author: MOORE, Retired Circuit Judge.

text:
    Robert DUDLEY, alias v. STATE.
    5 Div. 362.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.

      C. S. Whittelsey, Opelika, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   MOORE, Retired Circuit Judge.

The indictment in this case charged, omitting the formal parts, that:

“. . . Robert Dudley, alias . did buy, receive, conceal, or aid in concealing, one (1) Super lectric Fan, of the value of $29.00, and one (1) J. C. Penney Mini Bike, of the value of $100.00, of the aggregate value of $129.00, the personal property of Richard Beaird, knowing that it was stolen, and not having the intent to restore it to the owner.”

The defendant entered a plea of not guilty and was tried and convicted for the offense charged. Final judgment was duly entered and the defendant appealed.

On the trial of this case, Richard Beaird testified in substance that he owned a cabin on Lake Harding in Lee County, Alabama. On the Saturday before Christmas, 1975, he went to the cabin and discovered that it had been broken into and that a chain-saw, mini-bike, helmet, electric saw and fan were missing from the cabin. Later when he went to the sheriff’s office in Lee County, Alabama, he recovered the mini-bike and fan that were taken from his cabin on the occasion in question. Beaird stated that all the items taken from the cabin were his property and the fan had a value of twenty-nine dollars and the mini-bike had a value of one hundred dollars.

Tanzie Peterson testified in part, that he burglarized the cabin on the backwaters of Lee County in December, 1975, and took a chain-saw, electric fan and mini-bike. He stated he took the items in the trunk of his car to Johnson’s Bait Bucket, a fishing tackle store, and sold them to Robert Dudley. He said he knew Dudley and had been to the store many times and talked with Dudley. He and Dudley discussed the sale price but he finally sold the items for eighty-five dollars. Further, he testified that when he first got to Johnson’s Bait Bucket he told Dudley that he had something that he thought he would be interested in out in the car and that he and Dudley went to the car and he showed the items to Dudley. He said the sale was made and the items were carried by him and Dudley and placed in a storage room in the back of the store. Peterson testified that Dudley had asked him if the items were “local”, meaning they were from around in that area, and he told him they were not. He stated that Dudley paid him and he left.

The witness, Tanzie Peterson, further testified that the cabin he took the items from was Mr. Beaird’s cabin. He testified that he first came in contact with Dudley in September, 1975, and that he, the witness, began breaking into cabins on the backwaters and taking things from them in late September, 1975. From September, 1975 to January 1,1976, he saw Dudley almost daily and sold him property, which he had stolen from the burglarized cabins, about twice a week during that period of time. According to Peterson, from September, 1975 to January 1, 1976, he had sold Dudley fifteen or twenty portable TV sets, two chain-saws, about ten circular saws, approximately ten .22 caliber rifles, ten shotguns and also clocks, radios and vacuum cleaners. Peterson testified that all the sales took place at Johnson’s Bait Bucket in Lee County, Alabama. He said that Dudley had paid him over five hundred dollars for all the items and set a price of thirty dollars for black and white TV sets and no more than fifty dollars for colored TV sets. He said that he delivered all the stolen items that he sold to Dudley to Johnson’s Bait Bucket and helped unload and put them in the store. He further testified that Dudley had asked if the items were “hot” and that he told him that they were but that the items were not from around there. Also, he said that he had told that to Dudley five or six times.

Paul Dennis testified that he was an investigator in the Lee County Sheriff’s Office and that on January 28 and 29, 1976, had conversations with Tanzie Peterson concerning burglaries that had occurred on the backwaters. He stated that he obtained a search warrant for Johnson’s Bait Bucket. The search warrant, affidavits made in connection therewith and the return of the officer making the search, and the list of property attached to the return as part of the return, were marked for identification as State’s Exhibit No. 1. Dennis said he participated in the search of the premises in compliance with the search warrant and that all the items shown on the list attached to the return were found on the premises searched. The mini-bike and the fan involved in this case were found and were shown on the list attached to the return. The return of the search warrant was signed by Lt. Ronnie Watkins, deputy.

State’s Exhibit No. 1 was admitted in evidence and we here set it out in toto:

"State of Alabama

"County of Lee

"Before me William J. Samford, II, Judge, District Court Lee County, Alabama (Name and Title of Magistrate) personally appeared Investigator Paul Dennis who being duly sworn, deposes and says that he has probable cause to believe and does believe that there is now being kept and concealed at a place of business know [sic] as 'Johnson's Bait Bucket' stolen property towit:[sic] 1) 12" Portable, television Serial Number [ XXX-XX-XXXX ], and (1) Portable AM & FM police Scanner radio Model #2274, said place of business being operated by Robert Dudley, alias, said premises being a retail store located on Lee -County Road #87 approximately 1/2 mile North' of the intersection of Lee County Road #87 and Lee County Road #93, being located on the East side of Lee County Road #87 and being located in Lee County, Alabama

"Sworn to and subscribed before me this the 28th day of January, 1976

"/s/ W.J. Samford II (Judge) "William J. Samford, II

"SEARCH WARRANT

"The State of Alabama, County of Lee

"To any Sheriff, Deputy and/or Municipal Police:

"Proof by affidavit haviny [sic] been made this day before me, by Investigator Paul Dennis who has received information that would lead a reasonable person to believe that there is now being kept or concealed at a place of business know [sic] as 'Johnson's Bait Bucket' stolen property towit: [sic] (1) 12" portable television, Serial Number [ XXX-XX-XXXX ], and (1) Portable AM&FM police Scanner Radio Model Number 2274, said premises being a retail place of business being operated by Robert Dudley, alias, said premises being located on Lee County Road #87 approximately 1/2 mile Norht [sic] of the intersection of Lee Count- [sic] Road #87 and Lee County Road #93, being located on the East side of Lee County Road #87 and being located in Lee County, Alabama, ....

"You are hereby commanded to make immediate search on the person and premises of 'Johnson's Bait Bucket' a place of business, being located on Lee County Road #87 approximately 1/2 mile North of the Intersection of Lee County Road #87 and Lee County Road #93, being further described as being a retail store facing East on Lee County' Road #87 and being operated by Robert Dudley, alias in Lee County, Alabama, said search to be conducted during the daylight hours and to include all outbuildings, vehicles and premises located on above described curtiledge. [sic]

for the following property stolen property towit [sic] (1) 12" Portable, Television, General Electric Serial Number [ XXX-XX-XXXX ] and (1) Portable AM & FM, Police Scanner, Radio, Model #2274 . . .

"And if you find the same or any part thereof, to bring it forthwith before me, at my office at Opelika, Alabama.

"Dated the 28th day of January 1976.

" /s/ W. J. Samford II (Judge) "William J. Samford, II"

"RETURN

"Received the within warrant for search on the 28 day of January, 1976, and on the 29 day of January, 1976, I executed the same by searching the said premises and finding thereon the following described property, see attached list.

"January 29, 1976.

"CHIEF LAW ENFORCEMENT OFFICER "/s/ Ronnie Watkins "By Lt. Ronnie Watkins_ "I & I Division Deputy

"STATE OF ALABAMA ) "Lee County )

"I William J. Samford, II, Judge of District Court of Lee County, Alabama do acknowledge reciept [sic] of the foregoing Return and direct the Sheriff of Lee County, Alabama to retain said property in his custody or to release said property to the appropriate agencies that he may direct subject to the orders of the appropriate Courts.

"this the 29th day of January 1976

"/s/ W. J. Samford II_ "William J. Samford, II, Judge of District Court, Lee County, Alabama"

"State of Alabama County of Lee

"vs.

"Robert Dudley, alias Operator of 'Johnson's Bait Bucket' (a retail store)

"AFFIDAVIT FOR SEARCH WARRANT

"BEFORE William J. Samford, II, Judge, District Court, Lee County, Ala. (Name of Judge) The undersigned being duly sworn deposes and says:

"That he (has reason to believe that) (on the premises knowr as)

"'Johnson's Bait Bucket' a retail store located on Lee County Road #87 approximately 1/2 mile North of the Intersection of Lee County Road #87 and Lee County Road #93 said premises being located on the East side of Lee County Road #87 and being operated by Robert Dudley, alias in Lee County, State of Alabama there is being concealed certain property, namely Stolen.property towit:[sic] (1) General Electric Portable, Television, 12" screen, Serial Number [ XXX-XX-XXXX ] and (1) Portable AM & FM, Police Scanner, Radio, Model Number 2274 which are Stolen Contrary to the Laws of the State of Alabama

"(here give alleged grounds for search and seizure)

"And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows:

"That on January 27, 1976 Investigators of the Lee County Sheriff's Department in Lee County, Alabama arrested Bruce Tanzi Peterson, alias for Burglary and Grand Larceny in the Burglary and theft of a backwater cabin belonging to Edward Pierce. Said cabin being located in the backwater area of Lee County and said property taken from above described cabin having been recovered and identified by the’owner and said Bruce Tanzi Peterson, alias having given a confession to Investigator Paul Dennis to the Burglary of the above described cabin. That Bruce Tanzi Peterson, alias has given Investigator Dennis (affiant) confessions that he has personally Burglarized some seventy-five backwater cabins in Lee County, Alabama and that all stolen property taken from said cabins was sold to Robert Dudley, alias at the above described 'Johnson’s Bait Bucket' the last item sold to Dudley being as recent as the past week.

"(Signature of Affiant) /s/ Paul Dennis "(Official Title) Investigator Paul Dennis, Lee County Sheriff's Dept.

"Sworn to before me, and subscribed in my presence, January 28, 1976

" /s/ W. J. Samford II (Judge) "William J. Samford, II"

"Office of JAMES C. PEARSON Sheriff Lee County Opelika, Alabama 36801 January 29, 1976

"Robert Dudley, alias

"1 Black and Decker 1/4" Drill #184819 and bit 1 Black and Decker 7 1/4" Circular Saw MDL #7301 1 Craftsman 1/4" Drill #MC1661 1 Milwaukee 1/4" Drill S#376-46820 1 Black and Decker 1/4" Drill #MC1C41 1 Craftsman 7" Circular Saw S#5628 1 Allstate Battery Charger 12 Volt S#T59 1 Chain Saw ID Plate Missing 1 Hand Key Hole Saw 1 Romar (6) Tranistor [sic] Radio 1 Triumph Digital Clock Radio 1 Plano Tackle Box 1 Mayfair 8 Track Stero S#30701 1 Catalina Mutt Band Radio 1 Lendy Worm Box with worms 1 Archer Intercom System 1 Tropic Torch Set 1 Plastic (small) Tackle Box 1 Superlectric Floor Fan MDL#2072 1 Arvin Electric heater 1 Arvin Electric Heater MDL#30H20 1 Motorola Port., Television #2095 1 Motorola Port., Television B/W

"/s/ W J Samford II." "Office of JAMES C. PEARSON Sheriff Lee County Opelika, Alabama 36801

"Robert Dudley, alias

1 Silvertone Port., Television S#X14120033 1 Truetone, Multi Band Radio #MNM386A-37 1 H&R 32 Caliber Revolver S#AD42929 1 Belgium DBL BB1 Rabbit Earred Shotgun 12Ga. 1 Revelation, Single, BBL, 12GA., Shotgun S#P732745 1 Glenfield MDL. #60 Sem-Automatic Rifle S#70194229[sic] 1 Colunbia, 12 Ga., Single BBL. Shotgun 1 Springfield, MDL#944 Series A 20 Ga., Sngl. BB1., Shotgun S#P679585 1 Electro Pal MDL #0040 S#23778 Trolling Motor 1 Fire Extinguisher 'Fireguard' S#BD860654 1 Coleman Propane Lantern with Tank 13 Pints of Evans Williams Straight Bourbon Whiskey 1 Zenith Color Television Commander S#5189845 1 J.C. Penny's Mini Bike Serial Number removed, 122 CC, 2 1/2 H.P. 1 Kerosene Lamp without globe 1 South Central Bell telephone 1 Can 12oz. 'Coors' Beer /s/ W J Samford II."

The appellant objected to the introduction of State’s Exhibit No. 1 — the search warrant, the affidavits in support of its issuance and the sheriff’s return with the attached list of items.

The appellant in his brief filed in this court, states two propositions on which he seeks a reversal. We here set them out as stated by him:

“1. Should the State be allowed to present into evidence a search warrant, authorizing a general exploratory search of defendant’s premises; which said search warrant was issued on the affidavit of an affiant whose conclusion as to the probable cause was based solely on the broad statement of an informant that he had sold stolen goods to the defendant; and which said affidavit listed specific articles as the object of the search, none of which were found or returned? “2. Should a felony conviction be sustained based on the testimony of an accomplice, which testimony is corroborated only by evidence seized under authority of an illegal search warrant?”

Omitting the conclusion in said propositions and reducing them to the legal question before us we state the contention for reversal as follows:

1. Were the affidavits sufficient to support the legal issuance of the search warrant?
2. Was the testimony of the accomplice sufficiently corroborated to sustain a conviction?

We shall treat those issues in the order stated.

In Bates v. State, 51 Ala.App. 338, 285 So.2d 501, cert. den. 416 U.S. 939, 94 S.Ct. 1940, 40 L.Ed.2d 289, the sufficiency of affidavits to support the issuance of a search warrant is discussed. This court there stated:

“In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, the U.S. Supreme Court stated:
“ ‘An evaluation of the constitutionality of a search warrant should begin with the rule that “the informed and deliberate determinations of magistrates empowered to issue warrants * * * are to be preferred over the hurried action of officers * * * who may happen to make arrests.” United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877: The reasons for this rule go to the foundations of the Fourth Amendment.’
“[1, 2] In order for a search warrant to be sufficient and satisfy the constitutional requirement of probable cause, the affidavit upon which it is based must contain competent evidence to support the magistrate’s finding. Skelton v. Superior Court of Orange County, 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485. The sufficiency of an affidavit is determined by whether it meets the stipulations for probable cause as laid down in Aguilar, supra.
“That test is two-fold and sets the following requirements:
“ ‘. . . [T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was “credible” or his information “reliable.” Otherwise, “the inferences from the facts which lead to the complaint” will be drawn not “by a neutral and detached magistrate”, as the Constitution requires
“[3] The appellant Bates contends that this affidavit was based on hearsay, thus insufficient for the issuance of a search warrant. He argues that Detective Bragg’s affidavit is deficient as the allegation that stolen goods were delivered to Bates or were recently observed on the B. & B. Cafe premises is not corroborated. Neither Aguilar, supra nor Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, required ‘corroboration’ or independent evidence of the reliability of information contained in an affidavit. Skelton, supra.
“[4] The appellant here questions whether the affidavit which sets out personal observations of one other than the affiant is sufficient to establish probable cause to search. So long as there appears a substantial basis for crediting the hearsay, an affidavit is not to be deemed insufficient. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. “ ‘If an officer may act upon probable cause without a warrant when the only incriminating evidence in his possession is hearsay, it would be incongruous to hold that such evidence presented in an affidavit is insufficient basis for a warrant. If evidence of a more judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant must be presented when a warrant is sought, warrants could seldom legitimatize police conduct, and resort to them would ultimately be discouraged.’
“ ‘We conclude therefore that hearsay may be the basis for a warrant.’ Jones, supra.
“[5] We say that in the instant case there was sufficient basis for accepting the hearsay, and that the magistrate acted properly. Judge Archer did not need to be convinced that the money order machine was in the B. & B. Cafe, but only that it probably was.”

It is our understanding after a consideration of opinions of the Supreme Court of the United States and the appellate courts of this State, including Bates v. State, supra, that what the law demands of the affidavits, to be sufficient to support the issuance of a search warrant are: (1) That the magistrate, authorized to issue a search warrant, must have facts, in the form of evidence, submitted to him from which he may make an informed and deliberate determination that he has probable cause to believe that the object of the search is at that place sought to be searched and that said object of said search is connected with a criminal offense and; (2) if the facts and evidence were furnished by an informant to the persons making the affidavit that the informant was credible or his information is reliable, must be shown by the affidavit.

The affidavit submitted to the magistrate to secure the issuance of the search warrant states the following underlying circumstances: That Bruce Tanzie Peterson was the informant; that he had confessed to the affiant that he had burglarized some seventy-five backwater cabins in Lee County, Alabama; that all stolen property taken from said cabins by him was sold by him to Robert Dudley at Johnson’s Bait Bucket and that the last item was sold to Dudley as recent as the past week. The affidavit also stated the personal knowledge of affiant of the description and location of Johnson’s Bait Bucket. The affidavit describes it as a retail store and locates it with reference to distance, direction and highways. The object of the search is described as stolen property to-wit: (1) General Electric portable television, 12" screen, serial number [ XXX-XX-XXXX ] and (1) portable AM & FM police scanner radio, model number 2274. It is clear from the affidavit that the objects sought to be searched for was information the affiant received from the said informer. The detailed description of which on the other side of the videlicet (to-wit) in the affidavit may not state clearly where he obtained that information but common sense, (which the magistrate is authorized to use) says he either got it from the informer or from the owner of the property. Be that as it may, the central fact is that the affidavit says it was stolen property. The affidavit states the personal knowledge of affiant that said informer was under arrest charged with burglary and grand larceny in the burglary and theft of a backwater cabin belonging to Edward Pierce located in Lee County, Alabama.

We are clear to the conclusion and judgment that the affidavits in the case before us submitted to the magistrate in support of the issuance of the search warrant, completely meet the tests of the law and legally supports the issuance of said search warrant. Said affidavits show that all of said stolen goods were sold to the appellant at the said store and some of them as recent as the week before the making of the affidavit. Stolen property is connected with a criminal offense and is vital evidence in the trial of the charge against this appellant. The confession of Tanzie Peterson set out in the affidavit must be considered as reliable information. Tanzie Peterson had much to loose by making the confession. He was under arrest for criminal offenses connected therewith and his confession could be used against him in the prosecution of said charges. It is difficult to see how it could be more reliable. When the information furnished by the informer is thus made reliable there is no necessity to show that the informer is credible. The law is more concerned with truth found in reliable information than with so-called evidence of the credibility of an informer. The affidavits furnished the magistrate with facts, by way of evidence, of the underlying circumstances showing that the property, the object of the search sought, was stolen property; that there was probable cause for believing that it was in the possession of appellant at said store and that appellant had received it having reasonable cause to believe that it was stolen. All of the properties taken from about seventy-five cabins burglarized were carried to appellant by Tanzie Peterson. Appellant therefore saw said Peterson. The evidence in the case before us shows that Peterson was a twenty-one-year-old man. That was enough to put any reasonably intelligent person on inquiry as to how Peterson came by the property. The trial court correctly and legally admitted in evidence State’s Exhibit Number 1.

The search warrant being legally issued, the search was legal.

The return of the search warrant does not reveal that the items of property named in the affidavits or the search warrant were found in the search. But the return reveals and the testimony in this ease shows that the property described in the indictment in this case was found as a result of the search conducted under the search warrant. Tan-zie Peterson went with the officers and was present with them and pointed out the property he had stolen and sold to appellant during the search and the property described in the indictment which was found in the search was so pointed out and identified by him and recovered by the officers making the search as shown by the return of the search warrant and the testimony of said officer.

In Lucy v. State, 46 Ala.App. 484, 243 So.2d 756, the officers were armed with a search warrant for 409V2 N. Conception Street in Mobile for barbiturates and they found appellant in a bedroom and various containers of marijuana were in the room. The appellant in that case was indicted for possession of marijuana. Judge Cates in writing for the court stated:

“The search of instant concern was reasonable and supported by a valid warrant.”

The search in the case before us was reasonable and supported by a valid warrant and evidence of the finding and recovery of the property described in the indictment was admissible. We do not find error in that respect.

We come now to a consideration of the question of whether the testimony of the accomplice was sufficiently corroborated. On that subject, Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62, gives the test of such corroboration in this fashion:

“We cannot find that the appellant was convicted solely upon the uncorroborated testimony of an accomplice. The word ‘corroboration’ as used in Title 15, § 307, Code of Alabama 1940, has been defined to mean ‘strengthen’, not necessarily to prove a specific fact testified to by the accomplice. Corroboration was generally not required at common law, thus § 307, supra, being in derogation of the common law must be strictly construed. Alldredge v. State, 45 Ala.App. 171, 227 So.2d 803 (1969); Patterson v. State, 45 Ala.App. 229, 228 So.2d 843 (1969); Smothers v. State, 38 Ala.App. 153, 83 So.2d 374, cert. denied 263 Ala. 701, 83 So.2d 376 (1954-55).
“[3] Corroboration of the testimony of an accomplice need not be sufficiently strong of itself to support a conviction, and it is sufficient if it tends to connect the accused with the offense. Wyatt v. State, 51 Ala.App. 226, 283 So.2d 675; Goodman v. State, 52 Ala.App. 265, 291 So.2d 358 (1974); Bridges v. State, 52 Ala.App. 546, 295 So.2d 266 (1974); Seawright v. State, 52 Ala.App. 286, 291 So.2d 376 (1974); O’Neal v. State, 53 Ala.App. 133, 298 So.2d 62, cert. denied 292 Ala. 744, 298 So.2d 70 (1974).
“[5] Once the trial judge has determined as a matter of law that there is evidence which tends to connect a defendant with the crime, in corroboration of testimony given by an accomplice, it is then within the province of the jury to determine the credibility, weight, or probative force which should be accorded such evidence. “[6] The cases are too numerous to cite holding that a general affirmative charge in favor of an accused cannot be given when the evidence affords an inference adverse to him or where there is any evidence, however weak or inconclusive, tending to make out a case against the accused. See: Alabama Digest Criminal Law, <s== 753(2).”

Richard Beaird testified that the items described in the indictment were recovered by him from the sheriff’s office after the search and that they were taken from his cabin in a burglary thereof. He identified said items as the subject of the taking in the burglary and as being his property. The officers found said items in possession of appellant during the search.

The appellant in the case before us testified in his own behalf. He admitted buying from the said Tanzie Peterson, 2 television sets, 1 chain saw, 1 mini-bike (the one described in the indictment), 1 electric fan (the one described in the indictment), 2 electric heaters, 2 torches, 1 Black & Decker drill, 1 Black & Decker circular saw, 1 All State battery charge, 1 radio, 1 Triumph digital clock radio and 1 Mayfair 8-track stereo; and that said purchases were made during the period beginning in September, 1975, to January 1, 1976. He admitted knowing Tanzie Peterson and that Peterson was in his place of business many times during this period of time. The evidence also shows that Peterson was twenty-one years of age. The return of the search warrant shows a large number of stolen property recovered in the search. Considering those related facts taken from the evidence along with all of the evidence it is clear that the test of corroboration has been fully met in the case before us.

There was substantial evidence appellant was guilty as charged. A jury question was made out and the motion to exclude the evidence was properly and legally overruled.

There were no exceptions or objections to the trial court’s oral charge to the jury.

We have carefully searched the record in this case for error which would justify 'a reversal and find none.

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

The judgment is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Ronald GIBBS v. STATE.
    5 Div. 367.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    John H. England, Jr., Tuscaloosa, for appellant. .
    William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., Montgomery, for the State.
   BOOKOUT, Judge.

The appellant was arrested on September 5, 1975, for possession and sale of marijuana. A preliminary hearing was apparently held sometime before October 30, 1975. On October 30,1975, the appellant was indicted separately for possession and sale of marijuana. On November 3, 1975, counsel was appointed for the appellant, and he was arraigned. The appellant subsequently changed attorneys and on November 12, 1975, the cases were consolidated and tried. The appellant was found guilty in both cases, and he now appeals the convictions.

The State’s evidence was overwhelming to the effect that the appellant sold marijuana to an undercover agent and that the appellant was in constructive possession of another portion of marijuana at a different point in time.

The appellant called three witnesses in his defense. Their testimony if believed by the jury would have tended to show that the appellant was framed regarding the charge of sale of marijuana. They were eyewitnesses to the transaction between the appellant and the undercover agent. They alleged that the undercover agent was making an inquiry to the appellant about the location of a store, when the agent asked for and received a $20.00 bill in exchange for smaller denominations totaling $20.00. The appellant contends this was how he came to be in possession of $15.00 in marked bills which the State introduced into evidence against him. The appellant’s witnesses also testified that a Detective Jackson was present during the transaction between the appellant and the undercover agent, and that the appellant never sold any marijuana.

In order to rebut the testimony of appellant’s witnesses, the State called Detective James Smith who was examined in pertinent part as follows:

“Q. Were the witnesses that have come on the stand today and pointed their fingers at Detective Jackson, were they sitting in the Court Room?
“A. Yes, they were.
“Q. Did they testify during the Preliminary Hearing at all?
“A. One of them did.
“Q. Did, did any such testimony as you heard today come out at that time?
“A. No sir, it did not.
“MR. YOUNG: That’s all.”

The appellant’s sole contention is that the trial court erred in allowing Detective Smith to testify about the preliminary hearing because the appellant was not represented by counsel at that critical stage of the proceedings. Cordle v. State, 53 Ala.App. 148, 298 So.2d 77, cert. denied, 292 Ala. 717, 298 So.2d 85 (1974). The State contends that the appellant waived counsel at the preliminary hearing. In the alternative, the State contends that if the appellant did not waive counsel at the preliminary hearing, then the trial judge committed mere harmless error in allowing Detective Smith to testify.

It is unnecessary for us to discuss the State’s contentions. It is elementary that in order for this Court to review an alleged erroneous admission of evidence at a court below, a timely objection must be made to the introduction of the evidence; specific grounds for the objection should be stated, and; a ruling on the objection must be made by the trial judge.

When Detective Smith was first called as a witness and was asked questions concerning the preliminary hearing, the defense counsel made a general objection and asked to approach the bench. The record discloses a “discussion off the record” took place after which the court stated, “Overruled.”

Later, on cross-examination, the defense established that appellant was not represented by counsel at the preliminary hearing, but no motion was made to exclude the testimony of Detective Smith on that ground. We do not know what ground for objection, if any, was related to the trial court during the off-the-record discussion. The record is completely silent in this regard.

As to the above quoted testimony of Detective Smith of which appellant complains to this Court, we find no objection was raised to any of the three questions, and no motion to exclude was made after the answers were given. We, therefore, have nothing to review. Daniels v. State, 53 Ala.App. 666, 303 So.2d 166 (1974); 7 Alabama Digest, Criminal Law, &wkey;1028, 1029 and 1030.

AFFIRMED.

All the Judges concur.


text:
    Johnny Otis CRAWFORD, alias v. STATE.
    6 Div. 71.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Spencer T. Bachus, III, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of burglary of an inhabited dwelling in the nighttime and sentenced to imprisonment for ten years. His only contention on appeal is that he has been deprived of his right to due process of law guaranteed to him by U.S.Const. amend. V and Ala.Const. art. 1, § 6. He bases his contention on a pre-arrest delay of twenty-three months, the alleged crime having been committed on March 14, 1973, and his arrest having been made on February 14, 1975. He expressly disclaims any violation of his Sixth Amendment right to a speedy trial, acknowledging that such a contention is foreclosed by United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), in which it was said: “. . . But we decline to extend the

reach of the amendment (Sixth Amendment) to the period prior to arrest. .” United States v. Marion, 404 U.S., at 321, 92 S.Ct. at 464, 30 L.Ed.2d at 479.

According to the testimony of Reginald Eberhart, sixteen years old at the time of the crime, a man was seen by him in the hall outside his room at about one A.M. March 14, 1973. He “hollered,” “Momma, someone is in the house,” and the man ran down the steps and out of the house. The house had been broken into and property taken therefrom. The Police Department was notified; Reginald identified defendant from pictures shown him by the police. A warrant was issued for defendant that day, but the warrant was returned without service, it being shown thereon that defendant was not at the address given for him. On May 31, 1973, defendant was arrested and placed in the Jefferson County jail on another charge, a charge of grand larceny. He remained in jail on the larceny charge until conviction and transfer on January 15, 1974, to Draper Correctional Institute, where he remained until January 13, 1975. On February 14, 1975, he was arrested on another charge that was dismissed, but while under detention on the other charge, he was additionally restrained on the charge in this case. A preliminary hearing was conducted, for which he was appointed counsel, and he was bound over to the grand jury, which indicted him June 6, 1975. He was arraigned and pleaded not guilty June 13, 1975. His case was set for trial August 4, 1975. On July 29, 1975, he filed a motion to dismiss for delay in commencing the prosecution; a hearing thereon was conducted on August 4, 1975, prior to the trial of his case; after considering defendant’s affidavit and his testimony on the motion, and argument of counsel, the court overruled the motion and proceeded with the trial.

No explanation was given for the twenty-three months delay in the execution upon defendant of the warrant for his arrest other than by a stipulation of parties that, “Through some set of circumstances, through inadvertence, or carelessness, or whatever, he was not, back then, ever arrested on that warrant, through possible change of duties on the part of some detective, or something of that nature,” and that the warrant was “assigned to officers in the Sheriff’s Department who served, and they made an effort to serve the warrant, and it was returned the 21st day of March, 1973, being not found at that address,” and “at that point it was filed.”

Realizing that he must show that the delay caused defendant substantial damage to his ability to present a defense, reliance is placed upon his affidavit, “I have no way of knowing where I was or who I was with on March 14, 1973. As a result I cannot possibly prepare an effective defense to this prosecution,” and his testimony on the pretrial hearing to the effect that he was not able to remember any events of that day, or surrounding days, but that he was able to recollect that he was living on that day with a “girl named Betty Jones,” who had moved to Detroit, according to information obtained from a friend of defendant.

Young Reginald Eberhart positively identified defendant. He had seen defendant on occasions prior to the burglary and on occasions after the burglary. He was forthright and unshaken by vigorous cross-examination. We detect no weakness, no flaw, no unreasonableness in his testimony.

Defendant did not take the stand on the trial and offered no testimony whatever on the issue of his guilt or innocence.

Appellant relies chiefly upon a line of cases of the United States Court of Appeals, District of Columbia Circuit beginning with Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965) to the effect that an unreasonable or unnecessary pre-arrest delay which results in prejudice to an accused may require a dismissal of the charges against him. The most recent of such cases is United States v. Jones, 173 U.S.App.D.C. 280, 524 F.2d 834 (1975), wherein the court notes three basic requirements for the application of the principle, (1) purposefulness of the delay, (2) unreasonableness of the delay, and (3) prejudice to the defendant. As this case is to be resolved on the absence of the last requirement, we will not discuss in detail the other two. We should observe, however, that no contention is made that the delay was intended, that the State sought an advantage by the delay. As to the question of the unreasonableness of the delay, unquestionably the delay was for an unreasonable length of time, but its reasonableness is not to be measured merely by the length of time involved. The factor of culpability vel non enters the problem. It may be difficult to explain, consistent with reasonable care, the failure to take action on a warrant for a period of nearly two years, but we cannot ignore, and criminals should not be allowed to profit by, the overload that recent criminal activities have imposed upon law enforcement authorities.

We note that the vague affidavit and testimony of defendant present nothing more than a bare possibility that the delay in his arrest prejudiced him in his defense of the case against him. In United States v. Jones, supra, at 843, it is stated:

“. . . Under the test enunciated in Ross and refined in cases like Robinson, appellant still has the burden of demonstrating some ‘special circumstances,’ or some prejudice to his case. Such a showing requires more than a general assertion that the accused has difficulty remembering the day of the illegal transaction.”

Also directly in point is the statement in United States v. Jones, supra, at 844, as follows:

“. . . Thus, after Robinson, the Ross requirement that the accused present a ‘plausible claim’ of prejudice is not satisfied by the mere assertion that the accused cannot remember his whereabouts on the day of the offense or by the ‘slender hope’ that a witness, now unavailable, night have been able to come forth with testimony favorable to the defense.

Courts are not required to be so gullible as to attach much credence to one’s statement that he does not remember enough about his whereabouts on a night two years before to know whether he committed a burglary at that time. The trial court properly overruled defendant’s motion to dismiss.

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Grant Allen JACKSON, Jr., alias v. STATE.
    6 Div. 917.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.

      Edward L. Ramsey, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant does not contend that the evidence was insufficient to support the verdict of the jury that he was guilty of murder in the first degree. Our review of the record convinces us that no reasonable contention to that effect can be made. There was abundant evidence that defendant and two others met deceased and three others while all of them were carousing in one of the night spots in downtown Birmingham and moved with them from one drinking place to another until they arrived at still another in the fourteen hundred block between Fifth and Sixth Avenues North at about two A.M. One of the group of four there left the others and went home. At the rear of the place of business the group that included defendant robbed the other group, after defendant had told the other group, including the deceased, to put up their hands and fatally shot the deceased with a pistol. Thereafter the three robbers fled from the scene.

While the panel of jurors from which the jury was to be selected to try the case were being seated in the court room, defendant’s counsel made known to the court that he desired to present a matter out of the hearing of the jury. All jurors were then sent out of the court room and the following occurred:

“MR. HERRIN: I move to quash this venire on the grounds that the defendant was handcuffed at the time the jury came in. Based on that I don’t think he could get a fair trial from this jury.
“THE COURT: Well, I think the jury just came in just for a second and his hands were under the table and I don’t believe anybody saw it. They were only in for just a moment, and you may ask anybody about it, but I will overrule it. “MR. HERRIN: I except.”

Thereafter, during the process of interrogating the jurors, defendant asked them if any of them saw defendant with handcuffs on when they first came into the court room. Three answered that they did. Thereupon, the court stated:

“THE COURT: There is absolutely no presumption against this man because of that ladies and gentlemen. If that affects anybody's judgment at all please let me know now.”

There was no response from any other jurors and nothing further was said about the matter during the trial.

Speaking to a similar situation in Moffett v. State, 291 Ala. 382, 281 So.2d 630, cert. denied 414 U.S. 1161, 94 S.Ct. 924, 39 L.Ed.2d 114, the court said:

“We are not persuaded that there is reversible error because the defendant was brought into the courtroom handcuffed to a deputy sheriff. The handcuffs were immediately removed from him after he was brought into the courtroom during the trial. Edwards v. State, 279 Ala. 371, 185 So.2d 393 (1966). A sheriff who is charged with the responsibility of safely keeping an accused has the right in his discretion to handcuff him when he is bringing him to and from the courtroom, when the handcuffs are removed immediately after he is taken into the courtroom. Smith v. State, 247 Ala. 354, 24 So.2d 546 (1946); Faire v. State, 58 Ala. 74 (1877). The record shows that defendant was in jail at the time of his trial.”

In every material way the facts are the same in this case as in Moffett. The action of the trial court was not erroneous.

During the course of the reading of a lengthy statement made by defendant after his arrest and after all constitutional requirements for the admission of incriminating statements had been established, there was included the following:

“I asked him if he had recently gotten out of the penitentiary and he said he had been out about a month or so. I asked him what he did time for and he said stealing in Florence, Alabama. I asked him did he go down for burglary and grand larceny and he said I think it was burglary and grand larceny, it was burglary I know.”

Immediately thereafter, the court said:

“Let’s not go into that. That, ladies and gentlemen, that he has just read has nothing to do with this case and I ask you not to consider it.”

Appellant now complains that the bringing of such information to the attention of the jury constituted a violation of the general rule that evidence of other crimes is not admissible. However, there was no objection to the particular evidence, although there was an objection to the statement as a whole, which evidently was in written form and observable by both parties and attorneys prior to the partly paraphrased reading therefrom as noted above. Defendant made no motion to exclude the portion of the statement now found to be objectionable. In the absence thereof no action of the trial court is presented for review. Woods v. State, 54 Ala.App. 591, 310 So.2d 891. Furthermore, without being asked to do so, the court excluded the objectionable material from the consideration of the jury, which apparently satisfied defendant, as no further action on the subject was invoked. It should be noted also that the particular questions were prompted by what defendant had told the witness as to his acquaintance with one of the other robbers, saying that he had known him “about ten years, he had been on and off in the penitentiary, not in the penitentiary but in the jail house.”

The pistol that, according to substantial evidence, defendant used in the robbery and in killing his victim was admitted in evidence over the objection of defendant, which action of the court appellant now urges as prejudicial error. The pistol was found near the back seat of a police car, in which defendant and his brother had been placed and brought to the police department, the night following the commission of the crime. He and his brother had been taken from the car at the time the pistol was found on the floorboard next to or underneath the overhang of the seat upon which defendant had been sitting in the automobile. Any claim to an illegal search of the vehicle or an illegal seizure of the pistol as property of defendant would have to be based upon the conclusion that he abandoned the pistol in the automobile. He lacked standing to object to the search of the police car in that he lacked a posses-sory or proprietary interest in it. Moore v. State, 44 Ala.App. 113, 203 So.2d 460. Lack of standing continued as to any objection to the seizure of the pistol that he had obviously abandoned in the automobile of the arresting officers. Hodges v. State, 48 Ala. App. 217, 263 So.2d 518.

We have considered all questions raised by appellant and have searched the record for error prejudicial to defendant. There being none, the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Reynold FREEMAN v. STATE.
    6 Div. 936.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.

      Larry Waites, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for the State.
   HARRIS, Judge.

Freeman was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. Throughout the trial proceedings in the Circuit Court of Jefferson County he was represented by a Court-appointed lawyer who had considerable experience in the trial of criminal cases. At arraignment he pleaded not guilty. When sentence was imposed, he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on this appeal.

The evidence presented by the State was uncontradicted. Appellant did not testify nor did he offer any evidence in his behalf. At the conclusion of the State’s case appellant moved to exclude the evidence presented by the State on the ground a prima facie case of guilt had not been shown. This motion was overruled.

Alice Stanfield, widow of the deceased, Charles Stanfield, testified that on the night of August 30, 1974, she and her husband went to the Magic Mart in Ensley, Jefferson County, Alabama, to wait for Brenda Banks to get off work so they could carry her home. Brenda Banks, a relative of the deceased, was the cashier at this store. Around 10:45 p. m., three men wearing masks and carrying weapons entered the store and announced they were holding up the store and for everyone to stand still. The deceased was armed with a .38 caliber pistol and one of the trio stated, “That man has a gun, get it.” The robber standing next to the cashier fired his pistol and during the next few minutes there was a volley of gunfire. One of the bandits cried out that he was shot and started limping toward the front door holding his left leg. The other two robbers left the store ahead of the wounded man and were still firing their weapons as they exited the store.

Brenda Banks, a niece of the deceased, testified that she was the cashier at the Magic Mart in Ensley on the night of August 30, 1974, when three masked men, carrying guns, held up the store. The men were wearing ladies’ stockings over their heads. The deceased and Alice Stanfield were in the store at the time. The deceased was armed and one of the bandits saw him and alerted the others. She stated that the robber who saw the deceased with a pistol fired the first shot and then there was a lot of shooting. The three men left the store, one holding his left leg. Miss Banks tried to activate the store burglary alarm system but it failed to function. She said a woman by the name of Shirley Springer came in the store and called the police who arrived about ten minutes later.

Susan Banks, sister of the deceased and the mother of Brenda Banks, testified that she was in the store at the time it was held up by three armed men wearing masks. She identified appellant as one of the three robbers as she had seen him in the store previously when he came in to pick up one of the cashiers. She said the stocking he was wearing was thin and she recognized him. She further testified that when she saw the robbers come in the store she exclaimed, “Lord, have mercy. This is a stick up,” and appellant said, “You damn right it is.”

Alonzo Thomas identified appellant as Reynold Freeman, also known as “Bump.” He saw appellant about 9:20 p. m. on August 30,1974, at which time appellant asked to borrow his .38 special pistol for protection at a party that he was going to attend that night. He was shown State’s Exhibit 1 as being the same pistol he loaned appellant. He stated he next saw appellant and his brother, James Freeman, at about 9:55 p. m. on a street corner in East Birmingham with seven or eight other men. James Freeman was also known as “Flap.”

Jacqueline Foy testified that appellant, James Freeman, Lloyd Tyrone Cook, and five or six others were at her apartment on the night of August 30, 1974. They all came in around 11:00 p. m. She stated that appellant told her that James Freeman had been shot while at a party. She stated they stayed there for approximately one and a half hours until James Freeman was carried to a hospital. She further testified that the next day Captain Myers and Sergeant Grubbs came to her apartment and found some guns in a closet wrapped in a skirt of hers, and she saw the guns at that time. She identified both the .38 pistol and the .22 pistol. She said she didn’t see anyone leave anything there the night before.

Addie Thedford testified that she saw appellant and Lloyd Tyrone Cook at her house on the night of August 30, 1974. Appellant told her that James Freeman had been shot at a party. She stated that appellant was her uncle. She said she went to the University Hospital where she saw James Freeman. She further testified that around 4:00 a. m. on August 31, some detectives came to her house and found a pair of jeans in a garbage can in her kitchen.

Reginald Jones testified that on August 30, 1974, he saw appellant and James Freeman at Jacqueline Foy’s house and that appellant said something about the pistol hanging up; “That the pistol misfired at him.” He identified State’s Exhibit 1 as the pistol he saw lying on the floor of the Foy apartment that night. He also affirmed that in a statement given to Captain Myers he stated that appellant told him he could have stopped his brother from getting shot.

Sergeant William T. Galt of the Birmingham Police Department testified that he was assigned to the homicide division and that he investigated the occurrence at the Ensley Magic Mart on August 30,1974. He identified photographs depicting various scenes at the store that night. He also took several statements from witnesses at City Hall. He talked with appellant at the City jail. He identified State’s Exhibit 17 as the transcription of a statement made by appellant on the afternoon of August 31, 1974. He further testified that before asking appellant any questions he read him the Miranda rights and warnings.

A voir dire hearing was held out of the presence of the jury. Sergeant Galt stated that he and Captain Myers took appellant into custody at Jacqueline Foy’s house. He was read his rights and carried to the City jail. Appellant told the officers that he understood his rights and wished to make a statement. When they told him he had a right to talk to a lawyer and have him present during the interrogation, and that if he could not afford a lawyer one would be appointed to represent him, he said he could not afford a lawyer but he did not request that a lawyer be appointed to represent him. In his statement appellant said that he picked up Lloyd Tyrone Cook and James Freeman and went to his house to get three guns. Then they stopped at another Magic Mart and bought stockings for masks and then went to rob the store for money for school. Appellant further stated that when the shooting started, he and his brother returned the fire at the deceased.

In appellant’s oral statement to the officers he said that he cut the jeans his brother was wearing at the time he got shot and threw them in a garbage can in Addie Thedford’s house.

Captain B. R. Myers of the Birmingham Police Department testified on voir dire that he was involved in taking a statement from appellant at the City jail. He stated that no one in his presence told appellant that things would be more lenient if he gave a statement, and no one offered him a reward or hope of reward in return for a statement, nor did anyone threaten or coerce appellant into making a statement. He further testified that appellant gave him a statement in his own handwriting concerning the robbery and the shooting at the Magic Mart on the night of August 30, 1974. The signed written statement is as follows:

“Sept. 1, 1974 5:30 P.M.”
“Aug. 30, 1974, Loyd Cook, James Freeman, I Reynold Freeman went to Majik Mart in Ensley. As we entered it a man came from out the aisle & Loyd said that he had a pistol & told him to drop it. Instead he came around the first aisle & started shooting. He shot James in the leg & proceeded out the door shooting as we were attempting to go out the door. He continued to shoot back in the store so I shot out the window & shot as I ran out the door & we left never knowing the condition of the man & later on that night Capt. Myers said the man was dead.”
“I know my rights & I’m writing this on my own accord.
Reynold Freeman
Capt. Myers, Sept. 1, 1974, 3:45 p. m. Lt. J. R. Hipp, Sept. 1, 1974, 3:45 p. m.”

At the conclusion of the voir dire hearing the trial court overruled and denied appellant’s motion to suppress the confessory statements made by appellant. The Court found that appellant’s confession was knowingly, intelligently, and voluntarily made.

The Deputy Coroner of Jefferson County, whose qualifications were not questioned by the defense, testified that he first viewed the body of the deceased outside the store where the shooting occurred and the man was dead at that time. Later he performed an autopsy on the body of the deceased and rendered an opinion that the cause of death was due to a gunshot wound to the chest.

After the corpus delicti was proved the State laid the proper predicate for the admission into evidence the oral and written confessions of appellant.

Appellant’s only claim of error on this appeal is that the State did not prove that his confession was voluntary. We disagree.

In holding appellant’s confession was voluntary the trial court meticulously followed a long line of State and Federal cases on this issue. McCord v. State, 48 Ala.App. 460, 265 So.2d 902; Stewart v. State, 49 Ala.App. 681, 275 So.2d 360; Duncan v. State, 278 Ala. 145, 176 So.2d 840; Harris v. State, 280 Ala. 468, 195 So.2d 521; Sanders v. State, 278 Ala. 453, 179 So.2d 35; Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593.

We have carefully searched the entire record for errors which injuriously affected the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Gary JONES v. STATE.
    7 Div. 486.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.

      Robert B. French, Jr., Fort Payne, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of rape and the jury fixed his punishment at ten years in the penitentiary. Appellant had retained counsel at arraignment and entered a plea of not guilty. On the day his case was called for trial his retained counsel informed the Court that appellant had not paid any amount on his fee although he had made numerous promises to do so before trial and counsel told the Court that he was withdrawing from the case.

The trial court asked an experienced trial lawyer if he would accept appointment to represent appellant and suggested that the case be passed one week to afford new counsel time to prepare the case. This lawyer conferred with appellant for about an hour and told the Court that he would represent appellant and that appellant did not wish a continuance but wanted an immediate trial. The trial court informed appellant that he would issue instanter subpoenas for any witness or witnesses prior to going to trial but appellant assured the Court that he did not want to summon anyone and the case went to trial on August 23, 1976, about eleven months after the alleged rape was committed.

At the conclusion of the District Attorney’s argument, during which appellant’s counsel made no objections, appellant moved for a mistrial on the grounds of improper and prejudicial argument. The Court considered the motion and refused to grant a mistrial but informed counsel that he would charge the jury not to consider argument of counsel as evidence in the case. The Court did so charge the jury and more will be said with reference thereto later in this opinion.

Appellant filed a motion for a new trial in which he raised the sufficiency of the evidence for the first time. This motion was also predicated on the refusal of the trial court to grant a mistrial because of the improper and prejudicial argument of the District Attorney in his closing argument to the jury. The motion for a new trial was submitted on argument only and the motion was denied.

The evidence was in sharp conflict and this made and presented a question for the jury to resolve. The testimony adduced by the State showed a brutal and aggravated case of rape committed by appellant on the victim. While appellant admitted that he was in the victim’s company for two or three hours, he denied that he raped her and denied that he had sexual relations with her.

The victim was a 22 year old senior at Auburn University and on Saturday, October 4, 1975, her boyfriend, Jim Conner, invited her to go to Mentone in DeKalb County to visit some of his friends who were spending the weekend at Camp Laney. They arrived at Camp Laney Sunday morning around 6:00 a. m. After spending the day and having supper they decided to drive back to Auburn late that night. Jim Conner was driving the victim’s car and as they descended Lookout Mountain towards the town of Valley Head they were stopped by police officers who told Conner he would have to go to Fort Payne and take a breath test. While they were stopped on the highway a man driving a noisy red or orange Volkswagen arrived at the scene and had a conversation with one of the officers. This was observed by the victim.

After Conner left in the patrol car with two of the officers, the victim, who had never been to Mentone before that weekend, decided to try to find her way back to Camp Laney. She turned her ear around and as she started back up the mountain she noticed the man in the Volkswagen was following closely behind her.

After driving several miles the victim realized that she.did not know the route back to Camp Laney and she pulled her car over to the side of the road in order to turn around. Just as she started to make a U-turn, the man who had been following her got out of his Volkswagen and approached her car. He identified himself as Gary Jones, stating that he was an off-duty policeman, and offered to help her. He told her that he knew a judge who would have the Valley Head police officers release her boyfriend. He suggested that she lock her car and get in his car and they would go see the judge. The victim was confident that this man was a police officer because of his assurances and the fact that he had stopped to talk with the officers who had stopped Conner back in Valley Head. She locked her car and got in the car with Gary Jones.

As Jones drove along the highway he explained to the victim that he had been drinking and did not want to see the judge because he was a policeman. He asked the victim how she was going to pay him back for all his trouble and drove his car down a dirt road and stopped. She told him that she did not have any money with her, and he said, “That’s not what I mean. I mean for you to_” He asked her if she was a virgin and when she replied in the affirmative he laughed insanely and threatened to kill her if she did not “_ -” She attempted to jump out of the car at that point but Jones grabbed her by the neck and started choking her. He pushed her into the back seat and removed all her clothing from the waist down and tried to force her to perform fellatio on him, but she vomited. Then he threw her out of the car onto the ground and had intercourse with her. In an effort to make him stop the victim started praying and even feigned an epileptic fit but Jones became more infuriated and choked her until she was almost unable to breathe. Several times he told her he would kill her if she did not stop screaming. She stated he threatened to kill her at least six times.

When Jones had gratified himself he ordered the victim to dress and get back in the car. He told her to sit up and look straight ahead as he drove her back to her car. He told her he would kill her if she told anyone what had happened. On the way to her car they were stopped by a police officer but she did not raise her head to look at the officer and made no outcry or complaint because she feared for her life in the light of the threats of death by Jones.

After they reached her car Jones told her to follow him. She paid no heed to this directive and drove off at a high rate of speed. Hoping to lose Jones, she pulled down a side road and stopped at the first house she saw and knocked on the door. A young boy came to the door and let her in the house and the boy’s mother, Mrs. Barbara Webb, came to her and the victim told her that she had been raped by a policeman. The victim begged Mrs. Webb not to telephone the police for fear that Jones would find her and kill her. Mrs. Webb offered to lead the victim back to Camp Laney where she hoped to find Conner and the victim followed Mrs. Webb to the camp.

When the two women reached Camp La-ney, the time was about 6:00 a. m. Conner was standing outside as they drove up and Mrs. Webb turned around and left without further conversation. The victim told Jim Conner what had happened. She then called her home in Texas to ask her parents what to do. After waiting for hours in vain for the arrival of the Sheriff whom the victim thought her father had contacted she and Conner left for Auburn where she went to the Lee County Hospital emergency room for examination and treatment.

In the emergency room the victim was seen and thoroughly examined by Dr. Thomas M. Chase, a gynecologist, who testified at the trial that he had been notified of the rape by the victim’s sister. Dr. Chase testified that he performed a pelvic examination on the victim and found the hymen had been ruptured and that she was a virgin before she was raped. He further testified there was a bruise on her right cheek and it was fresh. He stated there was a hematoma or blood clot of the left hymenal ring and a laceration of the vaginal four-chette. He further testified that the rape had been a brutal assault and that semen was still present in her vagina when he examined her. The doctor further testified that from the history he obtained from the victim it revealed that she was in her mid-cycle and could most easily become pregnant. That he gave her hormone pills to prevent pregnancy and treated her with an antibiotic to prevent venereal disease and medication to prevent nausea.

The clothing worn by the victim was personally delivered by her to William H. Landrum, a toxicologist with the State Department of Toxicology in Auburn, Alabama. He testified that he found stains in the crotch area of the blue jeans and also stains in the crotch area of her underpants. He stated his examination revealed these stains to be blood and spermatozoa or semen.

Appellant was arrested on November 2, 1975, upon his return from a trip to Columbus, Georgia. As above stated he admitted being with the victim for two or three hours in the early morning hours on Sunday, October 5, 1975, but denied that he raped the victim. He also denied that he told her he was an off-duty policeman and denied that he had ever made the statement to anyone that he was a policeman. He also denied that he had been drinking in a night club in Chattanooga the evening before the rape.

On rebuttal the State produced witnesses who testified that appellant told them he was a policeman in Mentone and that he had been in a night club in Chattanooga drinking the night before he got with the victim.

Appellant urges a reversal of this case based on the closing argument of the District Attorney. As we have pointed out, appellant did not object to the argument of the District Attorney except in one instant and his objection was sustained.

In brief and in oral argument before this Court, appellant’s counsel states that the District Attorney made the following argument to the jury:

“How would you feel if it was your daughter? How do you think this father feels? How would Mr. French feel if it was his beautiful daughter? You wouldn’t like it and he wouldn’t like it, and I don’t like it, and you’ve got to do something about it.”

The record is devoid of any such statement. The record does reflect that after the District Attorney had closed his argument, and out of the presence and hearing of the jury, the following occurred:

“MR. FRENCH: I have a motion for mistrial on the grounds that the District Attorney put the jury in the same position as the victim of the crime and did that on more than one occasion. ‘Put yourself in the position of Miss_Put yourself in the position of her father.’ We think , we’re entitled to a mistrial on those grounds.
“THE COURT: I’ll deny the motion.
“MR. FRENCH: Secondly, I’d like the jury to be instructed as to these facts, and I didn’t object at the time, that her father told her to return to Auburn on that afternoon and that the policemen were gone to Gadsden to investigate a robbery. That wasn’t in the testimony.
“THE COURT: Gentlemen, I’ll instruct the jury that what the lawyers have said is not evidence in the case.
“MR. FRENCH: We except to the Court’s ruling on the motion.”

In the Court’s oral charge to the jury he stated:

“Gentlemen, in determining what the true facts in the case are you are limited to the evidence that has been presented from the witness stand as opposed to matters that have been stated by the lawyers in the course of the trial. What the lawyers have said, both for the state and for the defendant, is not evidence in the case. What they have argued to you at various points in the trial is not evidence. They have a right and a duty at the appropriate time in the trial to comment on the evidence and to draw reasonable inferences from the evidence as they argue their respective positions to you. What they say is not evidence and you should put what they say in a proper category in your thinking and it should not be in the evidence category, just as the indictment in the case should not be in the evidence category.”

Since appellant did not object to the argument of the District Attorney and invoke a ruling from the trial court this matter is not presented to this Court for review. The argument complained about is not set out in the transcript and we are bound by the record. Canady v. State, 55 Ala.App. 473, 316 So.2d 720.

In Embrey v. State, 283 Ala. 110, 214 So.2d 567, the Supreme Court held:

“If counsel wishes to preserve for review any ruling of the trial court made during closing argument, he must object and point out to Court that portion of argument to which he objects and when that is done it is made part of the record for appellate review.”

Even if the claimed error had been properly preserved we do not consider the argument to be so grossly improper, prejudicial or inflammatory that it could not have been eradicated from the minds of the jury upon proper instructions from the Court. But, absent an objection, the Court was not afforded an opportunity to so instruct the jury to disregard the argument of the prosecutor. Windom v. State, 18 Ala.App. 430, 93 So. 79.

In Sharp v. State, 193 Ala. 22, 69 So. 122, the Court said:

“The effect of our decisions is that a mere objection to already spoken words does not reach the evil aimed at, and that the court must be appealed to to exclude them from the consideration of the jury, failing which there is nothing presented for review by an exception.”

We cannot know what effect the argument of the District Attorney had on the minds of the jury. However, we are not persuaded that the jury was prejudiced or inflamed as they fixed appellant’s punishment at only ten years in the penitentiary for one of the most brutal and aggravated rape cases that has reached this Court in a long time.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except BOWEN, J., who recuses himself.


text:
    Roger Carlos HOUSE v. STATE.
    8 Div. 884.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.

      Robert H. McKenzie, for Holt, McKenzie, Holt & Patterson, Florence, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of burglary in the first degree and the jury fixed his punishment at ten years imprisonment in the penitentiary. Throughout the trial proceedings in the Circuit Court of Lauderdale County appellant was represented by Court-appointed counsel. Appellant is in this Court with a free transcript and trial counsel represents him on this appeal.

The sufficiency of the evidence is presented by a motion to exclude the State’s evidence on the ground that the State’s entire case rested on the uncorroborated testimony of an accomplice. Appellant also made a motion for a new trial raising the same point. Both motions were overruled and denied.

Mrs. Juanita M. Hargett testified that on Monday, February 2, 1976, she was alone in her home at 3275 Old Chisholm Road, Florence, Alabama. That at about 1:30 a. m. she was reading in bed and heard her telephone ring two or three times but she did not get out of bed and answer the telephone. She stated that about ten minutes later her dog, who roamed the yard inside a six-foot high chain link fence, started barking under her bedroom window. She then heard something hit the windows in her basement and heard two men talking. She dialed the operator and asked her to call the police station. While she was talking to the police dispatcher she heard the people who had entered her basement come up the stairway and stop just outside her bedroom door and they were still talking as they approached her bedroom. At this time she started talking louder on the telephone and she heard the men leaving her house. When the officers arrived she went to the basement with them and observed a number of window panes had been broken out of her basement windows and a door which had been closed when she went to bed was standing open. She did not see the men who broke into her house and she did not miss any property after the two men departed in an automobile.

Police Officer Britt Hendon of the Florence Police Department testified that he was working the 11:30 p. m. to 7:30 a. m. shift on February 2, 1976, and was in his patrol car when he received a call from the dispatcher relative to a burglary at the Hargett home. He immediately proceeded toward the Hargett home when he saw a 1969 beige over gold Electra Buick car coming out of the south exit of Old Chisholm Road. He stated that he and his partner, Officer Womble, pursued the Buick. He turned on the blue light and siren and the Buick speeded up. He radioed another police unit that they were in “hot pursuit” of the Buick which had just come out of Old Chisholm Road where the break-in occurred. The officers stopped the Buick a few blocks from where Mrs. Hargett lived. He further testified that appellant was in the passenger side of the Buick and Ellie F. Martin III was the driver. Officer Hendon stated that appellant was arrested, handcuffed and put in the patrol car and that he was not intoxicated at the time of the arrest. He said that Martin had masking tape around his fingers but no tape was on appellant’s fingers. He stated that he knew both appellant and Martin and they were searched for weapons before they were put in the patrol car. Martin had a .38 caliber pistol on his person but appellant was not armed. Both men were given the Miranda rights and warnings at the time they were arrested.

Ellie F. Martin III, the co-indictee, testified that he had known appellant four or five years and he also knew Mrs. Hargett. That he had worked on Mrs. Hargett’s roof several months before the burglary and had seen guns, a television set and other valuable articles. He further stated that he was with appellant on February 2,1976, and had been with him several days prior to that date. He said that at that time he had a drug habit and so did appellant. He told appellant about the things he had seen in the Hargett house and that it was a good place to break into. That he and appellant drove by the Hargett house a couple of times to see if anyone was at home and he also called her a couple of times. The telephone calls were not answered and they thought no one was at home and he and appellant drove to the Hargett house in a 1969 Buick Electra that belonged to Martin’s father. They parked the Buick on a dirt road in the woods across from the house. Then they went across the road and climbed over the fence surrounding the Hargett house. They were confronted by a dog inside the Hargett fence but the dog went around behind the house and Martin broke the window panes with a two-by-four piece of wood he picked up and he and appellant entered the basement and went upstairs. They heard someone talking on the telephone and they went back down the stairs, opened the basement door, and left. Martin further stated that as they were driving away they noticed a police car following them and they tried to outrun the police car but pulled over and stopped when the police got right upon them.

Martin stated that when the officers searched him they found and took a .38 automatic pistol from him. He said when he was arrested he had masking tape on his hands and he thought appellant was wearing gloves when they entered the Hargett house.

Martin further testified that for two or three days before the burglary, he, appellant and appellant’s brother had been taking narcotics via needles and drinking alcoholic beverages and at times they were in very bad shape. He stated that at the time of the Hargett burglary he had another burglary charge pending against him in Colbert County which was set for trial the morning after the Hargett burglary. That prior to his testimony against appellant he pleaded guilty to the Hargett burglary and received a ten-year sentence. He claimed he had an understanding with the District Attorney that in exchange for his testimony against appellant he was to receive a ten-year sentence and that this sentence was to run concurrently with whatever sentence he got in the Colbert County case. He went to trial on the Colbert County case and the jury fixed his punishment at 30 years in the penitentiary.

James Womble, a police officer with the Florence Police Department, testified that he was on duty in the early morning hours of February 2, 1976. That he and his partner, Britt Hendon, were answering a call about a breakin at the Hargett house. He stated that he saw a Buick come out the south entrance of Old Chisholm Road and turn left on Wright Drive and they pursued this car at high speed and stopped the Buick a few blocks from the scene of the burglary. He stated that he recognized appellant and when he was ordered out of the car he said, “What’s going on, what’s going on.” He said appellant was not intoxicated at that time. That he put handcuffs on appellant and told him he was under arrest for first degree burglary and appellant walked unassisted to the patrol car. He did not smell alcohol on appellant, that his speech was not slurred; he walked straight and did not stumble at all. He said he read appellant the Miranda rights at the time he was arrested.

The four police officers who took part in the investigation of the Hargett burglary testified they knew both Martin and appellant and their general reputation in the community was bad. One of the officers stated that he would not believe appellant or Martin under oath. The other officers said they did not know whether they would believe these individuals under oath.

Appellant’s brother and his wife testified that for two or three days prior to the burglary of the Hargett house they had been with appellant and Martin and that all of them, except the wife of appellant’s brother, had been consuming large amounts of alcohol, smoking marijuana and injecting barbiturates in their arms. They stated that in their opinion appellant was so under the influence of drugs and alcohol that he could hardly walk and in the condition he was in he could not have climbed over a six-foot chain link fence. Appellant’s brother further testified that Martin tried to get him to go with him and break in the Hargett house but he never actually agreed to do so. He stated that Martin did not want appellant to know about the burglary as Martin did not trust him. He said that he last saw appellant and Martin in the car driven by Martin some time after midnight before the burglary took place and that appellant had passed out. He further testified that appellant’s body system was such that he could be completely intoxicated at 1:30 a. m. and that at 2:15 a. m. he could be walking straight and speaking coherently.

Appellant testified in his behalf and admitted being in the Buick automobile with Martin the morning of the burglary but denied that he climbed over the chain link fence around the Hargett home and denied he entered the house with Martin. Appellant was shown a statement Martin gave the officers which implicated appellant in the burglary and he was asked if that statement was correct. He replied: “What I am saying is incorrect in the statement is this. I do not deny that I was with Elbe Martin. I do not deny that I was in the car. What I am saying is that I never crossed that fence and I never left that car.” He further testified that he knew he and Martin were in a Buick Electra that morning and there was no other person in the car with them. He further stated that at the time the officers stopped them he got out of the car, raised his hands, and walked to the patrol car and knew the police were reading him his rights.

A close question is presented as to whether there was sufficient corroboration of the testimony of the co-indictee to submit this case to the jury. Just because the State’s case is weak and inconclusive does not warrant this Court to disturb the verdict of the jury. In reaching this conclusion we are guided by the pronouncements contained in many adjudicated cases.

In Ross v. State, 74 Ala. 532, the Supreme Court held:

“Corroborative testimony, to meet the requirements of the statute, must tend to connect the defendant with the commission of the offense (Code of 1876, Section 4895); and any legal testimony having this tendency must be admitted. — Lockett v. The State, 63 Ala. 5; Smith v. The State, 59 Ala. 104; Lumpkin v. The State, 68 Ala. 56; Marler v. State, lb. 580. So, proximity and opportunity, when, as in this case, the testimony tends to show the crime was committed at a very unseasonable hour, is a circumstance to be weighed by the jury, in determining the guilt or innocence of the accused. The tendency of each of these species of evidence, as far as they had any tendency at all, was to connect the defendant with the commission of the offense. It was for the jury, and not for the trial court, nor for us, to judge of their sufficiency. The demands of the statute are met, when the corroborative testimony tends to connect the accused with the commission of the offense. Its sufficiency is not a question of law.”

In Moore v. State, 30 Ala.App. 304, 5 So.2d 644, it is said:

“We think and hold that there was sufficient corroborative evidence of the testimony of the accomplice tending to connect the defendant with the offense to warrant submission of the case to the jury. Whether there be such evidence was a question of law to be determined by the trial court, but its probative force and sufficiency, along with the testimony of the accomplice, to establish guilt beyond a reasonable doubt were questions for the jury. Berry v. State, 231 Ala. 437, 439, 165 So. 97.
“The entire conduct of the accused may be surveyed for corroborative circumstances and if from them his connection with the offense may be fairly inferred the requirement of the statute is satisfied. 2 Wharton’s Criminal Evidence, Section 746.
“And statements made by the defendant, in connection with other testimony, may afford corroboratory proof sufficient to sustain a conviction. 2 Wharton’s Criminal Evidence, Section 750.
“The suspicious conduct of the accused may furnish sufficient corroboration of the testimony of the accomplice. 22 C.J.S., Criminal Law, § 812, subsec. d, (3), p. 1404; Newsum v. State, 10 Ala.App. 124, 129, 65 So. 87; Crumbley v. State, 26 Ala.App. 24, 152 So. 55, certiorari denied 228 Ala. 45, 152 So. 57; Slayton v. State, 234 Ala. 1, 173 So. 642.
“Nor need such corroborative evidence be strong, nor sufficient of itself to support the conviction, the criterion being that it legitimately tends to connect the accused with the offense. 22 C.J.S., Criminal Law, § 812, subsec. e, p. 1409.
“Nor need such corroborative evidence directly confirm any particular fact stated by the accomplice. Skumro v. State, 234 Ala. 4, 170 So. 776.
“Under some circumstances proof of proximity and opportunity is held to be sufficient in corroboration of an accomplice. Ross v. State, 74 Ala. 532; Crumbley v. State, 26 Ala.App. 24, 152 So. 55.”

In Miller v. State, 290 Ala. 248, 275 So.2d 675, the Supreme Court said:

“The corroborative evidence need not be strong, nor sufficient of itself to support the conviction. The criterion is that it legitimately tends to connect the accused with the offense.”

In Robinson v. State, 40 Ala.App. 74, 108 So.2d 376, this Court held:

“Further, when an accomplice and an accused are seen together in rather unusual places and times in proximity to the locus of a crime which occurs at an unseasonable hour, the requirements of corroboration are met.” (Emphasis supplied.)

To like effect is the holding in the case of Tidwell v. State, 37 Ala.App. 228, 66 So.2d 845.

In Freeman v. State, 41 Ala.App. 512, 138 So.2d 56, it is said:

“Whether there is sufficient corroborative evidence to go to the jury is a question for the court, but whether the evidence is sufficiently corroborated to warrant a conviction is a question for the jury to determine. Fagan v. State, [35 Ala.App. 13, 44 So.2d 634] supra; Smothers v. State, 38 Ala.App. 153, 83 So.2d 374.
“No rule has been laid down as to the precise amount of evidence required to sustain an accomplice’s testimony, but the general rule is stated in Smith v. State, 230 Ala. 413, 161 So. 538, 542 as follows: ‘It is not necessary that the corroborating evidence refer to any particular statement or fact testified to by the accomplice. If it strengthens the probative cri-minating force of his testimony and tends to connect the defendant with the commission of the offense, it is sufficient to warrant the submission of the issue of guilt or innocence to the jury.’
“Evidence of flight may be considered as corroborative of the testimony of an accomplice. Prophett v. State, 25 Ala.App. 20, 141 So. 257, Pierson v. State, 39 Ala.App. 346, 100 So.2d 47.”

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

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Hezekiah SMITH, alias v. STATE.
    3 Div. 643.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    L. H. Walden, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault and battery; sentence: six months.

On January 31, 1976, a domestic affray took place at a party on McElvy Street in Montgomery, Alabama. The affray culminated with one Rosemary Humphrey suffering a gunshot wound to the neck. The appellant was indicted, in connection with the shooting, for assault with intent to murder and convicted of assault and battery. A detailed rendition of the facts surrounding the shooting is unnecessary. Suffice it to state that an overwhelming case of assault and battery was presented against the appellant at trial.

I

During a hearing outside the presence of the jury, a statement by the appellant was found to be admissible because it was “volunteered.” Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Boyd, 212 Pa.Super. 80, 239 A.2d 853 (1968). After the jury returned, the following colloquy took place:

“Q. Okay. When you walked into the kitchen, sir, prior to talking to the Defendant or placing him under arrest, did the Defendant, Hezekiah Smith, say anything to you or make a statement?
“MR. COLLIER: Now, your Honor, we object to that.
“THE COURT: Overruled.
“Q. Did he, sir?
“A. Yes, sir, he did.
“Q. What did he say?
“MR. COLLIER: We object to what he said.
“THE COURT: Overruled. This is a voluntary statement.
“A. He looked up and said, I shot her. * * * * * *
“MR. COLLIER: Your Honor, before we start cross-examining this witness, the Defendant would object to the Court’s statement a minute ago about this being a voluntary statement.
“THE COURT: The Court having heard the testimony without the presence of the Jury in determining whether or not certain questions should be asked or not has already passed on the question before the Jury was present. The Court still says that under the testimony in this case the only reason the Court would permit it to go in is that this statement was volunteered by the Defendant and no question was asked of him.
“MR. COLLIER: Your Honor, we are going to object to the Court’s remarks.
“THE COURT: Overruled.
“MR. COLLIER: May I state my grounds, Your Honor?
“THE COURT: Yes.
“MR. COLLIER: I believe the question of voluntariness is a question for the Jury to determine and not a question for the Court.
“THE COURT: Well, the Court is due to determine whether it should go before the Jury on the proposition of voluntariness. The Jury has the final determination in determining his innocence or guilt or whether it was a voluntary statement or not a voluntary statement. Go ahead.
“MR. COLLIER: Our exception is noted, I take it, your Honor?
“THE COURT: All right.”

The appellant contends that the trial court erred to reversal because he expressed an opinion that the confession was voluntary. It is clear from the quoted passages above that the trial court merely ruled that the warnings required by Miranda, supra, were not applicable in this case because the statement was “volunteered” or spontaneous. Therefore, we find that the trial court certainly did not comment on the weight or credibility of the confession. We pretermit discussion of further reasons why the trial court’s statement would not constitute reversible error, such as failure to make a timely objection, or whether voluntariness of a confession is for the trial court to determine. See: Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973); Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967).

II

The trial court admitted into evidence a pistol which the State contended was used by the appellant to shoot Ms. Humphrey. The appellant objected to the admission of the pistol contending that the proper chain of custody had not been proven. We find that the proper chain of custody was not proven and that the pistol should have been excluded from evidence at trial.

Several witnesses testified that the pistol in question was similar to that used by the appellant to shoot Ms. Humphrey. No other information was elicited concerning the pistol. There was no attempt to introduce any fingerprints, ballistics test results, nor results of any other scientific tests. Thus, the value of the pistol as evidence against the appellant was nearly nonexistent. The shooting took place in front of a room full of witnesses, and the case against the appellant was overwhelming. Therefore, as the appellant was not prejudiced in the least by admission of the pistol, we find the error complained of has not injuriously affected his substantial rights. Rule 45, Alabama Rules of Appellate Procedure.

Ill

During the State’s closing argument, the following occurred:

“MR. WALDEN: We object to Mr. Price saying Mr. Smith placed no evidence to contradict the evidence put on by the State.
“MR. PRICE: Your Honor, I did not say the Defendant placed no evidence on the stand. I said there was no evidence to contradict what Mr. Huffman said. There is a big difference in that and what Mr. Walden has just stated.
“THE COURT: Well, whatever the lawyers say is not evidence. The Court would instruct the Jury that the burden of proof is never on the Defendant. It is always on the State of Alabama to prove his guilt beyond a reasonable doubt. Go ahead.
“MR. WALDEN: We would like for the record, if it please the Court, to show that we have an objection to those remarks.
“THE COURT: All right. And let the record show that the Court has overruled your objection.”

We conclude that the remark pointed to the lack of contradiction from other State’s witnesses rather than to the appellant’s refusal to testify. In Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974), the State made an argument similar to that quoted above. In affirming the conviction in Tillis, Justice Faulkner reasoned as follows:

“. . . The remark could have possibly been interpreted by defendant as a comment on his failure to take the stand in his own behalf or his lack of material evidence. In an appropriate context this is highly prejudicial and would require reversal. But, here the trial court sustained the objection and immediately admonished the jury not to consider the remark. In view of the indirect thrust of the remark and the prompt action of the trial judge, the remark was rendered ‘innocuous.’ ” (Citations omitted.)

In the present case, the trial court overruled the objection, however, we find that due to the indirect thrust of the State’s remark and the admonition to the jury by the trial court that the remark was innocuous. King v. State, 45 Ala.App. 348, 230 So.2d 538 (1970). We find no reversible error.

AFFIRMED.

All the Judges concur.


author: ROBERTS, Acting Chief Justice.

text:
    Howard BANKS, Appellant, v. STATE of Florida, Appellee.
    No. 49081.
    Supreme Court of Florida.
    Nov. 12, 1976.
    Rehearing Denied March 9, 1977.
    Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   ROBERTS, Acting Chief Justice.

Having been transferred to us from the District Court of Appeal, First District, this cause is before us on direct appeal from the judgment and sentence of the Circuit Court in and for Duval County, that court having inherently passed on the constitutionality of Section 775.082(1), Florida Statutes. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida.

Appellant was charged by indictment with the crime of involuntary sexual battery in that he did unlawfully commit a sexual battery upon an 8-year-old boy by oral union with the sexual organ of the young boy contrary to Section 794.011(2), Florida Statutes.

After jury trial resulted in a verdict of guilty as charged, motion was filed to certify the defendant for a hearing and examination to determine whether he is a mentally disordered sex offender which motion was granted. The trial judge appointed two psychiatrists to examine appellant.

He was adjudicated guilty and the State and the defendant stipulated to a sentence of life rather than death and, thereby, waived the second portion of the bifurcated trial required in capital cases.

Appellant was determined to be a mentally disordered sex offender within the meaning of Section 917.13, Florida Statutes, and was committed to the Florida State Hospital, Chattahoochee, Florida, for care, treatment, and rehabilitation under the provisions of Section 917.28, Florida Statutes.

On appeal to this Court, appellant challenges the judgment and sentence of the trial court on the grounds that the evidence was insufficient as a matter of law to prove a “union” as required by Section 794.011, Florida Statutes, and that Section 775.-082(1), Florida Statutes, which carries a minimum of 25 years imprisonment prior to eligibility for parole constitutes cruel and unusual punishment in violation of the Eighth Amendment to the Constitution of the United States, and Article I, Section 17, of the Constitution of Florida.

Section 794.011(2), Florida Statutes, provides:

“A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger in an attempt to commit sexual battery upon said person commits a capital felony punishable as provided in ss. 775.082 and 921.141. If the offender is under the age of 18, that person shall be guilty of a life felony, punishable as provided in § 775.082, § 775.083, or § 775.-084.”

“Sexual battery” is defined in Section 794.-011(l)(f), Florida Statutes to mean “. oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery shall not include acts done for bona fide medical purposes.”

Our review of the record before us supports the State’s contention that the evidence is sufficient as a matter of law to prove a “union” as required by Chapter 794, Florida Statutes, for an adjudication of guilt of sexual battery upon a person 11 years old or younger. Appellant placed his mouth on the penis of the 8 year old victim and drank his urine. There was a “union” by appellant’s mouth (oral) with the young boy’s penis.

Appellant attacks the constitutionality of the minimum 25 years imprisonment prior to eligibility for parole found in Section 775.082(1), Florida Statutes, as it applies to him sub judice by Section 794.011(2), Florida Statutes, on the basis that said punishment is cruel and unusual in light of the act committed by him. We cannot agree.

Recently in Dorminey v. State, 314 So.2d 134 (Fla.1975), and Owens v. State, 316 So.2d 537 (Fla.1975), this Court upheld the constitutional validity of Section 775.082(1), Florida Statutes, against the challenge of legislative usurpation of executive power. In Dorminey, supra, this Court opined:

“The determination of maximum and minimum penalties to be imposed for violation of the laws remains a matter for the Legislature. The lower court correctly ruled that Florida Statute 775.082 was constitutional, there being no legislative usurpation of executive power.”

Appellant in O’Donnell v. State, 326 So.2d 4 (Fla.1975), argued that minimum mandatory sentence required by Sections 805.02 and 775.082, Florida Statutes, relating to requirement that one convicted of a life felony be sentenced to life or a term of years not less than thirty, constitutes a cruel and unusual punishment and violates due process and equal protection of the laws. Therein, this Court explained:

“Due to the nature of the crime and the very probable deterrent effect of the statutes here under consideration, we do not deem a minimum mandatory sentence of 30 years to be excessive in terms of constitutional prohibitions.”

We find that the imposition of a life sentence with a minimum 25 years imprisonment prior to eligibility for parole as required by legislative enactment—Section 775.082(1) and Section 794.011(2), Florida Statutes, upon appellant does not amount to cruel and unusual punishment.

However, we feel constrained to point out that the totality of the circumstances, particularly in view of the psychiatric reports, indicate that a re-evaluation of the sentence may be in order; but this Court has long been committed to the proposition that if the sentence is within the limits prescribed by the Legislature, we have no jurisdiction to interfere. Therefore, any request for consideration of that question would be properly lodged with the Governor under Section 8, Art. IV, Florida Constitution.

Accordingly, the judgment and sentence under review are hereby affirmed.

It is so ordered.

ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.