author: CATES, Presiding Judge.

text:
    Gayle August HUDSON v. STATE.
    3 Div. 384.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Rehearing Denied Dec. 9, 1975.

      Charles Tom Payne, Montgomery, for appellant.
    No brief from the State.
   CATES, Presiding Judge.

Hudson, convicted of assault with intent to murder with a sentence of twenty years in the penitentiary, brings this appeal.

On the night of August 11, 1974, Hudson stopped Leon Vinson to ask for directions to get from North Court Street in Montgomery to Interstate Highway 85-North. Vinson told Hudson, who was accompanied by another man and a woman, to follow his car, that he was going that way.

After the two cars had gone some distance, Hudson blinked his lights and honked his horn. Vinson stopped; Hudson walked up to his car, presented a gun and said, “Get out, this is a holdup.”

While Vinson stood beside his car with his hands in the air an off-duty Montgomery police officer, Charles Hamilton, drove up. Seeing Vinson’s plight, he stopped and told the trio, “This is the police.” One of the two men manoeuvered into the darkness in such a way that Hamilton got caught in the beams of his car’s headlights. Then the other man — Hudson—fired at him. The first shot (which went into his chest) knocked Hamilton to the ground. The second hit him in the leg.

Hamilton returned the shots and Hudson was hit in the hand.

In the course of Hamilton’s testimony we find:

“Q Were you taken to a hospital ?
“A No, sir. I went, but I wasn’t taken.
“Q How did you get to the hospital?
“MR. PAYNE: Your Honor, I object to that.
“THE COURT: Overruled.
“MR. PAYNE: The question of how he got to the hosptal is irrelevant. It is without the scope of the Indictment.
“THE COURT: Well, the charge is assault with intent to murder, and his condition has a lot to do with it. Go ahead.
“Q How did you get to the hospital, Charlie ?
“A I drove to the hospital.
“Q You drove yourself?
“A Yes, sir.
(R. 63)
and
“MR. PAYNE: Your Honor, the testimony that is coming out has no purpose other than for the purpose of inflaming the minds of the Jurors. That is exactly the purpose of this testimony and I object to it strenuously.
“THE COURT: Overruled. * * *”

(R. 64)

The detailed evidence of Hamilton was a recital of how he had gone to a gate of Gunter Air Force Base, inexplicably was denied help, and had to drive himself, with one lung filling with blood, to Jackson Hospital where he finally got medical attention.

I

On appeal counsel contends that the circuit court erroneously denied his motion for a change of venue because of newspaper and television publicity as to Officer Hamilton having been chosen Police Officer of the Year by the Montgomery Exchange Club in February, 1975.

Trial was had February 27, 1975, more than six months after Hamilton was shot. Under Mathis v. State, 52 Ala.App. 668, 296 So.2d 755; Mathis v. State, 52 Ala.App. 674, 296 So.2d 760 and Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 we find no error. See Bloodworth, J., Mathis v. State, 292 Ala. 372, 296 So.2d 764.

II

We do not have the benefit of a brief from the State because the Attorney General has moved us to remand this cause-for determination of a Youthful Offender petition which was filed in the trial court, but not acted on according to the record certified to us by the circuit clerk. Since under T. 15, § 389 we perceive reversible error, the Youthful Offender matter can be taken up aliud examen.

III

Jury trials require screening of evidence by the trial judge. This screening is confined to admissibility, not weight: the test being whether the inquiry seeks facts throwing light on the transaction. Nelms v. Steiner Bros., 113 Ala. 562, 22 So. 435 (Brickell, C. J.). Undue multiplication of issues is to be guarded against as tending to divert the minds of the jurors from the main issue. See Stone, J., in Mattison, 55 Ala. 224.

In a criminal case the rule of relevance is more strictly applied than it is in civil trials. Pressley v. State, 18 Ala.App. 40, 88 So. 291; Browning v. State, 31 Ala.App. 137, 13 So.2d 54; Wilbanks v. State, 42 Ala.App. 39, 151 So.2d 741.

The Alabama statutory crime of assault with intent to murder embraces the animus of the common law crime of murder, i. e., the killing of a rational (i. e., human) being with malice aforethought. Code 1940, T. 14, § 38. Simpson v. State, 59 Ala. 1; Johnson v. State, 42 Ala.App. 511, 169 So.2d 773. Thus, in assault with intent to murder, the State need not burden itself with proving all the mental elements of statutory first degree murder.

Judge Harwood has written:

“ * * * the facts to be looked to as important in determining this intent to take life, an essential element in the offense * * *, are the character of the assault, the use or lack of a deadly weapon, and the presence or absence of excusing or palliating circumstances, [citing cases].” — Bowen v. State, 32 Ala.App. 357, 359, 26 So.2d 205, 206

Thus, in Brown v. State, 142 Ala. 287, 38 So. 268, the duration of the confinement of the assaulted party was held material on intent (vel non) to kill. Beck v. State, 240 Ala. 19, 197 So. 43.

In these cases the extent of the victim’s wound is an admissible enquiry because testimony thereabout may shed light on the severity of the alleged attack. Anno. 87 A.L.R.2d 926; Bryant v. State, 31 Ala.App. 355, 17 So.2d 427.

The testimony of Officer Hamilton as to his going to the gate of Gunter Air Force Base and having to drive himself to Jackson Hospital in nowise came within the scope of res gestae as shown in Stuart v. State, 244 Ala. 434, 14 So.2d 147, and Guntharp v. State, 54 Ala.App. 363, 308 So.2d 722. Nor do we consider that this proof related to the infliction or gravity of the wound, other than to show remarkable stamina and will to live on the part of Officer Hamilton.

In this case we consider that the opinion in Phillips v. State, 161 Ala. 60, 49 So. 794 (per Sayre, J.) is controlling. We quote in part:

“Over similar and well-timed objections the court allowed the surgeon to testify that he had taken Melton to Atlanta, Ga., for treatment. The fact here testified to had no tendency to prove any circumstance of the shooting. The character of Melton’s wound was a relevant fact, and perfectly well demonstrated by undisputed testimony. Possibly the conduct of the surgeon in taking him to Atlanta afforded some ground for the inference that he considered the wound so serious as to require treatment in Atlanta. But as evidence it stood upon no better footing than would a verbal declaration, made at the same point of time and to the same effect. If the declaration by conduct tended in any degree to show the character of Melton’s wound, it was speculative and remote. It does not appear that in the circumstances in which it was made there was any guaranty of trustworthiness, or any element of spontaneity. It did not spring naturally and immediately from the infliction of the wound. On the other hand, it had a tendency to excite sympathy for Melton and prejudice against the defendant, and was likely to be misused and overestimated by the jury. The ruling was reversible error.” (Italics added.) — 161 Ala. at 64, 65, 49 So. at 796

This testimony, with its Kafkaesque bureaucratic bumbling to frustrate binding the wounds of a man who had been set upon by thieves, could only have prejudiced the jury against the appellant as the prime cause of Hamilton’s misery. But it sheds no light on the issues framed by the plea of not guilty and the indictment.

IV

The court below allowed the appellant to file (for aught that appears in absentia) a written waiver of arraignment with a plea of not guilty and not guilty by reason of insanity. Such a plea waives all special pleas, e. g., misnomer, and other pleas in abatement. See Carlisle v. State, 22 Ala.App. 255, 114 So. 475; McGee, Ala.Crim.Practice, p. 123 et seq.; Ala.Dig., Crim.Law, ^279.

The general rule, in the absence of statute or rule, is that a defendant must personally plead to an indictment. Waiver is recognized where the strict Common Law order of proof is not insisted on by the trial court. See discussion in Brinks v. State, 44 Ala.App. 601, 217 So.2d 813, where appellant appeared in person and waived arraignment. Headley v. State, 51 Ala.App. 148, 283 So.2d 458, was based on personal appearance.

The waiver of personal appearance in court at arraignment without a corollary leave to file all preliminary pleas is reversible error.

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

Reversed and remanded.

All the Judges concur, except HARRIS, J., who concurs in the result.

      . Brown v. State, supra, is, we think, erroneously cited in Anno. 87 A.L.R.2d 926 § 3(d) for the admissibility of the permanent effects of the wound. Spurting v. State, 29 Ala.App. 73, 191 So. 919, approved admissibility of a bullet being still in the victim’s body.
      In Claypoole v. Commonwealth, (Ky.) 337 S.W.2d 30, 87 A.L.R.2d 923, the Court of Appeals seemingly overruled Gambrell v. Commonwealth, 282 Ky. 620, 139 S.W.2d 454. In Glaypoole reversible error was found in the doctor’s testifying, over objection, as to the victim’s future ability to walk and engage in manual labor. This ruling seems to comport with the more recent cases elsewhere. People v. Nickopopoulos, 25 Ill.2d 451, 185 N.E.2d 209; Fowler v. State, 171 Tex.Cr.R. 600, 352 S.W.2d 838; [overruled in part Levell v. State (Tex.Cr.App.) 453 S.W.2d 831 — robbery with firearms.]

      . “The acts, conduct, and demeanor of the injured person at the time of, or shortly before or after, the offense are a part of the res gestae; but the rule is otherwise as to acts done some time before or after, and which bear no relation to, the offense.” 16 C.J.Criminal Law § 1120, p. 579.
      “The acts and conduct or the condition of the injured person after the offense may be admissible as res gestae, but not if there is no immediate causal relation to the offense or if other essential requirements for res gestae are absent.” 22A O.J.S. Criminal Law § 671, p. 693.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    In re Gayle August HUDSON v. The STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1610.
    Supreme Court of Alabama.
    April 9, 1976.
    Rehearing Denied June 4, 1976.
    William J. Baxley, Atty. Gen., and William A. Davis III, Asst. Atty. Gen., for the State, petitioner.
    Charles Tom Payne, Montgomery, for respondent.
    James H. Evans, Dist. Atty., and John C. Bell, Deputy Dist. Atty., for Fifteenth Judicial Circuit, amicus curiae.
   FAULKNER, Justice.

This is a petition for writ of certiorari to the Court of Criminal Appeals of Alabama, filed by the Attorney General. We grant the writ and reverse the appellate court.

On the night of August 11, 1974, Gayle Hudson stopped Leon Vinson to ask for directions to get from North Court Street, Montgomery, to 1-85 North. Vinson told Hudson, who was accompanied by another man and a woman, to follow him, as he was going that way. After they had travelled some distance, Hudson blinked his lights, and blew his horn. Vinson, thinking Hudson was in trouble, stopped. Hudson walked up to his car, pointed a gun at him, and said, “Get out, this is a holdup.”

While Vinson stood beside his car with his hands up, Officer Hamilton, who was off duty, drove up. He stopped his car and announced that he was a police officer. One of the bandits moved into the darkness in a way that silhouetted Hamilton in the lights of his car. Hudson fired twice at Hamilton. The first bullet penetrated his chest and he fell to the ground. The second hit him in the legs. Meanwhile, Hamilton fired, and Hudson was hit on his hand and shoulder. After the shootout, the bandits escaped, and the wounded officer drove himself to Gunter Air Force Base. There he was denied help. He then drove to Jackson Hospital and received medical attention.

Hudson, along with the other two outlaws, was apprehended by Alabaster policemen. Eventually, they were returned to Montgomery.

Hudson, charged with assault with intent to murder, was permitted by the trial court, with the consent of his counsel, to file a written waiver of arraignment, entering pleas of not guilty, and not guilty by reason of insanity, to the indictment. Hudson was convicted and sentenced to 20 years in the penitentiary, by a Montgomery County jury. His conviction was reversed by the Court of Criminal Appeals on two grounds. First, the court said it was error to permit Hamilton to testify that he drove himself to Gunter Air Base and to the hospital in his wounded condition. Second, the court said a defendant must personally plead to an indictment. Consequently, “waiver of personal appearance in court at arraignment without a corollary leave to file all preliminary pleas in reversible error.”

I

The Evidence Question

The Court of Criminal Appeals, in using the evidence question as a ground of reversal, said “Phillips v. State, 161 Ala. 60, 49 So. 794 (1909) is controlling.” In Phillips the trial court permitted a physician to testify that he had taken an assault victim to Atlanta for treatment. This court reversed, saying the conduct of the doctor in taking the victim to Atlanta did not have any element of spontaneity; that “It did not spring naturally and immediately from the infliction of the wound.”

We are of the opinion Phillips and this case are distinguishable. In Phillips the testimony came from a third person, the doctor, while in this case, the testimony came from the victim. Here, the officer’s conduct did spring naturally and immediately from the wound infliction. It was relevant, material, and was properly admitted by the trial court. Cf. Bryant v. State, 31 Ala.App. 355, 17 So.2d 427 (1944).

II

Written Waiver of Personal Appearance at Arraignment

Section 2, Act No. 314, Acts of Alabama, Special and Regular Sessions, 1973, Vol. 1, p. 444, provides:

“If a defendant in a criminal case pending in a court of competent jurisdiction shall enter a written plea of not guilty at any time prior to the day of his arraignment such plea shall constitute a waiver of his right to have an arraignment at which he is present in person or at which he is represented by an attorney.”

When the Court of Criminal Appeals decided the issue of written waiver of personal appearance at arraignment, the Attorney General did not cite Act No. 314 (relating to counties of not less than 150,-000, nor more than 180,000 inhabitants) to the court. The court, therefore, did not consider the Act in its opinion. The Act was cited in brief, and in argument, to this court by amicus curiae, District Attorney Evans of Montgomery County.

Under authority of the Act, the written waiver was permissible.

The judgment of the Court of Criminal Appeals is reversed and the cause remanded.

REVERSED AND REMANDED.

HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, JONES, SHORES and EMBRY, JJ., concur.


author: PER CURIAM:

text:
    Gayle August HUDSON v. STATE.
    3 Div. 384.
    Court of Criminal Appeals of Alabama.
    June 8, 1976.
   PER CURIAM:

AFFIRMED, without opinion.


author: WRIGHT, Presiding Judge.

text:
    CAVALIER INSURANCE CORPORATION v. Larry HULSEY and the Bank of Sulligent.
    Civ. 554.
    Court of Civil Appeals of Alabama.
    May 12, 1976.
    Rehearing Denied June 2, 1976.

      John “Pete” Self and A1 Tidwell, Hamilton, for appellant.
    Fite, Davis & Fite, Hamilton, for appel-lees.
   WRIGHT, Presiding Judge.

Defendant appeals from a judgment of the trial court holding it liable to plaintiff Hulsey in the sum of $2,268.70.

On November 27, 1967, defendant issued a “Mobile Home Policy” on a 1968 Holiday Mobile Home owned by Joe T. Collins. Plaintiff Hulsey purchased the home from Collins. On February 18, 1969, defendant issued an indorsement consenting to the assignment of interest. Plaintiff Hulsey then paid off the existing mortgage on the home. On December 7, 1973, Hulsey borrowed $3,100.00 from The Bank of Sulli-gent, granting to the bank a security interest in the home and an automobile.

In May 1974, Hulsey traded the trailer to a mobile home dealer, Benefield. According to Hulsey, Benefield agreed to pay off the outstanding indebtedness on the trailer which at that time was approximately $2,500.00. The bank had notice that Benefield was to assume payments, but Hulsey was not released from the note. Shortly after the trade the home was destroyed by fire while at the mobile home lot. After the fire Benefield made three payments on the note, so that the balance as of trial was $2,268.70.

After hearing the evidence the court, sitting without jury, made the following findings :

“After considering the evidence, the Court finds that the insurance policy sued on, and issued by the Defendant was in full force and effect, and the premium was paid, at the time said trailer burned on June 10, 1974.
“The Court further finds that Plaintiff Larry Hulsey owned the insurance policy sued on in this cause on June 10, 1974, that he had an insurable interest in said trailer which was insured by the Defendant in that he was obligated to pay a note, secured by mortgage, which had an unpaid balance of $2,268.70 to The Bank of Sulligent, Alabama, a corporation, at the time of the trial of this cause, and the Court further finds that the loss caused by fire, on June 10, 1974, which among other things the Defendant insured against, was greatly in excess of. the sum of $2,268.70, and that Plaintiff Larry Hulsey gave notice to Defendant of the loss, and Defendant undertook to investigate the loss, and refused to pay the loss, thereby waiving the necessity of filing proof of loss, in the event the same was not in fact filed, which said defense was not raised at the trial of this cause, but was in fact raised by brief following the trial of this cause.”

Defendant’s primary contention on appeal is that the proof showed that Hulsey had no insurable interest in the trailer. Hulsey, it is argued, had traded the trailer and was in the position of a simple contract creditor having a claim against Bene-field if the debt at the bank was not paid.

Regardless of the transfer of title to the trailer to Benefield, Hulsey had a reasonable expectation of pecuniary benefit from the continued existence of the trailer. It was security for his liability on the note. Such liability to the bank continued even after sale. Pacific National Fire Insurance Company v. Watts, 266 Ala. 606, 97 So.2d 797; Lititz M. Ins. Co. v. Barnes, 248 F.2d 241, cert. den. 355 U.S. 931, 78 S.Ct. 411, 2 L.Ed.2d 414.

Defendant next asserts that Hulsey violated the terms of the contract by failing to give notice of loss and by not filing proof of loss within 60 days as required by the policy. This argument fails. First, the adjuster who investigated the loss for defendant testified that he worked the claim August 5, 1974, less than 60 days from the date of loss. The testimony was that the adjuster filled out a claim which was signed by Hulsey. Defendant subsequently denied the claim. Whether investigation, preparation and acceptance of a claim by the adjuster for defendant was sufficient to amount to waiver of the contractual requirement of written proof of loss is not necessary to be decided.

Defendant’s answer presented the defense of lack of an insurable interest by plaintiff. Defendant did not raise failure to furnish proof of loss as a defense. This constituted a waiver of that defense. Quoting from St. Paul Fire & Marine Insurance Co. v. Smith, 280 Ala. 425, 194 So.2d 830:

“Where an insurer refuses to pay a loss because of some alleged defense wholly apart from furnishing proof of loss, it thereby waives the necessity of furnishing such proof. American Automobile Ins. Co. v. English, 266 Ala. 80, 94 So.2d 397; 12 Ala.Dig. Insurance ^559. And we have held that the waiver may be invoked after the period for furnishing proof of loss has elapsed, Rhode Island Ins. Co. v. Holley, 226 Ala. 320, 146 So. 817.”

Under Point IV in brief defendant argues error in the court’s refusal to dismiss The Bank of Sulligent as a plaintiff because the bank was not named as loss payee on the policy. However, the bank held a security interest in the trailer covered by the policy sued on. It looked to the trailer in event of default by Benefield or the insured, Hulsey. The bank claimed an interest relating to the subject of the action (the trailer) and was so situated that the disposition of the action in its absence might as a practical matter have impaired or impeded its ability to protect that interest. Though not a loss payee in the policy, the bank as a secured creditor of Hulsey was a party in interest under Rule 19(a) ARCP.

Defendant contends the court erred in sustaining plaintiffs’ objection to the following question posed to the bank’s vice president: “Even if you were unsuccessful in this suit you would not?” (File suit against Hulsey.) Such question had no relevancy to the issues presented by the suit and called for an improper conclusion.

Defendant’s final contention on appeal concerns the overruling of objections to a question posed by plaintiffs’ attorney to a claims adjuster. There was no error in the court’s ruling as the question was never answered. Orton v. Gay, 285 Ala. 270, 231 So.2d 305.

This case is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    W. L. EDWARDS v. Shirley EDWARDS.
    Civ. 738.
    Court of Civil Appeals of Alabama.
    June 2, 1976.
    Lewis H. Hamner, Roanoke, for appellant.
    James S. Hubbard, Anniston, for ap-pellee.
   HOLMES, Judge.

This is an appeal from a modification of a prior divorce decree. The Circuit Court of Russell County, on petition of appellee-wife, increased the child support payable by appellant-husband from $20 to $75 per month, and altered the visitation provisions of the prior decree. The husband does not contest the trial court’s action regarding visitation privileges, but appeals from the modification of child support payments.

The sole issue before this court is whether the trial court abused its discretion in its modification of child support payments. We find there to be no abuse of discretion, and affirm.

The record reveals the following pertinent facts:

The parties were divorced by a decree of the Circuit Court of Russell County in August of 1971. The husband was awarded custody of the two minor sons of the parties, while the wife was given custody of an infant girl then approximately two months old. The wife was given some $10,000 and various other personal property as alimony in gross, and the husband was ordered to pay $20 per month to the wife as child support for the baby girl. The decree also provided for visitation rights on the part of the wife.

In May of 1975, the wife petitioned the Circuit Court of Russell County for modification of the child support and visitation provisions of the decree. The trial court, after hearing oral testimony, modified the visitation rights of the wife and ordered the husband to pay $75 per month child support, as noted earlier.

The testimony taken at the hearing shows that the wife is employed as a secretary, earning $85 per week. Her only other source of income is the child support payments. Her income is apparently totally absorbed by living expenses for herself and her minor daughter.

The husband is in the egg, cattle, and hog business with his brother. The business owns approximately 18 cattle and 200 hogs, and also includes an egg delivery route. Various items of equipment are owned by the business. Additionally, the husband apparently owns approximately 100 acres of land. He also owns two automobiles. He has remarried and his present wife works. The husband’s income tax returns showed that his income since the divorce has ranged from $10,000 to approximately $3,000. His return for 1971 showed his income at the time of the divorce to be over $4,000.

The proper standard of review in cases of this nature is well stated by our Presiding Judge Wright in Barber v. Barber, 51 Ala.App. 448, 450, 286 So.2d 852, 854, cert. den., 291 Ala. 772, 286 So.2d 857, where we find the following:

“We consider an appeal from a decree of modification rendered by the trial court after hearing ore tenus with the presumption of its correctness. Hammett v. Hammett, 46 Ala.App. 206, 239 So.2d 778. We will reverse such decree only if after considering all of the evidence, we conclude it to be palpably wrong, unjust or contrary to law. Body v. Body, 47 Ala.App. 443, 256 So.2d 184; Butler v. Butler, 274 Ala. 352, 148 So.2d 638; Fultz v. Fultz, 47 Ala.App. 502, 257 So.2d 362.
“The paramount consideration of an equity court in determining the amount of support for minor children is the best interest and welfare of the children, taking into account the ability of the father to pay. The amount to be granted is a matter of discretion with the court and revisable on appeal only for an abuse of such discretion. Featherston v. Featherston, 271 Ala. 238, 123 So.2d 120.”

So viewing, we do not find that the trial court committed error to reversal. While a modification of child support payments may only be based upon a change in circumstances justifying that modification, Snead v. Snead, 279 Ala. 344, 185 So.2d 135, this court, again speaking through our Presiding Judge, stated as follows concerning modification in Jones v. Jones, 53 Ala.App. 309, 311, 299 So.2d 751, 753:

“The increase in age of the two boys since 1968, and the correlative increase in need for support, together with the increase of cost of living due to inflation, is sufficient to constitute a material change of circumstances. We take judicial notice of the increase of cost of living due to inflation. Bearden v. LeMaster, 284 Ala. 588, 226 So.2d 647.”

This principle was subsequently reaffirmed in Howard v. Howard, 53 Ala.App. 426, 301 So.2d 191, and our recently decided case of Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660.

This standard is also dispositive of the instant case. The minor female child is now almost five years old and will soon begin school, which will entail increased expenditures for her maintenance. She is now several years older than the infant she was when the original decree providing for $20 monthly support payments was entered. This increase in age necessitates some degree of increased expense. Furthermore, we judicially note the fact that the buying power of the dollar has noticeably lessened since 1971 due to inflation. See cases cited, supra. Considering these and other previously noted facts, we must hold that a change of circumstances existed which was sufficient to preclude any finding of plain and palpable error in the decree of the trial court.

While able counsel for appellant-husband has filed with this court an excellent and well-argued brief urging reversal, we cannot take such action in this instance. Under the circumstances of this case, to do so would constitute a quantitative judgment on our part that an increase in child support payments from $20 to $75 monthly is excessive. It is not our prerogative to make such a determination, which is within the sound discretion of the trial court as trier of fact. Adherence to the proper function of a reviewing court dictates that we not substitute our judgment for that of the trial court. Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150.

Appellee has petitioned this court for an award of attorney’s fee for representation in this appeal. An award of $250 is hereby granted.

There being no error in the record, the case is due to be affirmed in accordance with the above discussion.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: DeCARLO, Judge.

text:
    Weldon Kay CHAFIN v. STATE.
    6 Div. 854.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Rehearing Denied May 18, 1976.

      N. Daniel Rogers, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for appellee.
   DeCARLO, Judge.

Murder; life.

A grand jury in Jefferson County charged in an indictment that Weldon Kay Chafin unlawfully and with malice aforethought killed Nancy Chafin by choking her with his hands or means otherwise unknown.

An arraignment was conducted with counsel present and appellant pleaded not guilty. Later counsel filed a motion to dismiss the indictment and at that time interposed a demurrer. Each was overruled by the court.

After a four-day trial, the jury returned a guilty verdict. Sentence was pronounced in accordance with the verdict and appellant filed a motion for a new trial. A hearing was held and the motion was overruled.

Appellant is before this court as in indigent and represented by the same counsel who conducted his defense at trial.

On Sunday, August 20, 1972, Nancy Chafin disappeared. Mrs. Lorana M. Clark, Nancy Chafin’s mother, testified she had seen her daughter on the Wednesday before August 20, and had talked with her on the telephone on the next day. Mrs. Clark stated she had not seen her or talked with her since that time.

Weldon Kay Chafin, Jr., the son of Nancy Chafin, stated his parents were divorced and he lived with his mother at 1809 Breckenridge Lane in Forestdale. He last saw her that Sunday at approximately 7:30 a.m. before he left for work.

Around noon he went home for lunch but did not see his mother. While there he received a telephone call for her from his father. He informed him that she was not there and looked for her at the time.

Returning from work that evening, Weldon Chafin, Jr., becamed concerned and telephoned neighbors, including the Adams-es. Eddie Phipps then called and later came to the house. When Jake Adams and his wife arrived, they went to the basement. No evidence of a struggle was found in the house. In fact, the beds were made and Nancy Chafin’s purse was found lying near the sink in the bathroom.

The authorities were called and a missing persons report was issued the following day.

Donald F. Haynes, on August 20, 1972 was employed by the Jefferson County Sheriff’s Department and held the rank of sergeant. He testified that on August 21, 1972 a missing persons report was made concerning Nancy Chafin. That evening Sgt. Haynes spoke with Weldon Chafin, Sr., who said he had not been to his former wife’s house on August 20.

On August 22, Haynes went to Nancy Chafin’s house with the toxicologist, Robert Johnson. They discovered stains on the basement floor near a walk-through door. Scrapings of the stains were sealed in envelopes and given to Johnson. The house was not disarranged and photographs were made of the basement.

Robert B. Johnson was employed in the Birmingham Office of the Department of Toxicology and Criminal Investigation. He testified that on August 22, 1972, he went to the residence of Nancy Chafin with Sgt. Haynes of the Jefferson County Sheriff’s Department. At that time he and Sgt. Haynes discovered some stains on the basement floor. A benzidine test was made on the scrapings of the stains which showed they were blood. However, he could not determine if the stains were human blood. On further questioning, Johnson stated the scrapings from the stains . . . were sent to our headquarters office in Auburn.”

S. L. Roton was employed by the Jefferson County Sheriff’s Department; and on August 22, 1972, he and another officer picked up two envelopes at the State Toxicology Office in Birmingham. He did not know how the envelopes came into possession of the toxicology office in Birmingham, but stated he delivered them to William H. Landrum at the State Toxicology Department in Auburn.

William H. Landrum was employed by the State Department of Toxicology in Auburn as a criminalist and his primary duty was to perform forensic serological analyses. This procedure he explained, involved grouping and testing of dried stains. He testified that on August 22, 1972, at 5:30 P.M., S. L. Roton of the Jefferson County Sheriff’s Department, gave him two envelopes. They were signed by Robert B. Johnson in two places, once across the seal. The envelopes were opened and the contents were analyzed. Over the objection of defense counsel, he stated the stains were human blood but responded on cross-examination, that he could not say it was any specific person’s.

On August 24, 1972, Sgt. Haynes made photographs of some stains and a print found near the door on the wall of the basement. He said these photographs were turned over to Betty Leroy, a fingerprint technician in the Jefferson County Sheriff’s Office. Miss Leroy acknowledged the photographs were given to her. She examined the photograph of the print and stated it “ . . . looked like a palm print . . . but “ . . . decided it was not comparable.”

Barbara Ann Crowe was employed with Weldon Chafin, Sr., at Barnes Freight Line. On the morning of August 21, 1972, she observed scratches on the appellant’s arms; but she had no idea what kind of marks they were. She acknowledged that appellant was employed to handle freight and that she made no comment to him about the scratches. During cross-examination, Mrs. Crowe did not remember the exact day when the marks were observed but thought it was after August 20, 1972. Sgt. Haynes also remembered seeing the marks on appellant’s hands and arms on August 21, 1972.

Jake D. Adams testified that he was a neighbor and a friend of the Chafins and recalled talking with the appellant on either the Wednesday or Thursday before Nancy Chafin’s reported disappearance on August 20, 1972. They were at Barnes Freight Lines in Birmingham at the time and Weldon Chafin, Sr., remarked:

“ . . . ‘Well, Jake, Nancy has finally •done it.’ I said—
“Q. What did you say in response to that?
“A. I asked, I said, ‘what do you mean? What did she do?’ He said, ‘Well, she finally went out on me.’ And I said T don’t know what you mean.’ And he said, ‘Well, she went out on a date.’ And he said, T am not going to stand for that.’ He said that he followed her, he and another guy, and he said T won’t stand for it.’ He said, T will kill her before I see her do it any more.’
“Q. What did you say or do at that time, please, sir?
“A. I told him I said, ‘Weldon’ I said, ‘Ya’ll are divorced’ and I said ‘to me that sounds crazy.’ And that’s all that was said.”

Adams stated that on the Saturday evening before Nancy Chafin disappeared, he saw the appellant driving around the block. Adams said his wife, daughter, and Mrs. Chafin were in the house at the time.

Adams went on to say that he had another conversation with Chafin on the Wednesday or Thursday following August 20, 1972, at Union Envelope Company. The record gives the following account of that conversation:

“A. He asked me had I heard from the boys and he said he appreciated what I had done for the boys. And he asked me had I heard any news concerning the case of Nancy. And I told him that I had heard they found blood at the end of the stair steps that had been wiped up with a cloth and that they had found a handprint and that they should know who done it within a few days because it had been sent off to be analyzed.
“Q. What did he do or what did he say at that time?
“A. At that time he went into a nervous state—
“MR. CORRETTI: We object to that and move that it be excluded.
“THE COURT: Sustain. Exclude it. Disregard it, ladies and gentlemen.
“Q. What did he say? Did he say anything at that time ?
“A. At that time he said ‘that is my handprint. They are coming after me/
“Q. And what did he do after that?
“A. He fell over on the ground. I picked him up under the arms, taken him inside the building and got some water and bathed his face with it.
“Q. Was anything else said after that?
“A. Not of my remembrance.”

Adams also said he learned of Nancy Chafin’s disappearance when Weldon Chafin, Jr., called on Sunday, August 20, 1972. Later he went to the Chafin house with his wife, a deputy and Weldon Chaf-in, Jr.

During cross-examination, Adams admitted selling the Chafins a light tan Buick but denied having any knowledge that it was stolen.

Robert Duncan, who was thirteen years old at the time of the trial, lived across the alley in back of Nancy Chafin’s house on August 20. He testified that between 8:00 and 8:30 that morning, he rode a bicycle down the alley to get the morning paper. On his return home he heard a door slam as he was passing the Chafin house. He “looked” and saw Weldon Chafin, Sr., walking around the edge of the house. Duncan waved, but the appellant continued in the direction of a white Chevrolet Impala automobile. The door on the driver’s side was open at the time but he did not remember whether the engine was running. The witness had seen the appellant driving this car on many occasions.

During cross-examination Duncan said he was about 110 feet away when he saw the appellant and it was only for a "split second.” He said he looked twice, once when he heard the door and then when he waved. Duncan said Chafin was wearing a windbreaker at the time but could have told the grand jury the man was wearing a plaid shirt.

Oscar McDuffie on August 20, lived across the street from the Chafin residence. He testified that around 7:00 A.M. on that Sunday he looked out the window of the front door and saw a gold-looking Buick automobile in the driveway. Later he looked and the Buick was gone and a white Chevrolet was there. When he went out to get the paper at approximately 8:30 A.M. the Chevrolet was gone.

McDuffie stated he had seen the Buick at the Chafin house on a number of acca-sions and had on many occasions seen Weldon Chafin, Sr., with the white Chevrolet. The witness went on to say he saw no one entering or leaving the house between 7:00 A.M. and 12:30 P.M., but added he had gone to church at 9:30 A.M. When he returned between 12:00 and 12:30 P.M., no vehicles were there.

On cross-examination, McDuffie stated that after the Chafins were divorced he saw Jake Adams and Nancy Chafin alone in the basement of her house. McDuffie said Nancy Chafin was having furnace trouble and he had gone over at her request.

On January 24, 1974, while hunting in a wooded area about 100 yards off Roberta Road in the Republic area of Jefferson County, Harry Frank Day found a human skull and some other remains. They were protruding from the ground from what appeared to be a shallow grave. In the same area near where the grave was found an abandoned cemetery was situated.

Day left the scene and went to a nearby house and called the Sheriff’s Department. When the deputies arrived, the skull was turned over to Deputy Cochran and Day directed them to the site where he had found the remains.

Deputy Clyde Amberson testified that on January 24, 1974, he met with Deputy Cochran and was given a human skull, which was turned over to Robert Johnson, the State Toxicologist.

On that day, Johnson went to the wooded area off Roberta Road. Capt. Williams of the sheriff’s office was in charge of the investigation, and Sgt. Haynes, along with several other officers were present. At that time a human skull and some other remains were turned over to him.

On further questioning, Johnson testified he had conducted examinations of human remains, although he was not a medical doctor or a pathologist. It was his testimony that he had occasion to observe and examine human skeletal remains between 25 and 30 times, but acknowledged that most of his learning, concerning examinations of skeletal remains, was through reading instead of study under someone. Also he had performed about 1600 autopsies, but they were not medical.

During voir dire examination, Johnson stated a post mortem examination was made but that an autopsy was impossible due to the lack of tissue. Beside the skull, a majority of the skeleton was found including the arms and pelvis. The hyoid bone was not found. He explained this was a small bone located in the neck and the breaking of it was consistent with manual strangulation.

On January 31, 1974, Johnson carried the skull to Dr. Mills, a dentist in Birmingham. An x-ray was made of the lower right jaw bone. This x-ray was compared with one made of Nancy Chafin, a patient Dr. Mills had treated on August 11, 1972.

Dr. John C. Mills testified he was a licensed dentist in Alabama and a graduate of the University of Alabama School of Dentistry. His practice was primarily in the field of endodonics or root canal therapy-

On August 11, 1972, he saw a patient, Nancy Chafin, who was referred to him by another dentist. He recalled seeing Mrs. Chafin on only one occasion and it was at this time an x-ray was made of her lower right bicuspid molar area. The lower right first molar contained a cavity on top of the tooth at the rear, which was excavated. After finding the nerve was not exposed, a temporary filling was placed in the cavity. She was then directed to return to her own dentist.

Robert Johnson of the State Toxicology Department came to see him on January 31, 1974, and brought a human skull. He requested an x-ray be made and at the same time, gave him the name Chafin, which belonged to one of his patients. An x-ray was made of the same area of the skull as that area of Nancy Chafin x-rayed on August 11, 1972. It was Dr. Mills’ opinion that the x-rays were of the same person.

On cross-examination, Dr. Mills agreed that two basic dissimilarities were visible in the x-rays. The first was that the x-ray taken of the skull was darker, and second, a tooth was missing from the x-ray taken on January 31, 1974, that was present in the x-ray made of Mancy Chafin on August 11, 1972.

Dr. Mills stated that he did not consult any other dentist or oral surgeon, even though those dissimilarities were shown. The dentist acknowledged he did not record the angulation of either x-ray, nor did he note the exposure, developing, or fixing times on either occasion. He explained that although these were important factors to be considered, the superficial appearance of an x-ray could be changed but not the x-ray itself.

The dentist said it was his standard procedure to use the same exposure time for making x-rays of the area in question. He also explained that the darker appearance of the x-ray taken on January 31, 1974, could be due to the fact that penetration was deeper when no tissue was present, whereas, in the x-ray taken on August 11, 1972, tissue was present. Further, that new developing solution could produce a darker x-ray.

In making his determination, Dr. Mills stated he did not consider percentages and mathematical probabilities. His opinion was based on a comparison of the two x-rays, which revealed: the restoration in the lower right second molar had a very distinct outline, the bone pattern, and the outline of the first bicuspid present in each x-ray. He went on to explain that what he was “. . . calling the lower right first and second molar, could in actuality be the lower right second and third molar.”

Upon completion of the State’s case, the appellant made a motion to exclude the evidence on the ground that the corpus de-licti was not proved. The motion was denied and counsel began appellant’s defense by recalling Weldon Chafin, Jr., for further cross-examination.

He testified that on the afternoon of August 20, Jake Adams and Mrs. Adams came to his mother’s house and the three of them went to the basement in search of his mother.

After his mother’s disappearance he lived in Tennessee with maternal' grandmother and while there he had in his possession the light tan Buick that Jake Adams sold his mother. On his return to Birmingham some two months later, Jake Adams said he did not know the Buick was stolen and was sorry he had sold it to Nancy Chafin.

James Earl Smith was employed by the Jefferson County Sheriff’s Department and had been attached to the United Narcotic Details Operation for about three years.' He testified that in connection with his work with U.N.D.O., he became familiar with Jake Adams and had "... been by his house.”

Steve Chafin was the sixteen-year-old son of Nancy and Weldon Chafin. On August 20, 1972 he lived with his paternal grandmother, his father, and brother, Jerry. On the Saturday night before the disappearance, he slept with his father. He testified his father was there when he awakened at 8:00 A. M., and did not leave the house between 8:00 A. M. and 9:30 A. M. He stated his father, grandmother, bother Jerry, and a neighbor attended Sunday school that morning. They all left at the same time and his father was driving a blue Malibu Chevrolet automobile. He also said his father remained for church after Sunday school.

During cross-examination he did not remember telling Sgt. Haynes that he had not seen his father that morning except at church.

He recalled that some two months before his mother’s disappearance, he and his father had ridden on motorcycles down the little dirt road where the skeletal remains were found. However, he did not remember talking with Randy at his grandmother’s house in Tennessee and saying, “‘we rode down the road, that dirt road where the skeleton was found and my Father stopped and said, T have seen all I want to see, turn around.’ ”

Dr. O. J. Statts was a qualified physician and dentist, licensed in Alabama, and had for the past fifteen years been employed by the University of Alabama Medical Center as Chief of the Division of Anatomic Pathology. He testified that he had made numerous autopsies and dental identifications and had testified on behalf of the State as an expert in making dental identifications. Dr. Statts explained the procedure used in making dental identifications and the importance of exposure and angulation in making x-rays. He stated that a comparison of x-rays of only one tooth, as was allegedly done with Nancy Chafin, could not qualify as a proper dental identification because of the law of probabilities in such identifications. Further, he had conducted an examination of the x-rays and stated that because of the fillings and a missing tooth, two substantial dissimilarities existed which prevented him from saying the x-rays were of the same person.

He concluded that based on his examination of State’s exhibits 1 and 2, he could not-as a pathologist and as a dentist identify, or say, that the x-rays of the teeth set forth in State’s exhibits 7 and 2 were of the same person. However, on cross-examination, Dr. Statts remarked, “I can not make a statement one way or the other about those X-rays being either the supposedly deceased or not.”

Dr. Harwell G. Davis, Jr., the Director of Laboratories and Chief Pathologist of the Lloyd Nolan Hospital in Fairfield, testified he had performed over 4000 autopsies. He stated that, from an examination of a human skull alone, a pathologist could not determine with any degree of medical certainty whether a skull was of a male or a female.

Mrs. Merle Chafin, the mother of Weldon Chafin, Sr., lived at 814 Fourth Avenue West in Birmingham on August 20, 1972. At that time, appellant, her grandsons, and a roomer, Robert Hammonds, lived there. Mrs. Chafin testified that on the Sunday morning in question she awoke at approximately 4:45 and observed Weldon Chafin, Sr. sleeping on a “daveno bed” in the living room. About 8:30 A. M. he was awakened and they all left for the First Nazarene Church at approximately 9:30 A. M.

The appellant drove his blue Malibu Chevrolet and the grandsons rode their motorcycles. She followed in her own car, accompanied by a neighbor. After Sunday school and church, they returned home and had lunch. Mrs. Chafin stated that at no time did her son leave her presence on the afternoon of August 20, 1972.

Robert Hammonds roomed at Mrs. Merle Chafin’s home on August 20, 1972, and on that Sunday was awakened by Weldon Chafin, Sr., at approximately 8:00 A. M. He testified that the Chafins left for church about 9:30 A. M. and the appellant did not leave the house at any time between 8:00 and 9:30 that morning.

During cross-examination Hammonds recalled having a conversation with Sgt. Haynes concerning the photographs of a woman he could not identify. He did not remember telling the Sergeant: “I did not see Weldon Chafin that morning. I did not see.any of them that morning.”

Jerry Chafin was the seventeen-year-old son of Nancy and Weldon Chafin, Sr., and on August 20, 1972, lived with his grandmother, Mrs. Merle Chafin. He testified that his father did not leave the house from the time he got up at 8:30 A. M., until 9:30 A. M., on August 20. At that time they all went to Sunday school. After church they returned home and did not leave until that afternoon when they went to the “Hickory Hut” to eat.

Five other witnesses were called and they each testified they had seen Weldon Chafin, Sr. at the First Nazarene Church on Sunday, August 20, 1972.

Weldon Chafin, Sr. stated that at time of his wife’s disappearance, they were divorced and he was living with his mother and two sons at 814 Fourth Avenue West. Chafin said he had gone to Sunday school that Sunday with his mother and two sons, and was not at his former wife’s house.

He denied driving around his wife’s house on Saturday before her disappearance, and making any statements to which Jake Adams testified.

Chafin also denied telling Drayton James, his wife’s attorney, “I will give her the divorce but she will be sorry . . . I’ll take care of this situation out of court.” Drayton James was called by the State as a rebuttal witness and said that the appellant had in fact made those statements.

Lavena Sartain was a member of the First Church of the Nazarene on Gray-mont Avenue in Birmingham. On Sunday, August 20, 1972, she was the secretary of the Sunday school class. Weldon Chafin, Sr., and his mother were members of that class. She stated the class began at 9:45 A. M., but the appellant did not arrive until about five or ten minutes after ten on that Sunday. Mrs. Sartain recalled that appellant’s mother was present in the class and remembered seeing- two motorcycles belonging to his sons, parked outside.

She testified that appellant had not attended the class in a number of Sundays and it could have been as long as two or three months prior to August 20, 1972.

Sgt. Haynes in rebuttal, stated Robert Hammonds told him on August 25, 1972, that he did not see any of the Chafins on the morning of Sunday, August 20.

John Mathew Parker testified on rebuttal he was employed by Union Envelope Company and during the latter part of August, 1972, he witnessed a conversation between Jake Adams and the appellant. He stated the two were in the parking area, and he saw Jake Adams bring the appellant into the office and splash water in his face.

I

Appellant contends the trial court erred in not granting his motion to exclude or his subsequent motion for a new trial. He argues that the conviction was based purely on circumstantial evidence and that it was insufficient because it did not exclude to a moral certainty every other reasonable hypothesis than that of his guilt.

Our courts have long recognized that a defendant’s guilt may be established by circumstantial evidence as well as by direct evidence. Lowery v. State, 38 Ala.App. 505, 88 So.2d 854; Payne v. State, 48 Ala.App. 401, 265 So.2d 185. However, the trial judge must first determine whether there is testimony sufficient to make a prima facia case that the offense was committed. McDowell v. State, 238 Ala. 101, 189 So. 183. If a reasonable inference is deducible of the existence of a prima facia case, then the court must submit the question of sufficiency tending to support that inference to the jury. Martin v. State, 125 Ala. 64, 28 So. 92; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690. Where the inferences to be drawn are susceptible to more than one conclusion then they, like the weight of the evidence and the credibility of witnesses are questions for the jury. Willcutt v. State, 284 Ala. 547, 226 So.2d 328.

It is also asserted that the corpus delicti was not established. Counsel argues, among other things, that the death of the person alleged to have been killed was not proved. He insists circumstantial evidence alone did not sufficiently prove the identity of the deceased, or the identity of the accused as her killer.

The corpus delicti may be shown by circumstantial evidence. In Johnson v. State, 247 Ala. 271, 24 So.2d 17, the principle was enunciated in the following language :

“The rule is well settled in this jurisdiction that circumstantial evidence may afford satisfactory proof of the corpus de-licti and if facts are presented from which the jury may reasonably infer the crime has been committed, the question must be submitted to the jury, and other evidence tending to implicate the accused is thereby rendered admissible.” (Citations omitted).

The finding of the skeletal remains of the alleged victim, along with the dental identification of Dr. Mills, who treated and x-rayed Nancy Chafin, were circumstances pointing to her demise. They were sufficient, if believed by the jury to establish the identity of the remains and the fact of her death.

Further, the jury could reasonably infer from the circumstances in evidence that the appellant had the opportunity and motive to commit the act charged, and conclude that Nancy Chafin lost her life at his hands.

It is also noteworthy that the court, in its oral charge, instructed the jury as to the measure of proof necessary in this language :

“Now, ladies and gentlemen, a person charged with a felony should not be convicted unless the evidence excludes to a moral certainty every reasonable hypothesis but that of the defendant’s 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 the defendant is innocent. The test of the sufficiency of circumstantial evidence is whether the circumstances as proved produce a moral conviction to the exclusion of all reasonable doubt of the guilt of the accused whether they are incapable of explanation upon any reasonable hypothesis consistent with his innocence. Now as I stated to you before the burden of proof is on the State to convince you from the evidence beyond a reasonable doubt and to a moral certainty of the guilt of the defendant and this is true whether the evidence be direct, circumstantial or both

Based upon the foregoing facts, and the principles of law cited, this court is of the opinion that there was no error in refusing the motion to exclude, or in denying the motion for a new trial on the ground the evidence was insufficient.

II

Appellant maintains the fact a person is a practicing dentist does not qualify him to give expert testimony concerning dental identification. Counsel argues that although Dr. Mills was a licensed dentist with years of experience, he was unaware of the fundamental aspects of the procedures involved in making dental identifications and his testimony should have been excluded.

Whether a witness is shown to possess the requisite qualifications is a preliminary question addressed to the trial judge’s discretion. King v. State, 266 Ala. 232, 95 So.2d 816; Desilvey v. State, 245 Ala. 163, 16 So.2d 183. Any objection to an expert witness on the ground that he lacked knowledge goes to the weight rather than to the admissibility of his testimony. Kitchens v. State, 31 Ala.App. 239, 14 So. 2d 739.

Dr. Mills saw Nancy Chafin as a referral patient nine days before her disappearance. Her lower right bicuspid molar area was x-rayed and a temporary filling was placed in the lower right molar. Eighteen months later Dr. Mills x-rayed the same area on the human skull brought to him by Johnson. After observing the two x-rays, it was his opinion they were x-rays of the same person.

Dr. Mills stated he made thousands of x-rays each year and standard procedures were used in making them. In making the x-rays in question, the dentist said the long cone technique was employed and the same machine was used. He said the angulation, exposure, fixing and developing times were the same for each.

Based upon Dr. Mills’ personal observation and a treatment of the alleged victim, Nancy Chafin, and of the x-rays he personally made of her and the one he made of the human skull, we believe he was qualified to make the dental identification.

In view of the foregoing and after an examination of: Gustafson, G., Forensic Odontology, (1966), and Cameron/Sims, Forensic Dentistry, (1974) cited to us by appellant, we are unwilling to say the court abused its discretion in admitting the testimony of this witness.

Ill

It is appellant’s contention that the proper predicate was not established for the admission of testimony concerning scrapings of the stains taken from the alleged victim’s house. He maintains a complete chain of custody was not shown and argues the State failed to account for the stains from the time they were taken from the Chafin house, until the time they were delivered to Landrum in Auburn. Counsel insists that since a necessary link in the chain of evidence was missing, Landrum’s testimony concerning the analysis of the stains was completely prejudicial and erroneously permitted.

Our examination of the record indicates that scrapings of the stains were taken from the Chafin basement on August 22, 1972, by Robert Johnson, the toxicologist in Birmingham and Sgt. Haynes. A benzi-dine test was made by Johnson at that time and he concluded the scrapings were blood. Afterwards, the scrapings were sealed in two envelopes by Sgt. Haynes and turned over to Johnson, who stated they were sent to the State Headquarters of Toxicology in Auburn.

On the same day, August 22, Deputy Ro-ton picked the envelopes up at the toxicologist’s office in Birmingham and delivered them to Landrum in Auburn. It was Lan-drum’s testimony that he received two envelopes bearing the name, Robert B. Johnson, from Deputy Roton at 5:30 P. M. on August 22, 1972.

It is true that Sgt. Haynes gave the envelopes to Johnson, the toxicologist, and Johnson did not testify that he delivered them to Deputy Roton. However, it is also true that Johnson stated the scrapings were sent to Auburn and that Deputy Ro-ton picked the envelopes up at the toxicologist’s office the same day that the toxicologist received them from Sgt. Haynes.

In our judgment the chain of custody of the envelopes was sufficient to establish a jury question as to the accuracy of their identification. Their admission was proper. Green v. State, 42 Ala.App. 439, 167 So.2d 694; McClary v. State, 51 Ala.App. 30, 282 So.2d 379; Oury v. State, 53 Ala.App. 240, 298 So.2d 661.

We have searched the record and did not find any error.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    In re Weldon Kay CHAFIN v. STATE. Ex parte Weldon Kay Chafin.
    SC 1873.
    Supreme Court of Alabama.
    June 18, 1976.
    Corretti, Newsom & Rogers and Samuel Maples, Birmingham, for petitioner.
    None for the State.
   BEATTY, Justice.

Petition of Weldon Kay Chafin for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Chafin v. State, Ala.Cr.App., 57 Ala.App. —, 333 So.2d 599.

Writ denied.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: PER CURIAM. DeCARLO, Judge

text:
    Roosevelt WILLIAMS v. STATE.
    8 Div. 697.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.
    Douglas V. Hale and Lowell H. Becraft, Jr., Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   PER CURIAM.

Forgery; sentence: eight years imprisonment.

The appellant was convicted of forging a check in the amount of $45.00 dated January 19, 1975. That date was a Sunday. The evidence establishes that the check was likewise cashed on Sunday.

At the end of the State’s case in chief, counsel for appellant moved to exclude the State’s evidence on the ground that the State had not made out a prima facie case of forgery. Counsel argued that the State’s evidence only established that the appellant presented the check, but failed to prove that he wrote or made the check. The court denied the motion, and the case went to the jury.

I

On appeal, the appellant is represented by different counsel than in the trial court. Appellant contends that a check dated on Sunday is void on its face and thus will not support an indictment.

The identical question was before this Court in Gooch v. State, 33 Ala.App. 221, 31 So.2d 779 (1947). This Court was unable to decide the issue and certified the question to the Supreme Court of Alabama. The effect of the Supreme Court decision was that a check given on Sunday is void and cannot be made the subject of forgery. Gooch v. State, 249 Ala. 477, 31 So.2d 776 (1947). The Gooch decision is still binding. The essence of that decision is set out in pertinent part as follows :

“Therefore an indictment in charging forgery should show that the instrument (check) was one the forgery of which would be an offense under the law. And if the writing is such ‘ “as to leave an apparent uncertainty in law whether it is valid or not, a simple charge of forging it fraudulently, etc., does not show an offense; but the indictment must set out such extrinsic facts as will enable the court to see that, if it were genuine, it would be valid.” . . . .’ .
Hence, a forged check, appearing on its face to have been given for one of the permitted transactions enumerated in the statute or to have been delivered on a weekday, would support an indictment for forgery, without averring extrinsic facts showing its legal efficacy.
On the other hand, if such facts do not appear on the face of such a Sunday-dated instrument it would not support an indictment for forgery unless there are alleged circumstances extrinsic to the paper itself showing it is not void, such as that it was given for one of the permissive purposes enumerated in the statute or that while it bore date as of Sunday, as a matter of fact, it was forged or uttered on a secular day. ...” (Citations omitted.)

The check in the instant Case shows on its face to have been executed on a Sunday. The State did not rebut that presumption, and in fact, the State’s own evidence establishes that the check was cashed on a Sunday. Likewise, neither the indictment, nor the instrument set out therein, “alleged circumstances extrinsic to the paper itself showing it is not void.”

This Court is bound by the Supreme Court’s decision in Gooch, supra. Williams v. State, 37 Ala.App. 572, 72 So.2d 858 (1954); Griffin v. State, 47 Ala.App. 278, 253 So.2d 337 (1970).

II

Appellant’s challenge to the validity of the instrument and thus to the indictment pursuant to Title 9, § 21, Code of Alabama 1940, is before us for the first time on appeal. Although appellant’s trial counsel moved to exclude the State’s evidence, the motion was not based upon the above Code section, but rather upon the State’s failure to prove that the appellant wrote the check in question.

This' Court is required by law to search each record on appeal for errors which are prejudicial to the appellant. Such review does not generally include questions which were not properly raised. Title 15, § 389, Code of Alabama 1940, and annotations thereto. In Brown v. State, 32 Ala.App. 246, 24 So.2d 450 (1946), this Court held that where an indictment fails to state any offense, such defect must be noticed despite the absence of an attack on it in the trial court. In Fendley v. State, 49 Ala.App. 393, 272 So.2d 600 (1973), this Court held:

“A count which does not state a criminal offense cannot sustain a conviction even though there is a failure to bring the matter to the attention of the trial judge and there is a further failure to bring the matter to the attention of the appellate court.”

Judge Harris, writing for this Court, in Nelson v. State, 50 Ala.App. 285, 278 So.2d 734 (1973), recognized that there existed two lines of cases holding contrary to each other on this point. In that opinion he stated:

“There is a line of cases holding that where an indictment fails to state any offense such defect must be noticed despite the absence of any attack on it in the court below. . . .
“There is also another line of cases holding that where deficiency in an indictment was not challenged by demurrer or questioned by appropriate plea in the lower court the indictment will not be reviewed on appeal. . . .
“At first blush it would seem that the law on this subject is in a sad state of flux. Be that as it may, these are rules of state practice and procedure. Otherwise stated, these are judge-made decisions. When rules of state practice and procedure conflict with the due process clause of the Fourteenth Amendment, they must yield to the commandments of that Amendment. In the words of the Supreme Court of the United States, ‘Conviction upon a charge not made would be sheer denial of due process.’ DeJonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278.” (Citations omitted.)

Had the instant indictment been merely voidable, and subject to demurrer, then the failure of the appellant to demur thereto in the trial court would have prevented our review of this question. Gaines v. State, 146 Ala. 16, 41 So. 865 (1906). However, pursuant to Gooch, supra, the instrument is void by statute and its forgery constitutes no offense, thus the indictment is void.

It is therefore ordered that the judgment below be reversed and judgment rendered discharging the defendant from further custody in this proceeding. Title 15, § 390, Code of Alabama 1940.

Reversed and rendered.

All the Judges concur, except De-CARLO, J., dissents.

DeCARLO, Judge

(dissenting).

It is clear that the Sunday-dated check in question would have been the subject of forgery if it had been given for one of the permitted exceptions set out in T. 9, § 21, Code of Alabama, 1940, Recompiled 1958, or if it had been published on a secular day. See Aders v. State, 21 Ala.App. 41, 104 So. 882.

Just as much harm has been done by a forged instrument of a Sunday-date given on Sunday to the grocery store for goods as in the case where it is executed and delivered on Sunday for the payment of transmitting a telegram.

The purchaser of the Sunday-dated check had been defrauded to the same extent in the case where it was executed and delivered on Sunday, as in the case where it was executed and delivered on a weekday.

Something is inherently wrong with the logic which makes it no crime to forge a check in the former case, and makes it an offense in the latter.

The Gooch case, supra, is the paramount authority on this question, but I submit it is retrogressive because it places an unnecessary barrier in the path of criminal prosecutions.

It affords every potential forger utilizing Sunday-dated instruments a sanctuary against punishment.

I have recorded this dissent in an earnest hope that the Supreme Court of Alabama will re-examine Gooch, supra, and rectify this impediment in our law. Or, that the legislature of Alabama will see the necessity of re-writing the Sunday contracts statute, and remove this haven of refuge for forgers.


author: SHORES, Justice. JONES, Justice

text:
    In re Roosevelt WILLIAMS v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1714.
    Supreme Court of Alabama.
    June 4, 1976.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
    Douglas V. Hale and Lowell H. Becraft, Jr., Huntsville, for respondent.
   SHORES, Justice.

Roosevelt Williams was convicted of forgery in the Madison Circuit Court and was sentenced to eight years in the penitentiary. He appealed to the Court of Criminal Appeals which reversed his conviction on grounds raised by Williams for the first time on appeal. The State filed a petition for writ of certiorari, which this court granted.

The Court of Criminal Appeals held that the check, which was forged, was dated on a Sunday, and was therefore void under the express provisions of Title 9, § 21, Code, which provides:

“All contracts made on Sunday, unless for the advancement of religion, or in the execution, or for the performance of some work of charity, or in case of necessity, or contracts for carrying passengers or perishable freight or transmissions of telegrams or for the performance of any duty authorized or required by law to be done on Sunday are void.” (Emphasis Supplied)

It has been held in this jurisdiction, and the rule is the general rule in this country, that a check is a contract. Deal v. Atlantic Coast Line R. Co., 225 Ala. 533, 144 So. 81 (1932). Thus, a check made and uttered on a Sunday is, by virtue of the quoted statute, void.

It is also universally held that an instrument void on its face cannot be the subject of an indictment for forgery. Hobbs v. State, 75 Ala. 1 (1883); Fomby v. State, 87 Ala. 36, 6 So. 271 (1888); Wm. L. Burdick, Law of Crime 547, Vol. 2, § 662a (1946).

In Gooch v. State, 249 Ala. 477, 31 So. 2d 776 (1947), this court answered questions certified to it by the Court of Appeals and held that a check given on Sunday, unless for one of the permitted purposes under Title 9, § 21, supra, was void and could not be the subject of forgery. This answer was compelled by that statute. By its terms, it makes all contracts void except those specifically excepted in the statute.

The State now urges the overruling of Gooch, supra. That is not the solution to what is obviously a problem. The problem stems from the statute. It makes checks issued on Sunday void. A void instrument cannot be the basis of an indictment for forgery. To hold that a forged check issued on Sunday is not void, but that all others are void, defies all reason, and ignores the plain meaning of Title 9, § 21. The State’s argument would lead to the incongruous conclusion that all checks executed and issued on Sunday (excluding the transactions permitted by the statute) are void unless they are forged.

We agree that a haven for criminals has been created, but it has been created by the legislature. The constitutionality of the Sunday statute has not been raised and, therefore, we do not consider that question. Ex parte Thaggard, 276 Ala. 117, 159 So. 2d 820 (1963). Obviously, it is repugnant to logic and unfair to the citizens of this state to immunize a forger from prosecution when the evil deed takes place on Sunday. But the fault lies with Title 9, § 21, and we join those members of the Court of Criminal Appeals in urging the legislature to remedy this indefensible situation. Reviewing a somewhat similar statute, the Supreme Court of New York, in Twin Fair Distributors Corp. v. Cosgrove, 380 N.Y.S.2d 933, 938 (N.Y.Misc. 1976), recently said such statutes are “. . .a vestige of another age, devoid of rhyme, reason or symmetry . . .”

Since the check in the instant case was dated and issued on Sunday, and the indictment contained none of the exceptions set out in Title 9, § 21, it will not support a conviction.

Of course, a trial under an indictment that is so defective that no valid conviction can be rendered will not support a plea of former jeopardy. Barber v. State, 151 Ala. 56, 43 So. 808 (1907); Sims v. State, 146 Ala. 109, 41 So. 413 (1906). Therefore, the defendant may be reindicted if the new indictment avers extrinsic facts sufficient to cure the defect herein discussed. But, the present indictment being fatally defective, the Court of Criminal Appeals must be affirmed.

AFFIRMED.

HEFLIN, C. J., and MERRILL and MADDOX, JJ., concur.

JONES, J., concurs specially.

JONES, Justice

(concurring specially):

I concur in the holding of reversal of the conviction, affirming the Court of Criminal Appeals; but I would extend the opinion and use this case as the vehicle for giving notice that this statute will not in the future be used as a refuge for forgers. This statute, in its total context as well as in the limited context of this case, is so patently unconstitutional that I would not await any longer corrective action by the legislature; nor, because of practical considerations, would I hold the State too strictly to the general rule that the issue of constitutionality must be raised at the trial level to be reviewable. Where a statute contravenes organic law and its futility is demonstrated by its application, as here, this Court’s duty to declare such a statute void should not be circumscribed by procedural technicality.


author: TYSON, Judge.

text:
    Hugh Stanley GIDDENS, alias v. STATE.
    5 Div. 325.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.

      Sanford D. Bishop, Jr., Columbus, Ga., for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged the appellant with the felonious assault upon an officer while in the performance of his duties, contrary to law. The jury found the appellant “guilty as charged” and the trial court set sentence at twenty years imprisonment in the penitentiary.

The tendency of the State’s evidence was that appellant and several other men were observed stealing bricks from a construction site in Auburn during the late afternoon and early evening hours of July 21, 1975, that an argument broke out and that appellant chased the others off with a gun and continued loading the car with bricks. The owner of the bricks, Bozie Work, observed all of this from a nearby yard and called the police. Sergeant Jack Walton, of the Auburn Police Department, answered the call, drove to the construction site and parked. As Walton was getting out of the patrol car, a charging appellant screamed, “What do you want over here, mother-fucker?” and fired four or five shots at the Sergeant with a Marlin 30-30 lever action rifle. Walton subsequently wounded and subdued the appellant.

In support of his plea of not guilty and not guilty by reason of insanity, appellant called several witnesses, each of whom testified that appellant had suffered various mental problems as a result of his tour of duty in Viet Nam, said problems causing him to act “strangely” on occasion. In particular, Marie Porter, a Psychiatrist from the V. A. Hospital in Tuskegee, testified that in her opinion appellant was “suffering from acute schizophrenic episode” on the day in question.

At the conclusion of the trial court’s oral charge, which covered in some detail the defense of insanity, defense counsel announced, “Satisfied, Your Honor.”

I

Appellant contends that his motion to quash the venire should have been granted in view of the State’s admission that the jury lists did not include 19 and 20 year olds.

We note that at the time of appellant’s trial in October of 1975, Act No. 77, Regular Session 1975, had been in effect less than three months. Furthermore, the Attorney General’s opinion which was introduced by appellant at the hearing on his motion to quash and which construed Act No. 77 as in fact lowering the minimum age for jury service in this state to 19 was dated August 28, 1975. Moreover, while there is testimony in the record which might indicate otherwise, Charles Edward Lawler, a member of the Lee County Jury Commission, testified that the Commission had begun compiling a list of 19 and 20 year olds but that it would “take 6 months, probably” to complete the job.

Viewed in this light, we do not feel error was here shown. Many courts have of necessity recognized an allowable administrative lag time between the effective dates of laws lowering the minimum age for jury service and the additions of the newly eligible jurors to the jury lists. United States v. Osborne, 8 Cir., 482 F.2d 1354; United States v. Olson, 8 Cir., 473 F.2d 686; United States v. Nakaladski, 5 Cir., 481 F.2d 289; United States v. Kuhn, 5 Cir., 441 F.2d 179. See also United States v. Gooding, 5 Cir., 473 F.2d 425 where the lag time was three years, four months.

Though not necessary to a resolution of this appeal, we would only point out a majority of those courts confronted with the issue, have held that “young persons” per se do not constitute an identifiable group for purposes of determining whether or no a particular jury system reflects the requisite cross-section of the community. United States v. Briggs, D.C., 366 F.Supp. 1356. (21-29 years of age); Connell v. State, 56 Ala.App. 43, 318 So.2d 782 (18-25 years of age); Williamson v. State, 52 Ala.App. 617, 296 So.2d 241 (under the age of 35). See also Hurley v. State, Court of Criminal Appeals, 57 Ala.App. —, 335 So.2d 183, and cases cited therein. See also Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed. 2d 590.

II

Alternatively, appellant asserts that his motion to quash was due to have been granted inasmuch as he alleged that blacks were systematically excluded from the venire for trial. The only evidence submitted by appellant in support of this was to the effect that while Beat 6 of Lee County (Auburn) was 27.76% black, the jury roll for that beat was only 8.69% black. Significantly, there was no evidence offered that this discrepancy resulted from any purposeful discrimination, as is required. Nor is there any evidence that different standards of qualification were applied by the Commissioners to the black community. Further, there was no attempt to demonstrate that the same proportion of blacks qualified under the standards being administered by the Commissioners. In short, the appellants have offered no evidence to indicate that prospective jurors to fill the jury roll were selected on the basis of anything other than their individual qualifications. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.

In White v. State, 48 Ala.App. 111, 262 So.2d 313, we stated:

“The law is clear that a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his own race on the jury which tries him, nor on the jury roll from which grand and petit jurors are selected. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839.”

Moreover, in Butler v. State, 285 Ala. 387, 232 So.2d 631, our Supreme Court pointed out:

“The burden of proof is on the person attacking selection procedure to show ‘the existence of purposeful discrimination’ by the exclusion of Negroes on account of race from jury participation . Purposeful discrimination may not be assumed or merely asserted. It must be proved.” (Citations omitted)

Both this Court and the Supreme Court of this State have on several occasions affirmed trial courts’ rulings on this identical issue, often in situations where the defendant had travelled much farther towards meeting his burden of proving purposeful discrimination than has appellant in this cause. Error is not here shown. Butler, supra; White, supra; Acoff v. State, 50 Ala.App. 206, 278 So.2d 210; Bryant v. State, 49 Ala.App. 359, 272 So.2d 286; Thigpen v. State, 49 Ala. App. 233, 270 So.2d 666; Johnson v. State, 57 Ala.App. —, 335 So.2d 663; Johnny Harris v. State, 1 Div. 623, January 20, 1976.

Ill

Prior to trial, appellant filed with the trial court a “motion for discovery and to compel disclosure,” said motion reading in part as follows:

“Now comes the defendant in the above-named and stated case and moves the Court for an Order compelling the State to disclose and, in the case of a tangible item, to produce for inspection and copying by the defendant, all evidence in the possession and control of the State, or others, when the evidence may be favorable to defendant and material to the issue of guilt or punishment, or could reasonably weaken or affect any evidence proposed to be introduced against defendant, or is relevant to the subject matter of the indictment, or in any manner may aid defendant in the ascertainment of the truth.”

As authority for this motion appellant cites us to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Suffice it to say that Brady, supra, in our opinion did not envision the type “fishing expedition” requested by appellant. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666; Sanders v. State, 278 Ala. 453, 179 So.2d 35.

Here, at the time of appellant’s motion, the prosecution had already furnished him with a copy of his own statement made to investigating officers.

Furthermore, in reviewing the record, we found no testimony whatsoever describing or detailing any evidence withheld by the State “favorable to the defendant.” As observed by Judge Cates in Strange v. State, 43 Ala.App. 599, 197 So.2d 437:

“When the defendant, in effect, asks for the State District Attorney to produce a document, he should at least establish that this State official has such document or a copy thereof in his possession before the trial court will be put in error.”

We have carefully reviewed this record as required by law and find no error therein. This cause is therefore due to be and the same is hereby

AFFIRMED.

All the Judges concur.

      . Title 14, Section 374(20) Code of Alabama 1940, as amended 1967.


author: BOOKOUT, Judge.

text:
    Albert C. WASHINGTON v. STATE.
    2 Div. 158.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.

      Chestnut, Sanders & Sanders, Selma, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault and battery; sentence: six months.

The appellant s sole contention on appeal is that the trial court erred in denying his motions to quash the venire and the indictment. The basis of the motions was the alleged systematic exclusion of blacks from petit and grand jury service in Marengo County.

Racial discrimination in the jury selection process is a very difficult proposition to prove. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Johnson v. State, (1976), 57 Ala.App. -, 335 So.2d 663. The jury selection process is presumed valid and free from error, in the absence of proof to the contrary. Nixon v. State, 51 Ala.App. 439, 286 So.2d 314, reversed 291 Ala. 657, 286 So.2d 315, on remand 51 Ala.App. 705, 286 So.2d 317 (1973). Mere allegations contained in motions to quash the venire and indictment do not constitute proof. See: Lipscromb v. State, 53 Ala.App. 647, 303 So.2d 148 (1974) and cases therein cited.

In the present case, the trial court denied the appellant’s motions on the ground that the motions were untimely. The trial court then gave the appellant an opportunity to present evidence applicable to his motions. The appellant’s counsel replied that he did not have any testimony to present.

If the appellant could have proved racial discrimination in the jury selection process, he should have done so at trial. Nixon, supra. We find no error on the part of the trial judge in overruling the motions where no evidence is presented thereon.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ„ concur.


text:
    Frank SCOTT v. STATE.
    8 Div. 806.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.

      Jere C. Trent, and William A. Owens, Jr., Athens, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: thirty-five years.

The appellant was indicted and convicted for the murder of his brother, Paul Scott. The alleged murder took place in the evening on March 3, 1975. There was substantial evidence presented at trial from which the jury could conclude that the appellant willfully shot and killed Paul Scott with a twelve gauge shotgun. The appellant testified that the shooting was accidental.

There are three arguments presented by the appellant on appeal which deserve consideration.

I

The appellant made two incriminating statements immediately after the shooting occurred which were admitted into evidence at trial. The appellant contends that he was too intoxicated to have made intelligent, knowing and voluntary inculpatory statements. If this contention is correct, the statements should have been excluded at trial.

A reading of the trial transcript reveals that the appellant was drunk at the time of the shooting and at the time he made the two incriminating statements. The rule is well established that intoxication, short of mania or such an impairment of the will and mind as to make the person unconscious of the meaning of his words, will not render a statement or confession inadmissible. Anderson v. State, 45 Ala.App. 653, 235 So.2d 902 (1969); Woods v. State, 54 Ala.App. 591, 310 So.2d 891 (1975).

Intoxication which would affect the voluntariness of a statement is primarily a question of fact which first addresses itself to the trial judge to determine admissibility and later to be submitted to the jury for whatever consideration it may deem appropriate. There was ample evidence, even though conflicting, from which the trial judge could conclude that the appellant was not intoxicated to the extent of mania. Judge Cates in Woods, supra, stated the proper function of the jury in situations such as we have in the present case as follows:

“When this problem of incremental evaluation of alcoholic influence occurs in homicides the Law throws its hands skyward and leaves the judgment to its Johannes Factotum, the jury.” (Footnote omitted.)

The jury’s judgment was not against the weight of the evidence.

On March 4, 1975, the appellant made an incriminating statement to a police officer. The statement was given after the appropriate Miranda warnings were issued, and the statement was used against the appellant at trial. The statement was made after the appellant had slept in the woods for an entire night. The temperature had been subfreezing, and the appellant had sobered up considerably. We hold that there was sufficient evidence from which the trial court could find that all these statements were made voluntarily.

II

Ordinarily malice may be inferred from the use of a deadly weapon. The appellant contends that his degree of intoxication was so excessive as to render him incapable of forming the design to take life and thereby precludes a finding of malice essential to murder in the second degree. Ivory v. State, 237 Ala. 344, 186 So. 460 (1939).

Mere drunkenness, voluntarily produced, is never a defense against a criminal charge unless it is so extreme as to render impossible some mental condition which is an essential element of the criminal act. The degree of intoxication necessary to negate the element of malice must be so excessive as to paralyze the mental faculties and render the appellant incapable of forming or entertaining the design to take life. Walker v. State, 91 Ala. 76, 9 So. 87 (1891); Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969).

As stated earlier, the problem of incremental evaluation of alcoholic influence is a question of fact for the jury. We hold that the jury’s finding regarding the element of malice was not against the weight of the evidence.

III

On direct examination, the appellant admitted that he had previously been convicted of cattle rustling. The prosecuting at- ■ torney, in his closing argument, walked toward the appellant and in a loud and boisterous voice, called the appellant a cattle rustler. The appellant objected to this action, and the trial court sustained the objection. The appellant did not move for a mistrial.

There is no uniform legal standard against which such action can be measured. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968). The fact that the appellant had been convicted of cattle rustling was already in evidence. The ruling of the trial court on appellant’s objection was not adverse to appellant and is not subject to review unless the remark was so prejudicial that it could not be cured by proper ruling of the trial court. Anderson v. State, 209 Ala. 36, 95 So. 171 (1922).

We do not find the statement of the prosecutor to be so highly prejudicial that it was incapable of being cured by the ruling of the trial judge. We have often cited Arant v. State, 232 Ala. 275, 167 So. 540 (1936) for the proposition that, “a trial is a legal battle, a combat in a sense, and not a parlor social affair.”

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.


text:
    William Hoyt LIGHT v. STATE.
    8 Div. 798.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    E. Charles Ogden, III, Guntersville, for appellant.
    William J. Baxley, Atty. Gen. and Milton C. Davis, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found appellant guilty of an assault with intent to murder, as charged in an indictment. The court imposed a sentence of imprisonment in the penitentiary for ten years. Defendant had pleaded not guilty and not guilty by reason of insanity.

At the time of defendant’s arraignment, his attorney, appointed by the court on the basis of defendant’s indigency, who represented defendant on the preliminary hearing in County Court as his court-appointed counsel and who continues to represent him as such on this appeal, stated to the court that there was a serious question as to defendant’s mental competency to stand trial and reserved the right to raise the issue as to mental competency to stand trial. It ws understood among the court, counsel for the State, defendant and defendant’s counsel that the case would be set for trial about three months after the arraignment, but in the meantime defendant’s counsel would consider further the question of defendant’s mental competency to stand trial and file an appropriate petition on the subject, if he determined it advisable. On the day set for trial of the case, defendant’s attorney filed a “Petition for Continuance and Psychiatric Evaluation and Treatment of Defendant.” Upon call of the case for trial, there was an announced agreement between the State and defendant and his counsel that the case be continued to a date certain, approximately a month thereafter, for a hearing to determine whether defendant was mentally competent to stand trial. The matter was thoroughly discussed among the court, counsel for the State, defendant and defendant’s counsel, in open court, and it appears that defendant voluntarily and understandingly, with the approval of his counsel, waived any right to a jury to determine his competency, and agreed for the hearing thereon to be conducted by the court without a jury, it being understood that he was not waiving his right to a trial by jury on the issue as to his guilt. A written waiver was executed by defendant and his attorney.

The arraignment and the other proceedings thus far narrated were conducted by a judge of the circuit other than the judge who thereafter conducted the hearing as to defendant’s competency to stand trial and who presided over the trial of the case and pronounced sentence.

An uncle and an aunt of defendant testified in his behalf. Defendant also testified. He was questioned by counsel for defendant and counsel for the State and by the court. The officer who arrested defendant testified for the State.

After the hearing was concluded and a short recess was taken, the court ordered that “the defendant be tried for the offense as charged.” The trial commenced the next day.

Both on the trial and on the hearing as to defendant’s competency to stand trial, there was considerable evidence of abnormal behavior on the part of defendant. Defendant was a boarder in the home of his cousin and his cousin’s wife. There was an understanding among them that he was to pay for his board, but he had become delinquent. The evidence showed that he had been taking gasoline from a motor vehicle of his cousin and using it in defendant’s automobile. There was an argument about this between defendant and his cousin’s wife, and in the course of the argument defendant shot his cousin’s wife, the victim named in the indictment. It was a lengthy trial, but there was very little conflict in the evidence as to what actually occurred. The peculiarities of defendant were detailed on the trial of the case as well as on the hearing as to his mental competency to stand trial. Although a plea of insanity had been interposed, defendant’s counsel stated to the court that he did not request instructions to the jury as to the special plea of not guilty by reason of insanity. No physician or related professional testified éither on the trial or on the pretrial hearing.

The evidence was ample to support the verdict of the jury. No contention is made to the contrary. It is obvious that on the trial defendant was striving for a verdict of guilty of assault and battery instead of a verdict of guilty of assault with intent to murder. The court aptly and amply charged the jury as to the lesser included offense of an assault and battery, and under the instruction of the court the jury could have well found the defendant guilty of an assault and battery unless all jurors were convinced by the evidence beyond a reasonable doubt that defendant was guilty of an assault with intent to murder.

Appellant’s sole contention on this appeal is that the trial court “erred in holding that the defendant had the present mental ability to stand trial at the time of his trial.” Appellant relies upon Dusky v. U. S., 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824, and Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, to the effect that a conviction while one is not legally competent to stand trial constitutes a violation of defendant’s constitutional right to due process and that state procedures must be adequate to protect a defendant’s right in this respect.

Appellant does not question the adequacy of the procedure followed to determine defendant’s mental competency to stand trial. It was in accordance with Code of Alabama 1940, Title 15, Section 426, except in the particular that therein it is provided that a jury shall make the determination whether defendant is competent. The validity of the waiver of the jury trial by defendant is not questioned. Questioned only is the correctness of the court’s determination.

Evidence tending to show abnormality of mind largely revolved around his idiosyncrasies with reference to what and when he ate, as to which there was no substantial dispute in the evidence. He testified that he had a special diet, that he ate snacks of popcorn, potato chips and cookies and that he only ate a normal meal about once a month. He said that normal food made him feel doped and dulled his senses greatly. He testified that some invisible force seems to control the actions of man. He also said he knew the world was flat, although he had been taught in school that it was round. In appellant’s brief, his testimony as to- his ideas of death and divinity are characterized as disjointed and incoherent, and we do not disagree. His uncle considered it strange and unusual that defendant often slept in his car. Although only thirty-one years of age, he was drawing Social Security disability payments on account of his inability to work by reason of his diet. Defendant said he had been in a mental institution for three months in 1966.

On the hearing as to defendant’s mental competency and on the trial of the case, defendant referred to the incident for which he was tried as an accident. He indicated that he regretted shooting the victim, that he was concerned about her condition, but he insisted that he couldn’t help it.

There was no evidence presented on the hearing or on the trial to the effect that at the time of trial his mental state was inferior to what it had ever been or what it would ever be in the future. The trial court asked him several questions relative to his understanding of the seriousness of the charge against him, the chances and consequences of a conviction, what his rights were as to testifying, and his responses indicated strongly that his case from his standpoint would not be jeopardized or injured in any way by any mental inferiority.

In Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556, it was said:

“One of the first cases in this country dealing with the problem of competency to stand trial is Freeman v. People, 4 Denio. 9, 47 Am.Dec. 216 (N.Y.1847). After discussing the common law theory that no madman should be tried for an offense, the court went on to state that:
“ ‘ . . . A person arraigned for a crime, is capable of understanding the nature and object of the proceedings going on against him; if he rightly comprehends his own condition in ref- . erence to such proceedings, and can conduct his defense in a rational manner, he is, for the purpose of being tried, to be deemed sane, although on some other subjects his mind may be deranged or unsound. ’ ”

It was stated further in Edgerson:

“We adopt the majority view and hold that a criminal defendant must have an understanding of the proceedings against him and an ability to communicate with his attorney in preparing his defense before he may be proceeded against criminally.”

The trial judge did not expressly state that he determined the defendant was mentally competent to stand trial, but the clear implication is that he did, and there is no contention by appellant to- the contrary. We are of the opinion that the determination was correct. The earnest and commendable insistence by appellant’s counsel to the contrary calls for extraordinary circumspection, which we have attempted to give the matter.

In reviewing the record for possible error, we have been impressed by the fairness of the trial and by the able representation of defendant by counsel. We find 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. The judgment below is hereby

AFFIRMED.

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