text:
    Phyllis A. HEMBREE v. JEFFERSON COUNTY BOARD OF EDUCATION, a corporation et al.
    Civ. 797.
    Court of Civil Appeals of Alabama.
    July 21, 1976.
    Rehearing Denied Aug. 18, 1976.
    William M. Dawson, Jr., Birmingham, for appellant.
    Gerald D. Colvin, Jr., Birmingham, for Jefferson County Bd. of Ed.
   HOLMES, Judge.

This ease comes to this court from the Circuit Court of Jefferson County. The Circuit Court of Jefferson County found that plaintiff-appellant, Phyllis A. Hem-bree, had been properly discharged by the Jefferson County Board of Education, defendant-appellee herein, from her position as a teacher with the Jefferson County public schools. Ms. Hembree now appeals to this court.

The issue before us is whether the trial court erred to reversal by its finding that the employment of plaintiff-appellant was terminated in accordance with applicable law. We find no such error to reversal, and affirm.

The pertinent facts as revealed by the record are as follows:

Plaintiff-appellant was first employed by the Jefferson County school system for the 1973-74 school year. She served that year and the following year at Bradford Elementary School as a Title I reading teacher. Title I is a federally funded program through which children are given remedial reading instruction.

Plaintiff-appellant was discharged from employment as a Title I reading teacher by notice dated May 26, 1975, and received by her prior to the end of the 1974-75 school year.

Suit was filed by plaintiff in the Circuit Court of Jefferson County on November 10, 1975. Plaintiff sought injunctive relief ordering her reinstated to her former position with back pay and seniority, a declaratory judgment that the action of defendant Board of Education was unconstitutional, and monetary damages in the amount of $10,000. As noted earlier, the trial court found that plaintiff was not entitled to the relief sought, and plaintiff appeals.

Able counsel for plaintiff-appellant argues through an excellent brief that plaintiff’s dismissal was not in accordance with applicable law. He contends that the notice given plaintiff was defective, and that defendant-Board was estopped to terminate her employment. He also contends that the Board unlawfully delegated its decision-making responsibilities in this regard to its subordinates, thus rendering the decision to discharge plaintiff void. A further contention is that plaintiff was denied due process of law in violation of the United States and Alabama Constitutions. We will discuss plaintiff’s contentions in the order of their enumeration.

It is appropriate to note at the outset that plaintiff was not a teacher on continuing service status, in that she had not served under contract as a teacher in the Jefferson County school system for three consecutive years. See Tit. 52, § 352, Code of Alabama 1940.

I

Controlling here is Tit. 52, § 361(2), Code of Alabama 1940, which provides as follows in pertinent part:

“Teacher deemed re-employed for succeeding school year unless notified. — Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered re-employment for the succeeding school year at the same salary, unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; . . .”

As noted earlier, plaintiff did in fact receive the notice mandated by this Code section.

The Title I program under which plaintiff was employed is federally funded, with the funds being made available to local school systems in late summer. The Board thus does not know until late summer whether it will have sufficient funds to employ for the coming school year all Title I teachers who were employed the previous year. However, § 361(2), set out above, mandates that all teachers who are not discharged prior to the end of the school year are automatically re-employed for the ensuing year. The defendant Board therefore makes a practice of discharging by the end of each school year all Title I teachers not on continuing service status, and rehiring those which it is financially capable of employing when the amount of federal funding becomes known.

Plaintiff notes that the large majority of Title I teachers discharged in this manner are subsequently rehired. Furthermore, she points out that she had been discharged the previous year in like manner and then rehired. True notice of discharge, she contends, takes place only when teachers are informed that they will not be rehired. As such, she argues that the § 361(2) notice received by her was a meaningless formality which failed to effectively apprise .her that she was in fact permanently discharged and would not be rehired. She did not discover that she would not be rehired until the following July, and asserts that the belated nature of this discovery disadvantaged her considerably in finding new employment.

The conclusion of plaintiff’s argument is that she was automatically rehired pursuant to § 361(2), since the notice received by her failed to inform her that she was discharged, and that the Board by its course of dealing is estopped to not rehire her. We do not agree.

As noted earlier, plaintiff did receive the notice required by § 361(2). Plaintiff was in fact discharged from her employment at that time. There was no guarantee that plaintiff would be rehired at a latter date; rather, there was only a possibility that she would be re-employed. The notice was thus effectual to convey that plaintiff’s employment had been finally terminated. The mere possibility that she might be rehired could not render the notice of discharge defective as being in any manner not final or a sham. Similarly, since the notice was adequate to serve its intended purpose, there obviously can be no estoppel against the Board. As was stated by the learned trial judge in his final order:

“The Plaintiff argues that the Defendants did not intend that the termination notice be an effective notice inasmuch as the same notice was given the Plaintiff the previous school year and she was thereafter rehired for another year. Based upon her previous years’ experience, the Plaintiff might have thought that the notice given her was a mere formality and that she would be rehired for the next school year. Unfortunately for the Plaintiff, hopes and expectations do not create legal obligations.”

Although we are sympathetic to those teachers who do not know until late summer if they are to be rehired, we have noted the funding problems peculiar to the Title I program. In light of these problems, we do not find that the Board’s action is so unreasonable as to warrant judicial intervention.

It remains to be noted that plaintiff’s employment was apparently terminated due to dissatisfaction with her performance as a teacher, rather than due to Title I funding problems. As such, it was known that she would not be rehired when the § 361(2) notices were sent to all nontenured Title I teachers. In view of our holding that the notice in question was effective as a notice of discharge, this fact is immaterial to our disposition of this case. However, we would point out that it is possible for the Board to notify teachers in situations such as this that they are not being considered for rehiring, without compromising the effectiveness of the § 361(2) notice as a statement of final discharge.

II

Plaintiff’s argument that the Board unlawfully delegated the responsibility for its decision to discharge her to its subordinates is also without merit. Section 86 of Tit. 52, Code of Alabama 1940, provides:

“Teachers appointed by county board. — The county board of education shall appoint, upon the written recommendation of the county superintendent, all principals, teachers, clerical and professional assistants authorized by the board. The county board may suspend or dismiss for immorality, misconduct in office, insubordination, or incompetency or wilful neglect of duty, or whenever, in the opinion of the board, the best interests of the school require it, superintendent, principals, teachers, or any other employees or appointees of the board, subject to the provisions of chapter 13 of this title. (1927 School Code, § 117.)” •

The written minutes of the Board of Education recite that plaintiff was discharged by the Board. The language of § 86, set out supra, gives the Board a wide discretion in the dismissal of teachers. An employing Board has the authority to summarily terminate the employment of nontenured teachers at the expiration of their contract. State v. Board of Education of Fairfield, 252 Ala. 254, 40 So.2d 689; Whittington v. Barbour County Board of Education, 250 Ala. 692, 36 So.2d 83; Robinson v. Jefferson County Board of Education, 5 Cir., 485 F.2d 1381 (1973). See also Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548.

Plaintiff points out that she unsuccessfully sought to be re-employed during the summer following her termination. The record reveals that the Board itself did not act on this matter, since the Superintendent of Education did not recommend her to the Board for appointment. Plaintiff insists this is an illegal delegation of authority by the Board.

However, Tit. 52, § 86, Code of Alabama 1940, specifically states that the county board of education shall appoint all teachers upon the written recommendation of the county superintendent. As such, the superintendent must recommend the appointment of a teacher before the Board is required to act. We do not find this procedure to be offensive to the rights of prospective appointees, since its purpose is to ensure that functions not requiring the Board’s action do not deluge it beyond its capacity to function. There was therefore no proscribed delegation in this instance.

It appears that the Board also relied upon the recommendation of its subordinates in dismissing plaintiff. Similarly, no illegality inheres in this action. It would be an administrative impossibility for the Board to function without reliance upon reports from its subordinates. This is the purpose of § 86 of Title 52, discussed above, requiring written recommendations from the superintendent. We recognize the administrative realities confronting the Board.

Plaintiff’s due process contentions remain to be treated. However, we feel they are adequately answered by our above discussion.

There being no error to reversal in the record, the case is due to be and is affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Henry Joseph GAINES v. STATE.
    1 Div. 659.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent here and below, was indicted, tried, convicted of murder in the second degree, and sentenced to twenty-one years imprisonment.

This case is a companion to the cases of Landry v. State, 56 Ala.App. 421, 321 So.2d 759; Wright v. State, Ala.Cr.App., 333 So.2d 215. All three indictments arose out of the same homicide at which time all three defendants were present and participated as principals or accomplices. The evidence in all three is essentially the same.

We find no errors in the rulings of the court. This instant judgment is due to be affirmed on authority of Landry and Wright, supra. It is so ordered.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under Section 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

AFFIRMED.

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


author: RILEY P. GREEN, Circuit Judge.

text:
    Linda Louise TATE v. STATE.
    1 Div. 699.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.

      T. M. Brantley, Bay Minette, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   RILEY P. GREEN, Circuit Judge.

Appellant was indicted for murder in the first degree, tried and convicted of murder in the second degree with sentence by the jury at fifteen years imprisonment.

The jury was polled. Each separate juror affirmed that the verdict was the verdict of the twelve jurors.

There was no motion for new trial, but there was a request for the affirmative charge.

The victim of the homicide was the appellant’s husband, Ernest Tate. The homicide occurred on Sunday, August 24,1975, in the police jurisdiction of the City of Fairhope. The deceased was a member of the Fair-hope Police Department. He was not on duty when he received five .38 caliber bullets from his 6-shot police revolver creating ten entrance and exit wounds to his body. All bullets entered the body from the right side. The bullet which probably caused instant death entered the right side of the head and passed through the brain. The deceased was found with his upper body on the ground with his legs through the open left door with his feet in the floor of the driver’s side of the automobile.

We have carefully considered the entire record under Title 15, Section 389, Code, including all of the testimony, even though no lawful objection was made, and find none prejudicial to the rights of the appellant.

Appellant urges reversible error from objections being sustained to several questions propounded to witnesses Ida Martin and Jerry Wainwright. The evidence sought to be elicited was subsequently received and heard by the jury notwithstanding the rulings by the Court. If there was any error in sustaining the original objections, which we don’t concede, it was corrected by subsequently admitting the evidence by further questions to the witnesses Martin and Wainwright, and by appellant’s own testimony which was not disputed. 7 Alabama Digest, Criminal Law, <s=» 1170(2).

The verdict is amply supported by the evidence. In fact, appellant voluntarily testified she shot her husband while he was seated in his parked automobile on a public street; that she was scared of the deceased and she got his revolver from their residence and drove approximately two miles to the scene of the homicide; that she parked her automobile near his automobile and opened the door on the passenger’s side of the deceased’s automobile but did not get in the automobile; that they cursed one another; that they passed quite a few licks, but she never got entirely inside the automobile; that she did not know why she removed the pistol from her purse and shot him while she was outside of the automobile; that she might have lost her head, and when she came to her senses, she was in jail. Under the evidence, the issue as to the appellant’s guilt was clearly for the jury’s determination. The evidence was not only sufficient to take the case to the jury on first degree murder, but was sufficient to support the verdict returned. The refusal of Charge 9, affirmative in nature, was proper and without error.

The trial judge clearly and fully expounded the applicable law in its oral charge to the jury, to which no exception was taken. Counsel representing appellant on this appeal represented her on trial. It is insisted that reversible error is made to appear in refusing all charges requested by appellant. Many charges refused were identical to forms cited in Jones, Alabama Jury Instructions. Requested charges must be acted upon by the trial judge in the terms in which they are written. Title 7, Section 273, Code. The fact that a written instruction is copied from an opinion of an appellate court does not assure its acceptability. Hanby v. State, 39 Ala.App. 392, 101 So.2d 553 (1957). Each charge has been considered in view of the evidence. We find no ground for reversal.

The appellant requested the following charges, which were refused:

“A. I charge the jury that your verdict must be unanimous, if any member of the jury has a reasonable doubt as to the guilt of the Defendant you cannot reach render a verdict at all but must mis-try the case.
“1. The Court charges the jury that, if there was sufficient provocation to excite certain passion and Linda Tate acted under such passion, then the presumption is that passion disturbed the sway of reason and made her regardless of her act; and if the jury believes this from the evidence, they should not find the Defendant guilty.
“2. The Court charges the jury that, if the killing in this case was without malice, the Defendant would not be guilty óf a higher grade of offense than manslaughter in the first degree, even though she was not wholely excusable.
“3. I charge the jury that, if you believe from the evidence in this case that on the occasion of the deceased’s death the Defendant became so frightened that she was unable to avoid shooting the Deceased and that the shooting would have been averted had the Defendant not become frightened and the deceased’s death was the sole proximate result of the Defendant’s becoming frightened and losing control of herself, you must find the Defendant not guilty.
“4. If any of the witnesses for the State have exhibited or admitted bias, prejudice, anger or ill will against the Defendant; or, from the evidence in this case you find such bias, prejudice, anger or ill will on the part of all or any of the State’s witnesses, and if these things when considered in connection with the other evidence in this case creates in your minds a reasonable doubt of the Defendant’s guilt, you should acquit.
“5. The Court charges the jury that, if you find from the evidence in this case that the deceased first used verbal insult toward the Defendant without provocation and then assaulted the Defendant, the Defendant had the right to defend herself from aggression on the part of the deceased; and, if you find the Defendant did not fight willingly and had no reasonable means of escape without increasing her real or apparent danger and if you find that under the circumstances existing at the time the Defendant shot she honestly believed that she was in imminent danger to her life or limb and the conditions at that time were such as would have impressed upon the mind of a reasonable person that' there was imminent danger, though there was no such danger in fact, but that it was only apparent, the Defendant would have been justified in shooting the deceased. “6. The Court charges the jury that, if you believe from the evidence that the killing in this case resulted from heat of passion engendered by the deceased’s activities in relationship with another woman and that the killing resulted solely from anger or heat of passion so engendered, the Defendant can not be convicted of murder.
“7. The Court charges the jury that it is the duty of the jury to consider the evidence tending to show a justifying motive in connection with the other evidence in this case and if they are in reasonable doubt of her guilt, you should acquit Linda Tate.
“8. The Court charges the jury that, if you are reasonably satisfied from the evidence that Linda Tate was free from bringing on the difficulty between herself and the deceased, that there was present a necessity either real or apparent to shoot her husband to protect herself from either real or apparent danger and she had no other reasonable means of escape from such danger, she was justified in shooting him and you must find her not guilty.
“9. The Court charges the jury that, if you believe the evidence in this case, you must find the Defendant not guilty.
“10. The Court charges the jury that, in determining whether the Defendant was in fact frightened by the deceased, you should consider the relative size of the deceased and the Defendant and whether or not the deceased had heretofore abused the Defendant and the degree of such abuse.
“11. The Court charges the jury that, if the killing was a result of a sudden blow which aroused the Defendant to sudden action or if you have reasonable doubt as to whether the killing was a result of passion suddenly aroused by a blow from the deceased, then you can not find the Defendant guilty of murder.
“12. If the jury believes from the evidence that the deceased was of a violent character, you are to take such evidence into consideration in determining the degree of the Defendant’s guilt providing you find her guilty.
“13. I charge you, gentlemen of the jury, that if one of your number has a reasonable doubt of defendant’s guilt, you cannot convict defendant.
“14. The Court charges you, gentlemen of the jury, that, if, upon considering all the evidence, you have a reasonable doubt about the guilt of the defendant, arising out of any part of the evidence, you must find the defendant not guilty.
“If the evidence, or any part thereof, after a consideration of the whole of such evidence, generates a well-founded doubt of defendant’s guilt, the jury must acquit her.
“15. The court charges the jury, if, after considering all the evidence in the case, that tending to show guilt, together with that tending to show innocence, there should spring up involuntarily in the minds of the jury from any part of the evidence a probability of the innocence of the defendant, the jury must acquit.
“If the evidence in this case convinces the jury that there is a probability of the defendant’s innocence, then your verdict should be not guilty.
“16. The Court charges the jury that the indictment in this case is not any evidence in the case, and the fact that defendant has been indicted is not to be considered by you as a circumstance against her, but said indictment is merely the method of placing defendant on her trial, but the presumption of innocence attends the defendant throughout this trial and remains with her and authorizes an acquittal, if the entire testimony fails to overcome said presumption, by proof of defendant’s guilt beyond a reasonable doubt.
“17. The Court charges the jury that the innocence of defendant is presumed until her guilt is established by the evidence in all the material aspects of the case beyond a reasonable doubt, to a moral certainty, and it may also be said that evidence of guilt must be strong and cogent, and unless it is so strong and cogent as to show that defendant is guilty to a moral certainty, defendant should be acquitted. “18. It is the duty of the State to prove every material fact charged in the indictment to a moral certainty, and to satisfy the mind of the jury of the defendant’s guilt beyond all reasonable doubt, and if they have failed to do this, and the jury can account for the defendant’s innocence upon any reasonable hypothesis, in view of all the evidence, then they should find her not guilty.
“19. Each one of the jury must believe beyond a reasonable doubt that the defendant is guilty. Yet, it does not follow that the defendant should be acquitted unless each one of you believe beyond a reasonable doubt that the defendant is guilty; for, if one of several of you believe beyond a reasonable doubt that the defendant is guilty, and one or more of you entertain a reasonable doubt of her guilt, there could be no verdict, but a hung jury; in other words, it takes 12 of you to believe beyond a reasonable doubt that the defendant is guilty before you can convict her and if either one of you doubt that question you cannot convict her.”

Charges A, 13 and 19 were correct statements of law. The jury was polled and it was not error to reverse where the trial court in its oral charge informed the jury that its verdict must be unanimous. Tooson v. State, 56 Ala.App. 613, 324 So.2d 327 (1975).

Charge 1 is incorrect, incomplete, invasive of the province of the jury, and directs a verdict for the defendant on all degrees of homicide embraced in the indictment without consideration of any lesser included offense. It was refused without error.

Charge 2 was fairly and substantially covered in the oral charge resulting in no prejudicial error by its refusal. Title 7, Section 273, Code 1940.

Charge 3 was properly refused for many reasons. It is an inaccurate statement of law; it invaded the province of the jury by confining them to a consideration of part of the evidence, and is misleading by use of “sole proximate result”.

Charge 4 is a correct statement of the law. In this case, the charge is abstract and was properly refused for the same reasons as given in Rhoden v. State, 49 Ala. App. 605, 274 So.2d 630 (1973).

Charge 5 refused to the defendant was not argued in brief as error. Its refusal was not prejudicial since the law of self-defense was adequately covered by the trial court in his oral charge.

Caldwell v. State, 203 Ala. 412, 84 So. 272 (1919), is not considered apt authority for the giving of Charge 6. Charge 6 is inaptly drawn, erroneous, and calculated to mislead the jury because it leaves them to infer that merely being in the presence of another woman by the deceased would amount to sufficient provocation for killing. The charge is not predicated upon sudden passion or adequate provocation such as an assault actually committed on the appellant or the immediate killing of a spouse after finding the other spouse in the act of adultery. Davis v. State, 214 Ala. 273, 107 So. 737 (1926); Sheppard v. State, 243 Ala. 498, 10 So.2d 822 (1943).

Conceding that Charge 7 was approved in Dennis v. State, 118 Ala. 72, 23 So. 1002 (1897), we are not persuaded its refusal in this case was prejudicial error or how that proposition concerns this case. The corpus delicti and appellant’s causation was clearly established by the prosecution and appellant. The evidence was not circumstantial. Appellant admitted she killed her husband while he was seated in his automobile but doesn’t know why for she must have lost her head. A good motive will not excuse an otherwise criminal act. Proof of a motive for the crime is not indispensible to a conviction and guilt may be established without motive entertained by an accused. One the criminal act and connection of the accused with it is proved beyond a reasonable doubt, there is no room for speculation as to its nature. Wingard v. State, 247 Ala. 488, 25 So.2d 170 (1946); Rice v. State, 250 Ala. 638, 35 So.2d 617 (1948); McKee v. State, 35 Ala.App. 174, 44 So.2d 777, reversed, 253 Ala. 235, 44 So.2d 781 (1949). We are satisfied the verdict of the jury would not have been different if the charge had been given. There was no evidence which tended to show a justifying motive for the killing. The charge was abstract. 6A Alabama Digest, Criminal Law, &wkey;813. For these reasons, its refusal was not error.

Charge 8 was not argued by appellant on appeal. However, the charge was refused without error since it is faulty in that it uses the language “free from bringing on the difficulty,” rather than “free from fault,” as required by our decision. Francis v. State, 188 Ala. 39, 65 So. 969 (1914); Montgomery v. State, 2 Ala.App. 25, 56 So. 92 (1911).

Appellant cites Doswell v. State, 34 Ala.App. 546, 42 So.2d 480 (1949), as authority for reversible error in refusal of Charge 10. Doswell stated that:

“Ordinarily, one may not repel the attack of an unarmed man by killing him, for ordinarily, such an attack does not furnish reasonable ground for the apprehension of great or grievous bodily harm, but it does not follow that in'every such case the great bodily harm which the law of self-defense contemplates can never be inflicted by blows with hands or feet. That may depend upon circumstances, such as great disparity between the parties in the matter of physical power or other peculiar conditions.”

The verbiage of the charge is argumentative and properly refused. 11A Alabama Digest, Homicide, &wkey;300(4).

The first alternative of Charge 11 predicates acquittal of murder if the killing resulted from a sudden blow arousing the appellant to sudden action. Homicide may be committed in the heat of passion suddenly aroused by a blow, and yet be done maliciously. Suddenly aroused passion and malice may coexist, and both cause the act. The resulting homicide is murder and not manslaughter. The trial judge in part stated to the jury:

“In order for a homicide to be reduced from murder to manslaughter, there must be no malice in the killing. In other words, it must not be a malicious killing. If the killing is malicious, even if it is done in the heat of passion, it is murder. Even if a killing is done in the sudden heat of passion, excited by sufficient provocation, if there is malice in it, it is murder. And if deliberation and premeditation are present, then it is murder in the first degree. Anger and rage do not reduce an unlawful killing from murder to manslaughter if it has the other elements which are necessary to constitute murder. But if a killing is done in a sudden heat of passion, and this passion is excited by sufficient provocation such as blow or a threatened blow, and the killing is without malice, then it is manslaughter in the first degree.”

No prejudicial error to the appellant resulted in refusal of the entire charge.

The refusal of a charge in McMillon v. State, 37 Ala.App. 690, 74 So.2d 728 (1954), similar to Charge 12, was held reversible error. Even if it be conceded that, under the evidence pertaining to self-defense, the appellant was entitled to show the character of the deceased was that of a violent and bloodthirsty man, an inquiry of this character must relate to reputation. It is not permissible to show specific acts of conduct. Stokely v. State, 254 Ala. 534, 49 So.2d 284 (1950). In each case cited in McMillon as authority for the propriety of the charge refused, there was before the court evidence of general reputation of the deceased for being violent. In the instant case, there is no evidence that the deceased bore such character in the community in which he lived. And while there is evidence tending to prove the deceased during the marriage to appellant had struck the appellant, and on an occasion shot at appellant, this is not such evidence that the deceased bore a violent character, generally. Sanderson v. State, 28 Ala.App. 216, 181 So. 506 (1938). The charge was properly refused as abstract and misleading under the evidence.

Charge 14 was refused without prejudicial error for the oral charge of the court fairly and adequately covered the refused charge. Landrum v. State, 38 Ala.App. 85, 76 So.2d 349 (1954), contains no statement of law supporting the validity of the charge as argued by appellant.

The verbiage of the first paragraph of Charge 15 was said in Smith v. State, 182 Ala. 38, 62 So. 184 (1913), to be subject to “hypercriticism”. The second paragraph of the charge has had a checkered career and the refusal of such is not reversible error. Stokely v. State, supra. The oral charge of the court explained that the appellant must be acquitted or found not guilty of the homicide embraced in the indictment unless shown guilty beyond a reasonable doubt. There was no error in refusing the entire charge as requested. Little v. State, 34 Ala.App. 114, 39 So.2d 587 (1948).

Refused Charge 16 was not argued on appeal. The subject matter was fairly and substantially covered in the oral charge.

Charge 17, though not argued on appeal, was properly refused on authority of Wilson v. State, 243 Ala. 1, 8 So.2d 422 (1942).

Charge 18 is misleading. The indictment charged appellant with first degree murder. The jury might conclude that the evidence offered by the State failed to show beyond a reasonable doubt all of the essential elements of first degree murder, and they should acquit the defendant entirely. Davis v. State, 152 Ala. 25, 44 So. 561 (1907); Snoddy v. State, 20 Ala.App. 168, 101 So. 303 (1924). Also the use of “all” is too emphatic in favor of the appellant. Alldredge v. State, 45 Ala.App. 171, 227 So.2d 803 (1969); Breazeale v. State, 51 Ala.App. 320, 285 So.2d 130, cert. den. 291 Ala. 774, 285 So.2d 134 (1973). No error to appellant by its refusal.

Appellant submits that fear and fright were the likely reasons causing her to lose control of herself and shoot Ernest Tate. The principle which allows prompt action by one feloniously assaulted by a person who possesses the reputation to be violent and bloodthirsty is confined exclusively to defensive measures, and furnishes no excuse for aggressive action in the absence of an overt act sufficient to impress the mind of a reasonable person that a felonious assault is threatened. It has no application where there is no necessity to defend, or where the necessity to defend has been the product of the slayer. The evidence was without conflict that appellant obtained deceased’s revolver from their home and drove approximately two miles and killed the unarmed deceased while he was seated in his parked automobile on a public street by shooting him five times, even though all six bullets were fired; that the shots were fired by appellant through an opened door on the passenger side of the automobile while appellant was outside of the automobile; that prior to the shooting the deceased and appellant argued and passed licks, and that the subject of the argument was the identity of a woman who appellant had seen earlier that day riding with deceased in the automobile in the company of other friends. Even if appellant was not at fault in bringing on the difficulty, there was no evidence from which an inference could arise that she was in present actual or apparent peril of a present felonious assault creating a necessity while armed for deadly combat to kill the deceased. The appellant did not retreat or decline further combat after the licks or argument had concluded in the automobile but willingly used unnecessary force.

Murder is frequently committed during personal encounters into which the parties enter into mutually, or in many cases in which the deceased strikes the first blow. Murderers sometime provoke an intended victim that they may wreak vengeance upon him who is made to appear the aggressor. A homicide thus perpetrated is murder.

Able counsel for appellant has made an earnest appeal for this unfortunate mother of five children who admittedly killed her husband. While we must confess the jury showed appellant mercy, such matters were for the consideration of the jury. If any clemency should now be extended, such an appeal should be addressed to another forum. We merely sit in review with respect to errors on trial. The appellant was entitled to and received a fair trial. We have examined the entire record and find no error to reverse.

The foregoing opinion was prepared by Hon. RILEY P. GREEN, Jr., Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge. DeCARLO, Judge

text:
    Janet BARNES, alias, v. STATE.
    4 Div. 445.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Rehearing Denied Aug. 24, 1976.
    Allen Edward Cook, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of possessing marijuana for personal use only and the jury assessed a fine of $1,000.00 against her. As additional punishment the Court sentenced her to a term of six months in the Covington County Jail. At arraignment with retained counsel present she pleaded not guilty. After conviction and sentence she gave notice of appeal. She was found to be indigent and was furnished a free transcript. Trial counsel was appointed to represent her on appeal.

Deputy Sheriff George Szpek first testified for the State. He testified that on December 7, 1975, he went to Mrs. Brown’s trailer in Babbie in response to a call from Chief Deputy Sheriff Don Harrell to bring a warrant for a Patsy Quinlan, who Deputy Harrell believed might be in the trailer. Deputy Harold Easley was riding with Szpek and the two of them met Deputy Harrell at the trailer at about the same time. Szpek said that he and Easley got out of their car and went to the trailer, and Harrell hollered to them that somebody had gone out the back door. Szpek said that he went to the door and Mrs. Brown came to the door and he told Mrs. Brown his purpose for being there, that he had a warrant for Patsy Quinlan, and wanted to know if she was there, and that Mrs. Brown said no. Szpek asked Mrs. Brown if he could look in the house and Mrs. Brown said he could. Deputy Easley went around to the back of the trailer and Szpek went into the living room through the front door. Inside were Mrs. Brown, Sheila Woodham, Lamar Joye, Janet Barnes and Joey Barnes. Joey was standing by the end of the couch in the hallway at the back of the house trailer. There is a back door to the trailer. You go to the left to the back door, and Joey Barnes was standing at the entrance of the hallway to the back door. Szpek made a search of the trailer and found no one else there. He talked to Mrs. Brown, Joey and possibly to Janet. He then went out the back door of the trailer where Don Harrell was standing. He went outside and Don pointed to a bag.

Appellant objected to the State’s proving what was in the bag. Out of the presence of the jury it was developed on voir dire examination that the deputies had a warrant for one Patsy Quinlan which was produced in Court at that time. This warrant is set out at R. 157-165. Deputy Szpek said that they had no other papers other than the warrant and associated papers from Georgia and that they had no Alabama warrant of any kind: Defendant renewed her objection that the officers went there without a legal warrant for the arrest of Patsy Quinlan and that any search and seizure that came about while on the premises was unlawful. The Court overruled the objection. Still out of the presence of the jury, Deputy Szpek further testified that Deputy Harrell pointed out a small paper bag lying under a bush with a velveteen pocketbook lying on the top of the bag. It was six to ten feet from the back door. Defendant renewed her objection and moved to exclude what Deputy Szpek found or saw and the Court overruled. Deputy Szpek picked up the items. The ground’s condition was damp and cold. The bag and the purse were dry, furry, and warm. Deputy Szpek took the items inside and kept them in his possession until he delivered them to the Enterprise lab. He kept them in the trunk of his car and took them to the jail and locked them up in the evidence room. He later removed them and took them to Enterprise to the lab and turned them over to Mrs. Hazel Killett.

While out back of the trailer, Janet and Joey Barnes came outside. Out of the presence of the jury Deputy Szpek further testified that he picked the stuff up and Janet said, “That purse is mine,” and Joey hollered, “That stuff is all mine, leave her out of it.” Defendant objected to that and the Court overruled. Deputy Harrell then read both of them their rights which were from a standard Miranda card. They acknowledged that they knew their rights. They all went back inside then and dumped the stuff on the coffee table and inventoried it and then sealed it up, put it in the trunk of the car. Defendant renewed her objection as to. the finding of the various items.

Back before the jury Mr. Szpek again testified to what Joey and Janet said and the appellant again objected and the Court again overruled. He again related about reading the rights to them. He again related about taking the articles and locking them up and taking them back to the jail.

On cross-examination he said that he did not know if Janet Barnes lived in the trailer in question or not, that it was some time after 10:00 p. m. and that it was dark when they went there.

The Deputy Howard Easley testified for the State. He related the same general information about going to the trailer as did Deputy Szpek. He stated that he went around behind the trailer when they first arrived but did not see anyone back there. He then said that he came around to the front and went through the front door inside with Deputy Szpek and that Mrs. Brown, Janet Barnes, Joey Barnes, Miss Woodham and Mr. Joye were inside. He testified that he and Deputy Szpek made a preliminary search of the trailer to see if anyone else was there and then returned to the living room and asked questions of those there. He then testified that Joey Barnes asked him, “What am I charged with?” And he then read everybody their rights. That he read the standard Miranda card to them and asked them if they understood and they said that they did. He took their names, addresses, and phone numbers at that time.

On cross-examination Deputy Easley testified that he had a warrant from Georgia for Patsy Quinlan and that he searched the trailer for her but did not find her. He also testified that the deputies had no other papers of any kind for Patsy Quinlan other than the Georgia warrant. He testified that the deputies did not have a search warrant nor an arrest warrant for any other person. He stated that none of the deputies had gone before any Alabama magistrate or judge to procure an Alabama warrant based on the Georgia papers. Over appellant’s objection the Georgia warrant was admitted into evidence.

The next witness for the State was Deputy Sheriff Don Harrell who testified that he knew Mable H. Brown and knew where she lived near or at the old Babbie schoolhouse in a trailer. He testified that he knew her two daughters, Patsy Quinlan and Janet Barnes; that Janet Barnes was the Defendant in this case and he identified her as sitting at the counsel table. He further testified that he went with the other two deputies on December 7, 1975, to .Mrs. Brown’s trailer in Babbie and that the occasion for going there was that he had previously been driving by there and saw a bunch of cars there and remembered that he had a Georgia warrant for Patsy Quinlan and decided that he would look for her there. He radioed Deputy Szpek and Eas-ley to meet him with the warrant and they did. He then related about arriving at the trailer and going in and around the trailer much as was related by Deputy Szpek and Easley earlier. Deputy Harrell stated that when Szpek knocked on the door a pair of legs ran down the back steps and then went back into the trailer and that he yelled and Deputy Easley ran around the trailer. He testified that the legs had on blue pants and a type of boot, not cowboy boots but similar to the engineer’s type boots, a brown boot with a kind of strap. He testified that he then began looking around outside the trailer. At this point the appellant objected on the ground that the State had not laid a predicate for any search and the Court overruled. Then Deputy Harrell said he looked back of the trailer near the steps and saw a brown bag with a billfold type purse lying on top of it; that he went inside and told Deputy Szpek and Mrs. Barnes and her husband went outside with them.

He noticed that the sack and purse were still warm. Over Defendant’s objection he quoted that Joey Barnes said, “Leave her out of it, that’s mine,” and Janet said, “No it’s not, that purse is mine.” He then testified that he read them their rights from a Miranda warning card. He then testified that they went back inside the trailer and identified and labeled items in the sack. He then testified that they carried them to the Covington County Jail in Andalusia and booked them for violating the Controlled Substances Act for possession of marijuana and paraphernalia.

On cross-examination Deputy Harrell said that they went to the trailer looking for Patsy Quinlan and had the Georgia warrant which was appellant’s Exhibit No. 1 previously referred to with them. He testified that he had no other papers relating to the matter and that if they had arrested Patsy Quinlan, he would have then obtained a fugitive warrant because he knew a felony had been committed. He said that he had not gone before any Alabama magistrate prior to December 7, 1975, because he had had no opportunity to carry the Georgia papers before an Alabama magistrate and that that night he had not had time to do so. He said that had he found Patsy Quinlan he would have arrested her and put her in jail and the next day he would have gone and gotten a fugitive warrant. He then sketched on a blackboard the layout at the trailer. He indicated on the sketch where the trailer was and the schoolhouse and the driveway where the cars were parked. He indicated other structures in the vicinity.

He again related seeing the two pairs of legs with blue pants and brown boots. He said that these legs and boots were not Janet’s, the appellant’s in this case. He further indicated the various things he saw at the scene by drawing them off on the blackboard.

On redirect examination by the State, Deputy Harrell stated that two other persons who were at the trailer, Shirley Wood-ham and James Joye, both admitted to him that they had smoked marijuana there before he got there that night. He further stated on recross-examination, that Janet did not admit to him that she had smoked any marijuana.

The next witness was the appellant Janet Barnes called in rebuttal to the State’s evidence regarding the search and seizure of the alleged controlled substances. The appellant stated that on December 7,1975, she resided at her mother’s trailer in front of the old sehoolhouse. On cross-examination, she said she had been living there a week or two.

The State then called Deputy Szpek to rebut the testimony of the appellant on the question of where the appellant lived. This took place outside the presence of the jury. Szpek said that Janet and Joey said that they were just visiting Janet’s mother watching television.

Then the State further cross-examined the appellant on the same question.

Then the appellant renewed her objection to the offer of evidence of the substances alleged to be controlled substances found by the deputies behind the trailer of Mrs. Brown. The Court overruled the objection.

The next witness for the State was Melinda Long. She testified that she worked for the State of Alabama Department of Toxicology and Criminal Investigation in Enterprise, Alabama. She said that she had a B.S. degree in microbiology from the University of Alabama and had worked with the Department of Toxicology for two years and six months in training at Auburn. She testified that she had inorganic and organic chemistry, quantitative analysis, biochemistry. She testified that as a part of her training she made chemical analysis of substances to determine the contents of the same. She testified that she had had occasion to make chemical analysis of marijuana to determine the chemical content. She testified that she had had occasion to run a chemical analysis or other tests to determine the chemical content or make-up of certain pills, capsules and tablets.

She testified that in the latter part of December, 1975, she was delivered a packet by Deputy Szpek in reference to Janet Sue Barnes, that it was on December 8, at the Enterprise laboratory. She then catalogued the various items received. She examined the items and ran a chemical analysis or laboratory test to determine if they contained any controlled substances. At this point appellant objected that they had not proved the chain of evidence prior to the admission of the identification evidence by the lab expert. The Court sustained.

The State then questioned Melinda Long further. She said that Deputy George Szpek delivered that to the laboratory in Enterprise and that it had been in the lab’s custody until today (Court day). She testified that it was in the same condition now as it was when received by the lab and that the seal was still intact.

The State again asked her to tell the controlled substances she may have found among the substances seized. Appellant objected and the Court overruled. Appellant called the Court’s attention that Deputy Szpek had testified that he gave the substances to somebody named Killett rather than Miss Long and that they had not established the chain of evidence as to these substances. The Court still overruled and appellant excepted.

Then the State asked Miss Long who Hazel was and she replied that Hazel was her secretary and that it was part of her duties to receive incoming parcels and packages of mail. That the substances were turned over to her (Miss Long) there in the lab and they were sealed when she received them. She opened the package below the seal and ran the tests.

Appellant took the witness on voir dire examination. She said that she was not there when Deputy Szpek brought the material in the sack to the lab. She said that it was turned over to her by Hazel Killett. She said that she did not know what Hazel might have done with it while she had it. She said that she could tell that the sack had not been opened. She said that it appeared that it had not been opened. Appellant renewed her objection to the evidence and the Court sustained.

The State then called Deputy Szpek to the stand who said that he sealed the material in a bag and took it away from the trailer of Mrs. Brown. Deputy Szpek also examined a bag in the courtroom and identified markings on the bag as being his initials. He testified that the bag he was examining in Court was the bag that he handed to the lady in the office in the Toxicology Lab in Enterprise. He testified that he put his initials over the seal, stapled it, folded it and then taped it and put his initials over the tape.

On cross-examination Deputy Szpek said that he could not remember if other people were present at the lab when he delivered it. He testified he did not know who got the bag after he delivered it to Mrs. Killett. He testified that he could not remember if Mrs. Killett cut it open to see what was inside the bag. He testified that he didn’t see who Mrs. Killett delivered it to after he handed it to her. He testified that he did not know who opened it. He testified that he could not remember if it was opened in her presence or not.

Then the State questioned Deputy Szpek further. He testified that he gave the bag to Mrs. Killett and told her to give it to the people who work in the lab.

Mrs. Melinda Long was recalled to the stand. She testified that Mrs. Killett was in charge of departmental distribution and her occupation was to receive mail items and packages and then turn them over to the lab technicians to run tests. She testified that Mrs. Killett gave her the bag which was produced in Court regarding Janet Barnes. She further testified that when Mrs. Killett gave the bag to her, it was sealed and that she examined it. She testified that the bag did not appear to have been molested in any way. She testified that it appeared to be still sealed. At this point the appellant again objected on the same grounds and the Court overruled.

The State elicited from Miss Long an itemized description of the items found in the sack to which appellant objected throughout and the Court overruled throughout. Miss Long said that the chemical element entity present was tetrahydro-cannabinol. She said this in regards to the marijuana she testified about.

On cross-examination she testified that she had refreshed her recollection from her report in the case and that throughout the report the spelling of the substances was “marihuana.”

On redirect examination, she testified that the marijuana she had testified about contained tetrahydrocannabinol.

The appellant orally moved to exclpde the State’s evidence and particularly the substances alleged to be controlled substances on the grounds that they were obtained as a result of an unlawful search and seizure of the premises and on the further grounds that the chain of evidence as to such substances was not established by the State and on the further grounds that the expert witness was not competent to give expert testimony as to the nature and identity of the substances. And on the further grounds that there had been no evidence to connect the appellant with the substances or to show constructive possession of the substance by the appellant or to show any guilty knowledge on her part. The Court denied the motion and appellant excepted. Then appellant filed a written motion to exclude the State’s evidence which is set out at R. 141-142. This was also denied.

The State having rested, the appellant took the stand as a witness. She testified that she was 20 years of age and that she was at the trailer of her mother together with her husband, Lamar Joye and Shirley Woodham on the occasion in December testified about. She testified that her husband was Joey Barnes and her mother’s name was Mable Brown. She testified that her mother resided in a mobile home in Babbie. She testified that the rough sketch on the blackboard was generally the way the layout was at Babbie. She testified that the deputies arrived at about 10:30 and that the four young people had been at the trailer since about 6:00 and that this was on a Saturday night. She testified that Deputy Szpek and Easley did come in the trailer that night and that she was sitting on the couch in the living room when they came in. She testified that she had heard the testimony and saw the evidence that was presented in Court against her earlier. She testified that she had never seen the stuff (seized by the deputies) before that night. She testified that she did not know how it got to where it was found by the deputies. She testified that she had not put it out there. She testified that she did not know who put it out there. She testified that she did not know how it got there. She testified that she had not seen anyone else smoke any marijuana and did not know if anyone else had smoked any marijuana there that evening. That if they did smoke any marijuana there, it was beyond her knowing of it. She testified that the purse which had been introduced into evidence which was tan in color with suede finish was her purse. She testified that she did not know how it got out on the ground where the deputies testified that they found it. She testified that the last time she saw the purse was on Friday and that this was on Saturday when the deputies came. She did not recall where it was. She did not keep money in it and did not carry it with her everywhere she went. She testified that the last time she saw the purse was on Friday and that she did not know how the purse got out there where it was. She testified that she did not know whether or not there had been other people around the trailer there prior to that Saturday evening. That if there had been she did not know it. The last time she saw the purse before then was on Friday morning at work. She did not know when she last saw it on Friday. There is another trailer very close to where her mother’s trailer is and people live there and people come and go from there. There is also a house nearby and people live there and come and go from there. She testified that she did not know what was out there on the ground nor how it might have gotten there. The appellant testified that she did not put it there. The appellant testified that they arrested Joey and they arrested her. She testified that she remembered saying to the deputies, “That’s mine.” She testified that she was talking about the purse when she said that. She was not talking about the other stuff that she saw there. The deputies did not arrest Lamar Joye and Shirley Wood-ham.

On cross-examination she testified that the other folks had done nothing to be arrested for. She stated that she had not smoked any marijuana in the trailer there that night. She testified that Joey Barnes did not leave the trailer that night and she further testified describing the layout of the trailer. She testified that Joey did not grab up the sack of stuff and run out the back door and come right back in. She stated that she was living at her mother’s trailer. She testified that she either lost or misplaced her purse. She again testified that that was her purse and that she claimed it there on the back steps that night. At this point the appellant rested.

On rebuttal the State called Lamar Joye who testified that he was 27 years of age and lived at Route 8, Andalusia, and was a student at Lurleen B. Wallace State Jr. College. He testified he went to Mable Brown’s trailer on December 6 or 7 with Shirley Woodham and arrived around 8 o’clock, that Joey and Jan Barnes and Jan’s mother was there. He identified Janet Barnes, the appellant, as being there. He described the layout inside the trailer. He testified that he knew and recognized a marijuana cigarette when he saw it. He testified that he smoked a marijuana cigarette and it was passed around. He testified that it was passed around, from hand to hand and he believed that he saw Janet with it in her hand but that he didn’t know if she smoked it or not. He testified this was 30 minutes to an hour before the officers came and that he did not know what happened to the remains of that cigarette.

On cross-examination he testified that he was not arrested nor indicted by the Grand Jury and that he had not been promised anything to testify in this case. He testified that he had been told he was not going to be prosecuted because he had done nothing.

As background information, appellant’s sister, Patsy Lee Quinlan, was indicted by a Grand Jury in Clayton County, Georgia, for violating Georgia’s Controlled Substances Act on May 2, 1975. She was arrested and released on bond. When her case was called for trial, she did not appear and a Bench Warrant was issued for her arrest. She could not be located in Georgia and it was thought she had fled from Georgia and taken refuge in Alabama.

The Warrant Officer of the Sheriff of Clayton County, Georgia, on November 12, 1975, wrote the following letter to the Sheriff of Covington County, Alabama:

“Hon. W. E. Harrell Sheriff Covington County Andalusia, Alabama 36420 Re: Patsy Lee Quinlan, W/F/DOB:
1/27/34 Our I.D. # 20398 Dear Sheriff:
I am enclosing certified copy of our indictment and Bench Warrant # 8-13884 (VGCSA), a felony on which we will extradite. Also enclosed is a photo of subject.
Please try to locate her at residence of her mother, Mrs. Mabel H. Brown, Rt. 3, Box 237-A, Andalusia, Alabama (205-493-3477).
If apprehended, please ascertain if she is willing to sign a waiver of extradition and if not, advise us so that we may have our D.A. start extradition proceedings for her return to Georgia.
Your cooperation in this matter, is appreciated.”

Attached to this letter was a copy of the following document under the Seal of the Clerk of the Superior Court of Clayton County:

“I, Joe B. Mundy, Clerk of Superior Court do hereby certify that the foregoing and attached 6 pages contain a true and correct copy of the Indictment, Bond forfeiture and Bench ^Warrant, in case ■# 8-13884, The State vs. Patsy Lee Quinlan, as same is of file and of record in this office.
Witness my official signature and seal this 12 day of Nov., 1975.
Joe B. Mundy Clerk of Court.”

The threshold question to be decided is whether or not the trial court erred in holding the Georgia “Bench Warrant” was valid and that the contraband found at Mrs. Brown’s trailer was properly admitted into evidence.

In Aldio v. State, 42 Ala.App. 653, 177 So.2d 107, we held that a Bench Warrant and indictments executed by officials in the State of Pennsylvania and not authenticated by the Executive Authority of that state would not support the arrest and extradition of appellant to that state to answer the crime charged against him.

Since the Bench Warrant in this case was not duly authenticated by the Executive authority of the State of Georgia it was a nullity and conferred no authority on the Sheriff’s Department of Covington County to make an arrest in this state. Had the official in the Sheriff’s Office complied with Title 15, Section 60, Code of Alabama 1940, we would not be confronted with this problem. That section provides as follows:

“Arrest prior to requisition. — Whenever any person within this state shall be charged on the oath of any credible person before any judge or other magistrate of this state with the commission of any crime in any other state, and except in cases arising under section 53 of this title, with having fled from justice; or whenever complaint shall have been made before any judge or other magistrate in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and except in cases arising under section 53 of this title, has fled from justice and is believed to have been found in this state, the judge or magistrate shall issue a warrant directed to the sheriff of the county in which the oath or complaint is filed directing him to apprehend the person charged, wherever he may be found in this state, and bring him before the same or any other judge, court, or magistrate who may be convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit; and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant. (1931, p. 559.)”

To hold that the alleged Bench Warrant in this case possessed legal efficacy we would be compelled to take judicial knowledge that the judge who signed this warrant was a duly constituted officer of the Superior Court of Clayton County, Georgia, and that his actions are entitled to full faith and credit under the constitution and laws of the United States. This we are not authorized to do.

The State contends that the “plain view” doctrine controls this case. We do not agree.

In Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067, the Supreme Court said:

“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.”

In Jenkins v. State, 46 Ala.App. 719, 248 So.2d 758, this Court held: “The plain view doctrine requires that the officers be rightfully in the spot from which they view.”

In this case the officers seized the merchandise in question within the curtilage, which is entitled to the same protection as the home against search and seizure. United States v. Molkenbur, 8 Cir., 430 F.2d 563.

For the error in overruling the motion to exclude the evidence found by the officers, this case is reversed and remanded.

In the light of the conclusion we have reached we do not deem it necessary to treat the other issues raised on this appeal.

REVERSED AND REMANDED.

TYSON and BOOKOUT, JJ., concur.

DeCARLO, J., dissents with opinion.

DeCARLO, Judge

(dissenting).

In the majority opinion, my brothers have concluded that the Covington County deputies did not have a valid arrest warrant, or probable cause to make a warrantless arrest. I respectfully disagree.

The general rule of law in this situation is that a warrant of arrest issued in one state cannot be executed outside the boundary of the issuing state. However, this rule has been qualified by holding that where an officer of the non-issuing state has knowledge of the warrant, probable cause exists for the arrest in that state. See: State v. Williams, 104 Ariz. 319, 452 P.2d 112; State v. Richards, 110 Ariz. 290, 518 P.2d 113.

In the instant case the Covington County deputies had “reasonably trustworthy” information which by itself was sufficient for a reasonable person to conclude that a crime had been committed and that the person to be seized had committed the crime. They were armed with a bench warrant issued by a Georgia Magistrate, which was supported by an indictment presented by the Clayton County grand jury in Georgia. This was not a situation where the officers received such information orally, but one where these documents were in their possession.

The Arizona Supreme Court reasoned in State v. Williams, supra, that: “Information is ‘reasonably trustworthy’ when it is received through official sources.”

Surely, the hard information possessed by these arresting officers was as good as that coming from an informer’s tip. Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.

The State argued that the marijuana was in plain view and therefore permissible under one of the exceptions to warrant requirement.

Evidence is in “plain view” when there is a prior justification for the intrusion, and the police inadvertently discover incriminating evidence. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

I believe the trial court correctly concluded there was prior justification for the intrusion and was justified in sanctioning the search and seizure under 'the plain view doctrine.

The momentary intrusion into a person’s privacy for questioning can be justified on grounds which would not constitute probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In my judgment a distinction should be made in the probable cause necessary for an arrest and that involving a momentary intrusion for questioning purposes as was done here. This intrusion was justifiable on the specific facts that the officers possessed a Georgia warrant with its supporting indictment, a photograph of Patsy Quinlan, and a letter stating she may be found at her mother’s residence.

Armed with these facts, the deputies had justification for the momentary intrusion to inquire if the suspect was there.

In my judgment, Aidio, supra, is distinguishable from the facts outlined above. There they had a habeas corpus proceeding and the legal sufficiency of the supporting papers was being determined to justify Al-dio’s rendition. Here we have a question of whether the Georgia bench warrant and supporting indictment are sufficient justification for the officers being in a position to view the contraband seized.

In addition to the Georgia warrant and indictment, the officers witnessed the furtive movements regarding the purse and the marijuana. With the combination of these circumstances, the deputies had sufficient probable cause for the search and seizure.

As Justice Burton observed in his concurring opinion in Brinegar v. U. S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879:

“It is only by alertness to proper occasions for prompt inquiries and investigations that effective prevention of crime and enforcement of law is possible. Government agents are commissioned to represent the interests of the public in the enforcement of the law and this requires affirmative action not only when there is reasonable ground for an arrest or probable cause for a search but when there is reasonable ground for an investigation.”

In view of the foregoing, I dissent.


author: TYSON, Judge. DeCARLO, J.,

text:
    Joey BARNES v. STATE.
    4 Div. 454.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Rehearing Denied Aug. 24, 1976.
    Allen Edward Cook, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Joey Barnes, husband of Janet Barnes, 4 Div. 445, this day decided, was indicted for possession of marihuana and additionally for glutethimide and phencyclidine, in a three-count indictment for violating the Alabama Uniform Controlled Substances Act. The jury found the appellant “guilty as charged” and the trial court entered judgment setting sentence at four years imprisonment.

In this case there was objection at trial to the introduction of the items seized, by the arresting officers, Deputies Harrell and Scpek, on the night of December 7, 1975, just outside Mrs. Brown’s trailer. In addition there was a motion to exclude the seized items at the close of the State’s evidence.

This raises the question of an unlawful search and seizure under the Fourth Amendment to the United States Constitution.

The basis of the officers going to the scene in question was a Bench Warrant issued by the Superior Court of Clayton County, Georgia. The two officers did not comply with the provisions of Title 15, Section 60, Code of Alabama 1940, with reference to obtaining an Alabama warrant.

This case is therefore controlled by this Court’s opinion in Barnes v. State, Ala.Cr.App., 337 So.2d 22, this day decided. The facts and applicable law are ably stated by Judge Harris in Barnes, supra.

For the error in overruling the motion to exclude, this cause is due to be reversed and remanded on authority of Barnes v. State, supra.

REVERSED AND REMANDED.

HARRIS and BOOKOUT, JJ., concur.

DeCARLO, J., dissents with opinion.

CATES, P. J., not sitting.

DeCARLO, J.,

dissents for the reasons set out in his dissenting opinion in Barnes v. State, 58 Ala.Cr.App., 337 So.2d 22 this day decided.


author: PER CURIAM. DeCARLO, Judge

text:
    Earnest BALL v. STATE.
    6 Div. 648.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Rehearing Denied June 1, 1976.

      J. Knox Argo, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   PER CURIAM.

First degree murder; sentence: life imprisonment.

Appellant was convicted of murdering a police officer in Tuscaloosa. The record on appeal consists of 765 pages. Defense pretrial motions and petitions included: petition for mental examination; motion for preliminary hearing; motion to dismiss/quash the indictment; motion for discovery; motion to require production and suppression; motion to conduct special voir dire examination; motion for reasonable bail; motion for a mistrial; and ten separate petitions for writ of habeas corpus for various purposes. Over 290 pages of the record were consumed with prehearing motions, evidence thereon, arguments, and rulings of the trial court, prior to the receipt of any evidence on the merits. The record was lengthy and the issues legion.

Briefly stated, the shooting occurred when police officers answered a radio dispatch to quiet a disturbance at the residence of the appellant’s former wife, Mary Ball. On arriving at the residence, Mary Ball informed Officers Larry Wood and John Thomas that appellant had threatened to kill her and was in a back bedroom armed with a shotgun. She removed her children from the premises and asked the officers to go in and get the appellant out of her house. Her testimony shows that appellant had broken into her house on three separate occasions during that day; the last break-in resulting in the call to the police.

The officers entered the house with pistols drawn. Officer Thomas went down the hall ahead of Woods. Woods heard the door to the first bedroom open. He saw the muzzle of a shotgun appear from the bedroom and fire into Thomas. Woods said Thomas shouted, “Oh my God,” then turned around and said, “I’ve been hit,” Thomas then backed into the kitchen and sank to the floor and died.

The bedroom door then closed and Officer Woods fired two shots into the door and retreated to the living room. The evidence clearly established the commission of the offense of murder in the first degree and likewise established the appellant was the guilty party. The weight and sufficiency of the evidence in this regard cannot be disputed.

During pretrial hearing on the myriad of defense motions, appellant attempted to prove that the arresting officers beat him, both at the scene of the shooting and at the police station. Officers testified that it was necessary to rush the bedroom and wrestle the gun away from appellant, which accounted for some minor abrasions. That matter being irrelevant to the issue of appellant’s guilt vel non of murder, further discussion here is not appropriate. It is mentioned for purposes of background information.

On April 18, 1973, counsel for appellant filed a petition for mental examination of his client, alleging that he believed that the appellant, “may be insane now and/or may have been insane at the time of the alleged offense.” In that petition, counsel specifically stated that he believed the appellant to have been suffering from paranoia at the time of the offense, and requested an order pursuant to Title 15, § 425, Code of Alabama 1940, transferring appellant to Bryce Hospital for a determination of his mental condition. The appellant was admitted to the state mental hospital on April 19, 1973. After examination and observation, a report was submitted to the court from three physicians on the Bryce Hospital staff. That report, in pertinent part, is as follows:

“After full study and observation since the date of admission it is the opinion of each of us separately, and our opinion jointly and collectively, that the said Earnest Ball is presently sane and competent. It is also our opinion that he was sane and competent at the time of admission in Bryce Hospital. It is our further opinion that he was sane and competent at the time of the commission of the crime for which he is charged. . . .”

The appellant was then ordered by the circuit court to stand trial.

The appellant had originally entered a plea of not guilty and not guilty by reason of insanity, however, he later insisted on withdrawing his plea of not guilty by reason of insanity. The trial court allowed withdrawal of that plea with the understanding that it could be reinstated at any later time during the trial. The plea of not guilty by reason of insanity was reinstated by the court on request of defense counsel, prior to trial.

I

On direct examination, Officer Larry Woods detailed the occurrence from the point of receiving the radio dispatch, through the shooting of Thomas and up to the point of his firing two shots into the door and his identification of the appellant. The State asked no further questions of Woods beyond that point in time.

On cross-examination, defense counsel questioned Woods on each detail of his direct testimony, however, when the cross examination went past the point where Woods testified that he fired the two shots and retreated back to his prior position, the District Attorney made the following objection:

“Judge, I’m gonna object to any further testimony beyond this. I think the res gestae has now been reached.”

The trial judge then recessed the trial and allowed argument on the objection, in chambers, where the following occurred:

“THE COURT: Gentlemen, there has been extensive pre-trial hearings regarding the arrest, capture, incarceration, et cetera, of the Defendant, all of which as a matter of sequence of times starts to evolve to the point which is now before the jury. I take it that Mr. Lackey is suggesting to the Court that that’s not relevant, and I take it that Mr. Knowles is suggesting that it is relevant. Am I correct on your positions?
“MR. LACKEY: Actually, if the Court please, we’re not — Judge, that’s close, but I’d like to state for the record that it isn’t really at this point, that we réally have still another delay, because if this man testified, he will testify that having secured his position he then left his position, went to the front door, spoke to some officers out there, gave some directions; then came back to his position while some more people back through the door, and that quite a significant period of time passed before anything else happened involving the entry of that room, and I’m saying that the entry of that room no longer has anything to do with the crime, or with the event, if you will, but that now this has to do with taking custody of the malefactor, and therefore, that inasmuch as this has no relationship whatsoever to the — since the taking into custody has nothing in the world to do with the events which resulted in the death of Officer Thomas. Then they’re beyond res gestae and therefore have no basis in fact for being in the case, and that’s the basis for my objecting. . . ”

The defense argument in pertinent part was as follows:

“ . . . We think it’s relevant as within the res gestae and Mr. Lackey is absolutely correct that we don’t have much interest in showing that he went to the door and talked to an officer, but we do have some interest in showing what happened after he came back, both his action and the other police officers’ actions and Mr. Ball’s actions, and I think it has relevance and is material and competent to the question of self-defense, and also probably to the question of insanity. The second ground is that we think we should be able to continue this line of questioning, to further impeach Mr. Woods. We expect to show that he gave further inconsistent statements concerning what happened after that and that tends to show that he was wrong about what happened. . . .” (Emphasis supplied.)

The record further shows:

“THE COURT: Really the only thing I could see in the whole matter is that if we go into that, then we’re no longer trying what we have before us; we’re trying a civil rights suit that would be more appropriate to be brought under the Civil Rights Act, and whether or not the Defendant’s rights, as a matter of his civil rights as a human being, were violated or not, and not the question of whether or not he is guilty as charged in the indictment, or innocent; that’s not the question that’s being presented.
“MR. DRAKE: That’s not what we intend to show.
“THE COURT: In addition, I feel that the events in the bedroom being immaterial to the question of guilt or innocence or anything, and not probative of that question — then if you were to seek to show that that I would have to agree with the State’s position that you would be laying groundwork on immaterial points on which to attempt to impeach officers on immaterial points, and if Mr. Lackey had opened the door, both factually and actually, then naturally you could impeach on immaterial points if the other side had brought up those immaterial points.
“THE COURT: I have to feel that somewhere the Court has to draw a line on what the issues are before the jury, and I think it would be more appropriate that if the defense wishes to present these issues to a jury, it should be in another case and on other points, and not on the question of guilt or innocence; in another Court.
“MR. DRAKE: I take it you would also not allow the Defendant to testify as to those events?
“MR. LACKEY: I’d object to it.
“THE COURT: As to those events in the bedroom, it’s true. I’m saying that as far as I’m concerned, I’ve heard all of this testimony before on several occasions; therefore there’s no need asking y’all to, you know, make an offer to show or something like this because I’ve already heard it. . [The court reporter’s note shows here that the trial judge was referring to pretrial hearings, which was not evidence presented in the presence of the jury.]
“MR. DRAKE: For the record here, have you sustained the objection?
“THE COURT: Yes, sir. I have sustained.
“MR. KNOWLES: Well, as the older hands around would say, we except!”

A.THE RIGHT OF CROSS-EXAMINATION

Article 1, § 6, Constitution of Alabama 1901, guarantees to the accused in all criminal proceedings the right “to be confronted by the witnesses against him.” As early as 1908, the Supreme Court of Alabama held that such right “imports the constitutional privilege to cross-examine the opposing witnesses.” Wray v. State, 154 Ala. 36, 45 So. 697. Wray cited the 1888 case of Tate v. State, 86 Ala. 33, which put the same construction on identical verbage used in the prior Constitution of 1875. Likewise, Title 7, § 443, Code of Alabama 1940, guarantees the right of a thorough and sifting cross-examination in every case.

The Sixth Amendment to the United States Constitution has been applied to the states, and it has been consistently held in the federal courts that the right of cross-examination is included in the right of an accused to be confronted with witnesses against him. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297; Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. However, Alabama, by its constitution and statutes protected the right of cross-examination long before that federally protected right was held to apply to the states.

The latitude and extent of cross-examination has been held to be subject to some limitation. Both state and federal decisions vest trial judges with the limited discretion to cut off questions on cross-examination which: (1) are repetitions, (2) concern wholly collateral matters, (3) are irrelevant, or (4) are harassing, annoying or humiliating. Connell v. State, 294 Ala. 477, 318 So.2d 710; Cox v. State, 162 Ala. 66, 50 So. 398; Wright v. State, 49 Ala.App. 539, 274 So.2d 95; U.S.C.A. Amend. 6, notes 1091, et seq.

Even though trial judges are vested with certain discretion, the right of cross-examination is a fundamental constitutional right, and in cutting off cross-examination, a trial judge treads on extremely perilous ground. Upon proper objection by the accused, as was the case here, appellate courts should closely scrutinize any limitation placed upon that right.

B.THE ENGLISH RULE

The prosecution in the instant case attempted to limit the defense on cross-examination to the matters brought out on Officer Woods’ direct examination. Such limitation is not permissible in this state. Alabama follows the so-called “English rule” that cross-examination is not limited to matters brought out on direct examination. Cross-examination extends to all matters within the issues of a case. International Brotherhood of Teamsters, etc., v. Hatas, 287 Ala. 344, 252 So.2d 7; Lewis v. State, 43 Ala.App. 16, 178 So.2d 649; Madden v. State, 40 Ala.App. 271, 112 So.2d 796, cert. denied 269 Ala. 697, 112 So.2d 800. The limitation, by the trial judge, would be reversible error, unless no relevant matter then existed which could have been subject to inquiry on cross-examination.

C.RELEVANCY

The trial court, in cutting off cross-examination, apparently believed the cross-examination was being directed into the irrelevant area of whether the arresting officers had beaten the appellant. Also, the trial judge stated that the defense was attempting to impeach on an immaterial issue. Since the trial judge had gone through lengthy testimony from numerous witnesses, both in chambers and in the presence of the jury, both on motions and on the merits, it is not unlikely that some confusion may have existed as to just what evidence had or had not been presented for the jury’s determination. Up until this point in the trial, the court had done a masterful job of directing the proceedings and in preventing a determined defendant from creating error.

Both the State and the appellant base their arguments upon the theory of res gestae. The State says that the res gestae does not encompass events, after the commission of the offense, such as the arrest of the accused. The appellant contends that the definition of res gestae is sufficiently broad to cover such events when they are so closely connected with the main transaction as to form one entire transaction.

Although Alabama courts continue to base decisions on the theory of res gestae, the modern trend among legal scholars seems to favor disregarding that term in favor of less nebulous legal principles. See: McCormick on Evidence (2d ed.), § 288. The following commentary is made in Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale L.J. 229:

“The marvelous capacity of a Latin phrase to serve as a substitute for reasoning, and the confusion of thought inevitably accompanying the use of inaccurate terminology, are nowhere better illustrated than in the decisions dealing with the admissibility of evidence as ‘res gestae.’ It is probable that this troublesome expression owes its existence and persistence in our law of evidence to an inclination of judges and lawyers to avoid the toilsome exertion of exact analysis and precise thinking.”

McCormick states that, “[t]he ancient phrase can well be jettisoned, with due ac-knowledgement that it has served well its era in the evolution of evidence law.”

Whether we use the Latin phrase or the verbiage commended by McCormick, to allow or disallow evidence of acts or utterances reasonably connected in time and space to the offense, is of little consequence. In either instance, we must determine if the subject of the proposed cross-examination could, under any theory of the defense, be relevant.

In the instant case, the subject of the proposed cross-examination concerned transactions which occurred at the scene of and almost immediately after the shooting. In cutting off cross-examination as to such transactions, the trial judge has, in effect, determined that no material facts existed which could be made the subject of inquiry.

The defendant’s sanity at the time of the shooting was in question via his plea of not guilty by reason of insanity. Any evidence concerning his actions and demeanor at the time of the shooting would have a material bearing on the issue of sanity and would thus be relevant. ■

Inquiry into the defendant’s mental state, as evidenced by his words, actions, demean- or and expression, cannot be cut off as of the instant his bullet hit the mark and the crime was completed. Our Supreme Court in George v. State, 240 Ala. 632, 200 So. 602, stated:

“Evidence to show insanity is not confined to evidence of the mental condition of the accused at the instant of the act, though whatever facts are adduced must tend to show the mental state at that moment. By outward acts we read the thoughts, the motives and the emotions, and as one’s acts conform to the practices of people of sound mind or contrast therewith we form our judgment of sanity or insanity. Evidence is competent to prove conduct and language at various times and places indicating an unhealthy mental condition, and the more extensive the view the safer is the determination reached.”

In Hall v. State, 248 Ala. 33, 26 So.2d 566, at p. 568 the Court said, at p. 36:

“And our decisions are uniform to the effect that the issue of insanity gives much latitude, both to the defendant and the State, for the introduction of evidence of defendant’s acts, declarations, and conduct, prior and subsequent to the alleged crime. . . . ” (Emphasis supplied.)

In Hall, the defense offered to show by the jailor that the defendant had a fit in jail, and the trial court ruled: ‘You are asking about a time since the crime was committed. I will sustain the objection.’ . . . ” The Supreme Court held such to be reversible error. In Barbour v. State, 262 Ala. 297, at p. 303, 78 So.2d 328, at p. 333, the Supreme Court stated:

“It has long been held that ‘wide latitude’ is allowed both the defendant and the state in inquiries into a person’s mental state when an issue as to the sanity of such person is presented. These inquiries, however, are subject to the necessary limitation that the acts, declarations and conduct inquired about must have a tendency to shed light on the accused’s state of mind when the act for which he is being tried was committed. . ” (Citations omitted.)

Insanity is a defense which must be proved to the jury, regardless of the written opinion of state psychiatrists to the trial court to the effect that the accused was sane. Inquiry during cross-examination touching upon the question of appellant’s sanity, is proper and testimony relating thereto is for the jury’s consideration. McAllister v. State, 17 Ala. 434; Moody v. State, 267 Ala. 204, 100 So.2d 733.

Cross-examination for other purposes may have also been relevant, although we have limited our opinion basically to the question concerning sanity. Counsel for appellant argued to the trial court that further cross-examination of Officer Woods was necessary, stating inter alia:

“We expect to show that he gave further inconsistent statements concerning what happened after that and that shows tends to show he was wrong about what happened. . . . ”

The trial court’s ruling, therefore, prevented the defense from questioning Officer Woods concerning any statements he may have made following the shooting. If Woods gave a different version of what transpired in statements following the shooting than he gave in his direct testimony, the limiting of cross-examination precluded that inquiry. It is an established rule that an accused has the right to cross-examine a witness on any matter testified to on his direct examination for the purpose of testing his memory, credibility, knowledge and accuracy. Green v. State, 258 Ala. 471, 64 So.2d 84. Thus, appellant was denied that right by being unable to cross-examine Woods concerning any different version of the shooting he may have related to others following the occurrence.

The trial judge, in allowing cross-examination to continue, lessens the chance of denial of a fundamental right and yet would not relinquish the court’s authority to rule on the relevancy of evidence as objections were made to specific questions. In the instant case, the trial court could have easily allowed cross-examination to continue, allowing questions concerning the accused’s demeanor, but disallowing clearly irrelevant questions dealing with actions taken by other officers not connected in time or distance with the crime.

II

It is unnecessary in reaching the final result of this decision to rule on the multitude of baseless motions and assertions of the appellant. However, we make certain findings here so that the record on retrial will not be overburdened with absurd allegations as was the instant record.

A. There is no right in Alabama to a preliminary hearing after indictment. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; Ex parte Campbell, 278 Ala. 114, 176 So.2d 242.

B. Statements of police officers which were withheld from both the defense and the prosecution were supplied during the course of the instant trial and thus their prior suppression is no longer an issue on retrial.

C. We find that appellant was well represented by appointed counsel at trial and by different appointed counsel on appeal. Their defense of appellant was made considerably difficult by his alternating insistence upon self-representation and then insistence upon assistance of counsel.

On January 22, 1973, appellant notified the court that he was meeting with his family the next day concerning retaining of counsel. On January 29, he informed the court he was retaining private counsel, whom he named, and needed no appointed counsel. On March 19, appellant and his family notified the court that they had a public fund raising drive in progress and would report to the court on March 26 as to retaining counsel. On April 11, 1973, on arraignment, appellant was represented by retained counsel. On April 18, appellant moved for a mental examination, which was granted and he was placed in the state mental hospital for examination until he was returned to the county jail on June 27, 1973. On September 10, 1973, appellant informed the court that he had dismissed retained counsel and would defend himself.

In view of the constitutional right to be represented by counsel as opposed to the right of self-representation set forth in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, we find that the trial court ably and amply protected both rights. In allowing appellant to proceed pro se (after determining the prerequisites required by Faretta) the trial court also required appointed counsel to sit with appellant and render whatever assistance appellant should request from time to time.

Appellant, therefore, was not denied the right to counsel. The delay in obtaining counsel and in going to trial on the merits are the consequence of appellant’s own actions and not of the trial court. Appellant was not denied a right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.

Ill

The evidence adduced on the merits supports the verdict of the jury and it is with reluctance that we perform the necessary duty of remanding this cause for a new trial. The guilt of appellant is apparent from the record, but even so, he was denied one of the most fundamental rights under our state and federal constitutions, the right to fully cross-examine witnesses against him. To quote from Waits v. State, 282 Ala. 245, 210 So.2d 805:

“The worst wretch that walks the earth is entitled to a fair trial, for the law is superior to all persons. As much as we may regret some results of the law, the law must be preserved if this constitutional democracy is to survive.”

REVERSED AND REMANDED.

All the Judges concur, except DeCARLO, J., who dissents.

DeCARLO, Judge

(dissenting).

I agree that limiting appellant’s cross-examination could deny basic constitutional rights.

However, as pointed out in the majority opinion, the right of cross-examination has its bounds. The court noted that the trial judge is vested with the discretion to limit cross-examination. They outlined the permissible reasons available to the judge for limiting such examination. Among these were, cross-examination concerning collateral matter or irrelevant material.

Our Supreme Court in Phoenix Insurance Co. of New York v. Leonard, 270 Ala. 427, 119 So.2d 217, adopted a statement by the distinguished Judge J. Russell McElroy in his excellent work, The Law of Evidence in Alabama (2nd Ed.) Vol. 2, § 21.01. It elaborates on the right of a trial judge to exclude evidence if the probative value is outweighed by other considerations.

The pertinent part of the opinion reads: “ ‘The judge may in his discretion exclude evidence if he finds that its probative value is outweighed by the risk that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice or of confusing the issues, or of misleading the jury, or (c) unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered.’ ”

The competence of any evidence in the final analysis depends upon whether it is likely to advance the search for truth. This does not inevitably follow from the fact that it is rationally relevant. As was said in U. S. v. Krulewitch, 2 Cir., 145 F.2d 76: “ . . . (T)he question is always

whether what it will contribute rationally to a solution is more than matched by its possibilities of confusion and surprise, by the length of time and the expense it will involve, and by the chance that it will divert the jury from the facts which should control their verdict . . . ”

At the time the appellant’s cross-examination of Officer Woods was restricted the court had before it the indictment of charges and the attendant pleas. The trial judge also had the benefit of hearing the extensive pre-trial motions, concerning the arrest, capture and incarceration, having presided over them and having watched each unfold. Armed with this knowledge, he knew where the questions and subsequent examinations were leading.

In fact, during the hearing, concerning whether the appellant’s examination would be allowed to continue, the judge commented:

“If we go into that, then we’re no longer trying what we have before us; we’re trying a civil rights suit. . “ . . . (Y)ou would be laying groundwork on immaterial points on which to attempt to impeach officers on immaterial points . “ . . .1 have to feel that somewhere the Court has to draw a line on what the issues are before the jury . . . ”

I do not believe that the limitation placed on this appellant’s cross-examination in any way deprived him of asserting his insanity defense. In fact, the record reflects that testimony was elicited concerning this man’s sanity. Clearly any testimony concerning the actions by the police after Woods fired into the door, would have little bearing on the point. It would only tend to prejudice and confuse the jury.

It is my opinion that the prejudicial effect would outweigh any probative value this evidence would have on the point of insanity, assuming it had any.

In my judgment it was obvious that the judge endeavored to confine the testimony within the framework of the charges against this appellant. He attempted to avoid the danger that such evidence would unduly prejudice the jury and confuse the issues they were to decide.

In view of the foregoing, I do not believe this was an unwarranted limitation on appellant’s right of cross:examination.

I respectfully dissent.


author: PER CURIAM.

text:
    In re Earnest BALL v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1887.
    Supreme Court of Alabama.
    Sept. 3, 1976.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
    No appearance for respondent.
   PER CURIAM.

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 Ball v. State, Ala.Cr.App., 337 So.2d 31, which was granted on July 6, 1976, and submitted to the Court on briefs July 26,1976, is quashed as being improvidently granted.

WRIT QUASHED.

HEFLIN, C. J„ and BLOODWORTH, FAULKNER, ÁLMON and EMBRY, JJ., concur.