text:
    James MADISON, alias v. STATE.
    2 Div. 140.
    Court of Criminal Appeals of Alabama.
    April 22, 1975.
    Rehearing Denied May 27, 1975.

      Philip Henry Pitts, Selma, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

The appellant was indicted on a charge of first degree murder, convicted of second degree murder and sentenced to twenty-five years in the penitentiary.

The evidence shows that the appellant caused a shotgun he was holding to discharge, and the shot struck his four-month-old daughter, killing her. His wife, who was holding the child, was wounded. Appellant had been visiting a drinking establishment in Greensboro on June 12, 1971, and had possibly three to five cans of beer over a period of two or two and one-half hours.

While there, his wife came by and asked him to come home and left two of his sons with him, which he interpreted as being for the purpose of seeing that he did not linger at the bar too long. His wife then went to his mother’s store and shortly thereafter the appellant left the “beer joint” with his sons in his truck. He stopped by his mother’s store and then drove home. When his wife did not arrive by supper time, he and the boys started out again in the truck, but passed his wife, who stopped and took the two boys in her car and drove to his sister’s house. The appellant returned home, but his truck broke down shortly before reaching there, and he 'walked the rest of the way home.

Appellant contends he took his shotgun and walked down to the woods near his house where his dogs were running and barking. He saw his wife drive up to the house and he went back to meet her. She was sitting in the car with the children. The baby was in an infant car seat and began crying. The appellant’s wife put the baby over her shoulder while appellant was talking to her. He was agitated about his truck breaking down and stated that he ought to tear up the car also, at which time he hit the outside rear view mirror with the barrel of his shotgun. It discharged, hitting the baby and his wife. Appellant hysterically drove his wounded wife and baby to the Hale County Hospital in Greensboro. The child died shortly after their arrival, the wife was transferred to Tuscaloosa to another hospital, and the appellant, still in hysterics, had to be forcibly held down and sedated.

The appellant made a statement to investigating officers while in jail in the early morning hours of June 13, 1971. Over objection, that statement was testified to and was in conflict in some details with the version given by the appellant at the trial. In his statement in jail, he said he had gone in the house and had gotten the gun because he thought some of his wife’s relatives were coming over to beat him up. During the trial, he stated that he did not remember talking to the investigating officers at the jail at all and did not remember making such a statement.

Witnesses who saw the appellant at the hospital testified he was in hysterics, had to be held down and tied down on a stretcher, and sedated. He was seen yelling and crying outside the hospital as well as inside, repeating statements such as:

“My God, I’ve shot my baby.
“I have killed my baby.
“I shot my baby.
“God, don’t take my baby, take my life, but don’t take my baby.
“Lord, I done killed my baby.
“I killed my child.”

Appellant’s wife testified to substantially the same facts as he did. She did not hear him say anything but, “the Goddamned truck,” prior to the shot, then he began screaming he had shot his baby and rushed them to the hospital in Greensboro. She was transferred to a hospital in Tuscaloosa where she stayed for over a month. She said they were not having any particular difficulty on that day, and she moved back in with the appellant and their other children when she was released from the hospital and was still living with him at the time of the trial.

Law enforcement officers testified as to the scene of the killing and as to the condition of the shotgun when found, which had its safety on. The side rear view mirror of the car was broken and glass matching the mirror was found at the scene of the shooting. Appellant had testified the safety on the gun automatically came on when it was cocked and that he did not have his finger on the trigger when the gun discharged. Other witnesses stated the gun had accidentally discharged at prior times when jarred or being set down on the stock. A firearms expert testified for the appellant that the gun would accidentally fire when a foreign object was placed in a certain position inside the gun. He could not make the gun fire from a bump or jar without a foreign object inside. A state toxicologist was recalled in rebuttal and testified that he could not make the gun accidentally discharge without pulling the trigger after many attempts to do so with the safety both on and off.

A number of other witnesses were called by the appellant who testified as to his good character and his reputation for truth and veracity.

I

The charge against the appellant being first degree murder, the question for the jury to determine was whether the shooting was, (1) willful, deliberate, malicious and premeditated, or (2) with malice but without deliberation or premeditation, or (3) a voluntary act without malice amounting to first degree manslaughter, or (4) accidental under such circumstances to be second degree manslaughter, or (S) simple negligence not amounting to a crime.

The jury returned a verdict of murder in the second degree, thus acquitting appellant of premeditated murder, but finding as a necessary element that the act was done with malice. From our review of the record, the evidence did not establish premeditation on the part of the appellant. From the evidence, the jury could just have easily returned a verdict of first degree manslaughter as second degree murder. Therefore, the element of malice is a crucial ingredient in this case and one which must be examined in the light of not only the legal evidence presented, but any matter coming to the attention of the jury which may have swayed them toward that conclusion.

If the prosecution could establish that the appellant was mad at his wife when she returned home, that he made threats to shoot her, and then fired the gun; then the evidence would clearly put before the jury a case of one of the degrees of murder. On the other hand, if there was no evidence that the appellant was mad at his wife, no evidence of a threat or an argument, but only that he was aggravated over his truck breaking down, the case for murder weakens.

The only witnesses to the shooting were the appellant, his wife and their small children. The only testimony as to the actual circumstances of the shooting was from the appellant and his wife. Their stories are almost identical in detail: that there was no argument; the appellant was angry over his truck breaking down; he hit the car mirror with the gun while cursing his truck; the gun fired and the appellant sped his wife and baby to the hospital in a state of hysteria which lasted until he was sedated. Other evidence seemed to support these facts, i. e. the broken mirror, the gun found in the yard, testimony from the examining physician, and testimony from other witnesses at the hospital.

The appellant’s contention that the gun fired while the safety was on and without him touching the trigger was challenged by the toxicologist’s experiments with the gun. Other witnesses said the gun had accidentally discharged in the past. This testimony along with statements from a firearms expert could properly be considered by the jury in reaching their verdict.

From all the evidence, the jury could possibly infer malice, but it would be a close decision. Therefore, any extraneous matter bearing on malice coming to the jury’s attention could be highly prejudicial to the appellant and must be carefully scrutinized by this Court. The trial court attempted throughout the trial to see that only proper and legal evidence came before the jury.

The trial was peppered throughout with heated arguments between counsel; with admonitions from the trial judge to both counsels; by threats to hold counsel in contempt; and by an offer from an assistant district attorney to defense counsel to settle their argument outside with fisticuffs. Such was the atmosphere throughout much of the trial. Counsel for appellant made repeated objections on grounds that remarks of the prosecutors were improper, one such remark being made outside the hearing of the court reporter, but supposedly within the hearing of the jury. In essence, appellant contends that while the trial court sustained many of his objections and instructed the jury not to consider some of the statements made, nevertheless, remarks were made in the presence of the jury which were not capable of being eradicated from their minds.

This Court must, therefore, carefully review the conduct complained of in light of the authorities cited by both the appellant and appellee, balancing the presumptions in favor of the correctness of the verdict against the effect such conduct would have on appellant’s receiving a fair trial.

II

During the course of the State’s case, E. C. Kimbrough, a State Investigator, was called as a witness. He testified out of the presence of the jury as to the vol-untariness of the appellant’s statement to him at the county jail. The court found the statement to havé been voluntarily given after appellant had been warned of his constitutional rights. The witness then testified from his notes, in the presence of the jury, as to what the appellant had told him.

On redirect examination, the prosecution asked the witness if he had some notes from a conversation he had with the appellant’s two small sons, Clay and Scott Madison, who were four and five years old. The investigator said he had such notes which were marked for identification by the court reporter. Upon objection by the appellant, the court refused to allow the notes into evidence and, likewise, refused to allow the witness to testify from those notes, stating:

“I don’t think a statement of a five year old or a four year old would add any probative value to this trial and I’m not going to admit it.”

Much later in the trial, during the State’s cross examination of the appellant, the following occurred:

“Q. Let me ask you this, did you make this statement, did you make the statement that Tracy Joe Madison was killed, ‘I’ll shoot you if you don’t leave ?’
“A. I would never say that.
“Q. Did you make that statement?
“A. No, I would never say that.
“Q. Are you aware of the fact that one of your son’s (sic), Clay Madison—
“MR. HENRY PITTS: (Interposing) Objection, your Honor.
“Q. (By Mr. Faile, continuing:) — stated that you did make that statement?
“MR. HENRY PITTS : Objection, your Honor, I object to that as incompetent, irrelevant and immaterial.
“THE COURT: Yes, sir; I’ll sustain it.
“MR. HENRY PITTS: And I want to make a motion outside the presence of the jury.
“THE COURT: All right. Mr. Bailiff, take the jury back to the Jury Room.
“(Whereupon the following proceedings were held out of the presence and hearing of the jury.)
“MR. HENRY PITTS: Your Honor, once again I want to make a motion for a mistrial on the grounds that, the statement made by Mr. Faile, the question asked by Mr. Faile he knew -good and well, being a good lawyer as Mr. Faile is, he knows that it is improper evidence, it’s irrelevant, incompetent and immaterial and he can’t try to impeach this witness over a statement made by a third party, much less a statement made by a four or five year old child and it was only made for one purpose and that’s to try to inflame the passions of this jury or prejudice this jury against this Defendant.
“I don’t think there’s any way you can instruct this jury coupled with other statements made by Mr. Burke and Mr. Faile earlier this morning about the character witness, then he comes back in here again this afternoon and asks the statement which he knows under any evidentiary procedure is not competent evidence and could only be asked for one purpose and that purpose alone is to try to prejudice this jury against this Defendant.
“THE COURT: All right. I want to say something for the record. This is outside the presence of the jury and I want to state that we’ve been two years trying to get this case tried. We’ve had one mistrial and I’ve granted continuances and at least one of the occasions for granting of mistrial was due to the conduct of the District Attorney.
“I’m stating categorically at this time the conduct of the District Attorney that I’m talking about was not in the Courtroom, it was in failing to live up to his agreement to deliver certain documents and according with the agreement that he had with counsel for the other side. There’s no reflection on your Courtroom conduct, Mr. Faile, but I’ll say this, that I’m going to try every way that I can to get that out of the minds of the jury, but if there is one more attempt on the part of the State to put frosting on this cake that shouldn’t be on it, I’m going to declare this mistrial and it won’t be tried again by this Trial Judge in this county, I want that thoroughly understood.
“MR. FAILE: Yes, sir; we understand that. I’m asking it for impeachment purposes, I’m not trying to get it in for—
“THE COURT: That’s not proper impeachment.
“MR. MORROW: Judge, this is a statement the witness made, we want it clear in the record.
“THE COURT: I’m not going to allow the statement of this witness to be impeached by a statement of a four year old child.
“MR. HENRY PITTS: He was asking him was he aware of his four year old child making a statement to the State Investigator and that’s what he was asking him about. It didn’t have anything to do with the statement made by this witness.
“He’s trying to impeach this witness by a statement made by somebody else, a child.
“THE COURT: A four year old child.
“MR. MORROW: Out of the mouths of babes comes—
“THE COURT: Four year old child is not competent to testify and if there is one more repetition of this, I’ll end the trial.
“MR. MORROW: Judge, you’re ruling that the child is not competent to testify?
“THE COURT: I certainly am.
“MR. MORROW: For either side?
“THE COURT: For either side.
“MR. MORROW: That’s fine.
“THE COURT: I don’t think a four year old child, a child that is now six years old, was four years old at the time, can add any probative value to anything in this case. I’ve got a six year old granddaughter and I don’t think she could tell me a thing that would be valid about something that happened two years ago.
“I’m certainly not to clutter up this record with that kind of thing and I think it’s entirely discretionary with the Trial Judge and I don’t feel it would have any probative value and I’m not going to allow it from either side.
“It’s going to be objectionable to bring any testimony in from that child.
“MR. FAILE: Does it mean that we won’t have the opportunity to make an attempt to qualify that child to testify?
“THE COURT: No, sir; it would not. The child at that age is not qualified to testify unless the Trial Court directs it to be so and I don’t think under any theory of the law that I would ever say that a child of that age was competent to testify in any case.
“MR. FAILE: All right.
“THE COURT: What is sauce for the goose is sauce for the gander, they won’t be able to either.
“MR. HENRY PITTS: You’re denying the motion for a mistrial ?
“THE COURT: I’m denying the motion for a mistrial.
■“MR. HENRY PITTS: Are you going to instruct the jury?
“THE COURT: I’ll instruct the jury.
“(Whereupon the following matters were held in the presence and hearing of the jury.)
“THE COURT: Ladies and gentlemen of the jury, the Court is instructing you to disregard the last question or any answer that might have been made thereto. It has nothing to do with any admissible evidence in this case. Just disabuse your minds of any such statement, it is not evidence and you are not to consider it as such.
“All right, proceed.”

The court’s refusal to grant a mistrial due to the above-quoted occurrence is set out as ground numbers 59 and 60 in the appellant’s motion for a new trial, and is properly before this Court for consideration.

Our appellate courts have held that no iron-clad rule exists by which the prejudicial qualities of improper remarks of counsel can be judged. Such depends upon the issues, parties, and general circumstances of the particular case. Anderson v. State, 209 Ala. 36, 95 So. 171 (1922); Langley v. State, 32 Ala.App. 163, 22 So.2d 920 (1945); Blue v. State, 246 Ala. 73, 19 So.2d 11 (1944).

In Langley, supra, the Court of Appeals restated a general rule earlier set forth by our Supreme Court relative to improper argument of counsel, which we think may equally apply to an improper remark before the jury during any phase of the trial:

“And in the opinion in the case of Birmingham News Co. v. Payne, 230 Ala. 524, 162 So. 116, 117, that court said: ‘Arguments of counsel to the jury, requiring the granting of a mistrial, or the granting of a new trial on motion; must not only be (1) improper and illegal, but (2) of such prejudicial character as that its probable effect is ineradicable by exclusion and rebuke on the part of the court/ citing Anderson v. State, supra, and a number of other cases.”

In Allred v. State, 291 Ala. 34, 277 So.2d 339 (1973), the Alabama Supreme Court stated, at page 38, 277 So.2d at page 342:

“It is a general rule that where prejudicial statements are made in the heat of argument, even though improper, in accommodation of our adversary system, such statements are considered capable of being eradicated by the trial judge in sustaining objections thereto or by ap--propriate instructions to the jury or both. Dunn v. State [277 Ala. 39, 166 So.2d 878], supra. See also Arant v. State, 232 Ala. 275, 167 So. 540. But our cases also recognize that an exception to this rule exists where, irrespective of the best efforts of the trial judge to disabuse the mind of the jury of any prejudicial impression, the conviction obtained is not in an impartial • atmosphere. Blue v. State, supra. See also Pointer v. State, 24 Ala.App. 23, 129 So. 787; DuBose v. State, 148 Ala. 560, 42 So. 862.”

Again in the recent case of Taylor v. State, Ala.App., 308 So.2d 714 (1975), Judge Tyson, speaking for this Court, reversed the conviction due to a prejudicial statement of fact being made by the prosecution in argument, stating:

“Where, as here, counsel for the State states to the jury facts of which there are no evidence whatever, and such facts are of a character that are calculated to impress the minds of the jurors, and to injure the opposing party, such are clearly improper argument and grounds for reversal . . . . ”

Statements by prosecutors of facts not in existence, or which have been excluded from evidence, are improper per se. Such statements are grounds for reversible error where their impact upon the jury would be so prejudicial that proper instruction by the trial court would not eradicate their prejudicial effect. Where the objectionable statement is made as a fact, unsupported by any legal evidence, pertinent to the issue, and its natural tendency is to influence the finding of the jury, there is sufficient ground for a reversal. Nix v. State, 32 Ala.App. 136, 22 So.2d 449 (1945); Dollar v. State, 99 Ala. 236, 13 So. 575 (1892); Dunmore v. State, 115 Ala. 69, 22 So. 541 (1896); Sullivan v. State, 66 Ala. 48 (1880); Hill v. State, 20 Ala.App. 158, 101 So. 159 (1924). Also see, Cook v. State, 42 Ala. App. 270, at pp. 279, 280, 160 So.2d 884, cert. denied 276 Ala. 702, 160 So.2d 897 (1963), as to bearing prosecutor’s illegal statement might have had between possible verdict of manslaughter or murder.

In the instant case, the trial court had excluded testimony concerning a purported statement by appellant’s four and five-year-old sons relative to the shooting incident. Such is clearly within the discretion of the trial court. The court had prevented the District Attorney from going into those statements, yet later in the trial when there had been no evidence of a threat by appellant to his wife, the District Attorney on cross examination asked the appellant if he had not stated to his wife “I’ll kill you if you don’t leave.” When appellant denied making such a threat, the District Attorney then injected, over objection, “Are you aware of the fact that one of your son’s (sic), Clay Madison stated that you did make that statement ?”

We find this statement to go beyond all bounds of legitimate cross examinations, under the circumstances of this case. The District Attorney in his zeal to contradict the appellant’s testimony, in effect himself testified as to the statement of appellant’s son which had previously been denied admission into evidence. As previously discussed, any inference that a quarrel had taken place between appellant and his wife, or that he had threatened her in any way prior to the shooting, would be most critical to a jury in reaching a verdict of second degree murder as opposed to manslaughter. We, therefore, are of the opinion that under these particular circumstances, even the prompt and conscientious instructions of the trial court to the jury would be insufficient to eradicate the prejudicial effect of the statement from the minds of the jury. See Renfroe v. State, 49 Ala.App. 713, 275 So.2d 692.

Reversed and remanded.

All the Judges concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    In re James MADISON v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1337.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner, the -State.
    None for respondent.
   FAULKNER, Justice.

Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Madison v. State, 55 Ala.App. 634, 318 So.2d 329.

Writ denied.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    Walter T. LUCKIE, alias v. STATE.
    3 Div. 332.
    Court of Criminal Appeals of Alabama.
    June 17, 1975.
    Rehearing Denied July 29, 1975.

      Anne M. Weiss, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for 30 years.

After arraignment for the second time (appellant was arraigned on more than one occasion before his case was finally set and tried) but before entering upon the trial of the case, appellant filed his motion dated June 5, 1972, to dismiss his employed attorney, H. Walden, who had represented him by employment about a year and the trial had been continued twice. In the motion appellant averred that he would retain attorney Jasper Roberts or attorney Hart-well Davis to ready his case for trial. The motion contains seven grounds, all of which were directed toward an alleged failure of his employed attorney to properly prepare the case and represent the appellant in this proceeding.

The court overruled the motion and the case proceeded to trial but the record shows not only that Mr. Walden continued to represent the appellant but that attorney Jasper Roberts also shared this responsibility with Mr. Walden and took an active part in the trial proceedings. From a perusal of the record it appears the performance of these attorneys was competent and vigorous in their representation of the appellant.

This court recognizes the rule that a defendant has a constitutional right to conduct his case without aid of counsel and may waive right of counsel in the trial. This seems to be true whether he is able to employ counsel or indigent. Constitution of Alabama, 1901, Article 1, § 6; Irvin v. State, 44 Ala.App. 101, 203 So.2d 283; Jones v. State, 50 Ala.App. 541, 280 So.2d 801, cert. denied 291 Ala. 785, 280 So.2d 803.

Although the ruling of the court violated the above principle, we do not think it was error to reverse since attorney Jasper Roberts did in fact proceed to represent the appellant along with his first employed attorney. We hold this error without injury under Supreme Court Rule 45.

We note that in the case of Minniefield v. State, 47 Ala.App. 699, 260 So.2d 607, the court held:

“ ‘Ordinarily counsel who supplants or supplements other counsel, who have already had ample time to get ready for trial, should not expect or ask for a continuance.’ ”

See Bertrand v. State, 46 Ala.App. 117, 238 So.2d 914.

The attorney of appellant’s choice, Jasper Roberts, made no effort or motion to activate any of the grounds of the motion above referred to after he came onto the scene and further, made no motion for a new trial based on any of these grounds.

The motion to continue by appellant’s attorney L. H. Walden, was over-nded. The law is well settled that the continuance rests in the discretion of the court subject to review only on clear abuse of discretion. Segers v. State, 283 Ala. 694, 220 So.2d 882; Divine v. State, 279 Ala. 291, 184 So.2d 628. Both attorneys for appellant and appellee concur in this well settled rule, and we hold there was no clear abuse of the court’s discretion and no error in overruling the motion. It appears there was ample time for the preparation of trial.

State’s witness R. J. Moody, a captain in the Montgomery Police Department, testified that on the day after the appellant was charged in the instant case, he (appellant) gave the witness an oral statement delineating the circumstances surrounding the killing of the deceased and that witness made notes of the statement to be put in the record with appellant’s consent. He further testified that appellant said he would not make a written statement, and he did not want a tape recorder used but would answer any questions asked by Captain Moody with regard to the circumstances surrounding the killing. Appellant was told that what he said would be put in the record in the case file and that this was done with his agreement.

Appellant contends the proper predicate was not laid for any statement subject for admission into evidence because he was not advised of his Miranda rights, and that the record did not reflect the statement was voluntarily made.

The court has carefully reviewed the testimony bearing on this question and is of the opinion that appellant was advised of his Miranda rights, that he understood the same and that the statement was purely voluntary. We, therefore, hold there was no error in the action of the court in admitting the statement into evidence over the objection of appellant.

At the conclusion of the testimony offered by the State the appellant moved to exclude on the grounds that the State had not proved the cause of death of decedent; that James Small, a toxicologist, who testified for the State as to the cause of death was not properly qualified to give such testimony; and that there had been no expert testimony to show the cause of death.

The question of the qualifications of a person to testify as an expert rests largely in the discretion of the trial court and will not be disturbed by the appellate courts in the absence of abuse. See numerous cases collected in Alabama Digest, Criminal Law, Volume 6, <©==>481.

The case of Richardson v. State, 39 Ala.App. 207, 98 So.2d 59, cert. denied 266 Ala. 699, 98 So.2d 65, along with many other cases, holds that a toxicologist, properly qualified, may testify as to the cause of death. See also Alabama Digest, Criminal Law, Volume 6, <®=3476.

Appellant argues that the written statement of witness Mary Lee Stewart is prejudicial to the rights of appellant and should not have been admitted into evidence because it violated the hearsay rule. This statement was offered by the State and admitted without objection. Where no ruling is invoked in the trial court there is nothing before this court for a review, therefore, no error appears in this respect. Johnson v. State, 49 Ala.App. 389, 272 So. 2d 597.

The admission into evidence of a certified marriage license issued by the Judge of Probate of Lowndes County, Alabama, authorizing the marriage of appellant and Mary Lee Stewart, a black woman, together with a certificate of the Probate Judge that he performed the ceremony, in our opinion tended to show motive on the part of the appellant and were properly admitted into evidence.

The jury returned with a verdict of guilty and fixed the sentence of appellant at imprisonment in the penitentiary for 30 years. Before passing of sentence by the court, appellant was queried by the court at great length with regard to his past record, which apparently involved many arrests and some convictions of crimes involving moral turpitude. This was done in the presence of the jury with the court remarking that they need have no qualms about the length of sentence inflicted upon the appellant in view of this record.

We do not condone this particular phase of the trial but neither do we find the defendant was prejudiced since the sentence passed by the court, 30 years imprisonment, was exactly the sentence as returned by the jury as its final verdict. Immediately thereafter sentence was, in fact, passed on defendant who noted the appeal which is now before this court.

Appellant further suggests that the above action of the court shows bias against appellant when considered with other prejudicial acts of the court pending the completion of the trial. It is true that some of the rulings of the court on evidence and other matters were sharply worded but these rulings were directed as much to the prosecution as to the defense. After a careful study of the entire record we are not convinced that this verdict should be set aside on the grounds that the appellant’s right to a fair and impartial trial was denied by the action of the court in the conduct of the case.

Several written charges requested by appellant were given and 11 were refused. Those numbered 1, 2, 3, and 4 were affirmative in nature and properly refused under the evidence. In view of the oral charge of the court and the written charges given at the request of the appellant, there was no error on the part of the court. Code of Alabama 1940, Recompiled 1958, T. 7 § 273; and see cases collected in Alabama Digest, Criminal Law, Volume 6A, ®=>829(1).

We have tried to give careful consideration to the entire proceedings as evidenced by the record before us and have found no error of a reversible nature.

Affirmed.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.

CATES, P. J., not sitting;


author: BLOODWORTH, Justice.

text:
    In re Walter T. LUCKIE, alias v. STATE. Ex parte Walter T. Luckie.
    SC 1407.
    Supreme Court of Alabama.
    Sept. 4, 1975.
    Anne M. Weiss, Montgomery, for petitioner.
    No appearance for the State.
   BLOODWORTH, Justice.

Petition of Walter T. Luckie for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Luckie, alias v. State, 55 Ala.App. 642, 318 So.2d 337.

Writ denied.

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


author: HARRIS, Judge.

text:
    Cleveland WATERS, alias v. STATE.
    7 Div. 336.
    Court of Criminal Appeals of Alabama.
    June 30, 1975.
    Rehearing Denied July 29, 1975.
    Myron K. Allenstein, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for raping his twelve-year-old daughter. Prior to arraignment he was found to be indigent and the court appointed counsel to represent him. He pleaded not guilty. Prior to the date of his trial his counsel suggested to the court there was question as to his competency to stand trial and amended his not guilty plea to include a plea of not guilty by reason of insanity. The court submitted the issue of appellant’s present sanity and competency to stand trial to a special jury and after considerable testimony was taken, the jury returned a verdict finding appellant was presently sane.

Before the case in chief got underway, appellant withdrew his insanity plea and the case went to the jury on his not guilty plea.

The facts in this case are sordid and most revolting and no useful purpose can be served in setting forth the facts in detail. The victim was twelve years of age at the time her father allegedly raped her on the late afternoon of Saturday, June IS, 1974, and was thirteen years of age at the time of her father’s trial.

Appellant and his wife had been married fifteen years at the time of his trial. Their families were originally from St. Clair County and they went to school together. Apparently the marriage was a happy one until after the birth of the rape victim who was next to the oldest child. Appellant started drinking and his drinking habits became increasingly worse. Finally, he became a confirmed alcoholic and would leave home for weeks and months at a time. When he was drunk he displayed a violent disposition to his wife and seven children, often inflicting corporal punishment on all of them. His wife asked him repeatedly for a divorce after the birth of the victim but he refused to cooperate. On one occasion he broke his wife’s arm and she filed suit for a divorce. There was a reconciliation but it was not a sustained one. She had another divorce suit pending at the time of appellant’s trial.

The wife testified there were times when she would not hear from appellant for months at a time. Then he would return home and stay long enough to get her pregnant and he would leave again.

On the date of the alleged rape, the victim’s mother got someone to take her to Boaz, Alabama, to pay some bills. She left the victim at home to baby sit for her seventeen-month-old son and another daughter who was at home also. The other children were at a revival meeting. The mother ran into appellant in a store in Boaz and asked him to take her home. She could tell he was drinking, but she needed to get back home to her children. Appellant bought a six-pack of beer and they started home. They stopped at his brother’s home and the beer was consumed. They again started home and after driving within five miles of the place where they lived, a tire blew out and appellant drove into the driveway of a friend’s home and told his wife to stay there and he would walk home and try to find a spare tire and return for her.

In the meantime, the victim, her little sister and the seventeen-month-old baby had been playing in a field between their home and a neighbor’s home. It was getting late in the afternoon and the victim sent-her sister to the neighbor’s house to pick up a maxi-dress the neighbor was making for her. Just before reaching the steps to the porch of her home, appellant suddenly appeared. She saw that he was staggering and knew he had been drinking. She was afraid of him and started to run to her neighbor’s house, but appellant jumped and grabbed her tightly by the arm and forced her into the front bedroom of the house where her mother slept. He told her to take her clothes off from the waist down and she refused to do so. He slapped her and demanded that she unclothe from the waist down and he slapped her again and made her take her clothes off and pushed her down on the bed. He got on top of her and forced her legs apart and penetrated her for about five minutes. She tried to push him off her saying, “No, Daddy, don’t” and she was crying. After he let her go, she was bleeding and while she was putting her clothes back on, appellant took the bloody bedspread off the bed and carried it in the back bedroom. He said to her, “You better not tell anybody about this.”

After she re-dressed, she picked up her seventeen-month-old brother and ran out the backdoor and to her neighbor’s house to report that her father had forced himself into her. She met her sister coming back with the maxi-dress she had sent her for and told her to drop the dress and return to the neighbor’s house and her sister told her that she was not at home, that she was out picking black berries in a patch between the two houses. She left her little brother with her sister and went to the black berry patch and found her neighbor and told her what had happened to her. The neighbor saw blood running down her legs and took her into her home and gave her some tissue to wipe the blood, but she kept bleeding and the neighbor gave her a wash cloth to use but that did not stop the flow of the blood. The neighbor suggested that she drive the victim to swear out a warrant and she agreed to go, but before they could leave, they heard the victim’s mother calling her and the neighbor told her to go to her mother and tell her ever-thing. The mother met the victim at the edge of the yard and saw the blood on her legs. She told her mother what her father had done to her.

The neighbor testified that she was picking black berries near appellant’s home and heard the victim crying and saying, “No, Daddy, don’t”, but she thought appellant was whipping the girl as he was known to whip her pretty often. When she heard the girl say, “Daddy, please don’t”, she heard him say, “Shut up.”

The mother went into the house and found appellant on the couch in the living-room and asked him what he had done to her'little girl and appellant said he had not done anything to the “little s.o.b.”. The mother asked appellant to get a car to carry the victim to see the doctor and he said he could not get a car and to “let the little s.o.b. die.”

Later that night when the preacher and his wife brought the other children from church the mother asked them to carry her daughter to see a doctor and they carried her to a hospital in Gadsden where she was seen and examined by a doctor.

She was seen in the emergency room at the Baptist Memorial Hospital at 10:30 P. M. that night by Dr. Myron H. Hawkins, Jr., where he performed a pelvic examination. He was asked what that examination revealed and answered:

“According to my records, pelvic examination revealed the hymenal ring not to be intact, there were a few small vaginal vault tears with a moderate amount of blood in the vaginal vault.”

The doctor further testified that the condition he found was consistent with a forcible penetration; that the vaginal vault was moderately full of bright red blood and there were some small abrasions inside the vaginal vault.

The mother testified that her daughter’s period was not on at the time of the commission of this crime and was not due for three weeks. She further said her daughter bled for several days after they left the hospital.

Appellant testified in his behalf and made a complete denial of the charge that he raped his daughter. He did admit that he and his wife had marital problems due largely to her accusing him of running with other women and about his drinking problem. He said he could and did have other women whenever he wanted them, but that his drinking problem was improving. He denied leaving home for long periods of time. As a matter of fact he testified that he slept with his wife the night before this was supposed to have happened the next day and they got up Saturday morning and were together all day until the tire on his car went flat and he walked five miles home to try and borrow a spare tire to go back and get his wife; that when he got home, there was not a soul there; that he made a cup of coffee and went to sleep on the couch and his wife waked him up and accused him of raping his daughter and he then and there denied it. He further denied that he had beaten his wife or his children.

The wife testified that appellant had not been at home for four months before the day he raped their daughter. The neighbor corroborated the wife as to appellant’s absenteeism and that he was gone from home four months prior to the day the victim came to her home and told her that her father had “forced himself into her.”

At the conclusion of the state’s case, appellant moved to exclude the state’s evidence or in the alternative to grant him the affirmative charge. Both motions were overruled and denied.

Appellant’s counsel made a motion to have the twelve-year-old victim examined by a psychiatrist so as to afford him adequate information to prepare a defense and to effectively cross-examine the victim. The court denied the motion pointing out there was no statutory authority for such procedure and there were no funds available to pay for such a psychiatric evaluation. Appellant claims this amounted to a denial of due process. We disagree.

During the lengthy pre-trial hearing to determine appellant’s sanity and competency to stand trial, the victim testified in detail as to the occurrence and she stood up under a vigorous cross-examination. She did say she hated her father for what he had done to her but this was a most natural impulse. She became emotional during each time she was on the witness stand and the trial had to be recessed on a few occasions so that she could compose herself. That is nothing unusual during a trial of this nature.

The state may on direct examination of the prosecutrix prove the bare fact that she made immediate complaint of being raped and when and to whom, and she may be corroborated by the person or persons to whom she complained as to the same fact. Aaron v. State, 273 Ala. 337, 139 So.2d 309; Ellis v. State, 244 Ala. 79, 11 So.2d 861; Price v. State, 41 Ala.App. 239, 128 So.2d 109.

Appellant, in brief, makes much of the fact that he was convicted on the testimony of one witness. In rape prosecutions the victim is usually the only witness. In our system of criminal justice, we do not travel on the numerical number of witnesses. A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Gray v. State, 38 Ala.App. 508, 88 So.2d 798; Nabors v. State, 82 Ala. 8, 2 So. 357.

Conflicting testimony is for the jury, and a verdict rendered thereon will not be disturbed on appeal. Pugh v. State, 51 Ala.App. 164, 283 So.2d 616.

Overruling defendant’s motion to exclude the state’s evidence was not reversible error where the evidence was sufficient to submit the question of guilt to the jury. Young v. State, 283 Ala. 676, 220 So.2d 843.

In Bridges v. State, 284 Ala. 412, 225 So.2d 821, the Supreme Court said:

“The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Stewart v. State, 38 Ala.App. 365, 84 So.2d 658; Evans v. State, 39 Ala.App. 404, 103 So.2d 40, cert. denied 267 Ala. 695, 103 So.2d 44; Jones v. State, 40 Ala.App. 419, 114 So.2d 575.”

We cannot say that the verdict in this case is so patently against the weight of the evidence as to convince us that it was wrong and unjust. Accordingly, the judgment of conviction is affirmed.

Affirmed.

TYSON, DeCARLO and BOOKOUT, JJ-, concur.

CATES, P. J., not sitting.


author: EMBRY, Justice.

text:
    In re Cleveland WATERS v. STATE. Ex parte Cleveland Waters.
    SC 1400.
    Supreme Court of Alabama.
    Sept. 4, 1975.
    Myron K. Allenstein, Gadsden, for petitioner. No appearance for the state.
   EMBRY, Justice.

Petition of Cleveland Waters for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Waters v. State, 55 Ala.App. 646, 318 So.2d 342.

Writ denied.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


text:
    Charles A. WILSON, alias v. STATE.
    5 Div. 287.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    William O. Walton, Jr., Lafayette, for appellant.
    Willjam J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   PER CURIAM.

This appeal is from a conviction of murder in the second degree with sentence of 40 years imprisonment in the penitentiary.

The appellant was indicted by a grand jury in Chambers County for murder in the first degree and among several others indicted jointly with the appellant was one John Will Smith whose case has been tried. Smith was convicted of murder in the first degree, and on appeal the case was affirmed in this court, being released on April 1, 1975, (5th Division Case Number 247). Smith v. State, Ala.App., 310 So.2d 484.

There is no brief on file for appellant but his attorney, who was also the attorney for the appellant when tried in the lower court, has filed a “no merit” letter in which he suggests that in view of the Smith, case, supra, and further upon an examination of the record of this cause he is of the opinion-that there is probably no reversible error apparent.

After a careful examination of the entire record and a review of the opinion of the Smith case, supra, we have been unable to find any error of a substantial nature which would warrant a reversal in the instant case.

In arriving at this opinion we have carefully examined the matters of possible error suggested in the assignment of errors filed in the case at bar. The testimony in this case was substantially similar to the Smith, case, supra, and presented a question of fact to be decided by the jury.

It further appears that the holding in the Smith case, supra, applying to appellant’s motion to quash the trial venire and dismiss the case, and to his further objection to the testimony of Dr. Hazouri in Columbus, Georgia, forecloses the appellant’s claims of similar error in the instant case.

Before the jury which tried the instant case was qualified and selected for the trial, the appellant moved the court for a continuance on the ground that the jurors on the panel were aware of a conviction of one of the persons named in the indictment with the appellant and that because of this fact the appellant could not receive a fair trial at that particular term of the court. Motion was overruled by the court, after the court examined the venire from which the jurors in the instant case were selected in regard to any prejudice, or bias or feeling against the appellant arising from their knowledge of the conviction of the co-in-dictee.

It appears from the record that the twelve jurors involved in the former conviction, above referred to, were not part of the venire from which the jury in the instant case was selected and that they were excused pending .the trial of the case at bar. It does not appear from the record whether or not the members of the venire in the instant case actually heard the testimony in the prior case or not. But assuming this was true, the fact alone that they heard the testimony would not disqualify them nor justify a challenge on that ground. Some of the authorities bearing of this question are Smith v. State, 207 Ala. 428, 98 So. 397; Stover v. State, 204 Ala. 311, 85 So. 393; Davis v. State, 24 Ala.App. 190, 132 So. 458; Sandlin v. State, 19 Ala.App. 583, 99 So. 784. Under the circumstances as reflected in the record and in the light of the principles set out in the above cases, we see no error in the court’s action in exercising its discretion and refusing to continue the case.

Rather than to prolong this opinion we think it sufficient to say none of the remaining matters raised in the assignment of errors, when examined in. the light of the record in this case constitute error injurious to the substantial rights of the appellant. We, therefore, think the case should be affirmed.

The judgment below is hereby

Affirmed.

TYSON, . HARRIS, DeCARLO and BOOKOUT, jj., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


text:
    Arthur James JONES v. STATE.
    1 Div. 552.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Ian F. Gaston, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the crime of false pretense and sentenced to ten years in the penitentiary. He was represented by court appointed counsel at arraignment and throughout the trial. After conviction he gave notice of appeal and a free transcript was furnished him. New counsel was appointed to represent him on a motion for a new trial and on appeal.

Omitting the formal parts the indictment reads as follows :

“The GRAND JURY of said County charge, that, before the finding of this indictment ARTHUR JAMES JONES, ALIAS FOY E. COCHRAN, whose name is to the Grand Jury otherwise unknown than as stated, did falsely pretend to Leon Franklin Brady, with intent to defraud, that he was Foy E. Cochran and that he had a checking account in The First National Bank of Mobile with sufficient funds to cover the one hundred four dollar and eighty-nine cent check that he gave to the said Leon Franklin Brady, and by means of such false pretense did obtain one Sears three-way tape recorder of the value of one hundred four dollars and eighty-nine cents, the property of Sears, Roebuck & Co., against the peace and dignity of the State of Alabama.”

According to the tendencies of the state’s evidence appellant, using his alias, Foy E. Cochran, went to Mobile, Alabama, in May of 1974, to engage in a “check kiting” scheme to defraud people out of their money or property.

He went to The First National Bank of Mobile and opened a new account in the name of Foy E. Cochran in which he deposited fifty dollars in cash. He gave a fictitious Social Security number and a fictitious address. The bank issued him several “starter checks.” It seems to be a common practice in the banking industry that when a new account is opened, the bank issues to the new customer a few checks to draw on the account until new checks can be printed carrying the name of the new customer and his account number.

After leaving the First National Bank, he went to the American National Bank of Mobile and opened an account, and the same identical procedure was followed.

On the same date, May 31, 1974, appellant returned to the First National Bank and went to a teller window and deposited a check, payable to him, and drawn on the Carver State Bank of Savannah, Georgia, in the amount of $350.00. This was a personal check allegedly signed by one Cecil Fisher. This check was a forgery.

He then returned to the American National Bank and remained in the automobile of his companion, Larry Howard, while Howard went in the bank and deposited another check allegedly signed by Cecil Fisher to the account of Foy E. Cochran.

Appellant was now ready to embark upon his fraudulent scheme that brought him to Mobile.

Mr. Leon Franklin Brady, Jr., testified that he was employed at Sears, Roebuck and Company located in the Bel Air Mall in Mobile and had been so employed for fifteen years. He was a salesman in the T.V. and Home Entertainment Department where stereos, tape players, radios, etc. were for sale. He stated that on June 1, 1974, a man representing himself to be Foy E. Cochran came to the counter in his department and was looking at a tape player and expressed a desire to purchase it. Mr. Brady told him the tape player was on sale for $99.00 plus tax. Cochran made out a check for $104.89 which was the purchase price of the tape player including the tax. Mr. Brady told Cochran that he did not have authority to accept a check in that amount and sent' him to the cashier’s department to get the check approved. The check was approved and retained in the cashier’s department and a cash sales ticket was given to Cochran to pick up the tape player. He presented this ticket to the salesman and picked up the merchandise. Mr. Brady pointed to Cochran in the court room and identified him as the man who presented him the check and as the man who picked up the tape player.

The check was presented to the First National Bank of Mobile for payment and was subsequently returned to Sears-Roebuck with a notation on the back of the check stating “uncollected funds.”

Mr. James A. Monroe, the security manager of Sears-Roebuck, was the man who approved Cochran’s check. Mr. Monroe pointed to Cochran at trial and identified him as the man who presented the check to him for approval.

Mr. Frederick Joseph Straub who was assistant manager of the customer accounting department of the First National Bank testified that he was familiar with the account in the name of Foy E. Cochran. That this was a new account and was opened on May 31, 1974, with a cash deposit of $50.00. He further testified that some time on the same day Cochran deposited a check in the amount of $350.00 drawn on the Carver State Bank in Savannah, Georgia, and signed by one Cecil Fisher. This check was returned unpaid with the following notations on the face of the check: “Do not redeposit,” “Insufficient funds,” and “account closed.”

Appellant and Larry Howard drove to a window of a branch bank of American National Bank to inquire as to the balance in his account. The teller told him to come inside and discuss the matter with one of the bank’s officers. He went inside and the officer got him to surrender the “starter checks” the bank issued him when he made a cash deposit of $50.00. The bank refunded him the $50.00 and closed the account.

When the $104.89 check was returned to Sears-Roebuck, Mr. Monroe contacted the Mobile Police Department and Police Sergeant John W. Phillips, Jr., of the criminal investigation division was assigned to the case. Sergeant Phillips was contacted by Mr. Bryan Sheehy, Vice President of the American National Bank and Special Agent Frank Gilman of the Federal Bureau of Investigation. As a result of information he received from these two men, he went to the Toulminville Branch of the First National Bank. He received information at this branch that led to the arrest of appellant. He was carried to the office of Sergeant Phillips in the criminal investigation division of the Mobile Police Department. Phillips gave appellant the Miranda rights and warnings and he signed a waiver óf rights and counsel. This waiver is as follows:

“STATE’S EXHIBIT NUMBER 4
WAIVER OF RIGHTS AND COUNSEL BY DEFENDANT IN CUSTODY
I,Foy Ed Cochran, have been informed by the undersigned law enforcement officers, prior to being questioned by them, that I am suspected of the offense of Forgery/Obtaining Merchandise by False Pretense in Mobile County, Alabama, on the 5th day of June, 1974, and have been informed by them of my rights as follows:
1. That I may remain silent and do not have to make any statement at all.
2. That any statement which I might make may and will be used against me in Court.
3. That I have a right to consult with an Attorney before making any statement and to have such Attorney present with me while I am making a statement.
4. That if I do not have enough money to employ an Attorney, I have the right to have one appointed by the Court to represent me, to consult with him before making any statement, and to have him present with me while I am making a statement.
5. That if I request an Attorney, no questions will be asked me until an Attorney is present to represent me.
6. That at any time during the questioning I may request that the questioning be stopped, and it shall be stopped.
After having my rights explained to me, I freely and voluntarily waive my right to an Attorney. I am willing to make a statement to the Officers. I can read and write the English language and fully understand my right to an Attorney. I have read this waiver of counsel and fully understand it.
No threats or promises have been made to me to induce me to sign this Waiver of Rights and Counsel, and to make a statement to the Officers on this 5th day of June, 1974.
SIGNED: /s/ Foy E. Cochran
DATE: 6-5-74
DAY: Wednesday
TIME: 4:45 PM
WITNESSES:
/s/ Sgt. J. W. Phillips

After the execution of the above-quoted exhibit, appellant gave Phillips an oral statement.

Sergeant Phillips began to question him about his activities in Mobile. In the.beginning appellant told Phillips that his name was Foy E. Cochran. During the interrogation appellant said, “Officer, I have been misleading you. My true name is Arthur James Jones.” He then went on to recount his activities in opening bank accounts in the American National Bank and the First National Bank by making a cash deposit in each bank. That he followed this by depositing in each bank checks in the amounts of $350.00 drawn on the Carver State Bank of Savannah, Georgia, and that these checks were allegedly signed by one Cecil Fisher. He told Sergeant Phillips that he had purchased these checks from an unknown black female on the streets of Savannah, Georgia.

From the record:

“A I asked him did he know who Cecil Fisher was, and he stated that he did not. I inquired of him as to the checks that he deposited into both banks, the First National and the American, which were made payable to Foy E. Cochran, and they were signed Cecil Fisher, and he stated that they were forgeries; they had not been given to him by Cecil Fisher, that an associate of his had made the checks out, and that he had deposited them into the bank.
Q He admitted to you that the three hundred and fifty dollar check that he deposited in the First National Bank was a forgery ?
A Yes, sir.”
* * * * * *
“A The next day, which would have been June the 1st, he stated that he went to the shopping center, which would be the Bel Air Mall, and in my conversation with him, of course, he was offering me with the correct names of the different shopping centers, and we more or less pinpointed it down by describing it as the shopping center which was the closest.
Q All right.
A He stated that he had gone to the department stores of Holmes and Sears, which we described as being the two big department stores at each end of the Mall.
Q All right.
A He stated that he went to both of these stores and made purchases with the checks that had been given him by the First National Bank on this new account in the name of Foy E. Cochran.
He was able to describe the merchandise which he had obtained at both places, and, of course, he described this tape recorder.
Q This here State Exhibit Number 1 ?
A Yes, sir.
Q All right.
A (Continuing) As the merchandise that he had purchased from the Sears department store.”
* * * * * *
“A He stated, further, that after receiving the merchandise, he then took this merchandise, of course, along with others that he had purchased, to various pawn shops in downtown Mobile and pawned them, and thus converting it into cash and receiving cash money for the merchandise.”
******
“A On this particular day, June 5th, he stated that he had just arrived back in Mobile prior to his arrest from New Orleans, Louisiana. That he had gone over to New Orleans, Louisiana, for the purpose of checking out the banks in that city to initiate a check kiting scheme such as he had started here in Mobile. He stated that, however, he did not get to complete his mission because he went to the race track and lost what money he had at the race track.
In discussing other cities, he did state that he had been through other towns throughout Alabama perpetrating this same type check kiting scheme.
Q What do you mean by ‘kiting’, when you say that, please ?
A I mean that when — Such as you have described here on the blackboard, where you go into a bank and you open an account, and then you use a check on another bank for a deposit to show that you have a balance in the new account that you have opened. This, of course, gives the immediate impression, you know, that you have sufficient funds.
Q I see.
A This type of operation is just like this. They would go around to various merchants and make purchases on checks that, of course, had no value.
Q. All right, sir. I see.
And you say you subsequently checked out this information that he had given you on his background, and that he was, in fact, Arthur James Jones ?
A Yes, sir. In the course of being processed in the City Jail and fingerprinted, these were sent off to Washington, and we, of course, get a return on any prior history of an individual.”

The tape recorder was pawned to the Star Loan and Gun Shop, 50 South Royal Street in Mobile, in the name of Foy E. Cochran, and this transaction was reported to the Police Department. The pawn shop ticket was introduced in evidence without objection as state’s Exhibit No. 5, and the amount advanced was shown to be $25.00. Another police officer picked up the tape recorder from the pawn shop and introduced it in evidence as state’s Exhibit No. 1 without objection.

Appellant testified in his behalf. His testimony covers some forty-eight pages of the record. It would serve no useful purpose to set out in detail his testimony. In short, he admitted coming to Mobile on May 31, 1974, and testified as to the banking transaction with the American National and First National Bank of Mobile. He admitted the purchase of the tape recorder from Sears and that he subsequently pawned it and other items purchased at big department stores.

He admitted the various crimes for which he had been convicted. He denied telling Sergeant Phillips that he knew the Carver State Bank checks were forgeries and that he was engaged in any check kiting scheme.

In rebuttal the state called Mr. Frank A. Gilman, Special Agent for the Federal Bureau of Investigation. He interviewed appellant after first reading him the Miranda rights from a card and asked him if he understood his rights and he replied, “that he had been advised of his rights many times, that he fully understood his, and that he would freely and voluntarily answer all questions asked of him.”

On the whole this witness’ testimony corroborated Sergeant Phillips as to the admissions made by appellant even as to the fictitious Social Security number that appellant stated he made up at the moment he gave Mrs. Kelley when he opened the account in the First National Bank.

There was no motion to exclude the state’s evidence; there was no request for the affirmative charge; no exceptions were reserved to the oral charge of the court to the jury, however there was a pro se motion for a new trial filed and counsel was permitted to orally supplement additional grounds at the hearing on the motion, his main contention being that the state failed to prove a prima facie case against appellant unaided by his oral confession.

In Holloway v. State, 37 Ala.App. 96, 64 So.2d 115, the court held:

“Generally speaking, the crime includes a false representation of an existing or past fact which deceives and which induces the person to whom the deception is made to part with something of value. The falsity of the representation must be known to the accused and it must have been made with intent to defraud.
In other words, the offense consists of: (1) The pretense. (2) Its falsity. (3) Obtaining property by reason of the pretense. (4) Knowledge on the part of the accused of the falsity of the pretense. (5) Intent to defraud.
In the case of Young v. State, 155 Ala. 145, 46 So. 580, 581, the Supreme Court made this observation:
‘And if a person should fraudulently represent a fact to be true, knowing at the time that it is not true, and resorts to the fraudulent representation to obtain money from another, and does so obtain it, he would be guilty of “defrauding” another by “deceitful means,” and we do not doubt he would be guilty of obtaining the money under false pretenses.’
The case of Eaton v. State, 16 Ala.App. 405, 78 So. 321, 322, presents circumstances somewhat similar to those in the case at bar. In response to the review on appeal we held:
‘The giving of the check, if given without an explanation to the contrary, was in and of itself a representation, symbol, or token that the defendant had money on deposit in the bank on which the check was drawn, and if this check was given with the intent to deceive the seller of the goods in this case, and he was thereby induced to part with the title to his property, and the symbol or token was false, and the seller was thereby deceived, the defendant was guilty. The jury by its verdict so determined, as it had the right to do, and we find no reason in the record for disturbing the judgment of conviction.’ ”

In Gaddis v. State, 39 Ala.App. 630, 106 So.2d 268, the court said:

“Circumstances tending prima facie to establish the corpus delicti may be aided by admissions or confessions of an accused, duly admitted, so as to satisfy a jury beyond a reasonable doubt of accused’s guilt. Bryant v. State, 33 Ala.App. 346, 33 So.2d 402; Singleton v. State, 33 Ala.App. 536, 35 So.2d 375.”

To the same effect is the holding of the Supreme Court in the case of Bridges v. State, 284 Ala. 412, 225 So.2d 821, wherein the court said:

“The oral confession of the defendant was found to have been voluntarily given. It is inadmissible for the purpose of prima facie proof of the corpus delicti. Shelton v. State, 217 Ala. 465, 117 So. 8. But, ‘inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti. Matthews v. State, 55 Ala. 187, 195; Ryan v. State, 100 Ala. 94, 95, 14 So. 868.’ Hill v. State, 207 Ala. 444, 446, 93 So. 460, 462. The facts of this case bring it squarely within this rule.”

In Bridges v. State, supra, the court further held:

“The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Stewart v. State, 38 Ala.App. 365, 84 So.2d 658; Evans v. State, 39 Ala.App. 404, 103 So.2d 40, cert. denied 267 Ala. 695, 103 So.2d 44; Jones v. State, 40 Ala.App. 419, 114 So.2d 575.”

We cannot say that the verdict in this case is so patently against the weight of the evidence as to convince us that it was wrong and unjust.

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of the trial court should be, and is, affirmed.

Affirmed.

All the Judges concur.


text:
    Roy ROBINSON v. STATE.
    4 Div. 357.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Preston C. Clayton, Eufaula, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was tried and convicted of robbery and the jury fixed his punishment at ninety-nine years in the penitentiary, and in accordance with the verdict of the jury the court sentenced him to the penitentiary for that number of years. He was represented at arraignment and trial by court appointed counsel. He is in this court with a free transcript and trial counsel represents him on this appeal.

On November 23, 1974, Mrs. Brenda Jackson, the lone operator of the Zippy Mart grocery store located on West Ba,r-bour Street, in Eufaula, Alabama, was robbed by a Negro man. The time was 6:15 a. m. Mrs. Jackson’s hours of employment were from 11:00 at night until 7:00 in the morning. She testified that she went to the restroom and when she came back she noticed the Negro standing at the back of the store looking at something. She went behind the counter and was facing the front of the store and started signing her time sheet. She stated that the defendant came behind her and grabbed her around her neck and put a knife to her throat and asked her where the money was. She was shown a knife and asked if she could identify that knife, and she replied, “Yes, sir; that is definitely the one.”

From the record:

"Q. (Mr. Reeves continuing) All right. After he held you around the neck and held the knife on you, what happened then, please, ma’am?
A. (Witness continuing) Well, he asked me where the money was at and I told him that what we had was in the register which we were nearest to. We have two of them in the store and he obtained some one dollar hills and three five dollar bills out of that register. He then asked me where the rest of the money was and I told him that was all we had. He said, ‘I think you are lying’, and he pushed me back and moved.the mat on the floor. — we have a safe in the floor — and he flipped the lid off with his knife and obtained the change bag. It was full of change. I do not know how much change was in there. He obtained that bag and then he left with the bag — ”

After the robbery the robber walked out the front door and she went to the front door and saw him go around the side of the building toward the cotton mill. She then contacted the police. Mrs. Jackson was asked to look at the defendant in court and state if there was any doubt that the defendant was the man who robbed her at knife point and she replied, “No, sir; there is no doubt whatsoever.”

On cross-examination she was asked if she gave the officers a description of the accused and she stated:

“A. I told them — I told the police that he had on a gray looking sweater with black designs in it. He had a beard and he had a blue toboggan on his head. I described the knife he was carrying, the knife had a blunt edge on it, and that he had on blue jeans and he had a beard on his face.”

Mrs. Jackson further testified that she saw the man who robbed her thirty-five or forty minutes later when the police brought the appellant by to the store and she positively identified him as the robber. She said he had a beard on at that time but he was not wearing a beard at trial.

A radio dispatch was given to all police units on duty giving them the description of the suspect just as Mrs. Jackson described him.

Police Officer Porter Jackson responded to the call and talked to Mrs. Jackson. This witness testified that Mrs. Jackson told him that the man who had just robbed her was “a black male approximately five foot, eight inches, a hundred and fifty pounds, approximately. Wearing a blue knit cap with a gray sweater with black crossings and blue jeans.” This officer went to his patrol car and dispatched this information to two other units that where in service. The officer then proceeded south on Dale Road in search of the suspect. At approximately 6:45 a. m., on the same day, he found the suspect entering a home at 509% Earline Street. The officer ordered him to come out of the house with his hands on his head. He noticed that he was apparently tired and was sweating. At that time he was wearing a gray sweater, trousers, shoes, and was bleeding from the right arm. The suspect was placed under arrest, handcuffed and was carried directly back to the Zippy Mart where Mrs. Jackson positively identified him as the robber. When the officer arrested him, he searched his clothing and found seventeen one-dollar bills in his left front pocket. The officer further testified that the suspect had a beard and thick sideburns.

Police Officer Carl Thomas Edmondson testified that he received a radio dispatch from Officer Jackson giving a description of a suspect who had just robbed the Zippy Mart. The time was 6:17. He started search in the area he though the suspect might be found.

From the record:

“Q. Did you have an occasion to see the defendant?
A. Yes, sir.
Q. Is this him seated here in Court?
A. Yes, sir.
Q. What did you do when you saw him, sir?
A. I saw the subject and I stopped the car and the subject saw me at the same time and he tried to get out of the road. I was searching off of Stevenson Street and had turned on to Bullock Street and as he turned around I saw a knife sticking out of his right rear pocket.
Q. All right. I show you what has been put in as State’s Exhibit ‘1’ and ask you if this is the knife ?
A. This is the knife.
Q. Now, where was the knife ?
A. In his right rear pocket. The blade was sticking up and the handle was down.
Q. After seeing him what, if anything, did he do ?
A. He tried to go in the house at 405 Bullock Street. The door was fastened at the time and as I got out of the car I ordered the subject to come back out and told him that I wanted to talk to him. At that time he pulled the weapon out of his pocket and threw the knife at 'me and it went over my head and he ran across the street. I hollered for him to stop and then I fired upon him.
Q. Did you hit him ?
A. Yes, sir.
Q. Where did you hit him ?
A. In the right arm, sir. Right back here.
Q. What happened after that ?
A. He ran around the house and ran back of the house back across Bullock Street and headed south back across the vacant lot. I picked this knife up out of the yard and I called the other units and we started chasing him. I went around the block onto McKenzie Street and spotted the subject again. He fell over a fence and tried to get in a house and the man wouldn’t let him in the house and by that time I was out of the car and on foot and he ran across Earline Street and we lost him into the houses at that time. By that time the other units come and we started a house-to-house search and he was found.
Q. Were you present when he was found? Did you come onto the scene where he was ?
A. Yes, sir.
Q. Who found him there? Do you know?
A. Corporal Jackson.
Q. Is that the man that just testified?
A. Yes, sir; I believe so.
Q. Who was there when you arrived? Corporal Jackson and who ?
A. Corporal Jackson and an elderly gentleman by the name of Will Brun-didge. That is the house that this gentleman was in.
Q. All right. Where was he when you got there?
A. When I got there Corporal Jackson had him in the back of the car.
Q. Could you recognize him as being the same person you had fired upon?
A. Definately. (sic)
Q. Did you check him for any wounds ?
A. Corporal Japkson did and advised me he had been wounded.
Q. All right. Where did you take him ?
A. At that time he was taken to the Zippy Mart where he was identified by the cashier as being the man that had pulled the knife on her and had robbed her.
Q. Is this the same type sweater he had on on that occasion ?
A. That is exactly the same sweater. That is the description of the sweater and the blue jeans.
Q. What about a hat or anything ?
A. It was given to us that he had been wearing a hat. When I spotted him he did not have a hat on.
Q. How did you identify him as being the suspect that—
A. From his actions on running and because the fact the knife was sticking out of his pocket and because he threw the knife at me.
Q. All right, sir. Did you accompany him to the hospital ?
A. I did, sir.
Q. Who treated him, do you recall?
A. Dr. Whitehurst, I believe.
Q. Did you have an occasion to bring him back and charge him with this offense ?
A. We did, sir.
Q. Did you find any money on him on this particular occasion ?
A. I found three five dollar bills in his left rear pocket.
MR. REEVES: All right, sir. Your witness.”

The witness further testified that the three five dollar bills and the seventeen one-dollar bills together with the knife were placed in a brown manila envelope, sealed, initialed and put in Chief Brown’s office under lock and key where it remained until appellant’s trial. They were introduced in evidence.

Appellant testified in his behalf and denied that he robbed the Zippy Mart and denied that the officers took seventeen one-dollar bills and three five dollar bills from his pocket. He also denied that he had a knife. He testified that he was in another section of town at the time of the alleged robbery. He offered the testimony of two other witnesses in support of his alibi.

There was no motion to exclude the state’s evidence; there was no request for the affirmative charge; there were no exceptions reserved to the court’s oral charge to the jury, and there were no adverse rulings on the admission of evidence during the trial. However, after both sides rested appellant’s counsel made the following motion :

“I want to move to exclude the identification of the defendant by the witness Brenda Jackson on the grounds that she identified him in custody of the officers, handcuffed in the officers’ car alone with no other suspects being present.”

This motion was overruled. After the case was submitted to the jury they returned a verdict in ten minutes.

Appellant urges this court to reverse the conviction in this case solely on the action of the trial court in overruling his motion to exclude the identification of him by Brenda Jackson when he was brought to the store by police officers a few minutes after the robbery, without any lineup of people present from whom she might choose one, without any counsel, and with no person for her to identify except the man under arrest in handcuffs. He claims this form of identification has been condemned by the Supreme Court of the United States in Wade v. United States, 388 U.S. 218, 233-237, 87 S.Ct. 1936-7, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 275, 87 S.Ct. 1957, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 296-300, 87 S.Ct. 1970-71, 18 L.Ed.2d 1199.

We disagree and affirm the judgment of conviction.

In Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623, this court held:

“It is now settled law that prompt on-the-scene confrontation is ‘consistent with good police work’, and does not offend the principles established in the cases relied upon by appellant.
In Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, Judge Burger, now Chief Justice of the Supreme Court of the United States, writing for the court said:
‘There is no prohibition against a viewing of the suspect alone in what is called a “one-man showup” when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy.’

In Bates, Judge Burger further wrote:

‘Our review of the circumstances surrounding the apprehension of Appellant and the police conduct which led to his identification satisfies us that the claim that Appellant was denied due process of law is without merit; there was no “substantial likelihood of irreparable misiden-tification.” To the contrary, the police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh. * * * ’
The confrontation in this case occurred less than thirty (30) minutes after the robbery.
In United States ex rel. Cummings v. Zelker, 455 F.2d 714, the Court of Appeals for the Second Circuit said:
‘The confrontation in this case was a reasonable one. When the two suspects were brought to Mrs. Camardella’s house, only 30 minutes had elapsed since she reported the crime. If must have been obvious to the witness that the suspects were apprehended solely on the basis of the descriptions given by her to the police. Thus this prompt confrontation was desirable because it served to insure “the immediate release of an innocent suspect and at the same time [to] enable the police to resume the search for the fleeing culprit while the trail is fresh.” Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104, 1106 (1968). We view the instant situation as one in which prudent police work necessitated the on-the-spot identification in order to resolve any possible doubts the police may have had when they first took the petitioner into custody.’
See also United States v. Sanchez, 2 Cir., 422 F.2d 1198.”

In Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, the court stated:

“Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations in circumstances like those of this case will ‘if anything promote fairness, by assuring reliability * *.’ This probability, together with the desirability of expeditious release of innocent suspects, presents ‘substantial countervailing policy considerations’ which we are reluctant to assume the Supreme Court would reject. We therefore conclude, with some hesitation, that Wade does not require exclusion of McCann’s identification.
This conclusion does not rest on a determination that McCann’s identification was in fact especially reliable. It rests instead on a general rule that it is not improper for the police immediately to return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before.”

In Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267, Mr. Justice Douglas, although dissenting, readily conceded :

“Of course, due process is not always violated when the police fail to assemble a lineup but conduct a one-man showup.”

We hold that the identification procedure in the patrol car was not such as to create a likelihood of irreparable misidenti-fication.

This cause is due to be affirnjed.

Affirmed.

All the Judges concur.


text:
    Donald STONE v. STATE.
    1 Div. 562.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.
    Kenneth Cooper, Bay Minette, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant stands convicted of the crime of false pretense for which he received a ten-year sentence in the penitentiary. He was represented by retained counsel at all stages of the trial below and he is represented by trial counsel on this appeal. At arraignment he pleaded not guilty.

Omitting the formal parts, the indictment reads:

“The Grand Jury of said County charge that before finding this indictment on, to-wit: May 31, 1974, Donald Stone did falsely pretend to Frances Melton and Jane Spradley, with intent to defraud, that he had certain stones which were true diamonds, of the value of $12,600.00 and by means of such false pretense and by delivery of said stones to Frances Melton and Jane Spradley, did obtain from the said Frances Melton and Jane Spradley $12,600.00 in lawful currency of the United States of America, against the peace and dignity of the State of Alabama.”

Prior to trial counsel for appellant filed a petition alleging that appellant showed symptoms of mental incompetency and insanity and sought an inquisition into his mental status both as to the time of the commission of the offense and presently.

The court directed the Sheriff of Baldwin County to deliver appellant to the Alabama State Hospital, Searcy Hospital, at Mt. Vernon, to make an examination, observation and determination as to his mental condition. This order was issued on August 12, 1974. On September 17, 1974, the Superintendent of the hospital, the Chief of the Medical Staff, and a Staff Psychiatrist filed a report with the court stating, in part, “After full study and this period of observation, it is the opinion of each of us separately, and our opinion jointly and collectively, that the said Donald Stone is presently sane and competent. During all the time of hospitalization there has been no evidence of psychosis. It is our opinion that this patient knows the difference between right and wrong and is able to adhere to the right. His diagnosis has been offered as Antisocial Personality. It is also our opinion that he was sane and competent at the time of his admission to Searcy Hospital. It is our opinion that at the time of the alleged crime he was sane and competent, knew what he was doing and could adhere to the right.”

The evidence in this case is in hopeless conflict. The evidence for the state tended to show that a gigantic fraud was perpetrated upon the two women named in the indictment. The evidence on behalf of appellant tended to show that he was not involved in any wrongdoing. Only a jury could unscramble this conflicting testimony and arrive at the truth.

Mrs. Jane Spradle testified that she lived in Pensacola, Florida, and ran a flea market on Pensacola Boulevard. That she knew a Mrs. llene Hendrich, the mother of appellant, though she did not know Mrs. Hendrich had a son by the name of Donald Stone. She said she rented a table to Mrs. Hendrich on some weekends at the flea market and knew that she sold jewelry. She stated that sometimes Mrs. Hendrich sold diamonds. She further testified that Mrs. Hendrich initiated a conversation with her concerning the purchase of some diamonds. On May 30, 1974, Mrs. Hen-drich told her she had some diamonds that she wanted to sell for $12,600.00.

Mrs. Spradle was a good friend of Mrs. Frances Melton and she told Mrs. Melton about the diamonds and asked her if she would be interested in going in with her and purchase these diamonds. Mrs. Melton said she would have to call her husband to see about borrowing half of the purchase price, viz., $6,300.00. She contacted her husband and he told her to go to the bank and borrow the money.

Mrs. Melton testified that she did not know Mrs. Hendrich but she had bought a diamond from a woman who had bought the diamond from Mrs. Hendrich, That it was a good diamond and she paid $1,800.00 for it.

Mrs. Melton further testified that she had several telephone conversations with Mrs. Hendrich prior to May 31, 1974, and was familiar with her voice. She stated that she learned about Mrs. Hendrich through another friend, a Mrs. Boutwell, who told her Mrs. Hendrich brought some alleged diamonds to her house prior to May 31, 1974, but when Mrs. Hendrich learned that a jeweler was coming over to appraise the diamonds, she gathered them up and ran before the jeweler arrived. Mrs. Melton did not think too much about this incident as she had purchased a good diamond from a friend who bought it from Mrs. Hendrich.

Mrs. Melton further testified that she had several telephone conversations with Mrs. Hendrich on May 31, 1974, after she and Mrs. Spradle had borrowed the $12,600.00. These conversations related to where they would meet to complete the sale and purchase of the diamonds. Mrs. Melton asked her to come over to her house or to the home of Mrs. Spradle and Mrs. Hendrich replied that she wanted them to meet her in the churchyard at the Catholic Church at Lillian, Baldwin County, Alabama. Mrs. Hendrich told her she would be in a black and white Benz and Mrs. Melton thought a Benz was a Mercedes and would be parked in the churchyard. Mrs. Melton did not know that Mrs. Hendrich had a son named Donald Stone.

Mrs. Melton picked up Mrs. Spradle on May 31, 1974, and drove to Lillian, Alabama, as directed by Mrs. Hendrich. When they arrived they did not see a Benz or Mercedes but were stopped by a 'man wearing dark glasses who had parked a white van truck with black stripes with the word “Boogie” on the back of the van. This man got in the back seat of Mrs. Melton’s car and said he was Don Stone and was running an errand for his mom. He explained that his father was dead and that his mother had remarried a man by the name of Hendrich.

Stone had a black cloth and he opened it and displayed nineteen white small packages. Mrs. Melton got in the back seat and Stone opened the packages for Mrs. Melton to see. He would not let her pass the stones to Mrs. Spradle on the front seat. Mrs. Melton thought they were diamonds and gave Stone her $6,300.00 and he counted it. He appeared very nervous and when Mrs. Spradle gave him her $6,300.00 he did not count it but told her he was in a hurry and if the amount was not correct, he would let her know later. He told them he was going to carry the money to the airport and he got out of the car and got in the van truck and hurriedly left the churchyard.

Mrs. Melton and Mrs. Spradle immediately left and returned to Pensacola and went directly to see Mr. John Beasley who owned and operated Beasley & Son Custom Jewelers and Repair Shop. Mrs. Melton and Mrs. Spradle had been customers of Mr. Beasley for a number of years. Mrs. Melton showed him one of the stones and he immediately told both women the stone was glass. He examined two or three more and they were glass also.

Mr. Beasley testified for the state and according to his testimony the stones were not diamonds and at most were worth only $35.00 a carat. He described the stones as stronium titanate or “Fabulite” and not diamonds. On the witness stand he opened one packet and stated that it was one Fa-bulite imitation cut stone resembling a diamond worth about $80.00 and a smaller one which he said was worth about $50.00. There were twenty of these imitation stones in all and he stated they certainly were not worth anything like $12,600.00.

As soon as Mrs. Melton got home, she called the Pensacola Police Department and told them what had occurred. They gave her a number to call in Foley and the number was the Police Department. The officer told Mrs. Melton to get Mrs. Spra-dle and meet him at the Catholic churchyard where the transaction occurred. They met the officer, Bobby Stewart, as directed and he got them in the patrol car and carried them to the home of Mrs. Hendrich. Mrs. Melton told the officer that she had never met Mrs. Hendrich but she would recognize her voice. The officer brought Mrs. Hendrich to the patrol car and had a conversation with her at the door of the patrol car so that Mrs. Melton could hear her voice. The officer told her that if she would refund the money, they would not take her in. She said she did not know anything about any money as she had not sold Mrs. Melton or Mrs. Spradle any diamonds. Mrs. Melton told the officer she recognized Mrs. Hendrich’s voice as the woman who told her over the telephone that she wanted $12,600.00 for the diamonds and to meet her in Lillian, Alabama, at the Catholic churchyard to make the sale and purchase. Mrs. Spradle knew Mrs. Hendrich as she had rented 'her a table at the flea market. While they were parked in the patrol car, they saw the white and black striped van truck with the word “Boogie” on the back of the van. The officer asked Mrs. Hendrich where Stone was and she said he left and she did not know where he had gone.

Mr. Stewart kept the glass stones in his possession until he turned them over to the Chief of Police who locked them in a safe where they remained until they were brought to appellant’s trial. They were identified as being in the same condition as they were in when they were surrendered to the officer by Mrs. Melton and Mrs. Spradle who testified they were in the same condition as when they were given to them by appellant on the afternoon of May 31, 1974. These were admitted in evidence over appellant’s objections.

Mrs. Hendrich testified and denied having called Mrs. Melton and telling her to come over and bring the money because the diamonds were there.

Appellant testified that on the afternoon in question he went to a brown Buick automobile in Lillian, Alabama, where a man handed him a bunch of small envelopes and said you are to get twelve thousand six hundred dollers for these. He then got in his van and went to the Catholic church parking lot where he gave the packets to Mrs. Melton and received the money. He then got in his van and followed the brown Buick up the highway and stopped. He got out and gave the man the $12,600.00. The man then handed him $20.00 in return for his services.

At the conclusion of the state’s case appellant made a motion on the ground that a prima facie case had not been proved against appellant.

In Holloway v. State, 37 Ala.App. 96, 64 So.2d 115, the court held:

“Generally speaking, the crime includes a false representation of an existing or past fact which deceives and which induces the person to whom the deception is made to part with something of value. The falsity of the representation must be known to the accused and it must have been made with intent to defraud.
In other words, the offense consists of: (1) The pretense. (2) Its falsity. (3) Obtaining property by reason of the pretense. (4) Knowledge on the part of the accused of the falsity of the pretense. (5) Intent to defraud.
In the case of Young v. State, 155 Ala. 145, 46 So. 580, 581, the Supreme Court made this observation:
‘And if a person should fraudulently represent a fact to be true, knowing at the time that it is not true, and resorts to the fraudulent representation to obtain money from another, and does so obtain it, he would be guilty of ‘defrauding’ another by ‘deceitful means,’ and we do not doubt he would be guilty of obtaining the money under false pretenses.’
The case of Eaton v. State, 16 Ala.App. 405, 78 So. 321, 322, presents circumstances somewhat similar to those in the case at bar. In response to the review on appeal we held:
‘The giving of the check, if given without an explanation to the contrary, was in and of itself a representation, symbol,' or token that the defendant had money on deposit in the bank on which the check was drawn, and if this check was given with the intent to deceive the seller of the goods in this case, and he was thereby deceived, the defendant was guilty. The jury by its verdict so determined, as it had the right to do, and we find no reason in the record for disturbing the judgment of conviction.’ ”

In Bridges v. State, 284 Ala. 412, 225 So.2d 821, the court said:

“The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Stewart v. State, 38 Ala.App. 365, 84 So.2d 658; Evans v. State, 39 Ala.App. 404, 103 So.2d 40, cert. denied 267 Ala. 695, 103 So.2d 44; Jones v. State, 40 Ala.App. 419, 114 So.2d 575.”

In Haggler v. State, 49 Ala.App. 259, 270 So.2d 690, this court said:

“Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value is for the jury. Bolton v. State, 21 Ala.App. 373, 108 So. 631.”

To constitute the offense of- false pretense, it is enough if a material part of the pretense be false; that it be made with the intent to defraud, and that it induces the person sought to be wronged, to part with his property, and there are proper inquiries for the jury under appropriate instructions from the court. Wilkerson v. State, 140 Ala. 155, 36 So. 1004.

The evidence in the instant case fully complies with the rule announced in Wilkerson v. State, supra.

According to the testimony of the victims appellant said, “We are selling them at 39 carats. It might be over, but we are selling them at 39 carats. He told us there was nothing wrong with the stones. He said we could tell anyone where they came from; that they were not hot, and that we were not buying any stolen goods. He did not deal in that and that they could be sold anywhere and taken anywhere. He said they were good diamonds.”

According to Mr. Beasley, the jewelry expert, “The stone and the others that I looked at several after looking at this particular one, we opened several of the packets and they were all of the same material, like I said, which is a man-made material which is stronium titanate, or ‘Fabulite’ and not diamonds.”

Had a single one of the stones sold the victims by appellant been a diamond he would have produced expert testimony to prove this fact.

Conflicting evidence always presents a question for the jury as to the guilt of the defendant unless the evidence palpably fails to make out a prima facie case, Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Irons v. State, 42 Ala.App. 349, 165 So.2d 125; Bradford v. State, 35 Ala.App. 407, 47 So.2d 599.

Appellant’s motion for a new trial was overruled and denied. In reviewing the refusal of a motion for a new trial, this court will indulge every presumption in favor of the correctness of the ruling of the trial court and the decision thereon rests largely within the discretion of the trial judge. Jones v. State, 54 Ala.App. 251, 307 So.2d 59, and cases therein cited.

The trial court, over objections of appellant, permitted Mrs. Melton and Mrs. Spradle to be excluded from the rule. Appellant claims error to reverse by this action on the part of the court. We do not agree.

It is within the discretion of the trial court to excuse some witnesses and not others from the operation of the rule of exclusion, and this discretion is not reviewable. Patterson v. State, 53 Ala.App. 567, 302 So.2d 540; Rowell v. State, 53 Ala.App. 286, 299 So.2d 332.

It is sufficient to prove so much of an indictment as shows that the defendant has committed a substantial offense specified therein. Fuller v. State, 39 Ala.App. 219, 96 So.2d 829; Parks v. State, 46 Ala.App. 722, 248 So.2d 761; Owens v. State, 291 Ala. 107, 278 So.2d 693.

The trial court refused a number of requested charges. They refused charges stating correct principles of law were fairly and substantially covered in the oral charge to the jury. This complies with Title 7, Section 273, Code of Alabama 1940, and a host of case law including Kennedy v. State, 291 Ala. 62, 277 So.2d 878.

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none. On the record before us there was substantial evidence pointing toward the guilt of appellant, and the jury so found. There is no warrant for this court to disturb the verdict of the jury.

Accordingly, the judgment of conviction must be, and is, affirmed.

Affirmed.

All the Judges concur.