author: PER CURIAM.

text:
    Braxton Lee KITTLE v. STATE.
    8 Div. 894.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Rehearing Denied May 24, 1977.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from a conviction for selling amphetamine, a controlled substance, in violation of the Alabama Uniform Controlled Substances Act of 1971. Code of Alabama, 1973 Cum. Supp., Tit. 22, § 258(33). Defendant was sentenced to imprisonment for nine years.

Defendant was indicted on October 2 and arraigned on October 22, 1975, at which time he pleaded not guilty, and his case was set for trial on December 1, 1975. On December 3, 1975, defendant requested a continuance of the case, which was granted, and the case was set again for trial on April 5, 1976. On March 31, 1976, a motion was filed by defendant attacking the composition of the jury roll and jury box of Marshall County. There was a hearing on the motion on April 2,1976, at which defendant and his attorney were joined by other defendants by their attorneys, who apparently had filed similar motions. The motion is referred to by counsel for appellant and counsel for appellee as a motion to quash the venire. Appellant urges that the denial of such motion constituted prejudicial error that should result in a reversal of the judgment.

In support of the motion defendant relied largely upon the testimony of the clerk of the Marshall County Jury Commission and one of the members of the Commission. In addition, defendant introduced the testimony of the clerk of the Circuit Court and the registrar of Marshall County and a deputy clerk of the Circuit Court.

Appellant vehemently criticizes the members of the Jury Commission and strongly argues that they failed miserably to measure up to their duties under the law. We should say that there are many indications in the evidence that they failed to comply with all their duties.

The original motion relative to the jury complained of the composition of the “ve-nire.” An amendment to the motion substituted the words “jury roll” for “venire.” In accordance with such amendment defendant’s motion was not addressed to the composition of the jury venire or jury panel that had been drawn and summoned for the week of his trial, from which a jury to try him was selected. We find no complaint made as to such venire.

The motion as amended contains five groups of complaints as to the composition of the Marshall County jury roll. It asserts that, at the time, the jury roll did not reflect a representative cross-section of persons in the county qualified for jury service in that it contained

(a) a disproportionately larger number of men than women;
(b) a disproportionately larger number of older persons than younger persons;
(c) a disproportionately larger number of married persons than unmarried;
(d) a disproportionately larger number of owners than non-owners of real estate;
(e) a disproportionately larger number of householders than non-householders.

It is charged in the motion in effect that the complained of composition of the jury roll was caused by “a systematic and intentional exclusion” from the jury roll of persons within such disproportionately smaller groups on the roll.

There is evidence to the effect that the number of men on the jury roll was disproportionately larger than women, that the number of persons between nineteen and thirty years of age was disproportionately smaller than other age groups. A marked disparity is to be found between males and females; seventy-three percent of the persons on the roll were males and twenty-seven percent females as opposed to the Marshall County 1970 census of 26,284 male and 27,927 female. A striking disparity is also to be noted in some of the age groups, particularly persons between nineteen and twenty-five years of age.

As to the disparity between the old and the young and between male and female, this Court has recently spoken through now Presiding Judge Tyson in Giddens v. State, 333 So.2d 615 (Ala.Cr.App. 1976) and James v. State, 337 So.2d 1332 (Ala.Cr.App. 1976).

Included in the contention that young people were disfavored in the composition of the jury roll is reference to the failure to include but an extremely small number of persons 19 and 20 years of age. The time for the annual meeting of the Jury Commission for making the jury roll is between August 1 and December 20 of the year. Code of Alabama, Recomp. 1958, Tit. 30, § 20. The law relieving persons 19 years of age or over of the disabilities of non-age became effective July 2, 1975. Act No. 77, Regular Session 1975. In Giddens, it was stated:

“Appellant contends that his motion to quash the venire should have been granted in view of the State’s admission that the jury lists did not include 19 and 20 year olds.
“We note that at the time of appellant’s trial in October of 1975, Act No. 77, Regular Session 1975, had been in effect less than three months. Furthermore, the Attorney General’s opinion which was introduced by appellant at the hearing on his motion to quash and which construed Act No. 77 as in fact lowering the minimum age for jury service in this state to 19 was dated August 28,1975. Moreover, while there is testimony in the record which might indicate otherwise, Charles Edward Lawler, a member of the Lee County Jury Commission, testified that the Commission had begun compiling a list of 19 and 20 year olds but that it would “take 6 months, probably” to complete the job.
“Viewed in this light, we do not feel error was here shown. Many courts have of necessity recognized an allowable administrative lag time between the effective dates of laws lowering the minimum age for jury service and the additions of the newly eligible jurors to the jury lists. United States v. Osborne, 8 Cir., 482 F.2d 1354; United States v. Olson, 8 Cir., 473 F.2d 686; United States v. Nakaladski, 5 Cir., 481 F.2d 289; United States v. Kuhn, 5 Cir., 441 F.2d 179. See also United States v. Gooding, 5 Cir., 473 F.2d 425 where the lag time was three years, four months.
“Though not necessary to a resolution of this appeal, we would only point out a majority of those courts confronted with the issue, have held that ‘young persons’ per se do not constitute an identifiable group for purposes of determining whether or no a particular jury system reflects the requisite cross-section of the community. United States v. Briggs, D.C., 366 F.Supp. 1356 (21-29 years of age); Connell v. State, 56 Ala.App. 43, 318 So.2d 782 (18-25 years of age); Williamson v. State, 52 Ala.App. 617, 296 So.2d 241 (under the age of 35). See also Hurley v. State, Court of Criminal Appeals, 335 So.2d 183, and cases cited therein. See also Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590.”

In James, relative to the jury roll or box in Bibb County composed of 37.2 percent females, whereas the actual percentage of females in Bibb County was 52.1 percent, it was held that there was no basis for quashing the jury venire. The court said at 1337:

“We note on the outset that the appellant has the initial burden of showing the existence of purposeful discrimination of women on the account of their sex from jury participation. Butler v. State, 285 Ala. 387, 232 So.2d 631 [1970]. As pointed out by Mr. Justice Almon, then a member of this Court, in Junior v. State, 47 Ala.App. 518, 257 So.2d 844, cert. denied, 288 Ala. 744, 257 So.2d 852 [1971]:
“ ‘. . [P]urposeful discrimination must be proven and may not be assumed or merely asserted, and the quantum of proof necessary to establish such fact is a matter of federal law.’ [Authorities cited]”..."
“In any event, we do not feel that the appellant has here met the first of his ‘two-fold burden’ in establishing a prima facie case. A reading of several federal cases involving the issue of systematic exclusion of women indicates that a greater percentage of disparity than appears here in the instant case must be shown in order to raise an inference of discrimination. United States v. DiTommaso, 405 F.2d 385 [4th Cir. 1968] [Prima facie case not met by evidence that women, though constituting 52.1% of eligible population had average representation of 29%]; United States v. Butera, supra [1 Cir., 420 F.2d 564] [52% true cross section — 36% actual representation in jury pool]; see also United States v. Bryant, 291 F.Supp. 542 [D.Me. 1968]. Butera, supra, indicates that at least a thirty percent underrepresentation of women must be shown in order to raise a rebuttable inference of discrimination.”

Giddens and James supra, answer adversely the major contention of defendant as to the jury roll, that is, that it was weighted against females and against youth, unless we can say that there was purposeful, invidious discrimination against them. In some portions of the evidence there may be found gleanings to that effect, but the testimony taken as a whole shows the contrary. Although the efforts did not succeed in raising the quota of the proportionately smaller groups to an extent aspired to by some, the evidence is to the effect that special efforts were made to increase the quotas of them. Special attention was given to the desirability of placing more names of young people in the box or on the roll. The Commission consisted of only two members, during part of the time. There is evidence that one of them employed an outsider to do most of the work required of such commissioner, which we do not condone. Nevertheless, there is no substantial evidence that a commissioner, a clerk or anyone working for the Commission was in any way opposed to a proportionate representation of all groups and classes.

It should be readily observable that a jury roll or jury box, without any intentional exclusion of or invidious discrimination against women and young people, may have a consistency disproportionate to their actual proportion in the community. As to the male-female dichotomy, the sources of information available to jury commissioners are more likely to reveal data with reference to men than to women. For varied reasons the names of married women are not usually contained in telephone directories. Women are not as free as men in moving around unaccompanied by one of the other gender. They stay at home and out of the main stream more than men. Furthermore, in considering the qualifications of jurors, jury commissioners have the right, and should, consider the practical availability for jury service of prospective jurors. Although women have responded to the call for jury service with commendable cooperation, the fact is it is at a much greater sacrifice than for men. They are needed not only during conventional working hours, a forty-hour week or less, but men cannot take their place for many of the needs at home. Old but still true is the saying:

“Man may work from sun to sun, “But woman’s work is never done.”

As to a sub-proportionate representation by youth, special problems are presented to jury commissioners in performing their duty to place in the jury box or on the jury roll persons who are “generally reputed to be honest and intelligent” as legally required. Code of Alabama, Recompiled 1958, Tit. 30, § 21. The character of a young person, often good, is not generally known to as many as that of an older person. His character may be much better, but the better a person is known the more established his reputation becomes. In determining the reputation of another, one does not go around indiscriminately asking the question; but in talking with third persons, sometimes over long periods of time, he learns from them whether another is “generally reputed to be honest and intelligent.”

There was little, if any, substantial evidence that there was any discrimination against persons because they were not freeholders or householders or because they were not married. We think the Jury Commission had the right to take into consideration the fact that, if a person could not read English, he is disqualified unless he “is a freeholder or householder.” Code of Alabama, Recompiled 1958, supra.

The trial judge, who heard all the witnesses on the subject testify, justifiably came to the conclusion that there was no purposeful discrimination against persons qualified to act as jurors in Marshall County, and there was no error in overruling defendant’s motion to quash the venire.

We do not hold that the jury roll at the time of the hearing on the motion to quash, substantially conformed to the requirements of Code of Alabama, Recompiled 1958, 1973 Cum.Pocket Part, Tit. 30, § 20, or that there had been as of that time substantial compliance with all the duties by the members of the Jury Commission and its clerk. Such a question is better resolved, and, if resolved against the Commission, a more beneficent result is obtained, by a mandamus proceeding against the members of the Commission, in which they are given a right to answer and be heard, after due notice and an adequate opportunity to present their side of the case, as was true in Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970).

Appellant urges that the trial judge should have recused himself. In his brief appellant states that beginning “on page 88 of the record the trial court took over the examination of the circuit clerk and began questioning her as to the procedure that she followed in regard to juror cards, etc.” Appellant refers to an interrogation of the witness after she had testified on re-direct examination by counsel for defendant and counsel had completed such re-direct examination by stating, “Judge, that’s all I have.” Immediately thereafter the following occurred:

“THE COURT: Mrs. Albert, you’re notified that the jury is to be drawn, is that correct?
“WITNESS: Yes, sir.
“THE COURT: What is the first thing you do when the Judge starts drawing the jury? What do you do with the envelope?
“WITNESS: I date it.
“THE COURT: And are cards drawn for a specific term of court at that time?
“WITNESS: Yes, sir.
“THE COURT: What do you do with those cards?
“WITNESS: I stamp the back of each card with the date of the trial week.
“THE COURT: What do you do with them next?
“WITNESS: I turn them over to you if it’s not time for us to have them and you seal the envelope and give them to my office at the time we’re entitled to get them.
“THE COURT: Each card then is dated?
“WITNESS: That’s right.
“THE COURT: And the envelope is dated?
“WITNESS: Yes, sir.
“THE COURT: And who do you give this envelope to right after they’re drawn?
“WITNESS: To the Judge.
“THE COURT: And when do you next see it?
“WITNESS: At the time ... I can’t remember how many days it is that we get them from .
“THE COURT: But you get them back, is that correct, from the Judge?
“WITNESS: At the time the list is due to go out. In time to prepare the list to go out so many days ahead.
“THE COURT: And then you get the cards . . . then you get the en-
velope back, is that correct?
“WITNESS: That’s right.
“THE COURT: Do you seal the envelope when you give it to the Judge?
“WITNESS: Yes, sir.
“THE COURT: And when the envelope comes back to you, have you ever known one not to be sealed at that time?
“WITNESS: No, sir.
“THE COURT: And what is done in the clerk’s office at that time?
“WITNESS: We unseal them . .
“MR. CARNES: Your Honor, we think we’re going to enter our exception to the court taking over the case. If the court has undertaken to assume an adversary position to our petition, then it should recuse itself.
“THE COURT: Overruled as to that, Mr. Carnes. I’m just trying to get the facts out as to what happens to the jury while it’s in her hands.". . . "

Counsel continued to press the challenge of the propriety of the trial court’s interrogating the witness and on the basis that the trial judge was assuming the role of an advocate and thereafter added to that ground that the evidence, and statements of the trial judge, indicated that he had some knowledge of some of the facts as to which the witness was interrogated.

We are convinced that nothing in the interrogation of the witness by the trial judge justified any implication that it had “undertaken to assume an adversary position.” It is the duty, as well as the right, of a trial judge to propound questions to witnesses if necessary to obtain proper evidence bearing on issues. Jones v. State, 292 Ala. 126, 290 So.2d 165 (1974); Whetstone v. Caudle, 54 Ala.App. 299, 307 So.2d 697 (1975); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632, writ denied, 292 Ala. 720, 289 So.2d 644. It has been held that this is especially true where the issue is one to be determined by the judge and not a jury. Dorminy v. Dorminy, 51 Ala.App. 70, 282 So.2d 686 (1973); Baggett v. Baggett, 47 Ala.App. 539, 258 So.2d 735 (1972).

Appellant argues under a caption “Trial Judge’s Bias and Interest” that information, as revealed by the judge, which he had obtained in his official capacity as one of two circuit judges in the process of drawing cards of jurors from the jury box to form venires to be summoned for jury duty, together with comments made by the trial judge relative to the issues and the evidence, required his recusal as requested by defendant’s counsel. In this respect appellant refers particularly to Code of Alabama, Recompiled 1958, Tit. 30, § 40, requiring the names of all jurors drawn and summoned who are not empanelled to be returned by the judge to the jury box in open court, unless they are disqualified or exempt. It is argued that the judge had an interest in the case.

The interest that disqualifies a judge is a personal interest, not the interest that he has in dedicating himself to the task of doing his utmost to see that justice according to law is accomplished. No charge against the judge was included in the motion with reference to the jury roll. No contention was made at that time that the trial judge or the other regular judge of the circuit, was disqualified to handle the case. The witness who testified as to the drawing and empanelling of jurors was called by defendant to testify as to the process. Defendant is chargeable with knowledge that the judge had a part in that procedure. The more appropriate time to challenge the qualification of the judge was when defendant first had knowledge of the judge’s connection with a part of the process of obtaining jurors to try a case.

In Ex parte White, 53 Ala.App. 377, 300 So.2d 420, 430, cert. denied 293 Ala. 778, 300 So.2d 439, it is stated:

“The bias or prejudice which will disqualify must be ‘personal’ as distinguished from ‘judicial’ bias. ‘Personal’, as contrasted with ‘judicial’, characterizes an attitude of extra-judicial origin, derived non coram judice. Craven v. United States, 1 Cir., 22 F.2d 605.”

The Alabama Canons Of Judicial Ethics, Canon 3, provides standards in pertinent part as follows:

“C. Disqualification:
“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;”

The registrar, who testified on the call of defendant, brought with her the official records of the office of registrar showing the registered voters in Marshall County. Defendant offered such records in evidence. There was considerable colloquy among the court and counsel relative to the ponderous nature of such records, during which the court stated:

“THE COURT: The court’s not going to allow all the voter . . . we’re not going to take all the voter registration records away from the Registrar, and you may ... if you have some figures compiled as to how many of them are thirty, if somebody’s inspected the records, and how many of them are thirty and how many of them are twenty-nine and so forth, you may furnish that information, but we are not going to accept all those voluminous records into evidence.”

Thereafter the court allowed defendant at the request of counsel “to take one page at random out of one of these registered books and make a copy of it and put it in the record as illustration of the type of information that’s on it and what we’re . and as an illustration of what we’re trying to show to the court.” It developed, however, that this did not satisfy defendant. Finally the court concluded the discussion by informing all concerned that no one would “deny that there is a disproportionate number of persons summoned for jury duty of people under thirty.” “and the court is aware of what you’re talking about and the court accepts it as a fact that there’s not as many of those people as compared to their number in the general population which is the evidence you’re talking about that you wanted introduced.” The court further stated that the voter registration records do not show “what percentage of people that age have voted, or registered to vote.”

We find no error prejudicial to defendant in the action of the trial court with reference to the records of the registrar. It is clear that such records would have added nothing of value on the issues involved in the motion before the court.

During re-cross examination of a witness for the state, Detective Tommy Cole, employed by the City of Albertville, who had testified with other witnesses as to the sale of the amphetamine tablets, he was asked whether he had previously talked to defendant about an investigation as to a Mr. Gilbert about an entirely different kind of matter. After several questions had been asked and answered, the following occurred:

“Q All right. So you were trying to talk to Mr. Kittle about an investigation against Mr. Gilbert, is that correct?
“A That’s correct.
“Q Now was there also some other potential defendant involved in your investigation of Mr. Gilbert, someone else you were trying to .
“MR. STARNES: Judge, I’m going to object.
“THE COURT: I’ll sustain.
“MR. BEARD: Your Honor, I want to show the interest of the City of Albert-ville, the officials of the City of Albert-ville, their interest in making this false case.
“THE COURT: I’ll sustain at this point, Mr. Beard.
“MR. BEARD: All right. Your Honor, will I have the same right as the District Attorney to tie it in later at sometime?
“THE COURT: Mr. Beard, please proceed with your case.
“Mr. Beard (Continued):
“Q Were you also investigating Mr. Joe Campbell, who is a councilman here in the City of Albertville? Mr. Gilbert and Mr. Campbell, were you investigating those two?
“MR. STARNES: Judge, I object.
“THE COURT: I’ll sustain.
“Mr. Beard (Continued):
“Q Did you discuss with the Mayor or the Mayor discuss with you his interest in securing an arrest or conviction of these two individuals, particularly Mr. Campbell?
“MR. STARNES: Judge, I’m going to object.
“THE COURT: I’ll sustain.
“Mr. Beard (Continued):
“Q Mr. Cole, prior to the arrest of Mr. Kittle on September the 14th, had you tried to get him to sign a statement accusing two other residents here in the City of Albertville of some illegal act?
“MR. STARNES: Judge, I object to the form of the question. It’s not material; it’s irrelevant.
“THE COURT: I’ll sustain.
“Mr. Beard (Continued):
“Q All right. Prior to the arrest of Mr. Kittle on September the 14th, had you approached him, Mr. Cole, in your official capacity as a detective for the City of Albertville and ask that he give you certain information about his employer or his friends, Mr. Gilbert and Mr. Campbell, and he refused?
“MR. STARNES: Judge, again .
“Mr. Beard (Continued):
“Q Did that occur?
“THE COURT: I’ll let him answer that question.
“A No, sir, not that he refused to, no, sir.
“Mr. Beard (Continued):
“Q He co-operated with you in this investigation fully?
“A To the best of his knowledge, according to what he told me.
“Q To the best of his knowledge?
“A According to what he told me. That’s what he said.
“Q Did he sign a statement or anything for you?
“A No, sir.
“Q He was real helpful to you in your investigation?
“A Well, he just didn’t know much. “Q What?
“A He didn’t know anything, he said.
“Q Well, now, after he said he didn’t know anything much about his employer and about a City Councilman here, the next time you saw him, you arrested him, didn’t you, on September the 14th?
“A No, sir. I couldn’t testify to that.
“Q What?
“A I couldn’t testify to that.
“Q Well, he did not disclose information to you and then you had him arrested through this complicated scheme that you’ve testified about here today, didn’t you?
“MR. STARNES: Judge, I’m going to object to that.
“THE COURT: I’ll sustain as to that.”

In insisting that the court committed error that in sustaining the State’s objections contained in the above-quoted excerpts from the record, appellant argues testimony sought to be obtained from Detective Cole would tend to show bias and that such evidence was admissible under cross-examination in accordance with the principle splendidly stated by Mr. Justice Bloodworth in Wells v. State, 292 Ala. 256, 292 So.2d 471. Counsel for defendant made known to the court that he wanted “to show the interest of the City of Albertville, the officials of the City of Albertville, their interest in making this false case.” To what extent, if any, that would show bias of the witness against defendant was certainly unclear at that time. The same is true as to any interest of the mayor in securing an arrest or conviction of the two individuals named. The objections to the first of the three questions quoted were properly sustained. Thereafter, when counsel made it clearer to the court what he was attempting to show as to any feelings between the witness and defendant relative to the named individuals, the court overruled the State’s objections to questions along that line, until the last question quoted above, which was argumentative and, but for the reference to a “complicated scheme”, called for no evidence in addition to that previously admitted. The court was not in error in sustaining the State’s objections to the questions.

It is also to be noted that the testimony of Detective Cole, as well as testimony of other witnesses for the State, was undisputed and so substantively convincing that its credibility could not have conceivably been impaired in material respects by evidence tending to show bias. The jury passed only upon the question of the defendant’s guilt or innocence. The punishment was properly fixed by the court. There could have been no prejudice to defendant in the court’s action in limiting cross-examination of Detective Cole as shown above.

The pills or tablets that the undisputed evidence shows were sold by defend-

ant were taken by Detective Lang, on September 16, two days after defendant was arrested for the sale of them, to the State Department of Toxicology at Huntsville. He had placed them in an “evidence envelope” and had sealed the envelope; he delivered the envelope to Mrs. Kim Gibson, a crime lab analyst, of the Department and obtained her receipt therefor. On September 22, Mr. Allen Adair, an experienced criminalist of the Department, whose qualifications were admitted by defendant’s counsel, received from Mrs. Gibson a sealed envelope with “A. G. Lang, 9/16/75” signed across the seal. Within the envelope was “one Albertville Police Department evidence bag” having the name “Braxton Kit-tle” written on the label, in which were twenty-one oblong white tablets. He made an analysis of some of the tablets and found that they contained amphetamine. Objections were made to his testimony as to his analysis and determination on the ground that there was not sufficient evidence to show that the particular tablets were those sold by defendant. Appellant takes the position that there was a missing link as to custody in that the evidence did not show that the tablets analyzed by Mr. Adair, which had been delivered to him by Mrs. Gibson, were the same tablets that were delivered by Detective Lang to Mrs. Gibson. As anything is possible, it is conceivable, of course, that someone unlawfully trespassed in the files and records of the Department of Toxicology and Criminal Investigation and made a switch of the tablets-, but establishment of a chain of possession or custody does not require proof that every conceivable, though extraordinarily unlikely, breaking of the chain has not occurred. The evidence shows that meticulous care was taken by Detective Lang in securing the evidence against tampering and similar care was taken by Mr. Adair in observing the identifying marks and the secured condition of the container. In Easley v. State, 56 Ala.App. 102, 319 So.2d 721 (1975), Mr. Adair testified as to his analysis of drugs he received from Dr. Van Pruitt of the Office of Toxicology in Huntsville. The court, speaking through Judge Harris, held:

“The state’s evidence as to the custody and possession of the narcotics in this case unequivocally shows there was no missing link in the chain of identification. Identification and continuity of possession were sufficiently established, affording ample assurance of the authenticity of the pills or tablets and the analyses conducted by the Toxicologist. Powell v. State, 47 Ala.App. 582, 258 So.2d 923; Green v. State, 42 Ala.App. 439, 167 So.2d 694; Aaron v. State, 271 Ala. 70, 122 So.2d 360; Dennison v. State, 259 Ala. 424, 66 So.2d 552; Oury v. State, 53 Ala.App. 240, 298 So.2d 661.”

We so hold in this case.

Except as it may be found in appellant’s claim as to a missing link, there is no contention that the verdict is not amply supported by the evidence, and we are convinced that no such contention can be sustained.

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

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    In re Braxton Lee KITTLE v. STATE of Alabama. Ex parte Braxton Lee Kittle.
    SC 2608.
    Supreme Court of Alabama.
    Jan. 6, 1978.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for petitioner.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., opposed.
   MADDOX, Justice.

Defendant Kittle was convicted of violating the Alabama Controlled Substances Act by selling amphetamines. The trial court’s denial of defendant’s motion attacking the composition of the jury roll and jury box of Marshall County was affirmed by the Court of Criminal Appeals. Defendant petitioned this Court for a Writ of Certiorari to review the opinion of the Court of Criminal Appeals, claiming it was contrary to a decision of this Court in Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970), and a decision of the Court of Criminal Appeals, Inter-Ocean Casualty Co. v. Banks, 32 Ala.App. 225, 23 So.2d 874, 875 (1945). The Court of Criminal Appeals held:

“We do not hold that the jury roll at the time of the hearing on the motion to quash, substantially conformed to the requirements of Code of Alabama Recompiled 1958, 1973 Cum. Pocket Part, Tit. 30, § 20, or that there had been as of that time substantial compliance with all the duties by the members of the Jury Commission and its clerk. Such a question.is better resolved, and, if resolved against the Commission, a more beneficent result is obtained, by a mandamus proceeding against the members of the Commission, in which they are given a right to answer and be heard, after due notice and an adequate opportunity to present their side of the case, as was true in Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970).”

The Court of Criminal Appeals seems to suggest that the defendant’s remedy was to file mandamus. Mandamus would be the better procedure, but a motion to quash the venire is not an inappropriate remedy and has been used before. See Inter-Ocean Casualty Co. v. Banks, supra. The defendant here attacked the composition of the venire by a motion to quash. The Court of Criminal Appeals, therefore, should review the trial court’s ruling on defendant’s Motion to Quash the Venire and apply the rule of our cases that a jury venire should not be quashed “except on motion and proof in the circuit court showing fraud in filling the jury box or in drawing and summoning them.” Bell v. Terry, 213 Ala. 160, 104 So. 336 (1925).

The cause must be reversed and remanded to the Court of Criminal Appeals to determine whether the defendant did “prove fraud in filling the jury box or in drawing and summoning them.”

REVERSED and REMANDED.

All the Justices concur.


text:
    Braxton Lee KITTLE v. STATE.
    8 Div. 894.
    Alabama Court of Criminal Appeals.
    Feb. 21, 1978.
    Rehearing Denied March 21, 1978.
   PER CURIAM.

In compliance with the opinion of our Supreme Court, 362 So.2d 1269 remanding this cause for us “to determine whether the defendant did ‘prove fraud in filling the jury box or in drawing and summoning them,’ ” we determine and find that defendant did not prove fraud in filling the jury box or in drawing and summoning them.

Having conformed our opinion to that of the Supreme Court of Alabama, the judgment of the trial court is now due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    In re Braxton Lee KITTLE v. STATE of Alabama. Ex parte Braxton Lee Kittle.
    77-441.
    Supreme Court of Alabama.
    Aug. 4, 1978.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for petitioner.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, opposed.
   PER CURIAM.

This case, before the Court upon Writ of Certiorari, concerns a Motion to Quash the Venire filed by petitioner, Braxton Lee Kit-tle. This case was previously before this Court, but was remanded to the Court of Criminal Appeals to determine whether Kittle proved fraud in the filling of the jury box or in the drawing or summoning of jurors. See Kittle v. State, S.C. 2608[MS], (decided January 6, 1978), Ala.Sup., 362 So.2d 1269. The Court of Criminal Appeals, pursuant to our Order, reviewed this matter and held:

“. . . [W]e determine and find that defendant did not prove fraud in filling the jury box or in drawing and summoning them.” Kittle v. State, 8 Div. 894[MS], (decided February 21, 1978), Ala.Crim.App., 362 So.2d 1271.

We reverse and remand.

On October 2, 1975, Kittle was indicted for alleged violations of the Alabama Uniform Control Substances Act of 1971. Tit. 22, § 258(33), Code (1973 Cum.Supp.). At his arraignment, he pleaded “Not guilty” and trial was set for December 1, 1975. Subsequently, his case was continued and trial was reset for April 5, 1976.

On March 31, 1976, Kittle filed a motion attacking the composition of the jury roll and jury box of Marshall County. At the hearing on this motion, Kittle was joined by other defendants who had filed similar motions. It is the denial of this motion for which Kittle presently seeks review.

Preliminarily, it should be noted that Kittle raised this issue by a Motion to Quash—not by Writ of Mandamus. “Mandamus is an appropriate procedure [State ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970)] but ... a motion to quash the venire is not an inappropriate remedy and has been used before.” Kittle v. State, S.C. 2608[MS], (decided January 6, 1978), Ala.Sup., 362 So.2d 1269, citing Inter-Ocean Casualty Co. v. Banks, 32 Ala.App. 225, 23 So.2d 874 (1945).

In its first opinion in this case, the Court of Criminal Appeals did not recite much of the testimony received at the hearing. The court did state, however: “that there are many indications in the evidence that they [the Marshall County Jury Commission] failed to comply with all their duties.” 362 So.2d, at 1262. Furthermore, the court carefully noted:

“We do not hold that the jury roll at the time of the hearing on the motion to quash, substantially conformed to the requirements of Code of Alabama Recompiled 1958, 1973 Cum. Pocket Part, Tit. 30, § 20, or that there had been as of that time substantial compliance with all the duties by the members of the Jury Commission and its clerk.” 362 So.2d, at 1264-1265.

Kittle, pursuant to Rule 39(k), ARAP, supplemented the abbreviated facts stated in the Court of Criminal Appeals’ opinion. These recitals, substantiated by the record, indicate that there was not complete compliance with statutory requirements in several respects, not here necessary to enumerate or to comment upon, because we reverse on another point as hereinafter spelled out.

Title 30, § 46, Code, provides:

“No objection can be taken to any ve-nire of jurors except for fraud in drawing or summoning the jurors.”

The purpose of this statute is to accomplish the salutory purpose of preventing the quashing of venires for mere irregularities and to obviate the resulting delays in the administration of justice. Wimbush v. State, 237 Ala. 153, 186 So. 145 (1939). The “irregularities” spoken of refer to trivial administrative errors. See Zininam v. State, 186 Ala. 9, 65 So. 56 (1914); and Beverett v. State, 24 Ala.App. 470, 136 So. 843 (1931). They do not refer to such radical departures from the statutory scheme as to constitute a usurpation of legislative authority. State, ex rel. Gregg v. Maples, 286 Ala. 274, 239 So.2d 198 (1970).

The activating word “fraud” as used in the statute, has been construed as encompassing more than criminal wiles; instead, it is a relative term which “includes all acts and omissions which involve a breach of legal duty injurious to others.” Inter-Ocean, 32 Ala.App., at 227, 23 So.2d, at 875. See also Gregg, supra. Thus, a legal fraud is all that is required by the statute for a venire to be quashed.

The jury statutes, as to each precise provision, are not themselves mandatory; (Tit. 30, § 44, Code) substantial compliance with them is required; [Inter-Ocean, supra] but in one respect, we specifically find the type of legal “fraud” condemned in Gregg, supra.

Section 9 provides, in part:

“Each of said jury commissions shall be composed of three members . . . .”

A quorum of two members is required to transact business. Tit. 30, § 11, Code.

Section 10 provides:

“The governor shall appoint the members of several jury commissions who shall constitute said several commissions during the governor’s tenure of office and until their successors are appointed and qualified, and thereafter the, governor shall appoint the members of said jury commissions for and only during the tenure of office of the governor making the appointment and until their successors are appointed and qualified.”

As the Report of the Attorney General, April-June, 1939, p. 249, and April-June, 1943, p. 89, correctly points out, the term of such commissioners runs from the date the governor takes office until the end of his term. Old commissioners may be held over for a “reasonable time” or until their successors are appointed. Furthermore, the “tenure of the office of the governor” refers to each individual term of the governor and commissioners, therefore, must necessarily be reappointed.

In the case before us, Marshall County had but two Commissioners in that one had resigned. Of these remaining two, only one, Leroy Sumners, had attended any meetings within the past year. The other Commissioner, James Forrester, had not attended meetings but had, instead, paid Roy Cooley, to attend them and act in his place. It is undisputed that Cooley has never been appointed by the Governor and is not an official member of the Jury Commission.

The State argues that Cooley is a de facto Commissioner. As authority for this contention, it cites Spraggins v. State, 139 Ala. 93, 35 So. 1000 (1903). The court in that case merely held that a duly elected commissioner, acting within that capacity, but prior to reception of his official commission, acted as a de facto commissioner. This case is inapplicable here because the commissioner in Spraggins had met all but mere formal requirements of the commission. Here, however, Cooley has neither been elected nor appointed by the Governor. He is, without any legal authority to act. There is no statutory authorization for a commissioner to contract with another to perform his duties.

Moreover, Sumners’ term of office expired 18 months before the hearing and he has not been reappointed by the Governor. While, as stated, commissioners may hold over for a reasonable length of time, we hold that such “reasonable time” cannot extend for this lengthy period. Therefore, no official member of the Commission (there being but one) attended a single meeting within the year preceding trial; there was no quorum to transact business, and all acts of the purported Commission must be deemed to constitute the “fraud” prohibited by law.

There were many instances wherein the Commission failed to follow the statutory procedures. We need not decide whether there was “substantial compliance” with statutory requirements, because we have already determined there was legal fraud present in this case. However, we restate what this Court stated in Inter-Ocean, 32 Ala.App., at p. 227, 23 So.2d, at 875:

“These statutory provisions exclude any idea of any authority for drawing a venire from a box that was not filled according to law. They also exclude any idea of any authority in the jury commission to intentionally omit the names of citizens who possess the qualifications required by law of jurors from the jury roll or to leave those names out of the jury box. These legislative safeguards were established to protect litigants and to ensure a fair trial by an impartial jury. Substantial compliance with these requirements is necessary in order to safeguard the administration of justice.”

If these statutory safeguards are to have any meaning, substantial compliance therewith is required. Gregg, supra; and Inter-Ocean, supra.

The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.

REVERSED AND REMANDED.

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

      . § 20-2-27, Code 1975.

      . § 12-16-30, Code 1975.

      .§ 12-16-79, Code 1975.

      . § 12-16-33, Code 1975.

      . § 12-16-32, Code 1975.


author: BOWEN, Judge.

text:
    Braxton Lee KITTLE v. STATE.
    8 Div. 894.
    Alabama Court of Criminal Appeals.
    Oct. 3, 1978.
   After Remandment

BOWEN, Judge.

This case is reversed and remanded on authority of Ex parte Braxton Lee Kittle (In re: Braxton Lee Kittle v. State of Alabama), S.C. 77-441, Ala., 362 So.2d 1271 (Ms. August 4, 1978).

REVERSED AND REMANDED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    James Alvin HAWTHORNE, alias v. STATE.
    1 Div. 919.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      W. Clinton Brown, Jr., of Crawford, Blacksher, Figures & Brown, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Grand Jury of Mobile County in October, 1976, for the sale of heroin. Appellant then filed a motion to quash this indictment on the ground that blacks had been systematically excluded from the jury rolls. This motion was heard and denied by the trial court in January, 1977. Following a favorable ruling in Federal Court on Habeas Corpus, the trial court quashed the October, 1976 indictment on May 6, 1977.

On July 1, 1977, appellant filed a petition for writ of habeas corpus alleging that he had been denied a speedy trial. According to the evidence, appellant was at that time incarcerated on charges other than the sale of heroin. The trial court heard the petition, ruling that the appellant should be discharged unless reindicted by the Grand Jury by September 15, 1977. This ruling was made August 26, 1977.

On September 22, 1977, appellant was reindicted by the Grand Jury of Mobile County for the sale of heroin. In the presence of counsel, appellant was duly arraigned, entering a plea of not guilty to the charge. Prior to trial, on January 23, 1978, appellant filed the following motion to dismiss.

“MOTION TO DISMISS FOR DENIAL OF SPEEDY TRIAL
“Comes now JAMES ALVIN HAWTHORNE, defendant in the above style cause, and moves this Honorable Court to dismiss the charge against him for and on account that he has been denied his right to a speedy trial on the instant charge. In support thereof, defendant offers to show as follows:
“1. On September 22, 1976, the Mobile County Grand Jury returned a ‘secret’ indictment against defendant charging him with the sale of heroin, a controlled substance. Defendant was arrested on October 26, 1976, pursuant to said indictment.
“2. On January 4, 1977, defendant filed his motion to quash the indictment against him based on the systematic exclusion of Negroes from the jury roll of Mobile County, Alabama. Defendant’s motion was subsequently denied and on April 20, 1977, defendant filed his motion for reconsideration of his prior motion to quash the indictment returned against him.
“3. On May 6, 1977, the indictment against petitioner for sale of heroin was quashed by Order of this Court.
“4. On July 1, 1977, defendant filed a petition for writ of habeas corpus alleging that he had been denied his right under the Sixth Amendment to the United States Constitution and under Article 1, Section 6, Constitution of Alabama to a speedy, public trial by an impartial and constitutionally selected jury. Defendant’s petition recited that he had been incarcerated for over eight and one-half months without benefit of an opportunity to show his innocence through trial. Said denial of speedy trial was alleged to have caused defendant great mental, physical and emotional distress and injury and was further alleged to have seriously prejudiced his opportunity to prove his innocence. Said petition came on for a hearing and on August 26, 1977, the Honorable Ferrill D. McRae ordered defendant released on September 15, 1977, if he had not been reindicted ‘by said time. “5. Defendant remained incarcerated until mid September, 1977, when he was released on bond, having been subsequently reindicted for the instant charge. Defendant’s term of incarceration, without trial, extended from October 26, 1976 until September, 1977.
“6. Defendant’s excessive and unwarranted incarceration without trial caused him great mental, physical and emotional distress and injury and seriously prejudiced his opportunity to prove his innocence. Some fifteen months have now passed since the defendant’s initial arrest on the instant charge; said delay has been unreasonable and oppressive.
“WHEREFORE, THE PREMISES CONSIDERED, defendant respectfully -moves this Honorable Court for an order dismissing the instant charge.”

During the hearing on the motion, counsel for appellant stated that his client had been unduly prejudiced, because in the 16 months that had passed since his arrest, appellant no longer recalled his whereabouts on the date of the alleged sale. The appellant’s motion was denied.

Appellant now contends that he is entitled to relief under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; and Prince v. State, Ala.Cr.App., 354 So.2d 1186, cert. denied, Ala., 354 So.2d 1193. We do not agree.

In Barker v. Wingo, supra, the United States Supreme Court delineated the four factors t.o be considered in determining whether or not an accused’s right to a speedy trial has been violated. These factors are: (1) the length of the delay, (2) the accused’s assertion of his right, (3) the reason for the delay, and (4) prejudice to the accused.

In this case, the delay of time from arrest until trial, sixteen months, was not an inordinately excessive period of time when compared to the five year delay in Barker v. Wingo, supra, and the three and a half year delay in Prince, supra. Appellant did not assert his right to a speedy trial of his case until July 1, 1977, a period of eight months from the time of the original indictment.

During this time appellant was busily engaged in his successful attempts to have the original indictment quashed. This Court, in Braden v. State, 49 Ala.App. 97, 268 So.2d 877, wrote:

“The appellant may not complain of self-imposed delay . . .. Delays result when an accused seeks to take advantage of all the protections guaranteed by law, and often he must relinquish some measure of the dispatch to which he might otherwise be entitled. Appellant will not be allowed to have his cake and eat it too.”

See also O’Such v. State, Ala.Cr.App., 351 So.2d 676.

Neither has appellant sufficiently shown himself to have been prejudiced by the delay in bringing the case to trial. Appellant’s assertion that he is unable to prepare an alibi defense because he cannot recall his whereabouts on the day of the offense presents “nothing more than a bare possibility that the delay prejudiced him in his defense of the case.” Crawford v. State, Ala.Cr.App., 342 So.2d 450. Although such an assertion may suffice where the delay is excessive and inexcusable, Prince, supra, such is not the case here.

Because appellant moved to exclude the State’s evidence at the close of the State’s case, a brief recital of the facts is necessary.

Barry Lee Newsome, an agent for the Mississippi Bureau of Narcotics, was on assignment for Mobile authorities on September 7, 1976. That evening Newsome asked appellant, whom he positively identified at trial, if he had any capsules of heroin for sale. Appellant sold Newsome two capsules for thirty dollars. Subsequently, these capsules were examined by Alilee Pillman, a toxicologist for the City of Mobile Police Department, with twenty-six and a half years experience in such matters. Miss Pillman testified that the capsules contained heroin. No question is raised as to the chain of possession of the heroin. There was no missing link in the chain of possession.

Appellant’s defense consisted of his total denial of having ever sold heroin to anyone and the fact that Newsome testified that the vendor had an “afro.” Witnesses who testified in behalf of appellant stated that appellant had not worn an afro for several years. Conflicting testimony presents an issue for the jury to resolve and the jury resolved that issue against appellant in 28 minutes.

The State’s testimony established a prima facie case of sale of heroin by appellant. Although appellant denied the charge, this conflicting evidence presented a jury question and a verdict rendered thereon will not be disturbed by this Court. Young v. State, Ala.Cr.App., 346 So.2d 509.

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

AFFIRMED.

All the Judges concur.


text:
    Kim PEARSON v. STATE.
    2 Div. 220.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Thomas H. Boggs, Jr., Demopolis, for appellant.
    William J. Baxley, Atty. Gen., and Eddie Hardaway, Jr., Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was indicted for possessing, selling, furnishing or giving away to-wit: marijuana, a controlled substance. Sentence; five years imprisonment.

Defendant entered a plea of not guilty. The burden thereupon rested on the State to convince the jury beyond all reasonable doubt the allegations in the indictment were true.

There is no doubt that an unlawful sale as charged was made by defendant to an informant who appeared as a witness. The defendant admitted the sale, but asserted that she was entrapped into making the sale. If established, entrapment is a defense and would entitle the defendant to a verdict of not guilty.

The evidence shows that the informant concealed his identity and convinced defendant that he was a bona fide purchaser. We will not delineate the details of his approach and conversations with the defendant that induced the sale. Suffice it is that the sale was made and the jury was fully informed by the trial judge as to the law of entrapment. A jury question was presented. We quote from the excellent oral charge as follows:

“. . . The defendant as I said, has said that she is not guilty of this offense and has set up a defense of not guilty and also the defense of entrapment. I want to explain to you what entrapment is and how that term should be applied. Whenever someone asserts that they are the victim of entrapment, that means that they were . . . had no previous intent of purpose to violate the law, but they were induced or persuaded by law enforcement officers or their agents to commit the crime; that they say they are the victim of entrapment. The law of this State and of the country forbids conviction of a defendant if someone is entrapped, as I will explain that to you .... forbids a conviction if there is, in fact, entrapment. Now, where a person already has the readiness and willingness to break the law, the mere fact that law enforcement officers provides what appears to be a favorable opportunity is not entrapment. The mere fact that the State’s main witness, or an officer of the State, solicites a criminal act to which the defendant yielded, does not mean that there is entrapment. For a defendant to set up the defense of entrapment, as I said, must show that they were induced or persuaded by law enforcement officers or their agents to commit the crime. Now, if you should be satisfied beyond a reasonable doubt from the evidence in this case that, before anything at all occurred respecting the commission of the alleged offense in this case, the defendant was ready and willing to commit the crime that’s charged by the indictment, whenever that opportunity was afforded and that law enforcement officers or their agents did no more than offer the opportunity; then you should find that the defendant is not a victim of entrapment. On the other hand, if the evidence in this case should leave you with the reasonable doubt whether the defendant had the previous intent to commit any crime or offense with which she is charged, and she did so only because she was induced or persuaded by some law enforcement officer, then it would be your duty to acquit her. That’s what the law is on entrapment. That’s what the term means when applied to the law of this State. It’s up to you to determine the facts of this case. You’ve heard the evidence. I can not comment on the facts: I can not comment on the evidence. It’s up to you to determine what the facts of the matter are.”

This charge, in our judgment, was sufficient and adequate to inform the jury as to the law of entrapment as applied to the ease. Hudson v. State, Ala.Cr.App., 335 So.2d 208(1), cert. den., Ala., 335 So.2d 211; Johnson v. State, 291 Ala. 639, 285 So.2d 723(3); Demmon v. State, 46 Ala.App. 652, 248 So.2d 147; Boswell v. State, 290 Ala. 349, 276 So.2d 592(15); Tyson v. State (M.S.) Ala.Cr.App., 361 So.2d 1182.

We find no error to reverse or remand on the trial of this case. Appellant had a fair trial before the jury. She lost and cannot be heard to complain.

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.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Leroy BROWN v. STATE.
    3 Div. 583.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

This is one of a series of three separate cases of robbery. The robbery was as to the same property, the same victim and the same occasion. Its tripartite character arises from the existence of three persons as the robbers. The accused are three brothers. The two brothers of appellant are Zane Brown and Gregory Brown.

Zane Brown’s conviction was affirmed in Brown v. State, Ala.Cr.App., 338 So.2d 1050 (1976); the conviction of Gregory was affirmed in Brown v. State, Ala.Cr.App., 339 So.2d 125 (1976).

As in the other two cases, the only actually disputed issue was as to the identity of the defendant. The evidence was undisputed that Richard Stubbs, the main witness for the State, was robbed about midnight on December 5, 1975, while employed at the Eastern Petroleum Station in Montgomery by three young men or boys who had driven up in a 1970 or 1971 LTD. One of them gave him a twenty dollar bill to cover a two dollar purchase and Stubbs went into the station to get change. While in the station, one of the three pulled a gun on Stubbs and robbed him of the money in the station consisting of about two hundred dollars. They demanded that Stubbs get in the automobile with them, and they carried him to an old country road in the vicinity of Hope Hull where he was told to get out of the car. He did not knew what happened immediately afterwards, but was found the next morning lying in a ditch on the side of the road with blood coming out of the back of his head and a bullet hole between his eyes. Further facts are summarized in Brown v. State, 338 So.2d 1050.

There is some difference in language, but little difference in substance, between the contentions for a reversal in instant case and those made by appellant in Zane Brown’s case (338 So.2d 1050). We adhere to our conclusions there made in response to appellant’s contentions substantially repeated here.

Contrary to appellant’s contention that officers had no probable cause for arresting defendant, the evidence shows that the officers, including particularly Detective Sidney T. Williams, had investigated the robbery from December 6, 1975, to December 14, 1975, and had discussed the matter with the victim, who gave them a description of the persons who robbed him and the automobile in which they were riding. He had also identified pictures of them. Furthermore, Detective Williams had received information from an outsider, who had previously given him reliable information, as to the suspects and the automobile in which they were riding and the place where they lived. On December 14, 1975, Detective Williams, accompanied by at least two other police officers, went to the home of appellant, his two brothers, and his father and mother, knocked at the door, and Zane Brown answered the knock. Detective Williams asked if the other two brothers were there, and he was told that they were not. It was soon learned that they were there. The three brothers were there placed under arrest, and soon thereafter, on the same day, the automobile was towed to the police station, and a search warrant was issued for a search of the automobile. The search revealed hairs which, according to the testimony of a crim-inalist of the State Department of Toxicology, were indistinguishable, upon microscopic examination, from specimens of the hair of Stubbs. The witness acknowledged the possibility that the hairs found were not hairs of Stubbs.

There was more than probable cause for the arrest of appellant, and the search of his automobile was pursuant to a valid search warrant.

Appellant also contends, as appellant contended in Brown v. State, 338 So.2d 1050, that the victim’s in-court identification of defendant was tainted in the process of a prior identification of photographs of defendant and his brothers. He also insists that the line-up identification, or identifications, of defendant were not fair to defendant. The point was made in the case just cited, and is made here, that there is some difference between the texture or thickness of the paper or cardboard backing of the photographs of defendant and his brothers and photographs of others shown to the victim. We continue to believe that there was nothing so significant about such difference as to reflect seriously upon the use and exhibition of the pictures to the victim. A point not made previously is that, according to Richard Stubbs, appellant was wearing sunglasses at the time of the robbery and while riding in the automobile with the victim, but that he was not wearing sunglasses at the time the photographs were taken of him. Any contention that this in any way tainted the photographs or the identification process seems to fall of its own weight, in that the absence of sunglasses in the photographs and lineup is antithetic to intentional suggestiveness.

The contention of appellant, that Stubbs could not have been as able to identify appellant with sunglasses on as he would if appellant had been without them, has some merit, of course, but it goes merely to the weight of the evidence on the question of identity, which unquestionably was a matter for the jury, and the jury alone, to decide.

In addition to finding that there was nothing impermissibly suggestive about the photographs or the lineup procedure, we are of the opinion that the evidence shows that the victim’s in-court identification of appellant was in no way dependent upon the photographs and line-up procedures. He positively identified appellant as the robber who actually pointed a gun at him in a well lighted gasoline station, demanded that he hand over the money, ordered that he get in the LTD, and rode next to him in the back seat of the automobile until he was ordered out of the automobile near Hope Hull. The circumstances as a whole fully meet the requirements of an in-court identification of independent origin. Daniels v. State, Ala.Cr.App., 335 So.2d 251 (1976).

Appellant testified that he knew nothing about the robbery, that he was in another place at the time thereof. Other witnesses tended to support his claim of an alibi, but their testimony was far from conclusive, and there seems to be no contention to the contrary.

Our review of the record convinces us that there was no error prejudicial to defendant and that the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . See also Brown v. State, Ala.Cr.App., 342 So.2d 1367 (1977) aff’g conviction of Gregory Brown for assault with intent to murder.


author: BOOKOUT, Judge.

text:
    O. C. BESTER v. STATE.
    3 Div. 933.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      B. F. Lovelace, Brewton, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

On March 14, 1978, the appellant, an inmate at Fountain Correctional Center, was indicted for the murder of a fellow prisoner, Hayes J. Tooson. Tooson was serving a life term for his part in the murder of Alabama football star Bobby Duke. Tooson v. State, 56 Ala.App. 613, 324 So.2d 327, cert. denied 295 Ala. 426, 324 So.2d 333 (1975). Appellant was indicted pursuant to § 13-11-1, et seq., Code of Ala. 1975, commonly known as the death penalty statute. An indictment under this statute must allege certain aggravating circumstances that are set forth therein. In the instant case, the aggravating circumstance was that the murder was committed while appellant was serving a sentence of life imprisonment.

On May 8, 1978, a motion was made by the State, in the presence of and with the consent of the appellant and his attorney, to amend the indictment by removing the aggravating circumstances, thereby charging the appellant with first degree murder under § 13-1-70, Code of Ala. 1975, instead of capital murder. The appellant pled guilty to that offense and was sentenced to life imprisonment, which under the first degree murder statute preserves the appellant’s future eligibility to be considered for parole.

An indictment cannot be amended except as provided in § 15-8-90, Code of Ala. 1975 [formerly Title 15, § 253, Code of Ala. 1940], which is as follows:

“An indictment may be amended, with the consent of the defendant entered of record, when the name of the defendant is incorrectly stated or when any person, property or matter therein stated is incorrectly described.”

Also see: Lay v. State, 42 Ala.App. 534, 170 So.2d 815 (1965). Section 15-8-90, supra, does not authorize substantive amendments. Cocomise v. State, Ala.Cr.App., 346 So.2d 496 (1977). Capital murder is a substantive offense within itself and does not include first degree murder as a lesser offense. It is expressly stated in § 13-11-2, Code of Ala. 1975, that an indictment for capital murder “shall not include any lesser offenses.”

The appellant was indicted under one Code section and sentenced under another. This was a substantial change from the indictment as returned by the grand jury and does not fall within the permissible limits of § 15-8-90, supra. See: Crews v. State, 40 Ala.App. 306, 112 So.2d 805 (1959).

REVERSED AND REMANDED.

All the Judges concur.


author: TYSON, Judge.

text:
    Leslie EVANS v. STATE.
    3 Div. 934.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    B. F. Lovelace, Brewton, for appellant.
    William J. Baxley, Atty. Gen., and Edwin L. Yates, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The two-count indictment charged Leslie Evans with the first degree murder of Hayes J. Tooson “by stabbing or cutting him with a knife” while having been convicted and serving a sentence of murder in the second degree from Jefferson County, Alabama, within twenty years prior to the stated offense. Experienced counsel was appointed to represent the appellant, and, following discovery proceedings and arraignment on the capital murder indictment, the trial court conducted a hearing and allowed the appellant to enter a plea of guilty, as charged, based upon the recommendation by the State that the second count of the indictment be struck, and because of a mitigating circumstance as brought before the court that the appellant be allowed to plead guilty to murder in the first degree, and that the State would recommend punishment of life imprisonment without parole.

The trial court then brought the appellant, his attorney, and the district attorney before the court and conducted a full and complete hearing on the voluntariness of the guilty plea, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, having ascertained that such plea was not brought about by any threat, intimidation, coercion, or other type of inducement, and after full advice by the trial judge as to the appellant’s constitutional rights, the appellant was allowed to enter the guilty plea to murder in the first degree, with a sentence of life without parole, and that such sentence would run concurrently with the thirty year sentence for murder in the second degree, which the appellant was then serving.

At the hearing, the State brought out the following mitigating circumstance: “That this crime was committed while the defendant (appellant) was under the influence of extreme emotional disturbance, and for that reason the State would recommend life without parole, rather than the death penalty.”

Following a full explanation of these matters to the appellant by his attorney and by the trial court, the appellant then entered his plea of guilty, which was accepted by the court. Sentence was set by the trial court accordingly.

The appellant now prosecutes an appeal from this action in which he asserts the following two issues:

(1) The unconstitutionality of the present Alabama Death Penalty Statute, §§ 13 — 11— 1, et seq., Code of Alabama 1975; and

(2) May the trial judge accept a plea of guilty instead of conducting a jury trial where a party has been indicted of first degree murder under the aforesaid “capital murder statutes”?

I

With reference to the constitutionality of §§ 13-11-1, et seq., Code of Alabama 1975, the constitutionality of these statutes have been upheld several times by this Court and recently by the Supreme Court of Alabama in Jacobs v. State, rehearing denied, (1978), Ala., 361 So.2d 640; and Evans v. State, rehearing overruled, (1978) 361 So.2d 666. The very issues argued by the appellant are answered in these opinions.

II

The appellant asserts that under §§ 13-11-1, et seq., Code of Alabama 1975, only the trial court, following a trial by a jury, may impose the death penalty pursuant to the aforesaid statutes. We do not agree.

While it is true that the aforesaid statutes do not expressly authorize the acceptance of a guilty plea in capital murder cases, nonetheless, such procedure is authorized in capital cases by virtue of the provisions of §§ 15-15-24(a). This statute authorizes the taking of such guilty plea by the court when, in the opinion of the trial court, a lesser punishment than the death penalty is warranted by a particular case. This statute expressly precludes the imposition of the death penalty without the intervention of a jury.

Since this is a question of first impression in this State, we point out that the appellant’s rights were here carefully protected in every respect by the trial court.

Because a trial judge, following a jury trial, wherein the jury imposed a sentence of death, might, at an aggravating or mitigating hearing following such trial, set punishment at life imprisonment without parole, § 13-11-4, Code of Alabama 1975; it seems clear that the trial court in an appropriate case may be allowed to invoke the provisions, as here, of § 15-15-24, Code of Alabama 1975. To hold otherwise would be to subject the appellant to undue hardship and harassment.

This Court has carefully examined this record and finds same to be free of error. The judgment is due to be and is hereby

AFFIRMED.

All the Judges concur; HARRIS, P. J., in result only.


text:
    Morris L. PETERSON v. STATE.
    4 Div. 617.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      J. Earl Smith, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of grand larceny and a sentence of imprisonment for seven years.

The property allegedly stolen consisted of two 1977 Lincoln Continental Mark V automobiles of the aggregate value of, to-wit: $22,800.00, the property of Dothan Lincoln-Mercury Company, Inc.

The defendant took the stand and stoutly testified he had no knowledge of and no connection with any alleged larceny, but there was an abundance of substantial evidence of his guilt. There is no contention on appeal to the contrary. A brief summary of salient portions of the testimony should be sufficient for the purposes of this opinion.

Four witnesses testified they had previously pleaded guilty to indictments against them for the same larceny charged against defendant; that they left Quincy, Florida, at about 7:00 P.M. in company with appellant in appellant’s station wagon; they all went to the Dothan Lincoln-Mercury Car Company lot, where a chain around the lot was cut by one or more of them and two automobiles were taken therefrom; with each of the five in one of the motor vehicles, they traveled toward Cottonwood, Alabama, where the lead automobile, which was one of the two stolen automobiles, was stopped by the police; the other two automobiles passed by.

According to the testimony of Edward Collins, an employee of the Canon Oil Company located near the Dothan Lincoln-Mercury Company in Dothan, he saw one of the stolen automobiles as it was backing out of the lot. He notified the police of Dothan, who issued an “all points bulletin” describing the vehicle. Officer Eugene Coker of the Cottonwood Police Department, testified that he heard one of the “all points bulletins” about 10:45 P.M., describing the automobile as a “maroon colored Lincoln, with the price tag on the window.” A few minutes after hearing the bulletin, he saw the automobile in Cottonwood. A light colored Lincoln was behind it and a station wagon was behind the light colored Lincoln. He stopped the light colored Lincoln and arrested the driver. The other two motor vehicles proceeded down Highway 53 toward Florida. Two men were in the automobile he stopped.

Officer Ray Helms, of the Cottonwood Police Department proceeded down Highway 53 in pursuit of the light colored Lincoln Continental, which was being followed by a station wagon. He stopped the Continental, in which were two men. The station wagon slowed up, but eased on by. He said that defendant was driving the station wagon.

Defendant was apprehended at his home in Quincy, Florida, about 2:00 A.M. of the night of the larceny. A Quincy police officer went to his home the next morning and observed a station wagon at his residence.

Defendant denied going to Dothan the night of the larceny. He said he was working until after midnight. He was corroborated as to his alibi by James Mitchell, who said he first saw defendant about 9:00 P.M. on June 27 where defendant was remodeling a store. The witness said he left about 12:00 that night. This was all at Quincy, Florida.

Most of the testimony for the State on the issue of defendant’s participation in the larceny was furnished by the four confessed accomplices. Nevertheless, there was sufficient corroboration of them by testimony of persons who had no part in the larceny to satisfy the requirements of Code of Alabama Recompiled 1958, Tit. 15, § 307.

Included within the corroborative evidence was the definite testimony of Officer Helms that at the time he stopped the light colored Continental, the defendant was driving the station wagon that was following the Continental. He also said that a photograph, identified by another witness as a photograph of a station wagon he had seen at the Dothan Lincoln-Mercury Company the night of the larceny, was a photograph of the station wagon defendant was driving. Officer Wachob of the Quincy, Florida, Police Department testified that the same photograph was a photograph of the station wagon located at defendant’s residence on the morning after the larceny. There were other circumstances indicative of defendant’s guilt, including (1) the fact, which defendant admitted, that he had had some sets of Lincoln automobile keys made at the Burdeshaw Bicycle Company in Do-than three days before the larceny, some of which keys were found in the two stolen automobiles, and (2) the admitted fact that he had borrowed bolt cutters that some of the witnesses testified were used in cutting a chain around the car lot. Defendant attempted to explain (1) by saying that his purchase of the automobile keys was for the purpose of having extra keys to his own Lincoln Continental. As to (2), he said the bolt cutters were borrowed by him to be used in some construction work in Quincy, Florida.

Appellant urges that the trial court was in error in permitting Officer Eugene Coker to testify as to the description of the stolen automobiles as contained in the “all points bulletin” which he heard about 10:45 on the night of the larceny, as shown by the record as follows:

“Q And did they give you a description of the cars to be on the lookout for?
“MR. SMITH: We object to what the bulletin was, Your Honor.
“MR. SORRELLS: It’s part of his investigation, Judge.
“THE COURT: Overruled.
“MR. SMITH: We except.
“THE COURT: Yes, sir.
“Q Was there a description of what you were to be looking for?
“A Yes, sir.
“Q What was it?
“A It was a maroon colored Lincoln, with the price tag on the window.”

We agree with appellant’s argument that the fact that “a description of cars to be looked out for” was a “part of his [the witness’] investigation” does not make such testimony admissible. To hold otherwise would, as appellant argues, permit at times the introduction into evidence of “rank hearsay,” which would include statements of third parties, not cross-examinable by defendant, and would constitute strong evidence of defendant’s guilt and even at times permit a conviction based largely upon hearsay testimony. Small v. State, Ala.Cr.App., 348 So.2d 504, aff’d, 348 So.2d 507 (Ala.1977). Although the particular testimony was not made admissible by reason of its being “a part of” the witness’ “investigation,” as indicated by the State, it constituted relevant evidence that was not subject to any objection on the ground of its being hearsay, which is asserted for the first time on appeal. Aside from any question as to the sufficiency of the objection to the question at the time of the objection, it was not subject to objection on the ground now assigned, that is, that it called for hearsay testimony. It clearly was not offered for the purpose of proving, and it does not tend to prove, the truth of the matter stated, which is an essential of hearsay. Gamble, McElroy’s Alabama Evidence, § 242.01(1) (3d Ed.1977). A similar question was disposed of in State v. Calloway, La., 324 So.2d 801, 809 (1975), as follows:

“This bill [Bill of Exception No. 11] was reserved when the trial court overruled the defense objection to the State’s eliciting from one of the arresting officers that he had received a report on the radio that the two suspects were believed to be in a black Cadillac.
“The radio communication was admitted not to prove the truth of the assertion (i. e., that the suspects were in a black Cadillac), but to explain the sequence of events leading to the arrest of the defendants from the viewpoint of the arresting officers. The testimony was therefore not hearsay. See State v. Bluain, 315 So.2d 749 (La.1975).”

Furthermore, we find that the harmlessness of the evidence under consideration is clear, in that the information contained in the bulletin is otherwise shown by the evidence conclusively and without dispute. The question of the guilt or innocence of the defendant never hinged on any issue as to the description of the automobile stolen. The only actually disputed issue was whether defendant participated in the larceny.

Appellant asserts that the trial court was in error in admitting testimony of Freddy Thompkins as to a statement made to him by one Wallace Smith on the evening of the larceny a short while before the trip from Quincy to Dothan. The point raised by appellant is shown by a part of the record as follows:

“Q Let me ask you this question: Was Mr. Peterson there when Mr. Smith told you — you had a conversation in Mr. Peterson’s presence at that time?
“A Yes, he was there.
“Q And that was when you testified about, seven, seven thirty or so?
“A Yes.
“Q And where did this conversation take place?
“A At the store.
“Q At the discount grocery store?
“A Yes.
“Q All right. What was said there in Mr. Peterson’s presence then?
“A Well, Mr. Smith called Mr. Peterson back in the back. I don’t know what they discussed. But, it was my understanding—
“MR. SMITH: We object.
“THE COURT: Yes.
“Q What was said in your presence, Freddy?
“A Well, he told me that he had some cars that he had brought from Dothan, Alabama, and he needed someone—
“MR. SMITH: And we object. I don’t—
“THE COURT: Overruled. Go ahead.
“MR. SMITH: I don’t know who he is talking about, Your Honor. There is two men there, and he is saying, ‘he’ told them.
“THE COURT: He said that Mr. Peterson was present with Smith, and that Mr. Smith did the talking, as I understand it.
“MR. SMITH: All right. We object to Mr. Smith’s conversation with him.
“THE COURT: I understand, Mr. Smith, that Mr. Smith was in the presence of Mr. Peterson. Was he in the presence of Peterson? Was he there, when he told you that?
“A Yes, sir, Mr. Peterson was there. “THE COURT: All right.
“Q What did Mr. Smith say to you at that time?
“MR. SMITH: We renew our objection.
“THE COURT: Overruled.
“A He told me at that time, that the cars that they had bought, he wanted me to go with Mr. Peterson up there, and bring them back.
“Q ‘Up there?’ Did he say where up there was?
“A Dothan.
“Q Dothan?
“A Dothan.
“Q All right. Go ahead.
“A He said in Dothan, Alabama. And I want you all to bring them back, because I already bought them. So, he turned us over to Morris Peterson, and told us to follow him, in the car with him, let him take us up there, because he knows where abouts to go.”

Neither side made clear its contention as to the connection, if any, between Wallace Smith and the actual Jarceny of the automobile. According to some testimony, which included testimony of defendant, defendant was with Wallace Smith at the Dothan Lincoln-Mercury Company where they were talking with a salesman about buying an automobile three days before the larceny. Defendant testified that he worked for Wallace Smith and another person who owned a store in Quincy, Florida; that he had been working on a wall of the store for about two weeks before the night of the larceny and had seen and talked with Wallace Smith on more than one occasion that night.

Appellant argues that the testimony of Freddy Thompkins as to what Smith stated to him constituted inadmissible hearsay. There was no objection on that ground. The trial court should not be reversed for overruling objections to the admission of evidence where an appropriate ground for objection was not asserted on the trial. Reese v. State, 49 Ala.App. 167, 269 So.2d 622, cert. denied, 289 Ala. 750, 269 So.2d 625 (1972); Harris v. State, 57 Ala.App. 558, 329 So.2d 618 (1976).

Aside from the above, we are of the opinion that the particular evidence does not constitute inadmissible hearsay for two separate and distinct reasons as follows.

Without implying, and without intention to imply, that Wallace Smith was a co-conspirator in the larceny, there was some evidence indicating that he was at the time of the admission in evidence of the testimony as to his statement. The statement of a co-conspirator in the commission of a crime, made during the existence of the conspiracy and before the commission of the crime, which purports to be in the furtherance of the conspiracy, is admissible against the accused. Svirbely v. State, 53 Ala.App. 452, 301 So.2d 219 (1974); Frazier v. State, 48 Ala.App. 210, 263 So.2d 511, cert. denied 288 Ala. 743, 263 So.2d 516 (1972); Hagood v. State, 47 Ala.App. 626, 259 So.2d 679 (1972); Muller v. State, 44 Ala.App. 637, 218 So.2d 698, cert. denied 283 Ala. 717, 218 So.2d 704 (1968).

In addition,

“The general rule is ‘that all acts done and all words spoken pending the doing of a particular act, which tend, in any way, to illustrate or give character to the act, are receivable in evidence as a part of the res gestae of the act.’ Ward v. Lane, 189 Ala. 340, 66 So. 499. The res gestae embraces all facts which are relevant, explanatory, or illustrative of, or which give character or characterize, the act or the principal fact for decision. Roan v. State, 225 Ala. 428, 143 So. 454.” Linville v. Crittenden, 272 Ala. 630, 632, 133 So.2d 381, 383 (1961)

We find no error in the record. The judgment appealed from should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Fletcher ROBINSON v. STATE.
    4 Div. 633.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      James G. Clower of Clower & Watkins, Thad Yancey, Jr., of Cervera & Yancey, Troy, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen. for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

A jury convicted appellant-defendant of murder in the first degree pursuant to an indictment therefor. The jury also fixed punishment at life imprisonment. Appellant was an indigent prior to and on appeal.

It appears that the victim of the homicide was appellant’s wife.

Appellant first asserts that the indictment is the product of a violation of the doctrine of the separation of powers as required by the Constitution of Alabama and is void. Constitution of Alabama of 1901, Section 43; Vol. 1, Code of Alabama 1975, p. 192. Motion to quash the indictment for such violation was overruled and the ruling is asserted as reversible error.

The parties stipulated in writing as follows:

“STIPULATION OF FACT
“At the November, 1977 term of the Grand Jury in and for Pike County, Alabama, Mr. Joel Folmar assisted the District Attorney as a Special Assistant Attorney General appointed by the Governor of the State of Alabama with the concurrence of the Attorney General of Alabama. He was present during the examination of witnesses before the Grand Jury and administered the oath to a witness on one or more occasions. However, he was not present nor was the District Attorney or any other member of his staff present during the deliberations of the Grand Jury.
“At the time of said session of the Grand Jury of Pike County, Alabama, Mr. Fol-mar was a member of the Alabama Legislature having taken office in January, 1976. Mr. Folmar remains a member of the Legislature at this date.
“At the said session of the Grand Jury of Pike County, Alabama, Fletcher Robinson, Charlie Ousley, Sandy Metott and Henry Barr were indicted.”

Section 43 of the Constitution, supra, reads:

“In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

This section prohibits the legislative department from exercising executive and judicial powers, or either of these; also the executive shall not exercise legislative and judicial powers or either of these; and the judicial is forbidden to exercise legislative or executive powers, or either of these. So we have a restriction on departmental exercise of powers.

In the instant case there was no effort of the legislative department to exercise executive powers, nor of the executive department to exercise legislative powers. It was just a simple instance of a single member of the legislature getting temporarily appointed to an executive position as a Special Assistant Attorney General to get acquainted with grand jury procedure prior to his appointment as District Attorney when the office became vacant as was anticipated. The appointment was not calculated to invoke any usurpation of departmental powers or prerogatives of the legislature or of the executive department. We fail to see any infringement on the departmental powers of either branch of our state or federal government. The motion to quash was correctly overruled.

The next contention of error is that the court erred to reverse in holding that the coroner of Pike County had qualified as an expert in the cause of death and in admitting his testimony as to the cause of the victim’s death.

The evidence on this issue plainly shows inter alia that the coroner, Alan Booth, had served in such office for approximately three years and during that service had examined approximately 200 to 250 bodies, and that he had testified in court ten to fifty times as to the cause of death; also that he had a master’s degree in criminal investigation and police administration. He also testified that he attended numerous schools and seminars in relation to criminal investigation. Further he said these courses assisted him in training to perform his duties as coroner relating to bodies and deceased persons and determining cause of death.

It appears that the victim was dead when the coroner appeared on the scene soon after the shooting; that there were nine bullet holes in the body made by rifle shots.

In the light of these wounds and the immediate death of the victim, we think the coroner was amply qualified as an expert with respect to the cause of death. McDaniel v. State, 56 Ala.App. 591, 324 So.2d 305(1); Jones v. State, Ala.Cr.App., 339 So.2d 1042(3, 4).

A third contention is that the trial court erred in refusing defendant’s written charges 19 and 21 which purport to charge the jury on the law of second degree manslaughter.

The refusal of these charges was free of error. Fulghum v. State, 291 Ala. 71, 277 So.2d 886(5, 6). It is clear from the evidence that defendant intentionally fired nine rifle bullets in the body of the victim— one in her back as she ran and eight others in her body while she was falling or had fallen to the ground. There is no evidence tending to show that the killing was unintentional or accidental so as to constitute second degree manslaughter.

A final, contention is that the judgment should be reversed and the cause remanded because the court refused defendant’s written charge 14 as follows:

“I charge you ladies and gentlemen of the jury, that if you are reasonably satisfied from all of the evidence that the defendant, Fletcher Robinson, was insane at the time the fatal bullet was fired, then it would be your duty to acquit the defendant.”

We pretermit discussing the validity of this charge, which omits the elements of legal insanity. Suffice it to say that the law of insanity here applicable was fully covered by the court’s oral charge. The court’s refusal of this written charge was free of error. Title 7, Section 273, Code of Alabama 1940; 12-16-13, 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.


text:
    Oscar Dwight KELLEY, alias v. STATE.
    4 Div. 651.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.

      W. Bartlett Taylor, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Karen Neal Daniel, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent here and at nisi prius, entered a plea of not guilty to a two count indictment for intentionally and unlawfully committing an assault with a deadly instrument upon Wilbur Mitchell, a police officer of the city of Andalusia, Alabama, while he was engaged in the actual discharge of his lawful duty or duties. A jury returned a verdict of guilty as charged. The court imposed a sentence of twelve years imprisonment.

Count one charged that the assault was committed with an automobile, while count two alleged the offending instrument was a pistol.

The involved statute is reported in § 13-1-42, Vol. 12, Code of Alabama 1975, p. 12. This section reads:

“Whenever any peace officer or other law enforcement officer of this state or any political subdivision of this state shall be engaged in the active discharge of his lawful duty or duties, it shall be unlawful for any person to commit any assault with a deadly instrument upon such officer, and any person guilty of such assault with a deadly instrument shall be guilty of a felony and, upon conviction, shall be imprisoned in the penitentiary for not less than two years nor more than 20 years.”

The evidence shows that the police officer responded promptly to his automobile radio dispatch that a person was displaying a pistol at an Andalusia commercial center, called the Mall, located at the edge of the. city.

It was reported that the offending person was in a green Pinto passenger car. Upon reaching the Mall, the officer, wearing a policeman’s uniform, stopped behind a green Pinto there parked and walked up to the left side of the automobile where defendant was sitting on the driver’s seat.

The defendant, at the time the officer walked up to the door of the vehicle, was in the process of loading “the thing” — a pistol. The officer testified he told the defendant “to roll the window down” and “open up.” On response to the request the officer testified:

“A Well, the pistol — He had it in his hand, and he closed it up and turned it around, pointed it around at me.
“Q All right. Did he point the barrel at you?
“A Yes, sir.
“Q What did you do at the time?
“A I stepped back behind the front door, up against the car.”

It further appears that the officer took his own pistol out to protect himself. Defendant then “pulled his automobile in gear and took off.”

In taking off, the fleeing automobile struck the officer on his legs, the left one more than the right one. The officer gave chase that ended about eighteen miles north of Brewton over the Escambia County line. He was aided by other county and city officers who responded to the injured officer’s radio appeal for help. At one point, when the speed had slowed, the cars hooked up but came apart. The evidence showed that during the chase, the speeding Pinto reached 100 miles per hour as did the officer’s car. Two other vehicles had to run off the road. We omit many details of the chase.

Suffice it is that the fleeing Pinto ran off the road over the Escambia County line where the defendant was arrested by the pursuing officers.

The evidence of the State showed that defendant was under the influence of intoxicating beverages.

The pistol, with two cartridges in it, was partly under the front seat of the Pinto in plain view. An officer took possession of it.

The injured officer was hospitalized for several weeks under treatment for his injured legs which were struck by the Pinto as it took off at the Mall.

It appears in the officer’s evidence that one of the two projectiles was in the center of the pistol chamber under the hammer; the other one was to the right. Both projectiles had been snapped. The pistol appeared to be functional.

The defendant did not take the stand, but his father testified that the pistol was his property and had not been used in several years and at the last firing it did not function properly.

We think the evidence supports both counts of the indictment. Only one sentence could be imposed. The trial court fixed only one punishment that was authorized by law.

The first count charges an assault with an automobile. An automobile intentionally put in motion and violently and intentionally driven against a police officer constitutes an assault with a deadly instrument in violation of § 13-1-42, Code of Alabama 1975, but only if such assaulted officer at the time was engaged in the active discharge of his lawful duty or duties. Sharpe v. State, Ala.Cr.App., 340 So.2d 885, cert. denied, Ala., 340 So.2d 889. It was held in Sharpe that the deadly character vel non of the chair was a factual issue. We held that we could not say as a matter of law that the chair so used was per se a deadly instrument. We were of the opinion that the issue was a matter of fact for the jury to determine under all the evidence in the case. We also observed in Sharpe as follows:

“An instrument or weapon used in inflicting injuries upon the person of another may or may not be esteemed deadly, according to the manner of its use and the subject on which it is used. A deadly weapon is not only a weapon with which death may be easily and readily produced but one which is likely to produce death or great bodily harm from the manner in which it is used. Williams v. State, 251 Ala. 397, 39 So.2d 37; Davis v. State, 57 Ala.App. 27, 325 So.2d 543, cert. denied 295 Ala. 398, 325 So.2d 546. If the jury concluded, under the circumstances of the case, that the weapon used was not a deadly weapon or instrument, it could nevertheless find that an assault and battery was committed.”

We also think that Bonner v. State, 97 Ala. 47, 12 So. 408 has application to the instant case. There, it appears that one Harrison, without right, attempted to prevent defendant Bonner from removing a bale of cotton by sitting on the bale. Defendant drew a knife and threatened to kill Harrison, and by rolling the bale, threw Harrison off. He then rolled the bale against him.

The Supreme Court held that if defendant rolled the cotton in such an angry manner as to strike Harrison and throw him from the cotton, he would be guilty of simple assault.

In the instant case, the jury could have inferred that defendant was angered when the officer appeared at his car door window. This anger is evidenced by his conduct in pointing the pistol at him and, as the officer moved from the door window, throwing the car in gear and taking off suddenly and wantonly, all irrespective of the danger to the officer being hit by the car. The conduct of the flight indicates anger and resentment on the part of defendant. This conduct of defendant supported an inference by the jury of an intentional assault with the car.

Now, with respect to the assault with a pistol as charged in Count 2 of the indictment, we quote from Tarver v. State, 43 Ala. 354, as follows:

“2. An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.”

We here note that when the State rested, defendant moved for a directed verdict. The motion was general and not specifically directed at either count. So, if either count was supported by evidence, the motion was properly overruled. We also note that no written charges were tendered by the defendant and there was no request for the affirmative charge.

Before the State rested there was no evidence that the pistol involved in the verdict was not functional. There was testimony that the pistol had two unspent cartridges or projectiles in it, and for aught appearing, when the pistol was pointed at the officer, these cartridges were live. It is true that the father of the defendant testified as a witness for the defendant that he attempted several years before this incident here under consideration to fire the pistol and the projectiles would not explode. There was no evidence that at the time of the incident the cartridges would not explode. Such evidence as to the functional capacity vel non of the weapon was not before the court when the State rested. For aught appearing, the gun and cartridges were functional. At that time a jury question was at issue, and the motion was properly overruled. There was no subsequent ruling of the trial court to review.

We hold that the judgment of guilt should be affirmed. It is so ordered.

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.