text:
    Owen L. COOPER, Sr. v. STATE.
    5 Div. 245.
    Court of Criminal Appeals of Alabama.
    June 17, 1975.
    Rehearing Denied July 29, 1975.
    James T. Gullage, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and Charles N. Parnell III, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent, was indicted for assault with intent to murder and convicted of assault. Fine; five hundred dollars, fixed by the jury. The trial court added six months in jail. This appeal is from the judgment.

The trial court instructed the jury that in order for defendant to rely on his defense of self-defense:

“[H]'e must prove three things, and I’ll read them to you: First, the defendant must be absolutely free from fault in bringing on the difficulty; second, he must be in imminent danger, either real or apparent, of losing his life or suffering-great and serious bodily harm, and the third element, the defendant, he must retreat if there is an avenue of retreat open to him, unless the retreat increases or enhances the danger to his life or to his limb. In other words, for him to rely on self-defense there must be three things present: He must be free from fault from bringing on the difficulty; he must be in imminent danger of either losing his life or suffering grave or serious bodily harm; and he must retreat if possible. Now, as I said before, the defendant had the burden to offer some evidence that he was in actual or apparent danger and that he had no method by which to retreat without increasing his danger. But the State, if he does that, it does offer some evidence of those two things, that he was in some danger apparent or real, and he had no method by which to retreat, then, that would put the burden on the State to show that the defendant was not free from fault in bringing on the difficulty. But those are the three items which make up what we call the defense of self-defense.” (Emphasis added.)

It appears that the defendant did not except or object to the mandate “he must prove,” etc., supra, but did except or object as follows:

“We also except to that part of the Court’s oral charge that the defendant must retreat if there is an avenue of retreat open.
“We also except to the Court’s Oral Charge that the defendant is under the burden of offering evidence to this fact. There has been no testimony that a retreat was available.”

The last paragraph erroneously placed on defendant the burden of offering evidence of retreat. In Vaughn v. State, 293 Ala. 365, 304 So.2d 6, the Supreme Court had under consideration defendant’s written and refused charge 59, as follows:

“ ‘The Court charges the jury that the only burden resting on the Defendant with regard to his plea of self-defense is that the Defendant must offer such evidence in support of such plea as will, when considered with the whole evidence, generate in the minds of the jury a reasonable doubt of his guilt.’ ”

Justice Bloodworth, writing for the court, observed:

“In fact, there would seem to be no distinction between using the word ‘burden’ and ‘burden of proof.’
“ . . . Thus, whether the word ‘burden’ or the words ‘burden of proof’ are used would seem to be of little significance in this case, particularly when the additional words ‘the Defendant must offer such evidence’ appear in Charge 59.”

We comment that the instruction that the defendant “must prove three things and I’ll read them to you” (then follows elements of self-defense) was erroneous. There was no exception.

But later in this charge the court instructed the jury that:

“. . . [T]he defendant had the burden to offer some evidence that he was in actual or apparent danger and that he had no method by which to retreat without increasing his danger. . . . ”

Retreat is an element of self-defense. The imposition of the burden on defendant to offer evidence of retreat invited an exception, supra, and was error to reverse. Vaughn v. State, supra. We here note that this case reversed and remanded our case of Vaughn v. State, 52 Ala.App. 377, 292 So.2d 671. We affirmed on authority of 293 Ala. 365, 304 So.2d 6. See Vaughn v. State, 53 Ala.App. 744, 304 So.2d 12, for affirmance.

The Supreme Court held that there was no error in refusing Charge 59, supra, for that it was “misleading” and positively “erroneous” in placing the “burden of proof” as to self-defense on defendant.

We are constrained to reverse the instant judgment and remand the cause. It is so ordered.

The foregoing opinion was prepared by the Hon. 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.

The judgment below is hereby

Reversed and remanded.

All the Judges concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    In re Owen L. COOPER v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1418.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    William J. Baxley, Atty. Gen., and William Anthony Davis, III, Asst. Atty. Gen., for petitioner.
   ALMON, Justice.

Petition of the State by its Attorney General' for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cooper v. State, 55 Ala.App. 562, 317 So.2d 529.

Writ denied.

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


author: CATES, Presiding Judge.

text:
    Ricky BEZOTTE v. STATE.
    8 Div. 598.
    Court of Criminal Appeals of Alabama.
    March 4, 1975.
    Morring, Giles, Willisson, Higgs & Car-tron and James Bruce Schrimsher, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.
   CATES, Presiding Judge.

It appears that at the time of the offense charged Bezotte was eligible for consideration under the Youthful Offender Act.

Here Bezotte did not petition for Youthful Offender treatment but asked, on August 19, 1974, for transfer to the juvenile court (Family Court Division of the Madison Circuit Court, Act 250, September 30, 1959, and amendments). This was denied. His petition, under Code 1940, T. 13, § 363, gave his date of birth, putting the trial judge on notice of his potential entitlement under Act 335, February 10, 1972. See Morgan v. State, 291 Ala. 764, 287 So.2d 914.

On authority of Tarver v. State, 56 Ala.App. 36, 318 So.2d 775 (1975), and cases therein cited, this cause is remanded for referral to the Probation Officer for investigation and report. Upon such report the court below shall hold a hearing to determine whether or not Bezotte is entitled to Youthful Offender status.

Remanded with directions.

All the Judges concur.


text:
    Ricky BEZOTTE v. STATE.
    8 Div. 598.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
   After response to remand, 55 Ala.App. 564, 317 So.2d 531.

Affirmed, without opinion.


text:
    Willie C. KNIGHT v. STATE.
    1 Div. 586.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Application for Rehearing Stricken, Aug. 19, 1975.
    Willie C. Knight, pro se.
    William J. Baxley, Atty. Gen., and William A. Golinsky, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

This is an appeal from a conviction of first degree forgery, resulting from a guilty plea, and a sentence of five years imprisonment.

Knight originally plead not guilty and a jury was struck and sworn when he manifested to the trial court a desire to withdraw his plea and plead guilty to the offense.

After Knight executed a written “REQUEST TO ENTER GUILTY PLEA,” which explained his constitutional rights, and the trial court questioned him concerning his understanding of the same, the following occurred:

“MR. FRIEDLANDER: Judge I think the penalty for forgery first degree may possibly be two to twenty. I told Mr. Knight that it may be two to twenty.
THE COURT: I think it is two to twenty. Well as I understand the recommendation it will be well within the limits anyway, will it not ?
MR. FRIEDLANDER: Yes sir.”

The range of punishment for first degree forgery is one to twenty years imprisonment. 1940 Code, T. 14, § 207, as amended.

The Supreme Court of Alabama requires an accused’s understanding of the maximum and minimum range of punishment before a plea of guilty is deemed voluntary. Carter v. State, 291 Ala. 83, 277 So.2d 896. This court, in Moore v. State, 54 Ala.App. 463, 309 So.2d 500, held that the accused must be advised of the correct range of punishment.

While the minimum sentence was not grossly misrepresented to the accused and the sentence was within the statutory range, the range of punishment explained to the accused by his appointed counsel and acquiesced in by the trial court was harsher than the statutory range.

The judgment below is reversed and the cause is remanded for new trial.

Reversed and remanded.

All the Judges concur, except BOOK-OUT, J., who dissents.


author: CATES, Presiding Judge. BOOKOUT, Judge

text:
    Raymond Roland HOFFMAN, alias v. STATE.
    1 Div. 575.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.

      David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Hoffman here appeals from four judgments of conviction resulting from guilty pleas. In circuit court cases numbered 30141, 32284 and 32285 (possession of phencyclidine, sale of marihuana and sale of phencyclidine) he received three six year sentences to run concurrently with each other. In case numbered 29929 (possession of marihuana for personal use) he received a six month sentence to run concurrently with the above three sentences.

I

On December 11, 1973, Hoffman interposed his plea of guilty in cases numbered 29929 and 30141, and the trial court accepted the pleas, deferring judgment and sentence until a later time.

During its colloquy with the accused, the court neglected to inform him of the maximum and minimum ranges of punishment for the two offenses.

Reference was made to the range of punishment in a written “REQUEST TO ENTER GUILTY PLEA,” but the trial court did not ascertain that Hoffman had read the form and understood its contents, as was done by the trial court in Twyman v. State, 293 Ala. 75, 300 So.2d 124, and White v. State, 54 Ala.App. 27, 304 So.2d 268. In order for a guilty plea to be deemed voluntary, the accused must understand the maximum and minimum range of punishment. Carter v. State, 291 Ala. 83, 277 So.2d 896; Knight v. State (1975) 55 Ala.App. 565, 317 So.2d 532.

II

On January 7, 1975, Hoffman plead guilty in cases numbered 32284 and 32285 and was adjudged guilty and sentenced in all four cases. On this date there was no execution of a “REQUEST TO ENTER GUILTY PLEA” with respect to the latter two cases, and the trial court, in its colloquy with the accused, neglected to inform him of his right to a jury trial as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

The judgment in each of the four cases below is reversed and the causes are remanded for new trials.

Reversed and remanded.

TYSON, HARRIS and DeCARLO, JJ., concur.

BOOKOUT, J., dissents in part and concurs in part.

BOOKOUT, Judge

(dissenting in part and concurring in part) :

The judgment in case number 30141 should be affirmed. Although the trial court failed to mention the range of punishment in its colloquy, the range of punishment was included in the “REQUEST TO ENTER GUILTY PLEA,” signed by the appellant. This, coupled with the colloquy, in my opinion would be a sufficient apprisal of the rights of the accused to comply with Boykin, supra.


author: HARRIS, Judge. BOOKOUT, Judge CATES, Presiding Judge

text:
    Marcy HOLLOWAY v. CITY OF BIRMINGHAM.
    6 Div. 782.
    Court of Criminal Appeals of Alabama.
    May 6, 1975.
    Rehearing Denied May 27, 1975.
    Parker, Wilkinson & Purvis, Birmingham, for appellant.
    L. H. Warren, Birmingham, for City of Birmingham.
   HARRIS, Judge.

Appellant was put to trial in the Circuit Court of Jefferson County on the following complaint:

“Comes the City of Birmingham, Alabama, a municipal corporation, and complains that Marcy Holloway within twelve (12) months before the beginning of this prosecution on, to-wit: July 26, 1973, and within the City of Birmingham, at to-wit: the 1900 block of 5th Avenue North, did prostitute herself by making an offer to indiscriminate lewdness to R. E. Henslee contrary to and in violation of Section 43-1 of the General City Code of Birmingham, of 1964.” (Emphasis supplied).

Appellant filed the following motion to quash:

“Comes the Defendant and moves this Honorable Court to Quash the Complaint herein and as grounds therefor says as follows, separately & severally:
“1. That Section 43-1 of the Birmingham City Code is unconstitutional.
“2. That said section violates this defendants’ (sic) rights under the U. S. Constitution.
“3. That said section discriminates against this defendant.”
This motion was overruled.

Appellant then filed the following demurrer :

“Comes the Defendant in this cause and demurs to the complaint heretofore filed in this cause and as grounds therefor says as follows separately and severally:
“1. That Section 43-1 of the Birmingham City Code is unconstitutional.
“2. That said section violates this defendants’ (sic) rights under the U. S. Constitution.
“3. That said section discriminates against this defendant.
“4. That said Complaint is vogue (sic) and indefinite.
“5. That said complaint does not state a cause of action.
“6. That said complaint does not state facts sufficient to state a cause of action.
“7. That no offense is alleged.
“8. That the words alleged in the complaint, ‘by making an offer to indiscriminate lewdness’ do not state an offense.”
The demurrer was also overruled.

Section 43-1 of the General City Code of Birmingham, 1964, provides:

“No female shall prostitute herself or use any indecent or lascivious language, gestures or behavior to induce any other person to illicit sexual intercourse.”

Appellant’s major contention is that said ordinance is a sex based classification rendering said ordinance unconstitutional.

The facts set forth in appellant’s brief are supported by the record and the city agrees the facts are substantially correct. We, therefore, take the following from appellant’s brief:

“During the evening hours, approximately 9:00 P.M., on July 26, 1973, Patrolman Ralph Earl Henslee of the Birmingham Police Department was alone in the 1900 block of Fifth Avenue, North, Birmingham, Alabama, when and where he saw the Appellant, Marcy Holloway. He testified that the Appellant approached him at said time and on said occasion. A conversation took place, whereby the Appellant told the officer she would perform certain sexual acts for Thirty-Five and 00/100 ($35.00) Dollars.
“Officer Henslee further testified that he was working with Officer John Maddox, who was across the street at said time and said place observing his movements. His testimony further indicated that the Appellant offered to go with him, in his automobile, to her apartment, where these sexual acts were to be performed. Upon arriving at the witness’s automobile, the Appellant was placed under arrest.
“On cross-examination, Officer Henslee testified he had been a policeman for six (6) days as of July 26, 1973; that he did not give any money to the Appellant. He further testified that the Appellant was placed under arrest prior to getting into the unmarked City police car, and that no sex acts were performed; that the Appellant did not take her clothes off and that there was no touching between them.
“Officer John Maddox, Birmingham Police Department, testified that he was approximately 150-200 feet away from Officer Henslee and the Appellant at said time and on said occasion. He was not close enough to hear any conversation between Officer Henslee and the Appellant. He further testified that he saw Officer Henslee and the Appellant get in the unmarked police car and leave the location; that Officer Henslee drove around the block and picked him up on the corner where they proceeded to the City Hall.
“A motion to exclude the evidence offered by the City was made by the Appellant’s attorney; said motion being overruled by the trial court, with an exception noted for the Appellant.
“The Appellant testified in her own behalf and her testimony tends to show that she had been in a restaurant/lounge just prior to her arrest, in the vicinity of the location of her arrest. She left the restaurant/lounge, going to call a cab at said time and on said occasion.
“She, seeing no cab, walked to a phone booth; the phone booth being used at the time, she waited. At this time, Mr. Henslee had a conversation with the lady in the phone booth for three minutes. He then asked the Appellant ‘what she was up to’. He offered to take her home. He also asked the Appellant ‘why don’t we go out for a good time’. The Appellant said ‘no’ and she was arrested at the automobile.”

In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, the Supreme Court of the United States said:

“At the outset, appellants contend that classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last term in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.”

The main thrust of appellant’s argument is that since the ordinance in question applied to female prostitutes and not male .prostitutes, she is being denied her rights under equal protection clause of the United States Constitution.

Any statute or ordinance is presumed to be constitutional and the burden is upon the party asserting its unconstitutionality to show that it is not- constitutional. Board of Trustees v. Talley, 291 Ala. 307, 280 So.2d 553; Al Means, Inc. v. City of Montgomery, 268 Ala. 31, 104 So.2d 816.

A court has the duty to sustain an act (ordinance) unless it is convinced beyond a reasonable doubt of the unconstitutionality of the act (ordinance). Reed v. Alabama Public School and College Authority, 284 Ala. 22, 211 So.2d 381.

The equal protection clause is violated by a classification system only when it is without any reasonable basis and is arbitrary. Board of Trustees v. Talley, supra.

In Kelly v. State, 31 Ala.App. 201, 14 So.2d 599, the court defined a prostitute in the following language:

“As we have long ago declared: ‘The law defines a prostitute to be a female given to indiscriminate lewdness; a strumpet. “As a verb, its definition is to offer freely to a lewd use, or to indiscriminate lewdness. As an adjective it means openly devoted to lewdness; sold to wickedness or infamous practices.” A woman may be a prostitute and carry on the business of such if she so' holds herself out to the world. She may on the street or in other public or private places so conduct herself as to make it clear that she is a prostitute, and that such is her occupation. Or any female who frequents or lives in houses of ill fame, or associates with women of bad character for chastity, either in public or private, or at a house which men of bad character frequent or visit, or who commits fornication for hire, shall be deemed to be a prostitute, or a female who offers her body to an indiscriminate intercourse with men. Finally, a prostitute means a whore or strumpet in the common acceptation of those words.’ (Italics presently supplied.) Wilson v. State, 17 Ala.App. 307, 84 So. 783; and see note 14 A.L.R. 1502.”

'í'itle 62, Section 654, Code of Alabama 1940, confers on the City of Birmingham the full measure of the state’s police power to provide for the safety, preserve the health, promote the prosperity, improve the morals, orders, comforts and convenience of the inhabitants of the City and prevent and punish injuries and offenses to the public therein.. Jefferson County v. City of Birmingham, 256 Ala. 436, 55 So.2d 196; Cavu Club v. City of Birmingham, 269 Ala. 46, 110 So.2d 307.

It was under this broad police power that the city promulgated Section 43-1, supra. This is a uni-sexual ordinance and applies to females only.

The state law against prostitution is found in Title 14, Section 392, Code of Alabama 1940, and applies to any person who commits the acts therein denounced.

In the case of State v. Devall, La., 302 So.2d 909, the Supreme Court of Louisiana upheld the prostitution statute of that state against the constitutional attack that it offends the Equal Protection Clause of the Constitution of the United States.

Louisiana’s statute provides:

“Prostitution is the practice by a female of indiscriminate sexual intercourse with males for compensation.
“Whoever commits the crime of prostitution shall be fined not more than one hundred dollars, or imprisoned for not more than six months, or both.” La.R.S. 14:82.

The Court said:

“According to the terms of the statute, the crime it reprobates can only be committed by a woman. A man practicing indiscriminate sexual intercourse with women does not commit this crime. The defendant here is a female charged with prostitution under the statute. She contends that there is no rational basis for punishing women and not men for engaging in indistriminate sexual intercourse for compensation.”

The Court went on to say:

“In applying the Equal Protection Clause, however, it has been consistently recognized that the Fourteenth Amendment does not deny to. the states the power to treat different classes of persons in different ways. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.
“Discrimination between the sexes falls within the prohibition that states must accord equal protection to those within its jurisdiction. However, in matters in which sex is a material factor, a statute may make a distinction without violating the constitutional guarantee, if the classification is a natural and reasonable one. Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163.
“To paraphrase a footnote, in the Geduldig Case, (Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256) absent a showing that distinctions involving prostitution are merely pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to exclude male prostitution from the coverage of legislation on the reasonable basis that it does not constitute a social problem. Difference between the sexes does bear a rational relationship to the prohibition of prostitution by females.”

The Chief Justice in the :Devall case, joined by another justice, filed a well-reasoned dissenting opinion. We will quote portions from this dissent to demonstrate that there is another, and persuasive, side of the argument that the seller and the buyer of sexual services should be dealt with, if at all, on an equal basis, and with an even hand, in a criminal prosecution.

“A state has broad authority under its police power to enact legislation to protect the health, safety, and welfare of its people. Quite clearly, therefore, a state has the authority to enact restrictive legislation pertaining to prostitution, long regarded as a threat to the health and safety of the general public. L’Hote v. New Orleans, 177 U.S. 587, 20 S.Ct. 788, 44 L.Ed. 899 (1899); State v. McCormick, 142 La. 580, 77 So. 288 (1917); 73 C.J.S. Prostitution § 2, p. 226; 16 Am.Jur.2d, Prostitution, § 262, p. 514.
“The State’s authority to ban prostitution, however, is not at issue here. The issue is the constitutionality of a prostitution statute that places the heavy hand of the law upon women alone, while men who engage in the same conduct go free. The district court held that such a statute violated the Equal Protection Clause of the United States Constitution. I agree.
“The defendant asserts that the statute is fatally defective, because it fails to penalize the male who pays for and receives the female’s sexual services. Secondly, the defendant asserts that the statute is defective, because it fails to penalize the male who engages in sexual intercourse for compensation. I find merit in the second attack.
“The State argues that there is a reasonable basis for the sexual classification here, since historically the sexual services of women have been in greater demand. The sale of sexual services by men, it is asserted, has not created a social problem warranting legislative attention.
“Although the sale of sexual services by men may not be as extensive as the sale of such services by women, the practice does exist. Hence, the absence of the practice cannot serve as a basis for the restricted classification.
“As noted by the trial judge, the law against prostitution has a three-fold purpose: preventing the spread of venereal disease; shielding citizens from annoyance ; and controlling related crimes, such as illicit drugs, gambling, and organized crime.
“Male prostitution, like female prostitution, contributes to the evils which the statute was designed to prevent. Hence, classification by sex bears no real relation to the objectives of the statute.
* * * * *
“As noted in the majority opinion, state courts have upheld the constitutionality of the uni-sexual prostitution statutes in Wisconsin and Indiana. See State v. Mertes, 60 Wis.2d 414, 210 N.W.2d 741 (1973); Wilson v. State, Ind., 278 N.E.2d 569 (1972), cert. den. 408 U.S. 928, 92 S.Ct. 2494, 33 L.Ed.2d 341 (1972). These decisions, however, failed to take into account the vast changes in the social and legal status of women during the past decade. Nor did these decisions address themselves fully to the question of whether the sexual classification bore a substantial relationship to the legislative objective of the statute in question.
He H v Hi H« ‡
“In general, doctrinal writers support the view that prostitution statutes that criminalize women only are unconstitutional because of invidious sex discrimination. See, e. g., Rosenbleet and Pariente, The Prostitution of the Criminal Law, 11 Am.Crim.L.Rev. 373, 381 — 411 (1973); Kanowitz, Women and the Law: The Unfinished Revolution, p. 18 (1969); Brown, Emerson, Falk and Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 Yale L.Journ. 871, 962-965 (1971); Eastwood, The Double Standard of Justice; Women’s Rights Under the Constitution, 5 Val.Un.L.Rev. 281, 315 (1971).
“I am unable to discern any rational justification for subjecting a female to criminal process for offering her body indiscriminately for compensation, while allowing a male the freedom to engage in similar conduct without criminal consequences. Such conduct by a female poses no greater threat to the health, safety, or welfare of the community than such conduct by a male.”

In an article, The Prostitution of the Criminal Law, published in American Criminal Law Review ABA, Vol. 2, 1972— 73, we find the following expressions:

“The penalization of a female who offers her body to indiscriminate sexual activity for hire — to the exclusion of the male who offers to pay for a female’s participation in sexual activity or the male who offers his body to indiscriminate lewdness — must, at first glance, be characterized as a most blatant manifestation of the legal oppression of women.”

Further:

“Thus, the prostitute, who under present social circumstances is usually a woman, is penalized, while the male patron is free to solicit her services without fear of sanction. As an unusually enlightened New York court long ago recognized, there is an invidious discrimination which results from penalizing the prostitute to the exclusion of her male patron:
“ ‘The men create the market, and the women who supply the demand pay the penalty. It is time this unfair discrimination and injustice should cease . The practical application of the law as heretofore enforced is an unjust discrimination against women in the matter of an offense, which in its very nature, if completed, requires the participation of men.’ ”

The above quotations fully support the dissenting opinion in Devall, supra.

The trouble we find with Section 43-1 of the General City Code of the City of Birmingham, 1964, is that it is vague and overbroad.

The emphasized portion of the Complaint, supra, simply does not constitute the crime of prostitution. Here appellant made a solicitation to perform a natural and an unnatural sex act for a named sum of money. The proposition got no further than that. There was no bedroom affair, no disrobing, no touching of the bodies, no money paid, and no sexual activity. In short, the crime of prostitution was not committed.

The demurrer should have been sustained and appellant’s motion to exclude the city’s evidence should have been granted.

Reversed and remanded.

All the Judges concur.

CATES, P. J., and BOOKOUT, J., concur specially.

BOOKOUT, Judge

(concurring).

I am of the opinion that the city ordinance is legally adequate, but without going into the facts of the case, I am of the opinion that the complaint failed to alleged an offense.

Section 43-1 of the City Code of Birmingham establishes two offenses, i. e. (1) no female shall prostitute herself or (2) use any indecent or lascivious language, gestures or behavior to induce any person to illicit sexual intercourse.

The complaint stated that the appellant, “. . . did prostitute herself by making an offer to indiscriminate lewdness to R, E. Henslee contrary to and in violation of Section 43-1 . .

An “offer to indiscriminate lewdness” does not constitute the offenses of prostitution. There is a vast difference between an offer and an act. An offer to commit murder is not murder; an offer to commit robbery is not robbery; and, an offer to commit prostitution is not prostitution. An “offer to indiscriminate lewdness” is vague and indefinite and does not apprise a defendant of any offense charged within the wording of Section 43-1, supra.

Since the offense of prostitution is not charged in the complaint, we must look to the second portion of the ordinance to see if the other prohibited conduct set out therein is sufficiently described in the complaint. I think not. If the complaint had stated that the appellant, “used indecent or lascivious language, gestures or behavior to induce R. E. Henslee to have illicit sexual intercourse,” a valid offense may have then been alleged under the second portion of the ordinance. Nowhere does the ordinance make an offer to indiscriminate lewdness illegal. I am, therefore, of the opinion that the demurrer to the complaint should have been sustained.

CATES, Presiding Judge

(concurring).

I

I am persuaded by the reasoning of Sanders, C. J., dissenting in State v. Devall, La., 302 So.2d 909.

I see no even-handedness in a city’s waging a campaign against Coyotes and not against Gigolos. An Elizabethan might say, “A Pox on both your houses.” Yet our society, either in asepsis or asceticism, should be even-handed.

II

I also agree with both HARRIS and BOOKOUT, JJ.


author: HEFLIN, Chief Justice.

text:
    In re Marcy HOLLOWAY v. CITY OF BIRMINGHAM. Ex parte CITY OF BIRMINGHAM.
    SC 1331.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    L. H. Warren, Birmingham, for petitioner.
    No brief for respondent.
   HEFLIN, Chief Justice.

Petition of City of Birmingham for Cer-tiorari to the Court of Criminal Appeals to .review and revise the judgment and decision of that Court in Holloway v. City of Birmingham, 55 Ala.App. 568, 317 So.2d 535.

Writ denied.

BLOODWORTH, FAULKNER, AL-MON and EMBRY, JJ., concur.


author: DeCARLO, Judge.

text:
    Larry PRIDE v. STATE.
    8 Div. 537.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1974.
    Rehearing Denied Oct. 29, 1974.

      Lewis H. West, Decatur, for appellant.
    William J. Baxley, Atty. Gen. and Kermit M. Downs, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

On March 25, 1974, Larry Pride, an eighteen year old, entered a plea of guilty to robbery, then applied for probation. At the time his plea was taken, his constitutional rights, as outlined in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L. Ed.2d 274, were explained to him. It does not appear, however, that at any time prior to the taking of the plea he was ever informed of his right to request youthful offender status. Counsel for appellant contends that the court erred in accepting defendant’s guilty plea without ascertaining whether he had knowledge of this right to request to be considered a youthful offender.

We are of the opinion that the cause must be remanded to the court to investigate and examine the appellant at a hearing and determine whether in its discretion appellant should be tried as a youthful offender. Title 15, § 266(1), Code of Alabama; Morgan v. State, 291 Ala. 764, 287 So.2d 914.

The trial court is further instructed that the hearing be held speedily, and that a full record be made together with the court’s determination. A transcript of these proceedings, under the seal of the Clerk, will then be forwarded to this court for review. Seibold v. State, 287 Ala. 549, 253 So.2d 302.

Remanded with directions.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Larry PRIDE v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1039.
    Supreme Court of Alabama.
    May 22, 1975.

      William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State, petitioner.
    None for respondent.
   SHORES, Justice.

We granted certiorari in this case on the State’s petition to the Court of Criminal Appeals. Larry Pride, an eighteen-year-old, was convicted on a charge of robbery. He entered a plea of guilty. At the time his plea was taken, his constitutional rights as outlined in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, were explained to him. After entry of the guilty plea, the defendant applied for probation. Probation was denied and defendant was sentenced to ten years in the penitentiary.

On appeal to the Court of Criminal Appeals, the defendant charged the trial court with error in accepting his guilty plea without ascertaining that he had knowledge of the possibility that he might be considered a youthful offender under Title 15, §§ 266(l)-266(6), 1958 Recompiled Code of Alabama, Pocket Part.

The Court of Criminal Appeals remanded the cause to the trial court for an investigation, examination, and determination whether, in its discretion, the defendant should be tried as a youthful offender.

We affirm under authority of S. C. 1050—Ex parte Estate of Alabama ex rel. Attorney General (In re: Jesse Ray Clemmons v. State of Alabama), 294 Ala. -, 321 So.2d 238 (Ms.), this day decided, and observe that, since the Court of Criminal Appeals has retained jurisdiction, defendant may renew his appeal in that court for a review of other alleged error, if youthful offender status is denied him after the procedure set forth in Clemmons, supra, has been had.

Affirmed.

HEFLIN, C. J., MERRILL, BLOOD-WORTH, MADDOX, FAULKNER, JONES and EMBRY, JJ., and COL-QUITT, Circuit Judge, sitting specially, concur.

ALMON, J., not sitting.


text:
    Jim COOPER v. STATE.
    6 Div. 823.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.

      Newton, Coar, Newton & Tucker, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State, ap-pellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant was indicted for selling, furnishing or giving away 36.6 milligrams of heroin, a narcotic drug, contrary to and in violation of the provisions of Act No. 1407, of the 1971 Regular Session of the Alabama Legislature, which disposition occurred subsequent to September IS, 1971. A jury conviction with punishment fixed by the trial court at twelve years imprisonment.

The alleged sale took place on May 30, 1973; he was also indicted for violations of the Act, supra, on May 24 and June 8, 1974. He was acquitted on August 22, 1974, of the charge on June 8, 1974. The present trial commenced on August 27, 1974.

I

A jury was struck for the trial of defendant pursuant to Act No. 57 of April 5, 1955. This act was originally introduced as House Bill 881, which purported to be a “general bill,” applying to counties with a population of 400,000 persons or more. Contention is here made that the bill was local and not advertised pursuant to § 106 of the Constitution of 1901 and that he was denied equal protection of the law due to the “one for one” jury strike system used in Jefferson County, Alabama.

We pretermit discussion of the constitutionality of the law authorizing such “one for one” system as it was not raised in the trial court and appellee is here precluded from raising the issue for the first time on this appeal. Alabama Brokerage Co. v. Boston, 18 Ala.App. 495, 93 So. 289 cert. den. 208 Ala. 242, 94 So. 87; City of Talladega v. Ellison, 262 Ala. 449, 79 So.2d SSI; Smith v. State, 280 Ala. 241, 192 So.2d 443. Claims that the statute denying workmen’s compensation benefits to decedent’s purported wife and children was unconstitutional as denying due process and equal protection could not be raised for the first time on motion for new trial. Talley v. A & M Construction Co., 284 Ala. 371, 225 So.2d 359 cert. den. 397 U.S. 995, 90 S.Ct. 1133, 25 L.Ed.2d 402. For other collated cases see Appeal and Error, Ala.Digest, Vol. 2, «=>170(2).

II

The second contention in appellant’s brief asserts the trial court erred in admitting testimony of other unrelated charges.

On cross-examination of state’s witness John Softly, to whom defendant allegedly made the sale of heroin, the defendant’s counsel brought out the evidence that he made a buy of heroin from the defendant on June 8, 1973. (R. 43-44); also that he had contact with defendant on May 24, 1973.

Appellant asserts. error on the part of the trial court in allowing the state to go into the contacts on June 8 and May 24, 1973. We disagree and hold the court’s ruling on the objection to the June 8 meeting to be free of error. Defendant brought out details of the alleged meetings. The state was allowed to bring out other details. Cox v. State, 280 Ala. 318, 193 So.2d 759; Evans v. Patterson, 269 Ala. 250, 112 So.2d 194; Goodson v. State, 42 Ala.App. 266, 160 So.2d 652; Brown v. State, 37 Ala.App. 595, 74 So.2d 521. The trial court sustained defendant’s objection to the transaction with defendant on May 24, 1973.

The trial court on re-direct allowed witness Softly to answer the state’s question, over the defendant’s objection, that during his service with the United Narcotic Detail Operation he had made one hundred thirty-seven cases of “this type.”

The answer as we see it had no bearing on the guilt or innocence of defendant in the instant case, but neither was it injurious to him, taking into consideration all the evidence. It merely shows the activities of the witness as a law enforcement officer in the field of narcotics; it does not state how many of these cases resulted in convictions or acquittal; it does not bolster his instant testimony.

Ill

A third assertion of error relates to the refusal of the trial court to permit defendant on cross-examination to elicit testimony from a state’s witness, George Hays, a law enforcement officer, as follows:

“Q. Do you know Sam Cooper ?
“A. Yes, sir.
“Q. Do you know that Sam Cooper is this young man’s uncle ?
“A. Yes, sir.
“Q. Do you know that Sam Cooper is a dealer in narcotics ?
“A. Yes, sir.
“Q. And you have been trying to get a conviction on Sam Cooper for some time, haven’t you ?
“MR. TATE: We object.
“THE COURT: Sustained.”

The range of cross-examination is within the discretion of the trial court unless substantial injury would thereby result to defendant. Green v. State, 258 Ala. 471, 64 So.2d 84; Adams v. State, 30 Ala.App. 188, 2 So.2d 468; Sowell v. State, 30 Ala.App. 18, 199 So. 900.

We fail to see the relevancy of this testimony to the guilt or innocence of defendant or to the credibility of George Hays’ testimony adverse to defendant. The activities of this'officer, if any, to get a conviction against Sam Cooper and his failure to do so is not relevant to show bias against defendant. It could open the gates to prolonged testimony as to the nature and extent of these activities. We hold there was no error in the ruling of the court.

IV

We are unable to conclude that the arguments of the state prosecutor to which defendant objected created cumulatively an atmosphere of ineradicable prejudice in the minds of the jury against defendant. The alleged sale in the instant case was in a public place near a street. An inference could be drawn therefrom that the traffic in narcotics was in the open and violators needed to be curbed by convictions. It was merely an appeal for law enforcement. Blue v. State, 246 Ala. 73, 19 So.2d 11, is not applicable to the state’s argument in this case.

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

The judgment below is hereby

Affirmed.

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

CATES, P. J., not sitting.

      . Moreover, this issue was decided adversely to appellant in the very recent opinion of Mallory v. State, 55 Ala.App. 203, 313 So.2d 203, cert. den. 294 Ala. -, 313 So.2d 203, and authorities therein cited.


author: BOOKOUT, Judge.

text:
    Charles Leon JOHNSON v. STATE.
    8 Div. 422.
    Court of Criminal Appeals of Alabama.
    April 22, 1975.

      Joe Gilliland, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Charles Leon Johnson was indicted September 21, 1972, by the Franklin County Grand Jury on two counts of first degree murder. On November 14, 1972, he was found guilty of second degree murder on Count I and sentenced to 25 years, and found guilty of first degree manslaughter on Count II and sentenced to 10 years; the sentences to run consecutively.

In the appellant’s testimony, he stated that he was eighteen years of age. In the appellant’s signed confession which was admitted into evidence, his birthdate established him to be eighteen years of age at the time of the trial. Likewise, the judgment entry in the record shows that the trial court upon sentencing ascertained the appellant to be about nineteen years of age.

The offense took place on July 2, 1972, with the appellant being tried November 13 and 14, 1972. The Youthful Offender Act became effective February 10, 1972, Act No. 335, Acts of Alabama, 3rd Special Session, 1971, approved February 10, 1972 (Title 15, § 266(1) et seq., Code of Alabama 1940 as amended).

The Supreme Court of Alabama has held that the trial judge has a duty to refer any person under twenty-one years of age, whose case has not been disposed of in the juvenile court, to a probation officer to make an investigation. That Court held, “Referral in such event is not discretionary, but mandatory, on the part of the trial judge. . . . The duty is upon the trial judge to call the Act to the attention of the youthful offender, just as much as it is the duty of the trial judge to explain to a defendant his constitutional rights when he enters a plea of guilty.” Morgan v. State, 291 Ala. 764, 287 So.2d 914.

Morgan places this Court under an affirmative duty in searching the record for error to determine whether the trial judge performed the mandatory of apprising the defendant of his rights under the Youthful Offender Act. The record in the instant case does not show this to have been done.

This Court remanded with directions the following cases: Wilson v. State, 4 Div. 202 (February 18, 1975); Whitfield v. State, 4 Div. 203 (March 4, 1975). In those opinions, we stated:

“On authority of Morgan, supra, this case is remanded to the trial court to make known to the Appellant his right to petition for trial as a youthful offender. Should he manifest a desire to be so tried, the petition is to be referred to a probation officer for investigation. Tarver v. State, (1975), 56 Ala.App. 36, 318 So.2d 775 .
“After a speedy, full recorded hearing on the petition, a transcript of the proceedings, together with the trial court’s determination, is to be forwarded to this court for review. Edwards v. State, (1974), 55 Ala.App. 544, 317 So.2d 511.”

Based upon Morgan, Wilson and Whitfield, supra, it is necessary that this Court remand the instant case to the trial court below with directions to proceed in accordance with the above quoted instructions.

Remanded with directions.

All the Judges concur.


text:
    Charles Leon JOHNSON v. STATE.
    8 Div. 422.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.

      Joe Gilliland, Russellville, for appellant.
    William J. Baxley, Atty. Gen. and William A. Davis, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Charles Leon Johnson was indicted September 21, 1972, by the Franklin County Grand Jury on two counts of first degree murder. Count I charged that he murdered Melvin Harbin and Count II charged that he murdered Wesley Harris. Trial commenced November 13 and ended November 14, 1972, with a verdict on Count I of guilty of second degree murder and sentence of 25 years; and guilty of first degree manslaughter under Count II with sentence fixed at 10 years. There was no order by the court for the sentences to run concurrently, therefore, the appellant received a combined sentence of 35 years.

This Court remanded with directions for the appellant to be considered for treatment as a youthful offender pursuant to Morgan v. State, 291 Ala. 764, 287 So.2d 914. The trial court on June 20, 1975, filed its return to the remandment showing compliance with Morgan, supra, and denial of treatment as a youthful offender. We must now consider the appeal on the merits.

Cornell Cooper testified that on July 3, 1972, at around 9:00 A.M., he and his wife were driving thróught the mining area of Franklin County when they saw Wesley Harris sitting by the side of the road naked and wearing only a pair of socks. Harris flagged for assistance, and the witness stopped and at the request of Harris, left and called the police and returned. The witness was with Harris when the police came and when the body of Melvin Harbin was found about a quarter of a mile down the mining road which intersected the county road where Wesley Harris had been sitting.

The witness stated that Wesley Harris had blood on his body, one eye was swollen closed, and he had bruises and scratches over his body. He said Harris was able to walk across the road and get into the police car to be taken to the hospital. Thé witness said Harris told him that some boys had killed Harbin and thought they had killed Harris. John James testified that he was employed as a deputy sheriff of Franklin County on July 3, 1972, and arrived at the scene of the crime between 10:00 and 10:30 A.M. on that date. He observed a body located about half way down a hill next to a small pond of water. He then identified State’s Exhibits 1, 2, 3, 4 and 5 as photographs substantially and accurately depicting the scene as it was on July 3, 1972. He stated that the District Attorney took the photographs exhibited; All five exhibits were introduced without objection.

The witness stated that the left foot of the body from the ankle down was in the water and that the body was not clothed. The witness identified three items of clothing, marked' State’s Exhibits 6, 7 and 8, which he had retrieved from the side of the ravine in which the body was then lying. He stated all three items of clothing were in substantially the same condition as when he found them, with the exception that at the time of the trial they were dry whereas the items had been wet when he found them. Defense counsel objected to the introduction of the three items of clothing on the ground that, “The proper predicate had not been laid.” The court sustained the objection.

Carl Pride, a Russellville City Policeman, stated that on July 3, 1972, he was at the mining site where Melvin Harbin’s body was found. He identified a shirt he found some thirty feet up the hill from where the body was located (State’s Exhibit It)) and identified a piece of underwear found in the same general area (State’s Exhibit 9).

Franklin County Coroner, Joe Newton, testified that he arrived at the scene around 10:00 A.M. on the date in question. He, likewise, observed the body in the ravine and observed various cuts and bruises about the face and head and scratches on the body. He stated he could tell from the mud that had settled in the wounds that the body had been in the water for some time. He observed three or four items of clothing between the water and the road and noticed from the appearance of the gravel that someone had fallen or had been dragged down the bank to the water.

Coroner Newton testified that the body was removed to the local funeral home and an autopsy was performed. He identified a photograph of the body (State’s Exhibit 11). He, likewise, identified other photographs of the body taken by the State Toxicologist (State’s Exhibits 12-14). He stated that Wesley Harris died a few days later and identifed photographs of that body (State’s Exhibits 15-17). On cross examination, he stated that he had injected the embalming fluid in the Harbin body prior to the time the autopsy was performed.

James Hickman, Franklin County Deputy Sheriff, testified that he observed the body at the mining site around 11:00 A.M. He stated that he found a belt, a small belt clip, some strips of a tee shirt and possibly a sock at the scene. Sam Gibson, a Franklin County Deputy Sheriff, identified some articles of clothing that had been found at the mining site on July 3, 1972, (State’s Exhibit 18). He estimated that the distance from the road down to the body was thirty or forty feet.

Franklin County Sheriff Swanson Hind-man next testified for the State. He stated that the body of Melvin Harbin was in the pool of water when he arrived at the mining site. He identified State’s Exhibits 10 and 18 and stated that he received State’s Exhibits 6, 7, 8, 9, 10 and 18 from officers at the scene. He had observed some beer cans in the area and observed a blue Rambler station wagon on County Road 59 some time after the body was discovered.

Gladys Harbin identified State’s Exhibit 11 as a photograph of the body of her deceased husband, Melvin Harbin.

John James was recalled as a witness for the State. He stated that on July 3, 1972, at approximately 9:30 P.M., he interviewed the appellant in the interrogation room of the Franklin County Jail. He stated that before taking any statement from the appellant, he advised him of his right to remain silent; that anything he said could and would be used against him in a court of law; if he could not afford a lawyer, one would be appointed before any questioning; that he was asked if he waived his rights, and the appellant said he did.

The witness stated that the District Attorney was present at that time and asked the appellant if he understood his rights; would he waive those rights and talk about the case; that no one in the appellant’s presence of hearing made any threats toward him to obtain a statement, nor did anyone make any offer of reward or promise or inducement of any kind to the appellant to obtain a statement. The witness stated that the appellant’s statement was written down by the District Attorney; that the appellant looked on and read along as the District Attorney read it back to him, and the appellant had the District Attorney make two or three changes or corrections in the statement and then signed it.

At that point in the trial, the State offered the statement in evidence (State’s Exhibit 19) and counsel for the appellant then objected for the first time to the admission of the statement on the ground that it had not been shown that the statement was taken after the defendant had been fully apprised of his constitutional rights. The court overruled the objection and entered the statement into evidence, whereupon the witness read it in open court. The witness then stated that it was his judgment that the appellant was not under the influence of either alcohol, narcotics or drugs at the time the statement was given. Appellant made no further objection to the statement and did not move to exclude it. A summary of the appellant’s statement contained in the State’s brief is here set out for purposes of brevity:

“In substance the confession said that the defendant, Danny Johnson and Becky, Danny’s wife, left on Sunday afternoon, July 2, to go riding around. The threesome had been drinking beer when they went to the pond. When they got there, a blue -Chevrolet station wagon with 3 men in it came up, and the driver and Charles Leon Johnson went swimming. Wes Harris was one of the three men. Harris had some wildcat whiskey which he shared with Charles Leon Johnson. Later in the afternoon these six people then left the pump pond with Danny Johnson driving the station wagon. They stopped at Piggy O’Neals and bought a half pint of wildcat. From there they went to another home and bought 3 cans of beer. On the way back to Russellville they turned off onto a mining road and turned down a road which wasn’t blocked by a cable and parked the car on a hill. The defendant and one of the other men, a skinny man, (Melvin Harbin) went behind the car to relieve themselves. Wes Harris gave the defendant and Danny Johnson some pills. Danny and the skinny man got into a fight and the defendant and Wes Harris fought. Danny Johnson tore the skinny man’s clothes off and rolled him over the bank and down a gully. Danny helped Leon take Wes Harris to the edge of the gully and the defendant ripped his pants off and cut his belt off before flipping him in the gully (R. pp. 50, 51).”

Becky Johnson testified that she was the wife of Danny Johnson and that she was present on July 2, 1972, with Danny and Charles Leon Johnson at a pond when Wesley Harris, Melvin Harbin and Charles Malone arrived in a blue station wagon. She said the appellant and Charles Malone went swimming and later became embroiled in an argument. Subsequently she, her husband, the appellant, Wesley Harris and Melvin Harbin left in her husband’s car to buy some beer and whiskey. She said Wesley Harris told the appellant he knew where he could get some drugs, however, she did not see appellant take any.

The group drove back to the mine headings and parked the car. Wesley Harris stated repeatedly that he could “fight a circle saw,” whereupon the appellant told Harris to get out of the car because he was a circle saw, Some cursing took place and then tempers appeared to be cooling when Harris got out of the car. The appellant then pushed Harris down and each time he tried to get up, the appellant hit him in the stomach and the face and would kick him and stomp him. While all of this was happening, the witness was sitting on the hood of the automobile holding the appellant’s beer for him.

She stated that after a while, her husband Danny went over to where Harris was lying on the ground and started kicking him also. Then her husband and the appellant took off their belts and started beating both Harris and Harbin. She said her husband then came back to the car, got the appellant’s knife, and stated, they “was going to take off their clothes and everything and castrate them.” She further stated, “Well after that, they said they tore their clothes off of them and I don’t know whether they did or not, and the next thing I knew, Danny told me to get in the car and so I got in the car and I heard gravel something like sliding down the hill and I heard somebody hollering and then, Leon come back to the car and got his knife and then Danny and Leon, it took both of them to pull Wesley over to the bank and let him slide off of it.”

The witness said Wesley Harris was begging the appellant to stop hitting him and Harbin. She did not see the clothing removed, however, she did see her husband ■ and the appellant in possession of some pants, shirts and shoes. Her husband and the appellant then jumped in the car, and the three of them hastily departed the scene, driving the car through a cable which was blocking the road. On cross examination, she was allowed to read a sentence from a letter she wrote her husband while he was in jail which stated, “I swear Leon is going to take all the blame, after I get through.” On redirect, she stated that her husband told her the appellant had stabbed Wesley Harris in the back with a small pocket knife.

Charles Malone testified that he was with Wesley Harris and Melvin Harbin on the date in question at the pump pond. Charles Leon Johnson, Danny Johnson and Becky Johnson arrived, and the witness and the appellant went swimming. After the swim, all the others parted company with the witness, and he was not present at the time of the altercation in question.

William O’Neal testified that Wesley Harris, Melvin Harbin, Danny and Becky Johnson and the appellant came to his home on July 2, 1972. He said Melvin Harbin asked him to call the police and complained to him that the others would not let him drive his car. V. J. Hacker testified that he was the brother-in-law of Danny Johnson, that between 8:30 and 10:00 P.M. on July 2, 1972, Danny and the appellant came to his home and told him they had been in a fight. They stated they had a fight with a couple of guys, that Danny Johnson hit one of them a couple of licks and the appellant said he whipped one of them pretty bad. The witness further testified:

“Well, they said they beat one of them up pretty bad and said they didn’t know whether he was beat to death, but thought he was and the other said yes, so that’s all. That’s what they told me, but they was drunk, so I told them to go on home because I didn’t pay them no attention.”

Van Pruitt, Jr., a State Toxicologist, testified that he performed the autopsy on the body of Melvin Harbin on July 3, 1972. He identified the State’s photographs of Harbin’s body as being accurate. He described the abrasions, cuts and lacerations on the body, stated that the air passages were filled with a muddy fluid and silt. He testified that in his opinion, the cause of death was asphyxia or drowning.

Mr. Pruitt also testified that he performed the autopsy on the body of Wesley Harris on July 7, 1972. He identified the State’s photographs of that body as being accurate. He, likewise, testified as to the lacerations, cuts, bruises and skinned areas of the body. The witness testified that the internal examination revealed a foul smelling substance in the abdomen and a perforation of the small intestine. He stated that in his opinion death was caused from peritonitis resulting from the rupture of the small intestine as a result of force exercised to the abdomen, either in the form of blows or injury. He testified on cross examination that peritonitis can be brought on by other means such as drinking. He stated that there was no bruising evident in the area in which the rupture occurred. Danny Johnson, husband of Becky Johnson, was called as a witness and testified concerning the fight. He testified that Wesley Harris offered him fifteen dollars to have intercourse with Becky Johnson. On cross examination, he stated that the appellant took some pills which Wesley Harris gave him. On redirect examination, the witness was asked if he found Becky in the back seat of the station wagon having intercourse with Wesley Harris, and he answered that he did.

Charles Leon Johnson, the appellant, took the stand and testified in his own behalf. He stated that he was eighteen years old, and testified to essentially the. same facts covered by other witnesses up to the time of the actual fight. The appellant claimed the fight commenced when Danny Johnson found his wife Becky in the back seat of the station wagon having intercourse with Wesley Harris. He stated that Danny Johnson pulled Wesley Harris out of the car, that Harris’ pants were down and at that time, the appellant jumped in and started fighting Wesley Harris. He stated that Harris swung back at him and picked up a rock and threw it at the appellant. He said he could not tell whether Danny was fighting with Melvin Harbin at the time as the appellant had his hands full fighting Wesley Harris.

Appellant stated that he knocked Harris off into the ravine, and he thought Danny knocked Harbin in. He stated that they took the pants and shirt off Melvin Harbin to prevent him from following them when they left and that on departing, both Harris and Harbin were alive and were cursing each other and the appellant.

On cross examination, the appellant stated that the District Attorney was present when he was interviewed by Officer John James at the County Jail. He said before he talked to Mr. James, the District Attorney advised him of his constitutional rights. He further stated that neither the District Attorney nor Officer James made any threats to him or offered him any promises or inducements in order to obtain a statement. The appellant stated that some parts of the confession were in error and denied certain parts when the statement was read to him at trial. Over objection, the State was allowed to ask the appellant if he had ever been convicted of a felony in Milam, Tennessee. The defendant answered, “If breaking and entering is a felony then I have been charged and convicted.” On redirect, the appellant stated that he was thirteen years old when he was involved in the Tennessee incident.

The appellant called Beth Robinson as a witness. She testified that she was an employee of the Circuit Clerk’s Office of Franklin County and that her records indicated that Wesley Harris had been convicted of second degree murder and of assault with intent to rob.

There was no motion to exclude the State’s evidence, and no exception to the court’s oral charge. The appellant requested twenty written. charges which were refused, however, he did not request the affirmative charge. No motion for a new trial was filed. The record shows that the appellant dismissed his appeal on November 27, 1972, however, reinstated it by filing a notice of appeal on April 19, 1973. On June 19, 1973, the trial court appointed counsel to represent the appellant and ordered that he be provided with a free transcript on appeal.

I

The appellant’s first argument is that the State failed to prove the corpus delicti. Appellant argues that although the death of both Harbin and Harris was undisputed, the evidence failed to show that the death resulted from the criminal conduct or agency of appellant.

Appellant contends that the State Toxicologist’s testimony did not show death to be the result of blows or abrasions; that Harbin died of asphyxiation and Harris died of peritonitis. Appellant further points out that the Toxicologist stated that drinking could have conceivably produced Harris’ death and that the bruises and abrasions on his body would not be anticipated to produce death.

The testimony of Becky Johnson tends to establish that the deaths were the result of the criminal agency of the appellant and his accomplice Danny Johnson. She testified that the appellant and Wesley Harris were fighting; that appellant was hitting and kicking Harris; that he told her he was going to take the clothes off of the two victims and later said that he did so; that she heard something like gravel sliding and someone yelling; and that she also saw some articles of clothing apparently taken from the victims.

V. J. Hacker testified that the defendant and Danny Johnson both told him they had been in a fight and that they might have beaten one man to death. Wesley Harris told Cornell Cooper that some boys killed Harbin and that they thought they had also killed him (Harris).

The Toxicologist described the victims’ bodies, showing them to be badly beaten with abrasions, cuts, bruises and scratches. The appellant testified that he did get into a fight with Harris and that he and Danny Johnson knocked Harris and Harbin off a drop, or into the pit. Proof of corpus delicti may be established by circumstantial evidence. James v. State, 22 Ala.App. 183, 113 So. 648 (1927). In our opinion, the corpus delicti was proved through circumstantial evidence as well as through direct evidence and was sufficient to present a question for the jury. Where there is legal evidence from which the jury may by fair inference find guilt, this Court has no right to disturb such a finding, the weight and probative value of the evidence being for the jury. Bolton v. State, 21 Ala.App. 373, 108 So. 631 (1926); Haggler v. State, 49 Ala.App. 259, 270 So.2d 690 (1972).

II

The appellant contends that reversible error was committed by allowing the District Attorney to ask if he had been previously convicted of a felony in Tennessee. The appellant cites Sweatt v. State, 156 Ala. 85, 47 So. 194 (1908), as holding that an accused charged with a violent crime, who had not introduced evidence of his good character may not be impeached by proof of his bad general reputation for violence. We do not see that Sweatt, supra has any application in the instant case. The appellant himself was being cross examined in the instant case pursuant to Title 7, §§ 434 and 435, Code of Alabama 1940, touching on his prior conviction of a crime. Counsel for the appellant interposed a general objection, and the trial court overruled.

The trial court could not be put in error in this instance since the question asked the appellant would not have been subject to a general objection. See: Castleberry v. State, 135 Ala. 24, 33 So. 431 (1902).

III

Appellant’s requested charges 1, 3, 4, 5, 6, and 12, concerning circumstantial evidence were refused by the trial court. It is the contention of the appellant that those charges were not covered in the court’s oral charge and considering the evidence in the case, it was very necessary that the court explain the use of circumstantial evidence to the jury.

Not all the evidence presented was circumstantial. In Jones v. State, 54 Ala. App. 167, 306 So.2d 33 (1974), affirmed 293 Ala. 762, 306 So.2d 45 (1975), this Court held similar charges properly refused where not all of the State’s case derived from circumstantial evidence and where the requested charges did not call for consideration of all of the evidence. We find Jones, supra, and the cases cited therein to be ample authority to support the trial court’s refusal of such charges in the instant case.

IV

The appellant contends that the trial court erred in admitting into evidence certain photographs of the two victims taken at the time of the autopsy. Each photograph was identified by witness Van Pruitt, Jr., Toxicologist with the State Department of Toxicology and Criminal Investigation. Mr. Pruitt testified that he was present when each photograph was made and that each substantially and accurately depicted the condition of the bodies at the time he examined them. The photographs were used by Mr. Pruitt to illustrate his testimony in describing the wounds on the two bodies.

Photographs which are properly identified and authenticated may be introduced into evidence, even though gruesome in nature, where they are relevant to show wounds inflicted. The photographs in question were identified and authenticated by witness Van Pruitt, Jr., were used to show wounds inflicted on the two bodies, were illustrative of his verbal testimony and were thus relevant and admissible. Layne v. State, 54 Ala.App. 529, 310 So.2d 249 (1975) and cases cited therein; Cook v. State, 52 Ala.App. 159, 290 So.2d 228 (1974); McHugh v. State, 53 Ala.App. 473, 301 So.2d 238 (1974); McKee v. State, 253 Ala. 235, 44 So.2d 781 (1950); King v. State, 43 Ala.App. 628, 198 So.2d 308 (1967).

V

All the grounds argued by appellant as grounds for reversal have been considered in the light of the record, briefs and arguments of counsel. The record discloses that the case was fairly tried and that the verdict and judgment are supported by the evidence and the law. We have searched the record for error as required by statute and find that the rulings of the trial court do not constitute harmful error.

Affirmed.

TYSON, HARRIS and DeCARLO, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


text:
    Don RAINES v. STATE.
    8 Div. 476.
    Court of Criminal Appeals of Alabama.
    Aug. 13, 1974.
    Rehearing Denied Oct. 1, 1974.

      T. J. Carnes, Albertville, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and George M. Boles, Special Asst. Atty. Gen., Birmingham, for the State.
   DeCARLO, Judge.

Selling marijuana: sentence three years.

On the. night of March 19, 1973, Doug Nelson, an agent of the Alabama Department of Public Safety Narcotics Unit was parked in a Chevrolet van at Jack’s Hamburgers in Albertville. With him were Wayne Romine, a police informer, and Danny Pinson. Appellant was called over to the van and asked, either by Nelson or the informer, if he could sell them some marijuana. There was disputed testimony whether appellant replied he did not sell marijuana, however, he did walk to a Dodge automobile parked about thirty feet away and returned with a plastic bag containing what was later identified as marijuana. Nelson testified that he paid appellant $20.00, placed the bag in his coat pocket, and later turned over to his superi- or officer. All the parties then left the parking lot with Nelson and rode around in the van. During this time, they drank beer and smoked marijuana. Nelson stated that he simulated smoking and that the marijuana was furnished by appellant.

Both appellant and defense witness Danny Pinson testified that when inquiry was made concerning the marijuana, appellant stated he didn’t sell it, but might know where he could get some. Appellant testified that he got the marijuana from someone in the Dodge automobile, delivered it to the van, and then gave the $20.00 to the occupant of the Dodge. It is his contention that he acted only as a conduit.

Being under twenty-one years of age, appellant was told at arraignment that in order to be considered for youthful offender status, he would have to waive trial by jury. Through his court-appointed attorney, appellant did not make this waiver nor did he waive his rights under the Youthful Offender Act (Act No. 335, Extra Session of the Alabama Legislature, 1971). Defense counsel stated that to require appellant to waive trial by jury in order to obtain youthful offender status was unconstitutional coercion.

Appellant was tried as an adult and following his conviction, defense counsel again moved for youthful offender status but was overruled.

I.

It is appellant’s contention that the provision of the Youthful Offender Act requiring a waiver of jury trial prior to being considered as a youthful offender is unconstitutional, and the court erred in its application.

In Flippo v. State, 49 Ala.App. 138, 269 So.2d 155, cert. den., 289 Ala. 743, 269 So.2d 164, Judge Harris resolved the constitutionality of this Act, and any comment by this writer would be merely a cluttering reaffirmation serving no useful purpose.

II.

Appellant next takes the position that to permit youthful offender status to those who have been convicted by a court and to deny it to others who have been convicted by a jury is unconstitutional discrimination. Further, it is a denial of due process and equal protection guaranteed by the Constitution.

Counsel argues that the Federal Youth Corrections Act, 18 U.S.C. Chapter 402, § 5006, defines a “youthful offender” as a person under the age of twenty-two years at the time of conviction. Under federal procedure, the accused may have a jury trial and still have available to him the benefits of this statute.

The decision of our court in Flippo, supra, and the subsequent denial of certiorari by the Alabama Supreme Court, judicially established the Youthful Offender Act as the law regarding youthful offenders, and until changed by the legislature, it remains the legal guide in determining the status of a youthful offender.

In passing the Federal Youth Corrections Act, Congress intended to make available for the discretionary use of federal judges, a system for the sentencing and treatment of youthful offenders by permitting the substitution of correctional rehabilitation rather than retributive punishment. United States v. Lane, 9 Cir., 284 F.2d 935.

By the enactment of Alabama’s Youthful Offender Act, Title 15, § 266(1) et seq., Code of Alabama, our legislature not only sought to provide an alternative method of sentencing minors, but in fact, created a procedure separate and apart from the criminal procedure dealing with adults accused of the same offenses. Flippo, supra.

At the outset, anyone under twenty-one, seeking the status of a youthful offender, is required to give his consent to be tried without a jury. Thus, the option is open to the accused to proceed as an adult and be tried by a jury or waive his right to a jury trial by consenting to adjudication as a youthful offender.

The choice is his and his alone. We are dealing, not so much with the waiver of a constitutional right, but with the operation of additional and beneficial alternatives.

Appellant now insists he is entitled to the advantage of our statute without complying with its mandatory provisions. Since he did not choose to be tried as a youthful offender, he cannot now avail himself of the benefits under this statute.

III.

We do not agree that the trial court erred when it denied appellant’s request for the affirmative charge. A conflict in the testimony is a matter to be resolved by the jury hearing the case. Wadsworth v. State, 45 Ala.App. 62, 223 So.2d 603.

IV.

Finally, appellant maintains this oral instruction by the trial court as to entrapment was incomplete:

“The defendant asserts that he is a victim of entrapment as to the crime charged in the indictment. Where a person has no previous intent or purpose to violate the law but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment, and the law, as a matter of policy, forbids his conviction in such a case. On the other hand, where a person already had the readiness and willingness to break the law, the mere fact that law enforcement officers or their agents provide what appears to be a favorable opportunity is not entrapment. If, then, the Jury should be satisfied beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit the crime such as charged in the indictment whenever opportunity was afforded and that law enforcement officers or their agents did no more than offer the opportunity, then the Jury should find that the defendant is not a victim of entrapment. On the other hand, if the evidence in the case should leave you with a reasonable doubt as to whether the defendant had previous intent or purpose to commit any offense of the character here charged and did so only because he was induced or persuaded by some law enforcement officer or their agent, then it would be your duty to acquit him.”

Appellant’s counsel does not contend that the court’s charge was error, but insists it was not enough .to instruct the jury on the doctrine of entrapment. He urges that the trial court should have given the following charge:

“The Court charges you that when a person is prosecuted for the commission of a crime or an offense and it appears from the evidence that the act described in the accusation was in fact done by the defendant but it further appears that the criminal design for doing the act originated in the mind of the state law enforcement officer and that such officer induced the defendant into performing the act, then the defendant is said to have been entrapped into the commission of the offense charged and if you find from the evidence that such occured (sic) in this case you should return a verdict of not guilty.”

Appellant states that his requested charge includes the all important element of intent. He asserts • the court’s oral charge did not instruct the jury that if the intent originated in the mind of the state officer who then induced appellant to commit the offense, then appellant could not be convicted.

After carefully considering the court’s oral instruction, we find it sufficiently covers the point raised by appellant. Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716.

No error appears in the record and the judgment is affirmed.

Affirmed.

ALMON, TYSON and HARRIS, JJ., concur.

CATES, P. J., not sitting.