author: TYSON, Judge.

text:
    Johnny HARRIS v. STATE.
    6 Div. 819.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Petition for Additional Facts Denied and Application for Rehearing Denied Nov. 21, 1978.

      William H. Allison, Jr., and Eleanore M. Garber of Allison, Soreff & Garber, Louisville, Ky., W. Clinton Brown, Jr. of Crawford, Blacksher, Figures & Brown, H. Diana Hicks, Mobile, Anthony Amsterdam, Stanford, Cal., Jack Greenberg, James Nabrit, III, David Kendall, Peggy Davis, New York City, for appellant.
    William J. Baxley, Atty. Gen., and J. Bernard Brannan, Jr., Mary Jane LeCroy, Larry R. Newman, Asst. Attys. Gen., for the State.
   TYSON, Judge.

The appellant was indicted at the October, 1970, Term of the Jefferson County Grand Jury on four charges of robbery and one charge of rape. When the case was called for trial, on April 5, 1971, the appellant was present in court with his two court-appointed attorneys, the Honorable Milton Garrett and the Honorable Louis Scholl, who each announced, “Ready for Trial.” Trial was set for the following day on the rape case, which had been assigned by the court to Attorney Louis Scholl. Immediately after the jury had been qualified for trial, the defense requested, and was granted, additional time to confer with the appellant. Subsequent to the conference with his attorneys, the appellant executed an Ireland form (Court’s Exhibit A, R. pp. 726, 778, 869, 914), i. e., an explanation of appellant’s constitutional rights, in each case. Thereafter, the appellant entered pleas of guilty in each case and was sentenced to five consecutive life sentences. No appeal was taken from these above convictions.

In May, 1973, the trial judge dismissed the appellant’s pro se petition for a writ of error coram nobis. While serving his sentences, the appellant, in 1975, was charged with, and convicted of, murder in the first degree under Title 14, Section 319, Code of Alabama 1940. Punishment was fixed by the jury at death by electrocution. This cause was affirmed by this court in Harris v. State, Ala.Cr.App., 352 So.2d 460 (1977), and affirmed by the Alabama Supreme Court at 352 So.2d 479, which set the execution date for March 10, 1978.

On February 17, 1978, the trial judge denied the appellant’s motion for stay of execution, which was filed contemporaneously with a petition for writ of error coram nobis in each of the five cases wherein life sentences were given.

On March 7, 1978, in the United States District Court for the Southern District of Alabama, the appellant was granted a stay of execution for a period of sixty days. On March 21, 1978, the appellant, through his volunteer counsel, amended his petition for writ of error coram nobis. A hearing on the appellant’s petition was set for March 31, 1978, and subsequently continued until April 6, 1978. On that date, the appellant was represented in court by his volunteer counsel whose zealous and competent representation in this cause has been exemplary. At the conclusion of the hearing on the petition, the trial judge took the matter under consideration until April 19, 1978, when he rendered a written decree denying the petition (R. pp. 764, 810, 855, 900, 945). From the denial of his petition for writ of error coram nobis, appellant prosecutes this appeal.

I

Appellant asserts that his right to effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution was denied him during the course of the handling of the eases which culminated in his receiving five consecutive life sentences on April 6, 1971. Appellant enumerates in brief specific instances of allegedly ineffective assistance of counsel. Discussion herein of the issues raised by the allegations shall be limited to the question of whether the testimony presented at the coram nobis hearing was sufficient, as a matter of law, to entitle the appellant to a new trial.

The bench notes (Exhibits 2-6) indicate that appellant’s preliminary hearing was set for September 11, 1970, on four charges of robbery and one charge of rape (R. p. 65). Attorney John Prince was appointed to represent the appellant at this stage of the proceedings. Attorney Prince testified that he made an agreement with the District Attorney to the effect that the District Attorney would open his files to the defense if the defense agreed to waive the preliminary hearing (R. pp. 105, 106).

Attorney Prince testified that appellant agreed to waive the preliminary hearing (R. p. 106). Appellant testified that he did not agree to waive the preliminary hearing (R. p. 653). Appellant argues that waiver of the preliminary hearing illustrates the ineffectiveness of appellant’s counsel. Clearly, the conflict in the testimony presented a question of fact. It is not within the province of this Court to pass judgment on the truthfulness or falsity of conflicting evidence. May v. State, Ala.Cr. App., 335 So.2d 242 (1976); Snipes v. State, 50 Ala.App. 139, 277 So.2d 413 (1973).

Appellant asserts that his attorneys’ failure to conduct adequate pretrial investigation is another instance illustrating his denial of the right to effective assistance of counsel. It appears from examination of Attorney Garrett’s file that the bulk of his investigative effort related to the rape charge. The fact that the rape charge was to be tried first probably explains the emphasis that Attorney Garrett placed on that case. The record reveals that Attorney Garrett was appointed to defend the appellant on two robbery charges. The victim of one of the alleged robberies was also the victim in the rape case that Attorney Scholl was appointed to defend. For this reason, it is difficult to separate Attorney Garrett’s investigative work on the robbery charge from his work on the rape charge. The testimony of both Attorney Garrett and Attorney Scholl indicates that they came to an understanding concerning their work on the appellant’s cases (R. pp. 505, 220). Accordingly, Attorney Garrett was to handle the investigative work and Attorney Scholl was to conduct research into matters dealing with the trial itself.

Appellant makes much of the assertion that the attorneys’ division of labor on the five cases was unauthorized in light of their specific appointment by the judge to individual cases. Implicit in the argument is the assumption that authorization was required for such an arrangement between the attorneys. The fallacy of the appellant’s argument is that, if it was the appellant’s attorneys’ best judgment that a more effective and adequate defense could be given the appellant by avoiding inefficient, uncoordinated investigation and research, then to require court authorization for such an arrangement would remove a vital part of the flexibility requisite to effective, adequate representation of a defendant at trial, and to an attorney’s preparation for trial. Such authorization, if required by court decree, would necessarily entail the inefficient management of an attorney’s time, contrary to the client’s best interest.

Appellant asserts that another element of his attorneys’ ineffective representation of him was their failure to make any pretrial motions or to enter any special pleas. Appellant presented expert testimony to the effect that, under certain circumstances, pretrial motions could be crucial to the outcome of a criminal case, especially one involving arrest, search and seizure, and preindictment lineups. But none of appellant’s experts could be unequivocal when asked whether it was outside the range of competence demanded of attorneys in criminal cases not to file pretrial motions. Furthermore, the testimony of Judge Gibson (R. p. 701) indicates that the practice in the Circuit Court of the Tenth Judicial Circuit at the time of appellant’s trial was to deal with pretrial motions at the trial on voir dire with the jury excused from the courtroom. The failure to file pretrial motions would seem, therefore, to be in conformance with the general practice locally rather than in violation of the attorneys’ constitutional duties.

Appellant asserts that the failure of his appointed counsel to subpoena the medical report on the rape victim is further support for his contention that he was denied the right to effective assistance of counsel. The testimony of the appellant and both attorneys indicates that the defense to be used against the rape charge was alibi. It is a fundamental proposition that the defense of alibi does not involve a denial that the offense in question occurred. Rather, the defense asserts that the defendant was not involved with the occurrence of the offense because of his alibi which he seeks to establish through his own and others’ testimony. It would seem, therefore, not unreasonable to conclude from the testimony presented that it was the appellant’s attorneys’ best judgment that the medical report on the rape victim was not probative of the appellant’s innocence since the defense agreed to was alibi, and the medical report did not tend to establish an alibi or lend support thereto. Appellant replies that the medical report might have made the defense of consent a viable option. However, since the appellant himself asserted to his attorneys that he did not commit the offense, there would seem to be a fundamental inconsistency in the pursuit of consent as a defense under these circumstances.

Appellant asserts that failure to subpoena witnesses to appear to testify at appellant’s trial is another instance which illustrates that he was denied the right to effective assistance of counsel. This conclusion is not warranted from the testimony presented in that it was the appellant’s two attorneys’ best judgment that the appellant’s alibi witnesses were certain to be in court on the day of trial, thus rendering a subpoena unnecessary to assure their presence. Also, such subpoenas would necessarily reveal the witnesses’ identity to the State. Furthermore, the testimony is in conflict as to whether the witnesses were, in fact, in court on the appointed day, April 6, 1971. Appellant testified that no alibi witnesses were present in court on the day of trial (R. p. 665). Attorneys Garrett and Scholl testified that alibi witnesses were present (R. pp. 584, 249). As hereinabove noted, it is not within the province of this Court to resolve such conflicts in the evidence. May v. State, supra. The trial court’s findings are supported by the evidence.

The record reveals that Attorney Scholl’s file on appellant’s cases contained only seven pages of material. Furthermore, it is apparent from his testimony that Attorney Scholl’s memory of important facets of his representation of appellant was extremely vague. Attorney Scholl testified that the scant materials that he produced at the coram nobis hearing in response to appellant’s subpoena duces tecum were not all of his work product on appellant’s cases (R. p. 301). However, he was unable to produce the missing materials after diligent search of every place where such might be found.

Appellant argues that Attorney Scholl’s inability to document or to recall independently specific events in the representation of appellant seven years prior to the coram nobis hearing should lead to the conclusion that appellant was not effectively represented. It is a matter of record that, on April 6, 1971, in court, Attorney Scholl announced that he was ready for trial.

The presumption indulged by the court in a coram nobis hearing is to the effect that counsel was adequate and effective at trial. Willis v. State, 42 Ala.App. 85, 152 So.2d 883 (1963).

The testimony presented does not fully, clearly, and satisfactorily overcome the presumption that Attorney Scholl was prepared for trial when he announced he was ready for trial. It is not unreasonable to conclude from the testimony that Attorney Scholl was prepared for trial and later, during the seven year interval, lost or misplaced his work product. Time alone will dim memories. This Court’s determination with respect to this particular allegation speaks solely to the weight of the testimony presented at the coram nobis hearing and is not intended to be a statement relating in any manner to the standards of conduct demanded of attorneys in good standing with the State Bar Association of the State of Alabama embodied in the Code of Professional Responsibility, 293 Ala. XXVII.

Appellant testified that at the trial, on April 6, 1971, during a pause in the jury selection process his attorneys informed him that no witnesses were subpoenaed, that they were not prepared for trial and that he should change his plea in order to avoid the possibility of receiving the death penalty (R. p. 667).

Appellant argues that his attorneys’ inadequate investigation and preparation so narrowed his alternatives that his plea of guilty was, in effect, coerced. The testimony of Attorneys Garrett and Scholl directly contradicts appellant’s account of the decision to plead guilty. According to Attorney Scholl, when he asked appellant why he wanted to change his plea, appellant said (R. p. 288):

. . [T]hey have got me cold on three cases and I don’t want to go through five trials.”

Resolution of the conflict in the testimony, as hereinabove stated, is not the province of this Court. May v. State, supra.

The foregoing discussion of the various specific allegations in appellant’s petition restated on this appeal is intended to show that appellant has failed to carry the very heavy burden of proof demanded in a petition for writ of error coram nobis.

“The petitioner has the burden of fully, clearly, and satisfactorily proving the allegations in his or her petition. The trial court’s judgment is presumed correct as is the voluntariness of a guilty plea, the adequacy of counsel, the truth of testimony, and the legality of a search and seizure used in obtaining evidence. The degree of proof required to rebut these presumptions and to prove the allegations of the petition is the highest used in any civil action; it is ‘highly exacting as to proof of facts “and always means more than reasonably satisfying.” ’ ” [Footnotes omitted]
Comment, Postconviction Remedies in Alabama, 29 Ala.L.Rev. 617, 633 (1978).

Therefore, the allegation that appellant was denied the effective assistance of counsel must be rejected as not having been established and sustained by the proof presented. We quote from the judgment of the trial court (R. pp. 771-773, 817-819, 862-864, 907-909, 952-954):

“Each accused is entitled not only to assistance of counsel, but to effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). As stated in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the State must appoint counsel for an accused felon if he cannot afford to hire his own attorney.
“The same standards of representation apply whether counsel is retained or appointed. The standard of effective counsel does not guarantee an accused an attorney with whose advise he can agree nor can it be equated with a not guilty verdict. When the question arises whether an accused should plead guilty, waive a trial by jury or take the witness stand, defense counsel must be governed by and abide by the wishes of his client. Taylor v. State, 291 Ala. 756, 287 So.2d 901 “Effective assistance does not mean that counsel is not free from error. What may later seem to be error may have been a trial tactic at the time. As to what pretrial motions should be filed and other strategic and tactical decisions should be within the province of the lawyer after consultation with the client. Quoting Chief Justice Burger, who wrote while a Circuit Judge for the United States Court of Appeals, District of Columbia Circuit, ‘We reject the notion that it is defense counsel’s duty to “make every motion in the book” in the hope that one may succeed.’ There is a heavy burden on petitioner to establish his claim of ineffective assistance of counsel. Harried v. U. S., 128 U.S.App.D.C. 330, 389 F.2d 281.
“In Williams v. Beto, 354 F.2d 698, 704 (5th Cir. 1965), the Fifth Circuit Court of Appeals said:
“ ‘It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory or without adequate opportunity for conference and preparation.’
“See also United States v. Long, 419 F.2d 91 (5th Cir.). The petitioner in these five cases failed to advise the Trial Court as to any disagreement between said petitioner and his court appointed attorneys. “This Court holds that the petitioner has failed to carry the heavy burden to show incompetent or ineffective counsel. This Court further finds that the court appointed attorneys, Honorable Louis Scholl and Honorable Milton Garrett, were and are competent and effective defense attorneys to represent indigents in any jurisdiction. Both of these attorneys have handled numerous criminal matters competently and effectively in this Court and the five cases in question here are no exception.”

II

Appellant asserts that the court below used the wrong standards in reviewing the conduct of appellant’s attorneys at trial. Appellant relies on Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974), for the proposition that the determination as to whether the proceedings were rendered a farce or mockery of justice (the standard used by the court below) “is but one criterion for determining if an accused has received the constitutionally required minimum representation.” Herring v. Estelle, supra, at 128.

While this Court often looks to the United States Court of Appeals for the Fifth Circuit for guidance, the holdings of that Court are regarded as persuasive authority, and we are not bound to adhere totally to same.

This Court has held that the duty of counsel, retained or appointed, is to prevent the trial from being or appearing to be a farce or mockery of justice. Gore v. State, 45 Ala.App. 146, 227 So.2d 432, cert. denied, 284 Ala. 729, 227 So.2d 435 (1969), cert. denied, 397 U.S. 966, 90 S,Ct. 1002, 25 L.Ed.2d 258 (1970).

Therefore, we determine that there is no merit to the contention that the court below used the wrong standards in judging appellant’s attorneys’ representation. See also, Walker v. State, Ala.Cr.App., 355 So.2d 755 (1978); Hillyer v. State, Ala.Cr.App., 351 So.2d 646, cert. denied, Ala., 351 So.2d 648 (1977); Lee v. State, Ala.Cr.App., 349 So.2d 134 (1977); Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973), cert. denied, 416 U.S. 945, 94 S.Ct. 1955, 40 L.Ed.2d 298 (1974); Mills v. State, 275 Ala. 217, 153 So.2d 650 (1963).

Ill

Appellant argues that the lower court improperly restricted the scope of the coram nobis hearing. The result of the court’s ruling was the exclusion of the following evidence:

(1) The medical report on the rape victim;
(2) The files of the district attorney and the police;
(3) The payment vouchers from the State Comptroller’s Office to Attorneys Garrett and Scholl for cases other than appellant’s case;
(4) Alibi testimony;
(5) Testimony concerning appellant’s alleged hostility ' toward Attorney Scholl.

In approving the lower court’s ruling on the above matters, we quote from the relevant portion of the record (R. pp. 38-40):

“THE COURT: The Court is well aware of the situation before it and the surrounding circumstances involving other matters pertaining to this petitioner. However, this Court is still bound by the law and I intend to follow the law in the matter. And as a matter of law and I will quote from one of the cases that accurately spells out the office of a petition for writ of error coram nobis, and it is the case of Groce vs. State. The office of the writ of error coram nobis under Alabama law is to bring to the attention of the Court for correction of error of fact; one not appearing on the face of the record, unknown to the Court or the party affected and which, if known in time, would have prevented the judgment challenged and serves as a motion for a new trial on the ground of newly discovered evidence. The writ is not intended to relieve a party from his own negligence and cannot serve as a substitute for an appeal nor to enable a defendant to question the merits of the case for which he stands convicted. With that in mind .
“MR. ALLISON: What’s the cite on that?
“THE COURT: That’s 267 Southern 2nd, 499.
“With that in mind and the case of Tollett vs. Henderson and the case of McMann vs. Richardson, the issues before us are five guilty pleas. Those five guilty pleas are a break in the chain of criminal process from the time of the offense occurring, the arrest, up to the time of trial. There must be a plea of guilty before we can proceed on this basis and I am referring only to a coram nobis that applies to pleas of guilty and not to where there had been trials. Therefore, in view of the cases, United States Supreme Court cases too, that you cannot raise independent claims to denial of constitutional rights occurred prior to the plea. You can only attack the voluntary and intelligent character of the guilty plea, such as the advice of counsel and competent counsel; third, you can refer to the judgment of the defendant and counsel to enter a plea and evaluate the State’s case. You must consider the effective assistance of competent counsel and as was stated in some of the Supreme Court cases, that the defendant at times assumes the risk of ordinary error in either his or his attorney’s assessment of the law and facts and I am referring primarily to the McMann vs. Richardson case. So to reiterate, the issues before us are the petition for writ of error coram nobis is to correct an error of fact not appearing on the face of the record, unknown to the Court, unknown to the defendant at the time of the entry of the plea of guilty and had that been known, it would have changed the judgment and it amounts to a motion for a new trial on newly discovered evidence unless you can show ineffective or incompetent counsel. So with the issues as specified by this Court, this Court feels we are in a position to proceed at this time.”

Accordingly, we adopt the opinion of the trial court quoted hereinafter with respect to its ruling on the scope of the coram nobis hearing in this cause (R. pp. 773-774, 819-820, 864-865, 909-910, 954-955). See, Tyson, Whither: On Habeas, 24 Ala. Lawyer 271 (1963), cited in Goodwin v. Holman, 361 F.2d 403, 404 (5th Cir. 1966); Pate v. Holman, 341 F.2d 764, 768 (5th Cir. 1965); Williams v. Alabama, 341 F.2d 777, 781 (5th Cir. 1965). See generally, Burns v. Alabama, 377 F.2d 233 (5th Cir. 1967); Bland v. Alabama, 356 F.2d 8 (5th Cir. 1966); Davis v. Holman, 354 F.2d 773 (5th Cir. 1965).

“Finally, we should address the issue of the purpose of the Writ of Error Coram Nobis in the criminal justice system. This Court has found no better words regarding this issue than those of the Supreme Court of Alabama and reiterated by the Alabama Court of Criminal Appeals and the United States District Court for the Southern District of Alabama:
“ ‘The office of the “writ of error cor-am nobis,” under Alabama Law, is to bring to the attention of the Court for correction of an error of fact, one not appearing on the face of the record, unknown to the Court or party affected, and which, if known in time, would have prevented the judgment challenged and serves as a motion for a new trial on the ground of newly discovered evidence. The writ is not intended to relieve a party from his own negligence, and cannot serve as a substitute for an appeal, nor to enable a defendant to question the merits of the case for which he stands convicted.’ Tillis v. State, 349 So.2d 95 (1977); Groce v. State, 48 Ala.App. 709, 267 So.2d 499; Smith v. Hickson [Hixon], 149 F.Supp. 283; Smith v. State, 245 Ala. 161, 16 So.2d 315.”

IV

With respect to the remaining issues raised on this appeal, we adopt the opinion of the lower court as the opinion of this Court (R. pp. 776-774, 812-820, 857-865, 902-910, 947-955):

“The petitioner filed Motions for Appointment of Counsel and Motions for Funds for Investigative and Hearing Purposes and for Payment of Counsel in each of the five cases. The petitioner was represented in all proceedings by volunteer attorneys who appeared and adequately and competently represented him. These attorneys have represented the petitioner in the Circuit Courts, Appellate Courts of Alabama and Federal Courts as is shown in Paragraph 4 of the Motions for Funds, etc. This Court finds that in all proceedings to date, the attorneys, Honorable William A. Allison, Honorable Eleanore Garber, Honorable W. Clinton Brown and Honorable H. Diana Hicks, have been well prepared and have adequately and competently represented the petitioner. Therefore, there was no injury or denial of due process nor denial of right to counsel to the petitioner when this Court denied the Motions for Appointment of Counsel for a Coram Nobis hearing. Ford v. U. S. (5th Cir.), 363 F.2d 437 (1966); Juelich v. U. S., 342 F.2d 29. The denial of the Motions for Funds for Investigative and Hearing Purposes and for Payment of Counsel was not a denial of due process. While some provisions are made for this in the Federal system, it is not the present situation in this state. Tillis v. State, 292 Ala. 521, 296 So.2d 892; Wheeler v. State, 47 Ala.App. 457, 256 So.2d 197; and more recently in Harris v. State, 352 So.2d 460, the Alabama Court of Criminal Appeals stated:
“ ‘Appellant was not denied due process where the State did not provide funds for the employment of a special investigator to aid him in procuring witnesses in his defense.’ Citing Tillis v. State, supra.”
“That the petitioner had the assistance of able and competent counsel through all of these proceedings; that these volunteer attorneys protected all of the petitioner’s rights through all of the proceedings; that the petitioner did in fact have experts to testify in his behalf during the proceedings; and that this Court, at the request of the petitioner, issued numerous subpoenas and Subpoenas Duces Tecum further leads this Court to find, and it is so held, that none of the petitioner’s rights have been violated by the denial of the Motions for Funds.
“As noted above, the petitioner entered Pleas of Guilty on April 6, 1971, to one case of Rape and four cases of Robbery. These pleas were entered prior to the decision in Furman v. Georgia, supra. “The petitioner by Motion and in his Petitions for Writ of Error Coram Nobis and the Amendment thereto attempted to present matters affecting the criminal processes prior to the Pleas of Guilty. As shown by Brady v. U. S., 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, a defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty. In the instant cases, the petitioner entered guilty pleas and was sentenced to five consecutive life sentences as opposed to the maximum punishment of death in each case.
“A guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a person admits in Open Court that he is in fact guilty of the crime or crimes with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763:
“ ‘In our view a defendant’s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of defendant’s confession.’
“As shown by the Bench notes in each of the five cases, the defendant was asked by the Court if he had anything to say why the Court should not impose the sentence and he replied in each instance, ‘No Sir.’ The petitioner never complained of the character of the pleas of guilty prior to Furman v. Georgia, supra [408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346]. It was only after the Furman decision that the petitioner, in 1973, filed a Pro Se Petition for Writ of Error Coram Nobis and at that time he did not complain of the advice of his court appointed attorneys. The only allegation made in his Pro Se Petition was, ‘Petitioner contends that he was represented in Court, by a court appointed attorney, who seemingly didn’t have petitioner’s interest at heart.’
“Quoting again from McMann, supra, ‘What is at stake in this phase of the case is not the integrity of the state convictions obtained on guilty pleas, but whether, years later, defendants must be permitted to withdraw their pleas, which were perfectly valid when made, and be given another choice between admitting their guilt and putting the State to its proof.’
“Once the defendant chooses to by-pass the orderly procedure for litigating his constitutional claims in order to take the benefits, if any, of a plea of guilty, the State acquires a legitimate expectation of finality in the conviction thereby obtained. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196; McMann v. Richardson, supra. In all criminal prosecutions there must be a finality of litigation and how more final than a valid plea of guilty where a defendant in open court with competent counsel solemnly admits to having committed the crime for which he stands charged?
“The standard for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action opened to the defendant. North Carolina v. Henry Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). If the guilty pleas were voluntarily and intelligently made, the defendant should not be allowed to later attack the plea, even though he maintained his innocence, should he select that alternative, knowing the sentence to be less than the maximum. North Carolina v. Alford, supra. “In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the Supreme Court of the United States held that the record must disclose that the defendant voluntarily and intelligently and understanding^ entered the plea of guilty. As in the cases before this Court, the Record, Bench notes and ‘Court’s Exhibit A,’ also known as the ‘Ireland Form,’ were sufficient record to show that the petitioner, at the time of the pleas, knowingly, intelligently and understanding^ entered such pleas. Twyman v. State, 293 Ala. 75, 300 So.2d 124; Ireland v. State, 47 Ala.App. 65, 250 So.2d 602; White v. State, 54 Ala.App. 27, 304 So.2d 268.
“As to the Preliminary Hearing, the petitioner cannot raise independent claims to denial of constitutional rights which arose prior to the guilty pleas. Lefkowitz v. Newsome, supra; Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235.
“On due and careful consideration of the evidence before this Court on each of the grounds of the Petitions and the Amendment thereto, separately and severally, it is the opinion of this Court that no ground of the Petitions and the Amended Petitions is well founded. It is further the opinion of this Court that the petitioner was not denied any right afforded him under the Constitution of the United States or the Constitution of the State of Alabama nor under any law thereof; that he voluntarily and intelligently and understanding^ entered pleas of guilty in each case with full knowledge of all of his rights, including those he was waiving by entering said pleas; that the pleas were voluntarily, knowingly and intelligently made along with and on the advice of capable, experienced, competent and effective attorneys. It is, therefore, the opinion of this Court that the Petitions and the Amended Petitions and each ground thereof should be denied.”

After careful consideration of the Five Volume Record involved in this appeal, we are of the opinion that this case is due to be, and is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Ex parte Johnny HARRIS.
    78-149.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

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


text:
    Farris James MARTIN, Jr. v. STATE.
    3 Div. 955, 956.
    Court of Criminal Appeals of Alabama.
    Nov. 16, 1978.
    Rehearing Denied Dec. 4, 1978.
    Marlin V. MacLaughlin, Jr., Frank W. Riggs, Montgomery, for appellant.
    No briefs filed for state.
   Appeal from Circuit Court, Montgomery County; Frank Embry, Judge. APPEAL DISMISSED, without opinion.

All the Judges concur.


author: BEATTY, Justice.

text:
    Re Farris James MARTIN, Jr. v. STATE of Alabama. Ex parte Farris James Martin, Jr.
    78-158.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    James Jerry Wood and David B. Byrne, Jr., Montgomery, for petitioner.
    No briefs for the State, respondent.
   BEATTY, Justice.

WRIT DENIED.

In denying this petition for writ of certio-rari we do not wish to be understood as precluding the petitioner from asserting a claim under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), in a petition for writ of error corám nobis in the trial court.

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


author: HARRIS, Presiding Judge.

text:
    Farris James MARTIN, Jr. v. STATE.
    3 Div. 955, 956.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied Jan. 31, 1979.
    James Jerry Wood, David B. Byrne, Jr., Montgomery, for petitioner.
   HARRIS, Presiding Judge.

Petition for stay of Judgment DENIED.

All the Judges concur.


author: BOWEN, Judge.

text:
    John M. COX v. STATE.
    6 Div. 539.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    Rehearing Denied Dec. 19, 1978.

      Roger A. Brown, of McDonald, Brown & Tipler, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicated and convicted of a violation of Section 177(2) of Act No. 407 of the 1971 Regular Session of the Alabama Legislature (Title 28A, § 177(2), Code of Alabama 1940, 1978 Cumulative Supplement, now Section 27-8-28, Code of Alabama 1975) involving the embezzlement of premiums or other funds by an insurance agent. On a four year sentence the appellant was ordered imprisoned for six months and granted probation for the remainder of his sentence.

In October of 1975 Robert C. Farnham met with Donald E. Luna in order to secure a six hundred thousand dollar loan with which to open the cardboard manufacturing firm of Sumter Industries, Inc. Luna was the vice-president of Business Insurance Consultants, Inc. The appellant was its president.

In order to secure the loan it was necessary that Farnham obtain life insurance. On December 23, 1975, Farnham gave a check for ten thousand dollars to Luna as a “deposit” or “binder for keyman mortgage insurance”. Both the appellant and Luna executed a signed statement acknowledging receipt of the money and stating that

“(i)f for any reason the mortgage applications and loans presently being handled . are not obtained to your satisfaction and the insurance applied for above not issued in a manner and rates acceptable to you, we agree to refund the money in full upon five (5) days’ notice.”

This ten thousand dollar check was deposited that same day to the account of Business Insurance Consultants giving this account a balance of $11,045.27. The appellant, Luna, and Charlotte L. Cox were the only persons authorized to sign on this account. Immediately the appellant took $6,500.00 of this total amount and deposited it to Mortgage Brokers of America, Inc. The appellant and Luna were the only two persons authorized to sign on this account. By December 31, 1975, a balance of $1,521.53 remained in the account of Business Insurance Consultants.

Farnham never received any insurance through the appellant, Luna, or Business Insurance Consultants. Though the appellant had submitted, as an agent, Farnham’s application for life insurance to Kennesaw Life and Accident Insurance Company, on March 16, 1976, the company’s file was closed because requested information had not been received. The file was never reopened.

On August 18, 1976, Farnham, through his attorney, formally demanded the return of his ten thousand dollars. The money was never returned.

In his defense the appellant testified that he received Farnham’s check as an officer and not a licensed insurance agent of Business Insurance Consultants. He testified to his efforts to secure a policy of insurance and that these efforts continued through July 26,1976. He maintained that he never received any notice of any type of the request for refund until after he had been indicted. The appellant testified that Farn-ham’s ten thousand dollars was and always had been available for return upon request.

In rebuttal the State called Ronald Bras-well who testified that during the summer of 1976 the appellant told him that “Farn-ham had asked for his money back and that . he felt like Farnham should be given his money back and that he would raise his five thousand dollars or his portion of the money provided Don Luna would raise his portion of the money and refund the money to Bob Farnham”.

I

Initially the appellant alleges that the State did not prove that he was acting as an agent in receiving the ten thousand dollars as charged in the indictment and as required by statute.

The indictment was framed in and tracked, as closely as possible, the language of Title 28A, Section 177, Code of Alabama 1940, 1973 Cumulative Supplement. That section reads:

“(a) All premiums, return premiums or other funds belonging to others received by an agent in transactions under his license shall be trust funds so received by the licensee in a fiduciary capacity, and the licensee shall promptly account for and pay the same to the insurer, insured or other person entitled thereto.
“(b) Any agent who, not being lawfully entitled thereto, diverts or appropriates such funds or any portion thereof to his own use, shall upon conviction be guilty of larceny by embezzlement and shall be punished as provided by law as if he had stolen such funds.” (Emphasis added)

An “agent” is defined by statute:

“(a) An agent is a natural person appointed and authorized by an insurer to solicit applications or to negotiate for insurance or annuity contracts on its behalf and, if authorized to do so by the insurer, to collect premiums in connection therewith.
“(b) The term ‘agent’ does not include any of the following:
(1) Any regular salaried officer or employee of an insurer or agent who does not solicit or accept from the public applications for any such insurance or contracts;
(2) A ticket-selling agent of a common carrier who sells accident insurance tickets to individuals; or
(3) Any regular salaried officer or employee of an insurer who renders assistance to, or on behalf of, a licensed agent of the insurer, if such officer or employee devotes substantially all of his time to activities other than the solicitation of applications for insurance or annuity contracts and receives no commission or other compensation directly dependent upon the amount of business obtained.”
Title 28A, Section 156, Code of Alabama 1940,1973 Cumulative Supplement (§ 27-8-1, Code of Alabama 1975).

The appellant maintains that the ten thousand dollar check was not a premium and that there is absolutely no evidence that he received any funds “in a transaction under his license”.

Farnham testified that he never discussed business “as such” with the appellant and that the ten thousand dollar check was “the down payment” for the three million dollar life insurance policy. The receipt signed by the appellant and Luna as president and vice-president of Business Insurance Consultants, Inc. concerned the “$10,000.00 binder for keyman mortgage insurance” and acknowledged receipt of a “deposit for $10,000.00”. On cross examination Fam-ham testified that “this was just a deposit to be used as a premium” and stated that “(d)eposit, premium, it is the same thing”.

On Farnham’s application for insurance with Kennesaw Life and Accident Insurance Company the appellant signed his name in two places designated as “agent” and “name of agent”. An underwriter for Kennesaw testified that the appellant was an agent for that company and that she received an application for insurance on Farnham signed by the appellant “as agent”. She specifically testified that the appellant was “the agent in this case”.

Although the appellant testified that he was not with Business Insurance Consultants as an insurance agent, he also stated that he “had to be an agent”, and not a consultant, when he submitted Farnham’s application to Kennesaw. He testified that he made the application as an agent.

The prosecution introduced the appellant’s insurance license issued by the State of Alabama for the year of 1975 with Ken-nesaw Life and Accident Insurance Company. The license covered life and disability insurance.

Under these facts we have no difficulty in finding that the appellant was an “agent” and in receiving the ten thousand dollar check and submitting the application for life insurance he was acting “in transactions under his license”.

Whether the ten thousand dollar check be considered a premium or deposit is immaterial. The check was received by an agent in a transaction under his license. The statute specifically covers “all premiums, return premiums or other funds belonging to others Title 28, Section 177(1).

The appellant further argues that “if he converted any funds it may have been as ordinary embezzlement, grand larceny or conceivably false pretenses but certainly not under this narrowly laid section of the Code”. We do not agree. The statute was enacted to cover the very type situation presented here. Were it not for the appellant’s agency and license, no application for insurance would have been submitted and no money would have been received. Under these circumstances the trial court properly denied the appellant’s motion to exclude the State’s evidence and request for the affirmative charge.

II

In urging this Court to reverse his conviction the appellant also maintains that, since there was no evidence of a conspiracy between himself and Luna, evidence should not have been admitted against him under any theory of a conspiracy.

Though circumstantial, substantial evidence of a conspiracy exists. The appellant was president and Luna was vice-president of Business Insurance Consultants, Inc. Both signed a receipt for the ten thousand dollars and acknowledged that this amount would be returned within five days after request if the insurance was not obtained. Farnham handed the check to Luna. The very day the check was received it was deposited into the account of Business Insurance Consultants. A portion of that amount was then withdrawn by the appellant and deposited into the account of Mortgage Brokers of America, Inc. The appellant and Luna were the only persons authorized to sign on this account. In the summer of 1976 the appellant made the statement that he knew Farnham had asked for the return of his ten thousand dollars and he would raise “his five thousand dollars or his portion of the money” if Luna would raise his. No insurance was ever obtained and, after demand, the ten thousand dollars was never returned.

These circumstances support a finding that the appellant and Luna were co-conspirators in the same crime even though Luna, not being a licensed insurance agent, could not be convicted of the substantive crime charged against the appellant. One who is incapable of committing the offense which is the object of the conspiracy may still be criminally liable for the conspiracy to commit it. Jollit v. United States, 285 F. 209 (5th Cir. 1923); Jones v. State, 31 Ala.App. 504, 19 So.2d 81 (1944); 15A C.J.S. Conspiracy § 73b.

“In order that the fact of a conspiracy may be established, it need not be proved by evidence of an express agreement or compact between the alleged conspirators, or by any direct evidence of any agreement or compact. It may be proved inferentially, or by circumstantial evidence. Conspiracies from their very nature are usually entered into in secret, and are consequently difficult to be reached by positive testimony, which renders it peculiarly necessary and proper to permit them to be inferred from the circumstances.” (Citations omitted) Conley v. State, 354 So.2d 1172, 1177 (Ala.Cr.App.1977).

The evidence presented affords a legal and permissible inference of the existence of a conspiracy between the appellant and Luna. Stowers v. State, 21 Ala.App. 501, 109 So. 561 (1926).

Ill

While the trial judge stated that he had “let in some evidence which in (his) mind was admissible by reason of co-conspirator-ship”, the only instance cited on appeal is the admission of the letter demanding the return of the ten thousand dollars.

The letter was jointly addressed to the appellant and Luna. It was written by Farnham’s attorney and sent by registered mail. The return receipt was not signed by either the appellant or Luna. Defense counsel stipulated that the letter “is part of the records of B.I.C.” but objected to its admission on the ground that the appellant never received the letter.

Clearly this letter was not admissible as a business record under Rule 44, Alabama Rules of Civil Procedure. This letter was not a “writing or record, . . ., made as a memorandum or record of any act, transaction, occurrence, or event, . . ., made in the regular course of any business, ., and it was the regular course of the business, . . ., to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter”.

However “(p)roof that a person possessed a writing usually warrants a finding or presumption that he knew the contents of such document”. C. Gamble, McEl-roy’s Alabama Evidence § 64.01 (3rd ed. 1977). “The possession of a document is an important and often the only circumstance to show that its possessor has by reading it become aware of its contents.” II Wig-more, Evidence §§ 245, 260 (3rd ed. 1940). Additionally Wigmore states that “The existence of a document in the house or among the goods of A may be offered as evidence that A has had possession of it, or has otherwise dealt with it”. I Wigmore, § 157(3). A letter written to the accused and found in his possession may be admissible against him where there is proof of some facts tending to connect him with the letter. 23 C.J.S. Criminal Law § 850.

In this case proof of actual receipt of the letter by the appellant was not required because there was evidence that a conspiracy existed between the appellant and Luna concerning the subject of the letter. It was stipulated that the letter was in fact a business record of Business Insurance Consultants. Luna’s knowledge of the letter and its contents was established by the testimony of the appellant himself.

“A. I knew that the man wanted his money back. Mr. Luna told me about the letter and that that letter had been answered and a response to that was coming.
“THE COURT: Wait a minute now.
What letter are we talking about.
“A. The letter that has been admitted. I was told about the letter at a later date.
“THE COURT: State’s Exhibit 15?
“A. I had never seen the letter as such.
“Q. You say you have never seen the letter?
“A. No, sir.”

The appellant testified that he first became aware of the letter after his indictment in November of 1976.

Since there is evidence from which it can be legally inferred that the complete conspiracy embraced not only the initial embezzlement or the unlawful obtaining of the ten thousand dollars but also the retention of the money after demand for its return was made, the conspiracy was a continuing one and Luna’s receipt and knowledge of the letter would be attributable to the appellant. It is permissible to allow statements of one co-conspirator to be received against another until the common purpose of the joint criminal venture has been accomplished. Cooper v. State, 43 Ala. App. 385, 389, 191 So.2d 224, cert. denied, 280 Ala. 711, 191 So.2d 229 (1966). Where proof of a conspiracy exists, any act or statement by an accused’s co-conspirator in the commission of the crime, done or made before the commission of the crime, during the existence of the conspiracy and in furtherance of a plan or design, is admissible against the accused. Conley v. State, 354 So.2d 1172, 1178 (Ala.Cr.App.1977). As long as a conspiracy exists, acts by co-conspirators in furtherance of a plan or design are admissible in evidence against the accused co-conspirator. Svirbely v. State, 53 Ala.App. 452, 455, 301 So.2d 219 (1974); see also Dailey v. State, 233 Ala. 384, 171 So. 729 (1937); Scott v. State, 30 Ala. 503 (1857); Bynum v. State, 348 So.2d 804 (Ala.Cr.App.), cert. quashed, 348 So.2d 828 (Ala.1976).

Luna’s knowledge and receipt of the letter would be attributable to the appellant since the conspiracy was still continuing and in existence even though the appellant never actually received or read the letter. People v. Halpin, 276 Ill. 363, 114 N.E. 932 (1916).

IV

The appellant objected to the trial judge’s oral charge to the jury on intent and repayment. The judge charged:

“Now, ladies and gentlemen, there must be in this case, as in every case under this statute in my judgment, there must be more than a mere failure to account for and pay the money. There must be evidence of fraudulent appropriation or disposition.
“To state it another way, there must be evidence indicating an intention to divert or to appropriate the funds or a portion of the funds to the defendant’s own use or to secrete it or for him to hide it or secrete it with an intention to so convert it. And that is the law as I understand the law.
“I further charge you that the demand for repayment is not a condition precedent to a showing of a diversion, or we will use this phrase is not a condition to a diversion or appropriation of the funds. And when I say a condition precedent, I will tell you that it is not necessary that there be a demand for repayment and the fact that a demand for repayment was not made is not a defense in this case. “And the fact, if it be a fact, that the funds were available or being held by the defendant or offered to be paid by the defendant is not a defense to this case. “The evidence as to repayment or holding the money, or what have you, is into this case and that is a ruling which the Court is called upon to make. It is admissible in this ease to show or not to show an intention to divert or appropriate the funds and it is to be considered by you in connection with all the other evidence in this case.”
This charge was proper.

The gravamen of the offense of embezzlement is that a person who has come rightfully into the possession of personal property by virtue of some trust, duty, agency or employment fraudulently converts it to his own use or fraudulently secretes it with the intent to convert it to his own use or to the use of another. Rogers v. State, 259 Ala. 124, 125, 65 So.2d 531 (1953).

It is no defense to a charge of embezzlement by an agent that after the offense was completed the agent promised to pay the money converted. Cephus v. State, 16 Ala.App. 499, 79 So. 197 (1918); Rogers v. State, 37 Ala.App. 8, 65 So.2d 525, cert. denied, 259 Ala. 124, 65 So.2d 531 (1953). A person taking money entrusted to him and using it even temporarily for his own benefit cannot avoid criminal responsibility by calling it a loan. Evans v. State, 343 So.2d 557 (Ala.Cr.App.1977). Even the fact that the funds have been repaid constitutes no defense. Troup v. State, 32 Ala. App. 309, 26 So.2d 611 (1946); Wall v. State, 2 Ala.App. 157, 56 So. 57 (1911). “Demand for return is no condition precedent to showing embezzlement . . . .” Adams v. State, 43 Ala.App. 281, 286, 189 So.2d 354, cert. denied, 280 Ala. 707, 191 So.2d 372 (1966). “The intention of accused to restore the money or other property embezzled will not relieve the act of its criminal nature; and this is so, even though accused has sufficient property to make restoration.” 29A C.J.S. Embezzlement § 12c.

We have searched the record for error and finding none affirm the judgment of conviction.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte John M. COX.
    78-181.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Hubert LEWIS, alias v. STATE
    6 Div. 740.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    Rehearing Denied Jan. 16, 1979.

      James C. Pino of Green & Pino, Pelham, for appellant.
    William J. Baxley, Atty. Gen., and James L. O’Kelley, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Appeal from denial of writ of error coram nobis.

At the October session of the 1975 Jefferson County Grand Jury, appellant was indicted for the stabbing deaths of two hobos. These two murders allegedly arose out of the same transaction. Appellant was tried separately on the two murder charges. He was represented by the same two attorneys at both trials. Different counsel was appointed to represent appellant in coram no-bis proceedings and on this appeal.

On the trial of the first case in April 1976, appellant was convicted of second degree murder. He was sentenced to thirty-five years imprisonment and is presently serving that sentence in the Jefferson County Jail. This court affirmed that conviction on June 28, 1977, without opinion. Lewis v. State, 6 Div. 245. The Supreme Court of Alabama denied certiorari on August 26, 1977, without opinion. Ex parte Lewis, SC 2752.

On the trial of the second case in July 1976, appellant was acquitted.

In December 1977, appellant petitioned the trial court pro se for a new trial by writ of error coram nobis alleging thirty-four grounds. The trial court held a hearing on January 10, 1978, to consider two of those grounds: (1) that appellant’s trial counsel erred for failure to subpoena certain witnesses (which ground the court considered in the nature of newly discovered evidence); and (2) ineffective assistance of counsel in violation of appellant’s federal sixth amendment rights. The trial court denied appellant’s writ, hence, this appeal.

Appellant contends on appeal that if two witnesses who testified at the second trial (wherein appellant was acquitted) had been subpoenaed to testify at the first trial (wherein appellant was convicted), he would not have been convicted in the first instance. Appellant argues that he should be granted a new trial based on that newly discovered evidence, but should this court decide that it is not newly discovered evidence, then trial counsel was incompetent for failure to discover the witnesses.

Testimony at both trials estimated that the murders took place sometime between the evening of July 7, 1975, and the morning of July 8,1975. The bodies were discovered under the Red Mountain Expressway near the 24th Street viaduct in Birmingham. This is an area near the railroad tracks where hobos and “winos” hang out hoping to obtain part-time work at the nearby warehouses. The warehouse of Standard Distributors (hereinafter, Standard) is located in the vicinity of the alleged murder scene. .One or more of the State’s witnesses testified at both trials that the appellant and four or five others had worked at Standard unloading pool tables on July 7, 1975, thereby placing appellant near the alleged crime scene on the date of the murders.

The State’s evidence on both trials, and inferences therefrom, would indicate that the two hobo victims met the appellant on July 7,1975, in the vicinity of the Standard warehouse. One of the victims carried a zippered bag. Each was drinking wine and offered a drink to some of the workmen in the vicinity. They then left to purchase more wine and returned shortly. Appellant and a companion, James Jones, had a drink from the fresh bottle, and the victims left. Appellant then indicated to Jones that the victims had money, and he was going to get it. Their bodies were found the next day. A black zippered bag resembling the one carried by one of the victims was found by police in appellant’s room. The bag bore the initials “DHK.” A zipper tab from the bag bearing the same initials was found at the scene of the crime.

Appellant testified at the coram nobis hearing that he told his attorneys, either before or during the first trial, that there was a witness who could testify in his behalf that he did not work at Standard on July 7, 1975, but in fact worked on July 3, 1975. Appellant could only remember that the witness was called “James” and could not remember his last name. Appellant thought that the witness was employed by Standard and would know on what date the five or six men unloaded the pool tables. Appellant’s trial counsel contacted the owner-manager of Standard and was told that no records existed as to the payments made for unloading pool tables on either July 3 or July 7, 1975, because the men were paid from “petty cash.” The record is silent as to whether the trial counsel inquired as to the existence of an employee by the name of “James” at Standard.

During the course of the second trial, appellant remembered the name of the witness. The witness was James DeBardele-ben, the foreman at Standard. Trial counsel asked for a recess at trial and immediately contacted the owner of Standard. Again trial counsel was told by the owner that no records existed as to date of payment relative to unloading pool tables on either July 3 or July 7, 1975. Trial counsel then contacted James DeBardeleben and Standard’s bookkeeper, Mrs. Clara Russell, with positive results. Mrs. Russell and De-Bardeleben were then subpoenaed to testify at the second trial. Mrs. Russell testified that records did exist as to the date of payments made to five men unloading pool tables, but that no names were listed. Mrs. Russell testified additionally that only one unidentified man worked on July 7, 1975. Those records were introduced into evidence. Both witnesses testified that the pool tables were unloaded on July 3, 1975.

I

The requirements necessary to grant a new trial on the claim of newly discovered evidence was stated in Zuck v. State, 57 Ala.App. 15, 325 So.2d 531 (1975), cert. denied, 295 Ala. 430, 325 So.2d 539 (1976):

“ ‘ . . . “(1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative, or impeaching.” ’ ”

The instant issue is whether the fact that appellant worked unloading pool tables on July 3, 1975, instead of July 7, 1975, would so destroy the testimony of State’s witnesses that the jury would probably acquit appellant. On coram nobis we are not dealing with mere possibilities. As stated in Zuck, supra, the newly discovered evidence, when taken with the other evidence present, must probably cause the jury to acquit the defendant. “Probability” means a “likelihood,” or “having the appearance of truth,” or “appearing to be founded in reason, having more evidence for than against.” 34 Words and Phrases, 3 “Probability.”

A capsule of the other evidence presented at both trials with appropriate differences between the two trials is as follows:

(1) At the first trial the testimony of State’s witness Charley Russell concerning whether appellant worked at Standard on July 7, 1975, was not positive and specific. At the second trial, Charley Russell’s testimony was positive and specific that five men worked on July 7.

(2) At the second trial, DeBardeleben and Mrs. Russell testified that a large shipment of pool tables were unloaded on July 3 and not July 7. There was no testimony at the first trial on this point.

(3) The testimony at both trials as to the cause of death was that the two victims died of multiple stab wounds.

(4) The testimony of Charley Russell at both trials was that appellant, while working at Standard, demonstrated to co-workers how fast he could draw a knife out of his pocket and flip the blade open.

(5) The testimony of Charley Russell and Detective Gullion at both trials was that appellant was seen drinking wine with the two victims.

(6) The testimony of Rev. Williams in the first trial was that a zippered black bag found in the possession of appellant was like one Rev. Williams had given the victim. His testimony in the second trial was that the zippered black bag was like one he had given to the companion of the victim in this trial.

(7) Appellant’s brother testified in the first trial that appellant owned a zippered black bag. Appellant’s brother did not testify at the second trial.

(8) Detective Melvin Gullion testified at both trials as to the substance of the testimony of James Jones, Jr., given at preliminary hearing. Jones was allegedly in the company of appellant sometime on the date of the murders, but died before the first case went to trial. Referring to what appellant told Janes concerning the victims, Detective Gullion related the following: “ . • that they had some money and he was going to get it;” “ ‘They got something, and I am going to get it;’ ” “ ‘You come on and go with me, and I will do it all;’ ” “ ‘You won’t have to do nothing.’ ”

(9) The testimony of Charley Russell and Detective Gullion at both trials was that appellant was last seen with the victims.

(10) At the first trial, the State’s witness, Charley Russell, could not make an in-court identification of appellant. At the second trial, he did make and in-court identification of appellant.

A petitioner in a coram nobis proceeding has the duty to establish his right to relief by “clear, full and satisfactory proof.” Vincent v. State, 284 Ala. 242, 224 So.2d 601 (1969). The degree of persuasion —clear, full and satisfactory — entails more than that enunciated in the scintilla rule. “Clear” is highly exacting as to proof of facts and always means more than “reasonably satisfying.” Burden v. State, 52 Ala. App. 348, 292 So.2d 463 (1974).

Appellant contends that he did not work unloading pool tables on July 7, 1975. He has not contended nor shown that he was not in the company of the victims or the witnesses on that date. He has made no denial of his guilt and offered absolutely no proof as to his whereabouts when the crime was committed.

Under a long line of cases, failure of the appellant to allege that he was innocent of the crime or that he had a valid defense is fatal to the issuance of a writ of error coram nobis. Mayola v. State, Ala.Cr.App., 344 So.2d 818, cert. denied, Ala., 344 So.2d 822 (1977); Mack v. State, 51 Ala.App. 611, 288 So.2d 150 (1974); Upshaw v. State, 50 Ala.App. 172, 277 So.2d 917, cert. denied, 291 Ala. 800, 277 So.2d 919 (1973); Baggett v. State, 47 Ala.App. 299, 253 So.2d 367 (1971).

The fact that appellant could not remember the last name of a potential witness was not the fault of the prosecution nor of appellant’s attorney. When appellant did remember the name of witness DeBardeleben, this was not newly discovered evidence, but rather newly disclosed evidence. A petition for writ of error coram nobis is not intended to relieve a party of his own negligence. Thornburg v. State, 42 Ala.App. 70, 152 So.2d 442 (1963).

A writ of error coram nobis is concerned only with errors of fact. Ex parte Powell, 39 Ala.App. 423, 102 So.2d 923 (1958). The error of fact must not be apparent on the record and must have been unknown to the trial court and to the defendant at the time of trial. Ex parte Banks, 42 Ala.App. 669, 178 So.2d 98 (1965). The error must be such that, if presented to the trial court, it would have prevented conviction and judgment. Fuller v. State, Ala.Cr.App., 344 So.2d 216 (1977). In effect, it serves as a motion for a new trial on the ground of newly discovered evidence. Tillis v. State, Ala.Cr.App., 349 So.2d 95 (1977), cert. denied, Ala., 349 So.2d 100.

The appellant’s newly disclosed evidence would cast serious doubt on that part of the testimony of prosecution witnesses that the appellant was unloading pool tables with them on July 7 when they encountered the two victims. Such evidence is impeaching in nature, not of the entire testimony of the State’s witnesses, but only as to part of it. A jury on hearing both versions could determine that the witnesses were mistaken as to whether they and the appellant were working when the victims arrived. The jury could just as logically conclude that the witnesses were not mistaken nor lying about the appellant’s threats toward the victim and his following them when they left. Coupled with the recovery of the zippered bag in the appellant’s possession, a strong inference of guilt arises which may very well support a conviction. Certainly, the new evidence casts doubt upon the credibility of an important part of the State’s evidence, however, a jury is not required to either accept all or reject all of a witness’ testimony. They may accept portions and reject other portions. Thus, the new evidence is not such that would prevent conviction.

II

As for the issue concerning incompetency of counsel, the appellant must show that the representation by counsel was only perfunctory, that the conduct of the attorney reduced the trial to a farce, sham, or mockery of justice, or that the representation shocks the conscience of the court. Hillyer v. State, Ala.Cr.App., 351 So.2d 646, cert. denied, Ala., 351 So.2d 648 (1977); Gore v. State, 45 Ala.App. 146, 227 So.2d 432, cert. denied, 284 Ala. 729, 227 So.2d 435 (1969), cert. denied, 397 U.S. 966, 90 S.Ct. 1002, 25 L.Ed.2d 258 (1970); Bell v. Alabama, 367 F.2d 243 (5th Cir. 1966), cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967), appeal after remand, 391 F.2d 286, cert. denied, 393 U.S. 969, 89 S.Ct. 407, 21 L.Ed.2d 381 (1968).

As stated in Lee v. State, Ala.Cr.App., 349 So.2d 134 (1977):

“. . . even though it can be definitely shown that an attorney has made a mistake in the trial of a case that results in a judgment unfavorable to his client, this alone is not sufficient to demonstrate that his client has been deprived of his constitutional right to adequate and effective representation by counsel. . . ”

We cannot determine from the evidence presented at the coram nobis hearing whether defense counsel at the first trial made a diligent search for an employee of Standard named James. The burden is upon the petitioner to show clear and convincing evidence that his legal representation was totally inadequate. He has failed to do so. We find no proof of incompetence on the part of trial counsel.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Hubert LEWIS, alias.
    78-260.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


text:
    Joe MILLS, alias Drury M. Mills v. STATE.
    4 Div. 664.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      George E. Trawick, Ariton, for appellant.
    William J. Baxley, Atty. Gen. and Willis E. Isaac, Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Houston County returned an indictment against the appellant, Joe Mills, charging him with grand larceny. The appellant entered a plea of not guilty. A jury found the appellant guilty of grand larceny as charged in the indictment. The trial court duly sentenced the appellant to 9 years in the penitentiary. Appellant’s motion for a new trial was denied and he appeals to this Court.

This appeal was submitted on briefs. The appellant was represented by counsel of his choice at all proceedings in the trial court and is so represented in this Court.

Appellant contends in his brief that his conviction should be reversed because the trial court erred to his prejudice by overruling appellant’s motion to exclude state’s evidence after the state rested, and in refusing to give the general affirmative charge at the request of the appellant, because the testimony of state witness Gwyn Sellers, who was an accomplice in an illegal venture for counterfeiting, was not corroborated by other evidence.

State’s witness, Mr. Gwyn Sellers, a farmer who lived in Wicksburg, Alabama on September 10, 1977, testified in substance the following: That he was acquainted with the appellant, Joe Mills, and had known him for about five or six years; that about three weeks before September 10, 1977 Mills telephoned Sellers and told him he had something he wanted to talk to him about; that Sellers met the appellant at the B & S Bar on Highway 84 near Wicksburg and appellant told Sellers he had a fellow he wanted him to meet, that it was a way of making some money; that about a week later Sellers met the appellant and appellant introduced him to a man who was supposed to be named Ron Scott; that in the presence of the appellant, Ron Scott explained and demonstrated to Sellers that Scott, by the use of certain chemicals and a press, could take a one dollar bill and make a ten dollar bill out of it; that Scott would pay Sellers $5,000.00 for the use of Sellers’ money for one afternoon; that Sellers did not have any money but would have some when he gathered his peanuts; that the appellant contacted Sellers two or three times to see if he had the money and appellant and Scott came out to Wicksburg and Sellers met them at Holland Oil Company in Wicksburg and told them he would be ready in a few more days; that appellant got back in touch with Sellers and they agreed to meet at the Holiday Inn in Do-than, Alabama at about 1:00 o’clock, P.M. on September 10, 1977; that on September 10, 1977 at about 1:00 o’clock he met the appellant and Scott at the Holiday Inn and they all went into a room at the Inn at which time Sellers had with him $28,000.00 in 100 dollar bills, the proceeds from a check for his peanut crop, and $3,000.00 from hogs he had sold at the Dothan Livestock Company; that Sellers turned $31,000.00 in 100 dollar bills over to the appellant and the appellant took it and put it in a bathtub half full of water and put some detergent in and washed the money, and Scott stacked it in a press, putting blank pieces of paper between the money and closed the press; that appellant and Scott placed the press in a large pan of water in the bathtub and Scott put something he called developing chemicals in the water; that on two occasions Sellers went out of the room for a short time leaving Scott and the appellant in the room with Sellers’ money; that Scott said he had to go get some more developing fluid, picked up a brown satchel, borrowed appellant’s car, and left saying he would be back in a few minutes; that about 20 minutes after Scott left the room the telephone rang and the appellant answered it and when he finished talking on the telephone, said that it was Scott and that Scott said he would be delayed a short while; that Sellers and the appellant waited in the room until about 6:30 or 7:00 P.M. for Scott to return but he never returned; that when Sellers got tired of waiting for Scott to return, the appellant picked up the large pan with the press in it and placed in in Sellers’ pickup truck and Sellers drove home; that after Sellers was at home the appellant telephoned Sellers and told him to go on to bed and not to bother about the money in the press, and to leave it in the press in the pan until in the morning, this aroused Sellers’ suspicion and he immediately opened the press and found it was filled with blank pieces of paper and had only two $100.00 bills in it; that Sellers has never again seen the balance of his $31,-000.00 or Ron Scott.

In determining whether or not Gwyn Sellers was an accomplice whose testimony had to be corroborated by other evidence tending to connect the appellant with the commission of the offense, the test is, could the witness have been indicted and convicted of the offense charged either as principal or accessory. If he could, then he is an accomplice whose testimony would have to be corroborated, if he could not be indicted and convicted, he is not an accomplice, and his testimony does not have to be corroborated. Ash v. State, 81 Ala. 76, 1 So. 558; Miller v. State, 290 Ala. 248, 275 So.2d 675; Allen v. State, 290 Ala. 339, 276 So.2d 583; Skumro v. State, 234 Ala. 4, 170 So. 776.

The indictment in this case charges in substance that appellant feloniously took and carried away $31,000.00 in lawful currency of the United States Of America, a better description of which and the exact denomination of which are to the Grand Jury unknown, of the value of $31,000.00, the personal property of Gwyn Sellers. It is clear that under all the facts in this record Gwyn Sellers could not have been indicted and convicted of grand larceny of his own property.

We hold that the trial court did not err when it overruled appellant’s motion to exclude state’s evidence, and in refusing the general affirmative charge requested by the appellant.

No other matters were argued by appellant in his brief. We have reviewed the entire record and find that the evidence fully supports the jury verdict finding the appellant guilty of grand larceny. A person who by trickery or fraud, obtains possession of personal property of another, intending at the time of obtaining the property to convert it to his own use, and does so convert it, is guilty of larceny. Powers v. State, 31 Ala.App. 614, 21 So.2d 282; Reynolds v. State, 31 Ala.App. 259, 15 So.2d 600; certiorari denied, 245 Ala. 47, 15 So.2d 605; Economu v. State, 19 Ala.App. 570, 100 So. 85; McKinney v. State, 12 Ala.App. 155, 68 So. 518; Howell v. State, 28 Ala.App. 249, 182 So. 96; Murchison v. State, 32 Ala.App. 427, 26 So.2d 622; Jones v. State, 56 Ala. App. 444, 322 So.2d 735.

We have searched the entire record for errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Drewry M. MILLS.
    78-242.
    Supreme Court of Alabama.
    Feb. 23, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

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


text:
    Gary MYERS, alias v. STATE.
    4 Div. 674.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.
    C. H. Espy, Jr., of Farmer, Farmer & Price, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for molesting a male child under sixteen years of age. He was convicted by a jury, and sentenced by the trial court to five years imprisonment in the penitentiary.

The sufficiency of the indictment was not challenged. It charges the nature of the molestation and its appeal to the carnal nature of the victim and the defendant. It is unnecessary to set out the allegations here verba, but suffice it is that the allegations are sufficient to have informed defendant of the nature of the charge.

It appears from the evidence that defendant, at the time of the alleged molestation on Sunday, March 5, 1978, was a white male, 35 years of age and was an experienced teacher at a public school in Webb, Houston County, Alabama. He also was an athletic coach and came in contact with school children in his profession. There is no evidence that he had any criminal record of any kind, and for aught appearing by a plurality of credible witnesses, who testified for defendant, he enjoyed a good reputation as a person of good character. But the jury saw fit to believe the evidence of the alleged victim and returned a verdict of guilty.

It appears in the evidence that the alleged victim was mentally retarded; that he spent two years in the first grade, and at the age of 9 years, when the alleged incident occurred, was in the second grade. He was physically alright, but as we stated was mentally slow.

It further appears that defendant paid much attention to children and seemed to have a personality that appealed to them.

It also appears that the victim wanted to help defendant wash his motor vehicle (a van) and that defendant called the victim’s home on Sunday morning, March 5, 1978, and obtained his mother’s and grandmother’s permission to take the child to his “trailer” home. This was done as planned. It was there that the alleged molestation occurred.

The nature of the alleged molestation was oral sex with the child’s male organ.

It seems that the act took place in the morning part of the day, as we recall, and at noon, after eating, appellant and the child went to a movie. After the movie he took the child to his home. It was there that the child made complaint to his grandmother. The child was then taken to an emergency room of a hospital where he was examined by a physician on emergency duty. The child, after the examination, was allowed to go home.

The victim testified in court, over the objection of defendant, as to what happened. The objection was based on defendant’s contention that the witness was mentally incapacitated to understand the nature of an oath and was therefore incompetent to testify.

The trial court excluded the jury and heard a voir dire examination of the witnesses with respect to victim’s competency. The questions propounded to him were calculated to reflect his mental capacity to understand the nature and binding effect of an oath. Suffice it is that the court on conclusion of the examination allowed him to testify.

Whether or not the court was in error in its ruling that the child was competent is here presented for consideration.

The responsibility of determining the child’s mental capacity to be a witness is addressed by statute to the trial court. Code of Alabama 1975, 12-21-165; Code of Alabama 1940, Title 7, Section 440, we quote:

“(a) Persons who have not the use of reason, such as idiots, lunatics during lunacy and children who do not understand the nature of an oath, are incompetent witnesses.
“(b) The court must, by examination, decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness or infancy.”

See also, Hutcherson v. State, 40 Ala.App. 77, 108 So.2d 177(3); Kendrick v. State, 52 Ala.App. 230, 291 So.2d 165.

We are unwilling to hold that the trial court abused its discretion in permitting the child to testify. Kendrick, supra.

A second contention of error asserts that the trial court erred in allowing the state’s attorney to lead the witness on direct examination.

As said in McElroy’s Alabama Evidence, 3rd Ed. # 121.05(8):

“A child should, as far as possible, be permitted to tell, in his own language, what he saw and heard before resort is made to leading questions. It is, however, within the discretion of the trial court to permit leading questions asked of an immature witness on direct examination by the party who called him.”

Also see Peeples v. State, 50 Ala.App. 626, 282 So.2d 65(1).

We also are unwilling to hold that the trial court committed prejudicial error in permitting the leading questions.

A third contention of error is that the court erred in overruling defendant’s motion, made at the conclusion of the state’s evidence, to exclude the state’s evidence.

There was positive evidence offered by the state of the molestation as charged in the indictment, but perhaps weakened by the state’s medical witness that the swelling and abrasions appearing on the child’s penis were caused by masturbation. Also the prosecution was somewhat weakened by the plurality of character witnesses testifying as to the defendant’s good character. There was no motion for a new trial that presented any issue to here or below.

The court’s denial of the motion to exclude was not error. The conflicts of evidence were addressed to the resolution of the jury.

The defendant, by a fourth contention of error, asserts error in not letting him introduce the testimony of minor witnesses as to his habit and custom of entertaining children at his residence, and by inquiring as to his activities of these children while with the defendant.

The good character of defendant cannot be proven by specific acts of merit. Scott v. State, 211 Ala. 270, 100 So. 211(7).

Neither can the defendant prove his own good reputation for associating with other children and not abusing them. Moss v. State, 209 Ala. 3, 96 So. 450; Singley v. State, 256 Ala. 56, 53 So.2d 729(3, 4); Lynn v. State, 21 Ala.App. 29, 104 So. 870. McElroy’s Alabama Evidence, 27.01(3).

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable 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.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Gary MYERS.
    78-255.
    Supreme Court of Alabama.
    March 2, 1979.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Allan Johnson BILLINGSLEY v. STATE.
    6 Div. 331.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.
    Quentin Q. Brown, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

The only issue appellant presents for review may be condensed to whether he was denied his right to a speedy trial guaranteed by the interfusion of the Sixth and Fourteenth Amendments to the Constitution of the United States and safeguarded also by Art. I, Sec. 6, of the Constitution of Alabama of 1901.

There is agreement on the part of all concerned that the crime for which appellant was indicted, tried and convicted, a robbery, occurred in Birmingham, Jefferson County, on May 14 or 15, 1975. He was indicted on February 6, 1976, tried July 28-29 of the same year and convicted and sentenced to imprisonment for ten years.

On the ground of indigency, appellant was represented by appointed counsel at his arraignment and on the trial. His counsel appointed for and representing him on appeal is different from the counsel representing him at arraignment and on the trial. Our study of the record convinces us that both counsel have represented him well and have done their best for him.

Upon arraignment on May 14, 1976, accompanied by his appointed counsel, defendant pleaded not guilty, and his case was set for trial on June 28,1976, with the privilege afforded him of interposing “any special pleas which defendant had the right as a matter of law to interpose prior to his plea of not guilty.” The case was set for trial June 28, 1976, but, according to defendant, “due to unfortunate circumstances Defense had to request a continuance for one month.” It was set again for trial on July 26,1976, and reached on the docket for trial on July 28, 1976.

In furtherance of appellant’s contention, he relies chiefly upon Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and Prince v. State, Ala.Cr.App., 354 So.2d 1186 (1978), which cases make clear the course we should follow.

An issue as to the asserted denial of defendant’s right to a speedy trial was presented to the trial court by defendant’s motion as follows:

“MOTION TO DISMISS FOR FAILURE TO GRANT A SPEEDY TRIAL

“Comes now the Defendant and moves the Court to dismiss the charges against him for failure of the State of Alabama to grant a speedy trial and states his reasons therefor:
“(1) that on June 12, 1975, and also on November 20, 1975, Defendant did in written form request of the State of Alabama that he be tried on the alleged charge.
“(2) that the Defendant did on the same dates in written form request a fair and speedy trial.
“(3) Defendant received no response to his request.
“(4) Defendant was arrested on or about May 15, 1976, in the State of Mississippi.
“(5) Defendant was subsequently extradited to Georgia and the State of Alabama thereafter placed a Detainer against him.
“(6) Since Defendant’s request for a speedy trial more than 180 days have passed without fault of Defendant and Defendant has been prejudiced thereby.”

The hearing on the motion was conducted on July 28, 1976, before the trial of defendant was commenced. Neither party seems to make any point as to the occasion for the intervention of approximately six months between the presentation of the motion and the hearing thereon. On the hearing of the motion neither party attempted to extend the hearing beyond the allegations contained in the motion. Neither party made any contention as to the time intervening between the date of the indictment and the date of defendant’s trial. Defendant did not contend, and appellant does not now contend, that the alleged denial of his right to a speedy trial was caused by any action or inaction of the state other than during approximately one hundred eighty days after June 12, 1975, the date defendant alleges that he requested in writing that he be given a speedy trial.

In Prince v. State, supra, Judge Tyson helpfully and accurately summarizes the factors set forth in Barker v. Wingo, supra, that are to be considered in determining whether there has been a violation of one’s right to a speedy trial, by stating:

“In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court delineated a four-pronged balancing test to be applied on an ad hoc basis in all cases in which a speedy trial claim is raised. The four factors to be considered in weighing the conduct of the State and an accused are: (1) the length of the delay, (2) the accused’s assertion of his rights, (3) the reason for the delay, and (4) prejudice to the accused. . . .” Prince v. State, at 1189.

According to Barker v. Wingo, supra, at 407 U.S. 533, 92 S.Ct. at 2193, no single factor is “either a necessary or sufficient condition” to a determination that one has been denied the right of speedy trial, but they are all “related factors and must be considered together with such other circumstances as may be relevant.” In Barker v. Wingo, supra, and Prince v. State, it was held that there had been a denial of a speedy trial. In each case, however, the issue between the parties was as to the entire time between the initiation of the criminal prosecution and the trial. The instant case is different in that material respect. The parties herein focused their attention and consideration upon the period of approximately one hundred and eighty days after defendant claimed he had requested in writing a speedy trial, which in turn was less than thirty days from the date of the alleged crime.

At the hearing on the motion, the only witnesses were defendant and Miss Marty Davis, the office supervisor in the office of the District Attorney of the Circuit Court of Jefferson County. Appellant-defendant testified that on June 12,1975, he mailed to the District Attorney of the Jefferson County Circuit Court, a letter of which the following is a copy:

“June 12, 1975
“A. J. Billingsley, D-23071 Kemper Bldg., M.G.C.I.
Hardwick, Georgia 31634
“Mr. Earl C. Morgan District Attorney Jefferson County Birmingham, Alabama 35203 “RE: State vs. Allen Johnson Billingsley (Robbery)
“Dear Mr. Morgan:
“I have been advised that your office has placed a detainer against me on the charge of “Robbery”. I wish at this time to request a speedy trial or a withdrawal of the detainer.
“Please Mr. Morgan look into this matter. Your consideration will be tremendously appreciated. As you know, a de-tainer does prevent one from participation in certain rehabilitative programs. There are such programs available to me here in which I cannot participate because of the detainer placed against me by your office.
“With kindest regards and thanking you in advance, I remain “Respectfully
/s/ Allen Johnson Billingsley “Allen Johnson Billingsley “ATTEST A TRUE COPY this 26 day of Jan 1976.
“/s/ Kenneth Williams
“Notary Public
“My Commission expires 2-13-79”

Defendant testified that on or about November 20, 1975, he wrote and mailed another letter to the District Attorney, referring to the previous letter, in which subsequent letter he requested that the detainer be dropped.

Miss Davis testified that continuously from the time of the alleged crime until the time of her testimony, she had charge of all the clerical work in the office; a letter such as the letter of June 12,1975, if received by the office would come to her attention, and she would give it further handling until it received the attention of the District Attorney. A pertinent part of her testimony is as follows:

“Q Now there is another letter here dated November 20, 1975. I’ll ask you to look at it, please. Now in respond to a-let me ask you first if those letters weren’t — copies of those letters were received by this office in June and November to your knowledge?
“A They were not.
“Q Okay. Now if they had come in they would have come to your desk and you would have presented them to Mr. Morgan to determine whether or not we would borrow the prisoner from the State of Georgia for trial?
“A Yes, sir.”

The witness further testified that she had searched the District Attorney’s Office to ascertain if there were any copies of either of those letters and had not been able to find any.

Although defendant stated that he mailed the letter dated June 12, 1975, his testimony does not meet the usual requirements of a presumption of the receipt thereof by the addressee, which include proof that the letter had on it “sufficient postage [and was], duly deposited for transmission in the mails of the United States, and [was] not returned to the writer, whose address [is] indicated on the envelope.” Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216 (1923); Denson v. Kirkpatrick, 225 Ala. 473, 144 So. 86 (1932); Harrell v. Alabama Farm Bureau Mut. Ins. Co., 287 Ala. 259, 251 So.2d 220 (1971).

The presumption mentioned is a rebut-table one. Brotherhood of Railroad Trainmen v. Jennings, 232 Ala. 438, 168 So. 173 (1936). Where there is evidence that the letter was not received by the addressee or someone acting in his behalf, a question of fact is presented. Republic Steel Corp. v. Gilbert, 38 Ala.App. 227, 83 So.2d 370, cert. denied 263 Ala. 700, 83 So.2d 374 (1955).

As held in Barker v. Wingo, supra, the absence of a request by accused for a speedy trial or an assertion by him of his right to a speedy trial does not in and of itself deprive him of that right. Nevertheless, the court in determining whether such right has been violated is not required to go beyond the issue made by the parties and the evidence brought by them to the attention of the court. In his motion raising the point of a speedy trial, appellant relied upon a purported request therefor in his alleged letters of June 12 and November 20, 1975, as an essential component of the basis of his particular motion. The record shows that he made no contention otherwise on the hearing of the motion. The motion was submitted by defendant on the assumption that the evidence showed that defendant did make the requests as indicated in the mentioned letters. Although the State never conceded, expressly or impliedly, that a request for a speedy trial as claimed by defendant entitled him, in the light of the other circumstances, to a favorable ruling on the motion, there was no disagreement, express or implied, between the parties as to the necessity for proof that defendant had requested the speedy trial as claimed.

Appellant makes clear the pivot, on the trial and on appeal, in insisting in his brief:

“In view of this, it can be clearly established that it was indeed over a year before the appellant was afforded a trial; and also, he had promptly and repeatedly requested a speedy trial.” [Emphasis supplied]

By the quoted statement from appellant’s brief, it is plain that reference is made to the two letters.

The heart of defendant’s motion, the evidence presented thereon, the factual issue before the trial court, and the contentions of the respective parties on the trial and on appeal is the request vel non as claimed by defendant in the mentioned letters, particularly the letter of June 12, 1975. There is implicit in the trial court’s ruling that there was no such request, and we do not find that the trial court was in error in its ruling.

There is no necessity for an extended discussion of what we consider rather intricate problems resulting from defendant’s “absence without leave” from his confinement as a convicted felon in Georgia at the time of his presence in Alabama when the crime was committed and his subsequent flight to Mississippi, where he was arrested, and the subsequent proceedings as to extradition between the governor of Alabama and the governor of Georgia. Nor is it necessary for us to detail the numerous crimes for which he had been convicted which could, if necessary, have had a bearing upon the reliability of his testimony as to the mentioned letters.

We find no error in the record prejudicial to appellant and the judgment appealed from should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, 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. The judgment below is hereby

AFFIRMED.

All the Judges concur.

      . Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).

      . The record does not clearly show any pre-ar-raignment filing of the motion in the office of the Clerk of the Circuit Court, but it is indicated by the proceedings, as to which there seems to be no disagreement, that such motion was sent to and received by an appropriate representative of appellee about six months before trial.


text:
    Ex parte Allan Johnson BILLINGSLEY.
    78-271.
    Supreme Court of Alabama.
    March 2, 1979.
   BEATTY, Justice.

WRIT DENIED.

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