author: DeCARLO, Judge. BOOKOUT, Judge,

text:
    Bernard Ino BUTLER v. STATE.
    3 Div. 674.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    Rehearing Denied March 29, 1977.

      William J. Fuller, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

On August 12, 1976, Bernard Ino Butler, the appellant, filed in the Circuit Court of Montgomery County, Alabama, a petition for habeas corpus, directed to the Sheriff of Montgomery County, under whose control the petitioner was being confined in the county jail as a state prisoner. The petitioner was being confined under a judgment of conviction of the Circuit Court of Montgomery County for the offense of carnal knowledge with a sentence of twenty years. The writ was issued by the trial judge, and on September 8, 1976, a hearing was held and testimony taken. Following a finding of fact, the court denied the petition, and it is from this judgment the petitioner appeals.

The progress of the petitioner’s case was as follows: after affirmance by the Alabama Court of Criminal Appeals, on May 27, 1975, of the judgment and conviction, and after denial of application for rehearing, certiorari was denied by the Alabama Supreme Court on July 31, 1975; subsequently a review by petition of certiorari to the Supreme Court of the United States was sought, and it was denied on December 1, 1975. Butler v. State, 55 Ala.App. 421, 316 So.2d 348, cert. denied 294 Ala. 754, 316 So.2d 355, cert. denied 423 U.S. 996, 96 S.Ct. 424, 46 L.Ed.2d 370. Approximately two weeks later petitioner surrendered to the sheriff of Montgomery County, and since that date has been confined in the county jail. In August of 1976, the petitioner presented a petition for habeas corpus, and it is now under review.

In the habeas corpus proceedings, the petitioner testified that he was fifty-eight years of age and was a retired Lieutenant Colonel in the Air Force with twenty-two years of military service. After serving as a pilot and “communications electronic staff officer,” he was honorably discharged, and had no prior convictions of any type. Butler stated that he lived in a home that he and his wife owned in Montgomery, Alabama, but since his surrender to the Montgomery County authorities on December 17, 1975, he has been confined as a state prisoner in the county jail. He testified there was no violence involved in the carnal knowledge case and alleged that it related solely to prostitution on the part of the prosecuting witness.

The district attorney of Montgomery County was called and he stipulated that Mary Croom was the prosecutrix in five cases, including the case of carnal knowledge against the petitioner and stipulated to the correctness of the docket entries.

The appellant’s petition contains the following summation of the records:

“. . . [Ijndictments were returned against four (4) other persons for carnal knowledge of the same Mary Croom, prosecutrix in the case against this Petitioner, only one (1) of such persons was ever brought to trial, Eugene Sexton, and when his ten (10) year conviction was reversed by the Alabama Court of Criminal Appeals, on the technicality of improper cross-examination of that defendant’s character witnesses, the case was never tried, again, and was nol prossed by the said District Attorney, James H. Evans, on his motion, that is, on April 28, 1976. (Case No. 9596, this Court, Eugene Sexton, defendant) The same charge against defendant Mack Arthur Petta-way, No. 9594, was altered by the same Judge D. W. Crosland, to read: ‘over 12 and under 16,’ as to the age of the prose-cutrix, Mary Croom, the same prosecutrix in the Petitioner’s case, on April 2, 1974, and said defendant was placed on five (5) years probation, on plea of guilty to the reduced charge. Defendant Fate Thomas, case No. 9602, charged with carnal knowledge of the same Mary Croom, had the charge reduced by the same Judge D. W. Crosland to ‘Child molestation,’ and said defendant was sentenced to two (2) years in the County jail. The case against J. D. Smith, No. 9599, involving the same charge of carnal knowledge of said Mary Croom, was continued until May 21, 1974, when it abated due to the death of the defendant.”

I

Under Johnson v. Williams, 244 Ala. 391, 13 So.2d 683, it is within our province that we consider the petition for writ of habeas corpus which is now before us as a petition for leave to file a petition for writ of error coram nobis in the trial court. After being so considered, we now move to the only insistance of error.

II

The appellant’s petition contends that the State, after his conviction, reduced the charges against two defendants who plead guilty to the reduced charges, and that the third case was nol prossed on motion of the State after reversal by the Alabama Court of Criminal Appeals. The fourth case was abated by the death of the defendant. It is maintained that this action by the State in these cases, coupled with the imposition of a lesser sentence in each case of less than five years, constitutes unlawful discrimination. Counsel argues that the denial of the petition for habeas corpus based on such discrimination was a violation of the Fourteenth Amendment of the Constitution of the United States.

We note that the courts of Alabama recognize a strong public policy against the discriminatory application of the law. We also recognize that a heavy burden rests with the defendant to establish conscious, intentional discrimination. Simonetti v. Birmingham, 55 Ala.App. 163, 314 So.2d 83. From the facts developed in the Simonetti trial, this Court found that the appellant had fully carried that burden. It was shown that the local law enforcement officers were not uniformly enforcing the Sunday closing laws.

The basis for the petitioner’s claim is that of the four other defendants who were similarly charged with carnally knowing the same prosecutrix: one was given two years on a reduced charge of child molestation and confined in the county jail for two years; the second was placed on probation for five years on a plea of guilty to a reduced charge; the third was nol prossed after reversal by the Court of Criminal Appeals; and the fourth was abated by the death of the defendant. Although it may be argued that the appellant has received disparate treatment, it must be noted that the appellant was represented by retained counsel and tried in a court of competent jurisdiction by a jury of his peers. It was that jury that assessed the punishment of twenty years. As a matter of law, we cannot review the propriety of the sentence since the sentence was within the statutory limits. Philpot v. State, 43 Ala.App. 326, 190 So.2d 293; Nesbitt v. State, Ala.Cr.App., 343 So.2d 1240 (1977).

The circumstances surrounding the cases on which the petitioner’s equal protection claim is based were not shown to be the same as the circumstances involved in the petitioner’s case. Specifically, the petitioner failed to show that no justification for nol prossing the case against one defendant existed. No showing was made that the prosecutrix was not older than twelve years of age at the time of the offense charged against the other two defendants. The trial court made the following finding of fact:

“1. That Petitioner, Bernard Ino Butler, was charged in case No. 9584 with the offense of carnal knowledge of one Mary Croom, a girl under the age of twelve years.
“2. That on March 21,1974, a jury found the Petitioner, Bernard Ino Butler, guilty in case No. 9584 of the offense of carnal knowledge of one Mary Croom, a girl under the age of twelve years, and fixed his punishment at twenty years confinement in the penitentiary.
“3. That Eugene Sexton was charged in case No. 9596 with the offense of carnal knowledge on one Mary Croom, a girl under the age of twelve years.
“4. That on June 11, 1974, a jury found Eugene Sexton guilty in case No. 9596 of the offense of carnal knowledge of one Mary Croom, a girl under the age of twelve years, and fixed his punishment at ten years confinement in the penitentiary-
“5. That the conviction in case No. 9596 of Eugene Sexton was subsequently reversed by the Court of Criminal Appeals. “6. That case No. 9596 was subsequently nol prossed on motion of the State and that Eugene Sexton subsequently plead guilty in case No. 9597 to the offense of carnal knowledge of Shirley Marie White, a girl over twelve and under the age of sixteen years of age, and was sentenced to five years in the penitentiary.
“7. That the five (5) year sentence in case No. 9597 was suspended on that Eugene Sexton was placed on probation. “8. That Mack Arthur Pettaway was charged in case No. 9594 with the offense of carnal knowledge of one Mary Croom, a girl under the age of twelve years. “9. That Mack Arthur Pettaway plead guilty in case No. 9594 to the offense of carnal knowledge of one Mary Croom, a girl over twelve and under sixteen years of age, and was sentenced to five years in the penitentiary.
“10. That the five year sentence in case No. 9594 was suspended and that Mack Arthur Pettaway was placed on probation.
“11. That Fate Thomas was charged in case No. 9602 with the offense of carnal knowledge of one Mary Croom, a girl under the age of twelve years.
“12. That Fate Thomas plead guilty on case No. 9602 to the offense of molestation of a child, one Mary Croom, a child under sixteen years of age, and was sentenced to two years in the penitentiary. “13. That probation was denied in case No. 9602.
“14. That J. D. Smith was charged in case No. 9599 with carnal knowledge of one Mary Croom, a girl under the age of twelve years.
“15. That case No. 9599 was continued until May 21, 1974, when it abated due to the death of J. D. Smith.
“16. That Mary Croom, the victim on case Nos. 9584, 9596, 9594, 9602, and 9599 is one and the same person.
“The Court does not find any evidence that the offenses of carnal knowledge in case Nos. 9584, 9596, 9594, 9602, and 9599 occurred simultaneously, or that the same evidence could have been used to prove all the cases, or that these were the same offenses.
“The Court does not find any unconstitutional discrimination in the application of Title 14, § 398.”

Appellant insists that the carnal knowledge statute was not fairly applied in the several cases involving the same prosecu-trix, and this was an unconstitutional discrimination.

Selective enforcement per se is not constitutionally impermissible. However, when that selective enforcement is designed to prosecute a person without any intention of general enforcement, then it is a violation. People v. Utica Daw’s Drug Co., 16 A.D.2d 12, 225 N.Y.S.2d 128; Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446.

Discriminatory enforcement viola-tive of the Fourteenth Amendment requires a showing of intentional and purposeful selection based on an unjustifiable standard. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497. The mere showing that the appellant received a heavier sentence than the others charged does not show unconstitutional discrimination viola-tive of the Fourteenth Amendment.

The appellant was convicted of carnally knowing a girl under the age of twelve years by a jury which fixed his punishment at twenty years imprisonment. The fact that the others were convicted on their pleas of guilty for lesser charges does not minimize the appellant’s charge or the damage done to society. The jury who fixed Butler’s punishment obviously shared that view.

In our judgment the evidence was insufficient to justify any relief by way of error coram nobis, and the Circuit Judge’s action in denying the petition is affirmed.

AFFIRMED.

TYSON, P. J., and HARRIS and BOWEN, JJ., concur.

BOOKOUT, J., concurs specially.

BOOKOUT, Judge,

concurring specially:

I concur in the opinion, but do not concur with the statement that this Court held that there was a discriminatory enforcement of the Sunday Closing Law in Birmingham in our opinion in Simonetti, supra. Simonetti was a plurality opinion with Judges Harris and DeCarlo holding to the view that there was unequal enforcement of the law. Judge Tyson concurred in the reversal primarily on the ground that there was insufficient proof as to the number of employees on duty when the arresting officer arrived. Judge Cates and I dissented.

Significant is the fact that the Supreme Court in denying certiorari stated that such denial should not be considered an expression by that Court on the merits of the case. That Court went on to say:

“Although we are not thus bound to express ourselves on the merits of this controversy, we may add that we think the judgment of reversal could be sustained because, from the recital of facts in the opinion, the proof is insufficient to show that Simonetti had ‘more than four employees on duty at any one time on Sunday’ on the instant occasion.
“We neither approve nor disapprove the language used, the statements of law contained, nor the other conclusions reached, in the balance of the opinion.”

The Supreme Court adopted the primary position expressed by Judge Tyson in our decision, but did not adopt the theory of discriminatory law enforcement in that case. Simonetti v. City of Birmingham, 294 Ala. 192, 314 So.2d 99 (1975).


source: Caselaw Access Project

license: Public Domain

text:
    Danny Lee McCORD v. STATE.
    1 Div. 700.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.

      Michael F. Scheuermann, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was convicted of murder in the first degree and sentenced to life imprisonment. He was a minor (20 years old) and an indigent.

We note that he filed a petition to be treated as a Youthful Offender. The petition was denied. He was then tried as an adult.

It appears that the mother of defendant and the homicide victim were living together under guise of common law man and wife. This companionship had been going on for four years.

The mother complained to her son, appellant-defendant, about severe mistreatment on the part of the victim and that he wouldn’t let her in the house. Defendant, with a pistol in his possession, went back to his home from a neighbor’s house, where he had obtained the pistol, and soon thereafter, a pistol was fired, and the victim was the companion of his mother. Defendant contended it was an accident. The evidence was sufficient to present a jury question as to guilt vel non of defendant as charged, namely, murder in the first degree, or of a lesser homicidal charge embraced in the indictment.

I

Appellant contends that the trial court erred in refusing a written charge as follows:

“The court charges the jury that a person charged with a felony should not be convicted, unless the evidence excludes to a moral certainty every reasonable hypothesis but that of his guilt; no matter how strong the circumstances are they do not come up to the full measure of proof which the law requires if they can be reasonably reconciled with the theory that some other person committed the act charged in the indictment.”

This charge is not based on the evidence. Hence, the court cannot be put in error for refusing it. Duchac v. State, 52 Ala.App. 327, 292 So.2d 135(8); Foster v. State, 37 Ala.App. 213, 66 So.2d 204.

II

Appellant also complains that the trial court erroneously permitted the state’s counsel to argue that the accused failed to produce a certain witness who was equally available to the state.

We have carefully read and considered the colloquy where this alleged error was objected to. We conclude that the objection was made by defendant’s counsel to an anticipated argument and not to an existing argument to that effect. The record certainly isn’t clear as to this point. Such objection to improper argument of solicitor must be specific. Jordan v. State, 32 Ala.App. 172, 24 So.2d 138(5). Remarks deemed objectionable should be fully quoted, or substantially so, in an objection to argument. Title 13, Section 262; McClary v. State, 291 Ala. 481, 282 So.2d 384(2).

We find no prejudicial error in the record.

The judgment is affirmed.

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

AFFIRMED.

All Judges concur.


author: L. S. MOORE, Retired Circuit Judge.

text:
    Gloria J. MILLER v. STATE.
    3 Div. 510.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    William J. Baxley, Atty. Gen., and Jackson P. Burwell, Asst. Atty. Gen., for the State.
   L. S. MOORE, Retired Circuit Judge.

The appellant was indicted and tried for the offense of murder in the first degree. She was convicted for the offense of manslaughter in the first degree and the jury fixed her punishment at three years in the penitentiary. Final judgment was entered by the trial court in accordance with the verdict of the jury and appellant brought this appeal.

The evidence presented by the State shows that the appellant and the deceased, Chauncey D. Williams, were living together at 116 Riverside Drive, Montgomery in Montgomery County, Alabama. There was no evidence that they were married. The State’s evidence shows that on the morning of October 24, 1975, the appellant shot and killed Chauncey D. Williams with a pistol. The incident occurred in the home where they were living. The shooting was first investigated by Donald Greathouse, a policeman for the City of Montgomery. When Greathouse arrived at the home he met the appellant coming out of the house and appellant said to him that she had shot Williams and that he was in the bedroom. Greathouse went into the house and found the deceased lying on his back in the béd-room. Appellant told Greathouse: “The gun is in my purse.” He saw the gun in her purse but did not take it into his possession. The officer said that the deceased had a “bullet hole past his neck,” and that a spent round was in the bathroom. The hall from the bedroom door to the bathroom, which was really part of the living room, showed a mark on the wall where a bullet had ricocheted outside the bedroom door. The body of the deceased was identified by the mother of the deceased, a witness for the State.

Richard A. Roper, a State toxicologist, testified as a witness for the State, that he performed a post-mortem examination on the body of Chauncey D. Williams on October' 24, 1975. He found a bullet wound at the top of the breast bone, and one in the left hand, which had entered the back of the hand and exited on the palm side of the hand. Roper removed the .32 caliber bullet from the body that had caused the first wound mentioned. He stated the bullet had penetrated a large artery out of the heart in the chest and was the cause of death.

Arthur Stoudemire, a taxi-cab driver, testified in substance that he went to the home of appellant on October 24, 1975 about 6:40 A.M. “[t]o take her away.” Stoudemire said that he had known appellant for two or three years and that he also knew Chauncey Williams whom he had driven home, but that he did not know who was living with the appellant at the time. He said that about 6:50 that morning she came out of the house and asked him to call an ambulance and said that she had shot “her old man.” Stoudemire testified that he had heard three shots and did not call an ambulance but went to get appellant’s mother who subsequently called the police.

Detective R. E. Fisher of the Montgomery Police Department testified that on October 24, 1975 he investigated the shooting at 116 Riverside Drive. When he arrived he found appellant sitting in the living room, and the deceased in bedroom lying on his back on the floor. Fisher stated he found no weapons on the deceased, but found one bullet hole in the door facing, leading into the bedroom from the hall. He also found a bullet hole in the wall in the bedroom just below the double windows, and a hole in the pillow and the mattress. Fisher said that he placed appellant under arrest and read her constitutional rights to her from a form. He read the form to the jury, and it contained full and complete “Miranda” warnings. Appellant had signed a statement on the form which said:

“. . .1 fully understand the foregoing statement and do willingly agree to answer questions. I understand and know what I am doing. No promise or threats have been made to me by anyone and no pressure of any kind has been made against me by anyone.”

Fisher further testified that he and appellant were the only ones present at the time, and that he applied no pressure against her and offered her no inducement, reward or hope thereof, or any leniency or hope of leniency to get her to make a statement. He further said that she did make a statement. The statement, which was in writing, was identified by the witness and introduced into evidence without objection.

The statement is as follows:

“Friday Oct. 24 1975
“9: a. m.
“I Gloria Miller do hereby make the following statement and answer the following questions to Det. R. E. Fisher of my own free will. My rights have been read to me and I understand what I am doing. “On Thursday Oct. 23, 1975 I came home from work about 6:30 p. m. Chauncey D. Williams who I have lived with for about 2 years came home around 9 p. m. and had been drinking. We argued about his girl friend Ruby Landers and about me not having supper ready when he came in. He beat me with his fist and yelled several times T will kill you Nigger’. He went to the kitchen and got a bar stool and said again that he was going to kill me and I begged him not to. We went to bed about 11 p. m.
“Friday morning Oct. 24, 1975 I got up about 5:50 a. m. and got ready to go to work. We started argueing [sic] again and I told him that I was leaving and I would not be back. He picked up a table that was sitting [sic] by the bed and threw it at me and it hit me in the chest and the stomach. I grabbed a pistol from the closet that he gave me several months ago and started shooting. He ran to the door and closed the door to the bedroom. When I tried to open the door it was hard to open and when I did get it open I saw him laying [sic] on the floor at the foot of the bed. I went outside to my ride (Taxi, Quick Service ¶ 1) and asked him to call a [sic] Ambulance and he said he couldn’t as no one was at the office. I went to May Lee’s house at 44 Gunter St. and she called for me. I went back to the apt. and waited.
“Q. Did you shoot Chauncey D. Williams?
“A. Yes.
“Q. Did you intend to kill him when you shot at him?
“A. No.
“Q. Why did you shoot him?
“A. I thought he was going to beat me again.
“Q. Did the gun that you shot Chauncey Williams with belong to you?
“A. He gave it to me several months ago.
“Q. How many times did you shoot Chauncey Williams?
“A. I just started pulling the trigger but I think it was three times.
“Q. Has Chauncey Williams beat you before Oct. 24, 1975?
“A. Yes, about a month ago he beat me and threw me against the wall and told me to get out.
“I Gloris [sic] Miller have read the above statement and the answer to the questions and I belive [sic] them to be true and correct to the best of my knowledge. I freely sign my name below.
“/s/ Gloria Miller
“GLORIA MILLER B/F
“age 24
“116 Riverside Dr.
“/s/ R. E. Fisher
“DET. R. E. FISHER”

Detective Fisher further testified that when he was at the appellant’s home on October 24,1975, he found a table or nightstand in the bedroom on the right side of the door facing close to the deceased’s body, and a broken leg from the table in the hallway.

The State rested and appellant moved to exclude the evidence as to each degree of unlawful homicide and for a directed verdict. The motion was overruled and denied by the trial court.

The appellant testified in her own behalf generally to the same facts contained in her statement or confession which was admitted as State Exhibit “No. 4.” On cross-examination, she was asked if she had not, during the summer of 1975, shot at the deceased on one occasion and stabbed him on another, and if she had not cut up his clothes on yet another occasion. The appellant’s objections to those questions were overruled and, in substance, she answered each question in the affirmative. There was also testimony by the appellant that the deceased was violent when drinking. She said he was drinking in the early part of the night before the morning of the shooting and that he beat her that night. Appellant stated that the next morning her face was swollen from the beating, and that she talked to Williams the morning of the shooting about her swollen face and the fact that she had to go to work. Miller testified that Williams threw a chair or table at her and struck her with it, and told her he would kill her. She said that she got the pistol out of the closet and shot at him as he was coming toward her, and ran shooting. Appellant was not sure but believed she fired the pistol three times.

A witness for the appellant testified that she saw bruises on appellant’s face and arm just after the shooting.

The appellant did not file a brief in this court.

There was substantial evidence of the existence of every element of the offense of manslaughter in the first degree and that the appellant was guilty of said offense. A jury question was made out by the evidence and the motions of the appellant to exclude the evidence and for a directed verdict were properly overruled and denied. Sullivan v. State, 48 Ala.App. 347, 264 So.2d 576; Massengale v. State, 36 Ala.App. 195, 54 So.2d 85.

In Spain v. State, 37 Ala.App. 311, 68 So.2d 53, there was evidence admitted over objection that the defendant and the deceased had engaged in prior difficulties. On appeal this court stated:

“When evidence of a former difficulty between a defendant and the assaulted party is offered by the State, it is for the purpose of shedding light on the true conduct of the defendant at the time of the subsequent difficulty for which the accused is on trial. Gray v. State, 63 Ala. 66; McAnally v. State, 74 Ala. 9. The general rule is stated to be that the details or merits of the former difficulty cannot be gone into, yet sufficient of the details may be brought out as may illustrate the gravity of the former difficulty. “The demarcation between the fact or, highlights of a former difficulty, and its details, is a vague and tenuous division. A measure of discretion should be allowed the trial judge in determining the extent of detailing necessary to picture the gravity of the former difficulty.
“In reviewing our decisions on this question, Foster, J., in Sanders v. State, 242 Ala. 532, 7 So.2d 483, 484, summarized many of the decisions as follows:
“ ‘The State may introduce evidence of a prior difficulty between defendant and the assaulted party in which defendant was “concerned in an assault on him with a knife, whereby he was severely cut in the neck, a short time before the assault charged in the indictment.” Such not being a statement of “the details or particulars” of that difficulty. Gray v. State, 63 Ala. 66.
“ ‘ “The fact of such difficulty, and its gravity, or the contrary” may be shown. McAnally v. State, 74 Ala. 9, 17. And “the fact that on the day before the killing deceased attacked defendant with scissors, accompanying the attack with a threat * * * was not going into the details or merits of the altercation.” Watts v. State, 177 Ala. 24, 59 So. 270, 272. And “that on that day deceased shot at the defendant (and at another time) drew a ‘gun’ on the defendant (with threats to kill him) were matters the defendant was entitled to have admitted in evidence,” and were not of too much detail. Nelson v. State, 13 Ala.App. 28, 68 So. 573.
“‘And when defendant offered to prove that in a previous difficulty “the deceased was armed with a gun and made a hostile demonstration by pointing the gun at the defendant,” the court was held to have erred in rejecting this evidence after defendant had offered evidence tending to show that decedent was the aggressor. Buffalow v. State, 219 Ala. 407, 122 So. 633, 634. To like effect is Stinson v. Richardson, 239 Ala. 161, 194 So. 508. Compare Harkness v. State, 129 Ala. 71, 30 So. 73.’”

In the case before us the trial judge correctly admitted the evidence of prior difficulties between the appellant and the deceased.

The trial judge, in the ease before us, gave a number of written requested charges and refused several requested written charges, all of which were requested by the appellant. With the exception of the general affirmative charges, the refused charges were either covered by the court’s oral charge, requested charges given, incorrect statements of the law, abstract or argumentative. Said charges were therefore correctly refused. Since there was substantial evidence of appellant’s guilt, a jury question was made out and the general affirmative charges were also correctly refused.

We have searched the record for error which would justify a reversal and have found no such error.

It is therefore ordered and adjudged by this court that the final judgment of the trial court be and is affirmed.

The foregoing opinion was prepared by the Honorable L. S. MOORE, 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.


author: TYSON, Presiding Judge.

text:
    Willie Morris SMITH v. STATE.
    3 Div. 557.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

Appellant was indicted for the unlawful assault with intent to murder Clifford A. St. John, Sr., “by shooting him with a .22 rifle.” Following a jury trial Appellant was found “guilty as charged,” and the trial court entered judgment, setting sentence at twenty years imprisonment in the penitentiary.

Clifford A. St. John, Sr., stated that he was a resident of 110 Broadway Street in Chisholm, Montgomery County, Alabama, on November 21, 1975. Mr. St. John indicated that he was working in his backyard on a pickup truck which was parked near one of the garages in the rear of his home when he heard a report of a rifle which sounded like a .22 rifle. He felt a pain in the breast area, then saw blood running down his clothing and passed out. When he came to he crawled fifty to seventy-five feet to the back door of his home and telephoned his daughter-in-law, who lived next door. She came right over, telephoned her husband, and they together took him to Jackson’s Hospital in Montgomery. Mr. St. John said that he noticed that his wallet containing $41.00 was missing. He stated that later his wallet was returned to him by a Montgomery detective, and that he had not given anyone his permission to remove it from his possession.

Mr. St. John testified that the bullet was a .22 caliber and that it entered under his right shoulder blade and came out his chest. He stated that he did not know Willie Morris Smith and that he had never seen him.

„ Montgomery Detective R. E. Fisher testified he answered the call to come to 110 Broadway Street in Chisholm, on November 21, 1975. He stated that Mr. St. John had been taken to the hospital, and that he talked with his daughter-in-law. He stated that he went to the rear of the residence and noticed some drag marks and his hat and cane lying approximately thirty or thirty-three feet from the back door and that he traced his footsteps back to the truck which was approximately 133 feet from the back door. There he found blood spatters and blood smears on the passenger side of the truck. He stated that Detectives Alford, Williams, Wood, and Coker also assisted in the investigation.

Dorothy A. St. John testified that she was the daughter-in-law of Clifford A. St. John, Sr., and lived next door at 106 Broadway Street on November 21, 1975. In response to a telephone call from her father-in-law, she went next door to his home and found him lying half in and half out of the back door. She stated that she called an ambulance, then called her husband, and they took Mr. St. John to Jackson’s Hospital.

Detective E. B. Alford testified that in response to a call he went to 110 Broadway Street in Chisholm on November 21, 1975. Mr. St. John had already been taken to the hospital, but he searched the premises, looking for Mr. St. John’s wallet. He said that he was also looking for other items of evidence, and that he began walking along the railroad track behind the premises. He testified that he found a spent .22 caliber cartridge by a pecan tree and noticed a place on the tree where the bark had been rubbed off about shoulder high which appeared to be a fresh mark. He stated that he turned the spent hull over to the State Toxicologist.

On cross-examination Detective Alford testified that they found tracks near the spot where the hull was found and that they appeared to be made by a type of tennis shoes with cleat marks, that the imprints were about twenty-four feet from the railroad track. He indicated that the spent cartridge had “Super-X” on it. He stated that the casing was found approximately four feet from the bottom of the pecan tree, that he placed it in an envelope, initialed it, and delivered it to the State Toxicologist.

Clifford A. St. John, Jr., testified that he resided at 106 Broadway Street in Chisholm on November 21, 1975. He stated that in response to a telephone call from his wife he went to his father’s home and assisted the ambulance driver and attendant in putting his father in the ambulance. He stated that his father was then taken to Jackson’s Hospital. On the following morning, November 22, Mr. St. John and his uncle began walking along the railroad track in the rear of his father’s home. Approximately 300 feet from the rear of the residence he noticed a rifle and telephoned the Montgomery police. A short distance beyond he found his father’s wallet and noticed that some papers were scattered along the railroad track. Mr. St. John stated that he took some Montgomery officers to the scene where he saw the papers.

Montgomery Detective Sidney Williams testified that in response to a telephone call from Mr. Clifford St. John, Jr., he went to the rear of the residence at 110 Broadway Street in Chisholm and walked with him along the railroad track where approximately 100 yards from the home he saw a rifle in a ditch in some weeds. He testified that it was a .22 caliber automatic rifle made by Savage Arms, Inc., that he carried this rifle with a stick through the trigger housing, placed it in his car trunk, then carried it in the same manner to the State Toxicologist.

Detective Williams also testified that he found a brown billfold containing some papers, a driver’s license and some credit cards, and that he found other papers, such as identification cards, along the railroad track near the spot where the rifle was found. He testified that the wallet and cards were also delivered to State Toxicologist Charles Smith.

Charles W. Smith testified that on November 21, 1975, he was employed by the Alabama Department of Toxicology and Criminal Investigation in Montgomery. He stated that he knew both Montgomery Officers Don Terry and Sidney Williams and that he received certain items of evidence from them on November 22,1975. He stated that Exhibit 1 was a .22 caliber rifle; Exhibit 2 was a billfold and some papers, including an I.D. card; and Exhibit 3 was a spent .22 cartridge case. He stated that he test fired the rifle and examined the hull to attempt to determine similarities or dissimilarities with the spent hull. He testified that he could not be positive that the shell casing was the one which had been fired from the rifle in question.

On cross-examination Mr. Smith indicated that he had considerable experience in examining .22 caliber rifles, and the rifle in question was a rim fire weapon. This meant that the firing pin struck the rim of the cartridge as opposed to striking a primer cap. He stated that he endeavored to take fingerprints from the rifle, but that they were of poor quality. He indicated that it was very likely that the cartridge in question had been fired from the rifle as it “was fired from a similar type weapon.”

John Preston Goldman, Sr., testified he lived at 458 Shannon Hill in East Montgomery on November 18, 1975. He testified that he kept a .22 caliber weapon at his home. He testified that this rifle had been loaned to him by his father-in-law as protection for his family. He examined State’s Exhibit 1 and testified that this was the same rifle, that he had" not given anyone permission to take this rifle from his home, and that it had been missing since November 18, and he had notified the Montgomery Police Department, that he next saw the rifle at Police Headquarters.

Harvey Baniels testified that he was an A.B.C. Board Warehouse employee. He testified that shortly before Christmas, 1975, he went to the home of the appellant, Willie Morris Smith, and purchased a .22 pump rifle and a stereo set. He also testified that he was interested in purchasing another rifle and examined another .22, and in his opinion, State’s Exhibit 1 was the same weapon that he had seen at the appel-' lant’s home.

Charles Cotton testified he lived on Hol-combe Street in Montgomery. He testified that he was present at the home of Willie Morris Smith when Harvey Baniels purchased a .22 pump rifle and stereo set from the appellant. He said that the appellant had another .22 rifle at his home on this occasion, but he could not identify the weapon.

Stella Mae Ford testified that she lived at 455 Holcombe Street with Charles Cotton in November, 1975. She testified that she was at home when Harvey Baniels came over to talk with Willie Morris Smith, the appellant, about purchasing a rifle. She stated that this was on November 19, 1975. She testified that Charles Cotton was also there, and that the appellant told her that he was going out the next morning and “shoot a White Mother Fucker.” She stated that the appellant returned later that morning and told her that he had “shot a white mother fucker near the bridge” that day.

Montgomery Police Detective George W. Leak testified that he took a statement from the appellant, Willie Morris Smith, after first advising him of his Miranda rights and without any threats, intimidation, coercion, or inducement of any kind, and after talking with him only briefly at Police Headquarters, the appellant signed a statement about 8:00 on the evening of December 8, 1975, that he and Charles Cotton had taken a .22 caliber rifle from a residence at 456 Shannon Hill in East Montgomery in November, 1975. Smith stated that he got into an automobile and drove with the officer to this address. Smith looked at the photograph of the residence and said, “Yes,” that was the place where he and Charles Cotton obtained the rifle.

The appellant made a motion to exclude the State’s evidence, which was overruled. The appellant presented no evidence at trial.

I

The appellant offered no testimony to dispute the fact that he shot Mr. St. John, Sr., but contends that his motion to exclude should have been granted as the State did not present a prima facie case.

Intent to take life may be shown by inference, via the character of the assault, the use of a deadly weapon, and other attendant circumstances. Tolliver v. State, 50 Ala.App. 654, 282 So.2d 92; Roberts v. State, 49 Ala.App. 729, 275 So.2d 709.

The jury may give to this evidence, as with all evidence, such emphasis and weight as they alone think proper in arriving at their verdict. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Braswell v. State, 51 Ala.App. 179, 283 So.2d 630.

After considering all of the factors herein set forth, we conclude that the verdict of the jury was not patently against the weight of the evidence, thus, there was no error in denying appellant’s motion to exclude, or his request for the affirmative charge. Johnson v. State, 51 Ala.App. 172, 283 So.2d 624; Gilmore v. State, Ala.Cr.App., 339 So.2d 116, cert. denied Ala., 339 So.2d 121; Baldwin v. State, Ala.Cr.App., 1977, 342 So.2d 940.

II

The appellant contends that the trial court erred in the admission of the testimony relating to the burglary of the home at 458 Shannon Hill. This was admitted over objection, motion and exception of the appellant by the trial court to prove the identity of the “gun in question.”

The exceptions relating to the admission of the evidence at one trial of other distinct criminal acts is admissible to establish intent or bearing upon the identity of the accused and the weapon used. These exceptions are discussed in unanimous opinions written for this Court by Judge Harris in Lambert v. State, 48 Ala.App. 600, 266 So.2d 812; Murphy v. State, 52 Ala.App. 490, 294 So.2d 457, cert. denied 292 Ala. 743, 294 So.2d 462; and followed in Bobo v. State, 56 Ala.App. 622, 324 So.2d 336; and Smith v. State, Ala.Cr.App., 1977, 342 So.2d 422.

Under these cases, the evidence pertaining to the identity of the rifle in question was properly admitted.

We have carefully examined this record and find same to be free from error. This case is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


text:
    Solomon FULLER v. STATE.
    3 Div. 676.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.

      Donald R. Harrison, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jackson P. Burwell, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

This is an appeal from an order of the Circuit Court denying appellant’s petition for a writ of error coram nobis.

It appears that appellant was indicted and judgments entered (1) for forgery and (2) leaving a motel without paying his bill. The separate judgments were entered on separate pleas of guilty. Appeals were taken to this court and both judgments were affirmed without opinions.

Appellant now complains in his pro se petition, that “(he) was advised by his defense attorney to plead guilty, due to witnesses for the defense being out of state, and could not be subpoenaed, and without those witnesses present there was almost no chance for an acquittal, and would receive the maximum if the plea bargain offer was refused”.

It is true defendant was entitled to reasonable opportunity to obtain process for the attendance of his witnesses residing within the jurisdiction of the court. But here it appears that the witnesses were not within the jurisdiction of the court and its attendance process.

Nowhere does it appear in the petition here under consideration that the aid of the court was invoked by appellant to procure process for witnesses within the court’s jurisdiction, nor for a continuance of the cases.

The petition is faulty in failing to assert, and so far as the record reveals appellant did not have any grounds for a writ of error coram nobis.

It is said in Butler v. State, 279 Ala. 311, 184 So.2d 823, that a writ of error coram nobis is not intended to relieve party of his own negligence.

We also observed in Creel v. State, 53 Ala.App. 226, 298 So.2d 647, that it is not the office of a writ of error coram nobis to retry indictments and its mission is to root out egregious fraud or collusion leading to judgment.

Coram nobis relates to matters of fact which had they been pursued in the original trial would have prevented judgment and conviction. Ex Parte Hoback, 44 Ala.App. 613, 217 So.2d 826.

We have said that the function of writ of error coram nobis is not to relieve party of his own negligence in not raising issue at the time of trial where he had full knowledge of facts. State v. Willis, 42 Ala.App. 414, 166 So.2d 917.

We see nothing in the petition that entitled appellant to relief in writ of error coram nobis.

The trial court was justified in denying relief and dismissing petition.

The action of this trial court is due to be affirmed and it is so ordered.

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

AFFIRMED.

All Judges concur.


author: BOWEN, Judge.

text:
    Frances Louise BASCOM v. STATE.
    3 Div. 700.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.

      Donald V. Watkins of Gray, Seay & Langford, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted by a grand jury of Montgomery County for the offense of the robbery of a 1972 Ford Pinto automobile, the property of Marcie Burkey. A jury found the appellant guilty and fixed her punishment at ten years in the penitentiary. Judgment and sentence by the trial court were entered accordingly. Appellant’s retained trial counsel has been appointed to represent her on this appeal.

The victim in this case was Mrs. Marcie Burkey. She had been having mechanical difficulties with her automobile and on the afternoon of March 6, 1976, she was headed to a service station on the Eastern Boulevard in Montgomery, Alabama, where the car had previously been repaired and serviced. Taking the 1-85 route to the Eastern Boulevard, Mrs. Burkey was on the downtown entrance to 1-85 when she was stopped by a red light near Arba and Decatur Streets.

While stopped at the light she heard someone shout at her. She looked and saw the appellant, a large black woman, and a small black male, later identified as Potee Frazier. Frazier said, “Hey baby, could you give me and my mama a ride?” Mrs. Bur-key responded, “No, my car’s breaking down”, and stated that she was trying to get to a service station.

The appellant then came around to the front of the car talking to Mrs. Burkey while Frazier came around the rear of the car, opened the door and slipped in the back seat. As Frazier did this, the appellant got into the front passenger seat and closed the door. Mrs. Burkey insisted that she could not give them a ride but the light changed and caught in the flow of five o’clock traffic, Mrs. Burkey entered 1-85 on the entrance ramp toward the Eastern Boulevard and Atlanta, Georgia.

As the car pulled on the interstate, one of her uninvited passengers asked her if she ever picked up hitchhikers. Mrs. Burkey replied that she never had done it before and did not want to do it this time. Frazier told her that it was a mistake and that this would be the last time she ever did so.

Mrs. Burkey heard Frazier going through her purse and became afraid because she knew she was being robbed. While this was going on, the appellant continued to stare at Mrs. Burkey in a “cold and heartless manner”.

Mrs. Burkey pulled off 1-85 just past the Perry Hill Road exit ramp, Frazier having indicated to her that they would get out there. When she stopped, Frazier placed a four barrel derringer against her side and told Mrs. Burkey to do exactly as she was told and that it a matter of life or death to go along with them. Frazier showed her that his pistol was loaded.

Frazier then got out of the car, signaled and two black men approached. Mrs. Bur-key was made to get in middle of the back seat and Frazier asked the appellant to drive.

As the appellant began driving, Mrs. Bur-key became hysterical and pleaded with her captors to be released. She told them that they could have the car if they would just let her go. They responded that she must think them fools to think that they would let her go because they knew she would report them. Frazier finally told Mrs. Bur-key that they would release her when they arrived in Atlanta.

As the group continued on toward Atlanta, it became apparent that Frazier was the leader of the group. Frazier told Burkey that they were members of a civil rights group and that “they really believed in following Martin Luther King but that sometimes that you have to use terrorism sometimes to get the effect you wanted. . They spoke about the KKK and that they had to get back at the white people who had prosecuted the coloreds”. They also discussed Patty Hearst and terroristic tactics. While Frazier did most of the talking, the other members of the group, including the appellant nodded in agreement with him.

At the Wire Road exit on 1-85 the appellant stopped the car under an overpass. Frazier and the appellant relieved themselves. When the appellant attempted to start the car, it would not start. Frazier and another man went to find a service station for assistance and returned but were unsuccessful in getting the car started.

Frazier left again to find another service station. Mrs. Burkey was then left alone with the appellant and another black male who, as Frazier had instructed, walked down the road to try to stop a bigger car.

Mrs. Burkey, alone with the appellant, pleaded with her and tried to play upon her sympathy. She asked the appellant if what Frazier had said about letting her go in Atlanta were true. After a pause, the appellant told Mrs. Burkey that it was not true, “but what would happen to me in Atlanta would be good for me”. Then as Mrs. Burkey, still in the back seat of her car, looked out the window, the appellant, who was sitting in the front seat told her that “if I had any idea of escaping I might as well forget it because they all had guns and that she wouldn’t think twice about killing me if she had to”.

Frazier and the man that went with him returned with Patrick Parsons who worked at the Torch 85 Truckstop on 1-85 near Auburn. Parsons tried to fix the car but couldn’t. He suggested that they call a tow truck but found that nobody in the group wanted him to move the car. Although he tried to talk to Mrs. Burkey, the members of the group just sort of wedged in and would not let him talk to her or call a tow truck. The group discussed the possibility of him taking them to Atlanta. After this was discussed a fireman from Auburn, James Collier, stopped to see if he could help.

Frazier asked Collier if he would take them someplace where they could buy some beer. Collier agreed, took Frazier and the appellant to get some beer, gave them a dollar to buy a six-pack with, and returned to the stalled automobile.

Mrs. Burkey testified that when Collier arrived the group greeted him on what appeared to be a friendly basis and engaged in friendly conversation. Frazier told her that they were going to split up and that some of them were going to Atlanta with Collier and some with Parsons, and that she was to follow instructions or be killed.

When the appellant returned from getting the beer Mrs. Burkey asked her if it was true about Parsons and Collier being part of the group. The appellant told her that they were all friends. Frazier then told her that they were going to leave her with Collier. He again reminded her» that Collier was a member of the group and that he was going to stay and make sure that she did not go to the authorities. Frazier also told her that if she did go to the authorities, they had friends who would take care of her.

Frazier, the appellant and their two companions left with Parsons. After they had gone, Mrs. Burkey asked Collier who he was. When he told her she became hysterical. Collier then took her to the police department and Mrs. Burkey reported what had happened.

In the meantime, Parsons took the appellant and her three cohorts to his home and fed them dinner. After leaving his home, headed for Atlanta, Parsons was stopped by a police roadblock. Although Frazier told him to go around it, Parsons stopped instead. The police then arrested the entire group including Parsons.

Mrs. Burkey testified that she never tried to escape because there was someone with her at all times and she never got a chance. Although Mrs. Burkey did not remember what the group said about keeping the car, she testified that none of them indicated to her that they had no intentions of keeping the car.

I

The appellant’s first assignment of error is that the trial court erred in denying her motion for a mistrial. This motion was based on the fact that during the lunch recess, one of the petit jurors asked one of the prosecuting attorneys if he could inspect the pistol allegedly used in the commission of the crime. Although the pistol had not been formally admitted into evidence, it had been identified by the victim when this incident occurred. This conversation or request was not made in the presence of the trial judge and defense counsel stated that he only overheard a part of it.

Counsel for the state is not accused of any wrong doing. However the appellant contends that the mere failure of the trial juror to adhere to the court’s strict rules prohibiting discussion of the case with other parties constitutes ground for granting a mistrial.

The test of vitiating influence in such cases as this is set forth in Roan v. State, 225 Ala. 428, 143 So. 454 (1932). This test is not that it actually did influence a member of the jury to act without the evidence, but that the unauthorized communication might have unlawfully influenced the juror and others with whom he deliberated, and might have unlawfully influenced its verdict rendered. Roan, 225 Ala. 435, 143 So. 454; Oliver v. State, 232 Ala. 5, 166 So. 615 (1936); Lawley v. State, 264 Ala. 283, 87 So.2d 433 (1956).

While counsel for either side should refrain from conversation of any sort with jurors during the trial of a cause, the mere fact that some conversation is had, without more, does not constitute ground for mistrial. The facts and circumstances in each case will have to be considered individually and much will remain in the discretion of the trial judge. Thus, where the trial court investigates the circumstances under which the remark was made, its substance, and determines that the rights of the appellant were not prejudiced by the remark, reversible error will not be found absent a clear showing of an abuse of that discretion. Waldorf v. State, 24 Ala.App. 152, 132 So. 63 (1931); Hawkins v. State, 267 Ala. 518, 103 So.2d 158 (1958); Hutchens v. State, 45 Ala.App. 507, 232 So.2d 687, cert. denied, 285 Ala. 755, 232 So.2d 700 (1970); Simpson v. State, 38 Ala.App. 219, 81 So.2d 893 (1955).

This court can neither envision nor imagine any prejudice which could possibly have resulted from the request of a juror who was an admitted gun enthusiast, to inspect the four barrel derringer connected with the charged crime. The fact that this pistol was subsequently admitted into evidence removes this issue from question. Alabama Rules of Appellate Procedure, Rule 45.

II

The appellant urges that the trial court committed reversible error in failing to give the following requested charge:

“The Court charges the jury that to constitute the intent required for the offense of robbery the State of Alabama must show that the defendant took the property of the alleged victim and carried it away with the intent of steal (sic) said property.”

This charge was properly refused for a number of reasons, the most obvious one being that the charge contains a word, “steal”, that is either misspelled or has not been placed in the proper grammatical tense.

Written instructions must be given and refused in the terms in which they are tendered. Title 7, § 273, Code of Alabama 1940. For this reason, where the requested charge contains a misspelled word the charge is properly refused, Darby v. State, 48 Ala.App. 421, 265 So.2d 449 (1972) (“proff” for “proof”); or a verbal inaccuracy, Reeder v. State, 210 Ala. 114, 97 So. 73 (1923) (“convincing” for “conviction”). See also Harwell v. State, 12 Ala.App. 265, 68 So. 500, cert. denied, State v. Harwell, 192 Ala. 689, 68 So. 1019 (1915) (“never” for “ever”); Herring v. State, 14 Ala.App. 93, 71 So. 974 (1916) (“segrega-tery” for “segregately”). Where misused words appear in the requested instructions, even though due to the fault of a typist, this court is not authorized to base error on their refusal. Carroll v. State, 36 Ala.App. 59, 52 So.2d 171 (1951).

Additionally, this requested charge was covered in the oral and given requested charges of the trial court and for that reason its refusal does not constitute error. 6A Alabama Digest, Criminal Law, &wkey;829.

And finally, the requested charge, in the facts of this case, is incomplete and misleading as it does not include the “taking of control” of the automobile as synonymous with the taking and carrying away of the property as one of the elements of robbery. Root v. State, 32 Ala.App. 253, 25 So.2d 180, cert. denied, 247 Ala. 514, 25 So.2d 182 (1946). For the reason that it was misleading, the requested charge was properly refused. 6A Alabama Digest, Criminal Law, ®=>830.

III

The appellant contends that the trial court’s denial of her motion to exclude the state’s evidence was reversible error. It is asserted that the evidence showed that the appellant and the other riders had taken the victim’s automobile merely for use in making a trip to Atlanta and that therefore no conviction for robbery is legally proper because there was no felonious intent to deprive the owner of her automobile.

From the moment the appellant and her accomplice climbed in the victim’s car over protest and subsequently placed the gun against her ribs and forced her to do what she was told under threat of death, the question of intent to rob became a submissible issue for determination by the jury. Martin v. State, 51 Ala.App. 405, 286 So.2d 80 (1973); Lambert v. State, 48 Ala.App. 600, 266 So.2d 812 (1972).

No case has more clearly spoken to this issue than the case of Root v. State, 32 Ala.App. 253, 25 So.2d 180, cert. denied, 247 Ala. 514, 25 So.2d 182 (1946).

“It is our opinion that the possessive or manucaptive element essential in robbery was present in this case. From the moment that these defendants and Lewis entered his automobile these appellants only were in full control and possession thereof. True, Lewis was present at all times. However, his status was that of a robot. His dominion over the automobile was completely negatived by the will and pistols of the appellants. It is our opinion that the facts of this case spell out what on the part of the appellants there was a felonious taking of property from the person of another, or in his presence, against his will, by violence or putting in fear. The fact that the owner was carried along against his will when the property was taken is incidental and should not affect the decision.”

Root, 32 Ala.App. 255, 25 So.2d 182.

See also Gibson v. State, 49 Ala.App. 18, 268 So.2d 49 (1972) and cases cited therein at 49 Ala.App. 20, 268 So.2d 49.

From the evidence presented by the state, the jury could infer that the appellant was a willing and active participant in the crime. It is immaterial that she was not the “leader” of the group. Gibson, supra; Parsons v. State, 33 Ala.App. 309, 33 So.2d 164 (1948); Title 14, § 14, Code of Alabama 1940. For this reason the trial court properly refused the affirmative charge requested by the appellant.

IV

Lastly, the appellant argues that the action of the state in striking all the blacks (four) off the jury violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. The appellant recognizes the principle that a black defendant is not entitled to a jury containing members of his race.

The issue raised by the appellant has been answered by the United States Supreme Court iii the case of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In the quest for an impartial and qualified jury, black and white alike are subject to being challenged without cause and the striking of blacks in a particular case does not constitute a denial of equal protection of the law. The preemptory striking of the names of the blacks on the petit jury venire by the district attorney is not error. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666 (1972); Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968).

Having reviewed the entire record as required by law and finding no error prejudicial to the substantial rights of the appellant, we are of the opinion that this case is due to be and is hereby

AFFIRMED.

All Judges concur.


author: BOOKOUT, Judge.

text:
    Dalton Ray GOOLSBY v. STATE.
    3 Div. 703.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Appellant was found guilty in the Municipal Court of Montgomery, Alabama, on a charge of keeping false books or accounts. He appealed to the circuit court and after a trial de novo, was found guilty by a jury and fined $1,000.00. He filed notice of appeal on that same date, June 18, 1975. The record on appeal shows that on July 9, 1975, a motion for a new trial was filed and hearing thereon was set for July 21, 1975. The record shows no further action on behalf of the appellant to perfect an appeal until April 2, 1976, when his current attorney filed a motion to extend the time for filing the court reporter’s transcript. An extension was granted until June 1, 1976. Other motions to extend the time for filing the transcript were apparently executed at various times after April 2, but were filed October 1, 1976, with the circuit clerk.

On April 23, 1976, appellant’s attorneys filed a “PETITION FOR AN INDIGENT TRANSCRIPT,” which was granted by the trial judge on that date.

On November 9, 1976, counsel for appellant filed a motion to order the circuit clerk to file the record proper with this Court for our determination if the case should be remanded for completion of the record or a new trial. That motion further states that the court reporter has removed himself permanently from the state of Alabama and has failed or refused to supply a transcript, as of that date. The trial judge granted that motion on November 9, 1976.

On December 6, 1976, appellant filed a motion to correct the record to show that the trial judge had ruled on the motion for a new trial and had appointed an attorney for the appellant. The trial judge issued an order to correct the record, and a supplemental record was filed in this Court on December 13,1976, showing that the motion for a new trial was overruled and an attorney was appointed for the appellant, but the trial court had no recollection, and the court records did not reflect the dates of such orders.

Since the appeal was taken in the instant ease prior to December 1, 1975, the new Rules of Appellate Procedure do not apply.

Title 15, § 380(16), (Act No. 525, Acts of Alabama 1963), provides for free transcripts for indigent defendants. It reads in pertinent part as follows:

“In such criminal cases where the defendant has been adjudicated guilty by the trial court he may, if no motion for a new trial is filed, within ten days after the last day on which a motion for a new trial could have been filed, or within ten days after the ruling of the trial court upon a motion for a new trial, duly filed and ruled on adversely to defendant, file with the clerk or the trial judge of the court wherein such defendant was adjudicated guilty and sentenced, a petition in writing, sworn to and subscribed by said defendant, stating that defendant desires to take an appeal under the provisions of sections 380(14)-380(25) of this title. . . .”

The record in the case shows no action whatsoever between July 9, 1975, when the motion for a new trial was filed, and April 2, 1976, when an extension for filing the court reporter’s transcript was requested by appellant’s current attorneys. The record proper does not show that the motion for a new trial was kept alive by timely continuances as required by law (Title 13, § 119), neither does the supplemental record show when the motion for a new trial was overruled, or when an attorney was appointed for appellant. The record shows no compliance with Title 15, § 380(14)-(25), supra, to appeal as an indigent.

Likewise, there was no determination by the trial court of indigency for the purposes of appeal or for the purposes of obtaining a court reporter’s transcript until April 23, 1976. Such motion and ruling thereon obviously came much too late. The court reporter’s transcript must have been filed with the clerk of the circuit court within sixty days from the date on which the appeal was taken or sixty days from a ruling on a motion for a new trial. Title 7, § 827(1), Code of Alabama, Recompiled 1958 (Act No. 97, Acts of Alabama 1956, approved February 9,1956). No timely extension appears in the record. The complete transcript was due to be filed with this Court either, within sixty days of receipt of a transcript of the evidence by the circuit clerk, or where no attempt was made to secure a transcript of the evidence, then within sixty days after taking the appeal. See former Supreme Court Rule 37.

A ruling on the motion for a new trial or continuance thereof must show on the face of the record. In Moving Picture Machine Op. Local No. 236 v. Cayson, 281 Ala. 468, 205 So.2d 222 (1967), the Supreme Court stated:

“§ 119, Title 13, Code 1940, provides that after the lapse of thirty days from the date on which a judgment or decree was rendered, the court shall lose all power over it, as completely as if the end of the term had been on that day, unless a motion to set aside the judgment or decree, or grant a new trial, has been filed and called to the attention of the court and an order entered continuing the motion for hearing to a future day. . . .”

From the record it is obvious that the trial court had lost all jurisdiction over the case when appellant filed his first request to extend the time for filing the transcript of the evidence. Denson v. State, 43 Ala.App. 243, 187 So.2d 574 (1966). The record on appeal was, therefore, not timely filed. Relf v. State, 267 Ala. 3, 99 So.2d 216 (1957).

APPEAL DISMISSED.

All the Judges concur.


author: PER CURIAM.

text:
    Eddie Wayne DRIGGERS v. STATE.
    4 Div. 485.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Larry W. Roney, Phenix City, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   PER CURIAM.

May 4, 1976, appellant appeared before the Circuit Court of Russell County, Alabama, with court appointed counsel and withdrew his former pleas of not guilty and pled guilty to two indictments charging burglary, second degree. The appellant had been indicted on three charges of burglary, second degree. These cases were numbered 6515, 6519 and 6526 on the trial docket. By agreement between appellant, his counsel, and the District Attorney, the Court dismissed case number 6515 and accepted pleas of guilty in cases numbered 6519 and 6526. The Court then found the appellant guilty as charged and set May 28,1976, as the date for sentencing. On May 28,1976, the Court sentenced appellant to six years in the penitentiary in each case, the sentences to run concurrently. Application for probation was denied.

June 22, 1976, court appointed counsel, who represented appellant in all prior court proceedings, made known to the Trial Court by letter that appellant wished to appeal the convictions. Counsel was permitted to withdraw and the Court then appointed other counsel for the appeal.

June 25, 1976, appellant filed a motion to set aside and withdraw the plea of guilty and re-enter pleas of not guilty. No ruling on this motion appears in the record.

June 28, 1976, appellant filed a motion for re-hearing on application for probation which was overruled July 8, 1976.

July 26, 1976, appellant gave notice of appeal to this Court in cases numbered 6519 and 6526.

Appellant raises two questions as follows:

I “Was there an abuse of discretion when the Trial Court refused to allow Driggers, who is of the tender age of 16 years, to withdraw his plea of guilty, which was given freely and voluntarily with the assistance of competent counsel?”
II “Was there an abuse of discretion by the Trial Court in refusing to grant Drigger’s motion for re-hearing on application for probation?”

No contention is made by appellant that his pleas of guilty were not voluntary and made with full knowledge and understanding of his Constitutional rights. Indeed, the record shows a full and thorough in-court colloquy between the Court, appellant, and his counsel about the charges, punishment and voluntariness of appellant’s pleas of guilty. Appellant was questioned by the Court in detail to determine whether the “Ireland” form, signed by appellant and his counsel and filed in the Circuit Court, was explained to him and if he understood it. Appellant said that it had and he understood it.

It is within the sound discretion of the Trial Court to refuse the withdrawal of a plea of guilty. To establish that such refusal is reversible error, it must be shown that the Trial Court abused its discretion. Ex parte Sykes, 44 Ala.App. 473, 213 So.2nd 413. There is nothing in this record to indicate the Trial Court abused its discretion in refusing the withdrawal of the guilty pleas. The question of the “tender age” of appellant is a matter to be considered by the Trial Court. The Trial Court had the opportunity to see, talk with and judge his maturity first hand. Appellant made application for trial as a Youthful Offender which the Trial Court considered and denied. This gave the Trial Court an opportunity to consider the appellant’s age, mental condition, mental attitude and the nature of the charges. Age of appellant was a fact before the Trial Judge. We hold that the Trial Court did not abuse its discretion in disallowing appellant’s motion to withdraw his pleas of guilty. We further hold that the pleas of guilty by appellant were voluntary and understanding^ made in open court.

The matter of probation is discretionary with the Trial Court. Probation is governed by Section 19, Title 42, of the Code of Alabama 1940. We have held that the grant of probation is a matter of grace entirely within the discretion of the Trial Court. Sparks v. State, 40 Ala.App. 551, 119 So.2nd 596. Therefore, we hold the Trial Court could in its discretion deny appellant probation.

The judgment below is hereby

AFFIRMED.

All Judges concur.


text:
    Wade Kelly McCALPIN v. STATE.
    8 Div. 901.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged Wade Kelly McCalpin with the robbery of $186.00, “the property of Shop-Rite Grocery, from the person of Pat Moore or in her presence, and against her will, by violence to her person, or by putting her in such fear as unwillingly to part with the same.” The jury found the appellant guilty of robbery and fixed punishment at ten years imprisonment. The trial court entered judgment in accordance with this verdict and subsequently overruled the appellant’s motion for new trial which challenged the weight and sufficiency of the evidence following a hearing.

On Sunday, May 9, 1976, Patricia Moore was the manager and cashier of the Shop-Rite Grocery located on Highway 43 in Franklin County, Alabama. Mrs. Moore testified that she came to work about 7:00 that morning, and between 10:00 and 11:00 o’clock the appellant entered the store and pointed a pistol at her from about two feet away. He demanded the proceeds from the cash register. She stated that shortly before the appellant walked in, a customer, Miss Beverly Harmon, had entered the store and asked to use the telephone. She was dialing the number as the appellant approached the counter where she was standing. She stated that McCalpin ordered Beverly Harmon to hang up the telephone, pointed the gun at her head, took the cash bills from the cash register, and left the store. She stated that as the appellant was leaving, she pushed a holdup button which set off an alarm at police headquarters. She said that she and Miss Harmon walked to the windows of the store and looked out. She stated that they saw the appellant drive off in a “light green car with a dark green top, that it had a Colbert County tag, No. 20-22973.” She stated that her call was answered by Russellville police officers, Mike Gaba and Aubrey Teas, who arrived between five and ten minutes after the alarm was sent in. She testified that they told the officers that the appellant was dressed in a dark blue shirt with blue jeans and was wearing a leather string type necklace, which had an object like a butterfly hanging from it that was silver in color. She stated that she told them the appellant had left driving south on Highway 43. She stated that she examined the cash register and determined that the appellant had taken $186.00 in fives, tens, and ones, which were the property of Shop-Rite Grocery.

Mrs. Moore indicated that later that day, between one and a half and two hours, she was called to the Franklin County Jail and there viewed a lineup. She stated that without anyone making any comment to her she immediately pointed out the appellant from the three persons standing in the lineup. Mrs. Moore made a positive incourt identification of the appellant.

On cross-examination Mrs. Moore testified that one Hubert Nesbitt was the owner of the Shop-Rite Grocery. She also testified that the appellant had been coming in the store almost daily over a two-week period just prior to May 9, 1976. Mrs. Moore also stated that the holdup took place “just prior to church time,” and that the boy, Chris, who was handling the gasoline pumps came inside after he saw a car driving off hurriedly.

Miss Beverly Harmon testified that between 10:00 and 10:30 on the morning of May 9, 1976, she pulled in front of the Shop-Rite Grocery store on Highway 43 near Russellville. She stated that the appellant, whom she positively identified in court, was inside the store. She stated that she asked to use the telephone which was near the cash register. From the record (R. pp. 93-94):

“Q. What did you do, if anything, when you got to the phone Miss Harmon?
“A. I started dialing the phone.
“Q. What happened then?
“A. Pat was standing there and he was over here and I hadn’t noticed him. I was here, I was paying attention to the phone and in a few minutes, I was dialing the phone and he pointed the gun at me and he told me to hang the phone up, so I hung the phone up. I don’t know if he thought I was calling the police or what. I didn’t know he was over there doing that, but when I looked up, he had pointed the gun at me and told me to hang the phone up.
“Q. Were you facing the defendant, when he told you to hang the phone up?
“A. Yes sir, I looked at him and the gun was pointing at me.
“Q. Where was Pat, at that time, in relation to where you were?
“A. She was right here at the cash register.
“Q. Did you hang the phone up?
“A. Yes, sir.
“Q. What happened then, after you hung the phone up?
“A. She gave him the money and he left.
“Q. Did you hear the defendant say anything about the money?
“A. No, he was talking to her and I was over here dialing the phone and he told me to hang the phone up. I don’t remember him saying anything to her.
“Q. Did you see Pat get the money out of the cash register?
“A. Yes, sir.
“Q. What did you see her do with the money?
“A. Give it to him.
“Q. And did you actually see the defendant take the money?
“A. Yes, he got the money.”

Miss Harmon testified that it was a big black gun which the appellant held and pointed at her. She stated that after the appellant ran out of the store, she and Mrs. Moore ran to the windows and saw the appellant get in a green automobile with a Colbert County tag. She stated that she wrote the tag number down on paper, and that she got a good look at the car. She stated that within ten or fifteen minutes, two Russellville police officers came, that she gave them the tag number and description of the car, and also described the appellant, that she remembered the unusual necklace he was wearing around his neck over a dark shirt.

Miss Harmon testified that about an hour later she went to the Russellville Jail and there, without anyone saying anything, immediately picked out the appellant from a lineup of three men, and that he was wearing a dark shirt and blue jeans and had on a necklace. Miss Harmon made a positive incourt identification of the appellant.

On cross-examination Miss Harmon was asked if she knew that the gun was a toy pistol, and she stated, “No, I thought it was a real gun.”

Russellville Police Officer Mike Gaba testified that on May 9, 1976, he and Sergeant Aubrey Teas answered a radio dispatch to go to the Shop-Rite Grocery on Highway 43 north. He stated that within less than five minutes of receiving the dispatch they drove up and went in the store, that they were given a description of the man who came in and pointed a pistol at the two women and took the proceeds from the cash register. He said that each of the women gave him the tag number of the car, a description of it, and a description of the man who robbed the store. Officer Gaba stated that he immediately put this information on the police radio and asked them to put out an all-points bulletin. He said that within less than thirty minutes, as he was driving toward the intersection of Highways 24 and 43, he saw a green automobile pulled over with Russellville Police Captain Wood talking with a subject. He stated that he and Sergeant Teas stopped and got out of the car as they noticed that the vehicle was a “dark green over light green Buick” and had a Colbert County tag number which matched the number given by Mrs. Moore and Miss Harmon. He stated that the description of the appellant matched that given by the two women, and that he then opened the glove compartment of the appellant’s car and found $186.00. He said that Sergeant Teas took the appellant’s car keys and opened the trunk, that they found a large toy pistol in the trunk. He stated that the appellant was wearing two necklaces, one being a leather, and the other with a large silver like butterfly hanging on it, that appellant was dressed in a dark shirt with blue jeans. He stated that the tag was a Colbert County tag, No. 20-22973, the same as given him at the grocery store by Mrs. Moore. Officer Gaba testified that the pistol was a large toy pistol which would not fire, and that they found no other weapons in the appellant’s vehicle. He stated that prior to making a search, or asking the appellant any questions, he was read his rights from a “Miranda card” and that the appellant stated he understood his rights.

Russellville Police Captain Thomas C. Wood testified that on the morning of May 9, 1976, he was working the day shift from 7:00 in the morning until 3:00 in the afternoon. He stated that he received a dispatch over his police radio that there had been trouble at the Shop-Rite Grocery store and that a short time later a description of the suspect and the vehicle he was driving was given by Police Officer Gaba and Sergeant Teas. He stated that he drove to the intersection on Highway 43 and stopped where he could see traffic coming down Highway 43. He noticed a Buick car with a dark green vinyl top and a light green body turn to go west on Highway 24. He stated that he gave pursuit and stopped the vehicle as it turned off on Highway 24. He stated the tag number matched the number given on the police radio alert, and that he was standing talking with the appellant when Officers Teas and Gaba drove up. He testified the appellant was then arrested after Officer Teas gave him a “Miranda warning,” and then opened the glove compartment and found $186.00. He stated that a “large toy pistol” was found in the trunk of the car.

Patricia McCalpin took the stand and testified that she had been married to the appellant for approximately three weeks at the time of the trial. She stated that during the two-week period prior to May 9, 1976, Wade Kelly McCalpin was living and working in Columbus, Mississippi, and that was where she had met him.

I

The appellant filed a demurrer to the indictment which challenged its legal sufficiency, pointing out that the ownership of the property was the Shop-Rite Grocery, and the indictment charged that Pat Moore was the party in possession, and therefore there was a fatal variance.

In Mays v. State (Ala.Cr.App.), 335 So.2d 246, we find the following:

“. . .To sustain a charge of robbery it is not necessary that the stolen property be in the actual physical contact with the person of the victim, but it is sufficient if the property is taken from his presence or personal protection. Cobern v. State, 273 Ala. 547, 142 So.2d 869. Moreover, in an indictment for robbery, ownership of the stolen property is properly laid in the party in possession, either as owner, or bailee, or agent. See Bray v. State, 47 Ala.App. 308, 253 So.2d 531, and authorities therein cited.
“It is not necessary that title be in the person robbed. Douglass v. State, 21 Ala.App. 289, 107 So. 791. Bowman v. State, 44 Ala.App. 331, 208 So.2d 241.”

II

The appellant moved to exclude the evidence at the close of the State’s case, and also filed a motion for a new trial, challenging the weight and sufficiency of the evidence, averring that the State failed to present a prima facie case.

In Tarver v. State, 53 Ala.App. 661, 303 So.2d 161, Judge Harris stated the following:

“The three essential elements of the crime of robbery are: (a) felonious intent, (b) force, or putting in fear as a means of effecting the intent, and (c) by that means of taking and carrying away of the property of another from his person or in his presence, all of these elements concurring in point of time. Douglass v. State, 21 Ala.App. 289, 107 So. 791; Hardis v. State, 28 Ala.App. 524, 189 So. 216; Cobern v. State, 273 Ala. 547, 142 So.2d 869; Floyd v. State, 52 Ala.App. 291, 291 So.2d 382.”

We are of the opinion that the State here presented a prima facie case and the appellant’s motions were properly overruled at trial. Clay v. State, 52 Ala.App. 272, 291 So.2d 364; Tarver v. State, supra.

hi

The appellant moved to suppress the testimony at trial pertaining to the lineup identification by Mrs. Moore and Miss Harmon of the appellant because their testimony showed that no counsel was present at this time.

Under Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, the trial court properly overruled the appellant’s motion to suppress, challenging the lineup identification. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Havard v. State, 50 Ala.App. 147, 277 So.2d 421.

We have carefully examined this record and find same to be free from error. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


text:
    Earl Edwin FORREST, Jr. v. STATE.
    8 Div. 902.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.
    Robert E. Cramer, Jr., Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

This case comes before this Court as an attempted appeal from an order of the circuit judge denying the appellant’s “MOTION TO SET ASIDE PLEA OF GUILTY AND TO VACATE SENTENCE.”

The record before us contains transcripts on two cases involving the appellant. A lengthy court reporter’s transcript of the evidence is contained in the record in Case No. 75-7-532F wherein the appellant was convicted of first degree burglary and sentenced to ten years. On November 7, 1975, at the time of sentencing, appellant gave notice of appeal, and later filed a written notice of appeal on November 25,1975. His appeal was dismissed by this Court in that case on April 5, 1976.

The record also contains a transcript of a Boykin colloquy on a guilty plea in Case No. 75-7-530F on a charge of indecent molestation of a child under sixteen years of age. On January 5, 1975, the trial court sentenced the appellant to five years on that charge. No written or verbal notice of appeal was given in that case. On July 27, 1976, the appellant filed with the circuit court a “MOTION TO SET ASIDE PLEA OF GUILTY AND TO VACATE SENTENCE.” A hearing was held on August 6, and the motion was denied by order of August 11, 1976. Notice of appeal from denial of that order was filed on September 21, 1976.

Where no notice of appeal was filed within forty-two days (6 weeks) after entry of sentence appealed from, the judgment became final. The trial court had no jurisdiction to entertain the motion to set aside the guilty plea, and consequently no appeal lies from denial of that motion. The right of appeal is purely statutory in Alabama. A ruling on a motion to set aside a conviction and to withdraw a plea of guilty is not an appealable order. Dawson v. State, 37 Ala.App. 16, 66 So.2d 567 (1952). An appeal in a criminal case can only be taken from a judgment of conviction, in the absence of statutory authority to the contrary. Hughes v. State, 45 Ala.App. 250, 228 So.2d 862 (1969).

Pursuant to Title 13, § 119, Code of Alabama 1940, the trial court’s jurisdiction over the case expires in thirty days where no motion for a new trial is filed. Section 119 was not superseded or modified by the new Alabama Rules of Appellate Procedure.

The State’s motion to dismiss the appeal is well taken and must be granted.

APPEAL DISMISSED.

All the Judges concur.


text:
    STATE of Alabama v. Luther E. (Sonny) GAUTNEY.
    8 Div. 930.
    Court of Criminal Appeals of Alabama.
    March 29, 1977.

      William J. Baxley, Atty. Gen. and Michael L. Weathers, Asst. Atty. Gen., for the State, appellant.
    No brief for appellee.
   BOWEN, Judge.

The appellant was arrested on September 7, 1976, for carrying on or representing lottery by operating a bingo game. The appellant pled not guilty and filed a demurrer and a motion to strike the affidavit and complaint. The primary thrust of the demurrer and motion is that Title 14, § 275, Code of Alabama 1940, is unconstitutional and a denial of equal protection of the law as applied against the appellant and the game of bingo, because it is not uniformly enforced against all games of chance.

In dismissing the charges brought against the appellant on the grounds that the enforcement of the statute was a denial of equal protection of the law as applied against the appellant and the game of bingo, the lower court found that the appellant had made a conclusive showing that:

“bingo is played in surrounding counties in Alabama with impunity, that senior citizens are the primary patrons of bingo games and receive a great deal of satisfaction and enjoyment from the game of bingo, that numerous churches and civic groups also on occasion sponsor bingo games as a fund-raising activity, that the various carnivals which come to Lauder-dale County have numerous games of chance played thereat without law enforcement action being taken against them, and that numerous fraternal, church and other civic organizations sell chances on various types of prizes as fund-raising activities, and that a game of chance consisting of a punch board was available for play in the Lauderdale County Courthouse concession stand on the day of the hearing in this action.”

The record supports the factual finding of the trial court. The state gave notice of appeal.

The initial question before this court is whether the state has a right to appeal a decision of a trial court dismissing the charges against the accused on the ground that the enforcement of the statute was a denial of equal protection of the law as applied against the defendant.'

The controlling statute is Title 15, § 370, Code of Alabama 1940, which provides as follows:

“In all criminal cases when the act of the legislature under which the indictment or information is preferred is held to be unconstitutional, the solicitor may take an appeal in behalf of the state to the supreme court, which appeal shall be certified as other appeals in criminal cases; and the clerk must transmit without delay a transcript of the record and certificate of appeal to the supreme court.”

There is no inherent or inalienable right of appeal. State v. Bibby, 47 Ala.App. 240, 252 So.2d 662 (1971). The state cannot appeal except upon statutory authority. Before 1880 the prisoner alone was given the right to appeal. State v. Hewlett, 124 Ala. 471, 27 So. 18 (1899). Thereafter, what is now Code 1940, Title 15, § 370 allowed the “solicitor” to take an appeal on behalf of the state when an act of the legislature (on which the indictment or information was preferred) had been held unconstitutional by the trial court. This is the state’s only criminal appeal unless the appeal by the state authorized in habeas corpus cases by Title 15, § 369, Code 1940, is classified as criminal. Bibby, supra.

Therefore, with the exception of habeas corpus cases, the state is not entitled to appeal in a criminal case in the absence of a judgment of the trial court holding the statute under which the indictment or information was preferred to be unconstitutional. State v. Cagle, 42 Ala.App. 344, 164 So.2d 512 (1964); Code 1940, Title 15, § 370 and cases cited in annotation following; 7 Alabama Digest, Criminal Law, &wkey;1024. On an appeal under Title 15, § 370, the only question permissible is the constitutionality of the statute, State v. Rogers, 281 Ala. 27, 198 So.2d 610 (1967); State v. Cecil, 216 Ala. 391, 113 So. 254 (1927); State v. Street, 117 Ala. 203, 23 So. 807 (1897), and not whether the statute is being enforced in an unconstitutional fashion or manner.

The right of the state to a review in a criminal case is dependent upon the statutory authority as indicated above, and may not be enlarged or extended by judicial construction. State v. Powe, 28 Ala.App. 402, 185 So. 781 (1939); State v. Martin, 30 Ala.App. 466, 10 So.2d 671 (1942). Title 15, § 370 does not provide for an appeal by the state where the enforcement of the statute has been held to be unconstitutional but the constitutionality of the statute itself has not been questioned. Under such circumstances this court is without proper jurisdiction to entertain this appeal.

APPEAL DISMISSED.

All Judges concur.