author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Wyzonia THIGPEN v. STATE.
    3 Div. 943.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Nov. 21, 1978.

      J. L. Chestnut, Jr. of Chestnut, Sanders & Sanders, Selma, for appellant.
    William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The prosecution in this case was based on an indictment charging defendant with murder in the first degree of Alfred Means, by shooting him with a pistol. A jury found her guilty of manslaughter in the first degree and fixed her punishment at imprisonment for ten years. The court sentenced her accordingly.

Defendant was represented on the trial by employed counsel. Upon giving notice of an appeal, the court determined that she was indigent and appointed her trial counsel to represent her on appeal, which he has. faithfully done, raising all points, we believe, that can reasonably be presented in favor of appellant.

Our review of the evidence convinces us the evidence was sufficient to support the verdict. Even so, we will briefly state some of the salient facts that are conducive to a better understanding and a correct determination of the issues presented on appeal.

Appellant and deceased were living together in an apartment (also referred to as a house) in a housing project in Fort Deposit. The living together was without restriction or qualification, but each knew that the legal status of husband and wife, either by ceremony or by common law, did not exist, by reason of prior undissolved marriage, or marriages, of deceased. Defendant arranged for the apartment, but she and deceased had previously lived in an old house in Fort Deposit. Living in the same apartment or house with defendant and deceased were defendant’s brother and another man.

Between sunset and full night on a Saturday, April 23, 1977, a man by the name of William Crosskey came to the house where defendant and deceased lived, with a supply of beer and wine. A “heap of” people were there at the time. Some of them, including defendant, came outside when Crosskey arrived. Defendant and others went into the house with the beer. As Crosskey was about to leave, he made it known that he couldn’t find his car keys. A search was made for the keys. During that time an argument and threats of violence took place between defendant and Alfred Means. There was some evidence to the effect that he threatened to shoot her with a rifle in his possession and she threatened to protect herself with a shot gun in her possession. The particular quarrel subsided; Means went out of the back door with the rifle, and soon thereafter defendant went out of the house to see a neighbor.

The evidence does not show how long defendant was out of the house, but, by the time she returned, those in the house had made effective use of the beer and wine or other intoxicants. Defendant’s brother was drunk, or, as she expressed it, was “out of it.” Soon after returning, she learned that Means had returned, as she heard him fussing, cursing her and otherwise making a noise in their bedroom. She picked up a .22 caliber pistol that was lying in the lap of a guest and shouted to Means not to come out of the room, that she was going “to shoot down the hall.” She shot down the hall, and while she was shooting, Means came out of the room, and then returned to the room. He had been fatally wounded by one of the bullets. According to defendant, she did not know that a bullet had struck Means. Her testimony as to what took place immediately afterwards was as follows:

“A So, she told me, said Wyzonia, Uncle John is shot, and I dropped the pistol, I said I couldn’t have shot him. And, I couldn’t have shot him, and I run to the door, and he was behind the door. I said, Uncle John, are you shot? And, he said Yeah. So, I pushed him back and told him to come on, to let me carry him to the doctor, and me and him come out of the bedroom and went out the back door.
“Q Were you afraid of him?
“A Yeah.
“Q Had he beat you?
“A A lot of times.
“Q Had he threatened you that day?
“A That’s all he’d do all the time is threaten to kill me, put me under a big oak tree.
“Q What?
“A That’s all he’d do, threaten to kill me and put me under a big oak tree.
“Q Now, if you didn’t intend to shoot him, why were you shooting down that hall?
“A Just to scare him, to keep him from coming out and beating me up.
“Q To keep him from coming back up there where you were?
“A Yeah.”

The first insistence by appellant that prejudicial error was committed is as to action of the court in denying a motion for a mistrial made by defendant during the testimony of S. L. McMeans, a witness for the State, as to a statement he said he had heard defendant make near her house on the morning of the fatal difficulty. The motion for a mistrial and its context were as follows:

“Q Tell the jury what she said?
“A She said she was going to kill that—
“Q Kill that what? Tell the jury what she said, Mr. McMeans.
“A Said she was going to kill that [SOB].
“Q What else did she say?
“A Said she was going to put some .22’s in his [rear end],
“Q Is that correct?
“A Yes, sir.
“Q Did you come back to the housing project later on that day?
“A Yes, about first dark.
“Q In the afternoon?
“A Yes, sir.
“Q And, when you came back, did you learn at that time whether or not Mr. Means had been killed?
“A I learned that he had been shot and he was on the critical list.
“BY MR. CHESTNUT: We object to that and ask that that be excluded and ask for a mistrial. That’s rank hearsay. “BY THE COURT: Your motion for a mistrial will be denied. Ladies and Gentlemen, you will disregard that statement by this witness.”

On cross-examination of the witness, counsel for defendant on the trial impressively developed the information from the witness that defendant had not stated the name or identity of the threatened victim. Furthermore, counsel for defendant showed that Means was not seen in the neighborhood at the time of the threatening words of defendant. By such cross-examination, defendant’s counsel greatly discounted the testimony of the witness purporting to show a threat by defendant to shoot and kill Means. However, during the cross-examination of defendant as a witness on the trial, she was asked about the testimony of S. L. McMeans as to what she had said the morning of the fatal difficulty, and she replied, “No, that’s not true.” She further said that she was not at the project that morning, and was not out where McMeans testified he saw her any time that afternoon.

In strongly urging that defendant was prejudiced by the testimony of McMeans that he had learned that Alfred Means “had been shot and he was on the critical list,” appellant says that such testimony “strongly implied that the deceased, Alfred Means, was the person the defendant was talking about earlier that morning when the said threat was allegedly made.” We do not question the apprehension of appellant’s counsel as to the testimony. We do not gainsay that there was no possibility that the jury inferred from the testimony excluded that Means was the target of the threats the witness testified the defendant made, but a careful analysis of the testimony excluded, and its context, shows that such an inference would have been unjustified and that there is no “implication” therein that Means was the person “defendant was talking about earlier that morning.” Appellant’s resourceful argument as to the “strong implication” in the testimony excluded, as viewed at the time the testimony was given, is greatly weakened by defendant’s subsequent testimony in denying that she had made any threats whatever against anybody.

Defendant was entitled to nothing more than she obtained by the rulings of the court in excluding the testimony and in denying the motion for a mistrial. The testimony, though hearsay and properly excluded, was not injurious to defendant, as it was merely cumulative of the undisputed evidence.

We think the trial court was correct in overruling defendant’s motion for a mistrial. In addition, the denial of a motion for a mistrial is discretionary with the trial judge, and its exercise of that discretion will not be interferred with on appeal unless there has been a clear abuse of discretion. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Edgeworth v. State, 54 Ala.App. 93, 304 So.2d 911 (1974); Hopkins v. State, 54 Ala.App. 75, 304 So.2d 629 (1974); Kelly v. State, Ala.Cr.App., 338 So.2d 1047 (1976); Impson v. State, Ala.Cr. App., 331 So.2d 837 (1976).

Another contention of appellant is that the trial court was in error in “failing to give sufficient charges to the jury on self-defense.”

In a clear and accurately stated oral charge, the court did not refer to the matter of self-defense. At the conclusion of the oral charge, the court inquired, “What do you say for the State?”, and the following occurred:

“BY MR. BRYAN: State is satisfied.
“BY THE COURT: What do you say for the Defendant?
“BY MR. CHESTNUT: May we approach the bench, Your Honor?
“BY THE COURT: I believe, Mr. Chestnut, that the law says that any objection must be made in the presence of the jury.
“BY MR. CHESTNUT: Well, I was going to suggest that you include in your charge itself that they should be charged as to defense of self-defense, her testimony was that she fired down the hall to keep him from coming out of that room—
“BY MR. BRYAN: We don’t believe there is any evidence of that, Judge.
“BY THE COURT: I don’t think there is any evidence of that.
“BY MR. CHESTNUT: May we have an exception?
“BY THE COURT: Yes, sir, you may have your exception.”

Immediately thereafter, the Court delivered forms of verdict, the indictment, and the exhibits to the jury, or the bailiff, and directed the bailiff to escort the jury to the jury room, and the jury retired to the jury room to deliberate.

There is nothing in the record to show that at any time prior to the completion of the court’s oral charge, the subject of “self-defense” was ever expressly mentioned. We do not have the benefit of the opening statements of counsel or their arguments to the jury. Appellant indicates in his brief that there was a written charge requested on the subject of self-defense. In doing so, reference is made to the following requested written charge:

“If the defendant fired the pistol out of the presence of the deceased with the intent to scare him and hoping to prevent an attack on her person you must find the defendant not guilty.”

The court was correct in refusing such charge. If, as indicated by appellant, the charge is in any way referable to self-defense, it is faulty in that it omits, and pretermits consideration of, some of the essential elements of self-defense, such as danger, or reasonable apprehension of danger of, imminent bodily harm. Aside from that and other defects, satisfaction of the hypothesis therein would not preclude a verdict finding defendant guilty of manslaughter in the second degree.

We construe the statement of counsel for the State, “We don’t believe there is any evidence of that, Judge,” as referable to the term “defense of self-defense” in the preceding statement of counsel for defendant. We construe the statement of the court, “I don’t think there is any evidence of that,” as referable to the same thing. Neither could hardly have been referable to the statement of counsel for defendant that “Her testimony was that she fired down that hall to keep him from coming out of that room,” as to which there was evidence.

The parties agree that, if there was no evidence of self-defense, the court should not have charged the jury on that subject. In our opinion, the question whether there was evidence of self-defense is close. If defendant had definitely asserted and continued to assert during the trial of the case the defense of self-defense, and had insisted by correct written charges that the court charge the jury as to that defense, and it refused to do so, we are not sure that such action of the trial court would not have been erroneous. The record before us indicates that prior to the conclusion of the court’s oral charge, it was not made known to the court that there was any reliance whatever on a defense of self-defense.

Where it is clear that defendant is interposing the defense of self-defense, either solely as a justification for an intentional homicide or in the alternative of a denial that he committed an intentional homicide, plenary instructions as to the principles of self-defense applicable to the circumstances of the particular case, are appropriately included in the oral charge, and such action by the court should be encouraged. Where, however, it is apparent, as in this case, that defendant is contending primarily that he (she) did not intentionally kill or intentionally injure another and there is basis for considerable doubt of the existence of evidence of self-defense, the court does not fail to measure up fully to its responsibility by its omission' from its oral charge any reference to self-defense. To include it under such circumstances would likely open a Pandora’s box.

Irrespective of the trial court’s conclusion that there was no evidence of self-defense, it cannot be placed in error for failing to charge the jury on the matter of self-defense in the absence of requests in writing setting forth correct principles of law on the subject. The circumstances of this case afford no reason for any exception to be made to the firmly established general principle that the only remedy available to a party aggrieved by the omission from the court’s oral charge of some pertinent principle of law is by written request in the form of a correct written charge, or correct written charges, that supply the omission. Code of Alabama 1975, § 12—16—13; East v. State, Ala.Cr.App., 339 So.2d 1104; Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied, 293 Ala. 746, 309 So.2d 850; Smith v. State, 53 Ala.App. 657, 303 So.2d 157; Gray v. State, 52 Ala.App. 481, 294 So.2d 448.

Appellant’s only other insistence on a reversal is directed to the refusal of written charges requested by defendant. Five written charges requested by defendant were refused. We have hereinabove discussed one of them. We now consider the remaining four. One of the charges refused is as follows:

“Without an intent to kill there can be no murder or manslaughter in the first degree.”

In the oral charge, the court said, inter alia, in comprehensive instructions as to the four degrees or kinds of unlawful homicide and their distinctive requirements, as follows:

“ . . . Without an intent to kill, there can be no murder or manslaughter in the first degree.”

The particular charge requested would have been a mere duplication of the quoted portion of the oral charge, and its refusal was not error.

Two of the refused charges preclude a guilty verdict upon a finding that the shooting of Means was “accidental” or resulted “from an accident.” Each charge ignores the principle that one can be adjudged guilty of manslaughter in the second degree even though he killed another accidentally. Williams v. State, 83 Ala. 16, 3 So. 616 (1889); Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973); Reynolds v. State, Ala.Cr.App., 346 So.2d 979, cert. denied, Ala., 346 So.2d 986 (1977); Callahan v. State, Ala.Cr.App., 343 So.2d 551 (1977).

The remaining charge refused (“The defendant is not guilty if she did not fire the pistol negligently or had an intent to injure or kill the defendant.”) is misleading at least and is probably an inaccurate statement of what the writer intended. Our quotation of the charge itself may not be accurate, for the charge is in handwriting and the two-letter word before the word “intent” may be something other than the word “an.” Whether so or not, the use of the disjunctive “or” instead of the conjunctive “and” makes the charge misleading at least and makes the instruction subject to the construction that defendant was entitled to an acquittal in the event of either an absence of negligence sufficient to constitute manslaughter in the second degree or absence of an intent sufficient to constitute murder or manslaughter in the first degree. Under the first hypothesis, she would not have been guilty of manslaughter in the second degree, but she could have been guilty of manslaughter in the first degree or murder in either degree. Under the second hypothesis she would not have been guilty of murder in either degree or of manslaughter in the first degree, but she could have been guilty of manslaughter in the second degree. Moreover, we note that the oral charge is comprehensive as to the four kinds of unlawful homicide, and all of the requirements as to each, and that the principle that was intended to be presented by the charge was fully covered in the oral charge. The court committed no error in refusing the charge.

We find no error in the record prejudicial to defendant, and the judgment appealed from should be affirmed.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte Wyzonia THIGPEN.
    78-146.
    Supreme Court of Alabama.
    Jan. 19, 1979.
   EMBRY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: HARRIS, Presiding Judge.

text:
    James Earl HOWELL v. STATE.
    6 Div. 677.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    Rehearing Denied Dec. 19, 1978.

      Thomas B. Hanes of Hanes, Hanes & Bolin, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of robbery and the jury fixed his punishment at fifteen years imprisonment in the penitentiary. At arraignment, in the presence of his counsel, appellant interposed a plea of not guilty. After sentence was imposed appellant gave notice of appeal and trial counsel represents him on this appeal.

Appellant moved to exclude the State’s evidence, requested the affirmative charge, and filed a motion for new trial raising, among others, the issue of sufficiency of the evidence. The motion to exclude and motion for new trial were overruled and the request for the affirmative charge denied. A recital of the evidence is thus necessary.

Appellant was charged by indictment with the robbery of Dennis Patterson of two dollars in coins and six cartons of cigarettes valued at thirty dollars. The crux of the defense was that it was not appellant who robbed Patterson but someone else who had borrowed appellant’s car on the night of the robbery.

The robbery victim, Dennis Patterson, testified that on June 23, 1977, he was employed as a service station attendant at Vicker’s Oil Company on Bessemer Road, working from 10:00 p. m. till 6:00 a. m. The witness was alone at the station at 3:55 a. m. when two men and two women drove up in a late sixties blue Camaro. He was unable to describe them. One of the men got three quarts of oil from Patterson, and put the oil in the car, but refused to pay for it. An argument ensued between Patterson and the man who refused to pay for the oil and the four drove off. The victim wrote the tag number down.

In court, the victim identified appellant, James Earl Howell, as the man with whom he had the discussion about the oil, and as the driver of the car. He testified that the blue Camaro had a 1977 Alabama license tag, number A-M-N-5-6-5.

The victim further testified that the four occupants of the cpr drove half a block to Dan’s Tavern, a drinking establishment. About ten minutes after the four had left, the witness was outside cleaning the back lot when appellant walked up behind him, from the alley, and asked him why he called the police.

Appellant was dressed in blue jeans, a “silk” gold and silver shirt, had a mustache and hair about the same length as that of the victim. He told Patterson “that it was a robbery,” told him to go in the office and to hand appellant all the money. The witness gave appellant two dollars in coins. Appellant took the victim to the rest room, told him to stay for a minute and then “come out and call the police.”

Patterson also testified that appellant told him “he was sorry he had to do this, but he was a heavy drug user.” Appellant took a .25 caliber automatic pistol from the front of his pants and pointed it at the victim’s stomach before he gave appellant the money. The two men were four to four and a half feet apart. Appellant was at the station for no more than eight minutes. The witness did not see the other three people or the blue Camaro at the time he was actually robbed. When appellant left, he called the police, who arrived about two minutes later. The victim told them what happened and gave them the tag number of the blue Camaro. Appellant also took six cartons of cigarettes valued at thirty dollars.

On cross-examination, inconsistencies between Patterson’s testimony at trial and that at an earlier hearing were brought out, primarily regarding his identification of appellant as the man who robbed him. Patterson had testified earlier that he could have been mistaken, that it could have been someone who looked like appellant.

On redirect examination, the witness again made a positive in-court identification of appellant as the man who pulled a gun on him, demanded money and said he was a heavy drug user.

A Birmingham police officer testified that he responded to a call on June 23,1977, around 4:00 a. m., at Vicker’s Service Station on Bessemer Road, and took an incident report from Dennis Patterson. The victim told him he had been robbed and gave a description of the car and license tag number. The officer understood that the blue Camaro was located by police that night in Tarrant City.

On cross-examination, the officer testified that the incident report stated eight dollars had been taken. The report was admitted into evidence.

An evidence technician from the Birmingham Police Department testified that fingerprints were lifted from some oil cans at the scene, but they were insufficient for a comparison.

Sgt. J. C. Woods of the Robbery Division of the Birmingham Police Department and the investigating officer in this case, testified that he arrested appellant, James Earl Howell, at his home in Tarrant City on June 27, 1977, at approximately 4:30 p. m. On voir dire, outside the presence of the jury, adequate Miranda and voluntariness predicates were laid for the statement given to police by appellant. In his statement, appellant denied knowledge of the robbery. He stated that he owned a blue Camaro but was not driving it on the night of June 23, 1977. When told a witness had seen him in the car, he admitted going to Vicker’s Service Station on Vanderbilt Road, around 12:00 or 1:00 on June 23, but denied being at Vicker’s on Bessemer Road. Appellant stated he did go to shoot pool later that night with his brother at Dan’s Tavern, a block from the Bessemer Road service station.

On cross-examination, the officer testified the statement taken from appellant was oral, and a written rights waiver was not obtained. The witness did not' recall if he referred to the incident by date or by day when talking with the appellant.

Appellant objected to the admission of his statement on the ground that there was not adequate showing of the giving of rights and that the evidence before the Court was insufficient to allow the witness to testify to the conversation from recollection. The objection was overruled.

When the jury returned, it was again shown that Miranda warnings had been given prior to interrogating appellant. The State laid the proper predicate and appellant’s statement was admitted into evidence.

The witness testified that a “photo lineup” was held, whereupon a voir dire examination was had outside the presence of the jury. Sgt. Woods testified that on June 27, 1977, before appellant was arrested, he took five photographs to Dennis Patterson’s home. The photographs were laid out and Patterson was asked if any person pictured was the one who robbed him. He picked out a photograph of appellant, signed and dated it. Sgt. Woods testified that the photograph selected was a picture of James Earl Howell. The trial court ruled that any conversation was inadmissible. Objection was made to any evidence of the identification on grounds of hearsay, bolstering one’s own witness, and improper predicate. No ruling was made by the court. Sgt. Woods testified that he did not tell Patterson that he had a picture of the person who robbed him, nor did he in any way suggest what picture the victim should identify.

Dennis Patterson then testified, and his testimony regarding the photographic identification was substantially the same as that of Sgt. Woods with a single exception. The witness testified that after he picked out appellant’s photograph, Sgt. Woods told him they had a man in custody and it was the man he identified. He identified State’s Exhibits 1-5 as the photographs which Woods brought to his house, and State’s Exhibit No. 3, appellant’s picture, as the one he picked out. The trial judge admitted the evidence of the identification, excluding any testimony of what was said.

Before the jury, Sgt. Woods testified again regarding the identification procedure and the photographs were introduced over objection that the proper predicate had not been laid. He further testified that he did not tell Patterson that a man was in custody and that appellant was not arrested until after the photographic identification.

Donny Carlisle testified that he had traded a 1961 blue Camaro, license number A— M — N—5-6-5, to appellant. He also testified that on or around the Wednesday night preceding June 23, 1977, he was working at Vicker’s Service Station on Vanderbilt Road and that appellant was there around midnight in the blue Camaro. On cross-examination, the witness could not be sure what night he saw appellant.

Donna Hubbart testified that on Thursday night, June 23,1977, she and appellant’s brother, Steve Howell, were with Terry McDaniel and another girl in appellant’s blue Camaro. This witness testified that she saw appellant at the apartment of McDaniel’s sister around dark that evening where he was sleeping. The four were on the way to Jim and Jim’s Bar about a block from the scene of the robbery when they pulled into Vicker’s Service Station on Bessemer Road. All four had been drinking. The appellant was not present. Steve Howell and Terry McDaniel got out of the appellant’s car at the service station, but the witness did not overhear their conversation. The four of them went to Jim and Jim’s and on the way home appellant’s car broke down. The witness was in her car with the other girl and they picked up Steve Howell and Terry McDaniel, leaving appellant’s car on the side of the Bessemer Super Highway. They returned to the apartment where the witness had seen appellant earlier in the evening and Steve Howell went in to tell the appellant his car had broken down. She did not see the appellant at that time or go into the apartment.

On cross-examination the witness testified that the four left Jim and Jim’s after midnight; that appellant’s car broke down approximately two to three blocks from the Vicker’s Service Station on Bessemer Road and that she had been drinking a good bit that evening and did not recall the exact time. She also testified that to her knowledge the car was left there on the highway overnight.

Hayes Combs testified that on the night the Vieker’s Service Station was supposed to have been robbed, he saw appellant’s blue Camaro in West End between midnight and 2:00 a. m. The car was being driven by Terry McDaniel and he did not see anyone else in the car.

On cross-examination the witness was unsure about the exact date, but he did know that it was on the night the robbery was supposed to have happened.

Steve Howell, appellant’s brother, testified that on the night in question, he and Terry McDaniel went to Vicker’s Service Station on Bessemer Road in appellant’s blue Camaro. They were followed by Donna Hubbart and another girl in a white station wagon. The witness and McDaniel argued over buying oil for appellant’s ear and then the four of them went to Jim and Jim’s. The four left some time before 2:00 a. m. and appellant’s car broke down about two blocks past Vicker’s Service Station. Donna Hubbart picked the witness and Terry McDaniel up and took them to Terry’s sister’s apartment where the witness went in and told his brother what had happened to his car. This witness further testified that he had been unable to find Terry McDaniel since that night. The witness stated that these events took place on a Thursday night and Friday morning.

Appellant James Earl Howell testified in his own behalf. He stated he was not at the Vicker’s Service Station on Bessemer Road on the night of the robbery. He testified that Terry McDaniel had his 1969 Camaro that night, that he did not and never had had a drug problem, and that he had never been convicted of any offense.

On cross-examination, appellant testified that he went to Vicker’s Service Station on Vanderbilt Road on Tuesday night and that that was the last time he drove the car before he let Terry McDaniel have it on Wednesday. He denied telling Sgt. Woods that he was at Dan’s Tavern on that night. He testified that he was with Terry McDaniel’s sister on Wednesday night and Thursday night, that he went to work Friday morning, and that his car was towed in on that day. He further testified that he did not own a pistol and that he did not rob the Vicker’s Service Station.

Isaac Hills and Lorenzo Bibbs testified that on a Friday morning in June, 1977, they towed in a car belonging to appellant. It was Isaac Hills’ testimony that the car was blue and Bibbs testified that it was a black Mustang. Both witnesses testified to the good general reputation in the community of appellant and to his reputation for truth and veracity.

Appellant contends the admission of the five photographs used in the extrajudicial photographic identification procedure was error. The test for admissibility of photographs is whether they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered. Fletcher v. State, 291 Ala. 67, 277 So.2d 882.

The testimony of both Sergeant Woods and the victim regarding the prior extrajudicial identification and the photographs themselves were introduced by the State to rebut the inference raised on cross-examination of the victim that he might have mistakenly identified appellant as the robber. The evidence thus adduced was competent and relevant as it tended to disprove that inference. This right of rehabilitation, extending to testimony by a third person as well as that by the impeached witness, is distinguished from corroboration by a witness of his own evidence and was upheld in Aaron v. State, 273 Ala. 337, 139 So.2d 309, cert. denied 371 U.S. 846, 83 S.Ct. 81, 9 L.Ed.2d 82.

The predicate for introduction of the photographs was laid on voir dire examination by Sgt. Woods and the victim, Dennis Patterson. Both men testified that the photographs marked as State’s Exhibits 1-5 were the same ones which Sgt. Woods showed the victim at his home and from which he identified the appellant. Sgt. Woods also testified that the photographs were in substantially the same condition at the time of the trial as when he showed them to Patterson. It was also established that the officer did not suggest in any way which photograph should be picked or that a suspect was included in the group. There was conflicting testimony regarding whether Sgt. Woods told Patterson that a man was in custody.

Following this testimony, the trial judge allowed into evidence the photographs and testimony that the victim identified a photograph of appellant, but any conversation between Sgt. Woods and the victim was excluded. This admission was within the sound discretion of the trial judge. Aaron, supra.

The evidence adduced at trial on the extrajudicial photographic identification, including photographs and testimony, was properly admitted as the procedure testified to was not so suggestive as to cause a substantial likelihood of irreparable mis-identification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

Appellant further contends the admission of the photographs was error on the ground that they were “mug shots” which draw attention to a prior criminal record. The only objection at trial to admission of the photographs was that no proper predicate had been laid. Where a specific objection to admission of evidence is made, all other grounds are waived. Since appellant failed to properly object at trial to the introduction of “mug shots,” nothing is presented to this Court for review. Hargrove v. State, Ala.Cr.App., 344 So.2d 823.

The evidence to support appellant’s conviction for robbery is sufficient. The evidence is in sharp conflict as to the identity of the person who robbed Vicker’s Service Station. The State presented evidence through the in-court identification by Dennis Patterson, the victim, as well as through testimony of an extrajudicial photographic identification of appellant by Patterson that appellant, James Earl Howell, committed the robbery. In addition, appellant’s statement was admitted into evidence, in which he admitted driving the 1969 blue Camaro on the night in question although he denied having robbed the service station. The evidence was uncontroverted that appellant owned the 1969 blue Camaro driven by the robber.

The evidence presented by the appellant on the other hand tends to show that he was at the apartment of Terry McDaniel’s sister on the night of the robbery and that his car was. being used by Terry McDaniel, Steve Howell, and the two girls.

Another conflict in the evidence relates to the dates on which the events testified to took place. There was confusion in the testimony of defense witnesses about the exact date on which they used appellant’s car. In the statement given Sgt. Woods appellant stated that he did drive the car on the night of the robbery. At trial, however, he testified that the last time he drove the car before the robbery was the Tuesday night of that week.

The jury was presented with the choice of accepting the positive identification of appellant by Dennis Patterson as the man who robbed him, or the evidence of appellant and his witnesses that his car was being used by someone else that night and he was never in it. The court fully charged the jury on the law governing alibi testimony. We have held many times that alibi evidence is always a jury question. Ala. Dig.Crim.Law, <@=>739(2).

Conflicting evidence in a robbery prosecution as to whether appellant committed the robbery presented an issue for the jury to resolve and a verdict rendered thereon will not be disturbed on appeal. Lee v. State, Ala.Cr.App., 346 So.2d 31; Young v. State, Ala.Cr.App., 346 So.2d 509.

A careful search of the record reflects no error injuriously affecting the substantial rights of appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte James Earl HOWELL.
    78-189.
    Supreme Court of Alabama.
    March 2, 1979.
   SHORES, Justice.

WRIT DENIED.

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


text:
    James Edward ATKINS v. STATE.
    6 Div. 890.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.
    No brief filed for appellant. (Submitted on brief of appellee and on merits. Appellant’s Attorney of Record: Bryce U. Graham, Tuscumbia).
    Charles A. Graddick, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen. for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was indicted (Count One) for burglary in the second degree; also (Count Two) for grand larceny. The jury returned a verdict of guilt on both counts. The trial court imposed a sentence of eight years imprisonment under Count One. The jury fined him $500 on Count Two. Defendant here appeals from a proper judgment that was entered.

It appears in the record that the defendant asked a total of seventy-nine written charges. Of this number, seven were given and seventy-two were refused.

We have reviewed all of the written charges and have read the oral charge. We pretermit discussing all of these refused charges for the reason that the judgment must be reversed because of the court’s refusal of two of them. On the next trial, the other refused charges may not be requested or the trial court may decide to give some of them.

The refusals which constitute error to reverse are numbered 15 and 71. They appear respectively on pages 31 and 48 in the record. They were not covered by the oral charge of the court, nor in the given charges. We quote them:

“15. If the evidence, or any part thereof, after a consideration of the whole of such evidence, generates a well-founded doubt of defendant’s guilty, the jury must acquit him.”
“71. The Court charges the jury that, if the jury, upon considering all the evidence, have a reasonable doubt about the defendant’s guilt, arising out of any part of the evidence, you should find him not guilty.”

Refusal of charges of like import was held to be error to reverse in cases as follows: Lambeth v. State, Ala.Cr.App. [Ms. January 16, 1979]; Bryant v. State, Ala. Cr.App., 348 So.2d 1136(3), cert. denied, Ala., 348 So.2d 1138; Richards v. State, Ala.Cr.App., 358 So.2d 488, cert. denied, Ala., 358 So.2d 490; Rakestraw v. State, 211 Ala. 535, 101 So. 181(4).

The judgment is reversed, and the cause is remanded.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a Retired Circuit Judge, serving as a judge of this court under the provisions of .§ 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Roy E. NICHOLSON v. STATE.
    4 Div. 688.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.

      Jerry E. Stokes, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

In a two count indictment the appellant was charged with grand larceny and with buying, receiving, or concealing stolen property. The property in question was the same under both counts: a truck windshield, transmission, and engine flywheel valued at $285.00. The jury found the appellant “guilty as charged” and the trial court adjudged him guilty of both grand larceny and buying, receiving, and concealing stolen property. Sentence was fixed at two years’ imprisonment.

According to the evidence presented by the prosecution the appellant, two other men, and three women removed a windshield, a transmission, and an engine flywheel from some old “junk” trucks located in a clay pit south of Opp, Alabama. The pit and the trucks were owned by Mixon Young, who had given no one permission or authorization to remove any part from the trucks. The appellant admitted taking two motor mounts and a windshield but claimed that a dump truck driver at the pit told them that they could have the parts off the junk trucks. The thrust of the entire defense was that the appellant thought that the trucks had been abandoned and did not have the unlawful intent to steal parts from them.

I

Immediately after the State rested its case, defense counsel moved to dismiss the charges on the basis that the State had not made out a prima facie ease on either count. This motion was denied. At the conclusion of the court’s oral charge to the jury defense counsel requested the affirmative charge to each count in the indictment.

The motion to dismiss and the affirmative charge as to count two in the indictment should have been given as there is not one shred of evidence in the record that the' appellant bought, received, or concealed stolen property. The State’s own evidence shows beyond any doubt that the appellant actually took the truck parts charged to be stolen. Therefore he could not be guilty of buying, receiving, or concealing stolen property. “Since a thief may not receive stolen property from himself, the appellant cannot be convicted of receiving stolen property where the evidence shows that (he) actually stole the property.” Davidson v. State, 360 So.2d 728, 731 (Ala.Cr.App.), cert. denied, 360 So.2d 731 (Ala.1978).

The trial judge instructed the jury to return a verdict of “guilty as charged” if they were convinced beyond a reasonable doubt that the appellant was guilty of either grand larceny or receiving stolen property. Consequently, the failure to grant the appellant’s motion to exclude or to give the requested affirmative charge as to the second count of the indictment constitutes reversible error because of the general verdict of guilty returned by the jury.

When a general verdict is returned in a case where the evidence is sufficient to support one or more counts in the indictment, but insufficient to support others, and the affirmative charge as to those unsupported counts is refused, such action by the trial court is reversible error. Jones v. State, 236 Ala. 30, 33, 182 So. 404 (1937); Hawes v. State, 216 Ala. 151, 152, 112 So. 761 (1927); Stover v. State, 36 Ala.App. 696, 698, 63 So.2d 386 (1953). Under such circumstances the general verdict of guilty is not referable to the count in the indictment supported by the evidence. Stover, supra. The reason for this is apparent: when the jury returns a general verdict in accordance with instructions given by the trial court and the affirmative charge has been refused as to each count, it becomes impossible to determine from the record under which count of the indictment the jury found the appellant guilty. Hawes, supra.

When an accused is charged in a two count indictment with both larceny and buying, receiving, or concealing stolen property, and the property in question is the same, the jury should be instructed to specify under which count they find the accused guilty, rather than be instructed to return the general verdict if they believe him guilty under either count. Since an accused cannot be found guilty of both larceny and buying, receiving, or concealing stolen property, he is guilty, if at all, of either one offense or the other. Davidson, supra. Of course, if no evidence is presented as to one of the counts, as is the present situation, and the affirmative charge is requested as to that count, it is the duty of the trial court to give that charge. Stover, supra; Jurzak v. State, 19 Ala.App. 290, 291, 97 So. 178 (1923).

The Double Jeopardy Clause of the Fifth Amendment precludes a second trial once a reviewing court has found the evidence insufficient to sustain the jury’s verdict of guilty. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Since the State produced no evidence of buying, receiving, or concealing stolen property and the appellant was entitled to a directed verdict of acquittal on that count of the indictment. He cannot be retried for such offense.

II

The trial court refused to give the following written instruction requested by the appellant:

“The court charges you that you may not find the defendant guilty of grand larceny if you believe from the evidence that the defendant honestly believed that the property which he is alleged to have taken had been discarded and abandoned by its owner.”

Failure to give this charge also constituted error. To be guilty of grand larceny one must have a felonious intent. Golston v. State, 57 Ala.App. 623, 330 So.2d 446 (1975). This intent is lacking and the defendant is not guilty of larceny if he has taken the property with the reasonable and actual belief that it was abandoned. Szewczyk v. State, 7 Md.App. 597, 256 A.2d 713 (1969); State v. Gage, 272 Minn. 106, 136 N.W.2d 662 (1965). See also Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); 52A C.J.S. Larceny § 25b (1968); 2 Wharton’s Criminal Law and Procedure (Anderson ed.), § 493, p. 161.

While the court did charge the jury that larceny required the taker to have the felonious intent to deprive the owner of the property, the court did not charge that abandoned property is not the subject of larceny. Refusal of a charge which is framed so as to embrace a correct principle as applied to a particular phase of the evidence is reversible error, even though general charges are given which are based upon general principles. McKenzie v. State, 19 Ala.App. 319, 321, 97 So. 155 (1923).

Larceny is an offense against possession. Davenport v. State, 53 Ala.App. 326, 299 So.2d 767, cert. denied, 293 Ala. 751, 299 So.2d 771 (1974).

“(S)ince larceny is a crime against possession, in order to sustain a conviction of larceny it must appear not only that there was a wrongful caption and aspor-tation of goods by the defendant, with specific criminal intent, but that the property itself was the subject of larceny. Abandoned property does not so qualify. It belongs to no one, nor is it regarded as being in the possession of any one. Because there is no property right in it . it cannot be the subject of larceny. Hence, in the present case, if the locks were abandoned, no crime was committed.” Commonwealth v. Meinhart, 173 Pa.Super. 495, 98 A.2d 392 (1953) (emphasis added).

Here there was evidence by virtue of the appellant’s testimony, other testimony, the dilapidated condition of the property taken and its location which tended to show that the trucks may have been abandoned. Such forms of evidence have been held competent to show abandonment. Meinhart, supra; Jordan v. State, 106 Tex.Crim. 414, 296 S.W. 585 (1927). Therefore the requested charge should have been given.

Ill

If the appellant is retried on the larceny count we note that the statements of the truck drivers, as reported by the appellant’s daughter and daughter-in-law to the effect that the trucks were abandoned and that the appellant could remove parts from the junk trucks, are admissible and not in violation of the Hearsay Rule.

The hearsay rule forbids merely the use of an extrajudicial utterance as an assertion to evidence the fact asserted.

“Wherever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that not assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned.” 6 J. Wigmore, Evidence, § 1789 (Chad-bourniRevision 1976).

The controlling rule is also stated in C. Gamble, McElroy’s Alabama Evidence § 273.02 (3rd ed. 1977).

“If it is material to prove that a person at a specified time had been put on notice about a matter, or entertained a specified belief, acted in good or bad faith, had a specified motive to do or not to do an act or to do an act with a specified motive, or was mentally deranged, proof that a statement was made to him prior to the time in question which was reasonably calculated to create, and which is offered for the purpose of showing, notice, belief, good or bad faith, motive or mental derangement is not violative of the Hearsay Rule.”

For the reasons stated this judgment is reversed and the cause is rendered as to the count in the indictment charging the appellant with buying, receiving, or concealing stolen property and reversed and remanded as to the count charging larceny.

REVERSED AND REMANDED AS TO COUNT 1; REVERSED AND RENDERED AS TO COUNT 2.

All Judges concur.


text:
    Tom DAVIS v. STATE.
    4 Div. 719.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Brian W. Dowling, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant was convicted in the Circuit Court of Houston County for non-support of his minor child and sentenced to hard labor for Houston County for a period of twelve months.

Appellant was accused by information filed in the Juvenile Section of the Circuit Court Family Division, without lawful excuse, of deserting, or willfully neglecting, or refusing, or failing to provide for the maintenance and support of his child, Lisa Michelle Davis, age five. He was tried and convicted without the aid of a jury. He appealed.

It appears that the mother, Voncille Davis, and appellant-defendant, were married in 1972 and divorced September 29, 1977. This child was a progeny of the marriage.

It further appears that the child lived with her mother in Houston County. It appears that the mother was employed “going on two years, but not regularly” as a cook earning $79 per week; that she paid $65 per month rent; that she did not own a house. She testified that to start with her ex-husband did not pay any support for the child. Later, he gave the child from $1 to $10 “every chance he would come over there to see her, I suppose, or either I would take her by there to see him.” Mrs. Davis further stated that “she bought her something with it — you know — I took some of it and bought food with some of it. It continued for three or four months.” After this period of time, the appellant did not pay any money to Lisa Michelle except $20 given to the mother when the child needed to go to the doctor, and this happened only once. After that time, he did not pay any money until November when the trial began. Mrs. Davis stated that “after in court” he had paid $20 every week. The child received support for day care from the State Department of Pensions and Security while the mother was at work. Mrs. Davis stated that she had gotten food stamps at one time, but had stopped. When asked why, the witness testified, “I couldn’t get the money to buy them with.” We quote from the record:

“Q. Did you have to buy them — how much — how often did you have to buy them?
“A. It is a hundred dollars a month every two weeks.
“Q. Fifty dollars every two weeks?
“A. Yes, sir.
“Q. How did you buy food after you quit buying food stamps?
“A. I take things home from — you know — I have five or ten dollars left over from my paycheck sometimes, and I took what money he gave me up to then to— you know — to buy food with. I have had my next door neighbor helping me along with them.
“Q. Is there anything you haven’t been able to buy your child that your child needs?
“A. Yes.
“Q. What is that?
“A. Clothes.
“Q. Clothes?
“A. Yes.
“Q. Anything else?
“A. Shoes, underwear, stuff like that.
“Q. What about medical or dental bills?
“A. I can’t afford to pay doctor bills either.
“Q. Does she need to see the doctor?
“A. Well, ever so often.
“Q. Ever so often?
;}: sk sfc s}: # %
“Q. (BY MR. STOREY — cont’d:) Before you took out the warrant, did your child need to see a doctor at times?
“A. Yes, sir.
“Q. Were you able to pay the doctor bills?
“A. No, sir.
“Q. Were you able to take your daughter to the doctor?
“A. No, sir.
“Q. Why?
“A. Because I didn’t have the money, and they told me not to bring her back over there until the doctor bill was paid.
“Q. Is there anything else that your child needs that you haven’t been able to buy?
“A. No more than food is all.
“Q. Food, clothing and doctor bills — you haven’t been able to buy?
“A. That is true.”

We think the child needed economic support which appellant failed to provide and that the appellant violated § 30-4-51, Code of Ala.1975. Hayes v. State, Ala.Cr.App., 351 So.2d 678; Poke v. State, Ala., 369 So.2d 840 [1979].

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a Retired Circuit Judge, serving as a judge of this court under the provisions of § 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Evelyn CASSIDY v. STATE.
    5 Div. 429.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Cecil M. Tipton, Jr., Opelika, for appellant.
    William J. Baxley, Atty. Gen., and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was convicted for buying, receiving and concealing one 30-30 Winchester rifle. Sentence was fixed at eight years’ imprisonment. The two issues presented on this appeal concern the legality of a search and seizure and the admissibility of incriminating statements made by the appellant during the search.

On September 26, 1977, one 30-30 Winchester rifle, four swords and other items were stolen from the Russell County residence of George Crouch, Jr. On March 1, 1978, Investigator Roy Culpepper of the Russell County Sheriff’s Department, acting on information supplied by David White, entered the appellant’s antique shop in Lee County. White introduced Culpep-per as a “friend” and stated that Culpepper wanted to purchase a rifle, “a collector’s item, (a) Winchester Model 80-30 rifle that had a silver medallion on the stock”. When White reminded the appellant that he had sold the rifle to her about six months ago at the same time he sold her “the swords”, the appellant replied, “Oh, that one”. The appellant went to her residence in the rear of the antique shop and returned with a 30-30 rifle. Culpepper told the appellant that he could get her some guns if she wanted any to sell. The appellant replied that she would like “some good old guns ... (b)ecause they have no serial numbers and they can’t be traced as stolen”. Culpepper examined the weapon and his testimony identifies it as the same rifle stolen from Mr. Crouch.

At this point and according to a prearranged plan, White was scheduled to radio Lieutenant Ronnie Watkins of the Lee County Sheriff’s Office who was waiting nearby. When White was unable to contact Lieutenant Watkins, White and Culpepper left the appellant’s shop after Culpepper informed the appellant that he would return when he had secured the purchase price the appellant demanded for the rifle. Culpepper located Lieutenant Watkins and informed him that the stolen rifle was in the appellant’s possession.

Within fifteen to twenty minutes after Culpepper had left the antique shop, he returned with several other officers led by Lieutenant Watkins. . Watkins testified that the shop was open and thát inside he was met by the appellant who personally knew him. Watkins introduced the other law enforcement officers and told the appellant that Culpepper was in fact a Russell County Investigator:

“ — that he had been there some 15 or 20 minutes earlier for the sole purpose of looking at some weapons and it was my understanding that she had produced a particular 30-30 rifle and I informed Mrs. Cassidy at that particular time that that weapon was, in fact, stolen or allegedly stolen in a burglary from Russell County, Alabama; and that I would like to see that weapon and search her premises.
“Q. What did Mrs. Cassidy say or do in response to that?
“A. She said, yes, she did have a 30-30 Rifle and volunteered to produce the weapon. She said that she would get it and started to the rear of the residence and I told her that I would have to accompany her if she was going after a firearm and we did, the two of us, walked to the dwelling area and she produced the particular rifle in question that I believe has been introduced into evidence.
“Q. At that time, did she-produce this rifle marked as, ‘State’s Exhibit Number One’?
“A. She did, yes, sir.”

Watkins stated that, “Immediately upon me confronting her with the fact that this particular 30-30 rifle was stolen, that I wanted to get it and search the premises, she says, ‘Yes, I’ve got a 30-30 rifle. I’ll get it’.”

After the appellant had produced the rifle, Watkins secured her “consent” and searched her shop and residence. Although the voluntariness of this “consent” search is questionable, see Herriott v. State, 337 So.2d 165 (Ala.Cr.App.), cert. denied, 337 So.2d 171 (Ala.1976), we need not deal with the propriety of the search conducted after the appellant produced the weapon as no fruit of that search was employed in securing the appellant’s conviction.

The appellant argues that her conviction should be reversed because she was not given her Miranda rights before she was asked to produce the rifle and before she made the self-incriminating statement to Lieutenant Watkins that she had the weapon and would go- get it.

The evidence discloses that the law enforcement officers had probable cause to arrest the appellant and search her residence and shop after Investigator Cul-pepper had made his initial visit to her shop and found the appellant to have a stolen rifle in her possession. However, even if we assume that the appellant’s compliance with Watkins’ request to produce the rifle was an unreasonable search and seizure, the introduction and admission of the rifle into evidence was only harmless error for two reasons: (1) Culpepper had previously testified that he had seen that very weapon in the appellant’s possession only fifteen or twenty minutes before its alleged illegal seizure; and, (2) although the appellant did not testify before the jury, her husband admitted that the rifle was in the residence and that his wife knew about it, thereby establishing that the appellant at least had constructive possession of the weapon. Thus any unlawful introduction of the rifle improperly seized from the appellant’s home was harmless to her conviction where that fact had already been proved by competent legal evidence and the fact of possession was uncontroverted. United States v. Gramlich, 551 F.2d 1359 (5th Cir. 1977). The admission of improper evidence to establish an undisputed fact is harmless error. Coplon v. State, 15 Ala.App. 331, 73 So. 225 (1916), cert. denied, 199 Ala. 698, 74 So. 1005 (1917). Likewise the appellant’s admission to Lieutenant Watkins that she had the rifle and would go get it was not error in view of the fact that she had already and very recently admitted her possession of the weapon to Investigator Culpepper. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). Before Watkins testified the rifle had been described and identified as being the weapon stolen and the one found in the possession of the appellant. The statements the appellant made to Lieutenant Watkins were cumulative in that her possession of the rifle had already been proven by statements she made to Culpep-per which not only showed possession but also guilty knowledge. Under these circumstances the appellant’s statement that she had the rifle, even if improperly admitted because of the lack of the Miranda warnings, only constituted harmless error. Leslie v. State, 55 Ala.App. 128, 313 So.2d 555 (1975); Cork v. State, 50 Ala.App. 670, 282 So.2d 107 (1973); James v. State, 44 Ala.App. 593, 217 So.2d 545 (1969); Myers v. State, 40 Ala.App. 617, 119 So.2d 602 (1960).

The admission of incompetent evidence is harmless where the facts thereby disclosed are otherwise established by competent evidence. Smith v. State, 229 Ala. 207, 157 So. 874 (1934). A judgment will not be reversed because of the admission of incompetent evidence, where the other evidence, which was uncontradicted, would require the same verdict. Wideman v. State, 20 Ala.App. 422, 104 So. 438, cert. denied, 213 Ala. 170,104 So. 440 (1924). The admission of evidence which is merely cumulative of an admitted fact is error without injury to the defendant. Senn v. State, 35 Ala. App. 62, 43 So.2d 540 (1950).

No evidence was presented to show that the appellant had no possession of the rifle or that she had no knowledge of its presence in her residence. Rather, the entire defense was directed at explaining the possession.

We have searched the record for error prejudicial to the appellant and have found none. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Tommy BRASWELL v. STATE.
    5 Div. 437.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.

      Tommy Braswell, pro se.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent prisoner, was convicted of grand larceny pursuant to an indictment that described the stolen property as a 1977 model, one-ton Ford truck, Tag. No. S-8187, the personal property of the State of Alabama.

It appears in the record that a qualified attorney, pursuant to an appointment by the Court, represented defendant at nisi prius. Sentence was two years imprisonment. Defendant took an appeal from the judgment, and was furnished a free transcript, due to his indigency; and also the same attorney was appointed to represent him on appeal.

On November 3, 1978, the appellant filed a verified petition, which he purportedly signed, wherein he said:

“Petitioner filed notice of appeal the day he was sentenced October 18, 1978, for Grand Larceny, 2 years in the State of Alabama Prison System. Petitioner is presently incarcerated at G. K. Fountain Correctional Center, and has access to law books, and wishes to file brief and argument to the Criminal Court of Appeals in his own behalf. So if it would please the Court of Elmore County, the petitioner wishes to have his attorney dismissed from this case.”

Pursuant to this request, the Court entered an order on November 10, 1978, relieving the appointed attorney from further representation.

Thereafter, on December 4, 1978, appellant filed with this Court, a verified instrument, entitled “Pro Se Brief, Motion to Vacate Sentence in Support of Appeal.”

We will not undertake to write to the instrument for the reason it does not seek to review any ruling of the Court at nisi prius. In fact there was no ruling subject to review. There was no motion to exclude the evidence, no requested charges, and no motion for a new trial. This Court reviews only adverse rulings properly invoked. Cooper v. State, 340 So.2d 871(3), cert. den. Ex Parte Cooper, 340 So.2d 872.

Suffice it is we have reviewed the entire record in search of prejudicial errors as is our duty, and we find none. § 12-22-240, Code of Alabama 1975. It appears to us that the circumstantial evidence of guilt was sufficient to support the verdict of the jury. So far as our review reveals, the rulings of the Court were free of prejudicial error.

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a Retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    Andre Rena BROWN v. STATE.
    6 Div. 399.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Charles A. Graddick, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Jefferson County returned an indictment against the appellant, Andre Rena Brown, charging him with murder in the second degree. The appellant entered a plea of not guilty. The jury found the appellant guilty of murder in the second degree as charged in the indictment and fixed his punishment at twelve years imprisonment in the penitentiary. The trial court duly sentenced the appellant to the penitentiary for twelve years. The appellant filed a motion for new trial, it was overruled, and he appealed to this court.

The appellant was represented by counsel of his choice at all proceedings in the trial court and is so represented in this court. This appeal was submitted on brief of ap-pellee and letter of no merit of the appellant.

The appellant by his motion to exclude the State’s evidence and by his motion for a new trial raised the question as to sufficiency of the State’s evidence to sustain the jury verdict finding him guilty of murder in the second degree and of the sufficiency of the State’s evidence to prove venue.

The State’s evidence tended to prove that on March 31, 1976, the appellant and the deceased, Charles Edward Stanford, were playing basketball at Loveman’s Community Center in the city of Birmingham, Jefferson County, Alabama. While they were playing basketball, the appellant and the deceased, being on opposite teams, had been reprimanded for “flagrant fouls, for flagrantly handling each other on the floor.” Later on in the game, the deceased ran into the appellant and threw him to the floor. The appellant got up and ran out of the gymnasium. In a few minutes, the deceased along with several other persons left the floor of the gymnasium and went out in front of the building. The appellant went to the home of a friend nearby the gymnasium and borrowed a .22 caliber pistol and returned to the gymnasium. As he started to go into the building, he was told by the manager of the building not to go inside with the pistol he had in his hand. Appellant went on into the building anyway. As the appellant was coming off the gymnasium floor, the deceased was coming toward the gymnasium. At that time, the appellant shot the deceased with the .22 caliber pistol one time. The deceased fell to the floor and was taken to the hospital where he died that night. The appellant then went" to his friend’s house and returned the .22 caliber pistol. He got in a car with some other people, left the scene of the shooting, and was arrested by officers of the law several blocks away.

State’s evidence further tends to prove that the bullet went through the upper lobe of the left lung and into the heart of the deceased and was recovered from within one of the chambers of the heart. The cause of death was due to massive internal bleeding and trauma caused by the bullet.

Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation. The defendant’s use of a pistol was sufficient to prove that he acted with malice. Fields v. State, 52 Ala. 348; Brown v. State, Ala.Cr.App., 348 So.2d 534; Harris v. State, 56 Ala.App. 301, 321 So.2d 267. We hold that under the facts contained in this record the trial court did not err when it overruled appellant’s motion to exclude the State’s evidence and appellant’s motion for a new trial.

As provided by the Alabama Code of 1975, § 12-22-240, we have searched the record for any errors prejudicial to the appellant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a Retired Circuit Judge, serving as a judge of this court under the provisions of § 6.10 of the new Judicial Article (Constitutional Amendment No. 328). His opinion is adopted as that of the court. The judgment is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    James Roland BICKERSTAFF v. STATE.
    6 Div. 764.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.

      Russell T. McDonald, Jr., and Roger A. Brown for McDonald, Brown & Tipler, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for unlawfully selling, furnishing, or giving away pentobarbital in violation of the Alabama Uniform Controlled Substances Act. Alabama Code §§ 20-2-1 through 20-2-93 (1975). The trial judge fixed sentence at ten years’ imprisonment.

The facts reveal that in the early evening of February 24, 1977, Steven Corvin, an undercover agent assigned to the United Narcotics Detail Operation (UNDO), drove with Mike Lund to the appellant’s house. Corvin gave Lund $160.00 of UNDO funds with which to make the purchase. Lund got out of the car and approached the appellant who was sitting on the front porch in a swing. Corvin saw Lund hand the appellant the money, and the appellant hand Lund a white envelope which contained 142 capsules later determined to constitute pentobarbital.

I

The appellant first alleges that the State failed to prove the capsules actually contained pentobarbital, an element necessary to sustain his conviction. This allegation is without merit. A copy of the toxicology report on the capsules was admitted without objection. The laboratory results on the report indicated that the 142 capsules did, in fact, contain pentobarbital.

Identification of a controlled substance by a State toxicologist is, of course, sufficient to constitute a prima facie case. Hagendorfer v. State, 348 So.2d 1097 (Ala.Cr.App.), cert. denied, 348 So.2d 1101 (Ala. 1977). Reports of a State toxicologist and copies thereof are public records which are likewise admissible when offered into evidence. Seals v. State, 282 Ala. 586, 604, 213 So.2d 645 (1968); Alabama Code § 12-21-35 (1975); also see Alabama Code § 36-18-2 (1975). Thus, the admission of the toxicologist’s report in this case was sufficient to show that the controlled substance was pen-tobarbital as charged in the indictment.

The trial judge charged the jury that “pentobarbital is a controlled substance”. This charge was proper. See Cole v. State, 352 So.2d 17, 20 (Ala.Cr.App.), cert. denied, 352 So.2d 20 (Ala.1977). Moreover, defense counsel specifically stated he had “no objections” to the court’s oral charge.

II

The appellant next contends he was prejudiced by the State injecting into evidence a previous drug sale by the appellant and a knife-gun altercation between the appellant and Corvin at a methadone clinic unrelated to the present charge. Both the previous drug sale and the meeting between the appellant and Corvin at the methadone clinic were initially put into issue by the defense.

The appellant’s father testified on direct examination, and in response to defense counsel’s eliciting such information, that his son had never sold “dope” out of his house. On cross examination the State was properly allowed to question the witness about a prior and unrelated sale of drugs made by his son “out of his house”.

Also, on direct examination and in response to the questions of his own counsel, the appellant testified that he had never seen Agent Corvin before “this past summer” when he saw him at the methadone clinic. On cross examination the State was properly allowed to go into the details of that meeting and of a prior meeting to impeach the credibility of the appellant and rebut his testimony.

Even though a party introduces evidence that may be immaterial or illegal, his opponent has the unconditional right to rebut such evidence. Clark v. State, 54 Ala.App. 183, 186, 306 So.2d 51, cert. denied, 293 Ala. 749, 306 So.2d 54 (1974); Sanders v. State, 48 Ala.App. 589, 266 So.2d 797 (1972); Alabama Code § 12-21-137 (1975); C. Gamble, McElroy’s Alabama Evidence, § 14.01 (3rd ed. 1977). The privilege of cross examination inures to the benefit of the State, in a criminal prosecution, just as to any other party. Endsley v. State, 26 Ala.App. 605, 606, 164 So. 396 (1935). Thus the defense, by putting these matters into evidence, opened the door for the State to rebut such evidence.

We have searched the record for reversible error and have found none. The verdict is amply supported by the evidence. The judgment of the Circuit Court is due to be affirmed.

AFFIRMED.

All Judges concur.


text:
    Robert John DUMAS v. STATE.
    6 Div. 805.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Richard S. Jaffe, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, represented here and at nisi prius by employed counsel, was indicted for robbery, convicted by a jury which fixed punishment at twelve years imprisonment.

The only asserted error is the failure of the prosecution to inform the defendant, pursuant to a pre-trial motion therefor, that a key witness for the State had on a previous occasion (1953) been convicted in Jefferson County of burglary — an offense involving moral turpitude. Appellant contends that such alleged conviction was not known to him until right after the trial and conviction. Judgment of guilt in the instant case was entered on April 12, 1978.

Appellant filed and presented a motion for a new trial on May 9, 1978, and after a series of continuances, the motion was heard and overruled on August 25, 1978.

Ground fifteen of the motion reads as follows:

“15. For that the State willfully and intentionally withheld information concerning the arrest and conviction records of the state witnesses, particularly, Mr. Phillip Charles Brown, who was the crucial witness for the State. Said information was requested of the State by the defendant through his Motion to Compel Production or Disclosure, and the State of Alabama through its representative, Mr. George Jones, that the State had no knowledge of any prior criminal records or convictions of any of the witnesses it intended to call. This information was pertinent and critical in deciding the guilt or innocence of the defendant in the case at bar. The withholding of the aforesaid evidence was of such critical nature, that had it been known, the tactics and strategy of the defense would have been entirely different.”

We will not review the ruling of the trial court because there is no evidence in the record that supports the motion. Appellant’s counsel on this appeal elaborately and astutely argues the merits of Ground 15, supra, and incorporates in his brief a certified copy of some bench notes on file in the Office of the Circuit Clerk of Jefferson County. These notes show that one Phillip C. Brown (the name of the witness who testified) entered a plea of guilty to burglary as charged and punishment was fixed at two years imprisonment.

There is no evidence in the record which indicates such a conviction. Nor is there anything in the record to show that the person who pled guilty as indicated, supra, was one and the same person who appeared as a State’s witness.

Attached to appellant’s brief is a verified statement of Roy J. Brown, appellant’s employed counsel at nisi prius, that right after the trial was concluded, he learned from the Deputy District Attorney that the witness had been convicted for burglary; that this deputy had knowledge of the conviction and failed or refused to disclose it.

This Court takes judicial knowledge of its own records and the Circuit Court of its records. Statham v. Statham, 282 Ala. 322, 211 So.2d 456(6); Roan v. Smith, 272 Ala. 538, 133 So.2d 224(4).

Facts asserted in brief of appellant or appellee, which cannot be ascertained from the record, cannot be reviewed. Lucy v. State, Ala., 340 So.2d 840(2, 3).

In view of the absence in the record of any prejudicial error that our search reveals, we think the instant judgment should be affirmed. It is so ordered.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a Retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    Malcolm GRACE and Willodean Grace v. STATE.
    6 Div. 856.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.

      Jerry W. Jackson, Haleyville, for appellants.
    William J. Baxley, Atty. Gen., and John Gibbs, Asst. Atty. Gen., for the State, appel-lee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Winston County returned separate indictments against the appellants, Malcolm and Willodean Grace, charging that each of the appellants did carnally know, or abuse in the attempt to carnally know, a girl under the age of twelve years.

Each appellant entered a plea of not guilty and consented to a joint trial. A jury found each appellant guilty of carnal knowledge as charged in the indictment. The trial court duly sentenced the appellant, Malcolm Grace, to twenty years and the appellant, Willodean Grace, to fifteen years imprisonment in the penitentiary.

The appellants filed motions for a new trial which were denied, and appellant then filed notice of appeal to this court. The appeal was submitted on briefs. The appellants were represented by counsel of their choice at all proceedings in the trial court and are so represented in this court.

The appellants state, in their brief, two reasons their convictions should be reversed: First, that the trial court denied appellants’ motions to exclude the State’s evidence and direct a verdict of acquittal on the grounds that the State had failed to prove the elements of the offense, including but not limited to venue; Secondly, that § 13-1-133, Code of Alabama 1975, under which the appellants were convicted, is unconstitutional and void and violates the due process and equal protection clauses of the Constitution of the United States and the Constitution of the State of Alabama.

Appellants insist that the State’s evidence is not sufficient to prove the elements of the offense charged in the indictment.

The State’s evidence tended to prove that the appellants are husband and wife; that the injured party was a girl child, born October 16, 1967; and that on Friday July 15, 1977, the injured party lived in Hart-selle, Alabama, with her mother and two brothers, all of whom were then visiting the grandmother of the injured party, near Falkville, a few miles south of Huntsville. On July 15, 1977, the appellants were present at the home of the grandmother of the injured party. They visited the grandmother until about 9:00 or 9:30 P.M., about which time, the appellants invited the injured party to go to Double Springs, Alabama with them.

The injured party left her grandmother’s house with the appellants in their car to go to Double Springs, Alabama. The route traveled was on Highway 33, from Falkville to Hartselle, in Morgan County, to Wren, in Lawrence County, through the William B. Bankhead National Forest, to Double Springs, in Winston County. During the trip, both of the appellants drove the car. After the appellants’ car entered the national forest, the car stopped at a bootlegger’s trailer. After they had stopped at the bootlegger’s in the national forest, and before reaching Double Springs in Winston County, while the ear was still on the highway in the national forest, the appellant Malcolm Grace, had sexual intercourse with the injured party. The sexual organ of the appellant, Malcolm Grace, penetrated the sexual organ of the injured party on two different occasions at two separate places during the drive through the national forest.

The State’s evidence further tended to prove that the appellant, Willodean Grace, took a quilt out of the car, spread it out on the ground in the road behind the car, made the injured party lie down on it, and that the appellant, Malcolm Grace, there had sexual intercourse with the injured party. Mrs. Grace told the injured party that if she did not do that, they would leave her in the woods, and that she would have to walk back to Hartselle.

The evidence also tended to show that Mrs. Grace then refused to take the injured party back to her home, that Mrs. Grace was present when Malcolm Grace had sexual intercourse with the injured party, and that Mrs. Grace bit and kicked the injured party. Both of the appellants had been drinking beer at the time the intercourse occurred.

The State’s evidence further tended to prove that, on July 17, 1977, Doctor Malcolm Blake examined the injured party, that she had bruises around her rectal area and vaginal areas, and that her vagina had been penetrated.

The State’s evidence further tended to show that Jerry Thorn, a deputy sheriff of Winston County, was familiar with the boundary lines of Winston County. The deputy knew of two bootleggers located in the national forest, between the northern line of Winston County and Double Springs, /who operate from mobile homes or trailers near the northern boundary line of Winston County. One of these homes is located on Old Highway 33 and one between Old Highway 33 and New Highway 33. It was shown that Old Highway 33 and New Highway 33 come together about two hundred yards south of the northern boundary line of Winston County. There are no bootleg7 gers who live in and do business from a trailer, located in Lawrence County, on Highway 33, and the national forest, between the northern boundary lines of Winston County and Wren.

Appellant’s evidence tended to show that the injured party rode with them in their car on the night of July 15, 1977, from Falkville to Hartselle to Wren, and from Wren back through the national forest to Double Springs, on New Highway 33. Appellants stopped their ear only once, in Lawrence County near Wren, and picked up a six-pack of beer, and the injured party stayed in the back seat of their car during the whole trip. The appellants did not do any of the things that the injured party testified they did to her, and the appellant, Mr. Grace, made no advances toward the injured party and said nothing to her that indicated that he was going to. The injured party went to appellants’ home with them and spent the night. On the 16th day of July, 1977, she was at their home in Double Springs until her mother came for her about noon, and she seemed normal and acted in a normal way. The appellants’ reputation for truth and veracity, in the community in which they lived, was good.

The appellants were convicted under § 13 — 1—133, Code of Alabama 1975, which provides:

“Any person who has carnal knowledge of any girl under twelve years of age, or abuses such girl in the attempt to have carnal knowledge of her, shall, on conviction, be punished by imprisonment in the penitentiary for not less than ten years, or as otherwise specified by law.”

There are two crimes defined in the foregoing statute: first, having carnal knowledge of a girl under twelve years of age; and secondly, abusing a girl under the age of twelve in the attempt to have carnal knowledge of her. Carnal knowledge is the same as sexual intercourse. To sustain a conviction, it is necessary for the State to prove to the degree required by law, that the injured party was under twelve years of age at the time of the alleged act, and that her sexual organ was penetrated by the sexual organ of the accused, or that physical abuse to her genital organs occurred in an attempt to have carnal knowledge of her.

The appellant contends that the elements of carnal knowledge were not proved. We hold that, under the facts in the record, the evidence is sufficient to sustain the jury’s verdict finding the appellant, Malcolm Grace, guilty of carnal knowledge, and to sustain the jury verdict finding Wil-lodean Grace guilty of carnal knowledge as an aider and abettor. One who aids or abets another in the commission of a felony must be indicted, tried and punished as a principal. §§ 13-1-133 and 13-9 — 1, Code of Alabama 1975; Reynolds v. State, 274 Ala. 171, 146 So. 85; Ferguson v. State, 134 Ala. 63, 32 So. 760; Baker v. State, 52 Ala.App. 150, 290 So.2d 214; Conley v. State, Ala.Cr. App., 354 So.2d 1172.

The court fully instructed the jury on the law of one who aids or abets another in the commission of a felony, and correctly submitted to the jury the question as to Willo-dean Grace’s, guilt in the crime.

The appellants further contend that the State’s evidence failed to prove that the crime was committed in Winston County.

We take judicial notice of the fact that the southern boundary line of Lawrence County and the northern boundary line of Winston County are the same. Magourik v. State, Ala.Cr.App., 339 So.2d 168. Proof of venue is necessary to sustain a conviction, and, like any other fact in the case, when there is evidence in the case having a tendency to prove that the offense was committed within the jurisdiction of the court, the question of venue becomes a fact for the jury to decide. § 15-2-7, Code of Alabama 1975; Armstrong v. State, 249 Ala. 40, 29 So.2d 330; Wilcutt v. State, 284 Ala. 547, 226 So.2d 328.

We hold that, if the jury believed the evidence of the injured party and Deputy Sheriff Jerry Thorn, it was sufficient to sustain the jury finding that the crime was committed in Winston County. The question of venue was properly submitted to the jury by the court’s oral charge.

The appellants contend that § 13-1-133, Code of Alabama 1975, is unconstitutional and void, because it violated the due process and equal protection clauses of the Constitution of the United States and the Constitution of Alabama, in that it discriminates between the male sex and the female sex.

We have diligently searched the record and do not find where a ruling of the trial court was invoked on any constitutional question. Constitutional questions are not before this court unless raised in some manner in the trial court. Steele v. State, 289 Ala. 186, 266 So.2d 746; Fuller v. State, 269 Ala. 312, 113 So.2d 153; Carter v. State, Ala.Cr.App., 356 So.2d 682.

No other rulings of the trial court are argued in the appellant’s brief.

As provided by the Alabama Code of 1975, § 12-22-240, we have searched the record for any errors prejudicial to the appellants and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of § 6.10, of the New Judicial Article (Constitutional Amendment 328, Act No. 1051, 1973); his opinion is adopted as that of the court.

The judgment is hereby affirmed.

AFFIRMED.

All the Judges concur.