author: BOWEN, Judge.

text:
    Jerry Ray WIGGINS, alias Jerry R. Wiggins, alias Jerry Wiggins v. STATE.
    7 Div. 522.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.

      Myron K. Allenstein, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for burglary in the second degree and was sentenced by the trial court to seven years imprisonment. Appellant’s retained trial counsel has been appointed by the lower court to represent him on this appeal.

The facts in this case are simple although the sufficiency of the evidence is questioned by a request for the affirmative charge.

At approximately 9:35 on Sunday morning, September 26, 1976, the appellant was found inside the home of Louie Hallmark. Two rifles were leaning against the wall next to the front door and a citizen’s band radio base station and a stereo tape player were unplugged and disconnected. The appellant’s automobile was parked in the driveway.

Louie Hallmark had just left his home to preach at his church when the appellant was discovered in his house. He testified that when he left that morning around 9:30, the rifles were in the bedroom and the doors and windows were closed although not locked. The appellant was a distant cousin to Louie and had been in his home before.

Mr. Hallmark’s son, Allen, discovered the appellant in his father’s home. Allen asked the appellant, “What are you doing?” And the appellant replied, “You know”. Allen assumed that the appellant was in the process of stealing the guns.

James Hallmark lived next door to his uncle, Louie Hallmark. The appellant told him that he was coming to his house next and then he was going to Brown’s house. James also took this to mean that the appellant was going to those residences to steal.

While the defense presented no testimony, the appellant’s attorney, through cross examination of the witnesses for the state, attempted to establish the alibi that the appellant had come to Louie Hallmark’s home to get counseling for his drinking problems. James Hallmark and a man named Brown were also preachers and the defense attempted to convince the jury that the appellant was going to go to each of them for counseling.

I

In his opening statement, the prosecutor read the indictment to the jury. The appellant cites this as error because the indictment is not evidence and should not be read to the jury over objection.

The jury must be fairly appraised of the nature of the charges against the accused. While this does not require a reading of the indictment to the jury, the fact that a prosecutor does so is not improper or prejudicial to the appellant especially where the jury is instructed that the indictment is not evidence against the defendant. Wilcutt v. State, 41 Ala.App. 25, 123 So.2d 193, cert. denied, 271 Ala. 315, 123 So.2d 203 (1960). See also Adams v. State, 41 Ala.App. 483, 137 So.2d 769, cert. denied, 273 Ala. 703, 137 So.2d 772 (1962). In view of the fact that it is an accepted practice and is entirely proper for the indictment to go to the jury room with the jury, we can see no error or impropriety in permitting the prosecutor to read the indictment to the jury in his opening remarks. Stinson v. State, 56 Ala. 312, 321 So.2d 277 (1975); Wilson v. State, 52 Ala.App. 680, 296 So.2d 774, cert. denied, 292 Ala. 759, 296 So.2d 778, cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1974).

II

The appellant’s requested affirmative charge was refused by the trial court. The appellant contends this was error because the state failed to prove the essential element of burglary of the intent to steal.

The undisputed evidence presented by the state established the facts that the appellant was discovered in Louie Hallmark’s house within five to ten minutes after Louie left for church; that Louie left the house closed but not locked; that two rifles were leaning against the wall by the front door; that when Louie left for church the rifles were in the bedroom; and that a citizen’s band radio set and a stereo tape player were disconnected and unplugged although they had been ready to “turn on” when Louie left that morning.

The gravamen of the offense of burglary is breaking and entering with the intent to steal or commit a felony. Young v. State, 51 Ala.App. 400, 286 So.2d 76 (1973). It must be conceded that there was a “breaking and entering” in the present casé. The appellant was found in the home of another and the owner swore out a warrant for his arrest. Haynes v. State, 49 Ala.App. 16, 268 So.2d 47 (1972); Norman v. State, 13 Ala.App. 337, 69 So. 362 (1915).

The fact that nothing was missing from the house is immaterial. To constitute burglary, it is not necessary that the theft be actually committed. Houston v. State, 56 Ala.App. 295, 321 So.2d 261 (1975); Creel v. State, 53 Ala.App. 504, 301 So.2d 267 (1974).

Upon a consideration of the evidence in this case, the question of the appellant’s intent is one for the jury. Haynes, supra; Young, supra; Creel, supra; Davis v. State, 54 Ala.App. 115, 305 So.2d 390 (1974).

The evidence supported a conviction for second degree burglary and the appellant’s requested charge was properly refused.

Ill

The appellant also contends that the trial court erred in failing to give the following requested charge.

“The jury must acquit if defendant’s conduct, upon a reasonable hypothesis, is consistent with his innocence.”

This charge has been held to be a proper charge in Gregory v. State, 140 Ala. 16, 37 So. 259 (1903); Howard v. State, 151 Ala. 22, 44 So. 95 (1907); and Overby v. State, 24 Ala.App. 254, 133 So. 915 (1931). However:

“. . . the more recent Appellate Court opinions are committed to the view that the refusal of this charge is not error since such charge is not hypothesized upon the evidence. Foster v. State, 37 Ala.App. 213, 66 So.2d 204, and authorities cited therein.” McWilliams v. State, 52 Ala.App. 487, 489, 294 So.2d 454, 456 (1974).

Upon a due consideration of the entire record in this case as required by law, this case is due to be and is hereby

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex parte Jerry Ray WIGGINS.
    SC 2604.
    Supreme Court of Alabama.
    July 8, 1977.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


text:
    Ernest L. CABBLE v. STATE.
    3 Div. 573.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Rehearing Denied May 24, 1977.

      Michael A. Sundock, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   LEIGH, M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of possessing heroin in violation of the Alabama Uniform Controlled Substances Act, now contained in Code of Alabama, 1971 Cum. Pocket Part, Tit. 22, §§ 258(25)-258(60). His punishment was fixed by the court at twelve years imprisonment in the penitentiary.

Appellant insists on reversible error in three particulars: (1) the severity of the sentence, (2) the overruling by the trial court of defendant’s motion to quash the search warrant, and (3) asserted insufficiency of the evidence to sustain a conviction.

As disposed as we might be to more lenient sentences than are sometimes imposed in “controlled” substances cases, we also are “controlled” by principles of law that prevent the substitution of our own measure of appropriate punishment for those provided by the legislature and imposed by trial courts. To this, however, appellant’s answer is that the imprisonment for twelve years constitutes cruel and unusual punishment, in violation of the Eighth Amendment of the Constitution of the United States and Section 15 of the Constitution of Alabama of 1901. To this, we respond in the language of the opinion in Smith v. United States, 273 F.2d 462, 467-468, (10th Cir. 1959), involving offenses under the “Marijuana and Narcotics Statutes,” resulting in consecutive sentences for a total term of fifty-two years and fines totaling thirty thousand dollars:

“It has been said that if the prescribed penalty appears to be too harsh, ‘the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction.’ Blockburger v. United States, supra [234 U.S. 299, 52 S.Ct. 180, 182, 76 L.Ed. 306]. In Hayes v. United States, 238 F.2d 318, 322, certiorari denied, 353 U.S. 983, 77 S.Ct. 1280, 1 L.Ed.2d 1142, this court said:
“ ‘The fixing of penalties for crimes is a Congressional function, and what constitutes adequate punishment is ordinarily left to the discretion of the trial judge. If the sentence is within the statutory limit, appellate courts will not interfere unless clearly cruel and unusual.’

“The subject, including the applicability of Section 2106. [28 U.S.C.A. § 2106, providing that Federal appellate courts ‘may remand the cause and direct the entry of such appropriate judgment . as may be just under the circumstances’], was considered in United States v. Rosenberg, 2 Cir., 195 F.2d 583, 604, certiorari denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652, 687, where it was stated:

“ ‘ * * * “If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute.” Gurera v. United States, 8 Cir., 40 F.2d 338, 340.’
“In the Gore case [Gore v. U. S., 357 U.S. 386, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405], where the court considered sentences identical to those in the case at bar without mentioning Section 2106, the opinion concluded with this statement:
“ ‘In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, see Radzinowicz, A History of English Criminal Law: The Movement for Reform, 1750-1833, passim, these are peculiarly questions of legislative policy. Equally so are the much mooted problems relating to the power of the judiciary to review sentences. First the English and then the Scottish Courts of Criminal Appeal were given power to revise sentences, the power to increase as well as the power to reduce them. See 7 Edw. VII, c. 23, § 4(3); 16 & 17 Geo. V., c. 15, § 2(4). This Court has no such power.’
“Generally the courts have held that a sentence within the limitations of a valid statute is not ‘cruel and unusual’ punishment. United States v. Rosenberg, supra, and cases cited; Edwards v. United States, 10 Cir., 206 F.2d 855; Hemans v. United States, 6 Cir., 163 F.2d 228, certiorari denied, 332 U.S. 801, 68 S.Ct. 100, 92 L.Ed. 380; United States v. Sorcey, 7 Cir., 151 F.2d 899, certiorari denied, 327 U.S. 794, 66 S.Ct. 821, 90 L.Ed. 1021; Ginsberg v. United States, 5 Cir., 96 F.2d 433; Jackson v. United States, 9 Cir., 102 F. 473.
“This court has used language which might indicate that appellate courts have power to interfere if a sentence is ‘clearly cruel and unusual,’ but it has never done so. Hayes v. United States, supra; Richards v. United States, 10 Cir., 193 F.2d 554, certiorari denied, Krapnick v. U. S., 343 U.S. 930, 72 S.Ct. 764, 96 L.Ed. 1340; Schultz v. Zerbst, 10 Cir., 73 F.2d 668. In Moore v. Aderhold, 10 Cir., 108 F.2d 729, 732, we said: ‘where the sentence imposed is within the limits prescribed by the statute for the offense committed, it ordinarily will not be regarded as cruel and unusual.’ See also Edwards v. United States, supra.”

Reliance is had upon Smith, supra, in the midst of a multitude of other cited cases, for the emphasis supplied portion of the following statement:

“In some jurisdictions it is held that punishment within the limits fixed by statute is not excessive, and ordinarily does not constitute cruel or unusual punishment within the meaning of constitutional restrictions, unless the punishment fixed by the statute is cruel and degrading punishment, not known to the common law . .” 24B C.J.S. Criminal Law § 1984.

The punishment provided by Code of Alabama, 1971 Cum. Pocket Part, § 258(47), for the possession of heroin, as well as for other criminal conduct with reference to it, is not less than two nor more than fifteen years imprisonment and, in addition, there may be a fine not to exceed twenty-five thousand dollars. In a recent case under the Alabama Controlled Substances Act, we continued to apply the principle established in Alabama, without exception, that where a sentence is within statutory limits, appellate courts do not have revisory power as to the discretion of the trial court in fixing the sentence. Moore v. State, 54 Ala.App. 463, 309 So.2d 500. Notwithstanding the necessity for our ruling as we do, we think it should be stated that, although it appears that defendant had never been previously convicted of a felony and that the conviction here was for possession, not for a sale, the amount of heroin involved, valued at approximately twenty-five hundred dollars, speaks for itself as to defendant’s involvement in narcotics and the seriousness of the crime for which he was tried and convicted.

Evidence for the State, as shown by testimony of Detective Richard E. Koerner of the Montgomery Police Department, a narcotics officer, corroborated by Detective Edward H. Munson as to material matters within his knowledge, was that the two officers, accompanied by two other officers, about seven A.M. December 15, 1975, entered Apartment 6-A, 2000 Girard Street, Montgomery, with a warrant to search said premises for heroin and drug paraphernalia. Detective Koerner had obtained the warrant December 11. He had made a detailed affidavit, setting forth that he had been advised by three informants that defendant was in possession of a quantity of heroin and that the informant had observed a quantity of heroin at the apartment searched. In his testimony, Detective Koer-ner said that he knew defendant, had had him under surveillance, though not a continuous surveillance, for about two weeks, and had observed him going to and coming from the particular apartment on several occasions; he had seen defendant there the night before the search was made. He provided the judge who issued the search warrant with information that defendant was known to the witness as a drug abuser in the past and that the witness had been informed by two separate sources that they had seen defendant in possession of heroin and by a third source of information that defendant was selling heroin.

After knocking on the door for a while and receiving no response, the officers forced an entry. Defendant and the woman resident of the apartment were in bed together. On the dresser in the bedroom was a bag of marijuana, in plain view, according to both detectives, and as to which there is no dispute in the evidence. Defendant and the woman were informed that they were under arrest for the possession of marijuana. Defendant had on his trousers while in the bed; he was ordered by Detective Koerner to put his hands on the wall, and Detective Koerner proceeded to “pat his pants down.” There was a bulge in his right pocket, which Detective Koerner entered and “pulled out twenty-two bags of heroin. The heroin was contained in glassine envelopes.

Appellant contends that there was an invalid search and seizure. He sets forth his reasons for such contention as hereinafter considered.

Although the warrant did not contain the name of defendant or the name of the occupier of the apartment, the affidavit upon which the warrant was based named the defendant as the person in possession of the heroin for which the search was made. In general, it is better that a search warrant contain the name of the owner or occupier of the premises to be searched, but there is no constitutional requirement that it do so. Townsend v. United States, 253 F.2d 461, 464 (5th Cir. 1958); Hanger v. United States, 398 F.2d 91 (8th Cir. 1968) (cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Besase, 521 F.2d 1306 (6th Cir. 1975).

In assailing the validity of the search warrant or the search made thereunder, appellant relies upon Haynes v. State, 50 Ala.App. 96, 277 So.2d 372 (1973) and Walker v. State, 49 Ala.App. 741, 275 So.2d 724 (1973), the one holding the search invalid as based upon an affidavit as to possession of property twenty-two days before the affidavit was made and the warrant issued, and the other containing information as to possession of property in such a vague way as to the time that the court said it could have been “anytime in the past.” Appellant does not question the validity of the search warrant on the same time factor basis upon which it was questioned in the cases cited, and indeed it is not subject to such a challenge. Appellant seeks to apply the principle that requires reasonable nearness between the time of the location or possession of property and the time of the issuance of the warrant as the basis for arguing that four days was too great a spread between the issuance of the warrant and the execution thereof. Without attempting to decide that no greater interval of time is permissible in one than in the other, we must conclude that much depends upon the circumstances of each particular case, and that the expiration of a period of four days between the issuance and the execution of the warrant did not vitiate it. During that period the officers were obviously considering both their own duty in the matter and the rights of persons that might be affected by the search. They had the right, and it was their duty, to bide their time reasonably in searching the premises, in order for the search to be successful and at a time that would not impose unnecessary injury to or hardship upon persons affected by the search. Even if the question of any staleness in the execution of the warrant is to be analogized logically with the question of staleness in the issuance of a warrant, upon which appellant seems to insist, the four-day delay did not make the warrant no longer effectual by reason of claimed staleness. Where unlawful activity consists of a course of conduct there is less ground for a claim of staleness than when it consists of an isolated violation of the law. United States v. Harris, 482 F.2d 1115 (3rd Cir. 1973); United States v. Johnson, 461 F.2d 285 (10th Cir. 1972); Schoeneman v. United States, 115 U.S.App.D.C. 110, 317 F.2d 173 (1963). In United States v. Mustone, 469 F.2d 970 (1st Cir. 1970) it was held that a delay of eight days in the issuance of a warrant was not unreasonable.

Appellant also urges that as two of the informers are not shown by the affidavit as being reliable, the warrant based thereon was invalid. The contention overlooks the fact that the affidavit does show that one of the informers was reliable. Moreover, the testimony shows that the af-fiant had personal knowledge of the defendant’s visits to the apartment searched, during the period that he had defendant and the premises under his surveillance, prior to the issuance of the warrant. The validity of the warrant and the search of the premises is supported by Avery v. State, Ala.Cr.App., 336 So.2d 195 (1976), wherein Judge Harris spoke to a similar situation as follows:

“We have carefully considered the affidavit in this case and hold that it meets the tests laid down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Bates v. State, 51 Ala.App. 338, 285 So.2d 501, and Russell v. State, 53 Ala.App. 447, 301 So.2d 214.
“The affidavit states positively that the reliable informer personally saw appellant’s husband in possession of marihuana at the described residence within the past 48 hours, and further the informer had given affiant information recently that proved to be true and correct and upon which convictions had been obtained. In addition to this the affiant had personally observed people coming to and leaving this residence who had the reputation of using marihuana. This affidavit more than meets the ‘two-prong’ test required in Aguilar as to the veracity of the informer and the basis of his knowledge that the drugs were where he said they were.”

The trial court was not in error in overruling defendant’s motion to quash the search warrant.

Appellant questions the sufficiency of the evidence to support this conviction. In doing so, he relies largely upon testimony presented by him and the woman with whom he was in bed when the officers entered the apartment. They both testified that other people had been in the apartment with them for a long time after midnight. It is argued that “it would have been possible for someone to have placed any Heroin allegedly found in Defendant’s possession in his pocket.” Defendant testified that after the others had left at about 4:00 A.M., he attempted to call a cab to go to his home; not being able to get a cab, he went back to the apartment and told Rosalyn that he would stay until 7:00. The evidence of the detectives is that defendant and the woman were lying in the bed, bare from their waists up. It is hardly conceivable that the heroin would have been in a pocket of his trousers for three hours without his knowledge. Furthermore there was testimony by Detective Koerner that defendant “turned to Rosalyn” and said with reference to the heroin, “Don’t say nothing, baby. It’s mine. Don’t say nothing.” The evidence amply sustains the finding that defendant knowingly had heroin in his possession.

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

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Ex parte Earnest L. CABBLE.
    SC 2634.
    Supreme Court of Alabama.
    July 8, 1977.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: HARRIS, Judge.

text:
    Joseph Robert SCHILLACI v. STATE.
    6 Div. 101.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Rehearing Denied May 24, 1977.
    P. Wayne Thorn, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry Y. Hutner, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at 20 years imprisonment in the penitentiary. At arraignment appellant pleaded not guilty in the presence of his court-appointed counsel. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on this appeal.

The evidence presented by the State is undisputed that on June 13, 1974, at approximately 4 o’clock in the morning the Pitt Grill located at 2259 Bessemer Road in Birmingham in Jefferson County, Alabama, was robbed by a lone bandit armed with a shotgun. Appellant did not testify nor did he offer any evidence in his behalf.

A few days after this robbery appellant was arrested and a lineup was conducted on June 20, 1974, and appellant was positively identified by several of the employees of the Pitt Grill.

In an unrelated case appellant was charged with the robbery of Alley Drug Store, 666 Tuscaloosa Avenue, in Birmingham on June 19, 1974. The lineup conducted in the instant case was also applicable to the drug store robbery. The victims of the drug store robbery also positively identified appellant as the robber of that store.

Appellant was released on bond of $10,-000 in each case on July 9, 1974, and was indicted in both robbery cases on August 9, 1974. Thereafter, appellant fled the State of Alabama and went to the State of Kentucky. He was arrested by the federal authorities in Paducah, Kentucky, on federal firearms violations and was given a three to five year sentence. He was serving this sentence in a federal penitentiary in Kentucky and at the same time he was being held as a material witness in a federal case pending in Birmingham, Alabama, in which an attorney was charged with giving a convict a handgun which was used in the commission of some criminal offenses.

Appellant was brought back to Alabama in November, 1974, by federal marshals to testify in the federal case against the attorney. For reasons best known to the federal authorities appellant was kept in the jail in Tuscaloosa, Alabama, and was transported to Birmingham from Tuscaloosa during the trial of this attorney which lasted several days.

After testifying as a Government witness against the attorney appellant was taken directly to Atlanta, Georgia, to serve the sentence that was imposed on him in Kentucky.

In October, 1974, the District Attorney in Jefferson County learned that appellant was in Kentucky in custody of the federal authorities and a conditional forfeiture was taken on the two ten-thousand dollar bonds in the State court. The knowledge that appellant was in Kentucky came to the District Attorney through appellant’s father who talked to an Assistant District Attorney as he was concerned over having to pay the forfeited bonds. The father was told that the forfeitures were conditional only and that now they knew he was in federal custody in Kentucky, and steps would be taken to return him to Alabama to face the robbery charges and the forfeitures would not be made final.

The District Attorney knew that appellant was in custody of the United States Marshals as a key witness in the trial against the attorney in the federal court in Birmingham and that the State could not get custody of him during this period of time. The State had every reason to believe that appellant would be returned to Kentucky to again start serving the sentence that had been imposed on him. The federal authorities did not take appellant back to Kentucky but carried him to Atlanta to complete his federal sentence. This was done without the knowledge of the District Attorney and he lost contact with the appellant and did not learn that he was in the Atlanta prison until the spring of 1975.

On or about May 14, 1975, the District Attorney wrote a letter to the United States Marshal in Birmingham enclosing a certified copy of a writ of habeas corpus ad prosequendum and he also wrote a letter to the Warden of the United States Penitentiary in Atlanta, Georgia, enclosing a certified copy of the indictment and the writ of arrest.

At a hearing on appellant’s motion to dismiss the indictment on the grounds that he had been denied his Constitutional right to a speedy trial appellant testified that he did not communicate with the District Attorney’s Office while he was in the penitentiary in Kentucky or the penitentiary in Atlanta. Appellant further testified at the hearing to dismiss the indictment: “I haven’t filed a motion for a speedy trial up to this point.”

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, the Supreme Court held there are at least four factors to take into consideration in dealing with speedy trial issues. They are: (1) length of delay, (2) the reason for delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. In Barker the Supreme Court held that where the defendant was not seriously prejudiced by more than five years delay between arrest and trial his Sixth Amendment right to a speedy trial was not violated.

In this case Alabama made a good faith attempt to gain custody of appellant after he committed the crime and fled the State and as soon as his whereabouts were known. There was only a few months delay between appellant’s arrest and the date of his trial. Appellant did not assert his right to a speedy trial by his own sworn testimony. He did not show that he was prejudiced in any manner either by murky memories of witnesses in his behalf or, indeed, that he had any witnesses at all whose addresses had become unknown since the date of the crime. It would be charitable to say that appellant simply did not want a trial at all. We hold that under the facts in this case appellant was not denied his Constitutional right to a speedy trial.

For other cases in which this Court has dealt with speedy trial rights see Sellers v. State, 48 Ala.App. 178, 263 So.2d 156; Diamond v. State, 49 Ala.App. 68, 268 So.2d 850; Ex parte Collins, 53 Ala.App. 577, 302 So.2d 551; Broadnax v. State, 54 Ala.App. 546, 310 So.2d 265.

Appellant filed a pretrial motion for change of venue. This motion was based upon the widespread publicity by the news media concerning the federal court trial of a Birmingham attorney above mentioned in which appellant was the key witness for the Government. Appellant’s name was mentioned in these news accounts of that trial. This trial was held and concluded several months before appellant was called to the bar to answer the charge of robbery committed by him in June of 1974. The motion for change of venue was overruled and denied. We hold there was no error committed by the trial court in this regard. Gilliland v. State, 291 Ala. 89, 277 So.2d 901; Mathis v. State, 52 Ala.App. 668, 296 So.2d 755.

In Mathis v. State, supra, this Court held the existence of widespread publicity alone does not indicate that a defendant cannot get a fair trial. “The law focuses on the impartiality of the trial jury.”

In support of appellant’s motion for change of venue he merely attached to his motion copies of the newspapers in reporting the case against the attorney. Counsel for appellant stated that he was going to submit his motion on copies of the newspaper articles and nothing more. The trial court responded that on voir dire examination of the venire he was going to ask each and every one of them if they had ever heard or knew anything about Joseph Robert Schillaci and if there was an affirmative response he was going to take them individually into his chambers and examine them as to what knowledge, if any, they had about the case and that he was going to accord the same right to the State and the defense. Nothing further appears in the record before us and we assume that no one on the venire stated that he or she had ever heard of appellant.

Appellant filed a pretrial motion to suppress the in-court identification of him as the robber based on a claim that the lineup identification was illegal and this fact tainted the in-court identification. Considerable testimony was taken on this issue. The question presented is whether the confrontation for identification purposes was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny appellant due process of law.

The lineup was composed of six white males made up from the jail population. Appellant was number 4 in the lineup. The other men in the lineup were from three to 17 years older than appellant and were two to three and a half inches taller and 21 to 50 pounds lighter. There was a wide variety of different colored clothing worn by the men in the lineup. The appellant disputed this in his testimony. He claimed that all the men in the lineup wore City jail work clothes that consisted of blue denim pants and shirts and that on the front of the shirts appeared the word “jail”. As to the composition of the lineup all the officers and the witnesses who viewed the lineup contradicted the testimony of appellant. The officers denied that the word “jail” was on the shirt of anyone.

Appellant stated that he had on a blue shirt and his pants had a real small blue and white check with flares and a cuff. He denied that he was wearing a white shirt.

Lieutenant James Roy Hipp and Sergeants Patmon and Cousins of the Birmingham Police Department conducted the lineup. Testimony developed that the number 1 man in the lineup had on jail clothes; number 2 was wearing a red and white shirt and blue jeans; number 3 was wearing a yellow and green shirt and brown pants; number 5 was wearing a green shirt and brown pants, and number 6 was wearing a white shirt and brown pants. The witnesses viewing the lineup testified that appellant was wearing a white shirt with brown and blue stripes.

All of the witnesses who viewed the lineup positively identified appellant as the robber of the Pitt Grill at approximately 4:00 a. m. on June 13, 1974. In addition they made a positive in-court identification of appellant as the bandit. At the conclusion of the hearing the Court denied appellant’s motion to suppress. We hold the Court was correct in so ruling. Junior v. State, 47 Ala.App. 518, 257 So.2d 844; McCay v. State, 51 Ala.App. 307, 285 So.2d 117.

Laying, aside the lineup identification this is a clear case of “independent origin.” On the morning of the robbery Vivian Tarrant, Judy Harper, Pat Wiley, Brenda Sue Harbin and an unnamed janitor, all employees, were at work at the Pitt Grill. Vivian Tarrant was at work in the kitchen when appellant entered the back door and put a gun in her back and told her to go out front. Appellant followed Tarrant into the dining room and told everyone that this was a robbery and that he would hurt them if it was necessary. He directed the janitor to keep mopping and for someone to start the music so that it would appear that everything was normal. He ordered the night supervisor, Harbin, to give him all the money out of the cash register and he told Harper to get a sack to put the money in. After the money was put in the sack he walked over to the counter and picked up the sack of money and in doing so, he was within a few feet of the employees of the Grill and they got a clear view of his face. It took seven to ten minutes to complete the robbery and during this period of time the employees never took their eyes off the undisguised robber. After getting the money he ordered all the people in the place to go into the washroom and lie flat on the floor with their faces on the floor. He told them that they must remain on the floor for five minutes and that he had someone on the outside who would take care of them if they moved.

These witnesses testified they would never forget the bandit’s face if they were to see him five years later.

In Hannon v. State, 48 Ala.App. 613, 266 So.2d 825, we held that the in-court identification was not tainted by the lineup. In Hannon the victim of the robbery “eye balled” the robber for five minutes during the robbery. The witnesses in the instant case “eye balled” appellant at close quarters from seven to ten minutes.

Appellant claims that the District Attorney commented on the failure of the appellant to testify. We have carefully reviewed the argument of the District Attorney and found that he made no direct reference to appellant’s failure to take the' witness stand.

The general rule is that statements by the prosecutor to the effect that the State’s evidence is undenied or uncontro-verted are merely indirect references to the defendant’s failure to testify and do not violate the statute. Sellers v. State, 48 Ala.App. 178, 263 So.2d 156; Whistenant v. State, 50 Ala.App. 182, 278 So.2d 183; Gore v. State, 45 Ala.App. 131, 226 So.2d 674; Williams v. State, 43 Ala.App. 343, 190 So.2d 556.

In Young v. State, 283 Ala. 676, 220 So.2d 843, the Supreme Court said:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain 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 new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Joseph Robert SCHILLACI.
    SC 2632.
    Supreme Court of Alabama.
    July 8, 1977.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


text:
    Joseph Robert SCHILLACI v. STATE.
    6 Div. 120.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Rehearing Denied May 24, 1977.
    P. Wayne Thorn, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at imprisonment in the penitentiary for a term of fifteen years. At arraignment appellant pleaded not guilty in the presence of his court-appointed counsel. After being sentenced appellant gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent the appellant on this appeal.

In this case as well as the case of Schillaci v. State, Ala.Cr.App., 347 So.2d 552, this day decided, appellant was a federal prisoner and was brought to Birmingham, Alabama, pursuant to a writ of habeas corpus ad prosequendum and was in the custody of federal marshals to stand trial on two state robbery indictments.

The robbery in the instant case involved the Alley Drug Store located at 666 Tuscaloosa Avenue, Southwest, Birmingham, Jefferson County, Alabama, which occurred between 5:00 and 5:30 a. m. on June 19, 1974. Approximately $1300.00 was taken in this robbery.

When this ease was called for trial on August 5, 1975, before Judge Wallace Gibson, the Court incorporated appellant’s Motion to Dismiss, Motion for Change of Venue, Motion to Dismiss the Indictment, Motion to Suppress the Lineup Identification and the In-Court Identification which were heard previously in both cases before Judge William H. Cole. Judge Cole ruled adversely to appellant on all of these motions.

The rulings of Judge Cole on the above motions were treated at length by this Court in appellant’s case, 6 Div. 101, supra, and everything we said in that case with respect to said motions is adopted by reference and incorporated in this opinion in haec verba, including, but not limited to, the citations of authorities relied upon in affirming that case.

Prior to trial appellant made a motion that Judge Gibson voluntarily disqualify himself on the ground of some past dealings in criminal cases involving appellant to the end there would be no prejudice against appellant in this case. Judge Gibson responded that the name “Schillaci” meant nothing to him and that he did not know anything about the pending robbery case. He declined to withdraw from the ease saying that he was not biased or prejudiced in any way against appellant and that he was going to give the State and the defendant a fair and impartial trial. The record before us shows that appellant was accorded a fair and impartial trial and this was admitted by appellant at the time he was sentenced.

From the record:

“The Court: All right, you have heard the verdict of the jury, Schillaci. Do you have anything to say as to why sentence should not be pronounced against you at this time?
“The Defendant: No, sir, you honor. None whatsoever. It was fair.”

We now turn to the evidence in this case. The evidence presented by the State shows beyond peradventure that the drug store was robbed by a lone bandit with a pistol in the early morning hours of June 19, 1974. Appellant did not testify but offered the testimony of some witnesses in attempting to establish an alibi.

Mrs. Melba Roberts testified that she was employed by Alley’s Drug Store at the time of the robbery and that her hours of employment were from 11:00 at night until 7:00 in the morning. She further testified that between 5:00 and 5:15 on the morning of June 19, 1974, a man came in the drug store and asked her for a package of Kool cigarettes. She gave him the cigarettes, and he paid her 54 cents for the pack and she rang the cash register and put the money in it. At this point the man pulled a pistol and stuck it in her ribs and said, “Let’s go to the back where the man is.” The man kept the pistol on her ribs as they walked to the back of the store.

Mr. Richard Hugh Cleere was the pharmacist on duty. Mr. Cleere and Mrs. Roberts were the only people in the drug store at this time. When Mrs. Roberts and the robber reached the back of the store the man told Mr. Cleere, “I want all your narcotics and all your money, and don’t try anything or she will get it.” Mr. Cleere unlocked a small cabinet in which some money was kept and the bandit ordered Mr. Cleere to get a sack to put the money in. After the money was put in the sack the bandit handed the sack of money to Mrs. Roberts and told her to hold it. He then ordered Mr. Cleere into the bathroom and locked the door. The bandit then ordered Mrs. Roberts to go to the cash register in the front part of the store and open it. He took the money from the cash register and put it in the sack with the other money. After putting the money in the sack he carried Mrs. Roberts to the bathroom and locked her up with Mr. Cleere. After they were both locked in the bathroom Mr. Cleere pulled his pistol and shot several times through the locked door.

Mrs. Roberts pointed to appellant in the courtroom and stated that she could say without a doubt that he was the man who robbed her. She further stated that she attended a lineup on the afternoon of June 20, 1974, some 36 hours after the robbery and identified the appellant as the man who robbed her, saying, “When he walked in, I seen him, and I knew he was the man, and I didn’t really look at the rest of them.” Mrs. Roberts picked appellant out of the lineup immediately and did not study the other people.

Mr. Cleere testified that he saw appellant by the pharmacy department with a pistol in his hand. He said his hours of employment were from 10 o’clock at night until 7:00 in the morning. He further testified that the man told him this was a robbery and he wanted the narcotics and the money and he was pointing a .25 automatic pistol at him. Mr. Cleere said that he had a little cabinet under the pharmacy counter and that he unlocked it and took the money out. The bandit ordered him to get a sack to put the money in and he obeyed this order. He stated the robber overlooked a cash register in the back. He said the robber told him, “Well, if I get caught by the police tell them I didn’t get the narcotics. I don’t want a federal charge against me.” After Mr. Cleere put the money in the sack the man carried him to the bathroom and locked the door. A few minutes later the robber brought Mrs. Roberts to the bathroom and locked the door on both of them.

Mr. Cleere further testified that when Mrs. Roberts was behind him he pulled his pistol and shot eight times through the door hoping to hit the robber. He stated that the man got a total of a little over $1300.00, and that no part of this money had been recovered.

On cross-examination Mr. Cleere stated that the next day he attended a lineup of six men who were all dressed in different clothes and he unhesitatingly identified appellant as the bandit who robbed the drug store the day before the lineup was held. He said he recognized him instantly and he could not be mistaken that appellant was the robber. He said that the robbery took place in about ten minutes, in close quarters, and he got a clear look at the undisguised face of the man who held a pistol on him on the morning of June 19, 1974.

The trial court permitted the defense to go back into the lineup identification even though Judge Cole heard all the testimony previously on the identity issue and held the lineup was legal in every respect.

When the State rested appellant made a motion to exclude the State’s evidence without assigning any grounds. The motion was overruled and denied.

Appellant called three police officers and proved that they had stopped him a little after 4:00 a. m. and did not let him go until about 4:15 to 4:25 a. m. and this was at a point several blocks from the Alley Drug Store. He was attempting to establish the time frame and the distance from the Alley Drug Store made it impossible that he could have committed the robbery between 5:15 and 5:30 that morning.

Appellant also called Ms. Sarah Dumas, assistant to the head bookkeeper of the City National Bank of Birmingham and proved by her that on May 17,1974, he deposited to his checking account the sum of $5,000.00 She further testified that on that same day appellant withdrew $1,000.00 and that on May 21, 1974, he withdrew another $1,000.00; that on May 29 he withdrew $1,000.00 and that on June 6, 1974, he withdrew $2,000.00.

On cross-examination the witness testified that on June 6, 1974, the entire $5,000.00 had been withdrawn and appellant’s account in the City National Bank was closed.

On rebuttal the State called Captain Carl D. Garrett of the Birmingham Police Department who testified that he saw appellant on June 19,1974, at approximately 4:00 a. m. in the 2000 block of 5th Avenue North and that he had been stopped by two police officers. He stated he saw him on the outside of the car and that he had on a dark suit, either navy or black, and had on a white shirt and tie. That he was wearing real shiny shoes — “looked like patent leather shoes.” He stated there were two black females in the car with him but after four or five minutes appellant left in his car alone.

There is a presumption that a judge or one sitting in a judicial capacity is qualified and unbiased and one who alleges that a judge is unqualified or biased has a substantial burden to show grounds therefore. Street v. Hutto, 46 Ala.App. 324, 241 So.2d 848; Walker v. State, 38 Ala.App. 204, 84 So.2d 383; Johnson v. State, Ala.Cr.App., 335 So.2d 663; Ex parte White, 53 Ala.App. 377, 300 So.2d 420.

There was absolutely no showing that Judge Gibson was in any manner disqualified in this case and as we have pointed out, appellant stated at the time he was sentenced that he had received a fair trial.

We have held many times that alibi testimony, like all other evidence in a criminal prosecution, is an issue to be determined by the jury. Dulaney v. State, 56 Ala.App. 374, 321 So.2d 713; Ala.Dig.Crim.Law, Key No. 739(2).

We find no reversible error in this record and the judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Joseph Robert SCHILLACI.
    SC 2633.
    Supreme Court of Alabama.
    July 8, 1977.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


author: SIMMONS, Retired Circuit Judge.

text:
    James Lewis HOLIFIELD, alias James Hollifield, alias James Holifield v. STATE.
    6 Div. 357.
    Court of Criminal Appeals of Alabama.
    May 3, 1977.
    Rehearing Denied May 24, 1977.

      Joel L. Sogol, Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Carol Jean Smith, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

A jury convicted appellant-defendant of robbery pursuant to an indictment and fixed his punishment at 30. years imprisonment. Judgment was duly entered and defendant appeals. He was represented below by the court’s public defender and he likewise is represented on this appeal by the same attorney.

It appears that the victim of the robbery was Dexter Ray, an employee of Burger King, Inc., a corporation. The cash taken, alleged to be $235.00, was in the possession of Dexter Ray and was the property of Burger King.

We note that there was ample identification by Ray and other witnesses as to the guilty party. Some of the witnesses were not positive in their identification growing out of a line-up as others. We can’t find, nor is there any contention by appellant’s attorney that there was any suggestiveness arising out of the line-ups. This is also true as to photographs shown some of the witnesses.

Defendant called the Sheriff for a very short voir dire examination outside the presence of this jury. There was a short cross in camera.

The defendant did not take the witness stand nor did he put up any witnesses, not even the Sheriff, before this jury.

I

Appellant here contends that the trial court erred in not allowing appellant to examine on voir dire witnesses who viewed photographic line-ups; and compounded that error by allowing the photos to be described as “mug shots”.

We do not think there was error in either instance. It is to be noted that the motion for a voir dire examination was made during the direct examination of witness James M. Hughes, a witness for the state. The motion was overruled.

We think this ruling was consonant with a pronouncement of the Supreme Court in Wilbanks v. State, 289 Ala. 166, 266 So.2d 619, from which we quote:

“We have found no decision of this court or the Court of Appeals wherein it has been held reversible error for the trial court to refuse to permit the interruption of the examination of a witness on direct to permit counsel for the defendant to examine the witness on ‘voir dire’.”
“We hold, therefore, that the Court of Appeals erred in holding that the trial court erred in refusing the request of counsel for the defendant to interrupt the direct examination of the witness Holley in order to examine him on ‘voir dire’.”

With respect to the witnesses to describe the photos as “mug shots”, it is to be noted that the description was in response to defendant’s question propounded on cross examination as follows:

“Q. What kind of pictures were these?
“A. Same type but they were in a book.
“Q. Alright. In a book?
“A. Uh-huh (yes). Binder. Book binder.
“Q. And how many pages were in that binder, in your judgment?
“A. 20, 25.
“Q. How many pictures on a page?
“A. 4.
“Q. What type pictures were they?
“A. Well, like a mug shot, front and side, standing up.”

We pretermit considering the prejudicial effect, if any, of the answer. We are merely calling attention that the answer was responsive to the question. Defendant says that the elicitation of this answer would not have happened if the court had permitted a voir dire examination as sought on direct examination. That contention if nothing more is speculative.

II

The second assertion of error is that the trial court erred “in allowing into testimony identifications of appellant where such were the direct result of appellant’s illegal detention”.

It appears that defendant was picked up or arrested on a warrant charging failure to pay an ambulance bill and held in jail.

It appears in appellant’s brief that a City Ordinance under which appellant was arrested and several weeks after the trial was declared unconstitutional by the Recorder’s Court Judge of the City of Tuscaloosa. Copy of a news item in a Tuscaloosa paper appended to appellant’s brief as proof of the Recorder’s ruling.

We do not find that the constitutionality vel non of the ordinance was ever presented to the trial court for its consideration or ruling and for aught appearing the ordinance was constitutional and defendant was in lawful custody.

We find no error in the trial that was prejudicial to defendant.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of 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:
    Ex parte James Lewis HOLIFIELD.
    SC 2603.
    Supreme Court of Alabama.
    July 8, 1977.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


text:
    Donald Ray STEWART v. STATE.
    3 Div. 657.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.
    R. Howell Dean, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Indictment for burglary of an inhabited dwelling house. Judgment of guilt with punishment fixed at ten years imprisonment. Appellant was an indigent at nisi prius and here with different appointed counsel.

The burglary occurred about 3:00 A.M. on October 20, 1975, at which time the sole occupant of the house, Wilma Matthews, was attracted by a noise at the back door, to which she went for an investigation. Someone wanted to get in. She retreated to the bathroom, entered and locked the door. She called police who responded forthwith to investigate. The intruder tried to get in the bathroom. The occupant never saw the burglar and could not identify him at the trial. Defendant did not take the stand.

Officer Boothe testified that after some delay in locating the dwelling house, he reached there and as he drove up he saw a car, a green 1967 Mustang, pulling away from the curb. This vehicle bore license plate number 3-78180. About two days later, this same vehicle was at the home of defendant’s mother when the officers went there to see defendant, who, when they arrived, was sitting on the hood. The license plate was not registered in the name of defendant.

This same witness testified that defendant told him, after proper predicate was proved, that he was in the neighborhood that night checking on his wife. It appears that the burglarized premise was part of a duplex building in which the wife of defendant had one side and the burglary victim the other.

It further appears from the evidence of the victim that she had an electric light burning on the back porch and it was off when the police arrived. One of the officers retrieved the bulb and took it to the police department. It later became the subject of examination for finger prints, which were obtained by a scientific process.

It further appears that the officer found in the automobile, Exhibits 5, 6, 7 and 8, which were a toy pistol, socks, mask, and screwdriver.» The court sustained defendant’s objections to the introduction in evidence of these exhibits.

I

Appellant contends that the trial court erred in overruling his motion for a mistrial. It arose when the court sustained defendant’s objection to the following question:

“Q. Where was this that you heard these statements from the defendant?
“A. It was at a parole violation hearing.”

The court excluded the answer and instructed the jury not to consider it.

We think the exclusion was sufficient. Besides, it is not shown that the hearing was on defendant’s parole violation. It was just a hearing and it is not shown that defendant was involved. Later the witness testified (omitting any reference to a parole hearing) that at the courthouse he heard the defendant say (at which time his attorney was present) that “. . . his wife called him over there that night.” There was no objection to the question that elicited this answer.

Under the ruling of the court, the exclusion and the admonition to the jury, we see no error in overruling the motion for a mistrial.

II

The next contention is that the court erred in admitting into evidence, over proper objection, certain fingerprint cards because the custodial chain was not established. Defendant was objecting to exhibit 9, the latent fingerprint.

We observed from the record that this card was properly identified before admission.

We do not see that the fingerprint card requires evidence of a chain of custody free of any gap. The card was identified as an impression of the fingerprint on the light bulb and was the same as the impression of defendant’s fingers on the inked card also in evidence. We think the identification was sufficient and it was not necessary to establish a complete chain of custody. If there was a substitution or a mutilation of the evidence, the identification could not be established for the reason that identification of fingerprints is based on the premise that no two persons have the same fingerprints. The evidence established the fact that the latent print was taken from the bulb and that the inked print was that of the defendant, and by expert testimony that the two prints came from the hand of one and the same person. The objection had no merit. U. S. v. Robinson, 145 U.S.App.D.C. 46, 447 F.2d 1215 (1971); U. S. v. Christopher, 488 F.2d 849 (9 Cir., 1973).

Ill

Defendant cannot here complain that the search of the automobile at the police station was illegal and that the seizure was the poisoned fruits of an illegal search.

It is to be noted that defendant put on his mother who testified that the automobile was her property; thus we find defendant disclaiming ownership of the searched automobile. The automobile, after the search, was turned over to his mother and she took possession; defendant requested that his mother be allowed to take the automobile. It was her property and was not in his possession when the search was made.

We held in Wilson v. State, 57 Ala.App. 125, 326 So.2d 316, cert. den. 295 Ala. 429, 326 So.2d 319, as follows:

“It appears from the evidence that the searched automobile was neither the property of appellant nor of his companion in the robbery; nor was it at the time of the search under their control or in their possession. Defendant had no proprietary interest in the searched vehicle. Defendant was without authority of law to object to the evidence relating to the search or the money found in the car. Davidson v. State, 48 Ala.App. 446, 265 So.2d 888(4), cert. den., 289 Ala. 741, 265 So.2d 897; Sanders v. State, 278 Ala. 453, 179 So.2d 35(17); Bridges v. State, 52 Ala.App. 546, 295 So.2d 266.”

The items seized in the search and offered in evidence were of such character that they could have been used (and it was up to the jury to say) in this burglary.

We see no error in admitting the items in evidence.

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

The judgment is hereby AFFIRMED.

All the Judges concur.


text:
    Leroy SMOKE, alias v. STATE.
    3 Div. 712.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.
    William W. Gobrecht, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent here and below, was indicted separately for five robberies. He entered pleas of guilty in each case after he was fully advised by the court and his attorney of his Boykin rights. Sentence in each case was twenty years with all sentences to run concurrently.

I and II

It appears from the record one circuit judge in Montgomery took his pleas of guilt and then referred him to another circuit judge for sentencing which was done at a later date.

This transfer for sentencing was pursuant to a majority agreement of the circuit judges in Montgomery County to which the first judge who took the pleas was not in accord, but nevertheless he abided by the majority view.

It seems that the Deputy District Attorney who handled all five cases made some comment at the time the guilty pleas were tendered and accepted that tended to encourage the transfer. However, as we view the record the judge presiding when the pleas were tendered and the transfer decided acted on the majority agreement, supra, and was not influenced by the reminder of the Deputy District Attorney that the cases be transferred.

Appellant’s appointed attorney submits to this court an elaborate brief in which he contends inter alia, that the system and agreement of the judges, supra, and the alleged interference of the Deputy District Attorney denied this defendant his constitutional right to a fair trial.

But this contention is not properly before this court. Constitutional questions presented for the first time on appeal will not be considered by reviewing court. City of Talladega v. Ellison, 262 Ala. 449, 79 So.2d 551; Alabama Brokerage Co. v. Boston, 18 Ala.App. 495, 93 So. 289, certiorari denied, 208 Ala. 242, 94 So. 87; Alabama Digest, Vol. 2, Appeal & Error, No. 170 (1).

III

The same rule applies to appellant’s contention that the bail fixed for appeal was excessive and in violation of his constitutional rights under the Eighth and Fourteenth Amendments to the Constitution of the United States.

IV

The next contention is that a companion in the robbery got less punishment for his participation than appellant and that there is no valid, justifiable reason for defendant to have been sentenced more severely than this accomplice. This disparity, appellant contends, is a clear abuse of discretion upon the part of the sentencing judge. He asserts that we take corrective action in reducing appellant’s sentence to not more than 15 years imprisonment.

This court is without authority to reduce sentences imposed on a defendant. The length of a sentence imposed by the trial court is addressed to the sound discretion of the trial court and we will not disturb. Mitigation of the sentence is addressed to the Pardon and Parole Board and not to this court.

All five of the judgments consolidated in this appeal are affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of 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.


author: TYSON, Presiding Judge.

text:
    Johnny Joe WHITE, alias v. STATE.
    6 Div. 281.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.
    Rehearing Denied June 28, 1977.
    Michael Crespi, Headland, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Barry V. Hutner, Asst. Atty. Gen., Birmingham, for the State.
   TYSON, Presiding Judge.

The indictment charged Johnny White with the robbery of one Betty Phillips by taking $5.00 and one .25 automatic pistol from her person and by putting her in fear. The jury found the appellant guilty as charged and fixed punishment at ten years imprisonment. The trial court then set sentence in accordance with this verdict.

Betty Phillips testified that on January 12, 1976, around 11:15 p. m., she was working her shift with the Veteran Cab Co. in Birmingham, Alabama. At this time she received a call over her radio to pick up a fare at the emergency entrance of University Hospital in downtown Birmingham, Alabama. When she arrived the appellant came through the emergency door and got in the front seat of her cab. The appellant then told Phillips he wished to go to “1716 33rd Street, North.” A few minutes later, the appellant changed the address and informed Phillips that he wished to go to “1716 33rd Avenue.” Phillips then asked the appellant if he wanted “to go to ACIP-SO,” and he replied, “That’s right.” Phillips testified that when she arrived at the 1700 block of 33rd Avenue, the appellant told her to go to the corner and turn left, which she did. Upon turning, the appellant directed Phillips to 34th Avenue, at which point he told her to pull up in front of a house with a green porch light. Phillips testified that the appellant reached into his pocket while she was writing down the fare as if to get some change. Instead, he (the appellant) pulled out a knife and stabbed Phillips in the side. Phillips then wrestled with the appellant while grabbing underneath the seat of the car for her .25 automatic pistol. The appellant, according to Phillips, took the pistol and directed her to hand over all her money, which she did. At this point, Phillips testified the appellant directed her to drive down 34th Avenue and take a left at 17th Street, which she did. Phillips testified that the appellant then told her to turn right on 32nd Avenue or else he would “blow [her] brains out,” to which she replied, “O.K., if I’m gonna die, you’re going with me." According to Phillips’ testimony, she then “put the gas pedal on the floor” and proceeded through downtown Birmingham, reaching speeds of up to 120 miles per hour. During this time Phillips testified that the appellant placed both the knife and the pistol on the dashboard to get Phillips to slow down. When she would slow down the appellant would grab both the knife and the pistol, at which point she would speed back up again, according to Phillips. Then at the intersection of 17th Street and 11th Avenue North, Phillips’ taxi ran into another car and both Phillips and the appellant were knocked unconscious.

The appellant’s testimony is somewhat different. The appellant testified that he told Phillips to take him to ACIPSO. Upon arriving at ACIPSO, he told Phillips that it was the wrong address. Then according to the appellant, Phillips said, “Hey, you look like a robber,” and then pulled a gun on him (the appellant). The appellant testified that he knocked the pistol out of Phillips’ hand and that he then pulled out his knife and wrestled with her until she began speeding through Birmingham.

.1

Appellant contends that the State exceeded the proper bounds of impeachment for prior convictions and therefore appellant’s motion for a mistrial should have been granted.

During the cross-examination by the State, the following occurred (R. pp. 69-71):

“Q. Mr. White, on August 18,1970, were you convicted of burglary?
“A. Oh, yes, sir.
“Q. On January 20, 1972, were you convicted of burglary?
“A. I’m thinking. Yes sir.
“Q. And on January 22 of 1976, were you convicted of assault with intent to rape?
“A. Yes, sir. On appeal.
“Q. Did you use a knife on that occasion? Assault with intent to rape?
“A. No.
“MR. CRESPI: Your Honor, I object.
“THE COURT: I sustain objection.
“MR. CRESPI: Your Honor, I would move, at this time, for the Court to declare a mistrial.
“THE COURT: I’ll overrule your objection because the witness answered the question before you could get your objection out, and I instruct the witness that when one of the attorneys objects, not to go ahead and answer.
“I do sustain objection, and instruct the jury not to consider that question and answer pertaining to whether or not the assault with intent to ravish or rape was committed with a knife. That’s not for any concern or consideration.
“MR. BARBER: That’s all the questions I have.
“MR. CRESPI: Your Honor, I would like to renew my motion at this time.
“THE COURT: Overruled.”

A witness, or defendant, when testifying in his own behalf, may be questioned on cross-examination for the purpose of attacking his credibility as a witness as to whether he has been convicted of a crime involving moral turpitude. Love v. State, 36 Ala.App. 693, 63 So.2d 285; Code of Alabama 1940, Title 7, §§ 434, 435.

Although evidence of convictions of crimes involving moral turpitude is admissible, the elicitation of details involved in such offenses are not. Ellis v. State, 244 Ala. 79, 11 So.2d 861 (1943); Garvin v. Robertson, 289 Ala. 60, 265 So.2d 602 (1972).

It is well-settled in this State that an objection to a question must be made as soon as the question is asked. Embrey v. State, 283 Ala. 110, 214 So.2d 567. Here the objection came too late. Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336, and therefore was waived. Lucky v. State, 50 Ala.App. 324, 278 So.2d 772.

Because of the curative instructions of the trial judge, we are of the opinion that no error is shown. The appellant’s motion for a mistrial was properly overruled. Shadle v. State, 280 Ala. 379, 194 So.2d 538; Retowsky v. State, Ala.Cr.App., 333 So.2d 193; Napier v. State, Ala.Cr.App., 337 So.2d 62.

II

The appellant contends that certain remarks made by the district attorney during closing arguments to the jury were so prejudicial that such could not be cured by proper instructions by the trial court, and therefore appellant’s motion for a mistrial should have been sustained.

During the closing argument of the State, the following occurred (R. pp. 73-75):

“MR. BARBER [for the State]: You twelve people are taken away from your homes and your jobs and asked to come up here, and you twelve decide what is that worth. What is that stabbing and that taking worth, and all the other things that were mentioned that I see no reason to repeat. What is that worth? “The defendant, who told you from the stand yesterday, in 1970 was convicted of burglary, in 1972 convicted of .
“MR. CRESPI: May it please the Court, the defendant objects to this line of argument insofar as it seems to depart from what impeachment as to his prior convictions may be probably used for.”

The trial court initially overruled the appellant’s objection. Then, the court told both parties that he had not heard exactly what the State had said to the jury and asked both counsel to approach the bench. After both the State and the appellant had approached the bench and had a conversation with the court, out of the hearing of the jury, the following occurred (R. pp. 74-75):

“THE COURT: Ladies and gentlemen, as I understand the argument, the objection was based on the context of this portion of the argument that mentioned the prior convictions came immediately after, and I do instruct you not to consider any evidence of prior convictions of crime involving moral turpitude which I am going to instruct you on specifically when I charge you as to the law, but I do instruct you that the sole purpose for it, if any of that type evidence is as going to that person’s credibility as a witness, and if there is anything in Mr. Barber’s argument which you would construe had he argued it for any other purpose, I instruct you to disregard it.”

The appellant then moved for a mistrial which the trial court overruled.

In its charge to the jury the trial court stated (R. p. 80):

“Now, these offenses are what is known to the law as crimes involving moral turpitude, and the sole purpose of admissibility into evidence, of this evidence, is, that it goes to his credibility as a witness That is the sole purpose for which that testimony is admitted.”

There is no legal rule against which such remarks made by the prosecutor can be measured. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968). The fact that the appellant had been convicted of such crimes was already in evidence. Although the appellant contends he was initially overruled after a timely objection, it is clear from the record that the trial court changed that ruling. While it is true that such evidence may not be used in determining the appellant’s guilt or in fixing his punishment if found guilty, the trial court properly recognized this and instructed the jury accordingly. We cannot say that “the remark [made by the State] was so prejudicial that it could not be cured by a proper ruling of the trial court.” Scott v. State, Ala.Cr.App., 333 So.2d 619.

Therefore we hold that appellant’s motion for a mistrial was properly overruled. Shadle v. State, supra.

Ill

The appellant contends that he was denied equal protection of law due to the “one for one” jury strike procedure used in Jefferson County, Alabama, in accordance with Section 714, Volume 14, Appendix, Code of Alabama 1940, applicable to counties with a population of 400,000 or more. The appellant contends that other counties are governed by the provisions of Title 30, Section 64, Code of Alabama 1940, in their jury strike procedure, which allows the defendant two jury strikes for each strike by the State.

Judge Bookout, speaking for this Court recently, in Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied, Ala., 335 So.2d 685, on this precise issue made the following observation:

“We hold, as we have consistently held for the past forty years that § 714, Vol. 14, Appendix, Code of Alabama 1940, Recompiled 1958, does not violate the United States Constitution. Colston v. State, 57 Ala.App. 4, 325 So.2d 520 (1975), cert,

denied, 295 Ala. 398, 325 So.2d 531; Mallory v. State, 55 Ala.App. 82, 313 So.2d 203 (1975); Bryant and Williams v. State, 49 Ala.App. 359, 272 So.2d 286, cert, denied, 289 Ala. 740, 272 So.2d 297, cert, denied, 412 U.S. 922, 93 S.Ct. 2744, 37 L.Ed.2d 149 (1973); Junior v. State, 47

Ala.App. 518, 257 So.2d 844, cert, denied, 288 Ala. 744, 257 So.2d 852 (1972); Dixon v. State, 27 Ala.App. 64,167 So. 340, cert, denied, 232 Ala. 150, 167 So. 349 (1936).”

Under the above authorities we are clear to the conclusion that the trial court followed the proper jury strike procedure.

We have carefully examined this record as required by law and find no error therein. The judgment is

AFFIRMED.

HARRIS, DeCARLO and BOOKOUT, JJ., concur.

BOWEN, J., concurs in result.


author: CLARK, Supernumerary Circuit Judge.

text:
    Oliver Roy MOSS, Jr., alias v. STATE.
    1 Div. 774.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.

      Warren L. Finch and Gary D. Porter, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

Appellant was sentenced to six years imprisonment for selling heroin in violation of the Alabama Uniform Controlled Substances Act. Code of Alabama, 1973 Cum. Supp., Tit. 22, § 258(25), et seq.

The conviction was amply supported by the evidence, and there is no contention to the contrary.

A major insistence of appellant is that the court was in error in admitting in evidence testimony of a sale by defendant of heroin on the day before the day of the offense for which he was tried. The trial court first ruled that such evidence was inadmissible. Thereafter, the position was taken by the State that defendant had supplied a basis for the admission of such testimony, by his contention that law enforcement officers had “set up” the purchase by undercover agents and had thereby entrapped defendant into making the sale for which he was tried.

As we construe the issue between the parties, we must determine whether the interposition of the defense of entrapment entitled the State to introduce evidence of the prior sale. We conclude that it did.

Although the record does not show that defendant relied entirely upon a defense of entrapment, there is no question that he was seeking the benefit of such defense. Extended cross-examination of witnesses for the State as to the arrangements made by the law enforcement officers with a former convict whereby they “set up” a purchase by him from defendant is inconsistent with a different conclusion. The position taken by defendant sufficiently evinced a contention by defendant that he was entrapped to cause the trial judge to charge the jury as to a defense of entrapment, which charge in that respect was given with the apparent approval of defendant, including particularly the following portion of the court’s oral charge:

“On the other hand, if the evidence in the case should leave you with a reasonable doubt whether the Defendant had the previous intent or purpose to commit any offense of the character charged in the indictment and do so only because he was induced or persuaded by some law enforcement or their agent, then it would be your duty to acquit him.”

There is no disagreement as to the rule that evidence of the commission of another crime is not admissible “if the only probative function of such evidence is to show his bad character, or as sometimes expressed to show his inclination or propensity to commit the type of crime for which he is being tried.” McElroy, Law of Evidence in Alabama, § 69.01(1), citing Brasher v. State, 249 Ala. 96, 30 So.2d 31; Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 854.

We do not find that the specific question before us has been decided in Alabama, but Judge Cates has given us a foretaste in Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716, 724, cert. stricken, 271 Ala. 549, 125 So.2d 725, cert. denied, 366 U.S. 933, 81 S.Ct. 1656, 6 L.Ed.2d 392, as follows:

“Moreover, evidence of prior criminal conduct which might reasonably be considered as tempting a man to offer a bribe has probative value to negative entrapment.”

In the pilot case in the Supreme Court on the subject of entrapment as a defense to a crime, Mr. Chief Justice Hughes said:

. . The Government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense.” Sorrells v. United States, 287 U.S. 435, 451-452, 53 S.Ct. 210, 216, 77 L.Ed. 413 (1932)

Leaning heavily upon the quoted statement in Sorrells, a large number of courts have held that evidence of crimes similar to the one for which defendant is on trial is ordinarily admissible to rebut a defense of entrapment. The great weight of authority is to that effect. Anno: 61 A.L.R.3d 293; Anno: 93 A.L.R.2d 1097. We agree.

Defendant contended on the trial, and appellant now insists, that a confession made by defendant was shown by the testimony, preliminary to its receipt in evidence, to have been involuntary, and that the trial court was in error in admitting it. He relies upon some statements of one of the law enforcement officers to the defendant before he confessed that if he cooperated with the law enforcement officers, his cooperation would be made known to the District Attorney. Whatever tendency such statements might ordinarily have to show an inducement that would nullify a confession as evidence, they fail to do so when considered in context with the entire circumstances and conversations at the time between defendant and the law enforcement officers, and it can be determined therefrom that the confession was voluntarily and understanding^ made, and that the statements made were not a factor in bringing about the confession.

The officer who made the statements to defendant was a special agent with the Drug Enforcement Administration of the Department of Justice of the United States. He worked as an undercover agent. In making the statements to defendant as to what he would do if defendant cooperated, it is reasonably clear that he was endeavoring to enlist defendant’s aid in ferreting out other violations and violators of drug laws. His recruiting efforts were untimely, as well as futile, but they did not form a consideration for the admission by defendant that he sold the heroin that constituted the crime for which he was charged. Quite independent of and unrelated to the agent’s effort to enlist the support of this presumed prospect, was the detailed and precise recital to defendant of his constitutional right to remain silent and his right to obtain the services of counsel without expense to him. The trial court correctly analyzed the evidence on the subject as containing no inducement to defendant to confess his sale of the heroin; that whatever inducement was offered was meant by the agent, and understood by the defendant, as solely in order to obtain the “cooperation” of defendant in the laudable undertaking of apprehending and bringing to justice other persons engaged in the iniquitous traffic in drugs. .

Aside from the point that the particular claimed inducement was not to obtain a confession, but rather to obtain the aid of defendant in other drug cases, is the additional consideration that in the course of the conversation with defendant, before his confession, the agent emphatically let him know that the future course of the case against defendant was beyond the control of the agent. In United States v. Frazier, 434 F.2d 994 (5th Cir. 1970), it was held:

“Frazier’s confession was not involuntary by reason of the single fact, that the FBI agents told him that if he cooperated with them his cooperation would be made known to the United States Attorney, that there might be some consideration given by the United States Attorney but that the agents could make no promises. Standing alone this was not sufficient to establish that appellant’s in-custody statement was involuntary. United States v. Ferrara, 377 F.2d 16 (2d Cir. 1967); Fernandez-Delgado v. United States, 368 F.2d 34 (9th Cir. 1966).”

The quoted statement from Frazier was also quoted, approved and applied in Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973).

During the closing argument of counsel for the State, he said:

“Ladies and Gentlemen, the law of entrapment, the law is there, that is true, but one of the main principles of entrapment is that the Defendant who is trying to put forth the defense of entrapment has to admit that he did all the physical acts that the State alleges.”

To the statement defendant objected. The objection was sustained. The defendant then moved for a mistrial, which motion was overruled. The court instructed the jury to disregard the argument and said:

“The Court will instruct you as to what the law is.”

Appellant argues that the quoted oral argument of counsel for the State was an impermissible comment on the failure of defendant to testify, which justified a mistrial, and that the court should have granted defendant’s motion for a new trial on that ground. In Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975), we find the most recent comprehensive .discussion of the anathema, in many instances the fatality, of comments by the prosecuting attorney on defendant’s failure to testify. The majority in Beecher held:

“But it is concomitantly the duty of the prosecutor not to, in any manner, comment on the failure of the defendant to testify. Thus if there exists the possibility that the prosecutor has commented in such a manner that the jury may understand it as a comment on the defendant’s failure to testify, it is for the trial court to cure this violation of prosecutorial duty by prompt and vigorous instructions to the jury informing them of defendant’s right not to be compelled to testify and that they may draw no presumption from his decision not to testify. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974), and cases cited therein. In this regard we note that some comment can be so prejudicial as to be ineradicable. Stain v. State, 273 Ala. 262, 138 So.2d 703 (1961); McLemore v. International Union, 264 Ala. 538, 88 So.2d 170 (1956) (noncriminal case).”

Notwithstanding the too-oft violations of the rule against commenting upon a defendant’s failure to testify, we cannot say that there was such a violation in this case. Nor can we say that there is a possibility, other than as may be contained in the aphorism that anything is possible, that the jury understood the argument as a comment on the defendant’s failure to testify. The argument was obviously addressed to the unique feature of the law of entrapment.

We do not have before us all of the statements made by counsel for the parties. It has been rather difficult for us to understand how the defendant was able to ride two horses, one going one way and the other the other. He did not have to assert by special plea his defense of entrapment. He could show entrapment under his plea of not guilty. Even so, a contention that he was entrapped to do the act that ordinarily constitutes a crime is inconsistent with a contention that he did not do the act. United States v. Pickle, 424 F.2d 528 (5th Cir. 1970). The defense of entrapment rests on defendant’s admission of the deed but disclaiming the thought or the criminal intent, and the defense is not available to a defendant who denies that he committed the offense charged. McCarroll v. State, 294 Ala. 87, 312 So.2d 382 (1965).

If it was the contention of defendant in his counsel’s argument to the jury, as well as in his other handling of the case before the jury, that defendant did sell the heroin as charged in the indictment, but that he was entrapped into doing so, no possible harm could have resulted from the State’s argument; if it was the contention of defendant that he did not sell the heroin as charged, then he was given the benefit of a defense to which he was not entitled; if defendant’s counsel was alternating between the two, this was of his own volition, and defendant has no right to complain. He has no’ just grievance at the court’s allowing his counsel free rein in proceeding and arguing two inconsistent contentions.

Although the court was probably right in sustaining defendant’s objection to the argument and in excluding it from the consideration of the jury, as it involved a legal rather than a factual proposition, it was unrelated logically to the failure of defendant to testify. Addressed as it was to the stated unique feature of the law of entrapment, it was a correct statement that would have been applicable if defendant had testified, just as it was in the circumstance of his not testifying.

State’s counsel did not say that defendant had not denied the sale, which would have focused attention on the defendant’s failure to testify. He alluded to the necessity for him to admit the sale in order to rely upon the defense of entrapment. There was evidence that he admitted the sale. Whether the trial court deemed this evidence sufficient for defendant to have the benefit of the defense of entrapment, we are not able to say, but we are confident that the argument complained of did not constitute a comment upon the failure of defendant to testify.

We have searched the record for error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment is hereby

AFFIRMED.

All the Judges concur.


text:
    Jack HOWARD v. STATE.
    3 Div. 639.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted by a grand jury of Montgomery County for robbery. Upon arraignment, the appellant, through court appointed counsel, entered pleas of not guilty and not guilty by reason of insanity. Counsel requested that the appellant be given a psychiatric examination and the appellant was subsequently sent to Bryce Hospital. At a later date, further information was requested on the mental condition of the appellant and he was returned to Bryce Hospital.

On August 5, 1976, the appellant was convicted and sentenced to ten years in the penitentiary. Counsel was appointed to represent the appellant on appeal.

Only one issue is raised on appeal. The appellant urges reversal based upon the failure of the trial court to allow into evidence letters which were allegedly written by the appellant to his court appointed counsel from hospitals in which the appellant was confined.

The evidence affirmatively shows that on June 10, 1975, Lester Burges was waiting for his present wife to get off work. The appellant had been standing on a corner trying to “thumb” a ride when he walked over to Burges, pulled a pistol out of a vanilla wafer box and forced Burges into the back seat. The appellant then drove the car until he crashed into a tree. Telling Burges not to leave the automobile the appellant took a .25 caliber automatic pistol from the glove compartment and $2.00 from Burges. The appellant then ran off down a dirt road.

The appellant was quickly apprehended after a State Trooper was flagged down by a woman who told him that the appellant was in her house.

At the close of the state’s evidence, court appointed counsel took the witness stand on behalf of the defendant and testified that he had received a series of letters written by the appellant from “hospitals”; that these letters had been in his possession since he received them; and that the letters are the same letters he received from the appellant. Counsel then offered to introduce them into evidence. The state objected and the trial court sustained that objection. The appellant took exception to the court’s ruling.

On appeal the appellant argues that the question of insanity was before the jury. He contends that “these letters, written in appellant’s own writing and setting forth his thought process sheds light on his ability to know right from wrong and . his ability to adhere to the right if possible”.

The letters are not a part of the record on appeal. At the time the letters were presented in the trial court they were identified only as having been written to defense counsel by the appellant “from hospitals”. Counsel testified that these letters had remained in his possession from the time he received them. Nowhere in the record does it appear that the letters came from any mental hospital nor does the record reveal their subject matter.

Furthermore, from the record, we have no knowledge of what defense counsel was attempting to establish by the admission of these letters. The record is silent as to whether or not the letters could “throw some light on the issue of sanity or insanity”.

This court is bound by the record and cannot consider statements in the appellant’s brief not supported by the record. 7 Alabama Digest, Criminal Law, <&wkey; 1128(2). This court cannot pass on the question as to whether an exhibit should have been admitted into evidence where it was not copied into the record. Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968). Counsel has the duty of developing the appellate record.

Additionally, even if the letters had been made a part of the record they would still be inadmissible as defense counsel did not lay a proper foundation for their authenticity and admissibility. Letters written by the accused are relevant and may be admissible on the issue of insanity where they tend to show his mental condition. 22A C.J.S. 447 Criminal Law § 620(2). However before a letter is received in evidence, it is necessary to lay a foundation establishing its identity and authenticity, as by introduction of proof as to the source of the letter, or proof of the handwriting or signature of the sender. 23 C.J.S. 324 Criminal Law § 850; Stallcup v. State, 22 Ala.App. 427, 117 So.2d 617, cert. denied, 218 Ala. 102, 117 So. 118 (1928).

“The mere fact that a letter purports to be written and signed by a particular person and was received by the addressee through the mail is not sufficient to establish authenticity.” 23 C.J.S. 325 Criminal Law, § 850.

And finally, insanity may not be proved or disproved by hearsay. Jarvis v. State, 220 Ala. 501, 126 So. 127 (1930); Harris v. State, 8 Ala.App. 33, 62 So. 477 (1913); Dickinson v. State, 228 Ala. 28, 152 So. 29 (1934); 6 Alabama Digest, Criminal Law, <§=>421(4). Hearsay is no more admissible in a memorandum or letter used in evidence than it would be in direct oral testimony. Deal v. Hubert, 209 Ala. 18, 95 So. 349 (1923). While the appellant could have testified to his own mental condition, he should not be permitted to introduce hearsay evidence to the same effect in the first instance. (Under the “doctrine of recent fabrication” the appellant may have introduced the letters to corroborate his testimony and rebut the inference of a recent fabrication. Williams’ Alabama Evidence, § 94, pp. 194-195. However this question is not before us.)

We have reviewed the record on appeal in its entirety and find no error prejudicial to the substantial rights of the appellant. Therefore judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All Judges concur.