author: TORBERT, Chief Justice. BEATTY, Justice EMBRY, Justice

text:
    In re Lawrence Glen HILL v. STATE of Alabama. Ex parte Lawrence Glen Hill.
    77-542.
    Supreme Court of Alabama.
    Jan. 12, 1979.

      James T. Baxter, III, of Berry, Abies, Tatum, Little & Baxter, Huntsville, for petitioner.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, respondent.
   TORBERT, Chief Justice.

Lawrence Glen Hill was convicted in Madison County Circuit Court of manslaughter in the first degree and sentenced to eighteen months imprisonment. Certio-rari was granted by this court to review the decision of the Court of Criminal Appeals affirming Hill’s conviction. We affirm.

A full statement of the facts is set forth in the opinion of the Court of Criminal Appeals. Briefly, the pertinent facts are these. On January 10, 1976, petitioner Hill' was driving home, with his wife from a housewarming party where he had consumed two or three beers and a scotch and water. Before reaching home, Hill’s vehicle collided with a vehicle driven by David Lee and occupied by Mark Pizitz, age fifteen. As a result of the collision, Pizitz sustained severe head injuries of which he died fourteen hours later.

Several witnesses at the scene testified that Hill appeared to be intoxicated and acted in an uncooperative manner when offered emergency treatment. About an hour after the accident at the Huntsville Hospital emergency room, Hill was placed under arrest for driving while intoxicated. He was requested “on more than ten occasions” to submit to either a ble d alcohol test or a breath test. He was informed that a refusal to submit to a test could result in the suspension of his driver’s license for a period of at least forty-five days.

Hill initially consented to a blood test on the condition that his personal physician perform the test. When an effort to secure his physician failed, Hill refused to submit to a test. He was then taken to the Huntsville city jail where he was again requested to submit to a breath test and again refused unless he first be allowed to consult with his attorney. About three hours after the accident Hill’s attorney arrived at city jail. Hill then agreed to submit to a blood alcohol test, but upon learning that tHre may have been people in the emergency room of the hospital who wished to do Hill harm, his attorney stated: “Just forget it. We don’t want a blood test.”

Prior to trial Hill filed a motion in limine to prevent admission of evidence of his refusal to take a blood test. The motion was denied, and at trial the police officers testified as to Hill’s refusal to take a blood or breath test and the prosecutor commented upon this refusal in closing arguments. Hill testified in his own behalf admitting that he had consumed alcoholic beverages on the night in question. The jury convicted Hill of first degree manslaughter. On appeal the Court of Criminal Appeals upheld the constitutionality of the Alabama Chemical Test for Intoxication Act and found no error in the admission of Hill’s refusal to submit to a blood test and the prosecutor’s comment thereon. Since the question of admission of a defendant’s refusal to submit to a chemical test for intoxication is one of first impression in this State, we granted certiorari.

Petitioner Hill contends that the admission of such evidence violates both state and federal guarantees against self-incrimination.

Initially, it must be determined if evidence of refusal to submit to a chemical test is relevant, i. e., whether it has sufficient probative value on the issue of intoxication to be admitted into evidence. Where a defendant has refused to submit to a chemical test, the courts considering the question have been split in deciding whether such a refusal has sufficient probative value to be admitted into evidence, though a greater number of cases have held in favor of admissibility. The better reasoned decisions hold that refusal to take a chemical test for intoxication may indicate the defendant’s fear of the results of the test and his consciousness of guilt, and if the defendant has some other explanation for the refusal, such explanation can be considered by the jury in determining whether the refusal is to be construed as consciousness of guilt. See, e. g., State v. Durrant, 55 Del. 510, 188 A.2d 526 (1963); People v. Conterno, 170 Cal.App.2d Supp. 817, 339 P.2d 968 (1959); State v. Bock, 80 Idaho 296, 328 P.2d 1065 (1958); State v. Benson, 230 Iowa 1168, 300 N.W. 275 (1941); Gardner v. Commonwealth, 195 Va. 945, 81 S.E.2d 614 (1954).

In City of Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40 (1968), a jury found defendant guilty of operating a motor vehicle while intoxicated. Evidence of defendant’s refusal to take an intoxication test was admitted at trial. In holding that the evidence was probative as to guilt or innocence and was properly admitted, the court stated:

Where a defendant is being accused of intoxication and is not intoxicated, the taking of a reasonably reliable chemical test for intoxication should establish that he is not intoxicated. On the other hand, if he is intoxicated, the taking of such a test will probably establish that he is intoxicated. Thus, if he is not intoxicated, such a test will provide evidence for him; but, if he is intoxicated, the test will provide evidence against him. Thus, it is reasonable to infer that a refusal to take such a test indicates the defendant’s fear of the results of the test and his consciousness of guilt, especially where he is asked his reason for such refusal and he gives no reason which would indicate that his refusal had no relation to such consciousness of guilt.
We conclude that, in the instant case, the defendant’s refusal to take a chemical test for intoxication would have probative value on the question as to whether he was intoxicated at the time. This conclusion is supported by the recent decision in State v. Cary (1967), 49 N.J. 343, 230 A.2d 384. See People v. Sudduth (1966), 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401, and annotation, 87 A.L.R.2d 370 at 384 et seq. See also People v. Ellis (1966), 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393.

239 N.E.2d at 41.

In People v. McGinnis, 123 Cal.App.2d Supp. 945, 267 P.2d 458 (1953), defendant was convicted for driving while intoxicated, and evidence was admitted at trial of his refusal to submit to an intoximeter test. The court held the evidence was admissible since the jury could conclude that it was circumstantial evidence of guilt. The court stated:

The jury, of course, might not have been persuaded that it was fear of the result that dictated defendant’s refusal, but have believed that he had some other reason for declining to cooperate. This possibility, however, is not a basis for saying that the evidence should not have been received.

267 P.2d at 459.

The court also stated:

We are not prepared to say that it would do “violence to reason” for the jury to conclude that the defendant refused to take the test because he did not want to run the risk that the test would furnish evidence of the condition in which he knew himself to be. Therefore, we should not, and do not, disapprove the trial court’s action in admitting the evidence.

Id. at 460.

Most of the decisions reaching a contrary result do so, in essence, on the premise that refusal may be dependent or conditioned upon reasons other than consciousness of guilt, and therefore, is not probative as to intoxication. See State v. Munroe, 22 Conn.Supp. 321, 171 A.2d 419 (1961) (exercise of right to remain silent); Stuart v. District of Columbia, 157 A.2d 294 (D.C.Mun.App.1960) (exercise of statutory right to refuse); State v. Paschal, 253 N.C. 795, 117 S.E.2d 749 (1961) (unwilling if defendant had to pay for test); City of Columbus v. Mullins, 162 Ohio St. 419, 123 N.E.2d 422 (1954) (unwilling unless personal physician conducted test); Engler v. State, 316 P.2d 625 (Okl.Crim.App.1957) (indication of defendant’s fear that test results are inaccurate). At least one case has held evidence of refusal inadmissible on the conclusion that such evidence simply is not probative. See Duckworth v. State, 309 P.2d 1103 (Okl.Crim.App.1957) (“The refusal to take the intoximeter test constitutes what might be termed a negative predicate which was productive of nothing more than sheer speculation, surmise, and innuendo”). We feel, however, that such evidence is probative and should be presented to the jury for their consideration rather than excluding it altogether. Any circumstances tending to show the refusal was conditioned upon factors other than consciousness of guilt may properly be considered by the jury in determining the weight to attach to the refusal. Therefore, the evidence of Hill’s refusal to submit to a chemical test for intoxication was relevant and properly admitted. Whether his refusal was due to the desire for consultation with his physician or attorney or to the fear of bodily harm, rather than consciousness of guilt, was best determined by the jury.

The fifth amendment of the United States Constitution provides the following guarantee against self-incrimination: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . U.S.Const. amend. V. The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), has interpreted this privilege as protecting “an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . .” Id. at 761, 86 S.Ct. at 1830. The Court noted that the distinction has emerged between compulsion of communications or testimony on the one hand, and compulsion which makes the accused the source of real or physical evidence on the other, with the latter being beyond the scope of the privilege. The Court stated: “[B]oth federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” Id. at 764, 86 S.Ct. at 1832.

The Alabama Constitution contains the following provision: “That in all criminal prosecutions, the accused shall not be compelled to give evidence against himself . . . .” Ala.Const. art. I, § 6. The phrase “to give evidence against himself” seems, at first glance, broader than the federal provision by encompassing real or physical evidence as well as testimonial communications, and originally, was so construed. See, e. g., Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960); Myhand v. State, 259 Ala. 415, 66 So.2d 544 (1953); Cooper v. State, 86 Ala. 610, 6 So. 110 (1889). However, this interpretation was abandoned in Hubbard v. State, 283 Ala. 183, 215 So.2d 261 (1968) which held that despite the difference in language the Alabama privilege against self-incrimination offers the same guarantee as that contained in the Federal Constitution. 283 Ala. at 194, 215 So.2d 261. Thus, the interpretation of the fifth amendment in Schmerber is likewise controlling as to the interpretation of art. I, section 6 of the Alabama Constitution. Other states with constitutional self-incrimination provisions identical to Alabama’s have adopted this interpretation. See, e. g., Application of Baggett, 531 P.2d 1011, 1021 (Okl.1974) (citing authorities); State v. Moore, 79 Wash.2d 51, 483 P.2d 630 (1971). Accord, Schmerber v. California, supra at 761 n.6, 86 S.Ct. 1826. Therefore, we conclude that the protection of both the Alabama and federal constitutional provisions extends only to evidence of a testimonial or communicative nature.

The majority of the states considering the question have held that admission of evidence of refusal to submit to a chemical test for intoxication does not violate the privilege against self-incrimination. Many of the courts reaching this result do so on the ground that an accused has no constitutional or statutory right to refuse a chemical test, and since the results of a test taken against his will are admissible, evidence of refusal should also be admissible. See, e. g., Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971); People v. Conterno, 170 Cal.App.Supp.2d 817, 339 P.2d 968 (1959); State v. Holt, 261 Iowa 1089, 156 N.W.2d 884 (1968); City of Westerville v. Cunningham, supra.

The Supreme Court in Schmerber held there is no constitutional right to refuse to submit to a blood test, and the results of such a test taken against an accused’s will are admissible at trial. States which have statutory provisions similar to the Alabama Chemical Test for Intoxication Act have likewise held there is no statutory right of refusal. See, e. g., Campbell v. Superior Court, supra; Bush v. Bright, 264 Cal.App.2d 788, 71 Cal.Rptr. 123 (1968); State v. Tabisz, 129 N.J.Super. 80, 322 A.2d 453 (1974). We agree with such an interpretation.

The Alabama Chemical Test for Intoxication Act adopts a statutory scheme whereby a person using the public highways impliedly consents to a chemical testing of his blood, breath, or urine when lawfully arrested for an offense involving the operation of a motor vehicle while under the influence of intoxicating liquor. Ala.Code § 32-5-192(a) (1975). The act contains certain statutory presumptions of intoxication according to the percent by weight of alcohol found in the person’s blood. Id. § 32-5-193. The act provides procedures for suspension of the person’s driver’s license for forty-five days in the event he refuses to submit to such a test, and the person is entitled to a warning to this effect. Id. § 32-5-192(a), (c). Moreover, the act expressly provides for admission of evidence of refusal to submit to a test:

If a person under arrest refuses to submit to a chemical test under the provisions of this division, evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor.

Ala.Code § 32-5-193(h) (1975).

An act of this type was first enacted in New York and arose out of dissatisfaction with alternative proposals for protecting against intoxicated drivers by either making chemical tests compulsory or requiring actual consent in the form of a written waiver made at the time of application for a driver’s license. Slough & Wilson, Alcohol and the Motorist: Practical and Legal Problems of Chemical Testing, 44 Minn.L.Rev. 673, 702 (1960). The New York Act was not intended to provide a “right” to refuse a chemical test even though, by the terms of the act, the police must acquiesce in a refusal and may not compel a person to submit to a test against his will.

Paradoxically, however, the New York law also provides that, although the driver has constructively consented to submit to a chemical test, he may refuse to take the test despite his imputed promise to consent. If he refuses to submit and therefore does not fulfill his implied agreement, he automatically forfeits the privilege of using the highways of the state. In effect, therefore, he loses his driver’s license or nonresident operating privilege. This curious juxtaposition of mandatory consent with a freedom of refusal provides further insurance against the unseemly struggles that are so likely to arise when police and citizen fail to appreciate the import of a common purpose.

Id. at 702.

Therefore, it seems that the act does not contemplate a per se “right” of refusal, rather this acquiescence in refusal is in the posture of avoiding potential • violent conflicts. The New York courts have interpreted the act as follows: “[T]his ‘right’ of refusal is not really a right in the sense of a fundamental personal privilege, but, rather, was merely an accommodation to avoid a distasteful struggle to forcibly take blood.” People v. Paddock, 29 N.Y.2d 504, 323 N.Y.S.2d 976, 977, 272 N.E.2d 486 (1971). In interpreting substantially similar acts, other courts have reached the same result. See Campbell v. Superior Court, supra (“This language does not give a person a ‘right’ to refuse to submit to the test only the physical power”); Bush v. Bright, supra (“The obvious reason for acquiescence in the refusal of such a test by a person who as a matter of law is ‘deemed to have given his consent’ is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates”). But see Application of Bagget, supra. Moreover, the acts do not seem to grant a right of refusal since they exact a penalty for refusal in the form of suspension of the accused’s driver’s license; and in some states, including Alabama, they extract the further penalty of expressly allowing evidence of refusal to be admitted at trial. Accordingly we do not interpret the Alabama Chemical Test for Intoxication Act as providing a “right” of refusal.

As can be expected, those states which recognize a statutory right to refuse do not allow evidence of such refusal. See, e. g., Duckworth v. State, supra; State v. Severson, 75 N.W.2d 316 (N.D.1956). But see State v. Bock, 80 Idaho 296, 328 P.2d 1065 (1968). However, many óf these statutes differ from the Alabama act in that they make submission to a test voluntary on the accused’s part and do not operate on a theory of implied consent. See, e. g., State v. Severson, supra; Stuart v. District of Columbia, supra.

The most compelling argument against admission of refusal and comment thereon is that the refusal, unlike the results of the test, is a communication, and as a communication, falls within the privilege against self-incrimination. See Comment, Constitutional Limitations on the Taking of Body Evidence, 78 Yale L.J. 1074,1082-85 (1969). This position was adhered to in People v. Rodriguez, 80 Misc.2d 1060, 364 N.Y.S.2d 786 (1975) where defendant was indicted for resisting arrest and driving while intoxicated. The court held it was improper to admit evidence of refusal to submit to a chemical test, stating:

[T]he withdrawal of blood and the use of its analysis did not involve evidence which was testimonial or communicative in origin. The same cannot be said, however, for a refusal to take the prescribed chemical tests. Refusal is, by definition, communication. As communication it falls within the protective cloak of the Fifth Amendment.
Our law has long recognized this principle. Indeed, it “is well settled that where a defendant is under arrest he is under no obligation to answer questions, and that his failure to do so creates no inference against him because of silence or his refusal to reply.” ... A statute which endeavors to compel such communication under penalty of having the refusal admitted in evidence, presumptively as evidence of consciousness of guilt . compels a defendant to bear witness against himself, in violation of his rights under the Fifth Amendment.

364 N.Y.S.2d at 790. Accord, State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (1973). This result is based in part upon the rationale that because an accused has the right to remain silent, admitting evidence of refusal would penalize him for doing that which he has an absolute right to do. However, the accused has no absolute right to refuse a blood test and admitting evidence of refusal does not penalize him for exercising his right. People v. Sudduth, 65 Cal.2d 543, 55 Cal.Rptr. 393, 421 P.2d 401 (1966); People v. Ellis, 65 Cal.2d 529, 55 Cal.Rptr. 385, 421 P.2d 393 (1966); State v. Holt, supra. “[A]dmission of . refusal to take a chemical test for intoxication and comment . . . thereon would not dilute any constitutional right of defendant.” City of Westerville v. Cunningham, 239 N.E.2d at 42.

The court in Rodriguez also states the statute “endeavors to compel such communication [refusal] under penalty of having the refusal admitted in evidence.” However, these acts do not compel refusal. In fact, just the opposite is contemplated. The purpose of conducting a chemical test is to obtain physical evidence and any evidence of refusal is merely incidental. As Justice Traynor stated in People v. Ellis, supra: “[It] can scarcely be contended that the police, who seek evidence from the test itself, will tend to coerce parties into refusing to take tests in order to produce this evidence [of refusal].” 421 P.2d at 397.

But more importantly, a refusal by itself is not a testimonial communication so as to bring it within the privilege against self-incrimination; rather, it is only conduct which gives rise to an inference of consciousness of guilt. Campbell v. Superior Court, supra; People v. Sudduth, supra; City of Westerville v. Cunningham, supra. Cf. State v. Cary, 49 N.J. 343, 230 A.2d 384 (1967) (refusal to speak for voice identification shows consciousness of guilt).

This position was stated most cogently in People v. Ellis, supra, where an accused refused to submit to a voice identification test, and evidence of the refusal was admitted at trial:

Nor was defendant’s refusal to “display his voice” itself a testimonial communication. It was circumstantial evidence of consciousness of guilt, and like similar evidence, such as escape from custody false alibi . . . flight suppression of evidence . and failure to respond to accusatory statements when not in police custody ., its admission does not violate the privilege. Moreover, as in the foregoing examples, the evidence did not result from a situation contrived to produce conduct indicative of guilt.

421 P.2d at 397.

Although inferences as to the accused’s consciousness of guilt may be drawn from his conduct, conduct is not a testimonial or communicative statement of guilt. “By acting like a guilty person, a man does not testify to his guilt but merely exposes himself to the drawing of inferences from circumstantial evidence of his state of mind.” 421 P.2d at 397-98. Cf. 2 Wigmore on Evidence § 267 (3d ed. 1940).

We note that the Supreme Court in Schmerber cautioned:

[IJneriminating evidence may be an unavoidable by-product of the compulsion to take the test, especially for an individual who fears the extraction or opposes it on religious grounds. If it wishes to compel persons to submit to such attempts to discover evidence, the State may have to forego the advantage of any testimonial products of administering the test — products which would fall within the privilege. Indeed, there may be circumstances in which the pain, danger, or severity of an operation would almost inevitably cause a person to prefer confession to undergoing the “search,” and nothing we say today should be taken as establishing the permissibility of compulsion in that case. But no such situation is presented in this case. See text at n. 13 infra.

384 U.S. at 765 n.9, 86 S.Ct. at 1833. Although it is unclear exactly what sort of testimonial products the Court had in mind, it seems the Court was concerned with testimonial statements in the nature of a confession. See State v. Andrews, supra (Peterson, J., dissenting). In any event, a refusal to submit to a chemical test is not a testimonial communication. The Court’s concern is merely to insure the full protection of the privilege against unintended coercive pressures which may arise due to the severity of a particular procedure or to intense individual reactions or beliefs, e. g., fear or religious beliefs. However, the likelihood of such coercive pressures is minimal, id., and no such coercive situation was present in the instant case.

Therefore, we hold that the refusal to submit to a chemical test for intoxication is not a compelled testimonial communication and the admission of evidence of refusal and comment thereon does not violate the accused’s privilege against self-incrimination. Accordingly, the decision of the Court of Criminal Appeals must be affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, JONES'and ALMON, JJ., concur.

BEATTY, J., concurs specially.

EMBRY, J., with whom FAULKNER and SHORES, JJ., join, dissents.

BEATTY, Justice

(concurring specially):

The majority of cases allowing evidence of a refusal to submit to a sobriety test do so on the basis of relevancy. That aspect of the law has been amply treated in the majority opinion. In appreciating that aspect it should be noted that a factual circumstance may be relevant upon an issue, and therefore admissible, even though that circumstance standing alone would be incapable of proving the issue. Ensley Holding Co. v. Kelley, 229 Ala. 650, 158 So. 896 (1935); Farmers’ Mutual Ins. Assoc. of Alabama v. Stewart, 192 Ala. 23, 68 So. 254 (1915). All that is required under the rule of relevancy is that the matter sought to be admitted sheds light on the main issue (intoxication here), i. e., establishes a logical and reasonable inference in support of that issue. George D. Witt Shoe Co. v. Mills, 224 Ala. 500, 140 So. 578 (1932). In that connection, circumstances of conduct and appearance have been held relevant on the issue of intoxication. Southern Natural Gas Co. v. Davidson, 225 Ala. 171, 142 So. 63 (1932). On that basis it was not error to admit the refusal here because it would reasonably tend to establish fear of an unfavorable result, and that fact logically is tied to the ultimate issue of intoxication, even though it may appear to be a weak connection. See 29 Am.Jur.2d, Evidence, § 252.

EMBRY, Justice

(dissenting):

I would agree with the Court of Criminal Appeals of Oklahoma, stated in Duckworth v. State, 309 P.2d 1103 (1957), that refusal to take the intoximeter test is not probative, and is productive of nothing more than speculation, surmise, and innuendo. Admission of such refusal would dangerously infringe upon one’s right not to be compelled to give evidence against himself; a right guaranteed to him under the Constitution of Alabama.

FAULKNER and SHORES, JJ., concur.

      . Ala.Code § 32-5-190 to -194 (1975).

      . The fifth amendment was held applicable to the states by way of the fourteenth amendment in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).

      . The Court expressly refused to consider the question presented in this case. 384 U.S. at 765 n.9, 86 S.Ct. 1826.

      . The person cannot be compelled to submit to a test against his will: “If a person under arrest refuses ... to submit to a chemical test . none shall be given . . . .” Ala. Code § 32-5-192(c) (1975).

      . N.Y.Laws 1953, ch. 854, N.Y.Vehicle & Traffic Law, & 71-a.

      . Since the time of the decision in Severson, North Dakota has revised its act to adopt a theory of implied consent similar to the Alabama act. However, our research reveals no interpretation of this revision as yet. See N.D. Cent.Code § 39-20-01 to -14 (1960).

      . The New Jersey Act was a typical example; however, it was revised in i966 to eliminate the necessity for express consent and to substitute in its place the theory of implied consent. The New Jersey courts have said the revision eliminates the right of refusal and the resulting inadmissibility: “It follows that since the necessity for express consent to submit to the test has been eliminated and there is no longer a right to refuse to take the rest, the failure of one accused to submit to the test is properly admitted into evidence.” State v. Tabisz, 322 A.2d at 454.

      . This rationale is apparently based upon the decision in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) where it was held that comment on a defendant’s refusal to testify violates his right to remain silent.

      . The Court in Schmerber recognized that a blood test is ordinarily not such a threatening procedure: “Such tests [blood tests] are a common-place in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.” 384 U.S. at 771, 86 S.Ct. at 1836.
      Moreover, the Court implied that an alternative method of testing may eliminate any such coercive pressures: “Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the ‘breathalyzer’ test . . Id.


source: Caselaw Access Project

author: LEIGH M. CLARK, Retired Circuit Judge.

license: Public Domain

text:
    Douglas Lloyd HOLLINGSWORTH v. STATE.
    2 Div. 224.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 1978.
    Rehearing Denied Nov. 21, 1978.

      William T. Fade of Morris & Fade, Selma, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant-defendant was indicted in one count for an assault upon’ Captain William H. Duke, with the intent to murder him, and in another count for unlawfully threatening, harming, or causing injury to a law officer actively engaged in the performance of his duty.

In response to a motion to compel an election, the State struck the second count and the case proceeded through the trial to a verdict under Count I, the count charging an assault with intent to murder.

The jury found defendant guilty of an assault and fixed his punishment at a fine of five hundred dollars. The court imposed additional punishment of a six-month sentence to hard labor for Dallas County.

At the conclusion of the evidence for the State, the defendant moved to exclude the evidence. The motion as overruled. Defendant rested without presenting any testimony. He requested in writing the general affirmative charge in his favor, which the trial court refused.

The undisputed evidence shows that at about 2:00 A.M. on March 26, 1977, there were six, seven, eight, nine or ten pistol shots fired from an automobile at, into or in the direction of the residence of Captain William H. Duke, a deputy sheriff with an assignment as Chief of Narcotics, of Dallas County. An officer living in the same neighborhood testified that he heard the shots and saw the automobile. He notified law enforcement personnel who came to the scene but did not at that time apprehend anyone or find any evidence of injury or damage to any person or property.

Captain Duke was at home the night of the shooting, but he was not aware of the shooting until well after sunrise, when his son, Mr. Paul Duke of the Police Department of Selma, came to the residence soon after he had marked off duty about 7:00 A.M. The son noticed a bullet hole in the glass of the front door. Soon thereafter, Deputy Sheriff Walker arrived at the residence. Upon inspection, it was revealed that two bullets had entered the house; one bullet went through the front door, through the living room and dining room, where no partition was between them, and went through the sliding glass of the back door. The bullet itself was not recovered. The other bullet went through a pane of a front window, through the wall between the living room and kitchen, and into a cabinet, in which it was located and from which it was removed.

At the house at the time it was shot into, were Captain Duke and Mrs. Duke and their daughter-in-law, Mrs. Paul Duke, and the six-week-old child of Mr. and Mrs. Paul Duke. Officer Paul Duke was not at home but was on duty at the Police Department. Captain and Mrs. Duke were sleeping in a rear bedroom. Mrs. Paul Duke and her child were in a front bedroom. The third bedroom, the one nearest the front door, was unoccupied. None of the occupants heard the shots. They were all unaware of what occurred until Mr. Paul Duke returned the next morning from his duties at the police station.

The evidence connecting defendant with the criminal conduct involved consisted exclusively of some incriminating admission by him and the testimony of Ray Parnell.

The statement of defendant, which was reduced to writing and signed by defendant, was as follows:

“On March 26 me and Racy Parnell at approximately 2:00 A.M. went by Billy Duke’s house. Racy Parnell shot into his house five or six times with a .22 pistol. I drove the car, but I did not know that Racy Parnell was going to shoot into the house. I did not know that Racy had a pistol on him. This is a true statement to the best of my knowledge.”

The quoted statement was signed by Douglas L. Hollingsworth and witnessed by W. H. Duke. Below the statement just quoted was the following:

“A few days later I got scared about having a pistol so I went to the new bypass bridge and threw the .22 pistol into the Alabama River.”

The additional statement was also signed by defendant and witnessed by W. H. Duke.

Ray Parnell testified that he had known defendant about seven years, that on March 26, 1977, they were “room mates or sharing a place,” that on the early morning of March 26, they were traveling in defendant’s Volkswagen, having left the place where they lived between 8:00 and 11:00 P.M. They were “smoking pot and drinking.” He knew where Captain Duke lived. There was a gun, a pistol, in the glove compartment of the automobile, which “Doug took care of.” They were “kind of looking for a party or something like that,” during their travel all that evening. When they arrived in the neighborhood of where Captain Duke lived, Parnell took the gun out of the glove compartment. He was asked what he said about that time. His testimony continued as follows:

“A Something about shooting either his car up or his house. I’m not sure which one. Mr. Duke’s house.
“Q At that time something to the effect of shooting either the car and the house of Mr. Duke?
“A No. No. The car or the house.
“Q The car or the house?
“A Yes, sir.”

Upon being interrogated as to any response by defendant, the witness answered, “He said maybe ‘yeah.’ ” Testimony of the witness continued as follows:

“Q All right, sir. I’ll ask you one more time. You said he said maybe, yeah; is that correct?
“A Yes.
“Q Do you recall anything else that was said on that occasion?
“A No, sir.
“Q All right, sir. Then what happened?
“A Then we were getting close to Mr. Duke’s house and it happened. That’s when we committed the crime.
“Q Okay. I understand that. Now, what did take place though? You said you were getting closer to Duke’s house as those words were exchanged. Then what happened?
“A Well, a gun was already out, and we slowed down when we got to Mr. Duke’s house to make this turn here; and I rolled down the window and I emptied the gun.
“Q And how many times did you shoot?
“A Nine.
“Q Then what happened?
“A Then we took a right at the corner and went on and then took another right, the next right.
“Q All right, sir. Then where did you go?
“A I think we went straight back — ”

According to the undisputed evidence, two or three nights after the alleged crime in this case, Parnell again shot into the house of Captain Duke. He was apprehended, charged with assault with intent to murder Captain Duke on the first occasion and with assault with intent to murder Captain Duke on the second occasion, pleaded guilty to the charges and was given a sentence of five years in each case, with the sentences to run concurrently.

During the cross-examination of Ray Parnell and while defendant’s attorney was interrogating him on the question of defendant’s response to statements by Parnell as to shooting “up” Captain Duke’s automobile or into his house, some reference was made to other statements made by the witness. The trial court ruled that defendant had opened the door for the admission, over defendant’s objection, of a recorded statement made by the witness to counsel for the State and Deputy Sheriff Walker, a part of which was as follows:

“MR. GREEN: When was this car thing discussed?
“MR. PARNELL: Just right before we went by his house.
“MR. GREEN: Y’all were a block or two away or—
“MR. PARNELL: Yes.
“MR. WALKER: At the time you got the gun out?
“MR. PARNELL: That was the original idea.
“MR. WALKER: At the time you got the gun out?
“MR. PARNELL: Right.
“MR. WALKER: That’s when that conversation began?
“MR. GREEN: I understand. So, what you are saying — you were saying something about y’all were going to shoot up his car, I got the gun let’s go shoot up his car?
“MR. PARNELL: Yes, sir.
“MR. GREEN: Y’all were saying something about shooting up his car?
“MR. PARNELL: Yes, sir.
“MR. GREEN: Do you remember that there was some agreement or some communication by him that that was all right or that was the thing to do or something along those lines?
“MR. PARNELL: Yes, sir. There was, but like I said again I don’t know if he thought I was kidding—
“MR. GREEN: Just going along with you, whether he was agreeing with you don’t—
“MR. PARNELL: Yes, sir.
“MR. GREEN: But you do recall some statement on his part of yeah man that’s good or that’s cool or something like that? Or am I wrong, what do you recall?
“MR. PARNELL: I don’t recall — definitely I don’t recall. But I feel sure that he did make a reply of some sort of agreement whether kidding or sincere.
“MR. WALKER: From that point on, then, what happened?
“MR. GREEN: And — wait—this was about the car not about the house?
“MR. PARNELL: Okay. Yeah.
“MR. GREEN: That’s what you’re talking about?
“MR. PARNELL: Yes.
“MR. GREEN: And then what happened?
“MR. PARNELL: And then I think we must have been just a block or half a block from his house and one of us got the idea probably me. I’m sure, because I had the gun, to just go ahead and shoot up his house.
“MR. GREEN: Was anything said about that?
“MR. PARNELL: Sure — I’m sure there was something said. I’m sure that I said because, you know, it was my idea.
“MR. GREEN: Do you recall any statements from him?
“MR. PARNELL: Only again in the same route he said, I’m not sure what he said, sure, cool, or—
“MR. WALKER: Was there any conversation after you shot up the house as to why you didn’t shoot the car; you changed your mind to shoot the house between the two of you? Did he make any statement as to why you chose to shoot the house rather than the car? Make any comment?
“MR. PARNELL: I don’t think — I don’t think he said anything. I think there was something said but I’m not sure if it was him or me but I think there was something said along those lines. And other than that there was mostly silence right after it was done from the both of us.”

Also admitted in evidence, over the objection of defendant, was an undated written statement signed by Parnell and witnessed by Captain Duke, as follows:

“On March 26th at approx. 2 o’clock A M me and Doug Hollingworth was riding around in Doug Blue Volwagun when we decided to go by Billy Duke House and shoot in to it. Doug Hollingworth drove the car and I shot into Billy Duke house 5 or 6 times, also on the morning of the 28th I went back to Billy Duke house shooting 5 or 6 more times, I was in Rusty [surname not conclusively legible] Volwagon car this time. The gun I used was a 22 pistol belong to Doug Holling-worth.
“This is a true statement to the best of my knowledge.”

Captain Duke testified that prior to the date of the alleged crime he had known defendant and Parnell, had talked with both of them, and “had occasion to observe” them prior to the alleged crime.

A large number of rulings of the trial court are called in question by appellant as reasons for a reversal. We consider first an unquestionably serious question as to the sufficiency of the evidence to support a verdict finding defendant guilty of an assault.

“An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.” Tarver v. State, 43 Ala. 354 (1869)

This statement in Tarver has been consistently quoted, almost, if not entirely, word-for-word, by the courts of Alabama for more than a hundred years. Burton v. State, 8 Ala.App. 295, 62 So. 394 (1913); Taylor v. State, 27 Ala.App. 538, 175 So. 698 (1937); Flournoy v. State, 270 Ala. 448, 120 So.2d 124, on remand 40 Ala.App. 629, 120 So.2d 121 (1960); Bryant v. State, 49 Ala.App. 359, 272 So.2d 286, cert. denied, 289 Ala. 740, 272 So.2d 297, cert. denied, 412 U.S. 922, 93 S.Ct. 2744, 37 L.Ed.2d 149 (1972). All of the cases cited were criminal cases. In Chapman v. State, 78 Ala. 463 (1885), a distinction is drawn between a civil assault and a criminal assault, pointing out that criminal assault requires actual ability to “carry such intention into effect,” while to sustain a civil assault, or an action for damages for a civil assault, the apparent ability to “carry such intention into effect” is sufficient. There is no occasion, however, for us to go further into a discussion of the mentioned distinction or any other distinctions between a criminal assault and a civil assault, as our decision herein does not turn upon any distinctions between the two.

The right violated by an assault is in no sense a property right. It is strictly a right to the inviolability, or security from apprehension of the violation, of the integrity of the corpus or body of a human being. As to this, there is little, if any, disagreement among the authorities. It is significantly denoted by the term “corporal hurt” as found in the definition in Tarver, supra, and the perpetuation of that definition by subsequent authorities.

The intent to injure the person of another or to invade his right of freedom from apprehension of immediate injury to his person, is implicit in the words “attempt or offer” as found in the accepted definition. In addition, an intention to violate the right of the other as to his person has been expressly held to be essential to the commission of an assault.

“In Blackwell’s Case, 9 Ala. 79, the Supreme Court, through Ormond, J., said, in defining an assault for which a criminal prosecution will lie: ‘An assault is defined by Blackstone to be an attempt or offer to beat another without beating him; and it seems entirely clear that, when there is no attempt to inflict personal violence on another, there can be no assault.’
“ ‘An assault is an attempt or offer, with force and violence, to do a corporal hurt to another.’ Bacon’s Abridgment, Tit. Ass. & Bat., p. 371. ‘Every battery includes an assault.’ Bacon’s Abridgment, supra.
“ ‘The intent to harm is the essence of an assault.’ 3 Cyc. 1067.” McGee v. State, 4 Ala.App. 54, 58 So. 1008, 1009 (1912)

In other parts of the opinion in McGee, supra, the court makes it clear that at times there can be a battery, or the crime of an assault and battery, without any actual intent to cause bodily injury. The illustrations thereof, found in McGee, are not applicable here, as there was no battery, no touching of the person of Captain Duke, or anyone else.

In Hulen v. State, 25 Ala.App. 401, 147 So. 450, 451 (1933), it was held:

“There are conditions where the drawing and presenting of a pistol may constitute an assault. Lawson v. State, [30 Ala. 14] supra; State v. Church, 63 N.C. 15. But where, as here, the evidence rebuts any presumption of an intended battery, there should be no conviction for an assault. The motion for a new trial should have been granted.”

Irrespective of what all may have been in the mind of Parnell as he shot at and into the residence of Captain Duke, which may be or may have been otherwise shown, there is nothing in the substantive evidence in this case, including all substantive circumstantial evidence, that justifies a finding that there was any force or violence directed at the person of Captain Duke or that there was any intent to injure Captain Duke personally, or anyone else in the house as to whom there may have been a transferable intent. The circumstances show an intent to shoot at the house and into the house, and at one time, to “shoot up” the automobile of Captain Duke, but there is no evidence whatever of any knowledge upon the part of either Parnell or appellant that the house was being occupied at the time, and, even if there were, there is no evidence that any occupant in the house was at a place therein where he or she could have been injured or caused to be apprehensive of immediate personal injury by reason of a pistol’s being fired at or into the house.

The circumstances as to the second shooting into the house by Parnell could well shed more light on all that Parnell may have been intending to do on both occasions, but the circumstances of the second shooting were not admitted in evidence in this case and do not constitute any part of the case against appellant, who was not present when the second incident occurred and had no connection with it.

In saying that the substantive evidence in this case fails to show an assault, and that the out-of-court statements of Parnell do not constitute substantive evidence, we do not mean to imply that if such statements were properly considered as substantive evidence, there is sufficient evidence to support the verdict. Even then the evidence, if any, tending to show an assault lacks substantiality, which is necessary to the presentation of a jury issue. The scintilla rule does not apply in a criminal case. Ex parte Grimmett, 228 Ala. 1, 152 So. 263 (1933); Smith v. State, Ala.Cr.App., 337 So.2d 53 (1976).

We think what we have stated is sufficient to show the necessity for a reversal of the judgment of the trial court. We also think that there is an additional reason for such a conclusion, which is to be found in the difference between the status of Parnell and the status of appellant, which we will now discuss.

As to the felony charge, assault with intent to murder, the State relied upon Code of Alabama, Recomp.1958, Tit. 14, § 14, making persons concerned in the commission of a felony indictable, triable and punishable as principals if they aid or abet in the commission of the felony. As to the lesser included offense, assault, a misdemeanor, one who is an aider or abettor was triable and punishable as a principal at common law. Boyd v. State, 3 Ala.App. 178, 57 So. 1019 (1912); Gratton v. State, 4 Ala.App. 172, 59 So. 183 (1912).

The language of some of the cases emphasizing the requirements necessary or sufficient to make one accountable as a principal, who aids or abets another in the commission of a felony, has apparently been taken by some to mean that if one meets all of the requirements of an aider or abettor in the commission of a crime contemplated by the two or more conspirators, he becomes the aider or abettor of the other conspirator or conspirators in the commission of every crime committed by him or them in the course of overt action pursuant to the conspiracy. Such misconception should no longer prevail in view of the illuminating treatment of the subject by Judge Bookout in Howell v. State, Ala.Cr.App., 339 So.2d 138, 139 (1976), wherein the principle is accurately stated as follows:

“Every person engaging in a joint enterprise is not automatically and equally guilty of a crime committed independently by another participant in the venture. A conspiracy necessary to fix guilt on all participants must be one in which all have a meeting of the minds (though only for an instant) to commit the crime charged. A different crime independently committed and not a foreseeable consequence of the conspiracy can hardly be charged to one who neither participated in its commission, nor aided therein, although all originally started out on some other illegal venture.”

The opinion in Howell also serves well to correct any misunderstanding as to what was held in Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950); Morris v. State, 146 Ala. 66, 41 So. 274 (1906) and Tanner v. State, 92 Ala. 1, 9 So. 613 (1890). The cases hold that an accomplice is criminally responsible for the “proximate, natural, and logical consequences” of the criminal activity of the conspirators, but Howell cautions against an extension of what was said in the cited cases beyond the “particular facts” thereof. In each of the cases cited, the crime involved was homicide. That the principle set forth of criminal responsibility of an aider or abettor for the “proximate, natural, and logical consequences” of their common criminal undertaking would have applied under the circumstances of the instant case if Captain Duke, or anyone else in his dwelling, or thereabout, were in any way personally injured, by a bullet from the pistol fired by Parnell, constitutes no reason for holding appellant criminally responsible for any intentional crime of Parnell directed at the person of Captain Duke, in the absence of any knowledge by appellant, or reasonable notice to him, that Parnell intended to injure Captain Duke.

Howell aptly quotes from Tanner as follows:

. . The accomplice, as we have seen, is criminally responsible for acts which are the direct, proximate, natural result of the conspiracy formed. He is not responsible for any special act, not within the scope of the common purpose, but grows out of the individual malice of the perpetrator. — 1 Wharton Crim.Law, § 397.”

The uncontroverted evidence justifies a conclusion that appellant was guilty of criminal conduct, extraordinarily reprehensible, which deserves severe punishment, but there is no substantial evidence that he was guilty of the crime of assault.

The crime of which appellant was guilty, according to the evidence relied upon by the State, but with which he was not charged, is as follows:

“Any person who shoots a pistol or other firearm or slingshot, or who throws a stone or other missile at, into, in, through, or against a dwelling house, a schoolhouse, church building, factory, storehouse, courthouse, or house or building used for manufacturing purposes or any house or building used for the assembling of people for business or pleasure, shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined not more' than one thousand dollars, and may be sentenced to hard labor for the county for not longer than twelve months.” Code of Alabama, Recomp.1958, Tit. 14, § 171.

Whether the verdict and judgment be considered as the conviction of a crime charged in the indictment, of which defendant was not guilty, or the conviction of a crime of which he was guilty, but which was not charged in the indictment, the judgment must be reversed and the cause remanded.

A determination of the other numerous questions presented on this appeal would serve no useful purpose.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby reversed and the cause remanded.

REVERSED AND REMANDED.

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

TYSON and DeCARLO, JJ., concur in result.

      . According to the majority rule generally and the established rule in Alabama, the self-contradictory statements of Parnell, not made on the trial but admitted in evidence in this case, do not constitute substantive evidence. Cf. Randolph v. State, Ala.Cr.App., 348 So.2d 858, cert. denied 348 So.2d 867 (1977), wherein authorities are collected, but wherein an exception is declared as to prior self-contradictory statements of a witness contained in his testimony on a previous trial of the case, including a preliminary trial, in which defendant had an adequate opportunity to cross-examine the witness.


author: ALMON, Justice.

text:
    In re Douglas Lloyd HOLLINGSWORTH v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-118.
    Supreme Court of Alabama.
    Jan. 19, 1979.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State, petitioner.

      No brief filed for respondent.
   ALMON, Justice.

The petition of the State of Alabama for a writ of certiorari to the Court of Criminal Appeals is denied. In denying the writ we do not wish to be understood as approving all of the language contained in the opinion of that court.

Writ Denied.

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


text:
    Johnny L. BROWN v. STATE.
    2 Div. 232.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    Rehearing Denied. Jan. 16, 1979.
    Charles H. Morris, III, Selma, of Morris & Fade, Selma, for appellant.
    William J. Baxley, Atty. Gen., J. Bernard Brannan, Jr., Asst. Atty. Gen., and Paul E. Johnson, Staff Atty., Montgomery, for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The indictment charged murder in the first degree. The conviction was for murder in the first degree with a sentence for life in the penitentiary.

State’s evidence tended to prove that the appellant shot and killed Willie Grimes and fully sustains the jury verdict of murder in the first degree. Appellant’s evidence tended to prove that when he shot the deceased he was shooting at Shirley Grimes Smith and that the deceased jumped between them.

Appellant in his brief contends that the trial court erred to his prejudice on two grounds: first, by overruling his objection to a question propounded to him on cross-examination, and refusing to instruct the jury not to consider the question; second, by permitting the introduction into evidence over his objections certain photographs of Shirley Grimes Smith.

On cross-examination of the appellant, after he had admitted that he had a prior conviction for an assault with intent to murder, the following then occurred:

“Q Of course, Mr. Norris is just mistaken about what he saw, is that right, because what you saw or what you did that’s exactly what happened?
A Well, I know what happened. I was there. I’m not going to lie because I done it. I’m just telling you the exact way it happened. That’s all I can do. I know how it happened.
Q You know how it happened because this is not the first time you have tried to kill anybody is it?
MR. FAILE: We’re going to object to that. We object to that and ask that it be excluded and ask that the District Attorney be instructed not to ask questions of that nature because it is totally not admissible.
THE COURT: Overruled.”

Tho question was not answered by the appellant. At the beginning of the trial the judge stated to the jury the following:

“I think it is important that I caution you from the beginning now that nothing that I say or do at any time during the trial of the case is in any way to be considered by you as evidence in this case. The same thing holds true as to things the lawyers may say. The only evidence that you should consider in the trial of the case is the evidence that comes to you under oath from this witness stand.”

Again during the trial the following statement was made by the court to the jury:

“THE COURT: All right. Ladies and gentlemen, as I told you from the beginning of this case and I’ll just say it again for emphasis that no statement that the lawyers make during the course of this trial is in any way evidence or to be considered by you as evidence. Just keep it in mind that you should only consider the evidence that comes from the witness stand and anything else you should not consider.”

During the court’s oral charge to the jury the following occurred:

“An attorney’s statements and arguments are not evidence, and you should disregard any remark, statement, or argument which is not supported by the evidence or by the law as given to you by the Court.”

There being no answer to the question, the trial court having stated to the jury that remarks and statements of counsel are not evidence and to disregard them, we hold there was no prejudice to the appellant by the court in overruling his objection to the question. Kemp v. State, 278 Ala. 637, 179 So.2d 762; Strickland v. State, 269 Ala. 573, 114 So.2d 407; Gosa v. State, 273 Ala. 346, 139 So.2d 321.

State’s exhibits 3, 19, and 20 are photographs of Shirley Grimes Smith who was also shot at the scene of the crime and on the same occasion and were made in a short time after the shooting. The photographs are not gruesome, and there is nothing in them to inflame the mind of the jury against the appellant. They are of the scene of the crime made within a short time after the shooting and tend to support other evidence given by State’s witnesses. We hold that the trial court did not err in overruling appellant’s objections to the introduction into evidence of State’s exhibits 3, 19, and 20. Smarr v. State, 260 Ala. 30, 68 So.2d 6; Grissett v. State, 241 Ala. 343, 2 So.2d 399.

No other rulings of the trial court are argued in appellant’s brief.

As provided by § 12-22-240, Code of Ala. 1975, we have searched the record for any errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Oliver Paul SUMMERS v. STATE.
    8 Div. 124.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    Rehearing Denied Dec. 19, 1978.

      Fred Blánton, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Ed Carnes, Asst. Atty. Gen., for the State, ap-pellee.
   BOWEN, Judge.

The appellant was convicted of robbery and sentenced to fifteen years’ imprisonment. This Court affirmed his conviction on appeal and the Alabama Supreme Court denied certiorari without opinion. Summers v. State, 348 So.2d 1126 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1976). A petition for writ of certiorari to the Alabama Court of Criminal Appeals was denied without opinion by the United States Supreme Court on February 21, 1978. 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773. Petition for rehearing was also denied. 435 U.S. 981, 98 S.Ct. 1633, 56 L.Ed.2d 75.

Having exhausted his procedures for direct appellate review, the appellant filed a petition for writ of error coram nobis before the trial court which issued the judgment of conviction. The petition, as amended, contains six grounds for setting aside the appellant’s conviction and ordering a new trial: (A) The use of the perjured testimony of Elaine Campbell McClellan to secure the conviction; (B) the denial of a request for a continuance which denied the appellant the necessary time to complete his interrogatories to witnesses; and (C) also denied him adequate time to prepare his defense; (D) the prejudicial remarks made by the prosecutor in closing argument at trial; (E) the “calculated pattern of prose-cutorial misconduct designed to engender bias and prejudice against the petitioner and to impede his right to defend himself” exemplified by the participation of the State in those matters contained in grounds (B), (C), and (D); and (F) ineffective assistance of counsel.

I

The thrust of the appellant’s argument is that the “totality of all the proceedings” reveals that his trial was a “travesty of justice” and a denial of equal protection of the law.

While the writ of error coram nobis is available to a prisoner who claims “that his incarceration is due to failure to observe the fundamental fairness essential to every concept of justice, even after a sentence has been duly affirmed by the highest court of the state”, Johnson v. Williams, 244 Ala. 391, 394, 13 So.2d 683, 686 (1943), our Supreme Court has “failed to adopt any general rule that the remedy of coram nobis automatically assimilates all rights imposed on state trials by the Fourteenth Amendment”. Aaron v. State, 43 Ala.App. 450, 454, 192 So.2d 456, 460 (1966).

The function or office of the writ lies to correct a judgment rendered by the court upon errors of fact not appearing on the record and so important that if the Court had known of them at the trial it would not have rendered the judgment. Smith v. State, 245 Ala. 161, 16 So.2d 315 (1944); Brown v. State, 350 Ala. 444, 35 So.2d 518 (1948); Stephens v. State, 36 Ala.App. 57, 52 So.2d 169 (1951). The writ is concerned only with errors of fact. Ex parte Powell, 39 Ala.App. 423, 426, 102 So.2d 923 (1952). The error of fact must not be apparent on the record, Ex parte Banks, 42 Ala.App. 669, 672, 178 So.2d 98 (1965), and must have been unknown to the Court and to the defendant at the time of trial. Smith v. Hixon, 149 F.Supp. 283 (S.D.Ala.1957); Edwards v. State, 274 Ala. 569, 150 So.2d 710 (1963); Groce v. State, 48 Ala.App. 709, 267 So.2d 499 (1972). The error must be one which, if presented to the trial court, would have prevented conviction, rather than merely causing a different result. Ex parte Fuller, 40 Ala.App. 197, 198, 116 So.2d 395 (1959); Stephens, 36 Ala.App. at 58. In effect, the writ of error coram nobis serves as a motion for new trial on the ground of newly discovered evidence. Tillis v. State, 349 So.2d 95 (Ala.Cr.App.), cert. denied, 349 So.2d 100 (Ala.1977).

The writ of error coram nobis is not a substitute for other remedies such as an appeal, writ of error, certiorari, or motion for new trial. Redus v. Williams, 244 Ala. 459, 461, 13 So.2d 561 (1943); Groce, supra; Stephens, supra. The writ is not “the wild ass of the law which the courts cannot control.” Anderson v. Buchanan, 292 Ky. 810, 823, 168 S.W.2d 48, 55 (1943). Our courts have stated that the writ does not serve as a substitute for an appeal, Butler v. State, 279 Ala. 311, 184 So.2d 823 (1966), Thomas v. State, 280 Ala. 109, 190 So.2d 542 (1966), and is not “an omnium gatherum or catchall of accordion like remedies to solve (or salve) all the supposed wrongs of those once duly convicted”, Arledge v. State, 57 Ala.App. 553, 555, 329 So.2d 613, 615, cert. denied, 295 Ala. 390, 329 So.2d 616 (1976), or an “omnium gathe-rum to right all post conviction discoveries or claims of error”. Ex parte Banks, 42 Ala.App. at 672, 178 So.2d at 101. The writ does not serve the purpose of a “probable cause hearing”. Seibert v. State, 343 So.2d 788 (Ala.1977), and is not available to retry indictments. Bush v. State, 50 Ala.App. 293, 278 So.2d 741 (1973); Creel v. State, 53 Ala.App. 226, 298 So.2d 647 (1974).

“Coram nobis is not a plenipotentiary mission to retry indictments: it is a carefully guarded engine to root out egregious fraud or or collusion leading to a judgment. Willis v. State, 42 Ala.App. 85, 152 So.2d 883; Duncan v. State, 42 Ala.App. 111, 154 So.2d 302.”
Horsley v. State, 42 Ala.App. 567, 569, 172 So.2d 56, 59 (1965).

Coram nobis does not lie when other remedies are available. A petition for the writ will be dismissed if filed within the time for filing notice of appeal, or if the petitioner can bring a writ of error, motion for new trial, or writ of certiorari. Vincent v. State, 284 Ala. 242, 244 So.2d 601 (1969); Ex parte Gammon, 255 Ala. 502, 52 So.2d 369 (1951); Daniels v. State, 48 Ala.App. 750, 267 So.2d 540 (1972). A petition for writ of error coram nobis will not be granted and is premature if filed while an appeal is pending. Davis v. State, 257 Ala. 520, 60 So.2d 64 (1952); Brown v. State, 250 Ala. 444, 35 So.2d 518 (1948); Lovell v. State, 344 So.2d 826 (Ala.Cr.App.1977).

II

The State’s motion to strike grounds (B), (C), (D), and portions of (E) was properly granted.

Grounds (B) and (C) concerning the trial court’s refusal to grant a continuance were properly stricken because the issues were fully considered by this Court on direct appeal from the judgment of conviction. Summers, 348 So.2d 1135. Coram nobis does not serve the function of an appeal or a delayed appeal. Brown, supra; Mayola v. State, 344 So.2d 818, 822 (Ala.Cr.App.), cert. denied, 344 So.2d 822 (Ala.1977). Petitions for writs of error coram nobis are properly denied where the matters attempted to be raised were fully reviewed on appeal from the judgment of conviction. Ex parte Rudolph, 276 Ala. 392, 393, 162 So.2d 486, cert. denied, 377 U.S. 919, 84 S.Ct. 1185, 12 L.Ed.2d 188 (1964); Impson v. State, 339 So.2d 1098 (Ala.Cr.App.1976). Moreover, the refusal of a motion for a continuance cannot be made the basis for a writ of error coram nobis as the remedy is by a motion for new trial on that ground, the denial of which is reviewable by appeal. Anderson v. State, 41 Ala.App. 620, 621, 147 So.2d 862 (1962); Ex parte Argo, 41 Ala.App. 442, 137 So.2d 755, cert. dismissed, 273 Ala. 201, 137 So.2d 757, cert. denied, 369 U.S. 862, 82 S.Ct. 952, 8 L.Ed.2d 20 (1962).

Ground (D) involving the closing argument of the prosecutor was properly stricken because it was known to the appellant and could have been raised at trial and on direct appeal. We note that three other objectionable portions of the prosecutor’s argument were considered in the opinion of this Court affirming the conviction. Summers, 348 So.2d at 1135. Since the facts were known by the appellant and objected to at trial, but not presented as an issue on appeal, they cannot sustain a proceeding for coram nobis relief. The writ is appropriate only when the petitioner’s claim is based on facts which were not known and could not have been discovered with the exercise of reasonable diligence at the time of trial. Senn v. State, 43 Ala.App. 323, 189 So.2d 870 (1966); Thornburg v. State, 42 Ala.App. 70, 152 So.2d 442 (1963). “Facts known to the accused debar him from seeking coram nobis.” Arledge v. State, 57 Ala.App. 553, 555, 329 So.2d 613, 615, cert. denied, 295 Ala. 390, 329 So.2d 616 (1976). If the petitioner could reasonably have discovered the information in time to prevent the original conviction the remedy of coram nobis is not available. Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964); Isom v. State, 44 Ala.App. 6, 200 So.2d 506 (1966), reversed on other grounds, 281 Ala. 189, 200 So.2d 511 (1967). The writ will not lie where a remedy against the error complained of, though available, was deliberately or negligently not used at the trial that resulted in the judgment of conviction. In such cases the petitioner is generally held to have waived his right to contest the judgment. Johnson v. Williams, 244 Ala. at 395, 13 So.2d 683; Redus v. Williams, 244 Ala. at 459, 13 So.2d 561; Ex parte Taylor, 249 Ala. 667, 670, 32 So.2d 659 (1947).

At trial the appellant’s objection to the prosecutor’s remark was sustained by the trial judge who then, upon request, instructed the jury to disregard the matter. The appellant requested no further action from the trial court and, having no adverse ruling, has no cause to complain. Mandell v. State, 21 Ala.App. 404, 108 So. 635 (1926); Adkins v. State, 265 Ala. 666, 93 So.2d 522 (1957).

Those portions of ground (E) alleging prosecutorial misconduct as shown in grounds (B), (C), and (D) were properly stricken from consideration for the same reasons grounds (B), (C), and (D) were.

III

Challenges based on the inadequacy of counsel constitute grounds for cor-am nobis, Browning v. State, 57 Ala.App. 217, 326 So.2d 778 (1975), cert. denied, 295 Ala. 392, 326 So.2d 783 (1976), despite earli er indications to the contrary. Ex parte Argo, 41 Ala.App. at 444, 137 So.2d 755; Ex parte Gammon, 255 Ala. 502, 505, 52 So.2d 369 (1951). However counsel is presumed adequate, Willis v. State, 42 Ala.App. 85, 90, 152 So.2d 883 (1963), and the fact that the petitioner was convicted does not prove that counsel lacked zeal or competence, Butler v. State, 279 Ala. 311, 313, 184 So.2d 823 (1966), Echols v. State, 276 Ala. 489, 491, 164 So.2d 486 (1964), particularly when counsel has been retained rather than appointed. Ex parte Gammon, 255 Ala. at 505, 52 So.2d 369; Houston v. State, 332 So.2d 408, 409 (Ala.Cr.App.1976).

The State specifically requested that the appellant’s allegations of ineffective counsel be considered by the circuit judge who entered the following written finding in his order denying coram nobis relief.

“At trial petitioner was represented by three retained attorneys of his choice. This court judicially knows that at least two of petitioner’s trial attorneys, one of whom was lead counsel at the trial, are very skillful and experienced criminal defense trial attorneys in this state.
“This court also presided at petitioner’s trial in this case and observed his counsel during the conduct of the trial. Petitioner’s counsel represented him ably and skillfully at trial, cross examining the witness for the State at length and vigorously and skillfully arguing petitioner’s case to the jury. This court is convinced that petitioner did not receive ineffective assistance of counsel at trial but, on the contrary, was very ably represented by his counsel.”

Both the record of the appellant’s trial and his coram nobis hearing fully and clearly support this finding.

The only specific allegation and evidence to support the charge of inadequacy of counsel was that trial counsel did not present “available evidence” to discredit the testimony of Elaine McClellan, who testified against the appellant at his trial. The “available evidence” was the testimony of the Honorable Joe Burnett, one of petitioner’s three retained attorneys, that prior to trial Ms. McClellan had told him that she did not know anything about the case. After witness McClellan testified, the matter was discussed among appellant’s three retained counsel and a decision was made not to contradict her testimony. As the State’s appellate counsel aptly notes an attempt to impeach the witness with the “available evidence” would have allowed the prosecution to bring out on redirect examination of Burnett how he and his client came to talk to Ms. McClellan and would have opened the door to discovering the appellant’s relationship and connection with the witness, as the State did at the coram nobis hearing. This could have resulted in some damaging and incriminating inferences against the appellant. The decision not to contradict witness McClellan was a matter of trial strategy, a calculated gamble. Since there has been no clear showing of improper or inadequate representation, the matter was best left to the professional judgment and discretion of trial counsel. Taylor v. State, 291 Ala. 756, 287 So.2d 901 (1973), cert. denied, 416 U.S. 945, 94 S.Ct. 1955, 40 L.Ed.2d 298 (1974); United States v. Henderson, 489 F.2d 802 (5th Cir. 1973), cert. denied, 417 U.S. 913, 94 S.Ct. 2612, 41 L.Ed.2d 217 (1974). An adequate defense in the context of a constitutional right to counsel does not mean that counsel will not commit what may later prove to be tactical errors. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974). However the evidence presented by, the appellant does not even disclose that a tactical error was made much less that he was denied adequate representation.

IV

The use of perjured testimony by the prosecution at trial is ground for coram nobis to issue if the testimony were used with knowledge that it was perjured. Ex parte Gammon, 255 Ala. 502, 52 So. 369 (1951); Ex parte Burns, 247 Ala. 98, 22 So.2d 517 (1945); Johnson v. Williams, 244 Ala. 391, 13 So.2d 683 (1943); Ex parte Brannan, 41 Ala.App. 500, 139 So.2d 349, cert. denied, 273 Ala. 234, 139 So.2d 351 (1962); Caldwell v. State, 36 Ala.App. 612, 63 So.2d 384 (1953). The law is settled that a writ of error coram nobis will not lie because of false testimony given at trial unless that false testimony was used by the State with the knowledge that it was perjured testimony. Williams v. State, 268 Ala. 535, 108 So.2d 454 (1959); Gammon, supra; Brown v. State, 250 Ala. 444, 35 So.2d 518 (1948); Burns, supra; King v. State, 349 So.2d 620 (Ala.Cr.App.1977); Horsley v. State, 42 Ala.App. 567, 172 So.2d 56 (1965); Brannan, supra; Ex parte Craft, 41 Ala.App. 519, 138 So.2d 266 (1962); Ex parte Fuller, 40 Ala.App. 197, 116 So.2d 395 (1959); Caldwell, supra. In the absence of an allegation and showing that the perjured testimony was used by the State with a knowledge that it was perjured, a petitioner is not entitled to a writ of error coram nobis. King, supra; Brannan, supra. Even when the alleged perjured testimony is essential to the conviction, the petitioner still must prove that the State used the testimony with knowledge that it was perjured. Brannan, supra; Caldwell, supra. A bare claim that a witness lied or gave false testimony will not entitle a petitioner to coram nobis relief. Caldwell, supra; Brannan, supra. The use of perjured testimony is not proven by the fact that a witness contradicted himself. Echols v. State, 276 Ala. 489, 164 So.2d 486 (1964); King, 349 So.2d at 621.

The trial judge succinctly but carefully covered this ground of the petition in his order denying the writ. His findings of fact are supported by the record. His statements and conclusions of law are correct.

“CLAIM OF CONVICTION ON PERJURED TESTIMONY
“In order to obtain a new trial on a claim of having been previously convicted on the perjured testimony of a witness, a petitioner must show each of the following: (1) that material testimony against him was willfully false; (2) that the State used the allegedly perjured testimony in the prosecution of the case with knowledge that it was perjured; and (3) that petitioner did not fail to bring to the attention of the trial court evidence within his knowledge which would have put the court on notice of the perjury issue at that time. Williams v. State, 268 Ala. 535, 108 So.2d 454 (1959); Horsley v. State, 52 Ala.App. 567, 172 So.2d 56 (1965).
“The evidence presented by petitioner at the hearing in this case proved none of the above elements.
“In regard to the first element, petitioner presented at the hearing no credible evidence whatsoever that the witness Elaine Campbell McClellan Ward, did in fact perjure herself in any of her testimony against him. Testimony at the hearing also showed that the State of Alabama, during the course of its investigation of this case, developed other independent evidence which corroborated the testimony of Elaine Campbell McClellan Ward. The fact that a witness gave contradictory testimony does not establish that a defendant. was convicted on false or perjured testimony. King v. State, Ala.Cr.App., 349 So.2d 621. In other words, this Court is not reasonably satisfied from the evidence that she did commit perjury at petitioner’s robbery trial. This finding, in and of itself, is enough to deny the petitioner’s application for writ of error coram nobis.
“In regard to the second element, there is no evidence whatsoever in this case that the State of Alabama knew or had reason to believe that any of the testimony it used against petitioner at his trial was false. Petitioner’s own proof showed that the witness Elaine Campbell McClellan Ward first attempted to recant her trial testimony more than a month after the trial of the case. Even then, the circumstances surrounding the attempted recantation casts serious doubts on its believability.
“In regard to the third element, at the hearing on the petition for Writ of Error Coram Nobis, one of petitioner’s attorneys, who was also one of petitioner’s attorneys at the trial, testified that prior to trial he interviewed the witness Elaine Campbell McClellan Ward and was told by her that she knew nothing of petitioner’s involvement in the crime charged. He further testified that after her trial testimony, petitioner and his attorneys discussed this allegedly inconsistent prior statement, and they decided not to raise the issue. Neither the State nor the trial judge was informed of this allegedly inconsistent prior statement. Only petitioner and his attorneys were aware of it during the trial. Petitioner and his attorneys did not inform the trial court and the State of this allegedly inconsistent prior statement until the hearing on the petition for Writ of Error Coram Nobis.”

In order to obtain a new trial on the basis of the use of perjured testimony by the State, a defendant must allege and prove (1) that the testimony was perjured; (2) that the perjured testimony was on a matter of such importance that the truth would have prevented a conviction. Ex parte Reliford, 37 Ala.App. 697, 75 So.2d 90 (1954); (3) that the prosecution had knowledge that the testimony was perjured; and (4) that the defendant was not negligent in discovering the falsehood and in raising the issue. Ex parte King, 349 So.2d at 621; Horsley v. State, 42 Ala.App. at 569, 172 So.2d 56.

In a coram nobis proceeding the petitioner bears the burden of submitting clear, full and satisfactory proof of matters which, had they been timely submitted at trial, would have prevented a judgment of conviction. Champion v. State, 45 Ala.App. 188, 227 So.2d 818 (1969). This burden extends beyond a mere balancing of probabilities to clearly and convincingly satisfy the court that the original judgment was tainted with fraud, actual or constructive; that there was no acquiescence by the defense therein; that a factual basis existed which if made known would have prevented the original judgment; and that the failure to make such exonerating fact known earlier was not chargeable to the petitioner. Argo v. State, 43 Ala.App. 564, 570, 195 So.2d 901, cert. denied, 280 Ala. 707, 195 So.2d 909 (1967).

The degree of proof is “highly exacting as to facts ‘and always means more than reasonably satisfying’ ”. Burden v. State, 52 Ala.App. 348, 350, 292 So.2d 463, 465 (1974). The petitioner must convince the trial judge of the truth of his allegation and the judge must “believe” the testimony. Seibert v. State, 343 So.2d 788 (Ala.1977). The petitioner on coram nobis is also confronted with the burden of rebutting the presumptions, among others, of the correctness of the judgment of the trial court, Ware v. State, 44 Ala.App. 679, 219 So.2d 910 (1969), and the truthfulness of the testimony of the witnesses for the prosecution. Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974).

Our independent search and examination of the record convince us that the appellant faded to prove any of the four elements listed above. The judgment denying the writ was proper. Ex parte Fuller, 40 Ala.App. at 197-198, 116 So.2d 395.

A letter was attached as an exhibit to the appellant’s petition for writ of error coram nobis. The letter was addressed to the appellant and apparently written by Donald Nissen, an accomplice, who testified against the appellant at his robbery trial. The letter is dated August 15, 1977, and contains the statement, “You (referring to the appellant) know better than anyone else that Elaine lied about you under oath”.

The petition was personally verified by the appellant and states in part:

“The knowledge of this perjury was not known to this petitioner until the receipt of the letter from the Office of William J. Baxley, Attorney General of the State of Alabama, dated September 1, 1977, . .” (Emphasis added)

Thus the appellant’s own petition reveals that the appellant had received some information that the witness had perjured herself some time before the appellant claimed to have received such information. We spoke to a related matter in Pitts v. State, 366 So.2d 736, 740 (Ala.Cr.App.1978).

“Repudiated testimony, especially where admitted to be perjured, is to be regarded with suspicion and caution. A petitioner will be hard pressed to convince this court of the error of a trial court in denying a petition for writ of error coram nobis where the recanted testimony of an admitted perjurer which appears to exculpate the accused also indicates that the accused swore falsely at trial.”

In attributing perjury to the statements of another a petitioner should guard against false statements or contradictions in his own pleadings lest his statements assume the very character of the deceit he attributes to others.

In the appellant’s “Memorandum In Support of Petition for Writ of Error Coram Nobis” addressed to the trial judge, the petitioner is trapped in an admission of knowledge of the perjury at the time of trial.

“The State of Alabama both in pleading to the petition for writ of error coram nobis and at hearing tried to damn petitioner Summers as a perjurer for his oath that he did not know of the perjury of Elaine McClellan under after the letter of 1st of September, 1977, from the office of the Attorney General to trial counsel. The apparent basis of such accusations can only be that Summers knew, in fact, that Elaine McClellan was not present in Clanton on the date and at the time she testified about on the trial. But this was a personal knowledge, not visibly supported by any independent evidence. On any charge of perjury initiated with the prosecuting authorities by Summers it seems clear that it would have been dismissed from consideration summarily. Burnett was in possession of the same information, and he did not conclude and press a perjury charge. The key is that there was no independent information about perjury until the letter of September 1, 1977. It was at that point that personal knowledge, which would have involved the word of one person against the word of another, ripened into a supportable and maintainable accusation.’’ (Emphasis added)

Regardless of the “weight” of the evidence that the appellant had concerning Ms. McClellan’s perjury, the appellant deliberately chose not to present this issue to the trial court. By preserving the issue the appellant would not have been negligent in raising the issue on coram nobis. Where the grounds upon which the petitioner sought coram nobis were all based on facts well known to him at the time of his conviction, coram nobis is not the proper mode for raising such questions. Trammell v. State, 43 Ala.App. 308, 189 So.2d 760, cert. denied, 280 Ala. 31, 189 So.2d 763 (1966). We recognize the difficulty in proving perjury but the appellant knew at the time the witness testified that she had previously given a contradictory statement to one of the appellant’s retained attorneys. This is not the case where the defendant himself is the only one who could testify that the witness was giving false testimony. From the failure to present or even raise this issue in the trial court we can only conclude that it was deliberately waived and the judgment of conviction must stand.

On appeal the State, relying on Brinks v. State, 44 Ala.App. 601, 217 So.2d 813, cert. denied, 283 Ala. 712, 213 So.2d 820 (1968), argues that this Court should not consider allegedly hearsay statements admitted by the judge on the coram nobis hearing. The appellant’s testimony on the alleged perjury was to the effect that Elaine McClellan had said that she perjured herself. McClellan did not testify.

In a coram nobis proceeding, hearsay statements are insufficient to establish that testimony was perjured. Williams v. State, 268 Ala. 535, 108 So.2d 454 (1959); Ex parte Argo, 41 Ala.App. at 445, 137 So.2d 755. From the order of the trial judge denying the writ it is obvious that he did not run afoul of this rule. Even if we consider any hearsay testimony in the record the petition is still due to be denied.

V

In an effort to escape punishment, the appellant has lashed out in every direction. He has charged that the prosecution “engaged in a calculated pattern of prosecuto-rial misconduct designed to engender bias and prejudice against SUMMERS and to impede his right to defend himself”; that the “office of the Attorney General must stand convicted, by its own actions, of securing a criminal conviction in a manner which does not comport with . . . due process”; that “the State of Alabama prosecuted this ease with a reckless disregard that the commission of perjury was a distinct probability from any witness”; that certain prosecutors are guilty of unethical conduct; that the State, by not investigating, “closed its eyes to what might have been pertinent evidence about possible perjury”; and that “the State conveniently did not pursue ‘red flags’ which heralded ‘perjury’ in one or more aspects of this case”. Charges of “wheeling and dealing”, of “deliberate attempts to mislead the jury”, of “gross carelessness”, and of “suppressing the truth” are also leveled against the State and the two Assistant Attorneys General who prosecuted the appellant.

Shrouding these opprobrious statements within the garb of constitutional deprivations neither enhances their credibility nor dignifies their tone. Without proof or substance, these allegations retain their basic form of reckless and desperate accusations.

Again we refer to the order of the trial judge who treated this matter in a simple but eloquent manner.

“CLAIM OF PROSECUTORIAL MISCONDUCT
“There was no evidence presented whatsoever at the hearing in this case to substantiate any claim of prosecutorial misconduct by the State of Alabama.”

We can imagine no greater or more comprehensive damnation of the appellant’s allegations.

VI

Except in the case of an alleged violation of certain constitutional rights (for example, lack of representation by counsel, see Cates, Post Conviction Remedies, 28 Ala.Law. 255, 266 (1967)), the failure of petitioner to assert that he is innocent of the crime for which he stands convicted or that he has a valid defense (insanity, statute of limitations) is fatal to a petition for writ of error coram nobis. Mayola v. State, 344 So.2d 818, 822 (Ala.Cr.App.), cert. denied, 344 So.2d 822 (Ala.1977); Hopkins v. State, 57 Ala.App. 78, 326 So.2d 144 (1975); Argo v. State, 43 Ala.App. 564, 195 So.2d 901, cert. denied, 280 Ala. 707, 195 So.2d 909 (1967).

One Assistant Attorney General who prosecuted the appellant testified at the coram nobis hearing that after the appellant had been convicted, the appellant sent him a Christmas card. The appellant then telephoned this prosecutor and during the conversation acknowledged his guilt of the robbery for which he had been convicted.

The appellant has shown no valid defense to the indictment upon which he stands convicted. He has not demonstrated any legally recognized absolute ground of defense (statute of limitations, self-defense, or insanity) and the evidence adduced at the hearing on the petition for writ of error coram nobis provides further evidence of guilt.

The appellant stands duly convicted after having appealed his conviction to the highest court in the land. Now he begins anew with a collateral attack on his judgment of conviction. We do not assume that “a criminal has been deprived of due process of law simply because he is desirous of escaping punishment for the crime for which a jury and a competent and just judge found him guilty”. Warden v. State, 41 Ala.App. 449, 451, 134 So.2d 783, 784 (1961). Also Cooper v. Wiman, 273 Ala. 699, 145 So.2d 216 (1962). The evidence presented to this Court reveals that the appellant has utterly failed to establish any reason for impeaching the original judgment of conviction. Therefore the judgment of the circuit court denying the petition for writ of error coram nobis is affirmed.

AFFIRMED.

All the Judges concur.

      . The use of the writ of error coram nobis in Alabama is covered in the following articles: Comment, Postconviction Remedies in Alabama, 29 Ala.L.Rev. 617, 630 (1978); Cates, Post Conviction Remedies, 28 Ala.Law. 257, 266 (1967); and Comment, The Writ of Coram Nobis in Alabama, 2 Ala.L.Rev. 281 (1950).


author: SHORES, Justice.

text:
    Ex parte Oliver Paul SUMMERS.
    78-180.
    Supreme Court of Alabama.
    Jan. 26, 1979.
   SHORES, Justice.

WRIT DENIED.

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