author: DeCARLO, Judge. BOOKOUT, Judge,

text:
    Billy B. WALKER v. STATE.
    4 Div. 555.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    Rehearing Denied April 4, 1978.

      Judgment reversed, Ala., 369 So.2d 825, on remand, Ala.Cr.App., 369 So.2d 826.

      Maury D. Smith, Sterling G. Culpepper, Jr. and Charles S. Coody, of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Billy B. Walker was indicted by the grand jury of Bullock County and charged with first degree murder in the shooting death of Clifford Richard Hinson.

After a trial by jury the appellant was found guilty of manslaughter in the first degree and sentenced to five years in the penitentiary.

The evidence presented during the trial of the case showed the following:

On the afternoon of September 15, 1976, Dianne Singleton was sitting alone in a parked car across the street from the Bullock County Courthouse. Around five o’clock she saw Clifford Richard (Dickie) Hinson arrive in a car driven by Odell Thomas. According to her the two men parked across the street and got out of the car. She testified that Thomas walked up the street while Dickie Hinson proceeded down the street. Singleton said after seeing the two, she turned and looked into the “Fair Company.” Upon looking back she saw the appellant “walk with a gun pointed at Dickie.” She recalled that it was about that time she heard a shot and saw Hinson grab himself. When he turned she could see blood on his back.

According to Singleton, Hinson was about eight or ten feet away from the appellant at the time of the shooting. She said that as Hinson grabbed himself with his right hand he said something to the appellant. She testified that Hinson started toward the car he had been riding in and the appellant followed with the gun pointed at him. Hinson staggered then fell on the side of the car.

The appellant appeared to be calm at the time and Singleton said that she did not see anything in Hinson’s hand. She saw the man who had been riding with the appellant go over to Hinson, bend for just a second, then go to a car with the appellant.

On cross-examination, Singleton said that she did not notice anything about the way Hinson was walking but did notice that Thomas staggered as he got out of the car. She also said that hearing the shot had not attracted her attention because she was looking at the appellant when he pulled the trigger. Further, she recalled that at the time of the shooting, the two men were not moving toward each other and that Hinson was standing still when he was shot. She could not say whether or not Hinson had a knife but did state that she did not see a knife in his hand.

Blanche Hodge, an employee at E. M. Cohn and Sons, which is located across the street from the courthouse, testified that she had seen the shooting. When she first saw Hinson, he was in front of a car across the street from the store. At a distance of about two or three parking spaces from where Hinson was standing she noticed another car drive up with a man in it. Hodge said that the man got out of the car with a gun in his hand and shot Hinson.

She identified the appellant as being the man who shot Hinson and said that she did not see anything in the victim’s hand at the time of the incident. After the shooting, she said that Dickie Hinson stood for a little bit then slumped up against the car and fell to the ground.

Officer Ernest L. Love, a policeman in Union Springs, was working a routine patrol on September, 15, 1976. About 5:01 P.M., he received a telephone call informing him that there had been a shooting at the courthouse. When he arrived he saw Dickie Hinson lying on his back in front of the courthouse. Two other white males were standing a short distance away. He stated that one of the men standing nearby was the appellant and the other was Harry Young.

Love recalled that Hinson had a bullet wound in the chest and lying at his feet was a small pocket knife. He asked who had done the shooting and Billy Walker, the appellant, replied, “I did it.” Love then asked where the gun was and was advised that it was in the front seat of the car. He placed the appellant under arrest for attempted murder then went to the car and retrieved the gun. Later he turned the knife and the gun over to Deputy Cole.

On cross-examination, Love said that the appellant did not resist arrest and that he did not smell any alcohol.

Pete Cole, chief deputy of Bullock County, testified that he went to the scene where Officer Love gave him a pistol and a knife. He recalled that the large blade of the knife was open.

During cross-examination, Cole said that he talked to the appellant in the sheriff’s office and that he did not appear to have been drinking.

H. 0. Williams was the sheriff of Bullock County and testified that on the day of the shooting he was present when certain pictures were taken. He identified those pictures along with the knife and pistol which he had taken to the State toxicologist’s office. He also identified a spent bullet which he found in an alley near the place where the shooting had taken place. The spent bullet was taken to the State toxicologist’s office also.

Van B. Pruitt, Jr., a toxicologist for the State of Alabama, performed an autopsy on the body of the deceased. He testified that the deceased was five feet, ten inches in height and weighed approximately 220 or 240 pounds. His examination revealed that death was due to a gunshot wound to the chest, causing a massive hemorrhage because of injury to the heart and the hilus of the right lung. Pruitt also said that he examined the clothing of the deceased and did not find any evidence of outer debris, residue or unburned powder particles.

On cross-examination, Pruitt stated that he had conducted a blood alcohol test on the deceased and it showed that the blood contained 0.28 percent ethyl alcohol. Pruitt explained that an individual with such a level of alcohol in his blood stream, “would be clinically and overtly intoxicated.”

Tellis D. Hudson was a criminalist with the State Department of Toxicology at Auburn. He testified that on September 16, 1976, Sheriff Williams of Bullock County, delivered a gun to his office which he later test-fired and made comparisons with a bullet that the sheriff had also given him. Hudson said that in his opinion the projectile given to him by the sheriff was definitely fired through the barrel of the weapon that he had received. Further, he said that the maximum range that powder particles would be deposited after the weapon in question was fired was six feet.

The foregoing evidence was all that the State presented in its case in chief. The defendant did not make a motion to exclude but did later make a motion for a new trial which was denied.

The defense called as its first witness, Mrs. Sammy Walker. The witness testified that on September 15, 1976, she was working in the State Food Stamp Office in Union Springs. She said that she had left the office about 5:00 P.M. and was driving north along an alley to the main street. As she neared the sidewalk, Hinson almost stepped in front of her automobile. She said that he was walking north at the time and he threw up his hands as he looked back. While she was stopped for traffic before pulling into the street she heard a shot. She looked back and saw Hinson, “catch his chest.” According to Walker, there were two men standing near him.

During cross-examination she said she did not see anything in Hinson’s left hand and that she thought he had grabbed his chest with his right hand.

James 0. Thomas (Odell), Hinson’s cousin, stated that on the day before the shooting, Hinson had spent the night at his house. He said that the following morning they were drinking as they did some work on a pump. He recalled seeing Hinson use a knife while working on the pump. According to Thomas, they finished working on the pump about 2:30 or 3:00 P.M. Thomas stated that they drove to the courthouse and arrived about 4:40 P.M. and after parking the car, Hinson got out and walked to the front door of the courthouse and he, Thomas, walked toward his sister’s shop. Thomas said he was in his sister’s shop for, “maybe ten minutes,” and that he did not see the shooting.

Otis Lewis, on September 15, 1976, was working at Dixie Bullock Hardware Company, which was located north of the courthouse. Lewis testified, “it was a little bit after five o’clock,” in the afternoon when he heard a shot. He said that the shot attracted his attention and as he turned he saw this fellow stagger and throw up his hands and subsequently fall backwards to the ground.

During cross-examination, he acknowledged that he did not see any weapon in Hinson’s hand.

Billy Byron Walker, the defendant, was in the cattle hauling business. He testified that in July, 1976, Hinson came to work for the business as a driver of one of the two trucks used in the operation. According to Walker, the first time Hinson threatened him was after Hinson had an encounter with some boys at a restaurant. Walker said that Hinson cursed some boys and he told Hinson, “please don’t have any trouble in here.” When the two men left, Hinson turned and started cursing Walker. Walker said that Hinson told him not to interfere in his business and that if he would get up from the table he would hurt him.

According to Walker a second threat came in the early part of August and he received word of this threat from his partner, Seymore Trammell. Walker testified that a third threat came, “in a little over two weeks before the shooting.” It was brought to his attention while he was in Dodge City, Kansas.

He had been accompanied by his ten-year-old son on a cattle hauling trip to Dodge City, and they had seen Trammell and Hinson on the road. Walker said when he confronted Hinson about whether or not he was drinking, Hinson made a cursing remark that he had been and later when he went to the motel where Trammell and Hinson were, Trammell told Walker that Hinson had threatened to kill him.

Walker said when they returned to Montgomery around September 8, 1976, he had gone to Trammell’s apartment and Hinson again threatened to kill him.

On Tuesday morning, September 13,1976, Walker said that Hinson telephoned him and that he understood from the conversation that Hinson was quitting. He explained that Hinson said there were not any problems and that he would give Walker the keys to the truck. Between nine and nine-thirty the same morning, Hinson called again and began to call him names and make remarks about his family. Further, Walker said that within fifteen or twenty minutes Hinson called again and began cursing and threatening him. Walker went on to say that on the night prior to the shooting Hinson again called after midnight and again started cursing him.

Walker testified that on the afternoon of the shooting, Hinson called and after some profanity, agreed to give him the keys to the truck if he would meet him at Hinson’s mother’s house. Walker said that he suggested that they meet in downtown Union Springs and Hinson agreed.

According to Walker, he and his cousin, Harold Young, went to Union Springs about 4:00 or 4:30 P.M. Walker said that he had a pistol in his pocket and after they parked near the front of the courthouse, he got out and walked up on the sidewalk. He testified that when he stepped in front of the fender of his car, Hinson said to him, “You m-f s-o-b, I’m going to kill you.”

Walker said that Hinson was several feet away at the time and after the statement he asked Hinson for the truck keys. At that point, Walker recalled, Hinson said, “here’s what you’re going to get,” and Walker said he saw a knife in his hand. According to Walker, Hinson came toward him like “a wild bull.”

Walker stated that he pulled the gun from his pocket and when Hinson continued advancing on him he still hesitated but then fired the gun. He testified that he was shocked and scared and when the shot was fired Hinson was some six to eight feet from him.

After the shooting, Walker placed the gun in the car and later told Officer Love either that “a man had been shot” or, “I shot that man.”

Testimony by Lamar Mitchell, Seymore Trammell, Jessie Greer, Roy Greer, and the appellant’s wife, Dianne Walker, corroborated that of the appellant.

Approximately thirty-four character witnesses were called and of this number, some twenty-nine testified to the appellant’s good general reputation and four testified to the deceased’s bad general reputation for being a fighter and a violent person. At the end of the character testimony, the defense rested its ease and the State called some six rebuttal witnesses, one of whom, was Sheriff H. 0. Williams. The pertinent part of his testimony from the record is as follows:

“Q. Now, let me back up to the date we had the preliminary hearing in this courtroom before Judge Hoffmann, on November the 17th, 1976, which began at approximately 2 o’clock, p. m.
“A. Yes, sir.
“Q. Did you have an occasion to testify at this hearing?
“A. I did.
“Q. Now, I refer you to page ninety-one in said transcript and ask you if Mr. Smith, the defendant’s attorney, asked you the question, ‘You have told us all you know?’—
“A. Yes, sir, I remember the question.
“Q. Okay, sir. And I believe Mr. Smith—
“MR. SMITH: [Defense counsel] (Interposing) Now, Judge, I object to this.
“THE COURT: Let’s hear this out of the presence of the jury. I don’t know what you are getting at.
“(THEREUPON, A short discussion was held at the Bench between counsel and the Court out of the hearing of the Jury and Court Reporter.)
“THE COURT: There is nothing for the record, Andy. (Directed to Court Reporter.)
“Q. Sheriff, I’ll direct your attention to an earlier time when this question arose and I asked you did Mr. Walker make any statements to you which were — which you repeated at the Preliminary Hearing.
“A. Yes.
“Q. Under examination by defense counsel?
“MR. SMITH: We object to the question.
“THE COURT: Overruled.
“MR. SMITH: We except.
“WITNESS: Yes, after—
“MR. SMITH: (Interposing) May we have a continuing object to this?
“THE COURT: Yes.
“A. After Mr. Tew advised Mr. Walker of his rights Mr. Walker came back in the office where I was and sat down against the wall.
“Q. When was this?
“A. That was the same day of the shooting.
“Q. The 15th?
“A. Yes, sir. He came in and sat down across the desk from me and I asked Mr. Walker what happened and he said, ‘It was just something that had to be done. It was just something that had to be done.’
“Q. And this is what Mr. Walker said?
“A. This is what Mr. Walker said to me. He continuously repeated this. ‘This is something that had to be done.’ ”
“MR. REEVES: Thank you. Your witness.”

We note that the record does not reflect any further testimony or objections concerning the appellant’s statement made to Sheriff Williams on the day of the shooting.

I

The appellant asserts that prior to the introduction of the foregoing inculpatory statement, the State failed to prove that Walker had been advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Appellant urges that the failure to comply with the requirements of Miranda v. Arizona, supra, required the exclusion of the appellant’s statement. Further, the appellant maintains that the State’s failure to prove that the appellant’s statement was made voluntarily, also required exclusion.

The issue is whether an extra judicial inculpatory statement made by an accused can be used for impeachment purposes without proof that the Miranda safeguards were administered and a voluntariness predicate proved.

At the outset, we note that the statement by the appellant was susceptible to two interpretations, the jury could have reasonably understood the appellant’s statement in a manner not inconsistent with his version of the shooting.

However, the State’s use of the appellant’s statement for impeachment purposes indicates that their understanding of the statement’s import was that the shooting was premeditated and deliberate.

Generally, where a statement is sought to be used for impeachment purposes by contradicting a statement made by a witness, a predicate must be laid concerning that statement. The content of that predicate after preliminary questioning, would be whether or not the witness had in fact made the statement. A denial would allow the proof of a contradictory statement with the testimony of another witness. Generally, without such a predicate, objections if properly grounded, could not have been overruled without error. Jones v. State, 35 Ala.App. 129, 46 So.2d 229; King v. State, 24 Ala.App. 267, 134 So. 133.

Where only general grounds are assigned as an objection to the impeaching testimony the lower court will not be put in error. The rule stated in Jones v. State, supra, is:

“Where only general grounds are assigned in support of an objection, no error results in overruling it, unless the evidence is illegal for any purpose and cannot be made legal by other evidence, or otherwise framing the question. Wigginton v. State, 17 Ala.App. 29, 87 So. 698; Walden v. State, Ala.App., 36 So.2d 556, certiorari denied 251 Ala. 144, 36 So.2d 558.”
See also McEIroy’s Alabama Evidence, 3rd Ed. 426.01 §§ 8, 9, 10. See also Anderson v. State, Court of Criminal Appeals, 1977, 354 So.2d 1156.

In the case before us, it does not appear that during the appellant’s testimony any predicate was laid concerning the statement he made to Sheriff Williams. Without such a predicate the overruling of a properly grounded objection would have been error.

A review of the above quoted portion of the record shows that only a general ground was assigned to the impeaching testimony of Sheriff Williams. Therefore, the lower court was not in error in overruling the appellant’s objections when buttressed only by general grounds.

Although we hold that it was insufficient to challenge this impeaching testimony on general grounds, we must analyze the admission of the statement in the light of whether it can be used without a showing of the Miranda safeguards and proof of a voluntariness predicate.

We note that the prosecution in its case in chief may not use statements given by an accused while in custody before a predicate is laid demonstrating that procedural safeguards under Miranda have been met and that the statement was voluntarily made. However, under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, a statement otherwise inadmissible during the prosecution’s case in chief because of violation of procedural safeguards, is properly admitted for impeachment purposes where it satisfies legal standards of trustworthiness. The court in Harris v. New York, supra, commented:

“. . . Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.”

Walker admitted to Officer Love within minutes after the shooting that he had done the shooting. In his testimony he states that he told the officer that a man had been shot or either that he had shot the man. During his testimony, Walker stated that the deceased was the aggressor and that the shooting was an act of self defense.

The record clearly indicates that the statement made to Sheriff Williams was not used in developing the prosecution’s case in chief, but came after the appellant had given testimony that the shooting was done in self defense. Under these circumstances, the State could show for impeachment purposes, the content of the appellant’s statement. See Roberson v. State, 53 Ala.App. 472, 301 So.2d 237; Wilson v. State, 56 Ala. 13, 318 So.2d 753.

The appellant also maintains that the State’s failure to affirmatively show that the appellant’s statement was voluntarily made requires a reversal. We recognize that extra judicial statements are pri-ma facie involuntary and the duty rests on the trial judge to determine at the outset that the confession was, in fact, voluntary. Such a confession or inculpatory admission can only be used after proof of a voluntariness predicate. In Greer v. State, 36 Ala. App. 522, 60 So.2d 358, the court stated when facts and circumstances attending the confession clearly show that it was made without fear or hope of reward, then the necessity of laying a formal predicate is not required.

In Greer v. State, supra, this court followed the earlier case of Sullins v. State, 53 Ala. 474, in which our Supreme Court held:

“ ‘Before the confessions of the accused, or admissions made by him, can be received as evidence against him, it must appear to the court that they were voluntary, not constrained. Though made to the officer arresting him, or to the magistrate before whom he is carried for examination; or made in answer to inquiries propounded by either officer; and though neither has cautioned or warned him against confessing; if, on a consideration of all the circumstances surrounding him when made, they do not seem to have been influenced by the appliances of hope or fear, from others.’ ”
See Cline v. State, 25 Ala.App. 533, 148 So. 172.

The facts in the case before us reveal that the appellant had been advised of some rights before he went in to talk with the sheriff. The colloquy cited above does not show the coercive atmosphere criticized in Miranda, supra. On the contrary, shows that it was in a relaxed atmosphere. The appellant was sitting across the desk from the sheriff, and from aught that it appears, they were alone at the time. The statement, when made, was in response to the sheriff’s question, “what happened?”

These facts seem to negative the existence of any coercive influence and the statement does not seem to have been influenced by any hope or fear from others.

Under the rationale in Greer v. State, supra, the statement was properly admitted without a former predicate of voluntariness. This would certainly be true where the statement is used for impeachment purposes and not in the prosecution’s case in chief.

II

In the trial court’s oral charge to the jury on reasonable doubt, it gave the following example.

“. . .1 had a friend one time, and I give this example, and I think it is a good example; he is dead now but he was a good friend of mine, and most of these lawyers here at the table knew him, and they probably know who I’m talking about when I describe him. He was the Devil’s advocate kind of fellow. , He always took the other side of an argument because he liked to argue. He would never answer a question. He would ask you a question back. He could see a doubt in any situation that you could think of. You could be riding down the road and pass a Black Angus farm and it could have a sign, ‘Registered Black Cows,’ and you could see Black Angus cows in every direction and you would pick one out and point to it and say, ‘That is a pretty Black Angus cow, isn’t it?’ and he would say, ‘Well, it is on this side.’ He wouldn’t agree with you unless he walked all the way around to see it wasn’t spotted on the other side. Now, that is not a reasonable doubt. That is a doubt you have to force yourself to see and strain at. That is not the kind of doubt that the State has the burden of removing because the State couldn’t remove that kind of doubt if you wanted to see a doubt.”

At the end of the court’s entire oral instruction to the jury, the defense counsel made the following exception.

“MR. SMITH: I want to respectfully except to the Court’s instruction in referring to the example of the friend, which you say is now deceased, and that he could see a doubt in every situation — to the illustration of a black cow and it was stated by the Court that would not be a reasonable doubt. I just state to the Court that it would apply, that you could find a doubt in every situation.
“THE COURT: You can?
“MR. SMITH: And under the circumstances would imply to the jury that there was no doubt about the guilt of this defendant in some degree of homicide.
“THE COURT: All right. I note your exception.”

The appellant complains that this example of reasonable doubt concerning the black angus cows improperly invaded the province of the jury. He maintains that when taken in conjunction with the court’s statement; “That is not the kind of doubt that the State has the burden of removing because the State couldn’t remove that kind of doubt if you wanted to see a doubt,” would imply to the jury that real doubt which is based on the evidence need not be removed by the State.

Counsel argues such charges are improper because they are misleading and they serve to “denigrate the evidence which defense raises.” Further he submits that the charge oversteps the bounds of neutrality and says to the jury that the evidence presented by the defense must be seen only in the light of the court’s example. Counsel insists it was an improper comment on the evidence and that a reversal is required.

In King v. State, 17 Ala.App. 536, 87 So. 701, this court in defining reasonable doubt said:

“ ‘It must be borne in mind that the judge, a human being, was endeavoring to make clear to the jury, 12 other human beings, just what was the real, every day, all the year around, meaning of those two words ‘reasonable doubt,’ which have been the cause of so much confusion and misunderstanding. Being fully aware that in the whole domain of knowledge mathematical facts alone are capable of that precise and logical demonstration which absolutely convinces the mind and leaves no room for any doubt whatever, it was well that the judge should charge the jury that the guilt of the defendant could not be established to a mathematical certainty. When one has solved a given problem in geometry and has demonstrated the correctness of his solution by applying to it the rules of that science and the knowledge which he already possesses, the certainty of the facts involved has been .demonstrated by a chain of facts and argument which must completely convince the mind of every sane man. Such a demonstration not only convinces the mind of the truth of a proposition, but absolutely excludes the possibility that a contradictory proposition is true. But, as regards our knowledge of human affairs derived from the testimony of witnesses, this is absolutely impossible. Such facts cannot be scientifically demonstrated to be true, and it strikes us as a perfectly safe rule that the certainty required of the jury might safely be arrived at by weighing and considering the testimony as they weigh the everyday affairs of life, to the certainty, of course, that they should be satisfied beyond a reasonable doubt of the guilt of the accused, and this reasonable doubt being a substantial doubt arising out of the evidence. A reasonable doubt is a doubt for which a reason can be given.”

The Supreme Court in Wright v. State, 148 Ala. 596, 42 So. 745, which was reversed on other grounds, held that the following portion of an oral charge on reasonable doubt was good:

“ ‘The court charges the jury that a doubt to justify an acquittal, must be reasonable. It must be an actual and substantial doubt, not a mere possibility or speculation. A reasonable doubt is not a mere possible doubt, because most things relative to human affairs and depending on moral evidence is open to some possible or imaginary doubt.’ ”

See Jimmerson v. State, 133 Ala. 18, 32 So. 141; Gregory v. State, 148 Ala. 566, 42 So. 829; Hall v. State, 54 Ala.App. 198, 306 So.2d 290.

We recognize it is difficult to explain to the jury what reasonable doubt is, and we recognize, as the court did in King v. State, supra, that guilt cannot be established to a mathematical certainty and, beyond all doubt.

The burden resting on the State is to prove the defendant guilty beyond a reasonable doubt and not beyond every doubt. The doubt which would justify an acquittal must be an actual one, not a mere possibility or speculation.

Although we recognize that you can find a doubt in every situation, the doubt that the law says will cause the minds of the jury to acquit, is a doubt for which a reason exists. Hall v. State, supra. The reasonable doubt that the law speaks of is that doubt which is generated in the mind of the juror after he weighs and considers the testimony in the same manner that he would weigh and consider the everyday affairs of his life. If, after such consideration, the doubt remains, it is then a doubt for which a reason exists.

In the present case, the example given by the trial judge, informed the jury that the doubt they were to consider was that doubt that remained with them after they had weighed and considered the facts in the same manner that they would weigh and consider the matters of their everyday life.

This example cannot be considered misleading or improper when examined with the court’s preliminary instructions on reasonable doubt.

The oral instructions preceding this illustration were as follows:

“Well, what do we mean when we talk about a reasonable doubt? I think it is self-explanatory. And I think sometimes when we start trying to explain a reasonable doubt we confuse it. But, it might help you to say that a reasonable doubt, the kind of doubt that would justify an acquittal, must be an actual, substantial doubt. Not a mere possible doubt. A reasonable doubt is not a mere guess or a forced kind of doubt. If after considering all the evidence in the case you have an abiding conviction in your heart of the guilt of the defendant, then you have been convinced beyond a reasonable doubt and it would be your duty to find him guilty. If, on the other hand, there is not that abiding conviction in your heart of his guilt, then the State has not met its burden of proof and it would be your duty to acquit the defendant.
“The reasonable doubt that entitles the defendant to an acquittal is not a fanciful, vague, speculative doubt, but a reasonable, substantial doubt arising from the evidence, or lack of evidence, and remaining after a careful consideration of the testimony, such as reasonable, fair-minded, and conscientious men would entertain under all the circumstances.
“Now, I say again, the kind of doubt that would justify an acquittal is an actual substantial doubt. The State does not have the burden of removing all doubt. It has to convince you beyond a reasonable doubt because an active mind can see a doubt in any situation you want to name.”

In our judgment, the example was sound when considered with the court’s entire oral charge and its utilization was not error.

We have examined the record and have found no error.

AFFIRMED.

TYSON, J., concurs.

HARRIS, P. J., concurs in result,

BOOKOUT and BOWEN, JJ., dissent.

BOOKOUT, Judge,

dissenting:

In Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975) the Supreme Court reaffirmed its holding in Harris v. New York. In Harris, supra, the Miranda warning was defective. In Oregon v. Hass, a full Miranda warning was given, but questioning continued after Hass requested an attorney. The defendants’ statements in both cases were allowed only to impeach their earlier testimony. However, Oregon v. Hass recognized that the standards of voluntariness must still be met before an inculpatory statement may be used, even for impeachment purposes. The majority opinion recognizes this to be the law. However, we differ on (1) whether a.general objection is sufficient to raise the failure to lay a proper predicate, and (2) whether the appellant’s statement was shown to be voluntary.

The Alabama Supreme Court held that a general objection was sufficient to raise the question that no specific proof of voluntariness had been presented, in Bradford v. State, 104 Ala. 68, 16 So. 107 (1893), and Amos v. State, 83 Ala. 1, 3 So. 749 (1887). Those cases were the basis of authority for this court to reverse the conviction in Brown v. State, 42 Ala.App. 125, 154 So.2d 758 (1963) where only a general objection was made. All of those cases state, in effect, that an extra-judicial inculpatory statement of a defendant is prima facie inadmissible until the trial court, proceeding with great care, determines from evidence presented that the statement is voluntary.

This court likewise cited Bradford and Amos, supra, in Wilbanks v. State, 48 Ala. App. 540, at 547, 266 So.2d 609, at 616 (1968) in stating:

“. . as to the various forms of objections, we consider that, in matters impinging on constitutional rights — such as that against self-incrimination — the general objection is usually sufficient. ...”

The absence of evidence in the record that appellant was induced to make his statement to the sheriff is insufficient to establish voluntariness of the statement. That the appellant had been advised of “some rights,” that he was alone with the sheriff, and that the atmosphere was relaxed, does not meet the standard of proof necessary to show that the statement was voluntary. Likewise, the circumstances under which the instant statement was made are distinguishable from those set out in Greer, supra, in the majority opinion.

To quote from Amos, supra:

“. . . The record is silent as to what caused this confession, or called it out. Inducements or fear may have preceded the confession, and there is nothing in the record to show that they were not brought to bear upon him. It has been too long the rule of this court to be now disputed or questioned, that ‘all confessions are prima facie involuntary and inadmissible, and they can be rendered admissible only by showing that they are voluntary and not constrained.’ . . . ” (Citations omitted.)

The statement by appellant that, “It was just something that had to be done. It was just something that had to be done,” could possibly be considered as supportive of his defense of self-defense. The very nature of that defense is that the killing was necessary, or that it had to be done in order to prevent the appellant from suffering death or grievous bodily harm.

Yet, we do not wear blinders when considering a case. It is obvious that the State did not introduce the appellant’s statement for the purpose of bolstering his self-defense testimony. The State called Sheriff Williams as a rebuttal witness. It put forth the appellant’s statement to Williams to rebut the appellant’s claim that he acted in self-defense. The purpose of offering the statement and its probable effect upon the jury was adverse to appellant, as being inculpatory in nature. It therefore should not have been put before the jury without having first been proved to be voluntary. I therefore respectfully dissent.

BOWEN, J., joins in this dissent.

        . Reversed by Alabama Supreme Court on other grounds, 289 Ala. 166, 266 So.2d 619 (1969).


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    In Re Billy B. WALKER v. STATE. Ex parte Billy B. Walker.
    77-458.
    Supreme Court of Alabama.
    Feb. 9, 1979.
    Rehearing Denied April 6, 1979.
    Maury D. Smith, Sterling G. Culpepper, Jr., and Charles S. Coody, Montgomery, for petitioner.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   EMBRY, Justice.

We granted the writ of certiorari in this case to review the decision of the Court of Criminal Appeals in Walker v. State, 369 So.2d 814 (1978), which held an inculpato-ry statement may be introduced for impeachment purposes without a predicate of voluntariness where prior evidence of the circumstances surrounding the statement indicate an absence of coercive influence. We reverse.

Petitioner, Billy B. Walker, was convicted of first degree manslaughter. During the trial his statement to the sheriff “This is something that had to be done” was allowed in for impeachment purposes over petitioner’s objection and without prior proof of voluntariness of the statement. Walker appealed to the Court of Criminal Appeals which affirmed, holding that although there was no voluntariness predicate, prior evidence of the circumstances surrounding the statement indicate an absence of coercion. This court granted certiorari on 17 May 1978.

In Campbell v. State, 341 So.2d 742 (Ala.1976), this court held inculpatory statements:

“ * * * admissible for an impeachment purpose only upon a predicate establishing that they are free from coercive or involuntary influences. The circumstances accompanying the making of the inculpatory statement will determine the extent to which this foundation must be established, e. g., a ‘threshold’ confession may, indeed, require evidence of a different voluntary setting than an in-custody statement. Cf. Tillison v. State, 248 Ala. 199, 27 So.2d 43 (1946).” (emphasis added)

Interestingly, Campbell affirmed a decision of the Court of Criminal Appeals expressly holding a predicate of voluntariness or trustworthiness must first be established. See Campbell v. State, 341 So.2d 735 (Ala. Crim.App.1976). Neither decision was mentioned by the Court of Criminal Appeals in its opinion in this case.

Those cases hold the state must affirmatively show the inculpatory statement to be voluntary before it can be admitted. There was no such showing in this case. Therefore, the judgment of the Court of Criminal Appeals must be, and is hereby, reversed and the case remanded to that court for decision not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Billy B. WALKER v. STATE.
    4 Div. 555.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
   REVERSED AND REMANDED on authority of the Supreme Court of Alabama, 1979, 369 So.2d 825.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Jimmie Lee GARRETT, Jr. v. STATE.
    6 Div. 508.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.
    Rehearing Denied May 30, 1978.
    J. Mark White of Smith, White & Hynds, Birmingham, for appellant.

      William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

Mrs. Eunice Mae Lunsford was discovered dead in her bathtub on July 27, 1976. She had several cuts and bruises on her face and head. There was blood in the bathtub, on the floor in the bathroom and the hall, and on the walls of these two areas of the house. The wounds were insufficient in themselves to cause her death, but she was seventy-five years old and suffering from an advanced stage of hardening of the arteries. The physical and psychological excitement associated with her injuries caused her to die from a heart attack.

Robert E. Lunsford, son of the deceased, at the request of the police, prepared a list of items which were missing from his mother’s home. He also provided them with a list of names of persons who would have occasion to be at his mother’s home. The appellant’s name was included on this list as he often cut grass and did other such chores for Mrs. Lunsford.

The day after the discovery of Mrs. Luns-ford’s body, two police officers went to appellant’s home to ask him routine questions about his whereabouts the previous day. The appellant invited the officers to enter the house, and he then excused himself to go to the bathroom. One of the officers accompanied him. The officer, in response to a question by the defense attorney, said that he had no intention of letting the appellant out of his sight at that time. When the appellant came out of the bathroom, the officers asked him and his father if they could look around. Both of them consented. Almost immediately, one of the officers discovered several items in appellant’s dresser which had been listed as missing from the Lunsford home. Whereupon the officers placed the appellant under arrest and read him his Miranda rights. They again asked the appellant and his father if they could continue to search, and both again consented. Another item missing from the Lunsford home was located.

Appellant was taken to the police station around 11:00 or 11:30 A.M., and beginning at about noon, was questioned about the crime. At 4:05 P.M., he made a formal statement in which he confessed that he committed the crime.

The interrogation took place in a room approximately eight feet by twelve or fifteen feet in size. There were chairs and a desk in the room, and two officers were present most of the time. Appellant was not fed during the questioning and was crying and sniffling. No attorney was present.

The appellant’s emotional state was caused in large part by his confrontation with Mr. Lunsford during the interrogation. Mr. Lunsford testified that when he saw the appellant, he said, “Jimmie, mother is gone, but I have got to have the truth.” Mr. Lunsford, in referring to the situation, said that it was an “emotional thing.” He and the appellant had known each other for many years and had grown up together. Their families had been close, and appellant’s father had worked for the Lunsfords for almost twenty years. Mr. Lunsford said that Jimmie began to tell what happened after Lunsford asked him to tell the truth.

Appellant was given the appropriate Miranda warnings a total of three times during the day. He told the police that he understood his rights and wanted to talk with them. He said that he knew the difference between telling the truth and telling a lie, and that he would tell them the truth. He also said that he made the statement voluntarily and that he knew what voluntarily meant. He indicated in his statement that no reward or hope of reward had been offered him; that no one told him it would be better or worse for him to make a statement; and that no threat, force, or violence was used to get him to make the statement. The police officers verified these facts in their testimony. The appellant, however, testified that the police coerced him into making the statement.

Appellant was seventeen when he confessed. He could neither read nor write. He had a speech impediment and had an I.Q. of 56. The police said that they discovered appellant’s handicaps early during the interrogation.

The appellant’s former teachers from the special education department at Woodlawn High School in Birmingham were called by the defense attorney to testify on behalf of the appellant. They explained to the court that an I.Q. score is indicative of whether someone is capable of learning. They said that a normal person’s I.Q. is between 90 and 110. A slow learner’s I.Q. falls between 80 and 89. An educable mentally regarded I.Q. score ranges between 56 and 80, while the trainable mentally retarded scores are between 30 and 55.

The teachers testified that appellant was on the borderline between educable mentally retarded and trainable mentally retarded. They explained that the difference is that the educable mentally retarded student can be taught to read up to about a fourth grade level and to do simple tasks so as to become partially employable. The trainable mentally retarded student, on the other hand, can only be trained to take care of his daily needs. All of the appellant’s teachers, after having worked with him, agreed that he was more trainable than educable. They testified that his specific problems were retention and conceptionalization. For example, they said he would memorize a word one day and by the next have completely forgotten it. He also had trouble remembering his class schedule, and at times would have to be led from class to class. They testified that appellant could comprehend some written concrete words if the pictures were with them, but he was completely unable to deal with written abstract words. They defined abstract words as those which cannot be visualized such as, “if, when, the, those.” The teachers testified that appellant’s performance was worse when he was under stress.

On direct examination, the defense attorney asked the teachers whether appellant was capable of understanding the sentences in the Miranda warning. The first teacher said he was not capable. The second teacher agreed and added that the word “rights” is an abstract word, and she was sure that it would not be in appellant’s vocabulary.

On cross-examination of the first teacher, the following exchange took place:

“Q. The question or the sentence, ‘You have the right to remain silent.’ Could Jimmie understand that sentence?
“A. If I said, ‘Jimmie, you don’t have to tell me anything if you don’t want to.’ He would understand that. Remain he might not know. Silent he would probably know. If I said, ‘Jimmie, you don’t have to tell me anything.’
“THE COURT: What about ‘talk to a lawyer?’
“A. ‘Talk to a lawyer.’ Yes.
“THE COURT: Would he understand that?
“A. Yes, he probably knows what a lawyer is. He’s probably watched television. “THE COURT: I mean, just asking you. “A. Yes, he knows what a lawyer is. “THE COURT: Sentence like, ‘You have a right to talk to a lawyer.’ He would know what it means?
“A. Yes, sir.
“THE COURT: ‘Have one here while you’re being questioned.’ Would he understand that?
“A. I don’t know. I really and truly cannot tell you.
“Q. ‘Anything you say can and will be used against you in a court of law.’ Would he understand that statement?
“A. I don’t know.
“THE COURT: Ma’am?
“A. I really don’t know. If you broke it down and you went over it several times and you said, ‘Jimmie, this is what’s going to happen and this is the way it is,’ and you have verified this with him each step as you went along.
“Q. ' Would he understand the sentence, ‘You can decide at any time to exercise these rights and not answer any questions or make any statements?’
“A. He would probably understand the statement, but exercise his rights. I don’t know whether he would know what his rights were.”

This teacher further testified on cross-examination that:

“A. It’s my opinion that if the statement were read to Jimmie at the same speed it was read to me and that he said, ‘Do you understand this’ and Jimmie would probably say yes. I don’t know if he would have understood it, and I don’t think he would have understood half of it. But Jimmie was very eager to please.”

She also testified, that even if the statement was read to him three or four times over the course of a couple of hours, he would probably not understand them more.

The second teacher testified as follows on cross-examination:

“Q. Mrs. Weaver, the sentence, ‘Do you have the right to remain silent.’ Would he understand that sentence?
“A. I really don’t know. I would be more willing to say that he wouldn’t understand than he would.
“Q. Yes, ma’am, but you don’t know.
“A. No.
“Q. The sentence, ‘Anything you say. can and will be used against you in a court of law.’ Would he understand that?
“A. I do not believe he would.
“Q. Sentence, ‘You have the right to talk to a lawyer.’ Well, that’s part of the sentence. Would he understand that, ‘You have the right to talk to a lawyer?’ Just such a statement.
“A. I really don’t know.
“Q. ‘And have him present with you while you’re being questioned.’ Do you think he would understand that or do you not know?
“A. I don’t know.
“Q. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questions.’ Would he understand that question?
“A. I doubt it.
“Q. Would he understand this sentence, ‘You can decide at any time to exercise these rights and not answer any questions or make any statements.’ Do you think he would understand that?
“A. I do not think he would.
“Q. If after he was read those sentences and then he was asked, ‘Do you understand each of these rights I have explained to you?’ And he answered, ‘Yes, sir.’ Do you think he—
“A. I really don’t believe he would truly understand what it was all about.
“Q. Then in response to the question, ‘Having these rights in mind, do you wish to talk to us now?’ And he answered, ‘Yeah.’ Do you think he would have some idea what they were talking about? “A. No.”

She also testified that appellant had the intelligence to make accurate responses to simple questions. She was also of the opinion that appellant did understand and accurately answered the questions during his interrogation by the police. She reached this conclusion because the answers verified the details of the scene of the crime.

I

Appellant’s first contention is that he did not voluntarily, knowingly, and intelligently waive his constitutional protections against self-incrimination. The appellant relies primarily upon Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957), Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), and Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed.2d 244 (1948), in support of his contention that the confession should not have been admitted into evidence. Those cases, however, are distinguishable on the facts from the present case. In Fikes, supra, the defendant was taken out of town to a state prison and kept in isolation for one week. He was questioned several hours at a time over the week, and his father and lawyer were barred from seeing him. In Gallegos, supra, the defendant, a fourteen-year-old boy, was held for five days without officers sending for his parents or seeing that he had advice of an attorney or friend. The police also did not immediately bring him before the juvenile court. In Haley, supra, a fifteen-year-old boy was questioned by police for about five hours beginning at midnight. Several police questioned him in relays of one or two each. No friend or counsel of the boy was present. At no time was he advised of his right to counsel.

Whether a confession is voluntary is a question of law to be decided by the trial court and such is subject to review on appeal. Harris v. State, 280 Ala. 468, 195 So.2d 521 (1967). This determination is to be made by examining the totality of the circumstances surrounding the confession. Wright v. State, Ala., 340 So.2d 74 (1976), on remand, Ala.App., 340 So.2d 80; Holmes v. State, Ala.Cr.App., 342 So.2d 28 (1977); Gamble v. State, 48 Ala.App. 605, 266 So.2d 817 (1972). In Allred v. State, 55 Ala.App. 74, 313 So.2d 195 (1975), cert. denied, 294 Ala. 751, 313 So.2d 203, cert. denied, 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86, this Court stated:

“Appellant further contends that the alleged confession was not the product of a rational intellect and a free will thus rendering the statement inadmissible. “The Supreme Court of Alabama, through Simpson, J., stated in Goldin v. State, 271 Ala. 678, 127 So.2d 375, that: “ ‘ . . . The fact that an accused is
not in full possession of his or her mental faculties when the confession is made does not render it inadmissible, but only affects the weight to be accorded by the jury; or is provable merely to support other evidence that the confession was not voluntary. To render such a confession inadmissible on that ground the mania must have been such that the accused was either an idiot or a lunatic during lunacy. Redwine v. State, 258 Ala. 196, 61 So.2d 724.’
“Also in Elrod v. State, 281 Ala. 331, 202 So.2d 539, the Supreme Court of Alabama, through Merrill, J., stated the proposition as follows:
“ ‘ . . Accused’s intelligence, character and situation at the time of the confession of the crime charged are important considerations in determining whether the confession was voluntary, but the fact that the accused was of tender age or weak intellect will not alone render the confession inadmissible in evidence as involuntary. State v. Ashdown, 5 Utah 2d 59, 296 P.2d 726, affirmed 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443. Evidence tending to show a defendant’s weak mentality, feeble-mindedness, and mental stress does not affect the admissibility of the confessions, but rather is a matter that bears on the weight, credibility and effect to be given the confessions by the jury. State v. Stewart, 238 La. 1036, 117 So.2d 583.’ ”

In Twymon v. State, Ala.Cr.App., 358 So.2d 1072 [Ms. April 18, 1978] released this date, we held that the fact that Twymon, a thirty-three year old, “had an I.Q. of 57, which would be roughly equivalent to the mental age of nine years and two months, is only one factor to be considered in determining the voluntariness of his confession. Goldin v. State, 271 Ala. 678, 127 So.2d 375 (1961). . . . ” However in Twymon, there was the additional testimony that, regardless of his mental age, Twymon would have been able to understand his rights and thus make a free and knowing waiver.

Likewise, in determining the volun-tariness of a minor’s confession, the totality of the circumstances must be considered. Both age and education of the accused are merely factors to be considered with all the surrounding circumstances in making the voluntariness determination. Thus neither age, nor mental subnormality, standing alone, render a confession involuntary. Parker v. State, Ala.Cr.App., 351 So.2d 927 (1977), cert. quashed, Ala., 351 So.2d 938.

Great weight should be accorded the trial court’s determination of voluntariness, Harris, supra, and that decision should not be overturned unless there was an abuse of discretion. Holmes; Elrod, supra.

“Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. . ” McNair v. State, 50 Ala.App. 465, 280 So.2d 171 (1973), cert. denied, 291 Ala. 789, 280 So.2d 176.

In the instant case, the trial court admitted the confession. It did so because of express findings in an extensive pretrial hearing that there was no particularly overbearing police conduct, no coercion, no trickery, nor exhausting questioning over an extended period of time. The trial court felt that the appellant completely understood the significance of the recovery of the items missing from the Lunsford home and that this contributed to his decision to talk to the police. The trial court also found that appellant’s emotional distress during the questioning was more readily attributable to remorse rather than any sort of coercion on the part of the police. The trial court concluded that appellant had the intelligence to understand and respond to certain basic questions and could voluntarily, intelligently, and knowingly waive his rights. Although an extremely close question is presented, this court, after an examination of the record, cannot find that the trial court abused its discretion in finding the confession admissible. See also: Myles v. State, Ala.Cr.App., 354 So.2d 842 (1978).

II

Appellant contends that the consent to. search his house was not freely and voluntarily given.

Searches without warrants are constitutionally permissible when executed with the consent of the owner. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Welden v. State, 57 Ala.App. 379, 328 So.2d 630 (1976). The burden of proving consent is on the party alleging the waiver of rights against warrantless searches and seizures. Kelley v. State, 55 Ala.App. 402, 316 So.2d 233 (1975).

The voluntariness of consent to search is a question of fact to be determined from the totality of the circumstances surrounding the event. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “To justify the introduction of evidence seized by a police officer within a private residence on the ground that the officer’s entry was made by invitation, permission, or consent, there must be evidence of a statement or some overt act by the occupant of such residence sufficient to indicate his intent to waive his rights to the security and privacy of his home and freedom from unwarranted intrusions therein.” (Emphasis supplied.) Knox v. State, 42 Ala.App. 578, 172 So.2d 787 (1965). Where the evidence is in conflict, the trial court is in the best position to determine consent or lack thereof. Holmes, supra.

In the instant case, there was evidence that the appellant invited the police officers into the house. There was testimony that both the appellant and his father agreed to allow the police officers to make the search. There was also evidence that after the appellant’s arrest, both he and his father affirmatively consented to the continued search, even after appellant’s father was told that he had the right not to let the police search and that he could stop the search if he wished.

We hold that the statements and acts of the appellant and his father were sufficient to establish consent to the search. This is true notwithstanding the conflict between the testimony of the appellant’s father and that of the police. The trial judge was in the best position to resolve that conflict, and the record does not disclose that he abused his authority in reaching his decision.

Ill

Appellant contends that a photograph, State’s Exhibit 30, should not have been admitted into evidence because it contained nothing which bore on any issue at the trial and its probative value was outweighed by its inflammatory and prejudicial nature.

In Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973), the Supreme Court of Alabama stated:

“Photographs are admissible into evidence if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered. . . Their admission is within the sound discretion of the trial judge. ...”

The photograph objected to shows a frontal view of Mrs. Lunsford after she was removed from the bathtub. It shows very clearly the bruises on her face and, as the bruises were relevant to the cause of death, the photograph was properly admitted. See also: Lewis v. State, Ala.Cr.App., 339 So.2d 1035, cert. denied, Ala., 339 So.2d 1038 (1976); Hall v. State, 50 Ala.App. 666, 282 So.2d 104 (1973).

IV

Appellant contends that the oral charge should not have discussed the felony-murder doctrine because he had no notice that the State’s case was predicated upon the felony-murder doctrine.

The indictment, omitting the formal portions, reads as follows:

“ . . . Jimmie Lee Garrett, Jr., whose name is otherwise unknown to the Grand Jury, unlawfully, and with malice aforethought, killed Eunice Mae Luns-ford by striking her on the head with a blunt instrument, or by means otherwise unknown to the Grand Jury. .

This indictment tracks the code form for murder. Title 15, § 259, Form 79, Code of Alabama 1940. This form has been used and approved in past felony-murder cases. Harvey v. State, Ala.Cr.App., 341 So.2d 187 (1977). The trial court’s reference to the felony-murder doctrine in the oral charge was therefore not error.

AFFIRMED.

All the Judges concur.


text:
    In re Jimmie Lee GARRETT, Jr. v. STATE. Ex parte Jimmie Lee Garrett, Jr.
    77-591.
    Supreme Court of Alabama.
    March 9, 1979.
    Rehearing Denied April 6, 1979.

      J. Mark White, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   EMBRY, Justice.

Petitioner, Jimmie Lee Garrett, Jr., was convicted of the first degree murder of Mrs. Eunice Mae Lunsford and was sentenced to life imprisonment. He appealed to the Court of Criminal Appeals, which affirmed. We granted certiorari to review the following issues:

(1) Whether a search of Garrett’s residence by police officers was constitutional;

(2) Whether Garrett made a knowing and intelligent waiver of his constitutional rights such that his resulting confession was voluntary; and

(3) Whether the trial court erred in charging the jury Concerning the felony-murder doctrine.

I.

Mrs. Lunsford, age 75, was found dead in her bathtub on 27 July 1976. There were several cuts and bruises on her face and the cause of death was attributed to a heart attack resulting from those injuries. The Birmingham Police Department obtained from the deceased’s son, Robert E. Luns-ford, a list of items missing from his mother’s home and a list of persons who would have occasion to have been there. Garrett’s name was on that list since he often cut the grass and did other chores for Mrs. Luns-ford. Based on this information two officers went to Garrett’s house to ask him routine questions about his whereabouts on the day of Mrs. Lunsford’s death. Garrett, who was 17 at the time, met them at the door and allowed them to enter.

At this point the evidence is conflicting. According to the officers, Garrett and his father gave them permission to search the house. According to Garrett’s father, he gave his permission only after the officers threatened that he “would be just as much involved” in it as was his son if he didn’t allow them to search the house. The officers searched Garrett’s bedroom and found several items which were listed as missing from the deceased’s home.

Garrett contends the consent to the search was not freely and voluntarily given. Without such consent the search would be unconstitutional because the officers did not have a search warrant. The circumstances would not justify a departure from the general rule that a person’s home may not be searched without a search warrant or permission. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965).

The Court of Criminal Appeals held that the trial court to be in the best position to determine whether consent had been voluntarily given. After examining the evidence the appeals court held the trial court did not abuse its discretion. Garrett v. State, 369 So.2d 827 (Ala.Cr.App.1978). Although the evidence presented regarding this issue was irreconcilable, we agree that in this case the trial court could properly find consent was freely and voluntarily given. See Holmes v. State, 342 So.2d 28 (Ala.Cr.App.1977).

II.

After the incriminating evidence was found in Garrett’s bedroom, his rights were read him and he was arrested. This occurred at approximately 10:10 a. m. After about an hour Garrett was taken to an interrogation room at city hall at sometime between 11:00 and 11:30 a. m., and interrogated until 4:05 p. m. at which time an unsigned confession was obtained from him. Garrett was given the Miranda warnings three times during the day and, according to the police, told them he understood his rights and wanted to talk to them. Garrett, however, was mentally retarded with an I.Q. of 56. He could neither read nor write and suffered from a speech impediment. The officers were aware of that as well as- the fact that he was mentally slow.

Garrett contends that (1) he could not and did not make a knowing and intelligent waiver of his constitutional rights and (2) his confession was not voluntary. The Court of Criminal Appeals in addressing these contentions upheld the trial court’s conclusion that Garrett was able to understand his rights and waive them and that his confession was voluntary. Although the court felt “an extremely close question” was presented, it could not find the trial court abused its discretion in admitting the confession. At the conclusion of the suppression hearing in this case the trial court made observations:

“THE COURT: Limited mental capacity. I mean, what you have shown me is he’s a person of low IQ. That is what you have shown me. I will find that as a matter of fact he has a low IQ and very low intelligence ratio. He may even be stupid. I don’t like to use that word, but it is a word. He is probably stupid as we know it in the vernacular.
* * * * * *
“THE COURT: * * * The only question I have difficulty with is this [sic] comprehending the Miranda decision. I have very serious doubt that this Defendant knew what Miranda rights, just saying that I doubt if he understood that. But when you go in and read to him— how many times were they given to him, twice or three times?
“MR. JOHNSON: Three times.
“THE COURT: I’m talking about the word Miranda and constitutional rights. I doubt if he understood what that meant.”

We agree this case presents a close question, but we are compelled to reach a different result from that of the appeals court.

This court as long ago as 1876 opined that the degree of intelligence of a prisoner should be considered in determining whether his confession was voluntary. Porter v. State, 55 Ala. 95 (1876) (going to admissibility). Cf. Seaborn v. State, 20 Ala. 15 (1852); Brister v. State, 26 Ala. 107 (1855) (going to weight). In Elrod v. State, 281 Ala. 331, 334, 202 So.2d 539, 542 (1967), this court stated that an

“ * * * [ajccused’s intelligence, character and situation at the time of the confession of the crime charged are important considerations in determining whether the confession was voluntary, but the fact that accused was of tender age or weak intellect will not alone render the confession inadmissible in evidence as involuntary. State v. Ashdown, 5 Utah 2d 59, 296 P.2d 726, affirmed 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443. * * *

Thus, in most cases, the defendant’s mental deficiency will be but one factor to be considered in the “totality of the circumstances” surrounding the confession. In some cases, however, it may be the most important or controlling factor. See e. g. Dover v. State, 227 So.2d 296 (Miss.1969); People v. Langston, 57 Mich.App. 666, 226 N.W.2d 686 (1975). See also Redwine v. State, 258 Ala. 196, 61 So.2d 724 (1952). The importance of this factor increases with the degree of the accused’s mental retardation because he must be able to understand his right to remain silent and to an attorney before he can waive them. It is a knowing and intelligent waiver that is required. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In this case we have a juvenile defendant who is mentally retarded to the point that he was classified by his teachers as trainable, but not educable. That is he can only be trained to take care of his daily needs. According to the teachers, he could not remember his class schedule from day to day. Nor could he understand any abstract words. For example, if Garrett were told he had a right to remain silent, he would not have understood what the word “right” meant and would probably not have understood what the words “remain” or “silent” meant. Two teachers testified that they did not believe Garrett would have understood the Miranda warnings. One of them testified Garrett would have said he understood the warnings, regardless of whether he did not or not, in order to please the interrogator.

Although such a degree of mental retardation in a given ease may be controlling, we need not so hold here because we find from the totality of the circumstances that the confession was involuntary. Garrett was in the custody of the police for almost six hours. After being taken to city hall he was interrogated for four hours in a small room without counsel or any members of his family present; he was not fed during the interrogation and he was crying and sniffling.

Of particular importance is the fact that Mr. Lunsford, the victim’s son, was allowed to question the defendant. Surely, the presence of a close relative of a murder victim during an interrogation would be calculated to frighten an accused person; a mentally deficient juvenile would be subject to tremendous pressure under such circumstances and might make statements simply as a result of that pressure.

Most indicative of the atmosphere in which the confession was made is the conversation between the police and Garrett prior to Garrett’s formal statement. The conversation was recorded because the police tape recorder was accidentally turned on before it was intended to be. The tape was transcribed and the following portions are relevant to the voluntariness of Garrett’s confession:

“(Sgt. A. Wallace:)
Sergeant, why ... let me interrupt you. My hearing is a little bad, and if you’ll talk a little louder and start over again, I, I’m having trouble with my hearing. Tell me, tell me again.
“(Sgt. T. B. White:)
Alright, let’s go back now to get it straight because I’ve got to get it straight. Let me . . . okay.
“(Sgt. Wallace:)
I won’t write nothing down, (emphasis added)
“(Sgt. Wallace:)
Talk a little louder now, I can’t hear it, Jimmy.
“A. I need to, something to blow my nose. My nose . . . need some toilet paper or something. My nose running.
“(Sgt. White:)
Q. Your nose is running?
“A. Yes, sir.
“Q. And you need some toilet paper.
“(Sgt. Wallace:)
Okay, go ahead and I’ll get you some in just a second. I, I want to hear this though.
“(Sgt. White:)
These old people like he gets, he gets a little hard of hearing sometime so speak up.
* * * * * *
“(Sgt. White:)
Q. Jimmy, the pocketbook is gone just like the other things. There was four items missing out of that house and you had three of them at your house. And one other little ’ole, one insignificant thing about a purse, all we want is to get, get, find out where the purse is and that completely ends the whole thing. It’s no evidence ... it won’t be any evidence against you. We’ve already got that. Just want a little . . you remember when we talked awhile ago. (emphasis added)
sfc sf: s{c if:
“Q. You’re already feeling better. I can see, you, you’re not as nervous, you’re not . chill bumps are gone and you’re not sniffling or nothing. Alright, where was it?”

Self incrimination resulting from this type interrogation is what the Fifth Amendment to the Constitution of the United States and Section 6 of the Constitution of Alabama of 1901 were intended to prevent.

All confessions are prima facie involuntary and the state had the burden to prove otherwise. In this case it has failed to so do. Accordingly, we hold the confession inadmissible.

III.

The indictment in this case states:

“The Grand Jury of said County charges that, before the finding of this indictment, Jimmie Lee Garrett, Jr., whose name is otherwise unknown to the Grand Jury unlawfully, and with malice aforethought, killed Eunice Mae Luns-ford by striking her on the head with a blunt instrument, or by means otherwise unknown to the Grand Jury, against the peace and dignity of the State of Alabama.”

This language tracks the requirements of § 15-8-150(72), Code 1975, which provides a form for an indictment charging a violation of § 13-1-70, Code 1975: murder in the first degree.

The trial court in its charge to the jury included instructions concerning the felony-murder doctrine. Garrett contends this was error because the indictment did not refer to the doctrine. Yet it did charge a violation of § 13-1-70. That section provides:

“Every homicide perpetrated by poison, lying in wait or any other kind of wilful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery or burglary, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others and evidencing a depraved mind regardless of human life; although without any preconceived purpose to deprive any particular person of life, is murder in the first degree; and every other homicide committed under such circumstances as would have constituted murder at common law is murder in the second degree.” (emphasis added)

Garrett cannot successfully maintain he had no notice that he was charged with felony-murder because it is included in the statutory definition of murder in the first degree.

Although it would have been preferable for the indictment to have been more specific, the fact that it wasn’t does not create a fatal variance. Harvey v. State, 341 So.2d 187 (Ala.Cr.App.1977); State v. Smith, 223 N.C. 457, 27 S.E.2d 114 (1943).

Because the confession in this case was unconstitutionally obtained and its admission was reversible error, the judgment of the Court of Criminal Appeals must, therefore, be reversed and the case remanded to that court for decision not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Jimmie Lee GARRETT, Jr. v. STATE.
    6 Div. 508.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
   REVERSED AND REMANDED on mandate of the Supreme Court of Alabama. No opinion.

All the Judges concur.


author:
TYSON, Judge.
      BOOKOUT, Judge,

text:
    Walter POKE, Sr. v. STATE.
    4 Div. 675.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Nov. 21, 1978.
    Brian W. Dowling, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Walter Poke, Sr. was charged and convicted of the willful refusal to support his minor children and was sentenced to twelve months hard labor in the Houston County Jail. From this conviction he prosecutes this appeal as an indigent. The sole and dispositive issue in this appeal is whether or not a prima facie case was presented by the State when tested by a motion to exclude.

We are of the opinion that insufficient proof was presented to show that the children were in “destitute or necessitous circumstances” and reverse and render this case.

I

By stipulations of the parties, only that portion of the transcript in support of the State’s position was sent to this Court.

Mrs. Katie Poke testified that she married the appellant on October 28, 1962, had three children born of this marriage, ranging in ages six to fourteen. Mrs. Poke further stated that the parties were separated in 1972, and that she obtained a divorce through the Department of Pensions and Security. From the record (pp. 3-5):

“Q. Now, when was the last time that he paid you any money for the support of the children?
“A. 1971.
“Q. 1971?
“A. Yes, sir, in 1971. We separated in 1972.
“Q. Okay. Are you — Do you work?
“A. No.
“Q. Has he paid you any money since 1971?
“A. No.
“THE COURT: Did you say no?
“A. No.
“Q. Absolutely ho money?
“A. (Shaking head negatively.)
“Q. Has he supported the children in any way, has he bought them any clothes since 1971?
“A. No, he came here — he bought the kids a pair of shoes about a month ago.
“Q. About a month ago?
“A. Yeah, he bought them a pair of shoes and a pair of socks.
“Q. What about food?
“A. No.
“Q. No food since 1971?
“A. No.
“Q. Is the only thing that he’s bought them since 1971 is a pair of shoes and a pair of socks?
“A. That’s all.
“Mr. Story: Your witness.
“CROSS EXAMINATION
“BY MR. DOWLING:
“Q. Mrs. Poke, how have the children been getting along; what have they been using for money?
“A. We get food stamps.
“Q. You filed for a divorce at the same time you got this non-support warrant, didn’t you?
“A. I got — filed the divorce through by Pensions and Security.
“Q. Did your lawyer try to get a reference hearing set up to make him pay you some money until the divorce was settled?
“MR. STOREY: We object, Your Honor.
“THE COURT: I sustain.
“A. No—
“THE COURT: You don’t have to answer.
“Q. You said the last time he paid you any money for the children was in 1971?
“A. Yes.
“MR. DOWLING: Okay. No more questions.”

Mr. Justice Almon, speaking for the Supreme Court of Alabama, in Turner v. State (Ala.1977), 343 So.2d 591, indicated that, in cases such as the case at bar, the burden is upon the State to make a showing that the children are in “destitute or necessitous circumstances,” citing Title 34, section 90, Code of Alabama 1940, Recompiled 1958.

As may be seen in reviewing the proof offered by the State, no such showing was here made. While it might be argued that, inasmuch as the wife no longer works, and that the children are dependent upon food stamps, nevertheless, the State failed to negate other possible sources of economic support. We therefore reverse and render this cause on authority of Turner, supra. As noted in Turner: “In the instant case, one can only surmise as to the actual condition of the children. Nothing was said directly about their state of being. A criminal conviction under Tit. 34, § 90, cannot stand as a matter of law without such evidence.”

For the reasons shown, this case is reversed and rendered under Burks v. United States, No. 76-6528, June 14, 1978, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1.

REVERSED AND RENDERED.

HARRIS, P. J., and DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., dissents.

BOOKOUT, Judge,

dissenting.

Although the majority opinion is in accord with the pronouncement of the Alabama Supreme Court in Turner, supra, I nevertheless adhere to the reasoning of Justice Maddox as expressed in his dissent in the Turner case.

      . Cf. Haynes v. State (Ala.Cr.App., 1977), 351 So.2d 678.


author: MADDOX, Justice.

text:
    In re Walter POKE, Sr. v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    78-143.
    Supreme Court of Alabama.
    March 9, 1979.
    William J. Baxley, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State.
    No briefs for respondent — submitted on brief of petitioner.
   MADDOX, Justice.

The defendant was convicted of willful refusal to support his minor children. The Court of Criminal Appeals reversed his conviction and determined that, even though the State showed that the father had failed for seven years to give any support to his children, and that the mother of the children was out of work, and that the children were getting food stamps, “nevertheless, the state failed to negate other possible sources of economic support.” [Emphasis added]. We granted certiorari to review that holding.

The Court of Criminal Appeals relies upon Turner v. State, 343 So.2d 591 (Ala.1977). Reliance on Turner is misplaced. In Turner, the majority points out:

“Tit. 34, § 90, Code, supra, denounces as criminal the failure to provide for a dependent wife or children. One of the elements of the crime is that the wife or children must be ‘then and there in destitute or necessitous circumstances.’ Tit. 34, § 90. The petitioner’s proposed submission of facts contains no reference to the condition of the children. The State’s brief contains its statement of the facts of the case as required by Rule 28, ARAP; however, nowhere in its statement of the facts is any reference made to the condition of the children, nor does the State argue that such facts exist. Rather, the State contends that a showing of economic need satisfies the requirement of destitute or necessitous circumstances, and the fact that the wife is out of work, that the husband has failed to fulfill his obligation under the divorce decree, etc., constitutes such a showing.”

Here, the opinion of the Court of Criminal Appeals shows that the children had “ ‘become a charge upon the public.’ ” Johnson v. State, 22 Ala.App. 160, 113 So. 480 (1927).

In Turner, the majority opined:

“ ‘In the instant case, one can only surmise as to the actual condition of the children. Nothing was said directly about their state of being. A criminal conviction under Tit. 34, § 90, cannot stand as a matter of law without such evidence.’ ”

The failure of proof found by the majority to exist in Turner does not exist here, because there was direct testimony in this case that the children were getting food stamps; therefore, there was proof that the children had already “ ‘become a charge upon the public.’ ”

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

REVERSED AND REMANDED.

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


text:
    Walter POKE, Sr. v. STATE.
    4 Div. 675.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
   AFFIRMED on authority of Poke v. State, Supreme Court of Alabama, March 9, 1979, 369 So.2d 840. No opinion.

All the Judges concur.


text:
    William EADY v. STATE.
    4 Div. 682.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    Rehearing Denied Feb. 20, 1979.

      John M. Gruenewald, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for appellee.
   BOOKOUT, Judge.

Escape; sentence: twelve years imprisonment.

On January 6, 1978, appellant was serving time on a two year second degree burglary conviction in the Houston County Jail while awaiting transfer to the state penitentiary. Sheriff A. B. Clark testified that appellant, along with two other prisoners, was assigned to a work detail at the Houston County Farm Center that day and had been transported to the farm center by Mr. Easel Hamm, the utility foreman at the farm center. Mr. Hamm, a county employee not connected. with law enforcement, was responsible for picking the prisoners up at the jail at 7:30 a. m., supervising them during the day, and returning them to the jail at 3:30 p. m. This particular day, however, the prisoners were to stay at the farm center overnight to clean up after a horse show that evening. Sheriff Clark testified he did not give appellant permission to leave the farm center grounds that day. However, he also stated, he was not at the farm center any time that day, he was not familiar with quarters provided for prisoners at the farm center, and that anything he knew about appellant’s escape was told him by someone else. He further testified that Mr. Hamm was the only person at the farm center responsible for the prisoners during both the day and that night. No deputy was assigned to them.

Mr. Easel Hamm testified he was the utility man at the farm center and that the only relationship he had with Sheriff Clark was as a county employee. He stated he carried no gun, was not a law enforcement officer, and was not a guard under anyone’s employ. Mr. Hamm testified that Sheriff Clark was not the man who initiated his job supervising the prisoners. Rather, he had been hired by the manager of the farm center to supervise the work detail, and that was all he knew of the arrangement.

Mr. Hamm stated the prisoners finished their work at the farm center at approximately 1:00 a. m. He observed the prisoners bed down in a heated dressing room, and then around 1:30 a. m. he went to a local cafe to get something to eat. Mr. Hamm stated he returned at 2:30 a. m. and found all the prisoners missing. He testified that no one was left in charge of the prisoners during his absence, that none of the gates were locked, and that anyone could have gotten up and walked out.

Deputy Sheriff Leon Baxter testified he was called to the farm center on January 7, 1978, learned appellant was missing, and proceeded to a night club area in Houston County to search for him. There, Deputy Baxter observed appellant coming out of the Capri Club. He walked up to appellant, took a beer from his hand, and placed him under arrest. He stated appellant was intoxicated and attempted to get the beer back. Appellant resisted Baxter’s orders, and Baxter put handcuffs on him and placed him in the patrol car.

Appellant testified in his own behalf. He stated he was hungry after going to bed that night and called a taxi from a pay telephone at the farm center to take him to get something to eat. Appellant testified he had not been given any supper that night. (Mr. Hamm, called later in rebuttal, testified appellant had been given two barbeque sandwiches for supper.) Appellant stated he went to the Capri Club where he had a plate lunch. He then began drinking and got drunk. He testified it was his intention, however, to return to jail when he left the Capri Club.

The indictment against appellant charged in pertinent part as follows:

“. . . William Eady, whose name is to the Grand Jury otherwise unknown, while a convict under sentence to the penitentiary, did escape from custody of the Sheriff of Houston County, Alabama, who had him in charge under authority of law. ...”

Appellant contends the State’s evidence failed to prove a prima facie case of escape against appellant in that the State failed to prove as alleged in the indictment that appellant escaped from custody of Sheriff Clark or any other authorized law enforcement officer or agent of the sheriff.

We are forced to agree with appellant. The evidence showed not only that appellant was not in custody of the sheriff at the time he left the farm center, but that he was not in the custody of anyone charged by law with his care and detention. Neither was he in a lawful place of detention, but rather informally assigned overnight in an unlocked public facility with which the sheriff himself was not familiar.

Section 13-5-65, Code of Ala.1975, under which appellant was convicted, reads as follows:

“Any convict who escapes or attempts to escape from the penitentiary or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary, before the expiration of the term for which he was sentenced, shall, on conviction, be imprisoned for an additional term of not less than one year.”

The evidence here shows a fatal variance between the facts as alleged in the indictment and the proof adduced at trial. As this court stated in Owens v. State, 46 Ala.App. 591, 246 So.2d 478 (1971): “No proposition of law is more fundamental than the one requiring that the proof at trial must correspond with the material allegations of the indictment.”

Additionally, to sustain a conviction under the code section cited above, the State must show the convict escaped from the penitentiary or from a person or guard ¡awfully having him in charge either within or outside the walls. Gibson v. State, 48 Ala.App. 237, 263 So.2d 694 (1972). For purposes of this statute, the appellant’s assignment to a county jail while awaiting transfer to the penitentiary was sufficient to constitute confinement in the penitentiary. Strickland v. State, 280 Ala. 31, 189 So.2d 771 (1965); Thornton v. State, Ala.Cr. App., 356 So.2d 667 (1978). The instant indictment charged that the appellant escaped from the “custody of the Sheriff of Houston County, Alabama, who had him in charge under authority of law.” However, the evidence shows that at the time of the purported escape the appellant was not in the custody of the sheriff, as charged in the indictment, nor was he in the custody of any person or guard having him in charge under “authority of law.” Therefore, the appellant’s motion to exclude the State’s evidence should have been granted, and the failure to do so amounts to reversible error.

REVERSED AND REMANDED.

All the Judges concur.


author: TORBERT, Chief Justice.

text:
    In re William EADY v. STATE of Alabama. Ex parte State of Alabama, ex rel. Attorney General.
    78-316.
    Supreme Court of Alabama.
    April 20, 1979.

      Charles A. Graddick, Atty. Gen., David W. Clark, Asst. Atty. Gen., for the state, petitioner.
    John M. Gruenewald, Dothan, for respondent.
   TORBERT, Chief Justice.

We deny the writ because there was no proof to show the petitioner escaped from “the custody of the Sheriff of Houston County, Alabama, who had him in charge under authority of law . . . (emphasis added) as charged in the indictment. There is no conflict with Jenkins v. State, 367 So.2d 587 (Ala.Cr.App.), cert. denied, 367 So.2d 590 (Ala.1979).

WRIT DENIED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.