text:
    Shirley Jane HAFLEY v. STATE.
    7 Div. 458.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.
    Rehearing Denied Jan. 4, 1977.
    Wilson, Propst & Isom, Gordon F. Bailey, Jr., Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Under an indictment for murder in the first degree appellant was convicted of murder in the second degree and the jury fixed her punishment at ten years imprisonment in the penitentiary. She was represented at arraignment and trial by court-appointed counsel. She pleaded not guilty and not guilty by reason of insanity. She was furnished a free transcript and trial counsel was appointed to represent her on appeal.

The evidence is undisputed that in the early morning hours on March 30, 1975, appellant shot and killed Danny Woods in a drinking place known as “Ann’s Place” in the City limits of Anniston, Alabama.

Mrs. Roberts testified that around 2:00 or 2:30 o’clock on Easter morning she recalled that there were a number of people in her establishment including appellant and the deceased; that the deceased came into her place on Friday afternoon and stayed the entire weekend except that he left the place for about an hour on Saturday. Appellant arrived at Ann’s Place on Saturday night around 9:00. From that time until the shooting occurred both appellant and the deceased were drinking beer. The deceased was playing cards with several men while appellant was seated at a table behind the deceased. During this whole period of time Mrs. Roberts observed appellant and the deceased having a brief conversation in which appellant asked the deceased if he was mad at her because she had married Mac Siskey, to which the deceased replied, “No, that is not none of my business.” Appellant got up and moved in front of the deceased and reached in her pocketbook and pulled a pistol. After she had the pistol in her hand she said “Danny”, and shot him one time in the chest. After being shot Danny Woods took a few steps toward the front door and fell. Several of the men present put Woods in an automobile to carry him to the hospital but he died before they got him to the hospital.

After the shooting Mrs. Roberts and several men rushed over to appellant and took the pistol from her and asked her why she shot Woods and she said, “You know why — I shot him because of the man I love — Mac Siskey.”

Several persons present at the time of the shooting testified that they did not see a weapon of any kind on the deceased and that he did not threaten or make an overt act toward appellant before she pulled the pistol and shot him. One State witness testified that he was asleep on a bowling machine and was awakened by a shot. He jumped up and hollered, “What is going on,” and saw Woods walking towards the door and he said, “Gene, she shot me.” This witness heard Mrs. Roberts ask appellant, “What did you shoot him for?” and appellant replied, “Because of what he done to the man I love.”

Mr. Ralph Phillips, Calhoun County Coroner, was called and he went to the emergency room at the Regional Medical Center to examine Woods. He said that Woods was dead when he arrived at the hospital. He carried the body to the mortuary at the State Department of Toxicology at Auburn. He drew some samples of blood from the body of the deceased and personally delivered them to Mr. John M. Case at the State laboratory at Jacksonville. Mr. Case testified that he conducted a laboratory test on the blood samples which revealed 0.08 percent of ethyl alcohol in the blood of the deceased.

Dr. James M. Buttram, a toxicologist for the State of Alabama, testified that he performed an autopsy and determined that the cause of death was massive internal hemorrhage or loss of blood as a result of a gunshot wound to the right chest.

Appellant did not testify in her behalf. The thrust of her entire defense was based upon insanity. Appellant’s brother testified that she had attempted to commit suicide on several occasions by cutting her wrists but not deep enough to require sutures. That she had taken an overdose of pills on two occasions, had previously shot herself, and had taken rat poisoning.

Dr. Sam Crawford, a psychiatrist, testified that he first saw appellant on May 31, 1975, because she had taken rat poisoning and that the ingestion of rat poisoning could be fatal if treatment was not administered immediately. She was turned over to him for treatment and consultation after she had recovered from the ingestion of rat poisoning. Dr. Crawford’s analysis was that appellant had a ten year history of depression, multiple suicidal attempts with self-inflicted wounds, and a very intense desire to die. He characterized her problem as “manic depressive.” Dr. Crawford stated this is a chemical abnormality which occurs in some individuals and “usually these people have no control over what they are doing to themselves or someone else.”

The State’s objections to Dr. Crawford’s being allowed to answer if this shooting was an irresistible impulse, and to whether appellant knew right from wrong, were sustained. On further interrogation, however, the doctor was permitted to testify that a patient with appellant’s problems may commit acts of irresistible impulse and may not know right from wrong.

From the record:
“Q. All right, sir. It is your testimony that a patient with a diseased mind, as you have testified to, such as Shirley Haf-ley, as a matter of fact, may, from time to time, commit an act because of an irresistible impulse, and may not, as a matter of fact, even know or be able to consider what’s right and what’s wrong; is that right?”
“A. That’s what I feel; yes.”

The doctor went on to testify that in his opinion appellant was in command of her capabilities enough to assist in her defense and deal appropriately with what was happening.

We have carefully read and considered Dr. Crawford’s testimony and taken in the light most favorable to appellant it was his opinion that appellant had mental problems which he termed “manic depressive.”

This falls far short of clearly establishing that at the time of the commission of the crime appellant was afflicted with a diseased mind to the extent that (1) she did not know right from wrong as applied to the particular act in question, or (2) if she did have such knowledge, she, nevertheless, by reason of the duress of such mental disease had so far lost the power to select the right and to avoid doing the act in question as that her free agency was at the time destroyed, and (3) that, at the same time, the crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely — which is the legal test. Parsons v. State, 81 Ala. 577, 2 So. 854; Barbour v. State, 262 Ala. 297, 78 So.2d 328.

Appellant introduced into evidence, without objection, the medical records of appellant at Bryce Hospital and the Mental Health Center in Anniston. We have studied these records with consuming interest and nowhere in these records does it appear that appellant was psychotic at any time— either on admission or at the time the crime was committed. The records at Bryce Hospital do show that appellant was addicted to alcohol and to an excessive degree.

Title 15, Section 422, Code of Alabama 1940, provides that every person over fourteen years of age charged with a crime is presumed to be responsible for his acts and the burden of proving that he or she is not responsible is cast upon the accused and must be proved to the reasonable satisfaction of the jury. Hockenberry v. State, 246 Ala. 369, 20 So.2d 533; Reedy v. State, 246 Ala. 363, 20 So.2d 528; Lokos v. State, 278 Ala. 586, 179 So.2d 714.

The rule is well settled that opinion evidence of medical experts, though uncon-tradicted, is not sufficient to take the question of insanity from the jury, but must be weighed like other evidence. It is within the province of the jury to reject such evidence in toto. Carr v. State, 43 Ala.App. 642, 198 So.2d 791; Luster v. State, 45 Ala.App. 19, 221 So.2d 695; Hockenberry v. State, supra.

During the Court’s oral charge to the jury he made the following comment:

“I notice one case, I believe it was written by Justice Stone, the Opinion in the Supreme Court of Alabama, that says that, ‘Even a vagrant or tramp is entitled to the same justice that the most respected citizen would have.’ That is not a comment by me as to any of these witnesses or parties litigating here yesterday and today; it is a quotation from Chief Justice Stone indicating that no matter the worth or importance or lack of it in the final results of the case justice is involved and that that makes it important. If a jury takes a light view of cases and continues to do so, actually we would have to change the system in some way; possibly have a bench of three judges, or make some other change other than to make the county itself responsible for the kind of justice that the citizens of the county receive. So, I very earnestly urge you to give this case every consideration.”

At the conclusion of the oral charge the trial judge asked if there were any exceptions. Appellant’s counsel requested that the jury be excluded from the courtroom. This request was granted and after the jury left the courtroom the following occurred:

“MR. WILSON: I want to except to the statement made by Your Honor prior to the actual charge in which you said that there were four possible verdicts, one was life, one was one year, and one was acquittal by reason of not guilty and one was acquittal by reason of not guilty because of insanity, because the statement infers — maybe you cleared it up by a later statement — that there is no difference between one year and life. The second one I want to object to is the statement that Your Honor made preliminary to the charge in which you said these words, or these words in effect, in which you were admonishing the Jury and in effect you said these words, ‘Do not take a light view of this case because if this system fails we would have to go to a different system, possibly one in which three judges would make decisions, or some other means of determining guilt of a party.’ My reason for excepting to that, that places undue burden — it is a coercive statement to the Jury which may or may not, but certainly may have the effect of making them feel that they have a pressure to bring back a guilty verdict.
“THE COURT: Well, you may be exactly right; but all I can say about that is I can’t think of any greater punishment than to be reversed for saying that.
“MR. WILSON: That doesn’t help me and my client much.
“THE COURT: What is done is done. I mean that type of thing, if it does create a pressure, one-sided pressure, then I don’t see any way it can be eradicated. It would have to go on to the next court.”

We cannot fathom the reason for the trial judge charging the jury as he did. Only the judge knows his reasons for doing so. We cannot even speculate on this matter. However, we do not perceive that appellant was harmed or prejudiced in any manner. This was a cold blooded murder without any mitigating or extenuating circumstances. She shot and killed a defenseless man who, according to the evidence, had given her no reason to resort to the use of a weapon and gun him down while he was sitting at a table playing a game of cards. It seems to us that if the jury had been prejudiced by the Court’s remarks they would have not shown so much leniency in fixing her punishment for such an unprovoked and murderous assault upon the deceased.

Be that as it may, we believe this case is controlled by Cox v. State, 280 Ala. 318, 193 So.2d 759, wherein the Court said:

“Defendant takes the position in his brief that he cannot waive the right to have the jury correctly charged. We disagree. The orderly conduct of a trial requires some sort of rule of procedure. The rule should afford the party a fair opportunity to take exception to the charge if the party desire to do so. To aid the administration of justice, the exception should be taken at a time when the court may correct the error in the charge.
“In the instant case, defendant and his counsel were present in court. They heard the oral charge. Defendant then had the burden and the opportunity to state defendant’s objections to the court before the jury retired to determine their verdict. So far as we are advised, that rule has always been followed in this state. To allow defendant to complain of error in the charge at a later time would give him the opportunity to be aware of the court’s error, but to remain silent, speculate on a favorable verdict, and in the event of an unfavorable verdict to obtain reversal on a ground which defendant deliberately chose not to raise by exception taken at the appointed time.” (Emphasis supplied)

We have carefully searched the record for errors injuriously affecting the substantiál rights of appellant and have found none.

The judgment of conviction is affirmed.

AFFIRMED.

All the judges concur, except CATES, P. J., who concurs in the result.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte Shirley Jane HAFLEY.
    SC 2303.
    Supreme Court of Alabama.
    Feb. 18, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Ed LAW v. STATE.
    8 Div. 812.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.
    Rehearing Denied Jan. 4, 1977.
    Edward W. Doggett, Florence, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Violation of Alabama Uniform Controlled Substances Act; sentence: two years.

The appellant was indicted in October 1974 for selling marijuana to an undercover agent. He learned that the police were looking for him in the fall of 1975, and he was arrested in December 1975. He was tried and convicted in January 1976 at which time he denied having ever met the undercover agent who testified against him.

I

The appellant contends that the indictment was insufficient to apprise him on the nature and cause of the accusation against him. The appellant submits that the indictment did not include the time of the sale, the name of the vendee, the quantity of marijuana sold or the location where the sale took place.

The appellant’s contention is without merit. The indictment stated that the offense occurred before the finding of the indictment which is all that is required unless the indictment is for a new offense or when the grade of an offense has been raised from a misdemeanor to a felony. Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284 (1953). It is not necessary to name the vendee. Adkins v. State, 291 Ala. 695, 287 So.2d 451, on remand, 51 Ala.App. 703, 287 So.2d 457 (1975). It is unnecessary to allege where the offense was committed. Title 15, § 238, Code of Alabama 1940 (Recompiled 1958). It is also unnecessary to allege the amount sold, as selling marijuana in any amount is illegal. Title 22, § 258(29), (47) (Pocket Supplement) Code of Alabama 1940 (Recompiled 1958).

II

The appellant contends that the State failed to identify the name of the primary prosecution witness, the undercover agent, before trial and therefore denied the appellant’s right to due process. The appellant never objected to the above during trial nor did he even attempt any type of discovery. An issue which is raised for the first time on appeal is raised too late for review. Griggs v. City of Andalusia, 54 Ala.App. 322, 307 So.2d 718 (1975).

Ill

On cross-examination of the appellant, it was brought out that the appellant attempted to flee when he was arrested. The prosecutor in his closing argument argued that from such flight, the jury could infer guilt. The appellant contends that such evidence was inadmissible as the flight was too remote in time from the indictment and that the prosecutor’s closing argument was highly prejudicial.

The conduct of an accused tending to show flight is admissible even if weak and inconclusive. Pierce v. State, 51 Ala. App. 166, 283 So.2d 618 (1973). Here the appellant admitted that he had on several occasions, including the day of his arrest, fled from the authorities of Lauderdale County.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Ed LAW.
    SC 2313.
    Supreme Court of Alabama.
    Feb. 25, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


text:
    Clarence LYLES, alias v. STATE.
    5 Div. 328.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Richard D. Lane, Auburn, for appellant.
    William J. Baxley, Atty. Gen. and James S. Ward, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

The original deliverance is withdrawn, and this opinion is substituted therefor.

Appellant-defendant, an indigent appeals from a judgment pursuant to an indictment for forgery and a jury’s verdict convicting him therefor. The trial court imposed a sentence of ten years in the penitentiary. The indictment alleges that defendant forged or uttered the check with intent to defraud.

The State offered evidence that defendant committed the offense of forgery with intent to defraud as charged in the indictment. The alleged forged check was in the sum of $30.00, payable to McCoy’s Supermarket, whereat he obtained about $2.00 in cash and the rest in groceries.

Defendant testified and admitted signing the name appearing on the check without authority; that he presented it to McCoy’s Supermarket and obtained therefor some groceries and cash. He admitted signing a confession (exhibit 4 Tr. p. 48). All the allegations of the indictment were without dispute except the allegation that forging the check was done with intent to defraud. The only controverted issue was the allegation of intent to defraud. Defendant on direct and cross-examination, admitted passing “worthless” checks on several different prior occasions and having been convicted on some of them.

Defendant was at first denied the privilege of testifying in response to his counsel’s questions as follows:

“Q. All right. When you made out that check, did you make that check out with the intent to injure or defraud anyone?
“MR. MYERS: We object.
“A. No, sir.
“THE COURT: Sustained.
“MR. MYERS: Your Honor, I would—
“THE COURT: Well,—
“MR. LESTER: As to intent.
“THE COURT: Wait just a minute. Wait just a minute.
“Overrule, and the Court cites the case of Starr vs. Starr, S-t-a-r-r.
“Q. All right. I’m going to repeat the question: State whether or not when you made out this check, did you make out that check with the intent to injure or defraud anyone?
“A. No, sir, I didn’t.”

After sustaining the State’s objection, the court changed its ruling, referring to “Starr v. Starr” and allowed defendant to answer.

Thereupon, defendant’s counsel propounded to the defendant-witness the following question:

“Q. What was your intent when you made out that check?
“MR. MYERS: We object.
“THE COURT: Sustained.”
The following colloquy occurred:
“THE COURT: Sustained.
“MR. MYERS: Move to exclude the answer.
“MR. LESTER: Your Honor,—
“THE COURT: He’s admitted he forged the check, Mr. Lester.
“MR. LESTER: He’s admitting that he signed the check, Your Honor.
“THE COURT: Admitting that he signed the check and that’s forgery.
“MR. LESTER: Your Honor, it’s my — if Your Honor will look at the indictment, the indictment says ‘with intent to injure or defraud’ in both situations.
“THE COURT: Well,—
“MR. MYERS: Your Honor, among—
“THE COURT: The Court has permitted you, and it is discretionary with this Court under the case of Starr vs. Starr, to permit you to ask him about his intent. The Court exercised its discretion and allowed you to ask that question.
“That’s as far as you can go. He said that he did not have the intent to defraud anyone.
“MR. LESTER: I respectfully reserve an exception.”

We think the court erred to the prejudice of defendant.

When the intent of the defendant in a criminal prosecution is a material issue, as here, he may state his mental operation, both as to what he intended or did not intend to do, so far as the same sheds light on the issue. The admissibility of such evidence is not addressed to the discretion of the court because of its relevancy to the issue.

Here the defendant should have been permitted not only to state that he did not sign or utter the check with intent to defraud but also why he signed or uttered it so far as the answer elucidates his intent as charged in the indictment. Starr v. Starr, 293 Ala. 204, 301 So.2d 78; Tolbert v. State, 294 Ala. 738, 321 So.2d 227; Grimes v. State, 56 Ala.App. 439, 322 So.2d 729, cert. den. 295 Ala. 403, 322 So.2d 733.

To illustrate, we relate an incident that happened many years ago in a southeast Alabama county, when and where the Populists, strong in number and ardent, were seeking to supplant the Democrats in office. A well-known attorney, with effective oratorical ability, was speaking in behalf of the Democrats. He decided to impress his audience by flapping his arms and crowing like a rooster; when in this posture, an ardent Populist fired his pistol at the speaker. He disclaimed any intention to kill and contended that he intended only to “wing” him.

Tolbert, supra, involved the giving of a check, with intent to defraud, in violation of the Worthless Check Act, Act No. 2479, Acts of 1971, Vol. V, p. 3958. The Supreme' Court in the last line of paragraph (7) observed: “. . . Thus a defendant is free to testify as to his intent and mental process to rebut any presumption arising from the prima facie section of the Worthless Check Act.” [Emphasis supplied.]

In Grimes, supra, appellant (Grimes) was indicted for assault with intent to murder his wife. We reversed because the trial court sustained the State’s objection to a question propounded to defendant: “Did you intend to murder her?” The Supreme Court denied certiorari.

We hold that the defendant in the instant case was free to testify as to his mental process that tended to rebut the allegation of intent to defraud charged in the indictment. He should not have been limited to a negative statement of his mental process.

The trial judge in refusing to allow the appellant to explain his purpose in signing the check, engaged in the following exchange with defense counsel:

“THE COURT: He’s admitted he forged the check, Mr. Lester.
“MR. LESTER: He’s admitting that he signed the check, Your Honor.
“THE COURT: Admitting that he signed the check and that’s forgery.” [Emphasis supplied.]

This not only amounts to an adverse ruling to the appellant, but it is a pronouncement by the trial judge, in the presence of the jury, that the appellant is guilty of forgery. Such is an improper comment on the effect of the evidence of a highly prejudicial nature. This comment was prejudicial and error.

We also note that appellant’s counsel appointed to represent this appellant on this appeal, did not favor us with a brief. We searched the record as mandated by law and observed the errors, supra.

The judgment is reversed and the cause is remanded.

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

. OPINION SUBSTITUTED.

APPLICATION OVERRULED.

, All the Judges concur.


author: BEATTY, Justice.

text:
    In re Clarence LYLES v. STATE of Alabama. Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
    SC 2276.
    Supreme Court of Alabama.
    Jan. 21, 1977.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State, petitioner.
    Richard D. Lane, Auburn, for respondent.
   BEATTY, Justice.

After careful consideration, we have concluded that this petition must be denied. We do not approve the language of the Court of Criminal Appeals in its opinion, 342 So.2d 414, wherein it is stated that: “The admissibility of such evidence is not addressed to the discretion of the court because of its relevancy to the issue.” This language does not follow the rule on the admissibility of intention, motive or other unexpressed mental state as expressed in our opinion in Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974).

ViRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.


text:
    James Harrell MORRIS v. STATE.
    1 Div. 756.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Kenneth Cooper, Bay Minette, for appellant.

      William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State, ap-pellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was convicted in the Circuit Court of Baldwin County, by a jury, on a complaint of the District Attorney, wherein appellant was charged with knowingly and willfully resisting a lawful arrest by a duly authorized peace officer for Baldwin County, to-wit, James B. Johnson, a Deputy Sheriff. Recompiled Code 1958, Title 14, § 402 reads:

“Any person who knowingly and wilfully opposes or resists any officer of the state or county or municipality in serving, executing, or attempting to serve or execute, any legal writ or process whatsoever, or who resists any lawful arrest, whether under process or not, shall, on conviction, be fined not less than fifty nor more than one thousand dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months.”

The trial court fined him $250.00 and sentenced him to thirty days in the county jail.

This was an indictable offense thereby falling within the prohibition of Title 15, § 335, 1958 Recompiled Code:

“In prosecution by indictment, the jury shall fix and determine the amount of the fine; and no judge shall remit or reduce the fine so fixed, unless he spreads his reasons for so doing in full on the minutes of the court.”

See also our pronunciation in Loggins v. State, 52 Ala.App. 204, 290 So.2d 665, wherein we cited Melton v. State, 45 Ala. 56. We observed: „

“The Supreme Court in Melton v. State, 45 Ala. 56, in referring to § 3757, Revised Code 1867, (appearing now as § 335, supra) said: ‘ * * * although this case came into the circuit court by appeal, and was tried on a complaint, yet it is an indictable offense and in that court must be determined a prosecution by indictment.’
“The instant offense being indictable, the trial court fixed the fine without authority of law. In doing so, the court committed reversible error.”

We pretermit further discussion of this error.

It is to be noted that this prosecution originated in the Inferior Court of Baldwin County where defendant demanded a jury trial. The court thereupon rightly or wrongly transferred the proceedings to the circuit court for attention. The record does not indicate that he was tried in the Inferi- or Court.

The District Attorney, within the time allowed by law, prepared and filed an information to which no objection was interposed. This information charged the defendant with resisting a lawful arrest. The information comported with the statute, supra. However, the State failed to prove that the arrest was lawful. In fact it was not lawfully authorized because defendant was not carrying a concealed pistol. The State’s evidence (Tr. p. 7) shows that the pistol was in a scabbard or holster, worn on the side and was not covered.

We call attention to Title 14, § 175, Recompiled Code 1958, which reads:

“No person shall carry a pistol in any vehicle or concealed on or about his person, except on his land, in his own abode or fixed place of business, without a license therefor as hereinafter provided.”

It is to be observed that this law prohibits carrying a pistol (concealed or not) in any vehicle or “concealed on or about his person, except . . . without a license therefor . .” It does not prohibit an unconcealed pistol. Acts 1956, 2d Session, No. 43, p. 336.

It is immaterial that defendant did or did not have a pistol permit. He had a right to carry the pistol unconcealed at the time and place of arrest. Defendant was under no duty to submit to any other than a lawful arrest. Brown v. State, 109 Ala. 70, 20 So. 103, from which we quote:

“. . . It is not the duty of the citizen to submit to any other than a lawful arrest. It has been said, the duty ‘is found in the law side by side with the right of resistance to an unlawful one; and it is quite as important that no one should be unlawfully taken as that every one lawfully accused should be made to answer.’ . . . It is not intended that he [should] yield his person and liberty to the dominion of even a known public officer, certainly not to one unknown, upon his mere demand, who gives no information of his authority. If this were not true, no man would be safe from invasions of his personal liberty, and unlawful arrests would be made effectual. .. . ”

See also Tarwater v. State, 16 Ala.App. 140, 75 So. 816(2), citing Brown, supra.

The trial court committed reversible error in denying defendant’s motion to exclude the State’s evidence when the State rested.

In view of the evidence of the arresting officer, adduced by the State, we see no point in another trial. The judgment is reversed and the cause is rendered. The defendant is discharged.

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

REVERSED AND RENDERED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Delmos GREEN, alias v. STATE of Alabama.
    3 Div. 565.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.

      R. Howell Dean, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jackson P. Burwell, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

Burglary and grand larceny; sentence: ten years.

The appellant was convicted for the burglary of the Authorized Service Company, Montgomery, Alabama, and the grand larceny of several items from that store. An accomplice testified that the appellant aided him in the commission of the charged crimes. The appellant did not testify nor present any evidence in his behalf.

There are two arguments presented by the appellant which deserve consideration: (1) Did the appellant’s drunkenness prevent him from forming the specific intent necessary for burglary and grand larceny; and (2) was the circumstantial evidence corroborating the accomplice sufficient to authorize a conviction.

The undisputed evidence showed that on the evening of November 29, 1975, the appellant and Mack Norsworthy drove around Montgomery trying to figure out a way to make some money. They were both drinking “pretty heavy”. They drove to the back door of the Authorized Service Company which Mr. Norsworthy knew was closed down. Norsworthy then went around to the front of the store and used a rock to break the front window and gain entry into the store. Norsworthy testified that he carried something out of the building and placed it in the car and told the appellant that there was still some “stuff” in the building. The appellant then went into the building, looked, around, and helped Nors-worthy carry items out to the car, among these items being an adding machine and a calculator.

The appellant and Norsworthy then left Authorized Service and were stopped and arrested by two officers of the Montgomery Police Department who had received a description of an automobile involved in a burglary which was similar to the car driven by Norsworthy. After the appellant and Norsworthy stepped out of the car, the police officers saw an adding machine on the back seat and a calculator on the floorboard.

Four days before the trial of the appellant, Norsworthy pleaded guilty to breaking and entering Authorized Service Company.

I

It is well settled in Alabama that 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. Walker v. State, 91 Ala. 76, 9 So. 87 (1891); Scott v. State, Ala.Cr.App., 333 So.2d 619 (1976). A specific criminal intent is an essential element of the crime of burglary (Code of Alabama, Title 14, Section 85; Yelton v. State, 56 Ala.App. 272, 321 So.2d 234, cert. denied 294 Ala. 745, 321 So.2d 237 (1975)) and of larceny (Code of Alabama, Title 14, Section 331; Jones v. State, 55 Ala.App. 274, 314 So.2d 876, cert. denied 294 Ala. 761, 314 So.2d 879 (1975)). The appellant contends that because of his drunkenness he could not have formed the necessary mental intent.

The undisputed evidence shows that the appellant and his accomplice had been drinking beer and wine “pretty heavy” for a period of approximately two and one-half hours while riding around town prior to the crimes charged. Both of them were “drunk” but the appellant was not drunker than Norsworthy; they were “about the same” and had had about the same amount to drink. The appellant did not pass out. Norsworthy stated he could not remember what he took from Authorized Service but stated he thought there was a calculator and perhaps an adding machine. Norswor-thy was able to drive his automobile after the burglary without having a wreck.

Although all the evidence shows that the appellant was drunk at the time of the commission of the crimes, there was no evidence to show as a matter of law that the appellant was intoxicated to such an extent as to render him incapable of harboring the required intent. Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969). Partial intoxication will not avail to disprove the specific intent; it must be of such character and extent as to enable the accused incapable of consciousness that he is committing a crime; incapable of discriminating between right and wrong — stupefaction of the reasoning faculty. Chatham v. State, 92 Ala. 47, 9 So. 607 (1890); Waldrop v. State, 185 Ala. 20, 64 So. 80 (1913); Johnson v. State, 32 Ala.App. 217, 24 So.2d 228 (1945).\ Proof that the accused was merely drunk or intoxicated at the time of the commission of the offense, without more, is insufficient to show that the accused was legally incapable of forming the specific intent required in burglary and grand larceny. Here the evidence of intoxication was for the jury for the purpose of ascertaining whether the appellant’s condition rendered him incapable of harboring the special intent. Brown v. State, 39 Ala.App. 149, 96 So.2d 197 (1957) and cases cited therein at 39 Ala.App. 153.

While the trial judge did not instruct the jury on the criteria of voluntary drunkenness, the trial judge will not be put in error for the failure so to charge unless the defendant asks for the appropriate instruction. Code of Alabama, Title 7, Section 273; Brown, supra.

II

The appellant contends that the corroboration of the testimony of the accomplice was insufficient to support a conviction under Title 15, Section 307, Code of Alabama, as amended, requiring that a felony conviction cannot be had on the uncorroborated testimony of an accomplice. Here the corroborative evidence was the uncontroverted fact that the appellant was arrested along with the alleged accomplice while riding in a vehicle which contained the stolen property in question. This court has previously held that this fact alone is sufficient corroboration upon which to sustain a conviction for burglary and grand larceny. Phiffer v. State, 44 Ala.App. 611, 217 So.2d 823 (1969). Corroboration of the testimony of an accomplice need not be sufficiently strong of itself to support a conviction, and it is sufficient if it tends to connect the accused with the offense. Cunningham v. State, 54 Ala.App. 656, 312 So.2d 62, and cases cited therein at 54 Ala.App. 658.

We have searched the entire record for error as required by law and have found none. Therefore, this case is due to be and is hereby

AFFIRMED.

All the Judges concur.


author: MOORE, Retired Circuit Judge. BOOKOUT, Judge,

text:
    Willie Morris SMITH v. STATE.
    3 Div. 581.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.

      Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State, appellee.
   MOORE, Retired Circuit Judge.

The appellant was indicted, tried, and convicted for robbery. Pinal judgment was entered on May 27,1976 and appellant gave notice of and took an appeal on that date.

Clifford A. St. John, Sr., testified in substance that he is eighty years of age and lived at 110 Broadway on November 21, 1975. That morning he went out to his tractor to haul some fertilizer and while he was getting ready to go he was shot from the rear. He stated the bullet penetrated under his right shoulder and “. came our right here (indicating).” He was in his back yard at the time working on the truck and he heard the report of a rifle. After he sensed this he blacked out. The next thing he remembered was lying on his face a little further toward the house. He crawled into the house where he dragged the telephone off of a shelf onto the floor and called his daughter-in-law. Afterwards he was in the hospital ten days. St. John stated that on that day, he had the following money in his pocket: two tens, three fives, and six ones. He testified his wallet was in his pocket when he walked outside and that he has not seen the money since. He did not know the appellant and had never seen him before. St. John did not give anyone permission to take any money out of his wallet or to take his wallet. He stated his home is in Montgomery County, Alabama. St. John further testified he did not see the person that shot him.

Dorothy St. John testified that she lived next door to Clifford St. John, Sr., who was her father-in-law. On November 21, 1975, she went to his home in answer to a phone call and found him with his feet on the back steps and lying half-in and half-out the door. She saw that he had blood on his chest and she called the “emergency” number. Later an ambulance and the police arrived.

Detective R. E. Fisher, a Montgomery policeman, testified that he arrived at the scene of the shooting, 110 Broadway, about 9:00 o’clock. St. John, Sr. had already been taken to the hospital when he got there. Fisher found blood on the edge of the pickup truck parked about 115 feet from the back door of the house. He also found a walking stick and a hat lying on the ground about twenty feet from the back door. When other detectives came to the scene, Fisher went to the hospital to check on St. John and the case was turned over to Detective Alford.

Detective E. B. Alford testified in substance that he investigated the shooting at 110 Broadway. He arrived at the scene about noon on the day in question and used a metal detector and recovered a .22 caliber spent hull on the fence behind the truck where St. John was shot and about 75 feet from where St. John was shot. A pecan tree was “on” the fence south from where St. John was shot and the hull was found four feet northeast of that tree. He received the hull which he kept in his possession and turned over to Charles Smith, a State toxicologist. Alford identified State’s Exhibit No. 3 as the hull and the envelope the hull was placed in after it was found. He said the hull, part of said exhibit, was the one he turned over to the toxicologist. Alford also stated that the pecan tree near where the hull was found, had a place on it about four and one-half feet high, where the bark had been brushed off which was very fresh. He testified there was a plowed area, garden-type spot, behind the tree with a hedge row about twenty-five feet behind that beside the railroad track in a ditch. The railroad track was behind St. John’s house. Alford further testified that someone else, between 9:00 and 12:00 o’clock the day of the shooting took place, could possibly have made the marks on the tree and that the shooting took place about 8:00 A. M. This witness identified a diagram of the scene drawn by Sgt. Terry and it was admitted as appellant’s Exhibit No. 1.

On cross-examination, Alford testified that he did not place the hull in the envelope marked State’s Exhibit No. 3, but that he and Detective Johnson put it into the envelope together.

Clifford St. John, Jr., testified in substance, that he lived at 106 Broadway and that Clifford St. John, Sr. was his father. He saw his father about 8:30 A. M. on November 21,1975. He was called at work and came home, where he saw his father in the backyard on a stretcher. He then carried his father to Jackson’s Hospital. St. John Jr., then came back to the house and looked for his father’s billfold, but it was the next morning when he found it on the railroad track west of the house. He did not move the billfold from where he found it, but called the police. Some papers were there near the billfold and St. John, Jr. found a rifle back there. St. John, Jr. was shown State’s Exhibit No. 1, a rifle, and he stated he could not say it was the exact one he saw but it was similar. He further testified that a black policeman came and picked the rifle up and left with it.

John Goldman testified in substance that he lived at 456 Shannon Hill and that on November 18, 1975, a .22 caliber rifle was missing from his home. He stated State’s Exhibit No. 1 was his rifle that was missing from his home.

Detective Sidney Williams testified in substance that he received a phone call from St. John, Jr., November 22, 1975, and went out to St. John’s home at 110 Broadway. St. John, Jr. showed him a rifle at a point two hundred feet in a westerly direction from the house down by some railroad tracks and some identification papers were also there in the weeds. This witness was shown State’s Exhibit No. 1, and said it was the rifle he was shown by St. John, Jr. by the railroad tracks. He brought the rifle back to headquarters, initialed it, and the toxicologist came and he turned the rifle over to him. Williams identified State’s Exhibit No. 4 as the papers found in the weeds near the rifle. He also found a wallet at the same place. Williams turned the papers over to the toxicologist, Charles Smith, along with the rifle. Exhibit No. 4 was admitted in evidence.

Charles Wesley Smith testified in substance that in November, 1975, he was a State Toxicologist. His qualifications were stipulated. He ran tests on and examined the .22 rifle hull and the .22 rifle (State’s Exhibits 1 and 3). He found the evidence hull and test hull to be consistent in major class characteristics, meaning the shape of the marks, etc. However, he did not find enough individual characteristics to definitely state that it came from the same weapon, but did not find any inconsistent markings.

Harvey Daniel testified that he went to Stella Mae Ford’s home in November, 1975 and saw appellant there. He was at that house twice. On the first visit he bought a “component set” from appellant. He bought a rifle from him on the second visit. In addition to the rifle he bought, the appellant had another rifle there in his possession. This witness was shown State’s Exhibit No. 1 and he identified it as the rifle he saw in appellant’s possession on the second visit. On cross-examination, this witness said if the State’s Exhibit was not the rifle he saw appellant with, it was just like it. He further testified that Charles Cotton and Stella Mae Ford were at the Ford home on his second visit.

Charles Everett Cotton testified in substance that he knew appellant back in November, 1975. In that month he saw appellant at Stella Ford’s home and saw Harvey Daniel buy a rifle from him. Cotton stated that on that date the appellant had another rifle there that looked exactly like State’s Exhibit No. 1.

Stella Ford testified she knew appellant, Charles Cotton and Harvey Daniel, and that on October 20,1975, those three were at her home on Holcomb Street. She stated that at that time and place, appellant had the rifle across his lap and told Charles that he was going to “shoot a white m_ f_with it.” Ford said the gun appellant had at the time looked like State’s Exhibit No. 1. Further, she stated that later on October 20, 1975, appellant came back and got the gun. Ford also testified that appellant came back to her home on the 22nd and said “. . . he shot a white m_f_down by the bridge with this gun. T just killed a man down by the bridge, I was there all night.’ ”

George Leak testified in substance, that he was a detective in the Montgomery Police Department. On December 8th he came in contact with appellant on Wetump-ka Road and carried him to a residence on Cedar Street that had been burglarized. Leak then took him downtown. He stated that when they first picked appellant up he advised him of his rights — that he had the right to remain silent; that he had the right to talk to a lawyer before being questioned; that anything he said could be held against him in a court of law; and if he wanted a lawyer and could not afford one, that the court would appoint one before questioning him. Leak testified that appellant said he understood those rights. Later on, Leak questioned the appellant about this case and he gave him a written statement at it related to the weapon that was used. Appellant did not say anything related to the question as to whether he did or did not go to 110 Broadway, but at 8:00 P. M. he signed a standard rights form. Leak said that when they first picked appellant up that morning he said he did not want an attorney and that he gave the statement that night about eight hours later. Leak stated he read the “rights” sheet to appellant and asked him if he understood it and went over it orally with him. He said he told the appellant he was a policeman. This witness was shown a picture of a rifle (State’s Exhibit No. 5) and he stated he showed that picture to appellant on December 8, 1975. He stated that before talking with appellant he advised him of his rights, and that appellant said he understood them. This witness restated what he told the appellant his rights were, as set out above. At this point the district attorney by questions addressed to the witness and answers of the witness developed the facts necessary to show that any statement made by the appellant was voluntarily made. The witness was then asked the following questions and gave the following answers thereto:

“Q Okay. Now, what did he say when you showed him that picture that’s been marked State Exhibit 5?
“A He said that he had seen that rifle before.
“Q That rifle before?
“A Yes, sir.
“Q All right, sir. And what, did he, did he, what did he say then?
“A He said that this rifle had some scratches up at the front end, and that if shown the rifle, that he could tell me a lot of different things about the different scratches that would show that that was the rifle.
“Q Okay. And I’ll show you what’s been marked State Exhibit 5, Detective Leak, and I’ll ask you if that picture, excuse me, this is State Exhibit One, I’ll ask you if State Exhibit Five, the photograph is a photograph of State Exhibit One?
“MR. PAYNE: I object to any Court identification of it, if he has the rifle, let him show it to him and let him see if that’s it.
“THE COURT: You asked if that was a picture of this rifle, I overrule your objection.
“BY MR. POOL:
“Q Is it, Detective Leak?
“A Yes, sir.”

Leak then testified that he read the written form of appellant’s rights which is set out in the record and is a complete “Miranda” warning. He stated that appellant said he understood it and signed it and that the appellant was not threatened or coerced in any manner to make a statement. Further, he testified that no promises or hopes of reward or inducements were made to appellant to induce a statement. Leak said appellant then made a written statement in which he said that he had acquired this rifle at 456 Shannon Hill Road; that Charles Cotton had sold it to somebody named “Fats”; and that appellant went with him and showed him 456 Shannon Road where he got the rifle on December 8, 1975.

State’s Exhibits 1, 3 and 5, were admitted in evidence, Exhibit No. 4 having been admitted previously.

The appellant’s motion to exclude the State’s evidence on the ground of failure to prove a prima facie case was denied and overruled.

The appellant did not offer any witnesses in his behalf and there were no objections to the court’s charge to the jury.

The appellant’s requested charges were all given except the general charge and requested charge nine, which was covered by the court’s oral charge.

The appellant contends in this appeal that the trial court committed reversible error in overruling his motion to exclude the State’s evidence on the ground that the State had not made out a prima facie case.

The evidence in this case, to a great extent, must be classified as circumstantial. It is for that reason that we have set out the evidence, or the substance thereof, in considerable detail in this opinion. However, we have not stated every detail of the evidence.

In Willingham v. State, 28 Ala.App. 261, 183 So. 887, the court stated:

“The case therefore presented, is one entirely of circumstantial evidence, and while a conviction may rest on circumstantial evidence, if sufficiently strong and cogent, such conviction should be carefully scrutinized by the judiciary.”

A well connected train of circumstances may be as cogent of the existence of a fact as any array of direct evidence. Perez v. State, 34 Ala.App. 406, 40 So.2d 344; Desilvey v. State, 245 Ala. 163, 16 So.2d 183.

The measure of proof required in a case where conviction is sought on circumstantial evidence is stated in this manner in Pruett et al. v. State, 33 Ala.App. 491, 35 So.2d 115:

“It is evident that a conviction depended in the main on circumstantial evidence. It is apparent, also, that the doctrines of conspiracy and ‘aid and abet’ have places in the review.
“It is a similar rule that ‘a person charged with a felony should not be convicted unless evidence excludes to a moral certainty every reasonable hypothesis but that of his guilt, and that, no matter how strong the circumstances were, they did not come up to full measure of proof which the law required if they could be reasonably reconciled with theory that defendant was innocent.’ It follows that if the evidence does exclude to a moral certainty every reasonable hypothesis, etc., a conviction is authorized on circumstantial evidence.” [Citations omitted].

The appellant in the case before us did not file a motion for a new trial. The only attack he made on the sufficiency of the evidence to support the verdict was his motion to exclude the evidence on the ground a prima facie case had not been made out. However, he argued in brief on this appeal that the evidence was not convincing enough to allow the verdict to stand. That is one of the functions of a motion for a new trial and should not be first presented on appeal. But laying that aside for a moment, the law is clearly stated in Davis v. State, 33 Ala.App. 299, 34 So.2d 15, cert. denied 250 Ala. 240, 34 So.2d 17, that:

“ ‘A new trial, on the grounds that the verdict is contrary to the evidence, will not be granted where it affirmatively appears that the questions involved are for the determination of the jury, unless it is clearly apparent that the verdict is palpably wrong or unjust.’ ” [Citations omitted].

On motion to exclude the evidence for failure to make out a prima facie case it has been uniformly held by the appellate courts of this State that if the State has presented substantial evidence tending to prove all elements of the charged offense and the guilt of the defendant a jury question is made out and such motions should be denied and overruled. Massengale v. State, 36 Ala.App. 195, 54 So.2d 85; Sullivan v. State, 48 Ala.App. 347, 264 So.2d 576.

The evidence in this case shows: that on November 21,1975, Clifford A. St. John, the victim of the robbery charged in the indictment, was at his home; that his home was at 110 Broadway; that he heard the report of a rifle and was shot from the rear; that he had forty-one dollars in his pocketbook in his pocket when he was shot; that he had not seen the money since he was shot; that he went to the hospital but his wallet was not with him in the hospital; that he did not give anyone permission to take his wallet or his money; and that his home was in Montgomery County, Alabama. St. John did not see who shot him. He was shot in the back and the bullet came out the front. The evidence showed that the bullet was not left in him.

The officers testified, as may be noted from the statement of facts, that a .22 caliber hull (one that had been fired) was found on the premises near where St. John was shot and that it was turned over to the toxicologist. Further, they testified that a .22 caliber rifle was found on the railroad track or near it along with some papers and a wallet, the next morning after the shooting and the robbery. These items were first found by the son of the victim who identified the wallet as belonging to the victim and said items were pointed out by him to the officer. That officer testified that these items were found about two-hundred feet in a westerly direction from the victim’s home along a railroad track and that he turned the papers and the rifle over to the toxicologist. The toxicologist testified that he examined the .22 hull and the rifle and fired test hulls in the rifle and found the evidence hull and the test hulls to be consistent in major characteristics, meaning the shape of the marks, etc. The rifle in question was introduced in evidence as State Exhibit No. 1, and a picture of it was State’s Exhibit No. 5. One of the officers testified that he showed the picture (which became Exhibit No. 5) to the appellant, after his arrest, and that he said he had seen the rifle before and that it had some marks on it which he could talk about and show that was the rifle. In a statement given to that same officer, the defendant stated that he acquired the rifle at 456 Shannon Hill Road and that on December 8, the appellant went with him and showed him 456 Shannon Hill Road where he got the rifle. There was other evidence in the case strongly tending to show appellant had the rifle in question in his possession before the robbery. The fact that the rifle was thrown away or abandoned at the same place where the victim’s wallet was found has a tendency to connect it with the robbery. Witnesses testified to statements made to them by the appellant: that he was going to shoot a “white m_ f_” with the rifle and that at that time he had the rifle; and that he later said he shot a “white m_f_” down by the bridge; and that he was there all night. The evidence showed that the robbery victim was shot about 8:00 A. M. This evidence along with the rest of the evidence detailed in this opinion, is substantial evidence of the guilt of the appellant and presented a jury question. The verdict of the jury is not unjust or palpably wrong. It was factually and legally justified by the evidence and should not be disturbed on this appeal. Error does not appear in that respect.

The appellant also complains that evidence of another crime was admitted in evidence in this case. The district attorney in following the chain of events that placed the rifle in question in the possession of the appellant did show that the rifle had been taken in a burglary of a home at 456 Shannon Hill Road and that it belonged to the witness, John Goldman.

The rule of evidence in that respect is stated in Sneed v. State, 243 Ala. 23, 8 So.2d 269, as follows:

“Evidence which is relevant to establish some element of the offense, or material as to some issue in the case, is not rendered inadmissible by the fact that it also tends to show another offense committed by defendant. 22 Corpus Juris Secundum 1116, Criminal Law, § 691, note 31; 20 Amer. Jur. 290, section 311; Wilkins v. State, 29 Ala.App. 349, 197 So. 75, certiorari denied 240 Ala. 52, 197 So. 81. This includes the right to introduce evidence to controvert a material aspect of defendant’s evidence. People v. Jennings 252 Ill. 534, 96 N.E. 1077, 43 L.R.A.,N.S., 1206; Commonwealth v. Snell, 189 Mass. 12, 75 N.E. 75, 3 L.R.A.,N.S. 1019; Cook v. State, 155 Ark. 106, 244 S.W. 735; Johnson v. State, 242 Ala. 278, 5 So.2d 632; Miller v. State, 130 Ala. 1, 30 So. 379; William Patterson v. State, 243 Ala. 21, 8 So.2d 268.
“It is pointed out in Wilkins v. State, supra, that as stated in Wharton’s Criminal Evidence, an exception to the rule of exclusion is where the state’s evidence is (8) relevant to rebut special defenses. “In all instances, the question is whether the proposed evidence is primarily to prove the commission of another disconnected crime, or whether it is material to some issue in the case. If it is material and logically relevant to an issue in the case, whether to prove an element of the crime, or to controvert a material contention of defendant, it is not inadmissible because in making the proof the commission of an independent disconnected crime is an inseparable feature of it.”

Reversible error cannot be predicated upon the admission of the evidence which tended to show that another offense had been committed because the evidence was material to an issue involved in the offense charged.

We have searched the record for error, as is our duty, but we have found no such error.

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

It is therefore ordered and adjudged by this Court that the judgment of the trial court be and is hereby

AFFIRMED.

TYSON, HARRIS, DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., concurring specially.

BOOKOUT, Judge,

concurring specially:

Of all the facts surrounding this case, it appears that only three circumstances exist from which an inference could be drawn to connect the appellant with the shooting:

1. Appellant’s possession of a gun similar to that used by the assailant;
2. Appellant’s statement one day prior to the shooting* that “. . .he was going to shoot a white m_f_ with it. . . .”; and
3. Appellant’s statement shortly after the shooting that he had “. . . shot a white m_f_down by the bridge** . . ..” with the rifle. (Emphasis supplied.)

While the above facts appear, among others related in the opinion, they are the only facts which point to appellant as the assailant. Other testimony was given which connects those facts more clearly with the crime, and which should be set out in this opinion. Those facts were footnoted in the State’s brief with sufficient clarity that we should set them out here:

* “1. There was some confusion about the date. Harvey Baniel testified that it was late November, 1975 (R. pp. 52-54). Charles Everett Cotton likewise testified that it was November, 1975 (R. pp. 58-59). However, Stella Ford testified that the incident occurred in November, 1975 (R. p. 64, line 19) but when she was asked the exact date she testified: ‘It was October 20th, on Thursday.’ (R. p. 64, line 23). October 20, 1975, was a Monday, while November 20, 1975, was a Thursday. It is obvious that the witness meant Thursday, November 20, 1975.
** “2. ‘The bridge’ refers to an overpass which carries the Lower Wetumpka Road over the railroad track which passes behind Mr. St. John’s house. This overpass is about three hundred feet from the scene of the shooting.”


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

text:
    James HARRISON, alias v. STATE.
    3 Div. 637.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   L. S. MOORE, Retired Circuit Judge.

The appellant was convicted for murder in the first degree and the jury fixed his punishment at life imprisonment. Final judgment of conviction and sentence were entered by the trial court in accordance with the jury’s verdict; hence this appeal.

Robbie Jane Harrison testified that she lived at 711 Alexander and that on July 3, 1974 she was living at 1870 B Gibbs Circle. She was divorced from appellant on Decern-ber 12, 1973 and on July 3, 1974, lived with four of her children. Appellant did not have visitation rights at her house and she had not invited him there since the divorce. On the night of July 3, 1974 she was at home with a guest, John Malone, Jr. When appellant first came to her home, which was in her name, about 8:00 P.M. Robbie Harrison and Malone were on the front porch barbecuing. Appellant asked if her daughter was back from Atlanta and she told him that the daughter had not returned and that another daughter, Delois, was in the house. Appellant then left and came back about 9:00 P.M. and parked his car on the side of the street in front of the house. Robbie Harrison had not invited him to her home. Malone was still on the front porch with Robbie Harrison when appellant came to the porch but not on it. Appellant called Delois, but when she came to the door and asked what he wanted, he said, “Nothing.” Appellant, who had planted some okra in the yard, told Malone to stop throwing cigarette butts in the garden. Robbie Harrison said to appellant; “I know your are not talking to me. I live here, and you don’t have any right to tell me what to do.” Malone then said to her; “You guess he’s talking to me?” but did not then get up out of his chair. Appellant replied; “I guess I am” and stood near the porch awhile and then went down the walk-way with his gun at his side in a holster with his hand on it. Robbie Harrison turned around to put charcoal on the grill and heard two shots. She turned back and Malone had his hands up and a gun in one of his hands. Malone then went to the left of the walk-way and shot at the appellant. Appellant ducked behind the car and shot back at Malone, who “fell right beside the car.” Appellant then came from behind Robbie Harrison’s son’s car and stood over Malone. Malone did nothing and appellant shot him in the face two or three times.

On cross-examination this witness testified that when appellant left her home on the first occasion he said, “I’ll be back.”

Delois Jarret testified she lived at 711 Alexander Street and that on July 3, 1974 she lived at 1870 B Gibbs Circle with her mother, Robbie Harrison. Appellant was her father. She saw him and John Malone, Jr. at her mother’s home about 9:00 P.M., July 3, 1974. Appellant asked for her but when she asked him what he wanted he said, “nothing.” She then went back into the kitchen. Later there was some shooting and she came to the door and saw Malone on the ground. She then saw appellant come from behind the car on to the side where Malone was, stand over him, and start shooting. She was in the house when the shooting began and did not see who shot first. When she saw them, appellant was standing on the other side of the car and Malone was lying down on the side of the car nearest the house. She then saw appellant come back and shoot Malone.

Rayford Warren Latham, a Montgomery policeman, testified in substance that he arrived at 1870 B Gibbs Curve, the scene of the shooting, about 9:20 P.M., July 3, 1974. The place was in Montgomery County, Alabama. When he got there he saw appellant in the middle of the highway with a shotgun. Appellant handed Latham the weapon and stated he had done the shooting and had shot this fellow. The man that had been shot was lying in front of the house next to the curb. While Latham was there, Officer Frank Robertson, Detective Leola Davis and Detective Sidney Williams came to the scene. Latham arrested appellant who stated that he had been shot. He then went with appellant to the hospital where he was treated and released. Latham then carried appellant to the Detective Division of Police Headquarters. He gave the shotgun, the appellant handed him at the scene of the shooting, to Sidney Williams or Leola Davis.

Richard A. Roper, a State Toxicologist, whose qualifications were admitted, testified in substance that he performed a “post mortem” on John Malone, Jr. on July 6, 1974. He found three wounds on the body. One of the wounds was in the middle of the face over the bridge of the nose, another was on the left side of the neck and the third was a ragged wound on the top of the head. They were pistol-type wounds. According to Roper death resulted from central nervous system trauma or brain injury and intracranial hemorrhage, bleeding inside the head, which resulted from the wounds. Roper stated he extracted a bullet from the body of John Malone, Jr. He then produced that bullet. Roper testified that the bullet was fired from a rifled weapon and that a pistol was such a weapon.

Sidney Williams, a detective, testified he went to 1870 B Gibbs Circle about 9:45 P.M., July 3, 1974. When he arrived appellant was in a patrol car and the deceased was lying on his back in the driveway. The deceased was identified to him as John Malone, Jr. Williams found a .32 caliber and a .22 caliber pistol there and Officer La-tham gave him a shotgun. He found the .32 caliber pistol in a holster in plain view on the seat of appellant’s car which was in front of the house. He found the .22 caliber pistol lying on the side of the car parked in the driveway next to the deceased’s body. Appellant owned the .32 caliber pistol and the .22 caliber pistol was the property of the deceased man. About 11:00 P.M. that night the appellant gave Williams a written statement which was offered in evidence by the State. Counsel for appellant stated to the court: “I join with the prosecution in asking that it be admitted in evidence.” Williams said appellant stated that he owned the .32 caliber pistol found in his car at the scene of the shooting and that he fired it seven or eight times.

Thereupon the State rested and the appellant moved to exclude the State’s evidence on the ground the State had failed to make out a prima facie case. The court overruled the motion.

The appellant testified in substance that when he went to the scene of the shooting the first time his guns were in his car and that he did not get them out of the car. He also testified that on his second visit he left them in the car. According to appellant he was standing at the porch when Malone called him “M — F” and started shooting at him. Appellant stated he started toward his car but before he got to it Malone shot him in the back. He said that, while he was going to the car and Malone was shooting at him, he was not trying to get away. He denied running but said he could run fast. However, he said he did not run fast.

We quote the following from the record of the cross-examination of appellant:

“Q Okay. Now, you say you didn’t have your gun and you were going to your car to get your gun; is that correct?
“A Right.
“Q And all of this time, Mr. Malone was shooting at you?
“A He was shooting at me.
“Q And only hit you one time?
“A Maybe God planned for him not to hit me but one time.
“Q All right. Where was your gun in the car?
“A I had a gun in the glove compartment, and I had one in the trunk.
“Q Did you get the gun out of the glove compartment?
“A I really did.
“Q Okay. What kind of gun was it? “A .32 automatic.
“Q .32 automatic?
“A Yes.
“Q Was it in a holster?
“A It was in a holster.
“MR. PRICE: Will you mark this, please? (Whereupon, the gun and holster just referred to was [sic] marked as State’s Exhibit No. 7 for identification.)
“Q (By Mr. Price) Rev. Harrison, I show you what has been marked as State’s Exhibit No. 7 and ask you to look at it, please.
“(Witness complies.)
“Q Is that your gun?
“A Sure, it’s mine.
“Q Is that the one you got out of the glove compartment?
“A That’s the one I got out of the glove compartment.
“Q Is that the one you killed Mr. Malone with?
“A Right.”

The appellant shot John Malone, Jr., July 3, 1974 and was arrested on that date and remained in jail having failed to make bail until April 16, 1975, when he was released on his own bond without sureties. The indictment was returned on November 6, 1974 and bail was fixed at that time at $5,000. by the court. The appellant was arraigned on November 12, 1974 and trial was set for December 12, 1974. On December 13, 1974, appellant filed a written motion to dismiss the cause for denial of a speedy trial and want of prosecution, alleging the case was continued without appellant’s consent and that subpoenas for the State’s witnesses, Robbie Harrison and De-lois Harrison had been returned “not found” on December 12, 1974. The record does not disclose any proof taken on said motion. The motion was denied by the court on December 13, 1974. The record does not contain an order of the court continuing the case on December 12, 1974, or December 13, 1974 and it does not contain an order resetting the case for trial. However, appellant filed a written motion on March 27, 1975 to dismiss the cause on the .grounds: he had been in jail since July 3, 1974; that the case was set for trial December 12, 1974 and continued to December 13, 1974 and was continued to February term of court and again set for trial on March 25, 1975 and on that date continued to March 26, 1975 and was again continued on March 26, 1975; and that the appellant was ready for trial, and so announced on each of said dates but that the case was so continued without consultation with his counsel. The record on this appeal does not contain any of the orders of the court continuing said case or setting same for trial mentioned in the motion. There was attached as exhibits to the motion “Exhibit ‘A,’ ” which purports to be a list of “CRIMINAL CASES TRIED THIS TERM THROUGH 3/25/75.”

Through March 25, 1975, the record does not disclose any .evidence taken on- said motion nor does it show that any was taken. In the record there is an order of the court, dated April 16, 1975, denying the motion and ordering that the defendant be released on his own bond due to the length of time the defendant had been in jail and his having no previous record. The case was tried on July 25, 1975, and final judgment was entered on said date.

The appellant contends on this appeal that reversible error exists due to: (1) failure to give appellant a speedy trial, (2) denying and overruling appellant’s motion to exclude the State’s evidence on the ground the State had failed to make out a prima facie case, and (3) that the verdict of the jury was against the great weight of the evidence and the trial judge overruled appellant’s motion for judgment non ob-stante veredicto based on said grounds.

We will treat these claimed errors in the order stated in the above opinion.

In Kircheis v. State, 56 Ala.App. 526, 323 So.2d 412, cert. den. 295 Ala. 409, 323 So.2d 421, this court, with reference to the issue of a speedy trial, stated:

“Appellant states that the court continued this case twice over his objections and that 307 days lapsed from the time of his arrest until he was brought to trial. One of these continues was due to a motion for change of venue filed by appellant because of widespread publicity and he could not get a fair trial.
“[1] Some of the factors to be considered by appellate courts in determining whether an accused has been denied a speedy trial are set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. These factors are: (1) length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his ■right, and (4) prejudice to the defendant. The defendant in this case has not shown that he was prejudiced in any way. He filed a motion for change of venue on October 18, 1974, and it was not denied until February 26, 1975. Another factor that must be considered is the congestion of court dockets.
“In Giles v. State, 52 Ala.App. 106, 289 So.2d 673, this court held that a delay of twelve months is not sufficient to show a denial of the right to a speedy trial absent a showing of prejudice to the accused.
“In Gilbreath v. State, 54 Ala.App. 676, 312 So.2d 81, this court held that a delay of slightly over eight months was not too long where there was no evidence of prejudice to the defendant.
“In Cole v. State, 52 Ala.App. 447, 293 So.2d 871, this court said:
“ ‘There has been no unreasonable delay on the part of the state in bringing appellant to trial. It is settled law that speedy trial rights to not operate to deprive the state of a reasonable opportunity to prosecute defendants. A defendant cannot claim his constitutional rights have been denied where the delay is caused by him, or where delays are made necessary by the law itself, or occasioned by want of time to try the case. Sample v. State, 138 Ala. 259, 36 So. 367; Braden v. State, 49 Ala.App. 97, 268 So.2d 877.
“In Sellers v. State, 48 Ala.App. 178, 263 So.2d 156, we said:
“ ‘In addition to showing a demand for speedy trial, to make a prima facie case for release an accused normally must also show that actual prejudice resulted from the fact that trial was delayed. Hoskins v. Wainwright, 440 F.2d 69 (5th Cir., 1971); United States v. King, 431 F.2d 734 (5th Cir., 1970); United States v. Fitzpatrick, 437 F.2d 19 (2d Cir., 1970); cf. Dickey v. Florida, supra [398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26]. According to Hoskins, supra, if the accused relies on passage of time alone to establish prejudice, he can meet this burden by showing (1) that prosecution was delayed beyond the point at which a probability of prejudice arose; (2) that he himself was not responsible for the delay; and (3) that the state ought reasonably to have avoided the delay.’
“[2] It is settled law that speedy trial rights do not operate to deprive the state of a reasonable opportunity to prosecute defendants. Hamilton v. State, 52 Ala. App. 96, 289 So.2d 663.
“[3] There was no error in the denial of the motion to dismiss the indictment.”

Appellant in one of the motions filed regarding a speedy trial alleged that the two witnesses for the State, present at the difficulty in which John Malone, Jr., met his death, could not be found for service of subpoenas. The evidence in the case showed that at the time of the trial they lived at another place from where the shooting occurred. There was also an exhibit attached to one of said motions that has some tendency to show a crowded docket at the time in the trial court. No evidence appears to have been taken on either of the motions. The record in this case does not reveal any prejudice to the defendant by the delay of eight or nine months for the return of the indictment until the date of the trial. There is no statute of limitation for murder in the first degree. Therefore, the time between the death of Malone and the return of the indictment has little or no weight on the question of a speedy trial.

In the absence of a showing of prejudice to the defendant, a continuance rests in the sound discretion of the trial court. Clark v. State, 54 Ala.App. 217, 307 So.2d 28. The evidence does not show an abuse of discretion in that respect.

It is the considered opinion of this court that reversible error should not be predicated in this case upon a failure to give the appellant a speedy trial.

We come now to a consideration of appellant’s motion to exclude the State’s evidence. To present a jury question it is said in Massengale v. State, 36 Ala.App. 195, 54 So.2d 85, that:

“. . . there must be substantial evidence tending to prove all elements of the charged offense, a mere scintilla of evidence, in view of the presumption of innocence, being insufficient.”

In the case before us, the evidence clearly shows the appellant killed the deceased by shooting him with a pistol. The appellant endeavored to excuse or justify the killing by reason of self-defense. Although the evidence shows the appellant received the first wound from a bullet fired by the deceased, that standing alone does not make out self-defense. The jury could have reasonably determined that the appellant was not retreating as he went toward his car, but that he was going to the car to get his gun. Further, it could have reasonably determined that he entered the difficulty willingly, and that his purpose in going to the house the second time was to provoke a difficulty. There was evidence that he had his pistol on his person at the time notwithstanding his testimony that his guns were in his car. The evidence further shows that Malone was wounded and fell by the car. The fact that he was lying down tended to show he was incapable of doing further harm to appellant and all danger to appellant had ceased. It was at this time that appellant stood over Malone and shot him more than once. One of the bullet wounds was in top of Malone’s head.

One of the elements of self-defense is that the defendant must be in present impending danger to his life or danger of great bodily harm. Collier v. State, 49 Ala.App. 685, 275 So.2d 364. The evidence in this case is substantial evidence of the guilt of the appellant and that at the time of the fatal act he was not in any danger from Malone and that he was not justified by reason of self-defense. A jury question was clearly presented and the motion to exclude was thus correctly and legally overruled.

The motion of the appellant for judgment non obstante veredicto, after stating the grounds of said motion contains the following:

“WHEREFORE, the premises considered, the defendant moves this honorable Court for a judgment non obstante veredicto, setting aside the verdict of the jury completely and finding for the defendant, or, in the alternative, substituting for the jury’s verdict a verdict of no more than first degree manslaughter, and further, the defendant, should the Court choose the latter course, the defendant requests probation.”

I have been unable to find any case or statute of Alabama, and none had been cited, that approves such a procedure in criminal law.

There are numerous cases by the appellate courts of this State, holding that the judgment of the trial court must be based upon a valid and legal verdict. Lollar v. State, 37 Ala.App. 601, 73 So.2d 564; Graham v. State, 233 Ala. 387, 171 So. 895; Marable v. State, 229 Ala. 435, 157 So. 861.

To grant such a motion in a criminal case would deny the defendant the right to a trial by jury. The denial of said motion is without error.

Even if by the stretch of imagination the said motion could be legally considered a motion for a new trial, that which has been said by us in passing upon the ruling of the court on appellant’s motion to exclude the evidence is sufficient to demonstrate its denial is without error.

We have searched the record' for error and have found none.

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

It is therefore ordered and adjudged by this court that the judgment of the trial court be and is hereby

AFFIRMED.

All the Judges concur.


text:
    LeNorris FREEMAN v. STATE.
    4 Div. 506.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Cary L. Dozier, Troy, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for first degree murder, convicted therefor, and sentenced to life imprisonment. He was an indigent at the nisi prius trial and here, with same appointed counsel at both judicial levels.

The incident that occasioned the homicide was a robbery of a storekeeper, Joe Singleton, who operated a small business. The robbers and accomplices were not satisfied to take his money under circumstances that constituted robbery, but one of them shot and beat him. Death ensued from the wounds inflicted on his body.

The robbers fled the scene, and following a thorough investigation, some were apprehended. Appellant was one of the suspects. The evidence in most areas was circumstantial.

It appears that conversations between defendant and other suspects were presented as evidence. These conversations were incriminating and involved defendant and the others in a division of the stolen money. It would serve no useful purpose to delineate the conversations. Suffice it is that the part that appellant took in the conversation pointed to him as knowing about the robbery and the plans therefor which he encouraged. It is not shown by these conversations that he was actually present during the robbery. In fact, there were no eyewitnesses who were able to identify the robbers, or, at least, the record before us fails to disclose such identities.

The record shows that appellant was arrested on July 20, 1975, for assault with intent to rob the deceased victim, Joe Singleton, and jailed therefor. He was indicted for killing the said Joseph Singleton under such circumstances as to constitute murder in the first degree. The indictment was returned on July 26, 1976. For aught appearing, the defendant continued to be a prisoner in jail.

While a prisoner, one A. G. Tew, an investigator for the Alabama Bureau of Investigation, talked with him on July 24, 1976, and, according to his evidence, advised him of his Miranda rights to have a lawyer, and he signed the standard waiver of counsel, which was introduced in evidence without objection. This waiver appears as Exhibit No. 6 to his evidence. It does not appear what questions, if any, the witness asked the defendant. The conversation took place in the sheriffs office.

The next witness recalled was H. 0. “Red” Williams, the sheriff of Bullock County. The witness testified, outside the presence of the jury, that he sent for the defendant, and had him brought to the court house (to his office), where, after sitting there a few minutes, he asked him about Mr. Snipes, who was a fugitive and wanted as an actual perpetrator or an accomplice in the murder of Mr. Joe Singleton, with which defendant was also charged. Defendant talked about Snipes, and did not say he wanted a lawyer. Then the sheriff asked him about a marijuana patch defendant was supposed to have; that defendant told him he had only two stalks for each of which he could get $150.00.

The witness further testified that defendant voluntarily brought up the murder case against him and “asked me about his case _ _ _ about his chances”:

“WITNESS: He just asked me what his chances were and he also told me he never did get out of the car, that he sat in the car and was reading his mail; that he read his mail the whole time the incident went on; that he never left the automobile.
“MR. DOZIER: Okay. You knew at the time Mr. Freeman was in custody?
“WITNESS: Yes, sir.
“MR. DOZIER: Before you discussed this case with him did you advise him of his constitutional rights.
“WITNESS: He had been advised of his rights.
“MR. DOZIER: I mean that day.
“WITNESS: No.”
The trial court observed:
“THE COURT: Well, he had been given his rights by Corporal Tew. I’m going to let him testify and you will have an exception. You might have a good point but I don’t think you do.”

It also appears in the record that this interview in the sheriff’s office took place on Sunday night, August 15, 1976, before the trial started on August 19, 1976. Hence, it appears that twenty-six days (three weeks and five days) had elapsed between the date on which Corporal Tew advised defendant of his Miranda rights and the date the sheriff got the defendant out of jail and talked with him. The warning had lost its prior efficacy.

This Court observed in Allen v. State, 53 Ala.App. 66, 297 So.2d 391(4), cert. denied, 292 Ala. 707, 297 So.2d 399, as follows:

“As held in Jones v. State, 47 Ala.App. 568, 258 So.2d 910, relied upon in McBee v. State, 50 Ala.App. 622, 282 So.2d 62, Miranda warnings are not required to be given before each separate interrogation of a defendant after a valid waiver of his right has been made. Even so, the reasons that require Miranda warnings before an in-custody interrogation logically apply to an interrogation that takes place such a long period of time after warnings and waiver that under the circumstances it is to be reasonably concluded that defendant was not impressed thereby in making a confession. Intervening circumstances in various cases are necessarily variant, but three weeks confinement in jail under the circumstances shown in this case would seem to deprive the warnings and waiver of their previous efficacy."

It further appears in the record that the sheriff knew at the time of defendant’s alleged inculpatory statement, supra, that defendant was represented by counsel and he knew this before he started talking to him. He didn’t attempt to call his lawyer.

We follow our pronouncement in Allen, supra, aforequoted, and hold that in this instant case the Miranda warning, mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, given by Officer Tew, had lost its efficacy, and new warning was required.

But assertion is made that the inculpato-ry statement of defendant, supra, was voluntary and that Miranda had no application in its requirement that a defendant be advised of his rights to an attorney.

The totality of the circumstances leading up to the interview must be considered. It is to be noted that defendant, an indigent and partially illiterate, was in jail in the custody of the sheriff. The defendant did not invite the interview; the sheriff sent his deputy to the jail and brought defendant to the court house. The sheriff proceeded to question him about Snipes, one alleged accomplice in the homicide, and with whom defendant was acquainted. The sheriff then questioned defendant about his possession of some stalks of marihuana. Such possession itself was a criminal offense. So, we have the sheriff opening up the subject of crime and the homicide, thereby paving the way for defendant to admit his inculpatory presence at the scene of the crime. The time and the place was an appropriate setting for the admission. Indeed, it was an appropriate time because defendant’s appointed counsel was not there, and the sheriff made no effort to have counsel present, even though he had plenty of time to do so. He willingly by-passed the presence of defendant’s counsel. The sheriff picked the time and place and the subjects for discussion to be held at a time when defendant’s counsel was not there. Evidently, the sheriff did not want the attorney there. We think defendant was denied his constitutional rights of counsel and that such denial is not cured by a contention that the inculpatory statement was voluntary. The setup was a subterfuge to evade due process and defendant’s Miranda rights. We do not think the statement was voluntarily made as that rule is intended to apply.

Although the homicide of which appellant is accused of being an accomplice was unnecessary and without lawful provocation, 'it nevertheless remains that appellant was entitled to be tried according to the rules of law.

Justice Kohn, speaking for the Supreme Court of Alabama, appropriately observed in Watts v. State, 282 Ala. 245, 210 So.2d 805(3), as follows:

“The worst wretch that walks the earth is entitled to a fair trial, for the law is superior to all persons. As much as we may regret some results of the law, the law must be preserved if this constitutional democracy is to survive.”

The trial court erred in overruling defendant’s objection to the evidence relating to the alleged inculpatory statement. The judgment of conviction is reversed and the cause is remanded for appropriate disposition.

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

REVERSED AND REMANDED.

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

BOOKOUT and DeCARLO, JJ., concur in result.