text:
    Earnest Lee WITHERSPOON, alias v. STATE.
    6 Div. 603.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.

      E. H. Hawkins, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and L. G. Kendrick, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: twenty years imprisonment.

The undisputed evidence proves that on December 29, 1976, Earnest Lee Wither-spoon, Fletcher Williams, David Young, and Johnny Spencer robbed the Parkview branch of the First National Bank of Tuscaloosa. The four had planned the robbery at the appellant’s house the day before. Young and Williams “cased” the bank and reported back that there were only four women tellers working there. Young provided the gun, ski masks, and ammunition, and Witherspoon wrote the robbery note to be passed to a teller. The appellant and Williams went to and fled from the bank in Williams’ automobile. Young and Spencer were in another vehicle.

All four entered the bank and then pulled their ski masks down over their faces. Six thousand five hundred and eighty-five dollars was taken from the bank. During the course of the robbery, Young fired a shot in the direction of the bank manager, but did not hit him. The four then ran from the bank, appellant and Williams going in one direction with Young and Spencer fleeing in the opposite direction through the drive-in tellers’ area of the parking lot. As Young and Spencer ran past the drive-in tellers’ windows, Young stopped and fired two shots into the car of Mrs. Mary Hart-ley, wounding her in the wrist and in the chin.

The report of the robbery and a description of Williams’ automobile was immediately dispatched over police radio. Local law enforcement officers spotted Williams and the appellant driving toward Stillman College, and the pair were arrested approximately twenty-three minutes after the robbery occurred. Officers recovered from the trunk of Williams’ vehicle the entire proceeds of the robbery along with a loaded .38 caliber Colt pistol, an unloaded .25 automatic pistol, and a box of .38 caliber shells.

The appellant testified in his own behalf and admitted fully his involvement in the bank robbery. He testified that he had agreed to participate in the robbery only if there would be no shooting. He said Young stated there would be no shooting because there were only four women working in the bank. Appellant testified that he removed the clip of ammunition from his gun and put it in the glove compartment of the car before the robbery, and that he carried an unloaded pistol during the course of the robbery. His whole defense was that he did not commit the assault and did not intend to shoot anyone, that the assault was committed independently by Young after the robbery was over and outside the presence of the appellant.

I

Title 14, § 14, Code of Alabama 1940 (now § 13-9-1, Code of Ala.1975) provides:

“The distinction between an accessory before the fact and a principal, between principals in the first and second degrees, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals, as in the case of misdemeanors.”

As to the criminal responsibility of co-conspirators, this court has on many occasions cited Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950) for the following proposition:

“It is well established 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. . . Such community of purpose or conspiracy need not be proved by positive testimony. It rarely is so proved. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. .
“When two or more persons enter upon an unlawful purpose, with a common intent to aid and encourage each other in anything within their common design, they are each responsible, civilly and criminally, for everything which may consequently and subsequently result from such unlawful purpose, whether specifically contemplated or not. . . . ” (Citations omitted.)

Stokley takes its proposition of law from Morris v. State, 146 Ala. 66, 41 So. 274 (1906) which statement of law originated in Tanner v. State, 92 Ala. 1, 9 So. 613 (1890). From reading those cases, it is likewise certain that a person engaging in a joint enterprise is not automatically and equally guilty of a crime committed independently by another participant in the venture. A different crime independently committed and not a forseeable consequence of the purpose of the conspiracy is not covered in the broad and sweeping statements of Stok-ley, supra. Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976). Tanner holds:

“. . . all men are presumed to intend the proximate, natural, and logical consequences of acts intentionally done; . If such conspiracy, or community of purpose, embrace[d] the contingency that a deadly encounter may ensue, with the common intention, express or implied, to encourage, aid, or assist, even to the taking of life, should the exigencies of the encounter lead up to result; then, as a general rule, the act of one becomes the act of all, and the one who encourages, or stands ready to assist, is alike guilty with the one who perpetrates the violence.

The appellant seeks to escape criminal responsibility for the deadly assault committed by his accomplice Young by stating that he did not intend that there be any shooting during the course of the robbery and that he personally carried an unloaded pistol.

The issue is whether the assault in question was a direct, proximate, natural, and foreseeable result of the conspiracy formed. In the instant case, the appellant and his companions were active participants in an armed robbery. One shooting occurred during the robbery itself, and the shooting in question occurred immediately outside the building on the bank premises as the participants were fleeing the scene of the crime. There was no evidence tending to show that the conspiracy had been abandoned when the shooting occurred. In fact, the robbers had agreed to depart in separate directions and meet after the robbery at a designated place.

One who participates in the planning of a robbery, who is present when loaded weapons are distributed to the accomplices, who knowingly participates in a robbery with his armed confederates, cannot later escape criminal responsibility for an assault with such a weapon by one of the accomplices by merely stating that he had unloaded his weapon and did not intend that any shooting occur. Any reasonable person could infer that a shooting is likely to happen during any stage of an armed robbery of a bank. Assault with intent to murder would be a foreseeable consequence of the joint enterprise in which the appellant and his accomplices were engaged. Howell, supra. Thus, the appellant could be properly charged and convicted pursuant to Title 14, § 14, supra, for the assault with intent to murder committed during any stage of the robbery by any one of his accomplices.

II

The appellant contends that the trial court erred by overruling his plea of autre-fois convict without requiring the State to file a motion in response and without having an evidentiary hearing on the plea.

The Supreme Court of Alabama in Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973) held that there is no prejudicial error in failing to submit an unattacked plea of former jeopardy to the jury where there was no injury to the defendant. An appellant cannot be prejudiced by the trial court’s overruling such a motion where his claim of former jeopardy is unfounded. Simpson v. State, Ala.Cr.App., 354 So.2d 317 [1977]; Kilpatrick v. State, 46 Ala.App. 290, 241 So.2d 132 (1970).

“A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law. . . .”
Racine, supra.

In the instant case, the appellant’s plea of autrefois convict shows his prior conviction to have been in a United States district court on an indictment charging bank robbery, whereas the instant trial was in a state circuit court on an indictment for assault with intent to murder. The plea shows upon its face that the two charges are. not precisely the same in law and in fact. Regardless of whether the second offense arose during the commission of the first, they are separate offenses against different sovereigns requiring different elements of proof. And, successive state and federal prosecutions arising from the same transaction have been held to be permissible. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Corbo, 555 F.2d 1279 (5th Cir. 1977). We therefore find that the trial judge did not commit error which was prejudicial to the appellant in overruling the instant motion.

Ill

A pretrial hearing was held on the appellant’s motion for a change of venue which set out only two grounds:

“1. That the victim in this case, Mrs. Mary Hartley, is the wife of Mr. C. J. Hartley who has extensive political influence and power in this county and Defendant alleges said political influence will prevent him from obtaining a fair and impartial trial in that community sentiment and particularly that the ve-nire would be so prejudiced with this influence that a fair trial would be impossible; and
“2. That the publicity concerning the alleged incident was so pervasive throughout the public media of Tuscaloosa County that the venire would be so prejudiced as to be unable to render a fair and impartial verdict.”

Counsel for appellant contends that the trial court abused its discretion by refusing to allow him to examine prospective jurors on the effect of pretrial publicity and in limiting his examination of witnesses concerning the effect Mr. Hartley’s political influence would have upon a venire.

It is well settled in this state that a trial court has discretion as to how voir dire examination of a venire will be' conducted. Johnson v. State, Ala.Cr.App., 335 So.2d 663 (1976). The record shows that counsel for appellant questioned the venire as a group rather than individually. Such a procedure was clearly within the discretion of the trial court. In fact, the trial judge could have legally prevented counsel from personally interrogating the venire by requiring that questions be submitted to the judge who would conduct the voir dire examination. Johnson, supra; Aaron v. State, 273 Ala. 337, 139 So.2d 309, cert. denied, 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82 (1962).

In attempting to show any possible influence upon the venire by Hartley’s political standing in the community, counsel for appellant called several witnesses. Counsel attempted to read the name of each prospective juror to each witness and ask if each witness knew whether or not each prospective juror had worked in a political campaign with Mr. Hartley or had made financial contributions to such campaigns. The trial judge required counsel to show a list of the venire to each witness he proposed to call and limited the questioning to whether or not the witness knew if any member on the venire list had participated in political campaigns with Mr. Hartley.

Ralph Knowles, a local attorney, did not know if any members of the venire had worked in any political campaign with Hartley. Aaron D. Harris, knew that Hart-ley had worked in two gubernatorial campaigns, but had no personal knowledge of people who would make political contributions to those campaigns. He stated that he only saw two names that he recognized on the venire list, and that he did not know if they had been connected with any political campaigns. James Boone, Jr., testified that he could not answer whether any of the members of the venire were political workers or contributors in campaigns with Mr. Hartley since he had never been a campaign worker with Mr. Hartley. Judge John Karrh had worked in political campaigns with Mr. Hartley in the past, but did not recognize any name on the list that had worked in a campaign.

Frank Moody, a local banker, testified that he had been involved in political campaigns with the Hartleys, but recognized no one on the venire who had been involved with them politically. Delaine Mountain, a local attorney and city commissioner, testified that he could not identify anyone on the venire as having worked in a political campaign with Mr. Hartley. Anne Plott testified that she was familiar with Mr. Hartley, but would have no knowledge of which people worked in or contributed to campaigns in which he was involved. Frank Manderson, Mayor of Northport, testified that he was fairly knowledgeable about political affairs in Tuscaloosa County. He stated that he had not worked in common campaigns with Mr. Hartley, and that he would have no way of knowing if any members of the venire were political workers or contributors to such campaigns.

Some of the witnesses had heard the case mentioned or had read a news article about the case, but none recalled the appellant being mentioned. None of the witnesses had formed any opinion as to the guilt or innocence of any of the defendants based upon what they had heard or read about the case.

The trial court took judicial notice that by the 1970 census, Tuscaloosa County had a population of 116,029 and that any publicity that might have been generated about the case in December 1976 would have been dissipated by the time of the hearing on motion for change of venue on June 3,1977. The trial judge noted that there had been no call for mob action from anyone as a result of the publicity, and that he had not read or been shown where there was any call for strong or unusual punishment in the case. The trial judge denied the motion for change of venue and stated that when the jury was selected, appellant would have an opportunity to question jurors as to whether or not Mr. Hartley’s political connections would have any effect upon their decision.

In filing a motion for change of venue pursuant to Title 15, § 267, Code of Ala.1940 (now § 15-2-20, Code of Ala.1975), the burden is upon the appellant to show the trial court that he is unable to receive a fair and impartial trial in that county. Mere allegations of widespread publicity or of the political influence of a party involved in the controversy is insufficient. Johnson, supra; Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79 (1975). In the instant case, we find that the appellant totally failed to meet the burden of proof required to obtain a change of venue. Neither do we find that the trial judge acted improperly in imposing limitations on the scope of examination of witnesses during the hearing on the motion for change of venue. The appellant was given a fair opportunity to examine witnesses concerning the political influence of Mr. Hartley in the community, and was even allowed to use the hearing as a means of discovery to determine if any witness knew of any political connections between Mr. Hartley and members of the venire. We view the trial court’s actions as merely confining counsel to relevant questions and preventing the trial from becoming an endless affair. A trial judge is vested with great discretion in the conduct of a trial, and in the absence of clear abuse, we will not interfere with the manner in which he conducts his court. Dolvin v. State, 51 Ala.App. 540, 287 So .2d 250 (1973).

IV

The trial court refused the appellant’s written Requested Charges No. 1 through 56 which appellant assigns as error. In his brief, counsel contends that all charges were correct and should have been given, but specifically argues that Charges 2, 4, 6, and 23 were erroneously refused and that the Allen charge was erroneously given. The charges set out in brief with particularity are as follows:

“2. The Court charges the Jury that if the Jury is not convinced from the evidence beyond all reasonable doubt that the offense of assault with intent to murder was within the common design of the Defendant and another, then the Jury must acquit the Defendant of the charge of assault with intent to murder.”
“4. The Court charges the Jury that if the Jury finds from the evidence that the common design of the Defendant and another accused included only the robbery of the Parkview Branch of the First National Bank of Tuskaloosa, and did not include an assault with intent to murder, then the Jury must acquit the Defendant of the charge of assault with intent to murder.”
“6. The Court charges the Jury that if the Jury finds by the evidence that the common design of the Defendant and other co-accused was and included only the robbery of the Parkview Branch of the First National Bank of Tuskaloosa, and did not include an assault with intent to murder, then the Jury must acquit the Defendant of the charge of assault with intent to murder.”
“23. The Court charges the Jury that if they are not convinced by the evidence that any of the co-accused had the intent to commit murder at the time of the shooting at the Parkview Branch of the First National Bank of Tuskaloosa, then the Jury must acquit the Defendant of the charge of assault with intent to murder, and find him guilty only of assault and battery.”

The trial court gave an extensive charge to the jury which covered in detail the law concerning conspiracy and aiding and abetting. The jury returned to the courtroom later and asked for further instructions on what constitutes a conspiracy or aiding and abetting. The judge recharged the jury at length on that point of law after which the jury retired, but was unable to reach a verdict. The jurors asked the court to give further instructions, “regarding the requirements to prove assault with intent to murder relating to the conspiracy to commit a separate and distinct crime.” The court did not quite understand the question, and a juror stated:

“. . . How is that related again to people involved in conspiracies, one person commits — does the action and another person is involved in the first act and has nothing to do with the second act — ”

The court again gave further instructions on the law relating to accomplices and to the foreseeability of some act committed by one of the perpetrators in a conspiracy. Several more questions were asked by the jurors, and further instructions were given by the court concerning conspiracy and foreseeable consequences of the conspiracy. The trial court finished its summation by giving the Allen, or “dynamite,” charge. After the jury left the courtroom to resume deliberations, defense counsel objected to the trial court giving the Allen charge stating that it was his opinion that the jury should have time to think through the questions of law prior to receiving that charge. The trial court overruled the objection, and the jury later returned with a verdict of guilty.

Charges 2, 4, and 6 cover the same rule of law which was substantially and fairly given in the court’s oral charge to the jury concerning the subject of conspiracy and whether a particular criminal' act of one conspirator is a foreseeable consequence of the purpose of the conspiracy. The trial court gave repeated charges on those points of law and was therefore not required to give the appellant’s requested charges concerning the same subject.

Charge No. 23 is an incorrect statement of law and is misleading. In effect, it would instruct the jury that if none of the co-defendants had the intent to commit murder at the time of the shooting, then the jury must acquit the appellant of the instant charge, but must find him guilty of assault and battery. Such charge is improper for the reason that if the jury found that none of the conspirators had the intent to murder, then their verdict could be not guilty. The clear inference from Charge No. 23 is to confine the jury to a finding of guilt of assault and battery q.nd precludes the jury from a finding of not guilty based upon the hypothesis of the charge.

The appellant’s exception to the Allen charge is not well taken for two reasons:

(1) Giving the Allen charge is not improper in Alabama. Strickland v. State, Ala.Cr.App., 348 So.2d 1105, cert. denied, Ala., 348 So.2d 1113 (1977).

(2) The exception was untimely and should have been made in the presence of the jury and prior to their retiring for deliberations. Tuberville v. State, Ala.Cr. App., 348 So.2d 868 (1977); Strickland, supra.

We have carefully reviewed the remainder of the charges and find that the same rules of law therein enunciated' were substantially and fairly covered in the court’s oral charge to the jury. Title 7, § 273, Code of Ala.1940 (now § 12-16-13, Code of Ala. 1975).

Affirmed.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Napoleon PRINCE v. STATE.
    1 Div. 823.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    W. Clinton Brown, Jr., of Crawford, Blacksher, Figures & Brown, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for robbery and sentenced to ten years’ imprisonment. As ground for reversing the judgment of conviction the appellant relies solely on the failure of the trial court to grant his motion for new trial alleging that newly discovered evidence warranted the setting aside of the verdict of guilty and the granting of a new trial. ■

On the night of December 11, 1976, two males entered and robbed Johnson’s Fast Foods in Mobile, Alabama. Both the cashier and owner of the store positively identified the appellant as being one of the robbers. The cashier described the appellant to the police as being approximately twenty-five years of age and five feet eight inches tall. On January 3,1977, the cashier sighted the appellant as he was walking down the street and notified a police officer who apprehended him. The appellant was seventeen years of age and six feet three inches tall. All the incriminating evidence presented against the appellant was in the form of the eyewitness identification by the cashier and the store owner.

Relying on an alibi defense, the appellant and six other witnesses testified that the appellant was at a different location at the time of the crime.

In support of the motion for new trial the appellant presented the testimony of two newly discovered witnesses. Lillie Mae Steele testified, in substance, that on the night of the robbery Myron Young and Earlee Franklin came to her home and attempted to purchase some gin. Young had a pistol in his possession and resembled the appellant in physical appearance except that Young was shorter. Franklin had a “wad of money” in his hand. They told Ms. Steele that they had made a “hit” on a store but she thought that they were joking.

Geraldine Steele’s testimony was similar to her mother’s and she also testified to facts which implied that Young and Franklin went into hiding in a relative’s house after the robbery.

Ms. Lillie Mae Steele testified that she was initially reluctant to disclose her information because she lived alone and Young and Franklin lived nearby. However prior to the trial she did inform an officer of the Mobile Police Department but that officer was not directly involved in the robbery investigation. Neither defense counsel nor the appellant was informed of this information prior to trial.

A new trial may be awarded on the ground of newly discovered evidence tending to prove that another person committed the crime of which the accused was convicted.

“Evidence, not known to accused at his trial, which will tend to prove that the crime of which he has been convicted was committed by another person, may be ground for a new trial. A new trial on this ground rests in the sound discretion of the trial court, and depends largely on the credibility of the new evidence.”
Dawson v. State, 44 Ala.App. 525, 529, 215 So.2d 459, cert. denied, 283 Ala. 714, 215 So.2d 463 (1968) quoting 24 C.J.S. 182, Criminal Law § 1454.

See also Sanders v. State, 202 Ala. 37, 79 So. 375 (1918); Houston v. State, 208 Ala. 660, 95 So. 145 (1923).

However the new evidence must be admissible under the established rules of evidence.

“The trial court will not, of course, be put in error for refusing a new trial because of newly discovered evidence when such evidence would not be admissible upon a retrial of the cause ... A defendant can disprove his guilt by proving the guilt of some other person. Brown v. State, 120 Ala. 342, 25 South. 182; McDonald v. State, 165 Ala. 85, 51 South. 629. But this must be done by legal evidence, and not by the testimony of witnesses who heard another admit that he committed the offense; this is the merest hearsay — is but an extra-judicial confession or admission not admissible in evidence. Welsh v. State, 96 Ala. 92, 11 South. 450; Underhill on Criminal Evidence (2d Ed.) p. 276, § 145.”

See also Lowery v. State, 98 Ala. 45; 13 So. 498 (1893); Houston v. State, 208 Ala. 660, 95 So. 145 (1923) for the proposition that the refusal of a new trial is not error where the newly discovered evidence relied upon would not be admissible upon a retrial of the cause.

From the foregoing it is clear that the testimony of the Steeles that Young and Franklin “hit” a store would have been inadmissible. See 6 Alabama Digest, Criminal Law, «=> Number 359. Of course, the Steeles could testify to what they saw but not what Young and Franklin told them.

Appellate courts look with disfavor on motions for new trials for newly discovered evidence and in such cases the judgment of the trial court will not be disturbed unless it clearly appears that his discretion has been abused. Hodge v. State, 32 Ala.App. 283, 26 So.2d 274, cert. denied, 248 Ala. 73, 26 So.2d 278 (1946); Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, cert. denied, 295 Ala. 430, 325 So.2d 539 (1975). To warrant the granting of a new trial on the ground of newly discovered evidence, it must appear that the evidence so found, if it had been considered by the jury, would have probably changed the result of the trial. Vinet v. State, 38 Ala.App. 299, 83 So.2d 357, cert. denied, 263 Ala. 701, 83 So.2d 359 (1955).

There was no testimony as to which store Young and Franklin “hit” and there is no evidence to show that it was the store which the appellant was convicted of robbing. Under these circumstances, it is our opinion that the admissible portions of the newly discovered evidence would not have changed the verdict of the jury. Hayes v. State, Ala.Cr.App., 335 So.2d 203, cert. denied, Ala., 335 So.2d 208 (1976).

Finding no error in the record prejudicial to the substantial rights of the accused we affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    Adolphus BAILEY v. STATE.
    1 Div. 871.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.

      Arthur P. Clarke, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Linda C. Breland, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

In April of 1974, appellant was indicted by the Grand Jury of Mobile County for larceny and buying, receiving and concealing stolen property. Appellant filed an application to be treated as a youthful offender and this application was granted by the trial judge. Subsequently, appellant was arraigned as a youthful offender. At that time he entered a plea of guilty. The trial judge accepted appellant’s plea and ordered that appellant pay the costs of the prosecution. The judge also sentenced appellant to three years in custody of the Director of the Department of Corrections. The execution of this sentence was suspended, “pending the good behavior of the defendant for a period of Three (3) years and at the expiration of said Three (3) year period said suspension is hereby made permanent.” Suspension of the sentence was further predicated upon appellant attending the Continuing Learning Center and the Mental Health Center. This order of the court was entered on June 25, 1974.

On February 25, 1977, the District Attorney moved that appellant’s probation be revoked. The State alleged as a ground for this motion that appellant was arrested on September 22, 1976, by the Mobile Police Department on a charge of robbery. Following a preliminary hearing, appellant was indicted by the Mobile County Grand Jury.

On May 31, 1977, a preliminary hearing on the motion of the District Attorney’s Office was held.

Robert J. Mehrtens testified that he was a State Probation and Parole Officer and that he was appellant’s probation officer. Mehrtens assumed supervision of appellant’s case in July, 1975. On February 15, 1977, Mehrtens filed a report concerning appellant on delinquent probation. This report was admitted into evidence without objection. It is set out in full below.

“DELINQUENT CHARGE OR CHARGES
“Bailey is charged with violating the following condition of his Probation:
“CHARGE # 1: Arrested and Indicted for Robbery:
“Bailey was arrested by the Mobile Police Department on September 22, 1976, and charged with Robbery. A Preliminary Hearing was held in Mobile Municipal Court on October 4, 1976, and Bailey was bound over to the Mobile County Grand Jury where he was subsequently indicted on the charge. Bailey has appeared in Mobile County Circuit Court on this charge and has asked to be treated again as a Youthful Offender. He is currently free on $50,000 bond and is due in court February 28, 1977.
“The details of this offense are essentially as follows:
“Investigation of this offense revealed that Georgia Payne, # 6 China Berry Lane, Mobile, Alabama, reported on September 19, 1976, to the Mobile Police Department that she was robbed in her home by five black male subjects. Ms. Payne stated that these men knocked at her rear door, called her name, and grabbed her when she opened the door. One subject held a pistol to her head while another tied her hands and feet. They then forced her out of her home and into a club next door to her house. Once inside, they threw her to the ground and one subject sat on her head. Someone kept kicking her in the side until another told him to stop.
“A paper bag was then stuffed into her mouth. They then led her to the front of the club and asked her where the money was located. These subjects then broke into the juke box and several pool tables before taking the victim out the front door and back to her house.
“Once inside her home, the subjects threw her on her bed and tied a blanket around her head. They then ransacked her home and a house trailer in her back yard. Items taken were:
“One Smith & Wesson pistol, caliber .32, value $50
One Remington Pump Shotgun, value $50 Currency in the amount of $321 Assorted coins in the amount of $100 Ten rolls of quarters, amount of $100 “The victim stated she could not give police much of a description, but one of the subjects looked like a boy in the neighborhood known as ‘Winkie’. ‘Wink-ie’ was described as thin, 19 years of age, and known to reside with his grandmother, Mrs. Kidd, on Highland Avenue. Through this identification, police arrested Adolphus Bailey of 358 West Highland Avenue, Prichard, Alabama.
“Others arrested in this case were Woodrow Green and Alphonse Timmons.
“SUBJECT’S STATEMENT:
“Adolphus denies his guilt in this offense and claims to have been playing cards and watching television at the time this offense occurred. He further stated that Ms. Payne is trying to get even with his family because several of Adolphus’ brothers and cousins ransacked Ms. Payne’s sugar cane patch earlier that day.
“CHARGE # 2: Associated With Known ' Felons:
“Adolphus Bailey is charged by this Supervisor with associating with Alphonse Timmons and Woodrow Green, both of whom are known felons.
“SUBJECT’S STATEMENT:
“Adolphus denies being with Timmons or Green.
“SUPERVISION SUMMARY:
“Since receiving probation in June, 1974, Bailey has reported to the Probation Office on a regular basis. His residence has been reported as 358 West Highland Avenue, Prichard, Alabama, throughout this period. He has held several employment situations since being placed on probation, but has listed his occupation as student throughout the majority of this reporting period.
“Bailey reported this arrest to me and has maintained close contact with me. He is currently enrolled as a student at Murphy High School.
“SUPERVISOR’S RECOMMENDATION:
“It is my recommendation that a decision be postponed on this revocation until the final disposition of the current charge of Robbery against Bailey has been resolved. “Signed and dated in Mobile, Alabama, this 15th day of February, 1977.
/s/ Robert J. Mehrtens
Robert J. Mehrtens
State Parole & Probation Supervisor”

On cross-examination by appellant’s attorney, Mehrtens testified that the filing of such a report was normal procedure to notify the court of an arrest. He further testified that in his opinion, appellant was not guilty of the robbery charged. Mehrtens recommended that the revocation hearing be continued until the final disposition of the robbery charge. The indictment on the robbery charge had been quashed at this time.

The trial judge then continued the hearing until July 19, so that appellant could “present further testimony . . . ”

The hearing was reconvened on July 26, 1977. At that time, Mehrtens testified to filing the delinquency report which was in evidence. He further testified that a subsequent arrest for a felony was a violation of the terms and conditions of probation.

On cross-examination by appellant’s attorney, Mehrtens testified that no warrant for the arrest of appellant ever issued from the Probation Officer.

Mary Kidd then testified on behalf of appellant. She was appellant’s grandmother. Appellant had not been in any trouble since he was put on probation, Mrs. Kidd testified. She did testify that appellant had been arrested on a robbery charge.

No other testimony was presented. The trial judge then ruled on the motion. From the record:

“THE COURT: All right, the defendant will stand and face the Court. The record reflects that the Court back in 1974 placed you under the status of Youthful Offender, which, of course, was a decision to apparently prevent you from having a felony record. On that occasion you had been charged with Receiving and Concealing Stolen Property and as I said I changed the charge to Youthful Offender charge and I placed you on probation for a period of three years. Now, that was 1974. The charge placed against you pending your probationary period indicates that you have been charged with Robbery along with four other subjects, two of them convicted felons, that a Georgia Paine of Number Six Chinaberry Lane was grabbed in her own home and placed outside her home by five males and that you were one of those five males and that she was taken out and her mouth was stuffed with a paper bag and a blanket wrapped around her head and that one of you, one of the five kept kicking her until another one stopped it. The record further reflects from this report earlier says someone else, your brothers and your cousins ransacked this same lady’s sugar cane patch in the back of her house. It indicates the five of you ransacked her home and her house trailer and a Smith and Wesson pistol, caliber 32 was taken, a Remington pump shotgun, currency in the amount of three hundred and twenty-one dollars in assorted coins in the amount of one hundred dollars, ten rolls of quarters and that you were identified by the victim the lady, Mrs. Georgia Paine, of Number Six Chinaberry Lane as being one of the five and being a person referred to as Winkie and that you were identified as living with your grandmother, Mrs. Kidd.
“The Court, although it was testified by your Probation Officer that there was no record that he knew of that you were advised as to the requirements of probation, I think it is my standard procedure that you were informed that you must abide by the rules of the Probationary Department and that you must, of course, meet all of their requirements and regulations and that you, of course, stay out of trouble. Now, having been charged with the crime of Robbery and there being nothing presented to the Court to indicate that the Judge who determined on Preliminary Hearing that you should be bound over to the Grand Jury and the record reflects that you have been indicted for that particular charge and although the motion to quash that has been filed by your attorney has been granted pursuant to a Federal Court determination, there has nothing been presented to the Court that this case would not be presented again to a new Grand Jury. So, the record reflects that you have violated your probation by having been charged with a serious crime.' There is nothing under the law that provides that the Court must wait and it is the opinion of this Court that the Court should not wait where a charge has been made unless there is some reason, substantial reason to delay it pending that trial.
“Do you have anything to say at this time before the Court proceeds with making an adjudication?
“THE DEFENDANT: Yes, sir. I have been, you know, working every day and I have been staying out of trouble and I didn’t commit that Robbery and I would like to have, you know, a chance in the world to make something, a man or something out of myself. I am still a young man and I would rather be out there in the world helping my folks, you know, and being with them and working every day.
“THE COURT: The Court regrets that you have reached that decision at this time, that you couldn’t have reached it and continued it from the time the Court gave you the opportunity to stay out on the streets having been charged with a felony at that time in 1974 and, further, been given the benefit of the Youthful Offender Act, but considering all factors before the Court this Court has no alternative based on what has been presented to the Court but to revoke your probation and order you to commence serving the sentence given you in 1974 that you be sent to the Director of Corrections in Montgomery, Alabama and serve your three years sentence. You’ll have to be seated in the Courtroom until the deputy gets here.”

Appellant now contends that he was denied the right to confrontation of adverse witnesses and due process. Particularly, appellant complains that the record does not reflect what information was the basis for Mehrtens’ report. Appellant’s probation was, thus, revoked solely on hearsay evidence.

It is well established that a revocation of probation is not a criminal prosecution; however, the probationer must be afforded the minimum standards of due process. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. Additionally, a probationer is entitled to two hearings, one a preliminary hearing to determine whether there is probable cause to believe that he has committed a violation of his probation, and a second more comprehensive hearing prior to a final decision on revocation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656.

In Armstrong v. State, 294 Ala. 100, 312 So.2d 620, the Supreme Court of Alabama set forth the guidelines which must be met for the standards of minimal due process before probation may be revoked. They are:

“1. Written notice to the probationer of the claimed violations of probation.
2. Disclosure to the probationer of evidence against him or her.
3. Opportunity of probationer to be heard in person and to present witnesses and documentary evidence.
4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation).
5. A written statement by the judge as to the evidence relied on and reasons for revoking probation.
6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a revocation hearing. Judges preside over retrials. There appears to be no sound reason why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.)
7. We see no valid reason for having two hearings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the probationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance.
8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel.
9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960).”

We believe that these standards were met in this case. Appellant received a two-tier hearing. First, appellant was informed of the charges against him. The second stage of the hearing was held almost two months later, giving appellant ample time to gather evidence to refute the allegations of the delinquency report. Finally, the judge made a comprehensive statement, included in the record, setting forth the basis for his revocation of appellant’s probation. In addition to his arrest on the robbery charge, the appellant was also known to have consorted with convicted felons. The trial judge also alluded to this in his statements.

In Hill v. State, Ala.Cr.App., 350 So.2d 716, this Court held that a defendant was denied due process where the sole basis for the revocation was hearsay evidence. However, that probationer strenuously objected to the admission into evidence of the delinquency report in that case. Appellant introduced no objection to the admission of the delinquency report in this case. Matters not objected to in the trial court cannot be considered for the first time on appeal. Jones v. State, Ala.Cr.App., 342 So.2d 457; Rainer v. State, 342 So.2d 1348.

A search of the record reflects no error injuriously affecting the substantial rights of appellant. The cause is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Lawrence THOMPSON v. STATE.
    1 Div. 885.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    A. Holmes Whiddon, Mobile, for appellant.

      William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

In April of 1975 appellant was indicted for the offense of burglary in the second degree. When his case was called for trial he made application to be treated as a Youthful Offender. This application was granted and appellant waived a jury trial and pleaded guilty to being a Youthful Offender. He was sentenced to three years in the custody of the Director of the Department of Corrections. This sentence was suspended “pending the good behavior” of appellant for a period of three years. This order was made on May 8, 1975. In addition to suspending appellant’s sentence the trial court assessed a fine of one hundred dollars against him and also the court costs.

On May 27, 1977 the State, through the District Attorney’s Office of Mobile County, moved that appellant’s probation be revoked on the ground that he had violated a valid condition on which the probation was granted. Specifically, the motion for revocation alleged that, on March 7,1977, appellant was arrested on a charge of murder in the first degree and that this charge was then pending in the Circuit Court of Mobile County.

The revocation hearing was held on September 20, 1977, and appellant was duly notified to appear and show cause, if any, why the suspension of the execution of the sentence imposed on him on the 23rd day of June, 1975, should not be revoked.

At the revocation hearing appellant was represented by counsel. Mike Reynolds testified for the State that he was appellant’s probation officer and that he filed a delinquency report on appellant on May 3, 1977. This report was admitted into evidence without objection. Reynolds further testified that appellant had also been charged with assault with intent to murder on August 1, 1977. The delinquency report is as follows:

“DELINQUENT CHARGE OR CHARGES
“Subject is charged with violating the following conditions of his Probation:
“CHARGE # 1: New arrest for the offense of Assault With Intent to Murder: “On August 1, 1977, the probationer was arrested by Officer T. Barbour of the Mobile Police Department and charged as styled above. Detective Frank Woodward conducted the follow-up investigation. On September 9, 1977, Thompson waived examination in District Court and was bound over to the Grand Jury on $1000 bond.
“The details of the offense are essentially as follows:
“At approximately 9:15 a. m., on July 29, 1977, Sgt. Ralph Dueitt of the Mobile Police Department was stopped at Water and Government Street by a black male. He advised Sgt. Dueitt that he had been shot. The black male proceeded on to Government and Broad, but could drive no further. An ambulance was dispatched to the foregoing location.
“At the University Medical Center, the victim was identified as Michael Weath-ington. He told the investigating Officers, Woodward and Barbour, he had been shot by one Lawrence Kidd (the probationer) in the parking lot of Bender’s Shipyard on South Royal Street. The victim stated he knew Kidd well. “The victim further stated Kidd (Thompson) was involved in the shooting death of his brother in March of this year. (See attached copy of Delinquency Report dated 3-3-77.)
“The victim stated he saw the probationer at Bender’s this morning. Kidd (Thompson) pointed a pistol at him, the victim, at which time he leaped from the car. Thompson fired one shot that struck him in the right leg.
“Thompson surrendered himself at the Mobile Police Department on August 1, 1977.
“The witnesses in this case are:
“Michael Weathington, complainant
“Sgt. F. Woodward, primary investigator
“Sgt. G. Presnail, statement from Thompson
“Officer T. Barbour, patrol unit assigned to original call
“The above was transcribed from the report of Sgt. Woodward.
“SUBJECT’S STATEMENT:
“Thompson stated the victim pointed a gun at him in the Bender’s lot, and that he, Thompson, ran away. He made no mention of any shots fired.
“CHARGE # 2: Failure to Report as Directed:
“Thompson has been sparodic about monthly reporting. He missed March and April of 1976. I indicated that July 27,1977, was his first actual report of this year.
“It appears that the probation rule concerning reporting no later than the third working day of each month has little significance for Thompson.
“SUPERVISION SUMMARY:
“On June 23, 1975, Lawrence was fully instructed in the rules of probation.
“On August 4, 1975, he was employed at Alabama Dry Docks.
“On February 6,1976, he reported that he had quit his job.
“On May 3, 1977, a Delinquency Report was issued.
“On May 12, 1977, he was living with his mother, unemployed.
“On July 27, 1977, he reported his employer was the Alabama State Docks.
“RECOMMENDATION:
“It is recommended a hearing be held to determine if sufficient evidence exists to revoke probation.
“Signed and dated in Mobile, Alabama, this 20th day of September, 1977.
/s/ Kenneth M. Reynolds
“Kenneth M. Reynolds
“State Parole & Probation Supervisor
“KMR/cg”

The probation officer further testified that he investigated the facts surrounding the murder charge and the charge of assault with- intent to murder. He ascertained the murder victim was one Michael Weathington and there had been a shoot-out at a nightclub known as the Jolly Spot involving this appellant and several others, all armed with weapons.

The charge of assault with intent to murder was related to the participants in the shoot-out in which Weathington was killed.

Appellant testified and admitted that he was charged with murder and also assault with intent to murder all growing out of and related to the shoot-out at the night spot. At this point the hearing was interrupted by the trial judge for the purpose of advising appellant of his constitutional rights not to give incriminating evidence against himself. He advised appellant that any testimony he gave of an incriminating nature could be used against him in the trial of the two cases pending against him. Appellant told the court that he understood his rights and was aware that the District Attorney could use any statement he made showing his involvement in the murder case and the assault with intent to murder case pending against him.

Appellant then testified that some people “ambushed” him and some of his friends the night that Weathington was killed but that he did not shoot at the deceased, saying “I didn’t even have a gun.”

On cross-examination he stated that his name was Lawrence Thompson but that he was also known as Lawrence Kidd. He said he knew a boy named “Knot” whose real name was Gerald Barnes and they were present at the Jolly Spot where the shooting occurred. At this time appellant objected to any further questions. The Court sustained the objection and would not permit the State to interrogate appellant concerning a signed statement he gave the officers pertaining to the shooting incident.

The case was then passed to September 20, 1977, so that the officer who investigated the homicide could be present to testify. On the latter date Police Officer Robert Moore testified that he conducted an investigation into the homicide that occurred at the Jolly Spot and based upon that investigation he arrested four men, including the appellant. Appellant was charged with murder and he signed a waiver of rights form and made a statement concerning his involvement in the difficulty at the Jolly Spot in which a man named Weathington was killed. The police report, made by Officer Moore, contained a signed statement of the appellant, introduced into evidence for the limited purpose of showing that appellant had violated the conditions of his probation. Moore was not cross-examined by appellant, and appellant did not offer any further evidence. At the conclusion of this hearing the Court made the following findings:

“THE COURT: You are Lawrence Thompson, the record reflects that on June 23,1975 you entered a plea of guilty to the charge of burglary in the second degree, that at that time the Court sentenced you to three years to the State penitentiary and I placed you on active, formal probation with the Probation Department for a period of three years. Now, this record here erroneously reflects burglary in the second degree so I will amend what I just said. I apparently considered that you should be given an opportunity not to have a felony record and the Court reduced the burglary charge to Youthful Offender status and that time I think you entered a plea of guilty to being a Youthful Offender. I also fined you $100.00 and costs of Court. That was back on June 23, 1975. The Court finds that since that time based on what has been presented to the Court that you have been charged with a murder in the first degree charge for the killing of a human being, you have been charged with an assault with intent to murder which was related to the murder case in some respects. You are now 22 years of age. Without question, the Court finds that from the evidence presented and all that is before the Court that you should be revoked and it is the position of this court that I now set aside the suspension and order the sentence of three years to be commenced immediately. Take charge of the defendant.”

Appellant contends that “pending good behavior” is a condition of probation so vague and indefinite that he was unable to defend the motion to revoke his probation and that he was, therefore, denied due process. This contention is not a valid one and was put to rest by our case of Holman v. State, 43 Ala.App. 509, 193 So.2d 770.

Appellant further contends that the police report was erroneously admitted into evidence, denying him the right to cross-examine certain witnesses who were not present at the hearing. He makes the same contention with respect to the delinquency report filed by the Probation Officer. The short answer to these contentions is that appellant cannot raise such matters for the first time on appeal. Bailey v. State, 356 So.2d 752, 1 Div. 871, Ala.Cr.App., this day decided; Jones v. State, Ala.Cr.App., 342 So.2d 457; Rainer v. State, Ala.Cr.App., 342 So.2d 1348.

Appellant argues that his statement to the investigating officer could not be admitted absent Miranda predicates. The officer’s report includes a waiver of the Miranda rights signed by appellant and his signed statement concludes as follows:

“I, Lawrence Thompson having been advised of my rights, do hereby make this voluntary statement to Sgt. Robert Moore of the Mobile Police Department, without fear, threats, offer of reward, or any inducements whatsoever. I also understand this statement will be used in a court of law. I have read this statement consisting of one page, and have had it read to me and I understand its contents fully and clearly and swear it to be a true and correct statement to the best of my knowledge and belief.”

Formal procedures and rules of evidence are not employed in probation revocation hearings. Armstrong v. State, 294 Ala. 100, 312 So.2d 620.

On revocation hearings, the standard of proof is not reasonable doubt or preponderance of the evidence, but reasonable satisfaction from the evidence. Armstrong v. State, supra. Martin v. State, 46 Ala.App. 310, 241 So.2d 339.

There should be no question to the legal or nonlegal mind that the commission of murder and assault with intent to murder, during the term of the probation, constitutes valid grounds to revoke probation. There is an excellent annotation in 77 A.L.R. 3rd, page 669, on the view that the exclusionary rule in Miranda does not apply to probation revocation proceedings. The exclusionary rule of Miranda is preserved for the trial of appellant on the two felony charges if it is found that his constitutional rights were, in fact, violated.

The judgment of the trial court is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Casby INGRAM v. STATE.
    3 Div. 843.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    G. Guy Hayes, Montgomery, for appellant.

      William J. Baxley, Atty. Gen., and L. G. Kendrick, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The two-count indictment charged Casby Ingram with: first, grand larceny; and second, buying, receiving, concealing, etc., one 1964 Chevrolet Impala automobile, the personal property of Johnny Self. At the close of the State’s evidence, Count I, for grand larceny, was dismissed, and the cause went to the jury under Count II. The jury found the appellant “guilty as charged,” and the trial court entered judgment, which set sentence at five years imprisonment in the penitentiary.

Johnny Rae Self stated he was a resident of Alexander City, Alabama, and on December 21, 1976, he was visiting his sister-in-law at St. Margaret’s Hospital in Montgomery. Mr. Self indicated that he parked his car in front of St. Margaret’s Hospital shortly after 7:00 o’clock that morning and came back out about 12:00 noon to get something out of his car. He reentered the hospital and did not come to his car again until sometime after lunch.

About 2:30 or 3:00 o’clock that afternoon, Mr. Self indicated that he and his wife walked out to where he had left his car and it was gone. He stated that he then went back into the hospital and telephoned the Montgomery police, who arrived in about ten to fifteen minutes. In reporting the missing automobile, Mr. Self described it as a 1964 white Chevrolet Impala with a “reddish” interior. He stated that there was a “skinned” place on the driver’s side of the door. Mr. Self indicated that he was employed by Russell Mills. He stated that he was contacted by Montgomery police on the following Thursday or Friday to come to pick the car up.

Montgomery Traffic Officer Jeffery L. Roy stated he answered a call from St. Margaret’s Hospital on the afternoon of December 21, 1976. He indicated that he received a report from Mr. Johnny Self of a missing 1964 two-door, white, Chevrolet Impala with a red interior. This missing automobile report was then dispatched to all units in Montgomery that afternoon.

Montgomery Detective Ricky Mobley stated that on the afternoon of December 22, 1976, he was in the area of Day and Greyhound Streets in the City of Montgomery. He indicated that he saw a fellow officer direct a 1964 Chevrolet Impala to stop. He stated that he pulled his vehicle in front of the Chevrolet Impala, causing it to stop. He stated that the license tag number was BZJ 081 and that the vehicle was a two-door 1964 white Chevrolet Impala with red interior. The description matched that which was turned in to Montgomery police by Mr. Johnny Self.

Detective Mobley related that he then arrested the driver, who was Casby Ingram, the appellant. Detective Mobley stated that another black male, one James Edward Philips, was seated on the passenger’s side of the front seat at the time.

James Edward Philips stated that he lived in Montgomery on Kilby Drive, Wesley Hill, in December, 1976. Mr. Philips stated that during the afternoon of December 22, 1976, Casby Ingram picked him up at his home, that he was driving a 1964 white, two-door Chevrolet Impala. He stated that he had not previously seen Ingram in this vehicle. From the record (R. p. 24):

“Q. That’s the first time you had seen him in that car?
“A. Yeah, uh-huh.
“Q. Where did you all go?
“A. We went here to my house, and then come on Day Street, and then the police came then, you know, from by the time he gets to my house on Day Street, we wasn’t going nowhere then, the police stopped us then.
“Q. The police stopped you then?
“A. Yes.
“Q. I’ll ask you whether or not you had asked Casby Ingram where he got that automobile?
“A. No, he said his cousin got it.
“Q. Said what?
“A. His cousin’s.
“Q. Said it was his cousin’s?
“A. No.
“Q. Did you ask him anything else about it?
“A. No.
“Q. Did you tell them down at police headquarters?
“A. Yeah, uh-huh.”

On cross-examination Philips stated that he could not drive an automobile himself, nor did he know how Ingram got the vehicle. He stated that he had not been in the vicinity of St. Margaret’s Hospital the previous day, December 21, 1976.

At the conclusion of the State’s evidence, the appellant moved to exclude same, stating that the State failed to prove a prima facie case of feloniously taking and carrying away the vehicle. After this motion was denied, the appellant rested without presenting any evidence in his behalf.

I

Appellant contends the State failed to prove a prima facie case, hence, the overruling of his motion to exclude was error.

In Johnson v. State, 41 Ala.App. 351, 132 So.2d 485, Judge Price stated:

“To establish the offense of buying or concealing stolen property it must appear that the property was stolen; that accused bought, received or concealed it knowing that it had been stolen; and that she had no intention of returning it to the owner. Moore v. State, 26 Ala. App. 607, 164 So. 761; Trail v. State. 39 Ala.App. 467, 103 So.2d 833.
“The corpus delicti may be proven by circumstantial evidence as well as by direct proof. Coates v. State, 36 Ala.App. 371, 56 So.2d 383; Wright v. State, 17 Ala.App. 621, 88 So. 185.
“To meet the burden of proving that the property was stolen, it is necessary only that the state offer sufficient legal evidence to show a severance of the possession of the owner and an actual possession of the wrongdoer. It is immaterial how short the distance moved, or the length of time he exercised dominion over it. It may constitute larceny if there was a severance of the possession of the owner and an actual possession and removal by the wrongdoer. Phelps v. State, 6 Ala.App. 58, 60 So. 537; Molton v. State, 105 Ala. 18, 16 So. 795; Blakeney v. State, 244 Ala. 262, 13 So.2d 430; Arthur v. State, 38 Ala.App. 490, 93 So.2d 793.”

Judge Cates, in Stanley v. State, 46 Ala.App. 542, 245 So.2d 827, stated the trial court “in a receiving case approved inferring the requisite scienter from recent possession of stolen goods.”

In Wood v. State, 18 Ala.App. 654, 94 So. 256, we find:

“ . . . [T]he proof of the corpus de-licti does not depend upon the place from whence the goods were stolen, or who stole them. That they were stolen by somebody is all that is required to establish the corpus delicti, and there was ample evidence for this purpose. . . . ”

The Court is of the opinion that the facts above set forth show the material elements of the offense charged. The trial judge properly submitted this matter to the jury for their determination. Paul v. State, 48 Ala.App. 396, 265 So.2d 180, cert. denied 288 Ala. 747, 265 So.2d 185; Johnson v. State, 41 Ala.App. 351, 132 So.2d 485; Coe v. State, 53 Ala.App. 457, 301 So.2d 223; Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218; and Carroll v. State, (Ala.Cr.App.) 338 So.2d 432.

II

Appellant asserts that the trial court improperly overruled his objection to the question, “What happened to the car since then” ? (R. p. 13)

We do not feel that any error is shown by the answer given in the case at bar, namely, that the car was picked up by the owner, Johnny Self, some two or three days later at a service station in Montgomery, and that he had subsequently traded the vehicle prior to the time of trial.

III

During closing argument, the following transpired (R. pp. 31-32):

“(MR. POOL CONTINUES HIS CLOSING ARGUMENT).
“MR. HAYES: I object to that, Your Honor, that’s placing the burden of proof on the defense, and the burden of proof is never on the defense.
“THE COURT: Sustained.
“MR. HAYES: Your Honor, I would move at this time for a mistrial.
“THE COURT: Motion denied.
“MR. HAYES: Request you ask the jury to disregard that statement by Mr. Pool.
“THE COURT: The jury will disregard the statement by Mr. Pool regarding the absence of the evidence by the defendant.
“(MR. POOL CONTINUES HIS CLOSING ARGUMENT.)”

The appellant asserts the overruling of his motion for a mistrial was error. We do not agree.

As may be seen by the foregoing colloquy, the trial court immediately sustained the appellant’s objection and instructed the jury to “disregard the statement by Mr. _ regarding the absence of the evidence by the defendant.” Prompt action of the trial court, instructing the jury to disregard such remark, removed any possible prejudicial effect that such a statement may have had. Thus, no error is shown. Adair v. State, 51 Ala.App. 651, 288 So.2d 187; Retowsky v. State, Ala.Cr.App., 333 So.2d 193; Napier v. State, Ala.Cr.App., 337 So.2d 62; Ellenburg v. State, Ala.Cr.App., 353 So.2d 810.

In view of this strong admonition by the trial judge, as shown by the colloquy, we are clear to the conclusion that reversible error is not here shown. Troup v. State, 32 Ala.App. 309, 26 So.2d 611; Massey v. State, 49 Ala.App. 341, 272 So.2d 267, cert. denied 289 Ala. 747, 272 So.2d 270, and cases therein cited.

IV

Finally, appellant’s counsel asserts the trial court erred in failing to give his written requested Charge No. 6, which contained the phrase, “The assertions of counsel are not evidence,” and cites us to this Court’s opinion in Lamar v. State (Ala.Cr.App.) 356 So.2d 677, 1977.

The Supreme Court of Alabama reversed this Court on this very question. S.Ct. 2769, In re Lamar v. State, 356 So.2d 680, 1977, pointed out that it is not necessary in every criminal case that such a charge be given to the jury.

Appellant also asserts as error the giving of the following charge at the request of the State of Alabama (R. p. 51):

“STATE’S REQUESTED CHARGE
“I charge you ladies and gentlemen of the jury that the unexplained possession of recently stolen property raises an inference that the possessor knew that the property was stolen and the jury may consider that inference.”

The latest expression of the law on this subject is the opinion of the Supreme Court of Alabama, speaking through Mr. Justice Bloodworth in Buckles v. State, 291 Ala. 359, 280 So.2d 823.

As may be seen in examining this opinion and the prior opinions of the Court of Criminal Appeals on this subject, the error is in using the expression “the burden or onus of explaining such recent possession” being placed upon the appellant, citing Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380.

The use of the term that such unexplained possession is a circumstance or inference for the jury’s consideration is proper. Buckles, supra, and cases hereinabove cited.

At the conclusion of an extensive oral charge, each side answered, “Satisfied” (R. p. 38), and the trial court then gave four written requested charges. We are of the opinion that the remaining refused charges were either fairly and adequately covered in the trial court’s oral charge, or the written charges given at the request of the appellant. Thus, such refusals were proper. § 12-16-13, Code of Alabama 1975 (formerly Title 7, Section 273, Code of Alabama 1940).

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

AFFIRMED.

All the Judges concur.


text:
    Willie KNIGHT v. STATE.
    4 Div. 608.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    John C. Dowling, James H. Weatherford, Jr., of Lindsey & Weatherford, Enterprise, for appellant.
    William J. Baxley, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery, and the jury fixed his punishment at ten years in the penitentiary. Throughout the trial proceedings in the Circuit Court of Coffee County, Alabama, he was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal but did not request that his sentence be suspended pending appeal. He expressly told the Court that he wanted to take a “working appeal.” He was furnished a free transcript and trial counsel were appointed to represent him on appeal.

This is appellant’s second appeal for this same offense. His first conviction was reversed by this Court in an opinion authored by Judge Bowen on March 29, 1977. Knight v. State, Ala.Cr.App., 346 So.2d 478. The reversal was grounded on an illegal arrest because the officer did not have probable cause to arrest Knight on an informer’s unverified and uncorroborated tip. Certiorari was denied by the Supreme Court. 346 So.2d 483.

Prior to the retrial of this case appellant moved to dismiss the indictment on the same grounds made the basis for the reversal of Knight’s first conviction. Absolutely no testimony was offered in support of the motion to dismiss the indictment. The Court overruled and denied the motion to dismiss the criminal action pending against him and the indictment upon which he was re-arraigned. The Court reserved a ruling on the motion to suppress the evidence until such time as evidence was sought to be introduced in violation of appellant’s constitutional rights.

The evidence adduced by the State in appellant’s second trial is not disputed. Appellant did not testify or offer any evidence in his behalf.

Mr. Neal Carroll testified that he was the owner and operator of Neal’s Fried Chicken on Geneva Highway in Enterprise, Alabama, and on the night of March 12, 1976, he was robbed by a black male at gunpoint. He stated that the robbery occurred a few minutes after 8:00 p. m.; that he normally closed at eight o’clock every night and that he had checked up the cash register and was waiting for the mop boy to finish mopping the place. He took $199.00 out of the cash register and put it in his wallet. He left some change and a check in the register. When the young boy finished mopping he paid him for his work and the boy left.

Mr. Carroll further testified that just before he was going to close and lock the place for the night he noticed a box of chicken on the drainboard and he got a pan and went to the ice machine to get ice to spread over the chicken. One pan of ice was not enough and he returned to the machine and got another pan of ice and was walking to the drainboard to spread the ice on the box of chicken. At this point he heard a noise at the door and a voice said, “Stop, don’t move.” He took another step and the voice said, “I said stop, don’t move.” The place was well lighted and Carroll turned and looked the man squarely in the face and saw the pistol pointed at him. He stated the man’s face was immediately above the gun and the man cocked the pistol. Mr. Carroll made a positive in-court identification of appellant as the man who pointed the cocked pistol at him at close quarters in a well lighted place. The man patted down Mr. Carroll with the gun still pointed at him and the man reached his hand in Mr. Carroll’s pocket and took the money and then took Mr. Carroll’s wallet. The robber took $199.00 and a check from Mr. Carroll’s pocket and he heard the man fumbling through his wallet which he then laid on the table. The bandit ordered Mr. Carroll to lie face down on the floor and he complied with this order. After Mr. Carroll was on the floor he turned his head to the side and the robber told him, “I said nose down,” and Mr. Carroll put his nose on the floor and said, “Please don’t hurt me.” The bandit left by the rear door and Mr. Carroll stayed on the floor until he felt certain the man had gone.

Mr. Carroll was asked if there was any question in his mind as to who robbed him on that occasion and he replied, “Not at all, no, sir. I am one hundred percent sure or I wouldn’t say it.”

At this point the State rested and appellant moved to exclude all the State’s evidence on the ground the State had failed to make out a prima facie case. Appellant also renewed all motions to dismiss the indictment and other motions on file.

The Court stated:

“Motion to exclude the evidence denied. Motion to dismiss the indictment denied. Motion to drop charges denied. Motion to suppress the evidence, there having been none presented to suppress, is denied.”

Appellant contends that this Court’s reversal of his first conviction held that he could not be put to trial again on the same indictment. Knight v. State, supra. We do not agree. This Court did not hold that appellant could not be retried on the same indictment. We merely held that he was illegally arrested and for that reason alone reversed the case.

In the case of State v. Hughes, 2 Ala. 102, decided by the Supreme Court well over a century ago, it was held:

“The reversal of the conviction of the prisoner, at a previous term of this Court, was not intended to operate so as to discharge him from a further trial for the same offense. The cause was then remanded for that purpose, and it is so said in the opinion of the Court. There was no necessity for preferring a new indictment; the one already found was unaffected by the judgment of reversal.”

Hughes, supra, was re-affirmed in Jeffries v. State, 40 Ala. 381, wherein the Court said:

“We regard it as well established law in this state, that a prisoner may waive his constitutional immunity against being a second time placed in jeopardy, and that he does make such waiver, when, by a proceeding instituted by himself, he procures a reversal of his conviction.”

Reversal of a judgment and remanding of the cause restores both the State and the defendant to the condition in which they stood before the judgment was pronounced. Coleman v. State, 20 Ala.App. 471, 102 So. 915.

A motion to dismiss an indictment on the ground that it was found upon illegal and incompetent evidence was properly overruled where no evidence was offered to sustain such allegation. Edson v. State, 134 Ala. 50, 32 So. 308.

We have carefully reviewed the entire record on this appeal for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Billy Wayne CHAMBERS v. STATE.
    6 Div. 385.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.

      John D. Pope, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Jefferson County returned an indictment against the appellant, Billy Wayne Chambers, charging him with an assault with intent to murder. The appellant entered a plea of not guilty. A jury found appellant guilty of assault with intent to murder. The trial court sentenced the appellant to 10 years in the penitentiary, and he appeals to this Court.

This appeal was submitted on briefs. The appellant was represented by court appointed counsel at all proceedings in the trial court, and is so represented in this Court.

We do not consider facts contained in documents attached to appellant’s brief which are not contained in the record before this Court. We may review only rulings by the trial court which are shown by the record certified to this Court by the clerk of the trial court. Edwards v. State, 287 Ala. 588, 253 So.2d 513; Howard v. State, Ala.Cr.App., 347 So.2d 574; Taylor v. State, 55 Ala.App. 184, 314 So.2d 104.

Appellant contends that his conviction should be reversed because the trial court erred in two respects in ruling on the admission of evidence; first, in overruling appellant’s objection to a question propounded by the state to its witness, Officer Blanton; second, by sustaining an objection of the state to a question propounded to appellant’s witness, Mrs. Terry Walker.

Other arguments and contentions made in appellant’s brief that are not supported by the record are not considered by this Court.

State’s evidence tends to prove that the appellant attempted to run an automobile over and kill an officer who was attempting to make an arrest of an escaped prisoner. The appellant’s evidence tends to prove that he was not an occupant of the automobile used in the attempt.

The guilt or innocence of the appellant was, under the facts in this record, a question to be decided by the jury. We hold that the jury’s verdict is fully supported by the evidence presented to it. Code of Alabama 1975, Title 13-1-46; Byrd v. State, 213 Ala. 333, 104 So. 830.

In the record before us we find that during the direct examination of state’s witness, Officer Blanton, the following occurred:

“Q Who were you looking for?
A Billy Wayne Chambers and Tony Tucker.
Q Did you have some arrest order or something like that for them?
A Yes, sir.
Q Did you have some tele-type information regarding them at that time?
A Yes, sir.
Q What was that?
A Escaping.
MR. POPE: I object, Your Honor.
THE COURT: Overruled.
MR. POPE: Exception.”

The general rule'is, that, after a question is asked, and a responsive answer given, an objection comes too late, and the trial court will not be put in error in the absence of a motion to exclude or strike, and also an adverse ruling on the motion. We hold that the trial court did not err in its ruling. Ausborn v. State, 346 So.2d 1191; White v. State, Ala.Cr.App., 347 So.2d 566; Embrey v. State, 283 Ala. 110, 214 So.2d 567; Walker v. State, 265 Ala. 233, 90 So.2d 221; Roynica v. State, 54 Ala.App. 436, 309 So.2d 475.

Appellant’s second contention is shown by the following excerpt from the record:

“Q After he told you the same story that he told you, what did he say?
MR. JOHNSON: Judge, I object to that.
THE COURT: Sustained.
MR. POPE: I am asking what Billy Chambers told her.
THE COURT: I know it and I am sustaining the objection to it. What this defendant said to a third party is inadmissible.
MR. POPE: I am talking about what he said to her, the witness on the stand. THE COURT: I know it. That is what I am talking about, too.
Q But the story Billy Wayne Chambers told you was identical with the story Tucker and Odom had already told you?
MR. JOHNSON: I am going to object to that, Judge.
THE COURT: Wait. Sustained. Don’t answer. Now has everyone finished?”

The foregoing occurred during the direct examination of Mrs. Terry Walker, a witness called by the appellant. Tucker and Odom were not witnesses at the trial. The alleged conversations of the witness, Mrs. Walker, with Tucker and Odom and with the appellant took place two or three hours after the alleged assault and in a different part of the city of Birmingham. It is clear from the record in this case that the alleged story that appellant had told Mrs. Walker was a mere narration of a past transaction and was not a part of the res gestae. The question called for an answer that was objectionable as hearsay and as a self-serving declaration. One is not allowed to make evidence in his behalf by making self-serving declarations. We hold that the trial court was correct in its ruling. Illinois Central R. R. Co. v. Lowery, 184 Ala. 443, 63 So. 952; Dean v. State, 105 Ala. 21, 17 So. 28; Reese v. State, 338 So.2d 495; Kiel v. State, 28 Ala.App. 308, 184 So. 208; Alabama Power Co. v. Ray, 249 Ala. 568, 32 So.2d 219; Espey v. State, 270 Ala. 669, 120 So.2d 904; Smarr v. State, 260 Ala. 30, 68 So.2d 6; Davis v. State, Ala.Cr.App., 331 So.2d 813.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Beauford Harold JOHNSON v. STATE.
    6 Div. 520.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.

      Mike W. McCormick, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for the State.
   BOWEN, Judge.

The appellant was convicted for robbery and sentenced to twelve years’ imprisonment. On this appeal from his conviction the appellant argues that he was denied a speedy trial and that the failure of the trial court to grant his challenge for cause of a prospective juror constitutes reversible error.

I

The operative facts surrounding the issue of the alleged denial of speedy trial are set forth in outline form as follows:

1976
February 20 Appellant arrested and incarcerated on the charge of robbery.
April 20 Appellant posted bond but was held in jail on a fugitive warrant for an alleged parole violation in Oklahoma.
May 7 Appellant indicted for robbery.
May 21 Arraignment. Trial set for June 7.
June 7 Case “continued from consent to be reset” and passed until November 15,1976, for trial.
November 15 Case passed at the request of the state, no reason appearing.
November 15 Appellant filed written demand for speedy trial.
December 3 Appellant filed a “motion seeking order dismissing indictment for failure to prosecute, or in the alternative for denial of right to speedy trial”.
1977
January 3 At the hearing on the motion for speedy trial, the court specifically found that the “first order for witnesses” (Johnny Johnson) was issued by the defendant on this date.
January 24 Case set for trial but passed at request of appellant when defense witness could not be located. At this time case passed under an understanding between the defense and the judge that the case would be continued over for one week to give the defense an opportunity to locate their missing witness.
April 11 The appellant was tried.

In his brief on appeal the appellant alleges the reasons for the delays.

“The initial delay of approximately six months was caused the appellant’s case being treated as a ‘bond’ case rather than as a ‘jail’ case, when in fact, he was in jail. The second delay was brought about by the State’s request for a continuance, but the reason for a continuance does not appear on the record.
“The third delay came about when the State and appellant could not locate the witness for the Defendant, Johnny Johnson. And instead of continuing the case for a week as agreed upon with the Court, the court coordinator’s office simply said that the case would be continued for another two and one-half months because the ease had been ‘reached’.”

An inflexible rule cannot be used to establish a defendant’s right to a speedy trial, but can only be done on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed. Elston v. State, 56 Ala.App. 299, 321 So.2d 264 (1975); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The right to a speedy trial is a relative right which depends upon the circumstances of each case. The right is designed to prohibit arbitrary and oppressive delays caused by the prosecution but does not operate to deprive the state of a reasonable opportunity of prosecuting criminals. Braden v. State, 47 Ala.App. 466, 256 So.2d 425 (1971).

From the record it appears that the appellant did not assert his right to a speedy trial until approximately ten months after his arrest which was only four months before his actual trial. It does not appear that the appellant objected to any continuance at the time they were granted. After filing two written requests for a speedy trial, the only requests which appear in the record, a continuance was granted at the request of the appellant in order that the presence of an absent witness could be secured. Though obviously the appellant deemed this witness an important witness to his defense (or else why request a continuance?) the witness had only been initially subpoenaed in January of 1977, three months before the appellant was tried.

Although the appellant alleges that without the missing witness, Johnny Johnson, he was without a defense and that Johnson would probably have been available if the case had been tried at an earlier date, Johnson was not subpoenaed until three months before trial and there is no showing that he was ever available as a defense witness.

Reviewing the facts, we fail to see how Johnson could have provided any defense for the appellant. When the robbery occurred, a Birmingham police officer witnessed the crime from his hidden location inside the convenience store having received a tip from Johnson shortly before the robbery. The appellant was positively identified by both the cashier of the store and the police officer. Though the appellant managed to escape despite the fact that two police officers fired at him as he fled, the appellant was captured the next morning with a bullet wound in his buttocks. From the record we can conclude that Johnson was not working with or employed by the police and therefore no defense of entrapment would be involved. At trial no defense of any type was presented. In view of the foregoing and the overwhelming and undisputed evidence of the guilt of the appellant we find that he was not prejudiced by the delay between arrest, indictment and trial. Kircheis v. State, 56 Ala.App. 526, 323 So.2d 412, cert. denied, 295 Ala. 409, 323 So.2d 421 (1975); Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81 (1975).

II

The only other assignment of error presented by the appellant concerns the denial of a challenge for cause of a prospective juror.

On voir dire of the jury venire the following occurred:

“MR. PICKARD (Defense Counsel): Has anybody been robbed? Due to the fact that you have recently been robbed do you think you might be a little bit more inclined to convict regardless of the evidence?
“JUROR SPENCER: Yes sir, I probably would.
“MR. PICKARD: You think you may be a little biased?
“JUROR SPENCER: Yes sir.
“MR. PICKARD: You’re saying in all probability you wouldn’t be able to give him a fair trial and view the evidence objectively?
“JUROR SPENCER: Yes sir.
“MR. PICKARD: We challenge for cause.
“THE COURT: Mr. Spencer we’re not picking on you but I have to be very careful. It’s not a matter of discretion that I can exclude any one of you respective jurors, but let me ask you this. In spite of your experience a couple of weeks ago, could you still listen to the evidence that comes from this witness stand, and this evidence alone, and render a fair and impartial decision concerning the defendant, Beauford Harold Johnson?
“JUROR SPENCER: Yes sir, I believe I could.
“THE COURT: You wouldn’t let that experience that you had affect you?
“JUROR SPENCER: No sir.
“THE COURT: Challenge denied.
“MR. PICKARD: We except.
“THE COURT: Note an exception.
(Thereupon, a jury of twelve and one alternate was struck, after which the following proceedings were then had and done:)
“THE COURT: Gentlemen are you satisfied we have the correct jury in the box?
“MR. BLOCKER: Yes sir.
“MR. PICKARD: Yes sir.”

Juror Spencer became the foreman of the jury.

The denial of the challenge for cause was proper. To disqualify a prospective juror he must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused. His opinion must be so fixed that it would bias the verdict the juror would be required to render. McCorvey v. State, Ala.Cr.App., 339 So.2d 1053, cert. denied, Ala. 339 So.2d 1058 (1976); Finley v. State, 36 Ala.App. 56, 52 So.2d 167 (1951); Willingham v. State, 262 Ala. 550, 80 So.2d 280 (1955); Wyatt v. State, 36 Ala.App. 125, 57 So.2d 350, cert. denied, 257 Ala. 90, 57 So.2d 366 (1952). Once the jury was selected, even though Juror Spencer remained, the defense announced “satisfied”.

We have reviewed the record and found no error prejudicial to the accused. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Yernon Lamar MAY v. STATE.
    6 Div. 600.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.

      Charles W. Shultz, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from a conviction of manslaughter in the first degree and a sentence of ten years’ imprisonment. The undisputed evidence reveals that on August 15, 1976, the appellant and his wife were separated, that he went to her apartment and, with the knowledge that someone other than his wife was inside the apartment, fired one or two shots into the front window. The appellant then went around to the rear of the apartment and fired several additional shots from a .32 caliber revolver into another window. The deceased, Robert Lee Brown, was in the living room during the shooting and died from a .32 caliber bullet wound in his head. The appellant testified at trial and admitted firing the pistol but maintained that he “just lost complete control”, “couldn’t really see” because his eyes were blurred, did not aim at anything, and did not realize what he was doing when he fired his pistol.

I

Initially the appellant argues that it was error for the trial court to permit the prosecution to lead and impeach its own witness. In overruling the objection of defense counsel the trial court made a specific finding that the prosecution had been surprised by the testimony of its witness.

A party who has been surprised by his own witness may interrogate him, lead him, and in effect cross examine him, in the discretion of the trial court in order to refresh his recollection or to show surprise. Randolph v. State, Ala.Cr.App., 331 So.2d 766, cert. denied, Ala., 331 So.2d 771 (1976); Strickland v. State, 269 Ala. 573, 114 So.2d 407 (1959); Washington v. State, 155 Ala. 2, 46 So. 778 (1908); and cases cited at 19A Alabama Digest, Witnesses, 380(5). The record fully substantiates the finding of surprise made by the trial judge. Therefore his ruling in this regard was proper and within the bounds of his lawful discretion.

II

During the state’s case, a prosecution witness, Officer K. R. Lewis of the Birmingham Police Department, testified on direct examination that during his investigation of the crime scene he found one bullet or bullet fragment in the living room floor of the apartment and that there was only one bullet hole in the screen of the living room window. Following defense counsel’s cross examination of Officer Lewis trial was recessed for the day. The next morning the state called Officer Lewis to the stand and on redirect examination the witness testified that he had reviewed his notes and diagrams made during his investigation at the scene of the crime and had recorded two bullet holes in the window screen instead of one hole as he previously testified.

The law is settled that it is within the discretion of the trial court to allow a witness to be recalled and to correct a statement previously made. Rhodes v. Lowry, 54 Ala. 4 (1875); Mann v. State, 134 Ala. 1, 32 So. 704 (1902). For the purpose of presenting true and accurate evidence, a witness may be permitted to correct his testimony, it being for the trial judge, in the exercise of his judicial discretion, to determine when such is to be allowed. 98 C.J.S. Witnesses § 318b, p. 17.

The rulings of the trial judge were designed to promote a truthful and factual determination of the witness’s testimony and the facts in issue. In our opinion his actions were proper and in accord with established rules of evidence and procedure.

Ill

We have carefully reviewed the evidence and find that the trial court properly denied defense counsel’s motion to exclude the evidence presented by the state. The motion was based on the contention that there was no connection shown between the fatal wound sustained by the deceased and the shots fired by the appellant.

The evidence presented by the state revealed that the appellant fired a .32 caliber pistol into an occupied apartment house and that at this same time the deceased was struck and killed by a gunshot from a .32 caliber pistol. The state did not prove that the bullet found in the head of the deceased was in fact fired from the appellant’s pistol.

The corpus delicti in a homicide prosecution and evidence sufficient for a conviction of the crime of murder may be established through circumstantial evidence, and are sufficient if the effect on the jury’s mind is to produce a conviction of the guilt of the defendant beyond a reasonable doubt. Brown v. State, Ala.Cr.App., 331 So.2d 820 (1976). From the evidence presented we can find no fact which would give the jury reason to doubt the appellant’s commission of the homicide. Whether the appellant actually shot the deceased was a question for the jury. The verdict was not based on conjecture or speculation and the jury had no reason to believe that the death of the deceased was caused by anything other than the actions of the appellant.

IV

The last contention for reversal asserted by the appellant is that the trial court committed reversible error by failing to grant a mistrial due to the improper statement of the prosecutor in closing argument. From the record:

“MR. DICK (Deputy District Attorney): He had already called and said he was gonna kill Dorothy May, I submit to you.
“MR. MAPLES (Defense Counsel): We object to that. There is a statute that provides that she does not have to testify and she elected not to testify.
“MR. ROGERS (Defense Counsel): We ask for a mistrial.
“THE COURT: Overrule the motion for the mistrial.
“MR. DICK: I withdraw it.
“THE COURT: He withdraws that and I instruct the jury to disregard that.”

Under cross examination by the state, the appellant denied he had talked to his wife on the telephone before coming to her apartment and denied having threatened to kill her. The appellant admitted that she called him that morning and told him that her car was giving her trouble.

Though the state called the wife of the appellant to testify for the prosecution, she refused to testify against her husband and her refusal was honored by the trial judge.

In view of the withdrawal of the objected to remarks, the prompt action of the trial court in instructing the jury to disregard the matter, and the failure of defense counsel to pursue the objection, we will not predicate error on this contention. Oates v. State, 38 Ala.App. 158, 79 So.2d 61, reversed on other grounds, 262 Ala. 182, 79 So.2d 64 (1955); Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Canada v. State, 56 Ala.App. 722, 325 So.2d 513, cert. denied, 295 Ala. 395, 325 So.2d 516 (1975); Paul v. State, 48 Ala.App. 396, 265 So.2d 180, cert. denied, 288 Ala. 747, 265 So.2d 185 (1972); Slinker v. State, Ala.Cr.App., 342 So.2d 44 (1977).

We have reviewed the record on appeal and found no error prejudicial to the accused. The judgment of the trial court is therefore affirmed.

AFFIRMED.

All Judges concur.


text:
    Douglas TURBYFILL, alias v. STATE.
    8 Div. 22.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.

      Dave Beuoy, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, indicted for sodomy, was convicted by a jury with punishment fixed at ten years.

Defendant here argues that the indictment was for “carnal knowledge,” as that offense relates to a female. He then contends that there was a failure of proof because the victim was a male.

The contention is wholly without merit. The offense is embraced in § 13 — 1— 110, Code of Alabama 1975. The indictment follows the statutory form for this offense. § 15-8-150(95), p. 532, Code of Alabama 1975.

The judgment is affirmed.

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

AFFIRMED.

All the Judges concur.