author: DeCARLO, Judge. BOOKOUT, Judge,

text:
    Heflin Mack LANGFORD v. STATE.
    3 Div. 520.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.

      Charles S. Coody, S. G. Culpepper, Jr., and Maury D. Smith, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jack Blumenfeld, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Murder, first degree; life.

An automobile driven by the appellant at a high rate of speed collided with the car driven by a sixteen-year-old, Randall Holt. Holt was killed instantly. The collision occurred on a public highway in Montgomery County, Alabama. The testimony tended to show the appellant was drunk, although he denied this.

A motion for a new trial was filed, considered and overruled, and the appellant has appealed.

The indictment, omitting the formal parts, charged the appellant:

“ . . . unlawfully and with malice aforethought, killed Randall Wright Holt, by perpetrating an act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life by, to-wit: operating a motor vehicle while under the influence of intoxicating liquors or narcotic drugs along a highway and while operating the said motor vehicle under the influence of intoxicating liquors or narcotic drugs did run the motor vehicle in which the said Heflin Mack Langford was driving over, upon, into or against the motor vehicle in which the said Randall Wright Holt was driving and as a proximate cause thereof, unlawfully killed the said Randall Wright Holt. . ."

In order to sustain these allegations, the State called Jimmy Ray Tillery, who stated that he drove a wrecker for Waldrip’s Wrecker Service and that he had known the appellant, Heflin Mack Langford, for about ten months. On June 24, 1975, he had an occasion to go into Langford’s bait shop about 5:40 P.M. He purchased a “Coca-Cola” and did not speak to the appellant during the five or ten minutes that he stayed in the store. During this period he noticed beside the counter, a “fifth of whiskey” which was half-full. He also observed the appellant stagger when he walked and smelled a strong odor of alcohol on his breath.

About 6:00 P.M., Langford left the store and then returned after removing the keys from his car. Subsequently, he returned with a sack in his hand and placed it in the car, and then, after locking the store, he drove off in the car. Tillery was parked beside the store at the time. He observed Langford leave in a brown Plymouth and saw him almost hit the wrecker that Tillery was driving. Tillery testified that as the appellant drove away, he swerved from one side of the road to the other.

Walter D. Holt was the father of Randall Holt, the deceased. He stated that on June 24, 1975, he and his wife were having dinner with their son, daughter-in-law, and Randall, at the Arrowhead Country Club. About 7:30 P.M., when the meal was finished, Randall left the others and drove away in his mother’s 1972 Oldsmobile. Later when Holt and his wife left Arrowhead they were going to the Montgomery Mall Shopping Center. As they were approaching the area where the collision occurred they noticed the police cars. Holt said he saw his wife’s car. on the side of the road but after they stopped they were not allowed to go near the scene.

Dr. Ronald Shaw, a licensed physician in Montgomery, Alabama, was on duty in the Jackson Hospital emergency room on the night in question. He examined the body of Randall Holt who was dead when he arrived at the hospital. The cause of death, he said, was a compound basal skull fracture. Dr. Shaw also examined the appellant and noted that he had several small lacerations on the right cheek in addition to bruises on his right and left cheeks and a small laceration on his right arm and two small lacerations on his right hand. An x-ray was made of the appellant’s skull but no fractures were identified. Dr. Shaw detected a moderate odor of alcohol on the appellant and that his speech was slightly slurred. It was Dr. Shaw’s belief, based on the manner of speech and the coordination exhibited, that this was due to the influence of an intoxicating drug, presumably alcohol.

John Kent Hunt was employed by the State of Alabama, and worked in the “Highway Department Photo Lab.” Hunt testified for the State that on June 24,1975, about 8:00 P.M., he was traveling on U.S. Highway 80, in Montgomery County, when he saw a wrecked car blocking the westbound lane. After stopping his car, he went over to the wrecked car and observed a boy’s body in it. Hunt said that the boy appeared to be dead and that he also saw Langford, who appeared to be unconscious, on the ground. He recalled that he smelled alcohol on the appellant and that as Lang-ford regained consciousness he covered him with a blanket. Further, Hunt said that, when the appellant tried to get to his feet, he instructed him to lie still and told him that an ambulance was coming. Hunt left before the ambulance came, but remembered that two girls arrived before he left. It was Hunt’s judgment that he was the first person at the scene.

On cross-examination, Hunt stated that he did not see any whiskey in Langford’s car, but did see beer cans.

Susan Davidson, a student at Auburn University in Montgomery, stated that on the evening of the collision about 8:10 P.M., she was driving on a street leaving the university. She was accompanied by Sandra Davidson and had stopped at the intersection of the road from the campus and U.S. Highway 80. She then noticed a car on their left traveling extremely fast in swaying, jerking motions. The car was going from lane to lane and in Davidson’s judgment, the car was traveling eighty or ninety miles an hour. As the ear passed it was swaying from side to side and its tires squealed. Susan Davidson explained that the squealing noise seemed to be “ . going right with the motion of the car.” She continued to watch the car as it passed them and saw it cross the median and go head-on into another car. Susan Davidson explained that the car went down in the dip in the median and seemed to bounce out and land on the front of the car coming in the opposite direction on the other side of the four-lane highway.

During cross-examination, Susan Davidson stated that she did not take her eyes off the car until after the collision.

Sandra Davidson was in the automobile driven by Susan Davidson on the night of June 24, 1975, and her testimony was much the same as that given by her cousin-in-law, Susan Davidson.

S. M. Snead was a photographer for the Alabama State Troopers and was in the vicinity of U.S. Highway 80 and Auburn University in Montgomery on the night in question. He identified certain photographs he made of the scene which were accepted into evidence without objection.

Robert Gardner was a mechanical contractor who, on June 24, 1975, about 8:00 P.M., was at the intersection of Bell Road and U.S. Highway 80. He pulled from that intersection into the Atlanta Highway, heading west, and had only gone “a short ways” when he observed a car traveling “ . . .as fast as I have ever seen anything going down the Atlanta Highway. Must have been ninety or a hundred miles an hour.” Gardner said that he was positive that the automobile he saw was a Plymouth and that it resembled the car at the scene of the collision. Gardner and his wife had gone to a restaurant to eat supper and approximately an hour had elapsed between the time he first observed the car and when he saw the scene of the wreck.

On cross-examination, Gardner said he could not be positive the car he saw at the scene was the same one he had seen earlier traveling at a high rate of speed.

Don Kimbrough, a State Trooper for the Alabama Department of Public Safety, was called to the scene of an automobile collision on June 24, 1975. On his arrival Kim-brough saw a 1972 Oldsmobile five feet from the edge of the west-bound lane. The Holt boy was in the driver’s seat and when he was checked for signs of life there was no pulse. The officer recalled that the Lang-ford vehicle was approximately twenty-seven feet from the edge of the roadway and forty feet from the Holt car. He said the appellant was lying on his back between the two vehicles. According to Kimbrough, the appellant’s vehicle had run off the edge of the road-and had traveled forty-one feet and struck a milepost marker. It then traveled an additional eighty-three feet before it came back on the road. On entering the road, the vehicle went 183 feet causing skid marks on the pavement. Next it entered the median strip. Kimbrough said the median strip was forty feet wide with a nineteen inch dip or incline in the median where it is lower than the highway. According to Kimbrough, the front end of the appellant’s vehicle “bulldozed” a place in one portion of the median and “[t]hen the vehicle became airborne, striking the Holt vehicle which was traveling toward Montgomery . . . ” in the west-bound land of the highway. Kimbrough said there was considerable damage to the front portion of the Holt car and that its roof had been “torn away.” Further, the officer stated the appellant was alive, and that, after aid was administered, he was taken to Jackson Hospital. Kimbrough testified it took thirty to forty-five minutes to remove Holt’s body from the car, and that he too was taken to the hospital.

Kimbrough went to the hospital and while there, rode on an elevator with the appellant who, at the time, was being taken to the emergency room. He described the odor of alcohol as being very strong on the elevator, and said the smell was all over the appellant. Further, Kimbrough said he was present when the blood sample was taken from the appellant and turned over to him. He explained that it was about 12:00 P.M. when he arrived home and placed the sample in the refrigerator. The officer said that the next day he took the sample to the State Toxicologist’s Office and gave it to Mary Wisdom.

On cross-examination, Kimbrough stated he did not find any whiskey in appellant’s car, but did find some beer.

James Pouncey, a State Trooper with the Department of Public Safety, accompanied Officer Kimbrough to investigate the collision. Pouncey testified that Langford was lying on the ground and there was a moderate odor of alcohol about him. He recalled being present when blood was taken from the appellant and saw the vial of blood given to Officer Kimbrough.

Raymond Richard Zapata was a supervisor for the City Ambulance Company of Montgomery. On June 24,1975, he went to the scene of the collision. He was accompanied by Robert Smith, the driver of the ambulance. On their arrival, he made a “patient survey” on the appellant. Zapata explained that he put his ears and nose directly on Langford’s mouth to determine if the air passage was obstructed. He said he detected the odor of alcohol and that when he asked Langford if he had been drinking, the appellant responded that he had. Zapata stated the odor of alcohol was moderate on the appellant and that, after the extent of his injuries was determined, he was taken to Jackson Hospital.

Robert Smith was the driver of the ambulance which went to the scene of the collision. Smith testified that while he was examining the appellant, he smelled the odor of alcohol. Smith was positive that Langford’s eyes were dilated and that he had all the symptoms of being intoxicated.

Alan Craig, on June 24, 1975, was employed as a nurse’s aide at the Jackson Hospital. Craig testified that he saw the appellant in the hospital and that Langford was an automobile collision victim. Craig talked with the appellant and could smell the odor of alcohol on him.

Mary Wisdom was a toxicologist with the State Department of Toxicology and Criminal Investigation in Montgomery. She testified that on June 25, 1975, Officer Kimb-rough gave her the tube containing the blood sample from the appellant. Wisdom said there was a seal around the stopper with the time “9:45” and the name, “Janet Till”, written on it.

Wisdom was asked if she conducted an analysis on the blood sample labeled “H. R. Langford, Mack.” At this point, the defense objected and asked the court to allow him to give his reasons outside the presence of the jury. The jury was excused and the defense argued that the chain of evidence had not been completed because Janet Till who had taken the blood from the appellant had not testified and that the appellant had not consented to the test, The motion was overruled and Wisdom testified that her analysis of the appellant’s blood specimen showed an ethyl alcohol “level of 0.25 grams of per cent [sic].”

Officer Kimbrough, on being recalled, testified that he was present when Janet Till took the blood specimen from the appellant and that she gave it to him. He stated that it was about twelve o’clock when he went home and placed the specimen in the refrigerator.

On cross-examination, Kimbrough said Langford gave Dr. Shaw permission to take the blood specimen.

Thomas A. Cargile was an embalmer and funeral director at Leak Memory Chapel. He testified that on June 24, 1975, he drew a blood specimen from the body of Randall Wright Holt, signed it and placed it in an envelope. Cargile said that the envelope was given to the State Troopers the next morning, but he did not recall the trooper’s name.

Don Kimbrough was recalled by the State and he identified the envelope containing the blood sample. He testified that he had picked it up at Leak Memory Chapel, and took it and the sample from the appellant to the State Toxicologist’s Office. Kim-brough said he gave them to Mary Wisdom. He did not recall who gave him the specimen at Leak Memory Chapel but did remember it was sealed.

At the end of Officer Kimbrough’s testimony, Mary Wisdom, on being recalled by the State, testified that on June 24, 1975, Officer Kimbrough gave her a sealed envelope containing another blood specimen. She said that she performed a chemical analysis of the blood and determined that “ . . .it was negative from ethyl alcohol.”

C. J. Rehling, the Director of the State Department of Toxicology for thirty years, testified to the educational background necessary for toxicologists to perform their duties. He said he held a “Ph. D.” in the field of Chemistry and Biological Sciences, from the University of Wisconsin.

Dr. Rehling testified that during his tenure as State Toxicologist, he had examined the effects of alcohol on the human body. Dr. Rehling stated that a person with “.25 per cent [sic] alcohol in his blood” would not be capable of driving an automobile “ . . . safely by any means.” He said that control of the motor vehicle operation, steering, controlling of the speed and the vehicle’s path relative to traffic would be impaired. Dr. Rehling stated that:

“Our law identifies 0.10, ten one-hundredths per cent [sic] or above that, that all human subjects are under the influence and impaired.”

Dr. Rehling added that the basis for this legal assumption was the examination of “thousands and thousands” of human beings by scientists with the ultimate conclusion drawn by the Committee of Alcohol and Drugs of the National Safety Council. It was from this data and through other projects that it was determined that 0.10 percent or more of alcohol in the blood of a human being would impair his operation of a motor vehicle. Dr. Rehling stated he had conducted many of these experiments in the years 1935 through 1937, and had seen and tested many subjects since then. It was on the basis of this knowledge that he arrived at the conclusion that a person with “0.25 per cent [sic] of alcohol in his blood” could not interpret rationally what he sees in traffic and that his judgment and perception would be severely impaired.

David A. Messer was a driver for the Waldrip’s Wrecker Service. On June 24, 1975, he went to the scene of the automobile collision on U.S. Highway 80 and pulled an automobile into Waldrip’s storage lot. During the trial he identified a photograph of the appellant’s vehicle and stated that, about three days after he pulled in the car, Langford came to the storage lot. The appellant stated that he had come to get his belongings. Messer told him that he had placed the beer in “the trailer” and that he should see “the lady on the lot” about his belongings. The appellant then said “what about the whiskey” and Messer responded that he had not seen any.

Effie Cook, the manager of Waldrip’s Wrecker Service, testified that she was working during the week of June 24, 1975, when the appellant came to her office. He inquired about personal effects in his car. She stated that an inventory was made of the car’s contents and beer was found. This was returned to the appellant and he signed a receipt for it.

Dr. Ronald Shaw was recalled by the State and he testified that the injuries the appellant had sustained would be classified as minor. He explained that a concussion refers to a blow to the skull ^ which causes loss of consciousness and said that if a person is knocked unconscious that would most likely indicate that he had a concussion.

At the completion of Dr. Shaw s testimony, the State informed the court that he was their last witness, and the defense made a motion to exclude the State’s evidence as to murder in the first degree. Counsel argued that the State had “ . . . wholly failed to present evidence in a depraved mind regardless of human life.” The court denied the motion and counsel for the defense moved to exclude the State’s evidence on murder in the second degree, and manslaughter in the first and second degree for the same reasons. The court denied this motion also and the defense called Florence E. Langford.

Mrs. Langford was the wife of the appellant and had been married to him for forty years. She stated that on June 24, 1975, she saw her husband at their bait shop about 2:30 P.M. after he returned from Birmingham. Mrs. Langford testified that during the morning she had driven her husband’s Plymouth Fury to the shop and that something was wrong with the steering. She said she had driven thirty-five miles an hour and there was a roar in the engine like it was “overpowering.” Mrs. Langford left the bait shop about 4:00 P.M. and to her knowledge, her husband had not had anything to drink. She drove home in her own car, a Chevrolet. Her husband called her about 6:00 P.M. and she did not hear from him again until she received a call from the hospital at nine o’clock.

Mrs. Langford said she did not recall what time her husband came in from the hospital but remembered he had a deep cut on his head that had stitches, and cuts on his arm and leg. She stated that he was not intoxicated when he came home.

A. S. Zadanis, a medical doctor, practicing internal medicine, saw the appellant on July 2, 1975. He testified that the examination showed a considerable number of bruises and lacerations involving his right arm and his right leg. When Dr. Zadanis next saw him on August 29, 1975, Langford “ . . . complained that he had a considerable degree of nervousness and shaking to the extent that he was unable to work. . . The appellant told Dr. Zadanis he could not walk very well because his right leg shook and he had some loss of memory. It was the doctor’s conclusion that the appellant obviously had some concussion and brain damage that manifested itself after the accident. According to the doctor, he saw the appellant on October 2, 1975, and he was hospitalized on November 17, 1975. Dr. Zadanis said that he remained in the hospital from November 17, 1975 until December 6, 1975, and that he had not seen him since January 2, 1976.

On cross-examination, Dr. Zadanis said that during the October second visit, the appellant complained of passing blood rectally, and because of this, he inquired about the appellant’s alcohol intake. The appellant told him that he drank socially and did not have a drinking problem. Dr. Zadanis said that shortly before his admission in the hospital on November sixteenth, Langford had been drinking heavily. He explained that his condition at the time of his admission was “ . . . consistent with that of alcohol depravation, which we call D.T.’s.” Dr. Zadanis stated that after a week of confinement, Langford showed rapid improvement, but that this would not exclude the possibility of brain damage.

Heflin Mack Langford testified that he was fifty-seven years old and was the district manager of Liberty National Life Insurance Company. He said he worked for that company for twenty-five years but was now permanently disabled. Langford recalled that on June 24,1975, he had gone to Birmingham for a district manager’s meeting at the home office. He said that he started the trip with his Plymouth but had to return it because, “[i]t was not steering right.” After getting his wife’s Chevrolet, Langford went to Birmingham, where he stayed for about two hours. He returned to Montgomery approximately 2:30 P.M., and went to the bait shop where he remained talking to his wife for approximately two hours. According to the appellant, his wife left about 4:00 P.M., and he remained until 6:30 or 7:00 P.M. when he closed the business for the day. Langford denied seeing Jimmy Ray Tillery. He said he had only consumed “two beers” that afternoon and denied drinking or having any whiskey at the bait shop. Further, Langford denied placing any whiskey in a brown paper sack and taking it to his automobile that evening.

The appellant recalled that after leaving the shop he proceeded east on U.S. Highway 80, which he described as a four-lane highway with a grass median separating the east and west-bound traffic. He said that he looked at the speedometer and was going between forty-five and fifty miles per hour in a fifty-five miles per hour zone. Langford stated that, just prior to the accident, he was traveling in the outside right lane when he checked his speed and was “well in the limit.” According to appellant, he looked up and saw something, which appeared to be a car, come from the college grounds. He said he moved over to the next lane and when he pulled back, he ran off the right side and his car caught the mileage marker. Langford testified that the steering in the car caused him to go off the road. Further, he stated that when he swerved back, he went into the median of the highway and after that, did not remember anything.

Langford recalled being in the hospital but did not remember anyone taking a blood sample from him. The appellant testified that he had been driving an automobile since he was fifteen years old and had never had an accident. He said that he had only two parking tickets during that period of time and in his business he would drive anywhere from thirty to forty-thousand miles a year.

During cross-examination, Langford denied having a drinking problem and denied being a compulsive drinker. He also denied that while he was in Birmingham, Marvin Foster, the manager of the company, gave him the option of either retiring or being demoted. Langford did admit that he and Foster discussed what his retirement benefits would be.

The appellant said he had discussed the steering defect with Mr. Pugh, the man from whom he had bought the car. He recalled that it was about two weeks before the accident that he had a conversation with Pugh, on a Sunday, concerning the steering defect.

On cross-examination, Langford also reiterated that prior to the accident, he was going between forty-five and fifty miles per hour and his car was swaying a small amount.

At the end of the appellant’s testimony the defense rested and the State called in rebuttal, Walter F. Pugh. He testified that he had sold the defendant an automobile and that he thought it was in “good shape.” Pugh said he never had any conversation at anytime with the appellant concerning the steering mechanism on the automobile.

Marvin Foster was also called by the State and he testified that he was “Vice President, Field Management, Liberty National Insurance Company.” He stated that on June 24, 1975, he talked with the appellant and offered him a choice of taking a “job in less capacity” or retirement.

Further, Foster said that the reason for offering Langford the demotion or retirement was “a lack of performance.” He explained that “lack of performance” was “pretty broad,” but in his estimation the job was not being done.

I

The appellant insists that his conviction of murder in the first degree should be reversed because:

“As a matter of law, the act of intoxicated driving which results in an accident causing death cannot be murder in the first degree.”

Counsel concedes that intoxicated driving which results in the death of another may be murder, under Reed v. State, 25 Ala.App. 18, 142 So. 441. However, he argues that Reed v. State, is not authority for holding that such an act was first degree murder because the defendant in that case was convicted of second degree murder. Counsel asserts that the facts surrounding this conviction involve a case of first impression in Alabama.

The appellant in the case before us was not convicted of murder in the second degree but of murder in the first degree. For this reason close attention to the law of murder is necessary. The law of murder in Alabama is found in T. 14, § 314, Code of Alabama 1940, Recompiled 1958. The instant section reads:

“Every homicide, perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery, or burglary, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree . . . .” [Emphasis added.]

As this section indicates, murder in the first degree is divided into four classes. Mitchell v. State, 60 Ala. 26; Fields v. State, 52 Ala. 348.

The indictment in the present case charges murder in the first degree as defined in the fourth class of T. 14, § 314, supra.

In the case of Mitchell v. State, supra the Alabama Supreme Court observed:

“ . . . that this fourth class omits all mention of the words, malice aforethought, formed design, willful, deliberate, malicious, premeditated, unlawfully and maliciously, some of which are found in all the common-law definitions of murder, save that from universal malice. If a blow or injury, intentionally aimed and inflicted on a particular person, the act being greatly dangerous to life, and itself evidencing a depraved mind regardless of human life, be ruled to be murder in the first degree, then this clause fixes a much lower standard of evidential requirement, than do the classes one and three above mentioned. And this is all the more manifest, when we reflect that this clause dispenses with all preconceived purpose to deprive any particular person of life. A blow or injury, unlawfully and intentionally aimed and inflicted on a person, by an act greatly dangerous to life, and actually producing death, under such circumstances as to evidence a depraved mind regardless of human life, could not be inflicted without a preconceived purpose to deprive some particular person of life.”

The court went on to say that:

“By universal malice, we do not mean a malicious purpose to take the life of all persons. It is that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim. The supreme depravity shown in this so-called universal malice, is considered as the equivalent of the strong adjectives, willful, deliberate, malicious, and premeditated, which characterize the first class of murder in the first degree.”

Sir William Blackstone speaking of universal malice, 4 Cooley B1. Comm. * 199 (4th ed. 1899), said:

“Neither shall he be guilty of a less crime, who kills another in consequence of such a willful act as shows him to be an enemy to all mankind in general; as going deliberately, and with an intent to do mischief, (b) upon a horse used to strike, or coolly discharging a gun among a multitude of people, (c) So, if a man resolves to kill the next man he meets, and does kill him, it is murder, although he knew him not; for this is universal malice." [Emphasis added and footnotes omitted.]

In State v. Massey, 20 Ala.App. 56, 100 So. 625, this court stated that the fourth class of murder in the first degree:

“ . . . was designed to include those cases also in which death is produced by acts putting the lives of many in jeopardy, under circumstances evincing great depravity and utter recklessness in regard to human life.” '

Some of the instances of universal malice mentioned in State v. Massey, supra, are where:

“ . . . One may shoot into a crowd merely for the purpose of producing alarm and not having the intent to kill any particular person, although at the imminent hazard, as he knows, of killing some one. One may drive a high-powered automobile along a crowded street of a large city at a high rate of speed into a crowd of children playing in the street, killing one of them, but without the intent to kill any particular person, knowing that such reckless act will probably result in death. One may ride an unruly horse in a run into a crowd of people without the intent to any particular person, knowing that the horse is likely to run over and trample to death some one or more persons. Again he may open the drawbridge of a railroad company with the intent to kill the passengers or for the sole purpose of destroying the property of the railroad company.”

The definition given in T. 14, § 314, supra, of this fourth class of murder in the first degree, brings the instances enumerated within the realm of the principles stated. It shows that this fourth class of murder was intended to embrace homicides committed with universal malice.

In State v. Trott, 190 N.C. 674, 130 S.E. 627, the court stated:

“ . . . Huddy says: ‘The act of a motorist may fall within the cases of murder in such a manner as to evince a depraved mind, as where one voluntarily becomes intoxicated while driving a car, and then drives on the streets of a city at a high rate of speed, heedless of pedestrians or of his acts. To make a case of murder against a motorist exceeding the speed limit, it should appear that such conduct was directly perilous to human life or that human life would probably be endangered thereby. Thus, if one in charge of a car so operated it where he saw people on the street and in danger, and if he so operated his car where he knew it to be probable that people were in the way, malice may be implied.’ Automobiles, 7th ed., 993, sec. 917. See, also, The Law of Automobiles by Berry, sec. 1758.”

The court said in State v. Massey, supra, that:

“ . . . Voluntary drunkenness does not excuse crime, yet its excessiveness may produce such a mental condition as to render the intoxicated person incapable of forming a specific intent, and, when the intent is of the essence of the crime, drunkenness as affecting the mental state of the accused becomes a proper question for the jury in determining the question of intent. Fonville v. State, 91 Ala. 39, 8 So. 688.”

The court went on to say in State v. Massey, supra:

“ . . . The same doctrine which permits the jury to consider evidence on voluntary drunkenness in determining the question of intent is applicable in deciding whether or not there was an operation of the accused’s mind, a result of the depravity of heart, which determined to take life without sufficient provocation, without knowing or caring who might be the victim, or whether he was knowingly and consciously guilty of doing a grossly negligent act dangerous to the lives of others, ‘evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life.’ ”

In this case, the main question is the manner in which the defendant was operating his car at the time he struck the deceased’s car. Was this an “ . . . act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life. . . .?” The appellant attempts to justify his act by maintaining that the steering in his car was defective. He said that just before the collision his car swerved and hit a milepost marker that caused his vehicle to go into the median and ultimately crash into the deceased’s car. The appellant denies that he was intoxicated but admits that he had two “cans” of beer before leaving his place of business.

There was testimony from several witnesses that the accused was driving between eighty and one-hundred miles an hour just prior to the accident. There was also testimony that the alcohol content in accused’s blood was 0.25 percent, which was more than sufficient to impair his operation of a vehicle in a safe manner. Further, there was testimony that just prior to the collision the appellant’s vehicle was seen being driven in an erratic, swerving manner. The testimony also showed the vehicle was going from one side of the road to the other and the collision occurred on a part of the highway used by the traffic going in the opposite direction.

The facts in the present case indicate that the collision was not the typical automobile accident where a driver makes a gross error of judgment and is tried for manslaughter. Rather, the conduct surpasses the usual vehicle manslaughter case and demonstrates characteristics of wanton conduct, and an abandoned and malignant heart.

It would be idle to say that Langford’s reckless driving was unintentional or that he did not know the speed of his car was excessive when the collision occurred. Indeed, it is reasonable to infer that he was conscious, that his act was greatly dangerous to the lives of others and evidenced a depraved mind regardless of human life.

The jury had sufficient evidence from which to find Langford guilty of the fourth class of murder in the first degree under T. 14, § 314, supra.

II

The appellant asserts that he was deprived of his right to effective counsel guaranteed by the Constitution of the United States and the Alabama Constitution, because retained counsel failed to render reasonably effective assistance.

No all encompassing definition of effectiveness or ineffectiveness of a lawyer’s assistance to a client exists. The Supreme Court of Alabama in Taylor v. State, 291 Ala. 756, 287 So.2d 901, stated:

“ . . . Effective assistance does not mean counsel is without error. What may later seem to be error may have been trial tactic at the time. Further, conviction of a client does not prove the lack of skill or zeal on the part of counsel.” [Citations omitted.]

The alleged inadequate representation by trial counsel does not appear in the record but is suggested in counsel’s brief on appeal. The Alabama Supreme Court in Tillis v. State, 292 Ala. 521, 296 So.2d 892, said:

“ . . . [B]efore an alleged error of inadequate representation will have any persuasiveness there must be specific acts of inadequacy appearing in the record and a showing as to how inadequate representation may have affected the verdict.”

The appellant claims the action or lack of action marking trial counsel’s inadequacy is pointed up in the following instances:

(1) That trial counsel certified in a “Waiver of Arraignment” form, that the case under consideration was a non-capital offense. Counsel on appeal maintains this certificate demonstrated trial counsel’s failure to understand the nature of the charge and his lack of knowledge of the law. Further, he said that the trial counsel failed to properly advise his client about waiving important fundamental rights when he made the waiver of arraignment. Appellant’s counsel argues that it is difficult to imagine how anyone could think the offense charged to the appellant was anything but a capital offense under the law.

(2) Counsel on appeal said trial counsel failed to understand the gravity of the charge against the appellant and this ineffectiveness was demonstrated during trial counsel’s questioning of defense witness, Dr. A. S. Zadanis:

“Q Did you consult with Dr. Cox concerning Mr. Langford?
“A Yes.
“Q In those consultations with him did Dr. Cox ever indicate to you any evidence that this man had a depraved mind?
“A No.”

Counsel argues this was a stark indication that trial counsel never understood the nature of the charge against his client. Further, counsel on appeal explains the offense charged against this appellant involves a question of whether or not his act, and the circumstances surrounding that act, evidenced a conclusion that he did those acts without regard to human life when he drove an automobile while intoxicated. Counsel insists that no amount of zealousness can overcome lack of one’s understanding of the law and any attempt at a defense could only be pro forma.

(3) Counsel on appeal conceded that the appellant’s intoxication was a question for the jury. He points out that voluntary drunkenness may be so extreme as to render impossible the specific mental operation which was an essential element of the act charged against this appellant. However, counsel argues that not only did trial counsel fail to raise these issues, but in the face of overwhelming testimony, tried to show that the appellant was not intoxicated.

(4) Counsel on appeal insists that when trial counsel failed to except to the court’s oral charge when such an instruction amounted to a directed verdict of first degree murder, such failure resulted in the non-preservation of the appellant’s right to appeal. Further, he said that the written charges were merely “canned” charges applicable to a typical murder case, and these charges had nothing to do with the issues in this case. Counsel said this further demonstrated the trial counsel’s failure to understand the charge against the appellant.

(5) Counsel on appeal insists that trial counsel should have called character witnesses to testify on behalf of defendant. He maintained that it is inconceivable that an insurance executive with a life insurance company for twenty-five years, with above average performance, would not be well-known and respected in the community where he lived.

Counsel on appeal insists that, standing alone, none of these instances cited above, demonstrated in and of themselves, an inadequacy of counsel. He maintains, however, that, when coupled with the others, this failure to call character witnesses in a well-publicized criminal proceeding was one more indication that counsel had failed to render the necessary effective assistance required.

Appellate counsel characterized the appellant’s trial in the lower court as more of an inquisition than an unbiased, adversary proceeding. He maintained that defects of the attempted defense were apparent and instead of attempting to insure the defendant’s trial was conducted fairly, State officials capitalized on trial counsel’s mistakes and lack of understanding of the law. Such a conviction, he insists, cannot be allowed to stand.

This court in Gore v. State, 45 Ala.App. 146, 227 So.2d 432:

“ . . . [T]he duty of counsel, re- • tained or appointed, in a criminal trial, . is to prevent the trial from being or appearing to be ‘a farce or a mockery of justice.’ ”

In Harried v. United States, 128 U.S.App.D.C. 330, 389 F.2d 281, the court wrote that the burden is on the appellant to establish his claim of ineffective assistance of counsel. The court went on to say that such a claim must be assessed in light of the entire record.

In Herring v. Estell, 5 Cir., 491 F.2d 125, the court stated:

“ . . . The governing standard is reasonably effective assistance. One method of determining whether counsel has rendered reasonably effective assistance is to ask whether the proceedings were a farce or mockery. A farce-mockery test is but one criterion for determining if an accused has received the constitutionally required minimum representation (reasonably effective assistance).” [Citations omitted.]

In Taylor v. State, supra, the Supreme Court of Alabama said that:

“The ‘mockery of justice’ rule is frequently cited as a minimum standard of competence and efficacy. Other factors often mentioned include the fairness of the trial as a whole, the reasonableness of counsel’s assistance, loyalty to client, good faith, and the nature and extent of counsel’s pre-trial preparation and opportunity for conference.” [Footnotes omitted.]

Judge Cates in Gore v. State, supra, cited United States v. Cariola, 3 Cir., 323 F.2d 180, for the following catalog of factors:

“(1) Member of bar in good standing;
(2) loyalty to client;
(3) good faith;
(4) service to best of ability; and
(5) character of service comports with justice.”

In the instant case, the appellant was represented at trial by counsel who was a member of the Alabama Bar in good standing, and who during the trial cross-examined twenty-two of the State’s twenty-four witnesses. Under the facts of this case, which were overwhelming, to say the least, his examination was reasonably effective. During the trial he made numerous objections and challenges to evidence offered by the State.

At the completion of the State’s evidence, trial counsel made a motion to exclude. When this motion was overruled, witnesses were called for the defense and the defendant testified in his own behalf. He elicited from the defendant testimony, which, had it been believed by the jury, would have led to his acquittal, or a conviction for a lesser offense.

Upon completion of all the testimony and before the case was submitted to the jury, he requested some thirty-five charges and twenty-nine were given. After the jury’s verdict of guilt and judgment was pronounced, he made a prompt motion for a new trial which was eventually denied.

In our judgment, Langford’s conviction was a result of the jury’s disbelief in his testimony and the evidence he offered. It is hard for us to believe that another attorney would have been more effective under these circumstances. Effective and competent counsel does not mean that a trial attorney was errorless throughout the conduct of the trial and certainly not one judged ineffective by hindsight. Effective counsel is one who is likely to render reasonably effective assistance. Under the facts of this case, counsel rendered the necessary assistance.

Ill

Appellant complains that evidence of the blood-alcohol level of the blood specimen taken from the appellant was improperly admitted for two reasons. First, because procedures used by the authorities to preserve the blood specimen taken from the appellant were wrong. Appellant argues that the sample was placed in a container without adding any preservatives and was kept without refrigeration for more than two hours. He maintained that because no precautionary measures were taken to preserve the blood specimen, the results of the blood analysis would be erroneous. The second reason asserted is that the State failed to prove the continuity of possession of the blood specimen. He argues that the blood specimen was taken at approximately 9:45 P.M., on June 24, 1975, and that some two hours later it was placed in Officer Kimbrough’s refrigerator at his home. Counsel points out that Kimbrough did not deliver the specimen to the State toxicologist until 4:00 P.M., the following day. He insists that because of these facts and the fact that Officer Kimbrough did not testify, that the vial containing the blood had not been tampered with, the evidence was improperly admitted.

At trial, defense counsel did object to the introduction of the blood specimen on the grounds that the State failed to prove the continuity of possession and thus preserved this claim of error for review. However, we have been unable to find in the record, any objection pointing up the fact that the procedures taken by the State in preserving the appellant’s blood sample were objected to on the ground it was improperly preserved. No evidence was offered that showed that the failure to refrigerate the specimen or use preservatives in any way affected the results of the analysis.

Without objection on this specific point, this court is without authority to review this claim of error.

The basic reason for establishing the identification and continuity of possession of an article offered into evidence is to show its authenticity and give assurance that no one has tampered with this article. Powell v. State, 47 Ala.App. 582, 258 So.2d 923.

In the present case the testimony was sufficient to establish the chain of custody of the blood specimen. The facts show that Officer Kimbrough was present when Till extracted the blood from the appellant and that the specimen was immediately turned over to him. It is also shown that he arrived home about midnight and that he placed the specimen in his refrigerator. Kimbrough stated that from the time Till handed him the specimen until he turned it over the the toxicologist, he alone had possession of the vial. There was also evidence that the vial containing the specimen had been sealed and the name, “Janet Till,” and time, “9:45,” were written on it.

The chain of custody was sufficiently established and the introduction of the blood specimen was proper. Kim-brough’s storage of the blood in his home refrigerator and leaving it unattended would not constitute the necessary break in the chain of possession. Accord, Dennison v. State, 259 Ala. 424, 66 So.2d 552. If a weak link in the chain of custody is assumed arguendo, it would present a question of credit and weight, rather than admissibility. King v. State, 45 Ala.App. 348, 230 So.2d 538; McClary v. State, 51 Ala.App. 30, 282 So .2d 379.

IV

The appellant insists that he was deprived of his right to the effective assistance of counsel on appeal because the court reporter failed to record the closing arguments at trial.

In Alabama, no duty exists to transcribe the entire argument of counsel. T. 13, § 262, Code of Alabama 1940, Recompiled 1958; Browder v. State, 54 Ala.App. 369, 308 So.2d 729.

In the present ease, the trial counsel did make several objections to the argument by the State, and these were taken down.

Since no legal requirement exists in Alabama for reporting counsel’s arguments, and in view of the fact trial counsel’s numerous objections during the State’s argument were recorded, we fail to see how this appellant was denied due process or equal protection of the law.

V

The appellant has raised four other contentions in his brief, but in no instance of claimed error do we find in the record an objection or adverse ruling preserving those points. Generally, in order to preserve some point of claimed error, an objection or Some adverse ruling must be made before' that point can be reviewed on appeal. Daniels v. State, 53 Ala.App. 666, 303 So.2d 166; Edwards v. State, 287 Ala. 588, 253 So.2d 513; Pugh v. State, 247 Ala. 535, 25 So.2d 417.

VI

The appellant requested thirty-five written charges and twenty-nine were given during the court’s oral instruction. Two of the six requested written charges by the appellant that were refused were affirmative in nature, and the four remaining were covered by the court’s oral charge and the charges given at the request of the defendant.

At the end of the court’s oral charge, the State and the defense announced they were satisfied with the charge.

After a close examination of the court’s oral charge, and the twenty-nine charges given at the request of the defendant, it is our judgment that the six charges requested by the defense were properly refused. Gosa v. State, 273 Ala. 346, 139 So.2d 321.

We have carefully read and examined this record in its entirety many times and have found no error.

AFFIRMED.

All the Judges concur.

BOOKOUT, J., files additional opinion in support of judgment.

Tyson, P. J., joins in additional opinion.

BOOKOUT, Judge,

concurring specially:

I concur in the instant opinion, but would expand upon Section I thereof.

While an automobile is not per se a deadly weapon, when driven properly, it may nevertheless be used as a deadly weapon the same as a gun, or a knife or a club may be improperly used. There is no doubt that a person who kills by deliberately driving his ear into or over a victim, intending to injure or kill, may be indicted and tried for first degree murder. Blackwell v. State, 264 Ala. 553, 88 So.2d 347 (1956). The problem arises in this case as to whether driving a vehicle in a grossly and wantonly negligent manner may be the subject of a first degree murder prosecution and conviction.

The fourth class of first degree murder under Title 14, § 314, Code of Alabama 1940, requires the perpetration of an act: (1) greatly dangerous to the lives of others, (2) evidencing a depraved mind regardless of human life, (3) although without any preconceived purpose to deprive any particular person of life.

There is no evidence that the appellant drove with any preconceived purpose to deprive the victim of life, therefore, our inquiry is directed at (2) and (3), supra. The instant case does not clearly fall within the traditional examples set out in the instant opinion and in most decisions on this point of law, i. e., deliberately driving into a crowd, shooting into a crowd, wrecking a passenger train, etc. To determine that the conduct of a driver falls within the fourth class of first degree murder, a number of factors should be considered, such as, but not limited to the following:

1. Where the accused was driving; whether in a sparsely populated area or a heavily populated area.
2. How the accused was driving; whether speeding or in a reckless manner.
3. Road and weather conditions, including visibility.
4. Degree of intoxication of the accused.
5. Physical and mental condition of the accused.
6. The mechanical condition of the automobile of the accused (and of the victim if his automobile was involved).
7. Possibility of an intervening act causing the collision.
8. Contributory negligence of a victim.

After considering the above factors and any other pertinent factors, the question of foreseeability of injury becomes important. In line with the traditional examples of universal malice, it would be easy to decide the case if the appellant had deliberately started driving in the wrong direction in the oncoming lane of traffic, evidencing a preconceived notion to run everyone off the road he approached or else run over them. The same would be true if he had, upon seeing numerous vehicles and pedestrians on a crowded city street, aimed his car in their direction and accelerated to an unstoppable speed. In those examples, the consequences of the accused’s contemplated act are obvious, and he nevertheless disregards the apparent consequences and goes full speed ahead.

Here, instead, was a man, possibly distraught over the threatened loss of his job; who began drinking; finally got in his car; got up to 80 miles per hour or more on a wide four lane stretch of highway, divided by a median strip; who lost control of his car; crossed the median and ran head-on into the victim’s car. This raises certain questions. Was the death of someone the natural and foreseeable consequence of his getting behind the steering wheel while intoxicated? Considering the condition of the roadway, whether it was conducive to speed; the presence or absence of heavy traffic; the sparseness of residential and business population of the area; weather conditions; the time of day (or night) and other pertinent factors, can it be determined that appellant should have known that someone’s death was likely to occur if he attempted to drive in his intoxicated condition?

There have been several cases in Alabama where indictments for first degree murder were returned in similar circumstances, but we have been unable to find a conviction for first degree murder in such a case. Second degree murder verdicts have been returned in a few instances, but manslaughter seems to generally prevail. This appears to be the first case reported in this state where a first degree murder conviction resulted under the universal malice theory from driving while intoxicated.

In Reed v. State, 25 Ala.App. 18, 142 So. 441, cert. denied 225 Ala. 219, 142 So. 442 (1932), the appellant was charged with first degree murder under an indictment almost identical to the one in the instant case. There the appellant was intoxicated and drove his car through the city streets of Birmingham at speeds of 40 to 65 miles per hour. While turning a corner at that speed, he ran over and killed a pedestrian on the sidewalk. The appellant was there convicted of second degree murder and sentenced to fifteen years imprisonment. The Alabama Court of Appeals approved the following charge given to the jury by the trial judge:

“ . . . ‘ * * * If a person driving an automobile along the public highway knew that he was intoxicated, and, with that knowledge and the knowledge of other persons present on the highway, should proceed to drive the car in a highly reckless manner and operate the car in such manner as to be greatly dangerous to the lives of others and thus evidencing a depraved mind and regardless of human life, then you might consider that fact in determining whether or not the operator of the car was guilty of murder.’ . . ”

In Hyde v. State, 230 Ala. 243, 160 So. 237 (1935) the accused was driving while intoxicated and drove his car in an extremely reckless manner, “zig-zagging his car from one side of the road to the other,” forced a traveler off the road, and finally collided with the rear of another car in which two young ladies were traveling, causing it to turn over and catch fire. The two young ladies died from the burns. The appellant was charged with first degree murder, convicted of second degree murder and sentenced to twenty-five years imprisonment. The Alabama Supreme Court found the evidence presented a question for the jury, and the proof was sufficient for submission to the jury on the question of the appellant’s guilt of second degree murder, citing as authority, Reed, supra.

In Williams v. State, 30 Ala.App. 437, 7 So.2d 511 (1942) the Alabama Court of Appeals upheld the second degree murder conviction of the appellant. There the appellant, while intoxicated to an undetermined degree, drove his car on a highway on Sand Mountain at 50 miles per hour, ran into the rear of two cars ahead of him, then the side of an oncoming vehicle, causing the death of a passenger. The Court of Appeals citing Reed and Hyde, supra, found ample evidence from which the jury could find that the appellant, “ . . . ‘was conscious of his acts, conscious of the impending danger surrounding him, and of the probable results of his acts, and then with a reckless indifference to the probable consequences of his acts, brought about the collision and death of the deceased.’ . . . ”

In Berness v. State, 38 Ala.App. 1, 83 So.2d 607, affirmed, 263 Ala. 641, 83 So.2d 613 (1953), the appellant, while drunk and driving “pretty fast,” crossed the entire highway, struck and killed a crippled girl walking on the opposite shoulder of the roadway. Although reversing on another ground, the Court of Appeals, citing Reed, Hyde and Williams, supra, held:

“It is well settled under our decisions that where the accused is himself the driver of an automobile and drives it in a manner greatly dangerous to the lives of others so as to evidence a depraved mind regardless of human life, he may be guilty of murder in the second degree if his antisocial acts result in death of another, and this though he had no preconceived purpose to deprive any particular human being of life. Under such circumstances his acts are unlawful and without legal excuse, and malice may be inferred therefrom. . . . ”

In Wright v. State, 41 Ala.App. 684, 149 So.2d 835 (1963) the appellant was indicted for first degree murder, convicted of second degree and sentenced to sixteen years imprisonment. There the appellant and a friend, after drinking at a tavern, decided to race each other in their trucks. “ . . . Generally driving one behind the other but passing each other . and running through several red lights, they drove through Jasper at speeds estimated from 50 to 80 miles per hour. . . ” On the western outskirts of Jasper, appellant’s truck ran into the right side of an automobile of a third party, causing his death. The Court of Appeals affirmed, quoting the above quotation from Berness, and citing Reed, Williams, and Hyde, supra.

Although a case of first impression, and while a very close question of whether Langford’s gross and wanton misconduct rises to the degree necessary to show universal malice by evidencing a “depraved mind regardless of human life,” the above cited authorities would indicate that the evidence was sufficient to present a jury question in that regard. The jury had a right to pass on the truth and sufficiency of the appellant’s explanation of the collision, Williams, supra. They did not believe him, and we cannot say they were wrong under the evidence presented. This case, however, should be affirmed with one caveat to prosecutors. It is not every case of reckless driving that rises to the degree of wantonness that would support a conviction for first degree murder. Where the overwhelming majority of eases are disposed of on manslaughter charges, but a case on almost identical facts is tried under Title 14, § 314, supra, because of notoriety or publicity, a close question of selective prosecution may arise under the equal protection clause.

To quote from McGhee v. State, Ala.Cr.App., 333 So.2d 865 (1976):

“ . . . this appears to be an area which is ripe for legislative action. A statute which speaks specifically to the elements of vehicular homicide while intoxicated, along with an appropriate penalty section, would be an immense improvement over the present attempts to prosecute for such conduct under our traditional murder statutes.”

TYSON, P. J., joins in the above.


source: Caselaw Access Project

author: JONES, Justice. MADDOX, Justice

license: Public Domain

text:
    In re Heflin Mack LANGFORD v. STATE of Alabama. Ex parte Heflin Mack Langford.
    SC 2623.
    Supreme Court of Alabama.
    Nov. 10, 1977.
    Rehearing Denied Jan. 6, 1978.

      Maury D. Smith, Sterling G. Culpepper, Jr., Charles S. Coody, Montgomery, for petitioner.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State, opposed.
    James H. Evans, Dist. Atty., 15th Jud. Circuit, in opposition to petition for Writ of Certiorari, amicus curiae.
    John D. Whetstone, Executive Director, Montgomery, Office of Prosecution Services, adopts brief of James H. Evans, amicus curiae.
   JONES, Justice.

This case, before the Court upon writ of certiorari, involves a review of a conviction of murder in the first degree for the homicide of an individual by an automobile driver under the influence of alcohol. Whether one may be convicted of murder in the first degree under such circumstances is a question which has never been decided by this Court. The Court of Criminal Appeals affirmed the judgment rendered by the trial Court. We reverse and remand.

On June 24,1975, Heflin Mack Langford, Petitioner, was involved in an automobile collision which resulted in the death of sixteen-year-old Randall Holt. Langford’s automobile struck a mileage marker on the right side of a four-lane highway in Montgomery County, swerved to the left and crossed the median. It collided with Holt’s automobile, which was traveling in the opposite direction, and killed Holt instantly.

The extent to which Langford had been drinking was in dispute. Several witnesses stated that alcohol could be smelled on his breath; and it was shown that his blood-alcohol level was 0.25 per cent. Furthermore, witnesses testified that they had seen Lang-ford’s car traveling in excess of 90 miles per hour immediately preceding the collision.

In response to this evidence, Langford stated that he had consumed only “two beers” and was not intoxicated. He stated that mechanical steering problems had caused his loss of control of the vehicle.

The jury was charged as to the law involved, and no exceptions or objections were taken, except for an adverse ruling to Langford’s motion for directed verdict at the close of the evidence. The jury found Langford guilty of murder in the first degree and he was sentenced to life imprisonment. It was in this posture, then, that the Court of Criminal Appeals addressed the merits of the defendant’s contention that the evidence was insufficient to support a conviction of murder in the first degree. That Court affirmed, holding:

“Although a case of first impression, and while a very close question of whether Langford’s gross and wanton misconduct rises to the degree necessary to show universal malice by evidencing a ‘depraved mind regardless of human life,’ . the evidence was sufficient to present a jury question in that regard.”

Our grant of the petition for writ of certio-rari was limited to a review of that holding.

Langford contends that an individual cannot be convicted of murder in the first degree where the facts show only that he determined to, and did, drive an automobile which was involved in a collision which caused the death of an individual, even though the driver had knowledge of his own intoxication. We agree.

The applicable statute, Tit. 14, § 314, Code, provides:

Every homicide, perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery, or burglary; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree . . . (Emphasis added.)

Langford was charged and convicted of the fourth type of first-degree murder (the emphasized segment).

It is settled that, in appropriate circumstances, a homicide committed by an intoxicated driver of an automobile may be murder. Hyde v. State, 230 Ala. 243, 160 So. 237 (1935); Berness v. State, 38 Ala.App. 1, 83 So.2d 607 (1953); and Reed v. State, 25 Ala.App. 18, 142 So. 441 (1932). This, however, does not satisfy the inquiry before us; and this for the reason that this State has two degrees of murder, and a determination that a conviction of murder may be appropriate does not necessarily assure the appropriateness of a conviction of murder in the first degree. Tit. 14, § 314, Code. See also Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213 (1928).

Justice Stone, in Mitchell v. State, 60 Ala. 26 (1877), stated:

“ . . . the legislature, in this [fourth] clause, intended to raise to the high grade of murder in the first degree those homicides which are the result of what is called ‘universal malice.’ By universal malice, we do not mean a malicious purpose to take the life of all persons. It is that depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim.” 60 Ala. at 30. (Emphasis added.)

The word “determines” presupposes that some mental operation has taken place; the reasoning faculty must be called into play. State v. Massey, 20 Ala.App. 56, 100 So. 625 (1924). See also Curlette v. State, 25 Ala.App. 179, 142 So. 775 (1932).

“If one knowingly and consciously drives a high-powered automobile . at an excessive rate of speed into a railroad train moving over a street crossing, knowing that the train is moving over the crossing, and that the automobile will strike the train, and that death will probably result to one or more occupants of the car, although without any preconceived purpose to deprive any particular person of life, but with a reckless disregard of human life, and death results from such act, the driver of the automobile may be guilty of murder in the first degree under the fourth division .
If he did not know that he was driving the automobile into the train, and he did not determine to drive it into the train regardless of consequences, but if the act of so driving it was purely accidental, but while in the commission of an unlawful act, such as driving along a public highway at a reckless rate of speed, or exceeding the speed limit, the offense would be manslaughter.” 20 Ala.App. at 58, 100 So. at 627. (Emphasis added.)

See also Jackson v. State, 239 Ala. 38, 40, 193 So. 417 (1940); Mitchell, supra; Blashfield, Cyclopedia of Automobile Law and Practice, § 5378 (1950); and Huddy, Cyclopedia of Automobile Law, “Criminal Offenses,” § 35 (9th Ed., 1931).

As Langford has correctly pointed out, in the instant case, the defendant determined only to drive upon the highway after drinking. There is no showing that he determined to have a collision; nor is there any evidence that he realized the likelihood of a collision; and the consequent taking of human life, and proceeded in the face of such probabilities.

The State has cited various cases where an intoxicated driver was found guilty of murder. See Nixon v. State, 268 Ala. 101, 105 So.2d 349 (1958); Berness, supra; Reed, supra; and State v. Trott, 190 N.C. 674, 130 S.E. 627 (1925). It should be noted, however, that no case has been cited, or found, wherein an intoxicated automobile driver was found guilty of murder in the first degree. As to second degree murder, however, see Hyde, supra; Williams v. State, 30 Ala.App. 437, 7 So.2d 511 (1942); Massey, supra; Clemon v. State, 218 Ga. 755, 130 S.E.2d 745 (1963); Edwards v. State, 202 Tenn. 393, 304 S.W.2d 500 (1957); Shorter v. State, 147 Tenn. 355, 247 S.W. 985 (1923); and Montgomery v. State, 178 Wis. 461, 190 N.W. 105 (1922).

The classic examples of universal malice include shooting into an occupied house, and driving an automobile into a crowd. Massey, 20 Ala.App. at 58, 100 So. 625. While these examples are not exhaustive, they do illustrate the parameter of the type factual situation wherein such malice may be found or implied. We do not believe that the facts before us are within the ambit of the degree of malice exemplified by the above-stated circumstances.

We hold that the trial Court erred in not granting the motion for directed verdict as to the charge of murder in the first degree. As to all lesser included offenses, however, the evidence was sufficient for submission to the jury. The judgment of the Court of Criminal Appeals is reversed with instructions to remand the cause for a new trial not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER, ALMON, SHORES and EM-BRY, JJ., concur.

MADDOX and BEATTY, JJ., dissent.

MADDOX, Justice

(dissenting).

I think the Court of Criminal Appeals was absolutely correct in this case by upholding a jury’s determination that the defendant was guilty of murder in the first degree. As Judge Bookout points out in his special concurrence, there have been several cases where drivers of automobiles have been indicted for murder in the first degree and the jury has convicted for second degree, but this is the first time that this Court has held, as a matter of law, that a jury could not find a person guilty of murder in the first degree when he had done what Langford did here. I think the majority has erred.

The law of this case is contained in Reed v. State, 25 Ala.App. 18, 142 So. 441 (1932); certiorari denied, 225 Ala. 219, 142 So. 442 (1932). Reed was indicted for first degree murder. The jury found him -guilty of second degree murder. From the opinion is the following:

“The court delivered an able and explicit charge to the jury covering every phase of the law applicable to this case. No exception was reserved to this charge, nor was it subject to objection and exception. Among other things, the court charged the jury: ‘ * * * If a person driving an automobile along the public highway knew that he was intoxicated, and, with that knowledge and the knowledge of other persons present on the highway, should proceed to drive the car in a highly reckless manner and operate the car in such manner as to be greatly dangerous to the lives of others and thus evidencing a depraved mind and regardless of human life, then you might consider that fact in determining whether or not the operator of the car was guilty of murder.’ * * * ”

In Nixon v. State, 268 Ala. 101, 105 So.2d 349 (1958), this Court, commenting on the earlier Reed case, stated:

“The earliest case which we have found in this jurisdiction in which a conviction for murder in the second degree caused by an automobile was affirmed is Reed v. State, 25 Ala.App. 18, 142 So. 441, 442, certiorari denied, 225 Ala. 219, 142 So. 442. The indictment was for murder in the first degree. As to the oral charge of the trial court in that case, the Court of Appeals said:
“ ‘The court delivered an able and explicit charge to the jury covering every phase of the law applicable to this case. No exception was reserved to this charge, nor was it subject to objection and exception. * * * ’
“We have examined the original record in the Reed case and find that in pertinent part the trial court charged as follows:
“ ‘Now, gentlemen, the other methods by which murder in the first degree conceivably could be committed in a case of this sort would be, as stated to you, when a person commits an act that is greatly dangerous to the lives of persons present, evidencing a depraved mind and regardless of human life, although the act is done without any preconceived purpose to deprive the deceased of life — the defendant would be guilty of murder in the first degree.’
“While the charge in the Reed case does not comply strictly with the statutory definition in that the charge characterizes the act as having been done without intention to deprive ‘the deceased’ of life, where the statute employs the term ‘any particular person,’ both charge and statute declare that the facts hypothesized constitute murder in the first, not in the second, degree. See, also, Johnson v. State, 203 Ala. 30, 33, 81 So. 820, where a written charge given at the request of the state was held to be a correct definition of the fourth class of murder in the first degree.” (emphasis supplied.)

The jury here was sufficiently charged on the fourth class of murder in the first degree. It was a jury question whether Langford drove an automobile along a public highway knowing he was highly intoxicated — the evidence was conflicting. It was a jury question whether he knew other persons were present on the highway. It was a jury question whether he proceeded to drive the car in a highly reckless manner and operated it in such a manner as to be greatly dangerous to the lives of others. It was a jury question whether he had a depraved mind and did this without regard to human life.

The majority has substituted its determination of the facts for that of the jury by holding as a matter of law that first degree murder was not proved. Consequently, I dissent.

BEATTY, J., concurs.


text:
    Heflin Mack LANGFORD v. STATE.
    3 Div. 520.
    Court of Criminal Appeals of Alabama.
    Jan. 24, 1978.
   After remandment, REVERSED AND REMANDED on authority of the Supreme Court of Alabama, Ms. 2623, November 10, 1977, 354 So.2d 313.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Terry SIMPSON v. STATE.
    7 Div. 549.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    As Corrected On Denial of Rehearing Jan. 24, 1978.

      Loma B. Beaty, Fort Payne, Terry T. Bush, Rainsville, for appellant.
    William J. Baxley, Atty. Gen., and Winston D. Durant, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

The appellant, Terry Simpson, was indicted by the Grand Jury of DeKalb County in December 1974 for buying, receiving and concealing stolen property. On November 3, 1975, prior to the impaneling of a jury, the case was nol-prossed at the request of the State, without leave of court to reindict the defendant. In January 1976, Simpson was reindicted for the same offense. In February 1977, Simpson was convicted by a jury for buying, receiving or concealing stolen property and sentenced to three years incarceration.

This case arose from the disappearance of thousands of bricks from Jenkins Brick Sales in Birmingham, Alabama, a subsidiary of Jenkins Brick Company, Inc., located in Montgomery, Alabama. In order to track down the missing bricks, James M. Speigner, a salesman for Jenkins, was told by his superiors to observe all construction sites in his sales territory. Whenever he came upon a site using Jenkins brick, he inquired to make sure the brick had been properly purchased.

On September 27, 1974, Speigner was in Sylvania, DeKalb County, Alabama. At the office and residence of appellant, Speig-ner found 8,000 dark brown Williamsburg bricks, a distinctive brick manufactured by Jenkins. Appellant told Speigner he had shipped 22,000 of the same kind of brick to a local job site. Speigner then stated that according to his company records, Jenkins had sold appellant only 21,000 dark brown Williamsburg bricks. When Speigner asked for an explanation of the existence of the bricks for which Jenkins had no record of sale, appellant first responded that it was none of Speigner’s business. However, after Speigner called his home office and the DeKalb County sheriff, appellant told Speigner he knew the bricks had been stolen, but could not reveal the identity of the person or persons who had sold him the bricks because he feared for his life. Later that day, by telephone, appellant told Mr. Charles B. Young, Jenkins’ executive vice president, that the unaccounted for bricks were stolen, but again refused to reveal the identity of the thief.

Sometime later, Mr. Young met appellant at a cafe in Cordova, Alabama. At that time, appellant said a man named Wally Finch sold him the bricks which he picked up from behind an abandoned service station and left $150.00 in a jar. Young testified that appellant later changed his story again and said he bought the Jenkins bricks from a disinterested party in Anniston.

I

Prior to trial, counsel for appellant filed a pleading entitled “Plea in Abatement,” in which he alleged that the grand jury which returned the 1976 indictment was not properly constituted. However, the bulk of the pleading dealt with the nolle prosequi of the 1974 indictment without leave to rein-dict the defendant and alleged that the offense charged in the indictment was therefore “res judicata,” which we take to mean former jeopardy. The State responded with a pleading entitled “Motion to-Strike Defendant’s Plea in Abatement,” which alleged that the 1974 indictment had been nol-prossed because of a misnomer of the Jenkins Brick Company and stated appellant had “shown no evidence of res judi-cata.” After hearing argument of counsel on the plea in abatement and the motion to strike, off the record and out of the presence of the jury, the trial court granted the State’s motion to strike. Appellant claims the trial court erred by not allowing the question of his former jeopardy to be tried by the jury. The State contends that a plea in abatement is not the proper way to raise former jeopardy.

It has long been the law in Alabama that the issue of former jeopardy must be raised by special plea. DeArman v. State, 77 Ala. 10 (1884); Rickles v. State, 68 Ala. 538 (1881); Steward v. State, 55 Ala.App. 238, 314 So.2d 313, cert. denied 294 Ala. 201, 314 So.2d 317 (1975). We think appellant complied with this requirement. Although his pleading was entitled “Plea in Abatement,” and although one count challenged the grand jury, nevertheless the substance of the pleading clearly raised a former jeopardy issue based on the nolle pros-equi of the first indictment. Title 15, § 282, Code of Alabama 1940 (Recompiled 1958) provides:

“In criminal proceedings, a plea is to be determined according to its substance, and not by its commencement or conclusion.”

That the pleading was entitled “Plea in Abatement” rather than “Plea of Former Jeopardy” does not make the plea invalid.

Appellant is correct in his contention that the question-of his former jeopardy should have been submitted to a jury. Parsons v. State, 179 Ala. 23, 60 So. 864 (1913); Garsed v. State, 50 Ala.App. 312, 278 So.2d 761 (1973). However, the trial court’s error in determining the former jeopardy issue itself, rather than submitting it to the jury, is not reversible error where there is no injury to the defendant. Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973); Kilpatrick v. State, 46 Ala.App. 290, 241 So.2d 132 (1970). Here, appellant was not prejudiced by the trial court’s action because his claim of former jeopardy was unfounded.

The basis of appellant’s claim of former jeopardy was the nolle prosequi of the first indictment against him. His theory appears to be that a nolle prosequi constitutes an acquittal of the person indicted, and thus he cannot be brought to a second trial. We disagree.

When the 1974 indictment was nol-prossed, appellant had not yet been put in jeopardy. In Alabama, jeopardy attaches when a jury has been charged with the trial of a defendant, i. e. when the jury has been impaneled and sworn in a court of competent jurisdiction, the defendant has pled to the indictment, and the indictment has been read to the jury. Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973), cert. denied 414 U.S. 1118, 94 S.Ct. 855, 38 L.Ed.2d 747 (1974); Spencer v. State, 48 Ala.App. 646, 266 So.2d 902 (1972); Garsed v. State, supra. The nolle prosequi of an indictment is not exempt from this general rule. In Whitaker v. State, 21 Ala.App. 114, 115, 105 So. 433, 434 (1925) the Court of Appeals stated:

“. . . When a nol. pros, is entered before the defendant has been placed in jeopardy, its only effect is to end that particular prosecution, and does not absolve defendant from liability to further prosecution for the same offense. .

II

Appellant contends that the State failed to prove that the bricks specified in the indictment had been stolen rather than embezzled.

The law in Alabama is that, “. . . before one can be convicted for receiving or concealing stolen property, it must be shown by the required measure of proof that the property in question was stolen.” Coates v. State, 36 Ala.App. 371, 373, 56 So.2d 383, 384 (1952). However, the State is not limited to eyewitness testimony in proving larceny.

The State may prove the elements of the offense in question by circumstantial evidence. The jury then determines whether the offense was committed. In Tyler v. State, 17 Ala.App. 495, 496, 86 So. 93, 94 (1920) the court said:

“ . . . All of these necessary ingredients may be, and most of them usually are, shown by circumstantial evidence, from which the jury, using their everyday common sense and observation, must draw their conclusions.”

The same court stated in Wright v. State, 17 Ala.App. 621, 622, 88 So. 185, 186 (1920):

“ . . . We are not unmindful that the corpus delicti may be proved by circumstantial evidence, and if the evidence adduced affords an inference that a larceny has been committed the question of its sufficiency is for the jury. . . . ”

Evidence that the property listed in the indictment disappeared from the owner’s premises without the owner’s knowledge or consent has been held sufficient for the jury to infer that the property was stolen. Smitherman v. State, Ala.Cr.App., 340 So.2d 896, cert. denied 340 So.2d 900 (Ala.1976); Scott v. State, 55 Ala.App. 318, 314 So.2d 921 (1975); Tanner v. State, 37 Ala.App. 256, 66 So.2d 827 (1952) (cert. granted 259 Ala. 306, 66 So.2d 836 (1953) reversed on other grounds).

Here the fact that several thousand bricks had disappeared from Jenkins Brick Sales in Birmingham was undisputed; appellant himself testified to that. It is clear from the testimony of Speigner and Young that the bricks were taken without the knowledge and consent of the company and that the company considered the bricks to have been stolen rather than embezzled. Furthermore, both men testified that the appellant admitted having knowledge that the bricks were stolen. Thus, there was ample evidence from which the jury could infer that the bricks were stolen property at the time they came into appellant’s possession. Since there was ample evidence to support a finding by the jury that the property was indeed stolen, there must also be evidence that the appellant possessed the bricks, knowing them to have been stolen or having reason to believe they had been stolen. The fact that the appellant admitted to both Speigner and Young that he knew the bricks were stolen was sufficient to supply the latter element of the offense.

Ill

During closing arguments, counsel for appellant made the following objection which was overruled by the trial court:

“If the Court please, we object to the argument that maybe, perhaps he bought and received and concealed many more thousand than alleged in the indictment. It’s highly improper and an attempt to get the jury to act on speculation on something that there’s no evidence whatsoever.”

There is no evidence in the record that appellant ever had any contact with stolen bricks other than the bricks in question, nor could such an inference be drawn. Here, we must first determine whether the district attorney’s remarks were improper, and secondly whether the trial court reversibly erred in overruling the objection to the remarks.

In determining whether comments made by the prosecution during closing arguments are improper, the general rule is that counsel may not state as fact that which is prejudicial to the defendant and of which there is no competent evidence. Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968); Rogers v. State, 275 Ala. 588, 157 So.2d 13 (1963); Harris v. State, Ala.Cr.App., 333 So.2d 894 (1976).

“ . . . The statement must be made as of fact; the fact stated must be unsupported by any evidence, must be pertinent to the issue, or its natural tendency must be to influence the finding of the jury. . . .We would not embarrass free discussion, or regard the many hasty or exaggerated statements counsel often make in the heat of debate, which can not, and are not expected to become, factors in the formation of the verdict. Such statements are usually valued at their true worth, and have no tendency to mislead. It is only when the statement is of a substantive, outside fact — stated as fact — and which manifestly bears on a material inquiry before the jury, that the court can interfere, and arrest discussion. . ."

Cross v. State, 68 Ala. 476, 484 (1881).

The prosecutor’s statement clearly was not supported by the evidence or any inference from the evidence. The question here is whether the statement was made as fact, or whether it was only a hasty or exaggerated statement made in the heat of debate, taken by the jury as such, and having no tendency to mislead.

The prosecutor prefaced his statement by saying “maybe, perhaps,” thus taking the statement out of the realm of fact and stating only a speculation on his part. It is probable that the jury took this statement as no more than that and was not misled to believe appellant had in fact dealt with other stolen bricks. However, we do not condone that sort of remark in closing argument. It in no way aids the jury in determining the facts already in evidence, and it does seek to prejudice the jury against the defendant.

There is no uniform legal standard by which to review the prejudicial effect of improper remarks made by the prosecutor during trial. Each case must be reviewed on its own merits. Beckley v. State, Ala.Cr.App., 335 So.2d 244 (1976); Atchison v. State, Ala.Cr.App., 331 So.2d 804, cert. denied 331 So.2d 806 (Ala.1976). Much discretion is left to the trial court in determining whether the statement is prejudicial to the defendant. Garrett v. State, 268 Ala. 299, 105 So.2d 541 (1958); Bullard v. State, 40 Ala.App. 641, 120 So.2d 580 (1960); Tooson v. State, 56 Ala.App. 613, 324 So.2d 327, cert. denied 295 Ala. 426, 324 So.2d 333 (1975). From our review of the record, we do not find that the district attorney’s statement, although improper, was prejudicial to appellant or that the trial court’s action in overruling his objection was reversible. Scroggins v. State, Ala.Cr.App., 341 So.2d 967 (1976); Ballard v. State, 51 Ala.App. 393, 286 So.2d 68, cert. denied 291 Ala. 772, 286 So.2d 72 (1973).

IV

Appellant next alleges that the jury was permitted to separate and that the State failed to meet its burden of affirmatively showing that the jurors were not subjected to contacts which might have influenced their verdict. He also complains that one of the bailiffs was not shown to have taken an oath of office.

The jury was sequestered overnight in a local motel; the women stayed in one wing and the men in another. Apparently the jurors were in separate rooms; the bailiffs also were in separate rooms. At the hearing held on appellant’s motion for a new trial, he neither alleged nor attempted to show that any juror had left the motel, thus causing a separation, or that anyone contacted or attempted to contact, a juror. From all that appears in the record, the jury remained sequestered during the entire period of the trial.

Appellant relies on the following “well-settled rules:”

“ . . . First, during the trial of a felony the jury is to be kept together; ' Second, if the jury does separate, that fact is, prima facie, error to reversal; and Third, to overcome this presumption of error, the State has the onus of establishing that the separated juror or jurors were not subject to influence or contacts ‘ which might have swayed them in reaching the verdict.
“We use ‘might’ to reflect the test of vitiating influence laid down in Roan v. State, 225 Ala. 428, 143 So. 454(26), i. e. ‘not that it did influence a member of the jury to act without the evidence, but that it might have unlawfully influenced that juror and others * * *.’ See Oliver v. State, 232 Ala. 5, 166 So. 615.”
Lee v. State, 47 Ala.App. 548, 550, 258 So.2d 743, 745 (1972).

Mitchell v. State, 244 Ala. 503, 14 So.2d 132 (1943); Pitts v. State, 53 Ala.App. 373, 300 So.2d 416 (1974).

Appellant, in his brief, argues:

“ . . . The State made absolutely no effort, to show that the jurors even remained in the motel ovérnight, much less show that they did not go home, attend a horse show, appear at a rally of some subversive organization during the night, or confer with Cooper or Speigner. The Defendant did not have to show that these things happened, and that injury resulted to him therefrom, he has shown all this is necessary, that anything could have happened that night . . . .”

We think the appellant is mistaken on this point. In our opinion, the fact that jurors are housed in separate rooms in a hotel or motel overnight does not amount to an improper and illegal “separation” of the jury. The law must be workable. We know of no law requiring all jurors, male and female, to be housed overnight all together in one room. The record fails to reveal any “separation” of the jury in the legal sense of the word, and neither is there a hint of any outside influence on or contact with the jury. (See: § 12-16-10; Code of Ala. 1975).

Relying on Arnett v. State, 225 Ala. 8, 141 So. 699 (1932) appellant also says that it was reversible error for the trial court to permit the jury to leave the court escorted by an unsworn officer of the court. However, the court in Arnett did not hold that an officer in charge of a jury during sequestration must be a sworn bailiff or deputy sheriff. Rather, the court stated:

“ . . . while it is advisable that he shall be such, we do not think it is absolutely necessary that he be sworn.”

(225 Ala., at 9, 141 So., at 700).

Thus, no error occurred.

V

Six witnesses testified for appellant regarding his reputation in the community for good character. The trial court refused two written charges requested by appellant pertaining to the effect of proof of good character. The trial court also failed to cover that subject in its oral charge to the jury, to which appellant duly excepted.

As stated in Kilpatrick v. State, 37 Ala.App. 165, 168, 66 So.2d 441, 444, cert. denied 259 Ala. 212, 66 So.2d 445 (1953):

“It is fundamental that upon proof of good character an accused is entitled to have the jury instructed as to the effect of this type of evidence when taken in connection with all the other evidence. . ” (Citations omitted).

Where the trial judge omits from his oral charge, instruction as to the effect of good character evidence, the appellant is entitled, upon proper exception, to have the jury instructed on that subject, provided the appellant has supplied the court with a proper written charge. Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955). Justice Bloodworth in a concurring opinion in State v. Burns, 295 Ala. 423, 327 So.2d 927 (1976) cited Smith and stated:

“ . . . The Supreme Court of Alabama has never reversed a trial judge, to my knowledge, for failing to instruct. When a trial judge’s instructions are not as full as defendant’s counsel desires, the remedy is to request instructions explaining defendant’s theory of the case. . . ”

The appellant had presented the trial judge with two written requested charges concerning evidence of good character, both of which were refused. Charge No. 11 was as follows:

“I charge you, ladies and gentlemen of the jury, that good character, if proven, when taken in connection with the whole evidence may have the effect to generate such a doubt as to authorize an acquittal even when the jury would otherwise entertain no doubt.”

Charge No. 13 was:

“I charge you, ladies and gentlemen of the jury, that evidence of good character of the defendant can be sufficient to create a reasonable doubt as to the guilt of the defendant, and if such reasonable, doubt is established in the minds of a single juror, you must acquit the defendant.”

Refused Charge No. 11 is identical to a charge set out in Watts v. State, 177 Ala. 24, 59 So. 270 (1912). There, the Supreme Court of Alabama held that refusal to give' such a charge was error. The Court of Appeals followed Watts in a line of cases down through 1945 when it decided Beavers v. State, 32 Ala.App. 223, 23 So.2d 602. In that case, reversal resulted in the trial court’s refusal to give the following charge: “The court charges the jury that proof of good character, if proved to your reasonable satisfaction, may be sufficient to authorize you to acquit the defendant when taken in connection with all the other testimony.”

Although there was some difference in wording between the charge in Beavers and that set out in Watte, the Court of Appeals stated: “ . . . the charges mentioned are in substance the same.” The Supreme Court reversed the Court of Appeals in Beavers v. State, 247 Ala. 181, 23 So.2d 604 (1945) holding that such a charge was misleading and that the trial court was not in error in refusing to give it to the jury.

The Court of Appeals later reviewed a somewhat similar charge and held it to be good in Kilpatrick v. State, 37 Ala.App. 165, 66 So.2d 441 (1953). In that case the Court of Appeals went to great length to distinguish the refused charge there from the one in Beavers. However, the charge approved in Kilpatrick is predicated upon good character (in connection with all the evidence) generating a reasonable doubt. The instant charge does not refer to reasonable doubt. Therefore, we conclude that Beavers, supra, controls and that the trial court was not in error for refusing the appellant’s Requested Charge No. 11 in the instant case.

Charge No. 13 was properly re-fuged because, among other reasons, it did not require that evidence of good character be considered with the other evidence in the case. Such a charge would tend to mislead the jury to believe that good character evidence alone was sufficient to create reasonable doubt of guilt. The law is otherwise. Johnson v. State, 94 Ala. 35, 10 So. 667 (1891); Smith v. State, 44 Ala.App. 96, 203 So.2d 279 (1967); Henderson v. State, 15 Ala.App. 1, 72 So. 590 (1916); 6A, Alabama Digest, Criminal Law, &wkey;776(1)-(5).

The remaining grounds relied upon by the appellant for reversal have been considered in light of the record, briefs and argument of counsel, and we find that no reversible error has been shown. It is the opinion of this court that the rulings of the trial court, challenged by the appellant, did not, on the record and under the law, constitute harmful error.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Terry SIMPSON.
    SC 77-321.
    Supreme Court of Alabama.
    March 24, 1978.
   MADDOX, Justice.

WRIT DENIED.

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