author: DeCARLO, Judge.

text:
    William David BURLISON, alias v. STATE.
    4 Div. 585.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied March 6, 1979.

      J. Fletcher Jones, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

This is an appeal by an indigent from a judgment and conviction for burglary of a motor vehicle and grand larceny, wherein William David Burlison was found guilty by a jury in Covington County and sentenced to three years imprisonment.

A motion for a new trial was denied by the trial court, and the matter is before this court for review.

On January 1, 1977, Wyndol Laird went to the “Dinner Bell Restaurant and Lounge” just north of Florala, Alabama, parked his 1976 Chevrolet truck at the north end of the parking lot, and went inside. He had been inside for approximately an hour when hp was informed that, “several CB” radios had been stolen from various vehicles in the parking lot. Going outside, he discovered that his truck had been entered and his CB radio and antenna were missing. The glove compartment of his truck had been broken into and two full bottles of Jack Daniels and Kentucky Gentlemen whiskey, which had been in the glove compartment, were now empty. Subsequently, Laird discovered his “CB” antenna on the back floorboard of an automobile belonging to one Jerry Lee Simmons.

In response to a telephone call from the Florala Police Department, Deputy Sheriff George Szpek went to the Dinner Bell Restaurant, and, upon his arrival, discovered some fifteen cars had been broken into, one of which belonged to Laird.

Just after arriving, Szpek saw an antenna lying on the floorboard of Jerry Simmons’ car. Szpek then went into the restaurant and asked the appellant, Burlison, to come outside. Burlison was placed under arrest and the Miranda warnings were read to him. According to Szpek, the appellant did not make any statement, but Szpek said he noticed about fourteen or fifteen cuts on Burlison’s hands. They appeared to be covered with blood which “was still moist.”

Jerry Simmons was located and, in the hearing of the appellant, Burlison, Simmons stated that Burlison had been driving his automobile. Simmons was also placed under arrest.

When the two empty whiskey bottles were removed from Laird’s truck by police officers, they discovered what appeared to be bloodstains on the bottles. Bloodstains were also found on the antenna on Simmons’ car and in Laird’s truck.

At the police station, two pieces of glass, which appeared to be windshield glass, were removed from Burlison’s coat pocket. Although the windshields of some fifteen vehicles were broken that night in the course of the burglaries, none of the windows in Laird’s truck was broken.

None of the fingerprints taken from the items at the scene matched those of the defendant. However, a palm print taken from one of the whiskey bottles was that of Jerry Simmons, but Simmons’ hands did not appear to be cut or bleeding at the time of his arrest.

During the trial Szpek testified that the only statement appellant made to him was in answer to a question about how he cut his hands. At that time Burlison had responded; “What if I done it laying bricks, man?” Szpek also testified that the antenna found in Simmons’ car had stains on it which appeared to be blood. Szpek identified pictures of Simmons’ automobile, which showed bloodstains on the interior of the window.

At the end of the State’s case, the defendant made a motion to exclude the State’s evidence which was denied. Defendant then presented testimony by Ann Simmons, the wife of Jerry Lee Simmons, who stated that the appellant was at her home about 7:00 or 7:30 P.M. on January 1, 1977, and that he and her husband were drinking Jack Daniels whiskey from the same bottle. She claimed that it was that bottle that was left in the Simmons’ car on the night of the burglaries at the Dinner Bell Restaurant. She also said that, after the appellant arrived at her home, her son had broken a plate and the appellant had cut his hands when he attempted to pick up the pieces.

When she and her husband and appellant went out to the Simmons’ vehicle, the car failed to start and the battery had to be “fixed” before it would start. After the car was repaired, she and her husband had gone with appellant to see his girl friend and then to a liquor store in Florala, where they purchased a bottle of Lord Calvert whiskey. Although she had testified that the appellant’s hands were bloody before they went to the lounge, she claimed that she did not get any bloodstains on her clothing when she danced with him.

They had been at the Dinner Bell Restaurant for approximately an hour and a half when the appellant used their car to go see his girl friend, Renee Coffield. He was gone for approximately forty-five minutes.

Mrs. Simmons testified that she had seen blood on the window of their car and also recalled that Officer Szpek had pointed out the antenna lying on the floorboard of their car.

Renee Coffield testified that she had seen the appellant around 9:00 P.M., January 1, 1977, at the State Line Liquor Store, along with Jerry and Ann Simmons. She recalled seeing a whiskey bottle in the Simmons’ car at the time. Appellant had wanted her to accompany them to the Dinner Bell Restaurant.

The appellant testified that he was a brick mason, and on January 1, 1977, had gone to the Simmons’ residence at 7:00 P.M. He stated that he had been drinking whiskey that evening and later cut his hand while picking up some pieces of a plate. He claimed that he cut his hand again while changing the battery in the Simmons’ vehicle.

Around 9:00 P.M., he went to the Dinner Bell Restaurant and Lounge with the Sim-monses where they remained until 10:00 or 11:00 P.M. At that time, appellant borrowed the Simmons’ vehicle to go to town. When he returned to the parking lot he almost hit one of three “dudes” as he drove by a truck where they were standing. As a result, he had a few words with them and the last time he saw them they were walking toward the Simmons’ car.

After appellant returned to the lounge, Hayward Thomas, a policeman, came in and took him by the arm and led him to where Officer Szpek was standing. According to the appellant, the officer said he was going to “bust” him because he had driven up in an “RT awhile ago squealing your tires through the parking lot.”

Appellant stated that the officer read him a couple of rights but did not finish them because someone came up. According to appellant, the officer never said anything about the CB radio or the antenna.

Afterwards, he and Simmons were taken to the Florala police station, where the radio operator at the police station removed the glass from his pockets.

In his testimony, appellant pointed out that the pictures showing his hand were taken at 3 o’clock in the morning, at the time he was arrested, and that they showed that the blood on his hand was dry.

Hayward Thomas was called as a rebuttal witness. He testified that a small particle of glass was removed from the appellant’s jacket at the police station by Deputy Szpek. He said that he heard Szpek ask the appellant about the cuts on his hand. According to Thomas, the appellant responded; “What if I cut them working . I lay brick, blocking.”

James Peters, operator of the Dinner Bell Restaurant and Lounge, was called as a rebuttal witness and testified that he had had a conversation with appellant before Officer Thomas came in. According to Peters, the appellant did not have any cuts or blood on his hands before he left the lounge the first time.

I

The appellant contends that the evidence was not sufficient to sustain his conviction for burglary and grand larceny. He maintains that it was error on the part of the trial court to deny his motion to exclude the State’s evidence. He argues further that; “The crux of this case is that it is based upon inferences . . . ”

The crime of burglary may be proved by circumstantial evidence where such circumstantial evidence presents a jury question. Wallace v. State, 52 Ala.App. 331, 292 So.2d 140. The corpus delicti of larceny consists of two elements: (1) That property was lost, and (2) that it was lost as a result of felonious taking. Copeland v. State, 57 Ala.App. 482, 329 So.2d 171. Proof of the corpus delicti may be shown by circumstantial evidence, and, if there is evidence from which its existence may reasonably be inferred, the question of the sufficiency and weight of the evidence must be submitted to the jury. Burleson v. State, 52 Ala.App. 399, 293 So.2d 317.

In addition, the loss of property by larceny may be proved by circumstantial evidence where there is proof of facts and circumstances showing a loss and a felonious taking. Copeland v. State, supra.

Possession of recently stolen goods will support an inference of burglary if there is also proof of breaking and entering so connected in time as to permit the inference that the larceny was a product of that breaking and entering. Wildman v. State, 42 Ala.App. 357, 165 So.2d 396; Miller v. State, 43 Ala.App. 287, 189 So.2d 576; Rutherford v. State, 48 Ala.App. 289, 264 So.2d 210. See Franklin v. State, Ala.Cr. App., 357 So.2d 364; Breazeale v. State, 51 Ala.App. 320, 285 So.2d 130.

Although the evidence in the present case is purely circumstantial, and there is no direct proof that the appellant burglarized the vehicle and took the radio and the antenna from the Laird truck, there are facts which demonstrate appellant’s connection with the crime. During the time that the vehicles in the restaurant parking lot were broken into, the appellant had exclusive possession and control of the automobile owned by Jerry Lee Simmons. After the discovery of the burglary of the Laird vehicle, the victim’s CB antenna was found in the rear floorboard of Simmons’ automobile, which had been in appellant’s custody immediately prior to the occurrences. A whiskey bottle found in the victim’s truck bore bloodstains, and the door handle of the Simmons vehicle, as well as the antenna found in the Simmons car, bore evidence of the same stains.

There was testimony that, prior to the time appellant left the lounge, his hands were not cut, but it was shown that they were freshly cut and bleeding at the time of his arrest. Finally, after a search of his clothing at the police station, broken glass similar to that of several of the burglarized vehicles was found in appellant’s pocket.

The mere presence of a stolen antenna in a vehicle, which was in appellant’s possession and control for only some forty-five minutes, does not, in and of itself, make out a prima facie case of burglary. However, considering the totality of the circumstances in the present case, there is sufficient evidence to sustain the conviction. By his own testimony, as well as that of other witnesses, appellant was shown to have been in exclusive control and custody of the Simmons vehicle, in which the stolen antenna was found, at approximately the time the crime was alleged to have occurred.

Furthermore, at the time of his arrest, appellant’s hands were freshly cut and bleeding, and, when questioned as to how he had cut them, appellant gave the answer: “What if I done it laying brick, man.” This response was inconsistent with the explanation appellant gave at trial, which was that he had cut his hands on a broken plate and while changing an automobile battery at the Simmons’ residence.

Bloodstains were found on a whiskey bottle in' the victim’s truck, on the interior handle of the Simmons’ automobile, and on the antenna itself. Also, Deputy Szpek said he had noticed bloodstains on appellant’s hands after he had placed handcuffs on the appellant.

Pieces of automobile safety glass were found in the appellant’s coat pocket, and, although the Laird vehicle did not have a broken window, the windows of the other vehicles burglarized approximately at the same time were, in fact, broken.

Although the radio from the victim’s truck was not found in appellant’s possession, it is our judgment that this combination of circumstances presents a question for the jury as to the appellant’s culpability in both the burglary and the grand larceny. Breazeale v. State, supra; Franklin v. State, supra; White v. State, 294 Ala. 265, 314 So.2d 857.

II

It is contended that part of Officer Szpek’s testimony, concerning his conversation with Jerry Lee Simmons regarding who was driving Simmons’ automobile the night of the crime, was hearsay and inadmissible.

From the record, we find the following testimony:
“Q. All right, with relation to the police car where were you when you talked to Mr. Simmons?
“A. In relation to the police car?
“Q. Yes, and the Dodge.
“A. Where were we standing?
“Q. Yes.
“A. Right next to them, each other.
“Q. Were you between them or were you on one side or the other of them?
“A. No, sir, the patrol car was parked in the street and we were standing there and the other car was on the other side of the road.
“Q. How far were you from both cars when you were talking to Jerry Lee Simmons?
“A. Not much more than five or six feet.
“Q. How far from David Burlison were you when you were talking to Jerry Lee Simmons?
“A. About the same, he was sitting in the back of the police car.
“Q. How is that?
“A. He was sitting in the back of the police car.
“Q. Was the door of the police ear open?
“A. Front door was, yes, sir.
“Q. And then I’m six foot tall, that is about how far you were from this Defendant, William David Burlison, when you were talking to Jerry Lee Simmons?
“A. Yes, sir, about five or six feet.
“Q. All right, what did Jerry*Lee Simmons tell you about whose car it was?
“MR. JONES: I object to that.
“THE COURT: Let me ask the witness a question.
“MR. McGILL : Yes, sir.
“THE COURT: Do you know whether or not the window was down in the car that Burlison was sitting in, the patrol car?
“MR. SZPEK: No, I couldn’t say for sure if it was or not.
“THE COURT: Overruled.
“Q. Were you talking in a normal tone of voice?
“A. Yes, sir.
“Q. In your judgment, if you had been seated in that police car could you have heard you?
“MR. JONES: I object to that.
“A. Yeah.
“THE COURT: Overruled.
“MR. JONES: Except.
“Q. All right, did you ask Jerry Lee Simmons whose car it was?
“A. Yeah.
“MR. JONES: I object. It is not a proper predicate and it is not clearly shown that it was stated in the presence of the Defendant.
“THE COURT: Overruled.
“MR. JONES: Except.
“Q. Did he tell you?
“A. Yes, sir.
“Q. Did he tell you who had been driving?
“A. Yes, sir.
“Q. Who did he say had been driving?
“A. Mr. Burlison.
“Q. All right, did you also place Mr. Simmons under arrest at that time?
“A. Yes, sir.
“Q. What did you do with him?
“A. Placed him in the car.”

This same evidence was freely admitted from the stand by the appellant, and he also admitted driving Simmons’ car on the night of the offense. Later, similar evidence was presented by defense counsel through Simmons’ wife, Ann.

Any error in admitting this testimony was eradicated when the same evidence was later elicited by defense counsel and allowed to remain in the record without objection or exception. Pitts v. State, 291 Ala. 136, 279 So.2d 119. The appellant cannot now complain of the admission of evidence where he, himself, has testified to the identical facts, or where the matter in question is uncontradicted. Yelton v. State, 294 Ala. 340, 317 So.2d 331. Going further, in Townsend v. City of Birmingham, 54 Ala. App. 213, 307 So.2d 24, this court held that it was a question of fact whether a conversation, the substance of which was related by a witness at trial, was audible to appellant, who was standing outside a closed hotel room door at the time of the conversation. This court determined there that a jury could reasonably infer that the appellant heard the conversation, and that the matter was properly submitted to the jury.

Under the facts in the present case the record reveals that at the time of the conversation, Szpek and Simmons were standing approximately six feet from the appellant. Szpek testified that he was talking in a normal voice and that the front door was open on the police car, but that he did not know whether the rear window of the car, next to which the appellant was seated, was open.

In view of the foregoing evidence, it is our judgment that a jury could reasonably infer that the conversation between Szpek and Simmons could be heard by the appellant, and the matter was properly submitted to the jury. Townsend v. City of Birmingham, supra.

The substance of Szpek’s conversation with Simmons was merely that Burli-son had driven his automobile on the night in question. This was a fact uncontradicted and freely admitted from the stand by the appellant. Therefore, if error in admitting Szpek’s testimony could be assumed, ar-guendo, there was no harm to the appellant.

III

The appellant complains that the evidence of the two whiskey bottles and a palm print taken from the bottle found in the victim’s vehicle was erroneously admitted.

Articles which are properly identified and which tend to show the commission of the crime, or the manner in which it was committed, or to elucidate some matter in issue, are admissible for inspection and observation by the jury. Lackey v. State, 41 Ala.App. 46, 123 So.2d 186; Franks v. State, 45 Ala.App. 88, 224 So.2d 924. Also, where the evidence is probative of an element of the corpus delicti and of the defendant’s participation in the offense, it is relevant and should be admitted. Harris v. State, 57 Ala.App. 558, 329 So.2d 618.

The two whiskey bottles which were found in victim’s truck resembled the bottle which had been in Simmons’ automobile when Simmons, his wife, and the appellant arrived at the Dinner Bell Restaurant and Lounge. Although Simmons’ palm print and some untyped bloodstains were found on one of the bottles, there was evidence that Simmons himself had not left the club at the time of the offense. There was evidence that the appellant had left the club, however, and had driven Simmons’ automobile at the approximate time the crime occurred. He therefore would have had access to the bottles during that period. Finally, it was shown that shortly after the auto burglary, at the time of his arrest, the appellant had freshly cut and bleeding hands.

In view of the foregoing evidence it is our judgment that the bottles and the palm print were relevant and tended to point to a circumstance probative of the appellant’s commission of the crime, by indicating his presence in the victim’s ear at the time of the offense. Franks, supra; Harris, supra.

Under these circumstances, there was no error in the admission of the evidence,

IV

It is argued that the statements made by appellant at the police station were erroneously admitted because the Miranda warning that had been given to him at the time of his arrest was not repeated before the questioning at the station. For the same reason, appellant argues that the admission of the photographs of his hands, which were taken at the police station after his arrest, was error.

At the time of the appellant’s arrest, he was advised of his constitutional rights and was informed of the charge against him. He made no statement at that time but some forty-five minutes later, when questioned at the police station, he did make the following statement:

“Q. Mr. Szpek, after you placed Mr. Burlison under arrest and Mr. Simmons under arrest did you later take them to the Florida Police Department?
“A. Yes, sir.
“Q. And while you were in the police department there did you have a conversation with Mr. Burlison?
“A. Yes, sir.
“Q. Who was present?
“A. Hayward Thomas and I believe there was another city police officer.
“Q. Where were you in the police station down there?
“A. In the office.
“Q. In the office. Did you or anyone in your presence and in the presence of this Defendant at that time threaten or abuse him in any way to get him to talk with you or make a statement?
“A. No, sir.
“Q. And did you or anyone in your presence and in the presence of this Defendant offer him any • reward or hope of reward to get him to talk with you or make a statement?
“A. No, sir.
“Q. Did he talk with you after that?
“A. No, sir.
“Q. Well, did he answer any of your questions?
“A. Yes, sir.
“Q. All right, did you ask him about how he cut his hands?
“A. Yes, sir.
“MR JONES: May I put this in the record, please sir?
“THE COURT: Yes.
“MR. JONES: Which we have discussed this matter here outside the presence of the Jury, of course, you stated you are going to overrule me but I want to put this in the record.
“THE COURT: No, I stated, I would rule on your objections at the time when they were assigned.
“MR. JONES: Oh, you did. I beg your pardon, but the fact is there is no connection, of course, being connected between those items and — Well, let me hold it to that. This statement here being solicited from this witness without a showing of the Miranda warning being made to the Defendant, at this point. Previous at the Dinner Bell but this is an occasion down at the station house. No Miranda, and we object on those grounds.
“THE COURT: Overruled.
“MR. JONES: Except.
“Q. About what time of the night was this, Mr. Szpek? Just your best judgment?
“A. It was after twelve-thirty.
“Q. All right, and did you ask him about the blood on his hands?
“A. Yes, sir.
“Q. What was his answer this time?
“MR. JONES: Again, we object on the additional grounds that I have previously cited as to no Miranda warning, and I object on those grounds. No proper predicate being laid and assign that opposition — object to the question.
“THE COURT: Overruled.
“MR. JONES: Except.
“Q. What did he say?
“A. What if I done it laying brick, man.”

It is not necessary for an accused to be given a repeated Miranda warning in all cases before each separate interrogation. Whether it is necessary for warnings to be repeated is determined by the particular facts in each case, taking into consideration the length of time between the repetitions of the warning and the events transpiring between the interrogations. Jones v. State, 47 Ala.App. 568, 258 So.2d 910; Johnson v. State, 56 Ala.App. 583, 324 So.2d 298; Anderson v. State, Ala.Cr.App., 339 So.2d 166.

In the present case, the appellant was given the Miranda warnings at approximately 12:00 P.M. Between 12:30 P.M. and 12:45 P.M., some forty-five minutes later, he was questioned at the police station. There was no time lapse comparable to that shown in Johnson v. State, supra, nor any such peculiar circumstances between interrogations which mandated a repetition of the Miranda warnings. Austin v. State, 56 Ala.App. 307, 321 So.2d 272; McBee v. State, 50 Ala.App. 622, 282 So.2d 62.

Appellant relies on Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313, for support of his contention that an additional Miranda warning was required after his arrest. The Mosley case can be distinguished from the facts presented here. In that case, the Miranda warnings were repeated to the defendant before he was questioned on a separate charge. There, the court held that the defendant’s refusal to answer any questions about a robbery he had allegedly committed was timely honored and not violated when he was given an additional Miranda warning before being questioned about a separate murder charge. In the present case, the appellant was not questioned on a separate charge at the police station, but about the same charge for which he was arrested.

The appellant also relies on White v. State, 294 Ala. 265, 314 So.2d 857, for support of his assertion that a Miranda warning is required in a police-dominated interrogation atmosphere. We recognize that the Alabama Supreme Court did state in White, that the Miranda warnings must be given (in such an atmosphere), unless other fully effective means are utilized and the accused is assured of continuous opportunity to exercise those rights. However, the facts in the present case can be distinguished. In White, supra, White was never warned of his Miranda rights because his attorney was present at the time of the arrest and signed the appellant’s statement as a witness. Here the appellant was read his Miranda warnings immediately upon his arrest.

Once Miranda warnings are given at the beginning of the questioning, it is not necessary to repeat the warnings at the beginning of each successive interview. People v. Hill, 39 Ill.2d 125, 233 N.E.2d 367; Johnson v. State, supra. This court recognized in Austin v. State, supra, that the time lapse alone is a circumstance to be taken into consideration, but is not sufficient, in, and of itself, to make the confession inadmissible.

Appellant’s statement concerning how he received the cuts on his hands was freely given without coercion after he had been fully advised of his constitutional rights. The trial court committed no error in admitting this statement.

Regarding the admission of the photographs of the appellant’s cut and bleeding hands, it is our judgment that these had a reasonable tendency to prove or shed light upon a material fact in issue. Wilson v. State, 31 Ala.App. 21, 11 So.2d 563. For this reason, they were admissible. Brown v. State, 55 Ala.App. 615, 318 So.2d 811. Furthermore, the photographs were not “testimonial or communicative” evidence, but real physical evidence. Shiflett v. State, 52 Ala.App. 476, 294 So.2d 444.

Based on the foregoing, it is our judgment that the admission of the statement and the taking of the photographs at the police station were proper.

V

Finally, appellant complains that testimony concerning the particles of safety glass that were removed from his jacket at the police station was erroneously admitted at trial. Under the facts of this case, the appellant was properly arrested with probable cause and, as we have held in preceding paragraphs, was adequately apprised of his Miranda rights; therefore, the testimony concerning the particles of safety glass was admissible.

We note from the record that appellant’s counsel allowed the prosecutor to cover the subject of the glass particles in full before raising any objection. After a question is asked and answered an objection comes too late, and the trial court’s ruling will not be declared in error without a motion to exclude and an adverse ruling thereon. Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735.

Admission of this testimony was permissible as part of the res gestae going to prove the identity of the appellant. The burglary and larceny in question were part of a series of burglaries occurring on the same occasion at the same time. Under these circumstances, where several offenses constitute one criminal transaction, evidence of all the crimes could be given as part of the res gestae of the offense with which the defendant is charged. Parsons v. State, 251 Ala. 467, 38 So.2d 209; Levene v. State, 26 Ala.App. 428, 161 So. 268.

Because Laird’s truck, the subject of this prosecution, had no broken windows, there is no immediately apparent connection between the glass and the offense. However, the windows of the other vehicles were broken and particles of glass were found on the appellant.

Also, the glass was admissible to prove identity in relation to appellant’s freshly cut and bleeding hands. Brasher v. State, 249 Ala. 96, 30 So.2d 31.

It would seem that the presence of the particles of broken safety glass in the appellant’s jacket, under the circumstances of this case, would bring it within the rule as being part of the res gestae. Brasher v. State, supra.

In conclusion, when the testimony concerning the particles of broken glass found on appellant is considered along with the condition of his hands at his arrest, the fact that a series of burglaries occurred at the same time and in the same location would provide probative value both in establishing the appellant’s identity and in resolving the main issue of culpability. Brasher v. State, 33 Ala.App. 13, 30 So.2d 26; Levene v. State, supra; Johnson v. State, Ala.Cr.App., 335 So.2d 663.

For the foregoing reasons, the testimony concerning the broken particles of safety glass was properly admitted.

We have considered all the contentions of the appellant and have reviewed the entire record and have found no error prejudicial to this defendant; therefore, the judgment of conviction appealed from is affirmed.

AFFIRMED.

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

BOOKOUT, J., concurs in result.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte William David BURLISON.
    78-376.
    Supreme Court of Alabama.
    April 27, 1979.
   BEATTY, Justice.

Writ Denied.

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


author: TYSON, Judge.

text:
    Mary Kathryn BAGGETT v. STATE.
    8 Div. 115.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied March 6, 1979.

      Ralph E. Slate, Decatur, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted in two counts for the offenses of grand larceny and buying, receiving and concealing stolen property. On November 5, 1976, the appellant entered a guilty plea, and the State recommended to the trial court that sentence be set at one year and one day with probation. The case was repeatedly continued until February 15, 1978, when the trial judge refused to honor the State’s recommendation with respect to sentence. The appellant was allowed to withdraw her plea of guilty, was arraigned on May 18, 1978, and went to trial on the indictment on June 19, 1978. The appellant’s trial ended the following day with the jury finding her “guilty as charged.” After examination of the appellant’s pre-sentence report, the trial judge determined that the appellant’s case warranted the severe sentence of eight years in the penitentiary (R. p. 83). From the denial of appellant’s motion for new trial, this appeal is taken.

At trial, Mrs. Nickie Junkin testified that, in May, 1975, she was employed as a sales person at Parisian’s, Incorporated, a clothing store in Decatur, Alabama. Mrs. Jun-kin recalled that, about 2:00 p. m. on May 26,1975, she observed the appellant and one she later came to know as Mrs. Johnnie Mae Cochran, looking through the racks of clothing on display in the store. Mrs. Junkin became suspicious of the activities of the two women when she noticed that the Parisian’s shopping bag that Mrs. Cochran was carrying became “fatter” than the box of shoes it contained. Mrs. Cochran had purchased the shoes earlier in the store’s shoe department. Mrs. Junkin testified that she went upstairs in the store where she could view the two women’s activities from above them. Mrs. Junkin summoned Mr. Charles Rodgers, the assistant manager of the store, to aid her in observing the two women. Mrs. Junkin could see hand movements, but she did not actually see either the appellant or Mrs. Cochran put clothing into Mrs. Cochran’s bag.

In a few minutes, the appellant and Mrs. Cochran proceeded through the front door of the store without stopping at the checkout counters. Mrs. Junkin, Mr. Rodgers, and another store employee followed the appellant and Mrs. Cochran out of the store into the parking lot. On the sidewalk in front of the store, Mr. Rodgers shouted something at the appellant and Mrs. Cochran, whereupon the women began to run to a parked automobile. The appellant quickly got into the automobile, locked the doors, and drove away, leaving Mrs. Cochran in the custody of the store employees. One of the employees recorded the appellant’s license plate number as she drove from the parking lot.

In the course of her departure from the scene, the appellant, in her haste, hit Mrs. Cochran’s leg with the bumper of the automobile. However, the injury did not warrant immediate medical attention.

When the police arrived, three items of women’s apparel were found inside Mrs. Cochran’s purse. Mrs. Junkin stated that these items, the personal property of Parisian’s, Incorporated, had not been properly purchased by Mrs. Cochran. Mrs. Junkin did not see any personal property of Parisian’s, Incorporated, in the appellant’s possession.

Mr. Charles Rodgers testified that, in May, 1975, he was employed as assistant store manager at Parisian’s, Incorporated, in Decatur, Alabama. Mr. Rodgers identified the appellant as one of the two women he was summoned to observe by Mrs. Jun-kin. After viewing the women from upstairs in the store, Mr. Rodgers furnished Mrs. Junkin with a walkie-talkie so that he could secretly communicate with her as he observed the women on the main floor of the store. After Mrs. Cochran purchased a pair of shoes, she and the appellant went back to the area where they had been examining merchandise earlier. Mr. Rodgers observed the women taking clothing off the circular display rack, whereupon it disappeared from his view. In a few moments, the women walked to the front door and exited the store. At this point, Mr. Rodgers related the chase and apprehension of Mrs. Cochran and the escape of the appellant in substantially the same detail as Mrs. Jun-kin. Mr. Rodgers recalled that “some shorts and a top” were found in Mrs. Cochran’s possession when she was apprehended (R. p. 43).

On re-direct examination, Mr. Rodgers stated that, in addition to the clothing recovered from Mrs. Cochran, a white blouse was found in the parking lot and returned to the store by a customer. Defense counsel objected to hearsay, and the court gave a curative instruction.

Mrs. Cochran testified that, in May, 1975, she and the appellant went shopping together. While in Parisian’s, Incorporated, Mrs. Cochran purchased a pair of shoes. Afterwards, Mrs. Cochran put two items of clothing into her shopping bag. Mrs. Cochran recalled that the appellant also put two items of clothing into Mrs. Cochran’s shopping bag. Then the two of them walked out of the store to the appellant’s automobile. Mrs. Cochran stated that the items of clothing had not been purchased when they left the store with them in their possession.

Mrs. Cochran stated that she entered a plea of guilty to the charges filed against her. At the time of trial, Mrs. Cochran had been on probation for four or five months.

At the close of Mrs. Cochran’s testimony, the State rested its case. Thereafter, the defense rested its case. The trial judge denied defense counsel’s request for the affirmative charge. Following the trial judge’s oral charge, the case went to the jury.

I

The appellant argues that her conviction should be reversed and remanded because it was based solely on the uncorroborated testimony of an accomplice in violation of § 12-21-222, Code of Alabama 1975. In treating this issue, we will also address the related question of the sufficiency of the evidence in this case.

The statute relied upon by the appellant provides:

“§ 12-21-222. Accomplice’s testimony for felony conviction.
“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient. (Code 1852, § 641; Code 1867, § 4193; Code 1876, § 4895; Code 1886, § 4476; Code 1896, § 5300; Code 1907, § 7897; Code 1923, § 5635; Code 1940, T. 15, § 307.)”

In White v. State, 48 Ala.App. 111, 262 So.2d 313 (1972), this court stated:

“Whether there is sufficient corroborative evidence to go to the jury is a question for the court to decide; whether the evidence is sufficiently corroborated to warrant a conviction is a question for the jury. Fagan v. State, 35 Ala.App. 13, 44 So.2d 634; Smothers v. State, 38 Ala.App. 153, 83 So.2d 374; Freeman v. State, 41 Ala.App. 512, 138 So.2d 56.
“Corroboration, to be legally sufficient, must be unequivocal and of a substantive character. It must be inconsistent with innocence of the defendant and do more than raise a suspicion of guilt. Sorrell v. State, 249 Ala. 292, 31 So.2d 82. Corroborating evidence need not refer to any particular statement or fact testified to by an accomplice, but if it strengthens the probative criminating force of the accomplice’s testimony and tends to connect the defendant with the commission of the offense, it is sufficient to warrant the submission of the case to the jury. Smith v. State, 230 Ala. 413, 161 So. 538; Smothers v. State, 38 Ala.App. 153, 83 So.2d 374; English v. State, 38 Ala.App. 377, 84 So.2d 673.
“Evidence of flight after the crime may be considered as corroborative of the testimony of an accomplice. Prophett v. State, 25 Ala.App. 20, 141 So. 257; Freeman v. State, 41 Ala.App. 512, 138 So.2d 56.”

In the instant case, two non-accomplice witnesses testified to the appellant’s suspicious behavior at the clothing racks with Mrs. Cochran. Upon exiting the store, the appellant and Mrs. Cochran began to run when the assistant store manager shouted at them to stop. Together the circumstances of community of time and place, the circumstance of flight which tends to indicate consciousness of guilt and the direct testimony of two non-accomplice witnesses as to appellant’s suspicious movements sufficiently corroborated, as a matter of law, the accomplice’s testimony such that it was proper to submit the case to the jury. Hence, appellant’s conviction did not violate § 12-21-222, Code of Alabama 1975. See generally, Gamble, McElroy’s Alabama Evidence, § 300.01 (3d Ed. 1975).

II

Appellant next complains that inadmissible hearsay testimony was admitted on several occasions. Appellant contends that this hearsay testimony improperly supplied the corroboration of the accomplice’s testimony which was necessary for conviction.

The testimony in question related to a blouse found by a customer in the parking lot of Parisian’s, Incorporated. When the subject was initially raised on redirect examination of Mrs. Junkin, there was no objection by the defense (R. pp. 31-32). On recross-examination of Mrs. Junkin, the defense went into the source of Mrs. Junkin’s knowledge of where the blouse had been found. It was shown that Mrs. Junkin’s knowledge was not personal, but based on what others had told her. Such questioning by the defense was proper and skillful cross-examination which undermined the credibility of this particular testimony in the minds of the jury.

For the reasons stated, no error appears in the record, and defense counsel’s motion to exclude this testimony was properly overruled. Morris v. State, 268 Ala. 60, 104 So.2d 810 (1958).

The trial judge moreover strengthened his ruling with the following instruction (R. p. 34):

“THE COURT: Well, I don’t remember exactly what the testimony was, but I will give the jury this instruction: You and you alone decide what the testimony was, and you pass on it. If the witness has testified to something that she couldn’t know about, you wouldn’t consider that or you would consider the fact that she was not in a position to observe or narrate either one. I think it was basically a question of cross-examination.”

During the testimony of Mr. Rodgers, the subject of the blouse was again broached (R. pp. 50-51):

“Q. Where was it found?
“A. Out in the parking lot.
“Q. What part of the parking lot?
“A. Lady said she found it right out in front of the store.
“MR. SLATE: Then we would move to exclude that it was found out in the parking lot and what the lady said, and so forth.”
“MR. SLATE: Objection is the witness just testified in answer to was one recovered in the parking lot. The witness said, ‘Yes.’ No objectionable ground there for all it appears. Then he said, ‘What part of the parking lot.’ Then he said the lady said it was thus and so, which leaves a strong inference what was said about where it was found was what the lady told him. I move to exclude that and what the lady said.
“THE COURT: What the lady said I will grant your motion, but that is as far as I will go with it.”

Thus, it appears from the record that the trial judge excluded that portion of the witness’ answer which was objectionable. Hence, there was no error.

We have carefully reviewed the record in this cause and find same to be free of error. Therefore this cause is due to be and is hereby

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Mary Kathryn BAGGETT.
    78-373.
    Supreme Court of Alabama.
    April 27, 1979.
   MADDOX, Justice.

Writ Denied.

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


author: CLARK, Retired Circuit Judge.

text:
    James Vincent SUAREZ v. STATE.
    3 Div. 34.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.

      Stephen M. Langham, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

This is an appeal from a judgment denying appellant’s petition for a writ of habeas corpus after a hearing at which testimony was presented.

According to the record of the pleadings and the evidence, on May 13, 1975, appellant entered a plea of guilty in the Circuit Court of Orange County, Florida, to the crime of uttering a forgery. He was placed on probation for a term of four years commencing on August 27, 1975. The terms of his probation included the following:

“(4) You will live and remain at liberty without violating any law.' A conviction in a court of law shall not be necessary in order for such a violation to constitute a violation of your probation.
“(9) You will pay a Public Defender Lien in the amount of Four Hundred Dollars payments to be made according to a schedule furnished by your Probation Supervisor.
“(10) You will make restitution in an amount and payments to be made according to a schedule furnished by your Probation Supervisor.”

On October 15, 1976, the Probation Supervisor made an affidavit that appellant had not properly conducted himself but had violated the conditions of his probation as follows:

“Violating condition (4) in that the aforesaid did, between 4-28-76 and 5-19-76, write eight checks totaling $1,215.00 to Skaggs V. Albertson Store in Altamonte Springs, Florida, for which he received cash and merchandise, which were returned for insufficient funds.
“Violating condition (9) in that the aforesaid has paid only $100.00 of his $400.00 due to the Public Defender’s Office despite the agreement on 10-27-75 and 4-27-76, to pay $50.00 per month toward liquidation of this obligation.
“Violating condition (10), in that the aforesaid has failed to make any payments on the restitution owed, despite his agreement on 4-27-76 to pay $100.00 per month toward liquidation of this obligation.
“Violating condition (4), in that the aforesaid has failed to pay the $10.00 per month cost of supervision required by the State of Florida and, as of 9-16-76, was $120.00 in arrears despite repeated warnings to take care of this obligation.”

On the basis of the foregoing affidavit sworn to before a judge of the Circuit Court of Orange County Florida, the judge issued a warrant on March 23, 1977, for the arrest of appellant. On April 6, 1978, a “State Attorney” of Florida made a verified written application to the Governor of Florida for requisition to be issued to the Governor of Alabama for the return of appellant to Florida, stating in the application that he understood that appellant was then at Prattville, Alabama. Pursuant thereto, the Governor of Florida on April 18, 1978, issued a respectful demand of the Governor of Alabama for the arrest and delivery of appellant, and on April 28, 1978, the Governor of Alabama issued a rendition warrant for appellant, which was executed by the Sheriff of Autauga County.

Appellant makes the same contention that was made by appellant in Warner v. State, 52 Ala.App. 361, 292 So.2d 480 (1974), that the extradition proceeding was viola-tive of Ala.Code 1975, § 15-9-48, as follows:

“Nothing in this chapter [a chapter dealing with Criminal Extradition] shall be construed as authorizing the extradition of any person in this State to any other state where the extradition proceedings, directly or indirectly, seek to aid in the collection of any debt, demand or claim against the party sought to be extradited.”

Although there is some difference between the facts in the case under review and the facts in Warner, the conclusion reached in Warner is adversely dispositive of appellant’s contention here. We see no need to repeat the comprehensive consideration of substantially all of the reported cases in Alabama in which the quoted Code section had been relied upon to prevent extradition, some successfully and others futilely. Some of the facts in the instant case are more favorable to appellant than the facts in Warner; some are less favorable.

Appellant’s testimony on the habeas corpus hearing was to the effect that he had not been financially able to pay the Skaggs-Albertson Store in Altamonte Springs, Florida, any of the sum of one thousand two hundred fifteen dollars, which represented the price of the merchandise and cash received by him from such store, and for which he had given eight checks at the time which had been returned by reason of insufficient funds. His testimony does not attempt to show that his conduct in obtaining such merchandise and money by the issuance of eight worthless checks did not constitute a violation of law of Florida and did not constitute a violation of condition (4) of the order of probation.

As to appellant’s violation of condition (10) of the probation order, in failing to make any restitution for the crime that he had admitted by his plea of guilty, we again note as we did in Warner that such a condition of probation is not in conflict with the statutory express policy of Alabama, as evidenced by Ala.Code 1975, § 15-22-52(8).

It is not necessary for us to consider the other alleged violations of the order of probation, but we note that as to them in allegedly failing to pay for some of the costs of supervision, the particular condition is not out of harmony with Alabama Acts 1976, No. 638, p. 887, and Acts 1977, No. 414. Ala.Code 1975, 1977 Cum.Supp., § 15-22-2.

There has been nothing presented, on the habeas corpus hearing or otherwise, that warrants a conclusion that any legal entity other than the State of Florida, in its sovereign capacity and under its duty as such, showed any interest whatever in extraditing appellant to Florida for the purpose of a hearing on a judicial proceeding to determine whether he has violated an order placing him on probation, to which he was not entitled as a matter of right, but which was granted him as a matter of grace. Warner v. State, supra. Whether his claimed impecunious circumstance warrants a finding that he has not violated any of the conditions of the order of probation is not for us, and it was not for the trial court, to decide. To attempt to do so would be a usurpation upon the exclusive function of the court that placed him on probation. His recourse against injustice, including possibility of his being imprisoned for debt, is in the Circuit Court of Orange County Florida, with further recourse, if justice requires, in the appellate courts of that state and in the Supreme Court of the United States. As stated by Mr. Justice Cardozo, Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 820, 79 L.Ed. 1566, 1569 (1935):

“ . . The charge against him may have been inspired by rumor or mistake or even downright malice. He shall have a chance to say his say before the word of his pursuers is received to his undoing. This does not mean that he may insist upon a trial in any strict or formal sense. Burns v. United States, supra (287 U.S. 216, at pages 222, 223, 53 S.Ct. 154, 77 L.Ed. 266, 270). It does mean that there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper. Ibid. That much is necessary, or so the Congress must have thought, to protect the individual against malice or oppression. Almost equally it is necessary, if we read aright the thought of Congress, for the good of the probation system with all its hopes of social betterment.”

During the hearing on the petition for habeas corpus the State proceeded to show by Autauga County Sheriff Robert Turner as a witness that he had received in the mail several documents, duly certified, including photocopies or certified copies of several documents, including the order of court placing appellant on probation, warrants, application for extradition, the demand for requisition by the Governor of Florida and the rendition warrant of the Governor of Alabama mentioned above; then the following occurred:

“MR. DAVID BARNES: Your Honor, we’d like to offer these papers in evidence. (Indicating)
“MR. STEVE LANGHAM: I’m going to object. The proper predicate hasn’t been laid.
“MR. GLEN CURLEE: In what respect?
“MR. STEVE LANGHAM: I don’t have to — I’m saying that the proper predicate has not been laid for the introduction of the papers — It hasn’t
“THE COURT: All right. In the face of only a general objection, the Court overrules. _
“MR. STEVE LANGHAM: Your Honor, I laid a specific objection. I stated the proper predicate has not been laid.
“THE COURT: All right, I overrule the objection. State’s Exhibit One is admitted.”

The particular documents, or copies thereof, were those in the possession of the sheriff and which constituted the basis of the return made by him to the writ of habeas corpus. They were regular and fair on their face, and the authenticity of them is not questioned.

Appellant still contends that the proper predicate was not laid for the introduction of the documents. He says,

“No other [other than the testimony of the sheriff that he received the documents in the mail] identification, authentication or predicate was laid prior to the introduction of these documents into evidence. There was no showing, prior to their introduction, that the instruments in question had any bearing or relationship with any issue in the habeas corpus proceeding.”

We disagree. The documents had a direct bearing on and relationship with the issue. This contention, moreover, was not the contention made by appellant as to the admissibility of the documents. His insistence on the trial was that the proper predicate had not been laid, but he did not show, and still does not show, any need for á predicate. Furthermore, if there had been need for a predicate, it was not made known to the trial judge how or wherein such predicate was needed. The trial court was not in error in overruling appellant’s objection to the admission in evidence of the documents.

Even where a predicate is required for the admission of particular testimony and “where a predicate has in fact been laid,” an objection that a proper or a sufficient predicate has not been laid is a “general objection merely, and will not be referred to any specific objection which could have been obviated if pointed out at the time.” Southern Railway Company v. Dickson, 211 Ala. 481, 487, 488, 100 So. 665, 671 (1924).

In Warner v. State, supra, we observed that in such case, unlike many previous cases, there had been a conviction of a crime by a court of the demanding or requisitioning state. Although no point has apparently been made in this case to the effect that no actual conviction of appellant had taken place in Florida, we should note, we think, that after the entry of defendant’s guilty plea in the Florida forgery case, the court did not make an adjudication of guilt but “withheld adjudication of guilt and the imposition of sentence and placed the aforesaid on probation ... in accordance with the provisions of Chapter 948, Florida Statutes.” We believe that it is not our province to pass upon the validity of the Florida probation procedure, which in this particular respect is different from that of Alabama, especially in the absence of any question as to the point, but we do note that it has been held that the acceptance of a plea of guilty and the withholding of an adjudication of guilt and the imposition of sentence and placing the defendant on probation, in accordance with the Florida statute, is the equivalent of a conviction. State v. Gazda, Fla., 257 So.2d 242 (1971); United States v. Hartsfield, 387 F.Supp. 16 (1975).

The judgment appealed from should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.

      . There seems to be no contention by either party as to the respective lengthy time intervals involved. It appears that there were unrelated charges pending against appellant in Au-tauga County and that appellant had been in Alabama, living in Cullman County, for a considerable period.


author: ALMON, Justice.

text:
    Ex parte James Vincent SUAREZ.
    78-425.
    Supreme Court of Alabama.
    April 20, 1979.
   ALMON, Justice.

Writ Denied.

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


author: BOWEN, Judge.

text:
    Dennis Alphonso WEATHERFORD v. STATE.
    5 Div. 428.
    Court of Criminal Appeals of Alabama.
    Feb. 20, 1979.
    Rehearing Denied March 27, 1979.

      Benjamin E. Pool, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was convicted for rape and sentenced to thirty years’ imprisonment. Ten separate grounds for reversal of the conviction are asserted on appeal.

I

It was not error for the trial judge to excuse the police officer in charge of the investigation from a general order excluding witnesses from the courtroom. It is within the discretion of the trial judge to excuse some witnesses and not others from the operation of “the rule” of exclusion. That discretion has been upheld in the following cases involving the excusal of law enforcement officers. Webb v. State, 100 Ala. 47, 14 So. 865 (1894); Lewis v. State, 55 Ala.App. 140, 313 So.2d 566 (1975); James v. State, 52 Ala.App. 389, 293 So.2d 305 (1974); Goodman v. State, 52 Ala.App. 265, 291 So.2d 358 (1974); Browning v. State, 51 Ala.App. 632, 288 So.2d 170 (1974); Denson v. State, 50 Ala.App. 409, 279 So.2d 580 (1973); DeFranze v. State, 46 Ala.App. 283, 241 So.2d 125 (1970); Elrod v. State, 281 Ala. 331, 202. So.2d 539 (1967); Ledbetter v. State, 34 Ala.App. 35, 36 So.2d 564, cert. denied, 251 Ala. 129, 36 So.2d 571 (1948); McKenzie v. State, 26 Ala.App. 295, 158 So. 773 (1935); Wright v. State, 1 Ala. App. 124, 55 So. 931 (1911). See also C. Gamble, McElroy’s Alabama Evidence, § 286.01 (3rd ed. 1977).

While the discretion of the trial judge is not an arbitrary one and must not be abused, permitting one law enforcement officer to remain in court during the presentation of the evidence, notwithstanding the rule to exclude witnesses, is a common and usual practice.

At trial defense counsel gave no reason for his objection to the officer’s presence in the courtroom. In the absence of any clear showing of the abuse of the discretion of the trial court and actual prejudice to the appellant we find no error.

II

Error is also predicated upon the in-court identification of the appellant by the prose-cutrix.

The rape occurred between 10:30 and 12:00 on the night of August 10, 1977. At 8:00 the next morning the prosecutrix went to the Auburn Police Department, reported the offense and gave a description of her assailant. A detective then took her to a small room where she viewed the appellant through a “two way mirror”. The appellant was in custody on another charge when the showup took place. The prosecutrix testified that she “insisted on seeing the person who was in jail”, that she “immediately recognized” him and that she was never shown any photograph before the identification procedure.

This court has previously considered the “showup”, its propriety, and its admissibility in evidence. Brazell v. State, Ala.Cr. App., 3 Div. 849, 369 So.2d 25 (Ms. June 20, 1978).

“Though the practice of showing a suspect singly to persons for purposes of identification, and not as part of a lineup, has been widely condemned, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), the admission of evidence of a showup without more does not violate due process of law. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Annotation: Admissibility of Evidence of Showup Identification as Affected by Allegedly Suggestive Showup Procedures, 39 A.L.R.3d 791 (1971).
“Convinced of the dangers of eyewitness identification, the United States Supreme Court has established constitutional and procedural safeguards surrounding the use of such testimony. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall, supra; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson, supra; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).
“Whether an out-of-court identification procedure has violated due process depends upon the ‘totality of the circumstances’. Stovall, supra; Simmons v. U. S, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Coleman, supra; Biggers, supra. This totality of the circumstances test is the standard in deciding whether an identification procedure is unnecessarily suggestive and conducive to irreparable mistaken identification. Caver v. Alabama, 537 F.2d 1333 (5th Cir. 1973). Under this test the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal act at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation. Biggers, 93 S.Ct. 382; Robinson v. State, 45 Ala.App. 236, 228 So.2d 850 (1969). Against these factors is to be weighed the corrupting effect of the suggestive identification itself.
“In determining the constitutional adequacy of pretrial identification procedures and the admissibility of identification testimony, the central question is whether, under the totality of the circumstances, the identification was reliable. Manson, supra. This determination involves the application of a two-pronged test.
“(T)he required inquiry is two-pronged. The first question is whether the initial identification procedure was ‘unnecessarily’ (Stovall) or ‘impermissibly’ (Simmons) suggestive. If it is found to have been so, the court must then proceed to the question whether the procedure found to have been ‘unnecessarily’ or ‘impermissi-bly’ suggestive was so ‘conducive to irreparable mistaken identification’ (Stovall) or had such a tendency ‘to give rise to a very substantial likelihood of irreparable misidentification’ (Simmons) that allowing the witness to make an in-court identification would be a denial of due process. United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir. 1970). “Suggestiveness is inherent in the show-up identification procedure. Wall, EyeWitness Identification In Criminal Cases, p. 28. Nevertheless, prompt, on-the-scene confrontation may be consistent with good police work. Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623 (1973); Payne v. State, 48 Ala.App. 401, 265 So.2d 185, cert. denied, 288 Ala. 748, 265 So.2d 192, cert. denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669 (1972); Robinson v. State, 55 Ala.App. 658, 318 So.2d 354 (1975). One-on-one confrontations conducted shortly after the commission of the crime may be justified for they allow the ‘fresh’ identification before memory has dimmed or the suspect has changed his clothing, the prompt release of innocent persons, and the continuation of the search for the perpetrator with a minimum of delay. Wall, p. 38. For these considerations to be effective, the on-the-scene identification must be prompt. Carter v. State, Ala.Cr.App., 340 So.2d 94, 98 (1976). (‘Our consideration of Robinson, the supporting authorities cited therein, and other authorities on the subject, convinces us that most, if not all, of the applicable cases have involved periods of time of less than an hour between the crime and the confrontation.’)”
* * * * * *
“It is mere sophistry to argue that the showup was not unnecessarily suggestive. A showup by its inherent nature is suggestive because the witness is given no other choice. However it is permitted where conducted promptly after the commission of a crime or demanded by necessity, emergency or exigent circumstances.”
******
“If, despite the violation of due process standards, the prosecution can establish by clear and convincing evidence that the in-court identification testimony, rather than stemming from the unfair pretrial confrontation, has an independent source, the in-court testimony need not be excluded. Wade, 87 S.Ct. 1939.”

There is no contention that the showup was unnecessarily suggestive or tainted apart from that suggestiveness inherent in any showup procedure.

The testimony of the prosecutrix is clear and convincing that her in-court identification of the appellant was based on an independent source and did not stem from any unfair pretrial confrontation. When she saw her assailant standing near her bed she “recognized him immediately. He had been at my house February before.” Though the prosecutrix gave the police a description of her assailant, the record contains no description or picture of the appellant and hence we cannot determine the degree to which the description given by the prosecu-trix fit the appellant. However we note that on cross examination of the prosecu-trix on this point defense counsel attempted to impeach her description only by showing that the appellant was “in the vicinity of six foot or six foot-one” with his shoes on while the victim described her assailant as approximately five foot eight inches with his shoes off. This discrepancy goes to the credibility of the victim’s identification rather than its admissibility. The prosecu-trix never waivered in her identification of the appellant.

There is simply no evidence that the showup tainted the victim’s in-court identification. Liptroth v. State, 342 So.2d 959 (Ala.Cr.App.), cert. denied, 342 So.2d 961 (1977); Thomas v. State, 50 Ala.App. 227, 278 So.2d 230 (1973). The appellant’s argument that the one man showup identification procedure is a per se violation of due process is not supported by legal precedent. The argument that this particular procedure violated the appellant’s constitutional rights is not supported by the facts.

Ill

The appellant asserts that it constituted “gross prosecutorial misconduct” and denied him his constitutional right to a public trial for the District Attorney to order a spectator not to return to the courtroom during the trial.

During the cross examination of the pros-ecutrix there was an off-the-record discussion between the Court and the attorneys for both sides. Apparently the District Attorney mentioned that a spectator was causing a problem and the trial judge “asked him to speak to the spectator in this regard”. The jury was then sent back to the jury room. Outside of the courtroom and out of the hearing and presence of the jury, the District Attorney told the spectator to “stay out of the courtroom unless called as a witness”. The prosecutor stated that his action was prompted because the spectator was sitting close to the jury and “snickering” at the testimony of the prose-cutrix. Neither the judge nor defense counsel observed or overheard any of this conduct.

When the District Attorney announced ready to proceed and informed the court of his actions, defense counsel objected and the trial judge immediately ordered a recess in order that the spectator could be found and returned to the courtroom. When the spectator was not found during that recess defense counsel moved for a mistrial and the trial judge ordered another recess to allow additional time to find the spectator.

Later that same afternoon the spectator, Howell Rowell, returned to the courtroom. He was placed under oath and testified that he was leaving the courtroom at approximately 2:25. When he got to the door the District Attorney told him that he could not return. Mr. Rowell stated that he did not return to the courtroom until 4:30 when the judge sent for him and that because of the prosecutor’s remarks he was afraid to return. He testified that he was a friend of the appellant’s and that he found the testimony of the prosecutrix “certainly amusing”.

During Mr. Rowell’s absence a newspaper reporter and other spectators were present in the courtroom. Though asserted in brief there is no evidence that Mr. Rowell was the only friend of the appellant in the courtroom.

The trial judge overruled the defense motion for a mistrial and instructed Mr. Ro-well that he was welcome to remain in the courtroom, that the trial was open to the public, and that he had done nothing to curtail that right.

The right to a public trial is guaranteed by Section 6 of the Alabama Constitution of 1901. The words “public trial” mean “trials as usually and generally conducted, where the courthouse is open to practically anyone who may wish to attend, and do not mean one where the public is so generally excluded as to confine the attendants to those engaged and interested in the trial and the relatives of the parties”. Wade v. State, 207 Ala. 1, 2, 92 So. 101, 102 (1921).

“ ‘The constitutional right to a public trial is not a limitless imperative.’ Lacaze v. United States, 5 Cir., 1968, 391 F.2d 516, 521. The fact that some members of the public were barred from the courtroom does not necessarily mean that a denial of a public trial has occurred; the ‘decision must turn on the particular circumstances of the case, and not upon a question-begging because abstract and absolute right to a “public trial”.’ Levine v. United States, 362 U.S. 610, 616-617, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960). See also 6 Wigmore on Evidence § 1835 at 338.” Aaron v. Capps, 507 F.2d 685, 687 (5th Cir.), cert. denied, 423 U.S. 878, 96 S.Ct. 153, 46 L.Ed.2d 112 (1975).

The requirement of a public trial “is not absolute in the sense that a defendant has the right to have any particular person present under all circumstances during the course of the trial”. United States ex rel. Laws v. Yeager, 448 F.2d 74, 80 (3rd Cir. 1970).

It is generally recognized that a judge has the inherent power to preserve order and decorum in the courtroom and that in the exercise of such power he may eject spectators without infringing an accused’s right to a public trial. 48 A.L.R.2d 1436 at 1448. “If the conduct of a spectator admitted to a criminal trial interferes with the administration of justice, he may be removed. Such removal does not constitute a denial of any right of the public or the accused to a public trial.” Williams v. State, 57 Ala.App. 158, 163, 326 So.2d 686, 691 (1975), cert. denied, 295 Ala. 428, 326 So.2d 692 (1976). An order excluding certain spectators from the courtroom does not deny the accused a public trial where it appears to the trial judge that a witness was being intimidated by certain persons in the courtroom. United States ex rel. Bruno v. Herold, 408 F.2d 125 (2d Cir. 1969), cert. denied, 397 U.S. 957, 90 S.Ct. 947, 25 L.Ed.2d 141 (1970); United States ex rel. Orlando v. Fay, 350 F.2d 967 (2d Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021 (1966).

A similar factual situation was present in Commonwealth v. Burton, 459 Pa. 550, 330 A.2d 833 (1975). There, as here, the District Attorney ordered a spectator out of the courtroom.

“(O)n the fifth day of the seven-day trial, when Mrs. Williams (the Commonwealth’s main witness) was scheduled to testify, the district attorney requested court personnel to keep appellant’s wife out of the courtroom, explaining that appellant’s wife had threatened Mrs. Williams. The district attorney also ordered all members of the Black Panthers kept out of the trial while Mrs. Williams testified. Pursuant to this request, other members of appellant’s family were also accidentally excluded. When this came to light, on the day following Mrs. Williams’ testimony, appellant’s counsel moved for a mistrial, which motion was denied. While it is true, as appellant argues, that the district attorney had no authority to exclude spectators, after the trial judge was made aware of the situation, he ratified the actions of the district attorney at least insofar as appellant’s wife and members of the Black Panthers were concerned. This presumably was based upon the judge’s determination that appellant’s wife and the Black Panthers might cause the witness, Mrs. Williams, to change her testimony out of fear. See United States ex rel. Laws v. Yeager, 448 F.2d 74 (3rd Cir. 1971), Commonwealth v. Principatti, 260 Pa. 587, 104 A. 53 (1918). With regard to those members of appellant’s family who had been excluded by mistake, we note that the situation was immediately corrected when it was brought to the attention of the court. Under the circumstances, we do not believe that appellant was denied the right to a public trial.” Burton, 330 A.2d at 837 (emphasis added).

While we recognize the general rule that, where the accused has been denied a public trial, prejudice will be presumed without the burden being placed upon the accused to show actual prejudice, 48 A.L.R.2d at 1454, no argument has been advanced that Mr. Rowell’s absence injured or prejudiced the appellant. Under the circumstances of this case we do not think that the exclusion of this one spectator denied the appellant his right to a public trial.

IV

On cross examination defense counsel asked the prosecutrix if she had ever seen a psychologist on a professional basis. Receiving an affirmative response he then established that she had never seen a psychologist or a psychiatrist prior to August of 1977, the month she was raped.

This inquiry properly allowed the State to show that the prosecutrix had received psychiatric or psychological help after August of 1977. Brothers v. State, 236 Ala. 448, 452, 183 So. 433 (1938); Kroell v. State, 139 Ala. 1, 36 So. 1025 (1904).

A party may go into any matter gone into by the adverse party and explain anything to his detriment. Gilbert v. City of Montgomery, 337 So.2d 140 (Ala.Cr.App. 1976); Craven v. State, 22 Ala.App. 39, 111 So. 767 (1927). A party who has brought out evidence on a certain subject has no valid complaint as to the action of the trial court in allowing his adversary to introduce evidence on the same subject. Brock v. State, 54 Ala.App. 310, 307 So.2d 707 (1975); Mitchell v. State, 42 Ala.App. 41, 151 So.2d 752, cert. denied 275 Ala. 696, 151 So.2d 761 (1962).

V

It was not error to allow the prose-cutrix to testify to the details of an incident occurring on her front porch on a night in February, 1977, when the appellant exposed himself to her.

In a rape charge, the State may prove, as tendings to show a sexual passion in the accused for the alleged victim, acts by the accused prior to the alleged rape indicating a sexual passion for the victim. Barnes v. State, 88 Ala. 204, 7 So. 38 (1890); Pope v. State, 10 Ala.App. 91, 64 So. 526 (1914). The identity exception to the general rule excluding evidence of prior and subsequent crimes when their only probative value is to show in the defendant a tendency or disposition to commit the now-charged crime “seems to have taken on a more liberal definition when the defendant is charged with a sex crime such as rape. In such cases the courts seem to allow proof of other similar crimes by the accused if they, in any way, go to identify him as the person who committed the now-charged crime.” McElroy § 70.01(22)(b).

“If the accused’s commission of another crime is admissible . ., the State may prove in meticulous detail the manner in which the accused committed the other crime.” McElroy § 69.02(8). See Bynum v. State, 348 So.2d 804 (Ala.Cr.App.), cert. quashed, 348 So.2d 828 (Ala.1976); McDonald v. State, 57 Ala.App. 529, 329 So.2d 583, cert. quashed, 295 Ala. 410, 329 So.2d 596 (1975).

Though not involving evidence of a prior criminal act, in Miney v. State, 262 Ala. 193, 78 So.2d 262 (1955), it was held that, in a prosecution for rape, the testimony of the prosecutrix as to the events which involved the defendant and which happened on the day prior to the offense was admissible on the question of identification. This evidence was admissible under the rule that antecedent circumstances tending to shed light on the transaction or elucidate the facts or show preparation to commit the crime are always admissible in evidence.

Additionally on cross examination of the prosecutrix defense counsel brought out the fact that she had not filed a report with the police with regard to the incident in February. At this point in the trial there had been no indication in any of the testimony that there could or should have been anything reported to police concerning the encounter between the prosecutrix and the appellant in February. This opened the door for the State, on redirect examination, to go into this matter and show the circumstances connected with it. Thames v. State, 10 Ala.App. 210, 64 So. 648 (1914). On redirect examination the State may explain or rebut discrediting facts brought out by the defense. Payne v. Roy, 206 Ala. 432, 90 So. 605 (1921); Jones v. State, 22 Ala.App. 141, 113 So. 478 (1927); Whatley v. State, 144 Ala. 68, 39 So. 1014 (1906).

VI

The appellant contends that the consent to search was not knowingly, intelligently, and voluntarily given and that a search warrant was required.

Proper consent may constitute a waiver of Fourth Amendment rights, Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946), and makes a search warrant wholly unnecessary. Toston v. State, 333 So.2d 161 (Ala.Cr.App.1976). The voluntariness of consent to search is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Smith, 543 F.2d 1141 (5th Cir. 1976).

The failure to inform the accused of his right to refuse is a factor to consider in determining voluntariness but is not to be given controlling significance. United States v. Smith, 543 F.2d 1141, 1143 (5th Cir. 1976). “While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2048. The burden of proving that the consent was, in fact, freely and voluntarily given rests upon the prosecution. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). “The State must prove that there was no duress or coercion, express or implied. The consent must be unequivocal and specific, and freely and intelligently given. There must be clear and positive testimony.” Hardy v. State, 53 Ala.App. 75, 78, 297 So.2d 399, 402 (1974).

Here the trial court, on conflicting evidence, found that the consent to search was voluntarily given. We apply the same rules in reviewing a trial judge’s determination of the voluntariness of a consent to search as we do in reviewing his determination of the voluntariness of a confession. Thus when conflicting evidence is presented on the issue of the voluntariness of a consent to search and the trial judge finds that the consent was voluntarily given, great weight must be given his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Sullivan v. State, 340 So.2d 878, 880-881 (Ala.Cr.App.), cert. denied, 340 So.2d 881 (Ala.1976).

Though it is argued that the appellant was intoxicated and had been without sleep for some time there is also credible evidence to the contrary and sufficient to support the finding of voluntariness made by the trial judge.

VII

Over the objection of defense counsel Detective Downing was permitted to testify that the appellant was arrested and booked, on a charge of indecent exposure on the morning after the rape. It was on this charge that the appellant was being held when viewed by the prosecutrix.

Any error in the admission of this testimony was cured when defense counsel, in attempting to prove the legal insanity of the appellant at the time of the crime, introduced the testimony of Dr. Edwin Conrad Seger, Chief Psychologist on the Forensic Unit at Bryce Hospital, that the appellant “got arrested several times as being a peeping Tom and ‘voyeurism’, it’s called”; that “he’s also been arrested several times for indecent exposure” and that the appellant has a “long history” of “peeping Tom, exhibitionism, and things of that nature”. This testimony of the appellant’s own witness in response to questions from his own attorney eradicated any possible prejudice that may have resulted from Detective Downing’s testimony. Strickland v. State, 151 Ala. 31, 44 So. 90 (1907); Thompson v. State, 53 Ala.App. 484, 301 So.2d 248 (1974); McKenzie v. State, 33 Ala.App. 7, 33 So.2d 484, cert. denied, 250 Ala. 178, 33 So.2d 488 (1948).

VIII

The appellant contends that the State failed to prove a sufficient degree of force to constitute rape and therefore his motion to exclude the State’s evidence was due to be granted. In brief he argues that:

“The evidence was to the effect that there was no fight between the alleged victim and the Defendant; that there was no affirmative evidence of a struggle; that there was no evidence that any blows or punches were exchanged or inflicted; that there was no evidence that the prosecuting witness scratched or attempted to scratch the Defendant; that there was no evidence that the alleged victim screamed out in despair or hollered for help; that there was no evidence that the Defendant offered to kill the alleged victim or do her serious bodily harm. In fact, the alleged victim testified that the only thing that the Defendant said to her which could be construed as a threat was, ‘keep quiet and you won’t get hurt’.”

The prosecutrix was startled from her sleep in her own bedroom by a male who was standing near her bed. From what she could see of the individual, he was “stripped to the waist”. The prosecutrix testified that she “was so dumbfounded and it happened so quickly — he was on top of me immediately”. She was told to “keep quiet and you won’t get hurt”. The appellant “moved”, “pulled”, “dragged” and “wrestled” her around on the bed because she resisted by “locking” her legs and thighs. She tried to push herself away and thought about screaming but did not think that she would be heard. The prosecutrix testified that the appellant had her “pinned down” and it was impossible to hit him. She stated that she was in a state of shock and was bruised on her arms and legs though a physician found no evidence of any bruises the next day. The prosecutrix told the physician that there was “no struggle” and his report states that “no nail bed specimen is taken as the patient states she did not scratch or resist in this way”.

To constitute rape, the degree of force used need not be such as to place the victim under such reasonable apprehension of death or bodily harm as to overpower her will, it being sufficient that she was under such duress that the act was accomplished against her consent. Brummitt v. State, 344 So.2d 1261 (Ala.Cr.App.1977); Cole v. State, 19 Ala.App. 360, 97 So. 891, cert. denied, 210 Ala. 179, 97 So. 895 (1923). “The force necessary to be used, to constitute the crime of rape, need not be actual, but may be constructive or implied. An acquiescence to the act obtained through duress or fear of personal violence, is constructive force, and the consummation of unlawful intercourse by the man thus obtained would be rape.” Shepherd v. State, 135 Ala. 9, 12, 33 So. 266, 267 (1903).

“An acquiescence obtained by duress, or fear of personal violence, will avail nothing, the law regarding such submission as no consent at all. If the mind of the woman is overpowered by a display of physical force, through threats, expressed or implied, or otherwise, or she ceases resistance through fear of great harm, the consummation of unlawful intercourse by the man would be rape. 1 Whart. Cr. Law, § 557; 2 Bishop Cr. Law, (7th Ed.), § 1125; 3 Greenl.Ev., (14th Ed.), § 211.” McQuirk, 84 Ala. 435, 437, 4 So. 775, 776 (1887).

The offense of rape is complete when unlawful intercourse is accomplished by overcoming resistance, and procuring submission by means of threats, though there may be no intention in fact to apply actual force. Taylor v. State, 249 Ala. 130, 30 So.2d 256 (1947); Norris v. State, 87 Ala. 85, 87, 6 So. 371 (1888).

“While the law arms a woman who is assaulted by a man with the intent to ravish her with the right to stand her ground, and, if necessary, to kill her assailant to protect her person from the gratification of his lust, the law does not compel her so to do. All of the circumstances surrounding the commission of the alleged crime are to be considered, and whether the prosecutrix does or does not repel force by force, or resist her assailant to the uttermost, if the act of penetration is actually accomplished by what, in law, amounts to legal force, and against the will of the prosecutrix, the defendant is guilty of rape. The relative size of the parties, the age of each, their social and racial differences, and the absence of efforts on the part of the prose-cutrix to avoid the act are all matters to be.weighed by the jury on the question as to whether all the necessary elements of the crime exist, but when all the elements of the crime do exist the crime is one of rape, although the prosecutrix may have made no effort to resist.” Herndon v. State, 2 Ala.App. 118, 125-126, 56 So. 85, 87 (1911).

Under the facts outlined the State presented prima facie evidence of the elements of rape and the trial judge properly submitted the case to the jury.

IX

The appellant’s objection to the closing argument was sustained. There was no motion to exclude and no request for the court to specifically instruct the jury not to consider the improper argument in their deliberations. Boles v. State, 19 Ala.App. 184, 186, 95 So. 909 (1923). There was no motion for new trial. Since no adverse ruling was obtained in the trial court there is nothing for this court to review. Moore v. State, 48 Ala.App. 719, 722, 267 So.2d 509 (1972).

X

The trial judge denied the appellant’s pretrial motion to take the deposition of the prosecutrix. This motion was made pursuant to that portion of Section 12-21-260(a), Code of Alabama 1975, which provides:

“The defendant may take the deposition of any witness . . . where the defense, or a material part thereof, depends exclusively on the testimony of the witness.”

In the motion it was asserted that “the Defendant has advised this attorney that he has no remembrance of the events which allegedly transpired on the date in question; therefore, at this stage, the defense depends exclusively on the testimony of the said” prosecutrix. , In denying the request the trial judge noted:

“The defendant’s trial has been continued pending a psychological examination of the said defendant and there is no showing that the . . (prosecutrix), is unavailable for examination by the defendant, and further, the showing is insufficient that the defense rests exclusively on the testimony of the said Nancy Bush. Rather, it appears that . (the prosecutrix) is the primary witness for the prosecution, rather than the defendant. It further appears that the said . (prosecutrix) is not absent from the State of Alabama.”

We uphold the ruling of the trial judge denying the motion. Here the defense or a material part thereof did not depend exclusively on the testimony of the prosecutrix. At trial the defense was not consent. The appellant testified that he had never seen the prosecutrix before and that, although highly intoxicated on the date the crime was committed, he never raped anyone as far as he remembers, The request was properly denied.

We have searched the record and finding no error prejudicial to the appellant we affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Dennis Alfonso WEATHERFORD.
    78-435.
    Supreme Court of Alabama.
    April 20, 1979.
   BLOODWORTH, Justice.

Writ denied.

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


text:
    Arlene LEONARD v. STATE.
    6 Div. 920.
    Court of Criminal Appeals of Alabama.
    March 6, 1979.
    As Corrected On Denial of Rehearing March 27, 1979.

      David S. Hassinger, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen. and Larry R. Newman, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted for the stabbing death of Theodore Hemphill and convicted of second degree murder. Sentence was fixed at fifteen years’ imprisonment.

I

At trial defense counsel attempted to prove the deceased’s reputation for violence. The State’s objections to questions addressed to this subject were sustained on “the basis of the predicate”.

The established rule is that proof of “the victim’s bad general reputation for peace and quiet, violence or like trait is admissible only if the evidence before the trial court, at the time such general reputation is offered, tends to show that the accused acted in self-defense”. G. Gamble, McElroy’s Alabama Evidence, Section 33.-01(2) (3rd ed. 1977); see also McCaghren v. State, 52 Ala.App. 509, 294 So.2d 756, reversed on other grounds, 292 Ala. 378, 294 So.2d 766 (1973). Additionally, in proving a person’s general reputation, the question to the character witness should be directed to the “general reputation” of such person and not simply to his “reputation”. Watson v. State, 181 Ala. 53, 61 So. 334 (1913); McElroy, Section 26.02(4). Furthermore any evidence of a victim’s bad general reputation for violence or similar trait must be limited to the time of or to a time prior to the alleged offense. Standard v. State, 51 Ala. App. 176, 283 So.2d 627 (1973). The record supports the court’s ruling that there was no proper predicate to allow proof of the deceased’s reputation for violence.

II

An indigent defendant is not entitled to a free transcript of the testimony taken at his preliminary hearing. Williams v. Jasper, 47 Ala.App. 91, 250 So.2d 699, cert. denied with opinion, 287 Ala. 237, 250 So.2d 701 (1971). See also Hogan v. State, 346 So.2d 1184 (Ala.Cr.App.1977); Mallory v. State, 55 Ala.App. 82, 313 So.2d 203, cert. denied, 294 Ala. 765, 313 So.2d 208 (1975); Bryant v. State, 49 Ala.App. 359, 272 So.2d 286 (1972), cert. denied, 289 Ala. 740, 272 So.2d 297 (1973).

Ill

On cross examination of defense witness Jessie Lee Townsend, the Deputy District

Attorney asked the following questions:

“Q. You are presently under indictment for perjury by the Jefferson County Grand Jury in relation to this case, are you not?
“A. Yes, they have got me charged.
“Q. Perjury for lying before the Grand Jury right?
“A. That’s right.”

Although it is not competent for the purpose of impeaching a witness to introduce evidence that an indictment was preferred against him, Campbell v. State, 23 Ala. 44 (1853), Watson v. State, 155 Ala. 9, 46 So. 232 (1908), defense counsel made no objection to this matter at trial and the appellant contends that the trial judge erred in not allowing the defense to rehabilitate witness Townsend by going into the details behind the perjury indictment.

Without proper objection the appellant cannot now be heard to complain that her conviction should be reversed because of the use of incompetent evidence to impeach by the State. Rainer v. State, 342 So.2d 1348 (Ala.Cr.App.1977); McClung v. State, 25 Ala.App. 131, 142 So. 843 (1932).

Of course, it is a general principle that, where a matter has been gone into by one party to a cause, the other party has the right to explain away anything, if he can, that may have been brought out to his detriment. Johnson v. State, 265 Ala. 360, 91 So.2d 476 (1956). If a party introduces illegal evidence, even without objection, his opponent has the unconditional right to rebut such evidence with other illegal evidence on the same subject. Longmire v. State, 130 Ala. 66, 30 So. 413 (1901); Clark v. State, 54 Ala.App. 183, 306 So.2d 51, cert.

denied, 293 Ala. 749, 306 So.2d 54 (1974); Sanders v. State, 48 Ala.App. 589, 266 So.2d 797 (1972); McElroy, § 14.01.

Thus, where a party’s witness on cross examination is shown to have been convicted of a crime, that party on redirect is entitled to show the circumstances connected with it. Thames v. State, 10 Ala. App. 210, 64 So. 648 (1914). However this rule is limited in its application.

“The discrediting of a witness by showing his conviction of a crime, does not authorize the reception of evidence indicating his innocence of the charge, or showing the particulars of the offense (Waters v. State, 117 Ala. 108, 22 So. 490; Fuller v. State, 147 Ala. 35, 41 So. 774; Kendrick v. Cunningham, 9 Ala.App. 398, 63 So. 797), or showing that the witness never paid the fine or performed the hard labor sentence imposed upon him. Formby v. Williams, 17 Ala.App. 24, 81 So. 360.” Mayo v. State, 32 Ala.App. 264, 265, 24 So.2d 769, 770 (1946).

See also Lee v. State, 37 Ala.App. 321, 324, 69 So.2d 467, cert. denied, 260 Ala. 698, 69 So.2d 470 (1954); Ellis v. State, 244 Ala. 79, 86, 11 So.2d 861 (1943). Where a witness is impeached by proof of a prior conviction, that witness is not entitled to explain the details of the offense for which he was convicted. Nelson v. State, 35 Ala.App. 179, 44 So.2d 802 (1950).

Generally a party is not entitled to prove that a witness called by him on the present trial was called as a witness by the opponent on a former trial of the same case. Montgomery v. State, 2 Ala.App. 25, 56 So. 92 (1911). Additionally the rule is:

“Impeachment of a witness by proof of his bad general reputation as a whole or his bad general reputation for truth and veracity does not authorize the proponent of the witness to support his credibility by proof of the witness’-having made a prior statement of the same tenor as his present testimony.”

McElroy, § 177.01(1).

On redirect examination of witness Townsend defense counsel attempted to prove (1) that the witness’ “story was consistent throughout” and (2) that he was subpoenaed by the State; “that they tried to coerce him into saying what they wanted him to say, and when he didn’t, they didn’t call him”. The court allowed defense counsel to elicit testimony from the witness that his testimony and statements prior to trial were consistent with his testimony at trial. Though the court sustained the State’s objections to questions concerning whether the witness was subpoenaed and, if so, by whom, the State stipulated that it did subpoena the witness but did not use him. After this stipulation defense counsel did not pursue this matter further or make any offer of proof.

The stipulation by the prosecution rendered the action of the trial court in refusing to permit defense counsel to pursue the matter of subpoena innocuous and harmless. Neither the record nor the brief on appeal gives this court any indication that the defense counsel was cut short or restrained in any other line of proof with regard to this matter. Considering the law and the latitude which defense counsel was given in attempting to rehabilitate the witness we find no cause for the appellant to complain.

IV

The appellant alleges that the trial court erred in refusing to give her requested charges on the lesser included offenses of murder.

The court charged the jury on murder in the first and second degrees and manslaughter in the first degree. Therefore the court did not err in refusing the defendant’s requested charges which were substantially and adequately covered in the court’s oral charge.

The court’s refusal to charge on manslaughter in the second degree was proper since there was no evidence to furnish the legal elements of that degree of homicide. Grays v. State, 28 Ala.App. 394, 185 So. 191 (1939). Furthermore, where the evidence shows that the crime committed was either murder or it was justified as in self-defense, an instruction defining manslaughter is properly refused. Wilson v. State, 171 Ala. 25, 54 So. 572 (1911); Gafford v. State, 125 Ala. 1, 28 So. 406 (1900).

We have searched the record and found no error prejudicial to the appellant. Therefore the judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex parte Arlene LEONARD.
    78-451.
    Supreme Court of Alabama.
    April 27, 1979.
   MADDOX, Justice.

Writ Denied.

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