text:
    Clarence Edward THOMPSON v. STATE.
    1 Div. 614.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    As Corrected on Denial of Rehearing Oct. 5, 1976.
    D.onald E. Brutkiewicz, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment in the penitentiary for ten years. He was sixteen, lacking two weeks of being seventeen, years old at the time of the alleged offense; he was indicted and arraigned within approximately three months; he pleaded not guilty and was tried within about seven weeks after arraignment.

We forego for the time being consideration of the issues raised by appellant, in view of the preemptive question whether defendant voluntarily and understanding^ renounced an opportunity he apparently had to be treated under the Youthful Offender Act (Code of Alabama Recom. 1958, 1973 Cumulative Pocket Part, Tit. 15, § 266(1) et seq.).

The only references in the record to the question of youthful offender treatment are entries made the day of, and just prior to, his arraignment as follows:

“DECLINED YOUTHFUL OFFENDER
“Defendant declined to be treated as a Youthful Offender * * *
“ * * * defendant in open court on this day declined to be treated as a Youthful Offender.”

During the life of the Youthful Offender Act of little more than four years there have been more than twice that number of reported appellate court cases pertaining to the question of the protection of the rights under said Act of a person under twenty-one years of age. They do not answer the specific question before us, but some of them seem to shed sufficient light upon the question to furnish us an accurate chart to follow. Morgan v. State, 291 Ala. 764, 287 So.2d 914; Ex parte Rains (In re Rains v. State), 294 Ala. 360, 317 So.2d 559, aff’g 55 Ala.App. 588, 317 So.2d 555; Ex parte State (In re Edwards v. State), 294 Ala. 358, 317 So.2d 511, aff’g 55 Ala.App. 544, 317 So.2d 512; Clemmons v. State, 294 Ala. 746, 321 So.2d 238, aff’g 56 Ala.App. 275, 321 So.2d 237; Wilson v. State, 57 Ala.App.,124, 326 So.2d 314, cert. denied 295 Ala. 218, 326 So.2d 315; Harding v. State, 56 Ala.App. 443, 322 So.2d 733, aff’g 295 Ala. 404, 322 So.2d 734; Whitfield v. State, 56 Ala.App. 653, 324 So.2d 793, writ quashed, 295 Ala. 428, 324 So.2d 796.

In Whitfield, speaking for this Court, Judge Bookout emphasized what had been held by the Supreme Court of Alabama, through Justice Faulkner, in Morgan, supra:

“The duty is upon the trial judge to call the Act to the attention of the youthful offender, just as much as it is the duty of the trial judge to explain to a defendant his constitutional rights when he enters a plea of guilty.” (emphasis supplied).

Thereafter it was said in Whitfield:

“Regardless of this Court’s ruling in Armstrong, supra, the Supreme Court in Morgan places the burden on the trial judge to call the benefits of the Youthful Offender Act to the attention of an eligible defendant. That Court has analogized that burden and duty of a trial judge to the duty of a trial judge to explain a defendant’s constitutional rights before accepting his guilty plea. Such being the case, this Court is now under an affirmative duty in searching the record for error to determine whether the trial judge performed the mandatory ■duty of apprising the defendant of his rights under the Youthful Offender Act.” (emphasis supplied).

The bare references to a declination of defendant to be treated as a “Youthful Offender” quoted above are manifestly insufficient, in the light of what is required by way of explanation to a defendant of his constitutional rights before accepting his guilty plea.

We do not find in the record any explanation whatever made to defendant of his rights under the Youthful Offender Act. We realize the likelihood of some explanation having been made to him by the court or by his attorney, but we cannot assume, and in the absence of strong proof it would be difficult for us to believe, that he fully understood his rights under the Youthful Offender Act and renounced them. Although not necessary to the tentative disposition of this proceeding as hereinafter stated, we note that apparently there was no question in the court’s mind as to the worthiness of defendant to receive youthful offender treatment. There is no indication in the record of any previous criminal record or of prior criminal tendencies. His guilt or innocence turned on the matter of the accuracy of the identification by the victim. Defendant resolutely and forthrightly testified in his own behalf that he was not guilty, and there was substantial corroboration of his testimony by members of his family and by others. He should have had the benefit at least of the detailed explanation in substance that is found in the procedure narrated and recommended in Ex Parte Rains, supra. As to all of this, it should be noted that the trial judge who tried this case was not the judge who arraigned defendant. This statement is made in order that there be no reflection upon either. It appears likely that the judge, who arraigned, understandably proceeded as if defendant, upon further reflection, would be able to withdraw his renunciation, and that the judge who tried the case had reason to believe that theretofore defendant had been afforded full protection of his rights.

The case should be remanded to the trial court for it to proceed in accordance with such directions as are applicable in Clemmons v. State, 294 Ala. 746, 321 So.2d 238, beginning with the language of Justice Shores, “Therefore, on remand, the trial court should bring the defendant before it, should inform him of the provisions of the Youthful Offender Act, and that, if he desires he may consent . . . ” If defendant now consents to be arraigned and tried under the Youthful Offender Act and the trial court determines that the trial court has previously decided that he was entitled to be so arraigned and tried, or, if no such decision by the trial court has been made, and defendant now consents to an investigation and examination for the purpose of a determination whether, at the time of his arraignment, he would have been so entitled, if he had so elected, and the trial court determines that at such time he would have been so entitled, the judgment and sentence in this case should be set aside, and the defendant should be arraigned, tried and adjudged under the provisions of said statute. If no such determination, that is, if no affirmative determination under either of the two alternatives in the preceding sentence, is made, “a transcript of the proceedings, together with the trial court’s determination, is to be forwarded to this court for review.” Wilson, supra; Whitfield, supra. In that event and at that time, in accordance with Clemmons, supra, “defendant has the right to renew his appeal” in this Court, which retains jurisdiction of the case, for a decision on the points on appeal not reviewed herein.

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

REMANDED WITH DIRECTIONS.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Clarence Edward THOMPSON v. STATE.
    1 Div. 614.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    As Corrected on Denial of Rehearing March 8, 1977.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

After the order remanding this case with directions, the Clerk of this Court was furnished by the Clerk of the trial court, under the caption “Return to Remand”, a supplemental transcript in compliance with an order of the trial court pursuant to Rule 10(f) ARAP. The supplemental transcript reveals that on May 21, 1975, in chambers prior to the selection of a jury, there was an extended colloquy among the court, defendant, defendant’s attorney and defendant’s mother relative to whether defendant desired to be “considered as a Youthful Offender”, in which it was shown that, at a previous hearing before another judge of the trial court, defendant had positively stated that he didn’t wish to be tried as a youthful offender, saying, “I didn’t want to be tried as a Youthful Offender. I wanted to go before the Jury”. The supplemental transcript further shows that there was no definite change of desire or opinion by defendant on the subject, but it also discloses that the last words said by defendant with reference to the matter was as shown by the following excerpt:

“THE COURT: But in that event if you had done that, then, you would have been
tried by a Judge. Did you know that? “DEFENDANT: Yes, sir.
“THE COURT: And is that why you say you didn’t want it?
“DEFENDANT: I am confused on this.
“THE COURT: Because you wanted to be tried by a Jury?
“DEFENDANT: I reckon. I don’t for sure . . .”

Immediately thereafter, defendant’s attorney interposed a statement, in which the mother of defendant joined, to the effect that it was the attorney’s “advice to the mother and the mother and I have discussed it and the boy and I have discussed it and we all came to this — to the educated conclusion that it would be better not to waive our constitutional right to a trial by a Jury of our peers”. The court thereupon, after noting knowledgeableness of counsel for defendant in his field, particularly on the subject of the Youthful Offender Act, said:

“So, with that, the Court is satisfied that the Defendant knew that he had the right to ask for a consideration by the Court as to the Youthful Offender Act and on advice and consultation of his attorney and after a consideration of that right, under our State law, he has elected not to be considered as a Youthful Offender, and he is now before the Court on a charge of robbery with a demand for a Jury trial. So, with that, we will proceed with the Jury trial.”

Assuming that we now have a complete record as to all that transpired between the court and defendant as to his right to be treated as a youthful offender, we must note that nothing whatever was said to him as to the specific special advantages that he would have by being treated as a youthful offender. It is clear that he was apprised of his right to ask to be considered as a youthful offender, but he was not made aware of the benefits afforded him under the Youthful Offender Act. There is nothing in the record even to indicate that defendant was apprised of the fact that by being tried as a youthful offender the limit of any punishment that could be imposed upon him was three years, without the stigma of a conviction for a crime, especially a crime involving moral turpitude, as the crime of robbery involved in this case is, as opposed to a minimum imprisonment in the penitentiary for ten years, with no maximum.

We can understand the view of the trial court that we should have before us information contained in the supplemental transcript. Even so, we continue to find that defendant has not been sufficiently informed by the trial court of the provisions of the Youthful Offender Act for him to have voluntarily and understandably declined to be considered under such Act and that the case should be remanded, as it has previously been remanded, to the trial court for it to proceed in accordance with previous directions.

REMANDED WITH DIRECTION.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Clarence Edward THOMPSON v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    SC 2428.
    Supreme Court of Alabama.
    July 8, 1977.
    William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
    William M. Dawson, Birmingham, for opposed.
   SHORES, Justice.

We granted certiorari in this case because of an alleged conflict between the opinion of the Court of Criminal Appeals and the opinion of this court rendered in Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975).

In Clemmons, we held that the Youthful Offender Act, Title 15, § 266(l)-(6), Code, required the trial court, when dealing with a young person, as defined in that Act, to call the provisions of the Act to the attention of defendant, and point out to him that, if he desired, he could consent to an investigation and examination as set forth in that Act.

In the instant case, the Court of Criminal Appeals has reversed and remanded the conviction of the defendant, because nothing in the record indicates that the trial court stated to the defendant the specific special advantages that he would have by being treated as a youthful offender. The Court of Criminal Appeals points out that:

. . It is clear that he was apprised of his right to ask to be considered as a youthful offender, but he was not made aware of the benefits afforded him under the Youthful Offender Act. There is nothing in the record even to indicate that defendant was apprised of the fact that by being tried as a youthful offender the limit of any punishment that could be imposed upon him was three years, without the stigma of a conviction for a crime, especially a crime involving moral turpitude, as the crime of robbery involved in this case is, as opposed to a minimum imprisonment in the penitentiary for ten years, with no maximum.”

In Raines v. State, 294 Ala. 360, 317 So.2d 559 (1975), the record indicated that the trial court, at arraignment, advised the defendant of his “youthful offender” rights. The opinion in Raines re-stated those rights, by listing seven “rights” which were explained to the defendant. The court also observed that “the trial court’s explanation of the defendant’s rights under the Act is set out in order that we might commend this procedure for use by trial courts in appropriate situations.” (294 Ala. at 363, 317 So.2d at 561.)

It is obvious that the Court of Criminal Appeals reversed the conviction in the instant case because the record fails to disclose that the trial court explained all of the rights set out in Raines. The question is whether this requires reversal, as the Court of Criminal Appeals held, where the record also shows, as set out in the opinion of the Court of Criminal Appeals, that:

“. . . there was an extended colloquy [in chambers] among the court, defendant, defendant’s attorney and defendant’s mother relative to whether defendant desired to be ‘considered as a Youthful Offender’, in which it was shown that, at a previous hearing before another judge of the trial court, defendant had positively stated that he didn’t wish to be tried as. a youthful offender, saying, T didn’t want to be tried as a Youthful Offender. I wanted to go before the Jury’. The supplemental transcript further shows that there was no definite change of desire or opinion by defendant on the subject, but it also discloses that the last words said by defendant with reference to the matter was as shown by the following excerpt:
“ ‘THE COURT: But in that event if you had done that, then, you would have been tried by a Judge. Did you know that?
“ ‘DEFENDANT: Yes, sir.
“ ‘THE COURT: And is that why you say you didn’t want it?
“‘DEFENDANT: I am confused on this.
“ ‘THE COURT: Because you wanted to be tried by a Jury?
“‘DEFENDANT: I reckon. I don’t for sure . . . ’
“Immediately thereafter, defendant’s attorney interposed a statement, in which the mother of defendant joined, to the effect that it was the attorney’s ‘advice to the mother and the mother and I have discussed it and the boy and I have discussed it and we all came to this — to the educated conclusion that it would be better not to waive our constitutional right to a trial by a Jury of our peers’. The court thereupon, after noting knowledge-ableness of counsel for defendant in his field, particularly on the subject of the Youthful Offender Act, said:
“ ‘So, with that, the Court is satisfied that the Defendant knew that he had the right to ask for a consideration by the Court as to the Youthful Offender Act and on advice and consultation of his attorney and after a consideration of that right, under our State law, he has elected not to be considered as a Youthful Offender, and he is now before the Court on a charge of robbery with a demand for a Jury trial. So, with that, we will proceed with the Jury trial.’ ”

It is our view that, under the circumstances presented in this case, the requirements of the Act have been complied with. We do not agree with the Court of Criminal Appeals that the Youthful Offender Act requires the record to show that every advantage of the Act has been specifically pointed out to a defendant. Here, the record indicates that the defendant, with advice of his lawyer, and counsel of his mother, as well as the trial judge, has been sufficiently apprised of the existence of the Youthful Offender Act, and his possibility of being treated as a youthful offender thereunder. As was pointed out in Clem-mons, neither the Constitution of the United States nor of this State mandates that defendant be informed of the possible advantage of being extended youthful offender treatment. The legislature passed the statute, which is intended “. . .to extricate persons below twenty-one years of age from the harshness of criminal prosecution and conviction.” Raines, supra, at 363, 317 So.2d at 559. The existence of the Act and its provisions, advantages as well as disadvantages, should be explained to defendants who might be treated under its provisions. We think that has been done in this case, and cannot agree with the Court of Criminal Appeals that the conviction must be reversed because the record does not show that each and every advantage of the Act was explained to the defendant. It should be remembered that not every young offender is entitled to be treated as a youthful offender. It is only after he consents to an examination and an investigation that the trial court is permitted to conduct one. Thereafter, the trial court determines whether to extend to the defendant youthful offender status. Nothing in the Constitution or legislation guarantees youthful offender treatment to all defendants under twenty-one years of age.

We believe the record shows that the defendant has been sufficiently informed of the advantages and disadvantages of the Youthful Offender Act. After consultation with his attorney, the court, and his mother, he declined to be treated as a youthful offender. The seven items listed in Raines were expressly commended to trial courts as a commendable way to explain the Youthful Offender Act to defendants; however, neither that case nor the statute requires that the record reflect that each of those items has specifically been spelled out.

The decision of the Court of Criminal Appeals is reversed and remanded.

REVERSED AND REMANDED.

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

FAULKNER, J., dissents.


text:
    Clarence Edward THOMPSON v. STATE.
    1 Div. 614.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.
   AFTER REMANDMENT FROM SUPREME COURT OF ALABAMA

LEIGH M. CLARK, Supernumerary Circuit Judge.

It having been determined by the Supreme Court that defendant-appellant legally declined to be treated as a youthful offender, we must now decide pertinent questions relative to his trial and conviction.

Appellant does not contend, and we think it cannot be reasonably contended, that the evidence in the case was insufficient to sustain the verdict of the jury. We are fully aware of the weakness of it, and if it were our province to determine whether he was guilty, we could not do so with the confidence we would like to have in reaching an important decision, such as the one involved.

According to State’s witness, Synetta Bry, whose testimony constituted the only evidence against defendant, she was working on January 9, 1975, as manager of the Little General Store. She had received five days’ training at another store. On that afternoon appellant and another youth were at the store and one of them, not appellant, questioned her as to what she would do in the event of a robbery. At 10:57 that night appellant, wearing a stocking mask, robbed her. She was taken by appellant’s home after the robbery and identified him as the robber. She said that the afternoon he was in the store she noticed a scar on his chin. This distinguishing mark was called to the attention of the Police Department, which promptly responded to a call from her. In describing the robber, she particularized the scar and further stated that he “was an unknown white male, approximately fifteen or sixteen years old, he had dark blond hair with a scar on the side of his face, left side of his face,” and “had on a red and white striped shirt with black pants.” A Mr. Hartley and his son, testifying on behalf of defendant, said that they saw a boy, dressed like the description of the robber, run from the store, dart in between some houses and otherwise act suspicious. This occurred within a few moments after the robbery. They identified the boy as a neighbor and as a neighbor of defendant-appellant.

Grady Goram testified that appellant was at his home from 4:40 P.M. until about 6:00 P.M. on January 9 and that during that time appellant did not visit the Little General Store.

Appellant’s mother and sister testified that he was at home watching television with them at the time the victim said she was robbed.

Appellant testified he was at home at the time of the robbery, that neither he nor any of his brothers had any shirt of the kind described by the victim. He further said that he did not own any kind of pistol, the victim having testified that he had a pistol at the time of the robbery; he said he was not at the store at 5:00 P.M. or at the time of the robbery; and he positively denied any knowledge of or participation in the robbery.

Appellant urges that the trial court committed error in sustaining an objection of the State to a question asked the defendant relative to the “alleged Complainant’s prior occasion and ability to have seen the Appellant before the fact of the alleged robbery.” The victim of the robbery had testified that she had previously worked for the American National Bank at Crichton. The following occurred during the interrogation of defendant by his counsel:

“A All right; now, you heard the lady testify that she had worked at the American National Bank?
“A Yes, sir.
“Q Do you know where the American National Bank is located?
“A Yes, sir.
“Q I will ask you whether or not you have over the past several years had an occasion to visit the American National Bank?
“A Yes, sir.
“Q What would be your occasion for visiting there?
“MR. HUGHES: Your Honor, I am going to object to whether he visits the American National Bank. That is irrelevant.
“THE COURT: Sustained.
“MR. BRUTKIEWICZ: She said she worked there, Judge. It shows the prior knowledge of the individual.
“MR. HUGHES: Your Honor, she never said she knew him prior. There has been no evidence that she knew him prior except to that one afternoon at 5:00 o’clock that she knew him.
“MR. BRUTKIEWICZ: We have got a right to show that she may have seen him prior to that, Judge. It is an important part of identity .
“THE COURT: That she may have seen him?
“MR. BRUTKIEWICZ: Yes, sir.
“THE COURT: I don’t think the question goes to that point. I would sustain the objection.
' “MR. BRUTKIEWICZ: It is a question for identity.
“THE COURT: I don’t think the question goes to the point you just stated to the Court.
“MR. BRUTKIEWICZ: All right; I ask you whether or not you have — you heard the lady testify that she worked at the American National Bank in Crichton?
“A Yes, sir.
“Q I will ask you whether or not over the past several years whether or not if you have been a regular customer at that American National Bank?
“A Yes, sir.
“Q What would be — what nature of business did you have there, Son?
“A I used to take my boss man’s money up there and deposit it for him from Mack’s Drive-In.
“Q All right; now, do you go to school, Son?
“A Yes, sir.
“Q What grade are you in?
“A Eleventh.
“Q All right; in addition to going to school, do you work in the afternoons?
“A Yes, sir.
“Q How long have you worked in the afternoons?
“A I worked — when I was fourteen and fifteen I worked—
“MR. HUGHES: Your Honor, I am going to object to all of this, where he worked when he was fourteen and fifteen. That is not—
“THE COURT: What are your grounds?
“MR. HUGHES: That is irrelevant to this case.
“THE COURT: Sustained.
“MR. BRUTKIEWICZ: All right; do you work now, Son?
“A Yes, sir.
“Q Where do you work now?
“A The same man I worked for then.
“Q All right; now, back two or three years ago, you had an occasion to go into that Bank—
“MR. HUGHES: Your Honor, I am going to object to anything that happened two or three years ago as being irrelevant.
“THE COURT: Sustained.
“MR. BRUTKIEWICZ: Now, Judge, on the question of identity — I ask you whether or not it is possible based upon the testimony of that woman—
“MR. HUGHES: Your Honor, I am going to object to anything that is possible as being conjectural and surmise on this witness’ part.
“THE COURT: Sustained.
“MR. BRUTKIEWICZ: All right; whether or not — do you know whether or not you have ever seen that woman before?
“A I don’t know. I have seen many a people.
“Q Now, you heard her testify that she worked at the American National Bank in Crichton.
“A She ain’t seen me up there before if . . .
“MR. HUGHES: Your Honor, this is repetitious, about whether she worked at the Bank. We are going over it, over and over again. He says he doesn’t know if he has ever seen her before and we are going back to the same thing about working at the Bank. It is irrelevant.
“THE COURT: Sustained.
“MR. BRUTKIEWICZ: All right; I object, Your Honor, on the basis—
“THE COURT: You want an exception, you mean?
“MR. BRUTKIEWICZ: An exception and my whole predicate is based upon the question of identity. Now, do you know where the Little General Store is in Crichton?
“A Yes, sir.”

It is difficult for us to reach a satisfactory conclusion as to what defendant’s counsel was attempting to show by the witness, or what was the basis of the State’s objection to the questions, or what was the basis for the trial court’s ruling. At any rate, we fail to see any injury to appellant resulting therefrom. It seems to us that in one way or another, at one time or another, testimony of defendant was admitted and allowed to remain showing that during the time the victim of the alleged robbery was working at the American National Bank at Crichton, defendant was a regular customer of the same bank. We do not disagree with appellant’s present contention “that the accused should be afforded wide evidentiary latitude in proving the victim’s prior occasion and ability to have seen the accused before the fact of the alleged robbery.” However, defendant was able to obtain all of such wide evidentiary latitude. There is no indication that he intended to show more or that he could show more than that defendant had been a regular customer of the bank while the victim was employed there. We find no error prejudicial to defendant in the ruling of the court.

Appellant complains of the refusal of charges 17 and 18 requested in writing by defendant. Charge 17 is a replica of charge 6 in Paul v. State, 48 Ala.App. 396, 265 So.2d 180, cert. denied, 288 Ala. 747, 265 So.2d 185, wherein it was held:

“Where, as here, the evidence is both direct and in part circumstantial, there is no error in refusing the above charges [which included charge 6] as such would tend to mislead the jury by placing undue emphasis upon the circumstantial evidence. McCoy v. State, 170 Ala. 10, 54 So. 428. Since in this case the evidence was not wholly circumstantial, the refusal of the above charges was not error. Duke v. State, 257 Ala. 339, 58 So.2d 764; Gordon v. State, 147 Ala. 42, 41 So. 847.”

Charge 18 contains a “humane provision of the law” phrase and is a substantial copy of charge 13 in Gilmore v. State, 99 Ala. 154, 13 So. 536, which the court held should have been given. However, cases before and after Gilmore are to the contrary. Shepperd v. State, 94 Ala. 102, 10 So. 663; Dennis v. State, 112 Ala. 64, 20 So. 925; Bohlman v. State, 135 Ala. 45, 33 So. 44; Whittaker v. State, 43 Ala.App. 465, 192 So.2d 472; Richardson v. State, 37 Ala.App. 194, 65 So.2d 715. To characterize a correct principle of law as humane smacks of argument, which is justified in the support or advocacy of a principle, but which is better left unsaid in a court’s charge to the jury.

We find no error in the record prejudicial to appellant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Clarence Edward THOMPSON.
    77-123.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    NEWMAN BROTHERS, INC. v. Mary G. McDOWELL, surviving widow of John C. McDowell, Deceased.
    Civ. 1169.
    Court of Civil Appeals of Alabama.
    Dec. 14, 1977.
    Rehearing Denied Jan. 11, 1978.

      Olin W. Zeanah and Wilbor J. Hust, Jr., of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    Edward F. Morgan, Tuscaloosa, and C. 0. Burkhalter, Gordo, for appellee.
   WRIGHT, Presiding Judge.

This is a workman’s compensation case wherein judgment was rendered in favor of the widow for death benefits when death resulted from a heart attack. We affirm.

The court made a finding of fact which includes the following: John William McDowell was employed by defendant as a truck driver on December 18,1973. He was in Warren, Ohio, on that date to pick up a load of metal strapping. The day was cold and windy following snow with the temperature around 18 degrees. Though McDowell did not participate in loading his trailer, it was his duty to remove a folded tarpaulin from the trailer and place it over the load and tie it down after loading. The tarpaulin ordinarily weighed 100 to 200 pounds. On this day it was wet and frozen and McDowell exerted himself in struggling with it in the wind and cold. He had been working with the tarpaulin for some 15 minutes when he was observed to be sick and white and had to sit down. As a result of the strain and exertion, McDowell suffered a myocardial infarction or heart attack. He was hospitalized and on December 31, 1973, a second attack occurred and he died from heart damage on January 1, 1974. McDowell’s death was caused by heart attack produced by the exertion of his work on December 18, 1973.

Upon the finding of such facts, the court granted judgment and awarded the widow death benefits in the amount of $34,000.

The issues presented on appeal are that the evidence is insufficient to support the award of compensation and the law was improperly applied to the facts.

In considering the issue of the insufficiency of the evidence to support the award, we must state that the statutory method of review in workmen’s compensation cases is by certiorari. Title 26, § 297, Code of Alabama (1940) (Recomp.1958). Such review is limited to questions of law if there is any legal evidence to support the trial court’s finding of fact. Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So.2d 159 (1957). This court will not weigh the evidence nor consider its preponderance but will review the evidence only to determine if any reasonable view of it supports the conclusions of fact of the trial court. If there is any legal support for the findings of fact of the trial court we may then determine if the correct legal conclusions have been drawn therefrom. Reynolds Metals Co. v. Gray, 278 Ala. 309, 178 So.2d 87 (1965); Dorsey Trailers, Inc. v. Weaver, 263 Ala. 229, 82 So.2d 261 (1955).

Defendant contends that the facts in this case do not meet the standards of causation set out in the case of City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975). We said in that case that the courts in Alabama, after much difficulty of definition and application of the statutory term “injury by accident,” have come to the conclusion that if the job caused the injury it was “by accident” within the intent of the Workmen’s Compensation Act. We further indicated that even so, there remained the problem, particularly in heart attack cases, of causation: How to establish that the job caused the heart attack? We pointed out that Larsen in Workmen’s Compensation Law, Vol. 1A, said that causation has two parts, a legal part and a medical part. The legal part required the law to define what must occur in order to make a finding that the job caused the injury. If such legal definition or test is successfully applied then the medical evidence must show whether the occurrence held legally sufficient did in fact cause the heart attack.

We further said in Howard that the legal test of cause of injury would not require proof of some unusual exertion or strain not ordinary to the job, but that a proper test was set out in the case of Pow v. Southern Constr. Co., 235 Ala. 580, 180 So. 288 (1938). That was if in the performance of the duties of the job, an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may be legally determined to have arisen from the job and be termed an accident. It then must be determined whether the medical test of causation can be shown — i. e., did the conditions, danger or risks on the job precipitate or contribute to the injury?

Though in retrospect what we have related we said in Howard does not appear as clear and definitive as we then thought, ; we adhere to the basic premise then stated. ■ Simply stated, that premise is: If in the performance of his job he has to exert or strain himself or is exposed to conditions of risk or hazard and he would not have strained or exerted himself or been exposed to such conditions had he not been performing his job and the exertion or strain or the exposure to the conditions was, in fact, a contributing cause to his injury or death, the test whether the job caused the injury or death is satisfied.

The problem arising in many heart attack cases in the past has been the absence of proof of one or both of the parts of causation. City of Tuscaloosa v. Howard, supra; Hannah v. Kellerman Mining Co., 46 Ala.App. 63, 237 So.2d 867 (1970).

The facts found by the trial court and which we related in the beginning of this opinion are supported by legal evidence and its reasonable inferences. Under the limitation of our review, we can go no further. There is no question but that McDowell removed a heavy tarpaulin from his trailer and worked with it in 18-degree cold and high wind for about 15 minutes; that it had been snowing and the tarp was wet and possibly frozen, making it all the heavier. Whether he was putting the tarpaulin on the load or was taking it off the truck does not appear significant as defendant argued. He was observed to be in distress and he was medically determined to have suffered a heart attack while so engaged.

Had he not been on the job he would not have been lifting and exerting himself with the tarpaulin in the cold weather. It is no answer to contend that he had been doing similar work under similar conditions for many years and the exertion was not unusual, or that he had heart disease. Unusual strain or exertion not ordinary to the job is not required to be shown. City of Tuscaloosa v. Howard, supra. Neither does the fact that the workman had a pre-existing disease affect an award of compensation if the job combined with the disease to produce the death. Southern Cotton Oil Co. v. Wynn, supra.

Defendant contends as a second issue that the testimony of the attending physician that the heart attack was caused by exertion in struggling with the tarpaulin is based on hearsay and was inadmissible. It is apparently the position of defendant that when the doctor was asked to give the history of the patient, the history must have been limited to medical history rather than a factual history of what activity he had been engaged in immediately prior to or at the time he became ill.

The courts of this state have recognized that statements of past pain and subjective symptoms made to a physician for the purpose of receiving medical diagnosis and treatment are allowed to be stated by the physician for the purpose of showing the basis of his medical opinion but not for the purpose of showing the truth of the statements. Lowery v. Jones, 219 Ala. 201, 121 So. 704 (1929). It has also been permitted, over an objection of hearsay, that a physician testify as to the patient’s statements concerning the circumstances under which the injuries were sustained, if such information is necessary to enable the physician to form an opinion as to the nature and extent of the injury. Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543 (1929). In the case of McLaney v. Turner, 267 Ala. 588, 104 So.2d 315 (1958) the court approved admission of testimony of a physician as to what the plaintiff told him of road conditions, his speed and the time of the accident. These statements were admitted to establish the basis for the doctor’s findings and not as evidence of how the wreck occurred. In view of these authorities, it is our opinion that the testimony of the doctor in this case was admissible at least for the purpose of showing the basis for the doctor’s opinion or findings. It certainly appears that in order to properly diagnose whether a patient has suffered a heart attack the doctor needs to know what the patient had been doing immediately before he became ill.

Though the court used the same term of action — “struggling”—as did the doctor in stating the history, there is sufficient evidence other than that of the doctor to establish the factual conclusion that McDowell had struggled with the tarpaulin. Though we perceive no error in the admission of the doctor’s statement, had there been, it would not require reversal. When a trial is without a jury, an error in admission of evidence does not authorize a reversal, if the judgment is sustained by other legal evidence. Bienville Mortgage Corp. v. Mayo, 286 Ala. 675, 245 So.2d 819 (1971).

Defendant’s remaining issue, that the court erred in permitting the doctor to answer the hypothetical question requesting his opinion as to the cause of the heart attack, is not well taken. Defendant contends that the hypothetical assumes facts not in evidence. Our examination of the evidence convinces us to the contrary. The trial court was not in error.

There being legal evidence to support the finding of fact of the trial court and finding no error in the application of the law to those facts, we affirm the judgment below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: EMBRY, Justice.

text:
    Ex parte NEWMAN BROTHERS, INC.
    77-277.
    Supreme Court of Alabama.
    Feb. 24, 1978.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    Lisa Jackson NELSON v. Bruce NELSON.
    Civ. 1226.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1978.
    Rehearing Denied Feb. 1, 1978.

      S. P. Keith, Jr., Birmingham, for appellant.
    Billy L. Church, for Church, Trussell & Robinson, Pell City, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case. The parties married as teenagers. They lived with the wife’s parents. A child was born. The husband had difficulty holding employment and did not get along with the wife’s parents. They separated and the husband was placed in jail upon warrants secured by the mother-in-law for breach of peace. While he was in jail, the wife brought an action for divorce and custody of the child. The husband was served with the complaint while in jail. He subsequently signed an answer to the complaint. He also signed an agreement that the wife was to have exclusive custody of the child and that he be divested of all custody and visitation rights. The divorce was subsequently granted and the judgment included the terms of the agreement. Subsequent to the divorce, several criminal charges brought by the wife or her parents were dismissed upon the recommendation of the wife’s attorney.

The proceeding which preceded this appeal was brought by the husband and requested that the judgment of divorce be modified so that visitation with the child would be permitted. The father offered to provide support. The premise of the request was that the husband was coerced into signing the agreement for custody with the promise that the pending criminal proceedings would not be prosecuted and that reconciliation could later occur. It was further stated that the answer and agreement had been signed without advice of counsel.

The wife denied the averments of the promise or coercion and contended that the father had waived all right to custody or visitation with his child in the agreement.

Testimony was taken orally before the court and judgment was entered modifying the original judgment. The father was granted visitation rights with his child each Saturday from 9:00 A.M. to 6:00 P.M. and was ordered to pay $25 per week support. The wife appeals charging that the court erroneously modified after waiver by the father of all rights to his child and without proof of change of circumstances.

We have carefully examined the record, keeping in mind the presumption of correctness afforded by law to every judgment of the trial court rendered after oral hearing. Higgins v. Higgins, 336 So.2d 194 (Ala.Civ.App.1976). We find that the testimony as to the events surrounding the execution of the answer and agreement was in conflict and thus created an issue of fact for the court. The trial court resolved the issue in favor of the father. We find no abuse of discretion in its finding. Dorminy v. Dorminy, 51 Ala.App. 70, 282 So.2d 686 (1973).

Modification of a previous judgment as to custody may be entered after proof of material change of circumstances or by proof that material facts existing at the time of the prior judgment were undisclosed to the court. Smith v. Smith, 334 So.2d 915 (Ala.Civ.App.1976); Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797 (1975). We consider that the maintenance and promotion of the relationship of parent and child is a most basic right of both parent and child. It should not be disrupted or dissolved except after full and careful consideration by the court. An alleged waiver of such right by a parent should be viewed with care and upheld only upon clear and convincing proof of full and complete understanding and intent.

The judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BLOOD WORTH, Justice.

text:
    Ex parte Lisa Jackson NELSON.
    77-324.
    Supreme Court of Alabama.
    Feb. 24, 1978.
   BLOOD WORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: HOLMES, Judge.

text:
    David L. MARTIN v. SPRINGDALE STORES, INC.
    Civ. 1279.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1978.
    Rehearing Denied Jan. 25, 1978.
    Joseph J. Boswell, Mobile, for appellant.
    Geary A. Gaston, Mobile, for appellee.
   HOLMES, Judge.

This is an appeal by appellant-plaintiff from an order of the Circuit Court of Mobile County granting appellee-defendant’s motion to dismiss plaintiff’s claim. The trial court’s order was bottomed on the premise that appellant’s claim for damages for the breach of implied warranties failed to state a claim upon which relief could be granted under Alabama law.

The dispositive issue in this case is whether there is an implied warranty of habitability and fitness made by a lessor-landlord to a lessee-tenant by the act of renting residential property. If there is no such implied warranty, the trial court did not err in granting appellee’s motion to dismiss.

The pertinent undisputed facts, as shown by the record and briefs filed with this court, reveal the following:

Appellant-plaintiff rented an apartment from the appellee-landlord and entered into a written residential lease agreement covering the period from May 1, 1974, to April 30,1975. Pertinent parts of this lease, dealing with the question of responsibility for damage to personal property and the responsibility for the condition of the premises, are set out below:

“4. Lessee has examined the premises, is satisfied with the physical condition and
his taking possession is conclusive evidence of receipt of them in good order and repair, except as otherwise specified; and he agrees that no representation as to condition or repair has been made except as is contained in the lease and he agrees that no promise to decorate, alter, repair, or improve the premises has been made except such as is contained in the lease.
“10. All personal property placed in the leased premises, or in the storerooms or in any other portion of said building or any place appurtenant thereto, shall be at the risk of Lessee, or the parties owning same, and Lessor and Lessor’s agents or employees shall in no event be liable for the loss of or damage to such property or for any act of negligence of any employee or of any covenants or servants of tenants or occupants or of any other person whomsoever in or about the building.
“16. Lessee assumes responsibilities for the condition of the premises. Lessor will not be responsible for damage caused by leaks in the roof, by bursting of pipes by freezing or otherwise, or any vices or defects of the leased property, or the consequences thereof, except in case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received WRITTEN NOTICE from Lessee of such defects and the damage caused thereby. Should Lessee fail to promptly so notify Lessor, IN WRITING, of any such defects, Lessee will become responsible for any damages resulting to Lessor or other parties.”

After living in the leased premises for approximately four months, the appellant’s utility bill increased considerably. Appellant contacted appellee’s agent and complained of such increase. Appellant was referred to Alabama Power Company who checked and confirmed that appellant’s bill and meter were correct. Approximately twelve days later, on September 22, 1974, a fire occurred in appellant’s apartment.

As a result of the apartment being damaged, appellee made another apartment available to appellant.

Appellant filed a one-count complaint alleging that appellant impliedly warranted the habitability of the leased apartment. Appellant further alleged the warranty was breached in that the apartment was not habitable due to defective electrical wiring and that this rendered the apartment unreasonably dangerous. Appellant then demanded judgment in the sum of $2,500 for damages suffered as a result of the fire. Upon motion by appellee, the trial court dismissed appellant’s complaint on the basis that it failed to state a claim under Alabama law. Appellant appeals that order.

As noted above, the dispositive issue in this case is whether the warranty of habitability applies to the rental of residential property.

This court has recognized and adopted the principle of an implied warranty of fitness and habitability for the purpose purchased in newly constructed homes. See Cochran v. Keeton, 47 Ala.App. 194, 252 So.2d 307 (1970), affirmed 287 Ala. 439, 252 So.2d 313 (1971).

However, these warranties have not been extended to apply to residential leases. The Supreme Court of Alabama, in Lacey v. Deaton, 228 Ala. 368, 369-70, 153 So. 650, 651 (1934), stated:

“It is the general rule, that while a landlord does not impliedly warrant the safety of the premises, or that they are fit for the purpose for which they are rented, if he conceals or fails to disclose to the tenant dangerous defects known to him, when the circumstances impose the duty to disclose, and when such defects are not known to the tenant and not discoverable by reasonable examination by such tenant, the former i§ liable for injuries caused and suffered by reason thereof by the tenant. . . . ”

As between the landlord and tenant, where there is no fraud, false representations or knowing concealment of defects, there is no implied covenant or warranty that the premises are suitable for occupation or for the particular use which the tenant intends to make or that they are in a safe condition to use. See Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975); Charlie’s Transfer Co. v. Malone, 159 Ala. 325, 48 So. 705 (1909).

However, these warranties can be provided for by use of express warranties or a covenant to repair. See Chambers v. Buettner, supra; Davenport v. Bonner, 275 Ala. 131, 152 So.2d 678 (1963).

As is evident from the portions of the lease, as set out above, there were no such express warranties entered into by the landlord and tenant. The lease also specifically states that the landlord makes no promise or covenant to repair.

Appellant, through able counsel in an excellent brief, argues that the implied warranty of habitability in newly constructed houses should be extended to include residential rental property. While we are cognizant of the development of such a body of law in other jurisdictions, this court is without authority to overrule the decisions of the supreme court and is bound to follow those decisions. See Jones v. City of Huntsville, 288 Ala. 242, 259 So.2d 288 (1972); Ex parte Banks, 42 Ala.App. 669, 178 So.2d 98 (1965). We would further note that we have no basis to speculate that the supreme court, in this instance, would overrule its prior decision. See Chambers v. Buettner, supra. However, review by the supreme court of this decision is available to the appellant if the supreme court chooses to review.

Considering the fact that the above implied warranties have not been extended to residential rental property, the trial court did not err in dismissing appellant’s claim due to the failure of appellant to state a claim upon which relief could be granted under Alabama law. The appellee, in his excellent brief, points out there are certain defects in the notice of appeal. While certain defects do exist, we consider the notice of appeal to be sufficient to put the appel-lee on notice as to what has been in fact appealed from. See Rule 2(b), ARAP. This case is thereby due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: FAULKNER, Justice.

text:
    Ex parte David L. MARTIN.
    77-300.
    Supreme Court of Alabama.
    Feb. 24, 1978.
   FAULKNER, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    William M. MARTIN, III, alias v. STATE.
    3 Div. 546.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied March 29, 1977.

      J. Doyle Fuller, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged William McKen-ley Martin III, alias William M. Martin III, with the forgery of a check drawn on the Union Bank and Trust Company of Montgomery, Alabama, on the account of Mrs. Louise S. Turner, 1302 South Hull Street, Montgomery, Alabama, dated July 12,1974, in the amount of $75.00, with William M. Martin III as payee. The signature is that of Louise S. Turner, and the check number is 4216. On the reverse side thereof is the endorsement, William M. Martin III.

The appellant filed a demurrer to this indictment, challenging its legal sufficiency, which was overruled following a hearing. The case came on for trial, the jury found the appellant guilty as charged, and the trial court entered judgment which set sentence at fifteen months imprisonment in the penitentiary.

The appellant filed both a motion in arrest of judgment and a motion for new trial, each of which challenged the weight and sufficiency of the evidence and which were denied following a hearing thereon.

Mrs. Louise S. Turner testified that she was a resident of 1302 South Hull Street in Montgomery, Alabama. On July 12, 1974, she indicated that she maintained a bank account with the Union Bank and Trust Company of Montgomery, Alabama. She testified that she had gone to the A & P store on Cloverdale Road in Montgomery with her cousin and was seated in her cousin’s automobile while her relative was in the store buying groceries for both of them. She stated that she did have some problems with her eyesight, but could see well enough to recognize people and to read a newspaper except for the fine print. She related that since an incident, which occurred on July 12, 1974, her eyes were worse and she had had to see a physician for treatment.

Mrs. Turner related that in her purse, which was on the seat, were two personalized checks, Nos. 4216 and 4217, each of which bore her signature, Louis S. Turner, but which were otherwise in blank. She stated that after viewing State’s Exhibit No. 1 (check No. 4216), she had not authorized anyone to write in the amount, $75.00, in figures or in words, nor had she authorized anyone to make the check payable to William M. Martin III as she did not know this person, nor had she ever heard of him. She stated that when she last saw the check that it was in blank. Mrs. Turner stated that when she noticed the checks were missing, she reported this immediately to the Union Bank and Trust Company and put in a stop payment order, then she notified the Montgomery Police Department, giving them the numbers on the two checks. This occurred about 10:30 in the morning.

Linda Hester testified that she was formerly Linda Boyd, and on July 12, 1974, was a drive-in teller at the Mt. Meigs branch of the Union Bank and Trust Company in Montgomery. She said that shortly after 11:00 that morning, a black male in a small blue Opel automobile drove up to the window and presented a check drawn on the account of Louise S. Turner in the amount of $75.00. As she had just been notified of the stop payment order, she asked the man for his driver’s license, he gave it to her and she wrote it down and also the tag number of his automobile, which was a Mobile number, on the back of the cheek. She said that she then called into the office of the bank to verify if this was one of the checks on which they had just received a stop payment order. Upon being advised that it was, she then handed the man back the check and the driver’s license and told him that it would be necessary for him to come inside and see the manager about the check. She stated that the man then drove off in a hurry, mumbling.

On cross-examination she testified that the male had a small goatee on his chin and was wearing a sun visor, something in the nature of a tennis cap, that he had an Afro-type hairdo, and was wearing jeans and a light colored sport shirt..

Mrs. Hester stated that shortly after 2:00 that afternoon she went to Montgomery Police Headquarters and there viewed six black males in a lineup, that after just a few moments she positively identified the person in position No. 3 as being the same man who had presented the check for payment to her that morning. She then made a positive in-court identification of the appellant and stated that she had not had any prior conversation with anyone before she picked him from the police lineup. She further stated that she had twenty-twenty vision and that she was able to get a good look at him when he presented the check to her at the teller window.

Montgomery Police Officer W. W. Strain received information on the morning of July 12, 1974, that there were some stolen checks and to be on the lookout for a small blue Opel automobile with the license number 2A27177. He indicated that he found a vehicle answering this description parked by the men’s dormitory at Alabama State University. He then inquired to the security police as to the owner and was advised that William M. Martin III owned the vehicle in question. He then advised the appellant of his constitutional rights, placed him under arrest, and took him to Police Headquarters.

On cross-examination Officer Strain stated that he noticed the automobile on the Alabama State Campus shortly after 1:00 p. m. and that it was nearly 2:00 when he took the appellant to Police Headquarters.

Montgomery Police Sergeant J. D. Poster testified that on July 12, 1974, he set up a lineup at Police Headquarters which contained six black males. From the record:

“Q. So you have a spread of all black males ages anywhere from eighteen to twenty-five and four to six people twenty-three, twenty-four, and twenty-five?
“A. Yes, sir.
“Q. Roughly in the same age category?
“A. Yes, sir.
“Q. Now, I will ask you to call out by name the relative height of each of the people participating in that lineup?
“A. A1 Jeter is six foot; Chris Smith is five foot eleven; William Martin is five, ten; William Mae is five foot eleven; Carl Marshall is six foot one; Zackry Morgan is five foot six.
“Q. All right. Give the relative weight of each of the individuals involved in the lineup?
“A. A1 Jeter is 180 pounds; Chris Smith 195 pounds; William Martin, 155; William Mae, 189; Carl Marshall, 176; and, Zackry Morgan, 132.
“Q. Now, going by each of the individuals, describe the clothing, the shirt, pants and shoes as you recall it?
“A. A1 Jeter wore a black shirt, blue pants, sandals; Chris Smith, yellow shirt, red and blue pants, brown shoes; William Martin, yellow shirt, green pants, sandals; William Mae had a blue shirt, orange pants, brown shoes; Carl Marshall
had a blue and white shirt, green pants, sandals; Zackry Morgan had a red and white shirt, black pants and sandals.
“Q. All right. Now, I will ask you who, if anyone, observed this lineup?
“A. It was viewed by four individuals. “Q. State who they are for the record? “A. Linda Kay Boyd, Louise S. Turner, Gladdis Hammonds, and Bertie Reeves.
“Q. Now, let me ask you this: Did the four view it at the same time?
“A. No, sir, they did not.
“Q. Did anybody make a positive I.D. of those four people?
“A. Yes, sir, they did.
“Q. Who did?
“A. Linda Kay Boyd and Louise S. Turner.”

Officer Foster indicated that Mrs. Hester, or Boyd at the time, did not hesitate when she viewed the lineup and identified the appellant who was in position No. 3. He also stated that Mrs. Turner identified him, and that he had not given either of them any instructions other than to just view the lineup. Officer Foster testified that appellant Martin voluntarily submitted to the lineup and that there was no attorney present, that no one asked for an attorney at this time.

The appellant’s motion to suppress the lineup identification was overruled, as was his motion to exclude the State’s evidence, and his motion for a directed verdict at the close of the State’s case.

Steve Shelton testified that he lived at 1516 Hamilton Street in Montgomery, and was a student at Alabama State University in July, 1974. He testified that he knew the appellant, Billy Martin, and that on the morning in question, shortly after 10:00, Martin had asked him to go play basketball, that soon thereafter they ran into Daryl Kritz, and the three of them rode out to the Montgomery Mall in order for Billy Martin to look at some blue jeans at the Hipster Shop. He stated they did so, then drove back and stopped at a grocery store, and that he and Martin went inside. He said that when they came back out, Kritz and the automobile was gone, and that it was about twenty-five minutes later before Kritz returned. He stated that shortly thereafter as they were driving back toward the campus, he saw Daryl Kritz pull out a BankAmericard and asked him how to use it. He said that Billy then dropped him off at the campus at about twenty minutes to twelve. He also said that he saw Daryl Kritz throw something in the trash before he got out of the car. He stated that he knew Billy Martin’s reputation to be that of a truthful and honest person.

William M. Martin III testified that he lived in Petersburg, Virginia, but that he had been a student at Alabama State University from 1972 to 1975, that after finishing he had been teaching in the public school system at Petersburg. He stated that on the morning of July 12, 1974, he was awakened by his roommate, and one Daryl Kritz was in the room, that Daryl Kritz asked him if he could borrow his automobile. He said that this was about 9:30 and that he did lend his car to Kritz. He said that shortly after 10:00 he was walking across the campus to play basketball when Kritz returned, and that he then got in the car with Steve Shelton and they drove out to the Mall. He said that after looking around for some clothes, they then drove by a grocery store, that he and Shelton got out and went in, and when they came back out Daryl Kritz was gone, and so was his automobile. He said about twenty to twenty-five minutes later Kritz reappeared and that on the way home he saw him reach under the seat and throw something in a trash can. He noticed that Daryl Kritz had a couple of credit cards and he thought one was a BankAmericard. He testified that when the police officers came looking for him at the Alabama State Dormitory, he voluntarily went with them to Police Headquarters and voluntarily participated in a lineup. He testified that he was a veteran of the Vietnamese War and was receiving monthly checks from the Veteran’s Administration, and in addition was receiving some money from an educational policy left to him following his father’s death. He stated that between these two he was able to pay for his college education. He testified that he was asked for his driver’s license, but could not locate it, and he testified that on the morning in question he wore a yellow and gray striped shirt and green short pants which had been cut off. He stated that Daryl Kritz was slightly taller than he, that both were slender, but that Kritz was about twelve to fifteen pounds heavier, and that their hair was similar in length. Following his arrest, he notified his uncle, who lived in Montgomery, and asked him to get him a lawyer.

The appellant’s uncle, Burtram Martin, testified that his nephew had telephoned him, that he had never known of his nephew being in any difficulty, and that his reputation for truth was good.

Montgomery Attorney James C. Heard testified that in the latter part of July, 1974, he went to the Union Bank and Trust Company and talked with Linda Boyd, the teller. He stated she told him that a man drove up in a small blue car and he had an Afro haircut. She further stated that the man was about medium build, light skin, but that she could not remember his facial characteristics, or if he had hair. She told him that she had asked for his driver’s license and that he gave it to her, that she put the driver’s license and tag numbers on the check. She also stated that that afternoon she had gone to a lineup and looked at a number of people and had picked out the one who she recognized as being the man driving the blue automobile.

Charles Miller, Assistant Dean of students of Alabama State University testified as a character witness in behalf of the appellant.

The indictment in this cause clearly charges forgery in the first degree as set forth in Title 14, Section 199, Code of Alabama 1940. The indictment in this cause follows Title 15, Section 259, Form 63, and as such is not subject to demurrer. Davis v. State, 165 Ala. 93, 51 So. 239; Newsum v. State, 10 Ala.App. 124, 65 So. 87; Brown v. State, 30 Ala.App. 339, 7 So.2d 24; Smith v. State, 35 Ala.App. 580, 50 So.2d 791.

II

The addition of the endorsement to the indictment in no way weakened its legal force or averments, and as such was proper. Smith v. State, 35 Ala.App. 580, 50 So.2d 791; Wyatt v. State, 257 Ala. 90, 57 So.2d 366.

III

Appellant contends there was a fatal variance between the pleading and proof and that his motion to exclude should have been granted.

In Ex parte State, 213 Ala. 1, 104 So. 40, we find:

“A consideration of the cases will disclose as elements of forgery (1) that there must be a false making — and this may be accomplished by ‘the fraudulent application of a false signature to a true instrument, or a real signature to a false’ instrument; (2) that the essence of forgery is an intent to injure or defraud when the act complained of is done (Agee v. State, 113 Ala. 52, 21 So. 207; Denson v. State, 122 Ala. 100, 26 So. 119), and it is not necessary that any actual injury should result from the offense (Denson v. State, supra); and (3) it is of ‘no consequence whether the counterfeited instrument be such as if real would be effectual to the purpose it intends so long as there is a sufficient resemblance to impose on those to whom it is uttered.’ Burden v. State, 120 Ala. 388, 25 So. 190, 74 Am.St.Rep. 37, L.R.A.1918B, p. 1192, note; 7 Ency.Dig. Ala.Rep. 477.”

In Hamilton v. State, 35 Ala.App. 570, 50 So.2d 449, we find:

“Forgery in the first degree is defined in Section 199, supra [Title 14, Section 199, Code of Alabama 1940]. It pertains to the altering, forging, or counterfeiting of any bill, note, draft, check, certificate or other evidence of debt issued by banks, either state or national. . . . ”

We are of the opinion that the applicable elements of forgery were here established and that the evidence clearly supports the conviction in question. Jones v. State, 53 Ala.App. 497, 301 So.2d 260; Simmons v. State, 55 Ala.App. 679, 318 So.2d 374; and Powers v. State, Ala.Cr.App., 333 So.2d 205.

We have carefully reviewed this record as required by law and find no error therein. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice. BLOODWORTH, Justice MADDOX, Justice

text:
    In re William M. MARTIN, III v. STATE of Alabama. Ex parte William M. Martin, III.
    SC 2508.
    Supreme Court of Alabama.
    Nov. 4, 1977.
    Rehearing Denied Dec. 9, 1977.
    J. Doyle Fuller of Perry, Fuller & Dick, Montgomery, for petitioner.
    William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.
   BEATTY, Justice.

We granted the writ of certiorari to determine whether the decision of the Court of Criminal Appeals had misapplied the law dealing with the misjoinder of offenses, Title 15, § 249, Alabama Code, and the law dealing with the effect upon a Code form indictment for first degree forgery of adding the endorsement upon the instrument.

The indictment under consideration is included in the opinion of that Court which concluded that the “addition of the endorsement [on the check] to the indictment in no way weakened its legal force or averments, and as such was proper.” In support of that statement the Court cited Smith v. State, 35 Ala.App. 580, 50 So.2d 791 (1951), and Wyatt v. State, 257 Ala. 90, 57 So.2d 366 (1952). Neither of those cases, however, controls the appropriateness of the allegation here. In Smith, the endorsement which appeared on the indictment was one which read: “Indictment for 2nd Degree Forgery.” Clearly, it was not an endorsement designed to affect any negotiation or change in pecuniary interest, but was intended merely as a means of identification, and so it was accurate to conclude that it constituted no part of the indictment. In Wyatt, the defendant was charged' with forging the endorsement of a county warrant, and the question was whether such a charge constituted second degree forgery under Alabama law. The question of the endorsement’s being either surplusage or material to the charge was neither in issue nor considered in that opinion.

In brief the State contends that this indictment clearly charges the petitioner with first degree forgery of a check under Title 14, § 199, Alabama Code, and that the endorsement is a part of the forgery of the check. The State maintains that when one endorses his name on the back of a forged check, “that is all part of the forgery of that check,” and cites Simmons v. State, 55 Ala.App. 679, 318 So.2d 374 (1975) for that novel proposition. Although the indictment itself was not reproduced in Simmons, it is apparent that the accused there was charged with forgery of a check (bearing the drawer’s signature, “Eddie Siddon”) under the first degree statute, § 199, and not for forgery of the endorsement which appeared thereon, a charge which would have fallen under § 200 pertaining to forgery in the second degree. The Court’s opinion, however, did not equate the two, and this Court has held that they are not the same. In Brown v. State, 242 Ala. 485, 486, 7 So.2d 28 (1942), we addressed the distinction:

While the indorsement is not independent, it is a separate and distinct and different contract from any other feature of the instrument. Our statute [§ 200] emphasizes that distinction and that' the forgery of an instrument is a different offense from the forgery of an indorsement of it. Under our statute, section 200 ... a person who is sought to be convicted for forging an indorsement should be apprised of the fact that it is the indorsement which is involved and not the instrument which is indorsed.

To which we might add, if he is sought to be convicted for forging the instrument, likewise he should be informed that it is the instrument which is involved and not the endorsement.

That is the difficulty with this indictment. It substantially follows the Code form, Number 63, for first degree forgery until after the word “counterfeited,” and then continues with a signature in the name of the payee accompanied by letters and numbers of an identifying nature. Since that endorsement would effect a negotiation if genuine, was it intended to make it a part of the indictment, but under § 200, the second degree forgery statute? As it is represented we cannot make that determination and thus we conclude that it is so unclear that the defendant could not make that determination either. As drawn, the indictment may represent an attempt to charge in one count distinct offenses calling for different punishments, a procedure not condoned. Goldman v. State, 26 Ala.App. 407, 161 So. 261 (1935). In any case, it does not conform to the requirements of Title 15, § 232, Alabama Code which requires the indictment to “state the facts constituting the offense ... in such a manner as to enable a person of common understanding to know what is intended . . .” Accord, Ex parte Allen, 241 Ala. 137, 2 So.2d 321 (1941).

REVERSED AND REMANDED.

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

BLOODWORTH and ALMON, JJ., concur specially.

MADDOX and FAULKNER, JJ., dissent.

BLOODWORTH, Justice

(concurring specially.)

I concur with Mr. Justice Beatty’s assessment of the indictment that it is so unclear that it is impossible to tell whether petitioner is charged with forgery of the check or forgery of the purported indorsement. According to the Court of Criminal Appeals’ opinion, the petitioner’s name appears on both.

Forgery of a check and forgery of an indorsement are different offenses as Mr. Justice Foster pointed out, for a majority of this Court in Brown v. State, 242 Ala. 485, 7 So.2d 28 (1942). Thus, the indictment fails to apprise the petitioner of the offense so as to enable him to know what is the charge in the indictment. Tit. 15, § 232, Code of 1940.

Additionally, if forgery of the indorsement is the charge which was intended against petitioner, the indictment must plainly charge the forgery of the indorsement. Brown v. State, 30 Ala.App. 339, 7 So.2d 24 (1942).

ALMON, J., concurs.,

MADDOX, Justice

(dissenting).

I respectfully dissent. The indictment here charges Martin with forgery in the first degree. In Brown v. State, 30 Ala. App. 339, 7 So.2d 24 (1942), the indictment read:

“The Grand Jury of said County charge that before the finding of this indictment, that J. R. Brown alias, John Brown with intent to injure or defraud, did falsely make alter, forge or counterfeit an instrument in writing, in words and figures, substantially as follows:
“ ‘No. 2045 The State of Alabama, Dale County Commissioners Court $532.38, Ozark, Alabama Sept. 30, 1937 Term 193_. Pay to J. H. Morris or Order . Five Hundred thirty two & 38/100 .Dollars for 17741 Feet of Lumber Dist. 3, out of Moneys in the Treasury to the credit of the Road and Bridge Maintenance Fund. To County Treasurer, Dale County, Alabama. Issues Sept. 30, 1937, 193_. Frank 0. Deese, Judge of Probate, Roberts & Son, Birmingham, Ala.’ And on the back thereof appears the following: ‘J. H. Morris J. R. Brown.’ or, with intent to injure or defraud, did utter and publish as true the said falsely made, altered, forged, or counterfeited instrument in writing, knowing the same to be so made, altered, forged or counterfeited, against the peace and dignity of the State of Alabama.”
The indictment here is as follows:

As is plain, except for the description of the instrument, allegedly forged, the charge here is identical with that in Brown.

In Brown, the court said of the indictment there:

“The inclusion of the words: And on the hack thereof appears the following ‘J. H. Morris J. R. Brown ’ in the indictment in this case did not charge appellant with the forgery of the name J. H. Morris on the ‘instrument in writing’ set out in the indictment.”

The court, in Brown said that an indictment such as the one here charges a forgery of the instrument (first degree forgery) and that:

“In 26 Corpus Juris, at page 944, is the statement: ‘If the indictment is for the forging of an endorsement it must be set out accompanied with such averments as will make the offense affirmatively appear.’ (Italics supplied by us).”

I would affirm the judgment of the Court of Criminal Appeals.


text:
    William M. MARTIN, III, alias v. STATE.
    3 Div. 546.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
   After remandment by the Supreme Court of Alabama, REVERSED AND REMANDED on authority of Supreme Court 2508 Ms., November 4, 1977, 354 So.2d 1152. No opinion.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Ronald Ray ANDERSON v. STATE.
    4 Div. 545.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.

      Guy F. Gunter, III, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and Milton T. Belcher, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: one hundred twenty-five years and one day imprisonment.

The body of Mrs. Rudene Edwards was found in her Phenix City home on October 20, 1976, at approximately 7:00 A.M. The cause of death was determined to be from multiple blows to the head with a blunt instrument. The bloody stock of a .22 caliber rifle was found at the scene. The home had been ransacked.

Robbery was the crime originally contemplated by the intruders. Sixty-six thousand four hundred fifty dollars ($66,450.00) had been seized by the FBI from the Edwards’ safe-deposit box in the course of a gambling investigation. Mrs. Edwards had recently recovered the money through a much-publicized civil action in federal court. Apparently ignorant of the fact that most people use banks, the robbers assumed that Mrs. Edwards would have the money in her home. Their assumption was incorrect.

No physical evidence was uncovered which would connect the appellant with the crime. There was no eyewitness testimony, and the testimony of the majority of the State’s witnesses failed to connect the appellant with the murder in any way. We will summarize the testimony of only those witnesses which tend to implicate the appellant in the crime.

Lamar Jackson testified that he was at the home of Sarah “Cricket” Rezk in Columbus, Georgia, on October 3,1976. While there, he overheard a conversation between Linn Conley, Bobby Joe Lee and the appellant. Conley stated that he knew of a $50,000 “score” in Phenix City. The “score” (target of the robbery) was identified as the mother of Bobby Smith, who was Mrs. Edwards. The appellant stated that he would have to check with Andy Austin and would get back with Linn Conley later. Jackson' heard essentially the same conversation take place again at the Rezk house on October 17, two days before the murder.

Jackson stated that around 1:30 P.M. on October 19, the appellant borrowed the automobile and .38 caliber pistol of Sarah Rezk and departed with Andy Austin. Around 8:30 P.M. Jackson drove Deborah Vella to the “Southeastern,” a billiard parlor for the purpose of retrieving Cricket Rezk’s pistol. Appellant would not give the pistol to Deborah Vella at that time. The next day, the appellant returned the automobile and the pistol. The pistol was covered with an unidentified substance which appeared similar to jelly. Jackson cleaned the pistol for Cricket.

About three or four days after the murder, Jackson was at the Rezk residence again in the presence of Cricket, Deborah Vella, Andy Austin and the appellant. He overheard a conversation wherein the appellant stated to Austin:

“. . . ‘You didn’t have to do it — you didn’t have to do it the way you did.’ ”

Austin replied:

“. . . ‘If the money would have been there like we was told we — things wouldn’t have happened the way they did.’ ”

Appellant said:

“. . . ‘You didn’t have to hit her as many times as you did.’ ”

Austin replied:

“. . . ‘Well, she wouldn’t tell me where the f_ money was, and I needed it. That’s what we were there for.’ ”

Appellant again stated:

“. . . ‘Well, you didn't have to — you didn’t have to kill the woman.’ ”

Austin responded:

“. . . ‘Well, I just wanted to find out where the money was at. If she had told me I wouldn’t have done it.’ . .”

Jackson admitted having previously been convicted of two felonies of “receiving stolen goods” and “auto theft.” At the time of his testimony, he was unemployed. The prior year he worked as a part-time bartender. He was on occasion an informer for the Columbus Police Department, and he expected to get a substantial reward which had been posted in the instant case. He admitted to having used narcotics and marijuana.

Deborah Vella testified that the appellant borrowed Sarah Rezk’s pistol and car on October 19 and left with Andy Austin. She made three or four trips to the Southeastern for Mrs. Rezk asking that the appellant return the gun. Appellant refused stating that “he was going to probably have to use it later on, he had something another going down.” He returned the gun and the car to Mrs. Rezk the next day.

Deborah Vella was present at the Rezk residence on October 17 and overheard the conversation concerning the $50,000 “score over there at Bobby Smith’s mama’s house.” She heard the appellant say that he would not go unless Andy Austin wanted to go.

The witness testified that during either the first or second week in November following the murder, she, the appellant and Andy Austin were riding in Cricket Rezk’s automobile and “went to K-Mart to take back some stuff.” In route there, the appellant told her that in reference to the crime, “the $50,000.00 wasn’t there anyway. He said, ‘If it was I couldn’t find it.’ ”

On cross-examination, the witness admitted to engaging in “a little bit” of prostitution and that she made her living by “boosting” and “kickbacking” which from the record appears to be the act of shoplifting merchandise and later returning it to the store for a refund as though it had been purchased.

Sarah “Cricket” Rezk, an admitted prostitute, testified to substantially the same facts as Lamar Jackson and Deborah Vella had concerning the appellant borrowing the gun and car and refusing to return the gun until the next day after the crime. She testified that four days after the murder, she overheard Austin tell Jackson and the appellant that he (Austin) “didn’t leave no man, woman, or child behind him as a witness.” Appellant told Austin that the “last score” should not have happened the way it did, that it was not worth what they came out with.

Thus, the only circumstantial evidence connecting the appellant with the crime comes from a group of thieves, shoplifters and prostitutes. This point is stressed by counsel for appellant. However, evidence of criminal conspiracies hardly ever comes from ministers and civic leaders. The appellant can hardly complain of the unsavory character of the witnesses against him as they were all his chosen companions. The weight and credibility of the testimony was for the jury to determine.

I

A conviction may be had on circumstantial evidence solely so long as that evidence is so strong and cogent as to show the defendant’s guilt to a moral certainty. Tanner v. State, 291 Ala. 70, 277 So.2d 885 (1973). Circumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused. Locke v. State, Ala.Cr.App., 338 So.2d 488 (1976). We are convinced that the evidence, though circumstantial, was sufficiently strong and cogent as to show the defendant’s guilt to a moral certainty. The testimony of Lamar Jackson, Sarah Rezk and Deborah Vella, if believed by the jury, was sufficient to support the verdict.

II

Throughout the trial, evidence in one form or another was put before the jury showing the bad character of the appellant and his commission of other crimes not charged in the indictment. In most instances, the trial judge either sustained the appellant’s objection; the objection came after the answer was given and no motion to exclude the answer was made; or the objection was not specific. However, one instance does stand out and warrants review.

Deborah Vella testified that during either the first or second week of November following the murder, she and the appellant and Andy Austin were riding in an automobile headed toward K-Mart. When K-Mart was mentioned, the defense attorney objected to any further testimony, and the trial court sustained the objection. In answer to further questions, the witness stated that while they were riding on Forest Road and on Macon Road, the appellant told her that he was unable to find the $50,000 (apparently at the Edwards’ home).

On direct examination of the appellant, his attorney asked him about the alleged conversation in the automobile in November. The appellant admitted going to K-Mart, but denied having the conversation in route with Deborah Vella concerning the $50,000. He contended that the trip to K-Mart was actually a week before the date of the murder and that he did not recall any other conversations with her in an automobile in route to K-Mart.

During cross-examination of the appellant by the district attorney, the following occurred:

“Q. Isn’t it a fact that you taught the witness Deborah Vella how to shoplift, Mr. Anderson.
“A. No, sir.
“Q. Mr. Anderson, I’m going to ask you if you were apprehended in K-Marts and Miss Deborah Vella came back there and asked you what was she supposed to do?
“MR. FAULK: Your Honor, we object to that, evidence of another crime.
“MR. BENTON: This was not by the police.
“MR. FAULK: It cannot be connected in any way—
“THE COURT: Just a moment — just a moment. Sustained in that form.
“Q. Let me ask you were you retained by store personnel in K-Marts for shoplifting and Miss Deborah Vella came back and asked you what she was supposed to do?
“MR. FAULK: We object, if the Court please.
“THE COURT: Overruled. You may answer.
“A. Do what, now?
“Q. I will ask you if you weren’t retained by personnel of K-Mart for shoplifting and Miss Deborah Vella, who was with you on that run, came back in the room where you were being retained and asked you what she was supposed to do, and you told her who to contact?
“A. No, sir, she didn’t.”

The district attorney recalled Deborah Vella to the witness stand and called her attention to her prior testimony concerning the trip to K-Mart (on November 8). The following occurred:

“Q. Let me ask you this: Did Ronnie Anderson go with you that day?
“A. Yes, he did. He drove Cricket’s car.
“Q. I will ask you if on that trip Ronnie Anderson was apprehended by the folks in K-Mart?”
“MR. FAULK: We object.
“A. Yes, sir, he was.
“MR. FAULK: We object and ask that the witness be instructed not to answer the question while there is an objection before the Court.
“THE COURT: Overruled.
“A. Yes, sir. He was apprehended for shoplifting.
“THE COURT: Wait just a minute. I overruled the objection. She has answered your question.”

When the appellant was cross-examined by the district attorney as to whether or not he had been arrested at K-Mart in November, a'specific objection was made: “Your Honor, we object to that, evidence of another crime.” The trial court sustained the objection as to the form of the question but allowed it to be asked in substantially the same form as before. However, the appellant denied his apprehension or arrest on the unrelated charge, thus no prejudice resulted. Houston v. State, 50 Ala.App. 536, 280 So.2d 797 (1973).

Deborah Vella was recalled to impeach the appellant’s denial of his arrest at K-Mart. At that time, the appellant made a general objection. The objection was timely, but the answer came before the trial court ruled. Again, a general objection was made, and the trial court overruled the objection and allowed the answer a second time. Although only a general objection was made, a specific objection was made when the district attorney attempted to elicit the same evidence during cross-examination of the appellant. It is not necessary to repeat the specific grounds for an objection each time a question is asked, if a proper objection had been previously made to the same evidence and the trial court had been made fully aware of the ground of that objection. Wilson v. State, 37 Ala.App. 644, 73 So.2d 925 (1954); Nobles v. State, 30 Ala.App. 434, 7 So.2d 770, cert. denied 242 Ala.. 643, 7 So.2d 773 (1942); National Casualty Company v. Dunn, 209 Ala. 484, 96 So. 576 (1923).

A general objection is likewise sufficient to present for review the illegality of the evidence admitted, if that evidence was illegal for any purpose and could not have been made legal by introducing other evidence or reframing the question. Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966). In Meador v. State, 37 Ala.App. 573, 72 So.2d 418 (1954) the appellant was being tried for burglary, and the prosecution attempted to elicit testimony from a witness showing a prior unrelated larceny by the appellant. The Court of Appeals held that such evidence was:

. . manifestly illegal and obnoxious to all rules of evidence. It could not be rendered legal by reframing the question, or by the introduction of other evidence. Under such circumstances the general objection interposed is sufficient. . . "

In a prosecution for violation of the prohibition law, a question seeking to elicit evidence of a prior arrest of the appellant was properly raised by a general objection. Rogers v. State, 34 Ala.App. 617, 42 So.2d 642 (1949) cert. denied, 252 Ala. 670, 42 So.2d 643.

In Helms v. State, 34 Ala.App. 82, 37 So.2d 229, cert. denied 251 Ala. 275, 37 So.2d 231 (1948) the appellant was being tried for the crime of assault with intent to murder. The Court of Appeals held that a general objection was sufficient where the prosecution sought to elicit testimony of a prior assault by the appellant upon a stranger to the case being tried and which was in no wise a part of the res gestae of the case being tried. The Court of Appeals found that there was no way such a question could be reframed to call for legal testimony.

In the instant case, the question to witness Deborah Vella concerning the arrest of the appellant for shoplifting some weeks following the murder charged in the instant indictment violates the rule that a witness or a defendant may not be asked about unrelated criminal acts of the defendant not charged in the instant indictment. Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973).

What transpired at K-Mart on the occasion in question had absolutely nothing to do with the issues at trial. The prosecution’s questions concerning the arrest of the appellant on that question, “sheds no light on the identity or the intent of the appellant in this case. It’s prejudicial tendencies cannot be rationally questioned.” Helms, supra.

Whether the appellant was arrested for shoplifting at K-Mart some weeks after the murder in question, is completely irrelevant to the issues in the murder trial. Its obvious purpose was to prejudice the appellant in the eyes of the jury. While the appellant could have been impeached on the substance of the purported inculpatory statement made in route to K-Mart, what transpired after he reached the store had no bearing on any issue in this case. The evidence elicited from Deborah Vella when she was recalled as a witness, not only violates the rules discussed above, but it also amounts to an attempt to impeach the defendant as a witness on an immaterial matter. See: Gamble, McElroy’s Alabama Evidence, § 156.01.

There is an additional reason why the appellant’s conduct at K-Mart may not be shown. A defendant’s credibility, as a witness, may be attacked by showing his former conviction of a crime involving moral turpitude, if proved properly. “But whether accused has been guilty of wrongful conduct or the commission of an offense for which there has been no conviction is not a proper inquiry. Davis v. State, 21 Ala.App. 637, 111 So. 314.” White v. State, 40 Ala.App. 613, 119 So.2d 344 (1960).

In Davis, supra, the Court of Appeals stated:

“. . . The mere fact that an accused had been arrested on several former occasions upon a similar charge is not a proper inquiry. ... A former conviction may be shown under relevant conditions, but the mere arrest of a man, without more, sheds no light upon his guilt or innocence on the trial of a case, nor should it be allowed or considered in order to militate against the weight of his evidence or credibility as a witness. That such inquiry before the jury was hurtful cannot be doubted, and, being erroneous, the judgment of conviction cannot stand.” Citation omitted.

For the reasons stated above, the judgment of conviction must be reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-126.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    Anthony Ray REEDER v. STATE.
    8 Div. 993.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    Robert Gonce, Florence, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent, was indicted for burglary in the second degree, breaking in a laundromat. On arraignment he entered a plea of not guilty. A jury convicted him and he was sentenced to two years imprisonment.

It appears in the record that the State’s attorney asked the prosecuting witness, Mr. Brown, manager of the burglarized premises for eleven years, the question which follows:

“Q Have you had a problem with brea-kins (sic) within the last year or two years?
“An objection is noted by the defendant with no grounds stated therefor.”

Thereupon, the Court instructed the jury:

“THE COURT TO THE JURY:
“Ladies and gentlemen, we will allow him to answer the question. I presume from the opening statement, the question was asked for the purpose of showing why Mr. Brown happened to be there on that occasion, but the fact that Mr. Brown had had other breakins (sic) in the past is not a circumstance for you to consider against this defendant at all and it has nothing to do with his guilt or innocence. It is introduced in evidence for the sole purpose of showing why he was there on that occasion. Go ahead Mr. Brown and answer the question.
“A Well, I have been (sic) had several breakins (sic) for the last three years. It was just like walking out every other night, every other night, every nother (sic) night.”

Later the witness, Mr. Brown, testified without objection, that:

“. . .1 went home and layed (sic) down until I recon (sic) about 1:30 I imagine. I didn’t go to sleep, I just layed (sic) down. My mind told me to get up.
I got up and left my car at home and went by my friend’s and picked up his truck. I got my gun and put it in the truck and pulled the truck around behind the building just enough that I could see around the corner of the filling station.

We think the question and answer about the prior burglaries of the business were permissible in explaining why the witness was near the premises when the instant burglary occurred. The ruling was free of error in light of the Court’s above quoted admonition to the jury.

We find no error in the record. Appellant’s counsel does not assert any other error.

The judgment is 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.