author: DeCARLO, Judge.

text:
    Kenneth ROBERTS v. STATE.
    3 Div. 416.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.

      Von G. Memory, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Murder second degree; thirty years.

This is an indigent appeal. The indictment charged Kenneth Roberts, “. unlawfully, and with malice aforethought, killed Errol G. Cummings, by hitting him with a baseball bat. . . .”

To this charge appellant pled not guilty and not guilty by reason of insanity and on March 12, 1975, a trial was commenced.

The testimony adduced by the State was:

James E. Cummings was the father of the deceased and on November 20, 1974, about 7:00 P.M. he saw his son’s body in a funeral home. He described his son as being thirty-seven years old, about five feet, ten inches in height and weighing about 135 pounds. Cummings knew the appellant and had talked with him on a number of occasions. However, he could not say how long the appellant had been living with his son, but did say it had been more than a month.

During cross-examination, Cummings testified that his son owned a small caliber pistol which he kept in his house. Further, Cummings recalled that just prior to his son’s death he saw seven-hundred dollars cash in his possession.

On the morning of November 20, 1974, about ten minutes until five, Johnny Taylor crossed the intersection of Gaston Avenue and the L & N railroad tracks in Montgomery, Alabama. On his return about 5:00 A.M., he noticed a car parked on the tracks. He walked over to the driver’s side of the car and looked through the car window. It was raining at the time and his vision was obscured by foggy windows. When Taylor went to the window on the other side of the car, he saw a man inside. He called to him but received no response. When Taylor opened the door and looked in he saw blood. Further, he saw a man in the front seat of the car but was unable to see his face. Taylor then went home and telephoned the police. When he returned to the scene with his sister in about five minutes the police were already there and the car was in the same position as when he left.

Glen B. Cade was a member of the Montgomery Police Department and on November 20, 1974, was working as a patrolman with his partner, Officer Rigby. About 5:30 A.M. they were investigating a car on the railroad tracks at Gaston Avenue. When Cade went over to the passenger side of the car he saw a man sitting slumped over sideways on the front seat. Cade saw no one around the automobile when they arrived and remembered it was raining.

About 5:30 A.M., Lawrence Rutland, a detective for the Montgomery Police Department, went to the scene where the car was found. Two officers were there when he arrived and a two-tone green 1971 Pontiac Grand Prix was parked on the railroad tracks just south of Gaston Avenue. Rut-land was on the scene about two and one-half hours and the car was moved after the investigation was completed. He recalled that the railroad tracks underneath the left-hand side of the automobile were dry when the car was moved and remembered that it had started raining about 4:48 A.M. The tires on the car were not flat but when Rutland started the car and attempted to move it, he found that it was “hung-up on the track.”

During cross-examination, Rutland stated the address 804 Ridgemont Avenue was discovered in a wallet found on the body when it was removed from the car. Rutland and Detective Lindsey went to the house at that address. When they entered the living room, near the front of the couch, they noticed a substance coming out of the carpet. It came up over the soles of their shoes and appeared to be blood. A red substance was also found on a piece of furniture approximately eight feet from the couch. A billfold was found in a jacket on a chair in the living room and the identification on the jacket indicated a Grady Street address with the name “Smith.” According to Rutland, they went to the address and were told by Smith’s father that Smith lived on Eugene Street. They searched the residence at the Eugene Street address after obtaining a search warrant. After they radioed police headquarters, they went to a “dempster-dumpster” some 300 yards from the address and found a sack of blood-stained clothing. The clothing was marked and sent to the toxicologist.

On redirect-examination, Rutland testified that, at the time they searched the car, they did not find any weapons in it or on the body.

Russell Martin Lindsey was employed by the Montgomery Police Department and on November 20, 1974, he along with other officers were investigating the scene where the car was found. Approximately fifty feet from where the car was parked on the tracks, they found a baseball bat, which was later turned over to the toxicologist.

Richard A. Roper was employed by the State Department of Toxicology and was the toxicologist assigned to the Montgomery office. About 6:00 A.M. on the day in question, he went to the scene where the car was found and after making pictures he looked into the car. Roper did not examine the contents of the car and detected no alcohol fumes in the car.

Roper testified that he performed a post mortem examination on the deceased, Earl Cummings, at Lee’s Funeral Home. Roper’s examination disclosed a total of six lacerations to the head area, four, which were located on the rear portion and the other two were in the brow area. There were also bruises and lacerations to the back. Further, during the examination a blood sample was taken from the body and its analysis showed type A, human blood. Based on his examination and dissection of the head area, Roper concluded death was the result of bleeding within the skull caused by injury to the brain. Roper also concluded that the lacerations and fractures were the result of multiple injuries by a blunt object and were commensurate with the type of injuries that could be caused with a baseball bat.

During cross-examination, Roper said that tests were made to determine the alcohol content of the blood but no tests were made to determine if drugs were present. According to Roper, death occurred approximately six to ten hours prior to the time of the post mortem examination.

Charles Wesley Smith was a criminalist with the Alabama Department of Toxicology and Investigation. On November 20, 1974, he went to the house at 804 Ridgem-ont Avenue and took pictures. Smith stated that in the center of the living room: “the carpet was heavily soaked in blood.” Further, he said there was blood on the couch, pieces of furniture and spattered on all four walls. Smith stated that samples of the blood were taken'from the stains in the fabric of the couch and sent to a serologist for an analysis.

Smith also recalled that Grady Arnette, a lieutenant with the Montgomery Police Department, gave him a baseball bat. He examined the bat and found visible evidence of blood.

Smith stated an examination of the interior of the automobile the body was found in, revealed a large quantity of blood. He recalled that numerous gold colored fibers scattered inside the car were of the same type found on the carpet of the house at 804 Ridgemont Avenue.

Smith also recalled receiving items of clothing from Officer Rutland. One of the items was a pair of slacks, which contained blood stains. The pants and other items were turned over to Lawton Yates for sero-logical examination.

Sidney Williams was employed by the Montgomery Police Department as a detective and on November 20, 1974, he interrogated the defendant. The defendant was not under arrest at the time but Williams advised him of his constitutional rights. Williams testified that the defendant made an oral statement, which was later reduced to writing and signed by the defendant after he read it. In the statement Roberts related that he had killed Cummings by striking him with a baseball bat. Roberts also said in the statement that he did not know how many times he struck Cummings with the baseball bat and that the incident occurred about midnight. Further, Roberts stated that Cummings lay on the floor unconscious until he and Smith put Cummings’ body in the automobile. The statement by Roberts also indicated that he and Smith were going to the Baptist Hospital when they stopped the car on the railroad tracks and left it.

During cross-examination, Williams recalled that in the statement, Roberts said he did not mean to kill Cummings and that Cummings had hit him first. According to Williams, Roberts also stated that he and Cummings were not involved in a homosexual act.

Further Williams recalled that Roberts stated that it was raining on the night in question and that he did not know exactly where he threw the bat on Gaston Avenue. Roberts also told Williams that the clothing he was wearing at the time of the incident was in the “dempster-dumpster” near the “projects” off Hall Street.

Lawton Yates was employed by the State Department of Toxicology as a Criminalist Serologist. Yates testified that he received certain items from Dr. Smith, containing blood stains. They were examined serologi-cally, and he found the stains were human blood of type A.

Detective Rutland was recalled and he stated that the first time he saw the defendant, Kenneth Roberts, he was at the co-defendant, James Smith’s apartment. He remembered smelling the odor of alcohol on Roberts. Rutland recalled Roberts said that he had not been at the deceased’s residence on the night of the alleged murder. Roberts told him that he was in Pratt-ville that night. Rutland stated that he was present when photographs were taken of the defendant while he was disrobed and that only a small scratch was found on his body.

Margie Johnson was living at 153 Aver-hart Street, Prattville, Alabama, on November 20, 1974. Prior to that date she had lived in an apartment in Montgomery. She knew Earl Cummings and said there had been a romance between them. She also knew Kenneth Roberts and according to her, he telephoned on November 20, 1974 and instructed her to say that he was with her the previous night. Johnson stated that when she was contacted by the Montgomery Police Department, she told them that Roberts had not been with her on the previous night of November 19.

Raymond Bonnett, was the road foreman of engineers for the Seaboard Coastline Railroad in Montgomery. He testified that the Seaboard Coastline Railroad had tracks that crossed Gaston Avenue. Further, he said that a train was scheduled to leave Montgomery at 6:00 A.M. on November 20, 1974, and would have crossed Gaston Avenue approximately forty-five minutes later. Bonnett recalled that the train was delayed and did not depart Montgomery until 7:35 A.M. He explained that delays were occasioned by different circumstances but he did not know of any request by the Montgomery Police Department to stop the train.

At the end of Bonnett’s testimony, the State completed its case and a motion to exclude State’s evidence was made by the appellant on the ground that they had not proved a case of first degree murder. The court denied the motion and the appellant called James Smith.

Smith testified that he saw Kenneth Roberts about 10:30 A.M. on November 19th, at Smith’s house. About 5:55 P.M. he and Roberts went to Cummings’ house on Rid-gecrest Avenue. From that time until 12:00 that night, he and Roberts talked and read the paper. During that period he and Roberts also cleaned the water from the kitchen floor. Smith did not know the exact time when Cummings came in but remembered that Cummings started talking about the defendant’s family. According to Smith, Cummings called the defendant’s wife a bitch and his son a bastard and then said to the defendant: “because he weighed two hundred pounds and almost six foot tall, don’t mean I can’t whip your ass . I have a reputation for whippin am., f. .’s ass and I don’t mind upholding it.”

Smith said it was at that point that Cummings hit Roberts with his fist. After Roberts shoved him away, Cummings went to the closet and returned with a bat. Cummings hit defendant in the side and they began to tussle over the bat. At that point, Roberts grabbed the bat and hit Cummings twice. Cummings then fell to the floor.

Smith testified they were unable to revive Cummings with cold water. After they were unsuccessful in telephoning for an ambulance he suggested that they take Cummings to the hospital. They had driven around and were unable to reach the “by-pass” where the Baptist Hospital was located, when they returned to Gaston Avenue. They then left the automobile on the railroad tracks because their attempts to remove it had failed. According to Smith they were going down Gaston Avenue to his brother-in-law’s house to make a telephone call. Smith then became frightened when he saw the police driving toward where the car was located. He said they went to his house and were preparing to call the police when they arrived.

During cross-examination, Smith stated that he went to Cummings’ house to get a wallet from a coat that he had borrowed from Cummings. He explained they did not go to St. Jude’s Hospital some seven blocks away because the Baptist Hospital was the emergency facility for that night. Further, Smith stated that at the time he thought Cummings was under the influence of alcohol or drugs but would not say he was drunk. He denied telling appellant Cummings was dead and also denied any knowledge of the whereabouts of the bat.

The appellant took the stand and testified that he was forced to separate from his wife and son because of financial problems. At the suggestion of the deceased he moved to his house. While Roberts lived with Cummings he held several jobs and contributed money for food and maintenance of the house. He stated that difficulties started when he stopped giving the deceased money. Appellant said that the deceased would verbally abuse his wife and son and the deceased would become upset when he invited other people to the house. Roberts denied any homosexual relationship with the deceased and said he did not know of any homosexual activities of the deceased. He recalled that prior to the incident, he was riding with Cummings when the deceased threatened him with a gun. Appellant explained that the deceased had threatened him on several occasions and always carried a shotgun in the trunk of his car.

Appellant recalled that on the evening of the 19th, he and Smith returned to the deceased’s house about five or six o’clock. When he returned he continued his mopping and that he and Smith talked. Around midnight, deceased came and began to make remarks to defendant about people visiting in his house and what people thought of the defendant living there. Deceased continued his verbal attack by slandering appellant’s wife and child. At the same time, the deceased pulled'appellant to his feet. Roberts said that the deceased then hit him in the face a couple of times and they began to struggle. Subsequently, he pushed the deceased away and told him that he “wanted out.” Appellant testified that he did not remember how the bat became involved because: “it happened that fast, all I know and remember is the fact that there was a bat involved.”

Appellant testified that a scuffle began over the possession of the bat and that during the scuffle, he was hit several times with it. They continued to struggle and he subsequently gained possession of the bat. He admitted striking the deceased with it several times but did not know how many. According to the appellant, the deceased fell to the floor and he and Smith wiped his head with water and a towel. Appellant said at that point Smith went out and attempted to find help and within a short time returned. Roberts and Smith then placed Cummings in the front seat of the car and drove away. Appellant was driving the car when he noticed that there was not much gas and they attempted to locate a service station. They then drove about thirty minutes and eventually came back on Gaston Avenue. According to the appellant it was foggy and raining hard when he lost control of the ear and it skidded onto the tracks. Roberts and Smith walked away after they were unable to push the car off the tracks.

Appellant recalled that after they saw the police he became frightened and went to a friend’s house. They did not have a telephone and he and Smith went to Smith’s house. He admitting asked Margie Johnson to lie for him. Roberts said that at the time of the fight with the deceased he felt his life was in danger.

Shirley Ann McLean was the ex-wife of the deceased, Earl Cummings. She testified that after four years of marriage she filed a petition for divorce. In her testimony she said the deceased had not shot at her with a gun or physically abused her at any time. However, she acknowledged, in the interrogatories and depositions filed in support of her divorce, she had signed a statement contrary to her testimony.

During cross-examination, she stated the divorce was based on incompatibility or a “break down.” Further, she said that although the divorce had become final in August, 1973, she had talked to her ex-husband on several occasions and he had not mentioned purchasing a shotgun.

I

Prior to the beginning of the appellant’s trial, the so-called “Black Muslim murder case” had just been completed in the same court and the jury was deliberating its verdict. The record reflects that during the first day of appellant’s trial, and before the State’s third witness had completed his testimony, the trial was interrupted. The jury hearing the other case informed the court that they had a question and at that point, the appellant’s trial was stopped. The other jury was brought in while appellant’s jury was still in the box and they were allowed to ask a question concerning the case they were deliberating. No objection was made by defense counsel either before the jury came in or after their departure.

Upon the return of the jury to the jury room, appellant’s trial was started again and before the State’s sixth witness had completed his testimony, appellant’s trial was again interrupted. This time the jury deliberating the “Black Muslim murder case” announced that they had reached a verdict. They were again brought into the courtroom in the presence of the jury hearing the appellant’s case and returned their verdict with a sentence of life imprisonment. After they announced their verdict they were polled in the presence of appellant’s jury. During this time, certain exhibits including guns involved in the “Black Muslim’s case” were exhibited before the appellant’s jury. At the close of the “Black Muslim’s” verdict proceedings, appellant’s defense counsel moved for a mistrial on the grounds that the proceedings involving the other verdict were inflammatory and compounded the seriousness of appellant’s crime.

Counsel argued that under these circumstances, appellant could not receive a fair trial. However, defense counsel stated that he did not believe that the jury in the appellant’s case would confuse the issues of the two cases. In denying the motion, the court commented, it would have been “delighted” to have taken the matter up outside the presence of the jury if a request had been made. The court added that the quarters were such that they did not have space to keep appellant’s jury and the other jury separate.

Appellant now insists that the court’s proceedings concerning the “Black Muslim” trial before the jury hearing his case were erroneous and prejudicial.

The conduct of a trial rests squarely in the discretion of the presiding judge and unless it clearly appears that there has been an abuse of discretion the appellate courts will not interfere. Cantor v. State, 27 Ala.App. 40, 165 So.2d 597, Dennison v. State, 17 Ala.App. 674, 88 So. 211.

While we believe that the better procedure would have been to dismiss appellant’s jury and then respond to any questions of a deliberating jury or received their verdict, we recognize as the trial judge did, that in some of our circuits, the courtroom facilities are limited. We also note that counsel for appellant did not make his objections known, either before, during or after the first interruption. Further, he remained silent during the second interruption when the verdict was received and did not complain until the proceedings were complete.

We do not believe that the proceedings concerning the deliberating jury had a tendency to prejudice this defendant because there was no reference to the appellant’s case. See: Landthrift v. State, 140 Ala. 114, 37 So. 287, and Welch v. State, 156 Ala. 112, 46 So. 856.

II

It is contended that the trial court was in error when it allowed the district attorney to make certain comments during his questioning of appellant’s witnesses. Specifically, appellant directs our attention to three particular instances to which objection was made. These are:

(1) During the cross-examination of the co-defendant, James Smith, by the district attorney, the following occurred:

“Q. If you were trying to get him ( — the deceased, Cummings) to the hospital you could have stopped the police. Now, isn’t that right? And isn’t it a fact that at the time you saw those police officers you were more worried about you going to the penitentiary because you had murdered him than saving Cummings’ life?
“MR. MEMORY: Objection to that conclusion.
“THE COURT: OVERRULED.
“A. No, Sir.”

(2) Later in the cross-examination of the co-defendant the district attorney asked about a mop shown in a photograph of the scene of the alleged crime. The co-defendant, James Smith, answered, “I guess it ( — the mop) was there from Jump Street, I don’t know.” The following then occurred:

“Q. Jump? What — Do you call the time you go to somebody’s house Jump Street? Or when you go over there to murder somebody and beat them unmercifully, do you call that Jump Street?
“MR. MEMORY: Object to him arguing with the witness.
“THE COURT: Overruled.
“BY MR. EVANS: (Continuing)
“Q. Now, tell us what Jump Street means?”

(3) During the district attorney’s cross-examination of the appellant’s ex-wife, Ber-dine Roberts, the following occurred:

“Q. And the truth of the matter is, during the time you were married to him he never held a job, for any length of time; isn’t that correct, ma’am?
“A. Yes.
“Q. I know it is. Now—
“MR. MEMORY: Your Honor, I would object to the Prosecutor testifying; his comments.
“THE COURT: Overruled.”

Counsel argues that the “intemperate characterizations” were calculated to arouse and inflame the members of the jury and that this conduct resulted in a denial of appellant’s constitutional right to a fair trial.

We have reviewed each of the foregoing instances complained of by this appellant and find that they came within the range of the State’s cross-examination. The boundaries of such cross-examination is a matter addressed to the trial court’s discretion. Such rulings by the trial court will not be disturbed except upon a showing of gross abuse. Vandiver v. State, 37 Ala.App. 526, 73 So.2d 566.

In our judgment, the questions propounded by the district attorney came within the limits of legitimate cross-examination.

Ill

Appellant complains that improper testimony was allowed when during the cross-examination of the victim’s ex-wife the prosecutor asked:

“Q. Thank you. Now, would it be correct, ma’am, to say that the real reason for your divorce was incompatibility? What is called a breakdown in the law?
“MR. MEMORY: Objection, Your Honor.
This record here is the best evidence.
“THE COURT: Overruled.
“MR. PRICE: Well, you have the interrogatories. I am asking about the terms of the divorce.”

Counsel argues that the interrogatories and depositions of the divorce proceedings were in evidence and were the best evidence of a reason for the divorce.

We have considered the court’s ruling in connection with the cross-examination of the deceased’s divorced wife and find that the best evidence rule was not applicable. In our judgment the prosecution was within its right to cross-examine on the point in question because defense counsel had gone into the grounds for the witness’ divorce.

This was a matter of permissible cross-examination and in no way an abuse of the trial court’s discretion in permitting it. Vandiver v. State, supra.

IV

Appellant complains that the trial court abused its discretion when it would not permit closing arguments beyond the time specified by the judge. Counsel argues that as a result of the court’s discretion to adjourn, counsel for the defense was interrupted in the middle of his closing argument. Further he alleges that as a result of the court’s discretion to adjourn, the district attorney was allowed to complete the State’s opening argument but counsel for the defense was interrupted in the middle of his closing argument. Counsel insists this was a prejudicial interruption and at a crucial point of the trial which caused a loss of concentration, a break in the continuity, and a disruption in the natural flow of counsel’s argument.

We examined the record on this point and found that no objection was raised by defense counsel concerning the court’s adjournment. Further, we found that the court on resuming the trial, following the weekend recess, encouraged defense counsel to begin his argument anew.

Under these circumstances, we do not see the error maintained by appellant.

No error appears in the record.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Alton SANDERS, alias v. STATE.
    3 Div. 447.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.

      No brief for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Defendant was indicted and convicted for buying, receiving and concealing stolen personal property. The court imposed a sentence of ten years in the penitentiary. A proper judgment consistent with the sentence was entered. This appeal followed.

There was a prior trial and sentence of seven years for the same offense. For error in this first trial the judgment was reversed and the cause remanded.

We do not deem it necessary to elucidate here on the several rulings of the court that were made on the merits of the trial prior to judgment entry. We do not find in our mandated search of the record any prejudicial rulings that justify a reversal. Under the circumstances we think the judgment should be affirmed.

But we do find sufficient error that justifies a remand of the cause for a review and reconsideration of the sentence.

Defendant on December 16,1975, filed his motion for a reduction of sentence. The court denied this motion on December 16, 1975. We think the motion should receive further consideration and the cause is remanded to the trial court for that purpose.

There is a differential of three years between the two sentences. The first judgment, as we have noted, imposed a sentence of seven years and the second judgment on retrial of the cause was ten years.

The record fails to show any valid reason why the second sentence was longer than the first. The existence of such a reason is a prerequisite for increasing the sentence. Newsome v. State, 49 Ala.App. 248, 270 So.2d 680. This Court in Newsome quoted from Simpson v. Rice, 395 U.S. 711, 89 S.Ct. 2072, 22 L.Ed.2d 656, which we again quote:

“ * * * Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

If after remand a longer sentence than seven years imprisonment is imposed, the court must set out in the record his reasons therefor; the reasons must be based on identifiable conduct on the part of defendant occurring after the original sentence proceedings.

The sentence imposed must be credited with the time, if any, that the defendant has served on the first sentence, Simpson, supra.

We therefore remand the cause for appropriate sentencing consistent with the mandate of Newsome and Simpson, supra.

The foregoing opinion was prepared by Supernumerary Circuit Judge BOWEN W. SIMMONS, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; opinion is hereby adopted as that of the Court. The judgment is hereby affirmed. The cause is remanded with directions.

AFFIRMED; REMANDED WITH DIRECTIONS.

All the Judges concur.


text:
    Jerry Lynn MULLINS v. STATE.
    3 Div. 481.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.

      J. Paul Lowery, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Conviction and judgment for burglary of a motor vehicle with intent to steal. The trial court imposed a sentence of three years in the penitentiary.

It appears that the alleged burglary occurred at night in the vicinity of a nightspot where the owner of the Chevrolet pickup truck, alleged to have been burglarized, was employed.

It appears that a woman alerted the owner that someone was inside his motor truck. He went immediately to the truck and found defendant on the inside in a cramped position and his tape deck, installed under the dash, partially disengaged from its anchorage and many of the appending screws loosened and out. There was ample evidence that defendant was inside the truck in a crouched position with the vehicle doors closed. The owner testified that when he left the truck, the door on the driver’s side was locked and the other door was closed, but not locked.

It also appears that the glove compartment was opened; that there was a screw driver and other tools in the compartment. Defendant did not take the stand, but offered the testimony of some witnesses that he was drunk and entered the motor vehicle as a result of this intoxication. There was ample evidence that he was sober, able to walk and talk, when he was apprehended in the truck. What the defendant was doing in the truck and his intent while there was an issue for the jury.

I

Appellant contends that the court erred in allowing a lay witness for the State to testify about his opinion concerning various items of evidence and the manner in which this appellant supposedly did or did not do certain acts in his alleged efforts to remove an F. M. tape player installed in the pickup truck.

(a) We quote:
“BY MR. BELL: (continuing)
“Q. All right. Mike, could you show the jury, if you can, exactly how Mr. Mullins was laying that night. Can you demonstrate it? If this were the passenger’s side of the automobile and the car or truck was facing in this direction?
“A. Okay. If the headlights were facing here, to my left would be the driver’s side. I came around to this side and here is the driver’s door here. When I opened the door his legs came out, extended from the truck. He was laying like this with one hand up under here and his head bent all the way down about six or eight inches off the seat like he was looking up under my dash.
“MR. DRINKARD: We object to this. That is a conclusion of the witness: as if he was looking or what he was doing. We move to exclude it.
“THE COURT: He has already answered the question.”

There was no objection to the question until after the witness had answered and none was particularized except that part as to where defendant was looking. We think the witness was merely illustrating the position of defendant’s head and eyes. The answer was an awkward response to the question. The failure of the court to exclude was not error.

(b) The next contention of error is the court’s ruling in the following colloquy:

“Q. Would you state whether or not this tape player had been unscrewed, or was it pried?
“A. I really—
“MR. DRINKARD: We object. That calls for an opinion or conclusion.
“THE COURT: Overrule the objection. You can answer.
“A. My opinion is, a little of both. It looked like it was bodily twisted with his hands, and then it was pried.
“MR. DRINKARD: We renew our objection and move to exclude it, Your Honor, as an opinion.
“THE COURT: Overruled.”

It is to be noted that the tape deck was affixed to the dash and that this witness had already been asked without objection and answered:

“Q. Did you also notice the condition of your dashboard?
“A. Yes, sir. It was scratched and dented as if it had been pried.
“Q. Can you describe these dents a little bit?
“A. From my observation, all I could tell, it looked like he had stuck a metal object in there and pressed up.”

It is to be observed from the above that the witness had already testified about the prying, to which there was no objection. Besides, the answers as to the prying were just a shorthand way of describing the condition of the dash and the tape deck. This ruling was not error.

(c) On direct, the District Attorney asked the truck owner:

“Q. Tell me once again exactly how the tape player was hanging in your car?
“MR. DRINKARD: Objection.
“THE COURT: Overruled.”

The question called for a description of how the tape player was hanging. This was a permissible question pertaining to the res gestae of the truck. There was no error in the court’s ruling.

II

We have read the entire record and conclude that the evidence amply presented a

jury question as to the intent and purpose of the defendant’s presence in the truck which, according to the unimpeached evidence, did not belong to defendant. He was an intruder. It is to be noted that defendant did not offer any evidence that tended to discredit the owner’s testimony and the arresting officers as to what happened. He himself did not testify.

Ill

At the conclusion of the court’s oral charge, both the State and the defendant expressed satisfaction with the oral charge. There were no objections or exceptions and no written charges were tendered. The defendant cannot be heard here to complain that the court’s charge did not cover an asserted misdemeanor embraced in the indictment. We pretermit considering such inclusion vel non. Edwards v. State, 51 Ala.App. 433, 286 So.2d 308, cert. denied 291 Ala. 777, 286 So.2d 313.

We conclude that defendant got a fair and impartial trial before a jury of his peers and that he must abide by the verdict and the judgment of the court. There was no motion for a new trial.

The judgment is affirmed.

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

AFFIRMED.

All the Judges concur.


author: L. S. MOORE, Supernumerary Circuit Judge. BOOKOUT, Judge

text:
    John BILLUPS, Jr. v. STATE.
    3 Div. 570.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Robert B. Crumpton, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   L. S. MOORE, Supernumerary Circuit Judge.

The appellant was indicted, tried, convicted and adjudged guilty of assault with the intent to murder. He was sentenced to imprisonment in the penitentiary of the State of Alabama for a term of twenty years. Hence, this appeal.

The appellant contends on this appeal that the trial court should have suspended the trial of the appellant and cause a separate jury to inquire into the fact of his present sanity. That contention is based upon (1) the requirements or provisions of § 426, T. 15, Code of Alabama, Eecompiled 1958 and (2) the evidence.

Said § 426, is here set forth:

“If any person charged with any felony be held in confinement under indictment, and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity, such jury to be impaneled from the regular jurors in attendance for the week or from a special venire, as the court may direct. If the jury shall find the accused sane at the time of their verdict, they shall make no other inquiry, and the trial in chief shall proceed. If they find that he is insane at that time, the court shall make an order committing him to the Alabama state hospitals, where he must remain until he is restored to his right mind. When the superintendent of the hospitals shall be of opinion that such person is so restored he shall forthwith, in writing, inform the judge and sheriff of such court of the fact, whereupon such person must be remanded to prison on an order of such judge, and the criminal proceedings resumed. In no event shall such person be set at large so long as such prosecution is pending, or so long as he continues to be insane.”

Under the provisions of that section of the Code, the following requirements must be met before the trial court is required to hold such hearing namely:

(1) The appellant must have been indicted for a felony and confined under said indictment.

(2) The trial court had reasonable grounds to doubt his sanity.

The record on this appeal discloses that at the time of the appellant’s trial he was being confined under an indictment charging him with assault with the intent to murder which is a felony.

With reference to the second requirement of said Code section, namely, that the trial court had reasonable grounds to doubt his sanity, we here set out the substance of the testimony of the witnesses relating thereto.

Fannie Mae Billups testified that appellant was her son; that on March 15, 1975, he was living with her; that on that date he had two bags and he poured it together; they told me it was marihuana. She must have been referring to her son, the appellant and Clemmy Moultry when she said “They told me it was marihuana” because they were the only adults in the house other than the witness at that time. She further testified that when she saw the bags she called the police because she felt he was hooked on the “stuff” and she wanted him “off;” that she called for help for him; that after she called the police the appellant and Clemmy Moultry got into an argument and appellant told Moultry “that he would stick him in the head”; that appellant had a butcher knife in his hand at that time; that she had called the police about the appellant five or six times before that. This witness related the fact that the appellant had been in trouble many times and that she had requested the courts handling those cases or some of them to have him sent to mental health for treatment. That was brought out in answer to question propounded by counsel for the appellant.

She further testified that she asked for this treatment because appellant did not seem to be right; that appellant had some fancy clothes at one time and gave them to the Salvation Army; that afterwards he wore ladies house shoes and an old pair of pants; that he took five or six baths a day; that he would put face-cream on his whole body; that he sometimes acted strange. This witness then testified that the officers came to the house and the first officer to arrive attempted to arrest the appellant; that the officer and the appellant began to struggle when the officer tried to put handcuffs on appellant; that during the struggle they fell on the stove and finally out the door and down the steps; that she went into another room and heard some shots; that she went to the door and saw the appellant with a gun in his hands and one officer lying under a fig tree and another officer sitting in the yard holding his arm.

A statement made by the defendant to the officers in the nature of a confession was introduced in evidence. This statement is clear, concise, and demonstrates a clear detailed memory of events. The statement is here set out for the purpose of showing his mental stability.

“STATE’S EXHIBIT # 2
“Montgomery Police Dept.
“Detective Division
“March 15, 1975 5:40 P.M.
“STATEMENT OF: JOHN BILLOPS JR [sic]
“426 Clisby Park
“Mongomery, Ala.
“Concerning the shooting of two Montgomery, Ala Police Officers this date in the rear yard of 426 Clisby Park, Montgomery, Ala.
“This afternoon between 4:00 and 4:30 PM, I was at my mothers house at 426 Clisby Park, I was cooking me something to eat and one of the borders [sic] that rents a room from my mother, I think his name is Clement Moultrie came into the kitchen where I was and I started arguing with him, during the argument I think my mother called the police because we was about to fight. During this time Moultrie and I quit arguing and I believe he went to the front room. I was still in the kitchen and a plain clothes policeman came in there, my mother was with the police officer and she was telling him what had happened between Moultrie and myself, she also told him that I had some marijuana on me, I asked the officer if he had a search warrant or a warrant for me and he told me or might have told me that I was under arrest. He got his handcuffs out, I was sitting in a chair, he took me by the arm and told me that I was under arrest, we started scuffling and I saw his pistol hanging from a shoulder holster, I grabbed for it, we both had our hands on the holster and pistol, we were still in the kitchen, scuffling for the gun and I saw another policeman come in the door. When he came in the door, the plain clothed officer and I had scuffled out the back door and fell into the back yard. We were on the ground tusselling still fighting over the pistol, we both had gotten back on our feet or knees and one of the uniform officers put his night stick over my shoulders and pulled back when he did I broke loose from him and I came up with the gun, I fired at one of the uniformed officers, I believe I fired twice, the policeman was laying on the ground when I fired at him. I think I hit him twice, he hollared [sic] but I don’t know what he said. After I hit that officer I fired at another uniform officer, he was standing up. I shot at him either once or twice. I don’t know if I hit him or not. After I fired the last one or two shots at the officer standing up I started running. I passed by the plain clothes officer and pointed the gun at his head and pulled the trigger. The gun did not fire. I don’t know if it was empty or not. I kept running and ran to a house on Nichols Street and went to hide. No one was at home, I was in there about twenty minutes and the officers came and arrested me.
“Q. Have you been drinking any alcoholic beverages today?
“A. No.
“Q. Have you used any drugs this day? “A. No sir.
“Q. Did you have marijuana on you when your mother told the officer you did?
“A. Yes sir.
“Q. Why did you resist arrest?
“A. He pulled me up out of the chair by the arm.
“Q. Was the officer by his [sic] self and you thought you could run?
“A. I would have if I had of had the chance.
“Q. Have you run from the police before?
“A. I have.
“Q. Why did you run?
“A. I didn’t want to go to jail.
“Q. Why did you shoot the officer on the ground?
“A. I was afraid I might get shot.
“Q. Did any of the officers have their guns out?
“A. I didn’t see any.
“Q. When you ran by the plain clothes officer why did you put the gun to his head and pull the trigger?
“A. Because I wanted to get away.
“Q. How far was [sic] you from the plain clothes officer when you had the gun at his head and pulled the trigger?
“A. About three feet.
“Q. After you got the officers [sic] gun what did you see the officers have in their hands?
“A. Night sticks?
“Q. Was [sic] you ever hit with a stick?
“A. No, he put the stick over my shoulder to pin my arms that’s when I got the gun.
“Q. Is there any thing else you can add to this statement, [sic]
“/s/ JOHN BILLUPS. JR.
/s/ R. E. LYNCH
/s/ T. J. McLAIN.”

The writer of this opinion has read and considered the entire record in considering the appellant’s contention that a proceeding should have been conducted by the trial court under said § 426.' The defendant testified on two separate occasions during the trial and his testimony details events precisely and reveals a clear understanding of material events. There is nothing in his testimony or in his ability to understand the questions addressed to him or in his answers thereto that would cause the trial judge to have reasonable grounds to doubt that he was sane.

The defendant and his attorney knew he had been to a mental health clinic but did not offer any witnesses who examined or treated him, notwithstanding he had entered a plea of not guilty by reason of insanity. The trial judge could well presume that such a witness did not exist who could have been helpful to the defendant in that respect.

In Pearson v. State, 41 Ala.App. 366, 133 So.2d 60, the court stated:

“[1] It is well settled that the provisions of Title 15, Chapter 21, Article 2, Code of Alabama 1940, pertaining to inquiry into a defendant’s sanity at the time of trial, are not mandatory, but such matters are addressed to the sound discretion of the trial judge and his action is not revisable on appeal except for an abuse of discretion. Reedy v. State, 246 Ala. 363, 20 So.2d 528; Ex parte Bush, 247 Ala. 351, 24 So.2d 353; Burns v. State, 246 Ala. 135, 19 So.2d 450.”

In Kelley v. State, 45 Ala.App. 144, 227 So.2d 141, the law is stated in this manner:

“[1] He insists the trial judge should have permitted him to have been examined by a commission on lunacy in accordance with Tit. 15, § 425, Code of Alabama 1940. This contention is untenable for two reasons: (1) he was not charged with a capital offense, and (2) § 425, supra, is discretionary and not mandatory. Ex parte State ex rel. Paterson, 268 Ala. 524, 108 So.2d 448; Aaron v. State, 271 Ala. 70, 122 So.2d 360; Eaton v. State, 280 Ala. 659, 197 So.2d 761.
“[2] Although his petition only mentions § 425, the record indicates that the attorney representing appellant at the hearing based his argument on the failure of the court to comply with § 426, Tit. 15, Code of Alabama, 1940, instead of § 425. § 426 is also within the sound discretion of the trial judge and his action is not reviewable on appeal except for abuse of discretion. Pearson v. State, 41 Ala.App. 366, 133 So.2d 60.”

There was no abuse of discretion on the part of the trial judge, therefore no reviewable error.

The appellant is presently serving a sentence imposed on him for the murder of an officer on the occasion when he is alleged to have committed the offense charged in the indictment in the instant case. The appellant contends that for that reason the sentence imposed on him in this case should be set aside. He cites in brief, Yelton v. State, 56 Ala.App. 272, 321 So.2d 234.

The Yelton case, supra, is a case involving inseparable acts. The breaking and entry and the murder was done with the same intent. The act of the murder of one officer and the assault with intent to murder another on the occasion in question in the instant case were two separate and distinct acts, clearly separable. He killed one officer by shooting him with a gun. He then performed another act by shooting the officer named in the indictment in the case before us. The acts were separate in point of time and intent.

The trial court did not err in that respect.

The foregoing opinion was prepared by Honorable L. S. MOORE, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

AFFIRMED.

CATES, P. J., and HARRIS and DeCAR-LO, JJ., concur.

TYSON and BOOKOUT, JJ., concur specially.

BOOKOUT, Judge

(concurring specially):

We should not go on record as holding that the trial judge has complete discretion as to whether he should suspend a trial and cause a separate jury to inquire into the fact of a defendant’s sanity. The cases cited in the opinion would indicate that such is the case, subject only to review for abuse of discretion.

In reaching a decision in this case, two cases not mentioned in the majority opinion should be considered: Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815; and Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, cert. quashed 292 Ala. 745, 293 So.2d 489.

Pursuant to both Pate and Pierce, the trial judge is under an affirmative duty to stop the trial and sua sponte hold a separate sanity hearing, where evidence is adduced during the trial of a history of mental disorders or of irrational conduct on the part of the defendant which is sufficient to raise a bona fide doubt as to the defendant’s competency to stand trial.

In both Pate and Pierce, supra, there was substantial evidence of mental disorders necessitating such a holding. In the instant case, the evidence of the appellant’s peculiar conduct appears to be insufficient to bring it within the mandate of Pate and Pierce. For a more detailed discussion of those two cases, see Cunningham v. State, 54 Ala.App. 514, 310 So.2d 235 (1975).

Although neither Pate nor Pierce, supra, were considered in the instant opinion, the result would have been the same had those opinions been considered, and I therefore concur in the result.

TYSON, J., joins in the above.


text:
    Charlie AUSBORN v. STATE.
    3 Div. 588.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.

      No brief for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent, was indicted for murder in the first degree. The jury returned a verdict finding him guilty of second degree murder; fixing punishment at twenty years imprisonment. Judgment was properly entered and this appeal, in forma pauperis, follows.

So far as we observe the rulings of the court made during the progress of the trial were free of error. We pretermit addressing them by authority of T. 13, § 66, Code of Alabama 1940, recompiled 1958.

We now consider appellee’s motion to remand the cause with directions.

Judgment of conviction entered on Monday, April 12,1976. Thereafter, on May 11, 1976, defendant filed his motion for a new trial.

The trial court thereafter on August 6, 1976, heard the motion and granted it on evidence unrelated to the grounds of the motion.

We think the order granting the motion is void. The trial court did not keep the motion alive by proper continuance to the day of the hearing as required by law. The motion was discontinued and the court lost jurisdiction. Holcombe v. State, 40 Ala. App. 205, 110 So.2d 342(2); Canady v. State, 41 Ala.App. 170, 125 So.2d 3(1); Harrison v. State, 42 Ala.App. 384, 166 So.2d 429(1); Langford v. State, 44 Ala.App. 75, 202 So.2d 743(1); Ala. Digest Vol. 7, Criminal Law, § 959; T. 13, § 119, Code of Alabama 1940, recompiled 1958.

The judgment of conviction is affirmed. Motion to remand is denied.

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

AFFIRMED.

All the Judges concur.


author: JOHN N. BRYAN, Jr., Circuit Judge.

text:
    Wash ELLIOTT, alias, Washington Elliott, alias, Washington Harper, v. STATE of Alabama.
    4 Div. 458.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.

      William M. Jackson, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   JOHN N. BRYAN, Jr., Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment in the penitentiary for forty-five years.

I

On August 28, 1975, the victim, Arlene Fletcher, answered the front doorbell to her home. She was at that time confronted by a lone male with a pistol. She was then forced back inside her home and later tied up. The victim described the man as a black male with a long face, with a beard and sideburns. She described the clothing of the man to be a white T-shirt, white cloth hat, white pants with a big rip in the seat, tennis shoes, and a handkerchief over his face. This man then took numerous household items including radios, Brut shaving lotion, three watches, a ring, pocket knife, clothing, sheets, pillow cases, tools, small appliances, coins, a roll of carpet and other items. The robber placed these items in an orange or red Volkswagen which was parked by the house, and drove away. This all took place between the hours of 8:00 A.M. to 11:00 A.M.

The appellant, Wash Elliott, was arrested at 8:00 o’clock P.M. on the evening of September 2, 1975. On the morning of September 3, 1975, at 1:30 A.M. Officer Harold Locke testified that he advised the appellant of his rights and took a voluntary statement from him at that time in the presence of Sergeant James Wachob at the police station. This statement was an oral conversation, on a tape recorder, which was later transcribed and read by Officer Locke while testifying in the course of the trial.

The appellant, Wash Elliott, was indicted on November 7, 1975. On November 21, 1975, the court appointed counsel for the appellant and he was arraigned and plead not guilty on the same date. The appellant was tried and found guilty on March 9, 1976.

In the course of the trial, numerous witnesses were called by the State. These witnesses made identification of the appellant, Wash Elliott, the red Volkswagen, and certain items taken from the home of the victim. There was considerable evidence linking the appellant, Wash Elliott, with the red Volkswagen and the items taken from the victim’s home, as well as the physical identification of the appellant, Wash Elliott. The only witness for the defense was the appellant, Wash Elliott, who testified only on voir dire out of the presence of the jury. The court need make no further reference as to the testimony of witnesses other than that of Officer Harold Locke and the appellant, Wash Elliott, as their testimony and the evidence involved go to the issue raised by this appeal.

II

The only claim of error in this case is that the Court erred in admitting into evidence a statement made by the appellant, Wash Elliott, while in custody. The State takes the position that the statement was voluntarily made by the appellant, Wash Elliott, after knowingly and intelligently waiving those rights accorded to him by the Constitution.

We are cited to the following cases by the appellant: Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Otinger v. State, 53 Ala.App. 287, 229 So.2d 333; Womack v. State, 281 Ala. 499, 205 So.2d 579; Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Beecher v. State, 288 Ala. 1, 256 So.2d 154.

The appellee has cited the following cases: Botsford v. State, 54 Ala.App. 482, 309 So.2d 835; Davidson v. State, 48 Ala.App. 446, 265 So.2d 888; Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583; McNair v. State, 50 Ala.App. 465, 280 So.2d 171; Womack v. State, 281 Ala.App. 499, 205 So.2d 579.

The cases cited by the appellant set out the well-recognized rule that for a confession to be admissible in evidence, it must be purely voluntary — that all extrajudicial confessions are prima facie involuntary and can be rendered admissible only by showing that they are voluntary and not restrained, or, in other words, free from influence of any fear or hope, applied to the prisoner’s mind by a third person. That the true test is whether, under all the surrounding circumstances, they have been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor. Womack v. State, 281 Ala. 499, 205 So.2d 579.

The appellant argues that Wash Elliott requested an attorney but that this request was ignored by the police, and that the police coerced him until he waived his right to have an attorney and that any statement thereafter given by him was not voluntary and of his own free will as required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

This Court well recognizes that the duty of whether a confession is voluntary rests first, upon the State to show that it is voluntary, Otinger v. State, 53 Ala.App. 287, 229 So.2d 333; and that the trial Court has the duty to determine whether the confession was voluntary, Beecher v. State, 288 Ala. 1, 256 So.2d 154; Otinger v. State, 53 Ala.App. 287, 229 So.2d 333; Botsford v. State, 54 Ala.App. 482, 309 So.2d 835; Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583.

Before this Court is the sole ground of error that the trial judge erred in his finding that the statement given by Wash Elliott to Officer Locke at the police station while in custody was a voluntary statement. We must judge the voluntariness of the statement under the evidence that was before the trial judge. We can only read the record; the trial judge had the benefit of observing the witnesses, Harold Locke and Wash Elliott, and hearing their testimony.

Officer Harold Locke, who made the arrest of the appellant, Wash Elliott, testified on direct examination as follows:

Q. Now as you continued your investigation, did you interview Wash Elliott?
A. Yes, sir.
Q. Where did you interview him?
A. CID.
Q. Dothan Police Department?
A. Yes, sir.
Q. Dothan, Alabama?
A. Yes, sir.
Q. And was anybody else present?
A. Yes, sir.
Q. When was this interview?
A. It was 1:29 A.M. September 3, 1975.
Q. Who was present?
A. Myself and Sergeant James Wachob and Defendant Wash Elliott.
Q. At the time you commenced this interview, did you advise him of his constitutional rights?
A. Yes, sir.
Q. What rights did you advise him of?
A. Advised him he had the right to remain silent, anything he said would be used against him in Court. He had the right to talk to a lawyer for advice before we asked him any questions. And, he could have him with him during the questioning. If he could not afford to hire one, one would be appointed for him before any questioning. If he decided to answer the questions without a lawyer present, he still had the right to stop answering at any time. And, he had also the right to stop answering at any time until he talked to a lawyer.
After you gave him this advice, did you ask him whether or not he understood? <©
Yes. <ri
Did he respond to that?
He said he did.
And did you at that time or anybody else in your presence offer him any reward, threaten him in any way, give him any inducement or coerce him or do anything to him to get him to make a statement? o*
No, sir. We did not. ►>
Did he make a voluntary statement at that time? «O
Yes, sir.
How was that taken down?
In oral conversation, on a tape recorder.
And you asked the questions?
Yes, sir.
And he answered them?
Yes, sir.
Did you question him concerning an incident at Arlene Fletcher’s house out on Denton Street?

At that time the attorney for the defendant (appellant here) objected and on request from Court stated his grounds for objection to be, “Your Honor, we object to the police officer reading the statement until we make a proper determination of the volun-tariness of the statement concerned.”

The jury was then excused and out of the presence of the jury, on voir dire, the attorney for the defendant (appellant here) examined the witness, Harold Locke, who testified that the interrogation lasted approximately thirty minutes, that it was in the presence of Sergeant James Wachob, that Wash Elliott did not express a desire to have a lawyer, that he or no one else abused or threatened Wash Elliott, that he was armed in the course of the interrogation but that the weapon was not in sight, that no inducement or promises were made to Wash Elliott, that Wash Elliott signed the waiver of rights form, that Wash Elliott had the intelligence to understand the meaning and effect of a confession, and that the statement of Wash Elliott was voluntarily made without any fear or physical abuse.

Next called was the defendant, Wash Elliott (appellant here), and out of the presence of the jury, was examined by his attorney, with his testimony being in substance that he was arrested and threatened, that he was taken upstairs at the station, that papers were made out. He said he told them yeah, he wanted a lawyer, that they said you are trying to get funny and slapped the side of his head, that one officer took a rifle and threatened to use the butt of it on him, that they offered to make it light on him if he talked, otherwise would send him off for a long time, said he denied knowing about the robberies, that the police offered not to charge him with some crimes if he made a statement, that they told him what to say on the tape, that the interrogations took place every day for about three weeks, that they took him out behind a church and threatened to shoot him, that they tried to make him run so they could shoot him, that they slapped him until he gave a statement.

Following the examination of Wash Elliott, Officer Harold Locke was recalled and examined out of the presence of the jury by the attorney for the State, at which time he testified in substance, that no one slapped the appellant, that no one threatened him with a rifle butt, that no promises were made to go light on him or charge him with a third robbery, that the interrogations did not go on for three weeks, and that no one took Wash Elliott out behind a church and threatened to shoot him and tried to get him to run.

No further testimony was taken outside the presence of the jury. The record does not show that any further objection was made to the introduction of the statement into evidence. There was no motion made at that time to suppress the statement. The jury was returned to the jury box. The direct examination of Officer Locke continued, at which time he read the transcribed tape recording of Wash Elliott’s confession into evidence.

This Court will not go into the question of whether or not the appellant should have made a further objection or motion to suppress following the examination of the two witnesses out of the presence of the jury, as the appellee makes no point of this, but will look to the sole issue presented on appeal.

We find no error on the part of the trial Court in admitting the statement in evidence.

The trial Court heard the testimony. The duty to determine whether or not the statement was a voluntary statement was upon him. Testimony was taken by the trial Court out of the presence of the jury and the statement admitted later into evidence. The trial Court had the opportunity to weigh the testimony.

The evidence was in conflict. The trial judge had the duty to resolve the conflict and this he did.

The Court has previously recognized the fact that it is not unusual for the voluntariness inquiry to present conflicting evidence. Edgil v. State, 36 Ala.App. 379, 56 So.2d 677.

If trial Court finds on conflicting evidence that confession was voluntarily made, such finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835. Even where there is credible testimony to the contrary, if evidence is fairly capable of supporting inference that rules of freedom and voluntariness were observed with respect to confession, ruling of trial Court need only be supported by substantial evidence and not to a moral certainty. McNair v. State, 50 Ala.App. 465, 280 So.2d 171.

Ill

We have considered the entire record under Code 1940, T. 15, Sec. 389. From this examination, we conclude that error is not made to appear, and that the judgment of conviction is therefore due to be affirmed.

The foregoing opinion was prepared by Honorable JOHN N. BRYAN, Jr., Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Sec. 38, T. 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur except CATES, P. J., not sitting.


author: W. G. HAWKINS, Circuit Judge.

text:
    William Todd LOCKE v. STATE.
    4 Div. 468.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    John Emory Waddell, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   W. G. HAWKINS, Circuit Judge.

Appellant appealed from a conviction in the Circuit Court of Houston County (Juvenile Section) of the charge of causing the delinquency of children as set out in Article 5-148 of Act Number 1205, Acts of Alabama, Regular Session 1975, commonly known as the Judicial Article Implementation Act.

The briefs filed by the attorney for the appellant and the attorney general have dealt with this charge as it similarly appeared as Title 13, Section 366, Code of Alabama 1940, Recompiled 1958, but this along with other sections under this title dealing with juvenile delinquency was repealed by the Judicial Article Implementation Act. This Act now gives original and exclusive jurisdiction to the juvenile courts in dealing with juvenile delinquency, dependency or neglect, and provides that violators of the Act shall be fined not more than five hundred dollars or sentenced to hard labor for the county not to exceed twelve months, or both. However, under the circumstances in this case the affidavit charging the appellant with causing the delinquency of the children is pertinent to and appears to be based upon Article 5-148, supra, the wording of which is substantially similar to the old law, as set out in Title 13, Section 366, supra.

No objection of any kind was made to the affidavit upon the trial of the case and we consider it sufficient upon which to base a judgment of conviction. In fact a failure to demur or make objection in the trial court is a waiver of a defect in this court except that it may be void. Carruth v. State, 23 Ala.App. 113, 121 So. 498; Alabama Digest, Indictments, 196(1).

Immediately following the conclusion of the State’s case the appellant moved to exclude the testimony, mainly upon the ground that it was not sufficient basis for a conviction and the Court overruled the motion. The Court’s action in overruling the motion appears to be the main question for consideration of this Court in the matter.

Both the State and the appellant offered testimony, pro and con, which was submitted to the Court. However, the appellant did not testify.

Briefly, the testimony from the State tends to show that the Sheriff’s office of Houston County received a call that Jackie Hutto, one of the minors involved in this cause, was missing from her home and had been gone for several days and that the officers were requested to be on the lookout for her. At around 11 o’clock on the night in question, February 6, 1976, a police officer, who had also received the information, notified some of the deputies of the sheriff’s department that he had stopped an automobile at a certain location in the City of Dothan with several young people riding therein and that he suspected that an investigation should be made. Thereupon Deputy Joel Bullock and auxiliary Deputy Larry McKay went to the scene and found a car with several young people therein, including Jackie Hutto, the missing girl. The officers secured the names of the young people.

There was further testimony that there were three males sitting in the back seat along with one female, and three females in the front seat. The car was being driven by Kay Watkins. The appellant, who was 17 years of age at the time was sitting on the left side of the rear seat and Officer McKay testified that he looked into the ear and observed a paper sack on the floorboard at the feet of the appellant and upon examination thereof he found that the sack contained two 8-pack bottles or containers of Miller beer, and also found several empty bottles of the same brand. All of the bottles were cold and moist and the sack, which was wet on the sides and bottom, gave way when he attempted to lift it out of the car. There was further evidence that there was an odor of beer upon the breath of all the parties in the car, including the appellant. The officers took them in custody and later placed this charge against the appellant by way of affidavit.

The appellant offered three witnesses, including Jackie Hutto, who testified that she was riding in the front seat of the car at the time it was stopped by the officer. That the appellant did not offer to her, ask her, or encourage her to drink any beer. She further claimed that she was on her way home and was proceeding thereto from a game room at the time the car was stopped. She also claimed that she had been, along with several others, at the appellant’s home and that several others were also on their way home.

Sarah Hutto, the mother of Jackie Hutto, testified for the appellant that Jackie was 15 years of age and that she had been gone several days before the night of the arrest and that she, the mother, had been looking for her in different places and at the home of some of her friends. She called the sheriffs department after she was told by a friend of Jackie’s where she might be found. She further testified that the girl had left home because of domestic trouble at home between the mother and father and she knew nothing of anyone giving her alcoholic drinks, that the appellant was, and had been, a close friend of the daughter and she thought he would be protective toward her.

She went further into details not necessary to relate herein, with regard to her daughter, friends and so forth, and how she had been looking for her while she was gone.

Mrs. Carol Locke, mother of the appellant, testified that on the night of the arrest of her son, he and several young people had been to her home for awhile and left between 10:30 and 10:45 p. m. Among those present were Kay Watkins, the driver of the car at the time of the arrest, Donnie Peters, Lynn Davis, Tammy Flowers, Jackie Hutto and Perry Black, some of whom were under 16 years of age. She did not see or smell any alcoholic beverage while they were at her house and they did nothing unusual there, but she did ask them to be more quiet and asked them “to tone it down—keep it low,” apparently referring to the fact they were making more noise than she preferred. She was within an arm’s length of most of the children and she did not smell any alcohol on any of them, and she knew nothing of what happened after they left her home.

The testimony upon which the State based its case is admittedly circumstantial. It is not necessary for a conviction in a criminal case that the evidence be direct, positive, and of the eye-witness variety, but a defendant may be convicted upon circumstantial evidence if it is compatible with the test of sufficiency required in such cases.

The general rule regarding the sufficiency of the circumstantial evidence to convict has been stated in different language in innumerable cases by the Appellate Courts of our State. Many of these cases are collected in Volume 6, Criminal Law, Alabama Digest, &wkey;552(l), (2), (3), (4).

A fair statement of the degree of proof necessary to convict upon circumstantial evidence is that it must be so strong and so cogent as to show defendant guilty to a moral certainty. Hollenquest v. State, 290 Ala. 146, 274 So.2d 613.

It is further held that circumstantial evidence is entitled to the same weight that direct evidence is entitled to, provided that it points to guilt of accused. Hollenquest v. State, 53 Ala.App. 501, 301 So.2d 264.

We are not unaware that in order to make a prima facie case against the defendant the evidence must rise above mere suspicion, surmise, or conjecture.

After a careful consideration of the testimony offered in this case, we are of the opinion that the State did make a prima facie case against the appellant and that a question of fact as to the guilt of the appellant was presented for the consideration of the Court.

What we have said above disposes of the main contention of the appellant for a reversal. As required by statute, Title 15, Section 389, Code of Alabama 1940, Recompiled 1958, the Court has searched the entire record for error and finding none of a substantial nature, the case is due to be, and is, hereby affirmed.

The foregoing opinion was prepared by Honorable W. G. HAWKINS, Circuit Judge, temporarily on duty on the Court pursuant to § 6.10 of the Judicial Article, Amendment 328 of the Constitution of Alabama, by order of the Chief Justice, dated July 13, 1976; the Court had adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.

      . Defendant was found guilty by the trial court of the charge of contributing to the delinquency of a juvenile and his punishment was fixed at ten days hard labor for the county and a one hundred dollar fine.


author: BILLY C. BURNEY, Circuit Judge.

text:
    Benny James SMILEY v. STATE of Alabama.
    4 Div. 469.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.
    Rufus R. Smith, Jr., Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   BILLY C. BURNEY, Circuit Judge.

Appellant was convicted of contributing to the delinquency of a minor and sentenced to twelve months hard labor in the Houston County Jail from which he appealed.

I

On February 26, 1976 Benny James Smiley, the defendant in this case, got on a bus driven by Nathaniel Harris, which operated in the City of Dothan, Alabama, and its purpose was to transport school children to the Carver Junior High School. Nathaniel Harris was an employee of the transportation system, and Benny James Smiley was a friend of the driver, Harris, and had no purpose on the bus other than to be there with his friend. In the course of picking up students to deliver to the Carver Junior High School, Patsy Cumbie and Tommy Murphy came aboard the bus; each was fifteen years of age. The defendant, Benny James Smiley, was twenty-three years of age, and the driver, Nathaniel Harris, was approximately twenty-two years of age. Somewhere between the point of pickup of Patsy Cumbie and Tommy Murphy and the Carver Junior High School, the defendant, Benny James Smiley, and the two minors exited the bus and walked to the residence in the City of Dothan of Benny James Smiley. After arriving at Smiley’s residence and listening to the radio and talking for approximately fifteen minutes, in came Nathaniel Harris. Present in the Smiley residence at this time was the defendant, Tommy Murphy, Patsy Cumbie, and Nathaniel Harris; they were all in the same room. After the arrival of Harris, the evidence in the case shows that he and Patsy Cumbie were on the bed kissing and caressing. Shortly thereafter, according to the testimony, they were under the covers and having sexual relations; all in the presence of Benny James Smiley and Tommy Murphy. The evidence further shows that shortly thereafter officers from the Juvenile Division of the Dothan Police Department came to the residence and arrested Benny James Smiley, who was subsequently charged with and tried for contributing to the delinquency of a minor.

II

The claim of error raised here by the defendant was whether the District Attorney’s questioning of the State’s witness, Tommy Murphy, as to the race of Nathaniel Harris and Patsy Cumbie was error. Quoting from the transcript, page seven:

“Q. All right. Now, what, what race is Nathaniel?
“A. He’s black.
“Q. And what race is Patsy?
“A. She’s white.”

A careful study of the transcript shows that there was no objection or comment raised either to the question or response, and neither was there a motion to exclude the question and response at the close of the testimony, nor was there a motion for a mistrial, at the trial by defendant’s counsel, and that the first time this issue was raised was on appeal.

It has long been the law in this State that matters such as this cannot be raised for the first time on appeal, and that the failure to make objections or to take steps to remove the claimed illegal evidence is a waiver of that right. Under the judicial rules governing objections to evidence, appellant, if he wished to preserve the matter in this Court, should have objected to either the question, Embrey v. State, 283 Ala. 110, 116, 214 So.2d 567 (1968), or the response, Willingham v. State, 261 Ala. 454, 458, 74 So.2d 241 (1941).

With reference to waiver, it has been held by this Court: “Where no ruling of the court is invoked nisi prius, there is nothing for the court to review and objection cannot be made (after the question) in order to bring the matter before (the appellate) court.” Lucky v. State, 50 Ala.App. 324, 326, 278 So.2d 772, 775 (1973).

III

As for the adverse rulings at trial, this Court has adhered strictly to the general rule that “the test of probative value or relevance of a fact is whether it has any tendency to throw light upon the matter in issue, even though such light may be weak and falls short of demonstration.” McCain v. State, 46 Ala.App. 627, 630, 247 So.2d 383, 386 (1971).

IV

We have searched the record as required by law, and from our examination we conclude error is not made to appear, and the judgment of the lower court is affirmed.

The foregoing opinion was prepared by Honorable BILLY C. BURNEY, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, Title 13, Code of Alabama 1940, recompiled 1958; the Court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur.


text:
    Theodore Eugene FULLER v. STATE.
    5 Div. 324.
    Court of Criminal Appeals of Alabama.
    Oct. 12, 1976.

      Baker, Lester & Wilkes, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found appellant-defendant guilty of grand larceny, and the court sentenced him to imprisonment in the penitentiary for ten years.

No question is presented as to the sufficiency of the evidence to support a conviction. A short summary of some of it should suffice for the purpose of this opinion.

Two young women confederates of defendant testified that they rode with defendant in his automobile from Montgomery to Auburn, where they stole merchandise from the' Diane Shop there which they brought to the automobile of defendant and turned over to him. They testified that defendant planned the larceny in his discussions with them on the trip from Montgomery to Auburn. According to them, after they had turned the merchandise over to defendant, he took it inside the store. There was evidence from employees of the store that defendant brought the merchandise to the store and attempted to obtain a refund for the purchase price, which he was unable to obtain as he did not have a sales slip therefor. The store is located in the Village Mall, in Auburn, but close to the boundary line between Auburn and Opelika. Opelika and Auburn police cooperated in apprehending defendant at the Village Mall in his automobile, from which they took the merchandise, after they had apprehended the two young women in another store at the Village Mall.

Officer Dan Donnelly of the Auburn Police Department testified that he answered a call in connection with the incident, went to the Village Mall and there found Opelika officers and defendant at defendant’s car. The officers in searching the automobile for the stolen merchandise, and finding it, also found a notebook with entries as to items and value at several stores at Village Mall, Sears, Murphy’s, Wools-worth, Diana and Gayfer’s. As they were looking at the book, defendant said, “You mean that crazy b_wrote down every place we went?” The question was asked by defendant before he had been advised of his rights (Miranda). Upon being cross-examined, the witness said:

“I didn’t tell him we had the book. It was Detective Grant that brought it over there and just opened the door [of the patrol ear into which defendant had been placed] and showed it to him, showed him the page. Opened it up and showed the page and that was when he volunteered the statement.” Officer Grant did not ask defendant any questions. Defendant moved to exclude the testimony as to what defendant said and on appeal insists that the trial court was in error in overruling defendant’s motion.

Appellant insists that, as at the time he was under arrest and had not been advised of his rights, the incriminating statement or question of defendant was presumptively involuntary and evidence thereof was inadmissible.

We agree with appellant’s counsel that defendant was then in custody and that he was entitled to an explanation of his rights [Miranda] before being interrogated by the officers as to the alleged crime. We do not agree that he made an involuntary statement. There may be some tendency in the evidence to indicate that defendant was shown the notebook in such a way as to constitute a custodial interrogation of him, but the circumstances do not support the conclusion that the trial court was in error in its determination that what defendant said was voluntary. In this connection, it is to be noted, that defendant based his motion to exclude on the ground “that proper foundation has not been laid as to whether or not the defendant was already under arrest or whether or not he Was already under interrogation.” The trial court stated that it wouldn’t make any difference whether he was under arrest or not “if the statement was voluntary and the officer said he didn’t ask him any questions, voluntary statement.” At the time the statement was admitted in evidence, all of the circumstances indicated that it was a voluntary remark in the form of a question. Never on the trial was it contended by defendant that it was involuntary, that it resulted from the equivalent of interrogation by the officers. Insofar as we can tell, that point was first raised on appeal after a review of the transcript of the testimony, including particularly the testimony listed on cross-examination of Officer Donnelly as quoted above, which constitutes the part of the testimony most favorable to defendant on the subject.

The trial court doubtless considered the above quoted testimony, including the conclusion to which no objection was made that defendant “volunteered the statement,” and all of the other evidence in connection with the question asked by defendant, in determining that the remark of defendant was voluntary, that is, that it was not induced by conduct of the officers in the way of a custodial interrogation of defendant, in verbal form or otherwise. Counsel has shown commendable resourcefulness in making the point that the showing of the book to defendant was the equivalent of a custodial interrogation, but the failure to make such a contention on the trial strengthens our belief that the court was justified in its determination that it was a voluntary remark. It would be beyond the letter and the spirit of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, to hold that the trial court was in error in overruling defendant’s motion to exclude from the evidence the question asked by defendant.

The only other question raised by appellant is as to the action of the court in overruling a motion for the “Court to order the production of the federal rap sheet, that is, the FBI report on” the two confederates of defendant, one of whom was about to testify at the time the motion was made. Counsel for defendant informed the court that he needed the report “to effectively conduct my cross-examination and attempt to ask them questions as to whether or not they have been convicted of a crime involving moral turpitude.” Counsel for the State informed the court that he didn’t have the documents and that “if there are other crimes on her record, I don’t know about it.” It was not contended that the State had the records, counsel for defendant stating, “Well, the District Attorney’s office can ask the FBI for her record.” A motion to produce must be timely presented. The trial court should not be put in error for denying a motion to produce that which would call for a delay in, or interruption of a trial, in order to determine whether a particular document exists or can be found. Powers v. State, 49 Ala.App. 690, 275 So.2d 369.

Our search of the record reveals no error prejudicial to defendant. The judgment appealed from should be affirmed.

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

AFFIRMED.

All the Judges concur.