author: HARRY E. PICKENS, Circuit Judge.

text:
    Jimmy P. BEARD v. STATE.
    7 Div. 416.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.

      No appearance for appellee.
    William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for the State, appellee.
   HARRY E. PICKENS, Circuit Judge.

The appellant was indicted for first degree murder of Judy Deline Salter, by shooting her with a rifle or carbine. Trial was held August 25-27, 1975, and the trial jury found the appellant guilty of murder in the second degree and fixed punishment at thirty-five years and one day.

The appellant and the victim had at one time dated each other but that relationship had come to an end some few months prior to the killing. The appellant was a married man and returned to his wife and victim was dating one Standard Woods at the time of this occurrence.

Greg Franklin testified that he had picked up Judy Salter (victim), and Linda Gail Clopton, his girl friend, at their respective homes and proceeded to the American Legion Club in Goodwater, Alabama. Upon leaving the club, some three hours later they saw appellant standing at the door talking to some men. In passing, victim accidentally bumped into appellant. The appellant then grabbed victim by her neck and started beating her with his fist. Greg Franklin attempted to stop appellant from beating victim and the appellant knocked him to the ground and continued to beat the victim. Franklin again attempted to stop him and the appellant pulled a knife and keys out of his pocket. Franklin went to his automobile, got a pistol and came back and shot appellant in the leg. Appellant chased Franklin and the girls in his auto. Appellant then went to the hospital and Franklin, his girl friend and the victim went to someone’s home and called the police.

When the police arrived they arrested Franklin and took him and the two women to the Goodwater Police Department. Victim, while at Goodwater jail called Standard Woods, her boy friend, to come get her. Standard picked up the two girls and took a route directly to victim’s home. While enroute to victim’s home they passed appellant’s car parked on the side of the road; appellant was talking to some people in another car. Appellant followed Standard Woods’ car at a fast rate of speed and shot at the car. Woods turned around and headed for the police station. Appellant’s car followed Standard Woods’ car to the Sylacauga police station. Standard Woods’ car stopped at the police station and appellant’s car stopped right behind it. There were policemen standing in front of the police station and Standard Woods told them that a man was shooting at his car and following him. Appellant got out of his car and came to the passenger side of Standard Wood’s car and said, “Give me Judy out of there.” The appellant then started shooting. Victim slumped over in the car and she did not speak after that.

Standard Woods testified that someone was driving appellant’s car with the appellant in the car on the passenger side with a rifle. They drove up beside him. Appellant’s car passed and a shot was fired from appellant’s car. After the appellant’s car passed Standard Wood’s car, Woods turned around and drove to the Sylacauga police station and appellant followed him and stopped right behind him. Woods later found two bullet holes in his car, one in the front roof and one in the windshield. Woods further testified that appellant came to the passenger side of the car and, “the police told him to stop but he fired through the window and killed Judy and the cops fired at him.”

Mr. Neal Denny, a Sylacauga police officer, testified that he and Officer Jack Mat-son went to the hospital between 1:00 A.M. and 2:00 A.M. before the killing, due to a routine call by the hospital that someone was there who had been shot. The appellant asked the officers what they were doing up there and said; “You can go right back to town. I’ll handle this myself.” He said he did not have time to lay there and let them take the bullet out, that he had to get something done about this situation. Denny testified; “Appellant appeared to be coherent and to realize his acts.”

Later, Officer Denny got a call about 4:45 A.M. from an officer needing help at the City Hall. When he got there, a lot of people were lying on the ground. Mr. Beard (appellant), Mr. Thompson, Mr. Woods, Miss Embry and Miss Clopton were lying on the ground. He saw the victim in the car and his best judgment was that she was dead.

Officer Ivey testified he went to the hospital and saw the appellant prior to the killing and he appeared to be mad and said; “ ‘Who called you all? I don’t need you. I’ll take care of this myself.’ ” Ivey saw him later about 20 or 25 minutes to 5 o’clock and stated that; “We were gassing our ear at the police station. A car pulled up and three people in the car hollering, ‘They was shooting at us.’ ” A car pulled up behind them and appellant got out with a rifle. Ivey yelled for him to stop and the appellant said; “Stay out of it man, you know what I came after.” Ivey testified that the appellant moved to the front of the car and there were two shots by appellant and “we opened fire on him.” Appellant was on the passenger side, “when he fired the shots, I was looking at him.”

James Butram of the State Department of Toxicology, examined the victim. External examination revealed a number of wounds. One of the wounds was a Vs inch penetrating wound on the left back of the body which was later traced by dissection through the body to the right breast where the tract ended. He found a number of smaller wounds; some contained glass and some contained soft, gray metal.

At the end of the tract of the major wound, and in the right breast, he recovered a brass colored fragment of material which resembled an inverted bullet jacket which he turned over to Garry Wallace, a criminalist who works in the same lab with John Case; both of whom are with the Department of Toxicology. The main penetrating wound was in the left back and extended to the right breast. The damage tract showed that the projectile nearly severed the arch of the aorta which caused a massive hemorrhage in the chest cavity. It was his opinion that death was due to hemorrhage and shock as a result of the gunshot wound to the upper left back.

John Case, State Department of Toxicology, test fired State’s exhibit number 1, which is a 30-30 caliber carbine and stated that he determined that this carbine fired the missile which was recovered from the victim’s body.

Sam Taitón, police officer, testified that he and Officer Ivey saw appellant in the hospital prior to the killing and he had been shot in the leg and that he appeared rational and told them to the effect that he did not want them and he would handle it himself. That he and Ivey were at the police station later in the morning, and observed the shooting of the victim by the defendant.

Lester Proctor, a Sylacauga police officer, testified that he saw appellant at the hospital about 2:30 A.M. Appellant told him that he would not get a warrant but would handle the matter himself. Later in the morning he went to the police station and was gassing up his car and saw appellant run up to the car where victim was seated; that he had a rifle. He said he heard two shots and then saw appellant crouch behind the car in which the victim was riding.

Jimmy Curtis, the Coroner of Talladega County, testified he viewed the victim’s body at 4:50 A.M., while the body was still in an automobile and .victim was dead at the time.

Mrs. Nettie Salter, mother of the victim, testified that victim and appellant dated each other for about three years and broke up. That appellant and victim broke up the year before the shooting. State rested its case.

Appellant testified that he had seen victim on and off for two years. He said that he knew Greg Franklin and Standard Woods. On February 23, 1975, he was with Ray Anthony Thompson and Brenda Em-bry. He had the carbine with him. He was at the American Legion about 12:00 P.M. He was talking to two guys at the door and said: “I saw Judy (victim), Linda and Greg.” He said that one of them bumped him and he told Judy to come there, he wanted to talk to her. He stated that: We went outside to talk and Greg hollered to Judy to come on. Greg came up, grabbed Judy by her arm and said, ‘come on’. He started pulling her and he then shot me.”

The appellant went to the Sylacauga hospital about 1:00 A.M. He stayed there about three hours but the bullet was not removed. He remembered seeing Officer Hay and Hay asking; “What you gonna do about it?” The appellant said; “I’ll take care of it.”

Appellant left the hospital at 4:30 A.M. with Ray Thompson and Brenda Embry. Ray Thompson drove and he had Ray stop the car on the road and talked to Richard and Barbara Reggens. He said this white El Dorado came by and someone in the car shot at him. He got in his car, got his rifle. He said; “We were about six or seven blocks from the police station,” and he told Ray to catch the car. The car parked in front of the fire station and he saw two policmen. He said they parked behind the other automobile and he got out of the car with his rifle; went up to the other car and asked Judy (the victim) to get out. He stated that he came down with the rifle, pulled the trigger and fired one shot, and, “the officers fired and I was hit.”

During State’s case, defense counsel asked the court to order the State to deliver to him signed written statements made by State’s witnesses prior to trial date. The witnesses did not use their statements while on the witness stand or did State’s attorney use them in his examination. The court, after an in camera inspection, denied defense counsel’s request.

I

Appellant contends it was error to permit, over objection, officers to relate their conversations with appellant prior to the killing. Appellant’s counsel objected and gave reason for objection to be improper predicate. No predicate was necessary.

The general rule is that all the acts, words, signs and declarations of defendant indicating hostility to deceased immediately preceding the encounter; Blair v. State, 211 Ala. 53, 99 So. 314, if relevant, are admissible in evidence as part of the res gestae, 22 C.J.S. Criminal Law § 668, p. 1057 (1940), as where they throw light upon the actions animus or intent of the defendant, or his mental attitude at the time of the difficulty: McCoy v. State, 232 Ala. 104, 166 So. 769; Stallings v. State, 249 Ala. 580, 32 So.2d 236, cited in Levert v. State, 252 Ala. 308, 42 So.2d 532.

“[I]n homicide cases, declarations of the accused or the deceased, made just before starting to the scene of the killing, as to the purpose or object in going there, are admissible as part of the res gestae . of the killing.” Ingram v. State, 13 Ala.App. 147, 69 So. 976, cert. den. sub nom. Ex parte Ingram, 195 Ala. 695, 70 So. 1013.

Therefore, it is proper to admit declarations made by the accused while the fatal difficulty was in progress; Brown v. State, 21 Ala.App. 214, 107 So. 29, his conduct at or near the scene and until the entire difficulty has been abandoned by both parties is admissible. Hall v. State, 49 Ala.App. 695, 275 So.2d 374.

Facts which: “Show preparation to commit the crime are always admissible in evidence.” Ellis v. State, 244 Ala. 79, 11 So.2d 861; Wilson v. State, 31 Ala.App. 560, 19 So.2d 777.

II

Appellant objected to testimony of police officer’s characterization of appellant.

The police officers testified that appellant, prior to the killing, “appeared rational, spoke clearly and distinctly and appeared mad.”

A non-expert witness may state his opinion on the appearance of the defendant. “ ‘Witnesses may always be allowed to testify as to the appearance and emotions of other persons;’ ” Hamilton v. State, 281 Ala. 448, 203 So.2d 684.

In Parrish v. State, 139 Ala. 16, 36 So. 1012:

“The objections to the statements of the witness that the defendant ‘seemed all right,’ that ‘he talked rational,’ etc., were properly overruled. Such expressions were admissible under the rules [the Supreme Court] . . . [has] announced, and for the further reason that they were admissible to show the appearance, emotions and condition of the mind of the defendant.” [Bracketed material added.]

In Miller v. State, 107 Ala. 40, 19 So. 37, the Alabama Supreme Court specifically ruled that: “it was competent for a witness to testify that accused appeared to be mad.”

Testimony was allowed that one “appeared normal”; L & N Railroad Co. v. Manning, 255 Ala. 43, 50 So.2d 153; and that one “seemed all right, talked rationally.” Deloney v. State, 225 Ala. 65, 142 So. 432.

III

Counsel for appellant contends that the court erred in the principle that the admission of cumulative evidence is within the sound discretion of the trial judge; Allen v. State, 290 Ala. 339, 276 So.2d 583 (1973).

Cumulative evidence is permissible even “Though such evidence be only cumulative and may tend to inflame the jury, its admissibility will not be affected if it sheds light upon a material inquiry or illustrates the transaction at issue.” Reedy v. State, 246 Ala. 363, 20 So.2d 528; Allen v. State, 290 Ala. 339, 276 So.2d 583. Jackson v. State, 260 Ala. 641, 71 So.2d 825.

The trial judge did not abuse his discretion by permitting the introduction of photographs, States’ exhibits 5 and 9.

IV

The appellant contends that the court erred in refusing to require the district attorney to produce signed statements made by the State’s witnesses prior to trial date.

The court made an in camera inspection of prior written statements of witnesses denied the appellant’s motion to produce and further found that the State did not use such statements in the examination of the said witnesses or use the statements to refresh the recollection of any of said witnesses.

In Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. den. 290 Ala. 363, 276 So.2d 640, it was held:

“The first requisite necessary to secure for inspection production of a ‘statement’ of a witness for use on cross-examination of the witness is that the statement must be one in writing prepared by him or prepared by another at his instance and signed by him or otherwise authenticated by him. In the instant case there was nothing to indicate by query of the witness by the defense or otherwise that the witness had given to any officer a written statement signed or authenticated by her. There was not laid in the evidence any showing that any statement made by the witness to officers before trial differed in any respect, from statements made to the jury during trial. See Bellew v. State of Mississippi, 238 Miss. 734, 106 So.2d 146, cited with approval in the Mabry case, supra. Neither was there any such showing of inconsistency in testimony given by the witness at a preliminary hearing previously held and the testimony given by her on the trial before the jury. There is no showing that the statement requested, if any was of such nature that without it the defendant’s trial would be fundamentally unfair. The production for inspection of any such statement as above defined lies within the sound discretion of the Court and we find no abuse of that discretion in the ruling here made. See Annotation Right of Defendant in Criminal Case to Inspection of Statement of Prosecution’s Witness for Purpose of Cross Examination or Impeachment, 7 A.L.R.3d, pp. 181, 217, 219, 213, citing the Mabry case, supra, and the authorities therein noted.”

A statement, memoranda, or notes, not read by the witness interviewed and not signed or authenticated by the witness cannot be considered evidence. Mabry v. State, 40 Ala.App. 129, 110 So.2d 250. In this case, Harwood, P. J., writing for the court quoted with approval:

“Perhaps the answer is best summarized in a statement by Cardozo, C. J., in People ex rel. Lemon v. Supreme Court of State of New York, 245 N.Y. 24, 156 N.E. 84, 85, 52 A.L.R. 200, wherein he observed:
“ ‘Documents are not the subject to inspection for the mere reason that they will be useful in supplying a clew whereby evidence can be gathered. Documents to be subject to inspection must be evidence themselves.’ ”

Conclusion

We have considered the entire record under Code 1940, T. 15, § 389, from this examination we conclude that error is not made to appear.

The foregoing opinion was prepared by Honorable Harry E. Pickens, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, T. 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

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


source: Caselaw Access Project

author: W. AUBREY DOMINICK, Circuit Judge. BOOKOUT, Judge

license: Public Domain

text:
    Alvin Vernon PARKER, alias v. STATE.
    7 Div. 468.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.

      William D. Hudson, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   W. AUBREY DOMINICK, Circuit Judge.

Appellant-defendant, Parker, an indigent at the time of trial and on this appeal, was indicted for robbery and convicted therefor. The charge was that of robbing a grocery store. The sentence was ten years in the penitentiary.

On October 28, 1975, appellant and one Glover had entered the grocery store of a Mr. Bishop. There was no one else in the store at the time except Bishop. Parker had allegedly walked up to Bishop, stuck a pistol in his face, and told him to go to the back of the store. Bishop went to the back and stepped into a cooler room and shut the door. Parker allegedly then shot once into the floor by the cooler. Bishop remained in the cooler room until he thought it was safe to come out. When Bishop left the cooler, the store was empty and $75.00 was missing from the cash register.

About fifteen minutes after the robbery, Parker returned to the store. Parker said he had come to the store because he had heard the police were looking for him. Bishop told the police that he was the person who had robbed him. He was arrested and taken to jail where he was advised of his constitutional rights. At that time he signed a waiver of rights but made no statement. The next morning he was brought from the jail for more questioning. He was advised of his rights again but he did not sign a waiver. He later allegedly confessed to the robbery.

I.

Appellant asserts that the trial court erred in sustaining the objection concerning oral testimony as to what the accused said to an investigating officer at the scene of the crime. The statement had been reduced to writing and signed by the accused. Prosecuting attorney had claimed that the' written statement of the accused was the best evidence, and not what the officer had heard the accused say. Both the written statement and the oral testimony of a witness who heard the statement are classed as primary evidence. Elkins v. State, 250 Ala. 672, 35 So.2d 693. It could well be that written evidence would be more convincing and accordingly of greater weight, but either could have been admitted and it was not error for the Court to sustain objection to the oral statement.

II.

Counsel for defendant complains that the trial judge erred by not allowing the defendant to present evidence outside the presence of the jury as to the voluntariness of defendant’s statement to police officers and in admitting said statement without first having heard such evidence.

Ordinarily, when the voluntariness of a confession is brought to a question, duty rests in the first instance on the trial judge to determine whether the confession was voluntary. Wallace v. State, 290 Ala. 201, 275 So.2d. 634; Kendrick v. State, 55 Ala.App. 11, 312 So.2d. 583. The trial judge did err by remarking to the lawyers at the bench that the voluntariness was to be determined by the jury. The error was harmless because the defendant denied ever making any statement or confession to the police officers after receiving the “Miranda” warnings. Whether or not a statement was ever made is one of fact to be determined by the jury. A jury may disregard a confession if they entertain a reasonable doubt as to its truth. Bennett v. State, 46 Ala.App. 535, 245 So.2d. 570. The question of voluntariness is never reached.

Defense counsel also complains that the trial court erred by sustaining the objection to the question addressed to defendant on direct examination as to whether defendant understood the waiver of rights that he had signed. The question is moot. The defendant had been asked by the prosecuting attorney if he understood that which was read to him from a card that had the “Miranda” warnings on it after being arrested for trespassing three months prior to this incident. Defendant’s response was that he thought he did.

III.

Another contention of the defendant is that the trial court committed reversible error in sustaining the state’s objections to certain questions. The purpose of the questions was to show that the victim, Bishop, and defendant had past conflicts which had developed an ill will between them. It appears on the record that the evidence was independent and unconnected with that charged, and remote and irrelevant in its objective, and would shed no light on the existence of the bias. Therefore, the trial judge did not abuse Ms discretion by sustaining the State’s objections to the questions. James v. State, 52 Ala.App. 389, 293 So.2d 305.

IV.

Remarks were made by the prosecuting attorney during closing arguments about what he remembered from when he was a child, to which defense counsel objected. It would have been proper for the Court to have sustained the objection to the remarks, but there was no reversible error. Taylor v. State, 54 Ala.App. 353, 308 So.2d. 714. As stated by Judge Harwood in Bullard v. State, 40 Ala.App. 641, 645, 120 So.2d 580, 584:

“Of necessity a wide discretion must be allowed the trial judge in regulating the argument of counsel. Trials are adversary in nature. Vigorous prosecution and defense is to be expected. Neither defense counsel nor the prosecutor should be too closely hampered by niceties of speech if he is to be effective, but should be permitted to say his say in his own style. This, of course, does not mean that unfair and prejudicial argument is to be condoned for one instant.”

Also during the closing argument of the prosecuting attorney, a statement was made in which there was no evidence to support it. An objection was raised but overruled by the trial court. This was harmless error and without prejudice. Taylor v. State, 54 Ala.App. 353, 308 So.2d 714. Therefore, there was no injury.

V.

The final point defense counsel raises is that the Court should have instructed the jury on the lesser included offenses of larceny and assault. Defendant, however, denied ever being in the grocery store the night of the robbery. He could not have committed these lesser offenses.

Also, defendant did not request in his written charges that lesser degrees of punishment be included in charging the jury. The defendant must submit written charges pertaining to such offenses. Reed v. State, 55 Ala.App. 138, 313 So.2d. 564; Winstead v. State, 53 Ala.App. 222, 298 So.2d 642, cert. denied, 292 Ala. 761, 298 So.2d 646.

VI.

We have considered the entire record under Code 1940, Title 15, Sec. 389, as last amended, and each ruling of the trial judge adverse to the appellant. From this examination we conclude that error is not made to appear.

The foregoing opinion was prepared by Honorable W. Aubrey Dominick, Circuit Judge of Tuscaloosa, temporarily on duty on this Court pursuant to subsection (4) of Section 38, Title 13, Code of 1940, as last amended; and the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.

BOOKOUT, J., concurs specially.

CATES, P. J., not sitting.

BOOKOUT, Judge

(concurring specially):

Section IV of the opinion states in part the following:

“Also during the closing argument of the prosecuting attorney, a statement was made in which there was no evidence to support it. An objection was raised but overruled by the trial court. This was harmless error and without prejudice.

The statement there alluded to was:

“How long would it have been before he would have been discovered, locked up in the cooler, lying dead in his cooler, I submit to you? That’s why no mask was used. That’s why they stood on the corner and waited until nobody was in there to identify them but him.”

Taylor v. State, supra, stands for the proposition that when a statement is made by the prosecuting attorney in his argument, which states as substantive fact a matter which was not in evidence, and which manifestly bears on a material inquiry before the jury, then reversible error may result.

We should not be taken to conclude from the above quoted portion of Section IV that it is harmless error for a prosecutor to make a statement of fact unsupported by the evidence. The argument of a prosecutor in the instant situation amounts to mere inferences he was drawing from the fact that Bishop was in the cooler room during the time of the attempted robbery.

While he may not state material facts to the jury not supported by evidence, he may draw reasonable inferences from the evidence during closing argument. For this reason, I conclude that no error resulted in this instance.


author: HARRIS, Judge.

text:
    Theodis ROBINSON, alias v. STATE.
    7 Div. 480.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    William Roy Willard, Jr., Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at 20 years imprisonment in the penitentiary. Prior to arraignment he was found to be indigent, and the Court appointed two experienced lawyers of the Gadsden Bar to represent him and they were appointed two weeks before the trial. At arraignment he pleaded not guilty and not guilty by reason of insanity. After sentence was imposed, he gave notice of appeal and his sentence was suspended pending appeal. Trial counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County charges that before the finding of this Indictment Theodis Robinson, alias Theotis Robinson, alias Theortis Robinson, whose name to the Grand Jury is otherwise unknown than as stated, feloniously took one (1) ten-dollar bill, lawful United States currency, of the value of $10.00; and ten (10) one-dollar bills, lawful United States currency, of the value of $10.00, all of the aggregate value of $20.00, the property of Shirley Hammond, from her person or in her presence, and against her will, by violence to her person, or by 'putting her in such fear as unwillingly to part with the same, contrary to law and against the peace and dignity of the State of Alabama.”

As a preliminary matter counsel for appellant made a motion for a continuance until the next term of court on the ground that on the very day the case was called for trial, appellant informed them that at one time he had been in a mental institution in the State of Louisiana and counsel wanted more time to investigate the question of his sanity at the time of the commission of the offense, as well as his competency to stand trial and assist his counsel in his defense. The motion was made at the insistence of appellant.

The record reflects quite a colloquy between the Court, appellant and his attorneys. Appellant told the Court that he had a “mental block” and had no recollection whatsoever of the alleged crime. Based upon appellant’s statement the Court was in a quandary as to whether he was competent to stand trial. Out of an abundance of precaution and in order to protect appellant’s constitutional rights to a fair and impartial trial the Court questioned appellant’s counsel on their judgment as to his competency to stand trial. Counsel told the Court that appellant “speaks intelligently and lucidly in discussing the case but he had no recollection of what occurred at the time the alleged offense was committed.” Appellant’s counsel further told the Court that appellant was capable of understanding the charge against him but because of his “mental block” he was unable to assist counsel with his defense.

Thereupon, the Court told counsel for the State and the defense that a jury trial would be had for the limited purpose of determining if appellant was competent to stand trial. The jury was qualified and each side was furnished a strike list. The Court adjourned for lunch and counsel for appellant conferred at length with him on the issue to be decided by the jury, viz., his present competency to stand trial.

When Court reconvened, counsel made known to the Court they had a matter to take up out of the presence and hearing of the jury. Counsel for both sides and appellant went to the Judge’s Chambers.

From the record:

“THE COURT: All right, do you have something to take up with the Court at this time?
“MR. BURNS: Yes, sir. Comes now the Defendant Theodis Robinson, whatever the style of the case is, and I would like to make his formal request to withdraw his prior request for a sanity hearing. Said sanity hearing was for the purpose of determining his present ability to stand trial, and at this time after discussing it with his two Court appointed attorneys he wishes now to withdraw the said request and — I guess we could introduce his testimony into the record. I don’t think he has ever been sworn, Judge.
“THE COURT: Well, I don’t think he has to be sworn for arraignment. You said you wanted to plead incompetent to stand trial. Do you want to withdraw that plea?
“THE DEFENDANT: Yes, sir.
“THE COURT: Do you think you are competent to stand trial at the present time?
“THE DEFENDANT: I think I am competent. I don’t think an untrained jury is competent enough to determine whether I am insane or not. So I had rather just go ahead on and get through the trial. “MR. BURNS: Well, based on that, Judge, what he has told you, at this time we would like to withdraw the formal request for a sanity hearing to determine his present competency and go into the subsitive (sic) trial of the facts.
“THE COURT: In other words, you just want to plead insanity at the time of the offense? Is that your plea?
“THE DEFENDANT: Well, I would like to—
“Well, I don’t know whether I was insane or not. That is why I want to see a psychiatrist. All I can say is I don’t remember what happened.
“THE COURT: Are you able to talk to your attorneys and communicate with your attorneys now?
“THE DEFENDANT: Yes, I can communicate with my attorneys to a certain degree. As far as offering them defense information that would help me in my trial, I’m not able to do it.
“THE COURT: You don’t remember what happened back then?
“THE DEFENDANT: No, sir.
“THE COURT: Do you understand what this charge is against you?
“THE DEFENDANT: Yes, sir.
“THE COURT: And you are able to talk to your attorneys now, but you just don’t remember what happened back then? Is that what you are telling the Court?
“THE DEFENDANT: Right.
“THE COURT: You feel like that you understand what is going on right now?
“THE DEFENDANT: Yes, sir.
“THE COURT: All right, then you want to withdraw that plea of incompetency?
“THE DEFENDANT: Yes, sir.”

Appellant filed a motion to suppress the State’s evidence on the question of the identification of appellant and considerable testimony was taken on this issue out of the presence and hearing of the jury.

On the motion to suppress Detective M. J. Naler of the Gadsden Police Department testified that he had been with the Department almost nine years. That during that period of time he had conducted many lineups in which defendants were identified. He stated that on March 3, 1976, a lineup was held in which appellant was identified by the victim of the robbery. He stated there were four other black males in the lineup of the approximate age and size of appellant. He said the lineup was actually gotten up by Captain Richard Moore of the Gadsden Police Department, and that prior to viewing the lineup no suggestions were made to the victim, Mrs. Shirley Hammond. That when Mrs. Hammond viewed the lineup, she immediately made a positive identification of appellant as the man who robbed and kidnapped her in Gadsden, Alabama, on April 9, 1975.

On cross-examination Detective Naler testified that he was one of the officers assigned to investigate the robbery of Mrs. Hammond and they got the name and description of appellant from persons in the neighborhood where the robbery occurred and from the people that he rented from. That they talked to appellant’s aunt who lived at 1004 Mimosa Street in Gadsden and she told the officers that she had not seen appellant since the robbery but she knew he had been in trouble before in Baton Rouge, Louisiana. The officers communicated with the Police Department in Baton Rouge and they sent a photograph of appellant to the officers in Gadsden. The officers took this photograph along with ten or twelve other photographs to Mrs. Hammond and from this display of photographs she picked out the photograph of appellant as the man who robbed her. These photographs were shown to Mrs. Hammond on April 19, 1975, ten days after the robbery.

Detective Naler further testified that they entered appellant’s name, date of birth, social security number, and the charge pending against him in the N.C.I.C. (National Crime Information Center) and they received a teletype from the Puma County Police Department in Tucson, Arizona, that they had the suspect in custody. He was subsequently extradited to Alabama, and the lineup was held the day after appellant was brought back to Alabama.

Mrs. Shirley Hammond was called as a witness for the defense on the motion to suppress. She testified that on the morning the lineup was held she walked into the room and immediately identified appellant as the robber. That the officers did not tell her who she was going to view and did not mention the names of any people in the lineup. She further stated that she was not shown any photographs just prior to entering the room to view the people in the lineup.

The Court overruled the motion to suppress and the trial got under way before the jury.

Mrs. Hammond testified that she was employed as a package car driver for United Parcel Service on April 9, 1975, and that on that date around 2:00 p. m., she was delivering a package to 909 Tuscaloosa Avenue in Gadsden, Alabama. That she parked the delivery van and picked up the package and walked across the street but she made a mistake and went to the wrong house. Two black men were standing nearby talking and one of them told her the house was next door. She went next door and delivered the package and she walked back across the street to the van. As she stepped up into the package car, a black man jumped her from the back. She told him to get out and he pulled a pistol and pointed it at her and said, “- -, drive.” Mrs. Hammond started screaming and the man told her if she didn’t shut her _ mouth, he would blow her head off and he had the pistol pointed directly at her head.

Mrs. Hammond cranked the van and started driving down Ninth Street and the man said, “Give me your money.” She pointed to her wallet which was on a shelf in the van behind where the man was sitting on the steps. He reached back and got her wallet and counted the money. She had one ten-dollar bill and ten one-dollar bills and he asked her if that was all the money she had and she said “yes,” and he took the money and told her to head for Birmingham. She told him she did not have enough gas to go to Birmingham, and he told her to go to a service station. She stopped at a service station at West Meigh-an and 11th Street but the package van was too high to go under the shed over the gas tanks. The man told her to pull off and “Don’t start nothing, I mean to get some gas.” She hesitated and the bandit said, “_, pull off and don’t start no_ I had just as soon blow your head off as not to.” She started for another service station and the robber handed her back the ten-dollar bill which he had removed from her wallet and told her to pay for the gas. She stopped at an independent station, but her hand was shaking so that he took the ten-dollar bill from her hand and paid for the gas. She said she did not know how much gas he bought. He then told her to go to Birmingham. She started toward the Interstate but got caught by a train and he told her to go another way and she told him there was no other way. He said he was meaning to go to Birmingham and for her not to start anything. He told her, “White folks are behind me and I have got to get out of town.” She said she was scared and told him she would get him to Birmingham, “just don’t kill me.”

As she was driving on the Interstate, he told her she had “better be going to Birmingham,” and every once in a while, he asked her how far they were from Birmingham. On the trip he told Mrs. Hammond, “I have been locked up most of my life and as soon as they catch me I will be locked up again. So life don’t mean a damn thing to me.” She asked him if he was going to kill her and he said, “No, I am not going to kill you, but you just get me to Birmingham.” Mrs. Hammond continued to drive and just before reaching. Birmingham, the robber made an indecent proposal to her and she started crying and told him that she didn’t want to do that. He told her if she was going to cry about it, he wouldn’t bother her and said, “As soon as we get to Birmingham, I will let you go.”

She stopped at the Roebuck Plaza and told him they were in Birmingham and he could get out so that she could go back to Gadsden as it was time for her to be back saying, “Please let me go. The people from U.P.S. will be looking for me because my schedule time is up.” He told her he wanted some cigarettes and forced her to go in a drugstore in the mall with him. He gave her a one-dollar bill and told her to buy the cigarettes, “but don’t try anything. Just get the cigarettes.” After buying the cigarettes they went outside and he told her if she would call a taxi, he would let her go. She stated that at this time he had the pistol stuck in the band of his pants. There was a telephone booth outside the drugstore and she found a taxi number in the directory and started to dial, but he took the receiver from her and dialed the number himself. He decided not to wait on the taxi and ordered Mrs. Hammond to drive him to the bus station. She did not know how to find the bus station and he ordered her to stop and get directions saying, “but that is all you had better say.”

She found the bus station and parked and kept pleading with him to let her go but he ordered her to go in the bus station with him to buy a ticket. When they got inside the bus station, he did not go to the ticket window but saw a porter and told him to order a taxi and to tell the cab driver to come to the front of the bus station. She kept asking him to please let her go. She told him if he would let her go, she would not tell anyone about what he had done and said, “I won’t even identify you if you will just let me go.” The cab driver arrived and the bandit pulled his pistol and pointed it at him when the cab driver refused to take them to Bessemer and forced the driver to take them to Bessemer and stop at the bus station. On the way to Bessemer the bandit pointed his pistol at the cab driver and told him to hand over his wallet. The cab driver showed him that he did not have any money. When the cab driver stopped at the bus station in Bessemer, he managed to escape. The bandit told Mrs. Hammond she was going to walk the streets of Bessemer and in that area of Jefferson County looking for an automobile with keys left in the ignition. Mrs. Hammond stated they walked for hours and it was getting dark. He took her behind a church and put her on the ground and told her, “One thing you know I have got to do. I have got to_ you.” She begged him not to do that and upon objection by defense counsel, the Court cut off further questions along this line.

Mrs. Hammond further testified that she was under the bandit’s control and dominion for six or seven hours and was never out of his sight from the time he first entered her delivery van in Gadsden until he let her go behind the church somewhere in the Bessemer area. During this period of time he constantly threatened her and she had an opportunity to see his face many, many times. She stated that she was scared for her life during the entire time and was afraid to try to escape for fear that he would shoot her in the back. She further stated that she could not be mistaken that appellant was the man who kidnapped and robbed her and she made a positive in-court identification of appellant as the bandit who robbed her and forced her at pistol point to drive him to Birmingham. Her husband came to Birmingham and carried her back to Gadsden.

The defense called W. A. O’Bryant, a detective with the Gadsden Police Department, who testified that on the date this robbery was committed there were no other criminal charges pending against appellant, either before or after the instant charge, to cause him to be fleeing from the police.

The evidence presented by the State was uncontradicted. Appellant did not take the witness stand in his behalf during the trial in chief.

At the conclusion of the State’s case, appellant made a motion for a mistrial because of the testimony of Mrs. Hammond to the effect that the defendant told her that he had spent most of his life locked up and if he got caught he would be locked up again, “so life don’t mean a damn thing to me.” It is appellant’s contention this statement was highly prejudicial as it tended to show that appellant was guilty of other crimes and was calculated to inflame the minds of the jury. The record reflects that appellant voluntarily made this statement to Mrs. Hammond during the enforced trip to Birmingham. Defense counsel did not object to this statement of appellant or move for a mistrial or ask the Court to instruct the jury to disregard the statement. This statement of appellant went unnoticed by defense counsel until the State had rested. This motion was overruled.

Appellant’s counsel moved to exclude the State’s evidence on the ground that the State had failed to prove the elements of the crime of robbery. This motion was likewise overruled.

Appellant further claims the Court was in error in overruling his motion for a continuance.

The granting or refusing of a motion for a continuance is largely within the sound discretion of the trial court and the exercise of such discretion will not be disturbed on appeal except for abuse. Haynes v. State, 40 Ala.App. 106, 109 So.2d 738; Fletcher v. State, 291 Ala. 67, 277 So.2d 882; 6A Ala.Dig. Criminal Law, ©=586.

In Walker v. State, 265 Ala. 233, 90 So.2d 221, it was held that the trial court did not abuse its discretion in refusing to grant such a motion where the Court-appointed attorney had ten days in which to prepare the case for trial.

In Jarvis v. State, 220 Ala. 501, 126 So. 127, the Court held that eight days was sufficient time in which to prepare the case for trial.

In the instant case appointed counsel had nearly three weeks to prepare this case for trial and there was no error in refusing the motion for a continuance.

The three essential elements of the offense of robbery are: (1) felonious intent, (2) force, or putting in fear as a means of effecting the intent, and (3) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. Douglass v. State, 21 Ala.App. 289, 107 So. 791; Hardis v. State, 28 Ala.App. 524, 189 So. 216; Cobern v. State, 273 Ala. 547, 142 So.2d 869.

On the question of asportation we find the following statement of the law in 77 C.J.S. Robbery § 3, pages 450 and 451:

“In order to constitute robbery there must be a taking or asportation. In other words, it must appear that the property was taken from the possession of the victim into that of the robber. However, the crime is consummated when the robber acquires possession of the property, even if for a short time, and it is not necessary that the property be taken into the hands of the robber, or that he should have actually carried the property away, out of the physical presence of the lawful possessor, or that he should have made his escape with it. Further, the distance the property is taken may be very small, the slightest change of location whereby dominion of the property is transferred to the offender being sufficient to establish asportation. His subsequent disposition of the property taken is immaterial, and thus, if he reduces the property to his possession, the offense is complete notwithstanding he later abandons it. The taking away is a transaction which continues as the perpetrators depart from the place where the property was seized, and may, under appropriate circumstances, be deemed to continue even after such departure from the place of seizure.”

The evidence clearly shows that Mrs. Hammond was a captive prisoner from the time appellant entered the package van and pointed the pistol at her and ordered her to drive him to Birmingham. The crime of robbery was committed shortly after he entered the vehicle with a gun and demanded her money and removed the money from her wallet in her presence. She was a kidnapped and helpless victim during the ride to Birmingham. True, Mrs. Hammond was present at all times. However, her status was that of a robot in carrying out the orders of appellant. Root v. State, 32 Ala.App. 253, 25 So.2d 180, cert. denied, 247 Ala. 514, 25 So.2d 182; Lambert v. State, 48 Ala.App. 600, 266 So.2d 812.

A defendant has no right to receive a mental examination as to his sanity whenever he requests one and, absent such a right, the trial court is the screening agent as to such request. Pace v. State, 284 Ala. 585, 226 So.2d 645.

As we have pointed out appellant withdrew his special plea of not guilty by reason of insanity, and he abandoned the question of his competency to stand trial. This was done with a full understanding of his rights as shown by the record.

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

AFFIRMED.

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


author: F. MURLAND SMITH, Circuit Judge.

text:
    James Henry BORDEN alias Junior Borden v. STATE.
    8 Div. 777.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.

      William H. Rogers, Moulton, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   F. MURLAND SMITH, Circuit Judge.

The Defendant was indicted and tried for Murder in the First Degree. A jury convicted him of Murder in the Second Degree and fixed his punishment at imprisonment in the penitentiary of Alabama for thirty-two (32) years.

On arraignment the Defendant pleaded not guilty and not guilty by reason of insanity. The Defendant filed a motion requesting a psychiatric examination by the Forensic Evaluation Board at Bryce Hospital, the state agreed to such examination and the Trial Judge ordered the examination. Said board reported its findings to the Court that the Defendant was mildly mentally retarded but was competent and would be able to assist his counsel in the preparation of his case and trial.

The Defendant filed a motion for a change of venue and after a lengthy evi-dentiary hearing the Trial Court denied the motion.

The evidence indicates that on February 8, 1975, that the Defendant and his cousin Bob Peoples and their wives went to the store of Mr. Harold Young in Lawrence County, Alabama, about 7:30 o’clock P.M. and waited around until all of the customers left the store and Bob Peoples and the two women went into the store, Peoples being armed with a shotgun and while Peoples and the women were in the store the Defendant filled his automobile with gasoline from the pumps in front of Young’s store. Peoples and the women robbed Young and Peoples forced him into the Defendant’s car at gunpoint. Peoples, the two women and the Defendant all got into the car with Mr. Young and drove some distance to a mountainside where they turned the car around and Mr. Young was forced out of the car and carried to a clearing just off the road where he was forced to lie down on the ground and' Peoples put the gun to Young’s temple and shot him in the head and Mr. Young died from said gunshot wound. Peoples and the Defendant got back into the car and together with their wives rode to another mountainside where they threw away the gun used to kill Mr. Young. They returned to the City of Moul-ton and remained a few hours before departing for the State of Michigan late at night on February 8th or early morning on February 9th. Sometime during the night of February 8th the body of Mr. Young was found and one Sizemore, the coroner of Lawrence County, went to the scene and identified Mr. Young and determined the cause of death to be the gunshot wound in the head. On February 13th the Defendant, Peoples and their wives returned to the City of Moulton from the State of Michigan and were promptly arrested and given their Miranda warnings at that time. Sometime later that night the Defendant was carried to the county jail in Lauderdale County and upon his arrival at the Lauderdale County Jail he was interviewed by Officer Haney, a state investigator, in the presence of some other officers. He was again given his Miranda warnings and asked if he understood his rights and told Officer Haney that he did understand his rights and thereafter made an oral confession to Officer Haney. Later that night he returned to Lawrence County with some officers in an unsuccessful attempt to recover the gun used to kill Mr. Young. He was not given any Miranda warnings at the commencement of or during the trip to Lawrence County to hunt the gun and was returned to the Lawrence County Jail sometime around midnight. Three or four days later Coroner Sizemore questioned the Defendant for several hours in the Lauderdale County Jail and, as a result of such questioning, produced a written statement which the Defendant signed and initialed each page of, admitting his participation in the events culminating in the death of Mr. Young. He was given his Miranda warnings before the questioning commenced and again before he signed the written statement.

After the Defendant was adjudged guilty of Murder in the Second Degree, his attorney filed a motion for a new trial alleging that the evidence in the cause showed conclusively that the killing was Murder in the First Degree and that the jury was not authorized to find the Defendant guilty of Murder in the Second Degree under such evidence. The Trial Judge overruled the motion for a new trial and his action is here assigned as error.

During the course of the trial after a voir dire hearing out of the presence of the jury, the Trial Judge admitted into evidence the oral statement of the Defendant given to Officer Haney and the written statement given to Coroner Sizemore, all over the Defendant’s objection. The admission of these two statements into evidence are assigned as errors in this cause.

During the course of the trial on two occasions, the prosecutor asked improper questions about a prior conviction of the Defendant. The Defendant objected to the questions and the Trial Court sustained the objection and promptly admonished the jury to disregard the questions. During the closing argument, the Defendant objected to the following remark of the prosecutor— “In an incredible way like slaughtering pigs” — and moved for a mistrial. The Court overruled the objection to the argument and denied the motion for a mistrial and informed the jury that counsel had a right to argue the reasonable inferences from the evidence. The Defendant assigned as error that the two improper questions about prior convictions and argument by the prosecutor shows injection of prejudice into the record that could not be eradicated from the mind of the jury.

The Defendant contends that it was error to admit either the oral or written statement into evidence on the grounds that the Defendant did not have the mental capacity to voluntarily and intelligently admit the facts contained in the statements and, as to the written statement, contends additionally that Coroner Sizemore took an unfair advantage of the Defendant in obtaining the written statement. Insofar as the Defendant’s mental capacity is concerned, the record reflects that he was married, owned and operated his own automobile and was gainfully employed. The Trial Judge and the jury were able to observe the Defendant and his demeanor and determine the extent of his mental capacity and the jury to determine what weight and creditability they would give to his confessions.

The Courts of this state have uniformly held that prima facie, a confession is presumed to be involuntary and the burden is upon the state to overcome that presumption, and it is a question of fact for the Trial Court to determine from the evidence before it, whether the confession was voluntary or involuntary. The weight and credibility to be given to the confession is a matter within the exclusive province of the jury. We hold in this case that both confessions were properly presented to the jury and there is no error in the record. See: Price v. State, 52 Ala.App. 21, 288 So.2d 803; Jones v. State, 292 Ala. 126, 290 So.2d 165; Otinger v. State, 53 Ala.App. 287, 299 So.2d 333; Hegmon v. State, 50 Ala.App. 486, 280 So.2d 192.

The Defendant’s contention that the prosecutor injected prejudicial matters into the record is assigned as one error and argued as one, but, should be treated separately. Insofar as the claim of error by the prosecutor asking improper questions, the Courts of this state have held that if a prejudicial matter is exhibited to the jury by questions or argument or otherwise and the Defendant objects and the Court sustains the objection and properly instructs the jury to disregard such matter, that the action of the Court is not erroneous unless the matter so exhibited creates ineradicable bias or prejudice. See: Luschen v. State, 51 Ala.App. 255, 284 So.2d 282; Watson v. State, 266 Ala. 41, 93 So.2d 750; Lee v. State, 265 Ala. 623, 93 So.2d 757; Espey v. State, 270 Ala. 669, 120 So.2d 904.

In regard to the contention of error regarding the argument of the prosecutor, our Courts have said in argument to a jury, counsel may not argue as a fact that which is not in evidence, but he may state or comment on proper inferences from the evidence and may draw conclusions from the evidence based on his own reasoning. See: Adams v. State, 291 Ala. 224, 279 So.2d 488.

The assignment of error that the Trial Court erred in failing to grant a new trial is without merit and this Court is not prepared to say that a jury is unauthorized to find a Defendant guilty of a lesser included offense when properly instructed by the Trial Court as to the elements of the lesser included offense. See: Hunter v. State, 156 Ala. 20, 47 So. 133.

We have considered the entire record under Code 1940, T. 15, § 389, including the following: the clerk’s certificate; the court reporter’s certificate; the statement of the organization of the court; the indictment (caption, charge, conclusions, and required endorsements); judgment entry (arraignment, presence of counsel, empanelling of the jury, verdict, adjudication of guilt, allo-cutus, sentence and notice of appeal); proceedings on the motion for new trial; and each ruling of the trial judge adverse to the appellant (including without limitation the written charges refused appellant).

From this examination we conclude that error is not made to appear.

The foregoing opinion was prepared by Honorable F. Murland Smith, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, T. 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby affirmed.

AFFIRMED.

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


text:
    Johnny Lee OWES v. STATE.
    1 Div. 694.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Donald E. Brutkiewicz, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant was convicted of rape. The jury fixed punishment at life imprisonment. Judgment on the verdict was duly entered and this appeal in forma pauperis is from this judgment.

The evidence of the prosecutrix and victim is briefly to the effect that she was enroute home alone in her automobile at night in the early morning hours from at least two night spots in Mobile, when her motor faltered and defendant also traveling in an automobile, stopped his car about fifteen feet from the faltered car, got out, proceeded to open the door of the victim’s automobile, threatened her with a knife, dragged her into his car, put her on the back seat, and drove to a nearby cemetery where the alleged rape occurred. We will omit details except where it is hereafter necessary to illustrate in this opinion.

After the ordeal, he took her back near to where she had left her car engine running and lights on.

An observer testified that she saw the abduction and called the police who, after talking with the victim, proceeded with an investigation that led to the arrest of appellant-defendant. Appellant is black and the victim white.

The defendant took the witness stand. He admitted being acquainted with the victim and contended that on at least two occasions he had had conjugal or sexual relations with her at a local hotel or rooming place; that such relationships were for pay; that he did not have sexual relations with her on the night or early morning in question; and in fact, he denied that he was guilty as the victim accused and testified. The jury convicted and we see no reason to disturb the verdict.

We will now discuss the appellant’s contentions of error on the part of the trial court.

It appears that the victim noted the license plate number 2-4678, of defendant’s automobile; she gave this number to the police. The officer testified that he found “who it belonged to.” Defendant’s counsel objected. After the answer that he found to whom it belonged, he then testified that he found it on Glennon Avenue. The State asked:

“Q Who owned the car, then, if you know?”

Again, defendant objected. The court allowed the witness to answer:

“A Berneice . . . ”

Defendant made a motion to exclude the answer which the court denied:

“Q Do you know the relation of Ber-neice Olds to this man right here?

“A Yes.

“Q What is that?”

Again defendant’s further objection was overruled:

“Q What is it?

“A Nephew.”

We see no merit in the objections founded on the best evidence rule which counsel asserted. The evidence was collateral and a link in an investigative chain that led to the identity and the arrest of defendant. Knight v. State, 50 Ala.App. 39, 276 So.2d 624(1); cert. den. 290 Ala. 368, 276 So.2d 628.

Appellant next asserts error in the cross-examination over his objection seeking to elicit obscene comments by defendant as to the inability of the victim to give him complete sexual satisfaction during the sexual ordeal. The comments, if made, were a part of the res gestae and admissible. Hallman v. State, 36 Ala.App. 592, 61 So.2d 857; cert. den. 258 Ala. 278, 61 So.2d 861; Clark v. State, 21 Ala.App. 597, 110 So. 562; Vol. 6 Ala.Digest, Criminal Law <s=>363(F), p. 282. The fact that defendant denied being the offender did not preclude this cross-examination seeking to elicit this testimony. The cross-examination was permissible.

A third contention of error is that the argument of the district attorney to the jury was prejudicial and the ruling of the court with respect thereto was error.

It appears in the record that defendant’s objection was as follows:

“BY MR. BRUTKIEWICZ: I object to the prosecutor referring to Eddie White and Cornelius Churchman in making inquiries to the jury where are they because those witnesses are equally accessible to both sides.
“BY MR. VALESKA: Never heard of them.
“BY MR. BRUTKIEWICZ: Equally accessible. Judge, can we continue or is— those two people are equally accessible to both sides and to the defendant; therefore, error for the District Attorney to comment on the testimony of those two people.
“BY THE COURT: Overruled, go ahead.”

It is not clear what the district attorney said about White and Churchman to the jury. We will not hold the court in error on this statement of the record. We are not informed as to what was said. The alleged remarks as appear in the objection are too fragmentary. Pate v. State, 32 Ala.App. 365, 26 So.2d 214; McGraw v. State, 34 Ala.App. 43, 36 So.2d 559, cert. den. 251 Ala. 123, 36 So.2d 560; Vol. 7 Ala.Digest, Criminal Law 1119(4), p. 315.

At another time, defendant objected to the argument of the deputy district attorney:

“ . . .we are going to object to the District Attorney making the statement, ‘Almost makes me upset to my stomach to listen to this testimony.’ The reason we make the objection is that it is improper for the District Attorney to inject himself into the argument, what he thinks or what makes himself sick is not germane to the argument that he should be giving.”

This argument merely tended to emphasize the immorality and vulgarity of the attack and was not objectionable. We will not charge the trial court with error to reverse.

We have read all the evidence and reviewed the entire record. We think it is free of rulings that were prejudicial to defendant.

The judgment is due to be affirmed and it is so ordered.

The foregoing opinion was prepared by Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

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


author: JACK W. WALLACE, Circuit Judge.

text:
    Marie SLAY v STATE.
    1 Div. 733.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.

      T. M. Brantley, Bay Minette, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   JACK W. WALLACE, Circuit Judge.

Appellant was indicted for murder in the first degree. Upon trial she was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of ten years.

I

During the time the jury was being struck a juror was challenged for cause by the defendant on the ground that such jur- or was over sixty-five years of age. The defendant’s challenge was denied by the Court for the stated reason that the juror had served during the week and had waived his exemption and was willing to serve.

The record of this case does not show the entire proceedings held by the court on its voir dire examination to determine the qualifications of the jurors but it is presumed that the court performed this “imperative” duty, Bastón v. State, 216 Ala. 275, 113 So. 300.

Due to the fact that a person over 65 years of age “shall [not] be required to serve on a jury or to remain on the panel of jurors unless he is willing to do so.”, Title 30, Sec. 21, Ala.Code 1940, in the absence of a record showing otherwise this court will presume that the lower court made an inquiry as to age in order to give effect to this statutory requirement of willingness.

The transcript (page 6) shows that during the time the jury was being struck, the exact time during such striking is not shown, two of the jurors made known the fact that they were over 65. One such juror, Mrs. Malone, asked to be excused upon this ground. The other juror, Mr. Mock, was challenged by the defendant upon this ground but his challenge was overruled by the Court. The fact that Mrs. Malone came to the bench and informed the court that she was over 65 strengthens the presumption that the court performed its duty by making inquiry as to age. No reason is shown in the record for Mrs. Malone’s failure to make a prompt response to such inquiry or why, other than vanity, she felt compelled to approach the bench with such information. It is also unclear how the juror Mock knew to hold up his hand and state his age unless he had been asked previously to do so if he was over 65 and had neglected to give such information.

Upon completion of the striking of the jury, the 12 selected, which included Mr. Mock, were sworn to try the issue in this case but before any further proceedings were had the following occurred:

“REPORTER’S NOTE: After the 12 men and women were seated in the jury box, and before the trial started, the following was dictated into the Record:
MR. BRANTLEY: I would like to have put in the record the fact that one of the jurors who said he was over the age of 65, a Mr. Mock, and I challenged him for cause and the Judge did not grant my request, and I request a mistrial on the ground he is not qualified.
THE COURT: Let the record show that this man, Mr. Mock, was a member of the regular panel for the entire week, and had been serving all of the week, and had waived the fact that he was over 65, and agreed to serve as a juror. While the Attorneys were striking the jury, a Mrs. Malone came to me and said she was over 65 and asked to be excused, and another juror held up his hand (Mr. Mock) and said he was over 65. Mr. Brantley challenged him for cause and I ascertained that he had been on the regular panel for the week and denied the challenge, and he is now on the jury selected to try this case, and I deny the motion; and Mr. Brantley excepts.”

II

The first claim of error is that the Court erred in not allowing defendant’s challenge for cause, such challenge being made before selection of the jury was complete and before the jury was sworn. The State contends that the defendant was negligent in not discovering such ground for challenge until the striking of the jury had begun and, therefore, such ground was waived.

Although a juror over 65 years of age may waive his exemption and serve on a jury or remain on the panel (Title 30, Sec. 21) it is the policy of the law not to have persons over or under age on the jury and by express terms of the statute, Title 30, Section 55, Code of Ala., “It is good grounds for challenge [of a juror] by either party _ _ _ that he is _ _ _ over sixty-five years of age”. Subdivision 8.

In a capital case the jury must be sworn for the trial of that particular case, Title 30, Sec. 64, and until the jury is thus sworn a challenge for cause may be made at any time. Harris, et al. v. State, 177 Ala. 17, 59 So. 205; Henry v. State, 77 Ala. 75; Spigener v. State, 62 Ala. 383, 387; Carson v. Pointer, 11 Ala.App. 462, 66 So. 910.

The State argues that the defendant was negligent in not making inquiry as to juror’s qualifications and that he had, therefore, waived his right to claim disqualification. We are not dealing with a case where discovery and objection was made after verdict. Here the defendant made his challenge before the final selection of the jury and before it was sworn. This court does not feel that a defendant, in order to acquit himself of a lack of diligence, should be forced to conduct a voir dire examination which would be a repetition of that already conducted by the court. Edwards v. State, 28 Ala.App. 409, 186 So. 582. If the court had carried out its duty and asked the jury panel whether any member was over 65 years of age and had received no response, there should not be a waiver imposed upon a defendant who failed to make the same inquiry on his voir dire examination. And if, as in this case, after the process of jury striking had commenced, a juror made known to the Court for the first time that he or she was over this age, a challenge made at that time, before the jury was sworn, is timely and should be granted.

It is apparent that the Court’s denial of defendant’s challenge of Juror Mock was based upon the Court’s belief that the consent of such juror to serve, such consent having been given at some previous time during the week, waived any infirmity he might have as to his qualifications as far as age is concerned. Such willingness on the part of a juror to serve on a jury or to remain on a panel does not remove the statutory challenge for cause on this ground and “it is not within the province of any court to modify, change, or alter the statutes of the state of Alabama, and no trial judge is vested with the exercise of discretion to this end” _ _ _ “it is the duty of the Court to ascertain the qualifications of a juror, and when it ascertains that he is disqualified, either by his own oath, or otherwise, a challenge for cause should be sustained.” Reddock v. State, 23 Ala.App. 290, 124 So. 398.

Ill

The error indicated necessitates a reversal of the judgment of conviction from which this appeal is taken. Other questions here presented may not arise upon another trial.

The foregoing opinion was prepared by Hon. JACK W. WALLACE, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    Hayward L. GUNTER v. STATE.
    3 Div. 571.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Hayward L. Gunter, pro se.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   PER CURIAM.

This is an appeal from the Circuit Court of Escambia County from a judgment dismissing appellant’s petition for a writ of habeas corpus.

April 12, 1976 appellant filed a petition for a writ of habeas corpus in the Circuit Court of Escambia County against the Warden of Holman Prison where appellant avers he is an inmate.

He avers in his petition that he is not now held in unlawful custody, and in violation of the laws and Constitution of the United States, but that on January 17, 1977 he will be.

The state filed a motion to dismiss appellant’s petition because it appears from the facts stated in said petition that the appellant is confined under a lawful sentence, and is not now unlawfully detained.

We hold that the trial court did not err in dismissing appellant’s petition for a writ of habeas corpus because it appears on the face of the petition that he is not unlawfully detained.

Code of Alabama, Title 15, Sec. 8 reads as follows:

“The judge or justice to whom the application is made must grant the same without delay; unless it appears from the petition itself, or from the documents thereunto annexed, that the person imprisoned or restrained is not, under the provisions of this chapter, entitled to the benefit of the writ . . . ”

Cooper v. Wiman, Warden, Kilby Prison, 273 Ala. 699, 145 So.2d 216; Ex parte Rockholt, 271 Ala. 68, 122 So.2d 162; Magee v. State, 42 Ala.App. 71, 152 So.2d 443; Cazalas v. State, 42 Ala.App. 72, 152 So.2d 444; Phillips v. State, 40 Ala.App. 698, 122 So.2d 551.

There being no other rulings of the trial court complained of in appellant’s brief, we have examined carefully the entire record, and find from such examination that there is no error in the record prejudicial to the appellant.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, 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: RANDALL L. COLE, Circuit Judge.

text:
    Charles Gary JOHNSTON v. CITY OF BIRMINGHAM.
    6 Div. 158.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.

      Robert R. Bryan, Birmingham, for appellant.
    Sheldon L. Watkins and William C. Walker, Birmingham, for appellee.
   RANDALL L. COLE, Circuit Judge.

The appellant, Charles Gary Johnston, was convicted in the Recorder’s Court of the City of Birmingham on a complaint charging assault and battery. He appealed to the Circuit Court of Jefferson County for a de novo jury trial. The jury returned a verdict of guilty and fixed a fine of $200. The trial judge imposed as additional punishment a four-month term in the city jail. This appeal is from the conviction in circuit court.

The single question presented is whether the trial judge prejudiced the appellant during the course of the trial by questioning a defense witness. Our conclusion is that he did not and we affirm the conviction.

The victim of the assault and battery was Brian Lindsey. The evidence was that while Lindsey and a companion, Daryl Wideman, were traveling along a Birmingham street on July 18, 1975, the appellant shouted to them from a car stopped at an intersection. Lindsey stopped his car and the appellant accused him of speeding. Lindsey responded that he was not speeding and that the appellant should mind his own business. The appellant got out of his car armed with a broomstick and attacked Lindsey. A fight ensued which left the appellant on the ground. Lindsey and Wideman fled in Lindsey’s car. They were pursued by the appellant and his companion. The companion drove and the appellant sat on the passenger’s side with a shotgun extended out the window. The two cars traveled at high speeds through stop signs and traffic lights until finally the Lindsey car escaped unnoticed onto a side street, but not before buckshot had shattered the back glass of the car, penetrated the driver’s head rest, and caused Lindsey slight personal injury.

Approximately three or four weeks later, Lindsey saw the appellant and recognized him as the assailant, thus leading to the appellant’s arrest. At the trial, the appellant was identified by Lindsey, Wideman, and a witness who had observed a portion of the chase.

The appellant entered a plea of not guilty and offered evidence seeking to prove that he was not the assailant. In support of this contention, he attempted to show that within less than a week after the crime Lindsey came into the repair shop where he worked but that Lindsey did not identify him at that time as being the assailant. The appellant called as a witness, Jerry Brasfield, a fellow employee at the repair shop. Bras-field testified that during the latter part of July, 1975, Lindsey brought his car with- a shattered back glass into the shop for repair. At that time the appellant was in Lindsey’s presence and within his field of vision, but Lindsey showed no reaction to the appellant’s presence.

After defense counsel and the prosecutor had examined the witness Brasfield, the trial judge asked the witness a series of questions as follows:

“THE COURT: Let me ask a couple of questions. On that day or the next day or — Yes, on that day or the next day, did you talk with the defendant, Mr. Johnston, with reference to Brian — whatever his last name is — Lindsey? Did you point Lindsey out to him or did he point Lindsey out to you or was there any talk between you both about Lindsey?
“A Yes, sir.
“THE COURT: Did the defendant, Mr. Johnston, know Lindsey?
“A No, never seen him.
“THE COURT: He’s never seen him but he pointed him out to you?
“A I misunderstood you.
“THE COURT: Maybe you might have. I want to know on the day this occurred or the day after or the day after that did the defendant, Mr. Johnston, point out or comment to you that Lindsey was in there?
“A The day we fixed his glass, right? “THE COURT: Yes, or the day after you fixed his glass. Did the defendant say to you, well, Lindsey was in here? Did he talk to you about Lindsey?
“A No.
“THE COURT: When did you next see Lindsey after the glass was fixed?
“A After I fixed the glass, I left. “THE COURT: When did you next see Lindsey after the glass was fixed?
“A After I fixed the glass, I didn’t see him.
“THE COURT: You have never seen him since? Until today?
“A I have seen him when he pulled his car in. After I fixed the glass, I left the shop.
“THE COURT: When did you next see Lindsey who testified today?
“A Three or four months.
“THE COURT: And that is the first time since?
“A Right.
‘ THE COURT: And you now tell us that this man who stood in the door was the man you saw back in July or the first part of August?
“A Right.
“THE COURT: Have you talked to this defendant at any time today about this man, or identifying this man today?
“A No.
“THE COURT: That’s all.”

At the conclusion of the judge’s questioning, the appellant moved for a mistrial, and the motion was denied.

The appellant contends that the manner in which the trial judge questioned the witness east doubt upon the credibility of the witness and constituted an improper expression of the judge’s opinion about the evidence. Clearly, it is improper for a trial judge to make known to the jury his opinion of the evidence. The trial judge should be very careful not to make any remark or ask any question which assumes the accused’s guilt, for jurors are prone to weigh heavily such judicial comment. Holmes v. State, 22 Ala.App. 373, 115 So. 849 (1928); Dennison v. State, 17 Ala.App. 674, 88 So. 211 (1921).

However, a trial judge is more than a mere moderator. It is his duty to conduct an orderly trial and to make certain as far as possible that there is no misunderstanding of the testimony of the witnesses. He may ask any question which would be proper for the prosecutor or defense counsel to ask so long as he does not depart from a standard of fairness and impartiality. Holmes, supra.

The questions of the trial judge in this case were not unfair. They did not assume the appellant’s guilt or divulge the judge’s opinion of the evidence. If any juror construed the questions as an expression of the judge’s opinion, that impression should have been dispelled by the judge’s instruction to the jurors that nothing he had said or done throughout the trial should be viewed by them as an indication of his opinion about the evidence.

The appellant received a fair trial free of prejudicial error and the conviction is affirmed.

The foregoing opinion was prepared by Honorable Randall L. Cole, Circuit Judge, temporarily on duty on the Court of Criminal Appeals pursuant to subsection (4) of § 38, Title 13, Code of Alabama 1940, recompiled 1958; the Court has adopted his opinion as its own.

AFFIRMED.

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


text:
    Stanley Ralph SPARKS et al. v. STATE.
    7 Div. 470.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    None for appellants.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellants, Stanley Ralph Sparks, John Clarence Clark and Ellis Mashburn, were convicted in the Cherokee County Court, where they were represented by counsel employed by them. They were each charged, by affidavits, with violating Regulations Numbered 43A(3) and 40E of the Department Of Conservation And Natural Resources, duly promulgated by the Commissioner of said Department, on October 1, 1975. By agreement the six cases were consolidated and appealed directly to this Court, and submitted on brief of appellee.

Appellants contend that the trial court erred in overruling their motions to dismiss the cases against them on the grounds that the regulations they were charged with violating were made in violation of Article 4, Section 104, Subsection 14 of the Constitution of Alabama of 1901, which reads as follows:

“Sec. 104. The legislature shall not pass a special, private, or local law in any of the following cases: . . . (14)

Fixing the punishment of crime.”

Regulation No. 43A(3) reads as follows:

“(3) It shall be unlawful to use nets of any type for commercial fishing purposes in all impounded public waters of Alabama in which Morone saxatilis, commonly known as saltwater striped bass, have been stocked. Nothing in this regulation shall be construed so as to preclude the lawful use of set lines, trot lines, or snag lines for the taking, killing or catching of commercial or non-game fish from said waters. The following lakes have been stocked: Lake Martin; Lake Jordan; Lake Mitchell; Lay Lake; Jones Bluff; Logan Martin; Neeley Henry and Weiss Lake. The penalty for violating this regulation is provided for by Title 8, Section 81(28), of the Code of Alabama 1940, as amended.”

Regulation 40E reads as follows:

“40. PROHIBITED METHODS OF TAKING FISH. It shall be unlawful:

. E. To remove or attempt to remove fish from any hoop net, gill net, fyke net, trammel net, slat trap or slat basket, or to move, set or reset any of the said fishing gear listed in this regulation between the hours of sunset and sunrise.”

Under the decision of Judge Harris in the case of John Sanders and Bernard Ray Tanner v. State, 53 Ala.App. 534, 302 So.2d 117, and Judge Tyson, in the case of Wayne Cassell, alias v. State, 55 Ala.App. 502, 317 So.2d 348, and the authorities cited therein, we hold that the legislature has the constitutional right to provide for the creation of administrative boards and commissions with authority to enact regulations and change them from time to time, and that a violation of them will be a criminal offense.

We hold that Regulation 43A(3) and 40E are not special, private or local regulations, and therefore are not prohibited by Article 4, Section 104, Subsection 14 of the Constitution of Alabama of 1901.

Appellant Sparks being tried by the Judge of Cherokee County Court, without a jury, complains that the trial court erred in denying his motion to exclude the evidence in his cases because there was no evidence before the court to connect him with the alleged offense. We have carefully reviewed the entire record before us and from such review we hold that there was sufficient evidence in both cases against Sparks to sustain the judgment against him for violating Regulation 43A(3) and 40E.

Appellants, John Clarence Clark and Ellis Mashburn, being present with their Attorney asked the court to allow them to enter pleas of guilty to the charges against them.

It appears from the record before us that the Court, after fully informing appellants, Clark and Mashburn, of all their constitutional rights, with their Attorney present, and also their right to either appeal to this Court or to the Circuit Court of Cherokee County and have a jury trial there, and their rights in the Circuit Court, and concluding that they understood the nature of the charges against them, and their rights, and the consequences of entering a plea of guilty to the charges against them, they intelligently waived their constitutional rights, and understandingly entered a plea of guilty. They were found guilty on their pleas, and duly sentenced to pay a fine.

We have examined carefully the entire record before us and find from such examination that there are no errors in the record prejudicial to the appellants.

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

Affirmed.

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

      . There was a fine and cost assessed against each defendant.