text:
    Thadeus WRIGHT v. STATE.
    1 Div. 840.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

On June 3, 1974, appellant was adjudicated a youthful offender by the Circuit Court of Baldwin County under an indictment charging forgery. He received a sentence of two years, which was suspended, and he was placed on probation for three years. On August 6, 1976, a proceeding to revoke his probation was instituted. On February 2, 1977, a probation revocation hearing was conducted wherein it was shown that appellant had been convicted on June 30,1976, in the Circuit Court of Mobile County on six charges of forgery. At the probation revocation hearing appellant was present and represented by counsel. His probation was revoked, and he was ordered to serve the sentence imposed on him on June 3, 1974. This appeal is from the order of revocation and reinstatement of his sentence.

The evidence on the probation revocation hearing consisted of duly certified official documents showing appellant’s conviction in the Circuit Court of Mobile County, documents of probation officers, the testimony of the Baldwin County probation officer, and the testimony of appellant. It was established on the hearing that appellant had a criminal record in Mobile County and had been placed on probation by the Circuit Court of Mobile County prior to his conviction on the six charges of forgery on June 30, 1976, and that sometime prior to that date such probation had been revoked by the Circuit Court of Mobile County. The evidence also shows that it was understood between the probation office in Mobile County and the probation office in Baldwin County that the probation office in Mobile County was to supervise appellant’s probation cases.

On the hearing in the case under review, counsel for the probationer-appellant. took the position that he was denied “a swift and speedy probation hearing” and that the delay of approximately seven months between the occurrence or occurrences that prompted the proceeding to revoke and the hearing that culminated in the revocation vitiated the order of revocation. In an opinion by Judge DeCarlo, we have recently held to the contrary:

“The application of the speedy trial principle to probation revocation hearings has not been determined in Alabama. This is the first occasion when such an insistence has been made. It is our judgment that a probation violator’s warrant could be issued and probation revoked anytime before the expiration of the term for which probation was granted. The right to a speedy trial is not involved. Cox v. Feldkamp, 438 F.2d 1 (5th Cir. 1971); Moultrie v. State of Georgia, 464 F.2d 551 (5th Cir. 1972).” Brantley v. State, Ala.Cr.App., 340 So.2d 901 (1976).

During the hearing there was an objection by probationer’s counsel to a question asked the Baldwin County probation officer relative to the report of the Mobile County probation officer, on the ground that the report was not made by the witness. The objection was overruled. Promptly after the overruling of the objection, State’s counsel interrogated the witness as to the receipt by him of the report in the regular course of business. Thereafter, counsel for probationer questioned the witness as to the report. It seems that the only question to which the objection was made was never answered by the witness, other than as it may have been answered by his testimony in response to other questions asked him by counsel for the State, or in his testimony in reply to questions asked by counsel for the probationer. No injury resulted to appellant from the overruling of the objection. Furthermore, a proceeding to revoke probation is not a criminal prosecution, and on a hearing thereof, the court is not bound by strict rules of evidence. Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); Martin v. State, 46 Ala.App. 310, 241 So.2d 339 (1970); Nicholson v. State, 56 Ala.App. 3, 318 So.2d 744 (1975).

The trial court was well within its rightful exercise of discretion in revoking appellant’s probation. There is no definite criterion or measure of proof necessary to justify the revocation of one’s probation. Only a gross abuse of discretion will justify the reviewing court in disturbing the trial court’s conclusions. Williams v. State, 40 Ala.App. 139, 109 So.2d 145 (1959); Nicholson v. State, supra.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    George Randall SEXTON v. STATE.
    3 Div. 747.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.

      Gregory A. Carr for Crenshaw & Minor, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for the possession of amphetamine contrary to the provisions of the Alabama Uniform Controlled Substances Act. Punishment was fixed by the trial court at four years imprisonment.

Two questions are raised on appeal: (1) Whether there was probable cause to arrest the appellant and (2) whether law enforcement officers were properly permitted to testify to conversations they overheard through the use of an electronic receiving device.

On the 21st of July, 1976, narcotic agents for the State of Alabama and the Montgomery City Police Department had occasion to establish surveillance of apartments number 102 and 170, Colony Apartments, Montgomery, Alabama. The appellant was known to be living in Apartment 102 which was located in line and at the opposite end of the apartment building from Apartment 170. At approximately 5:30 that afternoon, Mike Connors, who was working with the narcotic agents, was admitted into Apartment 170. He was wearing a concealed body transmitter. The receiver to this unit was located in the back seat of an automobile parked near both apartments where the state and city agents were waiting.

Connors entered Apartment 170 and engaged in a conversation with a man named Seivers about purchasing some marijuana and “crystal meth” (crystal methamphetamine, a methamphetamine in powdered form). The narcotics agents observed the appellant walk down the sidewalk and enter Apartment 170. Three men then engaged in conversation concerning narcotics — Seiv-ers, Connors and the appellant.

Immediately after the officers heard someone say that “he had to go get the stuff, get the crystal meth and some marijuana”. They saw the appellant leave Apartment 170 and go to Apartment 102. They then saw the appellant leave his own apartment carrying a brown paper bag and walk toward Apartment 170. At this time the officers arrested the appellant and the four occupants of Apartment 170. When the appellant was stopped he was trying to hand the bag to some unidentified individual who was walking on the sidewalk. Marijuana (1.2 ounces) was found in the paper bag and amphetamines were found in the appellant’s pocket in a search incident to arrest.

I

The appellant initially contends that the trial court committed reversible error in denying the motion to suppress. It is argued that since the state failed to prove that the arrest of the appellant without a warrant was based on probable cause, any evidence seized incident to such unlawful arrest was inadmissible.

Whether a warrantless arrest is constitutionally valid depends upon “whether, at the moment the arrest was made, the officers had probable cause to make it.” Beck v. State of Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). State narcotic agents are authorized to make warrantless arrests whenever they have probable cause to believe that the person to be arrested has committed or is committing a violation of the law of the State of Alabama relating to narcotics and controlled substances. Title 22 § 258(54), Code of Alabama 1940 (1971, Act No. 1407, approved September 16, 1971). Officers are said to have “probable cause” to arrest if at the moment of arrest:

“The facts and circumstances within their knowledge and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing that (the subject of the arrest) had committed or was committing an offense.” Beck, supra, 379 U.S. at 91, 85 S.Ct. at 225; See also Sellers v. State, 48 Ala.App. 178, 186, 263 So.2d 156, 163 (1972).

The appellant was in Apartment 170 when marijuana and crystal meth were being discussed. From the conversation, Officer Hobbie “could understand that there was marijuana in that apartment.” Immediately after someone said that they had to go get the rest of the “stuff” the appellant left Apartment 170 and went to his own apartment. He returned carrying a brown paper bag.

The appellant contends that because the officers did not know his voice they did not have probable cause to arrest. This argument is without merit.

“In order for an [officer] to have probable cause to arrest he need not know the identity of the person being arrested. He need only know enough to support a prudent man’s belief that an offense is being committed by the person, known or unknown, whom he is arresting.” United States v. Llanes, 398 F.2d 880, 883, cert. denied, 393 U.S. 1032, 89 S.Ct. 647, 21 L.Ed.2d 576 (1968).

The officers heard a conversation in the apartment about the sale of marijuana and crystal meth. They saw the appellant enter that same apartment and heard continued conversation about narcotics.

Two officers testified that they heard someone say that they were going to get the rest of the meth and marijuana; both officers saw the appellant leave the apartment immediately after these words were spoken, go to his own apartment, and return carrying a brown paper bag. At this point a prudent man would be justified in believing that a violation of the narcotics law was being committed by the person returning to the apartment. Llanes, supra.

When the arrest was made, the officers were not acting on bare suspicion. From what they had heard they knew that marijuana was present in the apartment and that someone was going to get some more. The officers had reason to believe that one felony had been committed (possession) and that another was in the process of being committed (sale). This knowledge was sufficient to constitute probable cause to support an arrest without a warrant. United States v. Lozaw, 427 F.2d 911 (C.A.N.Y.1970). Thus the arrest of the appellant was lawful and the search of his person and consequent seizure of the amphetamine from his person and the brown paper bag containing marijuana were incidental to his lawful arrest and valid. United States v. Beigel, 370 F.2d 751, cert. denied, 387 U.S. 930, 87 S.Ct. 2049, 18 L.Ed.2d 989 (2nd Cir. 1967).

II

The appellant contends that the testimony of the two officers to the conversation they overheard constitutes rank hearsay and denied the appellant his right to confrontation.

A tape recording was made of the conversation inside Apartment 170. This tape was not used by the state in its prosecution of the appellant. After the state rested the tape was admitted as a defense exhibit. We have listened to the entire tape and found it to be virtually useless in determining what was said inside Apartment 170 due to the constant interference of a television set blaring in the background.

At trial, two officers testified to what they heard while listening to the conversation as it was received. For reasons left to our imagination, Connors, the individual inside the apartment, did not testify. We know of no requirement that such a conversation be recorded. Certainly the officers were properly allowed to testify even though the informer or undercover agent was not produced. See On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). Whether the officers actually heard what they testified to was a matter of credibility for the jury. United States v. Miller, 316 F.2d 81, 83, cert. denied, 375 U.S. 935, 84 S.Ct. 335, 11 L.Ed.2d 267, reh. denied, 375 U.S. 989, 84 S.Ct. 520, 11 L.Ed.2d 476 (1963).

When a portable transmitting-and-receiving set, or other device, is used to overhear conversations, the initial question for admission of evidence involves two sets of interrelated problems: First, whether the device used is an effective means of communicating sound, and second, the identification of. the alleged speaker. United States v. Sansone, 231 F.2d 887, cert. denied, 351 U.S. 987, 76 S.Ct. 1055 100 L.Ed. 1500 (C.A.N.Y.1956). See also 22A C.J.S. 510 Criminal Law § 642. While the state did not produce any testimony to reliability and accuracy of the transmitting and receiving device, no objection was made to the admission of the agents’ testimony on this ground.

The appellant does contend that the agents’ testimony was hearsay because neither agent could say that the conversation in Apartment 170 occurred in the presence of the appellant nor could they sufficiently identify the voice of the appellant.

Officer Hobbie testified that he heard the appellant’s voice in those conversations; that although he was not familiar with the voice of the appellant when he heard the transmission, he talked with him after his arrest and therefore recognized his voice. This identification was proper. United States v. Borrone-Iglar, 468 F.2d 419, cert. denied, Gernie v. United States, 410 U.S. 927, 93 S.Ct. 1360, 35 L.Ed.2d 588 (C.A.N.Y.1972). Officer Brown testified that he was familiar with the appellant’s voice. There was testimony from both officers that the appellant did take part in the conversation and that they did recognize his voice.

There is evidence that the appellant was in the apartment. There is also evidence that he took part in the conversation. Clearly then the testimony of the officers is not hearsay. Miller, supra. The reliability of the transmitting device and the adequacy of the identification of the voices were matters going to the weight to be given the evidence rather than to its admissibility. United States v. Walker, 320 F.2d 472, cert. denied, 375 U.S. 934, 84 S.Ct. 339, 11 L.Ed.2d 266 (1963).

We have searched the record for error and have found none. Therefore this case is due to be and is hereby

AFFIRMED.

All Judges concur.


text:
    Clifford MILLER v. STATE.
    3 Div. 755.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.

      William E. Skinner, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

Clifford Miller, the appellant, was indicted by Grand Jury of Montgomery County for escape and attempt to escape under Title 14, § 153, Code of Alabama 1940. On the date set for trial, February 23, 1977, Miller appeared in court with his counsel, withdrew his plea of not guilty and entered a plea of guilty. Although Miller was nineteen years old he was not advised of his right to be considered for youthful offender treatment under Title 15 §§ 266(1)-(6), Code of Alabama 1940 (1971, 3rd Ex.Sess., Act No. 335, approved February 10, 1972). Miller was sentenced by the Circuit Court of Montgomery County to a term of thirteen months imprisonment in the penitentiary. At the time of his escape, Miller was serving a fifteen month sentence for burglary and grand larceny.

The only question we consider on appeal is whether an escape by an inmate on the work release program is a felony or misdemeanor.

In determining the voluntariness of the guilty plea the trial judge inquired into the factual basis for the plea. Miller stated:

“. . . I went on work release and got with the wrong dude and got drunk and turned around and took off.”
* * # * # *
“. . and went up toward Birmingham and got caught.”
* * * * # *
“Yea, I took off from the trailers.”
* * * * * *
“I’m guilty of escape. I left the premises. That’s escape right there.”

Miller was captured approximately five hours after his escape.

I

The indictment in this case was framed under Title 14, § 153, Code of Alabama 1940.

“Any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary before the expiration of the term for which he was sentenced, shall, on conviction be imprisoned for an additional term of not less than one year.” (Emphasis added)

In 1972 a work release program was enacted and placed under the jurisdiction of the Board of Corrections. Title 45, §§ 188(1)-(11), Code of Alabama 1940, 1973 Cumulative Supplement (1971, 3rd Ex.Sess., No. 307, approved February 10, 1972). Section 188(5) concerns escape while on work release.

“The willful failure of an inmate to remain within the extended limits of his confinement or to return within the time prescribed to the place of confinement designated by the commissioner shall be deemed as an escape from the custody of the board and shall be punishable as prescribed by law.” (Emphasis added)

Section 188(11) provides that anyone violating any of the provisions of the chapter on work release (§§ 188(1)-(11)) shall be guilty of a misdemeanor.

The apparent conflict between Title 14, § 153 and Title 45, § 188(5) is resolved by § 13 of the Work Release Act.

“All laws or parts of laws which conflict with this Act are repealed.” 1971, 3rd Ex.Sess., No. 307, p. 4597, § 13, approved February 10, 1972.

In providing a penalty for escape in the Work Release Act the obvious intent of the Alabama State Legislature was to reduce the crime of escape from a felony to a misdemeanor for an inmate on the work release program. It is a fundamental principle of statutory construction that in enacting the statute the legislature had full knowledge and information as to prior and existing law and legislation on the subject of the statute.

While a guilty plea is a waiver of all nonjurisdictional defects and admission of the truth of whatever is sufficiently charged in the indictment, it does not prevent a defendant from taking advantage of defects apparent of record. Albright v. State, 50 Ala.App. 480, 485, 280 So.2d 186, 191 (1973).

An indictment under Title 14, § 153 (felony escape from penitentiary or custody) will not support a conviction for a violation of Title 45, § 188(5) (misdemeanor escape while on the work release program). One is not a lesser included offense of the other. For this reason, the judgment of the trial court is due to be reversed and remanded. See Mitchell v. State, 248 Ala. 169, 27 So.2d 36 (1946).

REVERSED AND REMANDED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Roosevelt HOLLOMAN v. STATE.
    6 Div. 426.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.

      No brief for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: ninety-nine years imprisonment.

. The evidence showed that around 6:45 P.M. on March 29, 1976, the appellant and his brother, Michael Holloman, went to the apartment where Welbert Johnson was staying. They cursed and threatened Johnson and then began fighting him. The motive is unclear, and it appears to be a senseless scuffle that culminated in a knifing. The appellant repeatedly stabbed Johnson in the back, while Michael Holloman held him on the ground. Both brothers ran away when a resident of the apartment fired two warning shots at the duo. There were four eyewitnesses to the killing.

Michael Holloman testified for the defense that he was “tussling” with Johnson for about ten minutes. Johnson had a knife, but did not cut him. Michael’s brother Roosevelt (appellant) came up and joined in the fight and stabbed Johnson. The witness was apparently attempting to show self-defense on the part of his brother, but he definitely testified that the appellant did the stabbing. None of the other witnesses saw the victim with a knife, and the police did not find one at the scene. One police officer, who interrogated Michael Hollo-man, testified that the witness did not tell him that the victim was armed with a knife. The appellant did not testify.

I

The identity of the victim was established by the four eyewitnesses. The victim’s name was set out in the indictment as “Wilbur” Johnson, whereas on trial it was shown (by the State) that his name was actually spelled “Welbert. The victims father testified that he was known as, and called by the name “Wilbur.” There was no objection, plea, motion or demurrer filed contending that a fatal variance existed because of the misspelling of the victim’s first name in the indictment. We conclude that no error resulted. In Russell v. State, 54 Ala.App. 452, 309 So.2d 489 (1974) cert. denied 293 Ala. 773, 309 So.2d 495, we held that no material variance is shown where an indictment identifies a victim by the name by which he is known in the community where he lived, although it is not his true name. See also: Roberts v. State, 25 Ala.App. 477, 149 So. 356 (1933). One of our latest expressions in this regard is found in an opinion by Judge Tyson, Westfaul v. State, 56 Ala.App. 519, 323 So.2d 404 (1975) cert. denied 295 Ala. 427, 323 So.2d 406, wherein we reached the same conclusion as in the instant case.

II

Several photographs of the victim’s body were introduced over objection that they were gruesome, cumulative and of no probative value. We find no abuse of discretion on the part of the trial judge in admitting the photographs into evidence. They were properly identified and authenticated and tended to shed light on the nature of the wounds and the ferocity of the attack. Lewis v. State, Ala.Cr.App., 339 So.2d 1035 (1976) cert. denied, Ala., 339 So.2d 1038; McHugh v. State, 53 Ala.App. 473, 301 So.2d 238 (1974).

III

Counsel for appellant attempted to impeach the credibility of State’s witness Alma Reed when the following occurred:

“Q. Do you know her general reputation in the community in which she lives?
“A. Well, it’s not so good.”

The prosecutor then objected, and the trial judge sustained the objection, to which appellant excepted.

The credibility of a witness may be attacked by questions relating to the general reputation of that witness in the community. Pugh v. State, 42 Ala.App. 499,169 So.2d 27 (1964); Gamble, McElroy’s Alabama Evidence (3rd ed. 1977), § 140.01. However, we find that no prejudicial error resulted since the witness gave the answer which appellant sought to elicit prior to the objection. Rule 45, Alabama Rules of Appellate Procedure.

Counsel for appellant also attempted to elicit testimony concerning the bad general reputation of the victim. He excepted to the trial judge’s refusal to allow such testimony. The general reputation of the victim was immaterial and irrelevant. In Anderson v. State, 30 Ala.App. 124, 2 So.2d 461 (1941) the Court of Appeals held:

“There was no impropriety in disallowing proof of the general bad character of the deceased. In a murder prosecution, such inquiry should be limited to his character or reputation for violence, turbulence, and bloodthirstiness; and this, of course, only where the issue of self-defense is presented. Sanford v. State, 2 Ala.App. 81, 88, 57 So. 134; McKenney v. State, 17 Ala.App. 117, 82 So. 565; 30 C.J., p. 229, Sec. 465.”

Counsel for appellant next asked if a witness knew the victim’s general reputation in the community for peace and quiet. The trial judge sustained the State’s objection, and the appellant excepted. It is now generally recognized that in asserting self-defense, the accused may prove the victim’s bad general reputation for peace and quiet, McElroy’s Alabama Evidence, § 33.01(5), supra; however, counsel must limit the scope of the question to the time of, or to a time prior to the alleged offense. Standard v. State, 51 Ala.App. 176, 283 So.2d 627 (1973). Counsel for appellant did not so limit his question, and thus the trial court will not be held in error for sustaining the State’s objection.

IV

The appellant submitted one written requested charge on the subject of reasonable doubt, which was refused by the court. The subject was adequately and substantially covered in the trial court’s oral charge to the jury and therefore the requested charge was properly refused. Title 7, § 273, Code of Alabama 1940.

There was no motion to exclude the State’s evidence, no request for the affirmative charge and no motion for a new trial. The sufficiency of the evidence is therefore not subject to review. Hunter v. State, Ala.Cr.App., 331 So.2d 406 (1976).

AFFIRMED.

All the Judges concur.


author: CLARK, Supernumerary Circuit Judge.

text:
    John Alvin LEE v. STATE.
    7 Div. 534.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    See also, Ala.Cr.App., 349 So.2d 138.
    Eason Mitchell, Calera, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

This is an appeal from an order denying a petition for writ of error coram nobis, which by agreement of the parties was orally amended to include a petition for writ of habeas corpus.

The petition as amended relates to the proceedings in a case in which petitioner was convicted of having carnal knowledge of a girl over the age of twelve years and under the age of sixteen years and was sentenced to imprisonment for ten years. The judgment of conviction and sentence was affirmed on March 5, 1974. Lee v. State, 52 Ala.App. 275, 291 So.2d 367. The coram nobis petition was submitted in pro-pria persona and filed December 23, 1975.

The petition contained a mishmash of allegations of grievances and twenty-six separate grounds for relief, many of which, according to the record before us, are wholly lacking either in factual support or in applicability to the facts. For instance, one ground is that “petitioner was not given ‘Miranda’ warning,” and the record fails to show that there was ever any evidence either presented or admitted tending to show any confession or inculpatory statement by defendant, which would make applicable the familiar rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Other instances are that “prosecutrix was particeps crimines,” “the age of prosecutrix was not proved at trial,” “judicial discretion was abused at, before, and after trial,” and that the “transcript of trial, as submitted to the Alabama Criminal court of appeals was not a true transcript of trial.”

Notwithstanding the inadequacy, the obvious inaccuracies, and the vagueness of the petition, the learned trial judge, in recognition of petitioner’s claim of indigency and his imprisonment, acted with meticulous care to afford him his Constitutional rights; and at the possible expense of acting above and beyond the call of duty, he appointed counsel to represent petitioner, affording said counsel ample opportunity to present all matters properly presentable at a scheduled hearing of the petition. After a denial of the petition, it was made known to the court that petitioner desired to appeal. The trial court afforded him a free transcript and appointed other counsel to represent him on appeal. On the trial of the basic case and on the appeal thereof, defendant was represented by employed counsel. Other counsel had been employed for the trial, but said counsel had been discharged.

The case on appeal was submitted on briefs. In addition to the briefs filed by appellant’s counsel and by State’s counsel, we find that appellant has himself filed a brief. It is obvious that he is dissatisfied with the services of two separate attorneys employed at his instance and two separate attorneys appointed by the court, as well as two separate judges, one trying the criminal case against him and the other handling the petition for writ of error. It makes the preceding sentence too lengthy to mention therein the grand jury, the trial jury, the witnesses against defendant, the district attorney, and appellant’s former wife as special objects of his dissatisfaction. Doubtless this Court is the next in line, unless it yields to appellant’s appeal for relief. However “devoutly to be wish’d” an escape from that fate might be, we see no way to avoid it.

In the brief of appellant’s counsel, carefully and orderly prepared, it is contended that petitioner was denied the effective assistance of trial counsel in that:

(1) There was a conflict of interest between the interest of trial counsel in representing defendant’s former wife and his interest in representing defendant,

(2) His trial counsel failed to subpoena witnesses that would have been of benefit to defendant, and

(3) Petitioner’s employed counsel on the trial and on appeal from his conviction failed “to perfect an appeal.”

As to (1), the alleged conflict of interest of defendant’s trial attorney, a complete picture of that which is before us is not shown without a reference to two other cases in this Court, in addition to the one already cited, in which the present appellant was the appellant. Lee v. State, 51 Ala.App. 332, 285 So.2d 495, cert. denied 291 Ala. 787, 285 So.2d 500 and Lee v. State, 57 Ala.App. 366,328 So.2d 617, cert. denied 295 Ala. 409, 328 So.2d 624. The first was an appeal from a conviction of this appellant of murder in the second degree; the second, involving the same conviction, was an appeal from a denial of a petition for writ of error coram nobis, on the principal ground that on the trial for murder there was a conflict of interest of defendant’s counsel, i. e., his interest as counsel for defendant was in conflict with his interest as counsel for defendant’s former wife.

At the time of the trial of the carnal knowledge case, defendant had been convicted in the murder case, his trial attorney-had been released, a new attorney had been employed and an appeal had been taken in that case. The new attorney was the same one that represented appellant on the trial of the carnal knowledge case and on appeal from the conviction therein.

In the coram nobis proceeding in the case under review, the contention is made that the conflict of interest on the part of petitioner’s counsel, by reason of the claimed difference in the interest of petitioner and the interest of petitioner’s former wife, came to a head a few days after the affirmance of the conviction and sentence in the carnal knowledge case, because of a controversy that had arisen between defendant and defendant’s former wife as to the custody of their children, or some of them. There seems to be little, if any, contention that there was any conflict of interest during the trial of the case or before the af-firmance of the conviction and sentence. Even if there were, it seems to us, as held in Lee v. State, supra, 328 So.2d 617, 623-624, that appellant knew what was involved in the matter of representation by an attorney who to some extent was an attorney for defendant’s former wife as well as for defendant, and that he voluntarily, knowingly and intelligently accepted such representation.

As to (2), we are committed, and courts generally are committed, to the proposition that even though it can be definitely shown that an attorney has made a mistake in the trial of a case that results in a judgment unfavorable to his client, this alone is not sufficient to demonstrate that his client has been deprived of his constitutional right to adequate and effective representation by counsel. Gore v. State, 45 Ala.App. 146, 227 So.2d 432 (1969). The trial of a case in a court of law is still an adversary proceeding, a genuine contest, wherein each party is attempting, presumably honorably, to win. The contest is an antithesis to solitaire. One’s move as a litigant, or an attorney for a litigant, is often largely determinable by what he thinks will be his opponent’s move. No one can determine that with absolute accuracy. To hold that a client has been deprived of adequate and effective representation by counsel merely because counsel fail to have a subpoena issued for a witness would collide headon with the unquestionable truth that time and again an attorney has been able to win a case by the fact that he used a witness whom he had not subpoenaed, that is, that if he had subpoenaed the witness, no opportunity would have been presented him to win the case by the use of such witness. In saying this, we are not attempting to discount the modern trend toward the elimination of surprises in trials, or to derogate any rules that require a party to give notice to opposing parties of the identity of any witness one expects to use. However, in the absence of such a rule, or some understanding between the parties, or their counsel, or instructions of the court, requiring him to notify his opponent of his plans, counsel is expected to keep his plans to himself, if this is in accordance with what he deems to be in the best interest of his client.

As to (3), petitioner-appellant’s reference to the alleged failure of his employed counsel “to perfect an appeal” pertains to a failure to petition the Supreme Court of Alabama for a writ of certiorari to the Court of Criminal Appeals, which requires a prior application for rehearing and a denial thereof. The evidence in the cor-am nobis proceeding herein is vague as to any understanding between defendant and his counsel as to the extent of counsel’s services on appeal. Something is said to the effect that counsel agreed to appeal the case to the Supreme Court of Alabama. This could hardly have been accurate in the light of Code of Alabama, 1973 Cum.Supp., Tit. 13, § 111(2), as follows:

“The court of criminal appeals shall have exclusive appellate jurisdiction of all misdemeanors, including the violation of town and city ordinances, bastardy, habe-as corpus and all felonies, including all post conviction writs in criminal cases.”

The appeal bond in the carnal knowledge case signed by appellant is captioned “APPEAL BOND TO COURT OF APPEALS CRIMINAL CASES” and shows twice in its body that it is to the “Court of Appeals for the State of Alabama.” The evidence on the coram nobis hearing does not convince us that there was an understanding between defendant and his counsel, or any agreement or assurance by his counsel, that he would obtain a review of the case by the Supreme Court of Alabama, in the event of an adverse review by the Court of Criminal Appeals. The record fails to convince us either that appellant’s employed counsel was under a duty to proceed via writ of certiorari to the Supreme Court of Alabama or that there was a duty upon the trial court, or either of the appellate courts, to provide appellant with an attorney for that purpose. Even if there were, it is clear that no injury to appellant resulted therefrom.

The complete record on appeal of the carnal knowledge conviction, including the court reporter’s transcript of the evidence and proceedings, was introduced in the cor-am nobis proceeding, and is now before us. We have again studied it, and find again, as we did in Lee v. State, 52 Ala.App. 275, 291 So.2d 367, that there was no error prejudicial to appellant.

We should note that in our opinion in the case we did not expressly qualify, as some cases have expressly qualified (but others have not), the rule that the overruling of a general objection to the admission of evidence presents no question for review. The rule is a qualified one; the qualification is variously stated. Rule 33 of the Alabama Rules of Practice in Circuit and Inferior Courts provides:

“When, in the progress of the trial of any cause in a court of original jurisdiction, objection^ and exception are reserved to the introduction of testimony that is not patently illegal, or irrelevant, such exception will not be considered an error, unless the record shows that the grounds of objection were specified. In all cases, the presiding judge, before ruling on any objection to testimony, may call on counsel to specify the grounds on which it is rested; and the appellate court, in revising such decision, must consider only the grounds of objection which are shown to have been clearly specified.” Code of Alabama 1940, Recomp.1958, vol. 3, p. 1199.

A collection of cases in which the “not patently illegal, or irrelevant” qualification of Rule 33 has been enlarged, or linguistically expanded, is to be found in Gamble, McElroy’s Alabama Evidence, §§ 426.01(8)-426.01(10) (1977).

The evidence admitted in the case that was under review in Lee v. State, 291 So.2d 367, 369, was “not patently illegal, or irrelevant.”

There is no error in the record and proceedings in the trial court. Its judgment adverse to petitioner was correct. Nothing written in appellant’s pro se brief and argument leads to a different conclusion. The judgment appealed from should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.

      . See: Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974):
      “A. The North Carolina appellate system, as are the appellate systems of almost half the States, is multitiered, providing for both an intermediate Court of Appeals and a Supreme Court. The Court of Appeals, was created effective January 1, 1967, and, like other intermediate state appellate courts, was intended to absorb a substantial share of the case-load previously burdening the Supreme Court. . . .”
      ******
      “B. The facts show that respondent, in connection with his Mecklenburg County conviction, received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking discretionary review in the State Supreme Court, his claims had ‘once been presented by a lawyer and passed upon by an appellate court.’ Douglas v. California, 372 U.S., at 356, 83 S.Ct., at 816. We do not believe that it can be said, therefore, that a defendant in respondent’s circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court.” (Footnote omitted.)


text:
    John Alvin LEE v. STATE.
    3 Div. 756.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    See also, Ala.Cr.App., 349 So.2d 134.
    R. Howell Dean, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The petitioner is an inmate of the Alabama Prison System serving a ten year sentence for murder in the second degree and a ten year sentence for carnal knowledge. Petitioner filed a petition for a writ of habeas corpus in the Circuit Court of Montgomery County alleging that he had been deprived of “good time” credit under Act No. 182 without due process of law. Petitioner also asserts that his sentences are to run concurrently and not consecutively. A hearing was had and the writ was denied.

A brief history of Act No. 182 is necessary before a consideration of the issues on this appeal. On July 29,1976, the Alabama Legislature passed Act No. 182, Regular Session 1976, which allowed the Alabama Board of Corrections to award incentive good time credit to prison inmates in exceptional cases of good behavior and industriousness. On the 8th of September 1976 the Attorney General’s Office, State of Alabama, issued an opinion declaring the Act to apply retroactively. Under this opinion, petitioner’s release date was computed to be January 3, 1979. Pursuant to this opinion some prison inmates were given credits and released from prison.

On November 3, 1976, the Attorney General issued a second opinion stating that the Act would not have a retroactive application. The Commissioner of the Board of Corrections then rescinded his earlier calculations for incentive good time credits for all inmates who had not been released, including petitioner, and recomputed the incentive good time credits pursuant to the opinion issued November 24, 1976. Petitioner was then informed that his release date was January 3, 1979.

I

The initial issue presented by the petitioner has been recently answered by the Supreme Court of Alabama in response to a certified question from the United States District Court for the Middle District of Alabama pursuant to Rule 18, Alabama Rules of Appellate Procedure. In Baker, et al. v. Baxley, et al., 343 So.2d 468, issued July 22, 1977, our Supreme Court held that Act No. 182 was not intended to be retrospective. Additionally they held that there was no invidious or unconstitutional discrimination between those inmates who were credited with incentive good time pursuant to the Attorney General’s opinion of September 8,1976, and released from custody, while other inmates (which would include petitioner), although credited with such good time but before being released, had their good time revoked and recalculated pursuant to the Attorney General’s opinion of November 24, 1976.

In Baker, supra, the Supreme Court held that there was no violation of the equal protection clause of the Alabama Constitution and the Fourteenth Amendment to the Federal Constitution because the

“unequal application of Act No. 182, ., was based upon a misapprehension of the Act’s legal effect, and was not based upon an unjustifiable standard such as race, religion, sex or other arbitrary classification. Consequently, the unequal application would not violate the equal protection clause of either the state or federal Constitution. Cf. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).
“The fact that some inmates may have been released prematurely because the Board of Corrections was relying upon a misapprehension of the law cannot work a discrimination because of the Board’s refusal to release others. / . . . It is sufficient to point out that the Board was not legally or constitutionally required to perpetuate its mistake.”

Under this authority the petitioner’s equal protection argument is without merit.

II

Petitioner argues that his sentences are concurrent and not consecutive. On January 4, 1974, the petitioner was convicted of murder in the second degree in Jefferson County and sentenced to ten years in the state penitentiary. On March 16, 1974, he was convicted of carnal knowledge in the Circuit Court of Shelby County and sentenced to ten years in the penitentiary. Both the state and the petitioner recognize the authority of Title 45, § 32, Code of Alabama 1940 (Act No. 82, 1961 Acts of Alabama, ex. sess. p. 1998, approved 15 September 1961):

“When a convict is sentenced to imprisonment in the penitentiary on two or more convictions, unless it is specifically ordered in the judgment [entered] that such sentences be served concurrently, such sentences shall be cumulative, and shall be served consecutively; ”

Petitioner’s argument is based on the language of the judgment entry in the Shelby County conviction.

“On this the 16th day of March, 1974, in this cause, the Court of Criminal Appeals affirmed the trial court dated March 5, 1974. The defendant failed to prosecute his case further and the defendant being in the penitentiary of the State of Alabama, it is ordered, adjudged and decreed by the Court that defendant’s sentence time shall begin 15 days subsequent to the aforesaid Criminal Court of Appeals affirmance of said case on to-wit the 16th day of March, 1974.” (Emphasis supplied)

It is settled in this state that where no words of concurrency of sentences appear in the judgment entry, the sentences are deemed to be consecutive. Bradley v. State, 53 Ala.App. 483, 301 So.2d 247 (1974). Unless it is specifically ordered in the judgment entry that such sentences are to be served concurrently, the sentences shall be served consecutively. An inference cannot be entertained in view of the clear and plain command of Title 45, § 32, requiring a specific order of concurrency. Glisson v. State, 281 Ala. 187, 200 So.2d 498, reversing, 43 Ala.App. 700, 200 So.2d 493 (1967). Here there was no specific order of concurrency. This case is governed by Glisson, supra, and under the doctrine enunciated there, the argument of petitioner is without merit.

Petitioner’s motion and request for this court to suspend the rules as provided in Rule 2(b), Alabama Rules of Appellate Procedure, as regards Rule 22 and the requirement that the record be filed within thirty days from the date of notice of appeal is hereby granted.

The judgment of the trial court denying the petition for a writ of habeas corpus is due to be and is hereby affirmed.

AFFIRMED.

All Judges concur.


author: DeCARLO, Judge.

text:
    Larry LILES v. STATE.
    7 Div. 537.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.

      Terry D. Gillis, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State. '
   DeCARLO, Judge.

This is an appeal from the judgments of conviction resulting from three guilty pleas.

The cases involved were: (1) sale of a controlled substance, “phencyclidine (PCP),” circuit court case number 75-CR-104; (2) possession of a controlled substance, “diazempam,” circuit court case number 76-CR-202; and (3) possession of marijuana for personal use, circuit court case number 9938.

In the felony cases the appellant received two four-year concurrent sentences. In the case involving the possession of marijuana for his personal use he received a six months’ sentence to run concurrently with the two four-year concurrent sentences.

Our examination of the record revealed that during the court’s explanation of the appellant’s constitutional rights, concerning the felony charges and their punishment, the court stated that the minimum punishment was imprisonment for two years and the maximum was imprisonment for twenty years. According to the section of the statute under which Liles was indicted, T. 22, § 258(47), Code of Alabama 1940, Recompiled 1958, 1973 Cum. Supp. To Vol. Six, a violation is punishable by imprisonment for not less than two nor more than fifteen years.

In Moore v. State, 54 Ala.App. 463, 309 So.2d 500, this court stated:

“ . . . that there was error in incorrectly informing defendant of the maximum punishment . . . [Emphasis added.]

The court also explained:

“ . . .We cannot say that defendant’s failure to know that the maximum sentence that could be imposed upon him was fifteen years, instead of twenty years as incorrectly informed, had no influence upon his decision to withdraw his plea of not guilty.”

In view of the foregoing we are compelled to reverse the judgment of conviction in circuit court case number 75-CR-104, and circuit court case number 76-CR-202. However, in the case involving the possession of marijuana for his personal use, circuit court case number 9938, we affirm, the constitutional requisites for a voluntary plea having been shown.

REVERSED AND REMANDED IN PART AND AFFIRMED IN PART.

All the Judges concur.


text:
    John Henry WADE v. STATE.
    8 Div. 949.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.

      Joe B. Powell, Decatur, for appellant.
    John Henry Wade, pro se.
    William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found appellant-defendant guilty of robbery and fixed his punishment at imprisonment in the penitentiary for twenty-six years. He was duly sentenced accordingly.

There is no disagreement on appeal as to the facts, which are summarized in appellant’s brief.

Beulah Boggus, the victim of the alleged robbery, testified that on April 2, 1974, about 3:00 P.M. three white men came to her store in the Red Bank community of rural Lawrence County, left for a while and returned about 5:00 P.M., when they displayed pistols and proceeded to rob her of her money, rings and pistols. She identified the three as the defendant John Henry Wade, his son Johnny Wayne Wade, and one Allen Moye. She was living at the time with her adopted daughter in a dwelling contiguous to the store. She said the younger Wade told her: “We are robbers. We came after your diamonds and money, and you have plenty of it.” According to Mrs. Boggus, when she refused to cooperate with the robbers in revealing the whereabouts of her money, she was hit in the head with a pistol, tied, gagged, choked and tortured with a hot smoothing iron.

Wanda Boggus, the adopted daughter of Mrs. Boggus, corroborated her mother’s testimony relative to the facts of the robbery other than in two respects. She could not identify defendant John Henry Wade as being one of the three robbers and she saw only one pistol.

Allen Moye testified for the State and admitted his active participation in the robbery. However, he said that defendant did not enter the victim’s house during the robbery; that defendant dropped Johnny Wayne Wade, Moye and one Thomas O’Such off at the victim’s house and that the trio proceeded to rob Mrs. Boggus substantially in the manner testified to by her and her daughter. His testimony contained repeated statements to the effect that defendant was the “pick-up-man.”

Defendant did not testify, but two witnesses testified in his behalf to the effect that they were employed by defendant at his service station in Oakman; that defendant worked regularly at the station from about 7:30 A.M. to 6:30 P.M. each day and that he did not take off from his work at the service station during the month of April 1974. Two deputy sheriffs of Walker also testified on call of the defendant that they were acquainted with defendant during and before April 1974 and that they regularly saw him working at the service station. No contention to the contrary is made on appeal.

The jailor and radio dispatcher for the Lawrence County Sheriff’s Department testified as a witness for the State that he was present during the preliminary trial of defendant; that he listened to the testimony of Mrs. Boggus on the preliminary trial; that defendant was present during the preliminary trial. He said that he escorted defendant from the courtroom to the county jail and while doing so, without being questioned by anyone, defendant said, “Everything the lady said over there was true except one thing.,” that defendant then said, “I was not in the house.” Appellant now urges that such testimony was inadmissible, that it is “hearsay in default of any applicable exception thereto.” Appellant also argues that by calling for such testimony, the State was endeavoring to bolster the testimony of Mrs. Boggus. Defendant did object to questions calling for the testimony, but the grounds thereof on the trial did not include any of the grounds asserted on appeal. The grounds asserted on the trial were that the statement was “not voluntary, and that he was coerced and it violated the Constitution of Alabama and the Constitution of the United States.” and that “No warnings were given and no attempts were made by this Officer to advise this man of his rights, and they were not voluntarily made.” After a requested cross-examination of the witness out of the presence of the jury by defendant’s counsel, the court ruled:

“All right. The Court rules that this was a volunteered statement, or a spontaneous utterance and, therefore, I am going to let the State offer it into evidence.”

We find no error in the court’s action in the respect noted. Upon being asked on voir dire on cross-examination whether defendant was advised of his rights, the witness said that he didn’t have time. He further said defendant was not upset at the time. Upon being asked whether he stopped defendant before he completed his statement, he again said he didn’t have time. The record convinces us that the statement of defendant is to be classed as a volunteered statement, in no way influenced by the witness or anyone else. Miranda holds:

“In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726.

The grounds of objection now made to the questions calling for the particular evidence under consideration are at variance with the objections made on the trial of the case. Such grounds of objection are not available on appeal. Fuller v. State, Ala.Cr.App., 338 So.2d 492 (1976); Crowe v. State, Ala.Cr.App., 333 So.2d 902, cert. denied, 333 So.2d 906; Burrow v. State, 55 Ala.App. 24, 312 So.2d 596; Reese v. State, 49 Ala.App. 167, 269 So.2d 622, cert. denied, 289 Ala. 750, 269 So.2d 625.

Counsel for defendant was allowed to ask State’s witness Sergeant Robert E. Hancock as to what Beulah Boggus, the alleged victim of the robbery, told him relative to the robbery, particularly defendant’s connection therewith. Counsel was also allowed to ask him as to Mrs. Boggus’ testimony on the trial. The following occurred:

“And there is a conflict there as to what she told you then and what she told the jury, is there not?
“MR. PETTUS: We object to that.
“THE COURT: Well, sustained.”

Both before and after, the witness made it clear that Mrs. Boggus had told Sergeant Hancock that defendant came in the house on the first trip to the store that afternoon, but that he did not enter the house at the time the robbery was committed, on the second trip. Unquestionably, the conflict between what the witness told Sergeant Hancock and what she testified on the trial is important, and certainly tends to some extent to weaken her testimony, but defendant had the full benefit thereof, by the clear and definite testimony of the witness which factually showed the conflict. No harm was caused defendant by the ruling.

During redirect examination of Allen Moye, after he had been intensively interrogated and cross-examined as to the arrangement or agreement that was made among the conspirators themselves, Johnny Wayne Wade, John Henry Wade, a person by the name of Neil Nicholson, and Tom O’Such, as to how the robbery of Mrs. Bog-gus was to be consummated, including the arrangement they had among themselves that defendant would drive his car, the following occurred:

“Q Is there any particular significance to the fact that Mr. Wade drove his car down to Beulah Boggus’ house the night that she was robbed?
“A Did he drive his car?
“Q Is there any particular significance to that?
“MR. POWELL, Well, we object to that. I don’t know what he’s asking him. I don’t understand that question myself.
“A Why?
“Q Why did he drive his car?
“MR. POWELL: Now, we object to any why, because it’s a mental operation.
“THE COURT: Overruled.
“Q Why did he drive his car?
“A Mr. Wade drove his car because he was going to be the pick-up-man. Therefore, that is the reason he drove his car, because if he was to get stopped running up and down the road waiting to pick us up, he would be in his car.”

If, as contended by appellant, the question objected to calls for the intent, motive or other uncommunicated mental operation of one other than the witness and if the objection had been based on that ground, we would agree with appellant that defendant’s objection to the question should have been sustained. To hold otherwise would not be within the logic or the beneficence of Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974), wherein the Supreme Court wisely opened the door to testimony of a witness as to his own uncommunieated intent or the like.

It is to be noted that in defendant’s objection to the question he grounded it on the assertion that “It’s a mental operation.” He did not say whose mental operation it was. According to Starr, if it was that of the witness, the objection was not well taken. If it was that of defendant, and the ground had been so stated, it would have been a valid objection. It is clear that appellant takes that position now, but it is far from clear that he took that position on the trial. He did not so state, although such may have been his intention. We have to admit that we are at a loss to determine what counsel for defendant intended by the objection and what counsel for the State intended by the question. We are unable to reverse the trial judge for any failure to correctly assay the “uncommunicated intention” of either counsel.

We further state that in the light of the context of the question, particularly the preceding part, when considered with the answer to the question, the question called for neither the intention of the witness nor the intention of defendant, and the only appropriate objection, if any, should have been on the ground that it called for an opinion or unauthorized conclusion of the witness, as distinguished from testimony as to a fact. Even so, we are convinced that the question, when considered in the light of the context and the answer thereto, called for a “collective fact” or a “shorthand rendition of fact,” to which a witness may testify. South and North Ala. Railroad Co. v. McLendon, 63 Ala. 266; Marshall v. State, 219 Ala. 83, 121 So. 72; Mobile J. & K. C. R. Co. v. Hawkins, 163 Ala. 565, 585, 51 So. 37; Johnson v. State, 15 Ala.App. 194, 72 So. 766. See also Gamble, McElroy’s Alabama Evidence, § 127.01(3), particularly Variety No. 7.

The witness Allen Gerald Moye, according to his own admissions, had been convicted of six felonies. He was at the time of the trial of this case under a thirty-year sentence for robbery in Cullman County, Alabama; he had received two thirty-year sentences for robberies in Dallas County, Alabama. He had not been indicted for the robbery of Mrs. Boggus. He denied any “deals” with the State in exchange for his testimony against defendant, but he freely acknowledged, on cross-examination, that he expected some leniency by reason of his testimony. He said that in February 1974, he and defendant, accompanied by Wayne Wade, went to Town Creek and discussed the planned robbery with Neil Nicholson. The defendant drove the automobile; he had called Moye to go with him and his son to discuss the matter with Nicholson, who “was setting this robbery up of this lady’s house.” They understood she may have had approximately $100,000, and they planned to rob on a percentage basis. Neil wanted defendant, Moye, and Johnny Wayne Wade to rob her. Defendant asked him to show them where she lived, and they drove over to Mrs. Boggus’ house. He said defendant went to the door and knocked, as Mr. Nicholson “had already explained to us that she didn’t know you real well that she wouldn’t come to the door or let you in her little store after dark.” Defendant knocked at the door and returned to the automobile, and they returned to Nicholson’s house. Another visit was made thereafter, in an automobile driven by defendant, and defendant and Moye went to Mrs. Boggus’ house again; defendant inquired of Mrs. Boggus as to the whereabouts of Mr. Nicholson. Thereafter, Moye and defendant went to the Nicholsons’ house, at which time defendant and Moye discussed with Nicholson their plan for the robbery. Moye and defendant returned to defendant’s house in Walker County, and then Moye returned to his then home in Jefferson County. They continued meeting and laying their plans; defendant and Moye went again to Mrs. Boggus’ house, at which time they purchased some beer, some pickled eggs and pickled pig feet, for which defendant paid, and they then left and returned to defendant’s home; they repeated this “routine” about two weeks later; they told Mrs. Boggus they were construction workers. They continued to discuss the plans and brought “Tom,” otherwise identified as Thomas O’Such, in on the plans for the robbery. The witness first met “Tom” at the home of defendant. In about two or three weeks another trip was made by defendant and Moye to the store, at which time defendant and Moye went in the store and went through the same “routine,” and then returned to defendant’s home. At a subsequent time, defendant, Moye, “this fellow, Tom,” and John Henry Wade made the trip in the witness’ car “just to get more acquainted with Mrs. Beulah.” At that time Mrs. Boggus was having some plumbing trouble, about which Moye talked with her and told her he thought he could bring someone that could fix it. He then returned to defendant’s home and told defendant that he thought “the time was right,” with which defendant agreed, but said that he couldn’t leave his station the next day. However, Moye and Larry Wade went to Mrs. Boggus’ the next day and were informed by Mrs. Boggus that a plumber had come and fixed the plumbing.

On the day of the robbery, according to Moye, he met with defendant, “Tom,” and Johnny Wayne Wade, and went in defendant’s car, with defendant driving, and “headed out to Mrs. Beulah’s home to rob her.” On their first trip to the store that day, defendant, Moye and Wayne Wade entered the store, bought some beer and said they wanted to come back later and pick up a large amount of beer for a party. They were “more or less laying down our reason for coming back after dark.” Thereafter, the four rode around “killing time.”

Whether a specific statement of a witness is inadmissible, over an appropriate objection, as constituting an unauthorized conclusion or opinion as distinguished from an admissible shorthand rendition of fact is not necessarily determinable by the content of the statement alone. Often, the surrounding circumstances as shown by the evidence dictate a determination different from what it would be under different circumstances. Even if the objection to questions eliciting the evidence under consideration had been based on an objection that it called for an unauthorized conclusion or opinion of the witness, the matter would have been resolvable by a determination whether the witness was basing his answer on his own opinion, or, on the other hand, was stating as a collective fact a particular feature of the express plans of the conspirators. We are firm to the conclusion that, in the light of the witness’ lengthy testimony as to plans of all or some of the conspirators, including appellant, made among them on several different occasions over a period of several months, as to which the witness was intensively and extensively cross-examined, he was testifying as to a collective fact when he explained why defendant was driving his automobile. His answer constituted a shorthand rendition of one of the agreed upon plans of the parties as they meticulously wove their evil webb.

In addition, we note some testimony of the same witness, given on direct examination, to which no objection was made:

“Q Had that been prearranged among youselves?
“A Yes, sir.
“Q And then after you all got in that the defendant was to leave?
“A That was — we reached that decision on the way down there that afternoon, because we were in Mr. John Henry Wade’s car, and we decided that he would drive, since it was his ear. He was going to be a pick-up-man.
“Q So you got in the house and he drove off?
“A Yes, sir.” (Emphasis supplied)

We also conclude that the particular evidence called for by, and given in answer to, the question to which the objection was made as to why defendant was driving his automobile, was not prejudicial to defendant, as substantially the same testimony had been admitted in evidence without objection. Even the erroneous admission in evidence of a conclusion of a witness is not prejudical where the witness had already given substantially the same testimony without objection. Higginbotham v. State, 24 Ala.App. 40, 129 So. 718; Guff v. State, 24 Ala.App. 41, 129 So. 714. Admission of testimony, if error, is harmless where the same witness has previously testified to the same facts without objection. Espey v. State, 270 Ala. 669, 120 So.2d 904; Whitehead v. State, 41 Ala.App. 387, 133 So.2d 513; Evans v. State, 40 Ala.App. 282, 112 So.2d 355.

Appellant relies upon three separate and unrelated statements made by prosecution counsel during the trial as a basis for an argument that conduct of such counsel “had the accumulative effect of depriving him of Due Process of Law.” To two of them no objection was made by defendant. The third occurred during cross-examination of a witness for defendant who had testified that he had worked for defendant during the period of time that evidence for the prosecution had shown that defendant and others had been traveling to the store of Mrs. Boggus and plotting the robbery. The conduct alleged to have been improper, the objection of defendant’s counsel and the action of the court were as follows:

“Q Did you know of his being accused of being in Cullman, Alabama, during that time?
“MR. POWELL: Now, we object to that, Your Honor. That is not an issue here.
“THE COURT: Sustained.”

We do not question the correctness of the trial court’s ruling, but the question was not so highly improper as to justify appellant’s denunciation of it. The witness was stating in effect that during all of the time involved defendant had never left his place of business at Oakman, and prosecution counsel is not to be condemned for testing the witness’ credibility as to that point. As pointed out by appellant and as referred to hereinbefore, there was some testimony by Moye that he had been convicted of a robbery in Cullman County. Furthermore, there was testimony by Moye that defendant had been looked upon as “boss or leader of your association” in connection with other planned robberies. Although the trial court probably acted wisely in closing the door to the possibility of prejudice to defendant by questions as to any robbery other than in the case being tried, we cannot say that the question was not asked in good faith. Certainly, it did not measure up to conduct that justifies a reversal of the judgment. The other two incidents involved no prejudice to defendant, and, as is indicated by the silence of defendant’s counsel at the time, were not worthy of any remonstrance or objection by him.

Appellant finally urges that there is reversible error in the action of the trial court in denying defendant’s motion or request that he be present at the hearing of the motion for a new trial. It seems that at the time of such hearing, the federal authorities had taken charge of defendant, that he was then being held in jail in Birmingham, Alabama, to be arraigned in the United States District Court. It also appears that no effort had been made through the federal authorities, under whose control defendant was at the time, to have defendant at the hearing. The court stated:

“ . . . Well, after consideration of the motion for new trial on the grounds raised, the court rules that there is no question of evidentiary facts that need to be raised, that all of the questions are questions of law, and that the Court can make an intelligent ruling on that motion for a new trial without having the defendant present, and that he will in no way be jeopardized in his right to a new trial on any appeal that might follow that.”

The court then announced that the motion for a new trial was overruled. Defendant’s counsel gave oral notice of appeal. The next day the written order of the court overruling the motion for new trial was entered. Appellant contends that he had a right to be present at the hearing on the motion for a new trial and that the denial thereof was in violation of his Constitutional right to due process of law. No authority has been cited to that effect, and we find none, although the right of a defendant to be present throughout the trial of a case in which his life or liberty is at stake is now beyond question.

In United States v. Lynch, 132 F.2d 111, 113 (3d Cir. 1942), cert. denied, 318 U.S. 777, 63 S.Ct. 831, 87 L.Ed. 1146, it was held that the defendant’s right to be present at his trial did not “embrace a right to be present also at the argument of motions prior to trial or subsequent to verdict.” Accord, Cuckovich v. United States, 170 F.2d 89 (6th Cir. 1948); United States v. Makris, 398 F.Supp. 507 (S.D.Tex.1975).

Rule 43(a) of the Federal Rules of Criminal Procedure provides:

“A defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.”

This is in harmony with principles that have prevailed in Alabama for many years. Rule 43(c) provides that “A defendant need not be present in the following situations: . (3) at a conference or argument upon a question of law . . . .”

Defendant based his motion for a new trial on nineteen separate grounds. All of them related exclusively to what had previously transpired in the case, and there was no indication in any of them that there would be any occasion for presentation of any evidence on the hearing or that any factual issue would be involved.

We do not hold for naught any contention that there could not conceivably be situations arising in which a defendant would be entitled to be present at a hearing on a motion for a new trial, but no such situation is presented in this case. Our attention is not called to, and we cannot find, any possibility of injury to the defendant by his absence from the hearing on the motion for a new trial. The trial court correctly responded to defendant’s request or motion that arrangements be made for his attendance at the hearing.

We can find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment is hereby

AFFIRMED.

All the Judges concur.

      . In north Lawrence County and about ten miles from Red Bank.


author: KARL, Justice.

text:
    STATE of Florida, Appellant, v. GALE DISTRIBUTORS, INC., Appellee.
    No. 49297.
    Supreme Court of Florida.
    March 24, 1977.
    Rehearing Denied May 31, 1977.

      Robert L. Shevin, Atty. Gen., and Harry M. Hipler and Charles W. Musgrove, Asst. Attys. Gen., for appellant.
    Leo Greenfield, Law Offices of Leo Greenfield, Miami, for appellee.
   KARL, Justice.

We have for review by direct appeal the order of the County Court in and for Bro-ward County dismissing the information against appellee and finding Section 543.-041(2), Florida Statutes, unconstitutionally vague and violative of the prohibition against ex post facto legislation, thereby vesting jurisdiction in this court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellee was charged by amended information with five counts of sale of sound on tape without the owner’s consent, in violation of Section 543.041(2)(b), in that he did knowingly and willfully and without the consent of the owner, RCA Corporation, a Delaware Corporation, authorized to do business in the State of Florida, sell sounds recorded on tapes, the titles of which are expressly designated in the information, the appellee well knowing that said sounds had been transferred without the consent of said owner. Appellee moved to dismiss the information and alleged, inter alia, that Section 543.041(2) is invalid and unconstitutional as violative of the Supremacy Clause of the federal constitution in that it directly conflicts with the federal copyright laws.

In his order dismissing the information, the trial judge set out the State’s concessions in the cause relative to application of the Supremacy Clause as follows:

“The State concedes that federal legislation under Title 17, Sec. 101, United States Code (the copyright Act of 1909), as amended on February 15, 1972, Title 17, Sec. 101(e), United States Code (sometimes referred to as Public Law 92-140) protects sound recording of musical performances fixed on a magnetic recording tape or phonograph record subsequent to said date of amendment (February 15, 1972). The State concedes that any such recording fixed subsequent to February 15, 1972, is not subject to the provisions of F.S. 543.041 inasmuch as a State law must yield to federal legislation under and pursuant to Article VI, Section 2 of the Constitution of the United States (Supremacy Clause). Such sound recordings fixed prior to February 12, 1972, would not be subject to federal protection under the abovementioned federal statute.” (Emphasis supplied.)

The trial judge then found Section 543.-041(2), Florida Statutes, unconstitutionally vague and indefinite, in that the act does not make it clear whether all the elements of subsection (2)(a) must be proven to sustain a conviction under subsection (2)(b), and unconstitutional and void as ex post facto legislation since, he determined, it was the intent of the statute to prohibit sales of sounds transferred before or after October 1, 1971, the effective date of said section.

Section 543.041(2), Florida Statutes, provides:

“(2) It is unlawful:
“(a) Knowingly and willfully and without the consent of the owner, to transfer or cause to be transferred any sounds recorded on a phonograph record, disc, wire, tape, film, or other article on which sounds are recorded, with the intent to sell or cause to be sold for profit such article on which sounds are so transferred.
“(b) To sell any such article with the knowledge that the sounds thereon have been so transferred without the consent of the owner.” (Emphasis supplied.)

Initially, we find that Section 543.-041, when applied to sound recordings fixed before February 15,1972, the effective date of Public Law 92-140, an act amending Title 17 of the United States Code, does not conflict with Article I, Section 8, Clause 8, of the Constitution of the United States, the “Copyright Clause,” and federal statutes enacted thereunder.

Public Law 92-140, granting federal copyright protection to sound recordings, contains an express provision to the effect that:

“The provisions of title 17, United States Code, as amended by section 1 of this Act shall apply only to sound recordings fixed, published, and copyrighted on and after the effective date of this Act and before January 1, 1975, and nothing in title 17, United States Code, as amended by section 1 of this Act, shall be applied retroactively or be construed as affecting in any way any rights with respect to sound recordings fixed before the effective date of this Act.” (Emphasis supplied.)

Considering the constitutionality vel non of a California “tape piracy” statute (insofar as it applies to recordings fixed prior to the effective date of Public Law 92-140), similar to the Florida statute in question, against the challenge that it conflicted with Article 1, Section 8, Clause 8, and the federal copyright laws, the Supreme Court of the United States, in Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973), concluded:

“In sum, we have shown that § 653h does not conflict with the federal copyright statute enacted by Congress in 1909. Similarly, no conflict exists between the federal copyright statute passed in 1971 and the present application of § 653h, since California charged petitioners only with copying recordings fixed prior to February 15,1972. Finally, we have concluded that our decisions in Sears, [Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661] and Compco, [Corp. v. Day-Brite Lighting, 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669], which we reaffirm today, have no application in the present case, since Congress has indicated neither that it wishes to protect, nor to free from protection, recordings of musical performances fixed prior to February 15, 1972.
“We conclude that the State of California has exercised a power which it retained under the Constitution, and that the challenged statute, as applied in this case, does not intrude into an area which Congress has, up to now, pre-empted. Until and unless Congress takes further action with respect to recordings fixed prior to February 15, 1972, the California statute may be enforced against acts of piracy such as those which occurred in the present case.” (Emphasis supplied.)

Therein, the Supreme Court explained:

“As we have seen, the language of the Constitution neither explicitly precludes the States from granting copyrights nor grants such authority exclusively to the Federal Government. The subject matter to which the copyright clause is addressed may at times be of purely local concern. No conflict will necessarily arise from a lack of uniform state regulation, nor will the interest of one State be significantly prejudiced by the actions of another. No reason exists why Congress must take affirmative action either to authorize protection of all categories of writings or to free them from all restraint. We therefore conclude that, under the Constitution, the States have not relinquished all power to grant to authors ‘the exclusive Right to their respective Writings.’” Goldstein v. Cal, supra, at 560, 93 S.Ct. at 2311.

Since we find no violation of the Supremacy Clause of the Constitution of the United States so long as the act is construed to apply to recordings “fixed” before February 15, 1972, we have for disposition the challenge of vagueness against the constitutionality vel non of Section 543.-041(2)(b). This court is committed to the proposition that it has a duty, .if reasonably possible and consistent with constitutional rights, to resolve all doubts as to the validity of a statute in favor of its constitutionality and to construe it so as not to conflict with the Constitution. Hancock v. Sapp, 225 So.2d 411 (Fla.1969), Rich v. Ryals, 212 So.2d 641 (Fla.1968). Furthermore, it is a cardinal rule of statutory construction that the entire statute under consideration must be considered in determining legislative intent, and effect must be given to every part of the section and every part of the statute as a whole. From a view of the whole law in pari materia, the Court will determine legislative intent. Florida Jai Alai, Inc. v. Lake Howell Water and Reclamation Dist., 274 So.2d 522 (Fla.1973), Wilensky v. Fields, 267 So.2d 1 (Fla.1972), State v. Hayles, 240 So.2d 1 (Fla.1970), In Re: Opinion to the Governor, 60 So.2d 321 (Fla.1952), Heriot v. City of Pensacola, 108 Fla. 480, 146 So. 654 (1933).

First, we determine, from an analysis of the act in question, that it is clear that the Legislature intended to set out two separate offenses, that of transferring and that of selling. Secondly, reading the statute as a whole and giving effect to all of its provisions, for purposes of determining what articles are prohibited from being sold, subsection (b) incorporates by reference the elements of subsection (a). Subsection (b) provides that it is unlawful “to sell any sueh article with the knowledge that the sounds thereon have been so transferred without the consent of the owner.” (Emphasis supplied.) “So transferred,” in subsection (2)(b), means that anybody found guilty under subsection (2)(b) must have knowledge of all the essential elements of the crime charged in subsection (2)(a) of Section 543.041, Florida Statutes. Although we do not agree with the trial court that Section 543.041(2)(b) is unconstitutionally vague, we do find that the following interpretation of the statute by the trial court specifying the elements necessary to be proven for a violation of said section is accurate:

“It is not sufficient that the State prove that the Defendant made a sale of 8-track tape cartridges containing sound recordings of musical performances, knowing that they were ‘transferred without the consent of the owner;’ that the sale occurred within the venue of this Court; that the sale occurred after the effective date of F.S. 543.041 (i.e. October 1,1971); that the sounds were fixed prior to February 15,1972. In order to sustain a conviction under subsection (2)(b) the State must also prove that the Defendant knew that the tapes were ‘so transferred’ as specified in (2)(a); that is that the Defendant had knowledge of all of the following additional elements: The person transferring the sounds knew at the time of transfer that there was no consent by the owner; that the person transferring the sound had the intent at the time of the transfer to ‘sell or cause to be sold for profit such articles on which sounds are so transferred;’ that the transfer occurred in the State of Florida;

Subsection (b) of the statute prohibits sale after October 1, 1971, of that article described in subsection (a), fixed before February 15, 1972, whether the sounds were transferred before or after October 1, 1971.

With the foregoing construction, we find that Section 543.041, Florida Statutes, is not unconstitutionally vague since it conveys a sufficiently definite warning to those subject to its provisions what conduct on their part will render them liable to its penalties. Cf. Zachary v. State, 269 So.2d 669 (Fla. 1972), Brock v. Hardie, 114 Fla. 670,154 So. 690 (Fla.1934).

Finally, we conclude that the statutory provision in question does not constitute ex post facto legislation. A law is ex post facto when applied to offenses occurring before the law becomes effective. Wilson v. State, 288 So.2d 480 (Fla.1974), Rhodes v. State, 283 So.2d 351 (Fla.1973), Wilensky v. Fields, supra, Greene v. State, 238 So.2d 296 (Fla.1970).

“The definition of an ex post facto law now universally adopted in this country is: ‘One which, in its operation, makes that criminal which was not so at the time the action was performed; or which increases the punishment, or, in short, which in relation to the offense or its consequences, alters the situation of a party to his disadvantage.’ . . .”

Higginbotham v. State, 88 Fla. 26, 31, 101 So. 233, 235 (1924), Greene, et al. v. State, supra. The activity proscribed by subsection (b) is the sale of the certain described articles after October 1, 1971. The reference back to subsection (a) by subsection (b) for purposes of what constitutes the articles that are proscribed from being sold by subsection (b) is a reference to the description of those articles rather than the separately chargeable criminal activity of transferring.

Having concluded that Section 543.041(2)(b), Florida Statutes, is constitutional, we further find that the amended information charging violation of said section was insufficient to charge the offense intended since it does not contain the essential elements thereof as above described.

Accordingly, we hold that Section 543.-041(2)(b) is constitutional, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

      . Public Law 93-573, amended Public Law 92-140, 85 Stat. 391, by striking “and before January 1, 1975.”

      . Same as Greene v. State, 238 So.2d 296.