author: BOWEN, Judge.

text:
    Garet VAN ANTWERP, alias Garet Van Antwerp, III, alias G. Van Antwerp v. STATE.
    1 Div. 624.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    Rehearing Denied April 4, 1978.

      Ian F. Gaston and Robert C. Campbell, III, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and George Beck, Deputy Atty. Gen., and Vanzetta Penn Durant, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was convicted for a willful violation of the fraud provisions of Section 1 of the Securities Act of Alabama, Acts 1959, p. 1318, Act No. 542 (Code of Alabama 1940, Recompiled 1958, 1973 Cum.Supp., Title 53, § 28). The jury assessed a fine of five thousand dollars, and the trial court imposed a sentence of imprisonment in the penitentiary for eighteen months.

On this appeal there are four issues presented for reversing the judgment of conviction: (1) The trial court erred in charging the jury that innocent mistake may support a criminal conviction for fraud; (2) the trial court denied the appellant’s constitutional rights in prohibiting defense counsel from arguing the law of the case to the jury; (3) questions propounded by the state to defense witnesses assumed unproved facts and constitute reversible error; and (4) a new trial is required because the grand jury which indicted the appellant and the petit jury which convicted him were selected in an unconstitutional manner.

This court has treated the factual context of this case in Manson v. State, Ala.Cr.App., 349 So.2d 67 (1977). That case contains a lengthy and comprehensive statement of the facts and a detailed analysis of the fraud involved. Much of the evidence in both cases is identical and to the same effect. The appellant has not challenged the sufficiency of the evidence on this appeal. Neither party on appeal has set forth a detailed statement of facts. With regard to each issue we have attempted to state the operative facts. A lengthy statement of the facts, which it would of necessity be, would burden the reader and serve no purpose on this appeal. We see no manner in which it would aid the appellant in the presentation of the issues raised in appealing his conviction. Therefore we will fore-go a detailed statement of facts in this opinion.

I

Initially the appellant charges that the trial court erred to a reversal in charging the jury that the appellant would be guilty of criminal fraud if he misrepresented a material fact upon which a party relied to his detriment even though that misrepresentation was made innocently and by mistake.

The objected to portion of the trial judge’s oral charge is as follows:

“The third prohibited act set out under the statute, to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit on any person, sets out the words ‘fraud’ or ‘deceit’. I would charge you that a fraud would be a false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. “Fraud under the Alabama law referred to under Title 7, Section 108, is this, it is misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, would constitute legal fraud.
“The word ‘deceit’ means a fraudulent and cheating misrepresentation, artifice, or device, used by one or more persons to deceive or trick another, who is ignorant of the true facts, to the prejudice and damage of the party imposed upon. Let me read that again, a fraudulent and cheating misrepresentation, artifice, or device, used by one or more persons to deceive and trick another, who is ignorant of the true facts, to the prejudice and damage of the party imposed upon. A deceit is either the suggestion, as a fact, of that which is not true, by one who does not believe it to be true or an assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true or the suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact, or it could be a promise, made without any intention of performing it. Under Title 7, Section 110, the elements of deceit are set out under this definition: The willful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury, will give a right — will create what is referred to as deceit. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, would not be deceit. In all cases of deceit, knowledge of a falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of a falsehood.”

It is true, as the state argues, that the legislature may, in enacting a statute for the ultimate protection of society and aimed at preventing its exploitation, forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer. Smith v. State, 223 Ala. 346, 136 So. 270 (1931); Allen v. State, 33 Ala.App. 70, 30 So.2d 479 (1947); Leonard v. State, 38 Ala.App. 138, 79 So.2d 803 (1905); Haywood v. State, 280 Ala. 171, 190 So.2d 728 (1966); State v. Southern Express Co., 200 Ala. 31, 75 So. 343 (1917); Fiorella v. City of Birmingham, 35 Ala.App. 384, 48 So.2d 761 (1950); McKinney v. State, 50 Ala.App. 271, 278 So.2d 719, cert. denied, 291 Ala. 789, 278 So.2d 724 (1973). However, under an indictment charging a violation of the Alabama Securities Act the state has the burden of showing that the conduct was willful and unlawful. This is “the language of the statute, chosen deliberately by the Legislature”. Manson v. State, Ala.Cr.App., 349 So.2d 67, 81, cert. denied, Ala., 349 So.2d 86 (1977).

Title 53, Section 28, Code of Alabama 1940, Recompiled 1958 (1973 Cum. Supp.), provides that “(i)t is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly” to imply, make, or engage in any fraudulent or prohibited practice. Title 53, § 44(a), states that

“Any person who willfully violates any provisions of this chapter, shall upon conviction be fined not more than $5,000.00 or imprisoned not more than three years, or both.” (Emphasis added)

Thus the statute employing the term “willful” requires proof of the guilty knowledge or mens rea. Dixon v. State, 40 Ala.App. 465, 115 So.2d 262 (1959). A “willful” act may be described as one done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. Padgett v. State, 36 Ala.App. 355, 56 So.2d 116 (1952). This excludes the concept of criminal liability for a misrepresentation made innocently and by mistake in a prosecution for securities fraud under Title 53, Section 28, Code.

Having determined the intent required we must now examine the oral charge of the trial court. In reviewing the propriety of a trial court’s jury charge, it is the responsibility of this court to consider the charge in its entirety and as a whole without isolating statements or sentences out of context. See cases cited at 6A Alabama Digest, Criminal Law, <©=>822(1).

In reviewing the entire charge we find that the following instructions were given after the objectionable definition of fraud quoted above.

“The penalty section that I have just read to you, Section 44, sets out that the violation must be willful. I, therefore, charge you that willful means proceeding from a conscious motion of the will or voluntary. Willful means intending the result which actually comes to pass. Willful means designed, and willful means intentionally as opposes to accidentally or involuntarily. A willful act has been defined as being one done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently.
“The definition of ‘willful’ has the word ‘intentional’. I would charge you that what intend means is design or resolve or determination with which a person acts. Intent being a state of mind, is rarely susceptible of direct proof, but must ordinarily be inferred from the facts.
“I would charge you that willfulness could exist where an ordinary person under similar circumstances should have known or could have known by the exercise of reasonable diligence that the statements were false or willfulness could exist where a defendant has demonstrated a reckless disregard or an indifference to representing the truth or did not use the means at hand to determine the true facts.”

When this portion of the charge is read in conjunction with the objected to portion it is clear that the jury was instructed that they could convict only if they found that the fraud was willful. Any error or tendency to mislead contained in the definition of fraud was cured by the subsequent instructions. Foster v. State, 46 Ala.App. 344, 241 So.2d 903 (1971); Langston v. State, 16 Ala.App. 123, 75 So. 715 (1917).

The rule of review in this regard is that the general charge of the court must be considered and construed as a whole and in connection with the evidence, and if, when so construed it asserts a correct proposition applicable to the evidence, a disconnected part or sentence is not reversible error, although it may not express all the necessary constituents of the offense. Johnson v. State, 33 Ala.App. 159, 31 So.2d 667, cert. denied, 249 Ala. 433, 31 So.2d 670 (1947).

The trial court also gave the following written requested charges of the appellant which remove any possible doubt that the appellant was in any way prejudiced by the trial court’s definition of fraud.

A-2—“In order to find that Garet Van Antwerp violated the Alabama Securities Act you must find to a moral certainty that he acted with the intent to defraud either the purchasers or sellers of securities.”
A-27 — “The Court charges the jury that negligence or bad judgment does not constitute a criminal offense.”
A-14 — “To find that the defendant employed a device, scheme or artifice to defraud you must find from the evidence beyond a reasonable doubt that the defendant acted with the intention to deceive.”

Though we have reviewed this issue on its merits the record affirmatively reveals that an exception was made only after the jury had retired. Time after time this court has held that exceptions to the oral charge must be made in the presence of the jury and prior to their retirement in order that the court may correct any error. The defendant and his counsel have the burden of stating objections to the oral charge before the jury retires to determine the verdict. Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967); Lowery v. State, Ala.Cr.App., 342 So.2d 797 (1976); Moates v. State, 40 Ala.App. 234, 115 So.2d 277, cert. denied, 269 Ala. 698, 115 So.2d 282 (1959). 6A Alabama Digest, Criminal Law, ®=>841, 842, 843. Absent a timely objection there is nothing for this court to review.

II

After limiting the prosecution and the defense to two and one-half hours each in closing argument to the jury, the trial judge further instructed counsel:

“The Court further instructs the State and the defense not to argue at all (sic) to the jury. That is improper, and would abate the province of the Court. So, I want to make that instruction clear at this time. Any questions about that instruction?
“MR. MARSAL: Yes, sir. We respectfully except to the Court’s stating, at this stage, that the lawyers are instructed not to argue the law.
“THE COURT: All right. Note your exception, Mr. Marsal.
“MR. MARSAL: I take the position that it is the lawyer’s responsibility to argue the law as he understands it to be, in connection with the facts presented.
“THE COURT: By arguing the law, Mr. Marsal, I am not saying you cannot recite the applicable law that is referred to, which is made the basis of the indictment against the defendant. That is not arguing the law. As far as interpreting the law, that is improper for an attorney to do that. It is the Court’s function to do so, and it would invade the province of the Court, and you are instructed not to do that.
“MR. MARSAL: We do except.”

It is argued that this action of the trial judge “flatly and arbitrarily” denied the appellant his constitutional “right to be heard by himself and counsel, or either” under the Constitution of Alabama, 1901, Article I, Section 6.

In speaking of the range of advocacy in criminal cases, the Alabama Supreme Court' in Cross v. State, 68 Ala. 476 (1881) pointed out that counsel may argue law generally to the jury and indicated that such argument is embraced within the constitutional right of an accused. The court however left no doubt that this right is not absolute but is subject to the control and guidance of the trial court, such argument actually being argument before the court and to the court, because the jury is not the judge of the law and it is their sworn duty to receive and apply the law as it is given them by the trial court.

“Defendants have the right to be heard by themselves and counsel. The constitution secures this much to them. In addressing the jury, counsel must be allowed to select and pursue their own line of argument, their own methods of dealing with the testimony. They may state the principles of law applicable to the case, and may argue such principles, and quote from books in elucidation of their views of the law. This, however, is an argument before the court, and for the court; for the jury are not judges of the law. It is their sworn duty to receive and apply the law as the same is given them in charge by the court.” Cross, supra, 68 Ala. 480.

See also Mitchell v. State, 18 Ala.App. 471, 472, 93 So. 46, cert. denied, 208 Ala. 699, 93 So. 923 (1922); 67 A.L.R.2d 245, Annotation: Counsel’s right in criminal prosecution to argue law or to read lawbooks to jury.

Thus it is the right of counsel under the guidance of the court to discuss the rules of law applicable to different phases of the testimony. Davis v. State, 213 Ala. 541, 543, 105 So. 677 (1925). The right to be heard must be harmonized with the principle that the trial judge instructs as to the law of the case. White v. State, 41 Ala.App. 54, 60, 123 So.2d 179, 183, cert. denied, 271 Ala. 702, 123 So.2d 186 (1960). In White, the court suggested:

“Since counsel runs the risk of being ‘guided’ by the court when making statements to the jury as to what may be the applicable principles of law, submitting and having approved written charges before argument avoids the danger of the judge cutting the ground from under an argument.”

However, we found no Alabama case specifically limiting counsel’s arguments of the law to only those principles embraced and included in the instructions of the trial court or to the approved requested charges.

“Courts have a discretionary power, moreover, to require all propositions of law to be argued as such to the presiding judge, and not to the jury. The jury are to receive the law from the court, and not from either the counsel, or from textbooks or adjudged eases. This is a part of the police-power, so to speak, of the court, often necessary to prevent confusion and insure the orderly administration of justice in the trial court.” Harrison v. State, 78 Ala. 5, 11—12 (1884). Approved in Smith v. State, 36 Ala.App. 646, 650, 62 So.2d 473 (1953).

While it is difficult, if not impossible, to ascertain the bounds of argument permitted by the trial court in this case, we view the substance and import of the instructions of the trial judge as prohibiting counsel from usurping the function of the court. The trial judge did not prohibit counsel from stating the law to the jury but only from “arguing” the law “as far as interpreting the law”. The court’s action was not arbitrary because the trial judge allowed counsel to argue under his guidance. In exercising his guidance we do not find that the trial judge abused his discretion or erred to a reversal.

Though defense counsel was given a two and one-half hour period in which to present his closing argument, the record reveals no single instance where counsel, either for the prosecution or defense, was stopped or inhibited in presenting any legal argument to the jury (outside of the general instructions of the court set forth above). In view of the complexion of the entire trial and the vigorous and aggressive manner in which the appellant was defended, it would be unrealistic for this court to assume that no arguments on the law of the case were presented during closing arguments to the jury.

In Peagler v. State, 110 Ala. 11, 14, 20 So. 363, 364 (1895), the Alabama Supreme Court found that the trial judge did not deprive the defendants of their constitutional right to be heard by counsel in limiting counsel to one hour and a half for argument. The observations made there are analogous and helpful here.

“It [the Alabama Constitution] provides that ‘he has a right to be heard by himself and counsel, or either’. This provision guarantees him the right to be heard on all questions of law and fact which may arise at any time during the prosecution, and it implies that he shall have full opportunity and time, as justice and the necessities of the case may require. Necessarily, the trial court is invested with a large and very responsible discretion in determining and affording to the accused the full measure of his constitutional right. Like any other adjudication by the trial court involving the rights of a party on trial, its judgment is revisable by this court. When the question is presented here, we determine whether the discretion has been abused, whether the party has been deprived of his right to be fully heard, as provided. Where the right has been wholly denied, or action taken in the absence of the accused, the duty of this court is plain. But, where the question depends upon the manner in which a discretion has been exercised, the duty of this court in reviewing the conclusion of the trial court is often difficult. When it is presented as it is in this case, the duty devolves upon this court to examine the record, and consider the gravity of the charge against the accused, the number and character of legal questions and facts involved, and determine from a consideration of them all whether the time allowed was ample to secure complete justice to the defendant.”

Just as error cannot be predicated on the limitation of arguments where the record fails to show that counsel consumed the entire time allotted, Newsom v. State, 15 Ala.App. 43, 72 So. 579, cert. denied, 198 Ala. 692, 73 So. 1001 (1916), on the showing made here we cannot say that the constitutional rights of the accused were impinged. In King v. State, Ala.Cr.App., 347 So.2d 1005, cert. denied, Ala., 347 So.2d 1010 (1977), we held that the trial court did not err in refusing defense counsel’s request to argue the legal effect of certain requested charges before submitting them to the trial judge.

In the absence of any showing that defense counsel had any arguments of law to present we fail to find reversible error. Nowhere in the record does it affirmatively appear that there has been an abuse of discretion resulting in an infringement upon the constitutional rights of the accused. Jackson v. State, 239 Ala. 38, 40, 193 So. 417 (1940).

Ill

It is argued that reversible error was committed when the state, in its cross examination of the appellant and a defense witness, alleged as a fact that Stewart Hopps had served time in the penitentiary for fraud. Mr. Hopps was named in two counts of the indictment against the appellant, initiated the project which led to the bond issue, and received a fee of $40,000.00 from the proceeds of the bond sale. He was also shown to have been a co-defendant in Texas civil litigation involving the appellant wherein federal injunctions were entered against each.

A.

In direct examination of Randall Marrs, Vice-Chairman of the Mount Vernon Industrial Development Board, defense counsel elicited several matters which the Board had been informed of by the appellant, including the fact that Hopps had been “convicted”.

“Q. What else did he tell them (the Board)?
“A. I can’t be sure. I think he told us at some time, that one of the parties involved in the transaction with Johnnie Walker had been convicted of something. This must be Mr. Stewart Hopps, I believe.”

On cross examination of Mr. Marrs by the state, the following occurred:

“Q. (The State) And he didn’t tell you that Stewart Hopps besides being under an injunction on another case, had been in the penitentiary for fraud?
“MR. MARSAL: Of course, Judge, we object to that. There is no evidence to that effect whatsoever except from the mouth of the attorney.
“MR. BAXLEY: Your Honor, he testified on Direct when he asked him something about doing some—
“MR. MARSAL: We have a motion, if the Court please, to make in response to that remark by Mr. Baxley.
“THE COURT: All right. I think it is an appropriate time for a break anyway. Take the jury back there. (Whereupon, the jury was excluded from the Courtroom.)
“THE COURT: You may step down, Mr. Marrs, and wait outside in the hall. You cannot, of course, discuss your testimony with any other witness now.” (Whereupon, there was a motion made for a mistrial by Mr. Marsal, and argument was heard, and motion was denied by the Court. The jury returned to the Courtroom and the following proceedings were had and done:)

The appellant alleges that the question asked by the prosecution constituted reversible error because (1) it assumed a fact not in evidence, (2) constituted impeachment of the character of a person not a witness or a party to the litigation, (3) was a blatant effort to establish guilt by association and (4) was a violation of the rule that acts between persons other than the defendant are not admissible in his trial.

Though the question assumed facts not in evidence, it was not answered and cannot serve as a basis for reversal. Davis v. State, 27 Ala.App. 551, 176 So. 379, cert. denied, 234 Ala. 625, 176 So. 382 (1937). Overruling an objection to an improper question or a question in improper form will not serve as a basis for reversal where the question was not answered. See numerous cases cited at 7 Alabama Digest, Criminal Law, *=»H7(M<8).

Though the question was in improper form, when the defendant brought out the fact that Hopps had been convicted, the state had the right to cross examine on this matter including inquiry into whether Hopps had been in the penitentiary and what he had been convicted for. Wilkerson v. State, 221 Ala. 453, 129 So. 722 (1930).

It should be noted that the record discloses no ruling on the appellant’s initial objection. An adverse ruling is a preliminary requirement to preservation of error and appellate review. Heard v. State, Ala.Cr.App., 335 So.2d 679 (1976); Scoggins v. State, Ala.Cr.App., 341 So.2d 967, cert. denied, Ala., 341 So.2d 972 (1976); 7 Alabama Digest, Criminal Law, <§=>1045. Absent an adverse ruling the issue of the objection is not properly before this court. There is no contention and the record does not reveal that the trial judge refused to rule on the objection.

The record does disclose that defense counsel, without securing a ruling on his objection, moved for a mistrial and did not press for a ruling on the objection. The trial court dismissed the jury and heard argument on the motion. The mistrial was properly denied because the question by the prosecution was eradicable. Carroll v. State, 45 Ala.App. 92, 225 So.2d 198 (1969). Only the question was in the record and a mistrial would have been too drastic a penalty in such a posture. Crouch v. State, 53 Ala.App. 261, 299 So.2d 305, cert. denied, 292 Ala. 718, 299 So.2d 312 (1974). There was no legal necessity for abandoning the trial. See Ethel Morgan Woods v. State, Ala.Cr.App., 5 Div. 393, Ms. January 24, 1978.

A motion for a mistrial does not include either a motion to strike out or exclude testimony as a lesser prayer for relief. Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501 (1967). Therefore, the appellant never secured a ruling on his objection and consequently failed to preserve any error for review.

B.

It is also maintained that error is present in the following excerpt from the record in the state’s cross examination of the appellant.

“Q. How long have you known Stewart Hopps?
“A. I have known him since, oh, about the mid 1950s.
“Q. Was this after he got out of the penitentiary?
“A. I didn’t know anything about him being in the penitentiary.
“Q. Have you ever had any prior dealings with Mr. Hopps?
“A. Prior dealings?
“Q. Yes. Have you ever worked with him on any other companies?
“A. Once or twiee.
“Q. Did you ever own stock in—
“MR. MARSAL: Excuse me just a second. I move to object — I do object and call on the State to prove any evidence about — legal evidence as to where Stewart Hopps is, and any connection with him in the penitentiary.”

Since at least 1896 the rule in Alabama has been that an objection to testimony must be addressed to the questions when propounded, and if not interposed until after an answer, which is responsive to the question, the objection is properly overruled. “A party cannot speculate on the answer of a witness, responsive to a question, and claim the benefit of it, if favorable, and discard it if prejudicial.” Downey v. State, 115 Ala. 108, 111, 22 So. 479, 480 (1896); 6A Alabama Digest, Criminal Law, <§=693.

The question itself was objectionable but no objection was made until after the answer. There was no adverse ruling by the trial court.

“The question itself was objectionable but no objection was made until after the answer. There was no adverse ruling by the court and no motion to strike or exclude. After a question is asked, and a responsive answer given, an objection comes too late, and the trial court will not be put in error absent a motion to exclude or strike an adverse ruling thereon. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735, cert. denied, 295 Ala. 414, 327 So.2d 740 (1975); Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954).”

Ausborn v. State, Ala.Cr.App., 346 So.2d 1191, 1193 (1977).

IV

Finally the appellant alleges that his conviction is due to be reversed because the grand jury which indicted him and the petit jury which convicted him were selected in an unconstitutional manner due to the exclusion of black persons from the jury rolls of Mobile County.

Since this objection is first raised in brief on appeal the appellant is precluded from asserting this objection before this court. This identical issue was decided adversely to the appellant in Manson, supra, at 349 So.2d 86.

We have carefully reviewed the entire record and diligently searched for error prejudicial to the accused. It is our finding that the appellant received a fair trial and the judgment of the trial court is due to be affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOOKOUT, J., recuses himself as he was a member of the State Securities Commission which initiated the investigation of the instant charges.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Ex parte Garet VAN ANTWERP.
    77-461.
    Supreme Court of Alabama.
    May 26, 1978.
   JONES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


text:
    Jimmy ARD v. STATE.
    4 Div. 600.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    Rehearing Denied April 4, 1978.
    Randy C. Brackin, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Houston County returned an indictment against the appellant, Jimmy Ard, charging that he did sell, furnish, or give away marijuana, a controlled substance. The appellant entered a plea of not guilty. A jury found appellant guilty as charged. The trial court duly sentenced the appellant to 4 years in the penitentiary, and he appeals to this Court.

This appeal was submitted on briefs. The appellant was represented by counsel of his choice at all proceedings in the trial court, and is so represented in this Court.

Appellant states in his brief three reasons why his conviction should be reversed; first, the trial court’s action in denying appellant’s motion to exclude state’s evidence; second, in refusing to give the general affirmative charge for the appellant; third, in refusing to charge the jury as to the offense of an attempt to commit the crime charged.

State’s evidence tended to prove that on July 14,1977 at about 6:15 o’clock, P.M. the appellant went to the county jail and delivered through the bars of a back door of the county jail four packages of cigarettes wrapped together with tape to an inmate with a request that he give the package to another inmate who had been a cell mate of appellant’s for a short period of time immediately before July 14, 1977; that the prisoner who received the packages delivered them to the jail warden; that the packages had concealed in them 2.58 grams of marijuana, a controlled substance; that the former cell mate of the appellant did not receive the packages.

At the conclusion of state’s evidence the appellant made a motion to exclude all of state’s evidence because it did not make out a prima facie case; that the state did not prove a completed transaction. Appellant’s motion was overruled.

The appellant’s evidence tended to prove that he was released from the county jail at about five o’clock, P.M. on July 14, 1977; that he went from the jail to Snook’s Pool Room; collected some money owed to appellant, and as he was leaving the pool room a stranger asked him if appellant knew appellant’s former cell mate, and asked appellant to deliver four packages of cigarettes to his former cell mate, which appellant agreed to do; that appellant did not know and had no knowledge that the packages of cigarettes had concealed in them marijuana; that appellant took the cigarettes to the back door of the county jail and handed them through the bars of the door to an inmate and requested him to deliver the cigarettes to appellant’s former cell mate; that appellant has not been able to locate the man who handed him the cigarettes or anyone who knew him.

The appellant requested in writing the general affirmative charge which was refused. The appellant requested written charges on the law of an attempt to violate the Alabama Uniform Controlled Substances Act, which were refused.

The indictment in this case charges that the appellant, “did sell, furnish, or give away marijuana, a controlled substance.” The undisputed evidence in this record both by state witnesses and by the appellant is that appellant passed four packages of cigarettes through the bars of a back door of the jail to an inmate requesting that they be delivered to his former cell mate. The state’s evidence further furnished proof that the packages of cigarettes contained marijuana, a controlled substance. This left the question of intent for the jury to decide. We hold that the evidence in the record fully sustains the jury’s verdict, therefore the court did not err in overruling appellant’s motion to exclude state’s evidence. Code of Alabama, 1975, Title 20-2-70(a) and 20-2-23(3) j.

Appellant argues that the indictment in this case includes the offense of an attempt to sell, furnish, or give away marijuana, therefore the trial court erred in refusing to charge the jury at appellant’s written request on the offense of an attempt to sell, furnish, or give away marijuana. In an indictment for violating the Alabama Uniform Controlled Substances Act it is not necessary to state the name of the donee or vendee of the drug. It is not necessary in this case that proof be made by the state as to whom the drug was given. The state must prove that the drug was unlawfully and intentionally given to a person. Adkins v. State, 291 Ala. 695, 287 So.2d 451; Jenkins v. State, 51 Ala.App. 521, 287 So.2d 233.

An attempt to commit a crime consists of three elements: First, the intent to commit the crime; second, the performance of some overt act towards the committing of the crime; and, third, the failure to consummate the crime. Miles v. State, 58 Ala. 390; Cochran v. State, 42 Ala.App. 144, 155 So.2d 530; Miller v. State, 37 Ala.App. 470, 70 So.2d 811; Tharpe v. State, 23 Ala.App. 193, 122 So. 698; Code of Alabama, 1975, Title 13-9-3.

We do not agree with the appellant that the trial court erred in refusing to charge the jury on the offense of an attempt to violate the Alabama Uniform Controlled Substances Act. It is true that the offense of an attempt to violate the Alabama Uniform Controlled Substances Act is included in the indictment, but under the law there are two requirements to sustain a conviction of a person for a violation of our criminal laws; one, the pleadings must charge a violation; and second, the evidence must prove a violation. Under the facts in this record and all reasonable inferences to be drawn from them, the appellant could not have been found guilty of an attempt to violate the Alabama Uniform Controlled Substances Act. There is no evidence from which an inference can be drawn that the appellant attempted to give away the marijuana, but failed. Miles v. State, supra; Cochran v. State, supra; Miller v. State, supra; Tharpe v. State, supra; Code of Alabama 1975, T. 13-9-3.

We hold that under the pleadings, and proof in this record, the trial court did not err in refusing to charge the jury on the law of an attempt to violate the Alabama Uniform Controlled Substances Act.

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

The judgment of the trial court should be affirmed.

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Jimmy ARD.
    77-471.
    Supreme Court of Alabama.
    May 26, 1978.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


text:
    Ex parte Willie BOLDEN.
    6 Div. 774.
    Court of Criminal Appeals of Alabama.
    March 22, 1978.
    Rehearing Denied March 22, 1978.
    All the Judges concur.
   Judgment affirmed, Ala., 358 So.2d 795.


author: TORBERT, Chief Justice.

text:
    In re Ex parte Willie BOLDEN. Ex parte Willie Bolden.
    77-418.
    Supreme Court of Alabama.
    May 5, 1978.
    Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for petitioner.
    William J. Baxley, Atty. Gen., and Rosa Gunter Hamlett, Asst. Atty. Gen., for the State.
   TORBERT, Chief Justice.

Willie Bolden, the petitioner, was arrested on October 18, 1977 for the offense of first degree burglary, which he had allegedly committed earlier that morning. The Tuscaloosa County Grand Jury indicted Bol-den on November 4, 1977, and he was arraigned on November 9. At the time of the alleged offense, and at his indictment and arraignment, Bolden was seventeen years of age.

Beginning January 1,1978 the age below which individuals are entitled to treatment as juveniles was raised from seventeen to eighteen. Section 12-15-l(3)(b), Code of Alabama 1975. Since Bolden was still seventeen, he filed a motion to transfer the proceedings to juvenile court on February 16,1978. The trial judge denied the motion on March 3, and Bolden petitioned the Court of Criminal Appeals for a writ of mandamus, which was denied on March 22. This Court granted Bolden’s petition for writ of certiorari on April 4, 1978.

The issue presented in this case is one of first impression: Is an individual entitled to treatment as a juvenile when he fits the definition of a “child” at the time of his trial, though he did not fit the definition of a “child” at the time of his alleged offense? After a thorough review of the Alabama statutes governing juvenile proceedings, we must answer this question in the negative, and we affirm the decision of the Court of Criminal Appeals.

The Judicial Article Implementation Act, Act No. 1205, Regular Session 1975, repealed the prior law governing juvenile proceedings and replaced it with a new article governing such proceedings. Under the prior law the juvenile court had original and exclusive jurisdiction over a “delinquent child,” which was defined as a child who commits a criminal offense while under the age of sixteen. Title 13, sections 350(3), 351, Code of Alabama 1940 (Recomp. 1958). However, only those individuals who were under sixteen when brought before the circuit court on criminal charges were required to be transferred to the juvenile court. Id. § 363. Thus, under these prior statutes the determination of the defendant’s age for purposes of juvenile court jurisdiction was made at the time of trial. Davis v. State, 259 Ala. 212, 66 So.2d 714 (1953); Mayton v. State, 52 Ala.App. 626, 296 So.2d 249 (1974).

The new chapter on juvenile proceedings changed these provisions in two ways. First, the jurisdictional age was increased from sixteen to seventeen when the chapter became effective, and after December 31, 1977 it was further increased to eighteen:

“(3) CHILD.
“a. Such term, before January 1,1978, means an individual under the age of 17 or under 19 years of age who committed the act of delinquency with which he is charged before reaching the age of 17 years.
“b. Such term, after December 31, 1977, means an individual under the age of 18 or under 19 years of age and who committed the act of delinquency with which he is charged before reaching the age of 18 years.”

Section 12-15-1, Code of Alabama 1975 (emphasis added). Second, the above-quoted definition of “child” and the transfer statute quoted below require the defendant’s age for purposes of juvenile court jurisdiction to be determined at the time of the alleged crime:

“If it shall be ascertained during the pendency of a criminal or quasi-criminal charge that a defendant was a child, as defined in this chapter, at the time of the alleged offense, that court, which shall have the duty to ascertain such age, shall forthwith transfer the case, together with all the papers, documents and transcripts of any testimony connected therewith, to the juvenile court. ... All action taken by the court prior to transfer of the case shall be deemed null and void unless the juvenile court transfers under section 12-15-34.”

fd. § 12-15-33(a) (emphasis added). Thus, these provisions clearly require an individual’s status as a “child” to be determined at the time of the alleged offense under the definition of “child” then in effect.

However, petitioner argues that after December 31, 1977, when the maximum age for juvenile jurisdiction was raised to eighteen, the juvenile court had “exclusive original jurisdiction” over petitioner’s proceedings under section 12-15-30(a)(1), Code of Alabama 1975. Therefore, petitioner would have the trial judge, under the transfer provision in section 12-15-33(a), apply the current definition of “child” — not the definition in effect when the alleged offense occurred — to determine whether the petitioner was entitled to treatment as a juvenile.

An adoption of the petitioner’s construction of these provisions would result in the automatic transfer of cases from the trial courts to the juvenile courts after December 31, 1977 — a result not provided for nor intended by the Legislature. At a time when judicial economy is an important legislative goal, we do not believe the Legislature intended that the indictment and arraignment of a minor, over whom the trial court had proper jurisdiction, should become null and void under section 12-15-33(a) due to the transition in age limits on January 1, 1978.

The circuit court retains jurisdiction over the petitioner in this case because, at the time of the alleged offense, the petitioner did not fit within the definition of “child” then in effect. Any other construction placed upon these provisions would create chaos in our criminal justice system. The decision of the Court of Criminal Appeals is hereby affirmed.

AFFIRMED.

BLOODWORTH, MADDOX,. FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

      . Bolden will become eighteen on June 6, 1978.

      . Title 12, chapter 15, Code of Alabama 1975. These provisions will be referred to hereinafter as the chapter on juvenile proceedings.

      . This legislative judgment brings Alabama in line with the majority of American jurisdictions. See S. Davis, Rights of Juveniles: The Juvenile Justice System § 2.03, at 13 (1974).

      . Petitioner cites as authority in support of his argument the case of Brown v. State, 353 So.2d 1384 (Ala.1977). In Brown the trial court transferred a defendant to juvenile court after the new chapter on juvenile proceedings became effective (age limit increased to seventeen). However, the court in Brown did not discuss the propriety of this transfer; the case dealt with the correctness of the juvenile court’s transfer of the defendant back to the trial court.

      .For example, if the petitioner’s contentions were upheld, what would be the status of those statements taken voluntarily from the minor without counsel prior to the transition date of January 1, 1978? Would the § 12-15-67, Code of Alabama 1975, prohibition relate back to these prior statements, or would an anomaly be created, wherein the minor was entitled to juvenile treatment but was not entitled to the full protection guaranteed a juvenile under Alabama law? The only way to avoid inconsistencies in the interpretation of the chapter on juvenile proceedings is to determine its applicability by the defendant’s age at the time of the alleged offense according to the definition in effect at that time. Once resolved, this jurisdictional question should not be re-examined absent a clear mandate from the Legislature.


text:
    Perry KYLES v. STATE.
    4 Div. 589.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    Rehearing Denied April 18, 1978.

      Boyd Whigham, Clayton, for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for buying, receiving, and concealing stolen property. Title 14, Section 338, Code of Alabama 1940. Sentence was fixed by the trial court at four years’ imprisonment.

The facts incriminating the appellant reveal that on May 2, 1977, the residence of Mr. Horace J. Parmer of Barbour County was burglarized. Among the firearms taken was a Remington Woodmaster 30-06 rifle, Model 742, Serial Number 6916723. Mr. Parmer’s name had been engraved into the stock of this rifle. Mr. Parmer testified that the value of the rifle was $295.00.

Jack Sanders lived across the road from Mr. Parmer. He testified that on May 2nd, the appellant drove up in his yard about 10:00 or 10:30 A.M. and sought directions to Lonnie Wilson’s house.

John Smith, Jr. stated that the appellant came to his house at approximately 8:30 on the evening of May 2nd and the appellant sold him a Remington 30-06 rifle, Model 742, for $50.00. The appellant assured Mr. Smith that the rifle was not stolen and stated that his brother in New York had given it to him. The appellant signed a bill of sale which described the firearm as “a Remington Model 742 Woodmaster 30-06 Rifle. Serial No. 6916723”. The rifle stock was “real scarred up and scratched and beat up”.

Approximately one hour after the sale, the appellant returned to Mr. Smith’s house and requested his rifle back. The appellant told Mr. Smith that the weapon had been pawned to him for $100.00 and the loan had been repaid so he had to return the rifle.

Mr. Smith’s father, John E. Smith, Sr., prepared the bill of sale and saw the appellant sign it. Under the evidence it is clear that both Mr. Smith and his father suspected that the rifle was stolen at the time of purchase.

I

The appellant maintains that there is insufficient evidence to support his conviction because he was convicted on the uncorroborated testimony of accomplices.

While it is true that the only incriminating evidence adduced against the appellant was the testimony of the Smiths, they were not accomplices. The purchase of the rifle by Mr. Smith was separate and distinct from the appellant’s reception of the weapon which was chronologically anterior to Smith’s purchase; thus a joint indictment is precluded and the Smiths are prevented from being accomplices for the purpose of the corroboration statute., This case is controlled by Patterson v. State, 45 Ala.App. 229, 228 So.2d 843 (1969). See also Mount v. State, 47 Ala.App. 158, 251 So.2d 776 (1971).

II

Since the Smiths are not accomplices as a matter of law, the written charges requested by the appellant defining accomplice and dealing with the insufficiency of the evidence where the testimony of accomplices is uncorroborated were not within the issues and not supported by the evidence. They were therefore properly refused. Enzor v. State, 24 Ala.App. 346, 135 So.2d 595, cert. denied, 223 Ala. 297, 135 So. 598 (1931); see cases at 6A Alabama Digest, Criminal Law, <®=»814(17).

Ill

The appellant attacks the constitutionality of Title 14, Section 338, Code of Alabama 1940, as a violation of Section 6, Constitution of Alabama 1901, on the ground that it makes the crime of buying, receiving, and concealing stolen property both a felony and a misdemeanor, depending on the value of the property.

A statute making an offense both a felony and a misdemeanor is unconstitutional, State v. Hall, 24 Ala.App. 336, 134 So. 898 (1931). Title 14, Section 338, Code, provides that the punishment for receiving stolen property shall be the same as for larceny. Milam v. State, 240 Ala. 314, 198 So. 863 (1941). The offenses of larceny and receiving stolen property are, by statute, punished alike. Milam, supra. Under the Alabama statute for receiving stolen property, the offense is punishable as a felony or misdemeanor according to the value of the property. However the statute is not void and unconstitutional on the ground that the penalties provided are uncertain and undeterminable. A mere reading of the statute in question and the law of larceny specifically referred to in the statute disposes of this insistence of unconstitutionality. The crime and the punishment may be separated and distinguished by the legislature; one statute may create an offense, and another provide for its punishment. State v. Burchifield, 218 Ala. 8, 117 So. 483 (1928).

Receiving stolen property may be either a felony or a misdemeanor; it is not both. Specific statutory guidelines clearly define and prescribe when the offense is a misdemeanor and when a felony. There is no doubt as to the punishment which may be imposed for a described offense. Booker v. State, 151 Ala. 97, 44 So. 56 (1907); Middleton v. State, 27 Ala.App. 564, 176 So. 613 (1937); Glover v. State, 23 Ala.App. 81, 121 So. 2 (1929); Padgett v. State, 44 Ala.App. 548, 216 So.2d 187 (1968). For an example of uncertainty in a similar statute which would render the act void and unconstitutional see Johnston v. State, 100 Ala. 32, 14 So. 629 (1893).

We find that the statutory definition of the offense of buying, receiving, and concealing stolen property in Title 14, Section 338, Code of Alabama 1940, now Section 13-3-55, Code of Alabama 1975, is sufficiently definite and certain to inform the accused of the nature and cause of the accusation and is therefore constitutional.

We have reviewed the record in its entirety and found no error prejudicial to the rights of the accused. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex parte Perry KYLES.
    77-493.
    Supreme Court of Alabama.
    May 26, 1978.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Claudia Mae WALKER v. STATE.
    6 Div. 514.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.

      Slade G. Watson and Jack Clarke, of Henley & Clarke, Northport, for appellant.
    William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Prior to the submission of the appeal in instant case, an appeal by the same appellant in another case (Walker v. State, 6 Div. 168) had been submitted. The results in No. 168 have been an affirmance, January 4,1977; a reversal by the Supreme Court of Alabama on September 23, 1977, and an affirmance after remandment on December 6, 1977.

In No. 168 defendant was charged with possession of heroin, found guilty, and assessed a fine of fifteen hundred dollars to which the court added imprisonment for ten years and one day as additional punishment.

In the case now under review, defendant was convicted under Count Two of an indictment which charged that she

“. . . with intent to injure or defraud, did obtain or attempt to obtain a controlled substance, to-wit: Preludin, which substance contains Phenmetrazine, by fraud, deceit, misrepresentation or subterfuge, or by the use of a false name . . ."

A jury fixed her punishment at a fine of five thousand dollars to which the court added seven years imprisonment in the penitentiary.

Tammie Davis, an employee of Big B Drug Store in Northport, Tuscaloosa County, Alabama, testified that while she was helping the pharmacist on October 4, 1976, defendant gave her a prescription for “Pre-ludin-75 mg.” purportedly signed by Dr. Joe P. Smith, a physician in Eutaw, Alabama. After the prescription was filled, she gave the drug to defendant; she had seen defendant approximately three times previously.

Ron Nunnally, a pharmacist and supervisor at Big B Drug Store, testified that he was familiar with the signature of Dr. Smith, and on October 7, 1976, while filling prescriptions for the week, he noticed that the signature of Dr. Smith was not the one he had seen when working in Eutaw. He notified Larry Massey of the West Alabama Narcotics Squad and gave the particular prescription to Mr. Massey. Mr. Nunnally also testified that Preludin is a Schedule II drug.

Dr. Joe P. Smith testified that he had seen defendant one time in his office in September of 1976 where she sought a prescription. At that time defendant was seated in a room near a desk on which there was a prescription pad. He did not give defendant a prescription; he said the prescription made the basis of Count Two was written on one of his prescription pad forms but was not written or signed by him.

Mr. Tom Roberts, previously employed at Big B Drug Store in Northport, testified that he filled the particular prescription.

Larry Massey, an employee of the Tuscaloosa County Sheriff’s Department assigned to the West Alabama Narcotics Squad, testified that he received a phone call from Big B Drug Store in Northport, Alabama, responded to the call, sent the prescription to the Alabama Bureau of Investigation Department, the I.D. Department, and requested that it be checked for fingerprints.

Edgar Ronald Smith, an employee of the Alabama Bureau of Investigation, testified that he is a latent fingerprint examiner; that he had had considerable experience in fingerprinting. He testified that three latent prints of value were found on the prescription that was otherwise identified as the prescription made the basis of Count Two of the indictment. He said that one latent print on the back side of the prescription was made by the same finger which made the ink impression in the right thumb block of a fingerprint card of Claudia Mae Walker. He further said he had charted twelve points of comparison and had found seventeen more between the latent prints lifted from the prescription and those on the “fingerprint card” of defendant hereinafter discussed.

Defendant denied any and all connection with the prescription purportedly signed by Dr. Smith and filled by Big B Drug Store, according to the testimony of the State. She said that her physician was Dr. William F. Hawkins, a physician in Tuscaloosa County, who had been treating her several years for a weight problem. He had prescribed Preludin-75 monthly to be taken by her daily. He gave her a prescription for a one month supply on October 1, 1976. She took the prescription to the Big B Drug Store in Northport and handed it to Tammie Davis, but Tammie told her that they “did not have any of them.” Defendant said she then left and went to Harco Drug — where the prescription was filled.

Dr. William F. Hawkins corroborated the testimony of defendant in testifying that he had treated her for several years for a weight problem; he had prescribed Prelu-din-75 by prescribing a month’s supply each month. His last prescription for her was October 1, 1976.

We cannot bridge or close the rift between the material testimony of the State and that of defendant. The conflict poses a problem that a jury alone has the legal function to decide. Neither party contends otherwise.

At the outset we are met with a disagreement between the parties as to what has been held thus far in the other case, 6 Div. 168. The importance of the problem is accentuated by the fact that in instant case the “fingerprint card” of defendant, which was used for comparison purposes with the latent fingerprints allegedly lifted from the prescription, was made in October 1975 at the time defendant was arrested for the possession of heroin in 6 Div. 168. During the trial of the case now under review, defendant objected to the use of such “fingerprint card” on the ground that there was no probable cause for her arrest at the time and, in the absence of probable cause for her arrest, the use of a “fingerprint card” processed at the time would constitute a violation of the Fourth Amendment to the Constitution of the United States as enlarged to include prosecutions in state courts by the Fourteenth Amendment to the Constitution of the United States.

We agree with appellee that it has been definitely decided in 6 Div. 168 that there was probable cause for believing that defendant was in possession of heroin at the time, and no warrant was necessary to effectuate a valid and constitutional search of the box that was in her possession and which contained the particular contraband.

Appellant urges that the trial court should have recused himself as the trial judge in the case.

The indictment in this case was returned on November 12, 1976; she was arraigned and pleaded not guilty on December 29, 1976; her case was set for trial on April 12, 1977. On that day defendant filed a MOTION FOR TRIAL JUDGE TO RECUSE HIMSELF. At the time the motion was filed, defendant’s counsel invited the court’s attention to the fact that he had written a letter to the court dated March 24, 1977, as to which he commented, inter alia, “In that letter my client has requested me, that it is her felling (sic) that she would not get a fair and impartial trial as you are the Judge in this case. Since you did prosecute her over a year ago, and I ask you on behalf of my client, she remembers you in that case. And since you did prosecute her in that case, she feels that she could not get a fair and impartial trial, that was in the letter which was sent to you a good while ago, which you are the subject. And I make this request to you on the behalf of my defendant in this case in which she is charged with forgery of prescription to contain a controlled substance by fraud, and also which she is charged with the obtaining of a controlled substance by fraud.” Out of the presence and hearing of the jury, the court proceeded to hear defendant on the subject, including the testimony of defendant and her attorney.

We search the record with difficulty in an effort to find any specific charge of disqualification of the trial judge. The closest thereto is to be found in the following:

“3. That your Honor, Judge Claude Harris, before becoming a Circuit Judge, was an Assistant District Attorney of Tuscaloosa County, Alabama; that while an Assistant District Attorney, Judge Harris prosecuted your Movant in a case charging possession of heroin, and secured a conviction which is now on appeal and pending in the Supreme Court of Alabama; that in said case, due to the insis-tance of Judge Harris, Movant was given ten (10) years and One (1) day by the then presiding judge, which prevented her from being considered for probation, even though this was her first offense of this nature.
“4. That during the trial of said prior cause, Judge Harris adopted a strong adversary stance and prosecuted your Mov-ant very vigorously.
“Further, Judge Harris made statements about Movant’s father and friends participating in narcotics traffic in this county, which Movant alleges demonstrates prejudice and bias against her by Judge Harris that is so deep and uncompromising that it would be improper for him to impartially preside as Trial Judge in the case pending before him.”

At times during the hearing on the motion to recuse, the inquiry was raised as to whether Judge Harris had participated in any way in the prosecution of the case now under review, but the evidence was conclusive that he did not. Judge Harris had left the office of District Attorney on January 31, 1976, approximately eight months before the incident giving rise to the case now before us. Although there were oblique references to “prejudice and bias against her by Judge Harris,” there is no evidence whatever to support any such claim. In as favorable a light to appellant as possible the hearing disclosed merely that Judge Harris, while Assistant District Attorney, prosecuted appellant for another drug related charge, that he did so vigorously, as he should have done, and that his efforts were successful, which certainly is not to his discredit.

The Canons of Judicial Ethics adopted February 1, 1976, by the Supreme Court of Alabama provide in pertinent part:

“CANON 3C DISQUALIFICATION:
“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings;
“(b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer had been a material witness concerning it.”

Code of Alabama 1975, § 12-1-12 provides:

“No judge of any court shall sit in any case or proceeding in which he is interested or related to any party within the fourth degree of consanguinity or affinity or in which he has been of counsel or in which is called in question the validity of any judgment or judicial proceeding in which he was of counsel or the validity or construction of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties entered of record or put in writing if the court is not of record.”

Statutory grounds or rules of court are not exclusive of the common law principles that disqualify a judge. Morgan County Comm’n v. Powell, 292 Ala. 300, 293 So.2d 830 (1974). Even so, there must be factual disqualification, as distinguished from the notions of a particular litigant, that he would fare better before another judge.

Appellant argues that during the trial of this case there was “called in question the validity of any judgment or judicial proceeding in which [Judge Harris] was of counsel,” which is a stated ground of disqualification in Code of Alabama 1975, § 12-1-12. The reference is to a certificate of judgment of conviction in Walker v. State, 6 Div. 168, the case in which defendant was convicted of possessing heroin. It is correct that defendant objected to the introduction in evidence of such certificate of judgment, but defendant did not question the validity of the judgment. The grounds of objection were of an entirely different nature which will be referred to in our discussion of another point made by appellant. Peaden v. State, 284 Ala. 341, 224 So.2d 889 (1969), cited by appellant, is inapposite. In Peaden, there was a direct attack on the judgment brought by a petition for writ of error coram nobis. The judgment thus attacked was in a case in which the then defendant was represented by the judge who was held disqualified to try the coram nobis petition. The quoted provision of the statute is without application to a judgment unless the “validity” thereof “is called in question.”

The only other case cited by appellant in which it was held that the trial judge should have recused himself is Ex parte White, 53 Ala.App. 377, 300 So.2d 420, cert. denied 293 Ala. 778, 300 So.2d 439 (1974). The facts in White are antipodal to those here. Wholly lacking in this case is the kind of bias or prejudice that furnished the basis for the disqualification of the trial judge in White:

“The bias or prejudice which will disqualify must be ‘personal’ as distinguished from ‘judicial’ bias. ‘Personal,’ as contrasted with ‘judicial,’ characterizes an attitude of extra-judicial origin, derived non coram judice. Craven v. United States, 1 Cir., 22 F.2d 605.” Ex parte White, 300 So.2d 420, 430.

During the cross-examination of defendant, she was asked whether the handwriting on the prescription calling for the prelu-din was hers, and she replied that it was not. She was then asked if it was the handwriting of Jimmy Lavender, and she replied that it was not. The evidence had developed that Jimmy Lavender is the father of two of appellant’s children. During further cross-examination of defendant the following occurred:

“Q Ms. Walker, I believe you testified that you didn’t know anything about this drug Preludin, except what the doctor told you about.
“A Right.
“Q You are not familiar with drugs, then?
“A No.
“Q You don’t know anything about them?
“A I have never been charged with drugs.
“Q You have never been charged with drugs?
“A I have never been charged with drugs—
“Q Isn’t it a fact, Ms. Walker, that after—
“MR. NICHOLS: Judge, may we — may we at least get this settled down before we go forward with this?
“(At this time a short conference was held at the judge’s bench where the proceedings were as follows between the attorneys and the court.)
“MR. NICHOLS: I know what he’s going at, are you going to let it come in?
“MR. ROYER: Well, Judge, we have got ■to go into it.
“MR. NICHOLS: No, he doesn’t.
“THE COURT: I think he does, I am sorry, but it’s your witness’ cross-examination.
“MR. NICHOLS: You, are you going to let the judgment go in?
“THE COURT: That’s right.
“MR. ROYER: She’s testified that she doesn’t know anything about drugs, that she’s never been charged with drugs.
“MR. NICHOLS: We object to it, you know you are going to be reversed on that, you know that.
“THE COURT: Overruled.
“Q You say you have never been charged with drugs, any drug offenses, you have just testified to that?
“A Yes.
“MR. NICHOLS: She didn’t say that, drugs, that could be anything.
“Q Is it not a fact, Mrs. Walker, that you have been convicted in this Circuit Court of Tuscaloosa County of the offense of possession of heroin?
“MR. NICHOLS: All right, now, Your Honor has already overruled my objection I made up at the bench. I told you that is what he was going to ask, I take the position that it is highly prejudicial, and illegal.
“THE COURT: All right, sir, overruled.
“MR. NICHOLS: You have overruled me, and I move for a mistrial.
“THE COURT: All right, I overrule the motion for a mistrial.
“MR. NICHOLS: We except.
“THE COURT: All right, sir.
“(At this time a document was marked for identification as State’s Exhibit 4)
“MR. ROYER: At this time, Your Honor, we would move to introduce this exhibit in the evidence, a copy of the judgment entry, in the case of the State of Alabama v. Claudie Mae Walker, showing the conviction for the possession of heroin, in the Circuit Court of Tuscaloosa County on the 19th of January, 1976.
“MR. NICHOLS: I object to it, Your Honor.
“THE COURT: All right, it will be admitted.”

Appellant strongly insists that the trial court was in error in permitting the introduction of the judgment.

Seemingly there is no disagreement between parties as to the general rule that the commission of other crimes by defendant is not admissible against him subject to a number of exceptions. Appellee relies upon Vincent v. State, 231 Ala. 657, 165 So. 844, cert. denied 298 U.S. 682, 56 S.Ct. 960, 80 L.Ed. 1402 (1936) and Calhoun v. State, Ala.Cr.App., 346 So.2d 39 (1977). In Vincent, it was held that the State was justified in showing that one of the defendants had previously been convicted of robbery to refute a statement by defendant that “I have never taken part in any holdup or robbery before.” In Calhoun, defendant had stated that he had never been in trouble with the law before, and the State was allowed to refute such statement by showing a prior conviction for robbery. Appellant argues that in each of the cases the statement made by defendant was during “direct” examination and that a different result should be reached where the statement of defendant sought to be refuted by the State was brought out on cross-examination of defendant. Neither party cites any authority definitely holding that the sole criterion is whether the evidence was brought out on direct examination by defendant on the one hand or on cross-examination by the State on the other.

“. . . The State cannot make its own setting for the justification of illegal evidence, so as to permit the contradiction of what it brought out, though on cross-examination of witnesses for defendant.” Dickinson v. State, 228 Ala. 28, 29, 152 So. 29, 30 (1934)

We think the parties have unduly limited the scope of the particular inquiry. There is more involved than the question, “Who opened the door?”

That there is only a small area for admitting evidence of other crimes has been repeatedly refuted.

“Of course the general rule is that other offenses unconnected with the crime charged are incompetent and irrelevant. But there are many exceptions to this general rule. 22 Corpus Juris Secundum 1089, Criminal Law, § 683; Glover v. State, 21 Ala.App. 423, 109 So. 125; Dennison v. State, 17 Ala.App. 674, 88 So. 211; Mitchell v. State, 140 Ala. 118, 37 So. 76, 103 Am.St.Rep. 17; Jackson v. State, 229 Ala. 48, 155 So. 581.
“Evidence which is relevant to establish some element of the offense, or material as to some issue in the case, is not rendered inadmissible by the fact that it also tends to show another offense committed by defendant. 22 Corpus Juris Secundum 1116, Criminal Law, § 691, note 31; 20 Amer.Jur. 290, section 311; Wilkins v. State, 29 Ala.App. 349, 197 So. 75, certiorari denied 240 Ala. 52, 197 So. 81. This includes the right to introduce evidence to controvert a material aspect of defendant’s evidence. .
“It is pointed out in Wilkins v. State, supra, that as stated in Wharton’s Criminal Evidence, an exception to the rule of exclusion is where the state’s evidence is (8) relevant to rebut special defenses. “In all instances, the question is whether the proposed evidence is primarily to prove the commission of another disconnected crime, or whether it is material to some issue in the case. If it is material and logically relevant to an issue in the case, whether to prove an element of the crime, or to controvert a material contention of defendant, it is not inadmissible because in making the proof the commission of an independent disconnected crime is an inseparable feature of it.” Snead v. State, 243 Ala. 23, 24, 8 So.2d 269, 270 (1942)

The comprehensiveness of the area of admissibility is further emphasized as follows:

“This rule, however, is subject to some well recognized exceptions. Evidence of other distinct criminal acts is admissible when relevant to the crime charged, as bearing on scienter, intent, motive, res gestae, or to establish the identity of the accused (and perhaps as bearing on the issue of insanity when that defense is pleaded in the ease. — See ‘The Law of Evidence in Alabama’ by Honorable J. Russell McElroy, § 61, pp. 19-20; I Wharton’s ‘Criminal Evidence,’ 10th Ed., p. 156, § 41.) The authorities also recognize such an exception to show system or plan usually to identify the accused or to show intent. Wharton’s, supra, p. 146, § 39. But even under the exceptions noted they or one of them is admissible only when the evidence is relevant to the crime charged. Noble v. State, 253 Ala. 519, 45 So.2d 857.” Garner v. State, 269 Ala. 531, 114 So.2d 385 (1959)

The nature of the charge, that is, the nature and the ramifications of the issues between the parties, must of necessity have tremendous bearing upon the question whether evidence of other crimes is admissible. It is to be noted that in this case counsel for each of the parties was a skillful participant on behalf of his client.

According to that which has been definitely determined in Walker v. State, 6 Div. 168, scienter is an essential element of the crime charged. Although the indictment charged an attempt to obtain or obtaining a controlled substance by fraud, there could have been no guilt on the part of defendant if she did not have scienter, guilty knowledge, of the substance she is alleged to have obtained or attempted to obtain. That scienter was necessary was obviously known to defendant’s counsel, as shown by his direct examination of her as a witness. Among the first questions asked her were some as to her age and her schooling. She was twenty-seven years of age and had gone through the seventh grade. He asked for her weight and she replied that she weighed 220 pounds and was five feet three inches tall, that she had been trying to control her weight and had been seeing Dr. Hawkins concerning her weight. He asked her about Dr. Hawkins’ previous treatment of her as a physician, and she replied that he had delivered her two children and was her family doctor and had “done surgery on me, and tied my tubes, and that is when he told me that I was fat, that I needed to lose weight.” She said this was in May of 1976. The following is part of the direct examination:

“Q Claudia Mae, do you remember going to see Dr. Hawkins on October 1, 1976?
“A Yes, sir.
“Q What occurred when you went to see him, were you examined by him, see him in his office?
“A Yes, sir.
“Q Did he give you a prescription for— “A Yes, he did.
“Q For a drug that you had been taking. Do you know what you had been taking, Claudia Mae, did you know what Dr. Hawkins had given you, your medication, for your diet, for your weight?
“A He explained it to me. No, I didn’t.
“Q You did not know what he was giving you, but he explained it to you.
“A Explained it to me, how to take it, he told me ‘Don’t go too fast with it, don’t lose weight too fast, ’cause it makes you sick.
“Q He just prescribed some medicine, as doctors often do, to a million other people, whatever you go see him for.
“A Right. Yes, sir.
“Q What did you do with that prescription that he gave you on October 1, Claudia Mae?
“A About 12:00 I went to—
“Q 12:00 in—
“A In the evening.
“Q Is this right, 12:00 Noon?
“A Yes, sir. I went—
“Q That afternoon.
“A I was going home, I went to Big B Drug and handed it to the lady, that testified that she seen me, give her this scrip over—
“Q When you say, ‘scrip,’ you are not, that’s when we discuss it that’s your way of saying prescription, is that right?
“A Yes, sir.
“Q All right, now go ahead and tell the jury what you remember on Friday of October 1, 1976.
“A I give her the prescription, and she told me that they did not have any of them, I told her thank you, I left, I went to Harco Drug, and they filled it.
“Q Harco Drug filled this prescription, that Dr. Hawkins gave you?
“A Yes, sir.
“Q All right. You, and this was on Friday, October 1?
“A Yes, sir.
“Q Did you know it was for preludin?
“A Yes, that is what he told me it was.
“Q Who told you?
“A Dr. Hawkins.
“Q And you got it filled at Harco?
“A Yes, sir.
“Q Is that the one over in south — what is it Northgate?
“A Northgate.
“Q Northgate over in Northport?
“A Right.
“Q Where do you generally get those prescriptions of Dr. Hawkins filled?
“A I usually stop at Harco or Big B.
“Q Or Big B?
“A Uh huh. (Yes.)
“Q You use them both.
“A Yes,- sir.
“Q On October 4, 1976, did you get any preludin, controlled substance, phenme-trazine, or anything of that type from Big B Drug?
“A No, sir. I did not.
“Q Thank you.
“MR. NICHOLS: That’s all.”

Appellant’s counsel had the right to portray defendant in the most favorable light honestly possible, which he was obviously attempting to do. A jury could have believed from her testimony that she was a victim of inexplicable circumstances as to the prescription; that she had been taking a controlled substance, without the benefit of a prescription, but that she honestly did not know that it was anything more than a diet pill that the doctor had prescribed by name. Counsel was obviously attempting, as he had the right to do, to show that defendant was so naive as to be unaware of the fact that she was procuring or attempting to procure a controlled substance. On the other hand, the State had the right to show, if it could, that she was not a pawn in the hands of another, that she was familiar with drugs, legally controlled substances, particularly a well-known controlled substance, such as heroin.

In Coshatt v. State, 37 Ala.App. 422, 69 So.2d 877 (1954) defendant was convicted of illegal possession of narcotic drugs. The evidence for the State tended to show that a detective went to a store and was introduced by the operator to appellant. The appellant then told the detective he had the “stuff” with him and produced a cardboard box containing a rather large number of bottles. After examining each bottle and discussing the price, the detective told the appellant he would have to go into Bessemer to get the money, and the two then started to drive to Bessemer in an automobile taking the box of bottles with them.

It was stated therein:

“Other evidence introduced by the State tended to show that the bottles produced by the appellant contained various types of narcotic drugs which were derivatives or compounds of opium or morphine. It was also shown that these drugs were the same that were stolen from a drug store in Birmingham, the pharmacist in the drug store identifying the bottles by a cross mark she had written on each bottle label.
“The pharmacist also testified as to the narcotic qualities of the drugs in the various bottles.
“The evidence that the bottles of drugs were the same as those stolen from the drug store was properly received in evidence, even though it might tend to show the commission of an offense not charged in the indictment.
“This evidence shed light on whether the appellant had lawfully acquired possession of the drugs within the provisions of our narcotic law, a material issue in this prosecution. It was therefore relevant and admissible in this aspect. Snead v. State, 243 Ala. 23, 8 So.2d 269.” Coshatt v. State, 37 Ala.App. 422, 69 So.2d 877 (1954)

It should be noted that possession of a controlled substance by an “ultimate user or person in possession of a controlled substance pursuant to a lawful order of a practitioner does not constitute a violation of the Controlled Substances Act.” Code of Ala. 1975, § 20-2-51(c)(3). That the less knowledgeable, the less sophisticated, one is as to drugs, the less the likelihood of the existence as to him of the essential element of guilty knowledge, is emphasized by the fact that there are over one hundred controlled substances listed under various provisions of the Controlled Substances Act. Code of Ala. 1975, § 20-2-1 — 20-2-93.

Appellant’s requested charges 4, 9 and 14, have their chief, if not their only, value to defendant in their setting forth the principle that defendant is presumed innocent and cannot be convicted unless the evidence convinces the jury of his guilt beyond a reasonable doubt. The oral charge is replete with references to the requirement of proof of guilt beyond a reasonable doubt and as to a moral certainty, and the court gave three instructions requested in writing by defendant on the subject. Everything of any benefit to defendant in charges 4, 9 and 14 was fully covered in the court’s oral charge as well as in one or more of the charges given at the request of defendant.

Refused charges 7, 10 and 18 set forth the principle that a valid verdict cannot be rendered unless it represents the unanimous view of the jury. This principle was adequately covered in more than one instance in the court’s oral charge.

Defendant’s refused charges 19 and 20 were as follows:

“19. I charge you, members of the jury, that the action of the grand jury in finding the indictment is not evidence of the guilt of the Defendant and should not be considered by the jury in this case.
“20. The court charges the jury that the indictment in this case is not any evidence in the case, and the fact that Defendant had been indicted is not to be considered by you as a circumstance against her, but said indictment is merely the method of placing Defendant on her trial, but the presumption of innocence attends the Defendant throughout this trial, and remains with her and authorizes an acquittal, if the entire testimony fails to overcome said presumption by proof of the Defendant’s guilt beyond a reasonable doubt.”
During its oral charge, the court said: “Now, how did this case get into this Court? It got into Court by way of the means of an indictment. And as I told you earlier, an indictment is not evidence, and it is not to be construed by you as evidence. It is merely the manner or vehicle by which this case gets into this Court.
“Now, as I told you from the outset, it is your duty to base your verdict on the evidence in this case. Now, evidence to be considered by you is one, that is the evidence from the witnesses, from the witness stand, and also evidence to be considered by you are the exhibits, which you may take into the jury room with you for your consideration and any presumption of law not refuted by the evidence. And evidence, as I told you, is that the defendant is presumed innocent, and this presumption of innocence attends her throughout the trial and even into the jury room until you, the jury, remove this cloak of innocence from her. Evidence is not anything in the indictment, and as I have told you, it is not evidence. Evidence is not the arguing of the attorneys, and evidence is not rulings of the Court. They are not to be considered by you in any way as evidence.”

Defendant received in the court’s oral charge as much as defendant requested in refused charges 19 and 20 relative to the effect of the indictment. The refusal of both charges was justified.

Defendant’s requested charge No. 29 provides:

“The court charges the jury that they have a right to disregard the testimony of the finger print expert who testified in this case if the jury finds that he is not fully qualified as an expert.”

Appellant cites Wilson v. State, 243 Ala. 1, 8 So.2d 422 (1942) in support of his assertion that there was error in refusing the particular charge. Wilson holds to the contrary as to several similar charges relative to the testimony of expert witnesses.

“Charges 19 to 28, inclusive, were properly refused as containing misleading tendencies in respect to testimony of expert witnesses given the jury in the oral charge of the court. Metropolitan Life Ins. Co. v. Chambers, 226 Ala. 192, 146 So. 524; United States v. Goodloe et al., 204 Ala. 484, 86 So. 546. While the jury is not concluded by the opinion given by experts, it is the province of such triers of fact to measure the weight and correctness of opinions given by experts. Braham v. State, 143 Ala. 28, 38 So. 919.” Wilson v. State, 243 Ala. 1, 19, 8 So.2d 422, 438 (1942)

The court refused defendant’s requested charge 44 as follows:

“The court charges the jury that, if after considering all the evidence in the case, that tending to show guilt, together with tending to show innocence, there should spring up involuntarily in the minds of the jury from any part of the evidence a probability of the innocence of the defendant, the jury cannot convict her.”

In Wilson v. State, 243 Ala. 1, 8 So.2d 422 (1942), it was held that such a charge stated a correct proposition of law. In Smiley v. State, 53 Ala.App. 268, 299 So.2d 312 (1974) we took especial note of the fact that the charge had “been held bad in several cases” but that it had been held good in others.

Charges that seek to base a not guilty verdict on the existence of the “probability” of defendant’s innocence have been troublesome throughout the years, and we find that in general there has not been uniformity in the conclusions as to whether it was reversible error to refuse such charges. The status at the time was well expressed by Justice Lawson in Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950) as follows:

“This charge has had a rather checkered career in our cases. In the early cases it was held that the refusal of such a charge constituted reversible error. Croft v. State, 95 Ala. 3, 10 So. 517; Whitaker v. State, 106 Ala. 30, 17 So. 456; Morris v. State, 146 Ala. 66, 41 So. 274. However, the more recent decisions of this court and of the Court of Appeals hold that the refusal of such a charge is not reversible error, particularly where, as here, the trial court adequately instructed the jury that the defendant must be acquitted unless shown to be guilty beyond a reasonable doubt. Edwards v. State, 205 Ala. 160, 87 So. 179; Russo v. State, 236 Ala. 155, 181 So. 502; Wilson v. State, 243 Ala. 1, 8 So.2d 422; Napier v. State, 26 Ala.App. 597, 164 So. 307; Reeves v. State, 28 Ala.App. 222, 182 So. 90; Duncan v. State, 31 Ala.App. 186, 13 So.2d 695. To like effect see Odom v. State, 253 Ala. 571, 46 So.2d 1.”

The quotation from Stokley was expressed approved in Wilbanks v. State, 289 Ala. 171, 266 So.2d 632, on remand, 48 Ala.App. 754, 266 So.2d 637, cert. denied, 409 U.S. 1116, 92 S.Ct. 913, 34 L.Ed.2d 700.

Speaking to the subject of the confusion that had been wrought by the use of the expression of “probability of innocence” or “improbability of guilt,” Judge Cates in Turner v. State, 43 Ala.App. 42, 179 So.2d 170, 173, said:

“We think the recent cases of our Supreme Court hold that variations and shifting emphasis of the different facets of moral philosophy as to the concept of reasonable doubt do not make mandatory that the trial judge duplicate and proliferate the essential idea of the jury’s being convinced from the evidence beyond a reasonable doubt and to a moral certainty.
“A uniform generalization, i. e., a certainty, in logic, is a rigorous conclusion; e. g., ‘What goes up must come down.’
“A statistical generalization, i. e., a probability, in logic, is a comparative conclusion; e. g., ‘Usually a ball will roll down hill.’ But the given premises need not invariably dictate the outcome.
“Perhaps, using the laws of chance, a mathematician could point out where a probability descends into a mere possibility. Yet, when we say 100-1 against an assertion, are we saying that an affirmative is probable in one time out of a hundred? Or, can we affirm that 199 negatives will appear before two positives show up?
“The Law of Averages is more a conversation piece than a rule of law.”

We take it that the state of the law now is, and logically should be, that there can be error at times in the failure of the court to' give a requested charge to the effect that there can be no conviction if in the minds of the jury there exists the view based on the evidence that defendant is “probably” not guilty, but that reversible error cannot be predicated upon the refusal of such a charge if the trial court had adequately charged the jury on the necessity for proof of defendant’s guilt beyond a reasonable doubt.

As we have already indicated, the trial court more than adequately instructed the jury as to the necessity for proof of defendant’s guilt beyond a reasonable doubt and to a moral certainty. The trial court was not in error in refusing charge 44.

In addition to the extraordinary amplitude of the court’s instructions as to the burden that was on the State, the presumption of defendant’s innocence, the necessity for proof that would convince the jury of her guilt beyond a reasonable doubt and to a moral certainty, we find that the court actually gave one charge requested by defendant in which the necessity for the negation of “probability of her innocence” was definitely stated. We refer to defendant’s given charge No. 8 as follows:

“The court charges the jury that the only just foundation for a verdict of guilty in this case is that the entire jury shall believe from the evidence, beyond a reasonable doubt and to a moral certainty, that the Defendant is guilty as charged in the indictment to the exclusion of every other probability of her innocence, and to every reasonable doubt as to her guilt, and if the testimony in this case has failed to furnish the aforesaid measure of proof and to impress the minds of the jury of such proof of the Defendant's guilt, then the jury should find the Defendant not guilty.”

A defendant is entitled to definite instructions requiring proof sufficient to convince the jury beyond a reasonable doubt of defendant’s guilt, and a court is in error in refusing to definitely instruct the jury accordingly, but this principle does not require the court to accept any and all phrases proposed by defendant that would at the best be no more favorable to defendant than the use of the traditional expression of “beyond a reasonable doubt and to a moral certainty.” The expression “beyond a reasonable doubt” has stood the acid test of time without criticism and confusion. Substitutions therefor have demonstratively led to confusion and division of opinion.

Defendant’s requested charge 6 is almost identical with charge (3) in Jackson v. State, 193 Ala. 36, 69 So. 130 (1915), as to which it was said:

“Charges like those refused to appellant, and marked by us in the margin of the transcript as 2 and 3, have been repeatedly condemned. 7 Mayf. Dig. p. 138, sub. ‘Reasonable Doubt.’ ”

We have attempted to consider fully all questions raised by appellant in her brief and have searched the record for error prejudicial to defendant and have found none.

The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.

      . It is likewise scheduled in other parts of the record. According to Code of Ala.1975, § 20-2-27, Phenmetrazine is a Schedule III controlled substance. This discrepancy, however, seems immaterial to any question in this case.