author: WRIGHT, Presiding Judge.

text:
    James Herbert HOLLINGSWORTH v. Nancy Key Hollingsworth WRIGHT.
    Civ. 1257.
    Court of Civil Appeals of Alabama.
    Jan. 10, 1979.
    Rehearing Denied Feb. 7, 1979.

      James Herbert Hollingsworth, pro se.
    Louis P. Moore and W. Allen Grocholski, Fayette, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. Defendant and cross-claimant husband appeals pro se.

This action began by the wife filing a complaint for divorce, custody, support and alimony and division of property on May 21, 1976. It has continued with unabated fury since that date. There have been motions, counter-motions, petitions for habeas corpus and rules nisi, contempt citations, other pleadings and orders in the trial court totaling some 150 pages in the record. There have been at least four oral hearings with testimony before two judges. Both parties have been held in contempt of court at least once. There has been a prior petition for writ of mandamus filed and argued in this court and denied. It was only after much misuse of the process and time of the trial court that a judgment was entered on November 5, 1976, granting a divorce for incompatibility. That judgment contained a temporary grant of custody and support of the minor child to the mother. Other matters relating to division of property were reserved for future disposition. That judgment also contained a prohibition against the mother associating with her alleged lover. Such prohibition had been a part of prior temporary orders of custody and had precipitated charges by the husband of violations with hearings as to contempt of court. Its inclusion in the judgment of November 5 caused a continuation of charges, counter-charges and hearings thereafter.

On January 10, 1977, the judge who had previously had the case, heard the oral testimony and entered the prior judgments and orders retired from the bench. Immediately thereafter the parties began to file petitions for rule nisi to be heard before the succeeding judge. These petitions were set for hearing on February 24, 1977:

At the hearing before the court on February 24, 1977, after discussion between the judge and counsel for both parties, in the presence of the parties, concerning the pending pleadings, the judge stated into the record that by agreement of counsel he was going to talk with the 8-year-old minor child of the parties in camera. Upon return to open court, the judge observed that he understood there had been a disturbance between the parties while he was away. In paraphrase, he said that the hearing apparently was to be a continuation in court of the bickering, allegations and counter-allegations which had previously gone on out of court; that the court was being used to get on record such accusations and counter-accusations. The judge then gave counsel five minutes to consult with their clients. Thereafter, each counsel on behalf of his client admitted to failure to comply with prior orders of the court. Each was found in contempt and assessed punishment.

At this time the judge stated to counsel that he had already listened to extensive testimony and intended to listen to it all. After doing so, he would issue a final order in the case which would supersede any prior orders. The court made this statement in response to a complaint by the wife’s attorney of the uneonstitutionality of the order of the prior judge of November 5, 1976, restraining the wife from associating with or being in the company of her alleged lover.

It is alleged by counsel for the wife in brief that it was orally agreed in court by both counsel at that time that a final order relating to the matters not finally decreed in the judgment of November 5,1976 might be entered by the judge after listening to the testimony then on tape taken at prior hearings before the preceding judge. The record does not disclose such agreement. However, as can be seen, the judge stated his intention and neither defendant nor counsel entered objection. Counsel for plaintiff had previously moved for entry of a final decree on January 28, 1977.

Thereafter, on March 25, 1977, defendant through counsel moved that a final order of custody be entered amending the temporary order of November 5, 1976 and granting custody of the child to the paternal grandmother. That motion was answered by plaintiff on April 19. On June 14, 1977, the court entered a final judgment as to custody, support and division of marital property, both real and personal.

Defendant pro se first contends that the judgment of June 14, 1977 was rendered as a result of a post trial motion under Rule 59.1 of the Alabama Rules of Civil Procedure and more than ninety days expired between motion and judgment. We find no basis for defendant’s contention. There was no post-trial motion made by either party within the meaning of Rule 59.1. The Rule applies only to post-trial motions filed under Rules 50, 52 and 59. Cockrell v. World’s Finest Chocolate Co., Inc., 349 So.2d 1117 (Ala.1977).

Defendant next contends that the judgment of June 14, 1977 reversed the judgment of November 5, 1976. The contention is without foundation. The matters made final by the judgment of November 5 were not altered by the judgment of June 14, 1977. The latter judgment merely made final matters entered interlocutorily or deferred by the former.

Issue IV presented by defendant has no legal foundation and will not be discussed.

Issues V and VI complain that the June 14 judgment was entered contrary to Rules 59(g) and 78. We say again that Rule 59(g) applies only to post-trial motions. The only motions pending at the time of the rendering of the June 14 judgment were motions by both parties requesting entry of final judgment as to custody of the child. The judge had previously interviewed the child in camera by agreement of the parties and had announced in open court that he was listening to the taped testimony previously heard orally by the preceding judge. He told the parties and counsel that when he completed that task, he would then consider what he had heard on tape and the oral testimony he had heard in court and render final judgment. There was no objection by defendant or counsel to that procedure.

Whether that procedure was proper if due objection had been made need not be considered. By failing, to enter objection at the time, either personally or by competent counsel, any error was waived. Rule 46, ARCP. We are not cited nor do we know of any absolute prohibition, not subject to being waived, against the action of the judge in this case. It was accepted in principle by our Supreme Court in the case of Hodge v. Joy, 207 Ala. 198, 92 So. 171 (1921). The only legal effect indicated in that case is that the decision of the trial court on the facts is not accorded the usual presumption of correctness upon appeal. We will follow that precedent and will review the evidence without any presumption in favor of the findings of fact by the trial judge.

The remaining issue presented by defendant is that the judgment of June 14 is contrary to the evidence. We do not agree.

As to custody of the child, we find no clear and convincing testimony that an award of custody to the mother of the minor daughter is detrimental to the best interest of the child. There was testimony of the defendant that the mother was a drug addict, alcoholic and adulteress. There was some support of these charges in the testimony of other of defendant’s witnesses and by circumstances. We are not convinced of the truth of most of such testimony. It was without dispute that the mother worked every day as a beautician. The testimony that she took drugs and drank four or five beers every morning before she went to work is rather difficult to believe. The charge of improper conduct with another man is somewhat supported by circumstances of association. The record discloses that the mother is now married to that man. This court does not approve of the conduct charged, if true. However, the courts have held that even commission of adultery by the mother does not prohibit a grant of custody when viewed with attendant circumstances and in light of the best interest and welfare of the child. Eskew v. Eskew, 57 Ala.App. 512, 329 So.2d 567 (1976).

The evidence and the record of these proceedings clearly indicate the father is imbued with a spirit of vindictiveness toward the mother, with little consideration of the welfare of the child. He has through promises and gifts alienated the wife’s child by a prior marriage. By his own admission, he has told the eight-year-old girl things about her mother, even if true, she should not have heard. The father has never requested custody for himself, but that custody be granted his 75-year-old mother. Further iteration of the evidence is unnecessary. We find no error in the grant of custody to the mother.

Custody being properly in the mother, it cannot be error to grant support of $125 per month for the child. Neither can it be error for the wife to be given $1,500 and the few items of personal property as a division of property. The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Ex parte James Herbert HOLLINGSWORTH.
    78-297.
    Supreme Court of Alabama.
    April 6, 1979.
    SHORES, Justice.
   WRIT DENIED.

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


text:
    Melissa L. SHOTTS v. Edith J. WRIGHT.
    Civ. 1703.
    Court of Civil Appeals of Alabama.
    March 28, 1979.
    B. Wayne Randall of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    James K. Davis of Fite, Davis & Fite, Hamilton, for appellee.
   WRIGHT, Presiding Judge.

This is a negligence action filed by Edith Wright, plaintiff, against Melissa Shotts, defendant. A jury found in favor of defendant. Plaintiff’s motion for a new trial was granted. Defendant appeals. We affirm.

It is the rule that when a trial court grants a motion for a new trial without specifying the grounds therefor, and one of the grounds in the motion is that the verdict is contrary to the evidence, the appellate court presumes that the trial court granted a new trial because it concluded that the verdict was contrary to the great preponderance of the evidence or was unjust in light of the evidence. Clark v. Chitwood, 339 So.2d 1017 (Ala.1976). That rule applies in this case.

On appeal defendant relies on the rule most often cited from the famous case of Cobb v. Malone, 92 Ala. 630, 9 So. 738 (1890). She argues that the evidence was in conflict in the case at bar. She contends the record reveals abundant testimony which, if believed by the jury, supported the jury’s finding. For that reason, the defendant argues that the trial court’s ruling was arbitrary, prejudicial, and amounted to an infringement of the defendant’s right to trial by jury.

In Adams v. Lanier, 283 Ala. 321, 216 So.2d 713 (1968), the defendant presented a similar argument. He argued that since there was evidence on both sides and some evidence to support the jury’s verdict, the trial court erred in granting a new trial for plaintiff. Defendant in Adams also cited the language from Cobb v. Malone providing that a verdict should not be set aside because it may not correspond with the opinion of the court as to the weight of the testimony, or because it is against the mere preponderance of the evidence. The court, however, in affirming the trial court’s grant of a new trial, held that the cited rule was for the guidance of the trial court which must grant or deny the motion for new trial. The applicable rule of appellate review is found in a latter portion of the Cobb v. Malone decision. That rule is: “[DJecisions granting new trials will not be reversed, unless the evidence plainly and palpably supports the verdict.” See cases cited in 2A Ala.Dig., Appeal & Error @=>1015(1). It has long been held that upon an appeal from the granting of a motion for new trial, based upon the ground that the verdict was contrary to the evidence, there is a presumption in favor of the action of the trial court in granting the motion when there is a conflict in the evidence. Lee v. Moore, 282 Ala. 461, 213 So.2d 197 (1968).

No purpose will be served in reciting the evidence here. It is sufficient to say that defendant’s following vehicle struck plaintiff’s vehicle in the rear while plaintiff was turning left. There was conflicting testimony as to whether plaintiff gave a proper signal. The trial court was able to see and hear the witnesses, to judge their demeanor and credibility. From our examination of the record, this court cannot say that the jury’s verdict was plainly and palpably correct, or that the trial court’s judgment was plainly and palpably wrong. Therefore, in keeping with the presumption in favor of the trial court when the evidence is in conflict, we affirm the grant of a new trial to the plaintiff.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Calvin D. MALLORY v. ALABAMA REAL ESTATE COMMISSION.
    Civ. 1734.
    Court of Civil Appeals of Alabama.
    March 28, 1979.

      Jerry N. Quick, Trussville, for appellant.
    Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for appel-lee.
   WRIGHT, Presiding Judge.

We are asked to review the circuit court’s dismissal of a real estate broker’s appeal from findings of the Alabama Real Estate Commission.

Calvin Mallory, a licensed agent and broker, was found guilty of certain violations by the Commission and his real estate license was permanently revoked. The Commission’s oral hearing was held on May 22, 1978, and Mallory formally received notice of its findings on May 27, 1978. Mallory, acting pro se, filed notice of appeal to the circuit court on June 12, 1978, pursuant to § 34-27-38, Code of Alabama (1975). According to Mallory, he was unaware of the statute’s requirement that a $200 bond be posted with the circuit clerk in order to prosecute an appeal. Subsequently, upon learning of the bond requirement, Mallory tendered a $200 check to the clerk on June 27, 1978. However, the 27th of June was the thirty-first day after Mallory had been formally notified of the Commission’s findings, and the circuit court granted the Commission’s motion to dismiss the appeal as untimely. Mallory seeks review of the order of dismissal.

The question presented is of first impression and requires a statutory interpretation.

“Findings made by the commission are deemed conclusive, unless within 30 days after notice of the decision of the commission has been given to an applicant or accused, said applicant or accused shall appeal said finding or ruling to the circuit court of the county of his residence. In the event of such an appeal, the circuit court shall hear the same de novo. Such appeal shall be taken by the filing of notice of appeal with the clerk of the circuit court of the county to which the appeal is taken. Any party taking an appeal shall post a satisfactory bond in the amount of $200.00 with the clerk of the circuit court, with at least one solvent surety, conditioned to prosecute such appeal to effect and, upon failure to do so, to pay all costs and damages which may be adjudged against said party by the circuit court on such appeal. The clerk of the circuit court shall notify the executive director and assistant executive director of the commission of the appeal after the clerk has approved the appellant’s bond, and the executive director and assistant executive director of the commission shall forthwith forward to the clerk of the circuit court and the charge against the applicant or licensee and the findings or rulings of the commission. . . .” § 34r-27-38, Code of Alabama 1975 with 1978 Amendment. (Emphasis added).

Mallory contends that the perfecting of an appeal under the statute is the filing of the notice of appeal within thirty days from the date of the Commission’s decision.

The Commissiori submits that the filing of notice of appeal and the filing of the bond within thirty days are both required for perfection of an appeal under the statute. The Commission cites Taylor v. Major Finance Co., 292 Ala. 643, 299 So.2d 247 (1974), for the proposition that an appeal is perfected upon the filing of a good and sufficient surety for costs of appeal.

Our research discloses no case that deals with the requirements to perfect an appeal from findings of the Real Estate Commission under § 34 — 27-38, Code of Alabama (1975) or its predecessor statute, ;Tit. 46, § 311(14), Code of Alabama (1940) (Recompiled 1958). The Taylor case cited by both sides is illustrative of the general rule that prevailed in appeals from the circuit courts to the Court of Civil Appeals and Supreme Court before the enactment of the Alabama Rules of Appellate Procedure (ARAP) in 1975. Before ARAP, it was the filing of security for costs which perfected the appeal and fixed the appellate court’s jurisdiction in reviewing decrees from circuit courts. Tit. 7, § 766, Code of Alabama (1940) (Recompiled 1958). The rule is now that the failure to give security for costs is not fatal to appellate jurisdiction, but it is the timely filing of a notice of appeal that is jurisdictional. Bryan v. Brown, 339 So.2d 577 (Ala.1976).

Of course the appeal in question is not governed by the ARAP but is instead purely statutory. We, however, feel that the principle embodied in the ARAP can be applied by analogy to the statute before us. Section 34 — 27—38, Code of Alabama (1975) provides that “appeal shall be taken by the filing of notice of appeal with the clerk of the circuit court of the county to which the appeal is taken.” Although the statute contains other language which requires an appellant to post a $200 bond and have the bond approved by the circuit clerk, the appeal is perfected and jurisdiction of the circuit court attaches upon the filing of a notice of appeal. The posting of a satisfactory bond of $200 is merely procedural. Failure to file the bond would be ground for dismissal of the appeal. In fact the clerk is not required to notify the Commission that an appeal has been taken until after he or she approves the bond.

The trial court below erred by granting the Commission’s motion to dismiss Mallory’s appeal as untimely because he did not tender his surety bond until the thirty-first day after being informed of the Commission’s decision. The matter is reversed and remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BOWEN, Judge.

text:
    David L. BRAZELL v. STATE.
    3 Div. 849.
    Court of Criminal Appeals of Alabama.
    June 20, 1978.
    Rehearing Denied July 25, 1978.
    On Return to Remand Jan. 16, 1979.
    Rehearing Denied Feb. 20, 1979.

      Frank A. Hickman, Greenville, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from a conviction of robbery and sentence of ten years’ imprisonment. The appellant is represented by court appointed counsel both at trial and on appeal.

In urging this court to reverse his conviction the major argument advanced by the appellant is that the in-court identification was tainted by the use of impermissibly suggestive out-of-court confrontation and lineup procedures.

Around 2:30 o’clock on the afternoon of August 24, 1977, Mr. and Mrs. Lige McQueen were operating their service station and grocery store near Greenville, Alabama. The appellant and an accomplice drove into the McQueens’ station and put some gasoline into their automobile. The appellant then went inside the store with Mr. McQueen where he placed a pistol in McQueen’s back and forced him to open the cash register. The appellant took between thirty and forty dollars, made everyone in the store lie down on the floor, and fled. Pam Brooks and Mrs. Mutt Reeves were in the store during the robbery and witnessed the crime.

Around 11:00 o’clock that same night, Mr. and Mrs. McQueen and Miss Brooks identified the appellant at the police station. The next day these same individuals and Mrs. Reeves identified the appellant in a lineup in the Sheriff’s Department. The only evidence against the appellant consisted of the identification testimony of these witnesses.

I

The appellant contends that the two pretrial identification procedures employed in this case were so impermissibly suggestive as to render a subsequent in-court identification inadmissible as a matter of law.

A showup was held at the police station in Greenville, Alabama, at 11:00 P.M., approximately niiie hours after the robbery occurred.

Ten year old Pam Brooks testified that she rode to the City Hall with Mr. and Mrs. McQueen; that each of them individually went into a room where they viewed the appellant through a one way mirror; that they viewed the accomplice separately; that she identified them as being “the ones that robbed us”; that prior to the time she identified the two men, she did not discuss this identification with the police; that during the identification procedure, the police did not say anything to her; and that the police did say that

“they had seen two men hitchhiking that looked like the two men that we had described that were in the car, and they said they thought it was probably the men, so they took them to the police headquarters, and that night, they called us to come up there.”

On suggestive cross examination by defense counsel Miss Brooks admitted that the most unusual thing about the robber was his green shirt. The appellant was wearing this shirt during the showup. She was positive in her identification of the appellant and did not discuss it afterwards with the police.

Mr. McQueen testified that thé police told him that they had a suspect and wanted to see if he could identify him and that the police did not tell him that they had the person who robbed his store. He stated that the “brown” shirt the appellant was wearing was not the distinguishing characteristic about the appellant: “When he throwed that gun on me, that’s what made me look deeper”. He also identified the appellant as the robber.

Mrs. McQueen testified someone called and “said they had a suspect and wanted to know if we could come and identify them”; that they didn’t say that they had the robbers; that she “knew who it was the minute I saw him”; that she did not discuss her identification with the police; and that the shirt “sticks out in (her) mind”.

Mrs. Reeves did not view the showup.

Officer Kenny Flowers, a Lieutenant for the Greenville Police Department, testified that each witness was brought into a small room with a one way mirror for just a moment to look at the appellant and each identified him; that they observed him one at a time; that two police officers were present in the room but made no statements to the witnesses; that he didn’t remember suggesting that they had apprehended the robbers, or remember anyone making that statement; and that the appellant was alone in the room. Lieutenant Flowers did not remember when the appellant was informed that he was under arrest for robbery but stated that the appellant was probably told he was being detained as a suspect in a robbery case up until the point of identification.

Though the practice of showing a suspect singly to persons for purposes of identification, and not as part of a lineup, has been widely condemned, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), the admission of evidence of a showup without more does not violate due process of law. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Annotation: Admissibility of Evidence of Show-up Identification as Affected by Allegedly Suggestive Showup Procedures, 39 A.L.R.3d 791 (1971).

Convinced of the dangers of eyewitness identification, the United States Supreme Court has established constitutional and procedural safeguards surrounding the use of such testimony. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Sto-vall, supra; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson, supra; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

Whether an out-of-court identification procedure has violated due process depends upon the “totality of the circumstances”. Stovall, supra; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Coleman, supra; Big-gers, supra. This totality of the circumstances test is the standard in deciding whether an identification procedure is unnecessarily suggestive and conducive to irreparable mistaken identification. Caver v. Alabama, 537 F.2d 1333 (5th Cir. 1973). Under this test the factors to be considered in evaluating the likelihood of misidentifi-cation include the opportunity of the witness to view the criminal act at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation. Biggers, 93 S.Ct. 382; Robinson v. State, 45 Ala.App. 236, 228 So.2d 850 (1969). Against these factors is to be weighed the corrupting effect of the suggestive identification itself.

In determining the constitutional adequacy of pretrial identification procedures and the admissibility of identification testimony, the central question is whether, under the totality of the circumstances, the identification was reliable. Manson, supra. This determination involves the application of a two-pronged test.

“(T)he required inquiry is two-pronged. The first question is whether the initial identification procedure was ‘unnecessarily’ [Stovall] or ‘impermissibly’ [Simmons] suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been ‘unnecessarily’ or ‘impermissi-bly’ suggestive was so ‘conducive to irreparable mistaken identification’ [Stovall] or had such a tendency ‘to give rise to a very substantial likelihood of irreparable misidentification’ [Simmons] that allowing the witness to make an in-eourt identification would be a denial of due process.” United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.1970).

Suggestiveness is inherent in the showup identification procedure. Wall, Eye-Witness Identification In Criminal Cases, p. 28. Nevertheless, prompt, on-the-scene confrontation may be consistent with good police work. Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623 (1973); Payne v. State, 48 Ala.App. 401, 265 So.2d 185, cert, denied, 288 Ala. 748, 265 So.2d 192, cert, denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669 (1972); Robinson v. State, 55 Ala.App. 658, 318 So.2d 354 (1975). One-on-one confrontations conducted shortly after the commission of the crime may be justified for they allow the “fresh” identification before memory has dimmed or the suspect has changed his clothing, the prompt release of innocent persons, and the continuation of the search for the perpetrator with a minimum of delay. Wall, p. 38. For these considerations to be effective, the on-the-scene identification must be prompt. Carter v. State, Ala.Cr.App., 340 So.2d 94, 98 (1976). (“Our consideration of Robinson, the supporting authorities cited therein, arid other authorities on the subject, convinces us that most, if not all, of the applicable cases have involved periods of time of less than an hour between the crime and the confrontation.”)

The state argues that the showup procedure was not suggestive but, even if it were, the in-court identifications of the appellant were based on sources independent of the suggestive showup. The state correctly points out that each witness was positive in his identification of the appellant as the robber. Despite these we cannot accept either of these positions.

It is mere sophistry to argue that the showup was not unnecessarily suggestive. A showup by its inherent nature is suggestive because the witness is given no other choice. However it is permitted where conducted promptly after the commission of a crime or demanded by necessity, emergency or exigent circumstances. No justification for the use of the showup can be advanced in this case. Under the particular circumstances facing us, the showup was held at an unusual hour in light of the facts that the robbery had occurred nine hours earlier and that a lineup was held at 1:00 P.M. the following afternoon. Also the fact that the appellant wore a green shirt in the showup constituted an additional element of suggestiveness in the identification procedure. Standing alone the fact that the accused wore a distinctive article of clothing may not have tainted the identification procedure. See Griffin v. State, Ala.Cr.App., 1 Div. 838 (Ms. February 7, 1978, cert. denied, Ala., Ms. March 31, 1978); Childers v. State, Ala. Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976). However the totality of the circumstances, the combined and cumulative effect of these factors — the nature of the confrontation itself, the lack of necessity for a showup, the unusual hour, and the distinctive clothing — creates an unduly suggestive identification procedure.

If, despite the violation of due process standards, the prosecution can establish by clear and convincing evidence that the in-court identification testimony, rather than stemming from the unfair pretrial confrontation, has an independent source, the in-court testimony need not be excluded. Wade, 87 S.Ct. 1939. This record contains no such clear and convincing evidence. From the record we are unable to determine the opportunity of each witness to view the criminal at the time of the crime though we know that the appellant was at the scene from ten to twenty minutes, the witness’s degree of attention and the accuracy of any prior description. The record is silent as to how long each witness observed the appellant during the robbery, that they in fact observed him with any degree of concentration, and the distance and lighting conditions under which he was observed. Those witnesses who were able to describe the appellant did so in general terms almost totally lacking in specifics. While we are aware that certain distinguishing differences in individuals defy definition and articulation, the descriptions given in this instance are particularly void of detail. While the witnesses in this case may have an independent basis for identifying the appellant apart from the showup, as there was some evidence relevant to such a determination, the record simply does not support such a conclusion by clear and convincing evidence. On the record now before us we cannot make the determination whether the in-court identifications had an independent origin.

Because the guilt or innocence of the appellant turns solely on the basis of the identification testimony and, apart from that, there is no evidence to even connect the appellant with the crime, we cannot conclude that the evidence of the identification procedures was harmless error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In this case the prosecution did not introduce the tainted pretrial confrontation evidence until the matter had been injected into the trial by the defense. Therefore the appropriate procedure is to remand the conviction of the appellant to the trial court for a hearing to determine whether the in-court identifications hád an independent basis or source. See Wade, supra; Gilbert, supra; Sobel, Eye-Witness Identification, pp. 52-53. In view of this determination, we need not consider the fairness of the lineup conducted in this case.

II

During the hearing on the motion to suppress the appellant attempted to introduce into evidence a tape recording of the preliminary hearing for purposes of impeaching the testimony of the prosecution witnesses on their identification of the appellant and to corroborate the testimony of one of the defense witnesses. The trial court refused to admit the tape recording on the basis that “the whole tape would (not) be admissible for the purposes of impeaching the witness as to that particular statement”. The trial judge told defense counsel that he could use the pertinent parts of a transcription of the tape recording for purposes of impeachment. Defense counsel then agreed to furnish the state with a copy of the transcript but made no further attempt to introduce any portion of it at the hearing or at trial.

This refusal of the trial judge to allow the recording or transcription of the entire preliminary hearing or even of all of the testimony of a single witness at that hearing was proper. This is a matter within the discretion of the trial court.

“The case of Patterson v. State, 191 Ala. 16, 67 So. 997, declares the rule to be that the whole of a document should not ordinarily be admitted but only the contradictory part . . . . This holding, however, is subject to other cases which say that admittance of the whole or the contradictory part rests in the discretion of the trial court, 1 McElroy on Evidence 379 and cases therein cited, and, further, if a contradictory statement in a document if so interwoven with a noncontrad-ictory statement therein as to render it impracticable to show the contradictory statement without also showing the non-contradictory statement, the whole of the document is admissible, Kennedy v. State, 85 Ala. 326, 5 So. 300, 1 McElroy, supra.” Byrd v. State, 51 Ala.App. 234, 238, 283 So.2d 683 (1973).

Ill

At trial defense counsel objected to the testimony of a witness it expected the state to call. The witness was the fifteen year old accomplice of the appellant. The objection was that the accomplice was not represented by counsel and therefore could not waive his right against self-incrimination absent a showing by the state of his prior adjudication by the Juvenile Court. At that time the trial court did not rule on defense counsel’s objection not knowing whether the state would call the accomplice to testify.

When Thomas Mehard took the witness stand later in the trial, the court, of its own accord, ascertained from the state that Me-hard was the accomplice. By questioning him the court determined that he had had no adjudication by the Juvenile Court and refused to permit the witness to testify. •Defense counsel then requested that the jury be instructed “that they not take any inference from this boy being here?” The trial judge responded, “All right, gentlemen, anything else?” and the state rested its case.

We find no error to reverse in this regard. The evidence before the jury disclosed that the appellant had an accomplice. This accomplice was not permitted to testify against the appellant and his mere exhibition in the courtroom was not error. Williams v. State, Ala.Cr.App., 354 So.2d 48, cert. denied, Ala. 354 So.2d 53 (1977).

Because a pretrial identification procedure was unnecessarily suggestive and because we are unable to determine whether the in-eourt identifications had any independent basis, this case is remanded to the trial court with instructions that a hearing be held to determine whether such independent basis exists. In this hearing the burden of proof is upon the state to show by clear and convincing evidence to the satisfaction of the trial judge that the witnesses had an independent basis for their in-court identification of the appellant apart from the suggestive confrontation procedures.

REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.

All Judges concur.

On Return to Remand

In accordance with the request of this Court, the trial court held a hearing to determine whether the in-court identifications of the appellant had an independent basis or source not connected with the pretrial identification procedure. The trial judge found:

“Based on the testimony at said hearing, the Court is of the opinion and adjudges that there was clear evidence that the witnesses identifying the defendant had an independent basis for their in-court identification of the defendant apart from what the Alabama Court of Criminal Appeals found to be suggestive confrontation procedures.”

The record on remand supports this conclusion to the extent that this is the only finding authorized from the testimony. Therefore the admission of the in-court identifications of the appellant was proper.

We have searched the record and finding no error prejudicial to the appellant affirm the judgment of conviction.

AFFIRMED.

All the Judges concur.


text:
    Ex parte David L. BRAZELL.
    78-325.
    Supreme Court of Alabama.
    April 6, 1979.
    MADDOX, Justice.
   WRIT DENIED.

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


author: PER CURIAM.

text:
    Re. STATE of Alabama v. Charles William CANNON. Ex parte STATE of Alabama ex rel. William BAXLEY, Attorney General.
    6 Div. 868.
    Court of Criminal Appeals of Alabama.
    July 3, 1978.
    Rehearing Denied July 3, 1978.
    William J. Baxley, Atty. Gen., Barry V. Hutner, Asst. Atty. Gen., Birmingham, for petitioner.
    Robert R. Bryan, Birmingham, for respondent.
   PER CURIAM.

WRIT GRANTED. Case ordered restored to trial docket and trial date set before July 27, 1978. ORDER ISSUED.

All the Judges concur.

Judgment reversed, Ala., 369 So.2d 32, on remand, Ala.Cr.App., 369 So.2d 35.


author: PER CURIAM. MADDOX, Justice

text:
    In re STATE of Alabama v. Charles William CANNON. Ex parte Charles William CANNON. Re ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-675.
    Supreme Court of Alabama.
    Feb. 9, 1979.
    Rehearing Denied March 9, 1979.

      Robert R. Bryan, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., Montgomery and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for the State, respondent.
   PER CURIAM.

The State of Alabama charged Charles William Cannon with the murder of the manager of a Birmingham service station on the night of May 31, 1972. Trial was held in the Tenth Judicial Circuit in Birmingham in 1973, and the jury convicted petitioner of second degree murder. The conviction was subsequently affirmed by the Court of Criminal Appeals in 1974. Petitioner then sought relief in the United States District Court for the Northern Division of Alabama by means of a petition for writ of habeas corpus which was denied.

On July 12, 1977, the Court of Appeals for the Fifth Circuit reversed the conviction. The State filed a petition for writ of certiorari to the United States Supreme Court. The writ was denied. Trial was then rescheduled for May 22, 1978, in the Jefferson County Circuit Court. Petitioner filed a motion to dismiss because numerous prosecution and defense exhibits admitted into evidence at the original trial had somehow been disposed of or destroyed. Following a hearing, the trial court entered an order dismissing the cause: “[TJhis case has, through no fault of the District Attorney’s office or the Defendant’s attorney, been reduced to a shambles.” As a brief aside, we note that a recent amendment to ARAP 10(c) provides' a new procedure in respect to custody of trial exhibits.

Subsequent to the dismissal, the prosecution located a missing witness and submitted an application far reconsideration to the trial court on June 20, 1978. At the completion of a hearing on this motion, the trial court entered an order denying and overruling the application.

On June 28, 1978, the State of Alabama filed a petition for writ of mandamus in the Court of Criminal Appeals requesting that court to order the trial court to set aside its two previous orders and place the case back on the trial docket. The Court of Criminal Appeals issued the writ to the trial court “commanding and requiring him to rescind and hold for naught his orders of May 22, 1978, and June 23, 1978, and to forthwith restore the said case to the trial docket in Jefferson County, Alabama, and set a trial date in the case.” We granted certiorari to review the decision of the Court of Criminal Appeals, 369 So.2d 32.

Mandamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion. East v. Todd, 284 Ala. 495, 226 So.2d 153 (1969); Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953). Mandamus is also proper to compel the court to perform ministerial duties and to entertain jurisdiction, Tanner v. Dobbins, 251 Ala. 392, 37 So.2d 520 (1948); however, it does not lie to review the proceedings of an inferior court on the ground that they were erroneous, State ex rel. Pinney v. Williams, 69 Ala. 311 (1881). Nor is mandamus a substitute for appeal. Ex parte McElroy, 241 Ala. 554, 4 So.2d 437 (1941).

In the instant ease, after the fifth circuit’s reversal of the conviction, trial was rescheduled for May 22,1978, on which date petitioner’s motion to dismiss was granted at the conclusion of a hearing. The trial court subsequently proceeded with another full hearing upon application of the State. In both instances the court conducted extensive hearings including a review of the original trial transcript. Therefore, this is not a case where the trial court refused to entertain jurisdiction or to hear and decide the matter. Nor can we say that the trial court’s ruling was so arbitrary and capricious as to amount to an abuse of discretion.

The trial court did not dismiss the case for insufficiency of the evidence. Rather, the court determined that it would be a denial of due process to try the case since, with the destruction of the evidence, defendant could not meaningfully controvert the State’s case. Forty-one defense and eighteen State exhibits were destroyed or lost. Among other things, the trial court determined that the defense would be unable to adequately cross-examine the alleged eye witness to the crime. Moreover, the defense would be unable to show by introduction of a payroll stub that a person placed by the eye witness with defendant at the scene of the crime was in fact in another state. The trial court stated:

If the case ever got to a jury the verdict, whatever it be, could only be the result of blind chance not predicated on jury understanding or evaluation of evidence.
Due process of law as applied here means nothing more than a person shall be afforded a fair trial or that a defendant shall have the opportunity of controverting any fact bearing on the question of his guilt and a right to produce facts to the contrary.
If only a few items of evidence were missing perhaps this Court could validly evaluate their import in the trial and on the jury. With everything gone it is a task this Court feels it cannot legally undertake or conclusion reach.

Since none of the grounds for issuance of mandamus are present, mandamus does not lie and was improperly issued. Accordingly, this case is remanded to the Court of Criminal Appeals for entry of an order consistent with the views stated herein.

REVERSED AND REMANDED.

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

MADDOX, J., with whom EMBRY, J., joins, dissents..

MADDOX, Justice

(dissenting).

A trial judge, who quashes an indictment, before trial, on the ground that he believes the state cannot prove the charge, abuses his discretion, as a matter of law, in my opinion. Furthermore, under Appellate Rules of Procedure extant at the time Cannon’s case was decided, he could have requested a return of the exhibits, which he now claims the state “lost.” The state did not “lose” the exhibits; they were disposed of, as provided by law. Therefore, the fact that “prosecution and defense exhibits admitted into evidence at the original trial had somehow been disposed of or destroyed” does not show bad faith on the part of the state. The law in effect at the time permitted the destruction of trial exhibits. Supreme Court Rule 51 (appendix to Title 7, Code of Alabama, 1940, Recomp., 1958) provided, in part:

“Within thirty (30) days after the final disposition of any appeal, the attorney or party shall request that the clerk of the supreme court forward to such attorney or party any exhibits which may have been filed in the supreme court. Upon the failure of the attorney or party to make such request, the clerk is authorized to destroy or dispose of such exhibits.”

At that time, there was no duty on the state to retain trial exhibits; in fact, there was specific authorization to destroy them.

There is one further reason why I would affirm. The American Bar Association Standards Relating to the Administration of Criminal Justice recommend appellate review of pretrial orders which terminate the prosecution. § 1.4, Criminal Appeals. In my opinion, the supervisory writ of mandamus is an appropriaté procedural method' for the prosecution to review an order such as the one issued here. The State could not appeal the order; nevertheless, I believe the Court of Criminal Appeals, under its broad supervisory power could make sure that justice was done.

This Court and many other courts have used and cited the ABA Standards as guidelines for minimal due process requirements when applied to the accused. The ABA Standards, however, do not merely address the rights of the accused, but also address the rights of the public to a fair administration of justice. The ABA Standards and a special committee of Alabama lawyers and jurists who made an analysis of the ABA Standards with Alabama law and rules, both recommend that there should be review of orders such as was entered here. On a case by ease basis, I would allow review by extraordinary writ whether a trial judge had abused his discretion in dismissing an indictment, with prejudice, as was true here. Therefore, I dissent.

EMBRY, J., concurs.

      . The amendment reads in part as follows:
      The papers, documents, written charges, etc., and said exhibits shall be photocopied into the record by the clerk unless such papers, documents and exhibits, etc., are incapable of being legibly or otherwise photocopied. The originals of such papers, documents and exhibits incapable of being legibly or otherwise photocopied, including those of unusual weight and bulk, shall be made a part of the record on appeal by reference, and retained in the office of the clerk of the trial court. Such- exhibits shall be filed in the appellate court only upon order of the Court of Criminal Appeals and shall be returned to the clerk of the trial court upon final disposition of the appeal. Original photographs which were offered or admitted as exhibits shall be placed on pages in the clerk’s portion of the record on appeal by a suitable attachment or cohesive method.


text:
    STATE v. Charles William CANNON.
    6 Div. 868.
    Court of Criminal Appeals of Alabama.
    March 12, 1979.
   ORDER

Writ of Mandamus issued July 3, 1978, 369 So.2d 32, SET ASIDE AND HELD FOR NAUGHT, on authority of opinion of the Supreme Court of Alabama, 77 — 675, February 9, 1979, 369 So.2d 32.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Patricia BLALOCK, alias v. STATE.
    3 Div. 963.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    Rehearing Denied Feb. 20, 1979.

      George W. Cameron, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: twenty years imprisonment.

Mrs. Martha Hudson testified on April 4, 1978, she saw the deceased, Arthur Davis, and appellant leave Davis’ residence and walk in the direction of a pay telephone. On their return, they both spoke to Mrs. Hudson. She observed appellant wave to another man and saw Davis pull her to his side. A brief argument ensued between the two, and then they returned to Davis’ residence.

Shortly thereafter she saw paramedics arrive at the Davis residence. She quickly went to his home and found Davis bleeding badly sitting on a couch. Davis told Mrs. Hudson appellant had stabbed him. Paramedics transported Davis to a local hospital where he was treated and returned home. Mrs. Hudson found him dead in his home the day following the stabbing.

Dr. Richard Roper, a state toxicologist, testified the cause of death was acute internal hemorrhage subsequent to a stab wound which penetrated the liver. He stated Davis had been stabbed ten times in various parts of his body, including several wounds in the back.

In an oral confession to the police, the appellant admitted stabbing Davis. At trial she testified that she met Davis in February and “stayed” with him for a while. They fought repeatedly over her relationship with a black man, and she finally left Davis after he threatened to kill her if she saw the black man again. The day of the assault was the first day she had returned to Davis since that event. When she attempted to leave Davis to return to the black man’s residence where she had been staying, Davis refused to let her leave. The appellant testified that she went into the bathroom and then took a knife, hidden between blankets in a hall closet, and placed it in her pants. She again attempted to leave and was thwarted by Davis. She sat on the sofa with him, hiding the knife under a cushion. As she attempted to stand, Davis forced her to sit down. Again she attempted to stand, and Davis tried to force her down. At that time she took the knife and began stabbing him. She exited through the back door while Davis went out the front door.

I

Appellant argues that the trial court erred in charging the jury as to murder in that the evidence was only sufficient to sustain a conviction for voluntary manslaughter. He asserts the assault was made in the heat of passion and, hence, was necessarily lacking in the essential element of malice requisite for a murder conviction.

The evidence shows without dispute that appellant intentionally stabbed and killed Arthur Davis with a knife. Further, the evidence revealed that Davis was stabbed four times in other parts of the body. Appellant, by her own admission, had purposefully concealed a knife on her person after arriving at the deceased’s house shortly before the attack occurred. She hid the knife,, ready for use, under a cushion on the sofa. She testified that Davis made no overt action to harm her, but had only prevented her leaving his residence. The appellant also indicated that Davis was not armed at the time of the assault. In her own words: “. . .1 can’t think of what happened, but something made me mad. I took the knife. ... I was stabbing him and I said ‘y°ur (sic) always drawing a knife on somebody, and you will see how it feels and don’t ever forget.’ . . . ”

An intentional killing with a deadly weapon raises a presumption of malice unless the circumstances surrounding the killing negate that presumption. Sowells v. State, Ala.Cr.App., 339 So.2d 1090 (1976). In the instant case, we believe the circumstances surrounding the assault, as revealed both by appellant’s confession and her testimony at trial, do not, as a matter of law, disprove malice. The evidence merely presents the question for the jury’s determination. Morris v. State, 47 Ala.App. 132, 251 So.2d 629 (1971). The jury could reasonably conclude from the methodical and premeditated concealment of the knife and the numerous wounds in the victim’s back that the appellant maliciously stabbed Arthur Davis to death. Lashley v. State, 24 Ala.App. 136, 131 So. 454 (1930).

II

Appellant’s last contention is that the trial court erroneously refused her requested written Charges 11 and 12.

Charge No. 11 reads as follows:

“The court charges the jury that if there is a probability that the accused is innocent, arising from the evidence, there is a reasonable doubt as to his guilt.” (Emphasis supplied.)

The charge here refused was approved in Duncan v. State, 31 Ala.App. 186, 13 So.2d 695 (1943), and reapproved in Pate v. State, 42 Ala.App. 334, 163 So.2d 645 (1964). Its refusal would normally constitute error if not adequately covered in other given charges or in the court’s oral charge. However, a trial court will not be put in error for refusing a requested charge which is ungrammatical, contains misspelled words, or contains a verbal inaccuracy. State v. Owen, 279 Ala. 281, 184 So.2d 362 (1966); Reeder v. State, 210 Ala. 114, 97 So. 73 (1923); 6A Alabama Digest, Criminal Law, &wkey;830. The instant charge refers to “his” guilt, rather than to “her” guilt. This court still recognizes the difference between the male and female gender. Thus, the charge contained a verbal inaccuracy and was properly refused.

Charge No. 12 reads as follows:

“The court charges the jury that the jury are instructed that the defendant cannot be convicted, unless the evidence is inconsistent with any reasonable theory of innocence.”

Charge 12 was also specifically approved in Pate, supra. It is a correct statement of the law and should be given where evidence has been presented which is inconsistent with any reasonable theory of innocence. However, we are not at all convinced that evidence was presented in the instant case which was inconsistent with “any reasonable theory of innocence.” The appellant gave a full confession out of court and then admitted in court that she repeatedly stabbed the victim. Even on the weak hint of self-defense injected into the case, the trial court gave a comprehensive charge concerning that defense.

The trial judge gave lengthy and detailed instructions to the jury concerning the presumption of innocence and reasonable doubt. After defining the term “reasonable doubt,” the trial judge charged the jury:

“Now, arriving at your verdict, it’s your duty to carefully consider the entire evidence in the case, and in so doing you should entertain such doubts only as arise from the evidence and are reasonable, as I have defined it. Unless a doubt is a reasonable one and does so arise, it will not be sufficient in law to authorize a verdict of not guilty.”

He further charged:

“. . . You should weigh all of the evidence and reconcile it if you can reasonably do so, but if there be irreconcilable conflict in the evidence, you are to-take that evidence which you think is worthy of credit and give it just such weight as you think it’s entitled to. . . ”

Often a charge which is a correct statement of the law is properly refused because the facts of the case do not specifically require it or because the trial judge has given adequate instructions which would generally encompass that proposition. This has been true in cases where it was held to be unnecessary to charge that “the assertions of counsel are not evidence,” Lamar v. State, Ala., 356 So.2d 680 (1977); Turner v. State, Ala.Cr.App., 356 So.2d 235, cert. denied, Ala., 356 So.2d 237 (1978), and unnecessary to charge as to a reasonable doubt arising from “part of the evidence.” King v. State, Ala., 356 So.2d 1220 (1978).

After reviewing the trial court's oral charge in its entirety, we believe the jury was fully made aware that a conviction could not be based upon evidence which was inconsistent with the accused’s innocence. Therefore, we find no error for refusing the requested charge under the circumstances of this case.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Patricia BLALOCK.
    78-314.
    Supreme Court of Alabama.
    April 6, 1979.
   MADDOX, Justice.

WRIT DENIED.

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


author: DeCARLO, Judge.

text:
    James Alex SPEIGNER v. STATE.
    4 Div. 610.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    Rehearings Denied Feb. 20, 1979.

      G. M. Harrison, Jr., Dothan, Maury D. Smith, Charles S. Coody, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

This is an appeal from a judgment of conviction by a Houston County Circuit Court jury, wherein James Alex Speigner was found guilty of rape and sentenced to fifteen years.

A detailed recital of the facts is not necessary since the sufficiency of the evidence is not preserved for review, because appellant did not move to exclude the State’s evidence nor for a directed verdict; did not request the affirmative charge, and did not make a motion for a new trial.

Briefly, the facts are as follows:

The victim testified that on July 28, 1976 she was living in the upstairs apartment of a duplex in Dothan, Alabama, and that the downstairs part of the building was unoccupied. She stated that there was a wooded area across the street from the apartment and that there were houses on either side of the building, on each corner of the block.

She recalled that on the night of the incident she was awakened by a noise in the living room. When she got up to see what it was, she saw someone coming through the window of the living room. She immediately screamed, and a man withdrew his leg from the window, shined a flashlight in her face, and told her not to scream or he would burn the house down.

She continued screaming, and, when she told the man she was going to call the police, he answered: “. . . no, you don’t have a phone.” At that point she inquired how he knew that, and he responded: “He had waited for me the night before, but I had stayed out too late.” The victim recalled that, on the previous night, she had noticed that someone had tampered with the door to her apartment.

During the interval that she was talking to the man, he screamed obscenities relating to oral sex. Once she was dressed, she attempted to leave, but he was at the door blocking her exit. She told him to get away from the door but he answered: “There is not but one way out and one way in and I’m going to get what I came for.”

She then went to the window and began talking with the man on the ground below. She, at first, refused his request to come outside, but, after realizing that no one could hear her screams, told him she would do so if he would not hurt her. She went to the front porch, and, at his request, sat with her back to him. At that time the man removed what appeared to be “sock-like military gloves,” and proceeded to undo her jeans. He told her he was not going to hurt her, but that he “was going to get what he came for.” She testified that, at this point, she “talked real ugly” to him and told that he was disgusting. He then said he had made a mistake, that he had the wrong person and would let her go.

She left the porch and attempted to enter the building, but the door had locked. The man offered to get the door open and after the door was opened she went upstairs to get her car keys. When she came back he stated that he had changed his mind. He then instructed her to lie down on the porch and told her to cover her face with her arm. The man removed her jeans and performed cunnilingus upon her, and then had sexual intercourse with her against her will.

The victim testified that during this time she moved her arm and briefly saw the man “full face” and that she saw his face from the nose up for a period of three minutes. She claimed that she was able to see the man’s features because the porch was well lighted by a nearby street light.

The victim positively identified the appellant as the man who raped her. She said he had told her that if she tried to go to the police, or if she tried to look at him, he would “hurt me.”

I

Appellant argues that the trial court abused its discretion in denying the motion for a change of venue on the basis of pretrial publicity. He contends such publicity was so extensive and so damning that it violated his due process right to a fair and impartial trial.

At this time a recital of the evidence presented at the hearing on the motion for change of venue would be a mere repetition of the evidence reviewed in Speigner v. State, 367 So.2d 590 (Ala.Cr.App.1978). Although the date of the hearing was approximately three months after the above cited case, the witnesses and testimony presented by appellant were the same.

We adopt the conclusion and the reasoning of Speigner v. State, supra, that change of venue was not warranted.

Further, it is our judgment, based on the facts of the hearing in the present case and the reasoning of Speigner v. State, supra, that appellant did receive a fair and impartial trial at the hands of the jury in Houston County.

II

The appellant contends that it was error to allow into evidence the pretrial identification made by the victim at the police station. He argues that her in-court identification was compelled by identification of the appellant prior to his arrest. It is his position that the two identifications violated “his rights to due process under the Constitution of the United States and the State of Alabama.” Further, he claims that, due to the victim’s pretrial identification at the police station, she was predisposed to identify him a second time in court because she had done so earlier.

In our review of the record we can find nothing to indicate that any objection was made concerning the victim’s pretrial identification of appellant. However, a motion to suppress identification evidence was made in a previous case involving the same appellant. Speigner v. State, supra. This motion was filed in June, 1977, which motion was subsequently denied. The motion does not appear to have been renewed for the purposes of the trial at bar. Due to the absence of a proper objection to the victim’s identification evidence during trial of the present case, there is nothing for this court to review. However, because of the inclusion in the record, of the motion at the previous trial (p. 504), we have examined this insistence of error.

Under Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, appellant was not entitled to have counsel present during the pre-arrest identification procedure. Whether the identification testimony is admissible is determined by the procedure used in obtaining the identification and whether it was so impermissibly suggestive as to create a substantial risk of misidentifi-cation. Robinson v. State, 55 Ala.App. 658, 318 So.2d 354. In determining this issue we examined the totality of the circumstances surrounding the identification procedures. Stovall v. Deno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. Under this “totality of circumstances” test, the factors to be considered in evaluating the likelihood of mis-identification include; (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; and (4) the level of certainty demonstrated by the witness at the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; Robinson v. State, 45 Ala.App. 236, 228 So.2d 850.

However, in determining the constitutional adequacy of the pretrial identification, along with the admissibility of the identification testimony, the central question is whether, under the totality of the circumstances test, the identification was reliable. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140.

Further, where allegations are made that the due process standards were violated by an unfair pretrial confrontation, it becomes the burden of the prosecution to show by clear and convincing evidence that the in-court identification testimony had an independent source and did not stem from the alleged unfair pretrial confrontation. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

The record in this case indicates that the entire incident which concluded with the sexual assault, lasted approximately two hours. Further, that, during the time of the sexual assault, the victim saw her assailant “full-face”, and that she viewed his face from the nose up for a period of approximately three minutes. Also, there was testimony which indicated that the porch where the sexual attack occurred was well lighted.

The victim testified that she had looked at photographs of suspects at the police station on the night of the assault and on later occasions. In all, she estimated that she had viewed a total of one hundred photographs on ten occasions prior to the time she identified appellant at the police station. She stated that at no time during the occasions on which she had viewed the photographs did she see the appellant’s picture. Further, she had not identified anyone else as her assailant prior to her identification of appellant.

On the day the victim was shown a picture of the appellant by the police, she commented that it looked like her assailant, but that she was not positive and would have to see the man to be sure. According to her testimony, the police told her they had someone in custody they wanted her to see but they did not tell her it was the same man whose photo she had identified. She accompanied the police to a one-way mirror and saw the appellant in a room with a Lt. Stokes. She then asked to see the man's hands, and when she entered the room she overheard his voice.

The victim stated that, when she saw the man in person, “I recognized his face.”

On cross-examination, she was asked if she had told any police officer about the “crooked little finger on the man’s right hand.” She responded, “I did tell them that it was something, that I would remember his hands if I saw them. And I did.”

During the trial, counsel for appellant inquired about the ring finger on appellant’s left hand. Appellant responded that it was “stiff.”

The victim’s testimony indicated that, when she reported the assault to the police officers, she also gave them a physical description of her assailant, including his height, weight, and physical build, as well as the color, length, texture, and style of his hair, the size of his hands, and the amount of hair on his arms. She also described his clothes, jewelry, and his immaculately shined shoes.

Under the above circumstances surrounding the pretrial identification, we do not find that the police used any overly suggestive means to prompt the identification. She was allowed to view the person, listen to his voice, and look at his hands. The victim’s “one-on-one” identification of appellant was positive and unhesitating. This alone is not enough to render the identification unreliable. Stovall v. Deno, supra.

Upon considering the circumstances surrounding the victim’s in-court identification, we find it to have had an independent source sufficient to satisfy the rule under U. S. v. Wade, supra, and that the admission of the pretrial identification did not violate the appellant’s constitutional rights. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401.

Ill

Appellant maintains that the court committed reversible error in allowing the prosecution to argue in a manner that imper-missibly shifted the burden of proof to the defendant.

The portion of the argument that appellant complains of reads as follows:

“Look at this: She looked him full in the face at close range for three minutes; and then she saw him thereafter, partially, from here up. (Indicating) She listened to his voice for an hour. She described him to the police. The only exception, with it being straight on the top. If a person has got their hair like that, how are you going to describe it? If it’s curly like that? Same weight. Same height. Same age range. He was wearing a watch on his right arm. And I submit to you, that’s just no coincidence. Whether it was this watch or any other watch. If a man who attacks you is wearing a watch on his right arm. And lo and behold, James Speigner also wears a watch on his right arm.
“She testified that she looked at picture after picture and picture, and refused, and refused, and refused to identify anybody, because she is not going to identify anybody but the man who did this thing to her. And it’s James Alex Speigner, sitting right here at this table. Now, she says he is the one that did it, and I am positive. Here’s all these reasons why he’s the man that did it. She carried a picture of him around in her mind all of that time, she dreamed about it, she would never forget him. She saw him at close range. Now, what have you got to put a reasonable doubt in your mind? You’ve got the fact that his mama and daddy gave him a watch for Christmas.
And that’s the watch. There’s no testimony whatsoever—
“MR. SMITH: Now, I object to, ‘What have you got to put a reasonable doubt in your mind.’
“MR. SORRELLS: I didn’t say they had to put a reasonable doubt in their mind, I’m just asking them to look at the evidence.
“THE COURT: I think that is within the limits of argument. Go ahead.
“MR. SMITH: But the burden is the other way, Your Honor.
“MR. SORRELLS: I am not putting any burden on them, Judge.
“THE COURT: I think that’s within the limits of argument.
“MR. SORRELLS: There was testimony that the mama bought him the watch, but there is no testimony that this is the watch that the man was wearing? They never asked Miss ... is this the watch the man was wearing? Or did you observe this watch on him down at the police station? Mr. Harrison said to you that they got the watch away from him immediately upon his being hired. And the defendant testified that he was wearing this watch on his right arm at the preliminary hearing. I submit to you, that people have watches, and they have watches. They asked what kind of watch was it, and she said an older watch. And by coincidence, on his right arm. Is that some reason to doubt her identification? I submit to you that it wasn’t.”

The appellant argues in his brief that the above quoted portion of the prosecution’s closing argument, coupled with the court’s definition of reasonable doubt, prompted the jury to believe that appellant had the burden of presenting proof showing that a reasonable doubt existed.

However, there was no objection made to the court’s oral charge and its definition of reasonable doubt. Therefore this particular point is not reviewable. Zuck v. State, Ala.Cr.App., 331 So.2d 777.

Control of closing arguments rests in the broad discretion of the trial judge. El- ston v. State, 56 Ala.App. 299, 321 So.2d 264. In summation arguments to the jury, counsel may comment, draw proper inferences, and present their conclusions from the evidence presented. Borden v. State, Ala.Cr.App., 337 So.2d 1388. Counsel is also allowed to draw deductions from the trial evidence. Espey v. State, 270 Ala. 669, 120 So.2d 904; Summers v. State, Ala.Cr.App., 348 So.2d 1126.

The Alabama Supreme Court in Beecher v. State, 294 Ala. 674, 320 So.2d 727, held that the prosecution has the right to point out that the State’s evidence stands uncontradicted and that there is no evidence to refute the facts presented by the State, as long as this is. not seen as a comment on the defendant’s failure to testify. See Swain v. State, 275 Ala. 508, 156 So.2d 368: Richardson v. State, Ala.Cr.App., 354 So.2d 1193. In addition, argument by the prosecution concerning omissions and inconsistencies in the defendant’s version of the case is not improper. Jackson v. State, 41 Ala.App. 325, 133 So.2d 207.

Our interpretation of the argument in question leads us to conclude that the prosecution was not attempting to shift the burden of proof, but was merely making the point that the State’s case had not been undermined. Nonetheless, the court’s oral charge should have removed any doubt concerning who had the burden of proof. Under these circumstances the trial court was not in error in allowing such argument.

IV

The appellant insists not only that the procedures surrounding the return of the verdict were improper, but that the imposition of punishment by the jury was also in error and requires reversal.

From the record we find the following circumstances surrounding the taking of the verdict.

During the court’s oral charge the jury was instructed:

“Ladies and gentlemen of the jury, after you have weighed and considered all of the testimony in the case, that for the State and that for the defendant, if you are convinced beyond all reasonable doubt that the defendant is guilty of rape, then you should find the defendant guilty of rape. And, in that event, the form of your verdict would be — and you have two forms which you might use— one would be, ‘We, the jury find the defendant, James Alex Speigner, guilty of rape as charged in the indictment.’ Then you would say, ‘We fix his punishment at imprisonment in the penitentiary for the term of his natural life.’ Another verdict that you could render would be, ‘We, the jury find the defendant, James Alex Speigner, guilty of rape as charged in the indictment. We fix his punishment at imprisonment in the penitentiary for so many years.’ Any number of years from ten on up. Ten being the lower limit. Ten on up. Those should be the two forms of verdicts, either one, that you might render, if you are convinced, beyond all reasonable doubt, that the defendant is guilty of rape as charged in the indictment.”

The jury retired but returned before reaching a verdict and asked the court for instructions, as follows:

“FOREMAN: If we should give any number of years, if we. found a person guilty, if that person was given by us a certain number of years, how much time would he have to serve before he would be eligible for parole?
“THE COURT: You may have a seat. That’s something that is not for your consideration in your deliberations in this case. And I am not privileged to give you that information. I am sorry. You may now go back to the jury room, if that’s all the instructions you wanted.”

The jury then resumed its deliberations and returned with a verdict that was deemed improper by the court. The court then instructed them as follows: .

“THE COURT: Now, ladies and gentlemen, this is not a proper verdict. You cannot put any provisions on the sentence that you give. I will send you back to the jury room in order for you to render a correct verdict.”

After making this statement, the court again sent the jury back to the jury room in order that they might reach a correct verdict.

The appellant complains that the initial verdict, in which the jury fixed punishment at ten years without parole was an improper verdict, and argues the above admonition given to the jury, that they could not place any provisions on their sentence, was fundamentally erroneous.

We note that there was no defense objection, nor was there a request for a mistrial during reception of the verdict, and without some express objection or ruling adverse to the defendant, this court has nothing to review. Harris v. State, Ala.Cr. App., 347 So.2d 1363.

Appellant points out that under § 13-1-130, Code of Alabama 1975, there is no express provision fixing the duty of imposing punishment on the jury. Section 13-1-130 provides:

“Any person who is guilty of a crime of rape shall, on conviction, be punished by imprisonment in the penitentiary for not less than ten years, or as otherwise specified by law.”

The appellant complains that the fixing of punishment by the jury was error and that under § 15-18-20, Code of Alabama 1975, it is the duty of the court to fix punishment. Section 15-18-20 provides:

“When an offense is punishable by imprisonment in the penitentiary or hard labor for the county, the court must impose punishment, unless the power is expressly conferred on the jury.”

In the present case the appellant was convicted on October 25, 1977 after a two-day trial. At that time §§ 13-1-130 and 15-18-20, Code of Alabama 1975 were not in effect. The statute in force at the time of appellant’s trial was T. 14, § 395, Code of Alabama 1940, Recompiled 1958, which empowered the jury to fix punishment in a rape case. Therefore, at the time of the trial on October 24th and sentencing on October 25, 1977, the jury was empowered to set punishment at a term of not less than ten years and no more than life imprisonment. For' this reason, and in view of the ruling set forth in Harris v. State, supra, had there been error it would not have been reviewable.

However, at no point in the reception of the jury’s verdict or in the trial judge’s instructions to the jury did the appellant interpose any type of objection.

In Hayes v. State, 44 Ala.App. 499, 214 So.2d 708, this court stated that a jury has a right to amend or cancel its verdict at any time prior to its discharge. It has also held that both favorable and unfavorable recommendations added to a verdict by a jury are to be disregarded as surplusage and do not render the verdict invalid. Freeland v. State, 41 Ala.App. 480, 136 So.2d 892 (holding that the addition of the words “jury recommend no pardon” to the verdict did not render it invalid).

The trial judge was thus incorrect in his instructions to the jury on this matter and in asking them to return to the jury room to render a correct verdict. The verdict and sentence of ten years were correct as rendered, and the additional provision placed thereon by the jury should have been regarded a surplusage. We therefore' remand this cause to the trial court in order that a proper sentence may be entered. Osner v. State, 54 Ala.App. 520, 310 So.2d 241.

We have examined the record of transcript in this case and find that the judgment of conviction is due to be affirmed and the cause remanded for proper sentencing.

AFFIRMED. REMANDED FOR PROPER SENTENCE.

All the Judges concur.


text:
    Ex parte James Alex SPEIGNER.
    78-305.
    Supreme Court of Alabama.
    April 6, 1979.
   MADDOX, Justice.

WRIT DENIED.

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


text:
    Charles Wayne FLANAGAN v. STATE.
    6 Div. 865.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.

      Larry Waites, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

After Veronica Ann Cagle Wilson had a scuffle with another woman at “Pat’s & Pearl’s” in Birmingham, Alabama, she and three companions, Larry Thompson and his wife Charlene, and Charles Wayne Flanagan, left the lounge in Larry’s automobile. While the four traveled to an isolated area in Coalburg only three members returned to Birmingham that early morning of January 7, 1978. Ann Wilson had been brutally stabbed to death. Flanagan was indicted and convicted for her first degree murder. Sentence was fixed at life imprisonment.

The State’s chief witness was Charlene Thompson, who was also under indictment for the murder of Ann Wilson. She was subsequently tried and also convicted. Mrs. Thompson admitted being in the car that night and testified that she saw Flanagan jerk Ann out of the car and treat her in a rough manner. She heard Flanagan hit Ann and “thought she (Ann) was going to get beat up”. Ann cried, “Why are you doing this to me?” The next thing Mrs. Thompson heard or saw was Flanagan handing two bloody knives to her husband, who was sitting next to her in the front seat of the automobile. During the murder Mrs. Thompson stated that she had been sitting inside the car. She had a spot of blood on the bottom of her blue pants. Later that morning, after her husband had fallen asleep in their motel room, Mrs. Thompson called the police and reported Ann’s murder.

Flanagan took the witness stand in his own defense and testified that Larry and Charlene Thompson killed Ann while he waited in the automobile. Larry Thompson did not testify. Thus the evidence is in direct conflict concerning Mrs. Thompson’s participation, if any, in the murder.

I

Flanagan contends that Mrs. Thompson was an accomplice and in the absence of sufficient testimony to corroborate her testimony his motion to exclude the State’s evidence was due to be granted.

Following Yarber v. State, Ala. (Ms. June 14, 1978), this court recently discussed the law governing accomplices and corroboration. Jacks v. State, 364 So.2d 397 (Ala.Cr.App.), cert. denied, 364 So.2d 406 (Ala.1978). Here we need only restate some of the controlling principles of law. The mere presence of a witness at the scene of a homicide, without more, is insufficient to show that witness’s complicity in the crime. Jacks, 364 So.2d at 402. Except where the State’s evidence undisputedly makes the witness an accomplice, the defendant has the burden of showing the witness’s complicity. Jacks, 364 So.2d at 403. Whether a witness is an accomplice may be a question of law or fact. It becomes a question of law only where the court is clearly convinced by a preponderance of the evidence that the witness could have been indicted and convicted of the same charge for which the defendant is on trial and that the witness freely participated in the crime. Where there is no conflict in the testimony, the question of whether a witness is an accomplice is a question of law for determination by the trial court. Jacks, 364 So.2d at 403. The fact that a witness was jointly indicted with the appellant does not raise a presumption that he was an accomplice. Jacks, 364 So.2d at 403. Where a witness denies participation in the crime, the issue of his being an accomplice is a disputed fact presenting a question for the jury despite the additional fact that the witness previously had been convicted for the identical crime for which the defendant is on trial. Jacks, 364 So.2d at 403, citing Yarber, supra. Under the same reasoning, the mere fact that a witness is subsequently convicted for the same offense for which the defendant is on trial will not make that witness an accomplice as a matter of law. Yarber, supra.

Applying these principles to this cause, Mrs. Thompson was not an accessory as a matter of law. She testified she was in the automobile when Flanagan stabbed Ann Wilson. Flanagan testified that he was in the car when Mr. and Mrs. Thompson committed the murder. The issue was one of fact for the jury. Yarber, supra; Jacks, supra.

Where the issue of whether the State’s witness was an accomplice is for the jury, the denial of the accused’s motion to exclude the State’s evidence for insufficient corroboration is not error. Jacks, 364 So.2d at 404.

II

During the cross examination of Dr. Ronald Dale Rivers, chief coroner and medical examiner for Jefferson County, defense counsel attempted to determine whether a contributing cause of Ann Wilson’s death was an inflamed liver. The trial judge sustained the State’s objection.

“THE COURT: I sustain the objection. Mr. Hassinger, her medical history or habits hasn’t got anything to do with this case.
“MR. HASSINGER: If the liver was inflamed to such a degree that it was a contributing cause of death, it would be.
“THE COURT: Contributing cause of death wouldn’t matter if the knife wound killed her. That’s the cause of death, legally.”

Flanagan contends that the above statement of the trial judge was “distinct, harmful error”.

The remarks of the experienced trial judge were quite proper. Dr. Rivers testified that the cause of death was “shock and hemorrhage due to multiple stab wounds” and that there were sixteen stab wounds (eight to the chest, four to the abdomen, and four to the arms), any of which “in and of itself could eventually have caused death without medical attention”. He did state the deceased’s liver was “unusual” because there was “hepatic triad-itis ... a mild chronic inflammation of the liver”.

The law on contributing causes of death in a prosecution for homicide is clear.

“Where, . . . , the wound inflicted by defendant upon the victim is dangerous to life, the fact that there are other contributing causes of death does not prevent such a wound from being the legal cause of death.” Smith v. State, 354 So.2d 1167, 1170 (Ala.Cr.App.), cert. denied, 354 So.2d 1172 (Ala.1978).

The unlawful act of the accused need not be the sole cause of death. “(T)he test of responsibility is whether the act of accused contributed to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also contributed.” 40 C.J.S. Criminal Law § 11 (1944). Thus where it appears that the death of the deceased was accelerated by the violence of the accused, his guilt is not extenuated because death might, and probably would, have been the result of the disease with which the deceased was afflicted at the time of the violence. State v. Morea, 2 Ala. 275 (1841); Barron v. State, 29 Ala.App. 137, 193 So. 190 (1940). To render a defendant guilty, it is not necessary that the blow given by him, or his wrongful act, was the sole cause of death. Huckabee v. State, 159 Ala. 45, 48 So. 796 (1909). The blow need not have been the sole efficient cause of death. Even if it was only a partial cause accelerating death, the defendant is nevertheless responsible. Harvey v. State, 15 Ala.App. 311, 73 So. 200 (1916).

We interpret the remarks of the trial judge as merely a succinct statement of the law set forth above and not a comment upon the evidence or that the particular knife wounds in this case were, in fact, the legal cause of death. While his comment may be subjected to that interpretation, defense counsel made no objection or request that the judge instruct the jury on the meaning and import of his statement and should not now be heard to complain. Smith v. State, 335 So.2d 393, 397 (Ala.Cr.App.), cert. denied, 335 So.2d 397 and 398 (Ala.1976); Dolvin v. State, 51 Ala.App. 540, 544, 287 So.2d 250 (1973).

Ill

As his last argument for reversing his conviction, Flanagan contends that the trial court unduly limited the scope of his cross examination of Charlene Thompson. On appeal it is argued that defense counsel was attempting “to probe the extent of a pattern of physical abuse, mental duress, sexual abuse, and other indicators of the nature of the relationship existing between Charlene Thompson and her husband” in order to prove “the true state of (her) mind” on the day of the incident and whether her perceptions were colored by that relationship.

The first alleged instance of undue limitation of cross examination appears in the record as follows:

“Q. • (Defense Counsel): Has your husband ever beaten you or stabbed you before?
“MR. BLACK (Assistant District Attorney): I object to that.
“THE COURT: I sustain the objection.
“Q. Have you ever told the police what your husband had done to you?
“MR. BLACK: I object to that.
“THE COURT: Sustain the objection.
“Q. Did you have any black eyes on that day?
“A. Yes, I did.
“Q. How did you get those black eyes?
“A. My husband hit me.
“Q. Why did your husband beat you? “MR. BLACK: I object to that.
“THE COURT: Sustain the objection.
“Q. Had your husband beaten you because you had been fighting—
“MR. BLACK: Well now, that’s just what I’ve objected to.
“THE COURT: Sustain the objection.
“MR. ANDERSON: Your Honor, if this witness was made to do certain things, I think it is relevant to this situation to bring out this testimony.
“THE COURT: She can testify she did certain things because of certain things, but not why somebody did something to her, she may not testify to.
“Q. Had your husband ever tried to make you fight another woman?
“MR. BLACK: I object to that.
“THE COURT: I sustain the objection.

A witness may not testify to the uncommunicated mental operation or intent of another. Fincher v. State, 211 Ala. 388, 100 So. 657 (1924); Whigham v. State, 20 Ala.App. 129, 101 So. 98 (1924); Humber v. State, 19 Ala.App. 451, 99 So. 68, cert, denied, 210 Ala. 559, 99 So. 73 (1924); Slayton v. State, 27 Ala.App. 422, 173 So. 632 (1937); Armstead v. State, 57 Ala.App. 459, 329 So.2d 150 (1976). Therefore, since the questions asked of the State witness on cross examination called for testimony as to the mental operation of another, that objection was properly sustained. McDonald v. State, 340 So.2d 103 (Ala.Cr.App.1976).

On cross examination of a different State witness, Deputy Sheriff Detective Paul Couch, the trial judge sustained the State’s objections to several of the questions asked by defense counsel.

Prom the record it appears that defense counsel was cross examining the detective about a conversation had between Charlene Thompson and Sergeant James Earl Smith.

The witness testified that he was not present during the entire conversation between Sergeant Smith and Mrs. Thompson and that he “couldn’t tell you exactly without refreshing myself with some written or taped part of it”. The trial judge, after questioning the witness, determined that “(h)e didn’t hear any of it. James Earl Smith would be the man you would need.” Sergeant Smith never testified. Mrs. Thompson’s statement was never offered in evidence.

Because the officer was not familiar with the conversation between Mrs. Thompson and Sergeant Smith the trial judge did not err in sustaining the State’s objection. Lowery v. State, 25 Ala.App. 529, 149 So. 726 (1933). It is fundamental that testimony about a matter should not be admitted unless it first appears that the witness has knowledge of such matter. McElroy, § 105.01.

We have searched the record for error and found none prejudicial to the appellant. Under the evidence his guilt or innocence was solely a question for the jury. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Charlene Madison THOMPSON v. STATE.
    6 Div. 879.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied Feb. 20, 1979.

      Craig R. Izard, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was convicted for the first degree murder of Veronica Ann Cagle Wilson. Sentence was fixed at life imprisonment. This is a companion case to Flanagan v. State, 369 So.2d 46, 6 Div. 865 (Ms. January 30, 1979, Ala.Cr.App.).

The only issue presented on appeal is the failure of the trial judge to give the following requested charges.

“Defendant’s Charge No. 5
“The Court charges the jury that mere presence alone at the scene of a homicide is not sufficient to make a person an accessory.”
******
“Defendant’s Charge No. 6
“The Court charges the jury that one is not guilty of homicide because he failed to prevent it.”

Neither charge is in the required form and on that basis alone their refusal was not error.

“It is the rule that in criminal cases tendered written instructions should be hypothesized on the belief from the evidence and a refusal of instructions in a criminal case not so hypothesized is not error. Shouse v. State, 36 Ala.App. 614, 63 So.2d 722; Slaughter v. State, 47 Ala. App. 634, 259 So.2d 840, cert. denied, 288 Ala. 751, 259 So.2d 845; Bush v. State, 211 Ala. 1, 100 So. 312. (See innumerable cases in Alabama Digest, Volume 7, Key No. 814(3).) Neither of these charges meets the required rule and the court cannot be put in error for their refusal.” Cork v. State, 50 Ala.App. 670, 676, 282 So.2d 107, 112 (1973).

See also Hudson v. State, 335 So.2d 208, 211 (Ala.Cr.App.), cert. denied, 335 So.2d 211 (Ala.1976).

“It has long been the rule in Alabama that requested instructions, tendered in a criminal case, should be written in such a form that they are hypothesized on a ‘belief from the evidence.’ A refusal of instructions not so hypothesized is not error, and a trial judge may properly refuse any requested instruction not predicated upon a consideration of all the evidence. Welch v. State, 156 Ala. 112, 46 So. 856 (1909); Duchac v. State, 52 Ala.App. 327, 292 So.2d 135, cert. denied, 292 Ala. 251, 292 So.2d 139 (1974); Cork v. State, 50 Ala.App. 670, 282 So.2d 107 (1973); Rice v. State, 46 Ala.App. 12, 237 So.2d 122 (1970).”

The State’s evidence made out a pri-ma facie case of first degree murder where the victim was brutally and savagely stabbed to death. We have searched the entire record for error prejudicial to the appellant and have found none. The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Charlene Madison THOMPSON.
    78-307.
    Supreme Court of Alabama.
    April 6, 1979.
   BEATTY, Justice.

WRIT DENIED.

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