author: MULLINS, Retired Circuit Judge.

text:
    Urias DEES v. STATE.
    1 Div. 960.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
    Rehearing Denied May 22, 1979.
    Reggie Stephens, Mobile, for appellant.
    Charles A. Graddiek, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State.
   MULLINS, Retired Circuit Judge.

The grand jury of Mobile County returned an indictment against the appellant, Urias Dees, charging him with murder in the first degree. Appellant entered a plea of not guilty. A jury found the appellant guilty of murder in the first degree and fixed his punishment at life imprisonment. The trial court duly sentenced the appellant to life in the penitentiary.

The appellant filed a motion for a new trial, the court denied said motion and appellant appeals to this court. The appellant was present at all proceedings in the trial court, represented by court-appointed counsel, and is so represented in this court. This appeal was submitted to this court on briefs.

The appellant, in his brief, contends that the trial court erred to his prejudice when it denied his motion to exclude the State’s evidence on the grounds that it was insufficient to sustain a conviction, and in denying his motion for a new trial based on the insufficiency of the evidence to sustain a jury verdict of guilty of murder in the first degree.

The State’s evidence tended to prove that the appellant and his wife, Mary Dees, the deceased, had been married and lived together for approximately thirty-two years, until about a month before November 5, 1977. On or about October 1, 1977, the appellant gave the deceased a rather severe beating and, as a result, the deceased left her home and refused to return, except on one occasion to get her clothing.

The appellant, through his daughter, requested that the deceased return to their home and continue to live with him. This she refused to do, and filed a divorce suit against the appellant and had a restraining order issued against him on October 26, 1977, ordering him to stay away from her. After the deceased left the appellant, she started living with another man.

The appellant knew that the deceased worked at O’Bannon’s Sandwich Shop located in Mobile County, Alabama. It was also shown that appellant had a limp in his walk that was caused by an injury to his right leg.

Prior to November 5, 1977, the appellant had made the statement to his nephew that “Mary had left him and he might have to kill her.”

On Friday night, November 4, 1977, at approximately 7:00 or 7:30, the appellant went to the home of the deceased’s cousin and got his twelve-gauge automatic shotgun, which he had left there about two weeks before. On that night, while the appellant was in the home of his wife’s cousin, he made the statement that his wife had a young boyfriend and that she would not have long to live.

The State’s evidence further tended to prove that the appellant was in Mobile, Alabama, with State’s witness, Richard Puckett, during the night of November 4th and until approximately 5:30 A.M., November 5, 1977. During that time, the appellant told Puckett several times that he was going to shoot his wife, Mary.

He stated that he was mad at her because he had found her with another man. Appellant said that he and his wife had been married a long time but that she was taking him for everything he had, which was the reason that he was going to kill her. The appellant showed Puckett some twelve-gauge shotgun shells, that he said fit the gun he had.

The appellant was wearing a short-sleeved shirt, with different colors on it, and blue pants, when he left that morning, about 5:30, in his Plymouth automobile. Appellant’s car was identified as State’s exhibits 11, 12, 13 and 14, which are pictures of an automobile. Appellant’s car was a 1968 Plymouth two-door, with a white top and faded dark gray paint.

The State’s evidence also tended to prove that, sometime prior to November 5, 1977, the appellant had shot at the deceased and his grandson with a shotgun, but did not hit either of them.

The State’s evidence also showed that, on November 5, 1977, in the early morning hours, a State witness, Mrs. Shirah, an employee of O’Bannon’s Sandwich Shop, came to the shop to go to work. When she got there, she found that a hole had been shot through the front door and that the lock on the door had been shot. There were two shell casings lying on the sidewalk, and the window had been broken. The deceased’s car was parked nearby.

A few minutes after Mrs. Shirah arrived at thé shop, Mrs. Webb, another employee arrived, around 6:35 A.M. The deceased usually arrived at the shop before Mrs. Webb or Mrs. Shirah.

The police were then called to O’Bannon’s Sandwich Shop. When Officer Lundy of the Mobile Police Department arrived at the sandwich shop at approximately 7:00 A.M., he found Mrs. Webb and Mrs. Shirah on the scene. He looked in the back of the shop, and saw the deceased lying on the floor in the back of the shop in view from the front door. He went to the front door and saw two holes in it, one of which was near the middle of the door and another in the door knob.

The door was locked so he kicked it open, went in and found the deceased lying in a pool of blood. She appeared to be dead.

Officer Lundy called for an ambulance and secured the scene. There was blood just inside the door of the shop. The blood appeared to start at the front door and lay in a path to the back door. The track of blood appeared to have gone into the office, where there was a large pool of blood in a chair at the desk. The office telephone was off the hook and there was blood on it. The track then came out of the office and stopped where the deceased was lying on the floor.

Officer Lundy identified, on a picture of the scene, the location at which the gun shell had been found.

The State’s evidence also tended to prove that the State’s witness, Mr. Rodgers, an employee of a 7-11 store, located next to O’Bannon’s Sandwich Shop, was on duty at approximately 6:05 A.M., on November 5, 1977. At that time, he saw a car drive up in front of the 7-11 store, turn into a little road in front of the store, and park.

A man got out of the car with a shotgun or a rifle and went over to the sandwich shop. In about fifteen seconds, he heard two gunshots, and after a little while the same man walked back to his car and drove off.

According to Rodgers, the color of the man’s hair was either white or gray and he had a limp. He was a white man about sixty-two years of age. The car which the man arrived in was the same car as that shown in State’s exhibits 11, 12, 13 and 14. He stated that he saw the appellant in front of the store that morning carrying a gun.

The State’s evidence also showed that, early in the morning of November 5, 1977, the State’s witness, Mrs. Glass, was seated in a pickup truck in front of the 7-11 store and saw an elderly, white, short, and stocky man with light-colored hair, carrying a long gun, walking funny, as if he was in a hurry or limping, go to his car, get in and drive off. She identified his car as the car in State’s exhibits 12 and 14. The man was wearing a light short-sleeved print shirt and dark pants.

The State’s evidence further tended to prove that the State’s witness, Mr. Jackson, a resident of Mississippi, was acquainted with the appellant, had seen him near Tanner’s Grocery on Natchie Road on November 5, 1977, and had helped him fix a fan belt on his car because the car had been running hot. Jackson identified appellant’s car, from a picture shown him by the prosecution, as the same car which he had helped to fix.

Another State’s witness, Sgt. Beadnell of the identification division of the Mobile Police Department, was present at the scene of the alleged crime on the morning of November 5,1977, made photographs of the area, and picked up physical evidence which he found at the scene. Approximately five feet south of the main door, he picked up two twelve-gauge shotgun shells, which were number one buckshot. From the sidewalk he picked up scrapings of the lock and the door. He removed pellets from the lock, from the door area and from the floor inside, as well as several pellets that went through the deceased’s arm.

The State’s evidence further tended to prove that wading and buckshot from a twelve-gauge shotgun shell was found in the sandwich shop, and that buckshot pellets were removed from the body of the deceased. Three multi-colored shirts, two short-sleeved and one long-sleeved, were found on the back seat of the appellant’s car when it was located in a garage in Theodora, Alabama.

The State’s evidence also showed that the deceased was shot in the left arm. The arm was almost severed over an area of about six inches, in the middle third of the biceps, with “shaggy” skin at the edge. One lead pellet was found in the deceased’s arm, the humerus was shattered and only fragments of the bone remained in the middle third of the arm. The cause of death was declared to be a gunshot blast to the arm, the destruction of the arm and loss of blood.

When the State rested its case, the appellant moved to exclude the State’s evidence on the grounds that the evidence did not meet the full measure of proof which the law requires. This motion was denied. The appellant rested his case without presenting any evidence on his behalf. The appellant filed a motion for a new trial on the grounds that the State’s evidence was insufficient to sustain the jury’s verdict. This motion was denied and the appellant appeals to this court.

In a criminal prosecution, when circumstantial evidence is relied upon by the State, and is such as to produce a conviction of the defendant’s guilt upon the juror’s mind, beyond a reasonable doubt, it is as much the jury’s duty to find a verdict of guilty as though the evidence had been positive and direct. Hall v. State, 40 Ala. 698; Avery v. State, Ala.Cr.App., 363 So.2d 1036; Kontos v. State, Ala.Cr.App., 363 So.2d 1025; Brown v. State, Ala.Cr.App., 331 So.2d 820; Toosom v. State, 56 Ala.App. 613, 324 So.2d 327.

We hold that the State’s evidence was sufficient to warrant the trial judge in submitting the question of appellant’s guilt to the jury and to sustain the jury’s verdict of guilty of murder in the first degree. The court did not err to the prejudice of appellant by overruling his motion to exclude the State’s evidence, and his motion for a new trial.

As provided by § 12-22-240, Code of Alabama 1975, we have searched the record for any errors prejudicial to the appellant 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 § 6.10 of the New Judicial Article (constitutional Amendment No. 328). His opinion is adopted as that of the Court. The judgment is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Ex parte Urias DEES.
    78-607.
    Supreme Court of Alabama.
    June 22, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Steve PERRY v. STATE.
    1 Div. 12.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
    Rehearing Denied May 22, 1979.
    W. Gregory Hughes, Mobile, for appellant.

      Charles A. Graddick, Atty. Gen., and Jimmy L. DeBardelaben, Asst. Atty. Gen. for the State, appellee.
   ON REHEARING

BOWEN, Judge.

On original submission this Court affirmed the appellant’s conviction without published opinion. This opinion is issued at the request of the appellant under Rule 39(k), ARAP.

. The appellant was indicted and convicted for the offense of selling marijuana. Sentence was fixed at eight years’ imprisonment.

The evidence reveals that at approximately 6:00 o’clock on the evening of October 29, 1976, Deputy James T. Wyatt, a narcotic’s agent with the Mobile County Sheriff’s Department, drove to a residence where he met Rich Hamilton. Hamilton asked Wyatt how many bags of marijuana he wanted. When Wyatt responded “one” Hamilton motioned for the appellant to come forward to Wyatt’s automobile. The appellant opened his jacket, pulled out a brown paper sack and handed it to Hamilton, who handed it to Wyatt. Wyatt picked out the bag of marijuana he wanted and handed $15.00 and the brown paper sack containing the bags of marijuana back to Hamilton, who, in turn, handed the money and sack to the appellant.

1

The appellant initially alleges that his pretrial motion for discovery, production, and inspection should not have been denied, especially the portion which would have allowed inspection of “any and all evidence tending to exculpate this defendant”. Examination of the record reveals that only certain portions of the motion were denied by the trial court.

A portion of the motion which was granted allowed inspection of “all material known to the prosecution, . . ., which is arguably exculpatory in nature or favorable to the accused or which may lead to exculpatory material, . . . Additional portions of the motion were granted which permitted defense counsel access to even more material than required by law. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); McCants v. State, 282 Ala. 397, 211 So.2d 877 (1968); Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972).

A motion for discovery is not a mere “fishing expedition”. Giddens v. State, 333 So.2d 615 (Ala.Cr.App.1976); Hurst v. State, 54 Ala.App. 254, 307 So.2d 62 (1974). The accused is simply not entitled to pursue a “scatter gun” approach in his motion to produce. Hurst, supra. When the accused, in effect, asks for the District Attorney to produce a document, he should at least establish that this State official has such a document in his possession before the trial court will be put in error for failing to grant the motion. Strange v. State, 43 Ala.App. 599, 606, 197 So.2d 437 (1966). This was not done in the instant case. The trial court in no manner abused its discretion in limiting appellant’s pretrial request for information.

II

Secondly, the appellant argues that his motion to exclude the State’s evidence was erroneously denied. He contends that because Agent Wyatt did not hand the money directly to the appellant the State did not prove that the appellant sold Wyatt marijuana as charged in the indictment. Alabama Code § 13-9-1 (1975) reads as follows:

“. . all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense or aid or abet in its commission, though not present, must hereafter be indicted, tried and punished as principals,..."

In this case the appellant clearly participated in the felony. Thus, he is just as responsible as Rich Hamilton. Stokely v. State, 254 Ala. 534, 49 So.2d 284 (1950), Where the evidence raises questions of fact for the jury, as here, and such evidence, if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the State’s evidence does not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969). Thus, there was no error in denying appellant’s motion to exclude.

m

The appellant’s last allegation of error is that the trial court should have declared a mistrial when the prosecutor asked the appellant on cross examination, “Are you using marijuana right now?” The appellant’s objection to this question was sustained and the trial judge thoroughly instructed the jury to disregard the prosecutor’s question. The question was not answered and that line of questioning was not pursued.

The granting of a mistrial lies within the sound discretion of the trial court. Washington v. State, 57 Ala.App. 465, 329 So.2d 155 (1976). There was no abuse of that discretion in this case. Although the prosecutor’s conduct was improper, the trial judge’s instruction to the jury to disregard the question and his remarks to the prosecutor cured any error which might have occurred otherwise. Lowe v. State, 48 Ala. App. 740, 267 So.2d 529 (1972).

This record has been searched for error, and none having been found I recommend that this application for rehearing be overruled.

APPLICATION FOR REHEARING OVERRULED.

All Judges concur.


author: ALMON, Justice.

text:
    Ex parte Steve PERRY.
    78-595.
    Supreme Court of Alabama.
    June 22, 1979.
   ALMON, Justice.

WRIT DENIED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Eddie TAYLOR v. STATE.
    1 Div. 10.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Rehearing Denied May 22, 1979.
    W. Gregory Hughes, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., Montgomery, for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The main issue presented by the parties is whether appellant was denied a speedy trial which resulted in his conviction on October 12, 1978, of the crime of the sale of heroin.

The conduct of defendant furnishing the basis for the indictment occurred on September 7, 1976.

In support of his argument that he was denied a speedy trial, appellant emphasizes the twenty-five months between the alleged offense and his trial. By his own contention, it is to be readily observed that the case was hardly ever quiescent. Extraordinary activity is to be noted on the part of both parties from the beginning of the prosecution until defendant was tried and convicted. To give the details of all of such circumstances would extend this opinion beyond an appropriate length. We will summarize some of the significant circumstances.

Defendant was indicted promptly, on September 22, 1976; he was arraigned and, accompanied by attorney, pleaded not guilty on October 19. On December 30 defendant’s attorney withdrew his appearance at defendant’s request. On January 28, 1977, defendant’s new attorney filed a composite motion, to dismiss, to release, for a more definite statement and for a bill of particulars. On February 28, he filed a motion “for a continuance of trial for a period of at least two weeks” and as one of the grounds stated that the “District Attorney and the attorney for the Defendant have not had adequate time to meet and comply with the Motion to Produce.” The continuance was granted.

On March 23, defendant filed a motion entitled: which was denied on April 1. Also on March 23, defendant filed a petition for examination of the evidence, which was granted on April 1. On April 19, defendant filed a motion for a continuance, which was granted.

“MOTION TO DISMISS; MOTION TO PRODUCE; FOR MOVE OF DEFINITE STATEMENT; FOR BILL OF PARTICULARS,”

The next motion of appellant was on April 21, which consisted of a motion to quash the indictment on the ground that the jury list from which the grand jury had returned the indictment against defendant of September 22, 1976, was unconstitutionally composed as “determined in Civil Action # 5059-68-H styled, ‘George W. Preston, et al., Plaintiffs, vs. John E. Mandevile, et al., Defendants,’ which decision was rendered on April 15, 1977, by U.S. District Judge W. B. Hand in the U.S. District Court for the Southern District of Alabama, Southern Division.” The motion was granted and the indictment was quashed on April 29, 1977.

The foregoing summary of the course of the case from its beginning until quashing of the indictment suffices, we think, to show that there was no substantial delay by reason of any fault of the prosecution. It further shows that most of the delay was by reason of a great amount of activity on the part of defendant in seeking relief that would enable him to better defend the case. This is not stated in any derogation whatever of such activity but merely to set the record straight as to the occasion for the expiration of the time between the finding of the first indictment and its vitiation.

Defendant was indicted again for the same crime on July 1,1977. No point seems to be made to the effect that the period of two months and one week between the quashing of the first indictment and the return of the second is chargeable as blameworthy to the prosecution, and we see no basis for such a contention.

The most nearly inactive period was between the indictment of July 1, 1977, and December 20 of the same year. Néither party satisfactorily explains to us the reason. We note, however, that there was another change of attorneys for defendant upon arraignment on December 20. At least one of his previous attorneys had withdrawn his appearance at the request of defendant. The attorney appointed for him on December 20, 1977, has continued to represent him until the present time. During the next four months he filed at least five motions, two of which were granted. One of the motions denied was filed Jan. 6, 1978, and presented for the first time a contention that he had been denied a speedy trial. On April 26, 1978, he was tried and convicted, but on May 2, defendant filed a motion for a new trial which was granted on June 9. We see nothing in the record that supports a contention that there was any substantial delay caused by the prosecution occurring between the time the first indictment was quashed and the grant of defendant’s motion for a new trial.

On June 19, defendant filed a motion to dismiss, alleging primarily that he had been denied his constitutional right to a speedy trial but did not allege or imply any fault on the part of the prosecution. Furthermore, he did not ask for any dispatch in bringing him to trial again. On the contrary, he complained of the unavailability of a witness, whose unavailability he indicated would impair his defense of the case.

On August 28, 1978, defendant filed a Petition for Writ of Habeas Corpus. The theme of the petition was substantially the same as the motion to, dismiss, that there had been a denial of defendant’s right to a speedy trial. The petition was denied on October 2. His trial and conviction occurred on October 12, 1978.

Even if the time intervening between the commission of the crime and the trial resulting in the second conviction of defendant had been much more than the twenty-five months that actually intervened, we could not say that appellant was denied a speedy trial, without consideration of the three factors, in addition to the factor of length of delay, set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101, 117 (1972), namely, any assertion by the accused of his right to a speedy trial, the reason for the delay and any prejudice to the accused.

For any semblance of an assertion by the accused of his right to a speedy trial the record is silent until January 19, 1978, when he filed a motion to dismiss in which one of the grounds was that he had been denied his constitutional right to a speedy trial. Even then, sixteen months after his indictment, he did not ask for a trial. Assuming that his motion should be construed as an assertion of his right tó a speedy trial, it could not have served to have brought the attention of the prosecution, prior to the filing of the motion, to any desire on the part of defendant that he be tried as soon as feasible.

As to the reason for any delay, appellant makes no serious charge against the prosecution but is apparently content with the statement that he was not responsible for the delay. This is not the criterion as to such factor. The existence of fault on his part weights against him, but the absence of such fault would have little weight, if any, in the absence of fault on the part of the State. Mr. Justice Powell in Barker v. Wingo, distinguishes between fault consisting of a deliberate delay in order to hamper the defense and a delay consisting of “negligence or over-crowded courts” and states:

“ . Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117.

As to the fourth factor, any prejudice to defendant, appellant says that between the time of indictment and his first trial the whereabouts of an informer, who was in the automobile with an undercover agent when defendant sold the undercover agent the heroin, had become undeterminable and that “this witness would have assisted him in preparing his defense” and (2) that the “passing of time had caused him difficulty in remembering the events surrounding the time of the alleged sale.” As to (1), there is no evidence to the effect that the whereabouts of the particular informer would not have become undeterminable almost immediately after defendant was indicted. There is no showing whatever that the un-determinability of the whereabouts of such informer was worsened by reason of the passage of time between two or three months after the indictment and the date of defendant’s first trial. As to (2), the record shows the testimony of defendant as follows:

“A All right. Now, has the passage of time, two years from the time of this incident caused you any difficulty in remembering what occurred at these various dates?
“MR. PEARSON: Objection.
“THE COURT: Overruled.
A Somewhat.”

The nebulous answer furnishes little support for appellant’s contention that he was injured by the flux of time.

As to each of the three stages of the case:

(1) On the first indictment until it was quashed and another indictment returned,

(2) On the second indictment until there was a trial thereon, defendant was found guilty and a new trial granted, and

(3) On the next four months (June 9-Oc-tober 2) until defendant was again tried and convicted, there is little basis for any charge that there was a substantial and reasonably preventable lag in the proceedings. When the three stages are considered together, the period of twenty-five months in which one indictment had been quashed and two trials had been conducted on the other indictment, and all time-consuming circumstances narrated above are realistically appraised, we find that none of the four factors set forth in Barker v. Wingo, supra, weighs heavily against the State and that tested by the four factors as a whole, the score of the State is much more commendable than discreditable.

The suggestion of appellant that time between the first indictment and the quashing of it is chargeable to the State is thoroughly answered adversely to him by Hawthorne v. State, Ala.Cr.App., 362 So.2d 1275, 1277 (1978), in which an almost identical situation was presented.

There was no denial to defendant of his right to a speedy trial.

Somewhat interlinked with the question as to a denial of defendant’s right to a speedy trial is a special contention by appellant bordering on a charge against the State of the suppression of evidence. However, he does not make the direct charge. He says:

“The State’s failure to maintain track of this crucial witness,' when they had the ability to do so, i. e., her criminal charge, together with the State’s misleading of the defense attorney, amount to the suppression of evidence.”

The person called by appellant a “crucial witness” is the informer heretofore mentioned in connection with the question of any denial of defendant’s right to a speedy trial, who was in the automobile with an undercover agent when the sale of heroin was made by defendant. On January 5, 1978, defendant filed a Motion to Produce that included “the name and address of any witness or informer or witnesses or informers, who were present at the time and place that the alleged sales took place or who were instrumental in bringing about the alleged sale of heroin.” The motion was granted. There is no evidence, and appellant does not contend, that he or his attorney was not promptly furnished by representatives of the State of the name and last known address of said informer. Any implication that such informer was spirited away and made inaccessible is not supported by the record. The contention that the State was under a duty to maintain contact with her is not in accord with the authorities on the subject. Neither the State nor the United States can be expected to do the impossible.

“Informants in drug cases are not Brahmins, nor are they noted for long-term occupancy of well-tended premises. Their disappearance, voluntary or otherwise, is not extraordinary. The fact that a police officer knew that Lombardi was an habitue of Suffolk County bars or that he might be in Florida is hardly indicative that the Government in fact could find him. In any event, as we have stated, defendant’s trial counsel did not show any real interest in finding him, but rather were satisfied to exploit his absence to the jury. There is no claim here that Lombardi would have been called as a witness for the appellants. There is no suggestion that Lombardi entrapped the defendants and that his evidence was therefore crucial to the establishment of a defense. . . .All that the record indicates is that counsel for the defendants wanted to interview Lombardi to see if he might be suitable as a witness. In sum, we have no reason to believe that his evidence would have been anything but cumulative.” United States v. Super et al., 492 F.2d 319 (2d Cir. 1974).

The record does not support the charge that there was a suppression of the evidence by the State, and consequently we cannot hold that there was a violation of defendant’s Due Process right.

The propositions discussed above and the evidence as to them were presented to the court on a petition for habeas corpus and, out of the presence of the jury, as a part of his trial for the crime charged. The court denied his petition for writ of habeas corpus and denied his motion to dismiss. Defendant appealed from the denial of the petition for writ of habeas corpus and from the judgment of conviction and sentence. By stipulation of the parties, the appeals have been consolidated. The evidence on the trial is without dispute and clearly shows that defendant was guilty of selling heroin as charged in the indictment. There is no contention to the contrary.

We have examined the record for error prejudicial to defendant either as to the case that resulted in his conviction and sentence or as to the proceeding based on his petition for habeas corpus and have found none. The judgments of the trial court as to both should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . One of them is that defendant was also charged with and indicted for another sale of heroin on or about September 11, 1976, which is now before us as Eddie Taylor v. State, 1 Div. 15, which will be separately considered and to which, to avoid confusion, little, if any, further reference will be made herein.


author: FAULKNER, Justice.

text:
    Ex parte Eddie TAYLOR.
    78-597.
    Supreme Court of Alabama.
    June 22, 1979.
   FAULKNER, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge. BOOKOUT, Judge,

text:
    Curtis Ray CARLISLE v. STATE.
    6 Div. 881.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Rehearing Denied June 5, 1979.

      Charles E. Caldwell, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and his punishment was fixed at ten years imprisonment in the penitentiary. Throughout the trial proceedings appellant was represented by counsel of his choice and at arraignment pleaded not guilty. He made application for Youthful Offender treatment and, after due consideration, his application was denied. After sentence was imposed he gave notice of appeal. He was found not to be indigent and new retained counsel represents him on appeal.

The evidence showed the robbery victim was approached by a black male about purchasing marijuana as he was leaving a Jefferson County nightclub late one night. The parking lot of the club was well lighted. After talking for a few minutes, the man asked the victim to drive down the street to further discuss the purchase. He did so and pulled off the road in front of the car occupied by the black male and two black male companions. The victim then got in the front seat of their car and while they were discussing the drug purchase the occupants of the car pulled out knives and robbed him. He had $140 to $150 on his person. He was stabbed in the neck, elbow and hand while trying to get away from his attackers. His life was threatened and had it not been for the intervention of the driver he might have been killed. Finally, the victim managed to get out of the car and run away. He went to a service station and asked the station operator to call the police. After conferring with the officers, he drove to a local hospital where sutures were taken in his hand and elbow.

Appellant contends that the trial court erred in allowing the introduction of evidence regarding an extrajudicial photographic identification and in the admission into evidence of the photographs themselves. For the reasons hereinafter stated, we find that in the present case the error, if any, in the introduction of the photographs and the testimony regarding their use was cured, and we, accordingly, affirm the conviction.

The victim made a positive in-court identification of appellant as the man who approached him in the parking lot of the nightclub. He testified that he talked with appellant face-to-face in the lot, which was well lighted. He further identified appellant as one of the occupants of the car when he was robbed and stated that appellant attacked him with a knife. Over objection, the victim was also allowed to testify on direct examination that a police officer “called [him] and asked [him] to come down and look at some mug shots.” He then described the procedure, was shown a mug shot of appellant and identified it as the photograph he had earlier selected. He was first shown eight photographs but appellant was not in that group. Eight other photographs were displayed to the victim and he selected number 3 as appellant.

A lengthy cross-examination followed in which defense counsel attempted to cast doubt on the victim’s identification of appellant. Following this cross-examination, the Court admitted into evidence the testimony of the police officer that the victim had previously selected the picture of appellant from a photographic array. These photographs, admitted into evidence over objection, were “mug shots”, obtained from the Identification Bureau of the Birmingham Police Department. These eight photographs, three of each suspect totaling twenty-four in the photographic array, bore full face and profile views. The words, “Department of Police, City of Birmingham, Ala.”, an identification number and date appeared under the center photograph depicting the full face view. There were no numbers or other identifying indicators on or under the profile views of any of the suspects. According to the victim and the officer displaying the photographic array, the victim picked number 3 from the photographic array, without the slightest hesitation, as being the man who robbed him at knife point.

The victim’s testimony on direct examination regarding the extrajudicial identification was improperly admitted into evidence. A witness may not corroborate his in-court identification by evidence of an earlier identification of the accused. Aaron v. State, 273 Ala. 337, 139 So.2d 309, cert. denied, 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82; Yarbrough v. State, 105 Ala. 43, 16 So.

758; Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, cert. denied, 295 Ala. 430, 325 So.2d 539. Such evidence is competent, however, to rebut an inference raised on cross-examination that the identification

was mistaken or contrived. This right of rehabilitation extends to testimony by a third person as well as that by the impeached witness. Aaron, supra; Howell v. State, Ala.Cr.App., 369 So.2d 297. Once the credibility of the victim was attacked on cross-examination, the testimony of the officer regarding the prior identification was properly admitted in rebuttal. This subsequent evidence cured any error in the earlier testimony of the victim. See Alabama Digest, Criminal Law, 1169(4).

We turn now to the question of the prejudicial effect of the introduction of the police photographs and the testimony concerning “mug shots.” This Court has recognized the danger inherent in the use at trial of “mug shot” or “rogue’s gallery” photographs. Holsclaw v. State, Ala.Cr.App., 364 So.2d 378, writ denied, Ala., 364 So.2d 382. The impermissible inference raised by this type of evidence is that the accused has a prior criminal record, unrelated to the offense charged. Brasher v. State, 249 Ala. 96, 30 So.2d 31.

The obvious character of the photographs in the present case, one of which had been identified as the accused, reasonably allowed the jury to infer that appellant had previously been in trouble with the police. Further, during the State’s closing argument, the District Attorney directed the jury’s attention to the dates on the photographs, whereupon the following occurred:

“MR. PICKARD: All right, Judge, I object and I want a mistrial. You know what he is implying and there has been no evidence he was convicted of a crime involving moral turpitude.
“THE COURT: There has been absolutely no evidence of any conviction whatsoever and everybody understands that and I understand that. I overrule the motion.”

This action by the trial court clearly eradicated any inference raised by the photographs and cured any possible prejudice to appellant which might have otherwise resulted. An appellant must not only show error, but must also demonstrate that such error was probably injurious to his substantial rights before a reversal is required. Rule 45, ARAP; Kennedy v. State, 291 Ala. 62, 277 So.2d 878. Notwithstanding the result here reached, prosecutors and trial judges are again cautioned that the continued use of mug shots at trial may result in reversal. Holsclaw, supra.

This does not mean that this type of identification is forbidden under all circumstances. If numbers, dates, and the names of police departments are excised or blocked out then such photographs may be introduced so long as they do not imply that the defendant has a prior criminal record.

A careful review of the record reveals no error prejudicial to the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., dissents with opinion in which TYSON, J., joins.

BOOKOUT, Judge,

dissenting:

Holsclaw and Brasher, supra, should control. The trial judge’s admonition fails to eradicate the prejudicial effect of placing prior arrests of the appellant before the jury. See also Brown v. State, Ala.Cr.App., 369 So.2d 56 [1979],

TYSON, J., joins in the above.


author: BOOKOUT, Judge.

text:
    James Wendell HARRIS v. STATE.
    8 Div. 156.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Rehearing Denied May 22, 1979.

      Donald E. Holt and Joe M. Patterson, Jr., Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Arson, second degree; sentence: eight years imprisonment.

The appellant was charged with setting fire to a padded jail cell in which he was confined. This is the second appeal of this case. It is unnecessary to restate the facts as they are set out in our first opinion in Harris v. State, Ala.Cr.App., 358 So.2d 482 (1978).

I

The appellant contends that the State’s evidence was insufficient to support his conviction for arson which is raised by appellant’s motion to exclude the State’s evidence and motion for a new trial. In Harris v. State, supra, we found that the evidence presented was clearly sufficient to establish a prima facie case against the appellant. The evidence presented in this appeal is substantially the same as that upon which the first appeal was taken, and we likewise find it sufficient to establish a prima facie case against the appellant.

II

Although the appellant took no. exception to the oral charge of the trial court, he contends that the trial court erred in refusing the following requested charges:

“9. The Court charges the jury that the evidence in this case is partially circumstantial, and Defendant’s innocence must be presumed by the jury until his guilt is proven by the evidence, in all the material aspects in the case, beyond a reasonable doubt and to a moral certainty.” “16. The Court charges the jury that a person charged with a felony should not be convicted, unless the’evidence excludes to a moral certainty every reasonable hypothesis but that of his guilt; no matter how strong the circumstances are, they do not come up to the full measure of proof which the law requires, if they can be reasonably reconciled with the theory that the Defendant is innocent.”
“17. The Court charges the jury that the evidence in this case is circumstantial, and the Defendant’s innocence must be presumed by the jury until the case against him is, in all its material circumstances, proved beyond any reasonable doubt; and for you to find him guilty as charged, you must find the evidence so strong and cogent as to prove the Defendant’s guilt to a moral certainty and beyond a reasonable doubt.”
“18. The Court charges the jury that part of the evidence in this case is circumstantial, and the Defendant’s innocence must be presumed by you until his guilt is proven by the State in all material aspects, and unless you so find from the evidence, you cannot convict the Defendant.”
“19. The Court charges the jury that the evidence in this case is circumstantial, and Defendant’s innocence must be presumed by the jury until his guilt is established by the evidence, in all the material aspects in the case, beyond a reasonable doubt and to a moral certainty.”

With the exception of Charge 17, each of those charges were presented to this court in appellant’s first appeal, 358 So.2d at 486. In that opinion, we held that Charges 9 and 19 were elliptical in nature and were fairly and substantially covered in the court’s oral charge. Charge 18 in that case did not meet the principles established in Ex parte Acree, 63 Ala. 234 (1879). We held that Charge 16 should have been given, and the refusal to do so constituted reversible error, id. at 486-87.

After a review of the instant record, we find no error was committed by the denial of the above requested charges. Although Charges 9 and 19 are no longer elliptical, they were fairly and substantially covered in the trial court’s oral charge. Section 12-16-13, Code of Ala. 1975. Charge 16 (upon which the prior reversal was based) was given nearly verbatim by the trial court in its oral charge. Charge 17 was fairly and substantially covered by the trial court’s oral charge, and Charge 18 again does not meet the requirements of Aeree, supra.

Ill

Although only the issue of the refused charges was expressly presented on this appeal, it is our statutory duty to search the record for any error which was duly preserved at trial. Section 12-22-240, Code of Ala. 1975. Therefore, four other points raised only at trial have been considered.

A

During the course of the trial, the State elicited testimony from Charles Cochran, a fire inspector for the Florence Fire Department, concerning the composition of the padding and its flammability. The pertinent testimony is as follows:

“Q. All right, do you know what the padding itself was constructed of?
“A. Yes, sir, it was a form of foam.
“MR. HOLT: We object to that. The proper predicate had not been laid.
“THE COURT: All right, lay a predicate.
“Q. Had you made an inspection of the Jail prior to that time?
“A. Yes, sir, I have made inspections.
“Q. And of the padded cell?
“A. Yes, sir.
“Q. And was that in your capacity as the Fire Inspector of the City of Florence?
“A. Yes, sir, I did make inspections of the Jail area, yes.
“Q. And would you tell us what type of — what the padded cell — what the padding itself was constructed of?
“A. Okay.
“MR. HOLT: We object because the proper predicate has not been laid.
“THE COURT: Overrule, you may cross examine him on that subject.
“MR. HOLT: May I ask him on voir dire?
“THE COURT: No you may cross examine him on the subject later.
“A. It was on the — it was a foam polyurethane with foam rubber.
“Q. What is that made of?
“A. Okay, it’s a petroleum product and the foam rubber was covered by neal-preem (sic) covering.
“Q. What is neal-preem (sic)?
“A. Okay, it’s a type of vinyl that is used, you know, where it can be cleaned up and washed.
“Q. Is this a — do you know whether or not the substance contained therein was padding and whether or not it’s highly flammable?
“MR. HOLT: We object. The proper predicate is not laid.
“THE COURT: Overruled.
“A. Usually a type of foam rubber is highly flammable, yes.
“Q. If it’s made out of oil?
“A. Yes. Right.
“MR. HOLT: We object to that. It’s leading and suggesting.
“THE COURT: Again overrule. Go ahead.”

First, appellant objected to this testimony on the basis that an improper predicate had been laid, presumingly, establishing Mr. Cochran’s • qualifications to testify on this matter. It was brought out that Mr. Cochran had been a fire inspector for six years, attended investigative schools and seminars, and inspected some two or three hundred fires.

The determination as to the competency of an expert to testify concerning a specific field is within the sound discretion of the trial court which will not be disturbed on appeal unless palpably erroneous. Sharp v. Argo-Collier Truck Lines Corp., Ala., 356 So.2d 147 (1978); Griffin v. Gregory, Ala., 355 So.2d 691 (1978); Chatom v. State, Ala., 348 So.2d 838 (1977); Luckie v. State, 55 Ala.App. 642, 318 So.2d 337, cert. denied, 294 Ala. 764, 318 So.2d 341 (1975); § 12-21-160, Code of Ala. 1975. The facts indicate Mr. Cochran to be qualified to testify on this matter and, consequently, the trial court’s overruling of appellant’s objections was not error.

In any event, testimony that the padding was highly flammable is not prejudicial to the appellant. The fact that the material in the cell was highly flammable would indicate that the fire could have started accidentally from faulty wiring or other cause. On the other hand, if the foam padding had been difficult to ignite, then it would have appeared more likely that the fire had to have been deliberately set. Thus, the expert testimony here would have been favorable to the appellant rather than prejudicial.

B

Appellant requested a voir dire examination of Mr. Cochran which was denied by the trial court. The court instead instructed counsel for appellant that he had a right to cross-examine the witness.

We find no error in refusal of the trial court to interrupt the examination of a witness to allow opposing counsel to examine that witness on “voir dire.” Holifield v. State, Ala.Cr.App., 347 So.2d 559, 560 (1977); State v. Wilbanks, 289 Ala. 166, 266 So.2d 619 (1969).

C

The jury, after commencing its deliberations, requested to rehear the testimony of the jailer, Lyle Wilkes. The jury specifically requested to rehear those portions dealing with Mr. Wilkes’ search of the appellant and whether or not he knew of appellant’s threats to burn the jail down. Appellant objected, stating that such would place undue emphasis on a certain portion of the testimony and thereby take it out of context. The trial court overruled appellant’s objection, but modified the jury’s request and allowed all of Mr. Wilkes’ testimony to be replayed. Before listening to the testimony, the jury was instructed by the trial court as follows:

“Now, Ladies and Gentlemen, you have also requested that you be allowed to hear a portion of Jailer Wilkes’ testimony concerning whether or not he knew about a threat to burn the Jail and concerning evidence of a search immediately before into the cell.
“In order not to give any portion of his testimony undue weight or in order not to make that portion of the testimony stand out, we’re going to play back for you the tape of his entire testimony and you are to listen carefully to that testimony. It will be impossible for us to stop the tape and to play back portions of it. So what I’m saying to you is, Ladies and Gentlemen, you’ll have to listen very carefully and you’ll have to again have this one additional opportunity to hear his testimony in its entirety. We will not stop the tape and play back portions of it for you. We’ll play it all the way through. Now, there is one portion at least where you went into the Jury Room and where we handled a matter outside of your presence and we’ll skip that portion. And again, you are not to take Jailer Wilkes’ testimony and give it undue precedence or undue prominence in your deliberations. You are to take that testimony in its entirety and weigh it just as you would the testimony of any other witness in this cause and you are to remember the testimony of all the witnesses and weigh all the testimony together and make it speak the truth if you can.”

It is within the trial court’s discretion to have the testimony of certain witnesses read to the jury after their retirement and upon their request. After a jury has reported its inability to agree on a verdict (as was the case here in view of the fact that at one time the jury was split seven to five), the trial judge must exercise extreme care in permitting any evidence to be restated or reread to the jurors so that undue emphasis will not be placed on portions of the testimony. Mullins v. State, Ala.Cr.App., 344 So.2d 539 (1977); Jenkins v. State, 51 Ala.App. 521, 287 So.2d 233 (1973). It is clear that in following its sound discretion, the trial court followed this procedure to avoid any additional weight being given the replayed testimony. Consequently, appellant’s objection was properly overruled.

D

The jury, in addition to requesting a rehearing of certain testimony, requested to view the padded cell. Appellant timely and vigorously objected stating that the condition of the cell had been materially altered from the time of the fire; that such would place undue emphasis on a portion of the case that was not offered into evidence; and that granting this request would amount to an introduction of new and additional evidence after submission of the case to the jury.

Section 15 — 14—4, Code of Ala. 1975, provides that:

“The court may, at its discretion, at any time before the conclusion of the argument, when it appears to be necessary to the due administration of justice, allow a party to supply an omission in the testimony on such terms and under such limitations as the court may prescribe.”

In referring to the same provision appearing in the 1907 Code, our Supreme Court stated: “The restrictive language found in this statute must have been adopted deliberately as a restraint upon the laxity of the common law practice. We are constrained to hold that under this statute a case cannot be reopened for additional evidence after the conclusion of the argument.” Alabama Great Southern Railway Co. v. Smith, 209 Ala. 301, 96 So. 239 (1923). See also Davis v. State, 20 Ala.App. 463, 466, 103 So. 73 (1925), wherein the request for additional evidence came from the jury as in the instant case.

Although it is within the discretion of the trial court to reopen the case after the close of evidence, it is clear that cases construing § 15-14-4 have consistently held it to be error to do so after submission of the case to the jury. Biggs v. State, 46 Ala.App. 585, 246 So.2d 472 (1971); Gustin v. Dinsmore, 31 Ala.App. 238, 14 So.2d 741 (1943). This rule likewise applies to a judge in a non-jury case. Campbell v. Campbell, 55 Ala.App. 444, 316 So.2d 693 (1975). See also: Gamble, McElroy’s Alabama Evidence, (3d ed. 1977), § 436.01(2).

To compound the situation, the trial judge, in effect, began to testify to the jury concerning alterations which had been made to the cell which they had just viewed:

“Ladies and Gentlemen, you have just viewed what’s called the padded cell which is located on the second floor in the Jail and again I say to you that there have been some changes or modifications in that cell, among those being the hole, the small hole that was up at the left-hand corner of the cell as you went in. That’s some sort of heating or cooling or ventilation vent being added. In addition to that, of course, the padding is not the same that was there at the time of this alleged incident, but the walls and the ceiling and the general shape of the room are the same. The door, as I understand it, is substantially the same including the panhole that you viewed there. I understand that the floor covering is different than was there at the time and so again you are instructed that the viewing of this cell is for whatever benefit you obtain from it but you are not to assume that the cell is exactly as it was on that occasion; it’s simply for you to see the general shape and size of that area and also the door.”

The trial judge then instructed the jury that they could consider their view of the cell in connection with all of the other evidence introduced at trial in reaching their verdict. No objection was interposed to the above comments of the trial judge; however, the case must be reversed and remanded for a new trial for erroneously reopening the evidence, over objection, after conclusion of oral arguments.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-604.
    Supreme Court of Alabama.
    June 22, 1979.
   ALMON, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Michael GRAVES v. TOWN OF GULF SHORES.
    1 Div. 24.
    Court of Criminal Appeals of Alabama.
    June 5, 1979.
    Charles C. Partin, III, of Stone & Partin, Bay Minette, for appellant.
    No brief for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted in the Municipal Court of Gulf Shores, for the offense of insulting a police officer. He was fined fifty dollars in addition to the court costs. He appealed to the Circuit Court of Baldwin County for a trial de novo. He did not demand a jury trial and was tried by, the circuit judge sitting without a jury. He was put to trial upon the original affidavit.

Appellant filed a demurrer to the affidavit alleging inter alia that the affidavit failed to state an offense against the Criminal Code of the City of Gulf Shores, Alabama, and that the allegations of the affidavit were insufficient in that they were no more than a statement of the offense in the language of Section 13-6-19, Code of Alabama 1975. The demurrer was overruled and appellant was found guilty as charged in the original affidavit and assessed a fine of one hundred dollars. He appeals from this conviction.

The City of Gulf Shores did not see fit to file a brief on this appeal.

The evidence shows that appellant went to the Gulf Shores Police Department to post bond for his brother who had been arrested for a traffic violation while driving appellant’s car. Two officers decided to search appellant’s car after his brother had been released. When appellant objected to this search, one of the officers pulled out his badge and identified himself as a Deputy. Appellant replied, “I could give a shit who the hell you say you are.” He was then placed under arrest for insulting a police officer.

The affidavit under which this prosecution was commenced reads as follows:

“WARRANT AND AFFIDAVIT TOWN OF GULF SHORES
In the Municipal Court of Gulf Shores
“Before me, M. Salmon, Municipal Court Judge, in and for said City, personally appeared Deputy Roland Howell who, being duly sworn, deposes and says he has probable cause for believing, and does believe that in said City on or about April 29,1978 that one Mike Graves, did unlawfully make an insulting remark to such officer calculated to insult or humiliate such officer because of his performing such duty or duties. Title 14, Section 374(18), as set out in the Code of Alabama.
“Defendant is accused of being in violation of Title 14, Section 374(18), as set out in the Code of Alabama, against the peace and dignity of the Town of Gulf Shores, Alabama.
Signed Roland Howell
“Sworn to and subscribed before me, this
29 day of April 1978.
/s/ M_
JUDGE/MAGISTRATE”

The affidavit fails to allege violation of any ordinance of the Town of Gulf Shores and therefore fails to establish any offense with which appellant was charged. A proper complaint by a city or town must be based on a legally enacted ordinance of the municipality establishing an offense against the city. Of course, a city can by proper ordinance adopt the state law but no such ordinance was introduced into evidence in this case. Whitehead v. City of Russellville, 54 Ala.App. 289, 307 So.2d 94; Cooper v. City of Daphne, 54 Ala.App. 555, 310 So.2d 479. Further, the affidavit does not contain a statement of the remarks allegedly made by the appellant to the officer. Without a statement of the remarks made, the defendant comes into court with only a conclusionary accusation that his remarks either to, or about, the officer, were “insulting.” King v. State, 45 Ala.App. 71, 224 So.2d 254; Skelton v. City of Birmingham, Ala.Cr.App., 342 So.2d 933, and 937. The trial court erred in overruling appellant’s demurrer on these grounds.

For failure of the warrant and affidavit, by which this prosecution was commenced, to state an offense against the municipality of Gulf Shores, Alabama, the judgment of conviction was a nullity and this case must be reversed and rendered.

REVERSED AND RENDERED.

TYSON, DeCARLO and BOWEN, JJ., concur.


text:
    Jimmie HAMMONS v. STATE.
    1 Div. 34.
    Court of Criminal Appeals of Alabama.
    June 5, 1979.
    A1 Pennington of Pennington & Pennington, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

On the evening of July 22, 1978, a sixty-one year old female returned home after work to her second floor apartment. She was surprised by a stranger with an ice pick at her front door. Once inside the apartment she was robbed of $67.00, beaten, and sexually assaulted. The defendant was indicted and convicted for robbery. Sentence was fixed by the trial judge at life imprisonment. Three issues are presented on appeal.

I

The defendant contends that he was entitled to counsel at the preindictment lineup.

The defendant was arrested two days after the robbery and “advised of his rights”. He was taken to the police station and again read his Miranda rights. He was shown a “rights form” which he refused to sign. Sergeant Gerard Bolton of the Mobile Police Department testified:

“A. He did indicate that he wanted an attorney, and I gave him the phone to call . and told him to call his attorney and he did not do so. He said he did not know one that he could call right then. He said he was going to wait and let the Court appoint him one.
“Q. He was going to wait and let the Court appoint him one?
“A. Yes, sir.”

A lineup was held a “couple of hours later”. Sergeant Bolton specifically denied that the defendant requested counsel by name.

In contradiction to Sergeant Bolton’s testimony, the defendant testified that he initially denied exercising his right to counsel. However, after overhearing Sergeant Bolton talking to the victim, he informed the Sergeant that he wanted a lawyer and told him that he wanted David Barnett. Sergeant Bolton attempted to telephone Barnett. When he could only contact Barnett’s answering service he told the defendant that he could not get him. The defendant testified that he requested to see Barnett “right away” but that he never did come. The defendant denied being informed that an attorney could be appointed for him. At trial the defendant was represented by privately retained counsel of his own choosing — David Barnett.

Under these facts the trial court properly denied the defendant’s motion to suppress the evidence of the lineup identification. The requirement of counsel expressed in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), does not apply to confrontations held before the initiation of judicial criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); McCalpin v. State, 344 So.2d 227 (Ala.Cr.App.1977); Jackson v. State, 321 So.2d 243 (Ala.Cr.App.1975). The right to counsel does not arise from the request for counsel, but comes into being by reason of the circumstances of each particular case. Washington v. Holman, 245 F.Supp. 116, 122 (M.D.Ala.1965), modified 364 F.2d 618 (5th Cir. 1966). An accused is not entitled to counsel at a pre-indictment lineup. Hatcher v. State, 335 So.2d 415, 418 (Ala.Cr.App.1976).

Under the evidence presented it was disputed whether the defendant requested counsel’s immediate presence or whether he decided to wait for one to be appointed. Questions concerning the admissibility of evidence are for the court. Morse v. State, 27 Ala.App. 447, 449, 173 So. 875 (1937). In the light of such conflicting .evidence the judgment of the trial court admitting evidence of the lineup identification will not be disturbed. Hill v. State, 337 So.2d 120, 121 (Ala.Cr.App.1976).

II

From the record it appears that the jury had some difficulty in arriving at a unanimous verdict. After deliberations had begun, the forewoman of the jury informed the trial court that, unless they could hear certain portions of the trial testimony given by three witnesses “and maybe a little bit more discussion of it”, she thought that the jury would be hopelessly deadlocked. The court then instructed the jury and the following occurred.

“THE COURT: The problem is that there are so many different parts and we might overlook something, and we wouldn’t want any kind of verdict to go off on something like that. The case is just too important to let it go off like that. All right. I’m going to declare a mistrial because the jury is unable to reach a verdict.
(Juror raises hand.)
“THE COURT: Yes, sir.
“JUROR: I was wondering if maybe before you did that, the last few minutes while we were waiting for the tapes — I was wondering that it might be a good idea if .we just gave it one last try, say maybe five minutes, go back in there and see if anybody has, you know, changed their mind at all without that.
“THE COURT: Sure. Fine with me.
“JUROR: You know, just give it that last shot.
“THE COURT: Okay. Let’s do that, and I won’t declare a mistrial until you tell me that you are hopelessly deadlocked.”

No objection to this procedure was made at this time. The jury resumed its deliberations and found the defendant guilty as charged in the indictment. A polling of the jury indicated that the verdict was the “independent verdict” of each juror.

Upon sentencing, when being asked if he had anything to say, the defendant complained about the trial court’s action in allowing the jury to continue its deliberations.

“I think that what you just did right then was very . . . was a very bad thing to do after the jury came out and said they couldn’t come to a conclusion you say it was a mistrial, and you changed your mind and gave ’em five minutes more, but you had already made a statement that you declared it was a mistrial.”

There was no motion for a new trial.

The duration of deliberations by the jury is committed to the sound discretion of the trial court. The exercise of that discretion will not be disturbed on appeal except for clear abuse. Martin v. State, 29 Ala.App. 395, 396, 196 So. 753 (1940). The exercise of the discretion of the trial court in declaring a mistrial will not be disturbed on appeal absent a clear showing of abuse. Woods v. State, 367 So.2d 982 (Ala.1978).

Here the trial judge withheld the declaration of a mistrial upon a juror’s suggestion that the jury be permitted a short additional period of deliberation. The judge’s decision was certainly not arbitrary and was reasonable. We find no abuse of his discretion and refuse to disturb his judgment.

Ill

The defendant was stopped by the police near the victim’s apartment. The uncontradicted evidence shows that he was advised that he was under arrest for burglary and rape, and “just like that he says T didn’t rape her’, and we (the arresting officers) didn’t have a chance to ask him anything”. Sergeant Bolton stated that he was “fixing to advise him of his rights” when the defendant made the statement. Prior to this statement the defendant had not been questioned. “ ‘[A] spontaneous statement, blurted out by the accused and volunteered to the police [officer] prior to any questioning, is admissible against him even though he was not given his Miranda warnings’ ”. Espy v. State, 365 So.2d 356, 357 (Ala.Cr.App.1978). An unsolicited remark, not in response to any interrogation does not fall within the Miranda rule. Beecher v. State, 56 Ala.App. 212, 221, 320 So.2d 716 (1974), cert. denied, 294 Ala. 752, 320 So.2d 726, reversed on other grounds, 294 Ala. 674, 320 So.2d 727 (1975). The defendant’s statement was properly admitted into evidence.

We have searched the record for error prejudicial to the defendant and found none. The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


text:
    William McKinley LOFTON v. STATE.
    4 Div. 704.
    Court of Criminal Appeals of Alabama.
    June 5, 1979.

      John M. Gruenewald, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was jointly indicted with Horace Eugene Williams for the offense of grand larceny. A severance was granted, and appellant was tried and convicted. The court sentenced appellant to ten years imprisonment in the penitentiary. He was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed appellant gave notice of appeal. He is in this court with a free transcript and trial counsel was appointed to represent him on appeal.

The evidence presented by the State is undisputed. Appellant did not testify nor was any testimony offered in his defense. At the conclusion of the State’s case appellant made a motion to exclude the evidence on the ground the State failed to make out a prima facie case.

Thomas Efurd lived in the small community of Avon in Houston County, Alabama, and was the owner of a grocery store. He was doing business under the name of Efurd’s Dixie Dandy. On September 7, 1978, appellant and Williams entered his store shortly after 3:00 p. m. Efurd was at the cash register when the men entered the store. He observed the men walking around in the aisles of the store, and he went to the market and started working.

Around 10:00 a. m. on September 7,1978, Mr. Efurd filled the cigarette display rack to capacity with different brands of cigarettes in cartons. The Town of Avon had a two cents tax per pack on all cigarettes sold in the town. Mr. Efurd had a Monarch pricing machine which he used to stamp each package of cigarettes and no other store in Avon used such a stamping machine.

While Mr. Efurd was in the market he looked around and saw Williams at the cigarette rack and he observed him bending over, standing back, and looking around. Mr. Efurd left the market and as he was walking toward the cigarette rack Williams asked him the price of a certain brand of cigarettes. Before Mr. Efurd could answer, Williams said, “Never mind, I see the price.” Williams then walked out of the store. Appellant left the store before Williams did. Mr. Efurd went to the cigarette rack and immediately noticed that at least fifteen cartons of cigarettes were missing. He had last checked the rack between 12:00 and 1:00 and there were no cartons missing.

Mr. Efurd was informed that the two men had driven away in a two-toned blue Oldsmobile Ninety-Eight. He got in his car and drove east on Highway 84 in an effort to overtake the men. Ten minutes later he found the men parked in the Piggly Wiggly parking lot in Ashford, Alabama. Appellant was in the driver’s seat and Williams was on the passenger side. The two men started driving east on Highway 84 and Mr. Efurd followed them. They had to stop for a traffic light and Efurd got the tag number of the “98” Oldsmobile. It was a Florida tag number — CUK-292. He went to the Ashford police and reported the incident, giving them a description of the automobile and the tag number.

Mr. Efurd then returned to his store to get a more accurate accounting of the missing cartons of cigarettes. He determined that seventeen cartons were missing — two cartons of Camels, six cartons of Salems, and nine cartons of Kools. Mr. Efurd stated that $4.99 was marked on each carton with the Monarch pricing device and that the fair market price of the missing cigarettes was approximately $85.00.

Mr. Efurd further testified that, about one hour after he returned to his store, the police notified him the two men had been apprehended. He went to the station house the next morning to identify and pick up his cigarettes. He identified his cigarettes by the Monarch price stamp and the Avon tax stamp on them.

Mr. Jerry Godby testified that he was the Sheriff of Seminole County, Georgia, and that on the afternoon of September 7,1978, he received information from the authorities of Houston County, Alabama, to be on the lookout for a blue Oldsmobile and he was given the tag number. Sheriff Godby stopped the described automobile on Highway 84 a few minutes after 5:00 Georgia time. When he stopped the car the driver got out. He identified the driver as appellant and said that Williams was seated in front on the passenger side. The sheriff gave both men the Miranda rights and warnings and told them there were some problems in Alabama. He directed them to follow him to the sheriff’s office. The sheriff ascertained that Williams was the owner of the car. When they arrived at the sheriff’s office the men got out of the car and locked it before going into the sheriff’s office.

Williams gave the officers his consent to search the car. Sergeant Gerald Monday from the Houston County Sheriff’s Office was present during the search. Recovered from the trunk of the automobile were ten cartons of Salem cigarettes, eighteen cartons of Kools, thirteen cartons of Winstons, one carton of Pall Mall, and two cartons of Camels. Appellant and Williams were arrested and placed in custody of Sergeant Monday along with the forty-four cartons of cigarettes.

Sergeant Monday testified that, on September 7, 1978, he went to the Sheriff’s Office in Seminole Cqunty, Georgia, where he saw appellant. He had previously radioed Sheriff Godby and given him information concerning a blue Oldsmobile and was present at the time this car was searched. The cigarettes found in the trunk of this car were turned over to him and the two suspects were placed in his custody. He further stated that seventeen cartons of cigarettes had the Town of Avon two cents sales tax on them. These seventeen cartons of cigarettes included six cartons of Salems, two cartons of Camels and nine cartons of Kool King cigarettes. Sixteen of these cartons were delivered to Thomas Efurd and he kept one carton which he produced at appellant’s trial. Mr. Efurd identified the seventeen cartons as his property. The carton retained by Sergeant Monday had a tear on one end of it. It was a Salem carton. Sergeant Monday searched appellant and found a small piece of green cardboard paper stuck inside a support hose above his left ankle. The torn piece of paper appeared to match the torn cigarette carton. The hose, piece of paper and carton were introduced into evidence. The cigarettes were removed from the torn carton prior to its admission in evidence.

Appellant was put in the Houston County Jail around 7:45 p. m. on September 7, 1978. He was again given the Miranda, rights and stated he knew and understood his rights. He was asked if he would like to explain where all the cartons found in the trunk of the car he was driving came from and he replied that he did not care to make a statement. He refused to sign a waiver of rights form. At that point the interrogation ended. At a later time, without a question being asked him, appellant told the officers that he was innocent; that he and his companion had loaned the automobile to a friend, Frank Johnson, in Dothan, Alabama, and that Johnson brought the car back around 3:30 and the cigarettes could have been in the car at that time. Appellant voluntarily made this statement.

Larceny is the felonious taking and carrying away of the personal property of another with the intent to convert it to his own use or to the use of another, or to deprive the owner thereof. Woods v. State, 57 Ala.App. 1, 325 So.2d 517; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603.

Courts throughout the country have consistently held that searches are constitutionally permissible when executed with the owner’s consent. Securing a search warrant is wholly unnecessary when consent to search has been freely given. Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831; Payton v. State, 47 Ala.App. 347, 254 So.2d 351.

The evidence in this case is circumstantial. Circumstantial evidence is entitled to the same weight as direct evidence provided it points toward the guilt of the accused. Jones v. State, Ala.Cr.App., 337 So.2d 116; Williams v. State, Ala.Cr.App., 348 So.2d 1142; Chesteen v. State, Ala.Cr. App., 365 So.2d 102.

The evidence in this case strongly points to appellant as the guilty party in this case. He was identified as being in the store at about the time the offense was committed. Appellant’s companion with whom he entered the store was seen at the cigarette rack looking around and making movements. Appellant was the driver of the getaway car and in less than an hour he was was stopped in Georgia. The stolen merchandise was recovered from the trunk of the car he was driving.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813; Bass v. State, 55 Ala.App. 88, 313 So.2d 208; Jones v. State, supra.

Appellant contends the trial court erred in permitting testimony by Sheriff Godby that 44 cartons of cigarettes were found during the search ■ of the car. He claims the jury could infer from this testimony that he had been on a “stealing spree” since only 17 cartons of cigarettes were at issue in the trial of this case. We do not agree.

There was no testimony offered at trial to show that the other cigarettes were, in fact, stolen. Though they were not encompassed in the charge against appellant the other cigarettes were admissible as part of the res gestae of the search and part of the same transaction. Smith v. State, Ala.Cr. App., 351 So.2d 668; Brantley v. State, 294 Ala. 344, 317 So.2d 345.

Finally, appellant claims there was error in the admission into evidence of the support hose worn by appellant at the time of his arrest. A torn piece of paper of the same color and size as that missing from the corner of one of the cartons of cigarettes was found stuck to appellant’s leg inside the support hose he was wearing. This piece of evidence tended to directly connect appellant to the stolen property and was properly introduced into evidence. Gholston v. State, 221 Ala. 556, 130 So. 69; Lackey v. State, 41 Ala.App. 46, 123 So.2d 186.

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

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    James Thomas BRASWELL v. STATE.
    6 Div. 792.
    Court of Criminal Appeals of Alabama.
    June 5, 1979.

      Jake V. Bivona, Bessemer, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

James Thomas Braswell was indicted by the Jefferson County (Bessemer Division) Grand Jury under a one-count indictment charging him with “unlawfully, and with malice aforethought,” killing Sharlon Dianne Braswell, “by beating her with a rifle, or some other unknown blunt instrument.”

The appellant was duly arraigned, with his attorney present, and entered a plea of not guilty and not guilty by reason of insanity.

On October 28, 1977, the circuit court of Jefferson County ordered the appellant delivered to Bryce State Hospital at Tuscaloosa, Alabama, for observation and examination to determine his mental condition and criminal responsibility. A report entitled “An Investigation of Sanity Pursuant to Section 15-16 22, Code of Alabama 1975,” was filed with the court on February 14, 1978, by the superintendent of the State hospital, giving their findings after appellant’s examination.

Prior to trial, the appellant filed a written plea wherein he pleaded not guilty and not guilty by reason of insanity and also filed a motion to suppress all documents, reports, statements and notes relating to his court-ordered commitment and stay at Bryce Hospital.

On April 5, 1978, after a two-day trial before a jury, the appellant was found guilty of murder in the first degree and sentenced to life imprisonment. Appellant gave immediate notice of appeal and is now before this court. Appellant’s trial counsel has been appointed appellate counsel and he has been provided with a free transcript.

The sufficiency of the evidence was not raised at trial by a motion to exclude the State’s evidence, a request for the affirmative charge, or a motion for a new trial. Therefore, a complete rendition of the facts is not warranted.

Briefly, the facts presented at trial are that the appellant and his wife, Sharlon Dianne Braswell, had separated in the latter part of December, 1976, and subsequently were divorced. On May 31, 1977, appellant called his wife’s home about 8:40 P.M., and asked if his ex-wife was at home. Her mother, Mrs. Wyatt, informed him that she was not and that she did not know where her daughter had gone. However, she said that she was under the impression that her daughter was meeting the appellant somewhere.

The appellant said that she was not meeting him and, when her mother invited him to come over to see the children, he stated, “I’d rather not, if I was to come by and her come in, I might get mad and do something that I would regret later.”

Later on that date, Mrs. Wyatt received another telephone call, and while she was talking to the caller, she heard her daughter scream for her. She saw her daughter come into the house through the front door. The appellant was following close behind her and was holding a gun in her back.

The victim’s mother testified that, when she met the appellant and daughter at the door, the appellant pointed the gun at her and said, “don’t you move, I’m going to blow your brains out . . . don’t say a word. I’m going to kill every G— damn one of you.” According to the victim’s mother, she pleaded with him and he said, “I ain’t talking . . . when I [saw] her down there in that park that is all I need to know — with some dude.”

At that point, the appellant closed the draperies on the window and hit the victim on the head with the gun, breaking the gun. The appellant then ran to the hall, grabbed another rifle and chased the victim, who was carrying her baby in her arms, out the front door.

According to the victim’s mother, she ran to the front door, screamed for help, and then ran out the back door, carrying the other child with her. She stated that she then ran around the house and met her neighbor, Mr. Skelton, who had heard the screams, and that together they ran to where her daughter was lying. She said that her daughter was lying on her face and she “could hear her struggling. . . She said she did not observe any injuries on her daughter at that time, but that she did so later. She testified that an ambulance later arrived and carried her daughter to the hospital.

Roy Skelton testified that, on the date in question, he was living in the house across the street in front of Mrs. Wyatt’s house. According to Skelton, he was awakened that night by a scream for help. He stated that he ran out of his house and encountered Mrs. Wyatt and that they found the victim lying face down near the road, her child, crying, near her.

Skelton said that the victim was turned over and a pillow was placed beneath her head. He said that, at that time, she was “struggling for breath.”

Walter Whitsett of the Jefferson County Sheriff’s Department arrived at the scene at “approximately 9:57 P.M. before the ambulance arrived.” Nearby he found “parts of a .22 rifle. . The stock and the barrel [were] separated.” He stated that the barrel “had' blood and some matted hair on it.”

The State toxicologist said that he performed an autopsy on the body of the victim, Sharlon Dianne Braswell, and found “multiple blunt force trauma to the head, lacerations, skull fractures and trauma to the brain.” Further, he acknowledged that these injuries were “reasonably calculated to cause death.”

The appellant was taken into custody and interviewed by a deputy sheriff of the Jefferson County Sheriff’s Department. After being warned of his constitutional rights, the appellant stated “I didn’t kill her because I hated her, I killed her because I loved her.”

The appellant did not take the stand in his own behalf but presented the testimony of two expert witnesses, Dr. David Morrison, a psychiatrist, and Dr. Allan Sheely, a psychologist. Dr. Morrison testified that, based upon his interviews and examination of the appellant, it was his opinion that, on the night of the murder, the appellant was unable to distinguish right from wrong.

Dr. Sheely testified that the appellant was not in control of his actions at the time of the killing and that, therefore, his act was the result of an irresistible impulse.

I

The appellant contends that the trial judge abused his discretion when he would not permit the defense counsel, in his opening statement, to inform the jury of what he expected the evidence to show. He insists this was prejudicial and was a denial of his constitutional right to a fair trial.

The transcript of evidence shows the appellant’s opening statement, as follows:

“MR. PADEN: That is what we ask you to pay particular attention to. We expect the evidence to show—
“MR. HALCOMBE: Objection.
“THE COURT: Mr. Paden, you’re not allowed to make statements as to what the evidence may or may not show at this time.
“MR. PADEN: Judge, we would reserve an exception to that, that we be limited to our opening argument. It is in complete violation of the State Constitution of Alabama and the Constitution of the United States that guarantees this man a jury trial and opening statement to the jury.
“THE COURT: Overruled.
“MR. PADEN: We are limited to what we can say?
“THE COURT: Yes, sir.”

From our reading of the transcript of evidence, the extent of defense counsel’s opening statement is not shown. However, it is apparent there was some statement made. Therefore, we do not believe it can be earnestly maintained that the appellant was denied the right to make any opening statement to the jury.

The Supreme Court of Alabama has stated in Crawford v. State, 112 Ala. 1, 21 So. 214, that the right of a defendant to be heard, by himself or through counsel, in a criminal prosecution is a matter to be regulated at the court’s discretion. Under Alabama law, the purpose of an opening statement is merely to advise a jury of the issues in a case, and the scope and extent of the statement is a matter addressed to the sound discretion of the trial judge. Baker v. State, 48 Ala.App. 535, 266 So.2d 340; Holifield v. State, 42 Ala.App. 209, 159 So.2d 65; Burns v. State, 226 Ala. 117, 145 So. 436.

The trial court’s refusal to allow defense counsel to comment to the jury on what he expected the evidence to show has been held not to be an abuse of the trial court’s discretion. Cooper v. State, Ala.Cr.App., 348 So.2d 532; Parsons v. State, 32 Ala.App. 266, 25 So.2d 44; Hooks v. State, 45 Ala.App. 221, 228 So.2d 833; Stewart v. State, 245 Ala. 511, 17 So.2d 871.

Under these facts, it is our judgment that the trial court did not abuse its discretion in refusing to permit the contested portion of the opening statement.

II

During cross-examination of appellant’s expert witness, the findings of the Commission on Lunacy of the State of Alabama regarding the mental condition of the appellant at the time of the incident were read into evidence. The appellant now insists that this was prejudicial error and warrants reversal of his case.

From the record, that portion of the witness’ cross-examination which is in issue appears, as follows:

“Q. Are you aware that the Lunacy Commission—
“MR. PADEN: Judge, we object to him going into the Lunacy Commission report. It has not been offered in evidence at this time, concerning the Lunacy Commission. It is a leading question, stating what the report was. We object to it. It is prejudicial to this Defendant.
“THE COURT: Overruled.
“MR. PADEN: We except.
“Q. (BY MR. HALCOMBE:) You have seen this report doctor, which I hold here, which is marked State’s Exhibit 10?
“A. Yes.
“(Whereupon, a file of Bryce Hospital contained in a large envelope was marked State’s Exhibit 10 for identification only.)
“Q. What is the opinion of the Lunacy Commission?
“MR. PADEN: Judge, we object to that. That is improper. It is not certified that this is from the Lunacy Commission. It is a report that this doctor has seen. He is asking what he has seen and then asking him to tell this to the jury. It is highly improper.
“THE COURT: Overruled. The doctor testified on direct examination he had, studied that report and saw nothing that changed his opinion in any way.
“MR. PADEN: That' doesn’t go to the authenticity of this report. For what purpose is it being allowed?
“MR. HALCOMBE: If it please the Court, we have a stipulation that these are properly authenticated records.
“MR. PADEN: No, sir. We said that those are records that came from Bryce Hospital in response to your subpoena.
“MR. HALCOMBE: And, properly authenticated, if you recall the stipulation. I just remove that report from this file, Your Honor.
“THE COURT: You might ask the doctor if those are the reports that he said he studied.
“A. Do you want me to answer?
“THE COURT: I want him to ask whatever he wants to.
“Q. (BY MR. HALCOMBE:) Doctor, are these the reports that you looked over?
“A. I believe they are.
“Q. All right, sir. And, the Lunacy Commission Report was included?
“A. Yes, I remember this.
“Q. This is the report you looked at?
“A. I believe it is.
“Q. And, what was the Lunacy Commission report, doctor?
“MR. PADEN: We object to that. The instrument speaks for itself.
“THE COURT: Overruled.
“MR. PADEN: We except.
“A. You want me to read this?
“Q. If you would, please sir?
“A. ‘It is the opinion of the Lunacy Commission, Mr. Braswell exhibits no evidence of mental disorder which would effect his criminal responsibility, either now or at the time of the alleged offense. He is able to understand the nature of the charges against him and to assist his attorney in the preparation of a defense at this time.’
“Q. And I believe it is signed by Dr. Thomas Smith, is that correct?
“A. Dr. Thomas Smith. Dr. James Thompson and T. J. Kounter, Superintendent.
“Q. You know Dr. Smith?
“A. Yes, I have a great deal of respect for him.
“Q. Do you know Dr. Thompson?
“A. I don’t think I do.
“MR. HALCOMBE: That is all the questions we have. Excuse me. At this time I offer what has been marked for identification, State’s Exhibit 10.
“MR. PADEN: Judge, we object to that.
“THE COURT: Overruled.
“MR. PADEN: We except.
“MR. HALCOMBE: That is all the questions I have.”

It is settled law in Alabama that the scope of cross-examination is addressed to the sound discretion of the trial court. Noble v. State, 253 Ala. 519, 45 So.2d 857. Its extent of range is also within the trial court’s discretion. Haney v. State, 20 Ala.App. 236, 101 So. 533.

It is also settled law in Alabama that cross-examination is not limited to matters brought out on direct examination, but extends to all matters within the issues of the case. Lewis v. State, 43 Ala.App. 16, 178 So.2d 649; Madden v. State, 40 Ala.App. 271, 112 So.2d 796.

In the present case, we find that appellant’s defense counsel, on direct examination of appellant’s expert witness, brought out that the witness had reviewed the record of appellant’s stay at Bryce Hospital, but that he saw nothing in the record that would influence his opinion.

That testimony appears in the transcript of evidence, as follows:

“Q. Doctor, in preforming your tests and so forth, did you have anything else that you used, or anybody gave you to help you in forming your opinion as to what the mental condition of James Thomas Braswell was on the night of March 31st 1977?
“MR. GREEN: May 31st.
“Q. May 31st. — or his condition at the present time, as far as him standing trial. Was there anything else you did use in making your consideration?
“A. At that time?
“Q. Now, or any other time?
“A. No, sir. I have reviewed the record of his stay at Bryce Hospital. But, that did not — at the time I saw those, which was only a week or ten days ago, I had already formed my opinion. I saw nothing there that influenced me one way or the other.” [Emphasis added.]

Further, this court stated, Ball v. State, Ala.Cr.App., 337 So.2d 31, that insanity is a defense which must be proved to the reasonable satisfaction of the jury, regardless of the written opinion of a State psychiatrist to the effect that the accused was sane. Cross-examination touching on the question of the appellant’s sanity, and testimony relating to his sanity, are for the jury’s consideration.

In view of the fact that the appellant had brought out, on direct examination, that appellant’s expert witness had reviewed the record from Bryce Hospital, and that the witness specifically stated that the record did not “influence [him] one way or the other,” it is our judgment that it was a proper subject of inquiry on cross-examination. Further, after the witness stated that he was not influenced by the record from Bryce Hospital, we are of the view that the jury was entitled to hear the substance of any and all information he had used in arriving at his opinion of appellant’s mental condition, especially in view of the fact that he had previously given extensive testimony concerning how he had arrived at his opinion.

We distinguish Benton v. State, 245 Ala. 625, 18 So.2d 428, because there the defendant attempted to introduce the findings of the Commission on Lunacy into evidence without a stipulation as to its authenticity. In the present case, had the State attempted to offer the Commission’s report during the presentation of the prosecution’s case in chief, without having it authenticated, its admission would have been prohibited under the rationale of Benton, supra.

Therefore, the trial court’s ruling, which permitted the State’s cross-examination of appellant’s expert witness and the subsequent introduction of the Commission on Lunacy’s report, was proper.

Ill

Prior to trial, the appellant filed a motion to suppress all “documents, reports, statements and notes related to, and during the time that the [appellant] was committed to Bryce Hospital.” As grounds for his motion, the appellant assigned the following:

“3 . the introduction of said records would be in violation of the Defendant’s Sixth Amendment right to be confronted with the witnesses against him in that Defendant is deprived of effective cross-examination of the doctors who compiled and composed said records while the Defendant was at Bryce Hospital.
“4 . the introduction of said records into evidence would be in violation of the Defendant’s Fifth Amendment right against self-incrimination in that statements given by the Defendant to doctors at Bryce Hospital could be used as evidence of the Defendant’s guilt.
“5 . to introduce such evidence into trial would be highly prejudicial to the Defendant.
“6 . that said medical records, without more, constitute inadmissible hearsay.”

The appellant now complains that the trial court committed reversible error by denying his motion to suppress evidence of the report of the Commission on Lunacy regarding his mental state at the time of the incident.

We note from the record that, prior to the appellant’s presentation of his defense before the jury, a stipulation was entered into by the appellant which states that his records from his stay at Bryce Hospital were duly certified and duly authenticated as his records. Included in these medical records, which were the subject of the stipulation, was the report of the Commission on Lunacy. Further, the record shows that, at that time, appellant stated that he had “no objection.”

Later, we find that the remainder of the appellant’s medical records were admitted into evidence by the defense counsel. In view of this action by the appellant, we fail to see how the introduction of the Commission’s report by the State and the overruling of appellant’s motion to suppress such evidence, were prejudicial to appellant. Finally, in Hunt v. State, 248 Ala. 217, 27 So.2d 186, the Supreme Court of Alabama determined that the Commission’s examination of an appellant, ordered pursuant to the statute, does not violate his constitutional right against self-incrimination or his right to due process of law. The trial court’s ruling, therefore, was not error.

IV

In view of our rationale regarding appellant’s foregoing contentions, it is our judgment that the trial court properly permitted the prosecuting attorney, in his closing argument, to make reference to the report of the Commission on Lunacy.

V

The appellant, in his final contention, insists that the trial court was in error in allowing the introduction of photographs of the deceased victim, depicting the nature and extent of her injuries.

The gruesomeness or inflammatory nature of a photograph is not grounds for exclusion, where it has a reasonable tendency to prove or disprove some material fact in issue, or which may be in dispute or material. Richards v. State, Ala.Cr.App., 337 So.2d 171; Brown v. State, Ala.Cr.App., 331 So.2d 820. Further, a photograph which sheds light on the character and location of the wounds on the body of the victim, is admissible even though such evidence is cumulative in nature. Turk v. State, Ala.Cr.App., 347 So.2d 588.

In the present case, the photographs were introduced during the testimony of the deputy coroner who had taken the photographs of the deceased. The photographs were introduced to illustrate and to strengthen the testimony of the toxicologist who testified to the victim’s cause of death. They shed light on the character and location of the victim’s wounds and tended to corroborate the testimony of toxicologist. When properly identified and authenticated as here, such photographs in our judgment, are relevant and admissible under Alabama law. Robinson v. State, Ala.Cr.App., 342 So.2d 1331.

VI

We have searched the record and transcript of evidence and have found no error. Therefore, it is our judgment that the conviction by the Jefferson Circuit Court, Bessemer Division, is due to be affirmed.

AFFIRMED.

All the Judges concur.