author: DeCARLO, Judge.

text:
    Craig R. McLAREN v. STATE.
    8 Div. 888.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Nov. 15, 1977.

      Macon L. Weaver, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., Michael L. Weathers, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Murder; life.

Craig R. McLaren was indicted by the Madison County Grand Jury in November, 1975 and was charged with unlawfully killing Dorothy G. Traylor.

On December 10,1975, the appellant filed four motions at trial, one of which was a motion for a change of venue. An eviden-tiary hearing was held and the motions were denied.

The case was called for trial on May 11, 1976, and at that time the appellant filed a motion to quash the indictment. Counsel for the appellant maintained that there had not been sufficient evidence presented to the grand jury on which an indictment could be based. After a hearing outside the presence of the jury, the court determined that, although the indictment rested on hearsay evidence, it was sufficient under the law and the motion was denied.

The evidence presented at trial showed that Dorothy Giles Traylor was married to Edward E. Traylor and they lived at 615 Franklin Street in Huntsville, Alabama. On September 6, 1974, Mr. Traylor, after eating breakfast with his wife, left for work. Traylor testified that he did not talk with his wife during the day but that she had called his store around 12:30 P.M. Traylor stated that he arrived home between 4:00 and 5:00 P.M., discovered blood on the door of a porch and in the kitchen, and called the police. He said that the next time he saw his wife was at the funeral home where her body had been taken.

On September 6, 1974, about 5:30 P.M., Richard Yearick, a Huntsville Policeman, was called to a wooded area off Miss Ann Road on Monte Santo Mountain. On his arrival he saw the body of a white female lying face down. The body was covered with blood and appeared to have been stabbed. Leaving the scene where the body was found, Yearick went to an area off Knotty Wall Road in Huntsville, Alabama, and found a 1970 Cadillac belonging to Mrs. Traylor. According to Yearick, approximately three weeks later, in response to a call, he went to the residence of Tommy Barry. There a wallet was turned over to him containing several credit cards, blank checks, a social security card with Mrs. Traylor’s name on it, and various other notes and photographs.

Robert B. Johnson, a State toxicologist, examined the remains of Mrs. Dorothy Traylor on September 7,1974, at the Huntsville morgue. He found some twenty-eight lacerations, eleven or twelve being puncture lacerations which are ordinarily described as stab wounds. Johnson stated that “the subject died as a result of shock and hemorrhage from multiple puncture lacerations, mainly to the back of the body.” According to Johnson, a laceration on the head was caused by, “some sort of blunt instrument, the others were made by a sharp instrument.”

Eugene Bonner, Jr., an ex-marine and a veteran of the Vietnam war, was married and had one daughter. Prior to the incident, he was separated from his wife and working at NASA doing his apprenticeship for a mechanical engineer.

Bonner admitted that he had been previously convicted for child abuse and sentenced to five years, and while on probation was charged with armed robbery. A plea of insanity had been entered in the robbery case, and he was awaiting trial on that charge when the present trial was begun.

Bonner recalled that he was walking down the street when he first met McLaren, who, according to Bonner, was driving a little red Karmen Ghia. McLaren asked him if he wanted to smoke a joint of “marijuana.” Afterwards they “started talking and playing chess together.” Bonner recalled going to the appellant’s house located “right up from the Automatic Electric” and, on one occasion, having seen his wife there.

According to Bonner, on September 6, 1974, he saw appellant about ten o’clock that morning at his house. He said that they talked and played chess but then left and went to McLaren’s house. Bonner testified that while they were there the appellant asked “if I wanted to make forty or fifty thousand dollars. I asked what did we have to do, he said we were going to kidnap this lady and take her to the bank for some money.” When Bonner responded that he did, they went outside to the garage and McLaren “got a 38 and a military K-bar, which was a knife like a bayonet.” Bonner recalled that McLaren placed the knife and the gun inside his pants and that they then left in the red Karmen Ghia. They went to a store where the appellant purchased some rubber gloves.

From there they drove to a location near some doctors’ offices, three or four hundred yards from the Traylor house. After parking the car they proceeded to walk to the victim’s house and as they were going up to the house, they passed an elderly black lady. They knocked on the door and McLaren asked about cutting the grass. Mrs. Tray-lor said they “would have to take it up with her husband.” At that point, they walked through an alley to the back of the house. Again, McLaren knocked on the door and when Mrs. Traylor opened the door he asked her about cutting the grass. She again repeated that “they would have to talk to her husband” and closed the door. McLaren knocked the third time and when Mrs. Traylor opened the door again, he knocked her into the house and said, “be quiet bitch.” She started screaming and McLaren hit her on the head with the gun. The blow caused bleeding which could not be stopped. McLaren said, “we’re not going to be able to take her to the bank." Mrs. Traylor then asked “what are you going to do?” and he replied, “we’re going to let you go.”

They tried to stop the bleeding. According to Bonner, they attempted to wipe the blood from the floor because of tracks made in the blood. Next they carried Mrs. Tray-lor to the back seat of her Cadillac which was parked at the back of her house. McLaren sat in the back seat, with the victim lying on the floorboard, while Bonner drove to the mountain and backed the car inside a clearing.

Mrs. Traylor got out on the left side of the car with McLaren behind her. According to Bonner she was facing him at the time and appellant stabbed her five or six times in the back. When she fell, McLaren “cut her throat . . . Vietnam style . the style that is used in Vietnam, quick style, quick death.” Bonner said they had gloves on at the time and afterwards appellant wiped the knife on his pants and they left Mrs. Traylor’s body on the mountain.

Bonner recalled that they drove down across the mountain onto “old Big Cove Road” and were following a bus. “The car was kind of bloody” and when they came to a location near “Owens Cross Road” they threw the victim’s purse from the car. Subsequently, they left the car on the side of the road and walked across the mountain where they left the gun and knife near a telephone pole. Afterwards they were given a ride in a van to the corner of the road where the “Auto Electric” was located. They went to a store and got something to drink and from there went to the appellant’s house and drank some scotch. Subsequently, they left McLaren’s house in his wife’s car and returned to the area where the knife and gun were located. Prom there they went to where the appellant’s car was parked near the Traylor home, and drove the two cars back to McLaren’s house. According to Bonner, he did not hear from appellant again for about a week.

Bonner said that he called the appellant and was told not to worry and not to say anything. According to the witness, he went to McLaren’s house and appellant told him not to come there anymore because he had been picked up by the police and let go because “they didn’t know it was him.” That was the last communication that he had with the appellant.

During cross-examination, Bonner admitted that after he left Vietnam he heard voices and had been to the veteran’s hospital on two occasions. He recalled that Drs. Able and Miller told him that “every thing was going to be alright.” He said that the doctors had talked to him and given him some medication which he was still taking. Bonner also admitted that on hearing the voices that he had on occasion talked back. He explained that he could not understand where the voices were coming from and wanted to ask them (the voices) where they were. Further, Bonner said the voices were coming from “out of my mind.”

Bonner admitted that he was told that if he signed a statement that he would not be prosecuted but denied he was told he would get the five thousand dollars’ reward.

Bonner also stated that the statement appearing in the newspaper was substantially the same as the one he had given to the police. He went on to testify that his wife had called and told Mr. Traylor about his participation in the alleged murder. Further, he admitted that some fourteen months had passed and he had done nothing and that it was his wife who had told the authorities of his participation.

Upon further questioning, Bonner acknowledged using heroin and LSD while in Vietnam and having “flashbacks.” Also he admitted that Dr. Miller’s report indicated that he should go to Bryce’s Hospital and have a full scale in-hospital evaluation, but that he went to the VA hospital instead.

Thomas R. Hall was employed at the Tidwell Grocery at the time of the alleged murder in 1974. He stated that the grocery store was located about two blocks from the Traylor home and that on September 6th he recalled seeing a black man and a white man in the store. According to Hall, the white man had dark blonde hair that came down to his shoulders and that he was positive that it was the defendant who was with the black man. Further, he said that it was the appellant who purchased rubber gloves on that date.

Don Adams, on September 6,1974, was at a doctor’s office on Franklin Street. He testified that on that day he saw a black man and a white man drive a Karmen Ghia into the parking lot at the doctor’s office. He recalled that the car they were driving had “paint-primer sprayed all over it which was dark red or brown in color.” He went on to say that the white man hand long blonde hair and that he believed the defendant was the man driving the car. During cross-examination, he said that he did not get a good look at the black man but said that he was positive that the appellant was the person he had seen driving the car.

Christine Fait stated that about “2 o’clock” on September 6, 1974, she saw a black man and a white man at an intersection which was one or two houses from where the Traylor home was located. The two were standing on the street corner. She said she was absolutely positive that the white man was the appellant but that his hair was longer at the time.

During cross-examination, she said that she did not notice the black man at the time but had no doubt whatsoever that the appellant was the one she had seen on that occasion. She explained, “I looked him straight in the eye.”

Jimmie Jones was employed by Mrs. Traylor as a maid, she recalled that on the day in question she had left work a little after two o’clock and had gone out the back door. She stated that she was going out the driveway and saw a colored boy and a white boy but did not see them long enough to make an identification.

Ollie Hatchett was a gardener at the Caldwell residence which was located at the back of the Traylor home. He recalled that on September 6,1974, he was working near the back of the Traylor home when he observed a black man standing near the back of the victim’s house. He said the back door of the Traylor home was open at the time and when he heard a scream he saw the black man run in the back door. Subsequently, he saw the black man and a white man put something in a blue and white Cadillac parked at the rear of the house. He stated that the white man got in on the passenger side of the car and that the black man got in on the driver’s side and also that they drove off at a high rate of speed with the headlights on.

According to Hatchett, he did not call the police because he “didn’t think anything was wrong.”

During the questioning, Hatchett indicated that he could not make an identification.

Janice Fowler, on September 6, 1974, had gone to pick up her children at school. It was about 2:30 P.M. and as she was traveling up “Big Cove Road” she saw a late model blue and white Cadillac driven by a “black boy.” A “white boy” was sitting directly behind him in the back seat. She stated.that she could not describe the black but did say that the white “had maybe shoulder length hair and it was light in color.”

Maples Moon was the driver of a school bus on September 6, 1974, and recalled seeing a Cadillac behind the bus. The car followed the bus for about five miles with its headlights on. He recalled that a “colored boy” was driving and a “white boy” was sitting on the passenger side. Moon stated that he could not identify either one.

Lisa Hillis was riding the school bus on that day and recalled seeing a Cadillac with its headlights on. She said she believed that the car was being driven by a “colored guy” and that a “white guy” was sitting beside him. She said that the Cadillac was behind the bus at the time, and stated that she could not identify them.

Demetris Hillis was also a passenger in the bus on September 6, 1974 and remembered seeing the Cadillac behind the bus. He said the lights were on at the time but could not describe the car. Further, a black man and a white man were in the car but he could not identify either one.

Maxine Hillis, the mother of Demetris Hillis, lived on Green Mountain Road, a dead-end street with approximately ten or twelve houses. She recalled that on September 6, 1974, she saw a blue and white Cadillac, with its lights on, drive onto the street, turn around and start to back out when a school bus came into the street.

Roy Thompson was employed at “ITEC Incorporated” located on “Green Cove Road at the foot of Green Mountain,” about one half of a mile from Pitsinger’s Grocery Store. On September 6th he gave “a white and a black” a ride in his panel truck. The “white had long blonde hair and the two got out at Pitsinger’s store. During cross-examination, Mr. Thompson said that he was not positive what he had testified to had occurred on September 6, 1974.

J. B. Pitsinger, the proprietor of a general merchandise store in Huntsville, Alabama, recalled that on September 6,1974, a black boy and a white boy came into his store: “The black boy had a mustache and a goatee and was sort of thin looking. The white boy had long hair, shoulder length.” He said that they bought cold drinks and that the appellant was one of them. Further, that the appellant had “been in the store a lot.”

During cross-examination, he said that he was positive that it was September 6, 1974, when the two came into his store; “the weather was hot and they were sweating.”

Melisa Voit was the appellant’s former wife who had divorced McLaren some two months before the trial. She testified that on September 6, 1974, she had gone home about 4:00 P.M. She had a “Fiat automobile” and her husband, the appellant, drove a Karmen Ghia. Voit identified a picture showing appellant with long hair and said she had taken the picture while they were in South Carolina. She recalled that on September 6, 1974, she saw the appellant shortly after she got home from work. He came in, asked to borrow her car and told her he was going to drive “Eugene Bonner” home. She remembered that a week after the alleged murder she had seen a composite drawing on the news that looked “like Craig,” (the appellant). When questioned she said, “he didn’t know anything about it.” After their divorce she had a conversation with him in the jail and he told her “that he and Eugene (Bonner) had been together and that it happened, except that he didn’t kill Mrs. Traylor. He said that Eugene did it.” She stated that the appellant told her that “about four or five black men threatened me and my dog if I didn’t go along with him.”

During cross-examination, Voit denied that her husband, the appellant, found her in bed with Ed Stiegner, a soldier stationed at Red Stone Arsenal. She explained that Stiegner had his clothes on and that he was helping her box up her furniture and belongings.

Further, when questioned, she replied, “I don’t have any prejudice against him (McLaren).”

At the end of Melisa Voit’s testimony, the State concluded its case and the defense made a motion to exclude the evidence. Counsel cited as grounds that the evidence was based on the uncorroborated testimony of the accomplice and that there was no evidence of a substantial nature to materially connect the defendant with the commission of the offense.

Henry B. Abele was the first witness called by the defense. He stated that he was a medical doctor, practicing in the field of psychiatry. He said that in March or April of 1976, he saw Eugene Bonner on two occasions. During those visits, the doctor stated, “there is no doubt that he (Bonner) has been fencing with us.” As a result of those two interviews the doctor recommended that he (Bonner) be sent to Bryce’s Hospital for further examination.

Alton Hovis, a sergeant with the Madison County Police Department, worked in the county jail and stated that on May 5, 1976, Bobby Owens, one of the jailors, told him that Bonner was throwing stuff in the cell and “kind of looked wild out of his eyes.” Hovis said that Bonner was placed in a padded cell until about after eleven that night and the next morning released from jail.

Bobby Owens testified that he was the assistant jailer who had taken Bonner to Mr. Hovis after Bonner had been throwing things in his cell. His testimony was substantially the same as that given by Mr. Hovis.

Craig R. McLaren was called as a witness in his own behalf and stated that a white man named Gerald brought Eugene Bonner to his house around the middle of August. He said that he could not say exactly where he was on September 6, 1974, but denied that he was implicated or participated in the murder of Dorothy Traylor. He admitted talking to his wife in jail but denied telling her about the case. He said, “I don’t know where she came up with that story.” He maintained that he did not tell his wife the things she had said that he told her.

McLaren stated that on May 25, 1975, he came home and found Ed Stiegner in bed with his' wife and that he “smacked him” and Stiegner ran out of the house. On cross-examination, McLaren was asked: “What was Gerald’s last name?” and he replied, “I don’t know.” He said that he had met Gerald about the middle of July when he had come over to his house trying to sell him some “controlled substances.”

Appellant denied that he had met Eugene Bonner in downtown Huntsville, and said that he had not played chess with him. Further, he denied asking his wife to come to the jail. He said that she had come to the jail “on her own,” but they did not discuss the Traylor murder case.

McLaren admitted being in Pitsinger’s General Store several times but denied buying any gloves in the store on September 6, 1974.

At the end of appellant’s testimony the defers rested and the State called Officer Howard Turner in rebuttal. He said that shortly after Mrs. Traylor’s murder he stopped the appellant and he was driving a red Karmen Ghia at the time. He recalled that the appellant had long hair and that he saw a hunting knife in the trunk of the car. Turner went on to say the knife handle was wrapped with black tape and was about an inch and one-half to two inches wide and eight to ten inches long.

On cross-examination he said he did not remember the knife “being a military K-bar type.”

The last witness to testify in the case was Clem Cartron, the appellant’s former wife’s attorney. He stated that he had accompanied the appellant’s former wife, Melisa Voit, to the jail and that she had requested to see her husband.

I

Counsel for appellant contends that the trial court’s failure to grant a change of venue was error.

Prejudicial pre-trial publicity may be a ground for a change of venue under T. 15, Section 267, Code of Alabama 1940, Recompiled 1958: Butler v. State, 55 Ala.App. 421, 316 So.2d 348. However, the defendant in a criminal case has the burden of showing there was such prejudice prevailing in the community where his trial was set that a fair and impartial trial could not be had. Boutwell v. State, 279 Ala. 176,183 So.2d 774.

Newspaper articles alone would not necessitate a change of venue unless it was shown that the articles so affected the general citizenry through the insertion of such sensational, accusational or denunciatory statements, that a fair and impartial trial was impossible. Patton v. State, 246 Ala. 639, 21 So.2d 844.

Also, matters involving change of venue are discretionary with the trial court and their decision will not be disturbed on appeal unless there is an abuse of that discretion. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Moore v. State, 52 Ala.App. 179, 290 So.2d 246.

It is averred that the article appearing in the mast-head position in a local newspaper, containing an alleged “confession” and “eyewitness,” account of how the defendant murdered Dorothy Traylor, so permeated the community with prejudice toward the appellant as to preclude a trial consistent with due process.

Even though newspaper articles had been given prominent space concerning the alleged offense, and the arrest of alleged defendants who were indicted, a change of venue was unnecessary. Jordan v. State, 56 Ala.App. 55, 318 So.2d 793.

The articles contained in the record appeared to be factual and fair. They do not appear to have been intended to prejudice the citizenry against the appellant.

The only evidence produced by the appellant on this question came from the defense counsel. He stated in an affidavit that he had talked to at least fifty or sixty people about the homicide and that “. . . all expressed the opinion that . . . the defendant, Craig McLaren, was guilty.” No other evidence was produced in support of the motion.

In our judgment the appellant did not carry his burden of supporting the motion for a change of venue to the reasonable satisfaction of the court. Pryor v. State, 47 Ala.App. 706, 260 So.2d 614; Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79; Flurry v. State, 52 Ala.App. 64, 289 So.2d 632.

Under the facts in the present case the trial court did not abuse its discretion in denying the motion for a change of venue.

II

The appellant insists that the trial court erred in denying appellant’s motion for a copy of the alleged confession made by Eugene Bonner, as reported in ai^ article appearing in the Huntsville News\on November 17, 1975.

After an evidentiary hearing on December 18, 1975, the motion requesting production of the statement by the accomplice, Bonner, was denied, and the court in its decree said:

“. . . the Court is of the opinion that the information which Defendant seeks is already available to Defendant from Defendant’s own knowledge or from sources available to Defendant.”

Further, it said the motion was well taken and should be granted as to any information which the district attorney’s office had in its files which would aid or benefit the defendant in his defense or tend to exonerate him.

No absolute right to pre-trial discovery of a statement made by an accomplice to the police, implicating the defendant as the perpetrator of the crime charged, exists in Alabama. Some of the cases from other states have held that no such right exists. See State v. Brown, 360 Mo. 104, 227 S.W.2d 646; Leahy v. State, 111 Tex. Cr.R. 570, 13 S.W.2d 874; State v. Mitchell, 258 La. 427, 246 So.2d 814; State v. Curry, 262 La. 616, 264 So.2d 583.

In these cases unless the defendant shows an important reason to discover the contents of an accomplice’s statement, such as to impeach the testimony of a witness or to uncover evidence tending to exonerate the defendant or aid in the preparation of his case, then generally the discovery is not allowed.

Under the cases cited above, it is our judgment that the appellant was not entitled to the discovery sought unless he could show that one of the important reasons outlined existed.

This court in Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, outlined certain requisites necessary for the inspection and production of witnesses’ statements: First, that the statement must be in writing, prepared by him or prepared by another at his insistence and signed by him or otherwise authenticated by him; second that presentation of evidence showing that the statement made by the witness to the officers before trial differed in any respect from statements made to the jury during trial; third, a showing that the statement requested was of such a nature that without it the defendant’s trial would be fundamentally unfair.

The record did not indicate a prior inconsistent statement by the accomplice existed. Further, no attempt was made to introduce any statement by Bonner during the trial. The only account before the jury of what Bonner said occurred during the day in question came in his testimony at trial. The appellant’s counsel thoroughly cross-examined him and had an ample opportunity to question him concerning any alleged pri- or inconsistent statements.

It is noted that the statement appearing in the newspaper was substantially the same as that Bonner made during the course of the trial. We do not believe that the appellant was entitled to the so-called confession by Bonner because it failed to show or meet the criteria set out above.

Ill

It is maintained that the trial court committed error when it denied the defendant’s motion to quash the indictment. Counsel argues that no witnesses, before the grand jury, gave testimony as to any facts to implicate the defendant or connect him with the commission of the crime. Further, he contends the reading of the alleged accomplice’s statement to the grand jury, without Bonner being present or his absence being explained, was not “legal documentary evidence.” Counsel insists that the law requires the grand jury to have either a witness or documentary evidence before it.

Title 30, Section 86, Code of Alabama 1940, Recompiled 1958, states:

“In the investigation of a charge for any indictable offense, the grand jury can receive no other evidence than is given by witnesses before them, or furnished by legal documentary evidence . . .

Also, the law is clear that an indictment may rest on hearsay evidence. Armstrong v. State, 294 Ala. 100, 312 So.2d 620; Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397. Further, it is well established that no inquiry into the sufficiency of such evidence would be indulged. Crowden v. State, 41 Ala.App. 421, 133 So.2d 678.

In the present case, the record shows that the chief assistant district attorney and Detective Turner gave testimony before the grand jury concerning the investigation of this case and that the testimony was based on the statement made by Bonner. It is judgment that the grand jury had competent evidence before it and the testimony comported with the requirement of T. 30, Section 86, supra. Whether this evidence was sufficient cannot be questioned. Crowden v. State, supra. See: Douglas v. State, 42 Ala.App. 314, 163 So.2d 477, reversed on other grounds, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934.

IV

The appellant asserts that the trial court unduly limited his cross-examination of the State’s witnesses. Specifically, he says that he made repeated attempts to cross-examine Bonner concerning Bonner’s alleged attempt to kill himself, and, second, he attempted to cross-examine appellant’s ex-wife, Melisa Voit, in an effort to show her bias and prejudice toward the appellant.

Although Alabama follows the English Rule of unlimited cross-examination, Ball v. State, Ala.Cr.App., 337 So.2d 31, such cross-examination does not extend to wholly collateral or irrelevant matters. McDonald v. State, Ala.Cr.App., 340 So.2d 103. Discretionary power to limit cross-examination still rests with the court and such discretion will not be considered abusive when it has been shown that the cross-examination was curtailed because it; one, was repetitious; two, wholly concerned collateral matters; three, was irrelevant; or four, harassing, annoying or humiliating. Ball v. State.

Great latitude is allowed in cross-examination in order to develop a witness’s bias. Even so, the trial court has reasonable discretion in confining examination to prevent diversion to outside matters. Jackson v. State, 272 Ala. 566, 133 So.2d 210.

The present record indicates that wide latitude was allowed the appellant in his questioning of Bonner and Voit. In our examination of the transcript, the evidence shows that appellant’s cross-examination was curtailed only on irrelevant matters.

Whether Bonner attempted to get Gail Binford to kill him or threatened to kill himself, under the circumstances, was irrelevant.

Also, the evidence concerning whether the appellant’s ex-wife was found in bed with another man, evidence which was introduced to show her prejudice and bias toward appellant, was irrelevant. The events asserted to be the subject of the prejudicial attitude of the ex-wife occurred after the alleged murder and two months after the divorce. How this exemplifies prejudicial attitude under these facts was not shown.

In our judgment, the trial court did not abuse its discretion and cross-examination was not curtailed on any relevant matters.

V

It is alleged that appellant’s motion to exclude the evidence should have been granted because the testimony by the accomplice, Eugene Bonner, was not corroborated.

The law of Alabama says in essence that a conviction for a felony cannot be maintained on the testimony of an accomplice alone unless corroborated by other evidence tending to connect the defendant with the commission of the offense charged. T. 15, Section 307, Code of Alabama 1940, Recompiled 1958. Whether sufficient evidence is adduced at trial to corroborate the accomplice’s testimony is a preliminary question for the trial judge. Leonard v. State, 43 Ala.App. 454, 192 So.2d 461; Smith v. State, 230 Ala. 413, 161 So. 538. Under Sorrell v. State, 249 Ala. 292, 31 So.2d 82, the trial judge, in analyzing the accomplice’s testimony, is required to lay his testimony aside and then determine whether the remaining testimony tends to connect the defendant with the commission of the crime. Dobbins v. State, 45 Ala.App. 190, 227 So.2d 820. The evidence required in corroboration of accomplice’s testimony may be direct or circumstantial. Pryor v. State, supra. The weight and sufficiency of such evidence are questions for the jury. Horn v. State, 15 Ala.App. 213, 72 So. 768; Miller v. State, 290 Ala. 248, 275 So.2d 675.

In the present case the evidence presented in corroboration of Bonner’s eyewitness account, included: (1) testimony by the appellant’s former wife that appellant said he was present when Mrs. Traylor was killed; (2) testimony by Thomas Hall that the appellant and the accomplice bought “Playtex” gloves from him at the store located near the victim’s home on the day she was killed; (3) testimony by Don Adams and Christine Fait tending to show that the appellant and the accomplice were in the vicinity of the victim’s home on the day she was killed.

In our judgment, when these facts are examined in the absence of the accomplice’s testimony, they are more than sufficient. It is clear that from this corroborative evidence it can reasonably be inferred that the defendant was connected with the murder.

Under these facts, the trial judge was justified in denying the motion to exclude, and submitting the question to the jury.

VI

Appellant averred that to require him to make bond when the case was submitted to the jury, after he had been released on his own recognizance throughout the trial, indicated the trial court was biased and prejudiced against him. Counsel insists this action by the trial court was error.

The law pertaining to the undertaking of bail is stated in T. 15, Section 206, Code of Alabama 1940, Recompiled 1958; which reads:

“The court, before which any defendant is bound to appear, may require him to enter into a new undertaking, when it appears to the court that the original undertaking was insufficient when entered into, or has since become insufficient from any cause whatever.”

Under the law in Alabama involving capital offenses bond may be constitutionally denied where the proof is evident or the presumption great. Ex parte Bynum, 294 Ala. 78, 312 So.2d 52.

In our judgment, the appellant in the present case was not deprived of a fair trial by the action of the trial court in requiring bond when the case was submitted to the jury.

The transcript indicated that the trial court took every precaution to prevent the jury from knowing of the bond requirement. The trial judge explicitly required the appellant to be allowed sufficient time before trial the next morning to shave and dress in fresh clothes. Further, he ordered the appellant be brought into court without handcuffs and that the guard attending him be dressed in civilian clothes and sit outside the rail.

It was not unreasonable for the trial judge to require bond at this late stage in the trial. From the facts presented at trial it could reasonably be inferred that the defendant was guilty of the crime charged and the likelihood of his returning to court was not as great as it was before the trial began.

Under these circumstances, we fail to see any merit in the appellant’s argument.

VII

Counsel for appellant complains that the trial court unduly confused the jury by charging them as to the law of conspiracy.

It is apparent from the testimony that Bonner was the appellant’s accomplice in the commission of this homicide or, if the appellant’s version of the alleged offense is believed, that he was Bonner’s accomplice. Under either version of the testimony the trial court was correct in instructing the jury on conspiracy.

VIII

It is contended that the court erred when it denied the defendant’s motion for a new trial.

The matter of granting a motion for a new trial rests within the sound discretion of the trial court, and on review every presumption in favor of the correctness of the trial court’s decision will be indulged. Jones v. State, Ala.Cr.App., 339 So.2d 1042; Binion v. State, 57 Ala.App. 234, 327 So.2d 729. Only where the preponderance of evidence against the verdict is so decided as to show that the verdict is wrong and unjust will the trial court’s decision overruling the motion be reversed. Colston v. State, 57 Ala.App. 4, 325 So.2d 520.

Under the facts in this case we cannot say that the verdict was so patently against the weight of evidence as to convince us that it was wrong and unjust.

Since there is no error in the record, this case is

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte Craig R. McLAREN.
    77-151.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge. DeCARLO, Judge,

text:
    Joe SCOTT, alias v. STATE.
    3 Div. 764.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Oct. 25, 1977.
    George W. Cameron, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged the appellant with the robbery of Thomas Northington by taking $30.00 in lawful currency from his person. The jury found the appellant “guilty as charged”" and fixed his punishment at fifteen years in the penitentiary. The trial judge entered judgment in accordance with the jury’s verdict. Appellant’s motion for new trial was overruled.

Thomas Northington testified that on November 13, 1976, he and his sister-in-law, Sheila Northington, were employed at the Western Oil Company station located on West Fairview Avenue in Montgomery. He stated that just before 10:00 PM that evening, he and Sheila were inside the station preparing to close for the day when appellant appeared on the premises. Thomas stated that upon seeing the appellant, he walked outside and asked if he could help, and that appellant told him he would like a six pack of beer. Thomas testified he then went over to the walk-in cooler located on the outside of the station and that appellant followed. Thomas stated that when he walked inside the cooler, appellant shut the door, then immediately re-opened it and stepped inside armed with a .410 sawed-off shotgun. Thomas testified that appellant held the gun in “pistol fashion” and stated, “Give me your money and don’t look at me”, and that he gave appellant “about thirty or thirty-five dollars . . . [of] the store’s money.” Thomas stated that appellant then “backed out” of the cooler and closed the door, locking him inside. He testified that before the cooler door closed, he saw a white automobile pull into the station. Thomas stated that he identified the appellant in a line up conducted a week after the incident in question, and he also made a positive in-court identification of the appellant and the weapon appellant used to perpetrate the robbery.

The State then offered the testimony of Sheila Northington who testified that she was inside the station sitting at her desk doing paper work and counting money during the robbery of her brother-in-law, but added that at the time, she was unaware that a robbery was taking place. She stated that she first noticed the appellant when he and another black male (subsequently identified as Archie Perdue, alias Gniskioski Thompkins) came inside the station. Mrs. Northington stated that Perdue asked for a pack of “Kool” cigarettes, and that when she turned around to hand them to him, she saw appellant hand Perdue a sawed-off shotgun. The witness testified that Perdue pointed the gun at her and told her to “give him all her money” and that she replied “Man, you’ve got to be kidding” to which appellant responded, “No, I’m not.” Mrs. Northington stated that Perdue reached inside of her coat pockets to see if she had any money then pushed her into the stockroom which was located at the rear of the station. The witness stated that she then started screaming and that Perdue instructed her to “shut-up or else he would kill [her].” Mrs. Northington testified that she was unable to subdue her emotional outburst, and that because of this, Perdue struck her over the head with the butt of the shotgun. Mrs. Northington stated the shotgun fired when Perdue hit her and that she fell to the floor and “went blank for a little bit.” She stated that when she regained consciousness, appellant and Perdue had fled, and that she then activated the station’s security alarm system. Mrs. Northington testified she went outside to telephone her employer and there heard her brother-in-law inside the cooler “bamming on the door hollering ‘Let me out.’ ” Mrs. Northington testified that she subsequently discovered that approximately two hundred and seventy three dollars were taken from the station’s cash drawer. She stated that she later identified appellant in a line up conducted at the police station, and also positively identified the appellant in court as one of the men who robbed her. Mrs. Northington also identified a .12 gauge sawed-off shotgun as the gun utilized by Perdue and the appellant.

Over appellant’s objection, the State offered the testimony of Mrs. Becky Roberson who testified she operated Wiggins Grocery located on Woodley Road in Montgomery. Mrs. Roberson stated that on November 18, 1976 (five days subsequent to the incident in question), two black males entered her store, and in response to her saying “Can I help you?”, one of them pulled out a twelve gauge sawed-off shotgun and said, “Yes you can, give me your money.” Mrs. Roberson stated that when she opened the cash register, “one of them” came around the counter and removed the cash from the drawer and instructed her to put the change in a sack. Mrs. Roberson testified that the man “that didn’t have the gun” asked her if she had a weapon and where her telephone was located. She stated that, when she told him that she didn’t have a gun or telephone, he went in the back part of the store and looked around then came back and picked up fourteen packs of “Kool” cigarettes. Mrs. Roberson testified that the two men started for the door then “the one with the gun” turned around and stated, “We will be back, . . . [b]y God, you better have more money.” The witness stated that as the two men were leaving, another black male, whom she positively identified as appellant, entered the store, walked over to the cooler, removed a six pack of beer, then instructed her to place the beer in a sack. Mrs. Roberson testified that the three men then went outside and drove away in a white automobile with blue doors. She further testified that as they were leaving the store “one of them” turned and said, “Don’t stick your head out the door. I’ll blow it off. You’re not going to get the tag number.” The witness stated that after the three men had left she locked the door and called her “bossman” and the police. She added that $114.80, fourteen packs of cigarettes, and a six pack of beer were taken during the robbery.

Officer John Pressley of the Montgomery Police Department testified that he was on patrol around 3:00 PM the day of November 18, 1976, and received a radio dispatch to be on the look-out for a late model Plymouth with blue or black doors. Officer Pressley stated he spotted an automobile on Virginia Loop Road near the Troy Highway which fitted that description and that three black males were riding therein. Officer Pressley testified that he stopped the car, removed the suspects, and looked inside the vehicle where he observed a large quantity of cigarettes, several beers, and “what appeared to be a barrel sticking out from under the passenger side of the vehicle.” Officer Pressley stated that he retrieved two shotguns from beneath the seat, a .410 sawed-off shotgun and a double barrel twelve gauge sawed-off shotgun. He further stated that the occupants of the automobile were identified as the appellant, Archie Perdue, and Roosevelt Turner.

Appellant did not offer any evidence in his behalf.

I

On this appeal, appellant urges that the trial court erred in allowing the State to introduce evidence of a separate, distinct, and independent offense which occurred five days subsequent to the offense for which he was charged in the indictment.

It is an elementary rule of law that in a criminal prosecution proof of collateral offenses cannot be used as substantive evidence to establish the guilt of the accused as to the crime for which he stands charged in the indictment. However, this well-established principle of criminal evidence is subject to several equally well-established exceptions. Wilkins v. State, 29 Ala.App. 349, 197 So. 75; Mason v. State, 259 Ala. 438, 66 So.2d 557. These recognized exceptions have developed into general categories, and are listed in Wharton’s Criminal Evidence, Section 31, as follows:

“These exceptions fall under the following general divisions: (1) Relevancy as part of res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes. It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one hand, and, on the other hand, to protect the accused and secure to him the rights guaranteed to him by the Constitution and the laws.”

The State maintains that the robbery of Becky Roberson at Wiggins Grocery was relevant and competent for the purpose of proving the identity of appellant, and it appears in the record that the trial judge based his ruling on the “identity exception” and instructed the jury in his oral charge to only consider the evidence concerning the robbery of Becky Roberson “for the strict purpose of [appellant’s] identity.”

The issue here presented was dealt with by our Supreme Court in the recent case of Williams v. State, 350 So.2d 708. Justice Faulkner speaking for the Court framed and answered the issue as follows:

“The issue presented is, does a plea of not guilty, where the defendant offers no other defense, and where the witness made a positive identification based upon her observation of defendant at the first robbery, place his identity in issue, so as to justify admission of a separate and distinct subsequent offense. The answer is no. Admission of evidence of the subsequent robbery is reversible error.” (Emphasis supplied.)

In the instant case, appellant entered a plea of not guilty, presented no defense, and was positively identified by the victim as the sole perpetrator of the robbery.

Therefore under the authority of Williams v. State, supra, we are constrained to hold that the trial court erred in admitting evidence concerning the subsequent robbery for the purpose of proving identity where that issue was clearly established by direct and competent evidence. See: Boggs v. State, 268 Ala. 358, 106 So.2d 263.

We pretermit discussion of the other assertion of error raised by appellant as it will not likely reoccur in event of a new trial.

For the error noted, the judgment is reversed and the cause remanded.

Reversed and remanded.

HARRIS, BOOKOUT and BOWEN, JJ., concur.

DeCARLO, J., dissents.

DeCARLO, Judge,

dissenting.

The Supreme Court in Williams v. State, 350 So.2d 708, held that the admission of evidence of a subsequent robbery did not fall within the identity exception to the general exclusionary rule as outlined in Mason v. State, supra.

In that opinion, the court disagreed with the State’s contention that presentation of evidence concerning a subsequent robbery fell within the identity exception. The court said that the manner in which the defendant committed the offense was not “so unique or unusual as to operate as a mark or identification in itself.” The court went on to say that the facts of the Williams case did not show any “novel or extraordinary means” employed during the commission of the robberies, and for that reason, the identity exception did not apply.

The Supreme Court of Alabama in Williams v. State, supra, did not remove the “identity exception.”

The case we have for consideration can be distinguished from Williams v. State, supra, for the following reasons: (1), There were two victims, Sheila Northington and her brother-in-law: (2), One victim [Sheila Northington], was injured during the robbery: (3), More than one person perpetrated the robbery: (4), The trial court ruled that the subsequent robbery of Becky Roberson at Wiggins Grocery was relevant and competent for the purpose of proving identity: (5), The jury was admonished that the evidence was to be considered only “for the strict purpose of [appellant’s] identity,” and; (6), There were facts present which demonstrated “novel or extraordinary means employed during the commissions of the robberies.”

In distinguishing the facts of Williams v. State, supra, from those cited above from the case at bar, we note the following facts from Williams: (1) There was only one victim: (2) The appellant was the sole perpetrator of the robbery: (3) No novel or extraordinary means were employed during the commission of the offense and: (4) There was no admonishment by the trial judge instructing the jury as to the purpose of the evidence of the subsequent robbery.

Turning to the question of whether or not the facts in the present case demonstrate that the robbery was perpetrated in a unique or unusual manner so that it operates as a mark of identification in itself, the following facts should be considered. In the robbery of the Northingtons, Thomas Northington was the first to be accosted by the robber:

(1) The appellant first asked for a six-pack of beer.
(2) He was armed with a 410 gauge sawed off shotgun.
(3) Northington was told to “give me your money and don’t look at me,” and;
(4) Prior to the robbery, Northington saw a white automobile pull into the station.

After locking Thomas Northington in a cooler, the appellant went into the store to rob Sheila Northington:

(1) The appellant was accompanied by another male.
(2) The man with the appellant asked for a pack of “Kool cigarettes.”
(3) A sawed off shotgun was used.
(4) Mrs. Northington was told to “give me all your money.”

In the subsequent robbery of Mrs. Roberson at Wiggins Grocery, there are facts which illustrate the novel and extraordinary means employed during the robbery. These operate as a mark of identification and are as follows:

(1) Three black males were involved.
(2) A twelve gauge shotgun was used.
(3) The victim was told to “give me your money.”
(4) Fourteen packages of “Kool cigarettes” were taken.
(5) The appellant took a six-pack of beer.
(6) The trio escaped in a white automobile with blue doors.

Therefore, the apparent similarities in these cases which demonstrate the novel and extraordinary means used are:

(1) More than one person perpetrated each robbery. Mrs. Roberson identified the appellant as one of the three black males who robbed her at Wiggins Grocery. Mr. Northington and Sheila identified the appellant as one of the black males involved in the robbery of their station.
(2) In both robberies the men either asked for or took beer and “Kool” cigarettes.
(3) Shotguns were used in each robbery, and:
(4) The car used in each robbery was described as being white:

In my judgment it is clear that the appellant was one of the persons who committed the robbery at the Northington’s service station and at Wiggins Grocery. The facts outlined above indicate the novel and peculiar manner in which the two robberies were committed. This evidence went far beyond any tendency to show the appellant’s propensity for committing the same type of crime. It operated as a mark of identification and came within the purview of the identity exception outlined in Mason v. State, supra. Under these circumstances, the trial court was correct in permitting this evidence to go to the jury under proper instructions.

For these reasons, I respectfully dissent.


author: FAULKNER, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-119.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    Cleo D. JACKSON v. STATE.
    4 Div. 502.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    Rehearing Denied Nov. 15, 1977.

      J. Fletcher Jones, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Winston D. Durant, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

On March 16, 1976, the grand jury of Covington County indicted the appellant for first degree murder. The indictment charged that Cleo D. Jackson “. unlawfully and with malice aforethought killed Roy Charles Crittenden by so operating the motor vehicle he was driving as to cause it to run into, over, upon, or against a vehicle in which the said Roy Charles Crit-tenden, was riding and thereby causing the death of Roy Charles Crittenden. . . . ”

The appellant was tried and found guilty of manslaughter in the first degree and punishment was fixed at two years imprisonment.

In support of this indictment the State presented the following evidence.

About twilight on Sunday, February 15, 1976, William Tunnell, Jr. was driving east on Highway 84, near the Conecuh River Bridge in River Falls, Alabama. It was shortly before 6:00 P.M., and he was accompanied by his wife and her seven-year-old daughter. Tunnell testified that the only automobile he passed was an east bound 1967 model Chevrolet just prior to reaching River Falls. The Chevrolet was occupied by one person and according to Tunnell, when he passed the Chevrolet, his car was traveling about 55 miles an hour. There was no oncoming traffic until Tunnell had driven over the Conecuh River Bridge and was half-way down the grade coming off of the bridge on the other side. Tunnell stated that at that point he met a Ford Torino traveling west. He went on to say that “the car was coming fast and it had no lights on, I say fast, it was approaching us and I didn’t notice how many people were in the car. ... I was approaching up to 55 after coming off the bridge and the car in my estimation was going at least as fast as I was.”

Tunnell recalled, “I noticed the car because at the time I had my lights on while the rest of the cars we had seen that day at that time had their lights on and this car did not have its lights on. It ran off the road some distance in front of us and seemed to be off the road as it passed us.” Tunnell said he last saw the Ford Torino when it passed him headed for the bridge.

Tunnell testified that he traveled some one hundred yards further down Highway 84, turned around and returned to a point east of the bridge where two vehicles had collided. He recognized one of the vehicles as the Ford Torino that he had met moments earlier as he came off the bridge. The other vehicle was the eastbound Chevrolet that he had passed in front of Huggins farm on the outskirts of River Falls. After recognizing the vehicles involved, Tunnell turned around and drove to a service station where he called the Andalusia Police Department.

During cross-examination, Tunnell said he could not precisely say how far off the road the Ford was as it passed him, but said, “I just saw it kicking up dust.”

In describing the scene of the accident Tunnell testified that the 1967 Chevrolet was off of the road “. . .it was up on the flat part of the road which goes . approaches the bridge, turned around in the opposite direction.” He said the Chevrolet was on his left as he was coming back on Highway 84, and the Torino was in the middle of the road just to his right of the Chevrolet.

C. R. Wages testified that he lived at the river on Highway 84, and recalled that on February 15, 1976 about sundown he saw and heard an automobile collision. According to Wages, his brother-in-law, Ed Bled-sole, was with him at the time he heard the collision and they went from his house up the hill to the highway where “two cars had run together.” Wages recalled that the Ford Torino was sitting “almost in the middle of the road” and the Chevrolet “was almost off the road.” He explained that, approaching the bridge going west, the Chevrolet would be on the south side of the road.

Wages stated there was one person in each of the cars but he did not recognize either one. He said that when he got to the Torino, he saw a man, apparently unconscious, lying across the front seat. Wages straightened the man’s head up but stated he did not smell alcohol at the time, but did smell gasoline.

Wages and his brother-in-law were the first ones on the scene. Wages said that a car occupied by a male and a female came from the east and stopped. The occupants got out of the car but subsequently returned to the car and drove off. Wages said that he neither recognized the occupants nor did he recognize Mr. Tunnell and his wife as any of the persons who were present on the night of the collision.

M. D. Gantt, was the chief of police of River Falls, Alabama, and on Sunday evening, February 15,1976, he investigated the automobile collision at the Conecuh River Bridge.

He recalled that when he arrived at the scene, he recognized Cleo Jackson’s vehicle, went over to the car, and checked the appellant for a pulse beat. Gantt explained that he knew Cleo Jackson because he lived near him. He stated that he did not recognize the person in the other car involved in the collision and that he did not find a pulse beat on him.

On cross-examination, Gantt testified' that Jackson’s “leg was up under the dash and half of his body was over the back seat.” Gantt stated that he did not smell any alcohol but could smell gas.

Robert Harrell, an Alabama State 'Trooper for approximately six and one-half years, acknowledged that as a trooper he had received training in, and, had conducted investigations of automobile and truck collisions. He went on to relate that prior to being a State trooper he was a police officer and had made such investigations, and had continued to do so for the eight years that he was so employed. He acknowledged that in determining the point of impact of vehicles involved in a collision, skid marks and debris from the wreckage were considered.

Harrell testified that in response' to a “call” received at 5:55 P.M., on Sunday, February 15, 1976, he went to the Conecuh River Bridge in River Falls, Alabama, to investigate a collision. Upon arrival at the scene, he saw M. C. Gantt, State Trooper Connie D. Fowler, and Richard Morrison. He acknowledged that he had made measurements and taken pictures during his investigation. He identified the appellant’s vehicle and the vehicle belonging to the victim.

In response to questioning, Harrell stated that at the scene of the collision he found skid marks off the paved portion of the road going west. Further, he said he did not find any skid marks leading back from the direction of the two vehicles involved in the collision. Over objections, he acknowledged that he determined the location of the point of impact to be in the eastbound lane of traffic coming from River Falls to Andalusia. He stated his determination was based on “where the pavement had been cut into with some type of metal and also some type of debris.” Harrell explained that the debris was glass and dirt, and that the cuts in the pavement “were fresh.” He also marked State exhibit photographs to show the point of impact, and identified photographs showing the appellant’s and the victim’s car. Harrell testified that he had measured the distance from the east end of the bridge to the point of impact and determined it to be thirty-eight feet.

After making his investigation of the collision, Harrell went to the hospital, saw the appellant and the victim, and received a blood sample from Ben Stanley. According to Harrell, there were two tubes with one sample in each. He kept the samples in his possession until he carried them to the crime lab in Enterprise on February 18, 1976, where he then gave them to Dale Carter. He explained that he stored the blood samples in his refrigerator and when removed, they were in the same condition as they were when placed there.

During cross-examination, Harrell stated that debris was scattered over a portion of the highway and that it appeared to be a head-on collision. He went on to say that the point of impact was some eighteen inches from the yellow line in the eastbound lane. He admitted, however, that his determination of the point of impact amounted to a deduction.

During re-direct examination, Harrell said that he was taught that the best time to determine the point of impact was “soon as possible before any vehicle was moved.”

On re-cross examination, Harrell acknowledged that prior to the accident, he had never been at the scene where the collision occurred and looked at the pavement. He revealed that his deduction of the point of impact was based on the presence of the “fresh marks” on the pavement. Further, he noted that the speed limit at the site of the collision was 40 miles per hour but “a distance on down” the limit was increased to 55 miles per hour.

Benjamin Stanley, a medical technologist at the Andalusia Hospital laboratory on February 15, 1976, recalled seeing the appellant in the emergency room. According to him, Dr. Wayne Johnson was in charge that night, and he directed Stanley to take a blood sample from Cleo Jackson, the appellant. Stanley said that he also took a blood sample from the victim, Roy Charles Crittenden. Both samples were placed in a vacuum container with an anticoagulant, and they were then sealed and labeled and given to a State trooper.

During cross-examination, Stanley stated that he did not remember the name of the State trooper but that he had given the sample to him “prior to my leaving the hospital, shortly after the specimen was drawn, I don’t know exactly how many minutes.”

According to Stanley, he did not talk to the appellant and did not remember whether or not he was conscious. He could not say how many blood samples were taken from the appellant but that the blood samples were taken in the emergency room. He stated that the samples were labeled and then placed in the refrigerator. Stanley explained that although others had access to the refrigerator they were not there at the time.

Dr. Wayne Johnson treated Cleo Jackson at the Andalusia Hospital on the night of the collision. Dr. Johnson said that during his examination he ordered a blood sample be taken and that he detected the odor of alcohol about the patient.

The doctor agreed that in his professional opinion a person having .32 percent ethyl alcohol content in his blood would be intoxicated.

On February 18, 1976, Dale Carter, a criminalist and director of the Enterprise region of the crime laboratory, received from Trooper Harrell, blood samples belonging to the victim and the appellant. The samples were then turned over to toxicologist, Dr. C. R. McCahan, Jr.

Dr. McCahan testified that he received two green stoppered vacuum tubes containing blood samples belonging to the victim and the appellant. He stated that after running a microchemical analysis, he found that the blood sample belonging to Roy Charles Crittenden did not reveal the presence of ethyl alcohol, but the sample belonging to Cleo D. Jackson revealed .32 percent ethyl alcohol.

Corporal J. C. Fowler of the Alabama State Troopers, acknowledged that a portion of his training had been in the investigation of vehicle collisions. His training involved measurements, looking at debris, skid marks to determine point of impact, and ascertaining the path of the vehicle immediately before and after the accident.

Fowler was in charge of the investigation of the collision in question and on February 15, 1976, he assisted Trooper Harrell in the investigation of the collision at the Conecuh River Bridge. Fowler stated that the day following the collision he returned to the scene and found scuff marks on the west side of the road going west where the vehicle was in “a partial side skid which cut up and pushed the grass down.” Fowler said, “that you could follow the exact tracks off the edge of the pavement from the point of impact back up to the side of the highway.” He testified that the grass had been disrupted by some ninety to one-hundred feet back toward Andalusia and there were thirty-five to forty feet of track leading from the point of the impact to the edge of the highway.

During cross-examination, Fowler stated that besides the vehicles involved, there were as many as one-hundred other vehicles parked near the scene. He said, however, that the scuff marks appearing on the photographs, in his opinion, were those made by the accident.

Forrest Hobson, a funeral director in Andalusia, and county coroner, testified that he viewed the body of Roy Charles Critten-den and determined that the cause of death was a broken neck.

At the end of Hobson’s testimony, the State rested and the defendant made a motion to exclude the State’s evidence. The motion was denied and the defense recalled Clem Wages for further cross-examination.

Clem Wages testified he was at the scene of the collision the next day and did not observe any skid marks or scuff marks across the road. Further, he said he did not see any indication of skid marks along the side of the road on the grass.

Cleo Jackson testified in his own behalf, that he was thirty-six years old, married with two children, and that his wife was a cousin to the deceased, Roy Charles Critten-den. According to Jackson, the night prior to the collision, he drank some beer during a family fish-fry at his house. He said that he did not recall how many beers he drank but that he had gone to bed about 11:00 or 11:30 P.M. Jackson said around 8:00 o’clock the next morning he went to Andalusia to see a fellow-worker but he was not at home. Later that afternoon he returned to Andalusia and after seeing him, he went to see Archie Parker. Jackson testified that after leaving Parker’s house he headed for River Falls on Highway 84. He said he thought his headlights were on but he could have been mistaken. According to Jackson, when he got to the bridge he met a car that was coming over on his side of the highway. He stated “that is when I started throwing on brakes and slowing up and that is the last thing I remember.”

Jackson reiterated the last time that he had anything to drink was the night before the accident and the next day he was sober. He stated he gave no one permission to take his blood and he learned that a blood sample was taken after he regained consciousness.

After calling four character witnesses who testified that the appellant’s general reputation in the community was good and that his reputation for truth and veracity was also good, the defense completed its case.

I

It is contended that the evidence was insufficient to sustain a conviction of first degree manslaughter and that the trial court erred in refusing appellant’s request for the affirmative charge and his motion for a new trial.

This court in Roden v. State, 44 Ala.App. 483, 213 So.2d 865, stated the elements of manslaughter in the first degree. It went on to say that one could drive an automobile in such a manner as to evidence a wanton and reckless disregard, and if such proximately causes the death of another, the driver would be guilty of manslaughter in the first degree.

From the testimony of Mr. Tunnell, it could reasonably be inferred that the appellant just prior to the collision was driving his car in such a manner as to evidence a wanton and reckless disregard of human life. The testimony of the investigating officers indicated that the point of impact was some eighteen inches from the center of the line in the victim’s path of travel. The testimony from the toxicologist indicated that a blood sample taken from the appellant showed .32 percent ethyl alcohol, which, according to Dr. Johnson would indicate that the appellant was intoxicated at the time of the collision.

Under these circumstances, the evidence presented raised questions of fact for the jury, and such evidence, if believed, was sufficient to sustain the conviction. Refusal to give the affirmative charge or to grant a new trial was proper under these circumstances. Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760; Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Young v. State, 283 Ala. 676, 220 So.2d 843.

II

The appellant contends that the testimony of the State troopers regarding the point of impact was improper and erroneously admitted. Counsel argues this testimony was not the result of a hypothetical question and was utterly without facts. The appellant relies on Jowers v. Dauphin, 273 Ala. 567, 143 So.2d 167, for support. The Supreme Court of Alabama in that case, said that a highway patrolman who was not present at the time of the collision could not testify to the speed of the vehicle. The court went on to say “skid marks [on] the road or highway were made at the time of the impact and the witness may not testify as to the speed of the vehicle simply by observing these local conditions and viewing the damage to the vehicles.”

In our judgment, the facts in the present case are distinguishable from those decided in Jowers v. Dauphin, supra.

In Holt v. State, 26 Ala.App. 223, 157 So. 449, a case whose facts parallel those in the case at bar, this court said:

“. . . [A] witness not present at the time of the accident, but, arriving immediately afterwards, examined the road and found marks and signs of the accident which indicated that the cars collided on the right-hand side of the road going west. ... is one of the exceptions to the general rule that witnesses must depose to facts in detail, leaving to the jury the finding of the conclusion. The testimony is classed as a collective fact.”

See also Madison v. State, 40 Ala.App. 62, 109 So.2d 749.

In the present case, Officer Harrell said that he had receive the “call” at 5:55 P.M., and that within five minutes he arrived at the scene. He said at the time of his arrival J. C. Fowler and another State trooper were already present.

According to Mr. Tunnell’s testimony, the accident occurred between 5:55 and 6:00 P.M., and under these circumstances it could reasonably be inferred that the State troopers arrived very soon after the collision. Further, Trooper Harrell stated that his conclusion as to the point of impact was based on his observation of the debris and the cuts in the pavement, and such observations were made before the vehicles were moved.

In our judgment, once a witness has detailed to the jury what conditions and circumstances he found and observed at the scene of the collision, it is not error to allow testimony concerning the point of impact along with the details of conditions and circumstances observed immediately after the collision.

Ill

During cross-examination of one of the defendant’s character witnesses, the State asked the following questions:

“Q. Alright, I want to ask you some other questions. Do you know, or had you been told, back on August 9, 1958, in the City of Andalusia he was arrested for reckless driving?
“A. Nineteen when?
“Q. 1958.
“A. Who was arrested?
“Q. Cleo Jackson.
“MR. JONES: We object to that, Your Honor.
“THE COURT: Overruled.
“A. I don’t know about it.
“Q. Alright, you hadn’t heard anything or anybody tell you about it so you don’t know?”

It is from this ruling that the appellant now appeals and contends that the trial court was in error in making such a ruling.

In Frazier v. State, 56 Ala.App. 166, 320 So.2d 99, Judge Harris writing for a unanimous court said:

“Where witnesses testified as to the good reputation of the defendant, it was permissible on cross-examination to test their knowledge of the defendant’s reputation by asking if they had heard of specific acts of the defendant that tended to mitigate against his reputation or character.”

In the instant case the record indicates that on direct examination, the witness was asked:

“Q. Alright, now. I want to ask you, at the time of the accident, concerned with this case on February 15th and ask you, Mr. Bradley, do you know the general reputation of the defendant in the community where he resided at, at that time?
“A. His reputation was considered good at that time.
“Q. Alright, do you know his general reputation in the community where he resided at the time, February 15th for truth and veracity?
“A. Yes, sir.
“Q. Truthfulness is that reputation good or bad?
“A. Good.”

As can be seen from the above portion of the record, the inquiry was as to general character and not limited to general character for truth and veracity. Vaughn v. State, 17 Ala.App. 383, 84 So. 879. Under these circumstances it was proper for the State to ask the witness if he had been told of the appellant’s reckless driving arrest for the purpose of either showing that the witness was mistaken in his estimate of the appellant’s general character or for shedding light on his estimate of such character. Frazier v. State, supra; Stout v. State, 15 Ala.App. 206, 72 So. 762. Therefore, under these circumstances, the court was correct in overruling the objection.

IV

The appellant maintains that it was error for the trial court to permit the testimony of State Trooper Fowler concerning the conditions at the scene the next day. Counsel argues that without showing similarity in essential conditions, such testimony was improper.

We have examined the portions of Trooper Fowler’s testimony involving his visit to the scene the day after the collision and fail to see an objection interposed during the offering of this particular testimony. Without objection on this specific point, this court is without authority to review such a claim of error.

V

Appellant next asserts that the trial court erred when it permitted the State to present testimony of the results of an analysis of a blood sample taken from the deceased.

We have searched the record and particularly the testimony of the toxicologist, Dr. McCahan, to determine whether or not an objection had been interposed to the testimony concerning the results of the analysis of the deceased’s blood. Nowhere did we find an objection, and without such an objection on this specific point, we are without authority to review.

VI

The appellant insists that the trial court was in error when it allowed the district attorney to ask the defendant’s character witness, a relative of both the defendant’s wife and the deceased, whether the deceased drank. Counsel complains that the character of the deceased was not in issue and the question and response was highly prejudicial to the defendant.

The direct examination of this character witness shows that he was questioned generally as to his knowledge concerning the deceased, Charles Roy Crittenden.

From the record:

“Q. And you know the deceased, Charles Roy Crittenden?
“A. Yes sir.
“Q. And are you related to Charles Roy Crittenden?
“A. Yes, sir.
“Q. What is the relationship, what degree?
“A. Well about as much as one as the other.
“Q. You related to Cleo Jackson’s wife too?
“A. Yes, sir.
“Q. You are cousins?
“A. Yes, sir.
“Q. So you are related to the deceased and also to the defendant’s wife?
“A. Yes, sir.”

It is well recognized that the latitude and extent of cross-examination is a discretionary matter of the trial court and in the absence of prejudicial abuse it will not be reviewed. Connell v. State, 294 Ala. 477, 318 So.2d 710.

As can be seen from the foregoing testimony, it was appellant’s counsel who first inquired as to this witness’s knowledge of the deceased. Since this matter had previously been injected into the evidence by counsel for the defense, it then became a proper basis for inquiry on cross-examination. McClendon v. State, 54 Ala.App. 327, 307 So.2d 723.

VII

The appellant complains the trial court committed reversible error when it refused all of defendant’s written requested charges except one.

We have reviewed the court’s oral charge and the appellant’s written requested charge that was given. The remaining twenty-six refused charges we have carefully examined and find they were properly refused. They were either affirmative in nature, incorrect statements of the law, argumentative, and invasive of the province of the jury or were fully and substantially covered in the trial court’s oral charge. Therefore, the court’s refusal to give those charges was not improper. T. 7, § 273, Code of Alabama 1940, Recompiled 1958.

No error appearing in the record the case is due to be affirmed.

AFFIRMED.

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

BOOKOUT, J., concurs in result.


author: BLOODWORTH, Justice.

text:
    Ex parte Cleo D. JACKSON.
    SC 77-178.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   BLOODWORTH, Justice.

Writ Denied.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Michael ELLIS v. STATE.
    6 Div. 435.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Rehearing Denied Nov. 15, 1977.
    Arthur Parker, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: ten years imprisonment.

At about 7:45 P.M. on December 9, 1975, four men entered a Majik Mart in Birmingham. Mrs. Lillie Prather, the store cashier, testified that one of them reached across the counter and flipped the quarters from the cash register out over the floor, while one of the others went behind the counter, grabbed her around the neck and forced her into the back room of the store. Mrs. Prather was unable to positively identify the appellant as one of the four. However, two plain clothes policemen, H. L. Snow and John Wayne DeLoach, who were outside the store at the time of the robbery positively identified the appellant as the one who forced Mrs. Prather into the back room. Officer Snow testified that after one of the four men took money from the cash register (approximately $80) all four ran out the front door and split up with two going in each direction. One of the four was shot and killed, and the appellant was arrested in front of the store.

The appellant testified that he and two friends, Dennis Carter and Christopher Patterson, were in the store to buy a bottle of wine at the time of the robbery. He stated that he was not connected in any way with the robbery, but that he ran merely because he was afraid when he saw three other men attack Mrs. Prather. On cross-examination of the appellant, the prosecution elicited the fact that neither Carter nor Patterson were presently in attendance at the trial (apparently as witnesses).

During the earlier cross-examination of Mrs. Prather and the two officers, defense counsel had Dennis Carter step to the door of the courtroom and had asked each witness if they could identify Carter as having been at the scene of the crime. None could identify him. Carter had not been subpoenaed, but apparently was present during the first day of the trial to testify for the appellant. After being made aware, out of the presence of the jury, of the possible self-incriminating nature of his testimony, Carter declined to testify.

The only issue presented for review concerns the failure of Carter to testify after the jury became aware that he was a potential defense witness.

Both the appellant and the appellee cite Waller v. State, 242 Ala. 1, 4 So.2d 911 (1941) for the proposition that, if a party has a witness possessing peculiar knowledge of the transaction and fails to produce such witness when he has the means of doing so, this, in the absence of all explanation, is a ground of suspicion against him . . . .” Both parties cite Slater v. State, 43 Ala.App. 513, 194 So.2d 93 (1967) for the proposition that, “. . the affected party has the right to explain away any unfavorable inference which might be drawn against him by showing circumstances to account for his failure to produce the witness. . . .”

The parties differ on how the above propositions of law were applied in the instant case. The appellant contends, in essence, that he was not allowed to adequately show the circumstances to account for his failure to produce Dennis Carter as a witness. Ap-pellee contends that adequate explanation was in fact made by the appellant and that the trial judge had a right to cut off repetitious questioning on that issue.

After Carter had been shown to three witnesses for identification purposes, he was questioned by the trial judge outside the presence of the jury. After being fully apprised of his right against self-incrimination, Carter decided not to testify. The next day, on cross-examination of appellant, the prosecution brought out the fact that Carter had not returned to court. On redirect examination by the defense counsel, the following occurred, in reference to Carter’s in camera testimony:

“Q. Did you see him take the stand in the presence of Mr. Black?
“A. Yes.
“Q. Did you hear the Judge advise him of some rights that he had?
“A. Yes.
“Q. Did you hear the Judge advise him that anything he said on the witness stand that tended to incriminate him could be held against him?
“A. Yes.”

On recross-examination by the prosecution, the inquiry continued:

“Q. (By Mr. Black) Did you hear His Honor tell Dennis Carter that he had the right not to incriminate himself?
“A. Right.
“Q. That he had his constitutional rights against self incrimination?
“A. Right.
“Q. He told him that if he testified here in Court — I withdraw that. Did His Honor tell Dennis Carter that if he testified here in Court, that if he was going to testify to something which would tend to incriminate him in this incident that at that time he would have the right to claim his privilege against self incrimination?
“A. Yes.
“Q. And not answer that question?
“A. Yes.
“Q. Did you hear His Honor tell Dennis Carter that the Court was not telling him to testify or whether not to testify? “A. Right.
“Q. Did you hear His Honor tell Dennis Carter that he could testify if he wanted to testify?
“A. Right.
“Q. Dennis Carter is not here today, is he?
“A. No.”

Then on another redirect examination, the subject was again gone into by defense counsel and the ruling complained of arose:

“Q. (By Mr. Pickard) Michael, did you hear the Judge yesterday tell Dennis that if he testified that he was present out there that night that that might be evidence that would tend to incriminate him?
“MR. BLACK: I object to that.
“THE COURT: Sustained. You brought this out, Mr. Pickard. But let’s don’t—
“MR. PICKARD: I have no further questions.
“MR. BLACK: Nothing else.
“MR. PICKARD: Exception to the last ruling.”

It is the opinion of this court that the defense and the prosecution, through the above excerpts from the record, adequately apprised the jury of the circumstances accounting for appellant's failure to produce Carter as a witness. The only clear inference that could have been drawn from the above-quoted excerpts was that after being apprised of his right against self-incrimination, Carter elected not to testify. We do not think the trial judge abused his discretion in refusing to go further into the matter. It is within the trial court’s discretion to allow or exclude a question calling for repetitious testimony. Johnson v. State, 57 Ala.App. 561, 329 So.2d 621 (1976), 19A Alabama Digest, Witnesses, &wkey;245. Certainly the trial judge has no less discretion to limit redirect examination than he has on cross-examination in limiting repetitious testimony. “A trial is not meant to be an eternal phenomenon.” Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195 (1972).

AFFIRMED.

All the Judges concur.


text:
    Ex parte Michael ELLIS.
    SC 77-176.
    Supreme Court of Alabama.
    Dec. 22, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    Bruce Eric HALL v. STATE.
    6 Div. 223.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    Rehearing Denied Dec. 20, 1977.
    Mark B. Poison, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Jefferson County returned an indictment against the appellant, Bruce Eric Hall, charging him with robbery. Appellant entered a plea of not guilty. A jury found him guilty as charged and fixed his punishment at ten years imprisonment in the penitentiary and he was duly sentenced by the court to ten years in the penitentiary. He appeals to this Court.

Appellant was at all proceedings in the trial court, and is here represented by court appointed counsel. This appeal was submitted to this Court on briefs.

The appellant insists in his brief that his conviction should be set aside because the trial court committed reversible error by allowing testimony of a lineup identification of a co-defendant that was tainted by suggestive police procedure; that the trial court further erred when it overruled appellant’s motion to exclude all of State’s evidence when the State rested its case. The motion to exclude State’s evidence was because the evidence was insufficient to sustain a verdict of guilty. No motion for a new trial was made by appellant.

State’s evidence tends to prove that on October 5, 1974 State’s witness, McKenzie, was employed as an assistant manager of a U Totem store located at 4209 East Lake Boulevard in Birmingham, Jefferson County, Alabama; that about fifteen minutes to nine or ten o’clock that night McKenzie was alone in the store at the front counter counting some money when two black men came in the store together; that one of them was about five feet eight inches tall, and was wearing a U. S. Army field jacket, and the other one was around six feet one inch tall, and was wearing a floral shirt; that the tall person asked for a package of cigarettes; that when McKenzie reached for the money for the cigarettes, he saw that the short man had a sawed off shotgun up under his arm in between his hands, and told McKenzie to give him all the money and to put it in the bag in a hurry; that McKenzie opened up a small paper bag and put the money in it; that the money was U. S. currency and consisted of a few rolls of dimes, nickels, quarters and bills, and he handed it to the tall person who was standing right beside the short person with the gun; McKenzie was then told by one of the robbers to run out of the store which he did, and went next door to the Rotor and Wing Lounge and told the manager he had been robbed by two colored men in a white four-door Dodge automobile, and asked him to call the police; that the call to the police was made immediately; that the two robbers got in a white Dodge automobile with the motor running and left in a hurry going toward Highway Number 79; that the white Dodge was about a ’65 model; that a few minutes after the robbery McKenzie identified a white four-door Dodge automobile that had been stopped by Officer Kee-ton on Highway 79 about five and a half or six miles in a Northerly direction from the scene of the robbery as being the same car he had seen at the scene of the robbery; that McKenzie later identified a sawed off shotgun, some rolls of money and a paper bag that were found in the white Dodge by the police officers soon after it was stopped on Highway 79 that night as being just like the sawed off shotgun, some of the money and the paper bag involved in the robbery; that McKenzie identified State’s exhibit number 2, a green army fatigue jacket, as being just like the one one of the robbers holding the shotgun on him had on at the time of the robbery and also identified the tall man who took the bag of money as being Ralph McKinnon; that McKenzie did not identify the appellant in court, in a lineup or from pictures shown him about two weeks after the lineup, but did identify Ralph McKinnon in a six man lineup about two days after the robbery, and from three pictures shown him about two weeks after the lineup and in courts at different times as being the person who took the bag of money from him on the night of the robbery.

The testimony of State’s witness, Police Officer Keeton of the City of Tarrant, tends to prove that he was patroling on Highway 79 north on the night of October 5, 1974 at approximately 9:45 when he responded to a call and proceeded south on Highway 79 and in about three minutes after he got the call he stopped a white four-door 1964 or ’65 Dodge car headed north on Highway 79; that there were three black men in the car when he stopped it; that one, Carl Dodson McKinnon, was seated on the front seat on the driver’s side; that Ralph Edward McKinnon was seated on the front seat on the passenger’s side wearing a flowered shirt, and the appellant, Bruce Eric Hall, was seated on the back seat wearing an army field jacket; that after Officer Keeton had stopped the white Dodge the officer got another call over the radio and he then arrested all three men for armed robbery; that Officer Keeton at the scene of the arrest looked inside the white Dodge and saw about three or four inches of the butt end of a sawed off shotgun sticking out from under the front passenger’s seat; that the gun was a single barrel, twelve gauge with scotch tape wrapped around the stock which was approximately five or six inches long with some other wrappings around it to hold the stock on; that State’s exhibit one, a sawed off shotgun, looked like the same gun that Officer Keeton got from under the front seat of the Dodge; when Officer Keeton got State’s exhibit one from under the front seat it was loaded with a live twelve gauge number 2 shell; that State’s exhibit two, an army field jacket, was the same jacket that the appellant was wearing when Officer Kee-ton stopped the white Dodge and met the description of the jacket worn by the short man who had the gun at the time of the robbery; that Officer Keeton gave the sawed off shotgun, the twelve gauge gun shell and the army field jacket to Officer Evans of the Birmingham Police Department that night in a few minutes after Keaton unloaded the gun and removed the jacket from the appellant.

Officer Evans’ testimony tends to prove that about 9:40 on that night he received a call of a robbery of a U Totem store at 4209 East Lake Boulevard; that about ten or twelve minutes later he arrived at the scene on Highway 79 where Officer Keeton had under arrest Ralph Edward McKinnon, the appellant Bruce Eric Hall and Carl Dodson McKinnon; when Officer Evans arrived Officer Keeton gave him custody of Ralph and Carl McKinnon and the appellant Bruce Eric Hall, and a Forest King single barrel shotgun approximately twenty-one and three-fourths inches overall length with a wood stock wrapped in clear tape and twine, and a green army field jacket, and a shotgun shell; that Officer Evans made an in-court identification of State’s exhibit one as the same shotgun, and of State’s exhibit two as the same green army field jacket, and of State’s exhibit three as the same shell delivered to him by Officer Keeton; that Officer Evans made a search of the Dodge at the scene where Officer Keeton stopped it and found a small paper bag in the glove compartment containing twenty-seven dollars and eighty-four cents all in coins; that about fifteen minutes later and at the East Lake Precinct he found in Ralph McKinnon’s right front pocket thirty-seven dollars and eighty cents which consisted of a roll of quarters, two single quarters, three single dimes, two ten dollar bills, one five dollar bill and two one dollar bills; that the quarters were a machine roll of quarters.

Appellant’s evidence tends to prove that appellant and a couple of his friends, Carl and Ralph McKinnon, on the night of October 5, 1974 attended a party at 1540 Elm Street Southwest in Birmingham and left the party together between 9 and 9:30 P.M.; that State’s witness McKenzie had made contradictory statements that the two men who robbed him were white men in a white Dodge, that they had on jackets with hoods on them, and also they were two black men in a white Dodge. Appellant’s evidence further tends to prove that the car seen leaving the U Totem store immediately after the robbery with the robbers in it was not a white four-door Dodge but was a light colored Chrysler; that $155.09 was missing from the Totem store; that the appellant had a gold tooth and a scar under his eye; that Ralph McKinnon’s mother gave him a ten dollar bill before he left home on the night of the robbery.

Appellant was a witness in his behalf and testified in substance that on the night of October 5, 1974 he went to a party on Elm Street where he met Ralph and Carl McKinnon and after about thirty-five minutes appellant and Ralph and Carl McKin-non left the party on Elm Street to go to a party at a girl’s house out by Jefferson State College and that while the three men were on the way and when Carl McKinnon was driving, Ralph McKinnon was in the front seat of the car on the passenger’s side and appellant was seated in the rear seat, they met a white car, going in the opposite direction, with two white men in it and the car was speeding; that the men in the speeding car threw a bag and a rod out of the window of the speeding car; that Carl stopped the car appellant was in, and Ralph got out and went back to where the bag and rod were thrown out of the speeding car and came back to the car appellant was in with a bag of money and a shotgun; that appellant and his companions proceeded on toward the party and after about three minutes the car appellant was in was stopped on Highway 79 by the police; that State’s exhibit one is the same gun found under the front seat of the car the appellant was in that night, and that State’s exhibit two was appellant’s jacket and that appellant was wearing it that night; that neither appellant nor his companions robbed the U Totem store that night; that they were riding in a beige Dodge that Carl McKinnon owned.

When there is a conflict in the evidence, the inferences to be drawn from the evidence, the weight of the evidence, and the credibility of the witnesses are all questions for the jury. Vaughn v. State, 57 Ala.App. 134, 226 So.2d 662; Byrd v. State, 213 Ala. 333, 104 So. 830; Hunter v. State, 55 Ala.App. 475, 316 So.2d 722.

There is no positive identification of the appellant by the victim of the robbery, but when all the State’s evidence is considered, it is sufficient for a jury to conclude, and they did, that the appellant was one of the robbers. McKinnon v. State, Ala.Cr.App., 349 So.2d 87; Johnson v. State, 57 Ala.App. 470, 329 So.2d 160; Blakely v. State, Ala.Cr.App., 344 So.2d 812.

Appellant further contends that the trial court committed reversible error by allowing State’s witness McKenzie to give testimony of a lineup identification of Ralph McKinnon, a conspirator, that was tainted by suggestive police procedure. It appears from the record that the robbery was on the night of October 5,1974, and on October 7, 1974 State’s witness McKenzie viewed a lineup of six persons at the South Side City Jail; that after the robbery and before the lineup or during the lineup no suggestions had been made to McKenzie that Ralph McKinnon or the men who robbed McKenzie were in the lineup; that McKenzie was only asked if he could identify any of them and he identified Ralph McKinnon as one of the men who robbed him. Two weeks later he was shown three pictures, one of Carl McKinnon, one of Ralph McKinnon and one of the appellant, and identified only Ralph McKinnon as one of the men who had robbed him and took the paper bag of money from him. We have searched the entire record and do not find any evidence of suggestive police procedure that would taint the lineup identification of Ralph McKinnon in the lineup. We hold that the record before us does not show that the testimony of State’s witness McKenzie about the lineup identification of Ralph McKinnon, a co-conspirator, was tainted by suggestive police procedure. Brown v. State, 338 So.2d 1050.

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

The judgment of the trial court should be affirmed.

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.