text:
    CITY OF ENTERPRISE, a Municipal Corporation v. Robert L. HERRING.
    Civ. 1895.
    Court of Civil Appeals of Alabama.
    June 20, 1979.

      Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for appellant.
    George E. Trawick, Ariton, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case. Plaintiff received an injury to his back while moving logs. He was determined by the trial court to have sustained as a result of the injury a permanent partial disability resulting ⅛ a sixty-five percent loss of ability to earn. We affirm.

The issue is whether the evidence sustains the award or, put another way, whether the court could lawfully find a sixty-five percent loss of ability to earn when medical evidence of physical disability did not exceed ten percent of the body as a whole.

The evidence was that claimant had worked for the City of Enterprise for a total of about seventeen years. He was classified as a heavy equipment operator. He was forty-eight years of age at the time of injury and had always worked at manual labor. He had only a third grade education. After his injury he immediately reported to his supervisor and sought medical attention the next day. He thereafter went to two orthopedists for treatment and submitted to a myelogram. The physicians found extensive arthritic spurs of the lumbar region and diagnosed his injury as a back strain aggravating his arthritis. He was advised to wear back braces and take certain exercises. Lifting was limited to no more than twenty-five pounds. After continuing to report severe back pain radiating into his leg without improvement, claimant was advised to try a pain-blocking device called a percutaneous stimulator. He has used the device regularly and receives some relief from pain but not total. There was testimony that he could do light work but could not do heavy manual labor. He testified that he had sought light work with the City and others but was unable to secure such work. The City, for six months after the injury, supplemented his compensation insurance sufficiently to total his regular wages before his injury. After six months, compensation and employment were terminated.

The City contends on this appeal that there was insufficient proof to sustain the finding of a sixty-five percent permanent partial disability. It is to be noted that the trial court correctly pointed out in its judgment that the testimony as to physical disability of the body is not the sole determinative factor in reaching the required factual conclusion as to the percentage loss of earning capacity. There are other factors such as education,-age, experience, etc. which affect employability and thus earning capacity, which are to be considered by the court. This has been said in prior decisions. Brooks v. Crimson Homes, Inc., 51 Ala.App. 252, 284 So.2d 279 (1973); B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971); Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278 (1957). In addition to the evidence which we have heretofore related, there was testimony that claimant had attempted to secure employment which his doctors stated he was physically able to perform but had been unsuccessful. He had attempted employment such as truck driving and been unable to perform. In fact, the evidence before the court with its reasonable inferences, was that claimant was unemployable because of his injury which, although of small physical disablement, prevented his performing the only jobs he was qualified to perform. He had no post-injury earning history; thus the record is devoid of evidence that he had any earning capacity at all in his disabled condition.

It has been said that the trial court is not bound in its ultimate conclusion of disability by expert testimony. Carroll Construction Co., Inc. v. Hutcheson, 347 So.2d 527 (Ala.Civ.App.1977). The court looks to the total picture framed by the evidence and what it sees of the claimant in reaching its decision. Having reached a conclusion of fact, and entered judgment, this court reviews such conclusion of the trial court only to determine if it is supported by any legal evidence. We review the judgment only to determine if it contains the proper application of law to the facts. Newman Brothers v. McDowell, 354 So.2d 1138 (Ala.App.1977); cert. denied, 354 So.2d 1142 (Ala.1978).

Defendant contends the finding of fact and conclusions of law made by the trial judge are insufficient under the requirements of § 25-5-88, Code of Alabama (1975). We do not agree. The court made sufficient finding of fact and conclusions as to the matters disputed, and specifically stated in the judgment that the only controversy was the degree of disability. Boatright v. Dothan Aviation Corp., 278 Ala. 142, 176 So.2d 500 (1965). We have also looked to the evidence ourselves and find the judgment sustained therein. Henderson v. Johnson, 49 Ala.App. 191, 269 So.2d 905.

Defendant contends the court erred in entering judgment for medical expense. We find no error here. Defendant’s complaint is that medical expense was not shown to be reasonable. We find no objection to the admission of the evidence on that ground. The trial court cannot be charged with error except upon its rulings and orders. Since it was not called upon to rule upon the admissibility of the testimony as to medical expense on the ground now charged, it cannot be charged with error on appeal. Rule 4(a)(3), ARAP.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Dorsey SPANN v. Elbo MARINE.
    Civ. 1769.
    Court of Civil Appeals of Alabama.
    June 27, 1979.

      Daniel F. Carmichael, Jr., of Dowling & Carmichael, Enterprise, for appellant.
   BRADLEY, Judge.

Following a jury verdict and judgment entered thereon in favor of defendant-buyer, Dorsey Spann, the trial court entered an order granting plaintiff-seller’s motion for a new trial. The defendant-buyer appeals from that order. The sole issue presented by this appeal is whether the trial court abused its discretion in granting the new trial. We find no abuse of discretion and affirm.

The basis for the complaint filed by Elbo Marine arose out of the sale and delivery of a used camper, a used boat, and a new boat trailer to buyer, for which buyer refused to pay. Judgment was demanded in the amount of $1,683.68. Buyer’s answer, as amended, denied the allegations in the complaint and further alleged that the condition of the goods in question breached a certain express warranty, made by the seller, /. e. that the goods were free from defects in materials and workmanship, and also breached implied warranties of merchantability and fitness for a particular purpose.

Among the grounds listed in the seller’s motion for a new trial was that the verdict is not supported by a preponderance of the evidence. The trial court granted the seller’s motion “in order to prevent irreparable injustice for it affirmatively appears that substantial ends of justice require examination of the facts by another jury.”

In view of another trial, we will not undertake to set out the evidence. Kennedy v. General Transport Co., 293 Ala. 455, 304 So.2d 896 (1974); Adams v. Lanier, 283 Ala. 321, 216 So.2d 713 (1968).

It is well settled that the granting or denying of a motion for a new trial is a matter resting primarily in the discretion of the trial judge and such exercise of discretion carries with it a presumption of correctness. Taylor v. Birmingham News Co., Ala., 341 So.2d 689 (1977).

The Alabama Supreme Court said in Clark v. Chitwood, Ala., 339 So.2d 1017 (1976):

Where the trial court grants a new trial without specifying the grounds therefor and one of the grounds in the motion is that the verdict is contrary to the evidence, the appellate court presumes that the trial court granted a new trial because it concluded that the verdict was contrary to the great preponderance of the evidence or was unjust in light of the evidence. In such cases, the appellate court will not reverse the trial court’s order unless the great weight of the evidence plainly and palpably shows that the trial court was in error in granting a new trial.

Where the evidence is in conflict and it cannot be said that the evidence plainly and palpably supported the verdict in favor of defendant, it is within the prerogative of the trial court, on plaintiff’s motion for a new trial, to review the evidence impartially, and if he has a well considered opinion that the great weight of evidence did not support the verdict, it is his duty to set it aside and grant a new trial. Harris v. Schmaeling, 270 Ala. 547, 120 So.2d 731 (1960).

After reviewing the evidence presented by this record, we are not persuaded that the great weight of evidence plainly and palpably shows the trial court was in error in granting the new trial. Accordingly, we find no reversible abuse of discretion in the trial court’s ordering a new trial.

The buyer cites to us several cases stating the “unwaivering rule” that if the evidence submitted, if believed by the jury, justifies the verdict, the motion for a new trial should be overruled. E. g., Griffin v. Respress, 281 Ala. 168, 200 So.2d 469 (1967). He also cites cases standing for the proposition that a new trial should not be granted simply because the trial court, sitting as the trier of fact, would have returned a different verdict, or because the verdict returned by the jury does not correspond with the trial court’s opinion as to the weight of evidence, or because the verdict is against a mere prepondérance of the evidence.

However, as the Alabama Supreme Court noted in Adams v. Lanier, 283 Ala. 321, 216 So.2d 713 (1968), such principles are for the guidance of the trial court in passing upon the motion for new trial, and not for the court reviewing the grant or denial thereof.

Nor do we find persuasive the buyer’s contention that the grant of a new trial deprives the buyer of his right to a trial by jury and invades the province of the jury. The power of the trial court to grant a motion for a new trial is an inherent power that exists to prevent irreparable injustice, City of Union Springs v. Evans, 286 Ala. 412, 240 So.2d 662 (1970); and this power is also granted by statute. Code of Alabama 1975, § 12-13—11. The granting of a new trial motion does not deprive a party of his right to a fair trial, but rather insures it.

Our review of the trial court’s order is guided by the principles set forth earlier in this opinion. In the case at bar the evidence was in conflict and it cannot be said that the evidence plainly and palpably supports the verdict in defendant’s favor. It was, therefore, within the discretion of the trial court to grant the seller’s motion for new trial. We find no abuse of discretion in the trial court’s action. This case is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: HOLMES, Judge.

text:
    Thomas SMITH v. Steve BROOKS.
    Civ. 1870.
    Court of Civil Appeals of Alabama.
    June 27, 1979.
    John A. Tinney, Roanoke, for appellant.
    No brief for appellee.
   HOLMES, Judge.

This is an action for damages.

Plaintiff filed a complaint for the return of livestock. Defendant counterclaimed for damages occasioned by the trespass of the animals and for the cost of keeping them. After an ore terns hearing, a judgment for $500 was awarded defendant on his counterclaim. Plaintiff appeals.

The dispositive issue on appeal is whether the judgment is supported by the evidence. We hold it is and affirm.

The record reveals the following: Plaintiff’s cows trespassed on defendant’s land and damaged his soy beans. Defendant employed a person to capture the animals. After looking for plaintiff for several days, defendant located him and demanded $400 for the return of the cows. Plaintiff refused. Defendant kept and fed the animals for forty-eight days.

Plaintiff sued defendant for the return of the animals and defendant counterclaimed for damages. At trial, defendant testified that the $400 demand was reasonable in that damages to his bean crop, the cost of hired labor, and lost time from his farming operation exceeded $400. In addition, defendant introduced evidence which showed that the cost of maintaining the cows for forty-eight days was approximately $240.

Plaintiff maintains that defendant’s initial demand of $400 was excessive and because it was exorbitant, plaintiff’s refusal to pay was justified. From this plaintiff argues that defendant is entitled to neither the $400 demand, nor the subsequent costs of maintaining the animals. We do not agree.

The law of Alabama provides alternative means by which an owner of trespassing livestock may pay damages and recover possession of his animals when they have been seized. Under § 3-5-12, Code of Ala.1975, the owner can settle the dispute, pay the seizor actual damages for trespass and maintenance of the livestock, and recover the livestock. Pursuant to § 3-5-12(a), if the parties cannot agree on fair compensation, the owner can pay such compensation into court prior to initiation of a lawsuit for its recovery, and if it is found at trial' that fair compensation was offered the seizor, the owner is not liable for damages which occur after payment into court. Finally, under § 3-5-12, an owner is entitled to possession after he pays such damages as are proven at trial and awarded the seizor.

In the instant case, plaintiff refused to pay defendant anything, notwithstanding the fact that defendant’s evidence amply supports the conclusion that the initial $400 demand was fair and reasonable. Furthermore, plaintiff refused or failed to tender into court that sum which, in his opinion, should have been fair compensation. Thus, defendant was entitled to recover the cost of maintaining the livestock after their capture, the cost of capture and damages for trespass, and in this regard, there is ample evidence to support the award.

It is clear in Alabama that if there is any evidence to support the trial court’s finding, we must affirm. 2A Ala. Digest Appeal & Error <s=> 1010.1(3) et seq. It is appropriate to quote what the Court of Appeals of Alabama said in American Home Building & Loan Ass’n v. Long, 24 Ala.App. 34, 36, 129 So. 793, 794-95 (1930):

To hold in line with the contention of appellant would in effect necessitate a ruling by this court that the judgment so rendered is manifestly and palpably against the evidence in this case, and that the preponderance of the evidence is decidedly adverse to the judgment pronounced and entered. This we cannot do under the general and well-settled principle of law that the verdict of a jury, or judgment by the court upon a trial without the intervention of a jury, should not be disturbed unless the adjudication reached below is far afield from the evidence and the law applicable thereto. A rule of this import is declared in the case of Cobb v. Malone, 92 Ala. 630, 9 So. 738. The rule therein stated has been approved and followed by innumerable decisions of the appellate courts of this state.

The judgment of the court below is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: DeCARLO, Judge.

text:
    Alfred HOLT v. STATE.
    6 Div. 182.
    Court of Criminal Appeals of Alabama.
    Oct. 25, 1977.
    Rehearing Denied Nov. 15, 1977.

      Benjamin Daniel, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Murder, first degree; life.

Alfred Holt was indicted by the grand jury of Jefferson County, and charged with the shooting death of Debra Kay Dabbs.

After a jury trial on January 21,1976, the appellant was found guilty and sentenced to life imprisonment.

This case involves the brutal murder of Debra Kay Dabbs during the early morning hours of March 6, 1975. The appellant, Alfred Holt, did not testify or offer any evidence in his own behalf at trial.

Nathaniel Holt, a fifth grader at Carey A. Tuggle School in Birmingham, Alabama, discovered the body of the victim while on his way to school on March 6, 1975.

Jack Parker was the deputy coroner of Jefferson County Alabama. On the morning of March 6, 1975, he went to Carey A. Tuggle School in response to a “call.” Upon his arrival, he made pictures of the scene and of the body of a white female. He observed some eighteen lacerations on the back of the body and one stab wound in the chest in the heart area. Further, the officer observed several bruises about the area of the head and three bullet wounds in the head.

Later the body was removed to Mercy Hospital and Parker observed an autopsy performed by Jay Glass, another deputy coroner.

Jay Glass, a pathologist assistant at the Mercy Hospital in Jefferson County Alabama, performed an autopsy on the body identified to him as that of Debra Kay Dabbs. Glass testified that he found a number of bruises on the head and torso. He said there were some eighteen separate incise-type wounds on the back and one “stab-like” wound at the midline of the chest. Further, he stated there were three gunshot wounds to the head which he described as being “very close range wounds.” Glass acknowledged that in his opinion, the gunshot wounds would be reasonably calculated to cause death. Glass also stated that smears were taken of the anal, vaginal and oral orifices of the body and each indicated the presence of “sperm.”

During cross-examination, Glass stated he did not find any lacerations of the vaginal area or any signs of forcible entry. However, on further questioning he acknowledged that the absence of lacerations in the vaginal area did not rule out the possibility of sexual assault.

James G. Brown was in Birmingham, Alabama on March 5, 1975, and saw the victim, Debra Kay Dabbs in Duggan’s Lounge. She was “somewhat drunk” at the time. According to Brown, he carried her to the Watergate Lounge. On their arrival she went into the lounge first and when he entered she was at the bar talking to the defendant, Alfred Holt. Brown recognized Holt and testified that “I remembered him from school.” According to Brown, the victim was sitting at the bar and Holt was standing up talking to her. Brown said when he approached them Holt turned to him and said something to the effect, “tell this girl I’ll do what I say I’ll do.” Brown said after the appellant said that, the victim told Brown she was going to leave but would be back in five or ten minutes.

Brown testified that when the appellant left with the victim, three men sitting at a table left also. Brown did not know who the three men were. Brown left the lounge within five minutes after the appellant and victim left and learned of Miss Dabbs’ death after reading the newspaper.

On cross-examination, Brown testified there was no conversation between the victim and himself concerning drugs but she stated that “she was looking for her man.” Further, he said the Watergate Lounge was a predominately black establishment and that Holt and the other three men were black.

L. M. Robbins was a police officer and an evidence technician for the Birmingham Police Department. On the morning of March 6,1975, he went to Tuggle School and made pictures of the scene and nude body of the victim. Several items of evidence were collected and during the trial he identified a diagram that he had made of the scene. Robbins also recalled that sometime after March 6,1975, he had an occasion to fingerprint a 1971 Chevrolet Monte Carlo, bearing the license number 1-52028.

At the conclusion of Officer Robbins’ testimony in chief, the defense did not cross-examine but made the following motion outside the presence of the jury:

“MR. DANIELS: Yes, I have a motion to suppress filed.
“THE COURT: I have never seen it. I didn’t know that such a motion has been filed. Motion to suppress what?
“MR. DANIELS: A motion to suppress physical evidence and testimony evidence that will be presented against Alfred Holt. We would call Albert Wallace.”

While the jury was out of the courtroom a voir dire examination on the motion to suppress was conducted.

Sergeant Albert Wallace of the Birmingham Police Department investigated the death of Debra Kay Dabbs. He testified that James Brown gave a statement that he saw the appellant, Alfred Holt, leave the Watergate Lounge with the victim.

Pursuant to this information, Wallace and another officer went to Jackson, Mississippi to talk to Alfred Holt. Holt at the time was being held in the Jackson, Mississippi jail on a robbery charge from Birmingham. Wallace stated that after asking Holt if he wanted to talk to them, the “Miranda warnings” were read to him. According to Wallace, Holt indicated that he understood those rights and they began to talk to him about the “murder ease.” Holt denied having any knowledge of the murder until confronted with James Brown’s statement. Following that, Holt said he knew Brown recognized him and said; “If I tell you about it, I was not involved in the case what about my robbery charge?” According to Wallace he told Holt; “I’ll do anything I can for you on the robbery, but it’s not my case and I have nothing to do with it, but all I’ll do is anything I can to help you with it.”

Wallace said that Holt admitted being at the Tuggle School on March 5th, and identified the other persons with him at the time. The officer recalled that he also told Holt that if he had nothing to do with the killing he would not be charged for it but would be a witness. He stated that information concerning the Dabbs’ murder was to be given in exchange for assistance on the robbery case.

According to Wallace, Holt stated that a man with the last name of Radford was with him but he could not recall his first name. Wallace testified that Holt did not inculpate himself but said that Radford murdered the girl and had intercourse with her.

Holt was returned to Birmingham and after being advised of his constitutional rights made a second statement. It was after this statement that Holt was formally charged with the Dabbs murder. Wallace said that prior to the making of the second statement, Lt. Kirk advised Sgt. Wallace that any promises made by him to Holt could not be honored. Although Holt had been warned that all promises had been withdrawn, he proceeded to make the second statement at the Birmingham City Jail. In that statement he told the officers where the murder weapon was and discussed the circumstances surrounding the murder.

L. H. Kirk held the rank of Lieutenant in the Birmingham Police Department and was the supervisor of the investigation of the Debra Dabbs homicide. Kirk stated that on the morning of April 14, 1975, he was present when Holt made a statement to Sgt. Wallace. He said that he told Sgt. Wallace, in Holt’s presence, that any promises made by Wallace were not binding.

Officer Jeffery E. Webb was present at the time Holt made his second statement to Sgt. Wallace at the Birmingham City Jail. Webb was involved in the investigation of the Dabbs’ murder. As a result of hearing Holt’s statement, he executed a search warrant for the murder weapon. Webb went to the home of one Larry Poitress to execute the warrant but Poitress was not at home. When Poitress arrived he took the officers to another address where the weapon was recovered from a person named Arthur Brooks.

At the completion of Webb’s testimony the voir dire hearing was concluded. The court overruled the motion to exclude the testimony of the “live witnesses,” whose identity was revealed in the statements. The judge went on to say that Sistrunk could testify and that the court would rule “on all this other business as it comes before me.”

■ Following the court’s ruling, the jury was returned to the courtroom and Willie Sis-trunk was called as a State’s witness.

Sistrunk testified that on March 5, 1975, he went to the Watergate Lounge with Alfred Holt, Luther Bell, and Stephen Rad-ford. He said they had gone to the lounge to get some beer and had ridden in Bell’s car. According to Sistrunk, as he was leaving the lounge he looked over his shoulder and saw Alfred Holt talking to James Brown. Sistrunk said that he went to the car, got in, and when he looked into the rear view mirror saw Holt, Radford and Bell coming down the street with Debra Dabbs. Sistrunk recalled that Holt and Debra Dabbs got into the backseat where he was sitting and Radford and Bell sat in the front.

According to Sistrunk, Bell was driving. When they reached a point on a hill, Holt made the statement; “We’re gonna f_ this bitch.” Sistrunk said he got out of the car and Radford jumped across the seat and started beating Debra Dabbs. He went on to say that Holt was also beating the girl and that she was doing a lot of crying. According to Sistrunk, he could not be sure but he thought Radford and Holt had “sex with her.” He testified they remained there for about five minutes and then drove to Tuggle School. Sistrunk recalled that the girl was “beat unmerciful,” and that her clothes were “about half-way torn off.”

Sistrunk testified when they arrived at Tuggle School, Holt had intercourse with the girl and then asked him “did I want any.” Sistrunk said Holt then got back into the car and threw the girl out. She was completely nude and when she hit the ground she did not move. At that point, according to Sistrunk, Holt said, “we’re going to have to kill this bitch.” Sistrunk replied; “Alfred don’t kill her just take her back down there where you got her from.” Holt answered that “ ‘if you don’t get out of the damn way you’re going to get the same damn thing she gets’ and pulled a pistol on me then.” Sistrunk got back into the car with Luther Bell and saw Alfred Holt point the pistol at the victim and “shoot a hail of bullets.” Further he saw Radford with “knives” and indicated what Radford did with the knives. Sistrunk went on to testify that Holt and Radford were standing over Debra Dabbs at the time Holt was firing the gun and Radford had the knives. When Holt and Radford got back into the car, Radford told Holt that “he missed that bitch.” Holt said, “no, I got that bitch dead in the head.” Radford then turned and said, “yes, but I stuck that bitch in the heart.” Sistrunk recalled that they then took him home and Holt told him that he “hadn’t seen nothing and didn’t know nothing.” That was the last time he saw Holt.

During cross-examination, Sistrunk said that he did not report the incident to the police the next day and that it was not until he was picked up that he talked to the police. According to Sistrunk, he was told that “Alfred Holt was railroading him,” and if he testified he would not be prosecuted for the murder. Sistrunk denied that he and Radford had an altercation and that Holt had asked that the girl be left alone. He recalled that the girl was shot first and that he saw Alfred Holt point the gun and it “fired.” The next thing he saw was a “bunch of knives.” He did not recall seeing a “hook-bill knife” in Luther Bell’s possession. Sistrunk testified that when they drove away from Tuggle High School he was just like a zombie and “I was scared to death.” He denied having intercourse with the victim and said that he did not see any one having intercourse with the girl outside of the car. Further, he said no marijuana was smoked that night and he did not recall any conversation concerning obtaining drugs. He went on to state that the reason he did not call the police that night or the next day was because he was “really scared and upset.”

At the close of the State’s case, the defense made a motion outside the presence of the jury to exclude the prosecution’s evidence on the basis that the State had failed to sustain its burden of proof. Counsel said that the State had sought to “convict on corroborative testimony of an accomplice,” and it was not sufficient to connect the defendant with the crime. The court overruled the motion and stated:

“Willie Sistrunk? Well, let me say this, for the purpose of my ruling, I would rule, even if he were, it would be corroborated by James Brown’s testimony.”

I

It is contended that the extra-judicial statement of the appellant while in jail in Jackson, Mississippi, was involuntary. Counsel argues that it was made in response to a promise by a police officer that he would help the appellant on a pending robbery charge. Counsel insists that this rendered the statement involuntary and the court’s failure to make a definitive ruling on the competency of such statement was error. Further, counsel argues that because the appellant’s out of court admission was involuntarily made, any evidence, whether physical or testimonial, which resulted from such statement should also be excluded.

The basic facts are that Sgt. Wallace had gone to the Jackson, Mississippi jail to question the appellant concerning his knowledge of the Debra Dabbs murder. A warrant that he carried with him was for a pending robbery charge, unrelated to the murder. It is uncontroverted that Sgt. Wallace, in response to appellant’s offer of information on the Dabb’s murder-, promised to help the appellant on the robbery charge.

The threshold question is whether the appellant’s out of court admission was rendered involuntary by the officer’s assurance of help on the pending charge.

Before reaching the issue of volun-tariness, we must first determine whether the extra-judicial statement was in the nature of a confession or an admission.

BLACK’S LAW DICTIONARY With Guide to Pronunciation, (4th ed. 1957), defines the word “confession” as follows:

“A voluntary statement made by a person charged with the commission of a crime or misdemeanor . . wherein he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act or the share and participation which he had in it.”
An admission is defined as:
“A statement by defendant of fact or facts pertinent to the issues tending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction.” BLACK’S LA W DICTIONARY With Guide to Pronunciation, supra.

In our judgment the statement made by the appellant in Jackson, Mississippi, was not confessory in nature, but we do hold that it was an inculpatory admission.

The Supreme Court of Alabama in McGehee v. State, 171 Ala. 19, 55 So. 159, indicated there were two classes of inculpatory admissions, one being “those directly relating to the fact of circumstances of the crime and connecting the defendant therewith . . ” The court said that incul-patory admissions in the nature of a confession were subjected to the same rules of admissibility as a direct confession, and were therefore prima facie involuntary. However, the court went on to say:

“. . . but admissions as to purely collateral matters, which are in no sense confessory of guilt, are not within the scope of the rule, and the predicate as far as a confession need not be laid . McGehee v. State, supra.

Under the definition laid down in McGe-hee v. State, supra, we believe that the statement made by the appellant concerning the facts surrounding the Dabbs’ murder was an inculpatory admission in that it had a tendency to connect him with the offense.

Based on these facts, the preliminary proof of the voluntary character of the inculpatory statement and admission was in order. Although the court did not specifically make a definitive ruling on the volun-tariness of this appellant’s out of court admission, its subsequent admission of Sis-trunk’s testimony was tantamount to holding that the appellant’s statement was voluntary.

No serious contention can be made that the testimony of Sistrunk was not the direct result of the appellant’s statement. Once his testimony was allowed, appellant’s motion to suppress was in fact overruled and the court in essence found that the appellant’s statement was voluntary.

We do not mean to be understood as saying that the court did not have to make a ruling under these facts, but we do say that, as a result of its subsequent action, it was equivalent to a ruling.

We are aware that the law in Alabama is well settled that the competency of an extra-judicial confession and inculpatory admission is a preliminary question for the trial court. Luschen v. State, 51 Ala.App. 255, 284 So.2d 282; Wallace v. State, 290 Ala. 201, 275 So.2d 634; Jones v. State, 292 Ala. 126, 290 So.2d 165.

Although it would have been preferable that the preliminary question of voluntariness be ruled on by the trial court under the facts in this case, we do have a substantial compliance with the rule.

We turn to the question of whether appellant’s statement was in fact induced by a promise that would render it involuntary, therefore, inadmissible.

A confession condemned for involuntariness involves the determination of whether a benefit derived from a promise is direct or collateral. The Supreme Court of Alabama in Hunt v. State, 135 Ala. 1, 33 So. 329, held:

“The promise which will render a confession involuntary, in the eyes of the law, must have relation to the legal consequences of the offense itself. It must involve some assurance of benefit to the defendant in respect of crime under inquiry,—as that he will not be prosecuted, or that the punishment will be mitigated, and the like.”

Under this rule, the promise which will exclude a confession or an inculpatory admission must relate to the crime charged. The promise of help given by Sgt. Wallace in no way was related to the Dabbs murder. It was a collateral benefit involving no assurance of benefit to the appellant with respect to the crime under investigation. Pittman v. State, 36 Ala.App. 179, 54 So.2d 630; Smith v. State, 248 Ala. 363, 27 So.2d 495; McCullars v. State, 208 Ala. 182,94 So. 55; Curry v. State, 203 Ala. 239, 82 So. 489.

Under these facts we distinguish the present case from O’Tinger v. State, Ala.Cr. App., 342 So.2d 1343. In that case this court said that a confession induced by an offer to return accused’s boots was involuntary. There the court was concerned with the return of a previously withheld necessity in exchange for a confession. It was a type of physical abuse even though it was of a much lesser degree than where a confession is given in return for food, water, blankets or sleep.

No degree of physical abuse is present in the case under consideration. The promise made concerned a collateral benefit and was in no way related to the crime under inquiry. Under these circumstances, the admission by Holt was voluntary and could have been used during the trial. Any information or evidence accruing as a result of this statement was also admissible.

We have read and examined this transcript and have found no error prejudicial to this appellant. No error appearing in the record, the case is due to be

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice. MADDOX, Justice

text:
    In re Alfred HOLT v. STATE of Alabama. Ex parte Alfred Holt.
    77-150.
    Supreme Court of Alabama.
    Aug. 4, 1978.

      Benjamin Daniel, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BEATTY, Justice.

Certiorari was granted in this case to consider the application by the Court of Criminal Appeals of the “collateral benefit rule” regarding confessions to the facts of this case. The pertinent facts are reported in Holt v. State, 372 So.2d 364 (Ala.Cr.App.1977).

The collateral benefit rule states that if a confession (or inculpatory admission) is induced by a promise of collateral benefit, with no assurance of benefit to the defendant in respect to the crime under inquiry, such a promise will not suffice to show that the confession was involuntary. See Smith v. State, 248 Ala. 363, 27 So.2d 495 (1946); McCullars v. State, 208 Ala. 182, 94 So. 55 (1922); Hunt v. State, 135 Ala. 1, 33 So. 329 (1903).

The Court of Criminal Appeals found that when asked by the petitioner:

[I]f I tell you about it, I was not involved in the case, what about my robbery charge,

Sergeant Wallace of the Birmingham Police Department responded:

I’ll do anything I can for you on the robbery, but it’s not my case and I have nothing to do with it, but all I’ll do is anything I can do to help you with it.

That court held that this was an offer of assistance on another offense and not an offer related to the case under inquiry, hence the confession induced by the officer’s offer of assistance was not involuntary in law. Petitioner contends that this decision is in conflict with O’Tinger v. State, 342 So.2d 1343 (Ala.Cr.App.1977).

In O’Tinger the Court of Criminal Appeals reversed a conviction of grand larceny, having found the evidence undisputed that the defendant confessed to that crime in return for a pair of boots, and recognized no meaningful distinction in the fact that the defendant made the initial offer rather than the interrogating officer. O’Tinger v. State, supra, at 1345. In holding that the admission of such a confession adversely affected his constitutionally protected right against self incrimination, that court stated:

Any inducement of profit, benefit, or melioration held out, ... is enough to render the confession inadmissible. .

In distinguishing the present case from O’Tinger, however, the court stressed the facts that in O’Tinger the boots were a previously withheld necessity, and that this was a type of physical abuse that made the confession given for their return involuntary.

Without addressing the difficult problems this distinction would unleash, i. e., of what is, or is not, a necessity for a prisoner, and which necessities when withheld would or would not be the basis of physical abuse, we must agree with the petitioner that O’Ting-er is in conflict with the present case. It cannot reasonably be argued that a promise of a pair of boots, and a promise of help with another offense, both of which having induced confessions, are so distinguishable that the former makes the confession involuntary, but the latter is of no legal effect. Because the boots in O’Tinger were a collateral benefit and not a benefit with respect to the particular crime under inquiry it is clear that the Court of Criminal Appeals in that decision impliedly overruled the collateral benefit rule, whatever the position of that court on the issue presently.

Whether the distinction between a collateral as opposed to a direct benefit is sufficiently meaningful to deserve recognition in criminal jurisprudence is another matter. Any such distinction must fully comply with the well-recognized injunction, that an accused should be free from involuntary self-incrimination. The wide sweep of this limitation upon criminal evidence, and its applicability here, was explained by Mr. Justice White in Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897), in which he made an extensive survey of the reasons for the rule and the decisions applying it. He quoted from 3 Russell on Crimes (6th ed.) 478:

‘But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. ... A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.’ (emphasis added)

Justice White added that “[t]he statement of the rule is ... in entire accord with the decisions of this court on the subject.” He cited Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Sparf v. United States, 156 U.S. 51, 55, 15 S.Ct. 273, 39 L.Ed. 343 (1895); Pierce v. United States, 160 U.S. 355, 16 S.Ct. 321, 40 L.Ed. 454 (1896); and Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090 (1896). It must be conceded, however, that Bram was decided under the Fifth Amendment to the United States Constitution and prior to the time when that Amendment and decisions rendered under it were made applicable to the states through the Fourteenth Amendment. Cf. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Shortly after Bram was decided, this Court rendered a decision in Hunt v. State, 135 Ala. 1, 8, 33 So. 329, 331 (1902) which recognized the collateral benefit rule:

The fact that incriminating statements of a defendant are made upon a promise of officers or citizens having him in custody that, if he will toll the truth, they will protect him against the wrath and vengeance of persons who are implicated, or whom his statement implicates, in the offense, does not render such statements inadmissible, if they are otherwise voluntary. The promise which will render a confession involuntary, in the eyes of the law must have relation to the legal consequences of the offense itself. It must involve some assurance of benefit to the defendant in respect of the crime under inquiry, as that he will not be prosecuted or that his punishment will be mitigated . . The mere collateral benefit of protection from the personal violence of those who acted with him in the commission of the crime will not suffice.

This statement of principle was unsupported by any citation of authority. Moreover, it emphasized, not the effect of the promise upon the mind of the defendant, but rather the form of the promise itself. That is, no consideration was given to the fact that such a promise might be just as conducive to a confession of the offense as would a promise relating to some mitigation in connection with that offense. Nevertheless, it was quoted as authority in a later case, Elmore v. State, 223 Ala. 490, 137 So. 185 (1931). In that case the defendant was induced to confess his guilt by the threat of law enforcement officers to arrest his mother for the offense. In commenting on the effect of this inducement upon the volun-tariness of the confession, a majority of this Court stated:

A personal benefit to the accused, the saving of himself from the distress of mind caused by his mother’s arrest, may be easily inferred to have been a moving inducement to the confession. But this also was a collateral benefit under this rule [requiring the promise to relate to the offense itself].
We are far from saying that the saving of a loved one from arrest may not induce a confession, be the accused guilty or not guilty, (emphasis added)
Under imaginable conditions, the un-trustworthiness of a confession thus obtained should lead to its rejection. (emphasis added)
But we are not impressed that the confession in the instant case should be excepted from the general rule .

In dissenting from what is patently an equivocal majority opinion upon the all-inclusiveness of the collateral benefit rule, Justice Brown, joined by Justice Sayre, believed that this confession was an “exception to the rule relating to [a] promise of collateral benefits, such as that the officer will let the accused see his wife (6 Am.St. Rep. 247), or ‘to give the accused liquor,’ or to ‘release him from solitary confinement and allow him to associate with other prisoners,’ or to ‘take him to a priest’ (1 R.C.L. 556, § 103), or the offer of a reward to deliver a saddle (McIntosh v. State, 52 Ala. 355), or to employ the accused to commit another’s crime (Stone v. State, 105 Ala. 60, 17 So. 114), or to divide a reward for detection of the guilty party (McKinney v. State, 134 Ala. 134, 32 So. 726).” Justice Brown, however, predicated his dissent upon the rule of exclusion which had been recognized in Beckham v. State, 100 Ala. 15, 14 So. 859 (1893), i. e., that:

The rule of exclusion applies where the threat is of such a nature as that from fear of it the prisoner was likely to have told an untruth, and where the threat and the confession are related as cause and effect .

Thus both the majority and the minority appear to have been in agreement upon the primary issue, that is, what worked upon the mind of the defendant to induce the confession? This is established by the majority’s recognition of “the saving of a loved one from arrest,” obviously a collateral benefit, as leading to the rejection of a confession thus induced. It is established by the minority’s tenuous assumption that the threat to prosecute the defendant’s mother was, somehow, also related to the offense with which the defendant was charged. Clearly, the fact that both might have been charged with the same offense (unless the defendant confessed his guilt) did not make the implicit promise (not to charge the defendant’s mother) relate to his offense, but to hers. When she was not charged, he received a collateral benefit, but that benefit was the product of a promise which was reasonably calculated to induce him to confess, for as Justice Brown sagely observed, anyone lacking the great Washington’s integrity would lie to protect his mother. Accordingly, the real emphasis was not upon the collateral benefit but upon the relation of cause and effect to the promise and the confession. That is, the question was whether the defendant would have confessed if the authorities had not induced his statement with the promise of the benefit, collateral or otherwise.

Several federal decisions likewise are instructive. In Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), a defendant confessed in order to prevent his ailing wife from being arrested for questioning. At his trial the court-charged the jury that such a “deception” did not invalidate his confession unless it had produced an untrue statement. The United States Supreme Court reversed his conviction, holding that the due process standard of the Fourteenth Amendment did not turn on the probability of the statement’s truth or falsity. It stated that:

The attention of the trial judge should have been focused, for purposes of the Federal Constitution, on the question whether the behavior of the State’s law enforcement officials was such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined — . ...

In Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), the defendant was told that her children could be taken away from her upon her conviction, but that if she would cooperate she would see them again. The United States Supreme Court held that a confession elicited under such circumstances “must be deemed not voluntary, but coerced. We have said that the question in each case is whether the defendant’s will was overborne at the time he confessed.”

And in Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963) an incarcerated prisoner being held incommunicado for interrogation and who had expressed a desire to telephone his wife, was told by the authorities that he could do so when he had cooperated and made a statement [of confession]. In reversing his conviction the United States Supreme Court .stated:

Confronted with the express threat of continued incommunicado detention and induced by the promise of communication with and access to family Haynes understandably chose to make and sign the damning written statement; given the unfair and inherently coercive context in which made, that choice cannot be said to be the voluntary product of a free and unconstrained will, as required by the Fourteenth Amendment. •

In each of these federal cases the confession followed an offer, in one form or another, of a benefit to the defendant which was “collateral,” not related to the offense with which he was charged. Nevertheless, the use of the confession so induced was sufficient to negate the judgment of conviction because the inducement affected the voluntariness of that confession, the emphasis having been placed on the effect of that inducement upon the freedom of the will rather than upon whether the subject matter of that inducement was “direct” or “collateral.” The harshest sanctions which society can bring to bear upon the individual, thus, have not been allowed to depend upon the subtleties implicit in that distinction.

The Court of Criminal Appeals has held that “the promise which will exclude a confession or an inculpatory admission must relate to the crime charged.” In this we have concluded that the court erred. The legal principle which should have been applied in its review, and in the trial court, should have conformed to the principle of the Rogers’, Lynumn and Haynes'decisions, and to the Court of Criminal Appeals’ encompassing the O’Tinger decision.

Additionally, the Court of Criminal Appeals found that the statement in question, because it was induced by a promise of a collateral benefit, was therefore voluntary. The trial court did not make a preliminary finding on the competency of this confession, Jones v. State, 292 Ala. 126, 290 So.2d 165 (1974), thus it appears that the criterion used by the Court of Criminal Appeals on the issue of voluntariness was the “direct” or “collateral” benefit test.

Because the Court of Criminal Appeals applied that erroneous test to the facts on the issue of voluntariness of this confession, the judgment of that Court is reversed and the cause is remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON, SHORES and EM-BRY, JJ., concur.

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

I concur in the majority’s excellent treatment of the “collateral benefit” rule, but I wish to point out that the Court of Criminal Appeals, on remand, may still determine that the trial court did not err in admitting the confession. The record may contain evidence which would indicate that the defendant’s will was not “overborne at the time he confessed.” In other words, the record may indicate that the “collateral benefit” rule may not control the question of voluntariness. Jones v. State, 292 Ala. 126, 290 So.2d 165 (1974), cited by the majority, sets out the rule which the Court of Criminal Appeals can use in reviewing the record:

“This court held in Smith v. State, 291 Ala. 507, 282 So.2d 907 (1973) that the jury is to consider all of the facts and circumstances surrounding the taking of a confession in determining the weight and credibility that it will give to the confession. And, it is well settled in this State that before a confession may be admitted into evidence, the State must make a showing to the trial court that the confession was voluntary. The trial court determines whether the confession was voluntary from the evidence addressed to it because prima facie a confession is presumed involuntary. The facts and circumstances attending the taking of the confession in this case are sufficient for the trial court to establish its voluntariness. The weight and credibility of the confession was within the province of the jury.”


text:
    Alfred HOLT v. STATE.
    6 Div. 182.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    On Rehearing March 27, 1979.
    Rehearing Denied May 1, 1979.
   ON REHEARING

DeCARLO, Judge.

On October 3, 1978, a judgment of Reversed and Remanded, without opinion, was issued by this court in this appeal on authority of Ex parte Holt, 372 So.2d 370. On October 23, 1978, this court, on its own motion, determined to review the matter on rehearing.

The question of the voluntariness of appellant’s statement to police in regard to his involvement in the murder, has been answered in the Supreme Court’s opinion reversing the decision of this court. See Ex parte Holt, supra. Holt v. State, 372 So.2d 364, for pertinent facts and holding.

The question regarding the admissibility of testimony from a witness whose identity has been learned through appellant’s alleged involuntary confession remains to be resolved.

In Smith v. United States, 117 U.S.App. D.C. 1, 324 F.2d 879, involving the discovery of a witness’s identity through an illegally obtained confession, the issue was whether the testimony of that witness should be suppressed. Justice Burger, now Chief Justice of the United States Supreme Court, found the evidence admissible and commented that:

“Courts have gone a long way in suppressing evidence but no case as yet has held that a jury should be denied the testimony of an eyewitness to a crime because of the circumstances in which his existence and identity was learned.
“Here no confessions or utterances of the appellants were used against them; tangible evidence obtained from appellants, such as the victim’s watch, was suppressed along with the confessions. But a witness is not an inanimate object which like contraband narcotics, a pistol or stolen goods, ‘speak for themselves.’ The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.
“The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.”

The Supreme Court of the United States, in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182, a case factually similar to the case at bar on the point in question, considered the question whether a defendant’s involuntary admission, which led to the discovery of evidence incriminating that defendant, caused that evidence to be inadmissible at trial.

In that case, the defendant named a witness whom he stated would prove his claim of alibi, after stating to police that he understood his constitutional rights and did not want an attorney. Because the defendant was not advised that, as an indigent, he was entitled to appointed counsel, the trial court excluded his own statements taken during the interrogation. However, the lower court did not exclude the testimony of the witness, which testimony discredited the defendant’s defense of alibi.

The Supreme Court held that, although the accused’s statement was not obtained under circumstances comporting with the “Miranda Rule,” the use of a witness at trial whose identity was discovered as a result of such statement was not violative of the Fifth, Sixth or Fourteenth Amendments.

There the Supreme Court, referring to the use of such testimony, made the following comment:

“. . . The evidence which the prosecution successfully sought to introduce was not a confession of guilt by respondent, or indeed even an exculpatory statement by respondent, but rather the testimony of a third party who was subjected to no custodial pressures. There is plainly no reason to believe that Henderson’s testimony is untrustworthy simply because respondent was not advised of his right to appointed counsel. Henderson was both available at trial and subject to cross-examination by respondent’s counsel, and counsel fully used this opportunity, suggesting in the course of his cross-examination that Henderson’s character was less than exemplary and that he had been offered incentives by the police to testify against respondent. Thus the reliability of his testimony was subject to the normal testing process of an adversary trial.” [emphasis added.]

The court went on to say:

. . Here we deal, not with the offer of respondent’s own statements in evidence, but only with the testimony of a witness whom the police discovered as a result of respondent’s statements. This recourse to respondent’s voluntary statements does no violence to such elements of the adversary system as may be embodied in the Fifth, Sixth, and Fourteenth Amendments.”
In summary, the Supreme Court stated: “[W]hen balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce. In this particular case we also ‘must consider society’s interest in the effective prosecution of criminals in the light of the protection our pre-Miranda standards afford criminal defendants.’ [citations omitted] These interests may be out-weighed by the need to provide an effective sanction to a constitutional right . . . but they must in any event be valued. Here respondent’s own statement, which might have helped the prosecution show respondent’s guilty conscience at trial, had already been excised from the prosecutions case pursuant to this Court’s Johnson decision. To extend the excision further under the circumstances of this case and exclude relevant testimony of a third-party witness would require far more persuasive arguments than those advanced by respondent.” [emphasis added]

In the case involving the appellant, Holt, his own statements were not admitted at trial. However, as a result of these statements, the identity of the witness, Sistrunk, was discovered. The fact that Holt may have given an involuntary statement does not require the conclusion that the testimony of Sistrunk was untrustworthy.

Sistrunk was available at trial and was subjected to a thorough and sifting cross-examination by appellant’s counsel. The reliability of Sistrunk’s testimony was subjected to the cross-examination testing process before the jury and it was for that body to determine whether his testimony was credible.

In view of the fact that Holt’s statement has been “excised” by the trial court, any further “excision” would deprive the trier of facts of relevant testimony, without regard for “society’s interest in the effective prosecution of criminals.”

Therefore, it is our judgment that, although the statement by the appellant, Holt, was inadmissible, the information leading to the discovery of the witness, Sistrunk, and his testimony implicating appellant were admissible.

Based on the foregoing reasoning, and that given in the opinion offered by this court on October 25, 1977, we again affirm the judgment of conviction.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Alfred HOLT.
    78-533.
    Supreme Court of Alabama.
    June 29, 1979.
   MADDOX, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    J. L. STRINGER, alias v. STATE.
    7 Div. 623.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied May 1, 1979.

      Charles A. Sullins, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Eugenia D. B. Hoffammann, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Embezzlement, sentence: one year and one day imprisonment.

The appellant, Mayor of Hobson City, Alabama, was indicted by the October 1977 Grand Jury of Calhoun County on one count of forgery and one count of embezzlement. Both charges involved a check in the amount of $171.69 dated October 31, 1974, issued by the town of Hobson City to William Malone. The check was signed by the appellant and the City Clerk, Margaret Ball, and was endorsed in the names of William Malone and the appellant.

William Malone testified that he had previously been employed by Hobson City as the fire chief. He left the employment of Hobson City in September 1974 and moved out of state. He testified that he was not working for Hobson City at the time the check was issued, and that he did not receive any proceeds of the October 31, 1974 check. William Malone testified that he did not endorse his name on the check, nor did he give the appellant permission to endorse his name on any check.

The appellant testified that William Malone’s salary as fire chief had been paid through a federal grant program made available by the state. He said that in September 1974 William Malone was having some personal problems in Tennessee and had to stay in Tennessee periodically to take care of the problems. Don Malone, William Malone’s brother, asked the appellant if he could work gratuitously in the place of his brother during the times that he would be absent so that William Malone would continue to be paid. Appellant testified that, since there was only a few pay periods left under the federal grant contract, he agreed. He testified that as per the agreement he had William Malone’s permission to endorse his name on the checks and turn the proceeds over to Don Malone.

Don Malone testified that he did not receive the proceeds from the October 31, 1974 check. The State also introduced into evidence a statement made by the appellant wherein he denied endorsing William Malone’s name to the check.

I

Appellant contends that Count I of the indictment charging him with forgery of a check was insufficient as to place him on notice of whether he was to be prosecuted for first degree forgery or second degree forgery.

Appellant was indicted under a two count indictment, but was convicted only of the embezzlement count thereby acquitting him of the forgery count. Liner v. State, Ala. Cr.App., 350 So.2d 760 (1977). This court will not consider alleged errors pertaining to a count as to which there was an acquittal. Only the count upon which an appellant is found guilty is subject to review on appeal. Hammond v. State, Ala.Cr.App., 354 So.2d 280, cert. denied, Ala., 354 So.2d 294 (1977); Liner, supra.

II

Appellant claims that the embezzlement count of the indictment did not sufficiently inform him of what he was being charged of embezzling.

The proper procedure to challenge the validity of an indictment is by demurrer. Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977). This the appellant did not do, and he now raises this issue for the first time on appeal. Ordinarily one waives any irregularities in the indictment by appearing and pleading in the trial court, and a plea to the merits is considered as an admission of a valid indictment. Johnson v. State, 49 Ala.App. 389, 272 So.2d 597 (1973); Elliott v. State, 39 Ala.App. 314, 98 So.2d 618 (1957). “However, due process dictates that a defect associated with an essential element of the offense which leaves the accused unaware of the nature and cause of the charge against him cannot be waived by failure to timely demur.” Andrews v. State, supra. Such a fatal defect is not present in the instant indictment.

The appellant specifically contends that the indictment does not allege in which jurisdiction the offense was committed, does not allege appellant’s official capacity, his control of monies, or that the monies belonged to any municipality. The pertinent portion of Count II of the indictment states that:

“The Grand Jury of Calhoun County further charge that, before the finding of this indictment, J. L. Stringer, also known as Judge L. Stringer, whose true name is to the Grand jury otherwise unknown, Mayor of Hobson City, Alabama, a city incorporated under the laws of the state, embezzled or fraudulently converted to his own use a check in the amount of $171.69, which said check represented funds belonging to or under the control of said city. . . . ”

First, it is unnecessary to allege in an indictment where the offense was committed. Title 15, § 238, Code of Ala.1940 (§ 15-8-31, Code of Ala.1975). Second, it is plainly stated that appellant is “Mayor of Hobson City” and that the “check represented funds belonging to or under the control of said city.” Count II of the indictment substantially follows both Title 14, § 126, Code of Ala.1940 (§ 13-3-20, Code of Ala.1975) and Title 14, § 127, Code of Ala. 1940 (§ 13-3-21, Code of Ala.1975). It charges every material element of the offense of embezzlement and sufficiently informs appellant of the charge against him. Appellant also contends that the indictment should have charged embezzlement of money and not of a check. Title 14, § 146, Code of Ala.1940 (§ 13-3-39, Code of Ala.1975) states that: “In an indictment for embezzlement . . . it is sufficient to describe the property in general terms, as . ‘checks’ . . . of or about a certain amount.”

We find no defect in the indictment rendering it void and subject to challenge in any manner other than by way of demurrer timely filed in the trial court. The appellant failed to file a proper and timely challenge, and no error can thus be attributed to the trial court in this regard. Stehl v. State, 283 Ala. 22, 214 So.2d 299 (1968).

Ill

The district attorney called himself as the State’s last witness. He was examined by an assistant district attorney. He testified, over appellant’s objection, that in a telephone conversation with appellant several months after the indictment had been handed down and approximately four months before trial appellant admitted endorsing William Malone’s name as well as his own to the check in question. Appellant claims three issues of error concerning this testimony.

A

Appellant contends that the district attorney should not have been allowed to testify in the case and also continue to prosecute the case. The rule governing such procedure is stated in Maund v. State, 254 Ala. 452, 48 So.2d 553 (1950):

“. . . ‘Although a prosecuting attorney is competent to testify, his testifying is not approved by the courts except where it is made necessary by the circumstances of the case, and, if he knows before the trial that he will be a necessary witness, he should withdraw and have other counsel prosecute the case. The propriety of allowing the prosecutor to testify is a matter largely within the trial court’s discretion. . . .’”

There is no evidence in the record that the district attorney formed the intention to testify in advance of trial. While we do not encourage testimony by any prosecuting attorney, we cannot go so far as to say the trial court committed reversible error by allowing the prosecutor to testify in this case. One of the examples set out in Maund, supra, where the prosecuting attorney was allowed to testify is “ ‘. . .to show admissions made by the defendant to him . . . That was the circumstances in this case, and we find no abuse of discretion on the part of the trial court in allowing the testimony.

B

The appellant contends that the district attorney should have given him the Miranda warnings after contacting him and before questioning him when an indictment had been handed down in the case and several months had elapsed since the original Miranda warnings were given.

The prosecutor initiated the telephone call to appellant to ask if appellant would, through city records, provide the district attorney’s office with handwriting samples of William and Don Malone and himself for comparison purposes. In answer to the district attorney, the appellant stated that the district attorney’s office was welcome to whatever records were needed, but that it was unnecessary because he had signed William Malone’s name as well as his own to the back of the check. His response was not in answer to a specific question concerning whether he had signed William Malone’s name to the check. Neither was this a “custodial interrogation.”

The intention of the Miranda decision was “to prevent oppressive police tactics which violate individual rights and produce involuntary confessions.” Schaumberg v. State, 83 Nev. 372, 432 P.2d 500 (1967). Miranda dealt with custodial police interrogation. Sprinkled throughout Miranda were the phrases: “over-zealous police practices,” “police dominated atmosphere,” “unfamiliar atmosphere,” “menacing police interrogation procedures,” and “in-custody questioning.”

In the instant case, the district attorney and appellant were in the comfort and privacy of their individual offices. The admission took place during a telephone conversation while the appellant was neither in custody nor subject to oppressive police tactics. In addition, the admission was a volunteered statement, not in response to a question calling for such an answer. The appellant’s freedom of action was not limited or curtailed, and he was free to terminate the conversation at any time. As stated in Miranda (86 S.Ct. at p. 1630):

“. . . Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

We do not think the circumstances surrounding appellant’s admission substantially affected his individual will to resist.

C

The appellant’s last contention concerning the telephone conversation is that his admission should have been suppressed because the district attorney was under an ethical obligation to contact appellant’s attorney before contacting appellant.

In Simpson v. Alabama State Bar, 294 Ala. 52, 311 So.2d 307 (1975), the Alabama Supreme Court held that district attorneys were not subject to discipline under the disciplinary rules in effect at that time. However, the Court specifically stated the question of whether or not district attorneys could be disciplined under the then proposed Code of Professional Responsibility (now in effect) was not before them.

The Michigan Supreme Court in People v. Green, Mich., 274 N.W.2d 448 (1979), held that district attorneys are subject to their Code of Professional Responsibility under DR 7-104(A)(l), but held that reversal of a conviction solely because of an ethical violation “would constitute reprehensible ‘overkill.’ ” Alabama’s DR 7-104(A)(l), which is identical to Michigan’s, is in pertinent part as follows:

“DR 7-104 Communicating With One of Adverse Interest.
“(A) During the course of his representation of a client a lawyer shall not:
“(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.”

Whether the district attorney was under an ethical obligation to contact the appellant’s attorney has no bearing on the admissibility of the statement. Likewise, we find it unnecessary to rule on whether a district attorney is subject to the Alabama Code of Professional Responsibility. As stated in People v. Green, supra:

“. . . The provisions of the code [Code of Professional Responsibility] are not constitutional or statutory rights guaranteed to individual persons. They are instead self-imposed internal regulations prescribing the standards of conduct for members of the bar.
“The admissibility of evidence in a court of law, on the other hand, is normally determined by reference to relevant constitutional and statutory provisions, applicable court rules and pertinent common-law doctrine. Codes of professional conduct play no part in such decisions.” (Bracketed material added.)

On a similar question, this court in Alexander v. State, Ala.Cr.App., 370 So.2d 330 [Ms. March 6, 1979], stated:

“ ‘The fact that a defendant has an attorney does not mean, as a per se rule, that law enforcement officials cannot procure a statement of any kind from the defendant without prior notice to, if not the consent of, the attorney.’ This rule was fully discussed and applied in Thompson v. State, 347 So.2d 1371 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977). In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 1243, 51 L.Ed.2d 424 (1977), the United States Supreme Court implicitly rejected any such ‘per se’ rule.”

We have reached the same conclusion in another similar circumstance in Thomas v. State, Ala.Cr.App., 373 So.2d 1149 (1979).

Moreover, the appellant testified at trial that he signed William Malone’s name to the check. In fact his whole defense was that he had Malone’s permission to sign the check. Our Supreme Court in Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965), stated:

“We will observe that this court, along with others, has applied the harmless error doctrine to assertions made that the introduction of evidence of confessions should not work a reversal where the defendants had taken the stand and given testimony substantially in the language of the confessions. . . . ”

We reached the same result in Jones v. State, 50 Ala.App. 36, 276 So.2d 621 (1973), and in Thomas, supra.

IV

Appellant contends that the evidence was insufficient to show that municipal funds were unlawfully converted. The State’s evidence was that funds were improperly drawn from a city account by appellant for a non-existent obligation. The custodian of the records for the First National Bank of Anniston testified as to the city’s account with that bank and identified the check in question as being drawn on the city’s account. A microfilmed copy of the October 31, 1974 check was admitted into evidence. Therefore, we think the evidence was sufficient to show a fraudulent conversion of municipal funds. See: Troup v. State, 32 Ala.App. 309, 26 So.2d 611 (1946).

V

Appellant contends that the trial court improperly allowed into evidence a microfilmed copy of the check upon which this conviction is based. When the microfilmed copy was offered in evidence, the' appellant objected on the specific ground that the best evidence rule was violated because the original check was not introduced.

Robert Wayne Underwood testified that he was custodian of the records of the First National Bank of Anniston. He produced and identified a microfilmed copy of a check issued to William Malone by the town of Hobson City dated October 31, 1974. The check was signed by the appellant and City Clerk Margaret Ball. The names of William Malone and appellant were endorsed on the back of the check. Mr. Underwood also identified the Hobson City account number and the type of account. Although appellant argues at length in his brief as to the insufficiency of the State’s predicate for introducing the check, he did not specifically object to the predicate at trial.

We find no error in admitting into evidence a microfilmed copy of a check. Title 5, § 145(5), Code of Ala.1940, as amended (now § 5-4-5, Code of Ala.1975), provides:

“Any bank may cause any or all books and records at any time in its custody . to be reproduced by . microphotographic process . . . and any reproduction so made . . . shall have the same force and effect as the original thereof and be admitted in evidence equally with the original. . . ”

It is a matter of common knowledge that banks are in the business of handling checking accounts and that copies of cancelled checks are retained by banks during the regular course of their business. They are considered by this court to be bank records. Appellate courts may take judicial knowledge of matters known to the general public. Coley v. W. P. Brown & Sons Lumber Co., 251 Ala. 235, 37 So.2d 125 (1948).

VI

A

During the course of the trial, several checks were introduced into evidence to show plan, scheme or motive of appellant concerning the embezzlement of the October 31, 1974 check. The trial court questioned appellant from the bench concerning certain discrepancies in the amounts of the checks. Appellant contends that the trial court erred by placing undue emphasis on those other checks and drawing the jury’s attention to them. However, the appellant made no objection to the trial court’s questions. This court will not review an alleged error concerning the questioning of a defendant by the court where no objection was made. Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218 (1973).

B

Appellant contends that the trial court erred by allowing into evidence a cheek dated outside the statute of limitations for embezzlement. The check was dated October 15, 1974, and the instant indictment was returned on October 21, 1977.

When the October 15, 1974 check was offered into evidence, appellant stated that he would interpose the “same objection” as previously taken. The previous objection was to the October 31, 1974 check. Clearly that check was not outside the statute of limitations. The previous objection taken was that the check was “irrelevant, incompetent, immaterial, and it violates the best evidence rule.” The grounds that evidence is irrelevant, incompetent, and immaterial are general grounds of objection. Murphy v. State, 42 Ala.App. 60, 151 So.2d 800 (1963). It is obvious that by taking the same objection as taken to the October 31, 1974 check, appellant was not objecting to the statute of limitations issue. The trial court will not be put in error for admitting evidence over a general objection unless the matter is clearly inadmissible for any purpose. Objections to admissions of evidence are unavailing unless appropriate grounds are stated. Rogers v. State, 53 Ala.App. 573, 302 So.2d 547 (1974). In the case of Troup v. State, supra, evidence of irregularities occurring prior to the three year statute of limitations was properly admitted in that embezzlement case. In any event, no objection was raised on that ground in the trial court, and that court will not be put in error on grounds not specified. Williams v. State, Ala.Cr.App., 354 So.2d 48, cert. denied, Ala., 354 So.2d 53 (1978).

AFFIRMED.

All the Judges concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: BLOODWORTH, Justice.

text:
    Ex parte J. L. STRINGER.
    78-534.
    Supreme Court of Alabama.
    June 22, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

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


text:
    Donald THIGPEN v. STATE.
    6 Div. 938.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
    Rehearing Denied May 22, 1979.
    H. Diana Hicks, Mobile, David Gespass, Birmingham, Jack Greenberg, James M. Nabrit, III, and John C. Boger, New York City, Anthony Amsterdam, Stanford, Cal., for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Appeal from denial of writ of error coram nobis.

The appellant was convicted on May 3, 1972, for the shotgun slaying of Cassie Lee Davis. He was sentenced to death in that case. However, on appeal to this court that sentence was modified to life imprisonment due to the intervening decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Thigpen v. State, 50 Ala.App. 176, 277 So.2d 922 (1973). No further appeal was taken.

While serving the life sentence imposed in Thigpen I, the appellant and a number of other prisoners escaped from Holman Prison on April 16, 1975. The next day the body of an elderly farmer was found in a deserted barn three miles from the prison. The farmer had been beaten to death with a blunt instrument and also had a “v-shaped” laceration to the skull which appeared to have been made by an ax or hatchet found at the scene.

The appellant was charged with that murder and tried under Title 14, § 319, Code of Ala.1940, which provides for a mandatory death sentence where a prisoner is convicted of first degree murder while serving a life sentence. The appellant was duly tried, convicted, sentenced to death, and appealed to this court which affirmed the conviction. Thigpen v. State, Ala.Cr.App., 355 So.2d 392 (1977), affirmed, Ala., 355 So.2d 400.

Having failed to overturn the conviction and death sentence in Thigpen II in this court and the Alabama Supreme Court, the appellant now attempts a collateral attack on his original conviction in 1972 in Thigpen I.

I

The appellant contends that he was erroneously denied funds for expert witnesses and investigative services at the cor-am nobis hearing. He contends that his federal Sixth Amendment right to effective assistance of counsel is meaningless when his counsel is not afforded the basic tools with which to present a viable argument. It has been repeatedly held that a denial of funds to pay defense experts for investigators and the assistance of experts does not amount to a deprivation of constitutional rights. Harris v. State, Ala.Cr.App., 352 So.2d 460, affirmed, Ala., 352 So.2d 479 (1977); Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678, cert. denied, 429 U.S. 1026, 97 S.Ct. 649, 50 L.Ed.2d 629 (1976); Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974).

The appellant was represented by appointed counsel during the coram nobis proceedings pursuant to Alabama law for defense of indigents, § 15-12-23, Code of Ala.1975. There is no statutory authority in Alabama to provide funds for investigators and expert witnesses, and as stated in Harris, supra, this is a matter which addresses itself to the legislature rather than to the courts.

II

The appellant contends he was denied due process and equal protection of the law by virtue of systematic exclusion of blacks, women, and people of low income from the grand and petit jury venires in connection with the original trial in Thig-pen I. This issue has been raised for the first time on petition for writ of error cor-am nobis. It was not raised in the trial court in the original trial nor on appeal. As stated in Manson v. State, Ala.Cr.App., 349 So.2d 67, cert. denied, Ala., 349 So.2d 86 (1977):

“ ‘[Fjailure by the defendant in a criminal case to raise proper objection to the composition of a grand or petit jury, including, but not limited to, the constitutional ground of the jury selection process, before entering upon the trial of the case on its merits, constitutes a waiver of his right to do so, subject, of course, to the recognized exceptions of fraud and as to matters which were not known, or by the exercise of due diligence, could not have been known, before trial.’ ”

Accord: Williams v. State, Ala., 342 So.2d 1328 (1977); Van Antwerp v. State, Ala.Cr.App., 358 So.2d 782, cert. denied, Ala., 358 So.2d 791 (1978); Andrews v. State, Ala.Cr.App., 359 So.2d 1172 (1978); Johnson v. Williams, 244 Ala. 391, 13 So.2d 683 (1943).

The appellant’s retained attorney at his original trial testified at the coram nobis hearing that he did not think it necessary at the original trial to file an objection to the composition of the grand and petit jury venires. He testified that now, in retrospect, he still thinks that it was unnecessary to file an objection. As observed in Creel v. State, 53 Ala.App. 226, 298 So.2d 647 (1974), the office of the writ of error coram nobis is not to retry indictments, rather it is to root out egregious fraud or collusion. Also see: Fuller v. State, Ala.Cr.App., 344 So.2d 216 (1977). There has been no showing of fraud in the composition of the jury venires, nor has there been any evidence tendered remotely pointing to a fraudulent collusion which led to the appellant’s original conviction. In the absence of fraud, matters which were known at the time, or which could have been discovered by exercising due diligence, cannot be raised on petition for writ of error coram nobis.

Ill

The appellant contends that the trial court committed error by refusing to hear evidence at the coram nobis hearing pertaining to exclusion of prospective jurors opposed to capital punishment in the original trial. That issue was reviewed by this court on the original appeal and decided adversely to the appellant. Thigpen I, supra. The appellant did not petition the Alabama Supreme Court for writ of certio-rari, and no further appeal was taken from the decision of this court. Coram nobis does not take the form of a delayed appeal. Swain v. State, 285 Ala. 292, 231 So.2d 737, vacated in part, 408 U.S. 936, 92 S.Ct. 2860, 33 L.Ed.2d 753, on remand, 290 Ala. 123, 274 So.2d 305 (1973); Ex parte Rudolph, 276 Ala. 392, 162 So.2d 486, cert. denied, 377 U.S. 919, 84 S.Ct. 1185, 12 L.Ed.2d 188 (1964); Seagroves v. State, 53 Ala. 481, 301 So.2d 245 (1974); Braswell v. State, 53 Ala.App. 645, 303 So.2d 145 (1974); Kelly v. State, 45 Ala.App. 144, 277 So.2d 141 (1969).

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Donald THIGPEN.
    78-608.
    Supreme Court of Alabama.
    July 6, 1979.
   BEATTY, Justice.

WRIT DENIED.

All Justices concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Eddie TAYLOR v. STATE.
    1 Div. 15.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Rehearing Denied June 26, 1979.

      W. Gregory Hughes, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This case and the case of Eddie Taylor v. State, 371 So.2d 971 (1979), are identical twins as to material facts, except for the location and size of a birthmark on each.

According to the undisputed evidence in this case, defendant sold two capsules of heroin to an undercover agent; according to the undisputed evidence in the other case, defendant sold four capsules of heroin to another undercover agent.

All of the issues presented in 1 Div. 10 are presented in the instant case. As to such issues, we adopt and apply herein our opinion in the other case.

Appellant presents two additional issues in this case. He states them as follows:

“Whether the Court erred in overruling the Appellant’s objection to the admission of drugs with no proper predicate [and] “Whether the Court erred in denying the Appellant’s motion for mistrial when the Appellant was brought before the jury in handcuffs.”

As to the first of such issues, contrary to the contention of appellant, the chain of custody of the particular “drugs” from the buyer — to an officer — to a toxicologist who examined it and testified that it was heroin is definitely established by the evidence.

The buyer, Senior Agent Barry Lee New-some, of the Mississippi Bureau of Narcotics, testified as to the sale to him by defendant of two capsules. He further testified in answer to the question, “After the transaction took place, what happened?”:

“Mr. Taylor got — proceeded back to his car and about that time myself and the confidential informer departed. We arrived at Rodeway Inn on Government Streed where I turned the heroin over to Officer Pickett with the Narcotics Bureau here in Mobile.”

Officer Walter Pickett testified:

“On the 11th of September at approximately 11:15 P.M. at the Rodeway Inn, Agent Garry Newsome passed me two caps containing biocarbon substance. After he turned them over to me, I put them in an envelope, sealed the envelope, we both initialed the envelope and I turned it over to Ms. Tillman at the crime lab.”

Ms. Allilee Tillman, a toxicologist with many years of experience testified at length on the matter of her receipt of the two capsules and their contents and her examination thereof and that the capsules contained heroin. Excerpts of her testimony are as follows:

“Q I ask you — call your attention back to September 14,1976, and ask you if you received any evidence in this case?
“A I did.
“Q From whom did you receive it?
“A Walter Pickett.
“Q All right. Walter Pickett was with the City Narcotics?
“A Yes.
“Q All right. And how was it packaged when Walter brought it to you?
“A It was in a sealed envelope.
“Q Okay, and what did you do with it when you got it?
“A Gave him a receipt for it and examined the contents.
“Q Do you have the substance with you?
“A Yes sir.
“Q Mark this for identification. Okay. Want to show you what’s been marked as State’s Exhibit No. 1 for identification purposes, and ask you if you can identify this package.
“A lean.
“Q Has anyone tampered with it since you sealed it?
“A No.
“Q And, is this in fact the same substance which you took and examined?
“A It is.”

The trial court was not in error in overruling defendant’s objection to the introduction in evidence on the grounds stated by defendant “that there had been no proper predicate.”

At the beginning of an afternoon session of the trial, the following occurred:

“MR. HUGHES: Judge, if it pleases the Court to proceed, I think they are ready and Ms. Tillman is here. I would have a motion that I would ask to make out of the presence of the jury.
“THE COURT: All right. Ladies and Gentlemen, once again I must ask you to please report to the jury room and we will send for you in just a moment. “(Out of the presence of the jury Mr. Hughes made the following oral motion.)
“MR. HUGHES: Your Honor, if it pleases the Court, we would move for a mistrial on the following grounds:
“The jury, the entire jury panel was seated in the jury box when the Defendant was brought into the Courtroom. I am sure that it was not intentional on the Deputy’s part, but at the time Eddie Taylor was handcuffed. The jury could not help but see that, they were here. All of them were present when they saw him. We feel that it would be prejudicial to his case, and there is not way to eradicate [sic] that. It gives impression that he is a violent individual, has all sorts of evil connotations. We feel that that cannot be corrected, and would move for a mistrial.
“THE COURT: Deny your motion. Bring the jury back.”

The possibility of some prejudice to defendant in what occurred as narrated by defendant’s counsel is not to be ignored, but there is not a sufficient showing thereof to justify the conclusion that the trial court was in error in overruling defendant’s motion for a mistrial. Appellant relies upon the sound general statement in Clark v. State, 280 Ala. 493, 496, 195 So.2d 786, 788 (1967):

“. . All of the authorities we have studied are agreed that to bring a prisoner before the bar of justice in handcuffs or shackles, where there is no pretense of necessity, is inconsistent with our notion of a fair trial, for it creates in the minds of the jury a prejudice which will likely deter them from deciding the prisoner’s fate impartially. . . . ”

Not to be overlooked, however, is the distinction made in Clark between handcuffing a prisoner in taking him to and from the court and in keeping him in handcuffs while he is being tried, unless there is reasonable ground for belief that such restraint is necessary to prevent his escape or his rescue.

“Furthermore, it is not ground for a mistrial that an accused felon appear in the presence of the jury in handcuffs when such appearance is only a part of going to and from the courtroom. This is not the same as keeping an accused in shackles and handcuffs while being tried. Rhodes v. State, 34 Ala.App. 481, 41 So.2d 623.” Evans v. State, Ala.Cr.App., 338 So.2d 1033, cert. denied 348 So.2d 784 (1977)

As indicated above, there was undisputed evidence that defendant was guilty of selling heroin as charged in the indictment. There is no contention to the contrary.

As in 1 Div. 10, it is stipulated by the parties that appellant’s appeal from his conviction is consolidated with his appeal from the denial by the court of his petition for writ of habeas corpus. We find no error in the record as to either proceeding. The judgment of conviction and sentence and the judgment denying the petition for habe-as corpus should be affirmed.

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

AFFIRMED.

All the Judges concur.