author: PER CURIAM. MADDOX, Justice

text:
    In re Kenneth Wesley DICKERSON v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    77-384.
    Supreme Court of Alabama.
    May 19, 1978.

      William J. Baxley, Atty. Gen., Montgomery, and James L. O’Kelley, Asst. Atty. Gen., Birmingham, for the State, petitioner.
    William H. Mills, of Rogers, Howard, Redden & Mills, Birmingham, for respondent.
   PER CURIAM.

In denying the State’s petition for writ of certiorari, we deem it appropriate to address two points: (1) Whether the specific question propounded by Defendant, and found objectionable by the trial Court, sought information relating to the details of prior controversy between the Defendant and the deceased; and (2) Whether the scope of the evidence solicited relative to such prior controversy was relevant to any, defense raised at trial.

The specific question to which objection was raised and sustained was:

“[Defense Counsel] And, over how long a period of time had there been difficulties between you and Mr. Bishop [the deceased]?
“[District Attorney] Your Honor, I am going to object to this line of questioning at this time, unless the proper predicate for it has been laid.”

It appears that defense counsel merely sought to elicit the time frame during which these difficulties existed. This cannot be equated with a solicitation seeking the specific details of these prior difficulties and confrontations. Thus viewed, such evidence is admissible even under the more restrictive rules applicable for pleas of self-defense. See Crenshaw v. State, 205 Ala. 256, 87 So. 328 (1921).

In answer to the second query stated above, it appears Dickerson raised several possible defenses to this action. Though he did raise a self-defense theory, he also sought utilization of the defense of accidental homicide and sought to negate both the intent and malice elements needed for a first-degree murder conviction. Therefore, as stated in Sashington v. State, 56 Ala.App. 698, 325 So.2d 205, cert. denied, 295 Ala. 416, 325 So.2d 211 (1976), and quoted in the opinion of the Court of Criminal Appeals:

“The rule to the effect that ordinarily evidence of a previous difficulty between defendant and deceased, or between defendant and a third party related to deceased, or connected with the fatal incident in any homicide case, or a case of assault with intent to murder, is not admissible if there is no evidence of self-defense, or if the evidence shows conclusively that defendant was the aggressor thereby negating self-defense as a matter of law, is not controlling in a case of this kind, wherein defendant’s defense is not based upon a claim of self-defense. Even if defendant had claimed that the shooting was in self-defense, this would not preclude him showing that the offense was committed under circumstances reducing it to manslaughter. Reeves v. State, 186 Ala. 14, 65 So. 160 (1914); Byrd v. State, 257 Ala. 100, 57 So.2d 388 (1952). It necessarily follows that in a case in which he does not even claim self-defense he should not be precluded from showing the absence of any one or more of the elements constituting each degree of homicide charged in the indictment, including particularly intention and malice. The question of the admissibility of evidence as to a previous difficulty with deceased or others in homicide cases usually arise in connection with claims of self-defense and is usually determinable by considerations relative to such a claim. But this is not always true.” Sashington, at 702, 325 So.2d at 209.

Evidence as to prior difficulties between Dickerson and the deceased is clearly relevant as to the reason the Defendant had the shotgun with him at the time of the homicide. Furthermore, such evidence could negate the intent and malice elements previously shown by the State. Therefore, such evidence is admissible and the exclusion of such evidence is reversible error. See Arnold v. State, 291 Ala. 149, 279 So.2d 130 (1973); and Bedsole v. State, 274 Ala. 603, 150 So.2d 696 (1963).

WRIT DENIED.

BLOODWORTH, FAULKNER, JONES, SHORES, ALMON and EMBRY, JJ., concur.

TORBERT, C. J., and MADDOX and BEATTY, JJ., dissent.

MADDOX, Justice

(dissenting).

The opinion of the Court of Criminal Appeals, 360 So.2d 1045, states:

“Kenneth Wesley Dickerson, the appellant, testified that on February 17, 1976, Bishop called him on the telephone. During the telephone conversation appellant stated that Bishop called his ex-wife a ‘spick’ and said that he would ‘blow both his and his ex-wife’s heads off.’ Dickerson indicated that they went over to Bishop’s home to ask for an apology. The appellant testified that he took his shotgun because of ‘numerous threats’ he had received from Bishop in the ‘past three years.’ . . . ”

Nevertheless, the Court of Criminal Appeals reversed Dickerson’s conviction because the trial court refused to permit him to show the details of prior difficulties. The trial court permitted Dickerson to testify that shortly prior to the shooting, the deceased had threatened to “blow both his and his ex-wife’s heads off”, and that the deceased had made numerous threats on him during the “past three years.” Certainly, Dickerson is not entitled to a new trial because the trial court prevented him from going into the details of these prior difficulties.

The general rule regarding threats by a victim is contained in McElroy’s Alabama Evidence, 3rd Ed., § 45.01, p. 78:

“In a charge of homicide or assault, the accused may prove a threat by the victim against him as tending to show that the victim was the aggressor. Such a threat, however, can only be proven after the accused has introduced evidence warranting a finding by the jury that he acted in self-defense. These threats are admissible even though the accused had no knowledge of them before the now-charged crime.
“A threat by the victim is not admissible if, at the time it is offered, the undisputed evidence shows that the accused was at fault in bringing on the difficulty or was not in imminent peril of losing his life or suffering serious bodily harm.”.

The facts of this case are not similar to those of Sashington v. State, 56 Ala.App. 698, 325 So.2d 205 (1975). Sashington involved the fatal shooting of an elderly-beloved man at his own birthday party by a neighbor who was a friend of the elderly man and with whom the deceased had never had any prior difficulties. Many persons were in attendance at this birthday party, including the appellant-neighbor and one James Abston, a person with whom the appellant had had some prior difficulties. Amidst the birthday merry-making, several isolated arguments ensued amongst the guests. The appellant, during one of these arguments which transpired on the front porch of the deceased’s home, saw Abston a short distance away waving a shotgun in the air. Apparently sensing danger to himself because of the prior difficulties with Abston, appellant went home and returned with his shotgun. The argument on the front porch was still in progress, and appellant, standing in the front yard with a gun held waist high pointed toward the porch, fired a shot, and the friend fell dead. The context of the Sashington court’s decision shows that the appellant did not intend specifically to kill the honored host, but acted in such a way as to show that he did have the intent to kill a human being standing on that porch.

The opinion in Sashington shows, in short, that “(1) the deceased and the appellant were friends with no prior difficulties; (2) the appellant probably armed himself because of prior difficulties with the shotgun-wielding Abston; (3) appellant did not have the specific actual intent to kill the deceased, and actual malice did not exist toward the deceased.”

Had Dickerson killed a friend here instead of his avowed enemy, Sashington might be applicable. In any event, Dickerson was allowed to prove the prior threats, but was not allowed to go into their details.

I would grant the writ because I think it shows probable merit.

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


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Kenneth Lee RHINE v. STATE.
    7 Div. 573.
    Court of Criminal Appeals of Alabama.
    April 4, 1978.
    Rehearing Denied May 2, 1978.

      C. Michael Quinn, of Bryan, Wiggins, Quinn & Appell, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

This is an appeal from an indictment and conviction for rape wherein sentence was fixed by the jury at fifty years and one day imprisonment. The trial court appointed the appellant’s retained trial counsel to represent him on this appeal.

Three issues are presented for review: (1) The admissibility of the confession of the appellant, (2) the propriety of allowing an in-court identification of the appellant, and (3) the admissibility of the undergarment worn by the appellant at the time of his arrest.

The evidence presented by the state reveals that the prosecutrix was abducted by the appellant from a shopping center in Alabaster, Alabama, around 6:15 or 6:20 on the evening of March 3, 1977. As she returned to her automobile from a grocery store the appellant grabbed her and pushed her into her vehicle. The appellant drove the automobile into the. county eventually stopping on an unpaved road. He made the prosecutrix climb into the back seat of the car and there raped her. The appellant also took twenty dollars from her. He then drove the automobile back to Highway 31 where he got out.

Members of the Shelby County Sheriff’s Department and the City of Alabaster Police Department arrested the appellant around 7:30 P.M. that same night as he was running along Highway 31 in front of the Saginaw Lime Plant, about three miles from Alabaster.

The appellant was taken to the Alabaster Police Station and given his Miranda rights. He confessed to having abducted and raped the prosecutrix. Scientific tests revealed the presence of human blood and semen on the undergarment worn by the appellant at the time of his arrest.

Defense witnesses testified that the appellant was seen in front of the Saginaw Lime Plant at the same time the abduction occurred. The appellant’s common law wife testified that they had engaged in sexual intercourse that morning before the appellant went looking for employment.

I

Initially the appellant argues that his confession should not have been admitted into evidence because (1) it was obtained through coercion and threats of violence and (2) because of his age and mental capacity he was not adequately informed of his constitutional rights.

A.

The appellant testified that an officer of the Alabaster Police Department threatened him and told him that “if he had anything to do with it he would kick my tail”. The officer accused of making this threat denied it. The officers in whose presence the threat was allegedly made denied having heard it. Therefore, whether or not the threat was actually made was a question for the trial judge on the hearing to determine the voluntariness of the confession.

The rule in this regard was stated in McNair v. State, 50 Ala.App. 465, 470, 280 So.2d 171, 176, cert. denied, 291 Ala. 789, 280 So.2d 177 (1973).

“This Court has previously recognized the fact that it is not unusual for the voluntariness inquiry to present conflicting evidence. Edgil v. State, 36 Ala.App. 379, 56 So.2d 677. When such a conflict occurs and the trial judge finds that the confession was voluntarily made, great weight must be given to his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Emerson v. State [281 Ala. 29, 198 So.2d 613], supra; Harris v. State, 280 Ala. 468, 195 So.2d 521; Edgil v. State, supra. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Minirth v. State, 40 Ala.App. 527, 117 So.2d 355, cert. denied, 270 Ala. 228, 117 So.2d 360.”

See also Thompson v. State, Ala.Cr.App., 347 So.2d 1371, cert. denied, Ala. 347 So.2d 1377 (1977); Medders v. State, Ala.Cr.App., 342 So.2d 49 (1977).

Though conflicting testimony was presented the testimony affords a broad basis for the ruling of the trial court that the confession was voluntary. We therefore conclude that the trial court’s ruling was proper.

B.

The appellant also complains that the confession was involuntary because of his age and mental capacity. The controlling facts relied on in support of this contention are that the appellant was nineteen years old; had only completed the first through the ninth grades; was eighteen years old when he completed the ninth grade; and could not read or write.

We considered this matter fully in the case of Parker v. State, Ala.Cr.App., 351 So.2d 927, cert. denied, Ala., 351 So.2d 938 (1977). In determining the voluntariness of a minor’s confession the totality of the circumstances must be considered. Both the age and education of the accused are merely factors to be considered along with all the surrounding circumstances in making a determination of voluntariness. Mental subnormality of an accused does not in and of itself render a confession involuntary. Parker, supra, at 351 So.2d 935; Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967).

On the basis of the facts presented in the record, the finding of the trial court that the confession was voluntary and admissible was also proper in this respect.

II

It is maintained that the in-court identification by the prosecutrix of the appellant was tainted by an impermissibly suggestive out of court photographic identification.

Prior to trial the appellant filed a written “motion to suppress photographic identification”. From the record it appears that a hearing on this motion was continued until the second day of the appellant’s trial. At trial, the prosecutrix was the first witness to testify. On direct examination she identified the appellant as her assailant and the man that had raped her. On cross examination defense counsel brought out the fact that an Investigator with the Shelby County Sheriff’s Department showed her four or five pictures from which she identified the picture of the appellant because “it just looked like him”. Defense counsel thoroughly cross examined and elicited the facts surrounding the out of court identification. This matter was not mentioned in direct examination by the state.

When the county investigator who showed the photographs to the prosecutrix began to testify, defense counsel approached the bench, and after the witness was examined outside the presence of the jury, moved to exclude the pictures as being highly prejudicial. Additional testimony was taken and the trial court granted the •“motion of the defendant to suppress the photograph information”.

At no time during the trial was any objection made to the prosecutrix’s in-court identification of the appellant. As a ground of the motion for new trial it is asserted that the trial court erred “in allowing the in-court identification, the sole identification evidence, to be adequate evidence of the defendant’s commission of this crime, such identification being highly suggestive before and during trial”.

For the reason that it was defense counsel who initially introduced the fact that the prosecutrix had identified the appellant in an out of court photographic identification procedure we find no error in the trial court’s failure to exclude or suppress her testimony. In this instance the appellant has no adverse ruling (except the denial of the motion for new trial) from which to appeal. The pretrial motion to -suppress was granted during trial and was, in fact, never violated by the prosecution. There simply was no objection, or motion to suppress or exclude the identification testimony of the prosecutrix.

In the absence of an appropriate objection during trial, the issue of whether an in-court identification was tainted by a pretrial photographic display is not presented for review. United States v. Weeks, 5 Cir., 487 F.2d 342, cert. denied, 416 U.S. 942, 94 S.Ct. 1948, 40 L.Ed.2d 294 (1973); Glover v. State, Ala.Cr.App., 347 So.2d 592 (1977); McGuff v. State, 49 Ala.App. 88, 268 So.2d 868, cert. denied, 289 Ala. 746, 268 So.2d 877 (1972); McCary v. State, 47 Ala.App. 630, 259 So.2d 683 (1972); Allen v. State, 47 Ala.App. 566, 258 So.2d 909 (1972). Therefore, the admissibility of the in-court identification was proper. There being no objection, the weight or credibility to be given that identification was a question for the jury.

Ill

In final argument the appellant contends that the introduction of his undergarment was reversible error because (1) it was not obtained voluntarily and because (2) the proper chain of custody had not been presented when the clothing was introduced.

There was ample evidence to support a finding that the appellant was not compelled to take off his undergarment and give it to the police officers but that he did so voluntarily upon the officer’s request. The garment itself and the results of any examination it was subjected to were therefore admissible. Washington v. State, 55 Ala.App. 116, 119, 313 So.2d 544 (1975); Cauthen v. State, 48 Ala.App. 286, 264 So.2d 208 (1972).

It is a fundamental rule of criminal procedure that the trial court may determine the order of proof and such rests within the sound discretion of the trial judge. Yessick v. State, 274 Ala. 488, 149 So.2d 818 (1962). Thus evidence, whose admissibility is contingent on proof of other facts, may properly be admitted into evidence subject to its being “connected up”. Holland v. State, 24 Ala.App. 199, 132 So. 601 (1931).

The appellant has been well represented both at trial and on appeal by his retained and subsequently appointed counsel. We have searched the record for error and have found none. The appellant received a fair and just trial. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

All Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Kenneth Lee RHINE.
    77-519.
    Supreme Court of Alabama.
    July 28, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Vernon Cleve McELROY v. STATE.
    7 Div. 572.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.
    Rehearing Denied May 30, 1978.

      Myron K. Allenstein, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

On August 19, 1977, appellant-defendant was indicted for the alleged sale of “a quantity of amobarbital, cocaine hydrochloride, methaqualone, meperidine hydrochloride, phendimetraxine, secobarbital, hydromo-phone, methamphetamine, dextroampheta-mine, methlyphenidate, diethylpropion, controlled substances, to another, contrary to and in violation of Act No. 1407, Art. IV, Section 401(a), of the 1971 Regular Session of the Alabama Legislature, otherwise known as the Uniform Alabama Controlled Substances Act.” He was arraigned and pleaded not guilty on September 2, 1977. His trial commenced on September 27 and was concluded on September 28, 1977. The jury found him guilty and fixed punishment at a fine of $18,000. On October 6,1977, he was sentenced to imprisonment for twelve years.

All of the witnesses testifying in the ease were presented by the State. At the conclusion of the State’s case, defendant rested without testifying himself and without presenting any witness in his behalf.

A well-planned purchase of a quantity of controlled substances had been arranged by the Gadsden City Police for the late afternoon of August 13, 1977. The site therefor and other details were arranged for its purchase from one Howard Dickerson for the sum of $3,300. The sum of money stated had been obtained for the purpose and photographed.

Officer J. W. Gulledge, accompanied by a confidential informant, drove to the scene with the money and parked beside a gold Chevelle automobile. The informant got out.of the car driven by Officer Gulledge and entered the Chevelle. Dickerson approached the Gulledge automobile on foot and sat inside that car for a few moments. Gulledge showed Dickerson $3,300; then Gulledge received a signal from the informant and handed Dickerson the money, who promptly left the scene. The informant got out of the Chevelle with a brown paper bag and its contents in his possession.

In the Chevelle automobile from which the informant obtained the brown paper bag and its contents were two white males, including appellant-defendant and Darrell Phillips, the apparent driver of the vehicle.

McElroy and Phillips were arrested on the scene by other officers and were promptly taken into custody. Howard Dickerson was also arrested and the identical $3,300 that had been handed him by Officer Gulledge was recovered from his possession.

It was beginning to get dark when the incident stated occurred and there was a heavy rain at the time.

There was evidence presented by the State to show that several of the items of alleged controlled substances were in the paper bag.

Although the circumstances as to exactly what took place as between the informer and the two persons in the Chevelle automobile are not shown with the most desirable clarity possible, we must conclude that the evidence is sufficient upon which to base the finding that one of the persons in the Chevelle automobile at the time sold and delivered to the informer controlled substances in consideration of the sum of $3,300 handed Dickerson by Officer Gul-ledge. Appellant makes much of the point that it is not conclusively shown whether the sack of substances was obtained from appellant or from the other person in the Chevelle automobile.

We see little basis for any assumption that the two persons in the Chevelle automobile were not working in concert with each other. There was ample evidence that each aided or abetted the other and was thereby guilty as principal, whether he was the more active or the principal offender or not. Code of Alabama 1940, Recomp. 1958, Tit. 14, § 14. Patterson v. State, 234 Ala. 242, 175 So. 371; Stokley v. State, 254 Ala. 534, 49 So.2d 284.

The participation in a crime and the community of purpose of the perpetrators need not be proved by direct or positive testimony, but may be inferred from circumstantial evidence. Stokley v. State, supra; Parsons v. State, 33 Ala.App. 309, 33 So.2d 164.

Appellant complains that the trial court improperly allowed evidence of defendant’s having a sawed-off shotgun while in the Chevelle automobile and his holding it while he was getting out of the automobile. He says that such evidence constitutes that of the commission of another crime and for that reason is inadmissible. The fact that the possession of a sawed-off shotgun does or does not constitute the commission of a crime has nothing to do with the question of the admissibility of the evidence under the circumstances here presented. It was one of the actual acts taking place during the commission of the crime charged.

“Evidence of other and distinct criminal offenses, at other times and places, is admitted in evidence only in exceptional cases and for limited purposes.
“But this case is governed by another and different principle. Everything constituting the one continuous transaction is admissible as of the res gestae. No matter how many distinct crimes may be involved, all the details of the one continuous criminal occurrence or adventure may be considered by the jury in passing upon the culpability, the wickedness and depravity of the crime for which the party is being tried. . . .” Jackson v. State, 229 Ala. 48, 155 So. 581 (1934)

Appellant urges that there is a variance between the indictment and the evidence by reason of the fact that the indictment does not specify all of the controlled substances that the evidence shows were in the paper bag and further that the evidence does not show that every controlled substance specified in the indictment was in the paper bag. This does not constitute a fatal variance. In Parks v. State, 46 Ala.App. 722, 248 So.2d 761, 762, we held:

“The indictment charged the appellant with unlawful possession of one bottle containing opium alkaloid; twenty ampules containing isonitecaine, and one hundred tablets containing morphine. The appellant contends that there is a fatal variance as the state failed to prove the appellant’s possession of the exact quantity of narcotics as alleged in the indictment. Such is not a variance. It is sufficient to prove only so much of an indictment as shows that the accused has committed a substantial offense specified therein. Fuller v. State, 39 Ala.App. 219, 96 So.2d 829; Blakeney v. State, 244 Ala. 262, 13 So.2d 430.”

During the cross-examination of Officer Gulledge, the following occurred:

“Q Now, in the car with you, that was Phillip Patterson, is that correct?
“A It was a confidential police informant.
“Q Was it Phillip Patterson?
“MR. CARNES: We object, Your Honor.
“Q Judge, this man is a witness to the crime. Now, before we were talking about someone who set up something, allegedly set up something. Here, we are talking about a specific witness to an alleged crime.
“THE COURT: What was the question?
“Q I asked him if it was Phillip Patterson that was in the car with Officer Gul-ledge here.
“THE COURT: And you—
“MR. CARNES: I object to it.
“THE COURT: Sustained.
“Q This confidential informant, is he in the courthouse here today?
“A No, sir, he is not.
“Q Okay, he is not going to testify today—
“A No, sir.
“Q —that you know of? You never got out of the car, is that correct?
“A That is correct, I never moved.”

On redirect examination of the witness, the following occurred:

“Q Officer Gulledge, Mr. Allenstein asked you about the confidential informant and where he is, or if he is here in the courthouse. Do you know where he is?
“A No, I do not.
.“Q All right.
“A I believe he may be out of the state.
“Q Have you seen him in some time?
“A Sir?
“Q Have you seen the informant lately?
“A No, sir, I have not.
“Q I believe that’s all.”

Immediately thereafter, the following occurred:

“RECROSS EXAMINATION BY MR. ALLENSTEIN:
“Q Do you know anything about a Peggy Henderson or a person named Salvador? Do you know anything about them being—
“A I understand they were arrested at the time along with these other persons.
“Q Do you know where [sic] they were involved in all of this?
“A No, sir, I don’t.
“Q You just heard they were arrested?
“A Yes, sir.
“Q Have charges been filed against them, if you know?
“MR. CARNES: We object.
“A I believe they were—
“MR. CARNES: We object.
“THE COURT: I sustain.
“Q Okay. I believe that’s all I have. “(Witness excused)
“MR. ALLENSTEIN: May I approach the bench?
“(Whereupon, a discussion was had outside of the hearing of the jury, during which the following occurred)
“MR. ALLENSTEIN: Judge, it appears from the evidence that the confidential informant actually made the purchase, and he is the only person that has personal knowledge that it actually occurred. Therefore, we move that we be furnished with the name of that informant.
“THE COURT: I’m going to deny that.
“MR. ALLENSTEIN: I just want to get it on the record that we do request the name of that informant, and even a continuance, if necessary, to secure his attendance here at this trial.
“THE COURT: I’m not going to allow you to put him on or to find out about him.
“MR. ALLENSTEIN: I understand. We except.
“MR. CARNES: It is our understanding that he is out of state.”

In Davenport v. State, 50 Ala.App. 321, 278 So.2d 769, 772, we held:

“The general rule that the identity of an informer is privileged and may not be revealed, does not apply in the present set of facts, where the informer, at the instigation, and in the presence of the officer, was an active participant with the accused at the commission of the offense. Authorities, supra.
“We find no other error injurious to the substantial rights of the appellant.
“But the case must be reversed on account of the refusal of the court to admit cross-examination as to the identity of the informer.”

To the same effect and result is Davis v. State, 51 Ala.App. 532, 287 So.2d 243 (1973). In Kenny v. State, 51 Ala.App. 35, 282 So.2d 387, cert. denied, 291 Ala. 786, 282 So.2d 392 (1973), the principle is also declared, but no prejudicial error occurred as defense counsel “on a hunch” called the informer as a witness. In Kilgore v. State, 50 Ala.App. 501, 280 So.2d 206 (1973), the court, in holding that the informer therein was not an active participant, said:

“ . . . The fundamental requirements of fairness compel disclosure in such cases where the informer plays a major and active part in bringing about the sale of narcotics and continues an active participant therein . . . ”

In support of its position that the cited action of the trial court does not constitute reversible error, appellee relies upon Johnson v. State, 54 Ala.App. 187, 306 So.2d 55, cert. denied, 293 Ala. 760, 306 So.2d 56, cert. denied, 95 S.Ct. 1998, 421 U.S. 990, 95 S.Ct. 1996, 44 L.Ed.2d 481, in which it was held that the state is under no duty to ascertain the whereabouts of the informer and advise the defendant thereof and that a denial of defendant’s motion for a mistrial or interruption of the trial for a short time to seek the informer was not error.

Appellee also relies upon an additional conclusion reached in Johnson v. State, in contending that defendant’s counsel knew the name of the informer and has no valid complaint arising from the court’s sustention of the State’s objection to defendant’s question to Officer Gulledge as to the name of the informer. Appellee directs attention to a question that had been asked Captain Bowman, the first witness for the State, and his answer as follows:

“Q Who was in the car with Officer Gulledge?
“A Who was in the car with him? Phillip Patterson.”

The question just quoted was asked by defendant’s counsel on cross-examination of Captain Bowman. The interrogation and answers continued as follows:

“Q Okay. And, of course, you weren’t present to see what transpired while they were in the parking lot.
“A No, sir, I was not.
“Q Okay. Then, you say Officer Gul-ledge and Phillip Patterson left the scene in their car? Left the scene of the purchase, is that correct?
“A They left the scene.
“Q Then, about how much time lapsed from the time they left the scene until you got there?
“A Approximately thirty to forty-five seconds.
“Q Okay. And you were the first car on the scene, is that right?
“A That is correct, yes, sir.”

Captain Bowman, the record shows, was testifying in some respects as to what he saw. However, he testified largely as to what he heard via the “intelligence” communications passing through a network of walkie-talkies, operating on a private channel, among the law enforcement personnel as they made and executed arrangements for the purchase of the narcotics. Captain Bowman did not see the man in the automobile with Officer Gulledge at the time the transaction was consummated, or at any time while that automobile was at the scene of the crime.

We are not convinced that the testimony of Captain Bowman was sufficient to establish beyond question that Phillip Patterson was the man, to the preclusion of further inquiry by defendant as to who the man was.

Appellee further argues that knowledge by defendant’s counsel of the name of the informer is also indicated by his question addressed to Officer Gulledge: “Now, in the ear with you, that was Phillip Patterson, is that correct?”

Although there is some basis for appel-lee’s argument that defendant’s attorney knew the name of the informer, it does not seem that such was the basis for the trial court’s ruling as to the identity of the informer. If it were clear to all concerned that it had been definitely established that Phillip Patterson was the informer, it is difficult to understand the continued insistence by defendant’s attorney that the identity of the informer be disclosed, the continued objection by the State that it not be disclosed, and the action of the court in sustaining the State’s objection to the action of defendant’s counsel in attempting to show or determine the identity of the informer.

In the defendant’s argument in support of the motion to exclude the evidence, which the court overruled, counsel said, inter alia :

“In addition to my motion to exclude the evidence on those I would also like to renew my motion for the State to produce the name and address of this informer, and we ask that if they would do that we would need a continuance to secure his attendance here at trial. This came as a surprise. We thought that the person who bought the drugs would be present at trial.”

In response to the quoted statement of defendant’s counsel, counsel for the State said:

"... I think that the evidence shows through Captain Bowman, the first witness, that the person who was out there with Officer Gulledge was a man named Phillip Patterson. And for the record, I want to make it known to the court that we do not know where Mr. Phillip Patterson is. I asked one of the officers if he knew and he said no. It is our information that he has left the State. But, his address is unknown to us. I have talked with all of the officers in one room, several of them, at least, and asked if they knew where he was. Frankly, I would like to have him here. We don’t have him, and don’t know where to find him. I don’t think there was anyone else out there in the car. All the evidence shows is there were two people. And Captain Bowman testified that the other man was Phillip Patterson.”

Thereafter, the court announced that it was overruling all motions of defendant made at the conclusion of the State’s case, and defendant rested.

There are similarities between the facts in this case and the facts in Johnson v. State, supra, relied upon by appellee, but there also are significant dissimilarities. In Johnson, defendant knew the first name of the informer and had known him for about sixty days prior to the alleged sale in that case. He knew where the informer was working, and about two days after defendant was arrested, “he had an occasion to check where Howard [the informer] was working, and he was not there, that he stopped a few times thereafter but never found him.” The defendant in Johnson gave such information to his attorney. We said in Johnson :

“The state was under no duty to ascertain the whereabouts of the informer, Howard, and advise the defendant. Diligence in finding him was addressed to the defendant. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666(4).” 306 So.2d 55, 56.

There is nothing to indicate in the case before us that either defendant or his attorney knew the name of the informer, or had any information whatever as to his name, until his name was called by Captain Bowman in his testimony as a witness for the State.

The fact that Captain Bowman had testified that the informer was Phillip Patterson did not impair defendant’s right to cross-examine the most vital witness in the case against defendant, Officer Gulledge, as to the name of the informer. Although denied that right, defendant continued, without success, to press for the name and further identification of the informer to the completion of the evidence in the case.

There is nothing in the record to indicate that the action of defendant’s counsel in attempting to find out more about the informer and to obtain time, if necessary, to find out more about him and have him in court, if possible, smacked of a delaying tactic. Defendant and his counsel met the requirements of dispatch. There was no lack of cooperation on the part of either. Their entry without remonstrance or objection into the trial of the case on September 27, 1977, less than five weeks after the indictment was returned (September 2, 1977), and approximately six weeks from the time of the alleged crime (August 24, 1977) could at the most be said to have been an error of judgment. Their defense as a whole refutes any charge of cognizable dila-toriness.

A mere error of judgment in the light of hindsight only is not sufficient to support a conclusion of a lack of diligence. Defendant knew, defendant’s attorney knew, and in fact, all of the witnesses knew that the person whose identity defendant’s attorney was attempting to establish was the only person who came to the automobile in which defendant and another were sitting and from which the bag of controlled substances was obtained — the only person, other than appellant and his companion who had the constitutional right to remain silent, who actually witnessed what took place in the automobile at the time, particularly any and all inculpatory or exculpatory remarks or conduct of appellant. We think his being called as a witness for the prosecution was reasonably expectable.

Although we have heretofore held herein that by the circumstances stated sufficient evidence was presented to support a guilty verdict, we cannot say that better evidence would not have been the testimony of the man who apparently obtained the bag of controlled substances from the automobile in which the defendant and the other man were sitting. His testimony, if credible, would have been more direct as to the guilt or innocence of defendant than the circumstances relied upon by the State, and which we have held sufficient, to support a conviction. As a trustworthy witness, h¿ would have been a pillar of light to the jury in its quest for truth, in a case which otherwise is somewhat hazy, if not densely cloudy.

Resourceful counsel for the State were able to win the case without using the particular witness, which of itself was a noteworthy achievement, but the circumstances as a whole are insufficient, we think, to cause defendant’s counsel to believe before trial that such course of action would be pursued by the prosecution.

We are unable to find fault with defendant’s counsel in his being surprised, as he stated, that the State did not use such witness or in thinking, as he said, “that the person who bought the drugs would be present at trial.”

We cannot say that defendant’s counsel should have done more than he did on the trial to obtain more information about the identity of the informer or to urge that court to grant him time to locate the informer, in the light of the positive statement of the court:

“I’m not going to allow you to put him on or to find out about him.”,

to which defendant’s counsel responded:

“I understand. We except.”

The emphatic ruling of the court just quoted is not in the pale of rulings denying requests for a continuance or suspension of the trial, as to which the trial court’s discretion is so broad as to prevent a finding of reversible error on appeal. The reason for such broad discretion is that generally a ruling on a motion for continuance requires a process of balancing and counterbalancing of many factors, pro and con, for which the trial court is often at a better vantage point than the reviewing court to arrive at a just conclusion. Here, however, the trial court based its conclusion unreservedly and exclusively upon the conviction that defendant was not entitled to “put him [the informer] on or to find out about him.” From this it seems that, if the informer could have been better identified and located even that day, during the noon recess of the trial, or that evening or night, and the trial suspended only until the following day, no such opportunity was afforded defendant. The court obviously was not attempting to weigh the considerations that ordinarily enter into the process of determining whether a continuance or delay should be granted for the purpose of finding out more about the informer. With commendable forthrightness, it decided and ruled that defendant was not entitled to use the informer as a witness or to find out about him, that is, if the informer could have been located and brought to court without unreasonable interference with the progress of the trial, it would have profited defendant nothing — he could not have “put him [the informer] on” or “find out about him.”

We hold that the action of the court was such as to deny to defendant his right to such information as to the identity of the informer as to enable his counsel to defend him adequately. To hold otherwise would not be in harmony with our decisions in Davis v. State, supra; Kenny v. State, supra; Kilgore v. State, supra, and Davenport v. State, supra.

The importance of preserving the “informer privilege,” or the law enforcement authorities’ privilege, of withholding from disclosure is not to be treated lightly, but it does not rise above the importance of affording a fair trial to litigants.

“ . . . Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. . . . ” Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 628, 1 L.Ed.2d 639, 645 (1957)

In the case under review, the informer was not only “an active participant with the accused at the commission of the offense,” but he was the “only” active participant with the accused and the companion of accused at the commission of the offense.

For the error indicated, the judgment of the trial court should be reversed and the cause remanded for another trial in accordance with this opinion.

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

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-578.
    Supreme Court of Alabama.
    July 28, 1978.
   MADDOX, Justice.

WRIT DENIED.

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


text:
    Jere Levon CHATOM v. STATE.
    1 Div. 798.
    Court of Criminal Appeals of Alabama.
    May 16, 1978.
    Rehearing Denied June 20, 1978.

      Michael Scheuermann, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the offense of possession of marijuana. After a trial at which the appellant was represented by two court appointed attorneys, the jury found him guilty and imposed a fine of $5,000.00. In addition the trial judge sentenced the appellant to fifteen years’ imprisonment.

On the afternoon of November 17, 1975, about three hundred law enforcement officers were searching for the appellant in the western section of Mobile, Alabama. The appellant and his companion were being sought for the murder of two deputy sheriffs. See Chatom v. State, Ala.Cr.App., 348 So.2d 828, judgment reversed, Ala., 348 So.2d 838, on remand, Ala.Cr.App., 348 So.2d 843 (1976). That same afternoon the appellant was apprehended by officers of the Pascagoula, Mississippi, Police Department and turned over to the Mobile County Sheriff’s Office. He was then placed under arrest in Alabama and taken to the Mobile County Jail.

At the jail the appellant was searched and in his pocket was found a plastic bag containing marijuana. The bag contained approximately one-fifth to one-tenth of an average size “lid” and was enough to roll five or six average size cigarettes. This was about five or six dollars worth of marijuana.

The appellant presented no evidence to contradict that presented by the state. His only witness, a deputy for the Mobile County Sheriff’s Office, testified that it was his understanding that the appellant was arrested in Mississippi by Mississippi authorities and brought back into the State of Alabama.

I

Initially the appellant contends that it was error for the trial judge to allow the District Attorney to choose, on the morning of the trial, which of four cases would be tried, after granting defense counsel’s motion requiring an election.

For clarity, the operative facts must be detailed. Defense counsel was appointed to represent the appellant on four cases: three receiving and concealing stolen property cases which were “similar” and one charge of possession of marijuana. On September 8, 1976, defense counsel filed a Motion to Elect requesting that

“your Honor order that the district attorney will elect which case he will try on September 15, 1976 (trial date), and that your Honor will further order that the district attorney so inform the defendant.”

This motion was heard on September 14, 1976, the day before the scheduled trial date. The trial judge granted this request and ordered the state to elect between either the three receiving stolen property cases or the drug case before noon of that same date.

On September 15, 1976, the appellant’s trial was continued and reset by agreement of both parties, defense counsel having filed a “Motion for Change of Venue and/or Continuance”. The appellant was finally tried on February 28, 1977.

Immediately before trial defense counsel represented to the trial court that they had never been told which case the District Attorney was going to try although the court had granted their motion to elect and they had requested that information from the District Attorney.

The trial judge found that the appellant had been last scheduled for trial on November 1, 1976, but that the case had been continued. The judge stated that if the District Attorney had not complied with his order, defense counsel should have filed another motion.

We know of no rule of law or practice which requires the District Attorney to give defense counsel advance notice of the order in which separate indictments against an accused will be prosecuted.

“In the absence of statutory regulation otherwise, it is within the discretion of the trial court, or of the prosecuting attorney, subject to the control of the court, to determine the order in which cases shall be tried, where separate trials are granted on a joint indictment, or where different indictments or counts against the same person are tried separately, or where different defendants are separately indicted, and the court’s exercise of discretion will be upheld in the absence of abuse.” 23 C.J.S. Criminal Law § 932, at pp. 694-695.

Under the circumstances of this case the appellant is not entitled to a new trial because of the failure or refusal of the District Attorney to inform him of which case would be tried first. The motion, though filed seven days before trial, was set down for hearing and actually heard only the day before trial. The record contains no objection by defense counsel to this procedure. As a practical matter we fail to see how a motion to elect, the very purpose of which is to afford the defendant and his attorneys time for preparation on a specific charge, will benefit counsel when granted the day before trial. In this posture, the function of the motion is frustrated by the late determination.

Additionally, the motion itself specifies that the District Attorney inform defense counsel of which case would be tried on September 15th. Trial was not had on that date but was continued and the motion was not refiled or amended. Under these circumstances there was no court order requiring the District Attorney to .inform the appellant of which case would be tried on February 28, 1977.

The trial judge stated and his manner indicated that he was favorable toward requiring the prosecution to elect. Despite this, the court was not informed of the prosecution’s failure to elect until the day of trial. Though defense counsel complained of the failure of the state to elect no relief was requested and the trial court was not requested to take any specific action.

Finally it must be noted that the appellant has shown no prejudice by the state’s failure and the rulings of the trial court. If the failure of the state to inform an accused, facing separate indictments, of the order in which they will be tried is to work a reversal, it can only do so where a proper and timely request has been made by defense counsel and the failure to inform or elect results in actual prejudice to the accused.

II

It is asserted that it was error for the trial judge to refuse the appellant’s requested charges directing the jury that they could not find him guilty of felonious possession of marijuana. The appellant contends that

“based on the overall consideration of amount and lack of any evidence to the contrary, . . . the jury had no basis in fact on which to convict the appellant of felonious possession.”

The basis of this assignment of error was considered in Roberts v. State, Ala.Cr.App., 349 So.2d 89, 92-93, cert. denied, Ala., 349 So.2d 94 (1977). There, after some discussion of the controlling principles, we concluded:

“The statute prohibits the possession of any amount of marijuana. The burden is upon the accused to show that the amount possessed, however large or small it may be, is for personal use only. The state is not required to prove that the marijuana is possessed for the purpose of sale under an indictment charging, as here, mere possession. Title 22, Section 258(47).” Roberts, supra, at 349 So.2d 93.

In this case there was no evidence presented by either the prosecution or the appellant on the issue of the use of the marijuana involved. Since the degree of possession — whether felony or misdemean- or, depends upon the use of marijuana and not the quantity involved, and since the state need not prove that the marijuana was possessed for purpose of sale, the trial court was not in error in failing to give the requested instructions.

Ill

The appellant also assigns three arguments of the District Attorney as constituting reversible error.

A.

In the opening statement to the jury the prosecutor made the following comment:

“We expect the evidence to go along this line that back on November 17, 1975, Detective Larry Tillman, Detective Albert Stroh, in the western part of Mobile County, in participation of one of the biggest manhunts this county has ever seen — ”

The trial judge sustained the objection of defense counsel and instructed the jury to exclude the statement of the “massive manhunt” from their consideration. The trial judge also found that defense counsel, in his argument, had “brought out a matter along the same line you are objecting to”.

Under these circumstances, the action of the trial court cured any possible error in the prosecution’s retaliatory remarks. 6A Alabama Digest, Criminal Law, ®=» 730(1), 730(16).

B.

In closing argument the prosecutor stated:

“I don’t have to tell you that the number one problem in our Country is the drug problem.”

The trial court overruled defense counsel’s objection. We find this to be within the range of permissible references to the frequency of offenses and properly an appeal for law enforcement. Embrey v. State, 283 Ala. 110, 214 So.2d 567 (1968); 6A Alabama Digest, Criminal Law &wkey;723(3).

The prosecutor continued:

“Thank you, Judge, I will start over. I don’t have to tell you that the number one problem in our Country today is the drug problem. You can look at our Court docket and see it, not only minor cases, but most of the crimes you see today, you can point right back to drugs.”

The trial judge sustained defense counsel’s objection to that argument. Defense counsel made no motion to instruct the jury, no motion to strike or exclude and no request for a mistrial. He has no adverse ruling from which to appeal. The action of the trial court is not error. Wilburn v. State, 41 Ala.App. 681, 149 So.2d 296 (1963); Elliott v. State, 19 Ala.App. 263, 97 So. 115 (1923). In view of the action of the trial judge, we need not determine whether the statements by the prosecutor were a proper reference to the character of the offense and appeal to law enforcement.

C.

The appellant also complains that the prosecutor made a derogatory reference to his counsel in the following exchange:

“MR. FRIEDLANDER (Defense Counsel): Judge, I would ask that one further thing, that Detective Tillman be asked by the Court to get back here behind the table instead of sitting here glaring at the jury.
“MR. VALESKA (Chief Assistant District Attorney): I guess Mr. Friedlander wants to be the Judge in this case, also. There is no other seat here.
“MR. FRIEDLANDER: We will move down. We have got plenty of room.
“THE COURT: Well, I think he was moving the Court to do that.
“MR. VALESKA: I wouldn’t want to sit any closer to them than I would have to either.”

There was no objection made to this remark.

“Remarks or argument of the prosecutor criticizing, disparaging, or vilifying accused’s attorney ordinarily are improper”, 23A C.J.S. Criminal Law § 1090 at p. 130, and exceed the bounds of legitimate argument. Reynolds v. State, 31 Ala.App. 259, 263, 15 So.2d 600, cert. denied, 245 Ala. 47, 15 So.2d 605 (1943); Watercutter v. State, 21 Ala.App. 248, 108 So. 870 (1926); Daugherty v. State, 22 Ala.App. 400, 116 So. 308 (1928); Taylor v. State, 22 Ala.App. 428, 116 So. 415 (1928); Little v. State, 34 Ala.App. 114, 39 So.2d 587, cert. denied, 252 Ala. 81, 39 So.2d 593; Scroggins v. State, Ala.Cr.App., 341 So. 967, cert. denied, Ala., 341 So.2d 972 (1976).

Sidebar remarks have no place in the trial of any case and should be studiously avoided by all parties as they tend to lessen respect for the judicial process and the adversary system of justice. Edgeworth v. State, 54 Ala.App. 93, 304 So.2d 911 (1974).

While such remarks of “jibes” are improper they are not cause for reversal or mistrial unless they tend to prejudice the defendant’s cause before the jury. Daugherty, at 22 Ala.App. 401, 116 So. 308.

Even improper argument is not subject to review on appeal unless there is due objection in the trial court. This claim of error cannot be taken advantage of on appeal because there was no objection of any type to the prosecutor’s remarks. Townsell v. State, 255 Ala. 495, 52 So.2d 186 (1951); Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957); Jackson v. State, 260 Ala. 641, 71 So.2d 825 (1954).

IV

The appellant alleges that reversible error was committed when the trial judge overruled the objection of defense counsel to the District Attorney’s question:

“Would you tell these ladies and gentlemen of the jury who David Beck and Robert Stoltz were?”

After the objection of defense counsel was overruled the witness answered:

“Deputy David Beck and Robert Stoltz were the two officers that were killed on November 17, 1975.”

• The appellant asserts that this information was calculated to produce prejudice against the appellant and constituted evidence of a separate offense.

On November 17, 1975, three deputy sheriffs were shot down from ambush in a rural Mobile County. Two of the deputies died as a result of the shooting. The appellant was indicted, tried and convicted for the murders of the two deputies, Officers Beck and Stoltz. For a detailed statement of the facts, see Chatom v. State, Ala.Cr.App., 348 So.2d 828 (1976). After the appellant had been arrested for the murder of these two officers, he was searched and marijuana found in his pocket. Hence the prosecution resulting in this appeal.

Before the objected to testimony had been adduced, defense counsel, on cross examination of the same witness, had elicited testimony that the witness, Deputy Sheriff Larry Willis Tillman, had never smoked marijuana, “that the ‘mob squad’ never used to go out and have pot parties and things like that”, and that “Deputy Beck, Deputy Stoltz, none of those narcotics officers ever did that, . . .

On redirect examination the state may examine the witness as to any matter injected into the case on cross examination by defense counsel within the discretion of the trial court. Jones v. State, 22 Ala.App. 141, 113 So. 478 (1927); Schieffelin v. Schieffelin, 127 Ala. 14, 28 So. 687 (1900); Noel v. State, 161 Ala. 25, 49 So. 824 (1909); Turner v. State, 25 Ala.App. 21, 140 So. 445 (1932); Peyton v. State, 40 Ala.App. 556, 120 So.2d 415, cert. denied, 270 Ala. 740, 120 So.2d 429, cert. denied, 364 U.S. 870, 81 S.Ct. 114, 5 L.Ed.2d 93 (1960). For this reason we do not find the matter to constitute reversible error.

V

In his last assignment of error, the appellant presents a novel defense to the charge of possession of marijuana. The matter was raised in the trial court by a motion to exclude the evidence.

The appellant argues that he was apprehended in Mississippi by law enforcement officials of that state and was forcibly brought back into Alabama where he was delivered into the custody of Alabama law enforcement officers. Therefore, the appellant contends he did not have the intent to break Alabama law by intentionally possessing marijuana in Alabama because he was involuntarily returned to this state. Secondly, the appellant argues that since he was handcuffed and in custody when returned to Alabama, he never exercised any manifest control over the marijuana found in his pocket.

Apparently this argument stems from the principle that possession has three attributes: (1) Actual or potential physical control, (2) intention to exercise dominion, and (3) external manifestations of intent and control. Radke v. State, 52 Ala.App. 397, 398, 293 So.2d 312, affirmed, 292 Ala. 290, 293 So.2d 314 (1974).

The appellant analogizes his situation to the rule that an accusation of drunkenness in a designated public place cannot be established by proof that the accused while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officers. The analogy is not appropriate.

The appellant does not contest the legality of his arrest either in Alabama or Mississippi. The trial judge found that the appellant waived extradition by not objecting to the manner in which he was returned to Alabama. No claim of impropriety has been advanced against the search which disclosed the marijuana. There is not even a mere postulation that the marijuana was placed in the appellant’s pocket by anyone other than the appellant or that it was there without his knowledge. Additionally, it is clear that the presence of the marijuana was discovered only after the appellant had been arrested in Alabama on a separate and distinct charge than that under review. Finally, the evidence in this case does not disclose where the appellant was first apprehended. Deputy Tillman testified that he didn’t know “for sure” where the appellant was when the Mississippi authorities apprehended him. Deputy Estes stated that it was his “understanding” that the appellant was arrested in Mississippi.

Under these circumstances we consider the appellant’s argument to be without merit. The fact that the marijuana was found in the appellant’s clothing which he was wearing places it of necessity within his domination or physical control—at least potentially or constructively for purposes of the statute against possession. It also raises a presumption that he placed the substance there and that he knew what it was. See Kinard v. State, Ala.Cr.App., 335 So.2d 916, reversed on other grounds, Ala., 335 So.2d 924, on remand, Ala.Cr.App., 335 So.2d 927 (1975); Coleman v. State, Ala.Cr.App., 344 So.2d 1249 (1977).

The allegation that the appellant did not intend to violate Alabama law is of no consequence. An accused need not intend to violate the law. The criminal intent follows from an unlawful or criminal act intentionally done, Nix v. State, 27 Ala.App. 94, 166 So. 716, cert. denied, 232 Ala. 53, 166 So. 719 (1936), whether or not the accused actually knows he is violating the law. Weeks v. State, 24 Ala.App. 198, 132 So. 870, cert. denied, 222 Ala. 442, 132 So. 871 (1931).

We have carefully searched the entire record and found no errors adverse to the substantial rights of the appellant. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Jere Levon CHATOM.
    77-625.
    Supreme Court of Alabama.
    July 28, 1978.
   BEATTY, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    John Wesley TILLMAN v. STATE.
    1 Div. 897.
    Court of Criminal Appeals of Alabama.
    May 30, 1978.
    Rehearing Denied June 20, 1978.
    M. A. Marsal and Neil L. Hanley, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault and battery; sentence: ninety days and a fine of $500.

The trial judge refused Charge No. 15 requested by the defense, which was as follows:

“The Court charges the jury that if you have a reasonable doubt of defendant’s guilt growing out of the evidence or any part of it, you must acquit him.”

The trial court did not instruct the jury that a reasonable doubt may arise from only a part of the evidence. Neither was that matter covered in any given charges. On the contrary, the trial court instructed the jury as to a reasonable doubt arising after considering all the evidence.

In Rakestraw v. State, 211 Ala. 535, 101 So. 181 (1924), the Supreme Court held that it was error to refuse to give the following charge:

“ ‘If, after considering all the evidence in the case, you have a reasonable doubt as to the guilt of the defendant Jim Rake-straw growing out of any part of the evidence, you should find him not guilty.' ”

Citing Rakestraw as authority, this court in Sanford v. State, 37 Ala.App. 603, 75 So.2d 109 (1954), held that it was error to refuse to give the following charge:

“ ‘The Court charges the jury that, if the jury, upon considering all the evidence, have a reasonable doubt about the defendant’s guilt, arising out of any part of the evidence, they should find him not guilty.’ ”

The opinion in Sanford sets out a lengthy history of the charge, citing numerous cases wherein the substance of the charge in question had been approved.

In Johnson v. State, 42 Ala.App. 511, 169 So.2d 773 (1964), this court held that it was reversible error to refuse to give the following charge:

“ ‘7. The court charges the jury, if the jury upon considering all of the testimony, have a reasonable doubt about the defendant’s guilt, arising out of any part of the evidence, they should find the defendant not guilty.’ ”

In Smith v. State, 51 Ala.App. 527, 287 So.2d 238 (1973), cert. denied, 292 Ala. 750, 289 So.2d 808 (1974), this court again found reversible error in the trial court’s refusal to give the following charge:

“‘3. The court charges you, gentlemen of the jury, that if, upon considering all the evidence, you have a reasonable doubt about the guilt of the Defendant, arising out of any part of the evidence, you must find the Defendant not guilty.’ ”

More recently, reversible error was found by this court in Bryant v. State, Ala.Cr.App., 348 So.2d 1136, cert. denied, Ala., 348 So.2d 1138 (1977), for failure to give the following charge:

“. . . ‘. . .If you have a reasonable doubt of defendant’s guilt growing out of the evidence or any part of it, you must acquit him.’ ”

Our most recent holding in this regard is found in Richards v. State, Ala.Cr.App., 358 So.2d 488 [Ms. March 21, 1978], wherein we found reversible error in the refusal of the trial court to give the following charge:

“ ‘D. 4 I charge you that if you have a reasonable doubt of James Richards’ guilt growing out of the evidence or any part of it, you must acquit him.’ ”

Based on the foregoing authorities, we find that the appellant in the instant case was entitled to have the jury charge that a reasonable doubt as to his guilt may grow out of any part of the evidence. The refusal to so instruct the jury mandates a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-623.
    Supreme Court of Alabama.
    July 28, 1978.
   MADDOX, Justice.

WRIT DENIED.

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