Hall. At 7:40 P.M. the appellant confessed to the shooting. This concluded the evidence presented by the state.

The thrust of the defense was that the appellant was mentally retarded and, for that reason, incapable of a knowing and intelligent waiver of his constitutional rights and therefore unable to give a voluntary confession.

Dr. Allen Shealy is a clinical psychologist. He was serving as Chief of the Psychology Service of the Veteran’s Hospital in Birmingham and Associate Professor in Clinical Psychology at the University of Alabama in Birmingham Medical School. On January 14, 1977, he spent “a little better than two hours” with the appellant. During this time, Dr. Shealy conducted a psychological evaluation of the appellant which consisted of an interview as well as the administration of the Wechsler Adult Intelligence Scale test, the Graham-Kimbrell Memory for Designs test to screen out any kind of gross neurological problems for brain damage and a test to measure emotional stability adjustment called the Rorschach Inkblot test.

Dr. Shealy determined the appellant to have an I.Q. of 69 and a mental age of twelve years and five months. He found the appellant to be within the diagnostic range of mentally retarded — within that level of mental retardation described as borderline.

The tests administered by Dr. Shealy revealed that the appellant did very poorly on his ability to think abstractly. The appellant was below normal in comprehensive ability.

Dr. Shealy stated that a person with an I.Q. of 69 would have difficulty understanding abstract terms in general. He testified that he did not believe that the appellant would understand the word “waiver”, the phrase “you have the right to remain silent”, doubted that he understood the concept of lawyer being appointed and the concept of legal rights. A person with an I.Q. of 69 would be susceptible to coercion and persuasion.

The doctor testified that the appellant would not understand the Miranda warning but would understand the questions asked him in his confession.

According to Dr. Shealy the appellant is not psychotic. He did not determine the emotional age of the appellant. He felt that the appellant did the best he could on the tests and did not “fake”.

The father of the appellant testified that the appellant was born on December 28, 1959. No certificate of birth was ever obtained. With this evidence, the defense rested.

I

Initially the appellant contends that the imposition of the death penalty in this particular action constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution.

The Supreme Court of the United States has held that the death penalty does not per se violate the Eighth Amendment and is not in and of itself cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). This court initially upheld the constitutionality of the death penalty as imposed by statute in Alabama in Jacobs v. State, 6 Div. 389, 361 So.2d 607 (Ala.Cr.App.1977). Subsequent decisions have affirmed this position.

By Section 13-11-5, Code of Alabama 1975, the judgment of conviction and sentence of death are subject to automatic review. Exercising this right we are convinced that the imposition of the death penalty in this particular case does not constitute cruel and unusual punishment nor was it imposed in an unconstitutional manner.

At a hearing held to determine whether the court would sentence the appellant to death or to life imprisonment without parole the trial court heard evidence on the aggravating and mitigating circumstances surrounding the crime.

The state and the defense stipulated that on April 27, 1976, the appellant robbed a U-Totem store in Ensley, Alabama, and shot James B. Hutchinson during the process. Mr. Hutchinson survived. The appellant was convicted and sentenced to life imprisonment.

It was also stipulated that on August 10, 1976, the appellant shot, with a shotgun, and killed a taxicab driver, Raymond Lewis Bard, in the city of Birmingham; that the confession given on August 13, 1976, by the appellant was a true statement and an admission by the appellant that he shot and killed Mr. Bard.

It was further stipulated that Dr. Allen Shealy, if called, would give the same testimony he did during the trial.

At the hearing the state called Braxton Eugene Baker, Principal of Vincent High School, Shelby County, Alabama, who produced the elementary and high school records of the appellant. These records reveal that the appellant was a very poor student whose attendance was also very poor. The highest grade level attended by the appellant was one semester in grade nine.

The father of the appellant, Lorenzo Watters, stated that, when the appellant was young, he had to take him to the hospital for some kind of “spell” or “fit” which he characterized as “epilepsy fits”. Although his son “had them fits a lots” he only took him to the hospital twice because he was poor. The appellant had a “hard one” (fit) in 1972.

After hearing this testimony and receiving the stipulations, the trial judge stated his finding of facts.

“If this were the only time this Defendant had committed this offense, I can’t say for sure, but I would say that I would carefully consider commuting this sentence to life without parole. But the Defendant, for whatever reason, and I can’t look into his mind, has demonstrated that he is — you may sympathize and I do with him and his family and his station in life — totally devoid of human emotion. Reading this statement that I have just read in the Bard case totally convinces me of that. He shot Mr. Bard one time with the sawed-off shotgun, and then he reloaded it and shot him again. Totally devoid of human compassion or understanding. I think that the mitigating factors in this case, I don’t think, and I had read these closely, that the Legislature put in there Intelligence Quota.
* * * * * *
“. . . (T)he Defendant at the time of the commission of this offense was 17 years old and his — he is now 18 at this date, and I consider that as a mitigating circumstance. I consider 17 a mitigating circumstance.
“All the others they’re (the Legislature) talking about, they’re not talking about intelligence. They’re talking about extreme duress under the substantial domination of another person. That’s not an issue here.
“Capacity of the Defendant to appreciate the criminality of his conduct. I think unquestionably that he does, and anybody who reads this statement would understand that he does.
“Another one,- the capital felony was committed while the Defendant was under the influence of extreme mental or emotional disturbance. I don’t think so. Dr. Shealy’s testimony specifically contradicts that.
“He has a significant history of prior criminal activity. The robbery case that I tried where Mr. Hutchinson was shot point blank with a .38 pistol. I forget the date, but it was not a weekend spree. I think that case was three or four months prior to it. Then killing Mr. Bard on one day, and then the next day after he had killed the man by shooting him twice, reloading a sawed-off shotgun, he went out to the store in this case we just tried, Mr. Campisi’s, to take his money, and then shot him in the back with a shotgun. To me all those factors plus Section 6, Subsection (d) was committed while the Defendant was engaged or was an accomplice in the commission of an attempt to commit a robbery in this case which indicates to me, and, of course, that’s what he’s tried for, which indicates to me that Subsection (f) of Section 6, which is aggravating circumstances, says that capital felony was committed for pecuniary gain. To me that indicates what the Legislature thinks these particular crimes of intentionally killing the victim of a rape, or robbery, nighttime burglary, kidnapping for ransom. Some of those type crimes are considered more appropriate for the death penalty than possibly some of the others in this section. That’s the only way I can read it. That plus his significant history of just brutal, wanton killing tells me that this sentence is due and hereby upheld.”

We can add nothing to the findings made by the trial judge. Under these circumstances we do not think the imposition of the death penalty constitutes cruel and unusual punishment. The sentence was reached in accordance with the constitutional provisions of due process as previously defined by this court.

II

The appellant contends that the admission of his confession into evidence was error to reverse because the material facts indicate that the waiver of constitutional rights was involuntary.

“When taken in its most simple fashion, the material facts are readily apparent. A minor Negro, uneducated, mentally retarded, unable to read, and without the advice of counsel, was isolated in a hostile environment, interrogated by his arre-stor, and coerced by deceptively friendly inquiries of the chief enforcement officer for a city of 800,000 souls.”
Brief of Appellant, p. 21.

The appellant, though a minor, is not a juvenile. At trial there was some conflict as to whether the appellant was born in 1957 or 1958. Regardless of the year of his birth, the appellant was over sixteen when the crime was committed. Title 13, Section 350, Code of Alabama 1940. Since the crime occurred before January 16, 1977, Section 12-15-67, Code of Alabama 1975, relating to the confessions of children, is not applicable. Parker v. State, Ala.Cr. App., 351 So.2d 927, cert. quashed, Ala., 351 So.2d 938 (1977); Ex parte Bolden, 358 So.2d 795 (Ala.1978).

In Parker, supra, this court adopted the totality of the circumstances test in determining the voluntariness of a minor’s waiver confession. Examining the circumstances of this case we find the conduct of the involved officers and chief of the Birmingham Police Department to be beyond reproach.

On the day after the murder, the appellant was found hiding behind a dresser in a residence after officers of the Birmingham Police Department had been given consent to search the house. Three to five officers were present when the appellant was discovered and arrested. The appellant was handcuffed and advised of his Miranda rights by Sergeant T. B. White in that same room where he was found. The appellant stated that he understood these rights. At this time the case was not discussed. The lady who gave consent to search the house, who was never identified, did not request to go with the appellant. She did ask when he would be back. James C. Parsons, Chief of the Birmingham Police Department, who was present when the appellant was arrested, told her that they were taking the appellant uptown to fingerprint and talk to him. He told her that he would contact her later and let her know if they were going to book him or not.

Chief Parsons introduced himself to the appellant and told him that they were going to take him “uptown” and that no one was going to bother him. Parsons then drove the appellant and Sergeant White to City Hall. This took about five or ten minutes. In the car, Sergeant White again advised the appellant of his rights and questioned him about the case. The appellant denied having any knowledge of the crime. White stated that he did not question the appellant continuously during the ride and did not remember Chief Parsons asking any questions. Parsons testified that he did not remember the appellant being questioned in the car — “the only discussion was that we were not going to talk to him in the car, if my memory serves me right”.

At City Hall the appellant was taken to the Identification Bureau where he was fingerprinted and processed. The appellant was not questioned during this time. Chief Parsons testified that he first heard the appellant being advised of his rights when he informed Sergeant White that “it was a positive print”. At that time White informed the appellant of his rights.

The appellant was then taken directly to Chief Parsons’ office. Parsons asked the appellant if he remembered Sergeant White giving him his rights and if he understood those rights. The appellant stated that he did in response to both questions. Parsons then told the appellant that he wanted to discuss the killing of a shoe merchant in Ensley. The appellant said, “Yes, I know”. Chief Parsons then asked the appellant if he shot him and the appellant replied that he did. At this time the appellant also admitted killing a cab driver the day before he shot Mr. Campisi. This questioning lasted about two or three minutes. The appellant was taken to the interrogation room where he was questioned by Lieutenant Alton W. Pattman and Sergeant Ballard about the murder of the taxicab driver.

Lieutenant Pattman talked with the appellant about the murder of the taxicab driver and the shooting of Mr. Campisi. Initially the appellant denied any knowledge of anything. However, after Pattman told the appellant that “we had fingerprints on the case” and that he must know something about it, he had to be there, the appellant then admitted that he shot the cab driver. The appellant did not tell Patt-man and Ballard about the Campisi murder. The appellant was not accused of lying and no one told him that he did not believe him.

After this, Ballard and Pattman went outside the interrogation room and Chief Parsons went in for “a couple of minutes”. Parsons told the officers to stay with the appellant until Sergeant White arrived.

When Sergeant White arrived he notified Sergeant B. R. Stephens, who talked with the appellant for thirty or forty minutes about the murder of the cab driver. Although the appellant was nervous, he was not very nervous. He did not cry and was not upset. Sergeant Stephens testified that he advised the appellant of his Miranda rights.

When Sergeant White began to question the appellant, the appellant admitted the killing in the Campisi case but denied killing the cab driver. White came out of the interrogation room and informed Chief Parsons, who then went into the room with the appellant. Parsons asked the appellant about the discrepancy between what he had admitted in his office and what he had just said to Sergeant White. The appellant responded that “he didn’t want to confess to both of them, because it would mean that he would have to go to jail for a long time”. Parsons then said, “Well, we have to have the truth”. The appellant said, “All right. Send Sergeant White back in.” This was the extent of the conversation. Parsons stated that he did not tell the appellant that it would be better for him to tell the truth.

Sergeant White resumed questioning the appellant and took his statement in the Campisi murder. The statement was taken at 7:24 P.M., approximately one hour after the appellant was arrested. The tape recorded statement of the appellant was transcribed the following day and Sergeant White read it twice to the appellant who stated that it was true and correct and signed it. At some point before the statement was taken, the appellant told Sergeant White that he could not read. Sergeant White stated that at that time he again advised the appellant of his rights. White read the appellant his rights “not rapidly, slowly enough for where I felt like

—. . . (he) could understand”. White testified that he did not remember the appellant crying at any time or see him get upset. He also stated that the appellant did not request to see anyone.

There are no allegations of police misconduct in securing the confession. However the appellant contends that his waiver of constitutional rights and confession were involuntary because he is mentally retarded, unable to comprehend abstract terms, has an I.Q. of 69, and is susceptible to coercion and persuasion.

“The issue raised by the appellant has previously been answered by the Alabama Supreme Court in Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967). While the accused’s intelligence, character, and situation at the time of the confession are important considerations in determining whether that confession was voluntary, the fact that the accused was of tender age or weak intellect will not alone render the confession inadmissible in evidence as involuntary, Elrod, supra; or where the accused was of weak mentality, feeble-minded, under mental stress or an illiterate, Elrod, supra; or was not in full possession of his mental faculties, Lokos v. State, 278 Ala. 586, 179 So.2d 714, vacated in 408 U.S. 935, 92 S.Ct. 2854, 33 L.Ed.2d 749, on remand, 290 Ala. 122, 274 So.2d 303 (1965); or that the accused was an ‘ignorant’ man, Porter v. State, 55 Ala. 95 (1876).
“A confession of crime is not inadmissible merely because the accused, who was not insane, was of less than normal intelligence. Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, rehearing denied, 352 U.S. 1019, 77 S.Ct. 553, 1 L.Ed.2d 561 (1957) (accused left school at age 16 while still in the third grade; his mother testified that he had always been ‘thickheaded’; the court, commented that he was ‘certainly of low mentality, if not mentally ill’); Hoober v. State, 81 Ala. 51, 1 So. 574 (1886) (accused was a person of ‘weak mental capacity’); Peck v. State, 147 Ala. 100, 41 So. 759 (1906) (a ‘weak-minded’ person). Generally, see Annotation: mental subnormality of accused as affecting voluntariness or admissibility of confession. 69 A.L.R.2d 348. Thus while the fact that a confession was made by an illiterate or one with below normal intelligence is to be taken into consideration and viewed as a factor indicating that the confession was lacking in volun-tariness, a confession is not inadmissible merely because the accused was of less than normal intelligence.” Arnold v. State, Ala.Cr.App., 348 So.2d 1092, 1096, cert. denied, Ala., 348 So.2d 1097 (1977).

The state presented evidence that the appellant was never threatened, accused, intimidated, coerced, or forced to confess. No hope of reward or offer of leniency of any kind was ever proffered the appellant. The appellant was advised of his Miranda rights on at least four separate occasions. He stated that he wished to waive these rights and acknowledged that he understood them. From the appellant’s statement that “he didn’t want to confess to both of them, because it would mean that he would have to go to jail for a long time” it is apparent that he was aware of his situation and conscious of the consequences an admission would produce. He never repudiated his confession but acknowledged its correctness the day after it was made. Of significance is the last question and answer of that confession.

“Q. Is it a true statement to the best of your knowledge?
“A. It’s a true statement, and ’um telling you from my heart what happened. You know, any other person would try to lie probably, but ’um telling you the truth, this the truth. You know, not too many people got enough heart to say they shot somebody. I ain’t got the heart to say it but, I couldn’t live with it, I couldn’t live with it, so I might as well tell.”

In support of the involuntariness of the waiver and confession, the testimony of Dr. Shealy depicts the appellant as a mentally retarded individual of low I.Q. anxious to cooperate in his susceptibility to authority and unable to comprehend the Miranda warnings and the import of his constitutional rights.

Despite the testimony of the psychologist, the evidence supports a finding that the appellant voluntarily confessed to the murder of Mr. Campisi. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting an inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge that the confession was voluntary need only be supported by substantial evidence and not to a moral certainty. Thompson v. State, Ala.Cr.App., 347 So.2d 1371, cert, denied, Ala., 347 So.2d 1377 (1977). When such a conflict occurs, great weight must be given to the judgment of the trial judge. His finding will not be disturbed on appeal unless the conclusion of voluntariness is contrary to the weight of the evidence or unless manifestly wrong. Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967); Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967); Smith v. State, Ala.Cr.App., 340 So.2d 889, cert. denied, Ala., 340 So.2d 895 (1976).

Under the facts and circumstances of this case we would be presumptive were we to hold that the appellant’s confession was involuntary, as a matter of law, because of his mental subnormality.

Ill

The appellant contends that the State of Alabama has improperly discriminated against him and other members of his class of mentally retarded criminal defendants in violation of his right to equal protection under the Fourteenth Amendment to the United States Constitution.

Insanity is a defense in a criminal case. However, neither mental abnormality nor subnormality constitutes an excuse for a criminal act. Neither precludes liability for crime where there exists the sufficient mental capacity to entertain the requisite criminal intent. Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957). Illiteracy is also no defense or excuse. Elrod, supra.

“The strength of a man’s mind has no bearing upon his responsibility for a criminal act, nor upon the inquiry of felonious intent, malice, and the like, if he is endowed with mind enough to discriminate between right and wrong; and the fact that he may, in common parlance, be of weak mind, standing alone, does not go to negative such discriminating intelligence.” Dean v. State, 105 Ala. 21, 24, 17 So. 28, 29 (1894).
* * * * * *
“(C)riminal incapacity is not established by a mere showing of weakness of intellect, a low order of intellect, susceptibility to suggestion, or a subnormal mentality. Neither is it sufficient to show that defendant is more ignorant and more stupid than common men, or is an illiterate, ignorant and passionate man.” Perkins, Criminal Law, pp. 878-879 (2nd ed. 1969).
* * * * * *
“Most courts have agreed that a defense of mental retardation is not acceptable unless the defendant, by reason of his condition, is unable to differentiate between right and wrong regarding the act in question.” 8 Creighton Law Review 622, 646 (1975), The Mentally Retarded Offender In Omaha — Douglas County.

Any modification of the rule as to the defense of insanity is a prerogative of the Legislature and not of the courts. Clayton v. State, 45 Ala.App. 127, 131, 226 So.2d 671 (1969).

In Alabama, by statute, all persons over fourteen years of age are presumed to be responsible for their acts. Section 15-16-2, Code of Alabama 1975. This presumption is not contrary to due process under the Fourteenth Amendment. Hutchens v. State, 45 Ala.App. 507, 232 So.2d 687 (1970); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The statute is constitutional and does not invade “any constitutional right of the defendant in imposing upon him the burden of proving the plea of insanity”. Martin v. State, 119 Ala. 1, 25 So. 255 (1898).

“That legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under the guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.” Ex parte Woodward, 181 Ala. 97, 101, 61 So. 295 (1913).

Because sanity is the normal condition of the human mind, the prosecution may proceed, in the first instance, upon the presumption that the defendant was sane and responsible when the act was committed. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895).

The facts of this case do not support the appellant’s contention that the Alabama Death Penalty Act denies him equal protection of the laws.

IV

The appellant contends that the trial court committed reversible error by admitting into evidence a photograph of the deceased made by the coroner at a time before the autopsy began, “mainly to show the face of Mr. Campisi to use for identification”.

Although the appellant alleges that the photograph shows “evidence of incisions made during autopsy, not alleged to have been inflicted by the appellant”, the actual photograph does not support such a statement. The coroner testified that he took the picture “at a time before the autopsy began”.

Photographs of the deceased are admissible as evidence, being proper aids to identification. Malachi v. State, 89 Ala. 134, 8 So. 104 (1889).

“This rule’s observance is not affected, one way or the other, by the fact that there is in the evidence given by the witness or witnesses no actual dispute as to the identity of the body of the deceased.” Sanders v. State, 202 Ala. 37, 79 So. 375 (1918).

See also Burleson v. State, 52 Ala.App. 399, 293 So.2d 317 (1974); Luschen v. State, 51 Ala.App. 255, 284 So.2d 282 (1973); Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965); Burgess v. State, Ala.Cr.App., 339 So.2d 121 (1976); Gilmore v. State, Ala.Cr.App., 346 So.2d 1193 (1977).

The photograph was not gruesome and would not tend to arouse passion or prejudice the jury. The trial court properly admitted the picture into evidence.

V

The final argument of the appellant is that, but for the confession of the accused, the state failed to prove the corpus delicti of the attempted robbery as charged in the indictment. It is contended that under the Alabama Death Penalty Statute various “aggravated” crimes are defined. In this case the state was required to show the requisite elements of an intentional killing committed in an attempt to perpetrate a robbery. The appellant argues that the only evidence of any attempted robbery was supplied by the confession. Because the state did not introduce independent, probative evidence to corroborate the appellant’s admission of the attempted robbery, the evidence is insufficient to support a conviction.

It is a settled principle of law that a mere extrajudicial confession, uncorroborated by other facts, is insufficient to show the corpus delicti and cannot support a conviction. Matthews v. State, 55 Ala. 187, 28 Am.Rep. 698 (1876); Reynolds v. State, Ala.Cr.App., 346 So.2d 979, cert. denied, Ala., 346 So.2d 986 (1977). However, it is equally as settled that inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti. Hill v. State, 207 Ala. 444, 93 So. 460 (1922); Bryant v. State, 33 Ala.App. 346, 33 So.2d 402 (1948).

Circumstantial evidence may afford satisfactory proof of the corpus delicti. The presentation of facts, from which the jury may reasonably infer that the crime charged was committed, requires the submission of such question to the jury. Johnson v. State, 247 Ala. 271, 24 So.2d 17 (1946); Taylor v. State, 276 Ala. 232, 160 So.2d 641 (1964). Reasonable inferences may furnish a basis for proof beyond a reasonable doubt. Royals v. State, 36 Ala. App. 11, 56 So.2d 363, cert. denied, 256 Ala. 390, 56 So.2d 368 (1952).

The facts in this case and the legal inferences springing from them fully support and corroborate the appellant’s confession. The evidence is therefore sufficient to support a conviction.

A review of the complete record convinces us that the appellant received a fair trial. We find no errors adverse and prejudicial to his substantial rights. His representation by court appointed counsel both at trial and on appeal is in accord with the highest standards of the legal profession. While this court is cognizant of the gravity and consequence of affirming a judgment sentencing a minor to death, the appellant’s actions display a malevolence and corruption well beyond his physical age. Under the law the sentence is authorized; under the facts the punishment warranted. The evidence of the appellant’s guilt is overwhelming and beyond all reasonable doubt. Therefore the judgment of'the trial court is affirmed.

AFFIRMED.

All Judges concur.

      . The appellant confessed to the killing of Mr. Bard, the taxicab driver, at the same time he gave his confession in this case.


source: Caselaw Access Project

author: BEATTY, Justice. JONES and SHORES, Justices ALMON, Justice BEATTY, Justice. JONES, Justice

license: Public Domain

text:
    In Re Timothy WATTERS v. STATE of Alabama. Ex parte Timothy Watters.
    77-676.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Rehearing Denied March 9, 1979.

      J. Wilson Dinsmore and D. Larry Waites, Birmingham, for petitioner.
    William J. Baxley and Charles A. Grad-dick, Attys. Gen., Montgomery, and James L. O’Kelley and J. Anthony McLain, Asst. Attys. Gen., Birmingham, for the State, opposed.
   BEATTY, Justice.

Certiorari was automatically granted in this “robbery-intentional killing” conviction under the Alabama Death Penalty Act, § 13-11-5, Ala.Code of 1975; Rule 39(c), ARAP.

The pertinent facts are found in the opinion of the Court of Criminal Appeals, Watters v. State, 369 So.2d 1262 (Ala.Cr.App., 1978). We reverse and remand.

The Court of Criminal Appeals has jurisdiction to review a decision in which the death penalty is imposed, §§ 12-3-9, 12-22-131, Ala. Code of 1975, and that Court has the duty to examine the entire record to determine whether any error exists prejudicial to the defendant. Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957). The terms of § 12-22-241, Ala. Code of 1975, authorizing the appellate court to consider any testimony seriously prejudicial even in the absence of objection, do not limit that duty to the transcript of the evidence. Cf. Lee v. State, supra.

On certiorari to the Court of Criminal Appeals, this Court will not review the findings of fact of the Court of Criminal Appeals but will review questions of law, which may include misapplication of law to the facts as found by that Court. Flannagin v. State, 289 Ala. 177, 266 So.2d 643 (1972).

In fulfilling our duty to review the opinion of the Court of Criminal Appeals for errors of law we have found that in its September Session of 1976 the Grand Jury of Jefferson County returned an indictment charging that the defendant Timothy Watters:

[D]id attempt to feloniously take Twenty Five Dollars and Seventy Five Cents of the lawful currency of the United States of America, . . . the personal property of Anthony Joseph Campisi, from his person and against his will, by violence . and the said defendant in the course of said attempt to commit such robbery, did intentially [sic] kill Anthony Joseph Campisi by shooting him with a shotgun, .

However, from the entry of judgment on April 13, 1977 it clearly appears that the defendant was found guilty of an offense not charged in the indictment:

This the 13th day of April, 1977, said jurors upon their oaths do say, ‘We, the jury, find the defendant guilty of Murder as charged in the indictment and fix his punishment at death It is therefore considered by the Court, and it is the judgment of the Court that said defendant is guilty of Capital Murder as charged in the indictment, in accordance with the verdict of the jury in this cause, . (emphasis added)

Nowhere in the indictment is Murder charged against the defendant; nowhere in the judgment is petitioner pronounced guilty of attempted robbery in which the victim is intentionally killed. Therefore, there is a fatal variance between the indictment and the judgment, and the judgment cannot stand. Aiola v. State, 39 Ala.App. 215, 96 So.2d 816 (1957). Further, even if Murder were charged against the defendant such an offense is not one for which the death penalty can be imposed because it is not listed in our Death Penalty Act, § 13-11-2, Ala.Code of 1975.

In § 15-17 — 1, Ala.Code of 1975 the legislature of this state provided for the jury’s finding of guilt for a lesser offense than that charged in the indictment:

When an indictment charges an offense of which there are different degrees, the jury may find the defendant not guilty of the degree charged and guilty of any degree inferior thereto or of an attempt to commit the offense charged; and the defendant may also be found guilty of any offense which is necessarily included in that with which he is charged, whether it be a felony or a misdemeanor.

However, it is clear from the terms of the Death Penalty Act that there are no lesser included offenses — such as murder — within the offense for which this defendant was indicted. Section 13-11-1, Ala.Code of 1975 provides:

Except in cases enumerated and described in section 13 — 11—2, neither a court nor a jury shall fix the punishment for the commission of treason, felony or other offenses at death, and the death penalty or a life sentence without parole shall be fixed as punishment only in the cases and in the manner herein enumerated and described in section 13-11 — 2. In all cases where no aggravated circumstances enumerated in section 13-11-2 are expressly averred in the indictment, the trial shall proceed as now provided by law, except that the death penalty or life imprisonment without parole shall not be given, and the indictment shall include all lesser offenses.

Because there were no offenses for which the defendant could be found guilty under the indictment other than attempted robbery in which the victim was intentionally killed, the trial court erred in entering judgment on the strength of a jury verdict finding the defendant guilty of murder and the Court of Criminal Appeals erred in affirming that judgment. Therefore this cause must be reversed and the cause remanded to the Court of Criminal Appeals for further proceedings not inconsistent with this opinion, and it is so ordered.

REVERSED AND REMANDED.

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

JONES and SHORES, JJ., concur specially-

ALMON, J., concurs specially.

MADDOX and FAULKNER, JJ., dissent.

JONES and SHORES, Justices

(concurring specially):

As in the case of Clements v. State, 370 So.2d 723 (Ala.1979), we concur in the result of the majority opinion to reverse the conviction and remand the case to the Court of Criminal Appeals.

As in Clements, the indictment — charging robbery when the victim is intentionally killed by the defendant — is good. The trial Judge’s oral instructions to the jury, except for the repeated use of the word, “murder,” is virtually a model jury instruction, evincing a comprehensive grasp of the Alabama Death Penalty Statute and its application, Unquestionably, “murder” was used to mean merely the killing of one human being by another. Indeed, we first felt that its use was not error because the context in which the trial Judge referred to the death or the killing as “murder” rendered its use harmless. But this analysis fails in the face of the trial Judge’s description of the charge in the indictment — “Now, this Defendant ... is charged with murder under the Alabama Death Penalty Act . . . ” — and the jury verdict form — “We, the jury, find the Defendant guilty of murder as charged in the indictment . . . ” See our concurring opinion in Clements v. State, supra.

As to the sentencing aspects of the statute in question, we still adhere to the views expressed in our separate dissenting opinions in Jacobs v. State, 361 So.2d 641 (Ala. 1978).

ALMON, Justice

(concurring specially).

I vote to reverse the judgment because the indictment charged that petitioner, inter alia, “did intentially [sic] kill . . . ” whereas the verdict found petitioner “guilty of Murder as charged in the indictment . ” The jury was not charged on the elements of murder. I consider the oral charge which refers to murder and intentional killing as being synonymous, to have been confusing and erroneous.

Clements v. State, 370 So.2d 723 (Ala.1979) is distinguishable because there the indictment and verdict were for first degree murder and the judge charged the jury on the elements of first degree murder.

ON REHEARING

BEATTY, Justice.

Justice Jones withdraws from special concurrence with Justice Shores and files dissenting opinion.

APPLICATION FOR REHEARING OVERRULED.

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

SHORES, J., concurs specially.

ALMON, J., concurs specially.

MADDOX, FAULKNER and JONES, JJ., dissent.

JONES, Justice

(dissenting):

On reconsideration of my position stated in the concurring opinion in this case, I have changed my mind and I would now vote to affirm.


author: BOWEN, Judge.

text:
    Timothy WATTERS v. STATE.
    6 Div. 730.
    Alabama Court of Criminal Appeals.
    March 27, 1979.
   After Remandment

BOWEN, Judge.

This judgment must be reversed and the cause remanded on authority of Ex Parte Timothy Watters (In re: Timothy Watters v. State of Alabama), 369 So.2d 1272 (Ala.1979).

REVERSED AND REMANDED.

All Judges Concur.


author: BOWEN, Judge. BOWEN, Judge.

text:
    Janet IVEY v. STATE.
    8 Div. 134.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied March 6, 1979.

      Jeff D. Smith and Jack B. Sabatini of Smith, Gaines, Gaines & Sabatini, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was convicted of murder in the second degree and sentenced to twenty-five years’ imprisonment for the shooting and death of her husband. The only issues raised on appeal concern the use of a life-size mannequin by the prosecution to demonstrate the trajectory of the bullet which killed the deceased and requiring the appellant to demonstrate the manner in which the pistol was held under the State’s theory of the homicide.

In its examination of state toxicologist John Kilburn, the prosecution used a “common mannequin representing a male figure” to demonstrate the path of the projectile through the body of the deceased. The witness performed the autopsy upon the deceased and was properly qualified as an expert. He testified that he traced the path of the projectile through the deceased’s body, how this was performed, and also that he “could show the jury from this figure the exact measurements of the wound that was made on the body” of the deceased. The deceased was shot in the chest. Kilburn testified that the entrance wound was consistent with a direct impact and was perpendicular to the body. The projectile went directly through the center of a rib and “from front to back, very slightly downward, a matter of a half inch, and there was very little to no deviation laterally. . . . ” The bullet lodged just under the skin of the victim’s back.

The witness also testified that the mannequin represented was approximately the same height as the deceased but “as far as the actual anatomy, or musculature, I couldn’t say for sure on that matter”. Kil-burn stated that because the projectile struck a rib he could not ascertain whether it continued on the same path or varied “a little bit” but that it could have done either one.

In the presence of the jury, holes were drilled in the mannequin corresponding to the entrance wound and the position where the projectile was found in the back of the deceased. A steel rod was inserted through these holes and the toxicologist testified that the rod represented the path of the projectile through the body of the deceased.

Defense counsel objected to use of the mannequin because “(i)t can’t be offered in evidence and can’t be moved as a human body, and it is erect and can’t squat or bend its knees or move as a human”.

In a statement given the police the appellant stated that the deceased asked her to bring him a pistol he had recently purchased. She went to the bedroom and got the weapon off the dresser. “When she got in the hallway she pulled the hammer back and Joe got up and told her, don’t baby, it’s loaded.” Then the pistol accidentally fired.

“A. She said she went in the bedroom and got the gun and come back down the hallway, and she cocked the hammer back on it, and that this is when he got up and told her that the weapon was loaded, and it went off.
“Q. And she was holding it in both hands about waist level?
“A. Yes, right like this, the same as she showed me.”

In her written confession, to which defense counsel specifically stated, “We don’t object to it”, the following account appears.

“I picked the gun up off the dresser. As I turned to go back around the door I pulled the hammer back. I thought that Joe was probably still on the couch. I never thought for one minute that the gun was loaded. He must have gotten up and started to the bathroom because when he saw what I did, he said Baby, the gun is loaded. He started straight toward me. I panicked and that’s all I remember. I heard the fire of the gun . . Joe said Oh God I’ve been shot.”

At trial the appellant testified that her husband had started down the hall when he was shot and after he was shot he fell against a wall. She stated that her written statement was the same as her trial testimony.

On cross examination of the appellant the State had her step from the witness stand in front of the jury and show the jury how she held the gun. The State then had the appellant take hold of the pistol and hold it up level with the rod protruding from the mannequin. In this position the appellant was holding the weapon at eye level. During the demonstration the appellant protested that “It might have been here, but it wasn’t” and that she “wasn’t that close to Joe”. Defense counsel objected to “any demonstration on the part of the defendant as to how she held the gun” because “(t)here is no relationship to what has been testified to and the situation bears no relationship”.

The appellant objects to this demonstration or experiment because it (1) forced her to incriminate herself and (2) since there was no evidence as to the position of the deceased at the time he was shot the demonstration bore no “substantial similarity” to the conditions of the actual occurrence as shown by the evidence.

I

The rule on the admissibility of experiments in open court is stated in Shows v. Brunson, 229 Ala. 682, 685, 159 So. 248, 251 (1935).

“Experiments or tests of this character in open court are usually within the discretion of the trial judge, guided by a sound judgment as to whether the result will be sufficiently relevant and material to warrant such procedure. 22 C.J. p. 790, § 899.
“Similarity of conditions, and a test that will go to the substantial question in hand, should appear.”

See also Hawkins v. State, 53 Ala.App. 89, 93, 297 So.2d 813 (1974). Both the scope and extent of the experiment, if allowed, rest within the sound discretion of the trial judge. The exercise of that discretion will not be reversed on appeal unless it has been clearly and grossly abused. Campbell v. State, 55 Ala. 80 (1876); C. Gamble, McElroy’s Alabama Evidence, § 81.02(1) (3rd ed. 1977).

While the conditions of the experiment and of the occurrence in issue should be substantially similar, they need not be identical. McElroy, § 81.01(4).

“A reasonable or substantial similarity suffices and only where the conditions are dissimilar in an essential particular should the evidence of an experiment be rejected. If we have a case where the conditions are not identical, then the dissimilarity goes to the weight of the evidence of the experiment but not to its admissibility.”

See also Eddy v. State, 352 So.2d 1161 (Ala. Cr.App.1977).

All the evidence, including the statements of the appellant, indicate that the deceased was standing when shot. There is no evidence that he “jumped, bent, flinched, squatted, or took any different position as he made his exclamation or just as the gun fired”. Even if there were some evidence to indicate such it would go to the weight rather than the admissibility of the demonstration.

Since the conditions were reasonably or substantially similar and the use of the mannequin was not calculated to unfairly prejudice the appellant, we find that the trial court did not abuse its discretion in allowing the demonstration.

II

The appellant also argues that her Fifth Amendment rights against self-incrimination were violated through .the manner in which she was cross examined by the prosecution. During her cross examination the appellant was required to hold the pistol in a manner consistent with the State’s theory of how the weapon must have been held according to the trajectory of the bullet. This was inconsistent with the manner in which the appellant testified she held the weapon on direct examination.

An accused on trial for a criminal offense cannot be required to give or furnish testimony against himself either by way of spoken words or by act. Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968); Dean v. State, 240 Ala. 8, 197 So. 53 (1940); Article I, § 6, Constitution of Alabama of 1901. However where an accused elects to testify for himself, he waives his constitutional right not to be compelled to give evidence against himself. Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 626, 2 L.Ed.2d 589 (1958); Lipscomb v. State, 32 Ala.App. 623, 29 So.2d 145 (1947); Green v. State, 218 Ala. 363, 118 So. 506 (1928); Carpenter v. State, 193 Ala. 51, 69 So. 531 (1915); Kelley v. State, 160 Ala. 48, 49 So. 535 (1909); Cotton v. State, 87 Ala. 103, 6 So. 372 (1889). A defendant who has introduced himself as a witness may be cross examined and compelled to do what would be material and competent of any other witness. Coates v. State, 253 Ala. 290, 45 So.2d 35 (1950); Smith v. State, 247 Ala. 354, 24 So.2d 546 (1946). “An accused who has testified in his own behalf may be cross-examined as to any facts or matters, even though collateral, which are inconsistent with the testimony given by him on direct examination, and tend to qualify or contradict such testimony, or to show its improbability.” 98 C.J.S. Criminal Law § 401(3) (1957). See also Nicholson v. State, 150 Ala. 80, 43 So. 365 (1907); Stevens v. State, 133 Ala. 28, 32 So. 270 (1902); Eaton v. State, 8 Ala.App. 136, 63 So. 41 (1913).

The general rule on requiring the accused to demonstrate an encounter, action, or position on cross examination is stated at 171 A.L.R. 1144, 1190.

“The right of the prosecution, upon cross examination of a defendant, to require him to give some physical demonstration of matters such as his actions or position at the time of the alleged offense, where he has voluntarily testified concerning those matters on his direct examination, has been sustained as proper cross-examination in quite a variety of circumstances, as' shown by the following cases. While not all of them mention the question of constitutional privilege, the general import of these cases appears to be that by voluntarily testifying to and opening up the matter on his direct examination, or perhaps merely by voluntarily becoming a witness in the case, the defendant had waived such privilege as he may have originally had against giving the particular demonstration.”

In Lumpkin v. State, 19 Ala.App. 272, 97 So. 171 (1923), it was held not error to require, upon cross examination, a defendant in a homicide case, who had become a witness in his own behalf, to illustrate before the jury how the fatal fight occurred by showing the motions and actions of the parties to the encounter, with the State’s attorney taking the part of the deceased. Also in Coates v. State, 253 Ala. 290, 45 So.2d 35 (1950), it was held not error to permit the appellant, at the request of the State during its cross examination and over the objection of defense counsel, to leave the witness stand and sit in a chair, in view of the jury, so as to better demonstrate the manner in which the appellant contended he was holding the gun at the time of its discharge.

The scope and extent of cross examination rest in the sound discretion of the trial court, Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969), as do the scope and extent of experiments and demonstrations. Campbell, supra; McElroy, §§ 81.-01(3), 81.02(1). As a general rule experiments and demonstrations should be permitted to be made in the courtroom in the jury’s presence where it reasonably appears that the experiment will aid the jury in ascertaining the truth, where there exists a substantial similarity of conditions and where the experiment will not unfairly prejudice the defendant.

We have carefully searched the record for error prejudicial to the appellant. Our review convinces us that the appellant received a fair trial and the judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.

ON REHEARING

BOWEN, Judge.

At the beginning of the in-court demonstration the State apparently inserted the rod protruding from the mannequin into the barrel of the pistol. The State then had the appellant take hold of the weapon. After the appellant stated that she was not “that close” to the deceased when the pistol fired, she was requested and did place herself at the distance from the mannequin that she thought she had been from the deceased. Upon request she held the pistol level with the rod from that position. We think that this demonstration was properly within the discretion of the trial judge.

The testimony and demonstration here reviewed did not run afoul of the rule stated in Crawford v. State, 262 Ala. 191, 192, 78 So.2d 291 (1955), and Padgett v. State, 49 Ala.App. 130, 136, 269 So.2d 147, cert. denied, 289 Ala. 749, 269 So.2d 154 (1972). This rule states that in a murder prosecution it is not permissible for a witness, including a medical expert, to draw conclusions for the jury as to the relative positions of the parties at the time of the shooting from a mere examination of the wounds. It is not competent for a witness, expert or nonexpert, to draw inferences for the jury from the slant or angle of the wound as to the relative positions of the combatants when the fatal shot was fired. “This would be invasive of the province of the jury and a matter of which they would be quite as competent to judge as the witness, having been given a description of the wound.” Mathis v. State, 15 Ala.App. 245, 248, 73 So. 122, 124 (1916).

However a properly qualified expert may testify to the “path of flight” or trajectory of the bullet, Wilbanks v. State, 42 Ala.App. 39, 151 So.2d 741, cert. denied, 275 Ala. 701, 151 So.2d 744 (1963). He may testify to the slant or angle of the gunshot wound and describe its character. Woods v. State, 54 Ala.App. 591, 310 So.2d 891 (1975); Mathis v. State, supra. An expert may testify about the direction from which the bullet was fired or the blow was struck, Blackmon v. State, 246 Ala. 675, 680, 22 So.2d 29 (1945), Richardson v. State, 37 Ala. App. 194, 65 So.2d 715 (1953), and may state the distance between the deceased and the barrel of the weapon at the time the fatal shot was fired. Straughn v. State, 270 Ala. 229, 121 So.2d 883 (1960).

We do not think that the demonstration in this case invaded the province of the jury. Though the appellant has not argued that the demonstration was defective for this reason, we have touched on this matter as a caution to other prosecutors who may attempt similar demonstrations. With these remarks the application for rehearing is due to be and is hereby overruled.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


author: PER CURIAM.

text:
    Ex parte Janet IVEY.
    78-375.
    Supreme Court of Alabama.
    May 4, 1979.
   PER CURIAM.

Writ denied.

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


author: BOWEN, Judge. TYSON, Judge,

text:
    Ernest Calvin PACE v. STATE.
    7 Div. 653.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied April 17, 1979.

      Charles Centerfit Hart, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   ON REHEARING

BOWEN, Judge.

In 1970 Pace’s appeal of his conviction for robbery was dismissed when he escaped from the penitentiary pending his appeal. Pace v. State, 45 Ala.App. 390, 231 So.2d 166 (1970). Three years later Pace filed a petition for writ of error coram nobis claiming that he was imprisoned in the city jail of Scottsboro, Alabama, on June 29, 1968, at which time the alleged robbery occurred for which he stands convicted. The trial court dismissed this petition on motion of the State without a hearing. On appeal from that dismissal, this court reversed and remanded finding that Pace was entitled to an evidentiary hearing. Pace v. State, 357 So.2d 384 (Ala.Cr.App.), cert. denied, 357 So.2d 386 (Ala.1978).

Such a hearing was held and Pace was represented by experienced and able counsel. After hearing all the testimony and reviewing the evidence the court found that Pace “has failed to establish facts to warrant setting aside his judgment of conviction” and denied the petition for writ of error coram nobis. This denial was affirmed without published opinion by this court on March 27, 1979. This opinion is in response to Pace’s motion under Rule 39(k), Alabama Rules of Appellate Procedure, in his application for rehearing.

The robbery was committed on July 29, 1968. In support of his contention that he was in the Scottsboro City Jail at this time Pace presented a number of exhibits.

1. A federal detainer from the United States Marshal’s Office in Birmingham, Alabama, issued June 28, 1968, directed to the Scottsboro City Police stating that Pace “is reported to be in your custody”.
2. A Jackson County arrest warrant showing that Pace was arrested on July 2, 1968, and committed to jail. On the face of the warrant is typed “Booked in City Jail, 6/24/68 (1) Carrying Concealed Weapon; (2) Suspicion of Federal Parole Violation”.
The trial court found that other than this notation, “there is no record indicating petitioner to have been in jail in June of 1968”. Considering all the evidence the court found that this notation was “an unauthorized alteration of a copy of the original warrant”.
3. A writ of arrest from Jackson County showing that Pace was in jail on July 19, 1968.
4. A letter from the Circuit Clerk of Jackson County dated December 30,1976, certifying credit for presentence jail time of 7 months and 27 days.
A. The records of a federal writ of ha-beas corpus filed by Pace — including the “Recommendation of the Magistrate” which states, “While on parole, on June 24, 1968, the petitioner was arrested in Scottsboro, Alabama, on a charge of carrying a concealed weapon. He was then under investigation by state authorities for two armed robberies. A detainer as a federal parole violator was lodged against the petitioner with the Scottsboro City Police Department by the United States Marshal for the Northern District of Alabama.”
B. Documents from the United States Parole Commission. These records show that Pace was arrested on July 2, 1968, in Scottsboro for robbery and that a detain-er was placed with the Jackson County Sheriff for Pace on July 25, 1968.

At his hearing, Pace called the Chief of the Scottsboro City Police who testified that on July 2, 1968, Pace was brought into the City Jail and also transferred to the County Jail that same date. The Chief further stated that:

“If Mr. Pace had been confined in the Scottsboro City Jail prior to this date here or any other time after that then there would have been a docket sheet in his file, and the only one that we have in his file is July 2, 1968.” (Emphasis added)

The Jackson County Sheriff confirmed that Pace was placed in the county jail on July 2, 1968, and charged with armed robbery and grand larceny. He stated that to the best of his knowledge and recollection Pace was not in the county jail on June 29, 1968.

In conclusion the record supports the finding of the lower court that there was no record presented which shows that Pace was incarcerated on June 29, 1968, as alleged.

In a coram nobis proceeding the petitioner bears the burden of submitting clear, full, and satisfactory proof. “This burden extends beyond a mere balancing of probabilities to clearly and convincingly satisfy the court . . . .” Summers v. State, 366 So.2d 336, 343 (Ala.Cr.App.1978), cert. denied, 366 So.2d 346 (Ala.1979). The record supports the trial judge’s conclusion that “the petitioner has failed to establish facts to warrant setting aside the judgment of conviction”. The evidence in this case is neither clear nor convincing that Pace was in jail on June 29, 1968.

II

At the coram nobis hearing the trial court refused to allow Pace to present evidence concerning his court-appointed trial counsel’s alleged ineffective representation at his original trial. In his petition Pace charged that trial counsel, Hubert H. (Hub) Wright, was reluctant and negligent in representing him. These allegations apparently stem from the fact that during co-defendant Duncan’s trial the indictment was amended with Duncan’s consent.

In Duncan’s trial, Wright introduced a record from the probate office showing that the grocery store robbed was actually Sa-vette’s Food Store and not Savette’s Food Store, Inc. as charged in both the indictment against Pace and the one against Duncan. In Pace’s trial all the evidence was that the name of the corporation was Savette’s Food Store, Inc.

At neither Pace’s nor Duncan’s trial was the existence of any corporation denied by sworn plea as required by Section 12-21 — 201, Code of Alabama 1975, which was then effective as Title 15, Section 315, Code of Alabama 1940. Without such a plea evidence disputing the existence of an alleged corporation is inadmissible. Dennis v. State, 16 Ala.App. 115, 75 So. 707 (1917).

Additionally Wright did move “to exclude the evidence and discharge the defendant on the ground that there is a fatal variance between the pleading and proof” after Jim Livingston, the store manager, testified that he did not know whether the stolen money belonged to “Charles Todd or the corporation”. After repeated examination by both sides on this matter, Livingston finally testified that he was mistaken when he made this statement, that Todd was an officer of the corporation, and that the money belonged to the corporation. Under these circumstances the trial judge properly overruled defense counsel’s motion to exclude. Also I do not think that the failure to properly contest the existence of the corporation which “owned” the money which was stolen in the grocery store robbery amounts to incompetence of counsel.

We have read Pace’s original trial record and found no evidence that trial counsel was incompetent although there were no pretrial motions, no motion for a new trial and no defense was presented. Counsel Wright did conduct a sifting cross examination of the State’s two witnesses, made numerous objections, motions to exclude, and did file written requested charges.

While the jury was deliberating counsel Wright stated “for the record” that, “I fully advised him (Pace) on more than one occasion in the jail to all of his constitutional rights, that he had, of course, the right to a trial and have the witnesses brought before him, the right to plead guilty or not guilty, the right to a jury trial and the right to testify or not to testify and the same could not be held against him . . .” The jury found Pace guilty and sentenced him to fifteen years’ imprisonment for a crime which then earned a sentence of from ten years to death. Duncan’s defense for the same robbery was insanity and he received a ten year sentence.

Although Pace was not allowed to offer evidence on Wright’s alleged incompetency, at the coram nobis hearing Attorney Wright testified that he could not locate his “old file” and that he recalled “something about the possibility of an alibi witness, a sister or sister-in-law somewhere in North Alabama . . . something about that he (Pace) might have been in North Alabama at the time it happened”. Wright discussed the case with the District Attorney, saw the D.A.’s file, and received an offer of ten years if Pace would plead guilty. Rowan Bone helped Wright strike the jury. When Wright represented Pace he had been practicing sixteen years which involved more criminal than civil practice. Wright testified, and Pace’s trial record supports the fact, that one of the State’s witnesses positively identified Pace and Wright was unable to “shake” him under thorough cross examination. The evidence is undisputed, as Pace testified, that Pace “most certainly did not” mention to Wright anything about having been in jail at the time of the robbery. Pace stated that he did not become aware of this fact himself until “I had records served on me by the U.S. Parole Officer in Federal Penitentiary in Atlanta, Georgia, in 1970”.

Challenges based on inadequacy of counsel constitute grounds for coram nobis. Summers, 366 So.2d at 341. However, it is somewhat contradictory that Pace should charge his own appointed counsel with negligence in preparing his defense when Pace himself was “totally unaware” (as he testified) that he was (allegedly) in jail in another county when the robbery occurred. This alibi Pace only discovered two years after his trial. Although Pace’s trial was held only 4 months and 5 days after the robbery was committed, Pace’s explanation as to why this defense wasn’t discovered is basically that he simply did not realize or remember that he was in jail at that time.

For these reasons the trial judge did not err in refusing to permit Pace to prove the alleged incompetence of counsel.' It should be noted that the same judge (Hon. James B. Waid) who tried Pace for robbery in 1968 conducted and decided this coram nobis proceeding.

Ill

Finally Pace alleges that the trial judge, at the coram nobis hearing, erred by not allowing him to present evidence on the possibility of a tainted pretrial identification process.

Two witnesses testified for the prosecution at Pace’s trial. Jim Livingston, the store manager, testified that he was robbed by two men. However he could not identify Pace as one of the two robbers. Seventeen year old Wilmer Campbell, a store employee, positively identified Pace.

Pace’s trial record shows that Wilmer did see Pace in the courthouse hall the day of the trial after he had been told by an investigator to see if he recognized Pace. However Campbell specifically denies that he viewed any lineup, showup, saw any picture of Pace or that anyone pointed out Pace to him. Campbell’s testimony indicates that the investigator told him to see if he could recognize Pace in the courthouse but did not tell him where Pace was or describe Pace to Campbell. In short the evidence shows that there was no tainted pretrial identification procedure and furthermore that the only witness to identify Pace had an independent basis for his identification.

We have searched Pace’s trial record and found no reversible error. The judgment of the trial court is affirmed and appellant’s application for rehearing is overruled.

APPLICATION FOR REHEARING OVERRULED.

HARRIS, P. J., and DeCARLO .and BOOKOUT, JJ., concur.

TYSON, J., concurs specially.

TYSON, Judge,

concurring with opinion.

I concur in the opinion in this cause as prepared by my brother, Judge Bowen. Additionally, I wish to point out that the failure to challenge the alleged corporate status in the trial court prevents this court from reviewing such matter on appeal. Jeter v. State, 339 So.2d 91 (Ala.Cr.App.), cert. denied 339 So.2d 95 (Ala.), and the authorities cited therein.

Moreover, in an indictment for robbery, ownership of the stolen property is properly laid in the party in possession, either as owner, or bailee or agent. It is not necessary that title be in the person robbed. Mays v. State, 335 So.2d 246 (Ala.Cr.App.), and authorities therein cited.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Johnny Lee COLEMAN.
    No. 61936.
    Supreme Court of Louisiana.
    April 9, 1979.

      Ben F. Day, John Samaha, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinquefield, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

This appeal, from three aggravated rape convictions and a conviction of forcible rape, all pursuant to a single jury trial, raises serious issues regarding proper join-der of offenses, denial of severance, and the admissibility of defendant’s confessions. The East Baton Rouge Parish Grand Jury returned a six count indictment against defendant Johnny Lee Coleman wherein it charged five aggravated rapes and the first degree murder of the rape victim named in the fifth count of the indictment. Various defense motions to quash the indictment and sever the counts charged therein were unavailing and all six counts were tried in a single trial proceeding to one jury. Coleman was found guilty of the aggravated rapes charged in Counts one, two and four of the indictment and guilty of forcible rape on Count three. The jury was unable to reach a verdict on the fifth and sixth counts (the aggravated rape and first degree murder of the fifth victim); hence, mistrials were declared in connection with these counts. The defendant was sentenced to fifty years imprisonment on each of Counts one, two and four, and twenty years’ imprisonment on Count three, all of the four prison terms to run consecutively. Ten assignments of error are argued upon this appeal. These assignments present two basic arguments in support of reversal of the convictions and sentences.

The first argument deals with the claims of improper joinder and denial of severance. It requires that we briefly outline some of the factual details of the crimes. The rapes charged in Counts one through four of the indictment occurred within a one month time period and within a two mile radius of the Louisiana State University campus. The rape-murder charged in Counts five and six took place on the Louisiana State University campus, on the fourth floor of a women’s dormitory, five months before the first of the four rapes charged in the preceding counts of the indictment. All of the crimes charged in the indictment took place during the early morning hours. In each instance referred to in the indictment’s first four counts, the perpetrator menacingly admonished his victim (in Counts one, two and four there were, additionally, threats to kill). In each of the rape incidents charged in the first four counts, the attacker demanded money and injured his victim, at least slightly, apart from the sexual attack. In all of the incidents charged in the indictment’s first four counts the rapist referred to the women as “bitches”. Additional similarities existed between or among some, but not all, of the first four counts: in counts one, two and three the defendant demanded food; in counts one, two and four, he ransacked the apartments he entered; in counts one, two and three he was barefooted; in counts one and four he tried on shoes present in the apartments; in counts one and four he asked about car ownership; in counts one and three he asked his victims whether they derived pleasure from the sexual acts; and in counts one, two and four he ripped out the phone connections. In the case of the rape-murder charged in counts five and six, it was established that the room in which the rape and murder took place was largely undisturbed and exhibited no signs of ransacking or á struggle.

Prior to trial, the defense filed a motion to quash the indictment, urging improper and prejudicial joinder of offenses. The defense also filed a motion for severance prior to trial, which motion was re-urged numerous times during trial, prior to the presentation of evidence of each successive count charged in the indictment.

Code of Criminal Procedure Article 493 governs the joinder of offenses by providing as follows:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

The joinder of the six offenses with which Coleman was charged did not violate the provisions of the code article. The first five counts all charge aggravated rapes, offenses which are plainly “of the same or similar character”. The first degree murder was contemporaneous with the rape charged in count five and therefore formed a part of the “same act or transaction” as relates to that offense. Thus, all six offenses could properly be joined in a single indictment. State v. Nelson, 357 So.2d 1100 (La.1978).

We next consider the rulings denying the requested severance of offenses. Code of Criminal Procedure Article 495.1 sets forth the basis upon which a trial judge is required to grant a severance of offenses charged in a single indictment or bill of information. It provides:

“The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”

To determine the necessity of granting the severance sought by a defense motion, the trial court must decide whether, in view of the number of the offenses charged and the complexity of the evidence, the fact finder could distinguish the evidence and apply the law intelligently to the offense charged in each count. State v. Proctor, 354 So.2d 488 (La.1977). Another issue which the trial court must resolve in view of joinder based on the relationship of the offenses because they are of the “same or similar character” is whether each offense would be admissible as similar acts within the contemplation of R.S. 15:445 and 446. Under our holding in State v. Carter, 352 So.2d 607 (La.1977) a determination that multiple counts charging offenses of the same or similar character may be simultaneously tried ordinarily requires that the counts be mutually admissible as legitimate “other crimes” evidence under State v. Prieur, 277 So.2d 126 (La.1973).

Because we conclude that the rape-murder incident charged in Counts five and six of the indictment was not sufficiently similar to the rapes charged in Counts one through four to warrant simultaneous trial, which will be discussed at some length hereinbelow, we need not decide whether the number of crimes charged or the complexity of the evidence would require a severance to facilitate a fair trial in connection with each offense. Nevertheless, we do entertain some doubts regarding these factors, notwithstanding the state’s diligent effort to compartmentalize the evidence connected with each offense, because even in cases such as this, where the elements of the crimes are few and all but one of the crimes being tried were the same type of criminal offense, calling for the application of the identical law, there exists inherent difficulty in sifting through eight days of testimony dealing with five separate criminal transactions. However, as just indicated, our decision that severance was required in order to afford defendant a fair trial is based upon the lack of demonstrated similarity between the criminal transaction resulting in Counts five and six and those upon which the rape charges of Counts one through four are based. The aggravated rape-murder charged in Counts five and six was committed in February of 1976, five months before the first of the other four aggravated rapes (these other four were committed within a month’s time period). The elements of the February rape argued to be common to some or all of the four rapes committed in July and August, entry through a window (this was the mode of entry in Counts three and four), seizure of the victim and admonition not to scream (these factors are alleged to have been revealed from the contents of defendant’s confession to the rape-murder), general geographic location, the violence of the sexual assault and resulting or related injuries and the commission during the hours between midnight and dawn are common to such a large number of rapes that we are unwilling to find the substantial similarity necessary to render Counts five and six triable with the first four counts over the defense objection and motion for severance. Because we have decided that the rape-murder charged in Counts five and six of the indictment was not shown to have been sufficiently similar to the incidents during which the rapes charged in Counts one through four took place, there is no need to determine whether in this instance the evidence of each of the “other offenses” was relevant to an actual issue in each case, or whether the evidence of the “other offenses” was more probative than prejudicial. See State v. Carter, supra.

By its strenuous urging that the Court consider that State v. Carter, supra, had not been decided at the time that the trial court ruled upon the severance motions in this case, the state has effectively raised the issue of whether Carter should apply to cases tried before that decision was rendered. The applicability of the interpretation of Article 495.1 set forth in Carter to trials conducted before its effective date depends on whether the rule goes to the integrity of the fact-finding process. See State v. King, 347 So.2d 1108 (La.1977).

The holding of Carter makes the propriety of joint trials of crimes jointly charged on the basis of their identical or similar character largely dependent on whether each crime would be admissible in the trial of others, applying Prieur standards. Carter’s rationale clearly demonstrates that the rule directly relates to the accuracy of the verdict. The Court best articulated this view in State v. Hamilton, 364 So.2d 585 (La.1978) when it stated as follows:

“In interpreting the statutory command that the trial court shall grant a severance whenever it will promote a fair trial, this Court in State v. Carter, 352 So.2d 607, 614 (La.1977) held that normally a joint trial of several offenses will not promote a fair trial if the defendant will
be prejudiced by the introduction of evidence of other offenses which the rules of evidence would exclude in the interest of a fair trial if the offenses were tried separately.”

Without squarely addressing the issue, the Court has heretofore applied the Carter rule to cases in which the trial was conducted prior to the effective date of Carter. See, e. g., State v. Lewis, 358 So.2d 1285 (La. 1978) and State v. Mitchell, 356 So.2d 974 (La.1978). The mere fact that Carter had not been decided when the motions for severance were considered in this case does not alter the fact that denial of severance was legally incorrect.

Moreover, the error of the trial court cannot be viewed as harmless. The state’s “harmless error” argument in State v. Hamilton, supra, made on the basis of the victims’ unequivocal identifications of the defendant as perpetrator of the crimes as to which guilty verdicts were returned was rejected by this Court, which noted:

“This [harmless error] argument is difficult to consider as having been made seriously because it ignores a basic constitutional limitation upon this Court’s appellate jurisdiction. ‘In criminal matters, its appellate jurisdiction extends only to questions of law.’ La.Const.1974, Art. 5, § 5(C). . . . Because we have no way of knowing whether separate juries would have reached the same results in separate trials, and because in criminal appeals we are prohibited from reviewing the evidence and making a factual determination, we cannot declare that the failure to sever the offenses was harmless or inconsequential to the actual or a just outcome of the prosecutions against the defendant.”

The same rationale applies in this case, where the victims of Counts one through four likewise made unequivocal identifications of Coleman.

For all of the reasons aforestated, the trial court’s error in refusing to sever the trial of Counts five and six from that of Counts one through four requires reversal of the convictions and sentences we here review.

Having found error mandating reversal of defendant’s convictions and sentences in the trial court’s denial of severance we need rest our determination to reverse defendant’s convictions and sentences on no other error. However, we address defendant’s assignments regarding his confessions in order to assure that in any subsequent trial of the offenses which were the subject of the trial we review, the scope and extent of the state’s burden of proof will be clearly understood. The defendant’s second major argument urges that the trial court erred in refusing to listen to the substance of defendant’s various taped confessions before ruling on admissibility and in denying the motion to suppress the confessions. The record reveals that numerous statements were taken from the defendant over a three week period of time. One of the two officers primarily involved in the interrogation of Coleman testified that the total interrogation time exceeded ten hours. In a motion seeking the appointment of a sanity commission defendant sought to have that body determine his mental condition at the time of interrogation and confession. Testifying at the motion to suppress the confessions, one of the doctors appointed, Dr. Steele, set forth that he considered the issue of Coleman’s sanity at the time of the confessions but reached no conclusion in that regard. On the issue of present sanity and sanity at the time of the offenses, he testified that he found Coleman psychotic, with a history compatible with long standing, serious psychiatric disorder of a psychotic type and opined that Coleman was probably psychotic at the times of the commission of the offenses, probably psychotic for the previous two years. He testified that there is some correlation between psychosis and inability to distinguish right from wrong. Examination of Dr. Steele concluded with questioning concerning his diagnosis of Coleman in the sanity commission report, a diagnosis of paranoid schizophrenia of the hostile subtype.

Dr. Silva, the second member of the sanity commission appointed by the court, verified that his examination focused on Coleman’s mental state at the time of the confessions as well as his present sanity and sanity at the time of the confessions as well as his present sanity and sanity at the time of the offenses. Dr. Silva characterized Coleman as mildly to moderately retarded, not overly psychotic but tending toward paranoid thinking. Asked if Coleman’s condition affected his capacity to understand abstract concepts such as one’s right to remain silent, or one’s right to the presence of any attorney prior to making any statements, and questioned about the inability of a person of Coleman’s type to comprehend the depth and magnitude of these rights while nevertheless acknowledging understanding, Dr. Silva responded:

“Well, in the particular case of this particular person, this is also aggravated by the fact that he is a skillful manipulator [who] will tend to ingratiate with people . . . think[ing] that he might be able to manipulate somebody [thereby]. ... He might do something to kind of buy off this person, without really realizing in what deep water they are getting.”

Ascertaining that Dr. Silva had listened to the tape of a confession given by Coleman, the defense elicited testimony that Coleman, in the doctor’s opinion, could not appreciate the depth and magnitude of the rights he was heard to waive on the tape. The doctor opined that Coleman understood the words, but that he was incapable of understanding the crucial rights he waived. Dr. Silva unequivocally asserted his opinion that Coleman did not knowingly and intelligently waive his Miranda rights when he confessed on the tape to which the doctor listened.

After the two doctors testified at the suppression hearing, the defense presented the testimony of a PhD in Psychology, the director of testing at Southern University, who administered numerous tests to Coleman. Apparently using the same test results upon which Dr. Silva based (in part) his conclusion that Coleman was mildly to moderately retarded, this psychologist, Bradley, characterized Coleman as severely retarded. Asked if he considered the defendant capable of appreciating the significance of the rights he heard Coleman waive on a tape of a confession defendant made, Bradley opined that Coleman would not have any knowledge of the import of waiving his Miranda rights.

The two officers primarily involved in the interrogation of Coleman, who secured from him the confessions sought to be suppressed, testified that there were no threats or promises made to Coleman to induce his confessions. Officer Gill testified that Coleman impressed him as mentally “sharper” than the average person he arrested during the year and felt that he actually had the tenth grade education he claimed. Officer Dupuy indicated by his testimony that Coleman seemed “very” intelligent to him, “more than some.”

Contrary to the state’s strenuous argument at the close of the hearing on the motion to suppress Coleman’s statements, the state, not the defense, has the burden of establishing beyond a reasonable doubt that the confessions were made freely and voluntarily. State v. Weinberg, 364 So.2d 964 (La.1978). Where insanity is an issue, in the context of a proceeding to determine the voluntariness of a confession, (and, thus, its admissibility) the state must prove that the defendant’s mental defect did not preclude the voluntary giving of a confession. State v. Trudell, 350 So.2d 658 (La. 1977).

Substantial doubts regarding Coleman’s ability to freely and voluntarily waive his privilege against self-incrimination and consequently give a confession of his own free will are engendered by the testimony of the two appointed sanity commission doctors and the psychologist testifying on defendant’s behalf. Notwithstanding the fact that we accord such great weight to the trial judge’s determination on the issue of the state’s satisfaction of its burden of proof, that determination is not to be upheld when it is unsupported by the evidence. See State v. Rankin, 357 So.2d 803 (La.1978). In ruling adversely to the defendant on the motion to suppress the confessions, the judge stated that:

“ . . . when you get right down to it . the testimony of the defendant himself, the court feels that he knows what he is doing. He knew what he was doing, the evidence is clear on that by his own testimony. His testimony really convinces the court in connection with the other testimony that the confessions were free and voluntary. . . . ”

Careful examination of the testimony of the defendant Coleman corroborates that of the officers that there were no threats, promises, or other inducements made to procure the confessions. Nevertheless, the asserted errors raise serious issues, considering the substantial defense evidence otherwise tending to prove that Coleman’s confessions were not freely and voluntarily given. In State v. Volk, 369 So.2d 128 (La.1979), we quoted from State in the Interest of Dino, 359 So.2d 586, 591 (La.1978) language gleaned from Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) to the effect that in determining voluntariness the court must consider whether the accused who is confessing is ‘ . . . aware not only of his rights, but also of the consequences of foregoing them . . . ” The members of the sanity commission appointed by the court and the psychologist who tested Coleman to determine his mental capacity gave testimony wholly at odds with a conclusion that Coleman was capable of (and did have) an awareness of the consequence of foregoing his rights. The question of whether the testimony of the two officers and Coleman sufficiently supports such a conclusion to the extent that a determination of volun-tariness could be based upon it is a serious one. Furthermore, it would have been preferable had the trial judge acceded to the defense request that he listen to the content of the taped confessions as well as to the initial portions containing the waiver of rights. This review would have enabled him to consider evidence from the defendant’s own mouth produced at the actual time the confessions were made as well as the defendant’s hearing testimony given five months after the confessions were obtained. Because of the deficiencies we perceive in connection with the admissibility ruling, we find it advisable, even though reversing the convictions on another ground, to set aside that ruling at this time. This action requires that the admissibility issue be determined anew, in light of the views expressed herein, the evidence previously adduced and such other evidence as the state or defendant may introduce, in the event that Coleman is retried for one or more of these crimes.

Decree

For the reasons assigned, the defendant’s convictions and sentences are reversed and the ease remanded for re-trial.

REVERSED AND REMANDED.

SUMMERS, C. J., and CULPEPPER and MARCUS, JJ., dissent.

       Chief Judge William A. Culpepper participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . State v. Carter, supra, requires that for offenses to be legitimate “other crimes” within the contemplation of the Prieur line of cases, the offenses must be sufficiently similar, the evidence of the “other crime” must be relevant to a real issue, and the prejudicial effect must not outweigh the probative value.

      . As may be inferred from our outline of the factual details of the offenses earlier in the opinion, we are unimpressed with a zealous defense argument that the rape charged in Count three varied in so many particulars from those charged in Counts one, two and four that it is not a similar act within the contemplation of R.S. 15:446 and the jurisprudence interpreting that statute.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Donna PARSLEY.
    No. 62872.
    Supreme Court of Louisiana.
    April 9, 1979.

      Lawrence 0. Guillory, Graham N. Smith, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Bernard N. Marcantel, Dist. Atty., Charles R. Cassidy, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Donna Parsley was charged by bill of information on May 9, 1978, with possession with intent to distribute marijuana on March 3,1978, in violation of La.R.S. 40:966 A(l). After trial by jury, she was found guilty as charged and sentenced to serve six years at hard labor. On appeal, defendant relies upon twenty-two assignments of error for reversal of her conviction and sentence. Finding merit in one of the assigned errors, we need not consider the others.

Defendant contends the trial judge erred in denying her motion for a continuance (Assignment of Error No. 8).

At the arraignment on May 9, 1978, defendant entered a plea of not guilty to the charge of possession with intent to distribute marijuana. Trial was set for June 12, 1978.

Prior to the start of trial on June 12, 1978, defendant informed the trial judge that she wished to withdraw her former plea of not guilty to the charge of possession with intent to distribute marijuana and to enter a plea of guilty to the lesser included offense of possession of marijuana. At this point, defendant was called to the stand. She testified that, at the time she was arrested with her boy friend in his automobile, she was not aware of the presence of marijuana in his vehicle and that she had not entered into any negotiations for the sale of the marijuana. The arresting officer then testified that defendant had, in fact, asked him if he wanted any marijuana to smoke and it was with her that he made arrangements where to meet for the transaction. Defendant’s boy friend also testified. He stated that it was he who asked the arresting officer if he wanted any marijuana, made arrangements as to where to meet, and thereafter gave the officer the two bags of marijuana. He denied that defendant talked to the officer. After these witnesses testified, the trial judge declared that he would not accept defendant’s plea of guilty to possession of marijuana and that she would have to stand trial for the offense charged in the indictment, viz., possession with intent to distribute marijuana.

After a brief recess, court was reconvened and the state called the instant case for trial. Defendant thereupon moved for a continuance grounded upon the trial judge’s refusal to accept her plea of guilty to possession of marijuana made pursuant to a plea bargain with the state. In addition, defendant alleged that the state had made a pretrial agreement with defense counsel to call another case for trial (in which defense counsel was also enrolled) prior to the calling of the instant case for trial. The trial judge denied defendant’s motion for a continuance.

La.Code Crim.P. art. 712 provides that a timely filed motion for continuance “may be granted, in the discretion of the court, in any case if there is ground therefor.” We have consistently held that the granting of a motion for continuance is a matter committed to the trial judge’s discretion, and that a denial of the motion will not be reversed unless an abuse of discretion is demonstrated. State v. Benson, 368 So.2d 716 (La.1979); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Johnson, 343 So.2d 155 (La.1977). However, this court will not allow the denial of a motion for continuance to stand if it is clear that the trial court exercised that discretion unreasonably. State v. Benson, supra; State v. Winston, 327 So.2d 380 (La.1976). Whether a refusal to grant a continuance was justified depends primarily on the circumstances of a particular case. State v. Winston, supra.

At the outset, it should be noted that defendant was charged and arraigned on May 9, 1978, for an offense allegedly committed on March 3, 1978. Trial was set at arraignment for June 12, 1978. On the day of trial, defendant attempted to withdraw her former plea of not guilty and to enter a plea of guilty to a lesser included offense. She alleges that this was pursuant to a plea bargain with the state. In a memorandum in opposition to defendant’s motion in arrest of judgment, the state expressly admitted its part in the alleged plea bargain. It is clear, therefore, that defense counsel’s reliance upon this plea bargain was reasonable and that the trial judge’s refusal to accept the guilty plea was an unexpected occurrence. Moreover, the state does not dispute defendant’s allegation that it had entered into a pretrial agreement with defense counsel to the effect that it would call another case (in which defense counsel was also enrolled) for trial prior to the instant case. The state, however, in calling the instant case for trial apparently ignored this agreement.

Under the circumstances, we consider that defense counsel was genuinely surprised by these unexpected events and that his application for a continuance was not interposed merely for the purpose of delay. Rather, defense counsel’s reliance on the plea bargain agreement and the prearranged order of trial with the state was reasonable. Accordingly, we consider that the trial judge’s denial of defendant’s motion for a continuance was arbitrary and an abuse of discretion, resulting in a miscarriage of justice and prejudice to the substantive rights of the accused. La.Code Crim.P. art. 921. Hence, we must reverse.

DECREE

For the reasons assigned, the conviction and sentence are reversed and the case is remanded to the district court for further proceedings.

SUMMERS, C. J., dissents.

      . We are aware that La.Code Crim.P. art. 707 provides that an application for a continuance shall be by written motion whereas, here, the motion was oral. However, due to the fact that the occurrences that allegedly made the continuance necessary arose unexpectedly, defense counsel had no opportunity to prepare a written motion. Moreover, the record reflects that the trial judge was fully aware of the grounds upon which defendant’s motion was based and ruled thereon. Under the circumstances, we consider that the trial judge’s denial of defendant’s motion for a continuance is before us for review.