text:
    Carl GOLSON d/b/a Carl Golson Motor Company and Universal Underwriters Insurance Company, a corporation v. Venty W. BUTTS.
    Civ. 1097.
    Court of Civil Appeals of Alabama.
    Aug. 10, 1977.

      William P. Sawyer, Montgomery, for appellants.
    Thomas C. Sullivan and Robert C. Black, Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff appeals from judgment for defendant in an action in tort arising out of an automobile collision.

The primary issue on appeal appears to be that the court erred in refusing to give, at the request of plaintiff, the following written charge:

“(3) The court charges the jury that if you are reasonably satisfied from the evidence that Lisa Golson was not on any mission for Carl Golson, the owner of the automobile, then plaintiffs are entitled to a verdict in their favor even if Lisa Gol-son was contributorily negligent.”

We find no error in refusing the charge for several reasons, any one of which is sufficient to affirm the judgment below.

A brief statement of relevant evidence is first made. Carl Golson is the owner of Golson Motor Company and was insured by Universal Underwriters Insurance Co. A new automobile was delivered to Golson Motor Company and was immediately included under the collision policy of Universal. Golson had been intending to give a car to his 17-year-old granddaughter, Lisa, as a present. Lisa drove the newly delivered automobile and liked it. The following day it was serviced and delivered to Lisa with the intent that it be hers and she was not expected to return it. The process necessary to secure a title certificate for the car in the name of Lisa was begun but not completed. On the same day of delivery to her, Lisa was driving some of her friends in the automobile along Interstate Highway 65 toward Montgomery. Observing an automobile on fire along the side of the highway, Lisa slowed down and/or stopped. Defendant collided with the rear of the car severely damaging it.. Universal paid Gol-son for the damage, less $250 deductible and brought a subrogation action against defendants to recover the amount of loss.

As a defense, defendant pleaded contributory negligence of Lisa. ■ After plaintiff rested, defendant moved for a directed verdict on the ground that the evidence disclosed that Golson was not the owner of the automobile but had transferred ownership by gift to Lisa. The motion was denied and was never thereafter renewed. Neither was the defensive pleading amended. The court at the completion of the evidence charged the jury as to negligence of defendant and as to contributory negligence of plaintiff. At the completion of the charge opportunity was given for objections. Both parties announced they were satisfied. There was no objection made to failure to give charge number 3 as is required by Rule 51, ARCP. Windsor v. General Motors Acceptance Corp., 295 Ala. 80, 323 So.2d 350 (1975); Whetstone v. Caudle, 54 Ala.App. 299, 307 So.2d 697 (1975). Thus no error may be charged to the court.

Most of the briefs on appeal concern the ownership of the Golson car. Plaintiff contending that ownership remained in plaintiff Carl Golson. Defendant argues that there was an inter vivos gift of the automobile to Lisa Golson. We are unable to determine the relevancy of this argument to the issue presented or to the issues presented by the trial court to the jury in its charge. As previously stated the charge was solely on the issue of negligence and contributory negligence. There was no charge concerning ownership of the automobile nor as to agency or lack of it. Regardless of what may be in the evidence or in. the minds of counsel at trial, the consideration of the jury is limited to the law of the case as stated in the court’s charge. W. T. Ratliff Co. v. Purvis, 292 Ala. 171, 291 So.2d 289 (1974).

Though we have found no error because of a failure to comply with Rule 51, we note that the charge requested is defective in fact. The charge is in effect an affirmative charge as to the negligence of defendant and as to proximate cause. It directs the jury that plaintiffs are entitled to a verdict in their favor if the jury is reasonably satisfied that Lisa Golson was not on any mission for plaintiff Carl Golson. We do not consider other possible defects of the charge, but find its refusal not to be error. The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ. concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Elizabeth S. DuVALLE v. Frank L. DuVALLE.
    Civ. 1129.
    Court of Civil Appeals of Alabama.
    Aug. 10, 1977.

      William M. Hawkins, Jr., Mobile, for appellant.
    Sam W. Pipes and Victor H. Lott, Jr., for Lyons, Pipes & Cook, Mobile, for appellee.
   HOLMES, Judge.

This is an appeal by the wife from the Circuit Court of Mobile County’s dismissal of her motion to modify a 1952 divorce decree.

The 1952 divorce decree incorporated the terms of an agreement between the wife and her husband, appellee herein, in which the latter agreed to make monthly payments of $100 to the appellant-wife. After examination of this 1952 agreement and without hearing oral testimony, the trial court dismissed the wife’s complaint which sought an increase in these monthly payments, stating that the periodic payments constituted property settlement payments which are not subject to modification by the court. The wife correctly contends that the trial court erred to reversal in this respect.

Appellee-husband and appellant-wife were divorced by decree of the Circuit Court of Mobile County in Equity on December 18, 1952. The wife’s complaint in that action sought an “absolute divorce” and requested that the husband be ordered to make payments as provided in the “property settlement” agreement entered into between the parties. This agreement between the husband and wife was incorporated into the divorce decree by the court and was entitled an “indenture.” Pertinent provisions from this agreement follow:

“THAT, WHEREAS, the said Frank L. DuValle and Elizabeth S. DuValle are husband and wife, but have ceased to live together as such; and
“WHEREAS, it is recognized that provision should be made for the support and maintenance of said Elizabeth S. DuValle and the two (2) minor children of the parties hereto:
“NOW, THEREFORE, in consideration of the premises and the mutual covenants between the parties hereto, it is hereby agreed by and between said parties as follows:
“[T]he parties hereby agree . that .
“Said Frank L. DuValle shall pay to said Elizabeth S. DuValle the sum of One Hundred Dollars ($100.00) per month, as alimony, such payments to be continued so long as said Elizabeth S. DuValle does not remarry; and said Frank L. DuValle shall not be required to make any other payments, whether as alimony, support, maintenance, or other allowance, for the benefit of said Elizabeth S. DuValle.
“Said Frank L. DuValle shall convey to said Elizabeth S. DuValle all of his interest in said homeplace, and the furnishings and equipment thereof, and shall assume and agree to pay all installments of interest and principal which then remain unpaid on the indebtedness that is now secured by mortgage on said homeplace.
“Except as herein expressly provided, said Elizabeth S. DuValle shall have no claims or rights against said Frank L. DuValle for alimony, dower, homestead, maintenance, support, or other allowance.”

The agreement also stated that the wife was to have custody of the children and that the husband was to have reasonable visitation rights and pay $50 per month to the wife for the support of each child.

In January of 1976, the wife filed her complaint to modify the 1952 divorce decree, seeking an increase in alimony payments due to changed circumstances.

As previously stated, after examination of the ■ complaint and answer, the latter having incorporated the 1952 divorce decree and “indenture”, the trial court granted the husband’s motion to dismiss.

The wife thereafter filed this appeal.

She contends that the monthly payments she receives are periodic alimony and consequently are modifiable by the trial court. The husband contends that the payments made pursuant to the agreement are in the nature of a property settlement and therefore are not subject to modification by the trial court. The trial court agreed with the husband.

Agreements by which both property rights and rights of support and maintenance are settled consist of two categories. In the “severable combination”, although both types of rights are fixed, the provisions as to each are severable and distinct so that the amount of alimony initially agreed upon by the parties may thereafter be modified by the trial court.

In the “integrated bargain” category of agreement, the amount of alimony to be paid for support and maintenance has been established by the parties by taking into account the property settlement features of the agreement. In other words, “ ‘integrated bargain’ agreements [provide] for both support and division of property, but with the entire provision for one spouse being in consideration for the entire provision for the other, so that the support and property terms are inseparable.” 61 A.L.R.3d 520, 529. Alimony payments thus established may not thereafter be modified by the court without the consent of both parties.

The rationale for the latter principle is clear. The parties have agreed that the support payments and the provisions relating to the division of property are reciprocal consideration. To modify the alimony provision might drastically alter the entire character of the property settlement agreement to the detriment of one of the parties. Hence, the trial court may not modify the alimony provision of the “integrated bargain” without the consent of both parties. See Plumer v. Plumer, 48 Cal.2d 820, 313 P.2d 549 (1957); Fox v. Fox, 42 Cal.2d 49, 265 P.2d 881 (1954); Movius v. Movius, 163 Mont. 463, 517 P.2d 884 (1974).

In this instance the trial court, subsequent to examination of the original 1952 agreement which was attached to the husband’s motion to dismiss and without hearing oral testimony, dismissed the wife’s complaint. To warrant dismissal pursuant to Rule 12(b), AROP, it must appear that the wife’s complaint failed to state any grounds upon which a claim might be based. Generally, periodic alimony may be altered upon a showing of changed circumstances, which the wife’s complaint alleged. Therefore, to sustain the trial court’s ruling in this instance, the language of the “indenture” agreement itself must conclusively establish that the payments in question were actually either payments in the nature of a property settlement or alimony payments pursuant to an “integrated bargain.” Examination of the cases cited by counsel for the appellee-husband in his excellent brief filed with this court and other pertinent decisions convinces us that the language contained within the agreement is — without other evidence — insufficient to sustain the finding of the trial court that the nature of the payments in question “was a property settlement and not in fact alimony.”

Numerous factors indicate the payments are alimony, payments for support and maintenance, as opposed to payments in the nature of a property settlement. The agreement is not termed a “property settlement.” Lane v. Lane, 117 Cal.App.2d 247, 255 P.2d 110 (1953); Duncan v. Duncan, 25 Wash.2d 843, 172 P.2d 210 (1946). There is no measurable value to the payments. That is, the payments are not stated as a sum certain. Cochran v. Cochran, 289 Ala. 615, 269 So.2d 897 (1972); Fox v. Fox; Lane v. Lane; and Movius v. Movius, supra. There is no provision binding the husband’s estate. Flowers v. Flowers, Ala., 334 So.2d 856 (1976); Movius, supra; Helvern v. Helvern, 139 Cal.App.2d 819, 294 P.2d 482 (1956); Howell v. Howell, Fla.App., 164 So.2d 231 (1964). See Lane, supra; Roesbery v. Roesbery, 88 Idaho 514, 401 P.2d 805 (1965). Language in the agreement which indicates that the wife intended to relinquish all claims against her husband or that the payments were in lieu of her property rights or interest in her husband’s property is absent. Sullivan v. Sullivan, 215 Ala. 627, 111 So. 911 (1927); Dexter v. Dexter, 42 Cal.2d 36, 265 P.2d 873 (1954); Rich v. Rich, 44 Cal.App.2d 526, 112 P.2d 780 (1941). No deposit of property was required by the husband to insure that he could continue the monthly payments to the wife. See Constantine v. Constantine, 274 Ala. 374, 149 So.2d 262 (1963); Sullivan, supra. There is no indication that the parties intended the agreement to constitute a final settlement of all property rights between them. See Lane, supra. Additionally, the payments were to terminate in the event of appellant-wife’s remarriage, and they were specifically denoted “alimony” by the parties. Constantine; Lane; Rich; and Movius, supra.

In each of the above decisions, the issue before the court was identical to that posed here. The courts utilized the factors indicated to ascertain the character of the payments in question. Here, analysis of the agreement between the husband and wife with due regard to these factors convinces us that the trial court erred in holding, solely on the basis of the language in the agreement, that the payments were in the nature of a property settlement and not alimony.

Similarly, the agreement does not contain language to justify holding, as a matter of law, that it constitutes an “integrated bargain.” To warrant such a holding, a more pronounced intent to finally settle all claims of property rights and rights of maintenance and support is required. In the following cases, the quoted language is contained in agreements wherein payments have been determined to have been made pursuant to an integrated bargain. “[T]his agreement is intended to be and is a full, final, and complete settlement of the property rights of the parties hereto.” Anderson v. Mart, 47 Cal.2d 274, 303 P.2d 539 (1956); “. . . for and in consideration of the permanent and lasting division and settlement of all their property rights of every kind and nature, whether separate or community property, . Messenger v. Messenger, 46 Cal.2d 619, 297 P.2d 988 (1956); “ ‘That the execution of this agreement shall be and is intended to be a full, complete and final adjustment of all of the property rights, including the community property rights, of each of the parties hereto.’ . . . ‘and that neither party shall or will at any time hereafter make or attempt to make any further or other claims against the other party hereto, . ’ ”, Helvern, supra; “[T]he parties are desirous of settling all property claims . that either may have against the other, and . . . the parties . now intend to and do hereby adjust and finally settle . . .all property rights. It is further understood and agreed between the parties hereto that the provisions hereinbefore made for the [wife] shall constitute a full and complete satisfaction of all claims and demands of the [wife] against the [husband]. . . . Sasanoff v. Sasanoff, 120 Cal.App.2d 120, 260 P.2d 840 (1953). Examination of the relevant provisions of the agreement in this case set forth, supra, discloses no declaration of intent comparable to that in the above quoted cases. Moreover, provisions for alimony payments have been held to be severable and thus modifiable in instances where declarations within the agreement have evinced a more pronounced intent to finally settle all property rights than do those contained within the agreement before this court. Sprenger v. Superior Court, 268 Cal.App.2d 857, 74 Cal.Rptr. 638 (1969); Werner v. Werner, 120 Cal.App.2d 248, 260 P.2d 961 (1953); Briggs v. Briggs, 178 Or. 193, 165 P.2d 772 (1946); Prime v. Prime, 172 Or. 34, 139 P.2d 550 (1943). Hence, as a matter of law, the agreement cannot be held to fall within the “integrated bargain” category of agreement.

The plain language of the agreement in question yields two equally plausible interpretations. The provisions stating that it is recognized that “support and maintenance” should be provided for the wife and that the appellee-husband is to pay appellant-wife $100 per month as “alimony” support the wife’s contention that the payments are alimony and subject to modification. On the other hand, those portions of the agreement which state “in consideration of the premises and mutual covenants between the parties” and the wife “shall have no claims or rights against [the husband] for alimony, dower, homestead, maintenance, support, or other allowance” strengthen the husband’s argument that the payments are in the nature of a property settlement.

As appellee-husband notes, in order to characterize the agreement we must look to the intent of the parties. Here the agreement, since it is equally susceptible of two interpretations, is ambiguous on its face.

“[I]f the language of a written agreement is on its face ambiguous, the courts will look at the surrounding circumstances, at the situation of the parties, and the subject matter of the contract for aid in giving a construction to its language.
“The courts, in construing contracts, are entitled to have all the facts and circumstances going to show the conditions under which the parties contracted and what influenced them, to the end that the contract may be construed to give it such effect as the parties intended.
“To arrive at the true sense in which parties have employed words of a written contract, courts may consider the occasion which gives rise to the contract, relation of the parties, and object to be accomplished. .
“Since it is only by parol evidence that the circumstances under which a contract was made, relation of the parties and what was within their mutual knowledge, can be ascertained, admission of such evidence does not infringe the rule that evidence is not admissible to contradict, add to, or vary written contract. . .” Flagg-Utica Corporation v. City of Florence, 275 Ala. 475, 480-81, 156 So.2d 338, 342-43 (1963).

See U. S. Fidelity & Guaranty v. Elba Wood Products, Ala., 337 So.2d 1305 (1976); Flowers, supra; Scherf v. Renfroe, 266 Ala. 35, 93 So.2d 402 (1957).

The trial court dismissed the wife’s complaint without permitting her to introduce evidence which would have shed light on the parties’ intent at the execution of the agreement. Since the language within the agreement is itself insufficient to sustain a finding either that the payments were in the nature of a property settlement or that the agreement constitutes an integrated bargain, it follows that the trial court erred in dismissing appellant-wife’s complaint.

REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

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


text:
    John Kermit MITCHELL v. Geneva Ann MITCHELL.
    Civ. 1151 and Civ. 1151-X.
    Court of Civil Appeals of Alabama.
    Aug. 10, 1977.

      David J. Evans, Jr., Albertville, for appellant.
    T. J. Carnes, Carnes & Carnes, Albert-ville, for appellee.
   HOLMES, Judge.

This is a divorce case.

The husband appeals from the trial court’s action regarding the property division and/or award of alimony in gross. We affirm.

Additionally, the wife appeals, contending the trial court erred in failing to require the husband to maintain certain life insurance policies with the parties’ children as beneficiaries. We find no reversible error in this regard.

Viewing the testimony with the attendant presumption of correctness accorded the trial court, we find the following. The husband is 35 years old; the wife is 33. They were married in excess of 16 years and the union produced 3 children. The wife has little formal education. The husband is a college graduate. His occupation is that of an engineer and he earns over $20,000 per year. He is employed by the United States Army in Huntsville, Alabama. The wife has no readily marketable skills.

During the marriage, the parties acquired a farm consisting of approximately 25 acres. They built a home on this property. A farming operation was done on the land with a large portion of the work in the last few years being performed by the wife and children.

We do not deem it necessary to set out in detail the cause of the breakdown of the marriage. Suffice it to say there is evidence to support the conclusion that the husband wanted a divorce because he was “in love” with another woman. The divorce was granted on the grounds of incompatibility.

The trial court awarded the wife the farm and acreage. The value of this property was approximately $50,000 with a mortgage in excess of $4,500. The wife was required to assume the mortgage debt. Additionally, the wife was awarded certain vehicles, farm equipment, and livestock. The value of these items was approximately $6,000.

The husband was awarded approximately 7 acres of land with an equity of less than $1,000 and personal property of a value of less than $5,000. It is from this disparity of an award of alimony in gross and/or division of property that the husband appeals.

It is readily apparent that the husband’s main contention is that the trial court erred in awarding the entire farm to the wife.

We note here, as we did in Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d. 159 (1974); and in Hicks v. Hicks, 52 Ala.App. 586, 296 So.2d 180 (1974), we cannot determine whether the award to the wife is an award of alimony in gross or a property division, but we need not make such a determination.

If the award is one for alimony, the amount of such award depends upon the facts of the particular case. Self v. Self, 49 Ala.App. 665, 275 So.2d 345 (1973). If the award is a division of property, such division does not require an equal division of the estate, but one graduated according to the nature of the case. See Eubanks v. Eubanks, supra.

In this case, the husband is gainfully employed. In fact, he earns over $20,000 a year. We would further note that he has completed substantial requirements for a Ph.D. On the other hand, the wife has little formal education and has never been substantially employed. She has been married to the husband for approximately one-half of her entire life. She and the children have performed substantial work on the farm.

The trial court could well have found that the breakup of the marriage was caused by the husband. This is a proper consideration by the trial judge in determining an award to the wife even where the divorce is granted on the ground of incompatibility. See Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. den. 292 Ala. 721, 298 So.2d 260 (1974).

Furthermore, important is the fact that the only substantial asset of the parties is the farm.

Under these facts, as found by the trial court, we cannot say the trial judge erred to reversal in awarding the farm place to the wife, where she and the children will have a home and a means to earn a livelihood. This is true, even though there is a disparity in the “dollar amounts” awarded to the husband and wife. See Eubanks v. Eubanks, supra.

Considering the above and keeping in mind that a division of property and/or award of alimony in gross by the trial court in a divorce decree is subject to reversal only if such an award is plain and palpable error, we cannot say the trial court erred to reversal. See Stewart v. Stewart, Ala.Civ.App., 341 So.2d 490 (1977); Hamaker v. Hamaker, 57 Ala.App. 333, 328 So.2d 588 (1975), cert. den. 295 Ala. 404, 328 So.2d 594 (1976).

CROSS APPEAL

In view of the award to the wife, as noted above, and the award of child support, we find no error to reversal in the trial court’s action in failing to require the husband to maintain certain insurance.

The attorney for the appellee-wife has petitioned this court for an attorney’s fee for representing the wife on appeal. A fee of $350 is hereby awarded.

The case is due to be affirmed.

AFFIRMED.

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


author: SIMMONS, Retired Circuit Judge. TYSON, Presiding Judge,

text:
    Luis Diaz GUTIERREZ v. STATE.
    8 Div. 768.
    Court of Criminal Appeals of Alabama.
    March 1, 1977.
    Rehearing Denied March 29, 1977.
    James R. Foley, of Lutz, Fay & Foley, Huntsville,- for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant, in forma pauperis here and below, was indicted separately for robbery and rape. Both indictments were tried jointly by consent on a plea of not guilty. During the progress of the trial, he made known to the court that he wanted to withdraw the two pleas of not guilty and enter pleas of guilty in both cases.

The trial court did not immediately accept the pleas of guilty, but held a colloquy with defendant whereby the court fully and adequately informed him about his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. This was done in both cases. The colloquy covers eight pages of transcript paper (Tr. 97-105).

Thereupon, the court vacated his pleas of not guilty and accepted the pleas of guilt followed by an appropriate judgment. Sentence in each case was deferred for several days to give the probation officer time to investigate and make a report.

When this deferment was up, the court sentenced him to ten years imprisonment in each case (the minimum sentence) and denied probation. The sentences were concurrent. These joint appeals followed.

Appellant contends he was led to believe that he would be put on probation if he pled guilty. Counsel alludes to the following question and answer:

“THE COURT: Has anybody told you the type or length of sentence you would receive if you do plead guilty?
“MR. GUTIERREZ: Beg your pardon?”

Contention is made that defendant was unsure how to answer a question “which dealt with the results of his plea bargaining”.

But counsel omits in their brief the following question and answer on the same transcript page:

“THE COURT: Has anyone told you anything about the type or length of sentence that you would receive if you do plead guilty?
“MR. GUTIERREZ: No, sir.”

So, we fail to find in the record that anyone misinformed or misled appellant about the sentence he would receive or probation. We are bound by the record here on file.

It appears, to us that appellant tendered his pleas of guilt with his eyes wide open and that the court became satisfied by the interrogation that his Boykin rights were not violated. The defendant entered the pleas fully informed as to his rights.

The pleas were addressed to a formal charge of rape and robbery contained in the indictment for which he was arraigned.

Counsel for appellant asserts several errors were committed by the trial court during the trial before it was halted by the pleas of guilt. We pretermit discussing these assertions because the voluntary guilty pleas concluded the issue of guilt and did not and is not rendered ineffective by irregularities in the prior proceedings. Monroe v. State, 50 Ala.App. 302(6), 278 So.2d 751(6).

We hold that the record does not disclose any fault by the trial court in accepting the pleas and halting the trial. Appellant was represented by able counsel at nisi prius (different counsel here representing him) and his rights were amply protected. It appears that he had a high school education, although he was of Mexican lineage.

We hold that the judgments of guilt entered by the court on defendant’s pleas of guilt (in both cases) should be and they are affirmed.

However, it appears that lawful punishment by imprisonment in the penitentiary has never been imposed. The trial court fixed the punishment several days after the impaneled jury, before which the cases were being tried at the time the pleas of guilty were made, was discharged.

The trial court’s action in fixing punishment without the intervention of a jury was contrary to Title 15, Section 277, Code 1940, as amended. (See supplement) This section as amended authorized the court to fix the punishment only when a plea of guilty is interposed on arraignment or prior to trial. This fixation was a nullity because in the instant cases the trial had begun. Albright v. State, 50 Ala.App. 480, 280 So.2d 186(1); Headrick v. State, 46 Ala.App. 202, 239 So.2d 572; Spencer v. State, 48 Ala.App. 646, 266 So.2d 902.

It is to be noted that in Albright and Headrick, supra, this court reversed to provide the appellants with relief against unauthorized fixation of punishment by the court that usurped the jury’s prerogative. Such reversals were optional and not exclusive to achieve such relief. An alternative-procedure is to remand. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205.

In Jackson, it appears that the trial court did not provide Jackson an “adequate evi-dentiary hearing productive of reliable results concerning the voluntariness of his confession.” We quote from Jackson, as follows:

“It is New York, therefore, not the federal habeas corpus court, which should first provide Jackson with that which he has not yet had and to which he is constitutionally entitled — an adequate evidentia-ry hearing productive of reliable results concerning the voluntariness of his confession. It does not follow, however, that Jackson is automatically entitled to a complete new trial including a retrial of the issue of guilt or innocence, Jackson’s position before the District Court, and here, is that the issue of his confession should not have been decided by the convicting jury but should have been determined in a proceeding separate and apart from the body trying guilt or innocence. So far we agree and hold that he is now entitled to such a hearing in the state court. But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson’s confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. True, the jury in the first trial was permitted to deal with the issue of voluntariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the state court, at an evidentia-ry hearing, redetermines the facts and decides that Jackson’s confession was involuntary, there must be a new trial on guilt or innocence, without the confession’s being admitted in evidence.” (Footnote omitted) (Emphasis added)

In Bullock v. State, Ala.Cr.App., 346 So.2d 1, where it was necessary for the trial court to make it clear that he had ruled on the voluntariness of an alleged confession, we remanded instead of reversing.

In the instant case, it is not necessary to reverse, although optional, for appellant to obtain relief from the trial court’s unauthorized fixation of punishment.

It is said in § 277, supra, as follows:

“ . . . The court may in all cases in which a plea of guilty is entered cause witnesses to be examined to ascertain the character of the offense . . . ”.

The discharged jury was informed as to the character of the two offenses, and it would have been convenient for the court to have utilized the services of this jury to fix punishment. But the mistake in not so utilizing their services is not so fatal as to require reversal. The same relief, that is, the fixation of punishment by a jury, may be obtained by utilization of the services of another jury. Appellant will not be prejudiced thereby. A remand instead of a reversal will afford full protection of appellant’s rights and is advisable under the circumstances here obtaining.

On remand of these causes, (both cases), the trial court will submit the issues of punishment to a jury at a special or regular session of court, and may permit witnesses to appear and testify as to the character of the two involved offenses, to the end that the jury may intelligently fix the punishment. The court will credit the jury’s sentences with the time, if any, that defendant may have already served.

The judgments of guilt are both affirmed. The causes are remanded with directions.

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 Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED; REMANDED FOR PROPER SENTENCING.

TYSON, P. J., dissents.

HARRIS, J., concurs in result.

DeCARLO, BOOKOUT and BOWEN, JJ., concur.

TYSON, Presiding Judge,

dissenting.

I respectfully dissent from the holding of my brothers in this cause as in the instant cause the trial had commenced, and therefore Headrick v. State, 46 Ala.App. 202, 239 So.2d 572, and Albright v. State, 50 Ala.App. 480, 280 So.2d 186, cert. denied 291 Ala. 771, 280 So.2d 191, require that the jury fix the punishment. Hence, this case should be reversed and remanded for another trial in accordance with the holding in the aforesaid cases.


author: EMBRY, Justice.

text:
    In re Luis Diaz GUTIERREZ v. STATE of Alabama. Ex parte Luis Diaz Gutierrez.
    SC 2493.
    Supreme Court of Alabama.
    Aug. 12, 1977.
    James R. Foley of Lutz, Fay & Foley, Huntsville, for petitioner.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   EMBRY, Justice.

This case comes to us by writ of certiorari to the Court of Criminal Appeals, 348 So.2d 1074. The writ was granted to review an allegedly material question of first impression (Rule 39(c)(3), ARAP):

“ * * * whether the appellate court erred in holding that there was no evidence that your Petitioner failed to enter his guilty pleas voluntarily and understandingly.”

Petitioner, Gutierrez, was indicted separately for robbery and rape. He pleaded not guilty to each indictment and by consent the cases were tried jointly on pleas of not guilty. During the course of the trial he withdrew his not guilty pleas and entered guilty pleas. The trial court discharged the trial jury and several days later fixed punishment. Gutierrez, on appeal to the Court of Criminal Appeals, contended that his guilty pleas were the product of improper inducement and of coercion. The Court of Criminal Appeals affirmed on that point. He urges the same point here; we approve the decision of the appeals court on that point and affirm as to it.

That court went on to hold that under Tit. 15, § 277, Code, the trial court could not fix punishment without the intervention of a jury, except on arraignment or before trial, but that remand for sentencing by another jury was an alternative to reversal. We do not reach this issue as it was not raised in the petition before us.

AFFIRMED.

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


author: TYSON, Presiding Judge.

text:
    James Willie COCHRAN v. STATE.
    6 Div. 314.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Rehearing Denied April 19, 1977.

      J. Wilson Dinsmore, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The grand jury charged James Willie Cochran with the robbery of Mozelle Latta by taking some $800.00 from her person by putting her in fear. The jury found the appellant guilty of robbery, as charged, and fixed punishment at ten years imprisonment in the penitentiary. Judgment set sentence in accordance with this verdict.

Charles G. Trotter was a salesman employed by Brown Furniture Company of 5228 Valley Road, Fairfield, in Jefferson County, Alabama, on September 6, 1974. He testified that shortly after 9:00 that morning, two black males walked up the front aisle of the store. There were two secretaries in the store at this time, Mrs. York and Mrs. Latta, and a maid, Mildred Conner. He stated that one of the men was very dark and the other light skinned. He approached them to wait on them, and as he did so the darker of the two pulled a pistol on him, and the lighter one pulled a pistol on the two secretaries. He stated that the lighter one told him and Mrs. York to lie down on the floor, and the darker one asked Mrs. Latta the location of the cash register and the money. He stated that the darker one did most of the talking, and after getting the proceeds from the cash register and money from Mrs. Latta’s purse, he cut the cords on each of the four telephones in the store. The employees of the store were then directed to enter a closet in the rear of the store and were locked inside by the two men. Mr. Trotter testified that eight to ten minutes later, the manager of the store, Mr. Garrison, came and opened the closet door. The Fairfield police were immediately notified. Mr. Trotter could not identify either of the two robbers.

Eunice York testified that she was seated at her desk at Brown Furniture Company in Fairfield on September 6, 1974. She stated that the bookkeeper, Mrs. Latta, was also at her desk; that Mr. Trotter, a salesman, and Mildred Conner, a maid, were also in the store. She stated that about 9:15 two black males entered the store and walked down the aisle to the desk where she was seated. She remembered seeing the darker of the two men in the store the day before looking at some furniture. She stated that the darker skinned man pulled a gun on her and told her not to move, then directed Mrs. Latta to get him the money. She stated that the two men made Mr. Trotter and her lie on the floor, face down, and that she saw them cut the cords to the telephones. After getting the money, they took the employees to the rear of the store and locked them in a closet. The store manager, Mr. Garrison, came in about fifteen minutes later and unlocked the door to the closet, and they immediately notified the Fairfield • police.

Mrs. York testified that a few weeks later she went over to a police lineup in Birmingham and immediately picked out the darker skinned man as the one who pointed the gun at her and made her lie down on the floor that morning. Mrs. York then made a positive in-court identification of the appellant.

Mozelle Latta testified that she was a bookkeeper at Brown Furniture Company in Fairfield on September 6, 1974. She stated that she entered the store shortly after 8:00 that morning and had been at work for over an hour when two black men entered and came to her desk. The darker skinned man directed Mr. Trotter and Mrs. York to lie down on the floor, then directed her to get the money from the cash register and from her purse. She stated that she was making up the bank deposit when they came in and the darker one told her, “Give me your money,” and had a pistol pointed at her, then said, “Don’t move.” She stated that she took the money from the cash drawer and from a metal box in the safe. She stated that she had placed over $840.00 in the cash drawer that morning, but had cashed a check for something over $200.00, so there would have been over $600.00 in the cash drawer. She stated that the man then got the proceeds of $30.00 to $40.00 from a stamp box, then marched her and the other employees to a closet in the rear of the store and locked the door. Mrs. Latta stated that before being locked in the closet she saw the appellant and she positively identified him in court. She also identified his companion who cut the four telephone cords. She stated that she and the other employees remained in the closet for a little over ten minutes before Mr. Garrison, the store manager, entered and unlocked the door. She said that the money box was still sitting on her desk when Mr. Garrison let them out, but the proceeds were gone. She stated that the police were immediately notified, and she gave them the description of the appellant as being dark skinned, about five feet, nine inches tall, weighing about 180 pounds, and wearing a gold colored shirt and a grayish brown jacket. She stated that he wore a cap and that he had a mustache. She told the police, “I will never forget those eyes.” On cross-examination she testified that a few weeks later she immediately picked the appellant from a police lineup in Birmingham, and she made a positive in-court identification.

Meldren Conner testified that on September 6, 1974, she was working as a maid in the Brown Furniture store in Fairfield. She stated that shortly before 9:30 that morning she saw two black men enter the store, and as she was dusting the furniture the tall light skinned one pulled a pistol on her and made her go back to a closet where she was locked in with Mrs. York, Mrs. Latta, and Mr. Trotter. She said they were locked in the closet for almost fifteen minutes before Mr. Garrison, the store manager, came and unlocked the door. She stated that she described the two men to the police and that the darker skinned one was about five feet, nine inches, or ten inches, tall with a short Afro hairdo, that he had a mustache, and was wearing a gold shirt and a cap. Miss Conner made a positive in-court identification of the appellant.

Sergeant A1 Sanders of the Fairfield Police Department testified that he went to the Brown Furniture Company at 53rd Street Valley Road in Fairfield on the morning of September 6, 1974, and assisted in the investigation of a robbery which took place that morning. He stated that as a result of the investigation he arrested the appellant, James Willie Cochran.

The appellant’s motion to exclude the State’s evidence was overruled.

James Willie Cochran testified that he lived at 1402 33rd Street, North, in Birmingham and was employed at O’Neal Steel on September 6, 1974. He testified that he had been working there about two years and was making $154.00 a week. He stated that he had injured himself at work, and on the morning of September 6, 1974, he was unable to drive. He stated that he telephoned one Ola Bell Madison and asked her to give him a ride to the doctor’s office, that he could not drive. He further stated that Ola Bell Madison and her son, Jerome Madison, came by his home around 9:00 that morning and picked him up, and that he had to walk bent over as he had ruptured himself. He testified that they took him to the office of Dr. Bradford on Fourth Avenue in Smithfield, and that Jerome Madison assisted him into the doctor’s office. He stated that he remained there about one and one-half hours until the Mad-isons returned, that they picked him up and carried him back to his home. He stated that Dr. Bradford prescribed a truss for him to wear and that he had to remain at home for several days of the following week before he could go back to work. He stated that he met the sons of Ola Bell Madison when they worked at a chicken place in Irondale in 1971. On cross-examination Cochran stated that he had not been to the Brown Furniture store since 1959, had not participated in the robbery thereof, and did not know anyone by the name of James Nelson, nor had he been at Nelson’s home playing poker the night before the robbery. He said that the Madisons were going to the food stamp store, and after that they returned to the doctor’s office and picked him up. On cross-examination appellant admitted a 1961 conviction of murder.

Ola Bell Madison testified that she received a telephone call between 8:15 and 8:30 on the morning of September 6, 1974, from James Willie Cochran, and he asked her if she or her son could give him a ride to Dr. Bradford’s office. She testified that they picked him up about 9:00, and that he could hardly walk. She stated that she and her son were going to the food stamp store, and it was about 9:30 when they arrived at Dr. Bradford’s office, that her son helped Cochran into the office. She said that they later came back by and picked him up, then carried him home shortly before 12:00.

Dr. Ferdinand D. Bradford testified that he had a general practice in the City of Birmingham on September 6,1974. He testified that James Willie Cochran was in his office on August 29, September 3, and September 6, 1974, according to a card which he kept showing office visits. He testified that he had given the appellant some penicillin and tetracyeline for an abscess under his arm, that on the subsequent visits he noted improvement, and on the office card, dated September 6, 1974, noted “Final visit, released to go back to work.”

Jerome Madison testified that he was the son of Ola Bell Madison, and on September 6,1974, he drove his mother by the home of James Willie Cochran, that they picked him up shortly after 9:00 that morning and took him to the office of Dr. Bradford in Birmingham. He stated that he took his mother by a food stamp store on the south side and they returned to Dr. Bradford’s office in Smithfield, picked up the appellant and took him back to his home.

Mrs. Dorothy Cochran testified that she was married to James Willie Cochran on April 5, 1971, and during the first week of September, 1974, the appellant injured himself at work and had to wear a truss. She stated that her husband went to see Dr. Bradford. On cross-examination Mrs. Cochran denied that she and her husband owned a late model gray automobile with a Georgia license tag No. GLS 470, or that her husband had driven such a car.

In rebuttal, the State called Homer W. Hollifield, who operated Steve’s Pharmacy at 2500 Valley Road in Fairfield. Mr. Holli-field testified that on the morning of September 6, 1974, he was on duty shortly before 9:00, and noticed a late model grayish car with a Georgia license tag with two black males seated in it. One was tall and light skinned and the other was shorter and dark skinned. He stated that he memorized the license tag number and subsequently gave this number to Fairfield Police Officer Smith that morning when he found out Brown Furniture Company had been robbed. Mr. Hollifield stated that he could not recall the license number at the present time.

Fairfield Police Officer Fred Smith testified that on September 6, 1974, he investigated the robbery at Brown Furniture on Valley Road. He stated that he made a field report of his investigation, and at that time talked with a Mr. Homer Hollifield who owned a pharmacy a short distance away. He stated that his field report showed that a Georgia tag number, GLS 470, was given to him by Mr. Hollifield, and that he talked with him near the store that morning. He said that his police report is dated 9:27 a. m., September 6, 1974, and that this was an official record of his investigation.

Fairfield Police Officer W. R. Stricklin was then recalled and testified that he participated in the investigation of the robbery of Brown Furniture Company on Valley Road in Fairfield on September 6,1974. He said that he and Officer Wilkinson went to O’Neal Steel Company on October 3, 1974, and arrested the appellant. He stated that before placing the appellant under arrest he gave him a full Miranda warning, and that there was no threat, coercion, intimidation, or inducement in his questioning. He stated that this took place on a parking lot near the plant manager’s office. He stated that he asked the appellant if he owned a grayish colored automobile with a Georgia license plate, No. GLS 470, and the appellant told him that he did own such a car, that it was in his girlfriend’s custody at the time of the arrest. On cross-examination Officer Stricklin testified that upon further investigation he determined the automobile in question was registered in the name of a woman named Linda Garner, and that it was a GTO Pontiac with Georgia license plate No. GLS 470. On redirect examination Officer Stricklin stated that Linda Garner was in Alaska at the time of the robbery.

I

Appellant contends that the State failed to present a prima facie case, and that his motion to exclude the evidence should have been granted.

The issue thus presented by this record is whether or not the evidence is sufficient to sustain the verdict and judgment. After careful consideration, we are of the opinion that the trial court ruled correctly on appellant’s motion to exclude. Williams v. State, 48 Ala.App. 737, 267 So.2d 526; Zimmerman v. State, 49 Ala.App. 442, 272 So.2d 914; Clay v. State, 52 Ala.App. 272, 291 So.2d 364.

The conflict in the testimony between the appellant’s alibi and that of the State presents a question for the jury. McColston v. State, 20 Ala.App. 591, 104 So. 347; Zimmerman v. State, supra, and cases cited therein.

II

The appellant contends that the trial judge erred in admitting hearsay testimony by Fairfield Police Officer Fred Smith by allowing him over objection to testify as to the Georgia license tag number given to him by Mr. Hollifield, and that such was not connected up by Mr. Hollifield’s testimony. From the record:

“Q. (By Mr. Halcomb) I believe you testified you had seen the license plate; is that correct?
“A. Yes, I did.
“Q. Was that an Alabama license or out-of-state license?
“A. It was a Georgia license.
“Q. Georgia license?
“A. Yes.
“Q. Did you write the license number down? Did you memorize it, or—?
“A. I just memorized it.
“Q. All right, sir.
“A. It was a short, brief license.
“Q. All right. Do you, at this date, do you recall the license number at this time?
“A. Beg pardon?
“Q. Do you recall the whole license number at this time?
“A. No, I don’t recall the license number at this time.
“Q. After that time when you saw the license that day and you say that you memorized the license, did you during that day or any other time after that did you give that license number to anyone else?
“A. Yes, I gave it to Officer Smith when I found out Brown Furniture had been robbed.
“MR. DINSMORE: Your Honor, I object.
“THE COURT: Sustained.
“Q. (By Mr. Halcomb) You gave it to Officer Smith?
“A. Yes.
“Q. Officer Smith of the Fairfield Police Department?
“A. Yes.”

As may be seen, Mr. Hollifield on cross examination did testify that he gave the Georgia license plate number to Officer Smith on the morning of the robbery, and that he had memorized it.

Officer Smith testified that he wrote down this number, Georgia license No. GLS 470, and entered it on his report that morning, that this was an official record filed with the Fairfield Police Department as a part of his field report. He testified he talked with Mr. Hollifield for “approximately ten minutes.”

The appellant’s wife, on cross-examination, had denied any knowledge of the vehicle in question, or that the appellant owned such a car. We are of the opinion that the trial court properly admitted this testimony in rebuttal by the State as being a part of the official investigation of the officers in question. Williams v. State, 291 Ala. 213, 279 So.2d 478, and authorities therein cited.

Such information pertaining to the Georgia tag number sheds light on the main fact of the robbery and was therefore properly admitted by the trial judge. Williams v. State, supra.

We have carefully examined this record and find same to be free from error. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


text:
    In re James Willie COCHRAN v. STATE of Alabama. Ex parte James Willie Cochran.
    SC 2533.
    Supreme Court of Alabama.
    Aug. 12, 1977.
    J. Wilson Dinsmore, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., Montgomery, Barry V. Hutner, Asst. Atty. Gen., Birmingham, opposed.
   EMBRY, Justice.

The ground assigned by petitioner on the basis of which he asks this court to issue the writ of certiorari is that the decision of the Court of Criminal Appeals is in conflict with the decision of this court in Williams v. State, 291 Ala. 213, 279 So.2d 478 (1973). Petitioner states that the holding of the appeals court that:

“ ‘The appellant contends that the trial judge erred in admitting hearsay testimony by Fairfield Police Officer Fred Smith by allowing him over objection to testify as to the Georgia license tag number given to him by Mr. Hollifield, and that such was not connected up by Mr. Hollifield’s testimony.
“ ‘We are of the opinion that the trial judge properly admitted this testimony in rebuttal by the State as being a part of the official investigation of the officers in question.
“ ‘Such information pertaining to the Georgia tag number sheds light on the main fact of the robbery and was therefore properly admitted by the trial judge.’ ”

conflicts with the holding in Williams that:

“ ‘For a statement to be admissible as part of the res gestae exception to the hearsay rule, it must be incident to what was done, as shedding light on the main fact. .
“ ‘. . . . The statement in this case required no particular reflection or thought.’ ”

The appeals court reached the correct result in this case but gave the wrong reason for the admissibility of the testimony of Officer Fred Smith. The testimony was not admissible because the information was gained from an official investigation but because it was admissible to prove the fact of a report to the police, rather than the truth of the contents of such report, to corroborate the testimony of the witness who gave the report to the police, who later identified the vehicle, and thus was in rebuttal of petitioner’s case. See McElroy’s Alabama Evidence, 3d Ed., § 273.01, p. 610.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER and BEATTY, JJ., concur.

JONES and ALMON, JJ., would grant the writ, therefore dissent.


author: MOORE, Retired Circuit Judge. PER CURIAM.

text:
    Jessie Lee MAINOR, alias v. STATE.
    3 Div. 491.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.

      Bob E. Allen, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Joseph G. L. Marston III, Asst. Atty. Gen. for the State, appellee.
   MOORE, Retired Circuit Judge.

The appellant was indicted, tried and convicted for the offense of murder in the first degree. Final judgment was entered; hence this appeal.

Willie Lewis testified that he lived at 1301 French Street, Montgomery, Montgomery County, Alabama, and was living at that address on July 15, 1975. He testified that he knew appellant, Jessie Mainor, and that he knew George Chesson, the deceased. On the night of July 12,1975, Jessie Mainor and George Chesson were at his home. He said that he heard some shots fired and went into the kitchen about five or ten minutes after hearing the shots and saw Chesson standing by the stove. Chesson had not been shot at that time. After Lewis heard the shots he saw Chesson lying outside by the front door, and appellant walking around in the room with a twenty-five automatic swinging on his finger and a thirty-two nickle plated revolver in one hand. Mainor had the two weapons. Appellant said at that time, “I told you all that I would take a gun from any son of a b-” He had the .25 automatic spinning around on his finger. Lewis said appellant left the house and he did not see him again that night.

On cross-examination, Lewis testified that he was in the kitchen when he heard the first shots. He said the shots were in the front room and he did not know where the shots came from but they were in the house. Lewis stated he heard two shots but he did not know who fired them. He said about eight or ten people were in the kitchen with him and there were about fifteen or twenty people in the living room.

Dorothy Harris testified in substance that she lived at 1520 Withers Street in north Montgomery and on the night of July 12, 1975, she was at the home of Willie Lewis at 1301 French Street. She said that she got there about 10:30 P.M. and a “lot of people” were at the house, including George Chesson, when she arrived. Harris also saw Jessie Mainor there. When she saw him coming in the door he did not say anything and then she heard a shot. Harris stated they all ran into the kitchen and she then heard two more shots. She said Mainor and Chesson were on the floor “tussling up against the wall by the window” and the gun was between them but it was in Jessie Mainor’s hand. Harris was looking back into the room. It was about a minute or a minute and a half after Mainor came into the front room before she heard the first shot. She did not hear any arguing or see any fight between Mainor and Chesson before she heard the first shot. Harris did not see Chesson before she heard the first shot and did not see Chesson with a gun that night. Later she saw George Chesson right by Lewis’ house in the bushes outside of his house. It was about five minutes after all the shots were fired that Harris saw Chesson in the bushes. She had walked out on the porch and heard someone say, “Help me” and had “walked around there and stepped on George’s hand.” Harris said Mainor came back there and that when he walked in the bushes he said: “I am going to show this m-f_who he is f_with.” Harris then called the police and was there when they came.

On cross-examination, Harris testified that she saw Mainor come in the front door but did not see who shot first. She ran in the kitchen when the first shot was fired, and saw the next two shots fired. According to Harris it was about five or six minutes between the firing of the first shot and the next two. She saw Mainor and Chesson “tussling” during that time. Harris stated: “. . . George was holding Jessie by the wrist: the hand that he had the pistol in, George was holding it.” She could not see what, if anything, George was doing with his other hand since she could not see it. Harris could only see one gun but could not see it at the time of the last two shots because, at that time, the gun was between Mainor and Chesson.

Mary Louise Butler testified in substance, that she was Jessie Mainor’s girl friend and that on July 12, 1975, about 11:00 P.M., she saw Mainor at her home on Foster Street. Mainor told her “. . he and some dude had got into it up at Lewis’ house” and that he had shot a man. He gave her the pistol that night and told her to keep it. Mainor told her: “. . . that was George’s gun that he had taken from him” and “. . . that he had shot George with George’s gun.” She and Mainor left her home and went eventually to his home, where they then went to bed. Butler heard knocking on the door about 2:00 A.M., but as she was getting up to answer the door, the police knocked in the door. When the first knocking was going on, Jessie told her to keep quiet, which she did. Butler went to police headquarters where she talked to the police. She then went home and got the pistol Jessie had given her and gave it to the police.

The appellant had a motion which had been filed to suppress the pistol as evidence as being the product of an illegal search. It was called to the court’s attention out of the presence of the jury and was denied by the trial judge. Also, at this point in the trial, and not in the presence of the jury, the attorney for appellant stated:

. .as far as the witness, Dorothy Harris, where the Court sustained the State’s objections to my going in to some past difficulties in questioning that witness, I would offer to show to the Court that my purpose in doing so was to show some difficulties that had occurred between the Defendant and that Young or a friend of hers within about two months of the date of this incident, that this witness had stated to the Defendant that she would get even with him and get him one way or the other. . . . We were trying to show bias and prejudice on the part of the witness. . . .”

The trial court’s reply to that was: “Okay. Bring the jury in.”

D. G. Johnson, a detective of the Montgomery Police Department, testified in substance, that he and C. H. Brannon, his partner, investigated the shooting in question. He saw the deceased at the 1301 French Street address and talked with three witnesses. An ambulance took the body away. Johnson and Brannon went to appellant’s apartment and knocked on the door and received no answer. After knocking again and receiving no answer, they went downstairs to the manager’s apartment. He was not there and they went back to appellant’s apartment and knocked again and announced themselves as police officers. They heard footsteps and somebody bumping into something, and “knocked the door down.” Jessie Lee Mainor and Mary Butler were in the apartment. Jessie was standing by a chest of drawers and they arrested him at that time.

Johnson further testified, in substance, that at the time appellant was arrested he read to appellant his rights from a card he had. He read the card into the record. (The card as read was the complete “Miranda warnings.”) Johnson said that after reading the card to the appellant, appellant stated he understood those rights.

The witness further testified, in substance, that at 5:00 A.M., July 13, 1975, the appellant gave the statement to him which he wrote down. Before appellant gave the statement Johnson read to him from a rights form, which was kept at police headquarters. The form was identified by the witness and admitted in evidence as State’s Exhibit No. 3. The appellant refused to sign the form, Exhibit No. 3, but it was identical to the one read to him at the time of his arrest, as far as his constitutional rights were concerned. It showed appellant refused to sign it, but Johnson stated that when the same rights were read to him at the time of his arrest, appellant understood them. The State further showed by the testimony that the statement made by appellant to the witness was voluntarily made. Johnson testified the statement was made by appellant and signed by appellant after it was read to him. Johnson said he also signed the statement. The statement, which was in the nature of a confession, was read to the jury and admitted in evidence as State’s Exhibit No. 4.

The statement, Exhibit No. 4, contained the following questions and answers:

“Q. Did you shoot up Lewis [sic] place last week?
“A. No.
“Q. Have you ever fired a gun in his place before tonight?
“A. No.”

The appellant objected to the admission of that part of the statement as being irrelevant and prejudicial. His objection was overruled.

In the statement the appellant stated that when he walked into the house a black male, whose name was unknown to him, started calling him a “b. Mainor stated he was standing by a woman whom the deceased called a "b_” He stated the deceased then “went into his pockets” and that he tried to shoot the deceased’s hand but hit him in the leg. Mainor stated that he pulled his gun and “. . , I grabbed his hand and tried to hold him off of me. . . , We tussled for a few minutes and my gun went off again.” He stated that he took deceased’s gun and left by the front door.

There were other statements by the appellant contained in Exhibit No. 4, but the above is sufficient as far as the issues, ■raised on this appeal, are concerned.

Willie Lewis was recalled as a witness for the State and we here quote the record with regard to his testimony given, at this time, in answer to questions propounded by the assistant district attorney:

# # # * * #
“Q Now, Mr. Lewis.
“A Yes, sir.
“Q Did you see Jessie Mainor, the Defendant, approximately a week prior to his shooting of Mr. George Chesson?
“A Yes.
“Q Did you see him at your house?
“A Yes.
“Q At that occasion—
“MR. COLLIER: Your Honor, at this time, if I anticipate what Mr. Price is going into, I would like to have this testimony, to have an in camera hearing on this testimony prior its being presented.
“THE COURT: Very well.
“BAILIFF K. W. JONES: The jury will go into the jury room, please.
“(The jury goes to the jury room.)
“OUTSIDE THE PRESENCE OF THE JURY
“THE COURT: Very well, what is it now, Mr. Collier?
“MR. COLLIER: Your Honor, I believe Mr. Price — if I am wrong, Mr. Price can correct me — I believe tliat Mr. Price is attempting, or was intending to solicit from this witness certain acts or actions of this Defendant not against the decedent approximately a week before the events here, which would tend, I guess, to go toward the reputation or character of the Defendant.
“MR. PRICE: No.
“MR. COLLIER: And his character or reputation is not yet in issue; and prior acts directed to someone other than the decedent — I am not even sure that prior acts directed to the decedent would be admissible — but something that happens over a week before the alleged events of this case, would hardly be relevant to this case.
“THE COURT: Well, let’s ascertain first: what do you want to show, Mr. D. A.”
“MR. PRICE: Okay, Your Honor, just one question: The statement is in evidence which Your Honor has already overruled Mr. Collier’s and Mr. Walden’s objection to it, that part of the statement where ‘Did you shoot up Lewis’ place last week?’ Now, that part is in evidence at this stage, Your Honor, and the Defendant’s answer was, no. I want to ask Mr. Lewis one question: did he, or did he not; and then, I will go ahead and tell Your Honor, another question I want to ask Mr. Lewis, but I don’t think that the witness understood it on direct examination this morning; and that is, was Jessie Mainor at his house earlier that night, and did he leave and come back; and that is all I recall this witness for.
“THE COURT: Very well, I am going to allow him to answer it: overruled.
“MR. PRICE: Thank you, Your Honor.
“MR. WALDEN: Judge, are you going to ask about someone a week before then?
“THE COURT: What is the form of the question?
“MR. PRICE: Your Honor, what’s in evidence here is that, ‘Did you shoot up Mr. Lewis’ house’ — the Defendant is not my witness — ‘a week before?’ Answer, ‘No.’ I want to ask Mr. Lewis this, and I think that the answer would simply be, yes, yes, and then, and then the other question—
“THE COURT: It was for the purpose of contradiction?
“MR. PRICE: Yes, sir.
“MR. WALDEN: You see, Judge, let me say this about this: that is a statement that’s in that thing, we have got an objection to. You overruled the objection.
“MR. PRICE: That’s right.
“MR. WALDEN: But that’s not relevant to the issue in this case, and it’s not used for any purpose, and it’s just prejudicial, and its evidence of a prior crime, if it is a crime, which is not related to this; and the Court knows that you can’t bring other crimes on this—
“THE COURT: No, this wouldn’t be tantamount to a crime.
“MR. WALDEN: Well, what is it if it says that he goes in there and shoots—
“THE COURT: It’s for contradiction.
“MR. PRICE: Contradiction of this witness’s testimony.
“MR. WALDEN: If he goes in there and shoots up the house, that’s a crime.
“THE COURT: Well, that wouldn’t necessarily be so, it could be an accident, shooting up—
“MR. WALDEN: Yes, but we have an exception, Your Honor.
“THE COURT: I think that he had a right, Mr. Walden, to offer that testimony in contradiction.
“MR. COLLIER: Your Honor, I would like to find out one other thing: Mr. Price is going to ask the second question, and I’d like to know if this witness has discussed this case with Mr. Price, or any other witnesses since his testimony this morning?
“MR. PRICE: Let the record show—
“THE WITNESS: No.
“MR. PRICE: He can answer that. Let the record show that in preparing this case, and to continue to prosecute this case, it’s my responsitility [sic] to prepare my witnesses and my talking to my witnesses, and I have—
“THE COURT: He is authorized to do that.
“MR. COLLIER: Your Honor, what I am asking is this: if Mr. Price intends to have this witness called back and to have him contradict the statement that he made on the stand this morning—
“MR. PRICE: Well, it’s not contradiction, Your Honor.
“THE COURT: No, it’s correction of this.
“MR. COLLIER: He said his second question, Judge, was to contradict some testimony that he gave on this morning.
“MR. PRICE: No, sir, no, sir, I didn’t say that.
“MR. COLLIER: You said that you were going to ask him if he—
“MR. PRICE: No, the second question, Your Honor, just goes on to further clarification of additional evidence. It’s not to contradict anything that Mr. Lewis said this morning.
“THE COURT: Very well, bring the jury in.
“(The jury returns back to the jury box.)
“IN THE PRESENCE OF THE JURY
“Q (By Mr. Price) Now, Mr. Lewis, I believe I asked you, sir, did you have occasion to see the Defendant, Jessie Mainor, at your house approximately one week prior to the night that George Chesson was shot?
“A Yes, sir.
“MR. COLLIER: Your Honor, can I assume that we have an objection based on the in camera hearing?
“THE COURT: (No ruling)
“Q (By Mr. Price) And I’ll ask you, sir, did the Defendant, Jessie Mainor, shoot up the house—
“MR. WALDEN: We are going to object to the form of that question.
“THE COURT: Well, wait until he finishes the question.
“Q (By Mr. Price) — at that time?
“A Yes.
“MR. WALDEN: Now you see there, before I had a chance to object.
“THE COURT: Well, I didn’t hear the question.
“Q (By Mr. Price) I’ll ask you, Mr. Lewis, did Jessie Mainor have an occasion to shoot up, to shoot in your house at that time, the week prior to the time that Jessie Chesson was shot? Now, hold your answer.
“THE COURT: And you object.
“MR. WALDEN: Yes, sir, we object to that. We object to the form of the question, and we object further, that it is incompetent, irrelevant and has no bearing—
“THE COURT: As I have stated, Mr. Walden, it’s admitted solely for the purpose of contradiction, if any: overruled.
“Q (By Mr. Price) Did the Defendant, Jessie Mainor, shoot up your house or shoot in your house on that occasion?
“A That’s right.
“MR. WALDEN: We object.”

We have quoted the record at great length because we consider the questions raised to be a matter of considerable importance.

Richard A. Roper, a State toxicologist, testified, in substance, that he performed a post-mortem examination of the body of George Chesson July 15, 1975. He found four wounds on the body. Two of the wounds were what is commonly called defense wounds. Roper removed two bullets from the body and stated that death resulted from hemorrhage and shock which resulted from gunshot wounds to the right thigh in which a major artery and vein were penetrated-. The two bullets recovered were .38 caliber. Roper found no powder burns on the wounds and said the weapon when fired was not adjacent to or against the body.

The State rested and the appellant made a written motion to exclude the evidence and for a directed verdict on the grounds set out in the motion. The motion was overruled and denied by the trial court.

The appellant offered no testimony and rested.

There is substantial evidence in this case tending to prove every element of the offense for which the appellant was convicted. When that is the situation a motion to exclude the evidence is properly overruled and a jury question presented. Massengale v. State, 36 Ala.App. 195, 54 So.2d 85.

We come now to a consideration of the appellant’s contention that the trial court committed reversible error in the admission of that part of the appellant’s confession in which he was asked about another offense totally disconnected with the offense charged and the trial court permitting the State, over appellant’s objection, to prove by one of the State’s witnesses the commission of said offense on the theory of contradiction.

The appellant did not testify in this case and did not present any witnesses. The only evidence that it could contradict was a part of the confession the State offered in evidence. The appellant objected to the admission of that part of the confession, or it would be more correct to say, to that part of the statement.

In presenting a written confession to a jury the law does not require the State to present all of it. The State may present or cause to be read to the jury that part of the confession that is admissible evidence.

In Mullis v. State, 258 Ala. 309, 62 So.2d 451, the court said:

“Likewise there was no error in reading portions of the signed written confession to the jury, the solicitor being of opinion that certain portions of the confession were inadmissible. The defendant had the right to introduce the entire confession . . . .”

The prosecution is not injured if the trial court rules inadmissible statements contained in a written confession which have no reference to the charge against the defendant and which if offered in any other manner would be clearly inadmissible. If the appellant in the case before us had taken the stand and testified, the questions and answers in that portion of the confession objected to, addressed to him during his testimony, would have been clearly subject to an objection. It would and does constitute an effort to prove an offense totally disconnected with the offense charged which was not necessary to prove in order to show a fact related to the appellant’s guilt of the offense charged. Of course, proof of other offenses are sometimes admissible as exceptions to the general rule of being inadmissible, but this is not one of the exceptions. It in no way shows intent, scheme or pattern of actions. It was not an effort to conceal relevant evidence or a part of the res gestae. Its proof does not reveal a fact relevant to the appellant’s guilt. Those statements should not have been admitted as part of the confession. Had those questions and answers been ruled out there would have been nothing to contradict. Evidence and testimony later offered by the State that the appellant “shot up” or “shot in” the house in question, about a week before the killing involved in the case before us, merely proved another disconnected crime and were inadmissible.

If officers, untrained in the law of evidence, in taking confessions of guilt of a particular offense are then permitted in the same written statement to explore the entire life of a defendant and question him or her as to many other offenses and the rules of evidence then hold that since the proof of other offenses are contained in the same written instrument with the confession of guilt of the offense charged that that proof is admissible; such a rule would have a tragic legal effect. It would constitute a way to prove something out of court and without the guidance of a judge and quite often without counsel that could not be proved in court during a trial. It might have the effect of forcing the defendant to take the stand and testify in the trial of the charge against him or it might prevent him from so doing. It certainly brings to court illegal and incompetent evidence. Such a rule would clear the pathway for over zealous officers to always ask such questions in taking confessions, which would amount to no more or less than a trick, scheme or device to engulf the ignorant and unwary in a sea of incompetent and prejudicial evidence. The law of evidence does not seek verdicts at the hands of courts or juries on prejudice or bias obtained by the use of such evidence. There has been a long legal struggle to free confessions from unjustly applied police force, to soften the impact of in-custody questioning and to impose the “Miranda warnings.” We must not turn the wheels of justice back now, even in confessions otherwise lawfully obtained by making such confessions the instrument for the admission of illegal, incompetent and prejudicial testimony or evidence.

In Hyde v. State, 13 Ala.App. 189, 68 So. 673, the defendant was charged with the sale of prohibited liquors. The State witnesses testified that on June 14, 1914, they bought from the defendant some beer and whiskey. The solicitor was then permitted over the objection and exception of the defendant to ask one of the said witnesses whether or not prior to this date, he had seen a large quantity of whiskey being carried to the defendant’s house and the witness answered, “Yes.” The court in this case said:

“If the defendant had been charged with keeping for sale prohibited liquors, which offense can usually be established only by circumstantial evidence, or if the evidence relied on for a conviction of a sale had been circumstantial, and not positive, then we conceive that the question to and answer of the witness would have been entirely competent. . . . But where, as here, he is only charged with a sale, and the evidence relied on for establishing his guilt is not circumstantial, but positive . . . the rule is different.
“Under the complaint, which charged only a sale, if the jury believed the testimony of these witnesses as to the main fact, the sale, then the collateral fact was entirely immaterial; . . .. The only effect, therefore, of allowing these witnesses to testify as to the collateral fact was to uselessly multiply the issues to the defendant’s detriment.” [Citations and bracketed material omitted.]

The defendant put on witnesses, in the above mentioned case, that were present at said sale according to the testimony of the State’s witnesses, who testified that no such sale took place. On cross-examination of one of those defense witnesses, the solicitor was allowed over objection and exception of the defendant to ask the witness if he, the witness, had not bought some whiskey from the defendant on the Sunday next before June 14, 1914. The witness answered, “No.” The State, over defendant’s objection and exception, was permitted to show by the same witnesses that had testified to the sale by defendant on June 14, 1914, that on the preceding Sunday, said witness had bought some whiskey from the defendant. In answering the question thus raised the court said:

“. . . The court erred in admitting this testimony, whether the purpose of it was to show a separate and distinct sale from that relied on for conviction (Moore v. State, 10 Ala.App. 179, 64 So. 520), or whether its purpose was to impeach the defendant’s witness, . . . who denied buying whisky from defendant. It is not permissible to impeach a witness as to an immaterial matter . . .[Citations omitted].

A witness’ testimony cannot be impeached upon an immaterial question. Jones v. State, 16 Ala.App. 154, 75 So. 830.

It would be a strange rule of evidence to hold that an immaterial statement in a confession could be impeached when the same immaterial statement made in open court and under oath could not be impeached.

That part of the confession objected to should have been excluded or not admitted in evidence over the objection of the appellant, and the testimony of the State’s witness that the appellant “shot up” or “shot in” the house was immaterial, incompetent and prejudicial, and multiplied the issues to the appellant’s detriment. Reversible error is thus made to appear.

That which has been said is not a reflection on the officers involved in this case. We are convinced they acted in an honest and diligent manner, but do see how such a situation could be used in the future as an instrument of great harm. The immaterial statements in the confession and the testimony of the State’s witness to the prior offense does necessitate a reversal regardless of the absence of motive in bringing them into being.

After a careful reading and study of the record in the case before us, we do not find merit in any of the other contentions of the appellant for reversal. We have searched the record for error and have found none except that which is set forth in this opinion.

It is therefore ordered and adjudged by this court that for the error noted the final judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings therein.

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

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

PER CURIAM.

At the request of the State, we extend the opinion to include the following facts:

“1. No witness testified to seeing who fired the shots immediately after the convict entered the house on the night of the killing.
“2. There is no evidence in the record at to whom or what, if anyone or anything, the first shots on the night of the killing were directed.
“3. There is no evidence in the record of any difficulty or other relationship of any sort between the convict and the deceased until the minute or two immediately prior to the killing when they ‘tus-seled’ over the convict’s gun.”

After considering these facts in addition to those set out in the original opinion, and the arguments in briefs in support of the application for rehearing, we are still of the opinion the original decision was correct.

OPINION EXTENDED.

APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Jessie Lee MAINOR, alias v. STATE. Ex parte State of Alabama ex rel. Attorney General.
    SC 2598.
    Supreme Court of Alabama.
    July 29, 1977.

      William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
    Bob E. Allen, Montgomery, for respondent.
   SHORES, Justice.

In denying this writ, we do not wish to be considered as agreeing fully with the statement of the Court of Criminal Appeals which classified the references to the earlier shooting as immaterial. The state’s evidence to the effect that defendant had shot into the house earlier appears to have been improper rebuttal. Had this evidence been offered in the state’s case in brief, however, it may have been relevant and material either on the issue of identity or to negate accident. If the case is retried, we do not apprehend that the prosecution will confuse the applicable rules of substantive evidence with those governing impeachment by proof of a prior self-contradictory statement.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and BEATTY, JJ., concur.


author: BOWEN, Judge.

text:
    Walter ARNOLD, Jr. v. STATE.
    5 Div. 373.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.

      Richard D. Lane, Auburn, for appellant.

      William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for robbery. In accordance with the verdict and punishment fixed by the jury the trial court entered judgment and sentenced the appellant to thirty-five years in the penitentiary.

The appellant sets forth four reasons why his conviction should be reversed: (1) The admission into evidence of a photograph of the victim’s bandaged head; (2) the admission into evidence of a photograph depicting blood stains on the floor of the grocery store; (3) the insufficiency of the evidence; and (4) the admission into evidence of a confession by the appellant.

The facts in this case are simple. Although the sufficiency of the evidence has been placed in issue by a motion to exclude the state’s evidence, a request for an affirmative charge, and a motion for a new trial, a detailed narration of the testimony is not necessary.

The victim of the robbery, Lucille Trim-ble, had seen the appellant in her grocery store on several prior occasions. She testified that at 1:00 P. M. on December 19, 1975,. the appellant came into her store, handed her a piece of paper with a name on it and then “landed” or hit her by the side of the head. Mrs. Trimble cried out, “Oh, Lord, have mercy! Please don’t kill me.” The appellant hit her on the head again and she started bleeding profusely. She attempted to run but fell. As she fell the appellant hit her a third time.

The appellant then went to the cash register and took all the paper money. He retrieved a large handbag from another room in the store and ran. The appellant took at least sixty dollars in currency.

Mrs. Trimble called the police from her sister’s house and was taken to the emergency room of the hospital. Two wounds on her head required stitches and bandages were placed over these two areas. From the emergency room Mrs. Trimble went to the police station and recounted the events of the robbery.

The appellant was arrested the day of the robbery and gave a signed confession after being advised of his constitutional rights. This statement by the appellant acknowledged his guilt in the crime and was consistent with Mrs. Trimble’s account of the robbery.

After giving the police this statement, the appellant showed them where he had hidden the money and the clothes he was wearing when he committed the robbery.

The appellant did not testify and only produced one character witness on his behalf.

I

Gary Knight is a sergeant with the Opeli-ka Police Department. He testified that he took four photographs the day of the robbery in connection with his investigation of the crime. After proper identification, three of these photographs were admitted into evidence. The appellant objected to the admission of two of these photographs. One photograph depicted the victim’s feet and some blood stains on the floor of the grocery store. Another photograph depicted two small bandages on the back of the victim’s head. A third photograph which was not objected to showed Mrs. Trimble pointing to the cash register from which the money was taken. The fourth photograph, to which the trial court sustained the objection of the appellant and did not allow into evidence, depicted a blood splattered couch in the back of the store.

The appellant contends that the admission of the two objected to photographs was misleading and prejudicial to the accused.

The general rule in this area is that photographs are admissible in evidence if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered. Their admission is within the sound discretion of the trial judge. Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); 6 Alabama Digest, Criminal Law, «=» Number 438 et seq. In Alabama, this rule favors the admission of photographs and affords the trial court a wide and liberal latitude in the admission of photographs illustrative of a criminal transaction and the surrounding circumstances. Lewis v. State, Ala.App., 339 So.2d 1035, cert. denied, Ala., 339 So.2d 1038 (1976).

Photographs of the scene of the crime are admissible in evidence. Farris v. State, 57 Ala.App. 390, 328 So.2d 640 (1976); Chavers v. State, 57 Ala.App. 268, 327 So.2d 762 (1976); Snow v. State, 50 Ala.App. 381, 279 So.2d 552, cert. denied, 291 Ala. 798, 279 So.2d 558 (1973). Here the photograph depicting blood of the robbery victim on the floor of the store that was robbed was properly admitted into evidence. Green v. State, 252 Ala. 513, 41 So.2d 566 (1949).

To constitute robbery, the one robbed must be deprived of his property by force or fear. Henderson v. State, 172 Ala. 415, 55 So. 816 (1911). The blood stained floor in the store where the robbery was committed tended to show that some violence was involved and the gravity of the force employed. Additionally, the picture was illustrative and in corroboration of the victim’s testimony that she was bleeding and bleeding profusely (“blood started pouring”). Mrs. Trimble testified that after being hit she “went running from him” and fell. Sergeant Knight testified that this picture was one of the photographs taken of the interior of the grocery store. The photograph tended to corroborate the victim’s testimony concerning the commission of the crime. As such, it was relevant and probative. It was therefore property admitted by the trial court.

The admission of the photograph depicting two bandages on the victim’s head was also proper. The size of the bandages was not such that that characteristic alone could be said to have prejudiced or misled the jury. While the photograph did not depict the actual wounds, it did shed light on their location. Brown v. State, Ala.App., 331 So.2d 820 (1976). As such, the photograph was relevant to a material issue.

The appellant cites the case of Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389 (1930) for the proposition that bandaged wounds have no probative value. The situation presented here bears no analogy whatever to that presented in Birmingham Baptist Hospital. In that case the Alabama Supreme Court held that the admission of a photograph representing a female plaintiff lying in bed, with an abdominal wound covered with cloths, was prejudicial error in an action for the negligent infliction of harm. There the plaintiff was a young and attractive woman and the court noted that the photograph would very likely tend to distract and appeal to the sympathy of the jury because of the victim’s age and beauty. Also, in that case, there was another photograph introduced in evidence which showed the wound itself.

Here the objected to photograph merely depicts the back of the victim’s head. We have studied the photograph and do not think it would tend to elicit any extraordinary sympathy for the victim. We certainly do not see how its admission was prejudicial to the appellant.

II

The appellant also alleges that the trial court committed reversible error in the admission of the confession of the appellant. The central contention raised in this regard is that the appellant did not make a free and intelligent waiver of his rights because the appellant was “slow” and illiterate. Specifically there was testimony that the appellant was “slow”, was below normal intelligence, could only read and write a little, had only completed the eighth or ninth grade in school, could not spell the words “rights” and “waiver”, could not give a definition of “understand” at trial, and did not know what “waiver” and “to waive” mean.

At a hearing to determine the admissibility of the confession held outside of the presence of the jury, the state presented testimony that the appellant was advised of his constitutional rights. These rights are commonly referred to as the “Miranda” rights and were in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There was testimony that both the rights and the waiver of rights form were read to the appellant; that the appellant read them both and that he stated he understood them.

We are of the opinion that the confession of the appellant was freely and voluntarily given. The issue raised by the appellant has previously been answered by the Alabama Supreme Court in Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967). While the accused’s intelligence, character, and situation at the time of the confession are important considerations in determining whether that confession was voluntary, the fact that the accused was of tender age or weak intellect will not alone render the confession inadmissible in evidence as involuntary, Elrod, supra; or where the accused was of weak mentality, feeble-minded, under mental stress or an illiterate, Elrod, supra; or was not in full possession of his mental faculties, Lokos v. State, 278 Ala. 586, 179 So.2d 714, vacated in 408 U.S. 935, 92 S.Ct. 2854, 33 L.Ed.2d 749, on remand, 290 Ala. 122, 274 So.2d 303 (1965); or that the accused was an “ignorant” man, Porter v. State, 55 Ala. 95 (1876).

A confession of crime is not inadmissible merely because the accused, who was not insane, was of less than normal intelligence. Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, rehearing denied, 352 U.S. 1019, 77 S.Ct. 553, 1 L.Ed.2d 561 (1957) (accused left school at age 16 while still in the third grade; his mother testified that he had always been “thickheaded”; the court commented that he was “certainly of low mentality, if not mentally ill”); Hoober v. State, 81 Ala. 51, 1 So. 574 (1886) (accused was a person of “weak mental capacity”); Peck v. State, 147 Ala. 100, 41 So. 759 (1906) (a “weak-minded” person). Generally, see Annotation: mental subnormality of accused as affecting voluntariness or admissibility of confession. 69 A.L.R.2d 348. Thus while the fact that a confession was made by an illiterate or one with below normal intelligence is to be taken into consideration and viewed as a factor indicating that the confession was lacking in voluntariness, a confession is not inadmissible merely because the accused was of less than normal intelligence.

The appellant also argues that the way the waiver of rights form was read to the appellant confused him and rendered his confession involuntary. The waiver of rights form is as follows:

“I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”

A detective read this form to the appellant exactly as it appears above. The appellant asserts that this was confusing because the form was read in the first person singular pronoun (I) and not in the second person (you). Defense counsel argues that because of this the appellant did not know who was waiving his rights. In warning an accused of his rights under Miranda, although the warning must be complete and accurate, no precise language is required so long as the substance of the Miranda warning is given. Jones v. State, 47 Ala.App. 568, 258 So.2d 910 (1972). Likewise, no set pattern for the manner of waiving the rights is prescribed. Lloyd v. State, 45 Ala.App. 178, 227 So.2d 809 (1969); Dotson v. State, 288 Ala. 727, 265 So.2d 162 (1971). The waiver of rights was signed by the appellant. Although the appellant testified that he was “confused” and “nervous” when he was placed under arrest and being questioned, there is no testimony to indicate that the appellant was confused or in doubt as to what he was waiving or who was waiving his rights. The argument of the appellant is without merit when considered in light of the totality of the circumstances surrounding the giving of the confession.

III

The state made out a prima fa-cie case of robbery. The testimony of the victim alone was sufficient to accomplish this. Godbee v. State, 56 Ala.App. 174, 320 So.2d 107 (1975). There was no defense presented. The state’s evidence was sufficient for submission to the jury, and if believed, would support a conviction for robbery. There was no error in the trial court’s refusal to grant the appellant’s motion to exclude the state’s evidence in this case. Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974); Evans v. State, 39 Ala.App. 404, 103 So.2d 40, cert. denied, 267 Ala. 695, 103 So.2d 44 (1958).

Having reviewed the entire record as required by law and finding no error adverse to the substantial rights of the appellant, we are of the opinion that this case is due to be and is hereby

AFFIRMED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Walter ARNOLD, Jr.
    SC 2629.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   BEATTY, Justice.

WRIT DENIED.

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