author: TYSON, Judge.

text:
    Ray EARLEY v. STATE.
    6 Div. 264.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    Rehearing Denied April 4, 1978.

      Douglas M. Parsons, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged Ray Earley with the first degree burglary of the dwelling house of Mary Alice Duchock. The appellant waived youthful offender application and, at arraignment, with counsel present, entered a not guilty plea. The jury found the appellant guilty of “burglary in the first degree, as charged” and fixed punishment at ten years imprisonment. The trial court set sentence accordingly. The appellant’s motion for new trial, challenging the weight and sufficiency of the evidence and the in-court identification of the appellant, was denied following a hearing thereon.

Prior to trial the appellant filed a motion to suppress the identification of the appellant, asserting that such was “unduly tainted” by certain pretrial identification procedures. A hearing was conducted on this motion, and it was then denied.

Mary Alice Duchock testified that she lived at 4121 6th Court in Wylam, Jefferson County, Alabama, with her husband and three children, on October 15, 1975. She stated that this date was on a Wednesday, and at about 7:30 p. m. her husband had not returned home from work, that she had fixed dinner, fed the three children, and was seated in the den reading the paper when she heard the back door “shreaking.” She stated that she got up, went down the hallway leading into the kitchen where she observed a white male and screamed at him to “get the hell out of there” (R. p. 15). She stated that the male hesitated a few seconds and then began to back out of the kitchen door. Mrs. Duchock stated she then telephoned the police, and the following day she swore out a warrant for the arrest of one Ray Earley after she had given the officers a complete description and they had brought some photographs for her to examine. She stated that she had not known Earley before the occurrence in question, but that she had received a telephone call that same evening from a friend, who told her that the man who entered her kitchen was the appellant, Ray Earley.

Mrs. Duchock stated that the following day Officer Webb brought a photograph of Earley to her home, and she told him, “Yes, that was Ray Earley” who had been in her kitchen the night before. The following day, October 16, 1975, Mrs. Duchock' signed a complaint charging Ray Earley with unlawful trespassing.

On Saturday, October 18,1975, Sergeants Mike Mosko and C. F. Hoehn came to her residence and exhibited to her eight photographs of white males similar to the description given by her to them of Ray Ear-ley. Mrs. Duchock stated that no one made any suggestion to her about the photographs, but that, as she looked through them, she immediately recognized the photograph of Ray Earley as being very similar to the one she had viewed two days earlier which Officer Webb had brought to her home. Mrs. Duchock stated that she picked out Earley as being the man who had been in her home on the night of October 15, 1975.

Sergeant C. F. Hoehn testified that on October 21, 1975, accompanied by Sergeant Mosko, he went to the residence of Mrs. Duchock at 4121 6th Court in Wylam, Jefferson County. There he exhibited a group of eight photographs to Mrs. Duchock, indicating that he asked her to see if she could identify any of them. Sergeant Hoehn stated that he made no comment to her, and that the appellant’s photograph was in the “middle” of the group. Mrs. Duchock, without hesitation, picked out the photograph of the appellant and stated that his hair was light blond in color, that he was about six feet tall, weighed about 160 pounds, had blue eyes, and had a problem with acne on his face.

Sergeant Hoehn stated on cross-examination that the photograph selected by Mrs. Duchock from the group, on October 21, 1975, was also the same photograph which Officer Webb had shown to her the day after the incident in question, and that it was in fact a photograph of Ray Earley.

Officer R. L. Webb testified that he went to the residence of Mrs. Mary Alice Du-chock and talked with her, first, on the evening of October 15, 1975, after being sent there by a police dispatcher. He stated that Mrs. Duchock gave him the description of a blond, blue-eyed, white male in his late teens or early twenties, about six feet tall, with acne on his face. Officer Webb also stated that Mrs. Duchock gave him the name of one Ray Earley. He stated that the following day he obtained a photograph of Ray Earley and took it to her home. He stated that Mrs. Duchock made a positive identification of this individual, and that she signed a complaint, charging Earley with unlawful trespassing.

Officer Webb indicated that he later gave this photograph to Sergeants Mosko and Hoehn for their use in the investigation.

Mrs. Duchock was then recalled to the stand and examined concerning the telephone conversation, which she had on the night of the incident in question, and as to how she got the name of Ray Earley. Mrs. Duchock then testified that she had not wanted to involve the lady who told her about this, but that a niece, one Sandra Bousack, while en route to Wylam School, had overheard a group of boys talking and said that Earley was bragging about having gone to Mrs. Duchock’s home. Mrs. Du-chock stated that Sandra Bousack overheard this and told her mother when she got home from school. She stated that Mrs. Richard Bousack then telephoned her and gave her this information. This conversation took place on October 16, 1975, and they had talked previously the evening of the incident.

The trial court then determined from the testimony that the identification of the appellant, Ray Earley, was not “unduly tainted” by the pretrial photographic identification procedure and denied the motion to suppress.

Mrs. Mary Alice Duchock was then called to testify before the jury. She related the occurrence of the same evidence as herein-above set forth on the evening of October 15, 1975, and stated that the ensuing telephone conversation with her friend, Mrs. Bousack, was reported to the police, also the conversation with Officer Webb, and the identification of the photograph of Ray Earley the next day. Mrs. Duchock’s in-court identification of the appellant is as follows (R. p. 55):

“Q. Could you describe him?
“A. Yes sir.
“Q. Go ahead and describe him.
“A. As I saw him that night?
“Q. Yes, ma’am.
“A. He had on a purple T shirt and he had yellow oily stringy hair and a lot of acne type pock marks on his face and blue eyes and his mouth hung open like he had an adenoid problem.
“Q. You are absolutely certain that’s the man right there?
“A. Yes, I am.”

Mrs. Duchock then identified a photograph of her residence. She stated that she also had given a description of the appellant to Sergeants Mosko and Hoehn. She testified that she had selected the appellant’s photograph on Saturday, October 21, 1975, from a group of eight shown to her by the two officers on that date. Mrs. Duchock indicated that she did not attend a police lineup, and that her in-court identification of the appellant, and the subsequent burglary charge, were based upon the appellant’s coming to her home on the night of October 15, 1975.

Officer R. L. Webb was then recalled to testify before the jury. He stated that he first went to the home of Mrs. Mary Alice Duchock at about 7:36 o’clock on the night of October 15, 1975. He stated that it took him “about six minutes” to arrive at the residence at 4121 6th Court, Wylam, Alabama, after receiving a radio dispatch. Officer Webb stated that Mrs. Duchock gave him the name of an individual that night, and the following day he took a photograph by her home for her to identify.

The appellant’s motion to exclude the State’s evidence was overruled.

S. C. Bisset stated that he worked at the Blind Rehabilitation Center in the Avondale section of Jefferson County on October 15, 1975. Mr. Bisset indicated that Ray Earley began employment for him on October 15, 1975, working from 8:00 o’clock in the morning until about 4:00 o’clock in the afternoon. He stated that Earley received one day’s pay, $9.40, in cash, which was placed in a yellow manila envelope with his name on it.

Frank Posey stated that he went to his residence at 315 44th Street in Fairfield, between 5:00 o’clock and 5:30 o’clock on the afternoon of October 15, 1975. Mr. Posey stated that his two sons, Roy and a younger son, were at home with Ray Earley. Mr. Posey stated that as he walked across his yard he found a manila envelope with $9.40 written on the outside and that he recognized it as a pay envelope. He carried it inside. He stated that the boys stayed at his home shooting pool until about 7:30 or a quarter of 8:00 that evening. He indicated that Ray Earley left with his son, Roy, in Roy’s 1966 Ford Mustang automobile, and that Roy returned a short time later.

Roy Posey testified that Ray Earley had been at his home from shortly after 5:00 o’clock until about 7:45 o’clock on the evening of October 15, 1975, when they left in his 1966 Mustang, and that he drove straight to Ray Earley’s home, arriving there at about 8:00 o’clock. He stated that he then left.

On cross-examination, Roy Posey stated that Ray Earley had just started work at the Rehabilitation Center School that day. He also stated that Ray Earley was in the automobile with him when Earley was arrested a couple of weeks later.

Mrs. Laventris Earley stated that on October 15, 1975, her son, Ray Earley, left shortly before 8:00 o’clock in the morning to go to work at the Rehabilitation School. She said that on Wednesday, October 15, 1975, about 8:00 p. m., she saw her son drive up in the driveway in a car with Roy Posey. Mrs. Earley stated that her son was at the Posey residence from the time he got off work until he returned home.

In response to questioning on re-examination, Mrs. Earley said she did not think her son left home on the evenings of October 13, or October 14, and that he went to work on October 16, 1975. She stated that her home was located at 712 3rd Street in the Pleasant Grove section of Jefferson County, and that her son arrived home “about 8:00 o’clock” on the night of October 15, 1975.

I

The appellant contends that the trial court erroneously overruled his motion to suppress the photographic identification of Ray Earley, and cites us to Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967,19 L.Ed.2d 1247.

We have carefully examined the suppression hearing and determined that Mrs. Duchock’s testimony was not so “tainted” by the pretrial exhibition to her of the photograph of the appellant as to require the suppression of her identification of the appellant. Mrs. Duchock gave Officer Webb, on the night of October 15, 1975, an identification of the appellant as set forth in this opinion. She described him as between five feet ten inches and six feet tall, thin, about 160 pounds, long blond hair, blue eyes, acne complexion, and that his mouth drooped open noticeably. Mrs. Du-chock also gave Officer Webb the appellant’s name that same evening. She stated that she had received this name by virtue of a telephone call from her friend, and made a positive identification at trial of the appellant based upon her observation of him in her kitchen that evening.

Mrs. Duchock also identified the appellant as being the individual portrayed in the photograph shown to her by Officer Webb the following day, October 16, 1975, and subsequently positively selected Ray Ear-ley’s photograph from a group of eight exhibited to her by Sergeants Mosko and Hoehn on October 21, 1975.

Having considered the totality of the circumstances presented by this record, we are clear to the conclusion that Mrs. Duchock’s in-court identification of the appellant was not subject to be stricken. Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601; Henry v. State, Ala.Cr.App., 355 So.2d 411; Lomax v. State, Ala.Cr.App., 359 So.2d 832, and authorities cited in these cases.

II

Appellant contends the State failed to prove a'prima facie case of burglary.

In Eason v. State, 48 Ala.App. 471, 265 So.2d 913, we find:

“The applicable elements of second degree burglary are: (1) breaking, (2) entering, (3) with intent to steal or to commit a felony. The evidence, without contradiction, shows the first two ingredients. Behel v. State, 40 Ala.App. 689, 122 So.2d 537. From Behel, this Court per Cates, J., stated: ‘The jury may reasonably infer intent to steal from the mere presence of the accused in the shop in circumstances showing a breaking and entering in the night. . . . ’ ”
[Cases cited]

It is clear under the evidence presented that the trial court properly denied appellant’s motion to exclude and overruled his motion for a new trial, challenging the weight and sufficiency of the evidence. Hare v. State, 52 Ala.App. 279, 291 So.2d 371; Eason v. State, supra; Rhodes v. State, Ala.Cr.App., 355 So.2d 402.

III

Finally, appellant contends that the cumulative effect of comments by the district attorney and the statements made in argument constitute reversible error. In particular, appellant’s counsel contends that the district attorney’s argument was tantamount to the reference to the appellant’s not taking the stand and testifying at trial. The closing argument in this cause is as follows (R. pp. 85-88):

“THE COURT: Are you, gentlemen, ready to sum up?
“MR. GOMANY: Yes, sir.
“THE COURT: All right, you may commence.
“(Thereupon, Mr. Gomany addressed the jury in opening argument on behalf of the State of Alabama, there being no objections made nor exceptions reserved. Mr. Dodd addressed the jury in argument on behalf of the defendant, during which the following objections were made):
“MR. DODD: Shown a picture by itself.
“MR. GOMANY: I make objection that he not continue.
“THE COURT: Ladies and gentlemen, I leave it up to your individual recollection as to what the actual testimony was. However, I caution Mr. Dodd to restrict it to the testimony adduced in the presence of the jury.
* * * * *
“MR. DODD: He touched something.
“MR. GOMANY:. No testimony he touched anything- — arguing things not in evidence.
“THE COURT: I will leave it up to the circumstantial evidence.
* * * * *
“MR. DODD: And they are not Ray Ear-ley’s are they?
“MR. GOMANY: Objection.
“MR. DODD: If they were Ray Earley’s, they would be right up here and they would put them on the stand.
“MR. DODD: If they were Ray Earley’s they would be right up here and they would put them on the stand.
“THE COURT: Just a minute, Mr. Dodd, there is an objection.
“MR. GOMANY: Objection to Mr. Dodd testifying there were fingerprints all over the door. There was no such testimony adduced from the witness stand.
“THE COURT: Sustain, restrict it to the evidence that’s been introduced.
“MR. GOMANY: Ask that I be allowed to respond in kind to the argument.
“THE COURT: Then are you withdrawing the objection?
“MR. GOMANY: As much as he went into it, I would like to be able to respond to it.
“THE COURT: I have already sustained the objection. Go ahead.
Hfi * >}c * sj:
“MR. DODD: Ask you what the District Attorney’s office would have done.
“MR. GOMANY: Object to that.
“THE COURT: Sustain.
“MR. GOMANY: Objection to Mr. Dodd arguing what I would do in this case.
“THE COURT: Sustain.
“(Thereupon, Mr. Gomany addressed the jury in closing argument on behalf of the State of Alabama, during which the following objections were made:)
“MR. GOMANY: I couldn’t cross-examine, how do we know.
“MR. DODD: Objection and move for a mistrial.
“THE COURT: I sustain the objection but deny the motion for a mistrial.
“MR. DODD: I except, totally prejudicial to the defendant.
“MR. GOMANY: Judge, may I approach the bar with Mr. Dodd?
“THE COURT: Just a minute, disregard that last statement by the District Attorney, ladies and gentlemen. You are not to consider it in the statement of counsel, either one of the lawyers, is not evidence in this case. You are not to consider it as evidence in any manner. All they can do at this point is create reasonable inference from the evidence. You are to decide this ease from the evidence and the evidence alone. Go ahead, Mr. Gomany. “MR. GOMANY: Who knows what he would have done if she hadn’t startled him first?
“MR. DODD: Objection to that Judge, move to exclude it.
“THE COURT: Sustain. Exclude it.
“MR. GOMANY: I think your common sense tells you what he was up to.
“MR. DODD: Judge, that’s irrelevant, prejudicial, has no basis in this trial. There is no testimony at all about something of that nature.
“THE COURT: Well if we carry the argument of the defense one step further, it could be a reply in kind as to using your common sense. Go ahead.
u* * * * * *
“MR. GOMANY: People have been breaking in homes in Jefferson County
“MR. DODD: Objection, prejudicial, move it be excluded.
“THE COURT: Sustain, exclude the last statement by the District Attorney. You are not to consider it in any manner.
* * * * *
“MR. DODD: Objection to saying convictions stop burglaries.
“THE COURT: Sustain.
u* * * * * *
“MR. GOMANY: Burglaries are about one of the biggest of all crime increases in Jefferson County.
“MR. DODD: I interpose an objection again. I don’t know where this fits into argument.
“THE COURT: Sustain.
“MR. DODD: Ask Judge to instruct the jury to disregard.
“THE COURT: Disregard that last statement by the District Attorney, ladies and gentlemen.”

In examining the several objections made by the defense counsel to the district attorney’s statements, several of these were sustained and comment made that the jury would only consider such testimony as came from the witness stand, and not to consider the argument of counsel as evidence. The prompt action of the trial court, instructing the jury to disregard the remarks, removed any possible prejudicial effect that such statements may have had; thus, no error is shown. Adair v. State, 51 Ala.App. 651, 288 So.2d 187; Retowsky v. State, Ala.Cr.App., 333 So.2d 193; Napier v. State, Ala.Cr.App., 337 So.2d 62; Ellenburg v. State, Ala.Cr.App., 353 So.2d 810.

Moreover, with reference to the motion for a mistrial, which challenged the words by Mr. Gomany, “I couldn’t cross-examine, how do we know,” it is clear that such objection and motion is fragmentary in nature as the full context of the argument is not set forth properly for our review. McClary v. State, 291 Ala. 481, 282 So.2d 384.

As noted in McClary, supra, the proper way to preserve an exception is for the attorney to stand and recite the words used and have them taken down so that the full context may be before the reviewing court.

Moreover, the trial court immediately sustained the objection and instructed the jury to “Disregard that last statement by the district attorney,” and “Do not consider it as evidence in this case.” In view of this strong admonition by the trial judge, as shown by the colloquy hereinabove quoted, we are clear to the conclusion that reversible error is not here shown. Troup v. State, 32 Ala.App. 309, 26 So.2d 611; Massey v. State, 49 Ala.App. 341, 272 So.2d 267, cert. denied 289 Ala. 747, 272 So.2d 270, and cases therein cited.

Moreover, the statement in question does not directly refer to the appellant since three witnesses had testified in his behalf. There being no direct reference attributable to the fragmentary statement, we do not believe the principles of Beecher v. State, 294 Ala. 674, 320 So.2d 727, are here applicable. Cf. Robinson v. State, Ala.Cr.App., 352 So.2d 11.

We have carefully examined this record and find same to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Ex parte Ray EARLEY.
    77-455.
    Supreme Court of Alabama.
    May 19, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    Willie GILMORE v. STATE.
    4 Div. 599.
    Court of Criminal Appeals of Alabama.
    April 4, 1978.
    Rehearing Denied May 2, 1978.
    William J. Baxley, Atty. Gen.,' and Milton E. Belcher, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for forcibly ravishing the prosecutrix, a white female. The jury found the appellant guilty as charged and its verdict fixed punishment at ten years imprisonment. The trial court then set sentence accordingly.

The prosecutrix testified that she was employed at the Salt and Pepper Restaurant in Dothan, Alabama. She indicated that on July 29,1977, the appellant came in the restaurant around 2:00 p.m. and ordered a beer. Shortly thereafter, the appellant came to the ordering table and began talking with her about his girl friend. She told him that she was busy and did not have time to talk. Tim Pierce, the owner’s husband, told the appellant to go back to his table and leave the prosecutrix alone. About this time, Tim Pierce and his wife, Rosemary, left the restaurant. The appellant came back up to the bar after everyone in the restaurant had left. Then the appellant grabbed her by the arms and started pushing her up against the wall. She testified that someone came in the restaurant and she screamed, but they left. The appellant tore her blouse and pulled down her pants. Then the appellant had sexual intercourse with her against her will and with force by choking her.

She then dressed and ran next door to the cleaners. There she telephoned Rosemary Pierce (the owner) and told her what had occurred. She next called the police. Tim Pierce came in the cleaners a short time later, and the prosecutrix told him what had happened. Pierce went next door to the restaurant, and his wife, Rosemary, brought the prosecutrix over to identify the appellant, which she did. Pierce held a gun on the appellant while he was in the restaurant and asked him why he did it. Pierce put the gun in his pocket and then struck the appellant. The police came in and arrested appellant. Rosemary Pierce took the prosecutrix to the Southeast Alabama Medical Center where she was examined by Dr. Page. The prosecutrix testified that she had seen the appellant in the restaurant a few times before, but did not know his name.

On cross-examination the prosecutrix testified that the rape occurred around 4:30 or 5:00 p.m. She stated that she screamed and fought during the rape, but that the appellant kept choking her during the act. She related that she had several red marks on her neck as a result.

Mrs. Rosemary Pierce testified that she was the owner of the Salt and Pepper Restaurant in Dothan, Alabama, and that the prosecutrix was her employee. She stated that on July 29,1977, she was at the restaurant working and that the appellant was at a table drinking beer. She left the restaurant around 4:00 p.m. She stated that the appellant was still there when she left. She stated that the prosecutrix called her at her home around 5:00 p.m. and told her that she had been raped. She and her husband, Tim Pierce, went to the cleaners next door to the restaurant and found the prosecutrix upset and crying. She testified that her husband went to the restaurant and that she took the prosecutrix there shortly after-wards. Then the prosecutrix identified the appellant as the man who raped her. She stated that her husband hit the appellant and that the police arrived shortly thereafter. She then took the prosecutrix to the Southeast Alabama Medical Center. Also, Mrs. Pierce indicated that the prosecutrix had several red marks on her neck.

Tim Pierce testified that he was working in the Salt and Pepper Restaurant on July 29, 1977. He stated that he told the appellant to stop bothering the prosecutrix by talking to her while she was working. Pierce and his wife, Rosemary, then left the restaurant around 4:00 p.m. He testified that he went home and was doing some work there when his wife told him that the prosecutrix had just called and told her that she had been raped. Pierce indicated that, when he arrived at the cleaners, the prose-cutrix was very upset and crying. He stated that she told him that the man who had bothered her earlier at the bar was the man who raped her. Pierce said the appellant denied raping the prosecutrix when he went to the restaurant and talked with him. He stated that the appellant told him “that wasn’t all he would do” (R. p. 52), and at this point Pierce struck him. He stated that Mrs. Pierce then brought the prosecu-trix to the restaurant and she identified the appellant as the man who had raped her. He said the prosecutrix had several red marks on her neck.

On cross-examination Pierce stated that he also owned the cleaners located next door to the restaurant. He testified that, while one is in the cleaners and the restaurant door is closed, conversation, music or noise from the restaurant cannot be heard.

James Hartzog, police officer with the City of Dothan, testified that on July 29, 1977, around 5:35 p.m., he investigated a reported rape at the Salt and Pepper Restaurant. He stated that when he arrived the appellant was on the floor of the restaurant. The prosecutrix told him that the appellant had raped her, so he took the appellant to the City Jail and booked him. He testified that the prosecutrix’ clothes were disarranged. Also, according to Hart-zog, she had several red marks on her neck.

Larry Lynn, also with the City of Dothan Police Department, testified that he investigated a reported rape on July 29, 1977, at the Salt and Pepper Restaurant. He stated that the Prosecutrix was crying and very upset when he arrived. Lynn went to the Southeast Alabama Medical Center later that evening and received a vaginal smear test from one Dr. Page, which he sent to the Toxicology Lab in Auburn, Alabama.

Dr. Russell Page testified that he performed a vaginal examination of the prose-cutrix to determine if sperm were present. He also indicated that it was not unusual for an adult rape victim not to have lacerations and bruises around the vaginal area.

At the close of the State’s case, each side stipulated that, if Dr. William H. Landrum, a serologist with the Department of Toxicology and Criminal Investigation, were present, he would testify that State’s Exhibit No. 1 was the result of the vaginal smear performed by Dr. Page. The results stated, in part, that the . . examination of the two smears showed whole intact spermatoza.”

Ms. Sandra Gayle Brackin. testified that on July 29, 1977, she was working at the Perfection Dry Cleaners, located next door to the Salt and Pepper Restaurant. She stated that she did not hear anyone screaming next door that afternoon. Ms. Brackin indicated the prosecutrix was crying, but was neatly dressed when she came in the cleaners that afternoon to use the telephone.

Pour witnesses testified that they were in the Salt and Pepper Restaurant drinking beer with the appellant on July 29, 1977. Two of „ these witnesses, Jerry Frederick and Herman Curry, stated that they noticed the appellant talking with the prosecutrix. One of the four, Jerry Frederick, testified that when he left, around 4:30 p.m., the appellant and the prosecutrix were the only ones there.

The appellant testified that he had talked with the prosecutrix two or three times before July 29, 1977. He stated that Tim Pierce was jealous of his talking with her and that was why Pierce told him to stop talking with her that day in the restaurant. According to the appellant, the prosecutrix consented to sexual intercourse, and at no time did he use any force.

I

The appellant contends that the trial court erred in denying his motion for a directed verdict made at the close of all evidence, and also refusing to grant the general affirmative charge.

Rape is the unlawful carnal knowledge of a woman by a man forcibly and against her will. Harris v. State, Ala.Cr.App., 333 So.2d 871 (1976); Stewart v. State, 27 Ala.App. 315, 172 So. 675, cert. denied 233 Ala. 480, 172 So. 678; Harris v. State, 2 Ala.App. 116, 56 So. 55. The appellant admitted having sexual intercourse with the prosecu-trix, but maintained that she consented to the act. The prosecutrix, on the other hand, testified that the appellant had sexual intercourse with her against her will and with force and violence.

Where the evidence is contradictory, a jury question is presented. The jury may believe or disbelieve all or any part of the testimony presented by either side. Harris v. State, Ala.Cr.App., 333 So.2d 871 (1976); Williams v. State, 51 Ala.App. 1, 282 So.2d 349, cert. denied 291 Ala. 803, 282 So.2d 355.

As this court stated in Williams, supra: “The fact that essentially all of the evidence against the appellant was from the testimony of the prosecutrix does not vitiate the conviction. A jury that will believe the uncorroborated testimony of the prosecutrix, beyond a reasonable doubt, can convict a defendant of rape, Barnett v. State, 83 Ala. 40, 3 So. 612, or of any lesser included offense. Title 14, Section 42, Code of Alabama 1940; Kelsoe v. State, [50 Ala.App. 378, 279 So.2d 549, cert. den., 291 Ala. 786, 279 So.2d 552] supra, and authorities therein cited.”

Inasmuch as the State presented sufficient evidence to set forth a prima facie case of rape, the trial judge was correct in submitting to the jury the issue of the appellant’s guilt or innocence. Cases cited.

We have carefully examined this record and have found no error therein. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Ellis James LUKER, Jr., alias v. STATE.
    1 Div. 882.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.
    A1 Pennington of Pennington & Pennington, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of possessing cocaine and the jury declined to assess a fine. The Court sentenced him to fifteen years in the penitentiary. Prior to trial the Court determined that appellant was indigent and appointed counsel to represent him. At arraignment, in the presence of his attorney, appellant waived the reading of the indictment and pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel represents him on this appeal by court appointment.

The State’s evidence was uncontradicted. Appellant did not testify nor did he offer any evidence in his behalf.

Ms. Alilee Pillman testified that she is a Toxicologist for the City of Mobile Crime Laboratory. Her qualifications as a Toxicologist were admitted by defense counsel. She received two packets of a white substance from Police Officer Jimmy West on March 22, 1977, and following a laboratory analysis she stated the substance was cocaine. On March 23, 1977, she received from Officer Brian Delmas a screwdriver on which there were paint and wood specks along with a piece of painted wood. She performed a microscopic examination of these items and formed an opinion that the paint and wood specks from the screwdriver were similar in all respects to the paint on the piece of wood turned over to her for examination. By agreement this witness was taken out of turn so that she could return to her laboratory duties.

Shannon W. Poole testified that he was a Police Officer for the City of Mobile. On March 22, 1977, he and Officer Jimmy McLaughlin were en route from the Police Firing Range, when he saw appellant crossing the street. Appellant looked in the direction of the police car and then ran, “went into the hedge bushes,” as the police ear approached. When Poole and McLaughlin reached that point, Poole saw appellant running off to the north. Appellant threw some object on the ground. Appellant stopped when Poole ordered him to halt. Poole went to the spot where he had seen appellant throw something down. There he found a screwdriver.

At this point, a woman came out of a house on the corner of the intersection where the above events transpired. She was “hollering for the Police, saying that she had been robbed.” Poole placed appellant under arrest and left him with McLaughlin while he “went to the house where the woman was hollering.” Subsequently, several other officers arrived on the scene. Poole further testified that appellant did not live in that neighborhood and did not work there. He knew appellant from past experiences.

From the record:

“WITNESS: I stopped Mr. Luker because from this area we had received calls from that area several months with reference to burglaries and I knew of Mr. Luker’s reputation.”

Jimmy McLaughlin, a Mobile Police Officer, testified that he conducted a “pat-search” of appellant for weapons. None was found.

McLaughlin further testified that he and Poole went on duty at 6:30 a.m. Before going “in-service,” he and Poole conducted a routine search of the squad car to determine if any weapons had been left in the car. Such a search was conducted by them every day. Nothing was found in the car, including under the back seat. From the time Poole and McLaughlin went “in-service” until appellant was placed in the back seat of the car, no one else had been inside the car. The car had been occupied by Poole and McLaughlin only and was locked while they were at the Firing Range.

McLaughlin testified that he summoned the detective division to the scene. At that time he conducted a second frisk of the appellant because he still wasn’t sure that appellant did not have a weapon. Again, no weapon was found. McLaughlin felt under the back seat and did not find anything.

When the detectives, Officers West and Coley, arrived at the scene, appellant was transferred to another car. Following the transfer, the back seat of McLaughlin’s car was again pulled out. Officer Coley found a plastic bag “with two small bags inside it,” containing a white substance.

Officer Coley testified that he conducted an investigation on March 22, 1977, at the home of Mrs. Lott. A window had been “pried up.” Coley then prepared to transfer appellant to another car in which there was a restraint screen between the front and back seats.

Prom the record:

“A. I took Mr. Luker out of the car to carry him over to Mark Cook’s car. I pulled the seat out again to check where Mr. Luker had been sitting and in the right rear floorboard under the seat, right where the two seats join in the floorboard, there was a plastic container containing two small plastic bags of white substance.”

Coley gave this package to Officer West, who testified that he, in turn, gave that package to Alilee Pillman, the Crime Lab Toxicologist. West further testified that he turned over to Officer Delmas a screwdriver given to him by Officer Poole at the scene.

Officer Delmas testified that he received a screwdriver at the scene from Officer Coley. Both police officers were standing side by side when Coley handed him the screwdriver. Delmas also testified that he collected paint and wood samples from the home of Mrs. Lott.

Lorraine Lott testified that on March 22, 1977, she reported a break-in at her home. Mrs. Lott found a window open in the dining room; the lock was broken “where they had pried the window up.”

Appellant contends that the State’s evidence should have been suppressed, since the arresting officers had no probable cause to stop the appellant on that occasion.

While the police officers had no probable cause to arrest appellant until Mrs. Lott appeared on the scene, they certainly had the authority to take the course of action that they did. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. An investigatory detention, though technically a seizure of the person, may be based upon circumstances falling short of probable cause to arrest. Racine v. State, 51 Ala.App. 484, 286 So.2d 890.

The facts that the officers were familiar with the neighborhood; knew appellant was a stranger to the neighborhood; knew that there had been recent complaints of burglaries in the neighborhood; and the furtive movements of appellant; were sufficient grounds upon which the officers should have conducted an investigatory stop. This Court, in Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, similar on the facts to the case at bar, wrote:

“To say that these were not unusual circumstances and that it did not afford reasonable grounds for some investigative procedures such as stopping and, at least, receiving some information, identification and etc., from appellant, would be to abandon common judgment and common sense. We think circumstances provided reasonable grounds for the action of the officer and that his evidence tended to show that he was properly discharging his duties at the time.”

Thus the trial court committed no error in failing to suppress the cocaine.

At the close of the State’s case, appellant moved that the State’s evidence be excluded on the ground that a prima facie case was not established. In particular, he alleged that the State failed to show that he exercised the requisite intent to possess the contraband. Williams v. State, Ala.Cr. App., 340 So.2d 1144.

Appellant’s contention is without merit. Constructive possession of narcotics is established where it is shown that the defendant had actual or potential control of the drug and an intent to exercise dominion or control of the substance and external manifestation of intent and control. Williams, supra, and citations therein. Surrounding facts and circumstances may be sufficient to establish these elements of possession. Parks v. State, 46 Ala.App. 722, 248 So.2d 761; Fields v. State, Ala.Cr.App., 333 So.2d 861. The surrounding facts and circumstances of the finding of the cocaine, as set out above, were sufficient for the jury to determine the appellant’s possession of the substance.

During the closing argument of the Assistant District Attorney, the following occurred.

From the record:

“MR. McMAKEN: Mr. Pennington has put no witnesses on to contradict the State’s evidence at all.
“MR. PENNINGTON: May it please Your Honor, the Court, I object to his statement that I have put no witnesses on at all and I would like to reserve the right to elaborate on that objection at the end of arguments.
“THE COURT: I am going to sustain the objection to that point and instruct the Jury to disregard that statement made to you. Do not consider that at this time as proper closing argument. Let’s go ahead, Mr. McMaken.”

Further:

“(Whereupon, while the Jury was deliberating, the following proceedings were had and done, outside the presence of the Jury:)
“THE COURT: All right; go ahead now. “MR. PENNINGTON: I just want to— my objection to Mr. McMaken’s argument as to the fact that the Defense put on absolutely no testimony, I would like to note that even though that objection was sustained by the Court, that I believe that that is a direct comment on the failure of the Defendant to take the witness stand and even though the Court sustained it and ordered the Jury not to consider that, that it is of such a nature that it would make it impossible to strike that from the minds of the Jury and as a result is a fatal defect in the final argument by the State of Alabama, that the trial at this point should be declared a mistrial.”

The trial court refused to grant a mistrial.

In Beecher v. State, 294 Ala. 674, 320 So.2d 727, we find the following:

“The rule of Alabama constitutional law which we adopt today may make it appear that a prosecutor could never impress the jury with the fact that his case, or any facet of it, is uncontradicted. Where the State’s evidence does stand uncontradicted, the prosecutor does have the right to point this out to the jury. In that circumstance the prosecutor could say: ‘There has been no refutation of any of the evidence presented by the State;’ or more simply, ‘The State’s evidence stands uncontradicted;’ or other appropriate comment to like effect.”

In Gissendaner v. State, Ala.Cr.App., 338 So.2d 1025, the rule is stated to be: “The State may in its closing argument assert that its case is uncontradicted.

. There must be virtually direct identification of a defendant alone as the individual who has not become a witness before the State’s comment will be interpreted to be an unfair comment upon the defendant’s failure to testify.”

We have noted that appellant’s objection and motion for a mistrial were not made before the jury retired to commence their deliberations. The' law is well settled that exceptions to the oral charge, or any part of it, to be availing, must be taken and reserved in the presence of the jury and before the jury retires. Lowery v. State, Ala.Cr.App., 342 So.2d 797.

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

The judge told appellant at the time he sentenced him to fifteen years in the penitentiary that his record revealed that he had been involved in violation of the law “in this county and this State as far back as 1965.”

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge. TYSON, Judge,

text:
    John STOUTMIRE, alias John J. Stoutmire v. STATE.
    3 Div. 870.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.

      Tyrone C. Means, of Gray, Seay & Lang-ford, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from an indictment and conviction of assaulting a peace officer with a deadly weapon. Sentence was fixed at two years’ imprisonment by the trial judge. The appellant’s retained trial counsel was appointed to represent him on this appeal.

The only question presented is whether the state made out a prima facie case. The appellant alleges that the state failed to prove (1) an assault (2) with a deadly weapon.

The state’s evidence reveals that on the night of the 11th of September, 1977, officers of the Georgiana Police Department received information as to the whereabouts of the appellant who was being sought on charges of burglary and grand larceny in Butler and Montgomery County.

Inside the residence of Margaret Reese the officers attempted to arrest the appellant. When approached the appellant ran into the bedroom where he turned and pulled a pocket knife on the pursuing officers. Because the conviction must stand or fall on these events, they must be examined in detail.

Officer James Blackmon of the Georgia-na Police Department testified that after the appellant was advised of the fact that he was under arrest, he “broke loose and ran”. The appellant knocked two officers back and “slung them loose”.

“Then, all three of us followed him back to the back room, and he went over to a window and had knocked the screen out, and had the window open. We told him not to go out the window, not to go any further, something in that order, and he started turning around, and as he turned around, he pulled that knife out of his pocket and opened the blade on it. At that time, all three of us drawed our guns on him at that time.”
“A. Well, he was waving it in front of him (indicating) like that, warning us not to come any closer.
“Q. Did he threaten you with the knife?
“A. Well, he was just waving it around telling us and warning us to stay back.
“Q. And, telling you not to come any closer?
“A. That’s correct.”
* Sfc Sfc * * ‡
“A. Well, when he was waving the knife, we pleaded with him to drop the knife, and several seconds, seems like maybe longer, but we pleaded with him several seconds. He wouldn’t do it, and he started easing out the window, backing out.”

After the appellant was out the window,

“he run a short distance from us, and when he went outside, I could hear Joe telling how to throw the knife down. He didn’t do it, and when I got out there, he had done started easing along a little sidewalk, along in front of the house, and he ran a short distance, then he turned back on us.”

And again on cross examination:

“. . . all of us followed him into the bedroom.”
“Yes, sir, that’s when he turned around and pulled the knife.”
* * * * * *
“Oh, we was pretty doggone close to him, maybe five or six or seven or eight feet, something like that.”
* * * * * *
“Well, when he run in there, he turned around and he pulled the knife on us, he waived the knife around and warned us not to come any closer.”
* * * * * *
“Q. Did he charge you with the knife?
“A. No, sir, not exactly, not inside the house.
“Q. He just tried to hold you back with it?
“A. That’s correct.”

Once outside the house, the appellant

“. . . went a little further to the corner of the building. He went on back towards like he was going towards the back yard, then he turned around, and then he took a few steps forward.”
* * * * * *
“A. He didn’t say anything on the outside.
“Q. Did he again charge the officers?
“A. Like I said, he turned around and took several steps back towards us, at that time, I was about ten or fifteen feet away from him.”

When the appellant turned around in the backyard and turned toward the officers he had the knife in his hand.

Butler County Deputy Sheriff Levoy Blackburn testified to substantially the same facts.

“So, when he started to search him, he broke and run, and he run into me and Grayson, pushed us aside and went to the back bedroom. When we got there, he pulled a knife, as he kind of turned, that’s when he pulled it. He said something, but I couldn’t understand what he was saying, but he pushed the screen out of the window and went out through the window.”
* * * * * *
“Well, when he got outside — whenever I got around to where James was, he had turned — he run out there a piece and he turned and started back (with the knife in his hand).”

When the appellant started back Officer Blackmon shot him.

Deputy Blackburn, testified on cross examination that:

“When he got into the back bedroom, he pulled that knife on me.”
******
“On all of us.”
******
“Q. Did any of the officers have theirs (pistols) drawn?
“A. Not until after he pulled the knife.”
******
“Q. What was he trying to do in the bedroom?
“A. Well, when he pulled the knife out, he turned like he was going to come towards us, and that’s when I pulled mine.
“Q. Did he come towards you?
“A. No, sir.
“Q. Was he trying to get out the window?
“A. After he turned, we drawed our guns, he backed up to the window and knocked the screen off. Then, he backed out the window.”

Butler County Deputy Sheriff Lamar Grayson stated:

“We tried to, you know, to restrain him, and he started hitting at us, trying to get away from us. He ran back into the back bedroom, down the hallway, to a back bedroom. We followed him into a bedroom, and at this time, he pulled out a knife on us. He was right next to a window. Whenever he got into the room, we got in right behind him, and he pulled out a knife on us.”
******
“Well, he pulled it out of his pocket, he waved it at us, said don’t come any closer, something like that. He had it like this (indicating).
“Q. What did you do then?
“A. We tried several times to get him to drop the knife. So, we pulled our guns out at this time and at the time he come out with the knife, we tried several times to get him to drop the knife. When he refused and would not do that, he knocked a screen out of the window and he finally slid out that window, .
“We got out on the outside, and he ran down the side of the building, and I went around to the right side, and he turned, he stopped and turned, then he turned like he was starting to come back at us.”
******
“Q. When he turned with the knife in his hand to come back toward you, what if anything happened then?”
“A. That’s whenever Officer Blackmon shot him.”
******
“A. He ran over right next to the window of the room, and that’s whenever he turned around and reached in his pocket and come out with a knife on us.
“Q. And, he came out with that knife?
“A. He came out with that knife, yes.
“Q. Did he charge you at that point?
“A. He turned and he waved the knife at us, and he said don’t come any further, you know, he was mumbling words like that.
“Q. Did you have your guns drawn at that time?
“A. When he pulled his knife — turned around with that knife, that’s whenever I drew my gun. I drew my gun at that time, yes.
“Q. And, was he trying to ease toward the window at that time?
“A. He was right in front of the window, you know, right there at the window.
“Q. Then, after that, he jumped out the window?
“A. He pushed the screen out — you know, he raised the window and pushed the screen out and started easing out.
“Q. And, he was running away? He was trying to get away from all this?
“A. Yes, except for whenever he turned at us with the knife, and after he had gotten outside and run down a little ways, he turned around and come back.
“Q. He got outside, he started running away from you, then he turned back around and started back towards you?
“A. I saw that he ran down towards the side of the building, then he turned and took a couple of steps coming back.”

This constituted the evidence against the appellant.

In defense, the appellant admitted attempting to escape but denied the use of any knife to secure that end.

On this appeal we are only concerned with the sufficiency of the evidence to support the conviction of assault upon a police officer with a deadly weapon.

The offense condemned by Section 13-1-42, Code of Alabama 1975, assaulting a police officer in the discharge of his duties with a deadly weapon, requires proof of four essential elements: (1) An assault, (2) with a deadly instrument, (3) upon an officer as defined, and (4) while the officer is engaged in the active discharge of his lawful duty. Hopkins v. State, 51 Ala.App. 510, 286 So.2d 920 (1973). The appellant asserts that the state failed to prove the first two of these elements.

I

The legal question of whether a knife is a deadly and dangerous weapon need be pursued no further than the case of Roberts v. State, 49 Ala.App. 729, 275 So.2d 709 (1973), wherein it was held that a “knife four inches long” was a deadly and dangerous weapon. The knife wielded by the appellant had a blade four inches long. Though not all that is dangerous is deadly, Hopkins v. State, 51 Ala.App. 510, 286 So.2d 920 (1973), under Roberts, supra, a knife is both deadly and dangerous.

II

An assault is not defined by present statute in Alabama. Section 13 — 1— 40, Code of Alabama 1975, only proscribes the punishment for simple assault. Though Section 13-1-42 defines assault upon a peace officer with a deadly instrument it does not define assault. However assault has been defined by judicial interpretation.

“An assault is an attempt or offer with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote at the time an intention to do it, coupled with a present ability to carry it out.” Tarver v. State, 43 Ala. 354 (1869); McGee v. State, 4 Ala.App. 54, 58 So. 1008 (1912).

Every assault and battery includes an assault. Jacobi v. State, 133 Ala. 1, 17, 32 So. 158 (1902); McGee v. State, 4 Ala.App. 54, 57, 58 So. 1008 (1912). To constitute an assault, there must be the commencement of an act which, if not prevented, would produce a battery. State v. Blackwell, 9 Ala. 79 (1846); Lawson v. State, 30 Ala. 14 (1857). The term assault includes, of necessity, an attempt to do another personal violence. Murdock v. State, 65 Ala. 520, 522 (1880).

An intent to injure is an essential element of the crime of assault. The intent to harm is the essence of an assault. McGee, supra. Assault has been defined as an intentional attempt to strike within striking distance, which fails of its intended effect, either by preventive interference or by misadventure. Lane v. State, 85 Ala. 11, 4 So. 730 (1887); Yates v. State, 22 Ala.App. 105, 113 So. 87 (1927).

“This is the language of some of the authorities; while others are a little more specific, and say there must be an attempt coupled with a present ability to inflict a battery. Clark’s Manual, §§ 618, 619, 620, 621, 622; 2 Bish.Cr.Law, 6th ed. §§ 23, 28, 30, 31; State v. Blackwell, 9 Ala. 79; Johnson v. The State, 35 Ala. 363; Meredith v. The State, 60 Ala. 441. The word ‘attempt’ means, ‘to make an effort, or endeavor, or an attack’. An attempt implies more than an intention formed. Some steps towards consummation must be taken, before the intention becomes an attempt. Attempt to strike in striking distance, or to shoot in shooting distance, includes the intention, present .ability, and some effort or endeavor to carry that intention into execution. An effort to strike, within striking distance, is an assault. An attempt to shoot, within shooting distance, imports that the assailant had in his possession some description of fire-arm, that he made an effort to use it, and the person on whom he attempted to use it was within the distance the fire-arm would effectively project or discharge its ball. Less than this would not be an attempt to shoot in shooting distance.” Gray v. State, 63 Ala. 66, at 73, 74 (1879).

It has been noted that:

“The attempt or offer is the basic ingredient of every assault. The chief difference between an assault and an attempt is that an assault presupposes a present apparent ability to commit the offense attempted. Lane v. State, 85 Ala. 11, 4 So. 730; People v. Stanton, 106 Cal. 139, 39 P. 525; 40 Yale L.J. 53, at p. 65. In general therefore the legal principles pertaining to attempts are equally applicable to assaults.” DeGraaf v. State, 34 Ala.App. 137, 37 So.2d 130 (1948).

Because a criminal assault involves a present attempt to commit a battery, a mere menace or conditional offer of violence does not constitute an assault in this state. Though the defendant need not actually strike at his victim, a mere threat of violence is insufficient.

“An assault is an attempt, or offer, to do another person violence, without actually accomplishing it. A menace is not an assault; neither is a conditional offer of violence. There must be a present intention to strike. On the question, how far the intention must be carried into actual execution, before the assault becomes complete in law, the authorities do not agree. Holding a gun in a threatening position, without any attempt to use it, or intention to do so, unless first assaulted by adversary, is not an assault. Blackwell’s Case, 9 Ala. 79. Drawing a pistol, without presenting or cocking it, is not an assault, as was decided in Lawson v. The State, 30 Ala. 14.” Johnson v. State, 35 Ala. 363, 365 (1860).

In State v. Blackwell, 9 Ala. 79 (1846), the defendant retreated in an effort to defend himself from a knife wielding attacker. In his retreat, the defendant “seized and presented a gun, then telling Morgan (his attacker) that if he rushed upon him he would kill him, but the defendant did not shoot or attempt to shoot”. The court held that although the gun was held in a threatening position, yet if there was neither an attempt to use nor the intention to do so, unless assaulted by his adversary, the defendant could in no manner be said to be guilty of assault.

“An assault is defined by Blackstone, to be an attempt or offer to beat another without beating him (3 Com. 120) and it seems entirely clear, that when there is no attempt to inflict personal violence on another, there can be no assault. It is laid down that an act, which prima facie would indicate an assault, may be explained by words spoken at the time, as when one, during assize time, in a threatening posture half drew his sword from its scabbard, and said, if it were not that it is assize time I would run you through the body. This was held to be no assault—The words explaining that the party did not mean immediate injury.” Blackwell, at 9 Ala. 82.

Thus a gesture that might otherwise seem menacing is not an assault if accompanied by words explaining why no harm is to be inflicted. Bishop, Criminal Law, Vol. 1, p. 26, § 34 (9th ed. 1973); Anderson, Wharton’s Criminal Law and Procedure, Vol. 1, pp. 677-678, § 331.

Despite the language of Balkum v. State, 40 Ala. 671 (1867), a conditional offer of violence still does not constitute an assault in Alabama, the criminal intent of the assailant being the essence of the crime and not the mere fact of unlawfully putting one in fear, creating alarm in the mind or causing apprehension of immediate battery. In light of State v. Blackwell, 9 Ala. 79 (1846) and Chapman v. State, 78 Ala. 463, 56 Am.Rep. 42 (1885), Brown v. State, 48 Ala.App. 456, 265 So.2d 898 (1972), affords no clarification of this issue. On “conditional assaults” generally see Perkins, Criminal Law, p. 131.

In this case when the offer of violence was conditioned, that is, when the officers were “warned” to stay away, it is our opinion that the jury was justified in finding that an assault had already been committed. The evidence is sufficient to support a finding that when the appellant turned toward the officers, drew a knife from his pocket and opened the blade, he had commenced an act which, if not prevented, would produce a battery. The testimony is consistent that when the officers first saw the knife they drew their pistols. This action on the part of the law enforcement officers was such “preventive interference” as would prevent the assault from ripening into a battery. Under these circumstances, the fact that the appellant abandoned his purpose and refrained, after encountering resistance, from committing a battery does not change the character of the assault or purge the appellant of the offense. 6A C.J.S. Assault and Battery § 67, p. 437.

“It is difficult in practice, to draw the precise line which separates violence menaced, from violence begun to be executed — for until the execution of it is begun, there can be no assault. We think, however, that where an unequivocal purpose of violence is accompanied by any act, which, if not stopped — or diverted — will be followed by personal injury— the execution of the purpose is then begun — the battery is attempted.” State v. Davis, 23 N.C. 125, 127 (1840).

The second act of the appellant in turning toward the officers with the knife in his hand after running some distance from them in the backyard does not constitute an assault because there was no evidence to support even an inference that he had a present ability to carry out any unlawful attempt — that he was in striking distance. Burton v. State, 8 Ala.App. 295, 62 So. 394 (1913); DeGraaf v. State, 34 Ala.App. 137, 37 So.2d 130 (1948).

We have carefully reviewed the record in this case and find no error. The judgment of the trial court is therefore affirmed.

AFFIRMED.

HARRIS, P. J., and DeCARLO and BOOKOUT, JJ., concur.

TYSON, J., concurs specially.

TYSON, Judge,

concurring specially.

I concur in the opinion as prepared by my brother, Judge BOWEN, in this case.

With reference to Brown v. State, 48 Ala.App. 456, 265 So.2d 898, this Court dealt with an assault with intent to rob. In Brown, supra, we quoted with approval the definition of “assault” from the opinion of the Supreme Court of Alabama in Johnson v. State, 35 Ala. 363; and this Court in Flournoy v. State, 40 Ala.App. 629, 120 So.2d 121. We pointed out that “a mere menace, standing alone, is not a sufficient basis for the finding of an assault.” This Court held that, under the facts of Brown, there were sufficient gestures and threats to constitute a legal assault sufficient to sustain a conviction for assault with intent to rob.

We also quoted with approval from Lyles v. State, 10 Md.App. 265, 269 A.2d 178, as to certain language used by the Maryland Court of Appeals in Williams v. State, 4 Md.App. 643, 244 A.2d 619.

The two Maryland cases above cited were not intended to create confusion as to what the Supreme Court of Alabama had indicated in the early case of Chapman v. State, 78 Ala. 463, 56 Am.Rep. 42 (1885).

I do not read the two Maryland cases as being in conflict with the language of Chapman, supra, but simply attempting to illustrate that a present intent to commit an assault, coupled with overt actions or language, may be sufficient under the facts of a given ease to place a party in fear or create alarm, which may also be considered on the issue of an assault under the facts presented.

      . The word “offer” means “effort” and serves as a synonym for “attempt”.
      “In fact, a real strain is placed upon the word ‘offer’ when it is given the meaning of a mere pretense of impending harm, and the assumption that the word has this meaning
      when used in the definition of criminal assault is merely part of the explanation of how the tort theory was inadvertently added to the offense.” Perkins, Criminal Law, p. 118 (2nd ed.1969).

      . This example is not a conditional offer of violence but an explanation for the lack of violence. Perkins, Criminal Law, p. 131.
      “A conditional threat is to be distinguished from a mere expression by one of a wish to strike another, accompanied with a statement that he will not do so for some stated reason, which does not amount to an assault. This is illustrated by the old familiar cases in one of which the assailant, laying his hands upon his sword, said, ‘If it were not assize time, I would not take such language from you,’ and in the other of which the defendant raised his whip and said, ‘Were you not an old man I would knock you down’.”
      6 Am.Jur.2d 32, Assault and Battery § 30 (footnotes omitted).


text:
    Carol WALKER v. STATE.
    6 Div. 659.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.

      Michael W. McCormick, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Larry R. Newman, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

On August 25, 1971, appellant entered pleas of guilty to eight different indictments charging embezzlement of money. She was sentenced to one year and one day in each case, and was placed on probation for nine years. On October 12, 1977, at a hearing which appellant was present with her attorney, the probation was revoked. Appellant appeals from a judgment of revocation.

It appears in the record that appellant, on August 8, 1977, signed a written acknowledgment of the charges against her for probation violations. The violations were:

“1. Violation Condition 1: Failure to Report to Probation Officer As Directed.
2. Violation Condition 8: Failure to Remain In Specified Place As Directed By The Probation Officer.
3. Violation Condition 9: Failure to Pay Court Costs.”

Also it appears in the record that she was given a brief summary of the evidence to be offered in support of each violation as listed above. Hence, she went into court informed about the violations facing her.

Omitting the style of the case, the judgment of the court in each case with respect to the violations reads as follows:

“This 12th day of October, 1977, it having been made known to the Court by Probation Officer Will Bynum, that, in his opinion, the defendant has probably violated the terms of her probation, and the defendant having been duly notified of said charges, and being in open Court, and on being asked by the Court if she had anything to say as to why her probation should not be revoked, the defendant says nothing.
“After hearing all the evidence, the Court is of the opinion that the defendant has violated the terms of her probation. It is therefore considered, ordered, and adjudged by the Court that the probation of the defendant be and is hereby revoked. It is further ordered that the said sentence pronounced against the defendant be and same is hereby put into immediate execution.
“This the 13th day of October, 1977, defendant through her attorney, Fred Pickard, gives oral notice of Appeal. Sentence suspended pending appeal.”

The Supreme Court of Alabama has provided guidelines to be followed in proceedings to revoke probation. Armstrong v. State, 294 Ala. 100, 312 So.2d 620. These guidelines comport with Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484; also, see Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656.

Guideline No. 1 in Armstrong reads:

“Written notice to the probationer of the claimed violations of probation.”

It appears in the record (Tr. 37) that the court revoked probation of appellant because she had failed for six years to make restitution of the embezzled funds. No mention was made of any other grounds. The court commented that restitution was one of the grounds he had imposed.

The written notice of violations, supra, did not include restitution. Appellant was entitled to written notice of this claimed violation; namely, failure to make restitution. She would be entitled to a summary of the evidence for failure to make restitution. Failure to give the written notice is grounds for reversal of the judgment and remand of the cause.

The trial court upon making a decision will fully comply with Guideline No. 5, which reads:

“A written statement by the judge as to the evidence relied on and reasons for revoking probation."

The judgment is reversed and the cause is remanded.

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

REVERSED AND REMANDED.'

All the Judges concur, except DeCARLO, J., who dissents.


text:
    Alonzo POSEY v. STATE.
    7 Div. 582.
    Court of Criminal Appeals of Alabama.
    May 2, 1978.
    Rehearing Denied July 25, 1978.

      Edward Cunningham, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of murder in the second degree and the jury fixed his punishment at twenty-five years in the penitentiary. He was represented by retained counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and petitioned for a free transcript. He was furnished a free transcript and trial counsel was appointed to represent him on this appeal.

This case arose from an incident which occurred in the Northside Pool Hall in Gadsden, Alabama on July 12, 1977. The evidence is undisputed that on that date, appellant shot and killed Lawrence Bradford in the Northside Pool Hall. Appellant contends, however, the shooting was in self-defense.

Dr. William S. Warren testified that, on August 5, 1977, he examined the body of Lawrence Bradford. In his opinion, the cause of death was a gunshot wound to the brain. The entrance of the bullet was at the rear of the skull on the right side. The deceased was first examined by Warren on July 12, 1977. Bradford died on August 5, 1977. A death certificate signed by Warren, stating that Bradford’s cause of death was a gunshot wound to “both cerebral hemispheres,” was admitted into evidence without objection.

Daniel M. Avery, employed by the State Department of Toxicology and Criminal Investigation, testified that he conducted an autopsy on the body of Lawrence Bradford on August 8, 1977. Avery recovered a projectile from the left mid-portion of the brain. The entrance of the bullet was made in the right rear portion of the deceased’s skull. Avery attributed Bradford’s death to bronchopneumonia resulting from the gunshot wound. Avery marked this bullet for identification and turned it over to Ralph Phillips, a field agent for the Department of Toxicology.

John M. Case, employed by the Department of Toxicology, testified that he received a .22 caliber pistol and a spent projectile from Ralph Williams on August 9, 1977. Following test firings, Case formed the opinion that the spent projectile was similar to test rounds fired from the pistol. However, a definite conclusion could not be reached because of the damaged condition of the “evidence bullet.” The pistol and spent projectile were admitted into evidence without objection.

Jimmy Sumpter testified that he worked at the American Sportsman Center, a poolroom on Tuscaloosa Street in Etowah County. Sumpter saw appellant in the poolroom on July 12,1977. While appellant was playing cards, deceased walked in. Appellant asked him, “Man, you want to pay my dollar?” Then the deceased replied, “I’m not going to pay you no dollar.” Appellant, Sumpter testified, then left, only to return about five minutes later to ask the deceased for the dollar again. When the deceased repeated he would not, appellant walked up behind him and shot him. The deceased was counting his money at the time. Sumpter testified the deceased had no weapon. On cross-examination, the witness testified that the deceased carried a .357 magnum pistol. Sumpter testified that the deceased was “pretty violent, but not that bad.”

Mark Worthy testified to substantially the same events as Sumpter. He added that when appellant returned to the poolroom after asking the deceased for the dollar that he saw appellant place the gun, in evidence, in a front trousers pocket. Worthy saw appellant place the gun to the deceased’s head and shoot him. The deceased had some money in his hand at the time. Worthy did not see the deceased with a gun that day; however, he had seen deceased carry a .357 magnum pistol. The deceased wore this pistol in a shoulder holster or stuck in his belt on the left side. Worthy testified that, after he was shot, the deceased said “something about his gun.” Worthy did not see the weapon, however.

Lieutenant Morris Alexander of the Gadsden Police Department testified that he investigated a shooting at the Sportsman Center Pool Hall on July 12, 1977. He did not find any weapon on Bradford’s person. Alexander subsequently arrested appellant and advised him of his “Miranda Rights,” after which appellant signed a waiver form. At that point, appellant dictated a statement to Alexander. This statement was admitted into evidence and is set out below verbatim, and the typographical and grammatical errors in the original are not corrected.

“Today about 11:00 o’clock I picked Pete Sumpter up and carried him to the Northside Pool Room where he works, after we got there Mitchell Worthy come up and ask me to carry him to Bonanza Sirloin Pit where he works and Pete rode with me down there, then we went back to the pool room and I sit around there and played Trey low cards about 3:30 I left the pool room and went to see a guy who plays Piano in my band but he was not at home so I went back to the pool room when I went in they had broke up the card game And I walked around the Table and Lawrence Bradford was sitting on the table counting his money and I ask him when are you going to give me the Dollar that you owe me and Lawrence turned around and said I aint going to give you a goddam thing and steped down as he steped down he reach like he was going to reach under his shirt and I stepped to my right and pulled my gun and shot one time, them I walked around him and pointed the gun at him and he didnt move and I went to the doorv and pete was the last one out of the pool room and he sais dont shoot him anymore and I said I am not but if he moves Ill blow his brains out but he Quit moving so I put my gun up and said to call the Police, Then I left and went out by the Agricola shopping canter where my sister works and told her what had happened I left there and went to the county courthouse where I give myself up, And they called the police. This statement is true and correct to the best of my knoeledge and was typed for me by Lt M. L. Alexander after he explained my rights to me.”

This statement was signed by appellant. Alexander witnessed appellant’s signature. Appellant cooperated with Alexander, “one hundred percent.”

Eunice Bradford testified that she was the widow of the deceased. On July 12, 1977, Mrs. Bradford testified, the deceased’s .357 magnum was under the mattress of their bed at home.

At this time the State rested and appellant made the following motion, which was denied:

“Mr. Bone: At this time, if the Court please, we move to exclude the evidence and discharge the Defendant.
“The Court: Motion overruled.”

Appellant testified that the deceased carried a .357 magnum pistol on his person every day. This weapon was carried concealed under the deceased’s shirt. Appellant testified that he had a .22 caliber pistol on the day of the fatal incident to sell in order to pay back a loan.

Following is appellant’s version of the events in the poolroom.

From the record:
“Q. Did Pete say anything then?
“A. Well, Pete — Pete said, said, ‘He just lost $100 in a dice game.’ Said, ‘Man, Squeaky just lost $100 in a dice game.’ Like that, you know, so, well, I knew him — I knew what kind of person he was and so I—
“Q. Who are you talking about now, Pete or Squeaky?
“A. Squeaky. And I knew he was, you know, upset, you know, because of that and I just — I stepped back then, you know, because he said that, you know, that he had just lost his $100 and so, then Squeaky jumped up from 'the table, you know, kicked his foot down and jumped up from the table like that toward me, turned toward me, facing me, and said, ‘Nigger, I’m not going to give you a God damn thing like that.’ And I was backing away from him. He was saying something else, you know. What caught my attention was that Squeaky was run his hand in his shirt like that.
“Q. Did you say anything to him?
“A. Well, I said — I said, ‘Don’t.’ Like that, because I knew what he was doing, you know, because when he was sitting on the table like that you could see the handle of the gun up under his shirt, you know, and so, I said — I said, ‘Squeaky, don’t.’ You know, ‘Don’t.’ Like that, and just started backing away from him and I thought about the gun that I had. I reached in and someway got it and got it out. Well, I wasn’t accustomed to having it and so I don’t know quite what he made me think about the gun I had, but I grabbed the gun out and well, I was — I come up like this. I just figured, you know, he kill me anyway, you know, just like that, because I knew what kind of gun it was and I knew what it would do to a person, and I just figured, you know, well, when I heard the shot, well, I didn’t know really whether it was his gun or my gun that went off, you know, just like that. (Indicating)”

Appellant testified that he did not intend to kill Bradford. Appellant insisted that he told Alexander that he saw the deceased’s gun, although that was not in the statement which he signed. On cross-examination, appellant testified that he had been convicted of grand larceny.

Booker T. Lee testified that appellant’s general reputation and reputation for peace and quiet were good. He also testified that appellant’s reputation for truth and veracity was good and that he would believe appellant under oath.

Oliver Bond testified that appellant’s reputation for truth and veracity was good.

Allen Stanford testified that appellant’s reputation for truth and veracity was good.

In rebuttal, Ralph Machen testified that the deceased’s general reputation was good.

James Kelton testified that the deceased’s general reputation and reputation for peace and quiet were good.

Joe Howard and Larry Johnson testified that the general reputation of the deceased for peace and quiet was good.

Vanderbilt Hoyt in rebuttal for the defense testified that the deceased had fired a shotgun at his home while he and his children were there.

Murder in the second degree is the unlawful killing of a human being with malice, but without deliberation or premeditation. Parks v. State, Ala.Cr.App., 333 So.2d 906. The evidence in this case was sufficient to support appellant’s conviction despite appellant’s contention that the shooting was in self-defense. Conflicting evidence is always a question for the jury to determine. Pike v. State, Ala.Cr.App., 340 So.2d 865; Lee v. State, Ala.Cr.App., 346 So.2d 31.

Appellant contends that the State never established that the homicide occurred in Etowah County. He urges that this matter of venue was raised in the trial court by his motion to exclude the State’s evidence.

It is well established that the issue of venue is not preserved where the motion to exclude is couched in general terms and fails to specifically refer to the sufficiency of the evidence to prove venue. Hunt v. State, Ala.Cr.App., 331 So.2d 834. This issue may not be raised for the first time on appeal. Daly v. State, 47 Ala.App. 681, 260 So.2d 412; Hunt, supra; Eagen v. State, 280 Ala. 438, 194 So.2d 842; Richardson v. State, 39 Ala.App. 207, 98 So.2d 59.

Two eyewitnesses to the shooting, Jimmy Sumpter and Mark Worthy, both testified that they were at this, particular pool hall on Tuscaloosa Street when the shooting occurred. Sumpter’s testimony specifically mentioned Etowah County.

From the record:

“Q. Please state your name to the Court and jury.

“A. Jimmy Sumpter.

“Q. Where do you live?

“A. 1220 Brookside Drive.

“Q. How old are you?

“The Court: Speak up so they can hear.

“A. Twenty-six.

“Q. Where do you work?

“A. Down poolroom on Tuscaloosa.

“Q. What poolroom?

“A. American Sportsman Center.

“Q. Do they have a name for it?

“A. Yeah.

“Q. The poolroom?

“A. Yeah.

“Q. What’s the name?

“A. American Sportsman Center.

“Q. Sportsman Club?

“A. Center.

“Q. Beg your pardon?

“A. Center.

“Q. Center?

“A. Yeah.

“Q. Sportsman Center?

“A. Yeah.

“Q. I see. And is that at 1010 Tuscaloosa?

“A. Yes.

“Q. Here in Etowah County?

“A. Yeah.

“Q. Mr. Sumpter, how long have you worked there at the poolroom?

“A. About two years, I think.

“Q. Two years?

“A. (Witness nods head in the affirmative)

“Q. And were you working there on the date of July the 12th on a Tuesday of this year, back this past summer?

“A. Yes.

“Q. And did you have occasion to see Alonzo Posey, the Defendant, in this poolroom?

“A. Yes.”

Mark Worthy testified that he was present in this same pool hall and saw appellant shoot the deceased in the back of the head.

Morris Alexander, a Lieutenant of Detectives of the City of Gadsden, testified that he made an investigation of the shooting at the Sportsman Center Pool Hall on July 12, 1977. He stated, “When I arrived at the scene I found Lawrence Bradford laying on the floor of the pool hall and he stated that he had been shot.”

He further testified that he did not find a weapon of any kind on the person of Lawrence. Bradford. He was asked who was present when he arrived and replied, “Jimmy Sumpter was present, the only one I know by that name. There were some more people, but I don’t know their names.”

Venue may be established by circumstantial evidence. In Willcutt v. State, 284 Ala. 547, 226 So.2d 328, the rule is stated as follows:

“While proof of venue is essential to a conviction, it, like any other fact in the case, may be established by circumstantial evidence; and when the State offers evidence tending to show that the crime was committed within the jurisdiction of the court, the question becomes one for the jury. Denton v. State, 263 Ala. 311, 82 So.2d 406.”

State’s Exhibit 1, “Verification of Death Record,” clearly shows that the homicide occurred in Etowah County, Alabama.

A careful search of the record fails to reveal any error injuriously affecting the substantial rights of appellant, and the judgment of conviction is due to be affirmed.

AFFIRMED.

All the Judges concur.