text:
    Kenneth W. MATTHEWS v. STATE.
    5 Div. 327.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Rehearing Denied June 15, 1976.
    Baker, Lester & Wilkes, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of forgery in the second degree and sentenced to' ten years imprisonment in the penitentiary. Prior to arraignment appellant was found to be indigent and counsel was appointed to represent him at arraignment and on the trial. He pleaded not guilty. After sentence was imposed, appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on this appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment, Kenneth W. Matthews, alias Kenneth W. Matthews, whose true Christian name is otherwise unknown to the Grand Jury, with the intent to injure or defraud, did falsely make, alter, forge, or counterfeit a certain instrument in writing which was in substance as follows:
“THE FIRST NATIONAL BANK OF MONTGOMERY
NO. 14
Montgomery, Ala. February 8 1975
“PAY TO THE order OF
Kenneth W. Matthews $ 144.96 One Hundred Forty Four dollars & 100 DOLLARS
PLEASE WRITE ACCOUNT NUMBER HERE
17 9528 3
/s/ Brad C. Davis
Davis Survey &
Landscaping Co.
0622 0036
“AND ON THE REVERSE SIDE THEREOF:
/s/ Kenneth W. Matthews
or with the intent to injure or defraud did utter and publish as true the said falsely made, altered, forged, or counterfeited instrument in writing, knowing the same to be so falsely made, altered, forged or counterfeited,
against the peace and dignity of the State of Alabama.”

Mrs. Betty Littleton testified that on February 12, 1975, she was credit manager of Lorch’s Jewelry and Furniture Store located in Midway Plaza, Opelika, Lee County, Alabama. She stated that on that day around 7:00 p. m. appellant came in the store and said he wanted to purchase a birthstone ring and he looked at the rings in the jewelry department and did not find one that he wanted. He looked at a catalog and found one he wanted and since it had to be ordered, it was set up as a layaway and he put down a deposit on the ring. Appellant gave her a check signed in the name of Brad C. Davis, made payable to the order of appellant, Kenneth W. Mathews, and was drawn on the First National Bank of Montgomery, Montgomery, Alabama, in the amount of one hundred forty-four and ninety-six hundredths ($144.96) dollars. The check was dated February 8, 1975, and also' appearing on the check in the bottom left-hand corner in writing was the name Davis Survey and Landscaping Co. On the back of the check was appellant’s endorsement, his North Carolina driver’s license number, an Auburn, Alabama address and telephone number. Appellant told Mrs. Littleton his address and telephone number and she wrote this on the back of the check.

After seeing appellant’s driver’s license as an identification she accepted the check, took out $25.00 as a down payment on the ring and gave appellant the balance. Mrs. Littleton asked appellant if he had done work for this company and he told her he had worked for Davis Survey and Landscaping Company and she assumed it was a payroll check. She made an in-court identification of appellant as the person who gave her the check.

The check was deposited and it was later returned with a statement on the back that “We do not appear to have an account in the name of Brad C. Davis or Davis Survey and Landscaping Co.” Mrs. Littleton called the telephone number that was on the back of the check, given to her by appellant, and discovered that the telephone had been disconnected. She further learned that no such person by the name of appellant was living at the address listed on the back of the check which address was given by appellant to Mrs. Littleton. She then called Montgomery Information for a listing on Brad C. Davis and Davis Survey and Landscaping Co., and she was informed that they had no such listing. Mrs. Lit-tleton then called the Opelika Police Department.

On cross-examination Mrs. Littleton stated that appellant entered the store with a girl companion whom she described as having brown straight hair a little longer than shoulder length. That she was slim and appeared to be in her twenties. She further testified that the name Brad C. Davis and Davis Survey and Landscaping Co. were already written on the check when appellant presented it to her. That appellant wrote nothing on the check except his endorsement, “Kenneth W. Mathews.” She was positive that after deducting $25.00 from the check as a deposit on the ring, she gave the balance of the money to appellant personally and not to the girl who was with him.

On redirect examination she stated that the girl with appellant was about five feet three inches tall and she saw no evidence that this young lady was pregnant. She further said that appellant never came back to pick up his ring.

On recross examination she was asked if the defendant ever offered to pay off this check and she said she never had any further contact with the defendant after he left the store.

Gary R. Knight, a detective with the Opelika Police Department, was assigned to investigate this case and located appellant in Atlanta, Georgia. He was arrested and returned to Opelika where he was interviewed by Knight after being given the Miranda rights and warnings. He signed a waiver of rights form and gave the detective a written statement. After the proper predicate was laid, this written statement was introduced and received into evidence. The statement was witnessed by Detectives Gary R. Knight and Fred Davis and is as follows:

“ T, Kenneth Watson Matthews, age 25, born September 2, 1949, at Dunn, North Carolina. I now reside at 1053 Laurel Ct., Conyers, Georgia. I went to the 10th grade in school and I can read and write. I have been advised of all of my rights by Detective Gary R. Knight and I understand them. I do voluntarily make the following statement to Gary R. Knight whom I know to be a police officer for the City of Opelika, Alabama. I have been advised of the charge of forgery against me.’
“The statement reads as follows: ‘About the first week in February, 1975, I was driving on 1-85 from North Carolina to Georgia when I was flagged down by a white male and two white females. The man was having trouble with a ’64 Ford Van so I stopped. The man stated his name was Fred and the girls’ names were Nancy — but I don’t know her last name —and the other girl was named Lisa Thompson. Brad asked me where he could get a paycheck cashed and told me he and his brother were in business together. I told him I could help him get one cashed in Statesville, North Carolina, where I have some kin. I took them in my car and Brad made the check out in my name because I had some drivers license and he didn’t. I cashed the check for him and gave Brad the money. Brad then had the van towed into a service station and we then left towards Mobile in my car. We stopped in a Motel #6 in Opelika and got two rooms. Brad said he needed some more money and Lisa and me to take another check and cash it for him. I told him that they wouldn’t cash a check for me, being out of town and Brad told me to tell them a local address. Lisa and me got into the car and drove in Opelika until she told me to stop at a Lorch’s Store. Linda and me went inside and I looked at some men’s rings and watches. I ordered a ring and then gave the man at Lorch’s the check and the down payment for the ring was taken out and Lisa picked the change from the counter. I told the people at the store I worked at a Davis Survey and Landscaping Company and this was a payroll check. I signed the check back and gave my drivers license as identification. The number was written on the back of the check. I looked at Lisa and Lisa told me what phone number to give and what address to give in Auburn. I had never lived in Auburn at any time and did not know if this was a good address or not. Brad had told me to get something for myself and Lisa more or less picked this ring out for me. I haven’t even got any idea how to get back to the store where the ring was bought. I had only been in town about three or five hours when all this happened and I haven’t picked up the ring since I bought it. The money was kept by Lisa and I didn’t get anything from the check at all. I went back to the hotel room where Brad and Nancy were. Lisa, Brad and Nancy were all smoking marijuana. I had been drinking but I didn’t want anything to do with the marijuana. I told them I was going to the Waffle House and I got in my car and left. I have never seen Brad, Lisa or Nancy before I picked them up or since I left them. Lisa had told me her father worked in a post office in Mobile but I don’t know if this is true or not. I do know that Brad was called “Billy Jack” because he wore a black hat all the time. Brad and Nancy were supposed to have run away together according to Lisa and Brad was supposed to have just gotten out of the Marines but as far as I know he could have been AWOL. The above statement is true and correct to the best of my knowledge. Signed, Kenneth Watson Matthews.’ ”

Detective Knight further testified that he made an investigation with reference to some of the statements contained in the above quoted statement signed by appellant. He stated that he checked with Motel No. 6 in Opelika and there was no record of a Kenneth Matthews or a Brad Davis ever registering at this motel. Through his investigation he never found that a Davis Survey and Landscaping Company had a place of business in Montgomery, nor was he ever able to locate a person by the name of Brad Davis at any address in Montgomery. He stated that there was not an account in the name of Brad Davis with the First National Bank of Montgomery. He said appellant was not too sure whether the girl’s name was Lisa or Theresa Thompson. He located Theresa Thompson in Mobile, Alabama, and verified that her father was employed with the Post Office in Mobile.

On cross-examination he testified that appellant gave him a description of the girl as being approximately 19 or 20 years old and was five feet two, had long brown hair, shoulder length or longer, and weighed about 105 pounds. He stated that appellant was not too specific as to the description of Brad Davis but did say that he had short hair and wore a brown or black “Billy Jack” type hat.

He further stated that he checked with the First National Bank of Montgomery to see if the bank had any account in the name of Brad Davis and was informed there was no such account. He checked the telephone directory and there was no listing for a Brad C. Davis and he called “information” at the telephone company and got the same answer.

Theresa Thompson testified that she lived with her parents in Mobile, Alabama, that she was 18 years of age and that her father was employed at the Post Office in that city. She further stated that she was living with her parents in Mobile on February 12, 1975; that she was not in Opeli-ka on that date and had never been to Opelika in her life.

She testified that she knew the defendant and pointed him out in the courtroom. She said she met him in Atlanta, Georgia, two years previously but she did not know him as Kenneth Matthews. She stated that appellant told her his name was Kenneth Watson. She admitted spending some time with him in Atlanta over a period of three or four days. She was asked by the Court how long she had seen him at any one time and she replied that she was with him about 18 hours the first day. She stated that after these three or four days she never saw appellant again until she appeared and testified in this case. She further stated that she had never been in Lorch’s Jewelry and Department Store in Opelika in her entire life, and that on February 12, 1975, she was in the home of her parents in Mobile and was six months pregnant at that time.

It is crystal clear that the testimony of Theresa Thompson completely contradicts and repudiates that portion of appellant’s statement implicating her in his forgery scheme in saying that she went with him to Lorch’s, that she supplied the false telephone number and the street address that was placed on the back of the check, and that she kept the balance of the money after the $25.00 deposit was made on the ring from the check he gave Mrs. Little-ton.

In Ex parte State, 213 Ala. 1, 104 So. 40, the Supreme Court held:

“A consideration of the cases will disclose as elements of forgery (1) that there must be a false making — and this may be accomplished by 'the fraudulent application of a false signature to a true instrument, or a real signature to a false’ instrument; (2) that the essence of forgery is an intent to injure or defraud when the act complained of is done (Agee v. State, 113 Ala. 52, 21 So. 207; Denson v. State, 122 Ala. 100, 26 So. 119), and it is not necessary that any actual injury should result from the offense (Denson v. State, supra); and (3) it is of ‘no consequence whether the counterfeited instrument be such as if real would be effectual to the purpose it intends so long as there is a sufficient resemblance to impose on those to whom it is uttered.’ Burden v. State, 120 Ala. 388, 25 So. 190, 74 Am.St.Rep. 37, L.R.A. 1918B, p. 1192, note; 7 Ency.Dig.Ala. Rep. 477.
“This court has held that it is not necessary for a conviction of forgery for the state to show that defendant himself wrote the forged order, since if, with intent to utter it, he procured another to write it, and afterwards uttered it as genuine, he would be as culpable as though he himself had written it. Koch v. State, 115 Ala. 99, 22 So. 471; Elmore v. State, 92 Ala. 51, 9 So. 600; Gooden v. State, 55 Ala. 178; State v. Chance, 82 Kan. 388, 108 P. 789, 27 L.R.A. (N.S.) 1004, 20 Ann.Cas. 164.”

In Williams v. State, 126 Ala. 50, 28 So. 632, it is established that where a defendant was charged with having forged a check which was made payable to his order, and there was evidence that the name of the drawer was that of a fictitious person, the jury was authorized to infer an intent on the part of the defendant to defraud the party to whom he transferred the check, and that he had forged it.

It is said in Hobbs v. State, 75 Ala. 1, that “one found in possession of a forged instrument of which he purports to be the beneficiary, and applying it to his own uses, must, in the absence of explanation, be presumed to have fabricated it, or to have been privy to its fabrication. It is difficult to conceive that he could have the possession unless he had fabricated it, or assented to its fabrication; and the presumption grows stronger when he uses or attempts to use it.”

Whether the explanation offered by the defendant as to his possession of the check was satisfactory presented a jury question.

In Tidwell v. State, 33 Ala.App. 198, 31 So.2d 513, this Court said:

“Thus, purely a question of fact was presented, which the jury resolved adversely to the appellant. This being so, the established principle that one possessing a forged instrument, and applying it to his own use may, in the absence of a satisfactory explanation, be presumed to have fabricated it, or have been privy to its fabrication, fully supports the verdict rendered under the facts presented in this case by the State. Curtis v. State, 118 Ala. 125, 24 So. 111; McGee v. State, 20 Ala.App. 221, 101 So. 321; Overby v. State, 24 Ala.App. 254, 133 So. 915.”

To the same effect is the holding of this Court in Terrell v. State, 34 Ala.App. 262, 38 So.2d 604.

We have carefully searched the record for errors injuriously affecting the substantial right of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    In re Kenneth W. MATTHEWS v. STATE. Ex parte Kenneth W. Matthews.
    SC 1912.
    Supreme Court of Alabama.
    July 23, 1976.
    H. Kenneth Wilkes, Opelika, for petitioner.
    No appearance for the State.
   ALMON, Justice.

Petition of Kenneth W. Matthews for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Matthews v. State, 58 Ala.App.-, 335 So.2d 217.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: CATES, Presiding Judge. CATES, Presiding Judge.

text:
    Cecil DATES v. STATE.
    7 Div. 394.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Rehearing Denied June 1, 1976.

      Burnham, Klinefelter, Halsey & Love, and Herbert D. Jones, Jr., Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

First degree arson: sentence, life imprisonment.

The indictment Count I reads:
“The GRAND JURY of said County charge that, before the findings of this indictment, . . . CECIL DATES, whose true name is to the Grand Jury otherwise unknown, did procure the burning of a dwelling house, the property of Doris Whack, which said burning killed Edward Huntley, AGAINST THE PEACE AND DIGNITY OF THE STATE OF ALABAMA.”

Code 1940, T. 14, § 23, in pertinent part reads as follows :

“Any person who wilfully sets fire to or burns, or causes to be burned, or who aids or procures the burning of any dwelling house, or any kitchen, shop, barn, stable, or other out house within the curtilage of a dwelling house, the property of another; or any person who, with intent to defraud, sets fire to * * * the property of himself, shall be guilty of arson in the first degree, and shall, upon conviction thereof, be punished by imprisonment * * * but, if the said arson shall produce the death or maiming of any person, the punishment shall be death or imprisonment in the penitentiary for life, at the discretion of the jury.”

Code 1940, T. 15, § 259, Form [of indictment] No. 9 reads:

“A. B. willfully set fire to, or burned or caused to be burned, or aided or procured the burning (as the case may be) a dwelling house (or other building describing it), the property of C. D.; or with intent to defraud set fire to or burned, or caused to be burned, or aided or procured the burning of a dwelling house (or other house within the curti-lage of such dwelling house) the property of himself; (if it is alleged that said arson has produced the death or maiming of any person, this allegation shall be added).”

In the trial court a demurrer was filed pointing out that “wilfully” was omitted from the indictment. The demurrer was overruled.

The State argued that the adverb “wil-fully” in § 23 (and Form No. 9) only modifies the verb “set fire to” and where, as here, the charge is one of procuring a burning that wilfully is not necessary.

We do not agree. The absence of mens rea — evil mind, felonious intent — in crimes, statutory or otherwise is not lightly to be presumed. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205; Seattle v. Gordon, 54 Wash.2d 516, 342 P.2d 604.

All the cases on arson talk of wilfulness except where the mental element is intent to defraud. With this Common Law background, we consider that the syntax of the first alternative of § 23, supra, requires as an indispensable element of the offense allegation and proof of wilfulness. This to negative accident or mischance if nothing else. See 6A C.J.S. Arson § 25.

For the foregoing error of law the judgment below is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur, except De-CARLO, J., who dissents.

ON REHEARING

CATES, Presiding Judge.

The prosecution argues there is “no chance that the procuring * * * be done accidentally or by mischance.”

We are at a loss to ascribe what meaning was intended by the use of “no chance”. This court is a court of law, not of probabilities.

Both by State and Federal Constitutions an indictment must inform a defendant of the charges against him. The law of the land is not ready to keep the accused in the dark as to what he is up against until the State rests its case. United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588. Otherwise he would be like Laocoon wrestling in the dark against the coils of a sea serpent.

We think 6A C.J.S. Arson § 8, fn. 71, citing People v. McCarty, 303 Mich. 629, 6 N.W.2d 919, is apt.

Arson involves an act which is not done under color of right. Regina v. Twose, (1879), 14 Cox 327. Thus, as in McCarty, supra, a man may employ others who through neglect cause a fire. Such proof is not enough for arson. A painter hired to remove encrustations on a frame house uses a blow torch and so starts a fire — the owner has not procured arson. The procurement to be a criminal must be willful.

We can cite no more apt authority than Commonwealth v. Cooper, 264 Mass. 378, 162 N.E. 733, from which we quote:

“RUGG, C. J. This indictment as returned by the grand jury charged that the defendant on a specified date at a designated place ‘did attempt to burn the building of Frances Winograd, and in such attempt did set a fire in the cellar of said building, but did fail in the perpetration of said attempted offense, and was intercepted and prevented in the execution of said attempted offense, against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided.’
“The indictment in this form charged no criminal offense known to the law of this commonwealth. Arson was defined at common law as ‘the malicious and willful burning the house or outhouse of another man.’ 4 Bl.Com. 220, 221. By G.L. c. 266, §§ 1, 2, 3, 4, and 5, the crime of arson has been somewhat differentiated, and other acts assimilated to that crime, by including the burning, not only of dwelling houses, but of other classes of structures not embraced within arson at common law; but all these statutory descriptions of crime contain the words ‘willfully and maliciously’ as an integral part of the several offenses there defined. In this respect they stand on the same footing as arson at common law. These words are essential. They are not mere form. They constitute the substance of the crime. Without these indispensable words no crime is set forth. They must be alleged in the indictment and proved at the trial. Their omission is not insubstantial or technical, but goes to the root of the whole matter. Not infrequently an act done with an innocent purpose violates no law, and yet becomes unlawful when done with a malicious and willful design to cause injury. The act set forth in this indictment belongs to that class.
“This point is covered by the authority of Commonwealth v. Makely, 131 Mass. 421, where it was held in a somewhat similar case that malice must be proved and that the burden of proof was not sustained where the burning was shown to have been at the procurement of the owner of the building.”

In charging arson the essential elements must be put in the indictment. The demurrer should have been sustained. Ala.Cons. § 6; U.S.Cons. Amdmts. 6 & 14. See Stoudenmire v. State, 144 Ala. 85, 40 So. 321.

The application is overruled.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur, except De-CARLO, J., who dissents.

      . For a burning to constitute arson in any degree under existing law, the burning must be willful and malicious. Tit. 14, §§ 23, 24 and 27 require the burning to be “willfully” done. In Morris v. State, 124 Ala. 44, 27 So. 336 (1899) the court held that the burning must be willful and malicious. A burning that occurs as a result of simple negligence is not sufficient. Burning by accidental or natural causes must be satisfactorily excluded to constitute proof of the crime. Colvin v. State, 32 Ala.App. 142, 22 So.2d 544 (1945).

      . We forego reference to Judge Bridoie who used little dice to decide little cases and big ones for big cases.

      . We do not hold that “wilfully” is the only adverb available. “Maliciously” would embrace the same concept and more. Of course, the prosecution under the latter example would have the burden of establishing malice. See State v. Thorne, 81 N.C. 555.
      However, in certain burnings, e. g., chattels to real property, the doctrine of “transferred malice” can be inapplicable. Woodley v. Cork C. C. [1910] 2 Ir.R. 29.


text:
    In re Cecil DATES v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1898.
    Supreme Court of Alabama.
    July 9, 1976.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for petitioner.
    No appearance for respondent.
   ALMON, Justice.

Petition of the State by its Atty. Gen. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Dates v. State, 58 Ala.App.-, 335 So.2d 222.

WRIT DENIED.

HEFLIN, C. J., and BLOOD WORTH, FAULKNER and EMBRY, JJ., concur.


author: TYSON, Judge.

text:
    Rickey Joe THOMAS v. STATE.
    7 Div. 467.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.

      Patrick H. Tate, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant Rickey Joe Thomas, and Steve O’Shields, with the second degree burglary of Word Lumber Company, Inc. The jury found the appellant guilty as charged, and the trial court set sentence at five years imprisonment in the penitentiary.

Richard Fleming testified that he was the Fort Payne Police Department Dispatcher on the night of December 17-18, 1975. He testified that Word Lumber Company had a burglary alarm system which was connected to the police station and that at 11:01 that evening the alarm went off. He testified that he then notified Patrolmen Long and Garmany to investigate.

Fort Payne Police Officer Ellie Walter Long testified that in response to a radio dispatch, he and Officer Garmany went to Word Lumber Company located on First Street in Fort Payne shortly after 11 o’clock on the evening of December 17-18, 1975. After a brief look around he stated that everything seemed to be in order but called Mr. Word. He stated that in a few minutes Mr. Word, the owner, appeared and that he was with Mr. Word when they discovered that a door leading to the lumber storage area in the east side of the building was open. He stated that he then walked into the building with a flashlight and discovered some lights were on and that there was some broken glass underneath a broken skylight in the roof of the building. He stated that he asked Mr. Word about the skylight.

From the record:

“Q Just tell us what you did and what you saw.
“A Well, in discovering the glass broke out I immediately assumed that maybe someone was in the place. I went outside to the car and dispatched Officer Garmany around to the front and that I needed assistance inside the building to help me check the place out further. Mr. Word went to the front door, opened the door for Garmany, and Officer Garmany come inside the place and we checked it out further. While Lester was checking one area, I was checking the other. I discovered another skylight on the north end of the building, the same lumber storage area that was broken out, also. About this time I heard—
“Q Let me interrupt you. Back at the first skylight at the south end of the building do you have a judgment as to how many feet, how far it is from the skylight down to the ground ?
“A Maybe 15 — 15 feet.
“Q Was anything underneath between the skylight and the ground at the south end of the building?
“A No sir.
“Q What about at the north end of the building, that broken skylight ?
“A It had a truck parked underneath it with an open bed. The same distance, IS feet to the floor, to the concrete.
“Q Go ahead, please sir.
“A And upon discovering the second skylight broken out immediately thereafter I heard Lester Garmany say something. There was an echo inside the place. I heard him say ‘Freeze’ or ‘Get your hands up’ or something. I couldn’t make the words out clear enough and I was trying to find his location. I couldn’t detect which way it was coming from because of an echo. But I went looking for him and discovered him over in a corner.
“Q Who did you see with him if anyone?
“A Ricky Joe Thomas and Steve O’Shields.
“Q That’s Ricky Joe Thomas, the defendant, seated at this table ?
“A Yes, it is.
“Q Where were they when you saw them?
“A They were in the same place that Lester Garmany was.
“Q Where was that ?
“A It was on the east most side of the lumber storage building, maybe one-third of the way down from the front, something like that. I didn’t measure it.
“Q Was it out in this hallway?
“A It was out of the hallway. It was on the east side of the hallway.”

Officer Long also testified that he subsequently gave the appellant and O’Shields their Miranda rights upon their arrests that evening. Officer Long’s testimony was corroborated by that of Officer Lester Garmany concerning their investigation at Word Lumber Company.

Officer Garmany testified that as he entered the east side of the storage area of the building in question, he shined his flashlight in a corner and observed the appellant and O’Shields lying in the corner. From the record:

“Q You found Ricky Joe and who?
“A Steve O’Shields.
“Q What, if anything, did the defendant have on his person when you found him?
“A Yes, sir, in his left rear pocket he had a screwdriver and a pair of wire pliers. In his right hip pocket he had a kitchen knife, and he was sitting on a tire tool.
“Q Was he sitting or was he lying?
“A He was lying. His feet were stretch-out. He was more leaning over to the corner. The tire tool was in the corner.”

On cross-examination Officer Garmany testified that during the course of his investigation that evening, that they discovered two broken skylights and a parked truck at the south end of the building near First Street.

Mr. Rex Word testified that he was President of the Word Lumber Company, Inc., on December 17-18, 1975. He stated that his business was located on First Street East in Fort Payne, Alabama. He stated that in response to a call he went to the building shortly after 11 o’clock and in the company of Officers Long and Gar-many, entered the building, and in the lumber department area, after observing two broken skylights, found the appellant and his companion in one corner of the building. He also testified that there was a parked truck underneath one of the broken skylights at the south end of the building. He testified further that within the building in question were lumber, roofing, ce-merit, sheetrock and other building- supplies; that these were in the immediate area where the appellant and his companion were found.

The appellant testified that he was 19 years of age and on the evening of December 17, 1975' in the company of Steve O’Shields, he did go to Word Lumber Company. He testified that prior to going there, he had been in the company of two girls, Ellen Wehunt and Darlene_, and one Larry Eller, and that they had been riding around in the automobile. He testified that Ellen had thrown his hat on top of the building.

From the record:

“Q After you were up there looking for your hat what happened?
“A I went all the way to the front side of the building, and you know they’ve got a tin part on this side and right here it’s solid flat where the wood and everything is. And over there is the store, and I was in the middle part coming across. I went to the end of it. When I got to the end of it, I looked and I didn’t find it, so I come back across, all the way back across the building. And then I was coming back across the building and there was a skylight there, and I stepped into it and fell through.
“Q After you fell through where did you land?
“A I landed in the back of a flat bed truck.
“Q What, if anything, did you do at that time?
“A I hollered at Steve O’Shields.
“Q Steve was outside ?
“A Yeah, he was on the back end over on the other side of the building, on top.
“Q Did he come over to help you ?
“A Yes sir, he come down and swung down; in the building and dropped.
“Q He came through the same skylight you came through ?
“A Yes.
“Q Did he help you up then ?
“A Yes.
“Q What did you do at that point ?
“A I got up and got out of the truck and went straight to the back door. It was aluminum or tin, I don’t know. And it had a screw, a long screw through the door, and it had a tab on it. And I tried to unscrew that tab, but I couldn’t. So then I went back and went up to the big sliding door in front of the building, and it had a padlock on it which I couldn’t get the padlock off. So then I went back to the truck, and I opened the door and looked in the floor board looking around in it, and there was some, there was a wrench in there and a screwdriver, so I got it. Then there was only one more door and it was the only one that was left, and it was the one that went inside the building. Then that’s when I got that door open. Then after I got the door open I noticed a burglary alarm went off. It was connected to the right-hand side of the door going in. Then when I knowed that we just went over there and sat down. Then about 15 or 20 minutes, something like that, they finally come. They was in. They searched all around the inside of the building and then come in. We was sitting there and he come in and told us we were under arrest and all that.
“Q Did you make any offer or attempt to run or get away or escape ?
“A No.”

On cross-examination the appellant stated that he had attempted to open one of the sliding doors but couldn’t but that he had partly jerked a door open.

From the record:

“Q What did you do after you pried the door open ?
“A Sat down.
“Q Sat down there at the door ?
“A Yes, because — no, not beside the door. When I got the door open the burglar alarm went off.
“Q How do you know it went off ? Did you hear it ?
“A I knowed it was a burglar alarm, and I figured it went off.”

The appellant conceded that he and O’Shields were inside the building when arrested by the police officers.

Steve O’Shields, after being'' advised of his rights not to testify as he was a co-defendant, took the stand and testified that on the evening in question he and Rickey Joe Thomas had been riding around in an automobile with two girls, that later that evening they rode by Word Lumber Company and the appellant said, “Let’s go in there.” He stated that the appellant led him onto the roof and that they went through a window in the roof. He stated that the appellant knocked it out, that after getting through the skylight they tried to open a back door but that it tripped the alarm system. He said that Rickey Joe Thomas had a screwdriver and had used this to work on the door when the alarm went off. He stated that they had hid in a corner of the building and were arrested by the officers.

On cross-examination he testified that neither had taken anything from Word Lumber Company that evening.

I

In Eason v. State, 48 Ala.App. 471, 265 So.2d 913, we find:

“The applicable elements of second degree burglary are: (1) breaking, (2) entering, (3) with intent to steal or to commit a felony. The evidence, without contradiction, shows the first two ingredients. Behel v. State, 40 Ala.App. 689, 122 So.2d 537. From Behel, this Court per Cates, J., stated:
‘The jury may reasonably infer intent to steal from the mere presence of the accused in the shop in circumstances showing a breaking and entering in the night.’ ” (cases cited)

Clearly, the State here presented a prima facie case and the “so called need for the defendant’s explaining his presence,” under the circumstances, presents a question for the jury. Eason v. State, supra; Hare v. State, 52 Ala.App. 279, 291 So.2d 371.

II

Appellant next contends that this cause should be reversed as the defendant may not be convicted upon the uncorroborated testimony of an accomplice, Title 15, Section 307, Code of Alabama 1940. The record is not entirely clear that O’Shields was an accomplice, however conceding him to be such for, the sake of argument, there is ample other testimony from the investigating officers, and from Mr. Word, to support the conviction in question. Sorrell v. State, 249 Ala. 292, 31 So.2d 82; Skumro v. State, 234 Ala. 4, 170 So. 776; Wyatt v. State, 51 Ala.App. 226, 283 So.2d 675; Bridges and Rogers v. State, 52 Ala.App. 546, 295 So.2d 266.

We have carefully examined this record and find no error therein. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO, and BOOKOUT, JJ., concur.

CATES, P. J., not sitting.


author: BOOKOUT, Judge.

text:
    Lawrence BALL, Jr., alias v. STATE.
    7 Div. 418.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Jim Goodwyn, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Kidnapping; sentence, two years imprisonment.

Barry Robinson testified that on the night of February 25, 1975, he and a friend, Walter Betz, were driving home after having taken their girl friends home after a date. While traveling on Tuscaloosa Avenue in Gadsden, around 11:00 P.M., Robinson saw the appellant, Lawrence Ball, Jr., standing in the middle of the street waving his arms. From the record:

“A. I pulled over to stop and help him I thought it was somebody I knew that needed some help.
‡ ifc # ‡ ‡ %
“A. He came and jumped in the car and said, ‘Get me out of here.’ I said, ‘Look, I don’t know what you are talking about.’ And he said, ‘Get me out of here.’ ‘Look, I don’t want to get involved in this stuff, I don’t know what is happening here. What are you doing.’ At this time another man came running up, J. D. Williams, with two bricks, one in each hand.
* * * * * *
“Q. Williams said he wanted the man—
“A. He said to let him out, ‘Put him out, I want him.’ And I said, ‘Look, I don’t know what yall are fighting about; I don’t know what is going on.’
“Q. Then what happened ?
"A. Then, Lawrence Ball said, ‘Get out of here or I will set you afire.’ I didn’t know what he was talking about. I just heard ‘fire,’ and I looked at him. He said, ‘Get out of here, I will set you afire.’ He poured gas on my right arm and it dripped down on my shirt. And then, he struck a match. And right as he struck the match I took off because I knew what he had said then.
“Q. All right. Now, you are positive it was gasoline that he poured on you ?
“A. It was either gasoline or kerosene, something along those lines.”
* * *
“Q. Did Williams do anything at that point ?
“A. He threw the brick through the window. As soon as I hit the gas pedal he threw the brick.
% if: Hí ‡ ‡
“A. I kept the gas pedal on the floor, and as we were driving off I heard another brick hit the back of the car, which is the second brick. It hit the back of my mother’s car; and still has got a tear in the vinyl roof.”

Robinson stated that when he stopped the car for the appellant, Betz slid over in the front seat to make room, and appellant got in the car. He said the appellant had a soft drink bottle in his hand from which he poured the gasoline. Robinson stated that he drove the car a short distance and then stated that he was going to the police station. He said the appellant offered to tell him the name of the man who threw the bricks if he would not take the appellant to the police station. Appellant told him the man’s name was J. D. Williams, Jr., and when the witness stopped at a traffic light, the appellant got out of the car and left. Robinson then drove to the police station and reported the incident.

On cross-examination Robinson stated that the appellant did not attempt to throw the match on him. He stated that the appellant never told him where to drive, only to “get me out of here.”

Walter Betz, Jr., testified to essentially the same details as Barry Robinson.

J. D. Williams testified that on the night in question, prior to the incident charged in the indictment, he along with the appellant and some others were playing cards at a friend’s house. Williams said he dropped a $5.00 bill, and the appellant picked it up and did not return it to him. Some words were exchanged and a confrontation between the appellant and Williams arose. Once outside the house, Williams said he saw the appellant coming from the direction of a gas station, carrying two soft drink bottles. Williams’ testimony in part is as follows:

“A. Well, he started towards me. All right, he crossed the street, and I was going to run up on him with the two bricks I had. And he told me if I come up on him he was going to throw some gas on me.”

Williams said the appellant was carrying two bottles, one of which had something in it, but the other was broken. He said the appellant flagged a car down and got in it. Further from the record:

“A. Well, I told the owner of the car to let him out, if not, I was going to break his window.
“Q. All right, what happened?
“A. Well, he didn’t want to get out, and the guy didn’t want to put him out. So, I just broke the window, and left.”

On cross-examination, Williams said he could see inside the car very clearly the entire time he was talking to the occupants and until it drove away. He did not see the appellant pour any gasoline on Barry Robinson, nor did he see him strike any matches inside the car. Williams did not know what was in the bottle which appellant had in his hand.

At the end of the State’s evidence, counsel for appellant moved to exclude the State’s evidence. After lengthy argument, the trial court overruled the motion, and the defense presented its case.

Robert Wayne Loller testified that the appellant and J. D. Williams were at his house on the night in question, that they got into an argument over a hat, and he asked them both to leave. He said Williams left first, and the appellant left about five minutes later. He said the appellant took two drink bottles with him when he left the house, and that they were both empty. He also stated there were two service stations in the neighborhood, but neither of them were open at that time of night, and that he did not have any gasoline around his house.

The appellant testified in his own behalf. He stated that when he left Loller’s house, he carried two drink bottles with him. He said the bottles were empty, and he never had gasoline in them on that night. When he entered Robinson’s car, he only had one bottle with him. He denied throwing any gasoline on Robinson or threatening him. Appellant stated that Robinson got excited when Williams threw the bricks at his car and drove off in a hurry at that time. On cross-examination, he explained that he had the bottles for his defense because he thought that J. D. Williams and Williams’ nephew would be waiting on him outside.

Willie Frank Kimbell was called as a rebuttal witness by the State. He stated that on the night in question, the appellant and J. D. Williams got into a fight over a $5.00 bill, which occurred in the bedroom of Robert Loller’s home. After the fight, he said the appellant left taking a drink bottle with him. The witness stated that the drink bottle had been sitting in the hallway of the house and that he could smell gasoline in the bottle. On cross-examination, he was asked if the State had not promised to help him on a pending case against him if he would testify against the appellant. The witness stated that his case was mentioned to him, and he was told that his assistance in the instant case would be taken into consideration, but that no direct promise had been made to him by the prosecution.

J. D. Williams was recalled by the defense and stated that Kimbell was not present at Loller’s home on the night in question. Loller was then recalled by the defense, and testified that Kimbell positively was not at his house on the night in question.

Appellant submitted a number of written requested charges which were refused by the trial judge, among which was an affirmative charge and an affirmative charge with hypothesis.

The original indictment against the appellant contained a count charging kidnapping and a second count charging assault with intent to maim. A demurrer was sustained as to the charge of assault with intent to maim, but was overruled as to the kidnapping charge. The sole question before this Court therefore relates to the charge of kidnapping. The appellant contends that the facts of this case did not bring it within the meaning of Title 14, § 6, Code of Alabama 1940, which reads as follows :

“Any person who forcibly or unlawfully confines, inveigles, or entices away another, with intent to cause him to be secretly confined, or imprisoned against his will, or to be sent out of the state against his will, shall, on conviction, be imprisoned in the penitentiary for not less than two nor more than ten years.”

The sufficiency of the evidence is properly before us via appellant’s motion to exclude the State’s evidence and his requests for the affirmative charge and the affirmative charge with hypothesis.

The two leading cases in Alabama concerning the kidnapping statute in question are Clayton v. State, 23 Ala.App. 150, 123 So. 250 (1929), cert. denied 220 Ala. 39, 123 So. 236, and Doss v. State, 23 Ala.App. 168, 123 So. 237 (1929), cert. denied 220 Ala. 30, 123 So. 231. Those are companion cases arising out of the same fact situation and both give a detailed construction of § 3189, Code of Alabama 1923, which is the identical section recodified in the 1940 Code as Title 14, § 6.

I

The indictment in the instant case follows the Code form and is therefore sufficient per Title 15, § 259, Code of Alabama 1940. This is so even though the form omits to aver some of the material facts which the State must prove in order to secure a conviction. Doss, opinion denying certiorari, 220 Ala. 30, 123 So. 231, supra; Lashley v. State, 236 Ala. 28, 180 So. 724 (1938). That is, the Code form indictment leaves out the averment (shown in italics below) that the confinement be, “with intent to cause him to be secretly confined, or imprisoned . . .,” as specified in Title 14, § 6, supra.

Count One of the indictment in pertinent part states:

“ . . . Lawrence Ball . . . unlawfully or forcibly inveigled, enticed, or confined Barry Robinson, with intent to cause said Barry Robinson, to be imprisoned against his will, . . . ”

Pursuant to Doss, supra, proof limited to the allegation of a mere imprisonment as alleged in the indictment in insufficient to make out a case of kidnapping pursuant to Title 14, § 6. The Supreme Court and the Court of Appeals in the Doss opinions go into great detail setting forth the reasoning for this.

We will not restate here the lengthy reasoning set out in Doss and Clayton as such is well expressed in those opinions and is self-explanatory. It is sim-' ply sufficient to reiterate that, regardless of the wording of the form indictment, the confinement or imprisonment must be proved at trial to have been done with the intent to cause the victim to be secretly confined or imprisoned, else it is only a false imprisonment.

The facts in this case do not establish the offense of kidnapping. The appellant was fleeing from an assailant. His order to the driver to, “get me out of here,” even though coupled with a threat, does not evidence an intent to secretly confine or imprison the driver of the vehicle. The appellant in fact asked the driver to let him out and not take him to the police station. He never instructed the driver to go anywhere other than to leave their present location. That demand was clearly for the purpose of getting the appellant out of harm’s way, else he was likely to have his head bashed in by a brick. These facts are not such that a jury could infer that appellant’s intent was to secretly confine the driver. This is especially so where the jury was never instructed that such intent is a key element in reaching a finding of guilt.

The motion to exclude the State’s evidence should have been granted.

II

The trial court’s charge to the jury concerning the charge of kidnapping was as follows:

“ . . . Under count one it is charged that this Defendant unlawfully or forcibly inveigled, enticed or confined Barry Robinson with the intent to cause said Barry Robinson to be imprisoned against his will. Now then, there is not anything there that needs any particular definition for you. That is what the statute says, that if someone unlawfully or forcibly inveigled, enticed or confined a person with the intent to cause him to' be imprisoned against his will, that constitutes the offense as charged in this-case. So, that is what you have got to decide from the evidence. Was Barry Robinson inveigled, or enticed or confined? If he was not, then, this man is not guilty of this offense. Was there an intent on the part of this Defendant to imprison Barry Robinson against his will? If there was not, then, this Defendant is not guilty of this offense that is charged in count one of this indictment.” (Emphasis supplied)

The trial court made no mention to the jury of the necessary elements of the kidnapping statute; that the confinement or imprisonment had to be with the intent to secretly confine or imprison the victim. The appellant requested the following written charge concerning that element, which was refused:

“I charge you that before you can find the defendant guilty of kidnaping you must find that the defendant had the intent to secretly confine or secretly imprison Barry Robinson.”

According to the trial court’s oral charge, the jury was erroneously instructed that the statute merely forbids imprisonment against the will of the victim and that the only intent necessary on the part of the appellant was to imprison the victim against his will.

Such instruction was a misconstruction of the kidnapping statute by the trial judge. Such would not be subject to review, where the appellant announced, “satisfied” at the end of the oral charge, without bringing the omitted matter to the trial court’s attention by way of a written requested charge.

The above requested charge, not being covered in any way by the trial court’s oral charge, should have been given. Failure to do so left the jury with a complete misunderstanding as to which elements constitute the offense of kidnapping. Such constitutes reversible error.

REVERSED AND REMANDED.

TYSON, HARRIS and DeCARLO, JJ., concur.

CATES, P. J., not sitting.


text:
    Walter Temple PENICK v. STATE.
    8 Div. 723.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Joe F. Gilliland, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the robbery of Mr. and Mrs. Grady Oliver and their grandson, Kenny Oliver, by taking three pistols, four shotguns and one rifle, together with two watches and over $400 in currency, for a combined value of over $2,000 “by putting them in fear.” The jury found the appellant “guilty of robbery” and fixed punishment at 25 years imprisonment. The appellant was then sentenced in accordance with this verdict.

Rosa Lee Oliver testified that on January 3, 1975 she and her husband Grady Oliver lived at Route 7, west of Russell-ville, in Franklin County, Alabama. They had lived at this address for more than 13 years. She testified that early that morning there was a knock on the door and three men who identified themselves as fire alarm repairmen were admitted to work on the system in the attic. She stated she then went to the bedroom to awaken her husband and that her husband got up and dressed and when she walked back into the living room, the appellant had a pistol which he pointed at her and told her to be seated on the couch. She stated that he began taping her ankles and that in a few minutes when her husband entered the living room, the gun was then pointed at him and he too was directed to sit beside her where he too was taped up. The men then asked if anyone else was in the house and upon being told that their grandson, Kenny Oliver, was there one of the men went back and woke him and marched him into the living room dressed only in his underclothes where he too was taped up. The three men then began going through the house, opening drawers and searching for valuables.

About 40 or 45 minutes later Mrs. Oliver stated that her daughter-in-law Sandra Oliver, the wife of Grady Oliver, Jr., came by the house looking for mail and she heard her call from the carport door. As her daughter-in-law called, she answered to come in and the men then pointed pistols at her and also tied her up with tape and strips which they cut from some old overalls. Mrs. Oliver stated that her daughter-in-law started to faint and that one of the men got a cold cloth which he placed on her daughter-in-law’s forehead.

She stated that her grandson was permitted to go to the bathroom one time and get her husband some heart medicine.

Mrs. Oliver’s testimony was corroborated by her husband Grady Oliver, Sr., who testified to the events which occurred at their home on the morning of January 3, 197S. He testified that two of the men were wearing green coveralls and the third had on a sports coat. He testified that they took his billfold which contained a Phillips 66 credit card with his name on it and he subsequently identified this card by its number at trial.

Mr. Oliver also identified a .32 caliber Smith and Wesson pistol which was taken as well as a .38 caliber pistol and some four shotguns and one rifle which were removed from the premises. He identified the serial number on the .38 as D311604 and on the .32 pistol as H37532. In addition Mr. Oliver stated that two watches and over $115 were taken from his billfold.

Kenny Oliver corroborated the testimony of his grandparents about being awakened on the morning of January 3, 1975, by a man dressed in green coveralls with a shotgun in his hand. He testified he was taken into the living room with only his underclothes on, where he was taped up with his grandparents but on one occasion was permitted to get some nitroglycerin tablets. He testified he had about $115 which he had given to his grandmother to keep and which was taken from her purse.

As with each of his grandparents he made a positive in-court identification of the appellant.

Sandra Oliver testified that she was married to Grady Oliver, Jr., and lived not far from her in-laws. She testified that shortly before 10 o’clock on the morning of January 3, 1975, she drove by their home and called to them and that her mother-in-law called to her. She stated that as she walked in, the appellant pointed a pistol at her and told her to be seated and that she was then tied up from strips cut from overalls. She made a positive in-court identification of the appellant as being the man who tied her up. She testified that some money was taken from her in-laws and some guns.

Thomas Holt, Jack Ledwell, Charlie Stoles, and Captain Keith Smith all testified that they were police officers of the City of Scottsboro, Alabama. Each testified that on January 19, 1975, they were called to come to Jack’s Drive-in Restaurant on Willow Street in Scottsboro. They testified that shortly after 10:00 p. m., they were investigating a homicide, and that the appellant identified a companion who had been wounded. A .32 caliber pistol, number H37532, a box containing another pistol and a Phillips 66 credit card number 666601815266 with the name Grady Oliver were found in a 1968 Pontiac automobile. The vehicle was in the possession of the appellant who turned over the keys to the investigating officers. Photographs of the vehicle and of the trunk of the vehicle showing the credit card and pistol box were placed in evidence, together with the .32 caliber pistol, number H37532.

At the close of the State’s case, the appellant made a motion for a directed verdict which was overruled, and appellant presented no evidence in his behalf.

I

The appellant contends that the admission of the Phillips 66 credit card, the .32 caliber pistol and photographs of the Pontiac automobile were reversible error.

We have carefully examined the testimony of each Scottsboro police officer and find that nowhere was there in the record an objection to the various items identified by the officers which were admitted in evidence. Clearly, therefore, these matters are not before us for review. An objection to evidence must be made when such evidence is offered. Walker v. Ala., 265 Ala. 233, 90 So.2d 221; Lucky v. State, 50 Ala.App. 324, 278 So.2d 772; Jones v. State, 52 Ala.App. 184, 290 So.2d 251.

Moreover, the State here established that the Phillips 66 card was taken by the appellant from the possession of Mr. Oliver, Sr., on January 3, 1975. This was found in the trunk of the Pontiac. The appellant turned over the keys to this vehicle in Scottsboro to the officers though he claimed the vehicle belonged to his companion. Under this testimony we are of the opinion that these items were properly admitted in evidence. Murphy v. State, 52 Ala.App. 490, 294 So.2d 457, cert. denied 292 Ala. 743, 294 So.2d 462. Bobo v. State 56 Ala.App. 622, 324 So.2d 336; Gross v. State, 56 Ala.App. 709, 325 So.2d 216, cert. denied 295 Ala.-, 325 So.2d 218.

II

The appellant argues that the identification of the appellant in court by Mr. and Mrs. Oliver, Kenny Oliver, and Sandra Oliver was unduly suggestive. We have carefully examined each of these witnesses’ testimony and find that each made a positive in-court identification of the appellant.

Mr. and Mrs. Oliver, Sr., and Kenny viewed the appellant for more than an hour on the morning of January 3, 1975, at their home. Each stated that the basis of his identification in court was viewing of the appellant “out at my house on January 3, 1975.”

We find nothing improper in the identification process nor does this record disclose any unduly suggestive circumstance. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

We have carefully considered this record and find same to be free from error. The judgment is therefore due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ-, concur.

CATES, P. J., not sitting.


author: PER CURIAM.

text:
    James Lee BONE v. STATE.
    3 Div. 474.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.

      Chestnut, Sanders & Sanders, Selma, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   PER CURIAM.

The appellant, James Lee Bone, was indicted on a charge of first degree murder, convicted of first degree manslaughter, and sentenced to ten years in the penitentiary.

There is no conflict in the testimony and evidence that on the 17th day of February, 1975 appellant shot one Joe Cecil Betton and as a result thereof Betton died.

At the trial in the lower court the State presented evidence of three witnesses sufficient to sustain a conviction of manslaughter in the first degree. The appellant presented evidence of four witnesses, including himself, sufficient to sustain self defense.

The appellant was represented by counsel at all stages of this proceeding in the trial court, and is now represented by counsel. This appeal was submitted to this Court on briefs. In appellant’s brief he com plains of one adverse ruling by the trial court to reverse his conviction.

One Ernest Jackson, an uncle of the deceased, and a witness called by the State, was the first eye witness to testify at the beginning of the trial. The trial court allowed unlimited cross-examination, and recross-examination, by appellant, and no mention of a Voo Doo man, or Snake Doctor, or a discussion of witness’ testimony with other witnesses was made, except that witness Jackson had made a statement to the sheriff.

One Henry James Bones, an uncle of appellant, was the second eye witness called by the State. The trial court allowed unlimited cross-examination by appellant, and no mention of a Voo Doo man, Snake Doctor, or a discussion of witness’ testimony with other witnesses was made. After the appellant had rested his defense, the State called Henry James Bones as a rebuttal witness. At this time there was no rebuttal evidence offered by the State about a Voo Doo man, Snake Doctor, or a discussion of witness’ testimony with other witnesses.

During recross-examination of rebuttal witness, Henry James Bones, by appellant, we find:

“Q. Mr. Bones, have you discussed this case with Mr. Jackson?
A. No, sir, I haven’t.
Q. Never have?
A. Sure haven’t.
Q. Did you discuss it with Mr. Bobby Powell before his disappearance?
A. No, sir, he disappeared, and I didn’t even know he was gone.
Q. Did you discuss it with this lady here?
A. No, sir.
Q. Mr. Bones, do you know anything about voo doo ?
BY MR. BRYAN: Your Honor, now, we object to that.
BY THE COURT: Sustained.
BY MR. CHESTNUT: May we approach the bench, Your Honor?
BY THE COURT: Yes.
(Thereupon, the District
(Attorney, the County
(Solicitor, Attorney’s
(for the Defendant and
(the Court Reporter
(approached the bench,
(and the following
(proceedings were held
(outside of the hearing
(of the Jury, and the
(proceedings were had as
(follows:
BY MR. CHESTNUT: Your Honor, we have information that Mr. Jackson and these other people have carried him to some snake doctor ?
BY THE COURT: Mr. Chestnut, I don’t think this is admissible.
BY MR. CHESTNUT: We are trying to impeach the credibility of his testimony.
BY THE COURT: No, sir.
BY MR. CHESTNUT: May we object on the grounds that we have information and we offer to prove that this witness, in the company of other witnesses for the prosecution, have visited with some voo doo man or snake doctor, and at that time and at that place his testimony was discussed and what he should say and should not say.
BY THE COURT: Overruled.
BY MR. CHESTNUT: Alright.
(Thereupon, the District
(Attorney, the County
(Solicitor, Attorney’s
(for the Defendant and
(the Court Reporter
(returned to their
(respective places and
(the following proceedings
(were held within the
(hearing of the Jury, and
(proceedings were had as
(follows:”

In Pouncey v. State, 24 Ala.App. 326, 136 So. 741, certiorari denied, 223 Ala. 431, 136 So. 743, this Court quoted, with approval, from Allsup v. State,- 15 Ala.App. 121, 72 So. 599, at page 600.

“The scope of the cross-examination of witnesses as to irrelevant matters to test the accuracy of their testimony or show bias is a matter largely within the enlightened discretion of the trial court, and will not be interfered with unless abused.”

This rule is again stated in the case of Benefield v. State, 44 Ala.App. 339, 208 So. 2d 449. In the case of Thomas F. Nelson et al. v. James W. Johnson, 264 Ala. 422, 88 So.2d 358, the Supreme Court of Alabama said:

“The extent of cross-examination on irrelevant facts, for the purpose of testing bias or credibility of the witness’ testimony is a matter resting largely in the discretion of the trial court, and his ruling will not be disturbed unless it appears that he has abused his discretion to the prejudice of the complaining party.”

In American Jurisprudence, Vol. 58, at page 315, it is stated:

“Section 563. Recross-examination.— It is proper to limit the recross-examination of a witness who has been examined and fully cross-examined, and subsequently recalled and re-examined in chief, to the matters testified to by the witness upon such re-examination. And it is not reversible error to refuse to permit questions to be put to a witness on recross-examination, where no excuse is given why they were not asked upon the cross-examination, where the witness has been finished with once and recalled, and the party offering him has finished with him.”

The trial court having allowed unlimited cross-examination by the appellant of witness Henry James Bones, did not, in our judgment, abuse its discretion, to the prejudice of the appellant, in sustaining the State’s objection to the question, “Mr. Bones, do you know anything about Voo Doo?”

There being no other rulings of the trial court complained of in appellant’s brief we have examined carefully the entire record, including:

(a) The Circuit Clerk’s certificate;
(b) The Court Reporter’s certificate;
(c) Statement of the organization of the court;
(d) The indictment;
(e) The judgment entry; and
(f) The evidence and the actions of the trial judge.

We find from such examination that there is no error in the record prejudicial to the appellant.

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

Affirmed.

All the Judges concur.


text:
    STATE of Alabama ex rel. William J. BAXLEY et al. v. David R. ARCHER, Circuit Judge, et al. In re STATE of Alabama, Plaintiff, v. Lawrence Glenn HILL, Defendant.
    8 Div. 864.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.

      William J. Baxley, Atty. Gen., Fred B. Simpson, Dist. Atty., 23rd Judicial Circuit, Huntsville, for petitioner, the State.
    David R. Archer, Circuit Judge, pro se, respondent.
    Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for Lawrence Glenn Hill, respondent.
   TYSON, Judge.

This is an original application for a writ of mandamus or a writ of prohibition.

Honorable David R. Archer, one of the Judges of the Twenty-Third Judicial Circuit of Alabama did, following a hearing, enter an order dated April 27, 1976, directing the District Attorney of Madison County to make available to the defendant, “transcripts of Grand Jury testimony, toxicology reports, and photographs,” pursuant to petition of the respondent, appellee here, Lawrence Glenn Hill. This proceeding arose following the first degree murder indictment of Hill by the Grand Jury of Madison County arising out of an automobile accident.

The respondent Hill had also filed in circuit court a notice to take the depositions of some thirty to thirty-five State witnesses, all of whom allegedly had some information as to the activities of one David Lee, the driver of the other vehicle prior to the accident out of which the indictment arose. In the trial court’s order of-April 27, 1976, the court decreed that the interrogatories and deposition of David Lee be taken pursuant to the provisions of Title 15, § 297, Code of Alabama 1940, and disallowed the taking of any depositions pursuant to interrogatories filed on any other witness.

Also in its order and decree of April 27, 1976, the circuit court directed that the State of Alabama, through the District Attorney’s office, not exercise the right to subpoena witnesses pursuant to the provisions of Title 13, § 229(2)(b), Code of Alabama 1940, as amended 1951.

Following the filing of the petition in this Court and upon preliminary examination thereof, this Court issued a preliminary “Order Directing Answer,” pursuant to the provisions of Rule 21(b), Alabama Rules of Appellate Procedure, adopted June 17, 1975, by the Supreme Court of Alabama. Both the petitioner and the respondent have filed briefs, and the respondent has duly filed an answer, and this cause was argued orally before this Court and taken under submission at that time.

Upon consideration of this cause and of the several allegations made, we are of the opinion that the District Attorney’s petition is due to be granted in part and denied in part as follows:

1. Insofar as the order of the trial court of April 27, 1976, directs the District Attorney to turn over any transcripts of Grand Jury testimony, tapes of Grand Jury testimony, or any other proceedings before the Grand Jury in Madison County, Alabama, in this cause, such order is hereby overruled; as the proceedings before the Grand Jury of Madison County, Alabama, are not subject to pretrial disclosure. Thigpen v. State, 49 Ala.App. 233, 270 So. 2d 666, State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779, and authorities cited therein.

2. That portion of the order of the trial court which directs that the respondent-appellee, Lawrence Glenn Hill, shall have the right pursuant to interrogatories to take the deposition of David Lee, in accordance with the provisions of Title 15, § 297, Code of Alabama 1940, is hereby ratified and affirmed. This Court is of the opinion that a proper showing was made to the trial court as to the deposition of this witness, but as to any and all other witnesses, we are of the opinion that the trial court correctly directed that no other depositions be taken in this cause, and this portion of the trial court’s order is hereby affirmed.

3. There has been no showing in this cause that the office of the District Attorney was preparing to use its subpoena power under the provisions of Title 13, § 229(2) (b), Code of Alabama 1940, as amended 1951, nor has there been “a threatened use of such power,” after indictment in this cause. We are, therefore, of the opinion that this aspect of the trial court’s order and judgment is due to be overruled and set aside, and we do so hereby direct.

The peremptory writ of mandamus will issue, commanding the respondent judge to set aside those aspects of his order, judgment and decree of April 27, 1976, which are inconsistent with this opinion. The peremptory writ is hereby

GRANTED IN PART; DENIED IN PART.

CATES, P. J., and BOOKOUT, J., concur.

HARRIS and DeCARLO, JJ., concur as to Parts 1 and 3, but dissent as to Part 2.


author: HARRIS, Judge.

text:
    Sidney MAY v. STATE.
    1 Div. 654.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Walter L. Allen, Montgomery, for appellant.

      William J. Baxley, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of grand larceny and sentenced to eight years in the penitentiary. Prior to arraignment he was found to be indigent and counsel was appointed to represent him and he pleaded not guilty. After conviction he gave notice of appeal but did not request that his sentence be suspended pending appeal. At the time sentence was imposed, it was made known to the Court that appellant had been in jail four months and 14 days and the Court specifically allowed him credit for this jail time against the eight-year sentence. Appellant was furnished a free transcript, and counsel was appointed to represent him on appeal, but counsel failed to file a brief. This Court appointed counsel to represent appellant on this appeal.

The evidence is in hopeless conflict and only a jury could unscramble the conflicting testimony and arrive at a verdict.

The evidence for the State tended to show that on June 14, 1975, L. B. Lockhart was the owner of a .38 caliber Smith and Wesson pistol of the value of $79.00. He lived alone at 1772 Mobile Terrace, Mobile County, Mobile, Alabama. The pistol was lying on his bed in his home in full view of an open window. A young girl, Barbara Ann Orange, was at Lockhart’s home on the late afternoon of June 14, 1975, and saw appellant at the open window with his hand inside the window. She saw appellant with something in his hand as he ran from the open window. Both Lockhart and Barbara Ann knew appellant as he had been to Lockhart’s home on previous occasions. Barbara Ann ran to Lockhart and told him what she had observed appellant doing and both saw appellant when he fled down the street. Lockhart had seen his pistol on the bed about an hour before appellant was seen at the open window. He reported the theft of his pistol to the Mobile Police Department and gave them the appellant’s name.

The next day Patrolman John Bone of the Mobile Police Department was dispatched to the Amvets Club on Davis Avenue to inquire into a report of a man with a gun. Upon arriving at the club, the officer observed a man, who was later identified as appellant, walking quickly into the club. The officer followed appellant into the club and saw him drop two pistols to the floor of the club. The officer seized the guns and arrested appellant and carried him to police headquarters.

Lockhart went to police headquarters and identified one of these pistols as his.

Appellant testified that although he was in the neighborhood at the time as related by Lockhart and Barbara Ann, he did not steal the pistol. An attempt was made to explain appellant’s possession of the pistol on the day after the crime was committed by claiming that the officer framed him by planting Lockhart’s pistol on him.

Appellant had a long list of felony convictions. It was shown on direct examination by appellant’s own counsel that since the year 1969 appellant had been convicted of grand larceny three times and twice for burglary in the second degree. It was also shown that he had been convicted of carrying a pistol after a crime of violence and assault with a gun.

When the State rested, appellant moved to exclude the State’s evidence and discharge appellant. This motion was overruled and denied.

Conflicting testimony is for the jury and a verdict rendered thereon is conclusive on appeal. Stephenson v. State, 28 Ala.App. 418, 185 So. 910; Eady v. State, 48 Ala.App. 726, 267 So.2d 516.

It is not within the province of the Court of Criminal Appeals to pass judgment on the truthfulness or falsity of con-

flicting evidence. Snipes v. State, 50 Ala. App. 139,277 So.2d 413.

A clear cut issue was presented to the jury as tp the guilt vel non of appellant and the jury resolved that issue against appellant. Where the evidence raises a question of fact for the jury, and such evidence if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the State’s evidence, the refusal to give the affirmative charge and the overruling of a motion for a new trial, does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843.

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except CATES, P. J., not sitting.


text:
    Sammy BECKLEY, alias v. STATE.
    6 Div. 883.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.

      E. Calhoun Wilson, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Receiving and concealing stolen property ; sentence: ten years imprisonment.

The appellant was indicted and convicted of receiving and concealing stolen property. For the purposes of this appeal, the relevant portion of the indictment reads as follows:

“ . . . did buy, receive, conceal or aid in concealing, One (1) silver and black metal footlocker, Three (3) mens black suits, Three (3) pairs of mens shoes, One (1) large wall clock, One (1) small table clock . . . the personal property of George Benderson

There was sufficient evidence presented at trial to convict the appellant of receiving and concealing stolen property in regard to the footlocker. The value of the footlocker was proved to be approximately $50.00. It was sufficient to prove so much of the indictment as to show that the appellant had committed a substantive offense set out therein. Porter v. State, 58 Ala. 66 (1877); Blakeney v. State, 244 Ala. 262, 13 So.2d 430 (1943); Tanner v. State, 37 Ala.App. 256, 66 So.2d 827, reversed on other grounds 259 Ala. 306, 66 So.2d 836 (1953).

I

Evidence was admitted that the appellant was in possession of a plaid bag and black hat which were also stolen from the residence of George Benderson. The appellant contends that it was error to admit the above items as it caused a fatal variance between the pleading and the proof. We do not agree.

Evidence to be competent must tend to prove or disprove issues being litigated. Slagle v. State, 39 Ala.App. 691, 108 So.2d 180 (1959). The plaid bag was found in the trunk of the appellant’s car, alongside the footlocker. The hat was found in the footlocker. The State had the burden of proving the footlocker was the same footlocker which belonged to George Bender-son. Obviously evidence concerning the hat and bag was highly relevant as to the identity of the footlocker.

II

The appellant had previously been convicted of burglary. This fact was brought out at trial. In his closing argument, the State’s prosecutor made two statements concerning the appellant’s prior conviction. The statements were as follows :

“. . .It affects his ability under the law, to tell the truth ....
“But I submit to you he has done it one time, and that he will do it again.”

The appellant objected to each statement, and the trial court promptly sustained the objections. The trial court also admonished the jury to ignore the statements.

The appellant contends the trial court erred in not granting a mistrial as the State’s closing argument was so prejudicial as to be ineradicable by the proper ruling of the trial court. There is no legal standard by which prejudicial qualities of improper remarks of the prosecutor at trial can be gauged, and each case must be determined on its merits. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968). Statements made by the prosecutor in argument to the jury must be viewed as in the heat of debate, and such statements are usually valued by the jury at their true worth and are not expected to become factors in the formation of a verdict. Bullard v. State, 40 Ala.App. 641, 120 So.2d 580 (1960).

We hold that neither of the two statements were so grossly improper and highly prejudicial as to be ineradicable by a proper admonition of the trial court. In addition, the cumulative effect of the two statements did not create an atmosphere of bias and prejudice which would be incapable of eradication by prompt action by the trial court. Scott v. State, 47 Ala.App. 509, 257 So.2d 369 (1972).

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.

CATES, P. J., not sitting.


text:
    Henry MAYS v. STATE.
    3 Div. 553.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Crenshaw & Minor and Edward Cunningham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged Henry Mays with the robbery of Andy McClain by taking $598.62 from his person and by putting him in fear. The jury found the appellant “guilty of robbery as charged” and fixed punishment at 15 years imprisonment. The trial court then set sentence in accordance with this verdict.

The appellant’s motion for new trial was overruled.

Andy McClain testified that he was employed at the Hull Street IGA Store in Montgomery, Alabama on September 3, 1974. He testified that at about 9:45 that morning a little short fellow came in the store and stuck a gun in his side and said, “Let’s go to the back room. I am going to kill you.” McClain indicated that the party marched him to the rear and he noticed that Mr. Pickett was also covered by a companion who also held a gun at his head. McClain stated the party asked him, “Where is the safe?” and to open it, and he replied, “There’s nothing in the safe,” and the party said, “Look again, look again.” He stated the party then asked him, “Well, where is the money?” and McClain replied, “Up front in the registers.”

At this point he observed three people, each with guns, and he marched him to a point near the cash register and McClain was told, “Man, I want money, I want money. I want plenty of money. I want all the money you’ve got or I’m going to kill you.” He testified that two of these men had handkerchiefs tied over their mouths but that he recognized the appellant whom he positively identified in court as being one of the three men in the store with guns that morning. He further testified that the men took the money from the cash register and that he subsequently identified the appellant at a police lineup but that his identification in court was because he was the man he had seen in the store on the morning in question. He described the appellant as wearing a blue jumper jacket with blue jean pants, without a hat but a white handkerchief tied across his mouth.

Steve Pickett testified that he was employed at the Hull Street IGA Store in Montgomery, on September 3, 1974. He testified that a black man came in and stuck a gun in his back and told him “This is a stickup,” as he was getting a coke from the coke machine. He stated that the man hit him twice in the back of the head and told him if he looked, he would shoot him. He could not make a positive identification of the men but did see another man holding a gun on Andy McClain.

Sylvia Graham testified that she entered the IGA Store on Hull Street after taking her children to school on the morning of September 3, 1974. She stated that there were three men in the store with guns drawn and that they told people in the store, “Everybody get on their knees,” and that they took the money from the cash register. She stated that she saw the appellant with a pistol pointed at people in the store that morning and that she thought the appellant was the one who said, “Give me that money, give me all of it,” and then, “Everybody get on their knees.” She stated that she subsequently identified the appellant at a police lineup and made a positive in-court identification of him at trial.

John Roth testified that he walked in the IGA Store on the morning of September 3, 1974 and observed a “hold-up” in progress. He stated as he walked to the cash registers he saw three men with pistols and he heard Andy McClain state that “he didn’t have any more money,” and saw an individual with a nickel-plated revolver pointed on him and a white cloth on his face telling him to get down on his knees. He stated that he was forced to his knees and that his wallet was taken but that he could not identify any of the three robbers.

Vera Spurgeon testified that on September 3, 1974, she had gone to the IGA Store on Hull Street to shop. That as she was looking about, she saw two men with pistols and handkerchiefs covering their faces. She stated she saw the appellant come over to the cash register and that his companion took the money out. She stated that she got a good look at the appellant while he was standing by the door in the store and made a positive in-court identification of him. She stated that the appellant had told her while in the store to lie down on the floor and asked her, “What are you looking at, old woman ?”

At the close of the State’s case the appellant made a motion to dismiss and a motion to exclude, but did not present any testimony at trial.

I

In Tarver v. State, 53 Ala.App. 661, 303 So.2d 161, Judge Harris stated the following:

“The three essential elements of the crime of robbery are: (a) felonious intent, (b) force, or putting in fear as a means of effecting the intent, and (c) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. Douglass v. State, 21 Ala.App. 289, 107 So. 791; Hardis v. State, 28 Ala.App. 524, 189 So. 216; Cobern v. State, 273 Ala. 547, 142 So.2d 869; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382.”

We are of the opinion that the State here presented a prima facie case and the appellant’s motions were properly overruled at trial. Clay v. State, 52 Ala. App. 272, 291 So.2d 364; Tarver v. State, supra.

II

The appellant contends that the evidence showed that the money was taken from the cash registers in the front of the store and the indictment charged the appellant with the robbery of Andy McClain, hence, there is a variance between the pleading and the proof. To sustain a charge of robbery it is not necessary that the stolen property be in the actual physical contact with the person of the victim, but it is sufficient if the property is taken from his presence or personal protection. Cobern v. State, 273 Ala. 547, 142 So.2d 869. Moreover, in an indictment for robbery, ownership of the stolen property is properly laid in the party in possession, either as owner, or bailee, or agent. See Bray v. State, 47 Ala.App. 308, 253 So.2d 531, and authorities therein cited.

It is not necessary that title be in the person robbed. Douglass v. State, 21 Ala.App. 289, 107 So. 791. Bowman v. State, 44 Ala.App. 331, 208 So.2d 241.

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

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ-, concur.

CATES, P. J., not sitting.


text:
    Larry WILLIAMS v. STATE.
    6 Div. 200.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was convicted of rape and the jury fixed his punishment at ten years imprisonment in the penitentiary. The Court sentenced appellant in accordance with the verdict of the jury and ordered that he be given credit for the time he spent in jail awaiting trial. The Court found appellant to be indigent and appointed one of the attorneys with the Public Defenders’ Office to represent him. At arraignment with counsel present appellant pleaded not guilty. After conviction he gave notice of appeal and a free transcript was furnished him. Trial counsel represents him on this appeal.

Appellant made application for probation and the probation officer was ordered to conduct an investigation and file his report. When this report was filed, it revealed that in 1971 appellant was convicted of carnal knowledge and his application for probation was denied.

The evidence for the State is not disputed. Appellant did not testify or offer any evidence in his behalf.

In the early morning hours of June 29, 1975, the victim was alone in an apartment at 1027 Oak Avenue, Apartment Number 10, which she shared with her brother. This was an apartment complex near the campus of the University of Alabama. Her brother was at a party in another apartment complex directly behind the apartment where the victim and her brother lived. Appellant was a friend of her brother and had visited him in the apartment before her brother left for the party. Appellant left this apartment before the victim’s brother left.

After midnight the victim heard a knock on the front door and she asked who was there and a man answered Larry Williams and he wanted to know if her brother was at home and she told him no. She opened the door so that appellant could go out the back door to the apartment where her brother was attending a party. She heard the back door close and thought appellant had left her apartment when suddenly he was standing before her. He told her to take her clothes off and she said, “What for?” and he said, “What the - you think for?” She tried to get to the front door and had it almost opened when appellant grabbed her arm and twisted it behind her and closed the door. She started tussling with him and was screaming at the same time. He told her if she screamed again, he would hit her in the mouth. He turned the television up loud and forced her to the floor and removed her blue jeans and underclothes and had sexual intercourse with her. When he left, she put her blue jeans back on but in her haste to get to her brother she forgot to zip up her blue jeans. When she got to the apartment where her brother was she was crying hysterically and she told him what appellant had done to her, and he discovered her blue jeans were unzipped.

The police were called and she was carried to the emergency room at the Druid City Hospital where she was examined by a doctor on duty. City Detective Adolph Smith talked to her at the hospital before and after she was examined by the doctor.

Appellant could not be located until July 14, 1975, at which time he was arrested and charged with rape. He was given a preliminary hearing at which he was represented by an attorney from the Public Defenders’ Office. He was bound over to the grand jury.

Where there is legal evidence from which the jury can by fair inference find the accused guilty, this Court has no right to disturb the verdict, the weight and probative value of the evidence presented a jury question. Stiles v. State, 55 Ala.App. 374, 315 So.2d 609; Bass v. State, 55 Ala. App. 88, 313 So.2d 208; Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813; Williams v. State, 50 Ala.App. 341, 279 So.2d 145.

A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. In our system of criminal justice we do not travel on the number of witnesses. Smith v. State, 53 Ala.App. 27, 296 So.2d 925; Haggler v. State, 49 Ala.App. 259, 270 So. 2d 690; Gray v. State, 38 Ala.App. 508, 88 So.2d 798.

In a rape prosecution it is not necessary to sustain a conviction that the testimony of the prosecutrix be corroborated, for the jury may convict on her evidence alone, though it may be uncorroborated, if it convinces the jury beyond a reasonable doubt that the accused is guilty. Barnett v. State, 83 Ala. 40, 3 So. 612; White v. State, 37 Ala.App. 448, 70 So.2d 287.

We have carefully searched the record and find no reversible error. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except CATES, P. J., not sitting.