author: BOWEN, Judge.

text:
    Thomas Milton WILSON alias Tommy Wilks v. STATE.
    1 Div. 866.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    Rehearing Denied March 21, 1978.

      A1 Pennington and Reggie H. Stephens, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State, for appellee.
   BOWEN, Judge.

The appellant was indicted and convicted of capital murder under those portions of the Alabama Death Penalty Statute prohibiting any murder committed by a defendant who has been convicted of murder in the first or second degree in the twenty years preceding the crime or any murder committed while the defendant is under a sentence of life imprisonment. Sections 13-11-1 through 9, Code of Alabama 1975. Punishment was fixed at death in the electric chair. Both at trial and on appeal the appellant is represented by court appointed counsel.

The facts reveal that Joe Lee Gilliland, the deceased, rented a room in a house trailer owned by Mrs. Mary Helen Leonard. Mrs. Leonard and her two sons also lived in the trailer. Mrs. Leonard, Gilliland, and the appellant were old acquaintances, and on the day before the shooting, which occurred on November 22,1976, the appellant and Gilliland had been drinking together in the trailer.

On the evening of the shooting, Mrs. Leonard had been with the appellant at a local “beer joint” and had asked him to drive her home because someone had borrowed her automobile. Mrs. Leonard and the appellant arrived at her trailer in the appellant’s car and went inside where Mrs. Leonard’s two sons were watching television. Gilliland was in his room lying in bed. No one else was in the trailer. Mrs. Leonard left the appellant in her dining room while she went to her bedroom to use the bathroom and put on her house shoes. While Mrs. Leonard was in the bedroom and her sons were watching television a shot was heard.

Mitchell Leonard, Mrs. Leonard’s sixteen year old son, ran to Gilliland’s room and discovered that Gilliland had been shot in his bed. Anthony Crooms, Mrs. Leonard’s youngest son, ran out the front door of the trailer to get his sister and her husband who lived next door. Anthony saw the appellant run across the yard and leave in his automobile.

No one had seen the appellant enter Gilli-land’s room, shoot him or exit the trailer. After the shooting, the appellant was not to be found in Mobile, Alabama. Expert testimony attributed the cause of Gilliland’s death as being a gunshot wound with massive injury to the brain and massive hemorrhage.

In December of 1976 the appellant was arrested at his mother’s home in Decatur, Alabama. Upon his arrest, the appellant identified himself as Joe Gilliland and produced a temporary driver’s license and a Red Lounge membership card issued to Joe Gilliland. These were the only items of identification contained in the appellant’s wallet.

The Assistant Chief of Police for La-Grange, Georgia, testified that this very same appellant had received a life sentence for murder in Georgia in 1969.

Immediately after the state rested its case, the defense rested without interposing any motion or objection to test the sufficiency of the evidence against the appellant. The attorneys presented their closing arguments to the jury, the trial judge charged the jury, and after due deliberation, the jury found the appellant guilty as chárged in the indictment.

The following day a hearing was held on the aggravating and mitigating circumstances as required by statute to determine whether the trial judge would sentence the appellant to death or to life imprisonment without parole. At the conclusion of the hearing the court made formal findings of fact. The trial judge found that there were “absolutely no mitigating circumstances” and that “the aggravated circumstances are overwhelming”. Particularly, the court found that on May 14, 1969, the appellant was convicted in the Superior Court of Troop County, Georgia, of murder, with a verdict of guilty- — recommendation of mercy, with a sentence of life during his natural life; that on March 11, 1977, the appellant was convicted of robbery in the Circuit Court of Morgan County, Alabama, and given a sentence of twenty years in the penitentiary; that on February 24, 1976, the appellant was sentenced to life in the Mississippi State Prison on a charge of armed robbery, the sentence to run consecutively with the appellant’s life sentence in Georgia; and that a 1964 charge of second degree murder against the appellant had been nol prossed. The court also found that the appellant had a “long, significant history of prior criminal activity”. In its findings of fact the trial judge also stated that

“(t)he circumstantial evidence was rather overwhelming that Mr. Joe Gilliland was killed while he apparently was flat on his back in bed in his underclothes for no apparent reason . . . . The Court felt that the killing was about as senseless an act or uncalled for act as it has tried at anytime.”

I

The appellant initially argued that the Alabama Death Penalty Statute is unconstitutional because a mandatory death penalty upon a finding of guilt without any consideration of aggravating or mitigating circumstances (by the jury) violates the Eighth and Fourteenth Amendments to the Constitution of the United States; because the post-jury verdict process violates due process by requiring the defendant, who is sentenced to die, to prove to the court why he should not die; and because the appellate review provided in the death penalty statute is inadequate to comply with constitutional demands.

Each of these arguments has been previously disposed of by this court and the constitutionality of the Alabama Death Penalty Statute upheld initially in Jacobs v. State, 361 So.2d 607 (Ala.Cr.App., 1977) and subsequently affirmed in Jacobs v. State, 371 So.2d 429 (Ala.Cr.App., remanded for further proceedings, 1977) and Ritter and Evans, III v. State, 361 So.2d 654 (Ala.Cr. App., 1977); and Cook v. State, 369 So.2d 1243 (Ala.Cr.App., 1977). Since the appellant has raised no new or additional reason for invalidating the death penalty which we have not previously considered, we hereby reaffirm the constitutional soundness of that statute.

II

The appellant contends that the trial court erred to a reversal in excusing a juror for cause contrary to the admonition of the Alabama Supreme Court in Liddell v. State, 287 Ala. 299, 251 So.2d 601 (1971), that, in a capital case, a juror cannot properly be excused for cause solely upon his answer that he has a fixed opinion (“conscientious scruples”, “opposition”) to capital punishment. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Howard v. State, 287 Ala. 435, 252 So.2d 304 (1971); Jackson v. State, 285 Ala. 564, 234 So.2d 579 (1970). A prospective juror m'ay be excused for cause where he has been examined by the trial judge and a determination made that the juror’s feelings as to capital punishment are sufficiently strong so that he would automatically refuse to impose a death sentence regardless of the evidence produced at trial and despite of the instructions of the trial court. Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777. In accordance with the general law that allows a juror who is not impartial to be challenged for cause, a prospective juror may properly be excused for cause where his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt. Witherspoon, 391 U.S. 522, n. 21, 88 S.Ct. 1770.

A person who has a “fixed opinion against” or who does not “believe in” capital punishment might nevertheless be perfectly able as a juror to abide by the existing law and follow conscientiously the instructions of a trial judge and consider fairly the imposition of the death sentence in a particular case. Boulden, supra; Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221. Thus when a juror indicates his beliefs against, scruples, or aversions to the death penalty, it becomes incumbent upon the trial court to ascertain whether the juror, notwithstanding his beliefs or scruples, would be able to impartially consider the issues with respect to the defendant’s guilt, and, after having determined the defendant’s guilt, be able to consider all the penalties provided by law, including the death penalty.

In determining whether a prospective juror should have been disqualified from a capital case because of his opposition to capital punishment, the critical question for the reviewing court is not how the phrases employed in this area have been construed by the courts and commentators, but how they might be understood — or misunderstood — by prospective jurors. Boul-den, supra. Whether a juror evidences absolute opposition to the death penalty so as to be excludable for cause under Wither-spoon is a difficult question subject to seemingly inconsistent results on similar facts. Annotation: Beliefs regarding capital punishment as disqualifying juror in capital case — post -Witherspoon cases, 39 A.L.R.3d 550.

Five jurors were challenged for cause by the state and excused because of their opinions on capital punishment. The trial court began its qualification of the veniremen on capital punishment with the following question:

“Is there any juror who has a fixed and. an abiding conviction against a legal punishment of death by electrocution? Those of you in Panel 1 who have such a fixed and abiding against a legal punishment of death by electrocution, please stand.”

Defense counsel objected to this question and after overruling the objection the court continued to question the veniremen.

“Did anyone in Panel 1 state that you had a fixed and abiding conviction against a legal punishment of death by electrocution that would prevent you from imposing a guilty verdict in this case — which is the only verdict you can return of guilt? You can return a verdict of Not Guilty; or you can return a verdict of Guilty, and if you do return a verdict of Guilty the statute provides that you must fix the punishment at death. (No response.) Does anyone in Panel 2 have a fixed and abiding conviction against fixing a punishment at death by electrocution in such a case as this? (Juror stood.) What is your full name, m’am?
“JUROR: Donna Fulmer Keaton.
“THE COURT: The statute provides that you will fix the death penalty if you find that Mr. Wilson did unlawfully, intentionally, and with malice aforethought, kill Joe Lee Gilliland; that constitutes what we normally consider the elements of First Degree Murder. If the State proves that, and also in addition to that proves that Mr. Wilson was under a sentence of life imprisonment prior to this, would you have a fixed opinion against imposing the death penalty? (No response.) Just give us your best judgment — yes or no.
“JUROR KEATON: Yes.”

The state then objected for cause, and the trial judge excused this juror over defense counsel’s objection.

After similar questioning, the trial judge excused a second juror.

“THE COURT: Does any other juror in Panel 2 at this time have a fixed and abiding conviction against fixing the death penalty at death by electrocution if they find that this was a First Degree Murder committed after Mr. Wilson had previously been sentenced to life imprisonment? (No response.) In Panel 3? (Juror stood.) All right, sir; give us your full name.
“JUROR: Thomas Joseph Beckham.
“THE COURT: Mr. Beckham, you have a fixed opinion that under no circumstance would you sign any guilty verdict which would require the fixing of the death penalty?
“JUROR BECKHAM: I do.”
A third juror was also excused for cause.
“THE COURT: Does any juror in Panel 4 have a fixed and abiding conviction against fixing the punishment at death by electrocution? (Juror stood.) Are you Mrs. Hobart?
“JUROR: Yes.
“THE COURT: If you found that the offense was Murder in the First Degree, and if you also found that Mr. Wilson had previously been sentenced to life imprisonment, would you have an abiding conviction against a verdict of guilty if it required the death penalty?
“JUROR HOBART: I would have mixed emotions about it.
“THE COURT: In your best judgment, yes you would, or no you wouldn’t?
“JUROR HOBART: Right.
“THE COURT: Well, what are you telling us; are you—
“JUROR HOBART: Really, I don’t believe in it.
“THE COURT: You do feel like you have a fixed opinion against it?
“JUROR HOBART: Yes.”

A fourth prospective juror was excused for cause.

“THE COURT: Does any juror in Panel 5 have a fixed opinion against a legal punishment — finding a Defendant guilty and fixing his punishment at death by electrocution? (Juror stood.) What is your full name, m’am?
“JUROR: Yes, Betty Miller Brunson.
“THE COURT: Mrs. Brunson, you would have a fixed opinion against finding a verdict of guilty if you felt that it required the death penalty?
“JUROR BRUNSON: I don’t believe I could say Kill Him.
“THE COURT: You feel that you do have a conviction against it?
“JUROR BRUNSON: Yes.”

Finally, a fifth juror was excused for cause.

“THE COURT: Marshall Gunn in Panel 5; Mr. Gunn, do you have a fixed opinion against returning a verdict of guilty which required the fixing of the death penalty?
“JUROR GUNN: Yes, sir.”

Additionally the trial judge questioned the five excused jurors as a group.

“THE COURT: Now, what the Court intended to ask you is, after hearing all of the evidence in the case, if you were required to return a verdict of guilty, which would automatically fix his punishment at death, the Court has asked you now if you have an abiding conviction against assessing such a verdict? I believe that five of you have responded that you would; those five, is that the way you understood the question?
(The five said jurors nodded in the affirmative.)”

We have carefully examined the questions propounded to these five prospective jurors. In addition to being asked whether or not they were opposed to capital punishment each of the five jurors was also asked a question that elicited a reply indicating that under no circumstances would he vote in favor of the death sentence regardless of the evidence in the case. Although the questions put to these jurors were not expressed in the most articulate or exact language, we find that the trial court made it unmistakably clear to these prospective jurors that only such jurors who could not or would not impose the death penalty under any circumstances would be excused for cause. “The test of Wither-spoon is not to be applied with the hyper-technical and archaic approach of a 19th Century pleading book, but with realism and rationality.” State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975). There is no requirement that the trial judge track the language of Witherspoon in examining the jurors with regard to their views on capital punishment.

In substance, Juror Keaton replied that she would have a fixed opinion against imposing the death penalty even if the state proved the appellant guilty as charged in the indictment. Juror Beckham stated that he had a fixed opinion that under no circumstance would he sign any guilty verdict which would require the fixing of the death penalty. Juror Hobart stated that she would have mixed emotions about returning a verdict of guilty if it required the death penalty and even if she found the appellant guilty as charged in the indictment. She further stated that she had mixed emotions about it, that she really did not believe in it and had a fixed opinion against it. Juror Brunson stated that she did not believe she could say kill the appellant if a verdict of guilty required the death penalty. Juror Gunn stated that he had a fixed opinion against returning a verdict of guilty which required the fixing of the death penalty. Thus each juror indicated in one manner or another, by implication if not fact, that they would not return a verdict of guilty if such a verdict required the death penalty.

Finally, in an apparent abundance of caution, the trial judge asked the five jurors as a group if they would have an abiding conviction against assessing a guilty verdict if they were required to return a verdict of guilty which automatically fixed punishment at death.

True, no juror specifically stated or was specifically asked whether he could return a verdict of guilty which required the death penalty in spite of his convictions. However we think the unmistakable import and meaning of each colloquy and the supplemental questioning achieved this same result. Each juror’s answers as a whole display an unequivocal reluctance to render a guilty verdict, knowing that the defendant would be subjected to the death penalty. State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975), vacated in part on other grounds, 428 U.S. 904, 96 S.Ct. 3209, 49 L.Ed.2d 1209 (1976).

In reviéwing this matter we have not assumed the role of a lexicographer or a technician but have attempted to give the same meaning and substance to the colloquies as would a juror. Certainly, it cannot be said that these five jurors were excluded solely on the basis that they were opposed to the death penalty. If specifically asked, we have no doubt whatsoever that each juror would reply that he could not, in view of his fixed opinion against capital punishment, nevertheless consider the evidence and instructions of the court and return a verdict of guilty although that verdict could result in a death penalty, if he, being the trier of fact, was convinced of the guilt of the accused, and that the facts warranted a sentence of death. For these reasons, it is our conclusion that the trial judge did not err in excusing the five jurors for cause based upon their beliefs regarding capital punishment.

Ill

The appellant alleges that the Alabama Death Penalty Statute is an ex post facto law in its application to a defendant whose crime, which constitutes an aggravating circumstance under the statute, occurred before the statute became law. The Alabama statute became effective March 7, 1976. In May of 1969 the appellant was convicted of murder and given a life sentence.

The well settled weight of authority dictates that a statute providing that the punishment for an offender shall be increased if he has previously been convicted is not an ex post facto law because applied where the previous conviction or convictions took place before its enactment. Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948); Bailey v. State, 211 Ala. 667, 101 So. 546 (1924); and cases cited in 16A C.J.S. Constitutional Law § 450, p. 161 n. 52. Such statutes and other enhanced-sentence laws, including recidivist statutes, have been sustained on several occasions against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities. Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Moore v. State of Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895); McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962).

Statutes which authorize the infliction of a more severe penalty on one who is a persistent offender

“do not create or define a new, separate, distinct, independent or substantive offense. Further, the statutes do not inflict additional or further punishment for the commission of the prior offense, or offenses, or impose a new sentence for the prior offense, or operate in any way as punishment [for the prior offense], or affect the punishment inflicted therefor, or serve as a basis for trying accused again for that offense; the punishment is for the new crime only, or for only the last, or latest offense committed.” 24B C.J.S. Criminal Law § 1958, pp. 431-433 (citations omitted).

Furthermore, unless provided by statute, in order to authorize the infliction of a more severe penalty on conviction for a second or a subsequent offense, it is not necessary that the first conviction, or other prior convictions relied on, should have occurred subsequent to the enactment of the statute. 24B C.J.S. Criminal Law § 1960(5)a, p. 465. Unless the statute fixes a maximum time limit within which the prior conviction shall have occurred, the remoteness of that prior conviction is immaterial. 24B C.J.S. Criminal Law § 1960(5)a, p. 466.

Under the above authorities the trial court was correct in overruling the appellant’s demurrer to the indictment presenting these grounds.

IV

The appellant maintains that since the jury in a capital case is only advisory and the judge must find the aggravating circumstances before sentencing a prisoner to die, there is no logical purpose for the statutory requirement that the indictment allege the prior conviction or that the state be required to present proof of a prior conviction to a jury.

In Alabama, by statute, the aggravating circumstance must be alleged in the indictment where the death penalty is sought. Title 15, § 342(4), Code of Alabama 1940, Recompiled 1958, 1975 Interim Supplement, now § 13-11-2, Code of Alabama 1975. The aggravating circumstances must be set forth in the indictment because the state is required to give the accused notice that a greater penalty is sought to be inflicted than for a first offense. It is fundamental that the accused must be advised and informed of the nature and extent of the offense with which he is charged.

Under the Death Penalty Statute, the aggravating circumstance is a statutory element of the crime. Without it, one could not be charged and convicted for “capital murder”. Though the opinion of the jury is advisory only upon the trial judge (see Jacobs v. State, 361 So.2d 607, at p. 632 (Ala. Cr.App., 1977), the state must prove the aggravating circumstance and the jury must find the existence of such, even though the enhanced punishment is left to be imposed by the trial judge. By statute,

“If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13-11-2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole.” Title 15, § 342(4), Code, 1975 Interim Supplement, now § 13-11-3, Code 1975. (Emphasis added)

Thus it is clear that the statutory scheme contemplates that the issue of the aggravation of the offense will be submitted to the jury. In the case under review, the state must establish beyond a reasonable doubt (1) the fact of the former conviction of murder in the twenty years preceding the crime (Title 15, § 342(4)(m), Code, 1975 Interim Supplement, now § 13-ll-2(a)(13) Code 1975) or that the murder conviction carried a life sentence which the defendant was under at the time of the crime (Title 15, § 342(4)(f), Code, 1975 Interim Supplement, now §' 13-ll-2(a)(6), Code 1975) and (2) the fact of the identity of the accused as the person previously convicted.

Additionally, while the aggravated offense must be proved beyond a reasonable doubt, and according to established rules of evidence, the aggravating circumstances which the trial judge must consider need not be admissible under the exclusionary rules of evidence. Title 15, § 342(5), Code, 1975 Interim Supplement, now § 13-11-3, Code 1975.

In Williams v. State, 239 Ala. 296, 297, 195 So. 213 (1940), the Alabama Supreme Court addressed this same criticism with regard to a death penalty statute (Title 14, § 319, Code of Alabama 1940). Although the jury fixed the punishment in that statute and does not in the present Death Penalty Statute, we think that the comments are applicable in this case.

“It is further insisted this charge of being a life convict at the time when he is accused of murder in the first degree ■ should not appear in the indictment to go to the jury, nor evidence in support thereof presented to the jury because of bias or prejudice aroused in the minds of the jury. It is suggested this matter should be brought to the attention of the court alone, and if found to be true, the jury be instructed to inflict the death penalty if found guilty of murder in the first degree. This suggestion should be addressed to the Legislature rather than the courts.”

V

The appellant contends that the trial judge erred to a reversal in refusing to grant a pretrial psychiatric examination.

At the hearing on the motion of a psychiatric examination the appellant testified that he understood that he was in court to “stand trial on a murder case”; that “for the past ten or fifteen years, I’ve had a lot of blackouts, hallucinations, loss of memory — stuff like that”; that he did not recall any of the incidents that involved the murder; that he had never been under medical treatment for any typfe of mental illness; and that he was thirty-eight years old and had spent twenty-one or twenty-two years in prison.

Cross examination of the appellant revealed that he had escaped from the Georgia State Penitentiary when he was arrested on the present charge; that he had never gone to see a psychiatrist and had not served in the armed forces. No other evidence was presented at the hearing or at trial with regard to the appellant’s competency or sanity.

In Robinson v. State, Ala.Cr.App., 337 So.2d 1382 (1976), this court stated:

“A defendant has no right to receive a mental examination as to his sanity whenever he requests one and, absent such a right, the trial court is the screening agent as to such request. Pace v. State, 284 Ala. 585, 226 So.2d 645.”

On a hearing of a motion for a sanity or competency investigation, the defendant has the burden of persuasion. Minniefield v. State, 47 Ala.App. 699, 260 So.2d 607 (1972). From the record we are given no cause to doubt the appellant’s sanity or competency to stand trial. The trial judge observed his demeanor and manner of testifying and was therefore in a much better position to rule on the motion. We find no abuse of his discretion in denying that motion. Additionally we note that there was no plea of not guilty by reason of insanity filed to the indictment.

VI

Finally the appellant alleges that the court erred in failing to give the following requested charge when the oral charge of the court did not cover its subject matter and the requested charge was a correct statement of law. The requested charge reads:

Defendant’s Requested Charge Number 9.
“The Court charges the jury that, as a matter of law, that, where a conviction for a criminal offense is sought upon circumstantial evidence alone, the state must not only show by a preponderance of the evidence and beyond a reasonable doubt, that the alleged facts and circumstances are true, but that must be such facts and circumstances as are absolutely incompatible upon any reasonable hypothesis other than that of the guilt of the accused.”

In Dutton v. State, 25 Ala.App. 472, 475, 148 So. 876 (1933), this charge was held to be a correct statement of the law citing Everett v. People, 216 Ill. 478, 75 N.E. 188, as the leading supporting authority. However in Mitchell v. State, 114 Ala. 1, 22 So. 71 (1896), a charge which instructed the jury that before there can be a conviction on circumstantial evidence,

“the facts and circumstances must be such as are absolutely incompatible upon any reasonable hypothesis, with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the accused”, (Emphasis added)

was held to be an improper and incorrect statement of the law.

“The court properly refused to give each of the charges requested by the defendant. They exacted too high a measure of proof, and were calculated to confuse the jury. Dorsey v. State, 110 Ala. 38, 20 So. 450; Buchanan v. State, 109 Ala. 7, 19 So. 410; Webb v. State, 106 Ala. 52, 18 So. 491, and authorities cited. Besides, the true test of the sufficiency of circumstantial evidence to justify a conviction is, whether the circumstances as proved produce a moral conviction to the exclusion of every reasonable doubt. It is not necessary for the circumstances to be ‘such as are absolutely incompatible, upon any reasonable hypothesis, with the innocence of the accused’. Bland v. State, 75 Ala. 574; Banks v. State, 72 Ala. 522; Matthews v. State, 55 Ala. 65.” Mitchell, supra, 114 Ala. 6, 22 So. 72.

We deem the Mitchell case to be the better reasoned authority and controlling. It contains the correct statement of law, Dutton, to the contrary. To the extent to which the holding in Dutton conflicts with our present ruling, it is expressly overruled.

Additionally the refused requested charge was fully, adequately and substantially covered in the other requested charges given by the trial judge. For this reason alone the refusal of the requested charge was not error. Elston v. State, 56 Ala.App. 299, 321 So.2d 264 (1975); Hicks v. State, 46 Ala.App. 125, 238 So.2d 922 (1970); White v. State, 42 Ala.App. 249, 160 So.2d 496 (1964).

We have searched the record for error and have written to every issue presented by the appellant on the appeal. It is our conclusion that this case is due to be affirmed.

AFFIRMED.

All Judges concur.

      . This conviction arose from a robbery committed by the appellant after he committed the murder under review. It was on the robbery charge that he was arrested in Decatur, Alabama. This evidence was not presented to the jury.

      . In Witherspoon, the court stated:
      “We repeat, however, that nothing we say today bears upon the power of a State to exclude a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the time of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to defendant’s guilt.”


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    In re Thomas Milton WILSON v. STATE of Alabama. Ex parte Thomas Milton Wilson.
    77-433.
    Supreme Court of Alabama.
    April 20, 1979.
    Rehearing Denied June 22, 1979.
    A1 Pennington, Reggie H. Stephens, Mobile, for petitioner.
    William J. Baxley, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State, respondent.
   MADDOX, Justice.

ON REHEARING

The original opinion quashing the writ as having been improvidently granted is hereby withdrawn.

On original submission, this Court reviewed the opinion of the Court of Criminal Appeals and the proceedings in the trial court as provided for in Rule 39(k) and Rule 45A, Alabama Rules of Appellate Procedure, even though this cause was argued and submitted prior to the effective date of those rules.

After reviewing the opinion and the proceedings, we do not note any plain error or defect in the proceedings which has or probably has adversely affected the substantial rights of the petitioner.

The judgment of the Court of Criminal Appeals is due to be and is hereby affirmed.

APPLICATION FOR REHEARING GRANTED; ORIGINAL OPINION WITHDRAWN; AFFIRMED.

All the Justices concur.

      . Rule 39(k) and Rule 45A provide:
      “In all cases in which the death penalty has been imposed, upon review of the opinion of the Court of Criminal Appeals on certiorari, the Supreme Court may notice any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner.”
      “In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”


author: TYSON, Judge.

text:
    John WOODS v. STATE of Alabama.
    2 Div. 223.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
    Rehearing Denied Oct. 3, 1978.
    James B. McNeill, Jr. of Sikes, Kelly, Edwards & Bryant, Selma, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

AFFIRMED.

All the Judges concur.

Writ quashed, Ala., 371 So.2d 944.


author: TORBERT, Chief Justice.

text:
    In re John WOODS v. STATE of Alabama. Ex parte John Woods.
    78-41.
    Supreme Court of Alabama.
    June 8, 1979.

      James B. McNeill, Jr., of Sikes, Kelly, Edwards & Bryant, Selma, for petitioner.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen. and Charles A. Graddick, Atty. Gen., and Willis E. Isaac, Asst. Atty. Gen., for the State, respondent.
   TORBERT, Chief Justice.

Petitioner, John Woods, was convicted in the Dallas County Circuit Court of possession of marijuana and was sentenced to eight years in the penitentiary. The Court of Criminal Appeals affirmed the conviction without opinion. We granted certiorari to review whether the trial court erred in failing to make the record affirmatively show that petitioner had understandingly and voluntarily entered his guilty plea in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

However, there is a jurisdictional defect in this case which precludes us from examining this question. On December 9, 1977, petitioner signed an Ireland form and entered a plea of guilty; he was sentenced to eight years in the penitentiary. At this time, he applied for probation, and his sentence was suspended “pending receipt of post-sentence investigation report.” The trial court held a hearing on the application on March 3, 1978, at which time it denied probation. Petitioner gave notice of appeal the same day.

Rule 4(b) of the ARAP provides that an appeal must be filed “within 42 days (six weeks) after the entry of the sentence appealed from.” Although Rule 4(b) provides that a “timely motion in arrest of judgment or for a new trial” will toll the running of the appeal period, no such motion was made in this case. A request for probation following sentencing does not extend the time for appeal from a judgment of conviction. Turner v. State, 365 So.2d 335 (Ala.Cr.App.1978).

Timely filing of notice of appeal is a jurisdictional requisite, and the appeal must be dismissed for lack of jurisdiction if notice of appeal was not timely filed. ARAP 2(a). In this case, notice of appeal was filed eighty-four days after the “entry of the sentence appealed from”; therefore, the Court of Criminal Appeals did not have jurisdiction of the case. Accordingly, this court has no jurisdiction to consider the case on writ of certiorari.

Petitioner contends that this case is distinguishable from Turner v. State, supra, since here the trial court suspended the sentence until receipt of the post-sentence investigation report from the probation officer. Petitioner argues that since the sentence was temporarily suspended, it was temporarily inoperative and was not sufficient to support an appeal until the trial court allowed execution of the sentence. We disagree.

Rule 4(b) expressly provides that entry of sentence is the event which triggers the running of the time in which to take an appeal. No provision is made for tolling of the period when execution of the sentence is suspended. Although a sentence may ultimately be suspended due to the granting of probation, the entry of sentence marks the termination of the legal proceedings against the defendant so that errors allegedly committed during the course of the proceedings may be presented for appellate review. The mere fact of temporary suspension of the sentence pending receipt of a probation report does not alter the appealable posture of the case.

Accordingly, the writ must be quashed.

WRIT QUASHED.

All the Justices concur.


text:
    James E. DILLARD v. STATE.
    4 Div. 573.
    Court of Criminal Appeals of Alabama.
    Nov. 21, 1978.
    Rehearing Denied Dec. 19, 1978.
    Joseph P. Hughes, Geneva, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant was tried and convicted of murder in the first degree. The victim was John Dewayne Smith. This is an indigent appeal.

It is not necessary to set out the evidence or any part thereof. Suffice it is the trial court refused to give appellant’s written charge 27 which reads:

“DEFENDANT’S REQUESTED CHARGE NO. 27
“If you have a reasonable doubt of Defendant’s guilt growing out of the evidence or any part of it, you must acquit him.”

We fail to find in the record that this charge was covered by the oral charge or written charges requested and given by the court.

The court committed reversible error in its refusal to give this charge. Tillman v. State, Ala.Cr.App., 360 So.2d 1074, cert. den. Ala., 360 So.2d 1075; and cited cases.

We pretermit considering other contentions of error. Perhaps these same rulings asserted to be error will not be invoked at the next trial.

Because of the court’s error in refusing charge 27, supra, the judgment is reversed and the cause is remanded for disposition as required by law.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM.

text:
    In re James E. DILLARD v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    78-184.
    Supreme Court of Alabama.
    May 4, 1979.
    William J. Baxley, Atty. Gen., and John Gibbs, Asst. Atty. Gen., for the State of Alabama, petitioner.
    Joseph P. Hughes, Geneva, for respondent.
   PER CURIAM.

The Court of Criminal Appeals, 371 So.2d 946, reversed the defendant’s conviction of murder in the first degree because the trial court refused his requested charge 27, which reads:

“ ‘DEFENDANT’S REQUESTED CHARGE NO. 27
“ ‘If you have a reasonable doubt of Defendant’s guilt growing out of the evidence or any part of it, you must acquit him.’ ” (Emphasis added.)

That court found that charge 27 was not covered in other charges given or in the court’s oral charge. It reversed, citing Tillman v. State, 360 So.2d 1074 (Ala.Cr.App.1978) cert. den., Ala. 360 So.2d 1075, as authority. We granted certiorari to review the opinion of the Court of Criminal Appeals in light of this Court’s case of King v. State, 356 So.2d 1220 (Ala.1978), where this Court opined that the denial of a charge similar to charge 27 was not reversible error, “because the principle of law expressed therein was substantially and fairly covered elsewhere in the trial court’s charge to the jury.”

The trial judge, in the case before us, charged:

“If after considering all the evidence in the case, you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt and it would be your duty to convict the defendant. The reasonable doubt which entitles an accused to an acquittal is not a mere fanciful, vague, conjectural, or speculative doubt, but a reasonably substantial doubt arising from the evidence and remaining after a careful consideration of the testimony such as reasonable, fair-minded and conscientious men and women would entertain under all of the circumstances. .
“If after comparing and considering all of the evidence in the case your minds are left with such a condition that you cannot say you have an abiding conviction to a moral certainty of the defendant’s guilt, then you are not convinced beyond a reasonable doubt and the defendant would be entitled to an acquittal.” (Emphasis added.)

In King v. State, this Court held that the denial of the charge was not reversible error “because the principle of law expressed therein was substantially and fairly covered elsewhere in the trial court’s charge to the jury.”

In King v. State, this Court recognized that there were “inconsistencies” among the previous opinions of this Court concerning the refusal of charges on reasonable doubt arising from “part of the evidence.” See also Sanders v. State, 37 Ala.App. 603, 75 So.2d 109 (1954). In King, this Court followed Rakestraw v. State, 211 Ala. 535, 101 So. 181 (1924), and expressly overruled that portion of Cagle v. State, 211 Ala. 346, 100 So. 318 (1924), dealing with the refusal of the charge on reasonable doubt arising from “part of the evidence.”

The effect of King is to hold that if the trial court, in the oral charge or by the giving of requested written charges, presents to the jury “a discussion of the reasonable doubt standard as applied to the evidence generally,” then the failure to give a charge similar to charge 27 is not error to reverse. Code 1975, § 12-16 13.

We can appreciate the confusion which has been caused by the “inconsistencies” between Rakestraw and Cagle. King follows Rakestraw and overrules Cagle, but King applies the rule of the statute [§ 12 16-13] that although the refused charge may state a valid proposition of law, the refusal of it by the trial court will not constitute prejudicial error if the principle of law expressed therein was substantially and fairly covered elsewhere in the trial court’s charge to the jury. In the present ease, we find that the principle of law stated in charge 27 was substantially and fairly covered in the trial court’s oral charge. The cause is due to be reversed. King, supra.

It may also be noted that the requested charge 27 is unlike the requested charge in Rakestraw, in that charge 27 concluded to acquittal on a hypothesis that justified that result without a consideration by the jury of “all the evidence.” Cf. Gautney v. State, 284 Ala. 82, 222 So.2d 175 (1969).

The requested charge in Rakestraw did not contain this deficiency. It read:

“If after considering all the evidence in the case you have a reasonable doubt as to the guilt of the defendant Jim Rake-straw growing out of any part of the evidence you should find him not guilty.” (Emphasis added.)

REVERSED AND REMANDED.

All the Justices concur.


text:
    James E. DILLARD v. STATE.
    4 Div. 573.
    Court of Criminal Appeals of Alabama.
    June 5, 1979.
   AFTER REMAND

BOWEN W. SIMMONS, Retired Circuit Judge.

Pursuant to the opinion of the Supreme Court of Alabama in this cause, Dillard, 371 So.2d 947, 78 184, we have reviewed the entire record and find that there was a proper Miranda warning given to the appellant, and, likewise, a proper voluntariness predicate laid before the admission of his confession. Lewis v. State, 57 Ala.App. 545, 329 So.2d 596 (1975), and authorities cited, affirmed, 295 Ala. 350, 329 So.2d 599.

We have also considered the remaining refused written requested charges and find that they were fully and adequately covered by the trial court’s oral charge or the written charges given at the request of the appellant. § 12-16-13, Code of Alabama 1975.

After careful examination, we are of the opinion that this cause is due to be

AFFIRMED.

All the Judges concur.


text:
    Linda QUALLS v. STATE.
    4 Div. 690.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied May 1, 1979.

      R. A. Prestwood, Andalusia, for appellant.
    Charles A. Graddick, Atty. Gen., and Karen Neal Daniel, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The appellant was convicted of second degree murder and sentenced to ten years’ imprisonment. Because of the District Attorney’s highly improper comment in closing argument on the appellant’s failure to testify and the failure of the trial judge to cure this violation by prompt and vigorous instructions to the jury this cause must be reversed.

I

The evidence revealed that on the morning of June 14, 1977, the appellant fired three shots from a .22 caliber pistol into Kenneth White after he had allegedly raped her and threatened her and her children. During the State’s closing argument the Assistant District Attorney made the following comment in the presence of the jury:

“There were two eye witnesses to what happened, who are they? Kenneth White was an eye witness, he is dead, so he cannot testify. Linda Sue Qualls was an eye witness to what happened. Now what testimony have you heard from anybody as to what happened during the time—”

Defense counsel objected to this remark and the trial court sustained, but gave no curative instructions for the jury to disregard the comment. This constituted reversible error.

Alabama Code Section 12-21-220 (1975) states:

“On the trial of all criminal proceedings, the person on trial shall, at his own request, but not otherwise, be a competent witness, and his failure to make such a request shall not create any presumption against him nor be the subject of comment by counsel . . . .”

The remark made by the prosecutor constituted a direct comment on the appellant’s failure to testify. Such remarks are prejudicial, in disregard of a defendant’s constitutional and statutory rights, and have been condemned time and time again by this court and the Alabama Supreme Court. Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); Robinson v. State, 352 So.2d 11 (Ala.Cr.App.), cert. denied, 352 So.2d 15 (Ala.1977); Everage v. State, 33 Ala.App. 291, 293, 33 So.2d 23 (1947).

“Where there has been direct comment on defendant’s failure to testify, and the trial court has not promptly acted to cure such a statement, the conviction must be reversed.” Beecher, supra, 294 Ala. at 681, 320 So.2d at 733. After defense counsel either objects to the improper comment or moves to have the remark excluded, it becomes “the duty of the judge not only to sustain said motion or objection, but also to exercise a reasonable degree of effort to eradicate its effect from the mind of the jury.” Broadway v. State, 257 Ala. 414, 416, 60 So.2d 701, 702 (1952). This court has held that the admonition to the jury that they disregard such improper remarks must be strong and not merely perfunctory, and that the trial court may err to reversal by saying too little to eradicate the damage. Lamberth v. State, 54 Ala.App. 233, 235, 307 So.2d 43 (1975). Here no corrective instructions were given and no effort was made to purge this statement from the mind of the jury. Thus there is no prima facie presumption against error. Robinson, supra, 352 So.2d at 14.

Adhering to the principles expressed this case is due to be reversed and remanded.

II

Should this case be retried we point out for the benefit of all concerned that evidence of the character of the accused, good or bad, offered for the purpose of showing his conduct on a specified occasion, is not provable by evidence of his specific acts or course of conduct. This entire subject is treated in a clear and thorough manner in C. Gamble, McElroy’s Alabama Evidence, §§ 26.02 — 27.02 (3rd ed. 1977).

In view of the comments of the District Attorney, which were not cured by proper instruction, we cannot say that the appellant received a fair and impartial trial, free of constitutional infirmity, to which she and all other defendants are entitled. Therefore this case is reversed and remanded.

REVERSED AND REMANDED.

All Judges concur.


author: ALMON, Justice.

text:
    Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
    78-530.
    Supreme Court of Alabama.
    June 22, 1979.
   ALMON, Justice.

WRIT DENIED.

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


author: DeCARLO, Judge. BOOKOUT, Judge,

text:
    Robert Edward YIELDING v. STATE.
    6 Div. 688.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied April 17, 1979.

      Arthur Parker, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

Robert Edward Yielding was charged with buying, receiving or concealing stolen property. After a jury trial, the appellant was found guilty and sentenced to four years imprisonment. Upon conviction, an oral notice of appeal was filed and a subsequent motion for a new trial was overruled.

The basis of this prosecution is a rifle, scope and shotgun which were found during a search of appellant’s residence conducted under a search warrant. Prior to trial, the appellant filed a motion to suppress the evidence obtained during the search. A hearing was held by the trial judge and the motion was denied. Appellant alleges that the affidavit made in support of the search warrant was invalid and insufficient to establish probable cause.

At the hearing on the motion, Deputy Sheriff Jim Roberson of the Jefferson County Sheriff’s Department, identified the affidavit and search warrant which were used to support the search of appellant’s home.

The affidavit in question reads as follows, omitting the formal parts:

“ * * * [Wjithin the past 72 hours I received information from a confidential informant that stolen property is presently being concealed at the residence of Robert E. Yielding alias Eddie Yielding located on Heflin Avenue, Forestdale, Jefferson County, Alabama. Said residence is the second house on the left side of Heflin Avenue when heading in a westerly direction after passing the intersection of Heflin Avenue and Wilcox Street, Forestdale, Jefferson County, Alabama. Said residence is a two story green brick and wood frame house with a two car basement garage.
“The information conveyed to me by said informant is based on said informant’s personal knowledge and direct observation, to-wit: that within the past 72 hours said informant was inside the above described residence of Robert E. Yielding alias Eddie Yielding. Informant states that while inside of said residence he observed the following items:
“1 Remington 30-30 caliber rifle Teddy Roosevelt Commemorative Model 94 with Silver medallion in the stock
“1 Colt 22 caliber short chrome plated derringer with pearl handles
“1 Browning 12 gauge double automatic shotgun with gold engraving on the side and light colored wooden stocks
“4 Gensen [sic] TS stereo speakers approximately 3 feet tall
“1 Fisher stereo amplifier
“1 Sony Reel to Reel tape recorder
“Also said informant stated that while inside above described residence he observed a quantity of marijuana, a controlled substance. Said informant has in the past used marijuana and is familiar with its appearance.
“In order to confirm said informant’s reliability I looked into the Jefferson County Sheriff’s Office files on reported burglaries which have occurred in Jefferson County, Alabama. My search revealed that a burglary was in fact reported by Mr. Sherrell R. Anderson on November 1, 1975. This burglary was of said Sherrell R. Anderson’s residence which is located at 939 Circle Heights Drive, Brookside, Jefferson County, Alabama. Stolen in said burglary were the following items: “1 Remington Model 94 30-30 caliber rifle, Teddy Roosevelt Commemorative Model with Hexogonal barrel and a silver medallion in the stock, Serial Numbers G9454R and 46601
“1 pair Colt 22 caliber Lord and Lady Derringers, one derringer having a blue finish and wooden handles, the other derringer being gold and chrome with pearl handles.
“1 Browning 12 gauge double automatic shotgun with gold engraving on the side with light colored wooden stocks and gold trigger
“4 Gensen [sic] TS Stereo speakers approximately 3 feet tall “1 Fisher Stereo amplifier, Serial No. 15956
“1 Sony TC 277 Reel to Reel Tape recorder, Serial No. 220036.
* # * * * *
“CONTINUED FROM PAGE ONE “Based on the above stated information I have reason to believe and do believe that the above described stolen property and/or marijuana, a controlled substance, are presently being concealed in the residence of Robert E. Yielding alias Eddie Yielding located at 1029 Heflin Avenue West, Forestdale, Jefferson . ., Alabama. Said residence is second house on the left hand side of Heflin Avenue heading in a westerly direction past the Heflin Avenue and Wilcox Street intersection, Forestdale, Jefferson County, Alabama, in violation of the laws of the State of Alabama.”

The affidavit was signed by Officer Roberson and by an ex-officio judge of the district court of Jefferson County and was not dated.

The search warrant, which was issued on the basis of the above affidavit, states that:

“ * * * there is probable cause for believing that [the above] stolen property and/or marijuana, a controlled substance, are presently being concealed in the residence of Robert E. Yielding alias Eddie Yielding located at 1029 Heflin Avenue West, Forestdale, Jefferson County, Alabama.”

The warrant authorized:

“Any lawful officer of said county and said State * * * * to make, in the daytime, an immediate search of the premises described above * * * for the above described property, and if [they] find the same or any part thereof to seize the same and hold it until further order from the District Court of Jefferson County.”

This warrant was signed by the district court judge of Jefferson County and dated February 4, 1977.

The return of the search warrant listed the thirty-three items seized at appellant’s residence, including the three items named in the indictment. We note that, among the property seized during the search of appellant’s residence, were the following items listed in the return:

“1. 3 bags marijuana
“3. 4 Jensen Spkrs. [speakers]
“4. 1 Fisher Stereo Amp. Ser. # 15956
“5. 1 Sony Reel to Reel recorder Ser. # 28554,”

which were items named in the affidavit and search warrant, and:

“9. 1 Remington 30.06 Rifle — Ser. # 6518855 [named in the indictment]
* * * * * *
“19. 1 Remington Mod. 1100 12 Ga.— # L961315V [named in the indictment,] ”

which are the items named in this indictment. The return was dated February 7, 1977 and was signed by the judge who authorized the search warrant.

Roberson testified that, before obtaining the search warrant, he went to the Jefferson County district attorney’s office and consulted an assistant district attorney. After the conversation, the affidavit and search warrant were prepared and he carried them to a judge of the district court of Jefferson County for his signature.

Roberson also said that he did not make the statement that the informant was a reliable informant, but “just a confidential informant.” Further, he stated that the informant had told him in a telephone conversation that he had been present in the appellant’s home within the past seventy-two hours and had observed the items listed in the search warrant.

Roberson testified that, after talking to the informant, but before obtaining the search warrant, he had looked at the county sheriff’s files on reported burglaries. At that time, he found that the items, listed in the affidavit as being observed by the informant, were taken in a burglary of Mr. Sherrell R. Anderson’s home. After contacting Mr. Anderson, Roberson received “a better and fuller description [of the stolen items] than that which was given at the time of the offense.” According to Roberson, he told the judge who issued the search warrant, that he hoped “to find a large quantity of stolen property, as well as some drugs,” at the Yielding residence, the property being that taken from Mr. Anderson’s residence.

Roberson testified that during the search of appellant’s residence he recovered the rifle and scope, which are the subjects of appellant’s prosecution, and that the other items listed in the return were recovered by Deputy Woodard and Sgt. Wilburn. During the search, approximately thirteen guns were found in a closet, and their serial numbers were then telephoned to a police radio operator to determine if they were stolen. Roberson said that the serial number of the rifle involved in the present case was checked and the rifle was found to have been stolen from the home of Terrell Randolph Mahaffey in a burglary on January 17, 1975.

Roberson stated that the four “Gensen [sic] stereo speakers and a Fisher stereo amplifier listed in the affidavit were recovered during the search from the room where the rifle was located.” Further, the deputy said that the rifle he had seized was a Remington 30-06 bearing the serial number 651885.

Roberson stated that there were several items seized during the search that were later found not to be stolen and returned to appellant.

In determining the question whether the description of the items listed in the affidavit, from the information of the informant, is “one and the same property ... in the sheriff’s . burglary report,” the following testimony was elicited:

“Q He didn’t tell you exactly as appears in this paper marked affidavit, he didn’t tell you exactly the words you have on there, did he?
“A One Remington caliber rifle, Teddy Roosevelt commemorative model 94 with silver medallion in the stock.
“Q Did he say that to you?
“A Yes, sir, he did.
“Q Exactly?
“A Exactly.
“Q What about the Colt twenty-two caliber chrome-plated Derringer?
“A Yes, sir.”

The court concluded from a recording of Officer Roberson’s testimony at the preliminary hearing, that the description of the first item listed in the affidavit was not reproduced “verbatim, but was similar . . The second one was verbatim and the third was verbatim and then the fourth was general.”

At the conclusion of the hearing the court overruled the motion to suppress and the State presented the following evidence:

Terrell R. Mahaffey testified that, when he returned to his trailer-home, at Route 2, Box 569, in Jefferson County Alabama, he noticed that the door had been “prized open,” and that seven guns and several other items of property were missing.

Mahaffey stated that he called the Jefferson County Sheriff’s Department and made a report of the missing property to the deputies who came to his home. Ma-haffey testified to the value of some property that was taken from his home during the burglary, and named in this indictment. He stated that the rifle was valued at approximately one hundred and fifty dollars, the scope at one hundred dollars, and the shotgun at two hundred and twenty dollars. According to Mahaffey, he had identified the rifle, scope and shotgun at the sheriff’s office, “six or seven months” after the burglary.

As a witness for the State, Deputy Jim Roberson testified that on February 4,1977, he made a search of the Yielding residence at 1029 Heflin Avenue West in Forestdale, pursuant to a search warrant. Roberson stated that during the search he seized a Remington 30-06 rifle with a Liepold variable scope that was lying in a chair. Roberson said that he also recovered a Remington model 1100 shotgun which, along with other guns and property seized, was taken to the sheriff’s office. He stated that Terrell R. Mahaffey later came to the sheriff’s office and identified the rifle with the scope and the shotgun, as property taken from his home during a prior burglary.

At the conclusion of Mr. Roberson’s testimony, the State rested its case and the appellant made a motion to exclude the State’s evidence. He assigned the following grounds for the motion:

“[t]hat no corpus delicti has been proven, no venue has been proved and there is no evidence sufficient to sustain the conviction.”

The motion was overruled and the appellant took the stand in his own behalf.

Appellant testified that he worked for U.S. Steel, in the Coke and Chemical Department. He stated that, after leaving work sometime in January, 1977, he had seen the rifle, scope and shotgun in question at the Cobra Lounge in Fairfield Alabama. According to Yielding, he had gone with some friends after work and a person whom he did not know asked if he wanted to buy two guns. Yielding stated that the man did not have the guns with him but instead had them in the trunk of his car. After talking for about fifteen minutes, the two men agreed on a price of two hundred and seventy-five dollars for the guns.

Yielding testified that he did not have the money with him but went to a bank, cashed his paycheck, returned and gave the man two hundred and seventy-five dollars for the guns. Yielding also stated that at the time he purchased them he did not know the guns were stolen and that he did not alter or conceal the guns.

During cross-examination, Yielding said that the friends with whom he had gone to the lounge did not see the man from whom he had purchased the guns because they had left prior to the transaction. Yielding also said that the man had told him that he had worked at U.S. Steel before being laid off, and admitted that he had not asked the man for his name or for a bill of sale.

I

The appellant contends that the affidavit in question, together with the officer’s oral statement to the magistrate, was totally insufficient to validate the search warrant authorizing the search of his residence. He maintains that the affidavit and oral statement did not comport with the test for a correct affidavit defined in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The two-pronged test enunciated in Aguilar has been frequently repeated in the decisions of this court, most recently in Pilkington v. State, Ala.Cr.App., 343 So.2d 548. In addition, we note that probability, and not proof necessary to convict for criminal activities, is the standard for determining probable cause. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.

The first mandate of the Aguilar test requires that the affidavit show the underlying facts to justify a conclusion on the part of the magistrate that the evidence is probably located in the place sought to be searched.

In the present case, the informant stated that he had observed the guns and the marijuana listed in the affidavit “within the past 72 hours.” Clearly, the affidavit in the instant case satisfies Aguilar’s first requirement. The informant’s information was detailed and based on personal observation, and a neutral and detached magistrate could thus conclude that the allegations were based on fact rather than suspicion, casual rumor, or “from an off-hand remark heard at the neighborhood bar.”

The present ease can be distinguished from Pilkington v. State, supra, in which none of the items listed in the search warrant was found. Further, the information supplied in Pilkington, was based on belief, whereas in the present case the informer had personal knowledge, in that he had seen the guns and drugs at the residence of the appellant within 72 hours of contacting the police.

The second mandate of Aguilar requires that an affidavit state the underlying circumstances to justify the conclusion that the informer was “credible” or that his information is “reliable.”

The most commonly used allegation for crediting the informant’s story is that the informant has previously furnished information that led to convictions. However, the credibility or reliability of the unidentified informant’s information may be shown in the informant’s statement of facts indicating that he was an eye witness with personal knowledge of the location of the evidence. McCreary v. Sigler, 8 Cir., 406 F.2d 1264. The credibility of the informant’s information may also be established by showing that the information imparted was an admission against the informant’s penal interest. See Spinelli v. United States, 393 U.S. 410, 423, 89 S.Ct. 584, 21 L.Ed.2d 637 (White, J., concurring).

Here the affidavit established that the informant was supplying information based on personal knowledge of his observations in the past 72 hours. The accuracy of the information given by the informant was also established by Deputy Roberson when he confirmed that the specific items named in the affidavit were in fact taken in.the burglary of Mr. Anderson’s home. In addition, the informant’s reliability was supported by his admission that he had used and was familiar with marijuana, which is an admission against the informant’s penal interest under Spinelli v. U.S., supra; Funches v. State, 53 Ala.App. 330, 299 So.2d 771.

Finally, we note that, as indicated in appellant’s brief, the affidavit itself was not dated. However, the search warrant was dated February 4, 1977, and stated in part that, “proof by affidavit having this date been made before me as a Ex Officio Judge of the District- Court of Jefferson County . . [Emphasis added]

Thus, we would conclude that the facts in the affidavit were not “stale” and that they show a substantial basis for a neutral and detached magistrate to conclude that the informant’s information was reliable and that probable cause existed for the issuance of the search warrant. We also hold that it supplied sufficient basis for determining that the informant was credible.

II

The appellant complains that the search warrant was invalid because material statements made in support of the affidavit were subsequently contradicted and proved to be erroneous. He argues:

“[T]he affiant misrepresented the description of the items listed in the sheriff’s office report in order to make them conform to the description of the items allegedly given to him by the informant.

In support of this contention, the appellant has cited McConnell v. State, 48 Ala.App. 523, 266 So.2d 328. The facts in McConnell are clearly distinguishable from the case at bar. In that case, the affiant had stated in the affidavit that he had seen two razors, which had been taken in a burglary, in the accused’s car. Later, in a hearing on a motion to suppress, the affiant contradicted those statements, and they were shown to be false or misstatements.

In the present case, the facts given indicate that the descriptions of the items to be seized were not contradicted. Furthermore, all that is needed to meet the requirements of specificity as regards a search warrant authorizing the search of a residence for specific goods is that a prudent officer is able to locate the property with reasonable certainty from the face of the warrant. Bates v. State, 51 Ala.App. 338, 285 So.2d 501.

The descriptions given by the informant, buttressed by the descriptions of his stolen property that Deputy Roberson received from Mr. Anderson, were sufficient to enable the officer to locate the property.

Nowhere is it shown that the descriptions in the affidavit were in fact false. Although they did not precisely match the descriptions given by the two owners, they did not contradict those descriptions and were sufficient to meet the criteria established in Bates, supra.

Ill

Next, appellant asserts that the seizure of the rifle, scope and shotgun was illegal because, at the time they were recovered, they were not known to have been stolen. He argues that, when the deputy telephoned the serial numbers to the radio operator in order to determine whether the guns were in fact stolen, he gave serial numbers that did not correspond to the actual numbers on the guns. Appellant insists: “[I]t is obvious that he [Deputy Roberson] is contradicted by his own testimony, and the evidence of a computer hit is erroneous.”

Appellant cites, in support of this contention, Agee v. State, 45 Ala.App. 203, 228 So.2d 30. We believe that the present case can be distinguished from Agee, supra, in that the search in the present case was pursuant to a search warrant.

In Agee, supra, the search was alleged to have been consensual although the court found that the consent was not voluntarily given. In addition, in the present case, some items were in fact seized which had been listed in the search warrant.

The items seized in Agee, supra, were seized under the plain view doctrine. There, however, the court determined that there was no justification for the original intrusion and the subsequent seizure. The court held that the introduction of the evidence was not justified by the plain view rule.

In the present case, the plain view seizure of items not listed on the warrant was justified because the officers’ intrusion into the Yielding residence was pursuant to a valid search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564.

During the seizure of some of the items listed in the search warrant, the officers inadvertently came across the guns and scope which are the subject of this prosecution. Although the incriminating nature of this property was not specifically determined until Deputy Roberson received verification by telephone from the sheriff’s office, it is not unreasonable for a prudent police officer, upon executing a search warrant listing certain guns known to be stolen, to believe that a gun in plain view was probably stolen.

As we have stated previously, the standard for determining probable cause is not a prima facie showing of criminality but merely a probability. Beck v. Ohio, supra. Whether the serial numbers checked by the officers, and the corresponding “hit,” were erroneous was a question to be determined by the jury.

Under the facts in this case, the plain view seizure came within the mandates of Coolidge v. New Hampshire, supra, and the seizure of the guns named in the indictment was lawful.

IV

Appellant insists that the court’s oral charge to the jury, concerning the inference to be derived from the unexplained possession of recently stolen property, was erroneous, where it excluded the definition of “recent.”

He argues that the court’s charge did not define “recently” so as to inform the jury that an inference from the word “recent” would not authorize a verdict of guilt unless the appellant’s possession was soon after the commission of the larceny. Appellant maintains that, due to the fact that the appellant’s possession was approximately one and one-half years after the guns were stolen, the court’s oral instruction, excluding the definition of “recent,” was prejudicial.

In the present case, the trial court’s oral charge relative to this issue reads as follows:

“The law says this, the unexplained possession of recently stolen property is a fact from which you, the jury, may infer guilt, but this is to be considered with all of the other evidence in the case, and whether there is sufficient evidence of guilt is entirely up to you for your determination.” [Emphasis added]

In Gilbreath v. State, 23 Ala.App. 33, 120 So. 304, this court stated:

“[W]hile the word ‘recent,’ in this connection, is not capable of exact definition, and always varies within a certain range, with the conditions of each particular case, and while there may be cases in which the court is authorized as matter of law to pronounce the possession recent, yet the question is one of fact for the jury and a charge which ignores it or withdraws it from their consideration is erroneous.” [Emphasis added]

Also, in Roley v. State, 39 Ala.App. 408, 103 So.2d 829, this court stated:

“The jury is the judge of whether or not the property was stolen ‘recently.’ ”

Therefore, it is our judgment that the oral charge given by the trial judge was sufficient to inform the jury that it was “the judge of whether or not the property was stolen ‘recently.’ ” Buckles v. State, 50 Ala.App. 548, 280 So.2d 810.

V

In his final insistence of error, the appellant claims that the trial court was in error when it would not allow testimony by the appellant to the effect that the price he paid for the stolen property was reasonable.

The appellant maintains that this testimony was relevant and material and was in rebuttal to the State’s evidence of the value of the guns. He insists that the testimony would explain whether the appellant had reasonable grounds for believing the guns were stolen.

The question involved appears in the following portion from the record:

“Q Was that a reasonable price for the two guns?
“MR. BARBER: I object to that, Your Honor. It’s invading the province of the jury.
“THE COURT: Sustained.
“MR. PARKER: We offer to show, if Your Honor please, that the other witness was allowed to testify as to value.
“THE COURT: I assume his value is what he paid for them, two-hundred-and-seventy-five dollars.
“MR. PARKER: That’s what I asked him. Was that a reasonable price?
“THE COURT: I sustained the objection to that.”

In support of this contention, appellant cites Starr v. Starr, 293 Ala. 204, 301 So.2d 78. In that case, a will contest, the Supreme Court of Alabama held that there was no abuse of discretion by a trial court in overruling an objection to a question asked of the husband, who was propounding the will, as to whether he intended to carry out a plan of property distribution agreed upon with his wife. The court went on to announce:

“We now hold that a witness, on direct examination, may testify as to his intention, motive or other physically unexpressed mental state, provided that the testimony is material to the issues in the case. This is another area where the sound discretion of the trial judge will come into play.” [Emphasis added]

Although it may be argued that this testimony may go to appellant’s motive, as suggested in Starr v. Starr, supra, the question, whether the appellant believed the guns were stolen, was an issue for the jury to decide. In Coplon v. State, 15 Ala.App. 331, 73 So. 225, another prosecution for buying, receiving, and concealing stolen property, a similar question was asked, as follows:

“ ‘What would that [stolen] suit be worth if owned by one person, worn by another, and you wanted to buy it?’ ”

In regard to the trial court’s refusal to allow the question, this court stated:

“This question was objectionable because there was no evidence in this ease that the suit in question was owned by one person, worn by another, and a third person desired to buy it. The matter in issue was simply the value of the suit of clothes at the time they were stolen from the witness .... and, so far as the evidence in this case shows, it was the value of these clothes when stolen from the witness in the condition they were then in that was the legitimate subject of inquiry, and not their value after they had been worn by some one else and their value to some supposed third party purchaser . . [Emphasis added]

In our judgment, the trial court made a proper ruling in sustaining the State’s objection to this question. The issue in the case was not what the appellant thought was a reasonable price, but the value of the guns at the time they were stolen.

After examining the record and transcript of evidence and finding no error, we are of the opinion that the judgment of the trial court is due to be affirmed.

AFFIRMED.

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

BOOKOUT and BOWEN, JJ., concur specially.

BOOKOUT, Judge,

concurring specially:

I concur in the result reached by the majority, but differ somewhat on the reasoning set out in support of that result.

During direct examination of the appellant, he testified concerning his purchase of the guns in question. In testifying as to his negotiations with the purported seller of the guns, the appellant stated:

“He said he wanted three hundred dollars and we kept talking about it and I tried to get him to, you know, come down on the price so then he decided to come down to two-seventy-five, so I thought it was a good price.”

Defense counsel then asked the appellant, “Was that a reasonable price for the two guns?” The prosecutor objected, and the trial court sustained the objection to that question.

The majority opinion upholds the trial court stating, “The issue in the case was not what the appellant thought was a reasonable price, but the value of the guns at the time they were stolen.” I beg to disagree with this reasoning. Defense counsel was not trying to establish the value of the guns for the purpose of establishing whether punishment would be the same as petit larceny rather than grand larceny pursuant to the punishment provisions of § 13-3-55, Code of Ala.1975. The issue to which the defense was referring was whether the appellant knew the guns were stolen or received them under such circumstances that a reasonable man of ordinary observation would have known that they were stolen.

Buying or receiving stolen property is not a crime absent knowledge that it was stolen or reasonable grounds for believing the property to have been stolen. The appellant emphatically stated that he did not know the property was stolen, therefore, the circumstances under which he claims to have purchased the property is very material to a key element of the offense. If he purchased the guns for a price so low that a reasonable man of ordinary observation would have been put on notice that the guns were probably stolen, then he has violated § 13-3-55, supra. On the other hand if he in fact thought he was paying “a reasonable price” for the two guns, and absent any other suspicious circumstances, he would not have violated the above section. This point is even more material in a case such as this where the possession of the stolen property is remote in time from the larceny.

I concur with the result reached by the majority, but for two other reasons. First, the appellant testified immediately prior to the question objected to that the seller of the guns lowered the price down to “two-seventy-five, so I thought that was a good price.” (Emphasis supplied.) He had just stated to the jury what defense counsel tried to again elicit from him by asking an improper question. “I thought that was a good price,” was more or less what defense counsel was attempting to elicit by the question, “Was that a reasonable price for the two guns?” Therefore, no error would result by the trial judge refusing to allow a question calling for a repetitious answer.

Second, the question objected to did not call for the appellant to testify as to his unexpressed mental state as per Starr v. Starr, supra. That question, as phrased, actually called for the appellant to give his opinion as to the value of the two guns. No predicate was laid to establish that the appellant had any idea as to the value of guns. While there is no necessity for a witness to be qualified as an expert or a dealer in the articles in question, it is necessary that counsel, as a prerequisite to such an opinion, lay a foundation “that the witness must have had an opportunity for forming a correct opinion as to value.” Gamble, McElroy’s Alabama Evidence, (3d ed.), § 128.11; § 12-21 — 114, Code of Ala.1975 (formerly Title 7, § 367, Code of Ala.1940, as amended).

As to the reasoning expressed in part IV of the majority opinion, supra, I have additional comments. This court properly upheld the trial court in its charge to the jury.

In pertinent part, the trial judge charged:
“The law says this, the unexplained possession of recently stolen property is a fact from which you, the jury, may infer guilt, but this is to be considered with all of the other evidence in the case, and whether there is sufficient evidence of guilt is entirely up to you and for your determination.”

Defense counsel’s exception was:

“We except to the Court’s charge on unexplained possession of stolen property. I believe the wording was unexplained possession of stolen property may be a circumstance from which you may infer guilt. Also to the comment on the verdict form where Your Honor wrote in some more stuff on one of the forms.”

The exception does not apprise the trial court of any ground for the exception, nor does defense counsel explain to the trial court why the charge was in error. In addition, the exception misstated what the trial court had charged to the jury as “unexplained possession of stolen property” whereas the trial judge charged as to the unexplained possession of recently stolen property. There is quite a distinction between the legal meaning of those two phrases. Gilbreath v. State, 23 Ala.App. 33, 120 So. 304 (1929).

Now, for the first time on appeal, the appellant contends that the trial court’s oral charge was improper because it omitted a definition of “recent.” The trial court was not apprised of that ground, nor any other, by the appellant’s exception. Even had that ground been properly stated to the trial court, no error would have resulted from the court’s failure to give the jury such a definition in the absence of a written requested charge to that effect. A trial court ordinarily will not be in error merely because its oral charge is not comprehensive of all pertinent legal principles. In order to prevent any injustice in this regard, parties have the right to request written charges to supply principles omitted from the trial court’s oral charge. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844 (1974), cert. denied, 293 Ala. 746, 309 So.2d 850. The appellant failed to provide the trial court with a written requested charge covering the principle of law which he contends was omitted from the oral charge. To quote from Justice Bloodworth’s concurring opinion in Ex parte State v. Burns, 295 Ala. 423, 327 So.2d 927 (1976):

“. . . The Supreme Court of Alabama has never reversed a trial judge, to my knowledge, for failing to instruct. When a trial judge’s instructions are not as full as defendant’s counsel desires, the remedy is to request instructions explaining defendant’s theory of the case. Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955).”

BOWEN, J., joins in the above.


author: FAULKNER, Justice.

text:
    Ex parte Robert Edward YIELDING.
    78-505.
    Supreme Court of Alabama.
    June 22, 1979.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    Bennie Louis RUDOLPH v. STATE.
    1 Div. 19.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
    Rehearing Denied May 22, 1979.

      Rivard Melson, Monroeville, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen. for the State, appellee.
   BOWEN, Judge.

The appellant was indicted and convicted for grand larceny and sentenced to five years’ imprisonment. The only issue presented on appeal is whether the trial court erred in overruling the defendant’s motion to suppress evidence found in the trunk of his automobile pursuant to an alleged illegal search and seizure.

Around 7:30 on the morning of January 12,1978, Claude Green went to the Monroe-ville National Guard Armory on business. He saw a pickup truck, which he recognized. The Armory was located on “the main thoroughfare here in town” and the truck was parked in the parking lot “out close to the road”. Green could clearly see rifles “hanging in the back of” the truck. A Dodge Charger automobile was parked next to the truck. Green testified that he knew most of the people in “the National Guard out there” and knew most of their automobiles, but that he had never seen the Dodge “around there before”. Green further testified, “I could not tell if there was anybody in the car or not because it had tinted glass and it was a hazy, cloudy day”. He later stated, “I could see the — you know just the outline of somebody in the car”. When asked, “Did you see any activity about getting out or anything?”, Green replied, “No, sir”.

“. . The car just sitting there and so I just looked at it and I said, well, something don’t look right, to myself and I just drove back around and got the tag number and then went up to the station and I turned it in to the Chief of Police.”

On cross examination, in response to being asked what looked so unusual about seeing two vehicles parked side by side in the parking lot, Green stated:

“Well, just because at that time there had been a lot of break-ins in this area and things of that nature and it just didn’t look right — that pickup truck sitting there with the guns in it and the car pulled right up close to it — it was just the way it was sitting.”

Green also stated, “I was reporting something that looked suspicious to me . . ”. Green was at the Armory “roughly two minutes”.

Monroeville Police Sergeant Bill Daily received a radio dispatch about 9:00 A. M. that “ ’71 blue and white Dodge with Alabama tag number EJX565 was noseying around a truck that was parked at the National Guard Armory”, that the truck had rifles in it and that “the subject was looking in the truck”. Daily went near the Armory and established surveillance although the Dodge was gone when he arrived. He called for an unmarked car.

Officer A. T. McQueen arrived and observed the Dodge pass the Armory twice while he was on the “stakeout”: “when it went to town and when it came back from town”. The Dodge was not seen at the truck by anyone after Green left the Armory.

Both Officers Daily and McQueen subsequently left the scene on another call after having observed the truck for approximately one hour to one hour and one-half. When they returned within thirty to forty-five minutes the rifles were gone.

Information concerning the Dodge was dispatched and a registration check revealed that the defendant was the registered owner. Deputy Sheriffs stopped the defendant who admitted ownership of the automobile but refused to allow the deputies to look in the trunk. The defendant was “detain(ed) for investigation” and taken to the police station. His automobile was also taken to the station. There a search warrant was obtained and a search of the trunk revealed the stolen guns. The defendant was then formally placed under arrest.

At trial the State stipulated that the affidavit for the search warrant was insufficient to show probable cause for its issuance. Neither the affidavit nor the search warrant was offered into evidence, and the affidavit and warrant are not a part of this record.

The question this court must determine is whether probable cause existed for the war-rantless search of the defendant’s automobile. Although the trial court found sufficient probable cause, we cannot agree.

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Supreme Court of the United States instructed that:

“(S)earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions (T)he burden is on those seeking the exemption to show the need for it. .

Our own Supreme Court has embraced this principle, Paschal v. State, 365 So.2d 681 (Ala.1978); Kinard v. State, 335 So.2d 924 (Ala.1976).

Based on the radio dispatch Sergeant Daily received (that a ’71 Dodge with Alabama tag number EJX565 was noseying around a truck parked at the National Guard Armory and that a subject was looking in the truck at the rifles) the police officers may reasonably have believed they had probable cause to conduct the warrant-less search of the appellant’s automobile when the rifles were discovered missing. Such a report tends to suggest criminal activity.

However, the requirement of probable cause which is necessary in any search, warrantless or not, cannot be satisfied on the basis of a radio dispatch alone. Paschal, 365 So.2d at 682; Owens v. State, 51 Ala.App. 50, 282 So.2d 402, cert. denied, 291 Ala. 794, 282 So.2d 417 (1973). While the arresting officers may rely on radio broadcasts “the subsequent determination by any court as to probable cause must necessarily turn on all the circumstances giving rise to the police dispatch”. Owens, 51 Ala.App. at 61, 282 So.2d at 413.

In this case the information Claude Green turned in at the police station provided all the recorded circumstances which give rise to the police dispatch. This information fails to establish probable cause. Green observed no criminal activity whatsoever. The data Green provided amounted to mere suspicion: “It just didn’t look right . it was just the way it was sitting”; “I was reporting something that looked suspicious to me . . . .”

The rule is clear that “a simple assertion of police suspicion is not itself a sufficient basis” for a finding of probable cause. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Eaton v. State, 45 Ala.App. 464, 231 So.2d 918 (1970). And, a search cannot be made legal by what it turns up. Shipman v. State, 291 Ala. 484, 282 So.2d 700 (1973). This finding is in no manner a retreat from the established proposition that only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause. Spinelli, 89 S.Ct. at 590.

On the basis of the foregoing authority probable cause for the search was not established. Thus, the search of the defendant’s automobile and seizure of the rifles contained therein were conducted in violation of the Fourth Amendment. Therefore the judgment of conviction must be reversed and the cause remanded to the circuit court.

REVERSED AND REMANDED.

All Judges concur.


text:
    Ex parte STATE of Alabama, ex rel. ATTORNEY GENERAL.
    78-606.
    Supreme Court of Alabama.
    June 22, 1979.
   FAULKNER, Justice.

WRIT DENIED.

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