author: TYSON, Judge. BOOKOUT, Judge, TYSON, Judge. BOOKOUT, Judge,

text:
    Roy Frank CLEMENTS, alias v. STATE.
    7 Div. 575.
    Court of Criminal Appeals of Alabama.
    May 16, 1978.
    As Corrected On Denial of Rehearing July 7, 1978.

      Jack Floyd and James E. Hedgspeth, Jr. of Floyd, Keener & Cusimano, Rowan S. Bone and J. Edward Cunningham, Gadsden, for appellant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Roy Frank Clements was indicted under Alabama’s Death Penalty Statute (Act No. 213, General Acts of Alabama, 1975, Title 15, Sections 342(3) — 342(11), Code of Alabama 1940, as amended) for the robbery and first degree murder of one Dora Mae Ford. The jury found the appellant guilty as charged and fixed punishment at death. The trial court thereafter conducted a post-conviction hearing on the aggravating and mitigating circumstances as required by law. The trial judge then pronounced judgment which left punishment at death by electrocution.

William O. Bragg, Coroner of Etowah County, testified that on November 8, 1976, he went to the residence of one Roy Malone in the Shady Grove Community. Bragg stated that he found the body of one Dora Mae Ford lying on the living room floor in the residence. According to Mr. Bragg, Mrs. Ford’s head had been nearly severed from her body except for a two inch tract of flesh behind the neck which held the head intact with the body. The cause of her death was due to massive hemorrhage.

Mr. Marlin Corbett Bartlett testified that on November 8, 1976, around 3:00 p. m., he and his wife drove to the residence of Mr. Roy Malone for a visit. He indicated that they pulled in Mr. Malone’s driveway and noticed a Ford pickup which belonged to one Gilbert Beck. Seeing the pickup in the driveway, Mr. Bartlett and his wife left.

Mr. Ted Malone stated that he was the son of now deceased Mr. Roy Malone. He indicated that on November 8, 1976, around 4:30 p. m., he went to his father’s home. Mr. Malone related that he walked in the kitchen door and found a large puddle of blood on the floor. He stated that he found the deceased, Mrs. Dora Mae Ford, lying on the living room floor. He then telephoned the operator and asked her to get the police, which she did.

Mr. Don Longshore, an investigator with the Etowah County Sheriff’s Department, testified that he, along with Arnold Hatley and Donald Wiggins, went to the home of appellant in Boaz, Alabama, around 7:00 p. m., on November 8, 1976. He stated that appellant’s wife answered the door and they went inside. The appellant’s wife went to the bathroom door and told appellant that some men wanted to talk with him. According to Mr. Longshore, he asked her to gather up the clothes that appellant wore that day, which she did. He stated that he advised the appellant of his “Miranda” rights (R. p. 230) and placed him under arrest. The appellant was transported to the county jail where he signed a waiver of rights form. Mr. Longshore indicated there were no threats, coercion, intimidation, or inducement made or offered the appellant in order to obtain a statement or get his signature on the waiver of rights form. Mr. Longshore then related that the appellant made a statement which he, Longshore, wrote down and had appellant read over and then affix his signature thereto.

Mr. Roy S. Hale, a member of the Eto-wah County rescue squad, testified that on November 9, 1976, he found a brown paper bag on Sand Mountain in Boaz, Alabama. He turned the paper bag over to Mr. Leslie Cox of the Etowah County Sheriff’s Department.

Mr. Leslie Cox testified that the paper bag found by Mr. Hale contained a lady’s pocketbook. He stated that he turned the items over to Mr. Don Longshore. Mr. Longshore was recalled to testify and he said that the bag also contained a Timex watch in addition to the pocketbook.

Mrs. Tessie Malone, the wife of Mr. Ted Malone, testified that the pocketbook found in the paper bag belonged to the deceased, Mrs. Dora Mae Ford. She stated that the value of the pocketbook was approximately ten dollars.

Mrs. Jenny James, the deceased’s daughter-in-law, testified that she was with Mrs. Ford when she purchased the Timex watch, identified as State’s Exhibit No. 10 (found in the brown paper bag). According to Mrs. James, the value of the watch was seven dollars.

Mrs. Mary Ann Thrasher, the appellant’s mother-in-law, testified that on November 8, 1976, she was living with one Mr. Gilbert Beck. Mrs. Thrasher stated that on this date she and Mr. Beck went to the appellant’s home at approximately noontime. She indicated that Mr. Beck and the appellant discussed going over to an old man’s house and getting some money. She stated that the two of them left around 2:00 or 2:30 p. m. and did not return for approximately an hour and a half. According to Mrs. Thrasher, the two men mentioned that a yellow car drove up to the old man’s residence and so they left. Mr. Beck further related again of going to the old man’s house and getting some money.

Mrs. Thrasher stated that she and her daughter then went over to Gilbert Beck’s trailer where she lived. Upon arrival there, Mr. Beck and the appellant were sitting at a table upon which lay a billfold and a purse. Mr. Beck took seventy dollars out of the purse and split the sum between her and her daughter (appellant’s wife). Then, Mr. Beck, Mrs. Thrasher, her daughter and the appellant drove to Sand Mountain where Mr. Beck threw a paper sack containing the billfold and purse over a cliff. When they returned to the trailer, Mr. Beck burned the clothing he was wearing earlier that day.

On cross-examination, Mrs. Thrasher stated that Mr. Beck was sharpening a knife on a whetrock shortly before he and appellant left the second time. She also testified that Beck and appellant left both times that day in Mr. Beck’s pickup truck.

Dr. Vann Pruitt, Jr., State Toxicologist, testified that he performed a post-mortem on the body of one Dora-Mae Ford. Dr. Pruitt stated that the results of the postmortem showed a “. . . laceration in the neck that commenced slightly behind the left ear and ranged around the front of the neck, terminating on the right side of the neck that completely severed all of the musculature and the blood vessels within the neck” (R. p. 315). The cause of death was extensive and massive hemorrhage from the severing of the arteries and veins in the neck. Dr. Pruitt indicated that the laceration could have been caused by a bladed instrument of some type.

Mr. John Case, State Toxicologist, testified that he examined a pair of blue jeans, which had been identified as those the appellant had worn on November 8,1976. He stated that two small blood stains were found on the jeans. The stains were identified by Mr. Case as Group 0, human blood. Also, he indicated that the deceased’s blood group was type 0.

On cross-examination, Mr. Case testified that several human hairs were taken from Mrs. Dora Mae' Ford’s hand. These hairs, according to Mr. Case, had been removed in a violent manner, but did not show any similarities to hair samples taken from appellant.

The appellant then made a motion to exclude the State’s evidence, which was overruled.

The appellant testified that on November 8,1976, Gilbert Beck and Mary Ann Thrasher came to his home around noon. He stated that Mr. Beck asked him to drive over to Mr. Malone’s home with him to inquire about purchasing a puppy. The appellant agreed because he knew that Mr. Malone had some tin which he desired to purchase. En route to Mr. Malone’s home, he related that Mr. Beck stated that Mr. Malone had some money and that he was thinking about taking some of it. Upon arrival, Mr. Malone was standing in the carport. Mr. Beck asked- him about the puppy and Mr. Malone replied that he had gotten rid of them. Malone also told the appellant that he did not have any tin for sale, but he knew a Mr. Bloodworth who did. About this time, a yellow car drove up in the driveway and he and Mr. Beck left and returned to his home. The appellant said he took a nap and then went back over to Mr. Malone’s house with Mr. Beck to find out where Mr. Bloodworth lived. Once again, he related that Mr. Beck mentioned getting some money from Mr. Malone. When they arrived, Mr. Malone asked them in, and they all went in the kitchen where they were joined by Mrs. Dora Mae Ford. The appellant testified that Mr. Malone was standing by the sink, preparing some food for his dog when Mr. Beck grabbed him by the ankles and drug him to the floor. Mr. Malone hollered for Mrs. Ford to get a gun. Then the following occurred (R. pp. 358-360):

“Q. All right. What, if anything — Roy, when that happened, when he said ‘Miss Mae, get a gun,’ what did you say or do?
“A. I got Miss Mae by the arm.
“Q. What did you say to her, if anything?
“A. I told her please don’t get a gun. “Q. All right, did you say anything to Beck?
“A. I told him to leave Mr. Malone alone.
“Q. All right, what did he do? What did he do?
“A. He cut him.
“Q. He cut him. When did you first see a knife?
“A. Then.
“Q. Where did he cut him? Where did he cut him, Roy? In the neck?
“A. (Witness indicating.)
“Q. In the neck?
“A. Yes, sir.
“Q. All right, when he cut him was there blood?
“A. Yes, sir.
“Q. What was Miss Mae doing?
“A. Screaming.
“Q. What did you do?
“A. I ran out the door.
“Q. There has been some evidence that you said — Were you sick?
“A. Yes, sir.
“Q. When you ran out the door where did you go?
“A. I run past the truck.
“Q. Roy, did you cut Mrs. Ford?
“A. No, sir.
“Q. Did you cut Mr. Malone?
“A. No, sir.
“Q. Did you have any part in doing it? “A. No, sir.
“Q. All right, you say you ran out? “A. Yes, sir.
“Q. Where did you go?
“A. Ran right past the truck.
“Q. All right. Then what did you do, if anything?
“A. I turned around and got in the truck.
“Q. How long was it after you did that before you saw Gilbert Beck?
“A. Just seconds shortly. I don’t know how long it was. It was real short.
“Q. All right, where did you see him?
“A. He come out of the door.
“Q. What, if anything, did he have in his hands?
“A. He had a purse and wallet.
“Q. Is that the purse right there?
“A. Yes, sir.
“Q. All right. Where were you seated in the truck?
“A. Passenger side.
“Q. Were you sick?
“A. Yes, sir.
“Q. Did Gilbert Beck have any blood on him?
“A. Yes, sir.”

The appellant testified that he and Mr. Beck then returned to his trailer. At the trailer Mr. Beck poured gasoline over his bloody clothes and burned them. After burning his clothing, the appellant stated that he, his wife, Mr. Beck, and Mrs. Thrasher drove to Sand Mountain where Mr. Beck threw a brown paper sack off a cliff.

I

The appellant asserts that the Alabama Death Penalty Statute (Act No. 213, Acts of Alabama, 1975) is unconstitutional because the trial jury could not consider the aggravating or mitigating circumstances, thus the death penalty is mandatory and therefore violative of the Eighth and Fourteenth Amendments to the United States Constitution.

The constitutionality of the present Alabama Death Penalty Statute, supra, has been upheld by this court as against this same contention in the following cases: Jacobs v. State, Ala.Cr.App., 1977; and subsequently upheld in Jacobs v. State, Ala.Cr.App., 371 So.2d 429, remanded for further proceedings; Ritter & Evans III v. State, Ala.Cr.App., 361 So.2d 654; Cook v. State, Ala.Cr.App., 369 So.2d 1260, Ms. December 6, 1977; Wilson v. State, Ala.Cr.App., 371 So.2d 932; Beck v. State, Ala.Cr.App., 365 So.2d 985; and Williamson v. State, Ala.Cr.App., 370 So.2d 1054. The appellant has not asserted any additional grounds for invalidating the statute in question which this court has not previously considered, thus we adhere to the views heretofore expressed on this question.

II

The appellant contends that the Alabama Death Penalty Statute is unconstitutional in that it does not provide for comparative appellate review of sentencing.

Title 15, Section 382(10), Code of Alabama 1940 (Recompiled 1958), now Section 12-22-241, Code of Alabama 1975, provides as follows:

“Hearing and determination in appellate court. — -In all cases of automatic appeals the appellate court may consider, at its discretion, any testimony that was seriously prejudicial to the rights of the appellant, and may reverse thereon even though no lawful objection or exception was made thereto. The appellate court shall consider all of the testimony and if upon such consideration is of opinion the verdict is so decidedly contrary to the great weight of the evidence as to be wrong and unjust and that upon the ground a new trial should be had, the court shall enter an order of reversal of the judgment and grant a new trial, though no motion to that effect was presented in the court below. (1943, p. 219, § 10, appvd. June 24, 1943.)”

As Judge Harris pointed out in Jacobs, supra, the Supreme Court of Alabama, in the past thirty-five years, has reviewed approximately ninety-five death cases and has reversed twenty-five of them for various reasons, including excessive punishment, and also where the verdict was contrary to the great preponderance of the evidence.

This court in Evans and Ritter v. State, Ala.Cr.App., 361 So.2d 654, expressly pointed out that we would also weigh the aggravating and mitigating circumstances independently. Therefore, appellant’s contention is without merit.

Ill

The appellant contends that the trial court erred in charging the jury on conspiracy, aiding and abetting, principal and accessory, and also in allowing the district attorney to make certain remarks in his opening statement and closing argument as to these matters.

This court, in Morton v. State, Ala.Cr.App., 338 So.2d 423, at 427, cert. denied, 338 So.2d 428, stated:

“The law in this State is well settled that when two or more persons, by prearrangement or on the spur of the moment, enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a co-conspirator, and if the purpose of such enterprise is carried out, each is guilty of the offense committed, whether he did any overt act or not. Positive testimony is not necessary to prove community of purpose. It is the duty of the jury to determine whether such exists, and the extent of it, from the conduct of the parties and the testimony in the case. Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950). Neither is the accused’s presence at the scene of the crime necessary. All persons concerned in the commission of a felony, whether they directly commit the act, or aid or abet in its commission, though not present, must be tried and punished as principals. Title 14, § 14, Code of Alabama 1940; Mitchell v. State, 51 Ala.App. 411, 286 So.2d 85 (1973).”

Also, see Williamson, supra; Thigpen v. State, Ala.Cr.App., 355 So.2d 392, affirmed, Ala., 355 So.2d 400; and Jacobs, supra, where this court expressly upheld the trial court in instructing the jury on the law in these matters.

IV

The appellant contends that the trial court erred in overruling his motion to exclude the State’s evidence in refusing to give the requested general affirmative charge and in denying his motion for a new trial because the State did not prove a prima facie case.

First, the appellant asserts that there was no evidence presented by the State which established that anything was taken from Mrs. Ford before she died. In Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962), the Alabama Supreme Court held that the fact that the victim was dead at the time the property was taken would not militate the crime of robbery if the intervening time between the murder and the taking formed a continuous chain of events. See also Baker v. State, Ala.Cr.App., 344 So.2d 547 (1977). In the instant case the intervening time, if any there be, formed a continuous chain of events.

Second, the appellant asserts that in order for a conviction of robbery to be sustained, a demand for property must be proven. The three essential elements of the crime of robbery are: (1) felonious intent, (2) force or putting in fear, and (3) the taking and carrying away of the personal property of another from his person or in his presence, with all three elements occurring in point of time. Baker, supra; Moore v. State, 57 Ala.App. 668, 331 So.2d 422; Crutcher v. State, 55 Ala.App. 469, 316 So.2d 716; Tarver v. State, 53 Ala.App. 661, 303 So.2d 161; Tunstill v. State, 33 Ala.App. 460, 34 So.2d 857, cert. denied, 250 Ala. 421, 34 So.2d 859.

A demand for personal property is not a required element of proof in order to make out a prima facie case of robbery. There was sufficient evidence presented by the State to enable the jury to find that the appellant did in fact rob the deceased, Miss Dora Mae Ford. Hence, the trial court’s rulings are correct.

The appellant contends that the indictment under which he was convicted did not state a crime or an offense contrary to the law for which he could be convicted and that said indictment was duplicitous.

The indictment under which the appellant was convicted reads as follows (R. p. 601) (Omitting formal parts):

“The Grand Jury of said County charges that before the finding of this Indictment, Roy Frank Clements, alias Roy F. Clements, alias Roy Clements, whose name to the Grand Jury is otherwise unknown than as stated, feloniously took one (1) lady’s purse, of the value of $10.00; one (1) lady’s Timex wrist watch, of the value of $6.95; one (1) coin purse, of the value of $2.95, and $ .34, lawful United States coins, of the value of $ .34, all of the aggregate value of $20.24, the property of Dora Mae Ford, from her person or in her presence, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same, and during the course of said robbery the said defendant did unlawfully and intentionally, and with malice aforethought, kill Dora Mae Ford, the victim of said robbery, by cutting the said Dora Mae Ford with a knife, contrary to law and against the peace and dignity of the State of Alabama.”

The indictment did not, as appellant contends, charge him with two separate offenses in one count. Under Section 13-11-2, Code of Alabama 1975, the appellant was charged with the murder of Mrs. Dora Mae Ford, committed during the course of a robbery. Although both the intentional killing and the robbery must be proven to sustain a conviction, such proof under the indictment constitutes one offense.

The appellant also assigns as error the trial judge’s instructing the jury on the elements of first degree murder. According to appellant, the language in the statute speaks of an “intentional killing,” not first degree murder. If this was error, it was harmless. Such charge to the jury can only be advantageous to appellant since second degree murder and first degree manslaughter are also intentional killings and the jury did not receive instructions as to either one of these two classes of homicide. Thus, there was a much greater burden of proof on the State than the statute itself required.

YI

The appellant next asserts that the Alabama Death Penalty Act is unconstitutional because it imposes on the trial judge the responsibility of “commuting the death sentence.” He also asserts that such authority under Amendment 38 to the Constitution of Alabama 1901, and Article 5, Section 124, of said Constitution, specifically grants such authority only to the Governor.

This Court, speaking through Judge De-Carlo in Beck v. State, Ala.Cr.App., 365 So.2d 985 expressly answered this contention. In Beck, supra, Judge DeCarlo noted:

“Under our death penalty statute, the question of sentence is not considered until the determination of guilt is made by the jury at the guilt phase of the bifurcated hearing. Once the jury finds the defendant guilty of one of the aggravated offenses, it fixes the punishment at death. However, it is the trial judge, who, at a separate hearing, determines whether or not the defendant is to suffer death or life imprisonment without parole. The verdict of the jury is advisory only. No sentence exists until the pronouncement by the trial judge at the conclusion of the sentence hearing. It is for this reason the court cannot be said to be commuting a sentence of death imposed by the jury, but, in truth and in fact, it is sentencing the accused after a jury’s finding of guilt:
“We note, however, that once this sentence has been imposed by the trial judge at the sentencing hearing, it can be commuted by the governor of this State af-terwards, at any time, even up to the time of execution.
“In view of the foregoing, we are of the opinion that Alabama’s new death penalty statute is constitutionally sound under both the United States and the Alabama Constitutions.”

VII

Finally, the appellant assigns as error the trial judge’s stating to the jury in his oral charge that the appellant was charged with “. . . murder in the first degree under circumstances of aggravation” (R. p. 462). Also, the jury verdict card read (R. p. 465):

“THE COURT: (Reading) ‘We, the jury, find the defendant, Roy Frank Clements, guilty of first degree murder with aggravated circumstances as charged in the indictment, and we fix punishment at death. Grady B. Goss, Foreman.’ ”

In view of our opinion in Jacobs, supra, we find no error as to either of these matters.

After careful examination of this record, as required by law, most specifically where the death penalty is involved, we find that the procedures here mandated by the Alabama Statutes fully comport with constitutional demands of the Eighth and Fourteenth Amendments to the United States Constitution.

The judgment of conviction and sentence of death as to this appellant is in all respects

AFFIRMED.

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

BOOKOUT, J., dissents with opinion,

BOOKOUT, Judge,

dissenting:

The trial court s oral charge to the jury was erroneous and properly objected to. The error was compounded by giving the jury an invalid form verdict which was then used by the jury.

This court’s opinion in Jacobs, supra, is not authority for the instant holding which summarily accepts the trial court’s charge and verdict as proper. In neither of the Jacobs cases was the form of the verdict challenged. Likewise, as pointed out in Jacobs, supra:

“. . . Appellant did not reserve an exception to the oral charge of the Court ♦ % * * *
“It has been firmly established by both this Court and the Supreme Court of Alabama that in the absence of an exception to the Court’s oral charge nothing is presented for review on appeal. The rule applies with equal force under our Automatic Appeal Statute in death cases. .” (Citations omitted.)

This court also stated in the Jacobs case, supra, that no exceptions were reserved to the oral charge and no written instructions were requested by the defense. Therefore, neither of those cases, nor dicta contained therein, are authority for the holding of this court in Section VII of the instant opinion.

Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), several felonies carried a possible death penalty in Alabama, among which were: kidnapping for ransom (Title 14, § 7, Code of Ala. 1490); robbery (Title 14, § 415); rape (Title 14, § 395); carnal knowledge of a girl under twelve years of age (Title 14, § 398); nighttime burglary of an occupied dwelling (Title 14, § 85); setting off explosives near an inhabited dwelling, vessel, etc. (Title 14, § 123); and, of course, murder in the first degree (Title 14, §§ 314, 318).

Since Furman and Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), it is apparent that the death penalty may not be imposed except in aggravated cases where a human life is taken. Thus, in felonies where the victim is not killed, such as rape as in Coker, supra, and in kidnapping, robbery, burglary, etc., the death penalty will not be available to the State. The legislature set about to reimpose the death penalty in certain aggravated offenses by enacting Act No. 213, Acts of Ala.1975, approved September 9, 1975, now § 13-11-1 through 13-11-9, Code of Ala.1975.

Section 13-11-2 enumerates the aggravated offenses for which the death penalty may now be imposed. It should be noted that the traditional non-murder capital felonies only become capital felonies once again by the aggravating circumstance “when the victim is intentionally killed by the defendant.” Such aggravating circumstance is spelled out in each of the felonies set out in § 13-ll-2(a), subsections (1), (2), (3), (4), (8), and (9).

The offenses of aggravated murder are set out in other, separate subsections of § 13-ll-2(a). The offense of murder may be aggravated in several different ways, such as: the victim being a peace officer on duty; killing for pecuniary gain; where two or more individuals are killed; where the victim is a public official; etc. Thus the death penalty is not provided for in the traditional cases of first degree murder.

In the instant case, the appellant was indicted under § 13-ll-2(a)(2), “Robbery . when the victim is intentionally killed by the defendant.” (Emphasis supplied.) The offense is robbery, the aggravating circumstance is the intentional killing of the victim. The appellant was not indicted and tried for first degree murder as the trial court charged the jury. The jury should have been instructed on the elements of robbery and the definition of an “intentional killing.” An “intentional killing” is not synonymous with the definition of first degree murder.

Thus acting under the court’s erroneous instructions, the jury returned a verdict which was not responsive to the issues. Aiola v. State, 39 Ala.App. 215, 96 So.2d 816 (1957). When the jury returned the verdict of “. . . guilty of first degree murder with aggravated circumstances . . .,” it found the appellant guilty of an offense not charged in the indictment. The appellant properly raised the issue in the trial court and on appeal, and therefore we are now faced with an issue which was not before us in the Jacobs cases. This court cannot properly allow a defendant to be deprived of life or liberty where we are clearly presented with the fact that the guilty verdict rests upon a crime not charged in the indictment. I therefore dissent.

APPENDIX 1

IN THE CIRCUIT COURT OF ETOWAH COUNTY, ALABAMA

STATE OF ALABAMA * VS. * CASE NO. 12749 ROY FRANK CLEMENTS *

DECREE

In accordance with law, the Court held a hearing on October 7, 1977 to determine whether or not the defendant would be sentenced to death in accordance with the verdict of the jury or be sentenced to life imprisonment without parole.

The defendant was present with his attorneys and evidence was presented and arguments advanced.

The Court finds from all the evidence and the jury’s verdict that the defendant was guilty and is guilty of First Degree Murder committed during a robbery, in which the. victim was intentionally killed. This capital felony has all the ingredients of First Degree Murder, and the jury was charged on First Degree Murder with all its ingredients and elements.

Defendant claims that this capital felony was committed by another person and his participation was relatively minor. The Court does not feel that defendants actions in the prevention of the victim from getting a gun was a relatively minor participation.

Some evidence of domination by another person was presented, but this is not considered by the Court to be so substantial to ■ overcome the aggravating circumstances.

The Court finds that this capital felony of First Degree Murder was committed while the defendant was engaged or was an accomplice in the commission of a robbery.

The court further finds that this capital felony was committed for pecuniary gain.

The Court further finds that this capital felony was especially heinous, atrocious and cruel.

The Court finds all these aggravating circumstances to be present and finds no reasons to change the verdict of the jury fixing the punishment at death.

DONE THIS THE 13 DAY OF OCTOBER, 1977.

/s/James B. Ward

CIRCUIT JUDGE

Appendix 2 to follow.

APPENDIX 2

On Rehearing

TYSON, Judge.

Appellant’s counsel presents this Court with a motion to expunge and correct certain statements made in its first opinion on rehearing. That opinion is withdrawn and the following is substituted in place thereof.

Appellant’s counsel calls attention to the provisions of § 13 — 11—2(b), Code of Alabama 1975, which reads as follows:

“Evidence of intent under this section shall not be supplied by the felony-murder doctrine.”

Our consideration of the evidence in this cause and of the foregoing statute leads us to the firm conclusion that Roy Frank Clements was an active participant in the murder of Mrs. Dora Mae Ford, having twice gone to the Malone residence with Beck, having pursued Mrs. Ford inside the residence, and having otherwise participated in her murder.

While both Beck and Clements, each sought to place the blame on the other for the use of the pocketknife in slitting the throats of the victims, the evidence indicates that each actively participated.

In brief, this Court did not in its original consideration, and does not now, rely upon the felony-murder doctrine to imply evidence of intent in this cause. To the contrary, Clements’ active participation in the Ford murder supplies the requisite intent for an intentional killing necessary under § 13 — 11—2(a), Code of Alabama 1975, which is the aggravated offense of robbery when the victim is intentionally killed by the defendant.

In addition to the foregoing, this Court has carefully considered all other assertions of error raised on rehearing, and we are of the opinion that these were properly treated in our original opinion.

OPINION CORRECTED AND EXTENDED, APPLICATION OVERRULED.

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

BOOKOUT, J., dissents.

BOOKOUT, Judge,

dissenting:

I adhere to my original dissent in this cause. As to the issue addressed in the court’s extended opinion on application for rehearing, I have additional comments.

The sole and simple reason why the Code does not allow the felony-murder doctrine to supply intent is because intent is not an element of the felony-murder doctrine. At common law, any homicide occurring during the commission of any felony made all participants guilty of murder whether the killing was intentional or not. Alabama’s first degree murder statute, § 13 — 1—70, Code of Ala.1975, is a modification of the old common law. The felony-murder doctrine, by that section, applies only to homicides “committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery or burglary.” Intent to kill is not an element of that doctrine. Thus, that doctrine could hardly supply intent for the instant charge of “robbery or attempts thereof when the victim is intentionally killed by the defendant.” Therefore, if the new capital felony statute is to be applied to accomplices, it must be by some other doctrine of the law.

Section 13-9-1, Code of Ala.1975 (formerly Title 14, § 14) states:

“The distinction between an accessory before the fact and a principal, between principals in the first and second degrees, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals, as in the case of misdemeanors.”

(Emphasis supplied.)

The accomplice statute has been applied to all felonies, both capital and non-capital, in the past. It has been applied to charge an accomplice as a principal likewise in cases where specific intent to commit a crime must be charged on the part of the principal. In order to convict an accomplice of murder pursuant to that statute, it has been necessary to show that the accomplice had a previous understanding to kill or injure the deceased, or had knowledge of the intent to kill on the part of the co-defendant. In Jordan v. State, 81 Ala. 20, 1 So. 577 (1887), the Supreme Court stated:

“. . . When a particular intent or formed design is requisite to constitute an offense, knowledge of its existence, and a common purpose to perpetrate the offense, must be shown before a person can be convicted of aiding and abetting. We so held on the former appeal. — Jordan v. The State, 79 Ala. 9; State v. Hildreth, 51 Amer.Dec. 369, and notes.”

In Tanner v. State, 92 Ala. 1, 9 So. 613 (1890), the Court stated:

. . The accomplice, as we have seen, is criminally responsible for acts which are the direct, proximate, natural result of the conspiracy formed. He is not responsible for any special act not within the scope of the common purpose, but grows out of the individual malice of the perpetrator. — 1 Wharton Crim.Law, § 397.”

Since the appellant cannot be brought within the purview of the new capital felony statute by way of the felony-murder doctrine, the only vehicle remaining is the accomplice statute. It is my opinion that the accomplice statute does bring an aider and abettor within the purview of the capital felony statute. Whether Clements was an aider and abettor must be determined from the evidence. Clements was the only witness as to what transpired during the commission of the crime in question. In my opinion, his testimony differs from the details of his participation as set out in the extended opinion on application for rehearing. The court cannot apply § 13-11— 2(a)(2) by merely making the assertion that the accomplice was “an active participant in the crime” where intent is an essential element. I do believe the appellant is subject to the capital felony statute via the accomplice statute in the instant situation. He could be charged equally with Beck for the murder of Mrs. Ford even though he did not personally do the killing. Under the facts set out in the record, the jury could infer that Clements had reason to know before going to the residence that Beck was sharpening his knife for a killing should such become necessary to effect the planned robbery. Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976).

The capital felony statute allows the trial judge to consider as an aggravating circumstance that “the capital felony was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit, rape, robbery, burglary, or kidnapping for ransom.” It likewise allows the circuit judge to consider as a mitigating circumstance the fact that “the defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.” Those references within the capital felony statute, coupled with § 13-9-1, supra, (the accomplice statute), convinces me that Clements could be tried, convicted, and sentenced to death under the capital felony statute provided the jury was charged as to the correct statute and returned a valid verdict. However, I still adhere to my original dissent that the trial judge charged the jury as to the wrong offense, and the jury returned a verdict for an offense not charged in the indictment.

      . This Act is now 13-11-2 through 13-11-9, Code 1975.

      . See Appendix 1 attached hereto.

      . Appellant’s confession in Appendix 2 attached hereto.

      . Mrs. Ford, deceased, was Mr. Malone’s housekeeper.

      . Under this Code section, the accused is indicted for the crime of robbery with the “aggravating circumstance” of an intentional killing.


source: Caselaw Access Project

author: BLOODWORTH, Justice. MADDOX, Justice

license: Public Domain

text:
    In re Roy Frank CLEMENTS v. STATE of Alabama. Ex parte Roy Frank Clements.
    No. 77-643.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Rehearing Denied March 30, 1979.

      Jack Floyd and James E. Hedgspeth, Jr., Rowan S. Bone and J. Edward Cunningham, Gadsden, for petitioner.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State, opposed.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State, on rehearing.
   BLOODWORTH, Justice.

This petition for writ of certiorari to the Court of Criminal Appeals was granted because the death penalty was imposed as punishment and the judgment of conviction and sentence to death was affirmed by that Court. Rule 39(e) A.R.A.P. We affirm in part, reverse in part, and remand because the jury found the petitioner guilty of a charge entirely different from that charged in the indictment, and, moreover, a charge for which the death penalty may not be imposed under § 13-11-2, Code of 1975.

We affirm the holdings in the Court of Criminal Appeals Opinion, viz: I, II and VI that the Alabama Death Penalty Statute is constitutional; III that the trial court did not err in giving certain instructions to the jury; and, IV that the trial court did not err in refusing petitioner’s motion to exclude, request for affirmative charge and motion for new trial. There is no holding V in the opinion.

We now proceed to examine and express our view as to holding VII respecting the trial court’s instructions and jury verdict on the charge of “murder in the first degree under aggravated circumstances.”

The Indictment, in pertinent part, reads as follows: “The Grand Jury of said County charges that before the finding of this Indictment Roy Frank Clements, alias Roy F. Clements, alias Roy Clements, whose name to the Grand Jury is otherwise unknown than as stated, feloniously took one (1) lady’s purse, of the value of $10.00; one (1) lady’s Timex wrist watch, of the value of $6.95; one (1) coin purse, of the value of $2.95, and $.34 lawful United States coins, of the value of $.34, all of the aggregate value of $20.24, the property of Dora Mae Ford, from her person or in her presence, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same, and during the course of said robbery the said defendant did unlawfully and intentionally and with malice aforethought, kill Dora Mae Ford, the victim of said robbery, by cutting the said Dora Mae Ford with a knife, contrary to law and against the peace and dignity of the State of Alabama.”

The indictment clearly charges one of the “Aggravated offenses for which death penalty to be imposed,” namely § 13-11— 2(a)(2), Code of 1975,

“(2) Robbery or attempts thereof when the victim is intentionally killed by the defendant;”

It is of no matter that the indictment alleges that the killing was done “unlawfully and intentionally and with malice aforethought,” elements of the old first degree murder statute, rather than charging that the killing was done “intentionally,” an element of § 13—ll-2(a)(2). The indictment simply requires the state to assume a greater burden of proof than it was required to bear under the statute. It is thus that we agree with that part of IV of the Court of Criminal Appeals majority opinion, authored by Judge Tyson, treating this particular contention of petitioner as harmless error, if error at all.

There are several long-settled rules of construction to which we are bound in our review of this cause.

A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i. e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).

Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).

One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing Young’s Case, 58 Ala. 358 (1877).

No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.

It seems to us to be abundantly clear that the express language of the Alabama Death Statute makes it a capital offense to rob or attempt to rob “when the victim is intentionally killed.” Thus, it is for the aggravated offense of robbery when the victim is intentionally killed, not murder under aggravated circumstances, that the death penalty may be imposed under § 13-ll-2(a)(2).

As Judge Bookout in his dissent so clearly points out (and we adopt this portion of his opinion), viz:

“Prior to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), several felonies carried a possible death penalty in Alabama, among which were: kidnapping for ransom (Title 14, § 7, Code of Ala.1940); robbery (Title 14, § 415); rape (Title 14, § 395); carnal knowledge of a girl under twelve years of age (Title 14, § 398); nighttime burglary of an occupied dwelling (Title 14, § 85); setting off explosives near an inhabited dwelling, vessel, etc. (Title 14, § 123); and, of course, murder in the first degree (Title 14, §§ 314, 318).
“Since Furman and Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), it is apparent that the death penalty may not be imposed except in aggravated cases where a human life is taken. Thus, in felonies where the victim is not killed, such as rape as in Coker, supra, and in kidnapping, robbery, burglary, etc., the death penalty will not be available to the State. The legislature set about to reimpose the death penalty in certain aggravated offenses by enacting Act No. 213, Acts of Ala.1975, approved September 9, 1975, now § 13-11-1 through 13-11-9, Code of Ala.1975.
“Section 13-11-2 enumerates the aggravated offenses for which the death penalty may now be imposed. It should be noted that the traditional non-murder capital felonies only become capital felonies once again by the aggravating circumstance ‘when the victim is intentionally killed by the defendant.’ Such aggravating circumstance is spelled out in each of the felonies set out in § 13-11-2(a), subsections (1), (2), (3), (4), (8), and (9).
“The offenses of aggravated murder are set out in other separate subsections of § 13-11 — 2(a). The offense of murder may be aggravated in several different ways, such as: the victim being a peace officer on duty; killing for pecuniary gain; where two or more individuals are killed; where the victim is a public official; etc. Thus the death penalty is not provided for in the traditional cases of first degree murder.
* * * * * *
“Thus acting under the court’s erroneous instructions, the jury returned a verdict which was not responsive to the issues. Aiola v. State, 39 Ala.App. 215, 96 So.2d 816 (1957). When the jury returned the verdict of ‘. . . guilty of first degree murder with aggravated circumstances . . .,’ it found the appellant guilty of an offense not charged in the indictment.”

As we have already noted, the petitioner was indicted under § 13-11 — 2(a)(2), “Robbery or attempts thereof when the victim is intentionally killed by the defendant . . ”

The aggravated offense then is robbery, “when the victim is intentionally killed.” Although here the petitioner was additionally charged with the unlawful, intentional killing of the victim with malice aforethought, we have already noted this was not reversible error. Having been so charged, the jury had to be instructed on the elements of robbery and the definition of an unlawful, intentional killing with malice aforethought. The jury’s verdict of guilty had to comport with, and respond to, the judge’s instructions.

The trial judge charged the jury, in pertinent part, as follows:

“THE COURT: Gentlemen of the jury, it is my duty at this time to charge you regarding the law as it applies to this case. Now, in this case the defendant is charged by an indictment with the offense of murder in the first degree under aggravated circumstances. The charge of aggravation is that the defendant intentionally killed one Dora Mae Ford during a robbery of said Dora Mae Ford.”
# Sfc * * 5(5
“Now, the essential constituents of murder in the first degree are that the taking of life must have been wilful, deliberate, malicious and premeditated. These must concur and coexist.”
* * * * * *
“In this case you must also find from the evidence, if you find the defendant guilty that the defendant was engaged in a robbery at the time he killed the said victim. In other words, the indictment actually charges two offenses, robbery of Dora Mae Ford and the intentional killing of the said Dora Mae Ford during the process of the robbery.[] What I have previously said about the presumption of innocence and the burden of proof applies to both charges of the indictment.
“The three essential ingredients or elements of robbery are felonious intent, force and putting in fear, as a means of effectuating the intent, and by that means, a taking and carrying away the property of another from his person, or in his presence.
“Now if after consideration of all the evidence in this case you are convinced beyond a reasonable doubt and to a moral certainty that the defendant is guilty of murder in the first degree under circumstances of aggravation, that is, that he intentionally killed Dora Mae Ford while in the process of robbing her, it is your duty to so find. In that event your verdict would be as follows: ‘We, the jury, find the defendant Roy Frank Clements guilty of first degree murder with aggravated circumstances as charged in the indictment, and we fix the punishment at death.’
“However, on the other hand, if you are not convinced beyond a reasonable doubt and to a moral certainty of the defendant’s guilt, it would be your duty to so find. In that event the form of your verdict would be: ‘We, the jury, find the defendant Roy Frank Clements not guilty.’ ” [Emphasis supplied]

Thereupon, after the Court had read the written charges submitted by the defendant, the following transpired:

“THE COURT: All right, what says the State?
“DISTRICT ATTORNEY RAYBURN: Satisfied.
“(Thereupon the following occurred at the bench outside the hearing of the jury:)
“MR. FLOYD: Your Honor, we want to object and except to the Courts oral charge on the question of conspiracy, the entire charge of conspiracy. First, it should not have been given and, second, it was an incorrect statement of the law.
“MR. HEDGSPETH: Your Honor, we would also like to except to the Court’s ruling on the instructions to the jury as to aiding and abetting and principal and accessory because we do not feel like such applies to this. We would also like to except to the Court’s mentioning of the charge against this defendant on two instances being murder in the first degree with aggravated circumstances, and also like to object to the Court’s reading the statement of the jury form that the charge is murder in the first degree with aggravated circumstances.
“THE COURT: What do you say it is?
“MR. HEDGSPETH: It is my understanding from Mr. Rayburn it has been robbery with aggravated circumstances.
“DEPUTY DISTRICT ATTORNEY MARTIN: What does the indictment say?
“MR. HEDGSPETH: It doesn’t list any aggravation. Not one time in that indictment will you ever find the word aggravation.
“THE COURT: Well, it has got both robbery and murder. I guess that’s probably the best way to treat the act. Robbery in which the victim was actually killed by the defendant, but I would think it included both offenses.
“MR. HEDGSPETH: We except.
“THE COURT: All right.”
»je * * # * *
“SEPTEMBER 15, 1977 9:30 A.M.
“THE COURT: Gentlemen, have you reached a verdict?
“THE FOREMAN: Yes, sir.
“THE COURT: Would you send it up, please, by the bailiff?
“THE COURT: (Reading) ‘We, the jury find the defendant Roy Frank Clements, guilty of first degree murder with aggravated circumstances as charged in the indictment, and we fix punishment at death. Grady B. Goss, Foreman.’ ” [Emphasis supplied]
* * * * * *

We agree with the dissent, viz:

“The trial court’s oral charge to the jury was erroneous and properly objected to. The error was compounded by giving the jury an invalid form verdict which was then used by the jury.”

It is elementary criminal law that this Court cannot allow a defendant’s conviction and sentence to death to stand when the crime for which he was convicted was neither alleged in the indictment nor charged as a violation of the statute. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Aiola v. State, 39 Ala.App. 215, 96 So.2d 816 (1957); Mauldin v. State, 28 Ala.App. 30, 177 So. 309 (1937); Weems v. State, 24 Ala.App. 590, 139 So. 571 (1932).

In sum then, we find that the indictment properly charges an aggravated offense denominated in § 13-ll-2(a)(2) [i. e., robbery “during the course” of which “defendant did * * * intentionally kill” the victim], but that the trial judge erroneously instructed the jury on a different offense than that charged in the indictment [i. e., “murder in the first degree under circumstances of aggravation”] and the jury erroneously rendered a verdict on a different offense [i. e., “first degree murder with aggravated circumstances”], following the judge’s instructions.

As Chief Justice Marshall stated:

“The rule that a man shall not be charged with one crime and convicted of another, may sometimes cover real guilt, but its observance is essential to the preservation of innocence. It is only a modification of this rule, that the accusation on which the prosecution is founded, should state the crime which is to be proved, and state such a crime as will justify the judgment to be pronounced.”

The Hoppet v. United States, 7 Cranch (11 U.S.) 389, 394, 3 L.Ed. 380, 382 (1813).

Thus, the judgment of affirmance of the Court of Criminal Appeals is due to be reversed and remanded for entry of an opinion consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

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

JONES and SHORES, JJ., concur in the result.

MADDOX, FAULKNER and ALMON, JJ., concur in part and dissent in part.

JONES and SHORES, JJ. (Special concurrence withdrawn on Rehearing).

MADDOX, Justice

(concurring, in part; dissenting, in part).

I concur in the majority opinion insofar as it affirms the holdings of the Court of Criminal Appeals; I dissent insofar as the majority opinion reverses and remands.

The majority holds that the indictment properly charged a capital offense, but, the majority then holds that the trial judge erroneously instructed the jury on a different offense, and that the jury erroneously rendered a verdict on a different offense. I disagree. In my opinion, the trial judge, faced with the charge enumerated in the indictment, should have charged as he did. The majority emphasizes portions of the court’s charge to which exception was taken, but omits other portions of the court’s charge, which I think clearly show that the court did not err. That portion is as follows:

“Now if after consideration of all the evidence in this case you are convinced beyond a reasonable doubt and to a moral certainty . . . that he intentionally killed Dora Mae Ford while in the process of robbing her, it is your duty to so find. In that event your verdict would be as follows: 'We, the jury, find that defendant Roy Frank Clements guilty of first degree murder with aggravated circumstances as charged in the indictment, and we fix the punishment at death.’ ” [Emphasis added.]

It is obvious that the court defined to the jury what he meant by “murder in the first degree under circumstances of aggravation,” by saying:

“. . . that is, that he intentionally killed Dora Mae Ford while in the process of robbing her, it is your duty to so find.”

When defense counsel objected to the oral charge and the reference to the form of verdict, the court inquired: “What do you say it is?” Counsel replied: “It is my understanding from Mr. Rayburn that it has been robbery with aggravated circumstances.” Counsel, given an opportunity to suggest an appropriate instruction, did not do so. In fact, had the court charged the jury as suggested by counsel for defendant, and told the jury to return a verdict finding him guilty of “robbery with aggravated circumstances” or “not guilty,” it would have constituted plain error because the intentional killing is the gravamen of'the capital felony, not robbery.

Since the court defines the essence of the capital offense to the jury, using the victim’s name, and since the court’s charge on the form of the verdict, and also the jury verdict, both refer to first degree murder with aggravated circumstances “as charged in the indictment,” it is specifically referable to the indictment, which charges only a capital felony, and the verdict of the jury could be “guilty” or “not guilty.” There are no lesser included offenses. A verdict is the definitive answer of the jury and is sufficient in form if it decides the question in issue in such wise to enable the court to enter judgment. 23 A.C.J.S. § 1393, p. 1054. The jury verdict, stating as it does, that it found the defendant “guilty . as charged in the indictment” is sufficient. 6A Ala.Dig., Criminal Law <§=>881(2).

If one will read the entire Death Penalty Statute in pari materia, one will find that in § 13-11-6, which lists aggravating circumstances, the reference is to “capital felony.”

A reading of sections 13-11 — 1 and 13-11-2 and the remainder of the Death Penalty Act shows that the legislature intended to make, and did make, intentional killings (murder of specified persons and under specified situations, and intentional killings while the defendant was engaged in or was an accomplice in the commission of several specified offenses), the “capital felony.” The legislature intended to punish capitally defendants who intentionally killed under certain specified circumstances.

The defendant was charged with robbery and during the course of the robbery with intentionally killing his victim. The court so charged the jury and the verdict, even though not a model to follow, referred to the charge in the indictment. As we have said, the grand jury, by charging, in the indictment, that the “intentional killing” was first degree murder, necessarily put a heavier burden of proof on the state, but I believe that there is nothing wrong with that.

I have no problem determining exactly what the defendant was charged with [a capital felony] and what he was found guilty of [a capital felony]. I would affirm.

FAULKNER and ALMON, JJ., concur.

On Rehearing

On application for rehearing, Justices Jones and Shores withdraw their special concurrence and concur in the result of the opinion.

APPLICATION FOR REHEARING OVERRULED.

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

MADDOX, FAULKNER and ALMON, JJ., dissent.

      . Petitioner contends that the indictment is duplicitous, charging two offenses. As we have already indicated we do not agree. If this were so, the indictment itself would be inefficacious.

      . See Note 1, supra.


text:
    Roy Frank CLEMENTS, alias, v. STATE.
    7 Div. 575.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
   REVERSED AND REMANDED on authority of Supreme Court of Alabama ms. 77-643, 370 So.2d 723, as modified March 30, 1979. No opinion.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    James Robert WHITT v. STATE.
    8 Div. 43.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.

      James T. Baxter, III, of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Murder in the second degree; sentence: 25 years imprisonment.

On October 9,1976, at approximately 1:00 A.M., Randolph Scott, while driving north out of Huntsville, Madison County, Alabama, observed appellant in a white Chevrolet in front of him. Appellant’s vehicle was also traveling north on a four lane divided highway with a grass median. Scott observed appellant’s vehicle run off the right hand side of the highway, and then a few feet later observed it run off into the grass median dividing the highway. After traveling further, Scott saw appellant traveling north in the south bound side of the highway at a speed of approximately 65 m. p. h. Further down the highway Scott again saw the appellant’s Chevrolet after it had collided with another vehicle. Scott, however, did not see the actual collision. He walked to the Chevrolet, and seeing no one, approached the other vehicle. He observed a girl, identified later as Vickie Lynn Schmidt, caught by the window on the driver’s side of her automobile. She appeared to be deceased. He returned to the Chevrolet and saw appellant lying in the seat of the Chevrolet.

Trooper Jimmy Smith testified he came upon the accident shortly after it happened. The victim’s automobile was in the south bound lane, and appellant’s automobile was partly in the south bound lane and partly in the median. He also stated Ms. Schmidt appeared to be deceased, with multiple lacerations, abrasions, and possibly a broken neck. Trooper Smith diagramed his analysis of the accident and indicated the victim’s automobile was traveling south at the time of the collision while appellant’s vehicle was traveling north.

A carbon copy of a blood alcohol test consent form signed by appellant was introduced as well as the test results. The results indicated appellant’s blood contained 0.26 percent ethyl alcohol at the time of the test (two hours and forty-five minutes, after the collision) and 0.32 percent alcohol at the time of the collision. The toxicologist indicated these levels would seriously impair any skill necessary for driving an automobile.

Dr. Forrest Butler testified he examined the victim at the Huntsville Hospital emergency room. He stated Ms. Schmidt’s death was caused by the collision, the victim having suffered multiple abrasions and contusions, a fractured mandible, and possible skull fractures.

Detective Yearick of the Huntsville Police Department stated he went to the scene of the collision around 1:30 A.M. There he found a Seagrams 7 whiskey bottle in a paper bag in appellant’s automobile which he turned over to Trooper Smith at the Huntsville hospital.

I

Appellant asserts the court below erred in failing to grant a mistrial pursuant to Title 15, § 305, Code of Alabama 1940, as recompiled 1958, because of certain remarks in the prosecutor’s closing argument alleged to be prejudicial comments on appellant’s failure to testify. The pertinent argument of the attorneys and ruling of the court appear in the record as follows:

“MR. MILLER: What I say, of course, is not evidence. I would not assume that I can tell you something that is not a fact, and I don’t try to assume the Judge’s duty in this case. He will tell you what the law is and what the presumptions are and it is for your determination as to the truth and validity of the facts that the State has presented from the stand. I submit to you that there is not one fiber of evidence to rebut murder in the first degree from Tommy Baxter.
“MR. BAXTER: Judge, now, we object and move for a mistrial on the grounds that’s a comment on the Defendant’s failure to take the stand.
“THE COURT: Ladies and gentlemen, disregard the Prosecuting Attorney’s last remark in regard to no evidence from Tommy Baxter in this case. Tommy Baxter is an attorney and he is not giving evidence in this case whatsoever. That is for you to disregard and not consider that remark whatsoever in your deliberations in arriving at a verdict in this case. “I deny your motion.
* * * * * *
“MR. SIMPSON: Defense counsel says that not one State witness told you how it happened out there. Well, that’s right. We don’t have a State’s witness that was standing in front of Edward’s Warehouse and watched the accident and took photographs. We didn’t have a TV camera out there trained on the road. I couldn’t tell you exactly what happened, that’s true. The only person alive today that knows what happened out there that night is sitting right there.
“MR. BAXTER: Judge, we object and move for a mistrial on the grounds that that’s a comment upon the Defendant’s failure to take the stand.
“MR. SIMPSON: It’s a comment in kind, Judge, on what he argued in his closing argument.
“THE COURT: I am going to instruct the jury though to disregard the last remark in regard to that. The statement made by the District Attorney in his argument is only his inferences from the evidence, but I want you to disregard the last remark, just what he said.
“I will deny your motion.”

As to the first remark, we see little, if any, merit to appellant’s contention that this refers to appellant’s failure to testify. The remark is specifically directed toward Tommy Baxter, appellant’s trial counsel, and not toward appellant. Clearly the trial judge, who was in the best position to interpret the prosecutor’s remark, attached that meaning to the statement and instructed the jury accordingly and correctly to disregard the remark. Any possible indirect alternate meaning the remark may have carried was also eradicated by the court’s prompt instruction to the jury. Smith v. State, Ala.Cr.App., 342 So.2d 466 (1977); Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974). Where the trial judge immediately instructs the jury to disregard such remarks, there is a prima facie presumption against error. Robinson v. State, Ala.Cr.App., 352 So.2d 11 (1977), cert. denied, Ala., 352 So.2d 15 (1977); Williams v. State, 43 Ala.App. 343, 190 So.2d 556 (1966).

Additionally, we conclude that the only other rational significance the jury could have attached to the remark would have been that the statement pointed to the lack of contradiction of the State’s evidence. The defense called no witnesses during the trial and put forth no evidence. “Where the State’s evidence does stand un-contradicted, the prosecutor does have the right to point this out to the jury.” Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); McCulloch v. State, Ala.Cr.App., 338 So.2d 187 (1976). The general rule is that such statements by the prosecutor to the effect that the State’s evidence stands un-contradicted are permissible and are not direct references to appellant’s failure to testify where the defendant is not the only person capable of contradicting the State’s proof. Smith, supra; Gissendaner v. State, Ala.Cr.App., 338 So.2d 1025 (1976), cert. denied, Ala., 338 So.2d 1028 (1976); Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972). Here appellant had available potential witnesses who arrived at the scene after the collision as well as medical personnel at the hospital, none of whom were called to testify for the defense. Considering the very indirect thrust of the remark, the uncontra-dicted evidence of the State’s case, the availability of other potential witnesses, and the trial court’s immediate instructions to the jury to disregard the remark, we find no reversible error.

The second remark appears to be an “argument in kind” to rebut remarks made by the appellant’s counsel as in Tillis, supra. As such, the remark cannot be considered to be a direct attempt by the prosecutor to point out appellant’s failure to testify. It is at most merely an incidental and indirect reference to that point by way of rebutting the defense attorney’s argument. Adair v. State, 51 Ala.App. 651, 288 So.2d 187 (1974). Such statements, not having direct reference to the appellant’s failure to testify, must be interpreted in light of what has preceded them in the case, the evidence against the appellant, and other circumstances in the trial tending to indicate whether the solicitor was aiming his remarks at appellant’s failure to testify. Williams, supra.

The appellant cites Lamberth v. State, 54 Ala.App. 233, 307 So.2d 43 (1975) as controlling. However, that case is distinguishable upon its facts. In Lamberth the prosecutor made a direct reference by name to appellant and his failure to “tell” the jury about the accident. Further, the prosecutor’s reference appears to have been intended as a direct reference to the accused’s failure to testify rather than having been made incidentally as “argument in kind” as in this case. Additionally, there was a delay in the court’s instructions to the jury to disregard the remark in Lamberth, whereas here the court’s instructions were immediate and addressed directly to the remark in question. Smith, supra.

We find no harmful error in the court’s refusal to grant a mistrial. There was no stressing by the trial judge of this remark. The argument was quite evidently made on the basis of what the prosecutor intended to be “argument in kind” and not as a direct reference to appellant’s failure to testify. And finally, the evidence of guilt is exceedingly strong with no evidence whatsoever presented to support acquittal. Beecher, supra; Adair, supra. See also: Williams, supra; Tillis, supra; Smith, supra.

II

Appellant next contends that under the instant indictment (drawn under the universal malice theory of first degree murder), second degree murder is not a lesser included offense. In the same vein, he asserts that neither the malice nor the intent requisite to convict for murder in the second degree was charged or proved against him under the indictment. Concomitantly, he argues that because the State failed to prove first degree murder, because the indictment fails to allege the elements of second degree murder, and because the evidence fails to prove the necessary elements of second degree murder, his motion for directed verdict was erroneously denied by the court below.

Appellant’s argument raises an interesting point of law, however, his contention is not supported by the Alabama case law by which we are bound. In Berness v. State, 38 Ala.App. 1, 83 So.2d 607, affirmed, 263 Ala. 641, 83 So.2d 613 (1963), the Court of Appeals, although reversing on another ground, held:

“It is well settled under our decisions that where the accused is himself the driver of an automobile and drives it in a manner greatly dangerous to the lives of others so as to evidence a depraved mind regardless of human life, he may be guilty of murder in the second degree if his antisocial acts result in death of another, and this though he had no preconceived purpose to deprive any particular human being of life. Under such circumstances his acts are unlawful and without legal excuse, and malice may be inferred therefrom. Reed v. State, 25 Ala.App. 18, 142 So. 441; Williams v. State, 30 Ala.App. 437, 7 So.2d 511; Hyde v. State, 230 Ala. 243, 160 So. 237.”

This statement was quoted with approval by the Court of Appeals in Wright v. State, 41 Ala.App. 684, 149 So.2d 835 (1963). As recently as 1978, the Supreme Court of Alabama held that evidence presented under a murder indictment virtually identical to the one under consideration here, with similar facts to the case sub judice, was sufficient for submission to the jury as to all lessor included offenses of murder to the exclusion of murder in the first degree. Langford v. State, Ala., 354 So.2d 313 (1978). See also: Reed v. State, 25 Ala.App. 18, 142 So. 441, cert. denied, 225 Ala. 219, 142 So. 442 (1932). As pointed out in Langford, evidence of homicide committed by intoxicated drivers has on numerous occasions sustained second degree murder convictions. We read Langford as holding that a second degree murder conviction under a first degree murder indictment, on facts similar to the instant case, is permissible. Commander v. State, Ala.Cr.App., [Ms. July 25, 1978],

III

Appellant contends the indictment was defective in that it failed to allege the quo modo of the crime. The indictment appears in the record in pertinent part as follows:

“The Grand Jury of said County charge, that before the finding of this indictment, James Robert Whitt, whose name is unknown to the Grand Jury other than as stated, unlawfully killed Vickie Lynn Schmidt, by perpetrating an act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life by, to-wit: operating a motor vehicle while under the influence of intoxicating liquors or narcotic drugs along a highway and while operating the said motor vehicle under the influence of intoxicating liquors or narcotic drugs did run the motor vehicle in which the said Vickie Lynn Schmidt was driving over, upon, into or against the motor vehicle in which the said Vickie Lynn Schmidt was driving and as a proximate cause thereof, unlawfully killed the said Vickie Lynn Schmidt, against the peace and dignity of the State of Alabama.” (Emphasis supplied.)

We point out first that the indictment does not fail to allege an offense or the means by which the offense was perpetrated. It can be read, however, as erroneous in its designation of the vehicle driven by appellant which collided with the victim’s vehicle. Yet we deem it sufficient “to enable a person of common understanding to know what is intended.” Title 15, § 232, Code of Ala.1940 [now § 15-8-25, Code of Ala.1975],

A defect in an indictment which is not connected with a constituent element of the offense is not fatal to the indictment, and is not noticed by this court unless raised by demurrer in the trial court. Jeter v. State, Ala.Cr.App., 339 So.2d 91, cert. denied, Ala., 339 So.2d 95. The means with which a homicide is committed is not such a constituent element of the offense, and defects dealing with such a deficiency must be taken advantage of by demurrer. Albright v. State, 50 Ala.App. 480, 280 So.2d 186 (1973), cert. denied, 291 Ala. 771, 280 So.2d 191; Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (1973). However, as we noted in Nelson, the deficiency in the indictment must not be so great as to fail to apprise the accused of the crime with which he is charged and against which he must defend himself. See also: Andrews v. State, Ala.Cr.App., 344 So.2d 533 (1977), cert. denied, Ala., 344 So.2d 538. This case differs from Nelson in that the offense and means are set forth, although with some miswording in alleging the quo modo.

Appellant failed to raise this issue by demurrer or by any plea addressed to this defect. Because this indictment is merely voidable and subject to demurrer, the failure of appellant to demur prevents our review of this question. Williams v. State, Ala.Cr.App., 333 So.2d 610 (1976), affirmed, Ala., 333 So.2d 613.

IV

The appellant argues the evidence of the blood test was erroneously admitted because there was a break in the chain of custody of the blood sample itself. Chain of custody evidence must show with reasonable probability that the substance involved is one in the same and in the same condition. Bell v. State, Ala.Cr.App., 339 So.2d 96 (1976). Nurse Diane Coe testified she extracted the blood from appellant into a vial which she labeled with a diamond tip pen and then gave to Trooper Smith. Smith testified he was present when the blood was drawn. The vial was then given to him, and he kept it in his care, custody, and control until he left it at the toxicology lab office sometime after 3:45 A.M. on the morning of the collision, Saturday, October 9, 1976. Martha Odom testified she received the vial bearing appellant’s name from a locked evidence box in the toxicology office where samples of blood are deposited on weekends. She then placed the vial in a refrigerator in the toxicology lab. Ms. Odom testified she and Kim Gibson removed the vial with appellant’s name from the lab refrigerator. Kim Gibson stated her analysis as to the blood alcohol content was based upon the blood contained in the stoppered and sealed vial she received from Ms. Odom.

The only possible breaks here are (1) in Trooper Smith’s failure to specify that he deposited the vial in the locked evidence box in the toxicology office and (2) in the vial being placed in the lab refrigerator. The evidence proves with reasonable probability that the vial was the one in question. Bell, supra. The above omissions do not constitute the necessary break in the chain of custody to require exclusion of this evidence. Langford v. State, Ala.Cr.App., 354 So.2d 297 (1977). If a weak link in the chain of custody is assumed arguendo, it would present a question of credit and weight only and not one of admissibility. McClay v. State, 51 Ala.App. 30, 282 So.2d 379 (1973).

All the grounds relied upon by appellant for reversal have been considered in light of the record, briefs, and argument of counsel, and we find no prejudicial error which would mandate a retrial of the case.

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    In re James Robert WHITT v. STATE of Alabama. Ex parte James Robert Whitt.
    77-769.
    Supreme Court of Alabama.
    March 9, 1979.
    Rehearing Denied April 6, 1979.
    James T. Baxter, III, of Berry, Abies, Tatum, Little & Baxter, Huntsville, for petitioner.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State, respondent.
   BLOODWORTH, Justice.

Whitt was indicted for first degree murder arising out of a fatality in an automobile collision, was convicted of second degree murder, and was given a sentence of twenty-five years’ imprisonment in the penitentiary. The Court of Criminal Appeals affirmed. We granted a petition for writ of certiorari to consider whether the district attorney’s argument to the jury was an impermissible comment on defendant’s failure to testify. We hold it was and reverse and remand.

The following statement of the case is taken from the Court of Criminal Appeals’ opinion:

“On October 9, 1976, at approximately 1:00 A.M., Randolph Scott, while driving north out of Huntsville, Madison County, Alabama, observed appellant in a white Chevrolet in front of him. Appellant’s vehicle was also traveling north on a four lane divided highway with a grass median. Scott observed appellant’s vehicle run off the right hand side of the highway, and then a few feet later observed it run off into the grass median dividing the highway. After traveling further, Scott saw appellant traveling north in the south bound side of the highway at a speed of approximately 65 m. p. h. Further down the highway Scott again saw the appellant’s Chevrolet after it had collided with another vehicle. Scott, however, did not see the actual collision. He walked to the Chevrolet, and seeing no one, approached the other vehicle. He observed a girl, identified later as Vickie Lynn Schmidt, caught by the window on the driver’s side of her automobile. She appeared to be deceased. He returned to the Chevrolet and saw appellant lying in the seat of the Chevrolet.
“Trooper Jimmy Smith testified he came upon the accident shortly after it happened. The victim’s automobile was in the south bound lane, and appellant’s automobile was partly in the south bound lane and partly in the median. He also stated Ms. Schmidt appeared to be deceased, with multiple lacerations, abrasions, and possibly a broken neck. Trooper Smith diagramed his analysis of the accident and indicated the victim’s automobile was traveling south at the time of the collision while appellant’s vehicle was traveling north.
“A carbon copy of a blood alcohol test consent form signed by appellant was introduced as well as the test results. The results indicated appellant’s blood contained 0.26 percent ethyl alcohol at the time of the test (two hours and forty-five minutes after the collision) and 0.32 percent alcohol at the time of the collision. The toxicologist indicated these levels would seriously impair any skill necessary for driving an automobile.
“Dr. Forrest Butler testified he examined the victim at the Huntsville Hospital emergency room. He stated Ms. Schmidt’s death was caused by the collision, the victim having suffered multiple abrasions and contusions, a fractured mandible, and possible skull fractures.
“Detective Yearick of the Huntsville Police Department stated he went to the scene of the collision around 1:30 A.M. There he found a Seagrams 7 whiskey bottle in a paper bag in appellant’s automobile which he turned over to Trooper Smith at the Huntsville hospital.”

The defendant called no witnesses in his behalf nor did he take the stand and testify. None of the closing arguments to the jury appears in the record, although during the state’s summation, the following statements by the district attorney were objected to by the defendant’s counsel:

“I submit to you that there is not one fiber of evidence to rebut murder in the first degree from Tommy Baxter.”
“The only person alive today that knows what happened out there that night is sitting right there.”

These remarks were promptly objected to on the grounds that they were comments upon the defendant’s failure to take the stand and testify. Motions for mistrial were made in each instance on the same grounds.

With respect to the first comment, the court instructed the jury, viz:

“Ladies and gentlemen, disregard the Prosecuting Attorney’s last remark in regard to no evidence from Tommy Baxter in this case. Tommy Baxter is an attorney and he is not giving evidence in this case whatsoever. That is for you to disregard and not consider that remark whatsoever in your deliberations in arriving at a verdict in this case. I deny your motion.”

With respect to the second comment, the court stated, viz:

“I am going to instruct the jury though to disregard the last remark in regard to that. The statement made by the District Attorney in his argument is only his inferences from the evidence, but I want you to disregard the last remark, just what he said. I will deny your motion.”

With reference to the first comment, the Court of Criminal Appeals held that the remark was “indirect,” being directed to the defendant’s attorney, Tommy Baxter, that the remark was the same as where the evidence is said to stand “uncontradicted” (in which case the prosecutor has the right to comment), and that the remark was properly “eradicated” by the court’s instructions. We agree with the Court of Criminal Appeals that this comment did not constitute reversible error.

With respect to the second comment, the Court of Criminal Appeals held that this remark was “argument in kind” to rebut remarks by petitioner’s counsel, that it was only an “indirect” reference to petitioner’s failure to testify, and, finally, that any possible reference to petitioner was “eradicated” by the court’s instructions. We must disagree and hold that the remark was not an “argument in kind,” was not an “indirect” reference to the petitioner’s failure to testify, and was not “eradicated” by the court’s instructions.

The comment “The only person alive today that knows what happened out there that night is sitting right there” is almost identical to the comment “ ‘No one took the stand to deny it’ ” held to be a direct comment on the defendant’s failure to testify and held to be reversible error in Beecher III, 294 Ala. 674, 320 So.2d 727 (1976) (per Justice Embry). The comment is very close to the comment made in Warren v. State, 292 Ala. 71, 288 So.2d 826 (1973). There, this Court held (per Justice McCall) that the argument “ ‘The only one that said he didn’t sell it [marijuana] was the little brother” was also a direct comment on the failure of the defendant to testify and constituted reversible error. It is thus that we must conclude, based on the holding and rationale of those two cases, that the comment by the district attorney in this case was a direct comment on the failure of the defendant to testify and constituted error to reverse.

We cannot agree with the Court of Criminal Appeals that this comment was “argument in kind” to rebut remarks made by petitioner’s counsel. It seems self-evident that it cannot be “argument in kind” when we do not have the defense counsel’s argument to which this comment is said to reply. The record does not contain the closing arguments in this case.

Since the year 1885 (when the predecessor to Code 1975, § 12-21-220 was adopted), the Supreme Court of Alabama, the former Court of Appeals, and the present Court of Criminal Appeals have upheld the right of defendants not to take the witness stand and testify in their own behalf and, if the privilege is exercised, not to be the subject of comment by the state’s counsel. See the esteemed late Judge Cates’ history of this right which he traced in Padgett v. State, 45 Ala.App. 56, 223 So.2d 597, cert. denied, 284 Ala. 732, 223 So.2d 603 (1969), overruled on other grounds, Beecher v. State, supra.

As Justice Embry suggests in his opinion for the Court in Beecher v. State, supra, the basis for this right finds its roots in § 6 of the Alabama Constitution, which declares:

“That in all criminal prosecutions, the accused * * * shall not be compelled to give evidence against himself *

That is the basis for our Code section heretofore referred to, § 12-21 — 220, which provides that:

“On the trial of all * * * criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel.” [Emphasis ours.]

The federal constitutional aspect of this right was spoken to by the United States Supreme Court in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) when that court held that a prosecutor’s comment on the failure of a defendant to testify was violative of the fifth and fourteenth amendments to the federal constitution. Recently, however, that court held that the giving by a trial judge, over defendant’s objection, of a cautionary instruction that the jury is not to draw any adverse inference from defendant’s failure to testify does not violate his privilege against self-incrimination. Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978).

It is thus that the Alabama appellate courts have held that

“[wjhere there has been direct comment on defendant’s failure to testify, and the trial court has not promptly acted to cure such a statement, the conviction must be reversed. Lamberth v. State, 54 Ala.App. 233, 307 So.2d 43 (1975).”

Beecher v. State, supra.

In Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974) in considering the effect of a comment on the defendant’s failure to take the stand in his own behalf and testify, Justice Faulkner wrote for the Court, “In an appropriate context this is highly prejudicial and would require reversal.” This, of course, presupposes that the trial court has not promptly acted to cure such an improper comment.

This brings us to a consideration of the last ground given by the Court of Criminal Appeals for finding that the second comment did not constitute reversible error, namely, whether the trial court’s instructions to the jury cured such impermissible comment.

We cannot agree that the trial court’s instructions in this case were sufficient to cure the harmful effect of the district attorney’s comment. The court stated:

“I am going to instruct the jury though to disregard the last remark in regard to that. The statement made by the District Attorney in his argument is only his inferences from the evidence, but I want you to disregard the last remark, just what he said. I will deny your motion.”

In seeking to instruct the jury to disregard the remark, we think that the trial court’s instructions fell short of what is required to effectively erase the highly prejudicial and harmful nature of such a comment.

A good example of a prompt, appropriate, and vigorous instruction to the jury as to the impropriety of comments on the failure of the defendant to testify is found in the case of Troup v. State, 32 Ala.App. 309, 26 So.2d 611 (1946). There, then Judge Har-wood wrote that the instructions were sufficient to remove any probability of prejudice to the defendant.

We do not suggest that a trial court’s instructions, in order to remove any possible prejudice from improper comments by the district attorney as to the failure of the defendant to take the witness stand, need be in the same verbiage as those in Troup v. State, supra. We will consider the circumstances of each case on its own, considering the type of remark, whether reply in kind or not, whether promptly objected to, and the appropriateness of the trial judge’s instructions.

We suggest that, at a minimum, the trial judge must sustain the objection, and should then promptly and vigorously give appropriate instructions to the jury. Such instructions should include that such remarks are improper and to disregard them; that statements of counsel are not evidence; that under the law the defendant has the privilege to testify in his own behalf or not; that he cannot be compelled to testify against himself; and, that no presumption of guilt or inference of any kind should be drawn from his failure to testify. With appropriate instructions, we hold that the error of the prosecutor’s remarks will be sufficiently vitiated so that such error is harmless beyond a reasonable doubt. U. S. v. Brown, 546 F.2d 166 (5th Cir. 1977); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Beecher v. State, supra.

We conclude, therefore, that the trial court’s instructions in this case fell short of the requisite standards, and that this cause must be reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Justices concur.


text:
    James Robert WHITT v. STATE.
    8 Div. 43.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
   After remand from the Supreme Court of Alabama, 370 So.2d 736, REVERSED AND REMANDED on mandate of the Supreme Court.

All the Judges concur.