author: BOWEN, Judge.

text:
    John Earnest CAMPBELL v. STATE.
    8 Div. 985.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 1977.
    Rehearing Denied Jan. 24, 1978.
    D. Larry Waites and Charles E. Caldwell, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the rape of a sixteen year old girl. Punishment was set by the jury at ten years imprisonment. The appellant is represented by retained counsel.

The evidence presented by the state tends to show that the appellant and Paul Ashley, on the night of September 24, 1976, followed the prosecutrix, her sister, and another female when the three girls left the Recreation Center in Guntersville, Alabama. The appellant, driving his red Cougar automobile, forced the prosecutrix to stop her car on a mountain road and gained entrance to her car at gunpoint and by threat. During this time the sister of the prosecutrix managed to escape after being threatened and chased by the appellant.

The appellant drove the prosecutrix against her will into the adjoining county of Madison, forced her into his own automobile, in which his confederate Ashley had followed, and returned to Marshall County. There he made the prosecutrix and the other girl undress and then raped the prosecu-trix two different times. While the appellant was in the woods with the prosecutrix, Ashley had sexual intercourse with the other girl in the back seat of the appellant’s automobile. The appellant then drove the two girls back to the automobile of the prosecutrix, which had been left in Madison County, and released them.

Returning to Guntersville, the appellant’s automobile ran out of gasoline. Ashley and the appellant caught a ride with a stranger, Robert Reese, driving a red Ford Fairlane.

After her escape, the sister of the prose-cutrix went home and told her mother of the “kidnapping”. The Marshall County Sheriff’s Office was notified and a search began for the two missing girls, Ashley and another man, and a red Cougar automobile. Both the prosecutrix and her sister testified that they knew Ashley but they had never seen the appellant before that night.

Spotting the red Ford, two deputies of the Marshall County Sheriff’s Office followed the car until it stopped for a red light. The deputies then pulled up beside the Ford and requested that the occupants identify themselves. Upon learning that Ashley was in the Ford, the two deputies placed all three occupants of the automobile under arrest for kidnapping. A search of the appellant disclosed a .38 caliber derringer.

The only issue raised on appeal is the asserted lack of probable cause to arrest the appellant. This necessitates a review of those specific facts material to a finding of probable cause.

Marshall County Deputy Jim Pickett testified that he received a notification by radio about an alleged kidnapping shortly after midnight on September 24,1976; that he “spoke to” the prosecutrix’s sister who had escaped from the appellant and that she described the automobile of the appellant as being red in color and having “Buster” or “Duster” written on it. Officer Pickett later learned that the automobile was a red Cougar. After interviewing the sister of the prosecutrix, Officer Pickett contacted his lieutenant and “got further information from him and was looking for one Paul Ashley” and one other man.

Shortly thereafter, Pickett received a radio call that the girls had been “dropped” and the subjects were returning to Gunters-ville. Roadblocks were established and within a short time Pickett observed the lights of an approaching automobile go out and come back on “as if trying to signal”. Seeing that it was a red car containing at least two individuals, Pickett followed it even though it did not have “Buster” written on it and was a red Ford Fairlane and not a red Cougar.

“So the way people mistake cars, that was a red car and about where it should be at the right time for that time of night. And it was a fastback-type. I could see at least two people in it. I knew we was looking for at least two.”

Deputy Pickett came alongside the red Ford at a traffic light, “waved for the people to hold up a minute”, and requested that they identify themselves. Upon learning that Ashley was in the automobile, Pickett and his partner turned on the blue light on the patrol car and arrested all three occupants of the car for kidnapping. Because the sister of the prosecutrix had reported being chased with a pistol, Deputy Pickett drew his weapon and, with his partner, searched the three suspects. A .38 caliber derringer was found on the appellant. Pickett testified that, at the time these suspects were apprehended, the arresting officers had no information concerning the appellant’s involvement in any crime but did have information that two suspects were involved.

The information available to the deputy sheriffs was more than sufficient to justify the stopping of the automobile. Rutherford v. State, 48 Ala.App. 289, 264 So.2d 210 (1972); Youngblood v. State, 47 Ala.App. 571, 258 So.2d 913 (1972). The fact that the automobile involved was a red Ford Fairlane instead of a red Cougar is immaterial in view of the facts that it contained at least two individuals and was in the approximate location at the correct time for the sought after vehicle. Herrin v. State, Ala.Cr.App., 349 So.2d 103, cert. denied, Ala., 349 So.2d 110 (1977). Upon learning that the only identified suspect was in the automobile (the name of the other suspect being unknown either to the victims or the deputies) and that a pistol had reportedly been used in the commission of the crime, the deputies had the right and responsibility to subject each occupant of the automobile to a “pat-down” search. Hoppins v. State, Ala.Cr.App., 337 So.2d 134 (1976); Bates v. State, 48 Ala.App. 489, 266 So.2d 155 (1972); Crane v. State, 55 Ala.App. 619, 318 So.2d 315 (1975). This right is recognized in Alabama by statute. Title 15, Section 118(1)—(2), Code of Alabama 1940, Recompiled 1958 (§§ 15-5-30, 31, Code of Alabama 1975). This was the only reasonable course of action open to the deputies under these circumstances. The fact that a pistol (derringer) was found on the appellant, when considered along with the information available to the deputies when the automobile was stopped, was ample to supply the probable cause necessary for the proper arrest of the appellant. Hoppins, supra; Burrow v. State, 55 Ala.App. 24, 312 So.2d 596 (1975). Where a law enforcement officer has received information from a credible source leading to a reasonable belief on his part that an individual has committed a felony, it is not necessary to obtain a warrant in order to effect the arrest of that person. Burrow, supra; Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81 (1975); Culbert v. State, 52 Ala.App. 167, 290 So.2d 235 (1974). Title 15, Section 154, Code of Alabama 1940, Recompiled 1958 (see Code of Alabama 1975, §§ 15-10-3).

A law enforcement officer may have probable cause for a warrantless arrest based on the identification or description of the suspect or his motor vehicle without knowing the identity of the person to be arrested. Sexton v. State, Ala.Cr.App., 349 So.2d 126 (1977); also Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1975); Jackson v. State, 55 Ala.App. 334, 315 So.2d 131, cert. denied, 294 Ala. 760, 315 So.2d 136, cert. denied, 423 U.S. 898, 96 S.Ct. 202, 46 L.Ed.2d 132 (1975). The arresting officer may base his arrest on an official description of the suspect or his motor vehicle as where he receives information from a police radio bulletin or report describing the person or vehicle. Brown v. State, 55 Ala.App. 615, at 619, 318 So.2d 311 (1975); McClendon v. State, Ala.Cr.App., 341 So.2d 174, writ quashed, Ala., 341 So.2d 178 (1976). The identification or description of an offender or a motor vehicle may also be supplied to the police by the victim of or witness to an offense as well as by an informer. Turk v. State, 53 Ala.App. 106, 298 So.2d 37 (1974); Burrow v. State, 55 Ala.App. 24, 312 So.2d 596 (1975); Thomas v. State, 50 Ala.App. 227, 278 So.2d 230 (1973); Smith v. State, 51 Ala.App. 349, 285 So.2d 512, cert. denied, 291 Ala. 798, 285 So.2d 515 (1973).

While mere presence is never a sufficient basis for a finding of probable cause to arrest, presence when coupled with other circumstances may ripen suspicion into a reasonable belief capable of supporting a finding of probable cause.

For the reasons stated there was abundant evidence to support the finding of probable cause made by the trial court. Having reviewed the record in its entirety and finding no errors adverse to the substantial rights of the appellant, we are of the opinion that the judgment of conviction is due to be affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: HARRIS, Presiding Judge.

license: Public Domain

text:
    Joe Ed HUDSON v. STATE.
    3 Div. 791.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of the offense of assault with intent to rob and the Court sentenced him to twenty years imprisonment in the penitentiary. Prior to trial appellant filed a written waiver of arraignment wherein he pleaded not guilty and not guilty by reason of insanity. After sentence was imposed he gave notice of appeal in open court. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The facts presented by the State are not in dispute. Appellant did not testify nor did he offer any evidence in his behalf. It took the jury only twelve minutes to return a verdict finding appellant guilty as charged in the indictment.

Dink Hamilton testified that on December 19, 1976 he was employed as manager of the Raceway Station on the Mobile Highway near the intersection of the Southern By-Pass and the Mobile Highway. He stated that he opened the station about 7:00 a. m. on December 19, 1976, and a few minutes later someone knocked on the office door. He opened the door and saw a man standing there with a pistol in his hand. This man was wearing a wig and fake beard and stuck the pistol in his stomach and told him to get back inside and he wouldn’t get hurt.

Hamilton stated that he grabbed the pistol and wrestled with the man for a minute or two. Hamilton pushed the man back and ran to a nearby building and told the attendant that he was being robbed and asked him for a pistol. He then saw the man run to a 1967 yellow Ford which was parked in front of the station in which another man was behind the steering wheel. This other man was wearing glasses, a wig and a fake beard. As the yellow Ford drove across the parking lot Hamilton fired his pistol at the fleeing car but did not hit it. The fleeing car went south on Highway 31. Almost instantly a State Trooper pulled into the station and Hamilton got in the Trooper’s car and they went in hot pursuit of the yellow Ford.

Hamilton further testified they followed the fleeing Ford down Highway 31 to a Pak-A-Sak Store near the English Village where he observed the two men jump from the car and run into some woods as the moving car ran into a ditch. He identified several photographs of the yellow Ford in which his assailant made his escape. Hamilton stated that the Ford had two rear license tags on it.

On cross-examination Hamilton stated that appellant was not the man who held the gun on him at the station but was the driver of the getaway car.

Anderson Dixon, an inmate at Draper Prison, testified that in December 1976 he was working on the dog patrol and had been on this assignment for thirteen months. He described the tracking hounds as a mixed breed black and tan dog and a full blooded hound. He stated that he had used these dogs to track people well over 100 times.

Dixon stated that on December 19, 1976 around 9:30 a. m., he had occasion to use these tracking dogs off Highway 31 near a Pak-A-Sak store in Montgomery County. He said the dogs picked up a scent and ran through a swamp area near Catoma Creek until they came upon a man seated under a cedar tree whom he identified as appellant. He said his tracking partner was in front of him and reached appellant before he got there. When he got to appellant he heard him say, “Mens, I don’t think hard of y’all for catching me., I know y’all and everything. I just got caught.” Dixon said that appellant’s pants legs were muddy and wet just like his from going through the swampy area between where the yellow car was ditched and where they discovered appellant.

Dixon further testified that when they reached appellant he appeared to be tired from running and “he was blowing.” He further stated that his tracking partner put handcuffs on appellant.

From the record:

“And I think Jesse handcuffed him too tight and had to loosen off on ’em. Right Joe?
“The Defendant: I don’t know.”

Police Officer Fred Thomas Brock testified he investigated the attempted robbery on December 19, 1976 and after receiving a radio dispatch he proceeded to the store near the English Village where he saw a yellow Ford in a ditch. He identified State’s Exhibit 6 as the photograph of the car in the ditch. He stated that he protected the car at the scene and upon impounding the car at the City lot, he noted the identification number of the car on the impound form. He said he obtained a certified copy of the 1977 car tag receipt issued to Laura Hudson for this vehicle and that the receipt showed the same vehicle identification number that he recorded at the time he impounded the car. He also stated there were two license tags — 1976 and 1977 —on this yellow Ford and they were both issued to Laura Hudson. Laura Hudson was identified as the wife of the appellant.

Thomas Ray Shanks, an evidence technician with the Montgomery Police Department, identified State’s Exhibit 1 as the blue and white striped shirt which appellant removed in his presence at the Department on December 19, 1976. He also identified State’s Exhibit 2 as a wig and beard found about 30 feet to the rear of the wrecked yellow Ford, and he identified State’s Exhibit 3 as a yellow cap found in the rear seat of the impounded yellow Ford. He personally delivered these Exhibits to the Toxicologist at the Montgomery Laboratory-

Police Officer Robert L. Ingram testified that he had known appellant for about twelve years. He participated in the reported assault to rob the Raceway Service Station on December 19, 1976. He stated when he arrived on the scene of the wrecked yellow Ford he immediately recognized the car as one he had seen appellant driving on several prior occasions. He also identified the yellow cap, State’s Exhibit 3, as being similar to the one he had seen appellant wearing on several occasions.

Mr. Thomas Hopen who was employed by the Department of Toxicology, and whose qualifications as an expert were admitted by the defense, testified that some material taken from the shirt owned and worn by appellant was similar to the material found in a wig and beard near the wrecked Ford saying, “They were similar in all physical characteristics and could have a common origin with the hairs from the wig.”

Appellant’s conviction rested, in part, on circumstantial evidence. Circumstantial evidence is as good as direct evidence so long as it points to the guilt of the accused. As we view the record this is one of the strongest cases of circumstantial evidence tending to show the guilt of the accused that has reached this Court in some time. Chafin v. State, Ala.Cr.App., 333 So.2d 599.

The law is well settled that when, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. The community of purpose need not be proved by positive testimony: The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the evidence in the case. Stokley v. State, 254 Ala. 534, 49 So.2d 284; Bass v. State, 55 Ala.App. 5, 312 So.2d 576.

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

There was more than ample circumstantial evidence that appellant was guilty as charged. The State does not claim that appellant was the man who stuck the pistol in the stomach of the manager of the Raceway Service Station, but the State contends that appellant was the driver of the getaway car. This was a “hot pursuit” case. The victim of the attempted robbery and a State Trooper followed the fleeing yellow Ford until they saw the two men jump out of the moving car and run into a wooded area. Shortly thereafter trackers with trained dogs followed the trail of the fleeing men and came upon appellant sitting under a cedar tree. Before anyone said anything to appellant he spoke up and said, “Mens, I don’t think hard of y’all catching me. I know y’all and everything. I just got caught.”

The State’s evidence further showed that the yellow Ford in which the men fled the scene of the attempted robbery belonged to appellant’s wife and he had been seen by a police officer driving this same car for several weeks before the date of the crime. In addition to this there was expert testimony that fibers from the wig and fake beard were similar to those found on the shirt appellant was wearing when apprehended. The yellow cap found in the car driven by appellant was traced directly to him by a police officer who had known appellant for twelve years.

There was no error in overruling appellant’s motion to exclude the State’s evidence. Young v. State, 283 Ala. 676, 220 So.2d 843; Bridges v. State, 56 Ala.App. 411, 321 So.2d 749.

A careful examination of the entire record reveals no reversible error and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    William Martin DOWNING v. STATE.
    4 Div. 581.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Daniel E. Robison, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted by the grand jury for the robbery of Granger’s Seafood. The jury returned a verdict of guilty as charged and fixed punishment at fifteen years imprisonment. The trial court then set sentence accordingly. The appellant’s motion for new trial, challenging the weight and sufficiency of the evidence, was overruled.

John Granger testified that he owned and operated the establishment known as Gran-ger’s Seafood at Gordon in Houston County where he resided. On the afternoon of January 11, 1977, the appellant came to Granger’s Seafood where he and Granger drank a “couple of beers” together (R. p. 7). Granger stated that he had known the appellant prior to that date by reason of mutual employment at the Nuclear Plant in Columbia, Alabama. The two men decided to drive to Georgia to buy some liquor. In fact, Granger testified that they did not buy any liquor while they were in Georgia. Upon returning to Granger’s Seafood, Granger testified that he went back into the kitchen to prepare a plate of food for the appellant. Granger then served the appellant and went back into the kitchen to get a plate for himself. When he came out of the kitchen the second time, Granger stated that the appellant met him with a pistol “with it cocked and in my face” (R. pp. 7-8). Granger related that he recognized the pistol as his own, the same one customarily kept in a holster near the cash register.

According to Granger’s testimony, the appellant then told him to give the appellant the money belonging to Granger and to unlock the cash register (R. p. 9). Granger further testified that the appellant said he was “going to have to kill” Granger. The appellant then threw his plate of food into the fireplace. At this point Granger was begging for his life as he removed $45.00 in cash from his pocket and placed it on the table! Granger testified that the appellant took the money and then proceeded to look in the cash register which contained some watches and small change (R. p. 9). Gran-ger related that the appellant took one of the watches from the cash register, then turned to walk from behind the counter. When the appellant turned his back, Gran-ger reached for a twenty-two caliber automatic rifle which was standing undetected near him. As he grasped the rifle, Granger jumped behind a large supporting post in the center of the building, wherehpon the appellant opened fire from across the room. After having fired six rounds, which struck various objects in the room, the appellant’s weapon was empty (R. p. 10). Granger, having counted the rounds, then came from behind the post and shot a bottle over the head of the appellant. Granger testified that, he then told the appellant to throw out his gun. In response, the appellant threw the gun on the floor with the hammer cocked, together with $25.00 of the $45.00 he had taken, and the watch. Granger further instructed the appellant to put his hands over his head and walk outside. The appellant walked outside, got into his car, and drove away. Granger then called the police.

The State introduced four exhibits into evidence, a Right Guard can, a bottle cap, and a holster, objects which were struck by the appellant’s gunfire. State’s exhibit four was a photograph of the pistol used by the appellant as it was found by the police on the floor with the hammer cocked and six empty shell cases inside. In further testimony put on by the State, Investigator Hunter and Chief of Police Roney identified State’s exhibits one, two, and three. They also testified as to the reasonable and accurate portrayal in State’s exhibit four of the scene on the floor where the gun was lying. Chief Roney arrived at Granger’s Seafood at 6:00 p. m., and Investigator Hunter at 6:40 p. m. Both Chief Roney and Investigator Hunter testified to the discovery of bullet holes in the wall and counter at Granger’s Seafood.

Officer Joe Pitts was called as the first witness for the defense. His testimony established that sometime in February at preliminary hearing he overheard a conversation between Mr. Granger and an investigator relating to the robbery. Officer Pitts went to his office and brought back five photographs for Granger’s examination. Officer Pitts indicated that Mr. Granger identified one of the five photographs as the man who robbed him. The subject in the photograph was the appellant, Martin William Downing, but gave a different name.

The defense called Woody Welch, whose testimony on direct examination sought to impeach the credibility of Granger as a witness. Welch indicated that he and James Martin visited Granger a day or two after the incident in question had taken place. His testimony indicated that Gran-ger did not know who robbed him. He further testified that Granger’s reputation for truth and veracity in the community was “bad, real bad” (R. p. 47). The State’s cross-examination of Welch brought out that he and his wife had been convicted in 1972 of assault and battery against Mr. Granger, and he had received a six-month sentence, together with a $100.00 fine (R. pp. 49-50).

The next witness for the defense was James Martin who employed Woody Welch on a farm nearby Granger’s Seafood. It was brought out on direct examination that Martin was currently under indictment for burglary and grand larceny of a television set belonging to Granger (R. pp. 52-53). Martin testified that, when he and Welch visited Granger shortly after January 11, 1977, Granger showed him the bullet holes in his store and in his holster which he was wearing on his left side. The holster was one of the objects struck by appellant’s gunfire. The rest of his testimony on direct was substantially the same as that of Welch.

In the cross-examination of Martin the State brought out that Martin was currently an inmate of the Houston County Jail where he met the appellant and discussed the case at bar (R. pp. 56-57).

The appellant admitted he had a prior conviction in 1973 for buying, receiving, or concealing, stolen property, which resulted in a two-year sentence with four years probation (R. pp. 58-59). The appellant then testified that he had known Mr. Granger for about five or six years. The testimonies of the appellant and of Mr. Granger were substantially in agreement until their alleged return from Georgia. The appellant stated that Granger went into the Kitchen to prepare some food for the appellant, which he did not eat. The appellant stated that Mr. Granger wanted to go back to Georgia and that his refusal angered Gran-ger who then asked him to leave. The appellant related that he left Granger’s Seafood at this point and went home. He recalled being drunk at the time. The next day the appellant went to Mobile to look for employment and stayed there where he was ultimately arrested on February 11, 1977. The appellant denied the testimony of Mr. Granger relating to the robbery and the shooting.

I

On cross-examination of the appellant, inquiry was made concerning a conviction for robbery in Bay Minette on July 7, 1969, which the appellant denied (R. p. 65). Appellant maintained that he had one ticket in the nine years he was working in the Bay Minette area. The district attorney then continued the questioning as follows (R. p. 66):

“BY MR. SORRELLS:
“Q. Weren’t you arrested in Bay Mi-nette?
“MR. ROBINSON: Objection, Your Hon- or.
“THE COURT: I have already ruled on that.
“Overruled.
“BY MR. SORRELLS:
“Q. Isn’t that you right there? And weren’t you arrested for robbery in Bay Minette on July 7, 1969?
“A. No, I was not.
“Q. And you are Martin Downing, is that correct?
“A. Martin William Downing.
“Q. Now you are saying you just happened to go to Mobile right after this thing happened, is that right?
“A. Right, because there wasn’t any work.
“Q. Because there wasn’t any work around here? But you left the very next day after this happened, is that right?
“A. Yes, sir.
“Q. Wasn’t any gunshots or anything else over there at Mr. Granger’s place?
“A. Not when I was there.”

The appellant asserts the above examination constituted reversible error since the questioning related to an alleged arrest of the appellant rather than a conviction of the appellant, and he cites us to Headley v. State, 51 Ala.App. 148, 283 So.2d 458, and authorities therein cited; and Title 7, Sections 434-435, Code of Alabama 1940, as recompiled 1958.

In examining the colloquy above quoted, the State had first laid a predicate by inquiring if the appellant had been convicted of robbery on July 7, 1969, in Bay Minette, which had been denied by the appellant (R. p. 65). The colloquy above quoted then follows. As may be seen the appellant replied in the negative, and such negative answer may not be made the basis of reversal. See Higginbotham v. State, Ala.Cr.App., 346 So.2d 525, and authorities therein cited.

II

Appellant at the close of the evidence moved for a directed verdict, and in his motion for a new trial challenged the weight and sufficiency of the State’s evidence, asserting that the State did not establish a prima facie case of robbery.

This Court, per Harwood, J., in Tunstill v. State, 33 Ala.App. 460, 34 So.2d 857, cert. denied 250 Ala. 421, 34 So.2d 859, observed:

“. . . Thomas v. State, 91 Ala. 34, 9 So. 81, 82, contains an excellent discussion by Justice McClellan of the offense of robbery. Therein he defines robbery to be ‘a felonious taking of goods from the person of another, or in his presence, against his will, by violence, or putting him in fear. And this violence must precede or accompany the stealing.’ In Hardis v. State, 28 Ala.App. 524, 189 So. 216, 217, in discussing the offense of robbery Judge Samford wrote: ‘As defined by our decisions, robbery is an offense against both person and property, and is briefly defined as the felonious taking of money or goods of value from the person of another, or in his presence, by violence or by putting him in fear. Parks v. State, 21 Ala.App. 177, 106 So. 218.’”

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

The conflict in the testimony between the appellant’s alibi and that of the State presents' a question for the jury. McColston v. State, 20 Ala.App. 591, 104 So. 347; Zimmerman v. State, 49 Ala.App. 442, 272 So.2d 914, and cases cited therein.

After careful examination of this record, we find same to be free from error. The judgment is

AFFIRMED.

All the Judges concur.


text:
    Mack DAVIS, alias v. STATE.
    6 Div. 544.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.

      Ralph C. Burroughs, Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Scott W. Bamman, Legal Research Aide, for the State.
   HARRIS, Presiding Judge.

On the evening of June 7, 1976, appellant shot and killed his mother in the kitchen of the home where she was residing. The death weapon was a 22 bolt action rifle which belonged to his father. Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. Throughout the trial proceedings appellant was represented by counsel from the Public Defender’s Office in Tuscaloosa and at arraignment pleaded not guilty and not guilty by reason of insanity. After sentence was imposed appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

The facts leading up to and culminating in the death of appellant’s mother are not in dispute. After appellant was arrested he was given the Miranda rights and warnings and signed a waiver of rights form. He then gave the officers a confessory statement.

From the record:

“Q. All right, sir, and did he make any statements concerning that?
“A. Yes, he did.
“Q. I would like to show you State’s Exhibit marked No. Fourteen and ask if you can identify that, please.
“A. Yes, sir.
“Q. What would that be, please?
“A. This is the handwritten statement taken by Chief Miller. He actually wrote it in my presence from the defendant.
“Q. And this is the statement we have been discussing, is that right?
“A. That is correct.
“Q. I note that the name, Mack Davis, appears in the left hand margin of this statement. Would that be the signature of the defendant?
“A. Yes, sir, it is.
“Q. And was that made by him?
“A. Yes, sir.
“Q. All right, sir, was it made at the time of the writing after the statement was made?
“A. This was made after the statement was written, after it had been read back to Mr. Davis and after Mr. Davis had read the statement himself and he placed his signature on each page and at the bottom of the last page.
“Q. All right, sir, now, Officer Fields, I would like for you to state at this time what the defendant stated to you and Chief Miller.
“A. He stated, T got up to go to work. I didn’t feel like working, then I went back to bed and stayed until about Ten A.M., then sat up again. I had a couple of dollar bills; about eleven o’clock I drove to Fleetwood grocery and got a ■carton of beer. I got home again about noon. Mama got a beer and I drank one. I opened another beer and laid down on my bed and turned the radio on. I rested for one-half to one hour. Mother was in the kitchen cooking. I got up to get another can of beer. There was a twenty-two caliber rifle at the head of Mama’s bed. The shells was at the head of the bed. I put one shell in the gun and walked to the door of the kitchen. She was standing at the front of stove at refrigerator. She wasn’t saying nothing. She was fixing supper, lettuce, radishes, I don’t know why I shot Mama. After I shot her I reloaded the gun. She fell on her side or back. Her head was next to the electric stove. Then I felt of her pulse and then I said, screamed and said, oh Lord. When I put another shell in the rifle I walked back into my room but that time I stuck the gun to my head, I wanted to kill myself but I couldn’t, then I laid the rifle on the bed, then I went back into the kitchen and felt of her pulse, then I got another can of Budweiser beer out of the refrigerator.’
“Q. He stated he did this after he felt of her pulse?
“A. That is correct, yes, sir.
“Q. All right, go ahead.
“A. ‘At that time I left the house and got into my car, and drove to my sister’s house. Her name is Bert. She lives near Mr. W. C. Hyche, got out of the car and went in the house and told Bert to go up to Mama’s house and check on her. I told her that I thought I shot her. I told her to call the law. Bert left her house at that time. She told me to stay there. I stayed in the house in the middle door. And the law came in about thirty to forty minutes. When the officer came I got into — ’
“Q. This is Chief Miller, right?
“A. This is Chief Miller, right. Going back over that sentence, ‘When the officer came I got into, in the back seat, he handcuffed me. We stopped one time so I could be excused. My mother wasn’t fussing at the time I shot her. I don’t know why I shot her. She would hide my beer for herself. I got on to her for opening my beer and setting it around the house.’ ”

Appellant was intoxicated at the time he shot his mother and according to the members of his family he had a drinking problem that existed for years. He often got mad with his mother because she would not give him “whiskey money.” He threatened to kill his mother in the presence of witnesses on numerous occasions. After the shooting appellant got in his truck and drove to his sister’s house and told her he had shot their mother and to call the ambulance and the police.

There was other evidence that he was gainfully employed but he did not work the week preceding the shooting. There was some testimony that appellant and his mother were on friendly terms except when he was drinking and when he was drinking he physically abused her.

The sole and only issue presented on this appeal is whether the trial court erred in failing to hold a hearing to determine appellant’s competency to stand trial on the representation of his attorney “that he does not remember any of the events surrounding the alleged offense of his shooting his mother and is therefore unable to assist his counsel in the defense of his case.”

After appellant was indicted he was committed to Bryce Hospital on two occasions for examination and evaluation. Appellant’s counsel introduced into evidence the medical records covering these two commitments.

On July 22,1976, the Forensic Evaluation Board made the following finding:

“Mr. Davis’ case was reviewed by the Forensic Evaluation Board on this date. It is the opinion of the Board that Mr. Davis has an adequate understanding of the nature of the charges against him and can communicate with his attorney in the preparation of his defense.”

On February 4, 1977, the Lunacy Commission filed the following report:

“We examined Mr. Davis on January 28, 1977, in a Lunacy Commission. This examination indicated a Personality Disorder with chronic alcohol abuse of many years duration including the time of the alleged offense. It is our opinion that the accused was aware of the nature and quality of the act he is accused of and aware of the right and wrong aspects of the situation, and he does not have such a mental disease which would affect his criminal responsibility at the time of the alleged offense.”

r 3 This Lunacy report was signed by Harold . Heller, Ed.D. Superintendent, Thomas Smith, M.D. Psychiatrist, and Joseph D. Woddail, M.D. Psychiatrist.

On March 1, 1977, Dr. Thomas L. Smith, M.D. Psychiatrist, a member of the Lunacy Commission, filed the following report:

“MENTAL STATUS EXAM
“Include: Physical appearance and behavior during interview, affect and mood, speech (coherent, flight of ideas, blocking, etc.), train of thought, content of thought, orientation, memory and intellectual capacity, and patient’s idea of why he. is in the hospital.
“Name: Davis, James Mack
“File: 03 65 77
“Unit: Forensic Ward: 23W
“Date of Birth: 1-17-35 Sex: M
“Date: March 1, 1977
“Narrative Summary: This forty-two year old divorced, White male was committed here from Tuscaloosa County Circuit Court charged with murder of his mother. He has a seventh grade education. Background reveals considerable alcohol abuse with chronic alcoholism in the history. He has been arrested many times on alcohol related charges. He has many fugue states. His sister reports that he was always a different acting member of the family. His current idea of what has happened is that he says ‘they say I tried to kill myself and that I killed my' mother.’ He reports heavy drinking and alcohol abuse in the weeks preceding his mother’s death and that he was ‘half drunk and nervous at the time.’ He has had toxic type hallucinations involving the abuse of the alcohol.
“Mental Status Examination reveals a well-groomed, relaxed, friendly, White male of apparent stated age who speaks spontaneously without loosening of associations. His affect is within normal limits. His content is negative for delusions or hallucinations. Reality testing appears adequate. His ability to abstract thought is somewhat impaired. Sensori-um appears clear. His judgment and insight are fair to good.
“DIAGNOSIS: 303.2 Alcohol Addiction “Competency Statement: This individual appears competent to cooperate in his defense and understands the nature and quality of the acts charged and is judged competent to stand trial.
“Responsibility Statement: This individual appears to have been mentally responsible for his actions at the time of the alleged offense and has no mental disease which would tend to excuse him from such responsibility. He appears to understand the nature and quality of the act charged and the rightfulness and wrongfulness involved as well.
“/s/ Thomas L. Smith, M.D.
“Thomas L. Smith, M.D.
“Psychiatrist
“/dmm
“Date Dictated: 3-1-77
“Date Typed: 3-10-77”

The trial of this case began on April 27, 1977. Before the presentation of any evidence appellant’s counsel objected to the trial proceeding stating that appellant was incompetent to stand trial. Counsel told the Court that appellant remembered nothing of the events surrounding the offense and was unable to assist in his defense. The trial court overruled the objection.

During the course of the trial appellant took the stand on voir dire examination concerning the voluntariness of the confes-sory statement which he made to the inves-fighting officers. In this statement appellant admitted killing his mother. During voir dire appellant repeatedly denied having any recollection of signing the confessory statement or the waiver of rights form though he admitted his signature was on each document.

Insanity is an affirmative defense and puts a statutory burden upon the defendant to clearly prove to the reasonable satisfaction of the jury that he was so afflicted by disease of the brain when the offense was committed as to render him so insane that he did not know right from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong; and the crime must have been the product solely of such mentally diseased condition. Lokos v. State, 278 Ala. 586, 179 So.2d 714; Knight v. State, 273 Ala. 480, 142 So.2d 899.

Appellant called Dr. Jerold S. Lower, a psychologist, as a witness in attempting to support his insanity plea. This witness performed the initial interview with appellant upon his first entry into Bryce in July, 1976. Based upon his interview Dr. Lower concluded that appellant was depressed, his contact with reality was poor, and he was somewhat retarded. Dr. Lower was of the opinion that appellant was probably psychotic at the time of that interview.

On cross-examination this witness testified that the reports of both Dr. Thomas L. Smith and Dr. Joseph Woddail, Psychiatrists, revealed that appellant was sane and criminally responsible for his acts.

It is fundamental that to try an accused while he is incompetent violates due process. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103.

If the accused has presented any evidence to the trial court, before or during the trial, that raises a “bona fide doubt” of his competence, the trial court’s failure to make further inquiry denies him a fair trial. When sufficient doubt as to an accused’s present competency exists, a judicial hearing to determine his competency to stand trial is mandatory. Pierce v. State, 292 Ala. 745, 293 So.2d 489.

In Davis v. State of Alabama, 545 F.2d 460, 5 Cir., it is stated:

“Obviously, one cannot fault a trial court judge for failing to determine a question that he has no reason to believe is an issue.”

And,

“Essential to a claim that the trial court violated one’s procedural due process rights, pursuant to Pate’s mandate, by not determining competence at the time of trial is a showing that the defendant presented evidence raising the issue of competency.”

Absent any evidence raising the issue of competency to stand trial a trial judge is not required to suspend the proceedings and conduct a competency hearing. Barfield v. State, 54 Ala.App. 15, 304 So.2d 257; Billups v. State, Ala.Crim.App., 338 So.2d 478.

Three factors are to be considered by the trial court in evaluating an accused’s competency to stand trial, (1) the existence of a history of irrational behavior, (2) prior medical opinion, and (3) accused’s demeanor at trial. Drope, supra; Davis, supra.

In this ease there was absolutely no history of irrational behavior and no prior medical opinion. As we have stated appellant testified on voir dire and the trial judge observed him and heard his testimony. The record is not silent as to appellant’s demeanor at trial. The fact that appellant’s counsel stated to the Court that he could not recall the events leading up to the killing simply does not meet the test of competency to stand trial. This does not constitute evidence.

As to appellant’s demeanor at trial it can be reasonably inferred that he was aware of the nature of the proceedings. When the trial court explained appellant’s right to have the jury sequestered the record shows the following:

“MR. BURROUGHS: Let the record reflect that I, Ralph Burroughs, attorney for the defendant, explained his rights to him concerning sequestering the jury and I am satisfied he fully understands his rights and he is waiving that right and does not insist that the jury be kept together, is that right, Mr. Davis?
“MR. DAVIS: Yes, sir.”

It thus appears that appellant’s sole ground on which he (claims he was incompetent to stand trial was that he had a loss of memory surrounding the facts on the night he killed his mother. If this claim constitutes incompetency to stand trial then it is a question of first impression in this state.

In Jackson v. State, 548 S.W.2d 685, the Court of Criminal Appeals of Texas, in treating a similar issue, said:

“The question before us is whether an accused’s loss of memory regarding the facts of the event for which he is charged, standing alone, renders him incompetent to stand trial as a matter of law. We find the question to be one of first impression for this Court, but find that there is a growing body of outside authority addressed to the question here presented. We find no case yet reported which has held that the inability to recall the event charged because of amnesia constitutes mental incapacity to stand trial. See Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 (1961, 1962); United States ex rel. Parson v. Anderson, 481 F.2d 94 (3rd Cir. 1973); United States v. Sullivan, 406 F.2d 180 (2nd Cir. 1969); United States v. Stevens, 461 F.2d 317 (7th Cir. 1972); State v. Ferguson, 26 Ariz.App. 285, 547 P.2d 1085 (1976); Bradley v. Preston, 263 F.Supp. 283 (D.C.Colo.1967), cert. den. 390 U.S. 990, 88 S.Ct. 1188, 19 L.Ed.2d 1296; United States v. Stubblefield, 325 F.Supp. 485 (D.C.Tenn.1971); People v. Francabandera, 33 N.Y.2d 429, 354 N.Y.S.2d 609, 310 N.E.2d 292 (1974); State v. Severns, 184 Kan. 213, 336 P.2d 447 (1959); State v. Swails, 223 La. 751, 66 So.2d 796 (1953); . . ."
* * * * * *
“In State v. Pugh, 117 N.J.Super. 26, 283 A.2d 537 (1971), a murder case, the court held that amnesia of the crime does not bar prosecution because, even if the defendant has forgotten the details of the crime, he is still competent to stand trial. The court explained that amnesia concerning the crime ‘does not render a defendant unable to comprehend his position or to consult intelligently with counsel in the preparation of his defense.’ “In Fajeriak v. State, 520 P.2d 795 (Alaska 1974), the Alaska Supreme Court held that the loss of memory did not render one incompetent and that:
‘Policy conjoins with precedent to oppose an expansion of the doctrine of incompetency to include amnesia. The potential for fraudulent allegations of memory loss is so great that we would for this reason alone be reluctant to follow amnesia as a ground for a finding of incompetency even if we were otherwise inclined to do so.’ ”

Even if appellant did not in fact remember the details of the crime, he would still be competent to stand trial. Amnesia concerning the crime does not bar prosecution. A contrary rule would unduly hamper the State’s interest in the prosecution of violators of its criminal laws and jeopardize the safety and security of other citizens. We here and now reject the notion that amnesia, standing alone and absent the three factors above mentioned, constitutes incompetency to stand trial. We prefer to follow the pronouncements in Jackson, Pugh, and Fajeriak, supra.

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Steve WIGGINS v. STATE.
    8 Div. 2.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    Earl D. McNeal, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

Appellant was tried on an indictment charging him with murder in the first degree of Mollie Wiggins (appellant’s wife) by shooting her with a pistol. He had pleaded not guilty and not guilty by reason of insanity. A jury found him guilty of manslaughter in the first degree and fixed his punishment at imprisonment for ten years. He was sentenced accordingly, but upon consideration of his application for probation the court suspended execution of the last nine years of his sentence and placed him on probation for such period of time. At the time of the tragedy defendant was seventy-four years of age and his wife was sixty-nine.

The undisputed evidence is to the effect that between 7:00 P.M. June 27 and 1:00 A.M. June 28, 1976, defendant shot his wife with a pistol while they were both in their home. The shooting was not an accident. Defendant reported the killing to a neighbor and requested that the police be called. They soon arrived, and Mrs. Wiggins was sent to the hospital, where she died eight days later.

No contention is made, and we find no basis for any reasonable contention, that if Mrs. Wiggins’ death was caused by a bullet fired by defendant from a pistol, his conduct constituted at least manslaughter in the first degree. It is apparent that the jury gave him the benefit of the doubt on the question whether there was an absence of malice by reason of the circumstances claimed by defendant in invoking the principle that the absence of malice can be shown at times when one commits a homicide while in a passion aroused by discovery of his wife in an act of adultery. Logan v. State, 155 Ala. 85, 46 So. 480; Brunson v. State, 212 Ala. 571, 103 So. 664; Sheppard v. State, 243 Ala. 498, 10 So.2d 822; Palmore v. State, 253 Ala. 183, 43 So.2d 399; Palmore v. State, 283 Ala. 501, 218 So.2d 830; Farr v. State, 54 Ala.App. 80, 304 So.2d 898. We should note, however, that the evidence as to the claimed infidelity of Mrs. Wiggins was desultory and weak.

The only contention on appeal is that the State did not present sufficient evidence to present a jury issue on the question whether death was caused by the bullet defendant fired into the body of his wife. Dr. Rao Kakani, an experienced general surgeon, as well as an experienced cardiovascular surgeon, testified that he was on duty in the emergency room of the Huntsville Hospital when Mrs. Wiggins was brought there about 2:35 A.M., June 28; she was in serious distress and her blood pressure was very low and she was “in very critical condition at that time.” She had a gunshot wound on the right side of her neck which had gone through her chest to the left side. He performed surgery upon her, by exploring her neck where she was bleeding from a large blood vessel, controlled her bleeding and put a chest tube in her left chest, and she was then taken to the intensive care unit. He had her under his observation in intensive care until she died on July 6,1976, at 10:00 A.M. In answering a question on direct examination by the State as to the cause of her death, he said:

“Her immediate cause is a cardiorespira-tory arrest, that means she stopped breathing and that stopped her heart. I felt that the immediate cause of death was the gunshot wound of the neck.”

At the conclusion of the direct examination of the witness, he testified:

“THE COURT: Is it your testimony that in your opinion, based upon a reasonable degree of medical certainty, that the cause of death of Mollie Wiggins was a gunshot wound of the neck?
“A Yes, sir.”

On cross-examination of Dr. Kakani, he said that on July 4 the patient pulled out the intertracheal tube that he had placed in her throat at the time of the surgery; that the tube was replaced; that the pulling out of the tube was “something that would normally happen accidentally.” In support of appellant’s contention, he emphasizes the testimony of Dr. Kakani, as shown by the following questions and answers:

“Q Can you say for certain that there was no intervening cause of death, outside the gunshot wound, no other outside cause?
“A I can’t.
“Q But you are saying that you can’t say for certain that there was no intervening cause?
“A That is also true.”

In support of his contention that the death of Mrs. Wiggins was not shown to have been caused by a bullet from a pistol fired by defendant, appellant relies heavily, if not exclusively, upon Welch v. State, 45 Ala.App. 657, 235 So.2d 906, in which the late, lamented Judge Cates underscored the necessity of evidence showing that the death of an alleged homicide victim was caused by the act of defendant as charged in the indictment. In so doing, however, Judge Cates was not stating that any greater proof is necessary to present a jury issue on the question of causation as charged in an indictment than is required as to any other material averment of an indictment. He impressively distinguished between the degree of proof required in a civil case and that required in a criminal case, but, even in a criminal case, absolute certainty is not required as to the alleged cause of death or any other material averment of an indictment. To sustain a conviction the jury is required, as it was charged in this case, to be convinced beyond a reasonable doubt and to a moral certainty of the truth of every material averment of the indictment. If there is substantial evidence in support of every material averment of the indictment, the case is properly submitted to the jury. Although we see little basis, if any, for a reasonable doubt as to the alleged cause of Mrs. Wiggins’ death, as revealed by the evidence, we have repeatedly held that the test whether the evidence shows guilt beyond a reasonable doubt and to a moral certainty is to be applied by the jury. The application of that test is not a function of the court. Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976); Bell v. State, Ala.Cr.App., 339 So.2d 96 (1976); West v. State, 57 Ala.App. 596, 329 So.2d 653, cert. denied 295 Ala. 427, 329 So.2d 658 (1976).

The reversal in Welch v. State, supra, is not inconsistent with an affirmance in this case. The difference between the two cases, in the evidence as to the cause of death, is more pronounced than any similarity. According to the majority opinion in Welch, the closest the evidence came to showing that the gunshot wound was the cause of death was the testimony of a physician that the blood clot that caused death was “probably associated” with the gunshot wound.

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

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

AFFIRMED.

All the Judges concur.


text:
    Daniel LACEY v. STATE.
    8 Div. 9.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
    J. Thomas Conwell, Jr., Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

On the afternoon of February 15, 1977, the manager of the Cowboy Corner Western Store was robbed by one man with a pistol and an unidentified confederate. The appellant was indicted and convicted for this crime and sentenced to ten years’ imprisonment. His retained attorney on appeal has filed no brief.

Because the evidence of the appellant’s guilt of the charged crime was insufficient we must reverse the conviction. To reveal the glaring deficiencies in the evidence presented by the prosecution, we need only quote from that portion of the state’s brief.

The State presented the following:

“Albert Winegardner testified he was operating Cowboy Corner Western Store on February 15, 1977; that he and Jack Payne were there when, about 2:30 or 2:45 p. m., a black man wearing a turtle neck sweater, ski cap, earth shoes and a tan coat robbed him of approximately $440.00 took 4 coats valued at $600.00 and his watch; that the robber used a .38 caliber pistol and tied up witnesses and Jack Payne and then the robber was joined by another person and they left; that he got loose, went to Taco Bell and called the police; that one robber called the other one ‘Sonny’; that a small car left peel marks near the store.
“After voir dire hearing on motion to suppress evidence of photographic identification and it being overruled. McKinley David Jackson testified he had taken his young sister-in-law to Taco Bell and proceeded north; that a car coming from the vicinity of Cowboy Corner passed him at a fast rate of speed; that the car contained . two black people; that the Vega turned north at Pleasant Road. Witness identified defendant as the driver. On cross-examination witness admitted he had picked out defendant from among six pictures shown him at the Police Department. Witness stated he saw defendant in the automobile for about 30 seconds. State rested.” (References to record omitted)

Mr. Winegardner could not identify the appellant as being one of the robbers and did not hear or see the two men escape in an automobile.

We have carefully considered the facts and are of the opinion that the evidence established nothing more than a suspicion of appellant’s guilt. Colley v. State, 41 Ala.App. 273, 275, 128 So.2d 525 (1961). A jury may not convict on mere conjecture as to what the accused may have done. Campbell v. State, 29 Ala.App. 91, 191 So. 810, reversed on other grounds, 238 Ala. 439, 191 So. 812 (1939).

“Human liberty is too sacred and has been too dearly bought to authorize a conviction, except upon legal evidence connecting the defendant with the commission of a crime, and that beyond a reasonable doubt. Facts which would warrant a suspicion, however strong, do not overcome the presumption of innocence.” Tuggle v. State, 22 Ala.App. 89, 90, 112 So. 540 (1927).

The motion for a directed verdict in favor of the appellant was due to be granted. Failing that the motion for a new trial should have been granted. Under the evidence presented the jury should not have been permitted to consider the guilt or innocence of the appellant. Therefore the conviction of the appellant is reversed and this cause is remanded to the circuit court.

REVERSED AND REMANDED.

All Judges concur.


text:
    Louis Keith BARNES v. STATE.
    8 Div. 17.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.

      David L. Thomas, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Susan Beth Farmer, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted on a charge of robbery. Subsequently the indictment was amended with the consent of the appellant and a plea of guilty was entered to a charge of grand larceny. The appellant was sentenced for a term of one year’s imprisonment and seven years probation.

Prior to the time the guilty plea was entered, counsel for the appellant filed three motions to suppress evidence or statements. The record does not indicate whether these motions were heard or whether they were ruled upon. Before entry of the guilty plea, no request was made for a ruling on these ’ motions. The appellant now claims that he had a right to have a hearing on these motions before entering the guilty plea.

The record will not support any allegation that the trial judge refused to hear and rule upon these motions. The appellant does not contend that the guilty plea was not made knowingly or voluntarily except insofar as the trial court did not explain to the appellant his “right” to have a ruling on the motions. There is no contention that appellant’s counsel was incompetent.

Our review of the record convinces us that the guilty plea was voluntarily and understanding^ entered. There is absolutely nothing presented which would raise any doubt about the integrity of the appellant’s admission.

A guilty plea, if voluntarily and understanding^ made, waives all nonjuris-dictional defects in the prior proceedings against an accused. Askew v. State of Alabama, 398 F.2d 825 (C.A. 5 1968); United States v. McCoy, 477 F.2d 550 (C.A. 5 1973); Knowles v. State, 280 Ala. 406, 194 So.2d 562, cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967). A plea of guilty purges the record of error unless the appellant proves clearly that his plea was extorted by duress, fraud, intimidation, or deception. Butts v. State, Ala.Cr.App., 346 So.2d 497 (1977); Hanes v. State, 56 Ala. App. 711,. 325 So.2d 219, cert, denied, 295 Ala. 404, 325 So.2d 221 (1975); Mack v. State, 51 Ala.App. 611, 288 So.2d 150 (1974). The judgment and sentence which follow a plea of guilty are based solely upon the plea and not upon any evidence which may have been acquired improperly by the prosecutor. Knowles, supra, at 280 Ala. 406, 194 So.2d 562.

A guilty plea is a waiver of trial and a waiver of the right to contest the admissibility of any evidence the state might have offered against the defendant, see McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), including an illegal arrest, the validity of a search and seizure, Vann v. State, 44 Ala.App. 523, 214 So.2d 925 (1968), or a prior involuntary confession. Williams v. State, 283 Ala. 668, 220 So.2d 609 (1969).

A plea of guilty is an admission of all the elements of the offense. All matters antedating a guilty plea are waived by its entry. Green v. Wyrick, 428 F.Supp. 744 (D.C.Mo.1977). It is a waiver of rights guaranteed by the due process clause of the Fifth Amendment. United States v. O’Donnell, 539 F.2d 1233 (C.A. 9 1976), cert. denied, 429 U.S. 960, 97 S.Ct. 386, 50 L.Ed.2d 328.

As a general rule a guilty plea, intelligently and voluntarily made, bars the later assertion of constitutional challenges to the pretrial proceedings, Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975) and renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established. Menna v. City of New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975).

Questions concerning a trial court’s refusal to suppress certain evidence are nonjurisdictional issues which were effectively waived by guilty plea. United States v. McCoy, 477 F.2d 550 (C.A. 5 1973).

In line with these authorities we hold that any question concerning any alleged “right” of the accused to secure a ruling from the trial court on pretrial motions to exclude or suppress are nonjurisdic-tional issues effectively waived by the guilty plea in the absence of an allegation of incompetent counsel. See McMann, supra; Parker, supra.

We have searched the record and finding no error conclude that the judgment of the trial court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Carl Wayne HAMMONDS v. STATE.
    8 Div. 998.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.

      Robert M. Shipman, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Charles Lawson Little, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

This is an appeal from a conviction of robbery and a sentence of imprisonment for twenty years.

Mike Kerr testified that he was employed as a clerk by the King’s Inn in Huntsville; between 2:30 and 2:45 A.M. on February 2, 1977, there were knocks at the outside doors, which had been locked, and the witness unlocked the doors and admitted the defendant; defendant asked if there were any vacancies; while the witness was in the process of registering defendant, whom the witness had known as a previous guest of the hotel, defendant pulled a gun out of his pants and told the witness to give him all the money in the drawer. The witness asked defendant if he wanted the checks or the coins, and defendant replied, “No, just the bills,” which the witness gave defendant. Defendant told the witness not to call anyone for five minutes or the witness “was dead, or something like that.” According to the witness, there was about a hundred dollars in the drawer at the time. The witness further testified that just after defendant went out the door, the witness heard him running, and then the witness called the police.

Mr. Homer Reed, another witness for the State, testified that while he was close to the restaurant adjacent to the King’s Inn he saw “a black man backing out of the King’s Inn front door” with a gun in his hand; the man ran through a breeze way out the back and into a gravel parking lot behind the King’s Inn; a white Chevrolet, with a man in it, was in the parking lot with its tail lights burning; defendant went to that automobile and the automobile drove off. According to the witness, a police car arrived just before the automobile stopped in the parking lot drove off, and the witness directed the officers to the automobile, and they “made chase after the car.” Soon thereafter the officers returned, and the witness went with them to the police department and identified defendant as the man backing out of the hotel with the gun in his hand. At that time, there was another black man with defendant, whom the witness could not identify as the driver of the automobile, but the witness said that he heard a conversation between the two in which the other man said, “I told you we shouldn’t go back a second time. We could have been in a good, warm bed now and have a woman with us.” Defendant replied, “Well, you will get a good, warm bed but you won’t have a woman.”

Testimony of police officers, witnesses called by the State, was to the effect that defendant and the driver of the white Chevrolet automobile, identified as Thomas Lightfoot, were arrested soon after the police department was informed of the robbery. A pistol similar to the one that Kerr testified had been used in the robbery was found in the middle of the front seat of the automobile. It was loaded. A cartridge like the cartridges in the gun was found in the left front pocket of defendant. In the upper right pocket of the jacket on the other man there was sixty-one dollars.

Testimony of Thomas Lightfoot and the defendant constituted all of the evidence for defendant.

Thomas Lightfoot testified that he took defendant in the white Chevrolet automobile, which belonged to Lightfoot’s sister, to the Steak and Egg House, which adjoined the King’s Inn, about 2:00 o’clock on the morning of February 2, 1977; and watched defendant walk over to the Steak and Egg House; that defendant returned soon without the “lady”; that at that time he saw another man walking across the lot. Little, if anything, was said by him in his testimony as to what occurred after he said defendant returned to the automobile, but the witness testified that the pistol that was in the automobile when the two were stopped by the police officers was the witness’ pistol, that the witness was using for his protection. He said defendant had nothing to do with the pistol and did not have his hands on it. He further testified that the sixty-one dollars found in his pocket was a part of some money that he had left from the cashing of his previous welfare check. He denied having made a statement to defendant at the station of the police department to the effect that he had been in the King’s Inn earlier. He said he had not been in the King’s Inn that night, but that he had been to the King’s Inn about 8:00 o’clock that night and had there met defendant and a girl and that he (Lightfoot) “carried the girl home.” He said that defendant had been in a room with the girl at the King’s Inn.

Defendant testified that he had been with Lightfoot the night of the alleged robbery; he called Lightfoot from the King’s Inn about 8:00 o’clock that night; he said he was in a room at the King’s Inn with a girl. He said he had made arrangements with “two guys over there” who “sometimes . . . would let me have a room for as long as I wanted it and let me pay them later.” He said he knew Mike Kerr, but Mike Kerr was not on duty at that time of the night. He said Lightfoot picked him up in front of the King’s Inn about 8:00 o’clock, after defendant had called him to do so, and after someone at the King’s Inn had told him “to leave.” On direct examination he testified as follows:

“Q Some time that evening, either earlier or later — I don’t know the time — the King’s Inn was robbed. You or Mr. Lightfoot did not go in there and rob the King’s Inn earlier that evening, did you?
“A No, sir.
“Q Now, from there you went to the VFW Club?
“A Yes.
“Q And you were broke; is that correct? “A I had a couple of dollars.
“Q Did you spend that at the VFW. “A I spent it, yes, sir.
“Q Now, from the VFW what was the occasion that got you over to this restaurant?
“A Well, when I went back up to get the lady I told her to call — we talked and I told her to call me up at Billy’s house, my brother, after the club was over, and if her husband hadn’t come in for her to come and meet me.
“Q O.K. You sort of had a tentative date?
“A Yes.”

According to his testimony, defendant looked for the girl at the Steak and Egg House, but did not find her there. He then went to the white Chevrolet automobile which had been parked by Lightfoot. He said he was “jogging” because it was cold. He said he did not go into the King’s Inn that night other than at the time he was there with a girl and left about 8:00. He denied any conversation between him and Lightfoot at the police department, as narrated by the witness Homer Reed, to the effect that he “shouldn’t have gone back to the King’s Inn.”

One of the two insistences on a reversal stems from a part of the trial proceedings during direct examination of Susan Lupole, a rebuttal witness for the State. She said that she was on duty as desk clerk at King’s Inn about 9:00 or 10:00 o’clock the night of the robbery of Mike Kerr. She was asked if anything unusual happened at that time. Upon an objection by defendant, the court excused the jury, and during its absence from the courtroom the parties made known their respective positions. The State was endeavoring to show by her that Thomas Lightfoot at that time “did in fact rob the King’s Inn,” to which defendant strenuously objected. Thereupon the following occurred:

“THE COURT: I am going to sustain it, Roy. I think you are treading on dangerous ground.
“MR. MILLER: But are you going to allow me to show that he was in fact there at such and such a time?
“THE COURT: Yes, stop with that. Don’t go into detail as to what happened. “Bring the jury back.
“(The jury is now present and seated in the jury box.) (Examination resumed by Mr. Miller).
“MR. MILLER: At this point, let me bring a witness that has testified heretofore into the court room for identification purposes. He is in the hall.
“THE COURT: All right.
“MR. MILLER: Mr. Lightfoot, would you stand beside the Court Reporter over here over there.
“Q M’am, have you ever' seen this man before?
“A Yes, I have.
“Q When have you seen him first?
“A The very first time I saw him is the night he robbed me at the King’s Inn.
“MR. SHIPMAN: Now, Your Honor, we are going to object to that. That’s exactly what we objected to before.
“MR. MILLER: Let me withdraw that question for her.
“Q Did you or did you not see this defendant on the night of February 1, 1977, around nine or ten? Yes or no.
“A Yes.
“MR. SHIPMAN: Your Honor, we will have to further ask the Court to instruct the jury to disregard her answer to that previous question.
“THE COURT: Ladies and Gentlemen, if you will, disregard the answer that the witness has given to the previous question as to when she saw this defendant at the King’s Inn and what took place at . that time. Disregard that and do not consider that in your deliberation in deciding on your verdict in this case.
“MR. MILLER: We have no other questions.”

The defendant then cross-examined the witness, who testified that she knew defendant, that she had seen him on at least three occasions while he was a guest of the hotel.

Appellant now argues that the statement of the witness, that Lightfoot had robbed her at the King’s Inn, had established “such an aura of prejudice . . . that it could not be eradicated from the minds of the jury.”

It is clear that the particular testimony of the witness was not in line with the court’s ruling, and it is unfortunate that she was not interrogated, or that she did not answer, in such a way as not to inject into the case that which the court had ruled would not be admitted in evidence. It seems, however, that such frustration of the court’s ruling was a mere inadvertence. There is no claim that it was deliberate. As to the entire matter, the court ruled with the defendant. It sustained defendant’s objection, and after the witness had made the statement offensive to defendant, the court on motion of defendant complied impressively with the only request made by defendant and instructed the jury to disregard the answer made by the witness. There was no motion for a mistrial. There was no motion for a new trial.

A review on appeal is limited to matters on which action by the trial court was invoked, except in case of ineradicable harm, and, then, the matter should be first brought to the trial court’s attention by a motion for a new trial. Armstrong v. State, 49 Ala.App. 720, 275 So.2d 698, cert. denied, 290 Ala. 256, 275 So.2d 702 (1972); McDade v. State, 49 Ala.App. 533, 274 So.2d 89, cert. denied, 290 Ala. 369, 274 So.2d 93, cert. denied 414 U.S. 872, 94 S.Ct. 99, 38 L.Ed.2d 90 (1972); Alday v. State, 42 Ala.App. 21, 151 So.2d 220, cert. denied 274 Ala. 718, 151 So.2d 225 (1962); Bailey v. State, 41 Ala.App. 39, 123 So.2d 304, cert. denied, 271 Ala. 696, 123 So.2d 310.

In holding untenable appellant’s argument for a reversal by reason of the particular testimony of the witness that the trial court ruled inadmissible, we do not now hold that it was inadmissible. That particular question is not presented to us, and we do not find it necessary to decide it at this time. It should be noted, however, that, although we appreciate the position of the trial court that m attempting to show the commission of other crimes the State is at times “treading on dangerous ground,” it can be well argued that the testimony of Susan Lupo, as to a robbery of her by Lightfoot at nine or ten o’clock of the night of the alleged robbery of Kerr, was relevant, irrespective of any difficulty in determining whether the evidence comes within any particular group of exceptions to the general rule of • exclusion of evidence of other crimes, as listed in Garner v. State, 269 Ala. 531, 114 So.2d 385 (1959) and other cases. Usually, the question arises in connection with proffered evidence as to defendant’s commission of another crime. Here, the relationship between defendant and Lightfoot on the night of the robbery charged was such as to call for the application of the proper principles of the law of evidence pertaining to the admissibility of evidence as to other crimes committed by the defendant.

Testimony by witnesses for the State, but disputed by Lightfoot and defendant in their testimony, of the incriminating conversation between the two as to their participation in a previous robbery at King’s Inn that night, to which evidence there was no objection by defendant, became an important issue between the parties. The testimony of Susan Lupo seems relevant to that issue, as it would have been if she had been able to testify as a witness for defendant that neither defendant nor Lightfoot had robbed anyone at the clerk’s desk at King’s Inn that night.

Evidence of the commission of another crime does not come within the exclusionary rule if it has “some bearing on the issue on trial other than to show in the defendant a tendency or disposition to commit the crime with which he is charged.” Garner v. State, supra.

Evidence of the commission of other crimes should not be admitted unless it “has some bearing upon the issue on trial other than to show the defendant’s bad character or moral delinquency.” Brasher v. State, 249 Ala. 96, 100, 30 So.2d 31, 35 (1947).

To be admissible, the evidence of independent and distinct crimes must be “relevant to the crime charged.” Mason v. State, 259 Ala. 438, 441, 66 So.2d 557, 559 (1953).

In McDonald v. State, 57 Ala.App. 529, 329 So.2d 583, cert. quashed 295 Ala. 410, 329 So.2d 596 (1975), cert. denied 429 U.S. 834, 97 S.Ct. 99, 50 L.Ed.2d 99 (1976), it was stated, per Judge DeCarlo:

“It is a well recognized rule that in a prosecution for a particular offense, proof tending to show that accused is guilty of committing other crimes at other times is inadmissible, even though they are similar to the ones charged in the indictment. Gassenheimer v. State, 52 Ala. 313. .
“It is well to note however, that although the general rule excludes evidence of similar offenses for the purpose of showing bad character of the accused, exceptions are recognized if relevant for any purpose other than to show a mere propensity by the defendant to commit the crime charged. Gassenheimer v. State, supra; Dennison v. State, 17 Ala.App. 674, 88 So.2d 211.”

In the analyses in several cases of the question whether evidence of other crimes was admissible, emphasis has been placed upon whether or not it was within one of the listed exceptions to the general rule of exclusion. However, we do not consider that by so doing the court was discarding the stated test of relevancy for any purpose other than that of showing a “propensity” to commit the kind of crime for which defendant is being tried or “his guilt through the medium of bad character.” McElroy, Law of Evidence in Alabama, § 69.01(1) (2d ed. 1951); Gamble, McElroy’s Alabama Evidence, § 69.01(1) (3d ed. 1975).

In Vincent v. State, 231 Ala. 657, 165 So. 844, cert. denied 298 U.S. 682, 56 S.Ct. 960, 80 L.Ed. 1402 (1936), the court upheld the admission in evidence of defendant’s participation in a robbery prior to and on the same day of the charged murder in the attempt to commit a robbery. It did so on two distinct grounds: (1) to rebut testimony of defendant, given on his direct examination, that he had “never . .' . taken part in any holdup or robbery before.” and (2) as falling within the “motive” exception to the rule of exclusion. There is little dissimilarity between Vincent and this case on the question of the admissibility of the evidence.

The only other contention for 'a reversal is based upon the following portion of the record:

“MR. SHIPMAN: Your Honor, I am going to object to that statement, that this gun could have been used in I don’t know how many other robberies at Huntsville, Alabama, but that they got caught this time, it leaving the inference that this man committed other robberies. He is not being charged or tried for anything else today. I think that would be prejudicial to his case. We object to it.
“THE COURT: I sustain your objection.”

In accordance with the authorities herein-above cited, even if the argument was ineradicably prejudicial, which we do not hold, nothing is thereby presented for review in the absence of a motion for a new trial.

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

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

AFFIRMED.

All the Judges concur.


author: ADKINS, Justice,

text:
    Lloyd F. EARLY, Appellant, Petitioner, v. PALM BEACH NEWSPAPERS, INC., etc., et al., Appellees, Respondents.
    Nos. 49650, 49625.
    Supreme Court of Florida.
    May 31, 1977.
    Rehearing Denied Dec. 22, 1977.
    Jos. D. Farish, Jr., Farish & Farish, West Palm Beach, for petitioner.
    Harold B. Wahl, Jacksonville, Cecil H. Albury, West Palm Beach, John F. Law, Palm Beach, for respondents.
    OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur in No. 49,650.
    OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur in No. 49,625.
   ADKINS, J., dissents with opinion in No. 49,625.

ADKINS, Justice,

dissenting.

Conflict does exist with several decisions cited by the petition, and accordingly this Court should exercise its discretion and assume jurisdiction of the cause to resolve the conflict and to dispose of the issues on the merits.

Petitioner, elected County Superintendent of Public Instruction of Palm Beach County, was successful in the trial court in an action for libel against respondents. A jury verdict awarded him $1,000,000 in compensatory and punitive damages, and final judgment was entered thereon. As appears from the District Court of Appeal, Fourth District, decision under review, respondents, two daily newspapers in Palm Beach, their editors and a reporter from each, embarked upon a concerted campaign admittedly designed to bring about the removal of Mr. Early from his elected position, and, in pursuance of said objective, published over a period of approximately fourteen months several hundred news articles and editorials, all of which were generally hostile to or critical of Early and many of which were defamatory.

In an order denying respondents’ motion for new trial, motion for mistrial and motion for J.N.O.V., the trial court explained:

“The court finds that the jury was properly instructed relative to the defendants’ privilege under the doctrine enunciated in New York Times v. Sullivan, 376 U.S. 254 [84 S.Ct. 710, 11 L.Ed.2d 686] (1964) and its progeny of cases. The court further finds that the plaintiff carried his burden of proof under the New York Times standard and proved his case by the clear and convincing weight of the evidence. There is ample evidence in the record from which the jury could reasonably conclude that the defendants clearly engaged in a campaign to ‘get’ the plaintiff. There was sufficient and substantial evidence from which the jury could reasonably conclude that many of their articles were published knowing of their falsity or with a high degree of awareness of their probable falsity.”

Upon appeal, the District Court of Appeal, Fourth District, reversed on the ground that the petitioner had not carried his burden of showing by clear and convincing evidence that the defamatory statements were made with knowledge of their falsity.

Petitioner submits that the subject District Court of Appeal, Fourth District, decision creates a new rule of law which permits the District Court to reweigh the evidence, retry the case, and generally substitute its judgment for that of the trial court. The Fourth District Court’s decision does conflict with several decisions cited by petitioner to the effect that an appellate court is not free to substitute its judgment for the trier of fact or to reweigh the evidence and reach a different conclusion than the trial court, Crane & Crouse, Inc. v. Palm Bay Towers Corp., 326 So.2d 182 (Fla.1976), and to the effect that the existence or nonexistence of malice where the facts are controverted and there is evidence on the subject is a jury question. Coogler v. Rhodes, 38 Fla. 240, 21 So. 109 (1897), Montgomery v. Knox, 23 Fla. 595, 3 So. 211 (1887), Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907), Firestone v. Time, Inc., Fla., 305 So.2d 172, cert. granted, 421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 773.

Cape Publications, Inc. v. Adams, 336 So.2d 1197 (Fla.4th DCA), opinion filed August 27, 1976, was an appeal from substantial verdicts and judgments in a libel action. In considering the evidence “in the light most favorable to the verdict,” the court held that there was

“[Cjlear and convincing support for a finding that appellant exhibited a reckless disregard of whether the charges were true or false, i. e., that they published the articles with a high degree of awareness of the probable falsity of the statements involved.”

In the case sub judice, the defendants accused plaintiff of “cheating,” and “stealing from the public,” and that he had his “fingers in the pot.” The District Court recognized that these charges, if false and made with knowledge with such falsity or with reckless disregard of the truth thereof, would be actionable. The court then said:

“However, in proper context the statements which defendants actually made do not carry the implication suggested by plaintiff. The first article referred to an editorial in which the newspaper asserted that the public and the school board had been cheated by Mr. Early’s lack of leadership, while the second article stated in an editorial that ‘Mr. Below sits on the sideline doing what he can when Mr. Early’s fingers aren’t in the pot’ implying, not thievery, but incompetent intervention in the operation of the school system. Taken in proper context, no reader of the newspaper articles could have thought that the newspaper was charging Early with the commission of any criminal offense.”

The question of whether a reader of the newspaper thought that the newspaper was charging plaintiff with the commission of a criminal offense was clearly a jury question. In this respect the District Court substituted its judgment for that of the jury and the trial judge. If statements which are published have a different effect on the common mind of the reader than that which the truth would have, then the jury is authorized to return a verdict for the plaintiff. McCormick v. Miami Herald Publishing Co., 139 So.2d 197, 200 (Fla.2d DCA 1962); Hammond v. Times Publishing Co., 162 So.2d 681, 682 (Fla.2d DCA 1964); Layne v. Tribune Company, 108 Fla. 177, 146 So. 234, 238 (1933); Johnson v. Finance Acceptance Co., 118 Fla. 397, 159 So. 364 (1935); Joopanenko v. Gavagan, 67 So.2d 434 (Fla.1953); Campbell v. Jacksonville Kennel Club, 66 So.2d 495 (Fla.1953); Commander v. Pedersen, 116 Fla. 148, 156 So. 337 (1934).

There is clear conflict and we should assume our responsibility and accept jurisdiction.