text:
    James H. SULLIVAN, Jr. v. STATE.
    6 Div. 156.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.

      Arthur J. Hanes, Jr., for Hanes, Hanes & Bolin, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for murder in the first degree. Punishment was fixed at life imprisonment in the penitentiary. The appellant is most ably represented by Art Hanes, Sr. and Art Hanes, Jr. both at trial and on appeal.

In urging this court to order a reversal of his conviction, it is contended that the statements made by the appellant to law enforcement officers should not have been admitted because there was no showing of a voluntary, knowing and intelligent waiver of his right to remain silent. Additionally the appellant urges that it was reversible error for the trial court to admit the testimony of a law enforcement officer that the appellant would not make a statement.

The victim, Jill Scott (Webber), was a singer and entertainer in a Birmingham night club, The Forty Thieves. In February of 1974 Ms. Scott and Daryl James moved into Apartment 2005-G, Viewpoint (Longleaf) Apartments in Hoover, Alabama. Mr. James was a musician and the leader of the band in which Ms. Scott sang.

Scott and James cohabited until Mr. James moved out of the apartment around the first week of December, 1974, after they had some “difficulty” or “trouble”. The appellant and Ms. Scott were married on December 19, 1974. The appellant is also a musician. Soon marital difficulties developed between the appellant and his wife.

In February, Ms, Scott told the appellant that she wanted a divorce because she thought their careers would be better as single people. She indicated that she may not stay with her present band and that the reason the appellant could not find work was because people were reluctant to hire him thinking that he was going to leave town with her.

During this same time, the appellant cut his beard so it would be easier to get a job and this angered Ms. Scott. She told the appellant that she could “make more money in one night by entertaining at private parties than (she) could by working all week with the band”. The appellant then left the apartment for a couple of days only to return when Ms. Scott called him and told him that she didn’t mean it and asked him to come back.

Ms. Scott’s mother came to visit them and their arguments ceased for a time. However on the 5th of March, 1975, the appellant packed some of his clothes and left the apartment apparently because Ms. Scott again requested a divorce. That Saturday night the appellant spent in a Birmingham motel. He called some friends of his in Talladega County, Mr. and Mrs. Bob Rutledge, and went to spend a week with them in their home in the country because he “needed to get away for awhile and needed to talk to them”. The appellant left without telling anyone of his whereabouts and his mother filed a missing person’s report for him.

The appellant returned to Birmingham the following Sunday, March 27, 1975, and went to see Ms. Scott that night staying approximately two hours. Ms. Scott took the appellant to his parents’ home where he was staying.

Monday Ms. Scott telephoned the appellant and told him that her sister and brother were going back home to Oshkosh, Wisconsin, on Thursday. Ms. Scott asked the appellant if he would like to go with them to the train station. The appellant agreed and made arrangements to borrow his father's automobile which was larger than his and would therefore carry more luggage.

On Wednesday the 26th of March the appellant met Ms. Scott at her apartment and together they went to the law office of Ferris Ritchey, a local Birmingham attorney. They signed the papers for the divorce. All of the evidence indicates that appellant did not want a divorce but signed the divorce papers because that was what Ms. Scott wanted. After that, the appellant and Ms. Scott returned to her apartment and had dinner together. About 8:00 that night the appellant left and returned to his parents’ home.

On Thursday, by prearrangement, the appellant arrived at Ms. Scott’s apartment about eleven A.M. to take her sister and brother to the train station. Because of the amount of luggage involved it was necessary to take two cars. Jan, Ms. Scott’s sister, rode with the appellant and Jay, Ms. Scott’s brother, rode with Ms. Scott. After the sister and brother were placed on the train, the appellant returned to Ms. Scott’s apartment around 2:00 P.M. Not having a key, he waited about fifteen minutes for Ms. Scott to arrive. When she did, she stated that she had been to collect the money for the band which consisted of over one thousand dollars in cash. She was the bookkeeper for the band and this was a part of her regular duties. Ms. Scott then fixed a light lunch for herself and the appellant after which the appellant started moving his things out. He went by the Hoover Mall to an A & P grocery store and gathered some boxes to use in moving. When he returned to the apartment it was close to 3:00 P.M. It took the appellant about one hour to load his belongings into his automobile.

After packing, the appellant returned to the apartment and took a nap in the back bedroom while Ms. Scott counted and divided the money for the band in the front portion of the apartment.

According to the appellant’s own testimony, suddenly he woke up and had the impression that he heard “hammering”. He called for “Jill” but received no answer. He then walked into the front of the apartment and “thought” he saw Ms. Scott lying on the floor. Suddenly he was face down on the floor, stunned after having been struck from behind. As the appellant got up he turned and saw a man in Ms. Scott’s room down on one knee and propped up against something. The appellant stumbled into the room, the stranger turned around and the appellant either tripped or was knocked down. The stranger left the room and the appellant grabbed him in the hall. A struggle ensued and the appellant realized that the stranger was armed with a pistol. At least two shots were fired during the struggle and the appellant grabbed the gun a couple of times but the stranger jerked it away. However at one time the appellant actually had control of the weapon. At that point he was knocked to the floor and almost lost consciousness or did, and he testified that it seemed as if he had a rag or a jacket over his head.

When the appellant got up he crawled over to Ms. Scott and noticed that she “didn’t look right”; that something was “terribly wrong”. The appellant screamed at her and then realized that she was dead. He testified that at that time he heard a car in the parking lot, jumped up and ran down the stairs. Although the appellant did not see the car, he got in his own car to give chase but discovered that he did not have his keys. He went back to the apartment and tried to get Ms. Scott to talk to him. From this point on the appellant testified that his memory fades and he has little, if any, recall of the events that followed.

On March 27, 1975, the day of the murder, Deputy William Bradford Miller of the Jefferson County Sheriff’s Department was. working the information desk at the county jail. At approximately six o’clock that evening he noticed the appellant come across the hall from the sheriff’s office. The Jefferson County Sheriff’s Office first learned of the death of Ms. Scott and the location of the body from information supplied by the appellant.

Upon investigation, Ms. Scott’s body was found lying in the front portion of her apartment. A .22 caliber Colt automatic target pistol lay across the room on the floor. Ten ejected bullets and spent shell casings were found scattered throughout the apartment. One slug was discovered lodged in the door frame of a bedroom. In Ms. Scott’s purse was found one hundred sixty-three dollars and some odd change. One thousand one hundred seventy-three dollars and thirty-seven cents lay on a table near the body.

Expert testimony established that Ms. Scott sustained six gunshot wounds: one was located six inches below the navel in the middle of the abdomen near the pubic mount and five were to the head. A “slit-type wound” on the inside of her right hand in the palm and a wound in the outside of her left thumb were classified as “defense-type” wounds. Ms. Scott also sustained a laceration “up in the hair” and a bruised area on her right knee and right leg and “some skin burns which apparently were the type caused by a bullet just grazing the skin on the left side of her chest”. Time of death was estimated to be 2:45 P.M., March 27, 1975, although the actual time of death could possibly range from noon until 5:30 in the evening.

The murder weapon belonged to the father of the appellant who could not remember the last time he saw the weapon. Nine latent fingerprints were found on the pistol. One print was determined to be identical to the appellant’s. No other prints were identifiable.

Deputy James A. Howell was an evidence technician for the Jefferson County Sheriff’s Department. He matched the fingerprints and testified that he had known the appellant for about eight years. Deputy Howell testified that around the 28th or 29th of March he had two or three conversations with the appellant in the jail. The appellant never told him that he shot Ms. Scott but stated that “he should be dead”, that he “couldn’t stop him or something like that”. Howell also stated that the appellant had a wound in the palm of his right hand which appeared to be from the rear sight of the pistol.

Witnesses for both the state and the defense testified that the appellant did not like guns. The following witnesses testified that the appellant had a good general reputation, a good reputation for truth and veracity, for nonviolence and that they would believe him under oath: Deputy Howell; Miss Jan Webber, Ms. Scott’s sister; Mr. O. C. (Tex) Harmon, Secretary-Treasurer, business representative of the Birmingham Musicians Union, Local 256; Mr. Dennis Washburn, night city editor and night club columnist for the Birmingham News; Ms. Linda Pardue, employee of First Alabama Bank who once dated the appellant; and Gail Mayfield, legal secretary.

I

The appellant contends that the state did not prove the voluntariness of his confession and that therefore his confession should not have been admitted into evidence.

The appellant voluntarily went to the Jefferson County Jail. Apparently the first person he encountered was a radio operator for the Sheriff’s Department. She took him to Deputy Miller who was working at the front information desk. When Miller first saw him, the appellant was mumbling to himself and repeating over and over again that he had “done something terrible”. Miller heard the appellant say this at least three times. At this point, the appellant was crying and shaking; he was “real emotional”, would not answer the deputy’s questions and did not appear to realize what was being said to him. The appellant would not or could not tell Deputy Miller his name. While the appellant did not express any fear he was “extremely upset”.

Because of the mumbling, Deputy Miller contacted Detective Gardner and told him that the appellant “says he’s done a bad thing and wants to talk to somebody”. Gardner testified that he first saw the appellant around 6:00 P.M. and while the appellant’s eyes were tear-stained and inflamed, he was well dressed and of “fairly neat appearance”. Although the appellant was nervous and upset he wasn’t uncontrollable but did “ramble more than a normal person”.

Detective Gardner took the appellant to his office, identified himself as a detective sergeant and showed the appellant his badge and identification card. Gardner asked the appellant if he had a drug problem and the appellant answered “No”. After a pause, the appellant remarked that his car was parked outside and he was afraid that it would be pulled away because it was on a parking meter. Gardner told the appellant to tell him what his problem was and he would listen. When Gardner attempted to obtain the appellant’s name the appellant “fumbled around” in his pockets and pulled out a musician’s union card and a driver’s license. The appellant asked Detective Gardner to do him a favor and lock him up.

In response to questions by Detective Gardner, the appellant stated that he had been married until the day before, was a musician and worked in a night club but had been out of work for about two months; the appellant stated that his wife was Jill Scott, a night club entertainer, and that “something happened to her”.

At this point, Detective Gardner “got the feeling that (he) might advise him of his rights because (he) didn’t know what might have happened to her”. The appellant was then orally advised of his rights but was not asked to sign a written waiver. Neither was he asked if he understood his rights.

After being advised of his rights, the appellant sat in the office and sobbed for a few minutes. Then he asked if he could write a note. Upon being handed pen and paper, the appellant wrote:

“Father, Mother & Brother.
Forgive me please.
I don’t know what
I’m doing anymore.
Jimmy.”

The appellant stated that he “just couldn’t take this anymore” and said that “Jill’s dead”. Detective Gardner then asked the appellant if he wanted to tell what happened.

The appellant stated that they had been having money problems and arguing over them and that he had even cut off his beard in order to find employment. The appellant told Detective Gardner that they had argued that day and gave him a key to her apartment. Gardner learned that Ms. Scott was in the apartment and the appellant gave him the address and said that it did not happen long ago. He stated that he couldn’t stand for someone else to walk in and find her; that they were sure to come looking for her because she had the money. The appellant told Gardner that she had died from a gunshot and that she wasn’t very pretty. Detective Gardner then carried the appellant back to the Warden’s Office and told Deputy Miller to keep an eye on him while he went to investigate. Deputy Miller testified that Detective Gardner questioned the appellant for about thirty minutes and that when Gardner brought him back out the appellant appeared to be “calming down a bit . not quite as emotional and upset . not mumbling to himself as much”.

Detective Gardner testified that he thought the appellant was capable of knowingly discussing the issues and that he fully understood the rights he was given; that while the appellant was sobbing and shaking (just a little) he did seem to “comprehend or understand or know where he was or what was happening”. The appellant’s answers were responsive to the detective’s questions.

Detective Gardner testified that it became an interrogation on his part “just when he (the appellant) said that something had happened to her”. Although he asked if Ms. Scott was shot, he never asked the appellant if he did it because he “didn’t know that (he), in fact, had a homicide”.

The initial statements of the appellant upon his entrance into the jail until he told Detective Gardner that something had happened to Ms. Scott are not within the coverage of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The procedural safeguards provided in Miranda are required only when the confessing person is taken into custody and questioned. Miranda, 384 U.S. 436, 86 S.Ct. at 1602.

“In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda, 384 U.S. at 478, 86 S.Ct. at 1630.

We need not determine at what point, if any, the custodial interrogation of the appellant began or whether the Miranda warning was necessary. When the appellant gave Detective Gardner mere suspicion to suspect that a crime may have been committed, the detective informed the appellant of his constitutional rights. Based upon the facts presented in this case, it is our finding that the appellant waived his right to remain silent and his admissions were voluntary.

The totality of the circumstances determine whether an accused has knowingly and intelligently waived his rights to remain silent and to have counsel. Miranda, supra; Gamble v. State, 48 Ala.App. 605, 266 So.2d 817 (1975). While all extrajudicial confessions are prima facie involuntary and can be rendered admissible only by showing that an “express and affirmative” waiver was given, there is no set pattern or manner for a waiver. Lloyd v. State, 45 Ala.App. 178, 227 So.2d 809 (1969). While a waiver will not be presumed simply from the silence of the accused after the warnings are given or simply from the fact that a confession was obtained, where the totality of the circumstances indicate that the confession was voluntary, a confession will not be excluded because the accused did not state that he understood his rights or did not sign a written waiver.

“Any clear manifestation of a desire to waive is sufficient. The test is the showing of a knowing intent, not the utterance of a shibboleth. The criterion is not solely the language employed but a combination of that articulation and the surrounding facts and circumstances.” Lloyd, 45 Ala.App. at 184, 227 So.2d at 814.

After the appellant was warned of his constitutional rights he was not questioned. The appellant himself initiated the continuation of his “interrogation” by asking for a pen and paper and writing a note requesting forgiveness. An inference of a waiver may be drawn from the making of a statement after warnings have been given and when the defendant was aware of his right not to speak. Mitchell v. United States, 140 U.S.App.D.C. 209, 434 F.2d 483, cert. denied, 400 U.S. 867, 91 S.Ct. 109, 27 L.Ed.2d 106 (1970).

From a review of the totality of the circumstances it is our conclusion that the confession was voluntary and properly admitted at trial. Factors we have considered in addition to those mentioned above include the facts that no more information was elicited from the appellant than he chose to volunteer; that the appellant was not questioned to produce an incriminating statement; that his statement was not recorded; that the questions were not accusatory but were investigatory and designed to elicit information as to whether a crime had been committed and not who had committed it; that the police were unaware that any crime had been committed when the appellant voluntarily presented himself at the jail; that the appellant was just questioned long enough for the detective to discover if and where a crime may have been committed; that the appellant never admitted and was never asked if he shot Ms. Scott; and the lack of pressure and compulsion employed in the questioning. In short, the appellant expressed a desire to talk and his statements were obtained without prod or promise from the sheriff.

The appellant correctly recognizes that the mental and emotional state of the accused will not in and of itself vitiate an otherwise knowing and intelligent waiver. The mental condition of the accused must be considered along with other circumstances in determining whether a confession is involuntary. Any testimony that an accused was not in full possession of his mental faculties when the confession is made does not render it inadmissible but only affects the weight to be accorded it by the jury. Breen v. State, 53 Ala.App. 588, 302 So.2d 562 (1974); Lokos v. State, 278 Ala. 586, 179 So.2d 714 (1965).

II

The second and final contention of the appellant is that the trial court erred in denying his motion for a mistrial upon testimony by Detective Gardner that the appellant exercised his right to remain silent and would not make a statement.

On redirect examination of Detective Gardner the prosecution asked if the detective asked the appellant whether or not he shot Ms. Scott. Detective Gardner replied:

“No, sir. After the time we found there was a body there and in fact a person had been murdered or killed, the only time we attempted to talk with Mr. Sullivan was when we came in late that night and we were advised he would not make any statement.”

Defense counsel then interposed a general objection and moved for a mistrial without assigning any grounds. The trial court overruled the motion for a mistrial and sustained the objection.

The prosecution may not use at trial the fact that the accused elected to exercise his privilege against self-incrimination in the face of custodial interrogation. Miranda, supra. The statement by Detective Gardner that he had been advised that the appellant would not make any statements was improper and not responsive. However it was not ineradicable. Generally see 6 Alabama Digest, Criminal Law, @=>407; 8 A.L.R.2d 1013, Annotation: Effect of voluntary statements damaging to accused, no proper subject of testimony, uttered by testifying police or peace officer. Because the statement was eradicable the trial judge correctly overruled the motion for a mistrial. The court was correct in sustaining the objection. The court was not under a duty to exclude the statement ex mero motu and there was no motion to exclude or curative instructions requested by defense counsel. Therefore the action of the court in overruling the motion for mistrial and in failing to exclude the unresponsive answer on its own motion was not reversible error. Carroll v. State, 45 Ala.App. 92, 225 So.2d 198, cert. denied, 284 Ala. 727, 225 So.2d 200 (1969).

This court has carefully reviewed and searched the record on appeal for error prejudicial to the substantial rights of the appellant. We have found no errors and therefore it is our opinion that the judgment of the lower court is due to be affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte James H. SULLIVAN, Jr.
    No. 77-37.
    Supreme Court of Alabama.
    Nov. 18, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Luther Edward SARGENT, alias v. STATE.
    7 Div. 540.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.
    Charles A. McGee, Traylor, Baker & McGee, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and John B. Rucker III, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, a non-indigent, was indicted for transporting five gallons or more of prohibited liquors or beverages. A jury returned a verdict of guilty. The trial court fixed punishment at two years.

The alleged transportation was prohibited by T. 29, § 187, Code of Alabama 1940, Recompiled 1958. Such transportation is a felony. T. 29, § 187, supra.

The above section, with § 93 (defining prohibited liquors and beverage), and § 98 (making the sale, possession, etc., unlawful), appear in T. 29, Code of Alabama 1940, Recompiled 1958. These sections are in full force and effect in dry counties, of which DeKalb County is one. Williams v. State, 28 Ala.App. 73, 179 So. 915, cert. den. 235 Ala. 520, 179 So. 920; Holt v. State, 238 Ala. 2, 193 So. 89.

It appears from the evidence that a police officer was driving his automobile and followed defendant and another intervening automobile to a parking area behind a building occupied by defendant in the operation of Ed’s Country Club, Inc., a corporation. Defendant was a majority stockholder and was in charge of the operation. This building was an assembling place for individuals who became members on approval and payment of $15.00 membership fee.

We think the evidence plainly supports the charge that defendant was transporting the prohibited beverages as charged in the indictment. It appears that more officers (sheriff and deputies whom the police officer called to the scene) obtained the permission of defendant to search the automobile used to transport the beverages. The officers told defendant that they did not have a search warrant, but would get one. Defendant consented for the search to be made without a search warrant. The seizure thereupon was made of five to six gallons of prohibited beverages.

I

Defendant contends that the parking area, adjacent to the club building, was not a public place, “. . . but were the grounds of a private organization for members only and akin to a private home and (2) persons, not places, are protected by the Fourth Amendment.”

We further quote from appellant’s brief:

“Ed’s Country Club was a place where members could associate without the admittance of the public at large. (R. 125-27; R. 40; R. 80) Membership was limited and not just anyone could enter the grounds of the country club. Ed’s Country Club was a home away from home for its members and was more akin to a private home than it was a public business. See U. S. v. Zarra, 258 F.Supp. 713 (D.C.Pa.). In 17. S. v. Zarra, supra, it was held that a person’s private office is within the word “home” in the Fourth Amendment. A private social club would be even more a (sic) analogous to a home and would therefore be entitled to the protection of its curtilage even under the old legal concept.”

This court in Whistenant v. State, 50 Ala.App. 182, 278 So.2d 183, cert. den. 291 Ala. 802, 278 So.2d 198, quotes from Justice Harlan’s concurring opinion in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, as follows:

“ ‘As the Court’s opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.”
Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra.’ ”

Whatever rights and expectations of privacy the defendant had with reference to the motor vehicle were waived by consent to the search. There was no effort made to search the land upon which the officers had entered.

The excerpt below taken from Hester v. United States, 265 U.S. 57 at page 58, 44 S.Ct. 445, at page 446, 68 L.Ed. 898, has application here.

“It is obvious that even if there had been a trespass, the above testimony was not obtained by an illegal search or seizure.”

In the instant case the evidence, namely, the beverages, allegedly transported, was obtained by lawful search and seizure made so by the consent of defendant.

We fail to see how an open parking area as here involved, adjacent to a so called private club, could afford lawful privacy as indicated in Katz v. United States, supra. As we view the record the club facilities were nothing more than a place to dance, drink, and frolic. We do not think selected rhetoric, and the fact of incorporation, disguise the activities of the social activities there obtainable. For aught appearing in the record, the $15.00 membership fee, if enforced, served no good purpose other than to enrich the coffers of defendant.

II

Appellant next asserts that he was denied his constitutional right of due process because the judge of the circuit court in which he was tried was dependent for his pay on costs assessed and collected. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749.

But no constitutional issue asserting this contention was raised or considered in the trial court. This court will not consider constitutional questions which were not raised in the court below. Howard v. Pike, 290 Ala. 213, 275 So.2d 645. For other cases see Vol. 2, Ala. Digest — Appeal and Error, § 170(1), (2).

We fail to find any of the rulings of the trial that justify a reversal of the judgment of conviction. The judgment is therefore affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, 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.

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Luther Edward SARGENT.
    No. 77-58.
    Supreme Court of Alabama.
    Nov. 10, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


author: DeCARLO, Judge.

text:
    Glenn SMITH v. STATE.
    8 Div. 867.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.

      Robert M. Hill, Jr., Florence, for appellant.
    William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

The appellant, Glenn Smith, was charged with possessing pethidine contrary to the provisions of the Alabama Controlled Substances Act. The trial was held before a jury and the appellant was found guilty. After judgment was pronounced, he was sentenced to five years imprisonment. It was from this judgment that he appealed.

In this appeal he seeks reversal on three grounds:

1. That the affidavit supporting the search warrant contained misrepresentations or erroneous statements of the informant which were material to the establishment of probable cause.

2. That the State failed to prove that the appellant was in constructive possession of contraband and had knowledge of its presence.

3. That it was error to admit for the jury’s consideration unidentified capsules, tablets and pills, which were similar in appearance to the items charged in the indictment and alleged to be in the possession of the appellant.

On December 21, 1975, Sgt. Smelley of the Alabama Bureau of Investigation, a division of the Alabama Department of Public Safety, received information by telephone from a reliable informant who said that approximately 7:00 P.M., he had purchased three hits of demerol from the appellant. About thirty minutes later, Officer Smelley met the informant, Elbe Fleming Martin, III, at Wilson Dam and was told that he, Martin, had purchased narcotics from the appellant, Glenn Smith, and at the same time had observed other narcotics in Smith’s possession. Martin informed Smelley that the drugs “were kept in a shoe box located under the bed in the first bedroom on the left as you started down the hall.” Based on this information, Officer Smelley made the following affidavit in support of his application for a search warrant:

“My name is Lawrence D. Smelley. I have been a Trooper for the Alabama Department of Public Safety for 15 years, and I am now assigned to the Alabama Bureau of Investigation, a division of the Alabama Department of Public Safety.
“Within the past 5 days, I have received information from a reliable informant that Glenn Smith is selling Amphetamines, Barbiturates, and Narcotics, and has in his possession in his home in Colbert County, Alabama, Amphetamines, Barbiturates, and Narcotics. On December 21, 1975, I received information from a reliable informant who is known to me to be truthful and reliable and who has given me information in the past which has resulted in arrests and convictions of drug violators. My informant has purchased Amphetamines, Barbiturates, and Narcotics from Glenn Smith at Glenn Smith’s home in Colbert County, Alabama within the past 72 hours. He observed, at the time of this purchase, additional Amphetamines, Barbiturates, and Narcotics in the residence of Glenn Smith while the said Glenn Smith was present.
“Therefore, I am requesting a search warrant for the home of Glenn Smith, whose name is to the affiant otherwise unknown, than as stated, and other John Does whose names are otherwise unknown to me at this time, which is located in Colbert County, Alabama by the following: Beginning at the intersection of U.S. 43 & 72 in Colbert County, travel South on U.S. 43 for 6.2 miles. Then turn left on a Colbert County paved road # 78, known as Vandiver Hollow Road and travel for 1.8 miles. Then turn left of a Colbert County paved road # 77, known as Coburn Mountain Road and travel for .6 of a mile and it is a red shingled house with a gray asbesto [sic] shingle roof next to a tan and white house trailer, both located on the left side of the road.”

The search warrant was issued on December 22, 1975, and approximately 3:00 P.M. that day, Sgt. Smelley with a team of officers served it. The premises described in the warrant were alleged to be the residence of the appellant and at the time the officers arrived he was standing in the front yard talking with a neighbor, Casey Skidmore. Also present at the time was Smith’s wife, two of his daughters, and his son, Lanny Smith, who arrived some minutes later. The search of the house revealed approximately 956 pills in a shoe box underneath the bed of the bedroom on the left as one started down the hall. The drugs, which were the subject of this prosecution, were found in a bottle in a dresser drawer in that room. Three more bottles of pills were found in a Pontiac automobile registered to the appellant’s son, Lanny Smith. All the drugs were not identified, only those found in the dresser drawer were analyzed and found to contain pethidine, which is “also known as merperidine” of which “Demerol is the brand name.”

I

On May 10, 1976, a jury was selected but prior to presenting any evidence to the jury, a hearing was held out of their presence on appellant’s motion to suppress. Counsel for appellant at trial requested that he be permitted to add to his written motion to suppress, a new ground, Number 20. Permission granted by the court and appellant was allowed to add the following ground:

“For that information alleged to be from an informant, the basis of this search warrant, was heresay [sic], in that the informant stated to the affiant that he he [sic] did not personally observe the drugs on the premises of the Defendant, but that the informer heard from another person, who allegedly personally observed the drugs, and that there is a failure in the warrant to prove the first informant was a reliable person.”

During the suppression hearing when Ellie Martin, the informant, was being questioned by the appellant’s attorney the following occurred:

“Q. O.K., now, on December 21 when you talked to Mr. Smelley, -would you tell the Court whether or not you told him that you had purchased amphetamines, barbiturates and narcotics from Glenn Smith at Glenn Smith’s home in Colbert County, Alabama, within the past seventy-two hours?
“A. No, sir.
“Q. Did you tell him that you observed at the time of this purchase additional amphetamines, barbiturates, and narcotics in the residence of Glenn Smith, while the said Glenn Smith was present?
“A. No, sir.
“Q. O.K. I’ll ask you did you tell Mr. Smelley that another person known to you was a person who had observed and had purchased amphetamines, barbiturates and narcotics from Glenn Smith’s home in Colbert County, Alabama?
“A. Yes, sir.
“Q. O.K. Did you at any time tell Sergeant Smelley that you had been on the premises of Glenn Smith and had purchased such narcotics, amphetamines and barbiturates?
“A. No.
“Q. But did you tell him that your information came from another person?
“A. Yes, sir.
“Q. And did he know who this person was?
“A. Yes, sir.
“Q. Did — and was this person, Teresa McCorkle?
“A. Yes, sir.
“Q. At any time, did Sergeant Smelley talk to Teresa McCorkle concerning this matter?
“A. No, sir, not that I know of.
“BY THE COURT: Cross examination. “CROSS EXAMINATION BY MR. PATTON:
“Q. Mr. Martin, have you ever given information in the past concerning anybody that had drugs?
“A. Sir?
“Q. Have you ever given information any law enforcement officers in the past about people having drugs?
“A. You mean for this?
“Q. Yes, sir.
“A. Yes, sir. '
“RE-DIRECT EXAMINATION BY MR. HUNT:
“Q. Did you ever tell Officer Smelley that you had observed Glenn Smith selling amphetamines or in the possession of amphetamines?
“A. No, sir.
“Q. Did you ever tell Sergeant Smelley that you had ever purchased amphetamines from him yourself?
“A. No, sir.
“Q. And did you make it clear to him on the night of December 21st and at any other time you talked to him within five days before December 21st, that you had not observed or you had not purchased, but that someone else had told you that? “A. Yes, sir, he knew it was someone else.
“Q. And did you tell him that person’s name?
“A. Yes, sir.”

Following Martin’s testimony during the suppression hearing, Lawrence D. Smelley was called as witness on behalf of defendant and the following occurred:

“Q. . . . [D]id you obtain a search warrant from the Colbert County Court on December 22, 1975, to search the premises of Glenn Smith?
“A. Yes, Sir.
“Q. Now, you alleged in the affidavit, the basis of this warrant, that within five days I have received information from a reliable informant that Glenn Smith is selling amphetamines, barbiturates and narcotics, and has in his possession in his home in Colbert County, Alabama, amphetamines, barbiturates and narcotics. On December 21, 1975, I received information from a reliable informant who is known to me to be a truthful and reliable and who has given me information in the past which has resulted in arrests and convictions of drug violators. My informant has purchased amphetamines, barbiturates and narcotics from Glenn Smith at Glenn Smith’s home in Colbert County, Alabama within the past seventy-two hours. He observed, at the time of this purchase, additional amphetamines, barbiturates and narcotics in the residence of Glenn Smith while the said Glenn Smith was present. Now, you have heard the testimony of Ellie Martin, III, who said that he met you at Wilson Dam on the night of December 21 and gave you some information concerning Glenn Smith, and I ask you if he is one and the same person as the informant alleged in this affidavit?
“A. Yes, sir.
“Q. And did Ellie Martin make known to you at that time that he had not personally purchased the narcotics or whatever he alleged to have purchased, but that Teresa McCorkle had done so?
“A. On the night of the 21st?
“Q. Yes.
“A. No, sir, he said that he had purchased.
“Q. Said he did not?
“A. Said he did.
“Q. He said he purchased?
“A. Yes, sir.
“Q. So, at that time, you say the informant told you that he had purchased those amphetamines?
“A. Yes, sir.
“Q. And he told you at that time that he had seen other drugs present?
“A. Yes, sir.
“Q. What did he tell you was Teresa McCorkle’s role in this business?
“A. Teresa originally had the in with Mr. Smith. At first, according to Mr. Martin’s testimony, now what Mr. Martin was telling me Mr. Hunt. I have no firsthand knowledge of what actually went on. According to what he told me, that begin with the only person Mr. Smith would allow to buy from him was Miss McCorkle. We asked him to attempt to arrange so he could buy it himself, which is the hold up, I mean this is why the time passed from December 7 to December 22 when we got the search warrant. And he called Mr. Sanderson that night. They had had a previous discussion earlier in that day, what the content of that was, I do not know. Mr. Sanderson called me and told me that he would call that night at Mr. Sanderson’s residence at approximately 7:00 P.M., if he had been successful in getting his way in to purchase from Mr. Smith. He called at approximately 7:00 P.M., stated that he had bought three hits of Demerol.
“MR. HUNT: Just a minute — did he state that to you or somebody else?
“A. He made it to me and Mr. Sander-son, because he talked to Mr. Sanderson on the phone first and then Dickie handed the phone to me. Mr. Sanderson was sick at the time, I believe, with the flu.
“CROSS EXAMINATION BY MR. PATTON:
“Q. Mr. Smelley, did Mr. Martin give you any information as to the location of the drugs, where they would be found in the house?
“A. Yes, sir, he did.
“Q. What was that information Mr. Smelley?
“A. He told me they were kept — most of them were kept in a shoe box located under the bed in the first bedroom on the left as you started down the hall.
“Q. Did that information also prove to be reliable Mr. Smelley?
“A. Went right straight to it sir.
“Q. And did he, at the time when he gave you all this information on December 21, state to you that he had made the purchase?
“A. Yes, sir.
“Q. And that Mr. Smith was present?
“A. Yes, sir.
“Q. And that he saw — he observed other drugs there?
“A. Said there was a shoe box full.
“Q. And you did find that shoe box as a result of the search?
“A. We found a box that appeared to be similar to a shoe box, whether it was a shoe box or not I don’t know but it was full of amphetamines, barbiturates.
“Q. Where was it located?
“A. Under the bed in the first bedroom on your left as you start down the hall in Mr. Smith’s house.”

Teresa McCorkle was called as a witness for the defendant and she testified in part as follows:

“Q. Now, I’ll ask you if on December 21, 1975, you went to Glenn Smith’s home in Colbert County, Alabama?
“A. Yes, sir.
“Q. Now, I’ll ask you if at that time Elbe Martin, III was present in the automobile with you?
“A. Not when I went to the house. “Q. O.K., now, was he in the automobile with you when you went near Glenn Smith’s house?
“A. Yes, sir.
“Q. And how close did he get to Glenn Smith’s house? Ellie Martin that is.
“A. Maybe a mile.
“Q. About a mile away.
“A. I guess so.
“Q. Did Elbe Martin, III, at any time during that day go into the home of Glenn Smith?
“A. No, sir.
“Q. Did he talk to or get nearby Glenn Smith?
“A. No, sir.
“Q. And did you later tell Elbe Martin, III, that you, yourself, had observed some illegal drugs in Glenn Smith’s house?
“A. Yes, sir.
“Q. And was your statement to Elbe Martin, III, that you, yourself had observed those drugs, that you — that Elbe Martin, III, had not been on the premises and personally observed them?
“A. No, sir, he didn’t.
“MR. HUNT CONTINUES: O.K., now, have you ever given information to Alabama State Trooper Sergeant Lawrence D. Smelley the gentleman seated at the counsel table?
“A. No, sir.
“Q. Wait a minute, let me finish. Have you given any information to him concerning the purchase or observation of any amphetamines, barbiturates and narcotics in the residence of Glenn Smith?
“A. No, I haven’t.
“Q. And have you ever talked to State Trooper Sergeant Smelley concerning any transaction with Glenn Smith at all?
“A. No, sir.
“CROSS EXAMINATION BY MR. PATTON:
“MR. PATTON CONTINUES: Did you on the occasion on December 21, in fact, go to the home of Glenn Smith, located in Spring Valley and purchase some Demerol?
“A. I’m not sure if it was Demerol.
“Q. Did you buy some drugs there?
“A. Yes, sir.
“Q. And did you on this occasion see other drugs located there in the home of Glenn Smith?
“A. No, sir.
“Q. You did not?
“A. No, I didn’t.
“Q. Did you, in fact, see some drugs located under the bed in the first bedroom in a shoe box or what appeared to be a shoe box?
“A. No.
“Q. Where was the purchase made please ma’am?
“A. In the living room I suppose.
“Q. In the living room?
“A. Yes, sir.
“MR. PATTON CONTINUES: You did not go into the bedroom of Mr. Smith?
“A. I don’t know if I did that day.
“Q. Have you, on any occasion, seen the drugs or seen the shoe box of drugs located under the bed?
“A. I never saw any drugs, except for what I got.”

At the end of the foregoing testimony the court overruled the motion to suppress and the jury was returned to the courtroom.

As can be seen from the foregoing excerpts from the record, the testimony of Sgt. Smelley was in direct conflict with that given at the suppression hearing by Martin and McCorkle. The general rule in Alabama has been that when conflicting testimony has been offered it becomes a question for the triers of fact to determine what the truth of the matter is. Sims v. State, 51 Ala.App. 183, 283 So.2d 635. See: Snipes v. State, 50 Ala.App. 139, 277 So.2d 413.

In United States v. Thomas, 489 F.2d 664, the Fifth Circuit Court of Appeals adopted the following standards for evaluating affidavits which are alleged to contain misrepresentation which invalidate the search warrant. In that opinion the court proposed that evidence should be suppressed when there is either:

“. . . (1) an intentional misstatement by an affiant-agent, whether material or immaterial to showing probable cause; or (2) a negligent or unreasonable assertion in an affidavit, if material to showing probable cause, but not where (3) the mistake is innocent, even if material to probable cause.”

In the present case the question is whether the misrepresentation was in good faith or with an intent to mislead. Smel-ley’s testimony indicated that he told the magistrate what he thought to be true, that is, that the informant, Martin, had actually purchased the narcotics and had seen other narcotics in the presence of the appellant. His testimony, as we have said, was in direct conflict with that of McCorkle and the informant, Martin. It is our judgment that nowhere was it shown that Sgt. Smel-ley intentionally or negligently misrepresented the facts underlying the search warrant.

Based on the foregoing, the only question evolving from the facts was the weight and credibility to be attached to the testimony of the witnesses during the suppression hearing and this was a question for the judge who properly determined this matter.

II

The appellant contends that the evidence did not show that he was in constructive possession of the illegal drugs and knew of their presence.

The Supreme Court of Alabama in Radke v. State, 292 Ala. 290, 293 So.2d 314, stated:

“. . . when the presence of the accused at the scene is established and evidence of his knowledge of the presence of the prohibited substance is shown, along with any other incriminating evidence, the issue of the defendant’s guilt should be submitted to the jury.”

The evidence submitted on behalf of the State shows that some of the officers engaged in the search testified that they went to the premises identified as the home of the appellant. Danny Kimbrell of the Colbert County Sheriff’s Department, acknowledged that he executed the search warrant for the defendant’s home. James Long of the District Attorney’s Office of Colbert County, was asked:

“Q. Did you have occasion to go with a search party to the residence identified to you as that of the Defendant, Glenn Smith?
“A. Yes, sir.”

Also, when Long was being questioned concerning State’s Exhibit No. 4, which was a photograph depicting the bottle containing the incriminating drugs in the drawer where the item was found, he said that the photograph was made “In a bedroom of the home of Mr. Smith, that would be the first bedroom south of the living room.” Robert Patterson, a State Trooper Sergeant with the Department of Public Safety was asked:

“Q. And did you, along with other officers, go to the home identified to you as that of Glenn Smith, the defendant in this case?
“A. Yes, I did.”

Sgt. Smelley and Sgt. Patterson each testified that the appellant, Glenn Smith, was present at the time the search was being conducted. Smelley stated:

“Mr. Smith’s wife, one of his daughters, possibly two of his daughters and I assume a neighbor, standing out in the front yard talking with him . .

were also present.

We recognize that the mere presence of the accused is not sufficient to establish the constructive possession necessary and that other facts and circumstances must be involved to establish the guilty knowledge of the illegal substance at the location where the appellant was present. Parks v. State, 46 Ala.App. 722, 248 So.2d 761. However, we also recognize that guilty knowledge, that the appellant knew of the presence of the drugs, may be established by circumstantial evidence. Womack v. State, 34 Ala.App. 487, 41 So.2d 429.

Once ownership of the premises had been established it was reasonable for the jury to infer that the bedroom, where the dresser containing the drugs was located, was that of the appellant since adult male and female clothing, and a pair of men’s boots were found there.

The recent decisions of Williams v. State, Ala.Cr.App., 340 So.2d 1144 and Cook v. State, Ala.Cr.App., 341 So.2d 183, addressed the question of constructive possession of drugs where mere presence was shown. In Williams v. State, supra, this court in reversing the judgment observed:

“At the time the motion to exclude was made, the State had only shown that the appellant was present in the apartment of some other person dressed in rumpled clothing, sans shoes and jacket. He retrieved both his shoes and his jacket from the bedroom when placed under arrest. Whether appellant knew that prohibited drugs were in the apartment, or whether the appellant exercised some dominion or control over the apartment is left to mere conjecture and speculation. . . .”

However, Williams v. State, supra, can be distinguished from the present case because the matter before us had the additional fact, apart from the presence of the appellant, that this was his residence. In Cook v. State, supra, we have the additional fact established of the appellant’s residence in the house searched, whereas in Cook v. State, the appellant and his family were present but no evidence was adduced to indicate that that was his residence.

In view of the foregoing we believe there was evidence from which the jury could conclude that the appellant knew of the presence of the drugs in the bedroom, and it was not a matter of mere conjecture or speculation.

Ill

The appellant insists that it was error to admit for the jury’s consideration, the unidentified capsules, tablets and pills which were similar in appearance to the items charged in the indictment and alleged to be in the possession of the appellant.

This precise issue was considered in Wilcox v. State, Ala.Cr.App., 333 So.2d 202, and it was the opinion of this court that the presence on the premises of the tablets and other items, seized at the time of the search and not encompassed in the charge against the defendant, were admissible as part of the res gestae of the search and part of the same transaction. The court went on to say:

“. . .a reasonable person would be impressed that the several rooms, residence and the curtilage room were used as a storage place for drugs and empty drug containers.”

We hold that the facts in Wilcox v. State, supra, so parallel the facts in the present case that it is the decision of law controlling.

Further, the Supreme Court of Alabama in Brantley v. State, 294 Ala. 344, 317 So.2d 345, has expressly approved the admission of other drugs found in an appellant’s home at the time of a lawful search.

No error appears in the record; we therefore

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Glenn SMITH.
    No. 77-45.
    Supreme Court of Alabama.
    Nov. 18, 1977.
   MADDOX, Justice.

WRIT DENIED.

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


author: SIMMONS, Retired Circuit Judge.

text:
    Thomas O’SUCH, alias v. STATE.
    8 Div. 967.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.
    Michael B. Maddox for Guin, Bouldin & Porch, Russellville, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State, ap-pellee.
   SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was indicted on June 11, 1975, for robbery. Represented here and at nisi prius by appointed counsel, he entered a plea of not guilty. A jury convicted him as charged and fixed his punishment at ten years 'imprisonment.

The indictment, dated June 11, 1975, was in code form that appears in T. 15, § 259(95), Code of Alabama, Recompiled 1958. Trial on the merits was begun on April 19, 1977.

On the same date, April 19,1977, the jury returned its verdict of guilty and a judgment pursuant to the verdict was duly entered.

Prior to the arraignment and plea of not guilty, defendant moved to quash the indictment. The court heard the motion and overruled it. This ruling is asserted as error.

The motion to quash, challenged the indictment because: (1) it was silent as to the date of the alleged offense; and (2) it does not state where the offense was supposed to have occurred.

Appellant asserts in his argument that the silence as to the time and place, supra, denies him due process guaranteed under the Fourteenth Amendment to the Constitution of the United States; and, in Section 6, Article 1, of the Constitution of Alabama, 1901.

The Supreme Court of Alabama, in Billingslea v. State, 68 Ala. 486 (1880), referring to a first degree murder indictment in the form prescribed by statute (now T. 15, § 259(79)) observed:

“It has been held more than once by this court, that the form of indictment for murder, as prescribed by the Code (p. 991), is sufficiently certain and definite, and is not violative of any provision of the constitution, State or Federal. We are satisfied with the conclusions reached on this subject by our predecessors in Aikin v. The State, 35 Ala. 399, and Noles v. The State, 24 Ala. 672, holding the form in question to be sufficient. The demurrer to the indictment was properly overruled, under the authority of these cases.”

In Harris v. State, 44 Ala.App. 449, 212 So.2d 695(2, 3), cert. den. 282 Ala. 726, 212 So.2d 704, we held that neither time nor place is a material element of robbery. T. 15, § 237, Code of Alabama, Recompiled 1958.

Although we have addressed appellant’s assertion of error with respect to the alleged defects in the indictment, we take cognizance that a motion to quash was not the proper way to present the issue, and the court was not in error for overruling it. Duncan v. State, 278 Ala. 145, 176 So.2d 840(1,2); Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. den. 335 So.2d 678.

SPEEDY TRIAL

Appellant filed a motion to abate the indictment because he was denied his right to a speedy trial. Amendment VI, United States Constitution; Section VI, Constitution of Alabama, 1901.

At the time the indictment was returned on June 11, 1975, defendant was a prisoner in Nevada on a charge of armed robbery. He was judged on a plea of guilt in August of 1975. No appeal was taken. Soon after being notified in March or April, 1976, about the extradition papers, he filed a petition in the Courts of Nevada for a writ of habeas corpus. Upon denial of the petition, he took an appeal which was decided adversely to him in January of 1977. It appears that the legal proceedings, namely, the petition for a writ of habeas corpus, were filed to defeat extradition.

Taking all the circumstances into consideration, and balancing them, namely; defendant’s imprisonment and the delaying tactics occasioned by the institution of the habeas corpus proceedings, we do not see that defendant has any right to complain. He further fails to show any prejudice resulting from the delay. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; Cook v. State, Ala.Cr.App., 333 So.2d 855(1)(2), cert. den. Ala., 333 So.2d 858; Mayberry v. State, 51 Ala.App. 343, 285 So.2d 507(9); cert. den. 291 Ala. 792, 285 So.2d 512, cert. den. 415 U.S. 929, 94 S.Ct. 1438, 39 L.Ed.2d 486; Tiner v. State, 279 Ala. 126, 182 So.2d 859(16)(17); Giles v. State, 52 Ala.App. 106, 289 So.2d 673(2); Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81(2)

We find no ruling of the Court that was prejudicial to the defendant.

The judgment is hereby affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, 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.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Thomas O’SUCH, alias.
    No. 77-33.
    Supreme Court of Alabama.
    Nov. 18, 1977.
   MADDOX, Justice.

WRIT DENIED.

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


author: WILLIAM D. PAGE, Circuit Judge.

text:
    Larry Wayne HAYES v. STATE.
    8 Div. 932.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.
    Sherman B. Powell, Jr., Decatur, for appellant.
    William J. Baxley, Atty. Gen., Clyde P. McLendon, Asst. Atty. Gen., for the State.
   WILLIAM D. PAGE, Circuit Judge.

Prosecution of appellant was in Morgan County Court for non-support of his two minor daughters under Title 34, Section 90, Code of Alabama 1940, Recompiled 1958. Defendant was found guilty by a jury. The jury declined to assess a fine. The trial court sentenced appellant to hard labor for the County for twelve months. On trial and in this Court appellant was represented by retained counsel.

On June 15, 1976, Bonne Hayes, the former wife of appellant, executed affidavit to the effect that within the preceding twelve months appellant “did without just cause, desert, or willfully neglect or refuse or fail to provide for the support and maintenance” of the children, ages seven and five, such children being “in destitute or necessitous circumstances.” Following his arrest appellant was released on bond. Trial was held on November 18, 1976.

At the close of the case for the prosecution the appellant moved to exclude the evidence bringing to the attention of the trial court his contention that the evidence failed to show that the children were in destitute or necessitous circumstances during the period essential to the charge. The motion was overruled. At the close of the entire evidence the motion was renewed and again overruled.

Appellant and his former wife were married in 1967. At that time appellant was a member of the Armed Forces of the United States. The girls were born while the couple was in Germany on assignment by the military. When appellant returned to the United States he was stationed in Texas. The mother and the girls lived in a trailer in Morgan County. The parents were divorced in 1972. The appellant was ordered to pay $50.00 each month for the maintenance and support of both children. Appellant made the support payment for approximately one year. The mother married again in 1974. She and the girls lived with her second husband. During the year 1974 appellant made no payments of support for the children and contributed nothing for their maintenance. The mother divorced a second time in 1975. She and the girls moved into an apartment in a government-subsidized complex in Morgan County. In 1975 the appellant contributed between $150.00 and $200.00 in cash to the support of the children, he gave them some clothes at Christmas and he gave the mother a case of chicken from a truck he was driving in connection with his employment. He was gainfully employed as a truck driver during the period in issue although his employment status at the time of trial was in doubt. The mother was employed at two jobs. She worked as a secretary and also part-time at a barber shop. The children receive free lunches at the school they attend. The mother pays a relative $10.00 each week to attend the children after school and on Saturdays, although on occasion she is not financially able to pay for this service. The mother provides food, clothing and medical attention for the girls to the best of her ability. The girls are about six months behind in their dental work because the mother does not have funds with which to pay for the dental work. There is medical insurance covering the children although the record is not clear whether this insurance is paid for by the mother directly or through her place of employment. It is sufficient to say that the appellant does not pay for the medical insurance. The clothing for the girls includes shoes that are purchased at rummage sales. The mother nets $193.00 each two weeks from her employment as a secretary. She works at the barber shop on Saturdays and earns $15.00 per week. Her expenses include $74.00 per month for utilities, and $32.00 per month payment on a bank loan obtained for dental and other needs of the children. On one occasion the aunt of the girls bought the groceries for them and their mother because the mother did not have the necessary funds. There were unpaid bills for medicine for the children. Their clothes were patched at time of trial. The appellant earns approximately $235.00 gross each ten days when he is employed as a truck driver although his employment is sporadic.

The appellant testified that he did not pay for the support of the children because the mother told him he could not see the children. This was denied by the mother. The testimony reveals that the appellant had custody of the children on two occasions in 1975 and took them to the home of his parents.

Appellant contends that as a matter of law the children were not in destitute or necessitous circumstances under the evidence and that the motion to exclude should have been granted. That issue was properly presented to the jury to be weighed and considered from all the surrounding circumstances. Crossley v. State, 25 Ala.App. 284, 145 So. 170 (1932); Gargis v. State, 29 Ala.App. 203, 194 So. 429 (1940). There is no fixed standard under our law to determine whether children are in destitute or necessitous circumstances. It will vary with the circumstances to which the parties are accustomed and according to the needs of the children. It is only reasonable that the issue should properly be submitted to the jury for its determination considering the needs of the children, the ability of the mother to provide for the children and the ability and efforts of the father to provide for the children. There is no requirement that the children be forced to the brink of starvation. It is sufficient if the children are in economic need. Rouse v. State, 43 Ala.App. 171, 184 So.2d 839 (1966).

Appellant urges reversal because the facts do not show that the children are in destitute or necessitous circumstances as a matter of law citing Turner v. State, 343 So.2d 591 (Ala.1977). That case stands for the proposition that a conviction under Section 90 cannot stand merely upon a showing of economic need on the part of the children. The prosecution must show beyond a reasonable doubt from the evidence that the children are in destitute or necessitous circumstances. In Turner this Court affirmed the conviction without opinion. Application for rehearing was overruled without opinion. The case was before the Supreme Court by writ of certiorari. In the application the defendant requested finding of facts and submitted his proposed findings pursuant to Rule 39(k), Alabama Rules of Appellate Procedure. The State did not submit any facts supporting the charge that the minors were in destitute or necessitous circumstances. The Supreme Court held that, since there was no evidence or facts to show the actual condition of the children, the conviction could not stand because it would be founded on surmise only. In the instant case there is adequate evidence, if believed by the jury, upon which the conviction can be founded. There was sufficient evidence warranting submission to the jury and to authorize the jury to conclude the children were in destitute and necessitous circumstances. Turner v. State, 39 Ala.App. 527, 104 So.2d 775 (1958).

Appellant urges that the conviction should be reversed because it was not shown that he was aware that the children were in need of material assistance and, therefore, no evidence that his conduct amounted to “willful neglect and refusal”. The element of “willful neglect” as it appears in the statute must be referred to the refusal to perform the mandatory obligation of the father to support his children. If the evidence shows that the mandatory obligation was not performed and no legal excuse appears for the non-performance, the trier of the fact may find that the refusal was willful. Upton v. State, 36 Ala.App. 94, 52 So.2d 820, reversed on other grounds, 255 Ala. 594, 52 So.2d 824 (1951).

Appellant presents for review the refusal of nine charges requested in writing. No argument is made on the refusal of either charge requested and no citation of authority in support of any charge is given. The Court has reviewed each requested charge in conjunction with the evidence, the oral charge, and the written requested charges which were given. We conclude that the jury was fairly and adequately charged on the applicable law.

The entire record has been searched for errors injuriously affecting the substantial rights of appellant. None have been found. Accordingly, the judgment of conviction is affirmed.

The foregoing opinion was prepared by Hon. William D. Page, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code of Alabama, 1940, Recomp. 1958; the Court has adopted this opinion as its own.

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    William Edward HARRIS v. STATE.
    4 Div. 580.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.
    Earl V. Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the crime of forgery and the Court sentenced him to three years in the penitentiary. At arraignment, in the presence of his counsel, he pleaded not guilty. After sentence was imposed, notice of appeal was given in open court. Appellant was found to be indigent and a free transcript was furnished him. Trial counsel was appointed to represent appellant on this appeal.

The evidence was in sharp conflict. When the State rested appellant moved to exclude the State’s evidence which motion was overruled. He also requested the affirmative charge and this request was refused. It took the jury only eleven minutes to return a verdict finding the defendant guilty as charged in the indictment.

Lester Williams testified that he accepted a Posey-Kilcrease, Inc. check drawn on Central Bank of Montgomery. He accepted the check in early January, 1977. Williams testified that three people brought the check to his place of business in Andalusia, Alabama, and that appellant was one of the three men. He stated that the three men all arrived in the same automobile and they came into his repair shop together. He further testified that one of the trio, a man named Hilliard, presented the check to him for the purchase of an automobile transmission. The amount of the check was in excess of the cost price of the transmission and he gave Hilliard the difference in the price of the transmission and the amount of the check. He deposited the check to his account in a local bank and the check was later returned to him. His bank account was charged in the amount of the returned check. The amount of the check was $226.42, payable to A. B. Morgan, and was purportedly signed by Taylor Kilcrease.

Taylor Kilcrease, Vice President of Po-sey-Kilcrease, Inc., testified that on January 5,1977, his office in Brantley, Alabama, was broken into and eleven checks and a check writing machine were missing. He stated that eight of the eleven checks were blank. He further testified that check number 595 was one of the blank checks missing after the break-in and he identified State’s Exhibit No. 1 as that missing check. He said the signature on this check was not his signature and that he did not authorize anyone to sign his name to the check, nor did he authorize anyone to publish the check.

James Hilliard, an accomplice of appellant, testified that he, David Powell and appellant went together in an automobile to the Posey-Kilcrease, Inc. office on January 5, 1977, in Brantley, Alabama. He stated that he and appellant got out of the car and broke into the building with a tire tool. He said he got the checks and appellant got the check writing machine. Hilliard said they were all drinking.

Hilliard further testified that the next day he, Powell and appellant went to Lester Williams’s place in Andalusia to buy a transmission. He stated that before they left for Andalusia, he said in the presence of appellant that they were going to cash one of the checks. Hilliard identified State’s Exhibit No. 1 as the check he presented to Williams. He said that the difference in the cost price of the transmission and the amount of the check was given to him by Mr. Williams and that the three of them divided the money. Hilliard further stated that at the time he signed Taylor Kilcrease’s name to the check all of them were in the automobile; appellant was not passed out nor was he asleep.

Appellant offered into evidence a handwritten note by Hilliard to appellant in which Hilliard stated that appellant was asleep the entire time that the alleged forgery took place.

Appellant denied that he engaged in the forgery made the subject of the indictment and that he was stone drunk the entire time of the transaction related by Hilliard. He said he had absolutely no recollection as to taking the check writing machine as he was drunk.

Appellant testified that none of the writing on the check in question was his; that he remembered being in the car with Hilli-ard and Powell on the night of January 5, 1977, but he was stone drunk and could not recall anything in connection with the break-in or the theft of the check writing machine.

Appellant also testified that he remembered getting in the car with Hilliard and Powell the next day but he didn’t remember talking about any checks. He said he did get out of the car at Lester Williams’s place and that he saw a bunch of cars there, tires and junk of all types as he walked around.

Appellant rested his case after the testimony of one character witness.

The State called appellant for further cross-examination over appellant’s objections that both sides had rested and this procedure was not in rebuttal. The Court overruled the objection. The State asked appellant about other transactions involving the stolen checks. Appellant denied trying to pass another check at Harold’s Discount in Andalusia immediately following the transaction with Lester Williams. The Court gave appellant’s counsel a standing objection to each of these questions by the District Attorney.

The State recalled Hilliard and he testified that appellant handed him the check in question from the console of the car after appellant handed him one check the amount of which was too small.

On cross-examination Hilliard testified that the note which he sent to appellant was not wholly true. He stated that appellant was drunk and passed out some of the time, but not all of the time. On redirect examination Hilliard testified that after leaving Lester Williams’s place they all went to a discount stereo place. He said appellant took one of the checks and tried to buy a stereo.

Over appellant’s objections the State then called Harold Grimes in rebuttal. He stated that he was in the mattress and retail furniture business in January, 1977. He recalled three men driving up in an old car on a Thursday some time in January. He said they came in his place together and one of them was interested in a stereo. Grimes stated that the man tried to pay for the stereo with a check which was considerably larger in amount than the price of the stereo. He stated that he thought the check was written on a Posey Lumber Company in Brantley, Alabama. Grimes said that the person attempting to make the purchase was fairly tall, thin, and red-headed. Grimes stated that he could not and would not positively say whether appellant was or was not the man who attempted to pass the check for the purchase of the stereo.

The law in Alabama is well settled that an accused cannot be convicted on the uncorroborated testimony of an accomplice. Title 15, Section 307, Code of Alabama 1940.

In Sorrell v. State, 249 Ala. 292, 31 So.2d 82, the Supreme Court held:

“The principle controlling is well understood and of almost universal application. The corroboration necessary to support the testimony of an accomplice must be of some fact tending to prove the guilt of the accused. It is not sufficient if it is equivocal or uncertain in character and must be such that legitimately tends to connect the defendant with the crime. It must be of a substantive character, must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt.”

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

“. . . The proper test for determining whether there was sufficient corroboration of the testimony of an accomplice has been set out in Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947). The Court held that, first, the evidence of the accomplice must be eliminated, and then, if upon examination of all other evidence, there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration . . .”

In Senn v. State, Ala., 344 So.2d 192, released on February 25, 1977, Mr. Justice Bloodworth, writing for a unanimous Court, said:

“The corroboration which is sufficient to support the accomplice’s testimony must be of some fact tending to prove the guilt of the defendant.”

In Kimmons v. State, Ala.Cr.App., 343 So.2d 542, Judge Bowen reviewed a great number of cases dealing with this subject. He held:

“The process of analyzing the evidence to determine if there has been sufficient corroboration of an accomplice (or accomplices) is one of subtraction. That is, the trial court, on proper motion, as a matter of law is required to take away the evidence of the aceomplice(s) and determine whether the rest of the testimony is sufficient to tend to connect the defendant with the commission of the offense.” In Kimmons, supra, it was further held: “Being in the company of an accomplice in proximity in time and place to the commission of the crime is not always sufficient to meet the requirements of our statute.”

When we subtract the accomplice Hilli-ard’s testimony there is no evidence left which tends to connect appellant with the commission of the offense charged in the indictment. At best there is only suspicion that he participated in the commission of the offense. This falls far short of the rule in the above cited cases. Appellant was due the affirmative charge.

Reversed and Remanded.

All the Judges concur.


text:
    Clara DAVIDSON v. STATE.
    6 Div. 322.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.

      Fred Blanton, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., Montgomery, and Glenn E. Thompson, Student Research Aide, Birmingham, for appellee.
   HARRIS, Judge.

Appellant was put to trial on a two-count indictment purportedly charging grand larceny and buying, receiving, and concealing stolen property. The trial court charged out the second count stating: “I instruct you that count two does not apply to the trial of this case.”

Omitting the formal parts count one reads as follows:

“The grand jury of said county charge that, before the finding of this indictment, Clara Davidson, whose name is to the Grand Jury otherwise unknown, felo-niously took two hundred dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the Grand Jury otherwise unknown, the personal property of Charles David Neese, against the peace and dignity of the State of Alabama.”
The jury returned the following verdict: “We the jury find the defendant guilty of grand larceny as charged in the indictment and fix the value of the stolen property at two hundred dollars.”

Thereupon the Court sentenced appellant to imprisonment in the penitentiary for a term of three years.

It will be noticed at once that the count upon which appellant was convicted omits the words, “and carried away.” As-portation is an essential element of the offense of grand larceny and its omission renders the indictment fatally defective and will not support the judgment of conviction even though no objection, by way of a demurrer, was raised to the count in the lower court.

We thought that, perhaps, there was an error in the transcription of this count in the record and requested the Clerk of this Court to call the Circuit Clerk’s Office in Birmingham and read to her the original indictment. This was done and the words “and carried away” are not in the original indictment.

Larceny is generally defined as the felonious taking and carrying away of personal property of another with intent on the part of the taker to convert to his own use, or to deprive the owner thereof. Meadows v. State, 36 Ala.App. 402, 56 So.2d 789; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603.

Exactly one hundred years ago Justice Stone in the case of Rountree v. State, 58 Ala. 381, held the following indictment to be defective:

“The grand jury of said county do further charge that, before the finding of this indictment, Jim Rountree, Monday Roun-tree, Neil Asbury, John Isaiah, and Aaron Lampley, feloniously took and carried_one bale of lint cotton, of the value of fifty dollars, the personal property of a person, whose name is to the grand jury unknown,” etc.

Justice Stone pointed out that the word “away” was omitted and this omission rendered this count in the indictment bad.

Where an indictment does not on its face charge any offense it is the duty of this Court to take note of such defect and declare that it will not support a judgment of conviction despite the absence of any attack on it in the lower court. Mehaffey v. State, 16 Ala.App. 99, 75 So. 647; Brown v. State, 32 Ala.App. 246, 24 So.2d 450; Raisler v. State, 55 Ala. 64; Emmonds v. State, 87 Ala. 12, 6 So. 54; Dowdy v. State, 22 Ala.App. 514, 117 So. 489; Likos v. State, 28 Ala.App. 231, 182 So. 81.

In all fairness to the Circuit Judge who tried this ease, and we say without fear of contradiction that he is one of the most distinguished judges to grace any bench, we should point out that the defective indictment was not brought to his attention. Nevertheless, under the cited authorities we are bound to notice it.

We do not consider it necessary to notice any other questions raised on this appeal.

The learned trial judge fully comprehended that asportation is an essential element of the crime of larceny. In his oral charge to the jury he said:

“Now, larceny is the felonious taking and carrying away of the personal property of another, including money, with the fraudulent intent to convert it to the use of the taker or some other person. Larceny involves the trespass upon the property of another and is the felonious taking and carrying away of the property of another with the intent to deprive an owner of the use thereof. To constitute larceny, there must be both the taking and the carrying away of the property of another, that is, the securing of dominion or absolute control over the property. The carrying away is the removal of it from the place where it was used before it was taken. The mere taking alone or the mere carrying away alone of the property is not larceny.” (Emphasis supplied).

The prosecution in this case was begun by the issuance of an arrest warrant based upon an affidavit alleging that Clara Davidson did falsely pretend to Charles David Neese, with intent to defraud, that she had possession of a dwelling house located at 408 13th Terrace N. W., Jefferson County, Alabama, and she wanted to rent this house to someone and by means of such false pretense, obtained from the said Charles David Neese $200.00 in United States currency.

Neese testified that he was originally from Opelika and had moved to Birmingham and was looking for a house to rent. He answered an ad in a local newspaper and when he called the telephone number he got an answering service and left his number. A woman called him and they agreed to meet at a Bonanza Steak House. When this appellant met Neese at the steak house, she introduced herself as Sue Hill. They transacted business necessary for Mr. Neese to rent the house that was advertised in the newspaper and he paid appellant $200.00 in cash and got a receipt. A contract was introduced in evidence which was signed by Neese and “Sue Hill.” Prior to signing the lease contract Neese had visited the premises and found that it was empty. After signing the so-called lease contract and paying appellant $200.00, he returned to the premises on January 6, 1975, and found five couples present and all were trying to move into the house. Neese then called the Sheriff’s Department.

If there are further proceedings in this case attention is called to the case of Latham v. State, 56 Ala.App. 234, 320 So.2d 747.

For the error noted this case is reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Lincoln HEARD v. STATE.
    3 Div. 370.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Paul D. Owens, Jr., Brewton, for appellant.

      William J. Baxley, Atty. Gen., and Winston D. Durant, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

The homicide in question occurred on January 18,1974, at the Atmore State Prison (now Fountain Correctional Facility). The murder took place during a prison riot, which inmates termed a “revolution.”

Appellant was convicted of the murder of correctional officer Luell W. Barrow. Other inmates have also been tried and convicted of crimes resulting from the riot. Johnny Harris was convicted of first degree murder for his complicity in the killing of Officer Barrow, pursuant to Title 14, § 319, Code of Alabama 1940, and was sentenced to death. That sentence has been affirmed by both this court and the Alabama Supreme Court. Harris v. State, Ala.Cr.App., 352 So.2d 460 (1976) affirmed, Ala., 352 So.2d 479 (1977) [Ms. September 9, 1977]. Oscar Lee Johnson was convicted of second degree murder for his part in the killing of Officer Barrow and sentenced to thirty-one years imprisonment. We affirmed. Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678 (1976). Appellant was convicted of assault with intent to murder and sentenced to twenty years imprisonment for his part in beating and stabbing a fellow inmate during the riot. We affirmed in Heard v. State, Ala.Cr.App., 335 So.2d 679 (1976).

Details of the rioting are set out more fully in Harris, Johnson, and Heard, supra, and will not be restated herein. The evidence presented at trial in the instant case is amply sufficient to support a finding by the jury that appellant participated as an accomplice in the murder for which he stands convicted. His armed participation in the riot is shown by a number of witnesses. There is a conflict in the testimony between several witnesses as to whether appellant was armed with a knife. Some say he was; some say he was not. However, all observers including appellant’s witnesses testified that appellant was armed with a club or “billy stick.” Appellant admitted being so armed.

Arthur Dreadin, a correctional officer at the time, gave direct testimony of appellant’s participation in the killing. Dreadin said that he and Barrow were overpowered and taken hostage by inmates Johnny Harris and Oscar Johnson. The two guards were taken to a cell by inmates Johnny Harris, Lincoln Heard, Oscar Johnson and others. From the record:

“A. Oscar Johnson was standing right there beside Mr. Barrow on his left side. Frank Moore was standing right there beside of him.
“Q. Do you know where this defendant was, Lincoln Heard?
“A. Lincoln Heard was standing right there close to Johnson.
“Q. Was he in this cell?
“A. Yes, he was in that cell.
“Q. Do you know whether the inmates who were in this cell, including this defendant, had any weapons at that time?
“A. They was all had weapons or knives in there.
“Q. Did you see this defendant with a knife when he went in that cell?
“A. Yes, sir, I saw him with a knife.
“Q. Now, what happened from that point on, if anything?
“A. Well, Mr. Barrow somebody — he groaned. Groaned kinda.
“Q. What kind of noise did he make?
“A. Like he was killed or something. He' groaned.
“Q. Can you reproduce the noise you heard?
“A. Something like (witness indicating). Something like that. And I looked and he was kind of melting down. So I know it was time for me to go, so I run in. I left out of there and Frank Moore was stabbing me all the time.”

Prison guards then assaulted the cell block and quelled the riot. Officer Barrow was found a few minutes later in the cell, dead from twenty-seven stab wounds. His heart “had been sliced in two pieces.”

I

Although the evidence was sufficient to connect appellant with the murder as an aider, abettor or accomplice pursuant to Title 14, § 14, Code of Alabama 1940, neither the weight nor sufficiency of the evidence is presented for review on appeal in the absence of a motion to exclude the State’s evidence, request for the affirmative charge, or motion for a new trial. Wilcox v. State, 54 Ala.App. 474, 309 So.2d 510 (1975). For a discussion of the law relative to aiders, abettors or accomplices, see: Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950); Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976); Hill v. State, Ala.Cr.App., 348 So.2d 848, cert. denied, Ala., 348 So.2d 857 (1977).

II

Appellant contends the trial court erred in overruling his “Motion to Quash the Indictment and Venire,” based on systematic exclusion of blacks and women from the jury rolls in Escambia County. Incorporated in the motion were the same affidavits and statistical data used by appellants in the Harris and Johnson cases, supra, and covered by this court’s opinion in those cases.

It is unnecessary to again rule on the merits of appellant’s contention because the record on appeal does not show: (1) when the motion to quash was filed in the circuit court; (2) whether it was ever brought to the attention of the trial judge; nor (3) that it was ever ruled on. The appellant is under the duty to see that the record on appeal is perfected. Orum v. State, 286 Ala. 679, 245 So.2d 831 (1971). Appellate review is limited to only those matters appearing in the record. Hargrove v. State, Ala.Cr.App., 344 So.2d 823, cert. denied, Ala., 344 So.2d 826 (1977); Graham v. State, 30 Ala.App. 179, 2 So.2d 463 (1941). We find no transcript of a hearing on the motion and no mention of the motion in the judgment entry. Thus there is no ruling by the trial judge before us for review on the motion to quash.

The same rule applies to appellant’s discovery motion. Only the motion appears in the record. Nothing in the record shows when it was filed or if it was ever called to the attention of the trial judge. No ruling appears in the record and thus no ruling thereon can be had here.

Ill

Appellant contends that testimony given by the brother of the victim had no probative value and appellant’s motion for a mistrial should have been granted.

Lawrence Barrow testified that he was the brother of the victim Luell Barrow. The witness was also a prison guard and at the time of the riot was at the guards’ “rooming house” about 150 to 200 yards from the prison. He heard the siren alarm and was told his brother was a hostage. He then tried to enter the compound but was unable to do so. Shortly thereafter his brother’s body was brought out. It was covered with blood. He observed the inmates coming out of the unit where the riot occurred, and did not see any of the guards beating the inmates. After Barrow’s testimony was completed, counsel for appellant made the statement:

“Your Honor, I fail to see the relevancy of this testimony.”

Although not made in the form of an objection, the trial judge nevertheless replied, “I sustain the objection.”

After the witness was excused, defense counsel made the following motion:

“Your Honor, we further move at this time that the Court grant us a mistrial on the basis that ... of presenting this witness has absolutely no probative value and the sole purpose of presenting this witness was to inflame the jury, and I think that’s it.”

The trial judge overruled the motion and after a brief recess announced to the jury:

“Ladies and gentlemen of the jury, I am going to exercise a prerogative that men like to go around saying is reserved for women. I am going to change my mind on a ruling that I have entered here in this case today. I am going to instruct you that upon reflection it is the opinion of this Court that the testimony of Mr. Barrow offered at this point and this juncture of the trial is immaterial, incompetent, and irrelevant. It may become relevant as this trial goes on but I think to offer it at the time its been offered now that it was irrelevant and incompetent and I am going to instruct you to disabuse your minds of all the testimony of Mr. Barrow at this time, and if it is offered again I will pass upon that at that time. I could possibly let the testimony in under the legal phrase that lawyers like to talk about as res gestae, which means in effect the best I can tell from certain rules of evidence if you can’t think of any other good reason to let something into evidence that’s the one to try to travel under as an umbrella. But I don’t think that umbrella is broad enough in this even though it was a more or less continuous transaction. I think offered at this point and this juncture of the trial it was immaterial and incompetent, and I am going to instruct you to disregard the testimony of Mr. Barrow at this time.”

Appellant renewed his motion for a mistrial which was again overruled.

While the testimony of Lawrence Barrow had very little probative value, it was all introduced without objection. Appellant waited until after the witness had been excused before objecting. Justice Beatty in his concurring opinion in Chatom v. State, Ala., 348 So.2d 838 (1977) at 842, stated: “A defendant cannot speculate on what a witness will say, and when the answer is responsive but unfavorable move to have that answer excluded. . . .” Here appellant did not merely move to exclude the testimony, he moved for a mistrial.

The trial judge’s refusal to grant a mistrial is a matter which lies within his discretion. Appellate courts will not reverse the trial judge’s decision in that regard in the absence of a clear showing of abuse of discretion. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967).

Barrow’s testimony was not of such a prejudicial nature as to inflame the jury against the appellant. Neither was it so prejudicial that proper instruction by the trial judge would not eradicate its effect. We find no law, and are cited to none, holding that admission of mere irrelevant testimony in and of itself constitutes grounds for a mistrial. The trial judge, in excluding the evidence, gave completely satisfactory instructions to the jury, supra. We find no prejudicial error in the ruling or instructions of the trial judge nor abuse of his discretion in this instance.

Appellant raises other points in his brief which have all been decided adverse to the several appellants and amply covered in Harris, Johnson and Heard, supra.

AFFIRMED.

All the Judges concur.