author: BOWEN, Judge.

text:
    Dennis Ray HELTON v. STATE.
    6 Div. 893.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Rehearing Denied June 26, 1979.

      Jerry N. Quick, Trussville, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for assault with intent to murder and sentenced to four years’ imprisonment. At trial and on appeal he is represented by retained counsel.

The State’s evidence tends to show that on the evening of October 22, 1978, Robert Bailey was with two friends in the Regal Lounge in Jefferson County. The defendant, who did not know Bailey and whom Bailey did not know, was also present with three of his friends. Though Bailey denied saying anything to the defendant, another State’s witness and one of the friends with Bailey, Bobby Beard, testified that some words were had between Bailey and the defendant although he did not hear what those words were.

Bailey went to the restroom. He was facing the wall when he heard the door squeak. He turned his head and saw the defendant. Bailey testified, “about the time I turned back toward the wall, that’s the last thing I knowed” until he woke up in the hospital “two or three weeks later”.

Beard testified that he saw the defendant follow Bailey into the restroom. Beard also followed but arrived just as the door closed and waited outside. In “less than a minute” he heard “something hitting the floor” and saw the defendant come out and walk away without saying anything. Before the door closed, Beard saw Bailey lying on the floor “covered in blood”. Bailey was “sort of like coughing in a way, but he was unconscious. And blood was pouring out of his mouth, you know, where he was coughing up blood and everything.” Bailey’s face “looked like somebody had run over him”. Beard testified that “there wasn’t nobody else” in the restroom.

Dr. Robert E. Howe, a plastic surgeon, examined Bailey on October 24th in the neurosurgical intensive care unit at Carra-way Hospital. He testified that Bailey had “cuts above the eye, cuts through the lip, all the way through and through the lip, and fractures of his facial skeleton, which included fractures across both cheek bones, above both eyes, across the nose with multiple fractures in the middle portion of the head”. Wire fixations of the breaks were necessary to hold the fractures together. The testimony indicated that “the extent of his injuries were that this part of his face was just knocked loose from the rest of his head, rest of his skull”. Dr. Howe stated that this type of severe trauma is mostly associated with automobile accidents and not the result of a fist fight. His records show that Bailey regained consciousness and was alert on October 23rd. With his testimony the State rested.

Although the defendant did not testify, his evidence revealed that he had had a fight with Bailey and that he had hit Bailey with his fist and kicked him in the face with his dress boot while he was lying on the floor. The defense attempted to show that Bailey had been provoking the defendant throughout the evening. No one actually saw the defendant hit Bailey though the defendant admitted to some friends that he did.

In rebuttal the State called Sergeant T. B. White of the Birmingham Police Department. In connection with this case Sergeant White took the defendant’s statement on November 11,1977. This statement was read into evidence after the State proved that it was voluntary and in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In the statement, the defendant alleged that Bailey had caused him trouble throughout the evening and that he had seen someone injured on the bathroom floor but had not seen what had happened.

I

The elements of the offense of assault with intent to murder are (1) an assault and (2) an intent to murder. Lawhon v. State, 41 Ala.App. 577, 141 So.2d 205 (1962). An accused may be guilty of assault with intent to murder where no deadly weapon was used, Hall v. State, 348 So.2d 870 (Ala.Cr.App.), cert. denied, Ex parte Hall, 348 So.2d 875 (Ala.1977); Bowen v. State, 32 Ala.App. 357, 26 So.2d 205 (1946), or where the accused only used his fists as malice may be inferred from the character of the assault. Sparks v. State, 261 Ala. 2, 75 So.2d 103 (1954); Kirkland v. State, 21 Ala.App. 348, 108 So. 262 (1926).

To authorize a conviction for assault with intent to murder, the evidence must show an assault with intent to take life, under circumstances which would have constituted murder if death had resulted. Hamm v. State, 56 Ala.App. 632, 324 So.2d 345 (1975). An intent to take life is an essential element of the defense. Morgan v. State, 33 Ala. 413 (1859); Bowen, supra. The State’s evidence revealed that Bailey was attacked from behind and never knew what hit him. • His injuries reveal that he was assaulted in a brutal and vicious manner causing severe bodily injury. Both malice and intent to murder may be inferred from the character of the assault. Diamond v. State, 219 Ala. 674, 123 So. 55 (1929); Ray v. State, 147 Ala. 5, 41 So. 519 (1906).

After the State had rested its case, testimony was elicited from witnesses for the defense that the defendant kicked Bailey with his dress boot. In his oral charge the trial judge instructed the jury that malice may be inferred from the intentional use of a deadly weapon. He also charged on the lesser included offense of assault and battery.

Although there was no eyewitness testimony presented during the State’s case that the defendant either hit or kicked Bailey, the circumstances permitted such an inference to be drawn by the jury. Eyewitness testimony of the defendant’s participation in the criminal act is not required. Circumstantial evidence alone may be sufficient to support a conviction. White v. State, 294 Ala. 265, 314 So.2d 857, cert. denied, 423 U.S. 951, 96 S.Ct. 373, 46 L.Ed.2d 288 (1975).

We are of the opinion that the questions of malice, intent and identity were issues of fact for the jury’s determination. Hall v. State, 848 So.2d 870 (Ala.Cr.App.), cert. denied, 348 So.2d 875 (Ala.1977); Kean v. State, 38 Ala.App. 675, 92 So.2d 435 (1957).

II

Since death is not the natural or probable result of a blow with the hand or foot, the general rule is that no intent to kill will, under ordinary circumstances, be inferred, although death results from an assault thus committed. 22 A.L.R.2d 854, 857 (1952). However an assault by blows without a weapon may be attended with such circumstances of violence and brutality that an intent to kill may be inferred. Oliver v. State, 234 Ala. 460, 175 So. 305 (1937); Kirkland v. State, 21 Ala.App. 348, 108 So. 262 (1926); Tennant v. State, 26 Ala.App. 206, 155 So. 885 (1934); 22 A.L.R.2d at 861.

Generally, malice raising the grade of a homicide from manslaughter to murder will not ordinarily be inferred from a blow with the fist. Lanier v. State, 31 Ala.App. 242, 15 So.2d 278, cert. denied, 244 Ala. 638, 15 So.2d 280 (1943); Pair v. State, 33 Ala.App. 108, 31 So.2d 107, cert. denied, 249 Ala. 317, 31 So.2d 114 (1947); 22 A.L.R.2d at 868. However if the defendant used excessive force or was guilty of extreme brutality, malice may be inferred. Clarke v. State, 117 Ala. 1, 23 So. 671 (1898); Diamond v. State, 219 Ala. 674, 123 So. 55 (1929); Oliver, supra; Kirkland, supra; Tennant, supra; 22 A.L.R.2d at 871.

Alabama has adopted the view that it is the use of the weapon and not solely its nature that determines whether it is likely to produce death as bearing on the question of the degree of the homicide. Carter v. State, 31 Ala.App. 526, 19 So.2d 361, cert. denied, 246 Ala. 101, 19 So.2d 364 (1944) (a “car crank”). Thus a deadly weapon is not only a weapon with which death may be easily and readily produced, but one which is likely to produce death or great bodily harm from the manner in which it is used. Matthews v. State, 51 Ala.App. 417, 286 So.2d 91 (1973) (file); Williams v. State, 251 Ala. 397, 39 So.2d 37 (1949) (a large stone); Duncan v. State, 30 Ala.App. 356, 6 So.2d 450 (1942) (a coca-cola bottle). The instrument or weapon used in inflicting injuries upon the person of another may or may not be esteemed deadly, according to the manner of its use and the subject on which it is used. Sharpe v. State, 340 So.2d 885 (Ala.Cr.App.), cert. denied, 340 So.2d 889 (Ala.1976) (an aluminum chair). Thus we cannot state, as a matter of law, that kicking with a shoe-clad foot may not constitute assault with a deadly weapon. While feet or shoes are not deadly weapons per se, the manner of their use in particular situations may make them deadly weapons. 33 A.L.R.3d 922, 925 (1970).

Ill

On appeal the defendant takes exception to a portion of court’s oral charge given to the jury’s request for a repeat of the charge on the use of a deadly weapon. We find that the charge when construed as a whole as is required, Gosa v. State, 273 Ala. 346, 350, 139 So.2d 321 (1962); Van Antwerp v. State, 358 So.2d 782, 786 (Ala.Cr.App.), cert. denied, Ex parte Van Antwerp, 358 So.2d 791 (Ala.1978), is a proper statement of the law and of the principles we have set forth above.

Moreover we note that at trial defense counsel announced “satisfied" with the court’s initial and subsequent charges. The question of the correctness of the court’s oral charge to the jury cannot be raised for the first time on appeal. Allison v. State, 281 Ala. 193, 200 So.2d 653 (1967). Exceptions to the oral charge reserved for the first time in a motion for new trial cannot be considered. Gurley v. State, 216 Ala. 342,113 So. 391 (1927); Snider v. State, 39 Ala.App. 234, 92 So.2d 163 (1957). Consequently the defendant, by failing to object to the court’s oral charge, has no cause to complain.

IV

In the absence of an appropriate objection during trial, the issue of whether an in-court identification was tainted by a pretrial photographic display or lineup is not preserved for review. Rhine v. State, 360 So.2d 1056 (Ala.Cr.App.), cert. denied, Ex parte Rhine, 360 So.2d 1060 (Ala.1978); Allen v. State, 47 Ala.App. 566, 258 So.2d 909 (1972).

V

While sufficient provocation under certain circumstances may reduce the offense of assault with intent to murder to assault and battery, Smith v. State, 86 Ala. 28, 5 So. 478 (1888); Jones v. State, 96 Ala. 102, 11 So. 399 (1892), passion engendered by mere words will not serve to reduce a felonious assault to simple assault. Ellis v. State, 120 Ala. 333, 25 So. 1 (1899). The defendant’s argument that Bailey could have been the aggressor and provoked the defendant is without merit. The question of who was the aggressor is to be ascertained by fact and not by presumption. Clark v. State, 216 Ala. 7, 111 So. 227 (1927). Under the evidence this was a question for the jury.

We have searched the record for error prejudicial to the defendant and found none. The judgment of the trial court is affirmed.

AFFIRMED.

All Judges concur.

      . The court charged the jury:
      “Now, a deadly weapon, as I said, is not necessarily an instrument from which a blow would ordinarily produce death. An ax in the back of the head, you could say that would ordinarily produce death. In order for it to be a deadly weapon it doesn’t have to be necessarily that. In other words, it doesn’t have to be a weapon or an instrument or whatever which would ordinarily every time cause death. But one from which — but is has to be an instrument from which as it was used, as it was used, would probably result in death, probably.
      “In other words, looking at the way this instrument was used death would probably result. In other words, the jury looks to the manner of its use, the subject against whom it is used, and the results, the actual results, in order to determine if that intent was present. In other words, a deadly weapon is not only a weapon with which death may be easily or readily produced, but one which is likely to produce death or great bodily harm from the manner in which it is used.
      “Now, if you determine that a deadly weapon was used, a shoe, boot, whatever, in the manner in which it was used it became a deadly weapon, then the law says that you may infer that there was an intent to take life from the intentional, wrongful use of that deadly weapon. If you determine that a deadly weapon was in fact used, you may infer from the fact that it was — that there was a deadly weapon, that it was intentionally used, that there was an intent to kill, unless the facts of the assault show to you that there was no such intent, or other circumstances in the case show to you that there was no such intent.”


source: Caselaw Access Project

author: DeCARLO, Judge. TYSON, Judge,

license: Public Domain

text:
    Kenneth Victor CORY v. STATE.
    8 Div. 153.
    Court of Criminal Appeals of Alabama.
    May 22, 1979.
    Rehearing Denied June 26, 1979.

      Larry Edwin Perry, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen. for the State, appellee.
   DeCARLO, Judge.

Appellant was charged with robbery by a Madison County Grand Jury, but prior to trial he was committed to Bryce State Hospital at Tuscaloosa, Alabama. On May 18, 1978, he was determined to be competent to stand trial and was returned to Madison County.

On August 29, 1978, the appellant was tried before a jury, and on August 30,1978, he was found guilty and sentenced to ten years imprisonment. On that date, he gave notice of appeal and, after a motion for a new trial was overruled, the case was appealed to this court for review. Appellant was determined to be an indigent for the purpose of this appeal.

The facts presented at trial are substantially as follows:

Charles Lifer was the lone operator of a U-Totem store in Huntsville, Alabama, on November 20, 1977. At approximately 10:30 or 10:45 P.M., a male, whom he identified as the appellant at trial, came into the store. According to Mr. Lifer, the man purchased “two pieces of gum" and, when the store operator “rang up four cents,” the appellant “started to grin, reached in his back pocket and pulled out a gun.” Mr. Lifer described the gun as “shiny, like chrome or nickel, and it was real small, and the tip of it just barely showed up, sort of to the side underneath his coat." Mr. Lifer said he could not see part of the weapon, “but from the tip, it looked real small, I would have thought it would be an automatic.”

The store clerk stated that, at that time, the appellant said, “Give me the money,” and, when he opened the register, the appellant said, “Make it fast.” Mr. Lifer placed the money on the counter and the appellant picked it up. The appellant stopped to look out the front door and, after a car had passed, went out.

Mr. Lifer testified that, after the appellant left, he ran out of the store and “looked out to see if they were out there, but I couldn’t see anything in front of the store.” According to the witness, he “couldn’t see anybody anywhere, it was real dark.” Mr. Lifer stated that he then returned to the store and called the police.

Mr. Lifer also testified that he viewed a lineup at the Huntsville City Jail in late December. He stated that, at that time, he identified the appellant as the person who had robbed him on November 20, 1977, and also stated that no one had indicated to him which one of the six men he was viewing was the suspect. Mr. Lifer stated that he identified the appellant when he “first walked in” to view the lineup.

During cross-examination, Mr. Lifer said that the main reason for his identification of the appellant was the “basic shape of his head.” The witness stated, “I guess I just felt when I saw him, right away I just remembered everything from back then.”

Regarding the gun used in the robbery, Mr. Lifer admitted, on cross-examination, that there was a possibility that more than one gun of the type he had identified existed. Further, even though Mr. Lifer stated that he could not definitely tell what type of material the appellant’s coat was made of, or whether it was unbuttoned, he said “when I [saw] the coat — like I saw the guy, it just came back to me what it looked like.” Mr. Lifer said that he did not observe the appellant leave in any type of vehicle.

Huntsville Police Officer, Daniel R. Dila-causey, Jr., testified that, on December 26, 1977, he saw the appellant “driving a white Dodge Van, ’73 model, with a black stripe around it.” Officer Dilacausey explained that he had received a “radio traffic that a van fitting this description which had been used in an armed robbery that had happened on the previous date was in the area.” He then proceeded to that location where he saw the van and “stopped it at South Park Drive, and South Parkway.”

In court, the officer identified the driver of the van which he stopped, as the appellant.

Officer Dilacausey stated that he asked the appellant for his driver’s license and, at the same time, asked him to come to the squad car. At that point, there was “radio traffic in the presence of the [appellant] asking about certain weight, height, description of the armed robber, which fit very closely to the person [appellant] I had beside me.”

The officer stated that he then asked the radio dispatcher what kind of weapon was used in the robbery. The dispatcher responded, in the appellant’s presence, that it was a “small caliber automatic nickel or chrome plated” weapon.

At that point, the appellant advised him that he had “by the way, a gun under the front of may van, but it’s not an automatic.” The officer then asked, “do you mind if I go up and get the gun?” The appellant responded, “No, sir, I don’t.”

Officer Dilacausey retrieved the weapon and found that it was a loaded “.25 automatic Guardian pistol that was nickel plated.” According to the police officer, the appellant said, “ ‘well maybe it is,’ or something to that effect,” agreeing with him that it was an automatic.

Further, Officer Dilacausey testified that, when the appellant was unable to show a permit to carry the pistol, he was arrested for violation of the State Uniform Firearms Act and taken to the detective division of the Huntsville Police Department.

During cross-examination, defense counsel asked Officer Dilacausey how he received the information concerning the van that the appellant was driving. Dilacausey answered that the information was from a call made on the night of the robbery, from “a lady in the neighborhood of the store” who had “called in immediately after the armed robbery. . . . ” He stated that he did not talk to the woman personally, but received the information through “radio traffic, standard police procedure, [which] came out over the radio and was put out as a possible vehicle in an armed robbery.”

Further, during cross-examination, the officer said that, to the best of his recollection, when he stopped the appellant in his van, he advised the appellant that his van fit the description of a van that “we believed to have been used in an armed robbery.” He stated that not only did the appellant fit the description of the person who had robbed the U-Totem store, but also that the gun fit the description of the gun used in the armed robbery.

Dilacausey went on to state that he had received the “radio traffic from an officer who was working a traffic accident,” and who had seen the van, but was unable to leave his accident scene. Officer Dilacau-sey testified that he, therefore, located the van and stopped it.

During further cross-examination, Officer Dilacausey stated that he had never seen another white Dodge van, with a black stripe around it. Further, he stated that he never questioned the appellant about the armed robbery, and said that the only comment about the robbery was made by the appellant, who told him, “ ‘It couldn’t have been me, I was at home,’ or T was not in the state at that time,’ or something to that effect.”

Patrick Dillaha, a homicide and robbery investigator with the Huntsville Police Department, testified that he investigated the robbery at the U-Totem store on November 20, 1977. According to Officer Dillaha, he went to the U-Totem store and talked with the victim, Charles Lifer. Officer Dillaha stated that he received a description of the offender from Mr. Lifer, and then left the store.

On December 26th, about 9:00 A.M., Officer Dillaha talked with the appellant, after advising him of his constitutional rights, but the appellant did not sign a waiver or give a written statement at that time. According to the officer, he informed the appellant that he was going to contact the victim of the robbery and then place him in a lineup along with other persons “for purposes of identification.”

The lineup was conducted on December 26th and, at that time, the victim identified the appellant as the man who had robbed him. Officer Dillaha said that he then placed the appellant under arrest for the robbery of the U-Totem store.

During cross-examination, the officer testified that the victim had described the robber’s clothing, and had stated that he had a light-colored mustache at the time he robbed the store.

Following this testimony, the State concluded its case and the appellant called twelve-year-old Helen Irene Bentley as his first defense witness.

This witness testified that the appellant was her uncle and that, on November 20, 1977, she was home watching television. She stated that the appellant came in about 10:00 P.M., and watched television with her in her room. She said that, after a movie ended at 10 o’clock, he remained until the news concluded and that she later saw him in his bed in the living room of the house. She stated that her room was near the front of the house and that she did not hear any sounds of a vehicle leaving her house that night.

Roberta Clemmons, the appellant’s next-door neighbor, testified that, on November 20, 1977, she had gone to the appellant’s house to view a television program, and that at that time, the appellant was at home. She said that she went home around 9 o’clock and that he was also there when she left.

Further, Mrs. Clemmons stated that the appellant did not have a mustache at that time and that she had never seen him with one.

The appellant, Kenneth Victor Cory, testified that, on November 20, 1977, he was living with his sister and his niece, and that he was home watching television until about 10:00 P.M. on that night. He stated that, after the television news program was over, he went to bed and did not leave the house. He said that he had never see Mr. Lifer before the lineup and denied robbing him.

Further, the appellant testified that, while returning from a Christmas party, he was stopped by the police and that, when he walked toward the police car, the officer told him “the reason why I stopped you is because your van was sighted in several different robberies.” According to the appellant, he was sitting in the police car talking with the officer and, during the conversation, he told the officer, “Yes, I have a gun.” The appellant said that the officer, at that point, went to the van and took the gun from beneath the driver’s seat.

During cross-examination, the appellant stated that he had been in the U-Totem store prior to the robbery, and had continued to frequent it. He stated that it took about “ten minutes” to drive from where he lived to the U-Totem store.

The appellant said that Mr. Lifer was mistaken in his identification of appellant as the robber.

I

Appellant contends that the trial court committed reversible error by allowing the State to place into evidence hearsay testimony of the arresting officer concerning the possible use of his vehicle in a robbery. The appellant argues that by permitting this testimony, the court allowed the jury to believe that a van fitting the description of the one he was driving when he was arrested had been used in the robbery of the U-Totem store on November 20, 1977.

Appellant insists that permitting the officer to testify to what he had heard over his police radio denied him the right to cross-examine the source of that information to determine its reliability and relevancy. Appellant therefore insists that he was prejudiced by this testimony.

The testimony in question was a result of direct examination by the State of the arresting officer. From the record, we find the following:

“Q. What if anything drew your attention to that white van?
“A. I received radio traffic that this van—
“MR. PERRY: Your Honor, we object, hearsay evidence.
“THE COURT: Overruled.
“Q. Go ahead, sir.
“A. I received radio traffic that a van fitting this description which had been used in an armed robbery that had happened on a previous date was in the area, and I proceeded to that location where I saw the van and stopped it at South Park Drive and South Parkway.”

During cross-examination by defense counsel, the following occurred:

“Q. You said you received information that this van, the one the defendant was driving when you arrested him, fit the description of the van that supposedly had been used in a robbery?
“A. That’s correct.
“Q. How did you receive that information?
“A. The night of the armed robbery, a lady in the neighborhood of the store, in the housing project behind the store or in the general vicinity, called in immediately after the armed robbery happened.
“Q. Did you receive that over the phone from someone, or did you go talk to her personally?
“A. No, that was radio traffic, standard police procedure, and it came out over the radio and was put out as a possible vehicle in an armed robbery.
“MR. PERRY: I object to any testimony relating to a van used in the robbery, unless the prosecution can show a van was used. Mr. Lifer testified he didn’t know how the person left.
“THE COURT: Overruled.”
McCormick’s treatise on evidence states: “In criminal cases, the arresting or investigating officer will often explain his going to the scene of the crime or his interview with the defendant, or a search or seizure, by stating that he did so ‘upon information received’ and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.” E. Cleary, McCormack’s Handbook on the Law of Evidence, Ch. 24, § 248 (2d ed. 1972). [Emphasis added.]

In addition, Wigmore on Evidence, gives the following interpretation of the hearsay rule in this instance:

“The theory of the hearsay rule (§ 1361 supra) is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the hearsay rule does not apply. The utterance is then merely not obnoxious to that rule. It may or may not be received, according as it has any relevancy in the case; but if it is not received, this is in no way due to the hearsay rule.” VI Wig-more, Evidence § 1766 (Chadboum rev. 1970).

Testimony is not inadmissible as hearsay evidence when it is not submitted to prove the truth of the matter asserted. Although it is, in truth and in fact, hearsay, it is not inadmissible as such. See State v. Trotter, 203 Kan. 31, 453 P.2d 93. The testimony of a witness is not hearsay when it is not admitted to prove the truth of the matter asserted. “ ‘Whenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted, the evidence so offered is hearsay. If offered for any other purpose, it is not hearsay.’" State v. Aaron, 29 N.C.App. 582, 225 S.Ed.2d 117; citing Stansbury’s N.C. Evidence, Brandis Revision, § 138.

When an officer testifies to the details of a police dispatch overheard by him, merely to provide some explanation for his subsequent action in locating the accused, the details of the dispatch are admissible in evidence. The testimony of the details of the dispatch is not inadmissible as hearsay evidence when it is not offered to prove the truth of those details.

In the present case, the testimony of the officer concerning appellant’s “van,” was introduced, not to prove that the appellant was at the scene of the offense or had committed the robbery, but in order to show what the officer did in response to the radio dispatch, why he stopped the van, and why he later checked with the dispatcher for a description of the person who had committed the robbery.

In Wharton’s Criminal Evidence, we find the following statement of the rule:

“An extrajudicial statement is inadmissible as hearsay only when offered as evidence of the truth of the matter to which it relates.” II C. Torcia, Wharton’s Criminal Evidence § 274 (13th ed. 1972).

In the present case, the testimony concerning the radio dispatch was used to explain the reason the arresting officer stopped and interviewed the appellant, and was not offered to prove the truth of the radio dispatch’s contents. Therefore, it is our judgment that the testimony concerning the radio dispatch was not erroneously admitted.

II

In the case at bar, appellant did not make a motion to exclude the State’s evidence, and, although he did make a motion for a new trial, the issue of the sufficiency of the evidence was not specifically raised therein. However, it is our judgment that the evidence presented was more than sufficient to present the question of appellant’s guilt for the jury’s determination, and that it was equally sufficient to support the resulting verdict.

We have searched the record and have found no error prejudicial to this appellant. It is our opinion that the judgment of conviction by the Madison Circuit Court should be affirmed.

AFFIRMED.

All the Judges concur.

TYSON, Judge,

concurring,

I concur in the principal opinion in this cause as prepared by my brother, Judge DeCarlo.

I wish to point out that, in my opinion, under the facts as related by Huntsville Officer Daniel Dilacausey, this Court does not run afoul of the opinion of the Supreme Court of Alabama in Paschal v. State, 365 So.2d 681 (1978). In the instant case, clearly a sufficient description of the robber, the weapon used, and of the van itself, was given in the officer’s testimony so that a sufficient predicate was laid as to the details of the police radio broadcast. Also, this information, as sent out in the radio dispatch, was “firsthand.” (See principal opinion)

Moreover, in light of all of this, in my judgment, the State clearly established probable cause, plus exigent circumstances for stopping and searching the vehicle. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).


author: TYSON, Judge.

text:
    James Bruce WHEAT v. STATE.
    3 Div. 63.
    Court of Criminal Appeals of Alabama.
    June 5, 1979.
    Rehearing Denied June 26, 1979.

      Joseph G. L. Marston, III and Joseph M. Sarto, Prattville, for appellant.
    Charles A. Graddick, Atty. Gen. and Jimmy L. DeBardelaben, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

James Bruce Wheat was charged with the second degree burglary and grand larceny of certain properties belonging to Berea Church in Montgomery, Alabama, in a two-count indictment. The jury found the appellant “guilty of grand larceny,” and the trial judge set sentence at seven years imprisonment.

The appellant made a pretrial motion to suppress, moved to exclude the State’s evidence, and requested, in writing, the affirmative charge. From adverse rulings on these matters, appellant prosecutes this appeal.

Reverend Bruce Walker testified that, on September 13-14, 1978, he was minister of the Berea Church, located at 223 Fleming Road in Montgomery. In response to a telephone call from Detective Murphy of the Montgomery Police Department, Reverend Walker went to Police Headquarters where, in Detective Murphy’s office, he identified a Gibson bass guitar and a Martin Model 701 guitar as belonging to the Berea Church. Reverend Walker testified that he authorized the purchase of both of these guitars with church funds.

Reverend Walker also indicated that he knew the appellant, James Bruce Wheat, and that Mr. Wheat and his wife had attended this church several times, and, together with one Wayne Bordes, he had contracted with the two men to paint the exterior of the church. Reverend Walker indicated that his church had been trying to help the Wheat family to get established in Montgomery.

Reverend Walker indicated that, about 6:00 on the night of September 13, 1978, Mr. Wheat came to the church and they discussed some personal matters, that Mr. Wheat subsequently came to the 7:30 service that Wednesday evening. After church, Reverend Walker locked the building, including the office entrance, and checked all exits. The following morning, Reverend Walker was called to the school building and observed that a Sunday School room, off the auditorium, had a broken window. He stated that this was on the first floor. He stated that he had not given anyone permission to enter the building, and the broken window was discovered about 9:00 a. m. on Thursday, September 14, 1978.

About a week later, on either Thursday or Friday, Reverend Walker stated, he was called to the Montgomery Police Headquarters and there he recovered two speakers, a custom amplifier, and three practice guitars. He stated that these items were identified at Police Headquarters as the ones missing from the church, on September 26, 1978.

Reverend Walker testified that he identified the two larger guitars, the Gibson bass guitar and the handmade Martin guitar, on September 14,1978, at Police Headquarters.

In response to cross-examination and redirect, Reverend Walker gave the serial numbers and a more specific description of the speakers as being Peavy Column speakers, that the amplifier was a Custom 300 Series, that the Martin handmade guitar was a No. 701, and the Gibson Bass guitar was an Eb/lo model.

Reverend Walker indicated all these items had been bought with church funds at his direction for the use of the church and its membership. He further indicated that all of these items were missing on the morning of Thursday, September 14, 1978.

Harold Barnett testified he lived in the Jasmine Hill section of Wetumpka, Alabama, and on the night of September 13, 1978, he had stopped by the “H & T Grill” on Highland Avenue in Montgomery, where he had a couple of drinks with two friends. Mr. Barnett indicated that two men came into the grill, and that one, whom he testified, in his best judgment, as the appellant, James Wheat, came over and asked if he was interested in buying some guitars. The man stated that he wanted $200.00 for them. Mr. Barnett stated that he told him he was not interested at that price, but that he might take a look.

Barnett indicated that he walked outside the grill and looked at the items in the trunk of the car, then went back inside the grill and cashed a check for $100.00. He stated that he offered $100.00 to the appellant for three used guitars, an amplifier, and two electric speakers.

Mr. Barnett indicated that he drove home that evening and moved these items, which he bought for $100.00, into his playroom. He stated that next morning he called the city detectives at the Montgomery Police Department and asked if they had any information on any missing properties, and upon being advised that they did not, he called a friend of his, one Butch Taylor, a deputy sheriff, and made the same inquiry. He stated that a Montgomery policeman and also Taylor indicated on Friday morning that they had no record of such missing properties, but the following Monday or Tuesday, he talked with his friend, Deputy Sheriff Taylor, who told him the Montgomery City Police had a missing report on several items, and he and Deputy Taylor loaded the items and carried them to the Montgomery Police Headquarters.

On cross-examination, Mr. Barnett stated that he was a used car dealer by occupation and that he had had several drinks on the night of September 13 before purchasing the items for $100.00 at the H & T Grill. He stated that he saw the two men come in between 10:30 and 11:00 p. m., and the purchase was made soon thereafter. He stated that he could not be positive of the identity of the appellant, but that he thought he was the same man. He stated that he had gotten the appellant’s name and description from the manager of the H & T Grill over the telephone. He stated that, when he was advised that the instruments were probably stolen, he called the Montgomery City Police Department and took the instruments to them.

Montgomery Police Detective G. E. Murphy testified that he received a report from Detective R. D. Mobley that some missing musical instruments were in a red vehicle parked at the Downtown Lounge on Jefferson Street, Montgomery, Alabama, that two men were driving the vehicle and it had an out-of-state license. Detective Murphy stated that he went to the Downtown Lounge that morning and saw a red automobile answering the description parked near the lounge with the doors open. He approached the vehicle and observed a man lying on the back seat asleep and a woman on the front seat asleep. He stated that he asked his partner to watch the two people in the car and he entered the lounge. He walked over to where he saw the appellant seated at a table with another male and two women, and they were having some drinks. Detective Murphy stated that he tapped the appellant on the shoulder, identified himself as a Montgomery police officer, and asked the appellant to come outside as he had a matter he wished to discuss with him.

Detective Murphy stated that the appellant hesitated and then suddenly, as he arose, whirled and pulled a knife. Detective Murphy stated he then disarmed the appellant and handcuffed him, then placed him under arrest for assault.

On cross-examination Detective Murphy indicated that the knife was a letter opener with sharpened nine inch blade. He stated that the appellant was advised of his Miranda. rights at the scene of the arrest, and that he was also advised of his Miranda rights a second time, which he signed, admitting that he had received these, at Police Headquarters later that day. The appellant, without any threat, intimidation, coercion, or inducement of any kind, then gave a statement admitting his participation in the larceny.

On cross-examination Detective Murphy stated that the appellant had some drinks earlier in the morning, but at the time he gave his statement, about 11:10 a. m. at Police Headquarters, he did not appear to be under the influence of alcohol, or any other toxicant. He stated that the appellant appeared to be sober, that his speech was clear, and he answered in a coherent and responsible manner.

Appellant’s statement, State’s Exhibit Three, is as follows:

“Statement
“The following statement is taken from James Bruce Wheat, W/M Dob 10-11-49, Finley Avenue, Montgomery, Alabama. The statement concerns his possession of several instruments which he had in his possession, which he had taken from the Berea Church on Fleming Road.
“Me and a man named Wade Bordes, went over to the church about 9:30 last night (9-13-78), we went to the back door and I broke out the glass pane, reached in and opened the door, at, that time we went in the church and went to the front where the stuff is kept there we got the guitars and the amplifiers and took it out and put it in my car, in the back seat and the trunk. We left there and went to the place over on Mt. Meigs Road to try and sell the stuff, but they told me that he was not there, so we left there and went to the H & T Grill on High Street. Wade ran into a man that he knew and he told him that we had some stuff to sell, he said that he would buy the stuff from us for a $100.00. He gave us the money for the stuff and we gave him, two custom amps, one Peavy amp and head, and also three guitars. We helped him put the stuff in his car and then we left there and went to the Downtown Club.
“Q. Did you and another male, named Wade Bordes break into the Berea Church on Fleming Road?
“A. Yes, sir.
“Q. Did you and he take various equipment from the church and put it in your car?
“A. Yes, sir.
“Q. Did you and Wade Bordes take the equipment to the H & T Grill to sell and did you sell it?
“A. Yes sir.
“Q. Who did you sell the stuff to?
“A. I don’t know the guy’s name. I just know his face.
“Q. How much did he give you for the musical equipment that ya’ll had removed from the church?
“A. $100.00 in cash.
“The above statement is given by me of my own free-will. No threats or promises have been made to me and the above is true and correct to the best of my ability and knowledge.
“S/ James B. Wheat Date: 9-14-78
“Statement taken by:
G. E. Murphy (170)
Det. Division
11:10 AM”

Appellant’s motion to suppress and motion to exclude for failure to make out a prima facie case were overruled.

The appellant did not testify at trial, nor did he present any evidence in his behalf.

I

Count II, under which the jury found the appellant “guilty of grade larceny, as charged,” reads as follows, omitting formal parts (R. p. 101):

“COUNT II: The Grand Jury of said County further charge that, before the finding of this indictment, JAMES BRUCE WHEAT, whose name is to the Grand Jury otherwise unknown, feloni-ously took and carried away from a storehouse, warehouse, shop, office or church building, one Martin Guitar, a better description of which is unknown to the Grand Jury, of the value of $750.00; one Gibson Guitar, a better description of which is unknown to the Grand Jury, of the value of $300.00; two amplifiers, a better description of which is unknown to the Grand Jury, of the value of $550.00 each; two speakers, a better description of which is unknown to the Grand Jury, of the value of $500.00 each, and three guitars, a better description of which is unknown to the Grand Jury, of the aggregate value of $100.00, all of the aggregate value of $100.00, the personal property of Berea Church,
“against the peace and dignity of the State of Alabama.”

To this indictment, the appellant filed a demurrer, challenging its legal sufficiency and calling attention to the fact that it avers the “aggregate value” of the missing items as being $100.00, when in fact the total of the items, as shown by other parts of the indictment, is $3450.00.

In Gary v. State, 18 Ala.App. 367, 92 So. 533, we find this statement:

“The rule heretofore followed and which we now reaffirm is:
“ ‘If the sense of an indictment is clear, technical exceptions thereto should not be favorably regarded, and verbal, inaccuracies or clerical errors which are explained and corrected by necessary intendment from other parts of the indictment, or errors of spelling not obscuring the sense, are not fatal.’ Couch v. State, 6 Ala.App. 43, 60 So. 539; Sanders v. State, 2 Ala. App. 13, 56 So. 69; Grant v. State, 55 Ala. 201; Holland v. State, 11 Ala.App. 134, 66 So. 126.”

We are of the opinion that the figure referred to by the appellant in his demurrer, and in his brief filed in this cause, was simply a clerical error, which is self-correcting when the individual clauses in the indictment are read. Since the indictment is clear, we are of the opinion that such, a mere clerical error, as above shown, was not sufficient to lead a person of common understanding who might read this indictment to be in doubt as to the intended charge. The trial court therefore correctly overruled this demurrer. Grant v. State, 55 Ala. 201; Henry v. State, 57 Ala.App. 383, 328 So.2d 634, and authorities cited.

II

Appellant asserts that Detectives Murphy and Gaines lacked sufficient information upon which to make a valid arrest of the appellant at the Downtown Lounge on Jefferson Street. We do not agree.

Recently, this Court, speaking through Judge DeCarlo, in Herrin v. State, Ala.Cr.App., 349 So.2d 103, cert. denied, Ala., 349 So.2d 110 (1977), set forth the criteria under which an investigative stop and seizure may be made. This Court followed the Herrin case in an opinion known as Goodman v. State, Ala.Cr.App., 356 So.2d 691, cert. denied, Ala., 356 So.2d 698.

It is clear from the evidence in this cause that the two Montgomery detectives, Murphy and Gaines, were acting upon information furnished to them from their fellow officer, Detective R. D. Mobley, concerning some missing guitars and other musical instruments reported as missing from Berea Church. The automobile and the appellant’s companion, Wayne Bordes, who was observed asleep on the rear seat, answered the description given to the investigating officers. Moreover, the two large guitars which were reported missing were observed by Detective Murphy as he approached appellant’s table in the lounge. Beyond question, these officers had the necessary information upon which to make an investigative stop of the appellant and his companion.

Moreover, the appellant whirled on the officer with a knife, requiring Detective Murphy to subdue him before effecting his arrest. Under the circumstances shown, the officers, Murphy and Gaines, clearly and properly made a lawful arrest and search of the appellant and his companion.

III

The appellant asserts that his statement to the officers, given shortly after 11:00 a. m. on the morning of his arrest, was not voluntary. This contention is not supported by the record, as the record contains a proper Miranda and voluntariness predicate, each showing that the statement was given some two hours after his arrest and was made at Police Headquarters following proper advice as to the appellant’s constitutional rights. The trial court correctly admitted the appellant’s statement into evidence.

IV

We have examined the appellant’s other contentions of error concerning the circumstances of his arrest; the motion for a mistrial, which was properly handled by the trial court, Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Earley v. State, Ala.Cr.App., 358 So.2d 494, cert. denied, Ala., 358 So.2d 501 (1978), and cases cited; the charges which were given and refused, and find that the trial court properly ruled on each of the matters asserted in the brief. The refused charges were either properly refused under the evidence, or otherwise fairly and adequately covered by the trial court in its oral charge to which no exception was taken, or the several written charges given at the request of the appellant. § 12-16-13, Code of Alabama 1975; Ingram v. State, Ala.Cr.App. 356 So.2d 761 (1978).

We have carefully examined this record and find same to be free of error. The judgment is due to be and the same is hereby

AFFIRMED.

All the Judges concur.


text:
    Lorne HILL v. STATE.
    1 Div. 18.
    Court of Criminal Appeals of Alabama.
    June 26, 1979.

      Cynthia C. Pickett, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was tried, without a jury, for burglary of a 7-11 store, convicted, and sentenced to five years imprisonment. Appeal followed from a proper judgment.

It appears from the evidence that on Christmas morning of December, 1977, Officer Joe Smiley was on foot patrol duty in a mall area in Prichard, in Mobile County.

This officer, a witness for the State, testified that while on patrol near the alleged 7-11 store, during a drizzly rain, he saw Lome Hill, the defendant, and two other men, whom he recognized, walking between two buildings about fifty feet from the 7-11 store. The three were talking loudly. He observed them closely and noticed their shoes. The street light enabled this observation. This was around 12:30 a. m. There were no other people around. The store was closed as he observed.

Officer Smiley had known defendant for four or five years. He also testified without objection that Hill was a “known burglar”.

The officer did not say anything to the men, but continued his foot patrol and returned to the store in about thirty minutes, at which time he saw that the front door of the 7-11 store had been broken into. He went inside the store, through the broken front door, and saw that a watch and jewelry display case was missing.

Officer Smiley reported the burglary and called for a back-up police car. He then walked out of the store to the rear of the store where he found the watch case which had contained the watches. They were not in the case. He was familiar with the case which he had seen in the store on other occasions.

Officer Smiley decided to go to King’s Club, a distance of about two and one-half blocks from the store. There, he contacted the manager, Mr. Harris, who worked at the door.

Mr. Harris stated that he stopped three teenagers at the door who were asking if anyone wanted to buy some watches. Mr. Harris described Hill but did not identify him.

Smiley then went to Hill’s home which was full of people, including Hill’s mother and Larry Anthony, one of the two with Hill in the area of the store. The back-up officer, Bethea, had already arrived at Hill’s home and placed Hill under arrest pursuant to Smiley’s direction.

It appears from the evidence the defendant, Lome Hill, had an identical twin brother named Dome.

Smiley testified that he knew the difference between the two and was positive that it was the defendant, Lome Hill, and not the other twin, Dome, that he saw at or near the store. We pause here to say that during the trial, Dome was brought into court to see if Smiley could recognize the difference between the two. The officer turned his head while Dome was brought into court for display with Lome. However, the witness was able to identify Lome. Ironically, the mother was brought in to identify the two so as to be sure that Lome was still in court and not Dome. Smiley was positive that it was Lome he saw outside the store. Defense called the in-court identification a “lucky guess”.

The trial court overruled appellant’s motion to exclude the evidence about the arrest of Hill on the ground that probable cause was not established.

Officer Smiley took Hill’s shoes off his feet and went back to the 7-11 store. He actually put one of defendant’s shoes in the foot track; also one of Anthony’s shoes in a foot track. (Anthony was one of the three first observed outside the store). The shoes were the same size. He testified that their was no difference in the two tracks from the two different shoes; they were the same. The court overruled defense objection because the witness was not shown to be an expert.

T. C. James, a detective with the Prichard Police, took a statement from defendant around one o’clock p. m. of the next day after he was arrested. The State intro-dueed a waiver of rights signed by defendant. James read the form to Hill and asked him if he understood it. Hill said that he did. James made no promises or threats to Hill, nor did any other person in his presence. Witness and Hill were the only persons in the room at the time. James then asked Hill some questions. He wrote down both. Hill read it and signed it. The defendant acknowledged the burglary.

Marion Chestang, (a final witness) testified that she was an employee of 7-11 and closed the store about 11 p. m., December 24,1977. Ms. Chestang saw the front door had been broken and the watches were missing. She further testified that no one had permission to be in the store that night.

I

As we understand appellant’s argument, he contends that the record fails to show that the confession was voluntarily made.

As to that assertion of error we think the record fully supports appellant’s contention to the contrary. The confession was taken in a room where and when ho one was present but the witness and defendant. The detective, Sergeant James, testified that he fully explained and read to defendant his rights as the same appears in the exhibit (1) in evidence; also he testified that there was no intimidation made or inducement offered to get defendant to make the statement. It is to be noted that defendant did not testify at any time during the trial nor did he offer any evidence.

It does appear in the record that defendant was seventeen years of age when the burglary occurred. The defendant was in court and the trial judge had an opportunity to observe defendant’s physical stature and possibly his mental maturity. It does not appear in the record that defendant was mentally or physically immature. We do not think defendant’s age was a factor that induced the confession and the waiver.

II

Appellant further asserts that the confession was not admissible because the arrest of defendant was made without probable cause for making the arrest. We are not in accord with this contention.

We think probable cause for making the arrest was properly shown by proof that Officer Smiley observed the defendant and two others loitering around the vicinity of the burglarized area only thirty minutes before the officer came back and discovered the breakin; that this officer missed a case that contained jewelry and some watches; that he saw human footprints leading from the front of the store to the rear of the building where he found the watch case; that he immediately went to King’s Club where he learned from Mr. Harris, the manager, that three teenagers had asked him late that night if he knew anyone who wanted to buy some watches. Mr. Harris’ description of one of the group fitted defendant, who, as we have noted, Officer Smiley had seen with two others loitering around or near the 7-11 store. Also the officer knew that defendant was a “known burglar”. We think this information was sufficient to establish probable cause that defendant was the culprit who committed or participated in the burglary. The arrest was properly made by an associate officer who was directed to do so by Officer Smiley.

Ill

Appellant also contends that the confession should not have been admitted because at the time the corpus delicti of the alleged offense had not been proven. We cannot agree. Officer Smiley had already testified about foot patrolling the store area and thirty minutes later he returned and found the front door was broken, open, and the watch case, which was there earlier, was missing; that he found the case back of the store. We think the evidence was sufficient to prove the burglary.

But if not, the State fully established the burglary before it rested. This was done by the manager who testified about the brea-kin and the missing watch case and that she did not authorize anyone to enter the building which was closed when she left about 11:00 p. m. on the night of December 24, 1977.

There was no error in admitting the right’s waiver and the confession in evidence.

Appellant next contends “that the evidence obtained as an incident to such arrest should have been excluded”. In this respect, defendant asserts that the testimony “that the shoes were taken from Hill and matched with the tracks should have been excluded”. The evidence was not the product of an illegal search of defendant. Defendant voluntarily permitted the officer to remove his shoes which were taken to the tracks at the store and there it was ascertained that the footprints and the shoes matched. James v. State, 54 Ala.App. 458, 309 So.2d 495.

There is no evidence in the record that defendant was compelled to take off his shoes and surrender them to the officer. As we have already noted, defendant did not take the stand nor did he file a motion for a new trial. Washington v. State, 55 Ala.App. 116, 313 So.2d 544(2).

The judgment is affirmed.

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.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    John Andrew YOUNG v. STATE.
    3 Div. 4.
    Court of Criminal Appeals of Alabama.
    June 26, 1979.

      J. R. Herring, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Possession of marijuana; sentence: fifteen years imprisonment.

V. M. Armstrong testified that on March 14,1978, he was a member of the Montgomery Police Department. At 9:05 p. m. that date, he began conducting a surveillance of the appellant. The surveillance began at the Richard Manor Apartments on South Court Street in Montgomery. The appellant stayed at an apartment an unspecified period of time and then left in an automobile with a female and went to Shoney’s Restaurant on the Southern By-Pass. ' After an unspecified period of time at Sho-ney’s, the appellant made a telephone call and returned to the table for approximately ten minutes. He then left Shoney’s by himself and drove to a nearby McDonald’s restaurant. Officer Armstrong did not recall anything the appellant did at McDonald’s, but did recall that he stayed there five or ten minutes and then went back to Shoney’s and picked up his female companion and returned to the apartment. The appellant remained at the apartment about thirty minutes and then left by himself carrying “a small brown briefcase or handbag.” He drove to the Boomerang Lounge on Federal Drive. The appellant stayed there about two hours during which time he was observed once talking to a white male in a “black over gold Chevrolet Nova.” On another occasion, the appellant and another white male walked to the appellant’s vehicle, opened the trunk, and removed the briefcase or handbag and sat in the car a while. The car was moved from one location of the parking lot to another and back, then the occupants got out of the car. The appellant later left the lounge and drove back to the apartment which he entered carrying the brown handbag.

At approximately 3:45 a. m., the appellant placed some items in the trunk of his automobile and left, proceeding on the Southern By-pass travelling in an easterly direction. By prearrangement, Officer Armstrong had a marked patrol car stop the appellant’s vehicle. The appellant was then transported to the police department in the marked vehicle, and Armstrong took custody of the appellant’s automobile and drove it to the police department. On entering the appellant’s vehicle, Armstrong noticed the ashtray was opened, and he observed what appeared to him to be marijuana leaves and stems inside the ashtray. At the police station, Armstrong turned the substance from the ashtray over to the State Toxicologist for criminal analysis. He then proceeded to search the appellant. At that point in the testimony, counsel for appellant moved for a voir dire examination of the witness, and the jury was excused from the courtroom.

The following transpired, in pertinent part, during the course of the voir dire examination of Officer Armstrong:

“Q. Okay. At that time the car was proceeding down the Southern By-pass. Was it acting unusual?
“A. No, sir.
“Q. Was it breaking any traffic laws?
“A. None whatsoever, that I observed.
“Q. You saw him bring something out of the apartment?
“A. That is correct.
“Q. Could you tell what — It was either a bag or a box or something — A suitcase or briefcase?
“A. That is correct.
“Q. But it was something that was an everyday appearance?
“A. That is correct.
“Q. Okay. Did you see him proceed to Shoney’s?
“A. Yes, sir, I did.
“Q. Did you see anything unusual in Shoney’s, other than the telephone call and them sitting there?
“A. None whatsoever.
“Q. Did you watch him proceed to McDonald’s?
“A. That is correct.
“Q. Did you see him go in there or do whatever he did there?
“A. I cannot recall exactly what happened. Nothing unusual.
“Q. And you saw him pick the female up and they left?
“A. That is correct.
“Q. And that is all he did there at that time?
“A. That is correct.
“Q. Could you see what was going on in the apartment while he was there for this number of minutes or hours?
“A. No, sir.
“Q. And then you saw him leave the apartment?
“A. That is correct.
“Q. And you saw him get in his vehicle and depart?
“A. That is correct.
“Q. Okay. When you stopped the car had you called ahead to have the car stopped; his car?
“A. That is correct.
“Q. When the Defendant was removed from the car could you look into the vehicle?
“A. Yes, sir.
“Q. Okay. Could anyone else driving by the vehicle have been able to look in and observe the interior of the car? Was the weather good enough that they could have or—
“A. No. The weather was very poor. I don’t think anybody driving by would have been able to look into the vehicle unless the light was on. Because the rain was all over the windshield and windows and it was raining.
“Q. Okay. Were there any bags of marijuana in the car on the seat in plain view?
“A. Nothing.”

The appellant then moved to exclude the testimony of the witness and moved to exclude the fruits of any search because there was no probable cause to support the arrest. The trial judge then began to ask questions of the witness:

“THE COURT: You have been with the vice squad how long, sir?
“A. I was with them approximately, at that time, I believe, fifteen months.
“THE COURT: Did you have this man under surveillance?
“A. Yes, we did.
“THE COURT: Did he have a reputation of being part of the drug culture?
“A. Yes, he did.
“THE COURT: Is that the reason you had him under surveillance?
“A. That is correct.
“THE COURT: He was not a stranger to you, was he?
“A. No, sir, he was not.
“THE COURT: Overrule your objection.”

Defense counsel then asked additional questions on voir dire concerning how the police officers obtained their information concerning the appellant’s arrival in Montgomery:

“Q. And you had received this information from someone?
“A. That is correct.
“Q. And how early in the day had you received this information?
“A. The information came at approximately 8:00 p. m. that night.
“Q. So, approximately an hour before he got there — or less.
“A. That is correct.
“Q. Now,' did you know where he came from?
“A. No, sir.
“Q. Okay. Is he from Montgomery?
“A. No, sir, he is not.
“Q. Do you know where he is from?
“A. Yes, sir, Ozark, Alabama.
“Q. How long does it take to get from Ozark to Montgomery?
“A. Driving the speed limit, approximately an hour and a half, I would say.
“Q. So, someone would have informed you that he was on the way while he was in fact on the way, because he got here in less — You saw him at 9:05?
“A.. That is correct.”

The trial court again made a ruling adverse to the appellant stating:

“If in the proper, diligent exercise of duties a person has a known reputation of being a law violator and a member of the drug culture, then that is sufficient probable cause to watch him. And if he engages in unusual conduct, or the usual contact that drug and dope peddlers engage in, then so far as this Court is concerned — I can’t talk about any other Court — but as far as this Court is concerned it is probable cause.
“. , . I have heard many of these cases, and the conduct described by this gentleman is conduct that is usual conduct for drug dealers and dope peddlers. It need not have to be unusual conduct for dope peddlers to walk around with sacks, first one place and then another. Overrule the objection. Now, let’s get the jury back."

Officer Armstrong was then allowed, over repeated objections, to testify as to the fruits of the search.

I

As defined in Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959):

“. . . Probable cause exists where ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. . . .” (Citation omitted.)

Before information from an unidentified informant will support probable cause, two tests must be passed. The “basis” test and the “veracity” test are as follows:

(a) Did the informant give the officer some of the underlying circumstances from which the informant concluded the appellant was in possession of marijuana?

(b) Did the officer know of some underlying circumstances from which he could conclude that the informant was credible or that his information was reliable?

See: Roberson v. State, Ala.Cr.App., 340 So.2d 459 (1976); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

A mere conclusion on the part of an informant will not support probable cause. The informant must have some basis for his conclusion, and he must relate that basis to the officer. The record in the instant case is absolutely silent as to the basis of the informant’s information and as to the credibility or reliability of the informant. The record only discloses that “someone” told Officer Armstrong that the appellant was coming to Montgomery. The testimony does not even establish that the informant told the officer that the appellant was in possession of marijuana.

In Knight v. State, 346 So.2d 478 (1977), cert. denied, Ala., 346 So.2d 483, this court held that, if either or both of the two prong tests of Aguilar, supra, are inadequate, the informer’s tip may nevertheless be considered in determining existence of probable cause if the tip is verified or corroborated by the officer’s own knowledge or observation. This court went on to state that “where the initial impetus for the arrest is on [an] informer’s tip, information gathered by the arresting officers can be used to sustain a finding of probable cause; however, the additional information acquired at the time of the arrest must be corroborative of the informer’s tip.”

In the instant case, the informant’s tip was only to the effect that the appellant was coming to Montgomery. The officer’s observation thus corroborated the fact that the appellant did come to Montgomery. Thus, the informant’s tip and the officer’s verification of that tip fails to provide even a faint glimmer of probable cause that the appellant was committing some crime. Therefore, probable cause would have to arise independently of the nugatory tip provided by the unknown informant in the instant case.

II

Did probable cause to make a warrantless seizure and search of the appellant arise from the appellant’s conduct as observed during the course of Officer Armstrong’s surveillance? From reviewing Armstrong’s testimony, the answer is obviously no.

In determining whether there is probable cause to arrest, it is not necessary that the officer have before him evidence which would support a conviction for the offense. He need only have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the accused had committed or was committing an offense. The officer’s good faith in making the arrest alone is not sufficient. Braxton v. State, Ala.Cr.App., 350 So.2d 753 (1977).

“The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating . . . often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949).

None of the appellant’s actions while under surveillance either separately or collectively give rise to probable cause to arrest him. If the appellant’s actions were construed to support probable cause, then every visitor to Montgomery would be subject to a warrantless arrest and search for merely driving into town after dark, unloading baggage at an apartment or motel, taking a friend out to dinner, making a telephone call, visiting a lounge and being seen talking to people, and putting their baggage back in the car and leaving town. While officers may have been somewhat suspicious of the appellant’s conduct, mere suspicion alone is not enough to negate the warrant requirement of the Fourth Amendment. As stated by Judge Bowen in Knight v. State, supra, at 483: “Arrest on mere suspicion or rumor collides violently with the basic human right of liberty.”

Ill

During the voir dire examination of Officer Armstrong, the trial judge received an affirmative reply to his question, “Did he [appellant] have a reputation of being a part of the drug culture?” The trial judge therefore ruled that the appellant’s reputation, coupled with his actions on the night in question as observed by Officer Armstrong, were sufficient to support probable cause. The facts that an accused had a reputation that he was a bootlegger and that he was arrested entering a dry county from a wet county were held to be an insufficient basis for probable cause to stop and search him. Roberson v. State, supra. In that case, as in this, there was a tip from an unidentified informant which failed to meet either prong of the Aguilar test, supra. We held in Roberson and in Hatton v. State, Ala.Cr.App., 359 So.2d 822 (1977), writ quashed, Ala., 359 So.2d 832, that reputation standing alone is an insufficient basis for probable cause, but is a factor which may be considered along with other facts and circumstances in the case in determining the existence of probable cause. However, reputation (normally based upon rank hearsay and community rumor) as an element in determining probable cause should not be given undue weight as was done by the trial judge in the instant case.

In Hatton, supra, we stated that “[w]e recognize that the probable cause in this case represents the bare minimum necessary for a valid search without a warrant.” Yet, in that case the bare minimum included the following facts- and circumstances within the officer’s knowledge at the time of the search: (1) the informant’s tip, (2) the proven reliability of that informant, (3) the sheriff’s knowledge of both the informant and the appellant, (4) the reputation of the appellant, and (5) the officer’s verification and corroboration of the informant’s report. Again, we find in the instant case that the appellant’s reputation for being a member of what is nebulously termed “the drug culture” when coupled with the appellant’s observed conduct still create no more than a bare suspicion on the part of the arresting officers that the appellant may have been doing something illegal. The facts and circumstances in addition to the appellant’s reputation in the instant case fall way short of the bare minimum requirements enunciated in Hatton.

REVERSED AND REMANDED.

All the Judges concur.


text:
    James Henry LOVE v. STATE.
    8 Div. 210.
    Court of Criminal Appeals of Alabama.
    June 26, 1979.

      James M. Dyer, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The indictment charged James Henry Love with the first degree murder of Herman Odell Green by shooting him with a pistol. The jury found the appellant guilty of murder in the second degree and fixed punishment at fifty years imprisonment. From the overruling of appellant’s motion for new trial, the appellant prosecutes this appeal.

On September 18, 1972, while parked in front of his mother-in-law’s house, appellant shot and killed Herman Odell Green. Appellant pleaded self-defense and testified that on that date he drove to his mother-in-law’s residence to obtain clothing which belonged to his daughter by another marriage. He said that he saw his estranged wife, Jean Jones Love, and the deceased engaged in sexual intercourse in the house and that he returned to his car. Furthermore, he stated that soon thereafter the deceased and appellant’s mother-in-law approached the ear. He stated the deceased carried a paper bag and the mother-in-law carried a butcher knife. He shot and killed the deceased and wounded the mother-in-law at that time.

I

A former police officer, Rodney L. Burgess, testified that, after he placed appellant in custody, and while enroute to the police station, he advised appellant of his constitutional rights. Another policeman, A. C. Edger, testified that appellant did not make a statement immediately after a Mi- ■ randa card was read to him, but later that day appellant admitted to the shootings after again being advised of his right to counsel and right to remain silent, and that he did not have to make a statement.

On a voir dire examination to determine the admissibility of his confession, appellant confirmed that, on the morning of his arrest, his Miranda rights were read to him by Officer Edger, and he refused to make a statement at that time. The trial court determined that the statement was admissible because it was made understandingly, knowingly, voluntarily, and intelligently.

Appellant’s contention that his statement should not have been admitted into evidence because another full Miranda warning was not given him prior to the second interview is without merit. A full explanation of his rights had been read to him only six hours earlier, and just prior to the second interview he was again warned of his right to remain silent and to Jiave an attorney. Once the mandate of Miranda has been complied with at the threshold of questioning, it is not necessary to repeat the warnings at the beginning of each successive interview. Gibson v. State, Ala.Crim. App., 347 So.2d 576 (1977).

Appellant’s contention that there was no effective express or implied waiver of his Miranda rights is also groundless. The United States Supreme Court recently held that an express waiver of Miranda is not constitutionally required in all cases. North Carolina v. Butler, - U.S. -, 99 S.Ct. 1255, 60 L.Ed.2d 286, (1979). Moreover, where the totality of the circumstances indicates that the confession was understandingly, voluntarily, knowingly, and intelligently made, it should not be excluded merely because the accused did not expressly state that he understood his rights or did not sign a written waiver. Sullivan v. State, Ala.Crim.App., 351 So.2d 659, cert. denied, Ex parte Sullivan, Ala., 351 So.2d 665 (1977).

After appellant had been read a Miranda card by Officer Edger, he indicated that he did not want to make a statement without having a lawyer. This exchange revealed that he understood his right to have counsel present during questioning. That appellant made the statement after being advised, yet again, of his right to counsel indicates that he voluntarily relinquished that right. Dotson v. State, 288 Ala. 727, 265 So.2d 162 (1971), on remand, 48 Ala.App. 381, 265 So.2d 164, cert. denied, 288 Ala. 742, cert. denied, 409 U.S. 1117, 93 S.Ct. 930, 34 L.Ed.2d 701 (1972).

. II

Appellant also argued that it was error for the trial court to allow the jury to hear testimony that appellant fired shots at his mother-in-law and wife immediately after he shot the deceased. While evidence of offenses separate from that for which a person is being tried is normally inadmissible, where, as here, the offenses occur within one continuous transaction, evidence of their commission by the accused is admissible. Johnson v. State, Ala.Crim.App., 355 So.2d 1160 (1978); Gamble, McElroy on Evidence, § 69.01(3) (3d Ed. 1977).

This record being free of error, the case is due to be

AFFIRMED.

All the Judges concur.


author: SUNDBERG, Justice.

text:
    DAYTONA BEACH RACING AND RECREATIONAL FACILITIES DISTRICT, etc., et al., Petitioners, v. VOLUSIA COUNTY, etc., et al., Respondents.
    No. 53773.
    Supreme Court of Florida.
    July 25, 1978.
    Thomas T. Cobb of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for Daytona Beach Racing and Recreational Facilities District.
    S. LaRue Williams of Kinsey, Vincent, Pyle, Williams, Kennedy & Tumbleson, Daytona Beach, for International Speedway Corp.
    Jim Smith, Atty. Gen., Joseph C. Melli-champ, III, Asst. Atty. Gen., Tallahassee, for Harry L. Coe, Jr., etc.
    William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for Volusia County, et al.
   ORDER

SUNDBERG, Justice.

The petitioner International Speedway Corporation has filed its suggestion that I recuse myself in this cause. There being no matters set forth in the suggestion for recu-sal reflecting my inability to impartially consider the issues presented in this proceeding and in view of my constitutional duty to sit on cases within the constitutional jurisdiction of this Court, absent disqualification, the suggestion for recusal is denied. See Department of Revenue v. Golder, 322 So.2d 1, 6 (Fla.1975).

It is so ordered.


author: OVERTON, Justice.

text:
    DAYTONA BEACH RACING AND RECREATIONAL FACILITIES DISTRICT, a body politic and corporate under the laws of the State of Florida, and International Speedway Corporation, a Florida Corporation, Petitioners, v. VOLUSIA COUNTY, a political subdivision of the State of Florida, John W. Turner, Jr., as Property Appraiser of Volusia County, Florida, Robert D. Summers, as Tax Collector and Administrator of the Division of Revenue of Volusia County, Florida, and Harry L. Coe, Jr., Executive Director, Department of Revenue, State of Florida, Respondents.
    No. 53773.
    Supreme Court of Florida.
    Aug. 3, 1978.

      Thomas T. Cobb of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for Daytona Beach Racing and Recreational Facilities District.
    S. LaRue Williams of Kinsey, Vincent, Pyle, Williams, Kennedy & Tumbleson, Daytona Beach, for International Speedway Corp.
    Jim Smith, Atty. Gen., Joseph C. Melli-champ, III, Asst. Atty. Gen., Tallahassee, for Harry L. Coe, Jr., etc.
    William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for Volusia County, et al.
   DENIAL OF REQUEST FOR RECUSAL

OVERTON, Justice.

Petitioner International Speedway Corporation has filed a suggestion that I recuse myself as a Justice in this cause because of my membership and participation in hearings of the Florida Constitution Revision Commission. It is asserted that, as a member of the Commission, I opposed proposals that would grant exempt status to the International Speedway Corporation leasehold. It was further asserted that I, as a commissioner, stated that under current law International Speedway Corporation leasehold interests were not entitled to tax exempt status.

As a Justice of this Court, I participated as a member of the Constitution Revision Commission, which activity is authorized by the laws of this state and the Code of Judicial Conduct. The Constitution of the State of Florida provides in Article II, Section 5(a), that any officer of the state “may be a member of a constitution revision commission.” In addition, under the Code of Judicial Conduct, Canon 4, a judicial officer is authorized to participate in executive or legislative body matters concerning the law, the legal system, and the administration of justice. In E. Wayne Thode’s Reporter’s Notes to Code of Judicial Conduct (1973) at page 74, the author makes the following comments concerning Canon 4:

[A] judge may . . . commend the present law or propose legal reform without compromising his capacity to decide impartially the very issue on which he has spoken or written. . . .

Historically, it has not been unusual for Justices to serve in a constitutional convention or on a constitution revision commission. This is illustrated by the fact that three Justices of the United States Supreme Court served as delegates to the United States Constitutional Convention, to wit, William Paterson, James Wilson, and John Blair. Further, John Jay, who was renowned as the chronicler of the convention and one of the authors of the Federalist Papers, was Chief Justice of the United States Supreme Court following that service. Justice James B. Whitfield of the Florida Supreme Court served in a similar position in the constitutional convention of 1885. From the members of the initial Florida constitutional convention of 1838, five served as Justices of the Supreme Court, Walker Anderson, Benjamin D. Wright, Thomas Baltzell, Leslie A. Thompson, and Albert G. Semmes.

In recent history, former Justices B. K. Roberts and Stephen C. O’Connell served as members of the Constitution Revision Commission that proposed the Constitution of 1968. There is no record that any of these individuals were caused to disqualify themselves from cases because of participation in a constitutional convention or commission.

With reference to the asserted comments made by me on the floor of the Commission, the legal conclusions expressed were the same as those rendered by the majority of this Court in Volusia County v. Daytona Beach Racing and Recreational Facilities District, 341 So.2d 498 (Fla.1976). I had concurred in that opinion, written by Mr. Justice Hatchett. I agree with the assertion that I voted against any change in the existing constitution pertaining to this subject matter, but I do not believe that my failure to support the proposed tax exemption should disqualify me from this or any other tax exemption case.

I firmly believe that I can consider the issues in the above-styled cause based on the existing law and the existing constitution. The fact that I voted against changing the existing constitution and expressed to the Constitution Revision Commission the holding of this Court in a reported decision does not, in my view, require my disqualification. To do so would in fact prohibit judicial officers from serving not only on bodies such as the Constitution Revision Commission but could, by analogy, disqualify judges from serving on Standard Jury Instructions Committees, Court Rules Committees, or from sitting on cases which were similar to other cases on which they had ruled. It could also disqualify former members of the Legislature who are now judges from sitting on cases which involve a statute on which they voted while a member of the Legislature.

Under my oath I am bound to consider the issues of the above-styled cause fairly and impartially upon the existing case law of this state as well as the existing statutory and constitutional law whether I personally agree with it or not. In my opinion, I can properly carry out this responsibility without bias or prejudice. Therefore, I have a duty to sit and should not recuse myself from this cause. See Laird v. Tatum, 409 U.S. 824, 837, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972). Frankly, recusing myself would make it much easier since I could avoid both the responsibility of reaching a decision on this case and being involved in this controversy. My recusal, however, would set a dangerous precedent.

Under the historical and other precedents cited and for the reasons expressed, I respectfully decline to recuse myself from this cause.

It is so ordered.


author: BOYD, Justice.

text:
    DAYTONA BEACH RACING AND RECREATIONAL FACILITIES DISTRICT, etc., et al., Petitioners, v. VOLUSIA COUNTY, etc., et al., Respondents.
    No. 53773.
    Supreme Court of Florida.
    Feb. 22, 1979.
    Rehearing Denied April 16, 1979.
    Thomas T. Cobb of Cobb, Cole, McCoy, Abraham, Bell, Bond, Monaco & Kaney, Daytona Beach, for Daytona Beach Racing and Recreational Facilities District.
    S. LaRue Williams of Kinsey, Vincent, Pyle, Williams, Kennedy & Tumbleson, Daytona Beach, for International Speedway Corp.
    Jim Smith, Atty. Gen., Joseph C. Melli-champ, III, Asst. Atty. Gen., Tallahassee, for Harry L. Coe, Jr., etc.
    William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for Volusia County, et al.
   BOYD, Justice.

This cause is before us by virtue of a certification by the District Court of Appeal, First District, that its decision herein passed upon a question of great public interest.

International Speedway Corporation operates the Daytona International Speedway on land leased from the Daytona Beach Racing and Recreational Facilities District. The corporation and the district appealed the judgment of the Circuit Court of the Seventh Judicial Circuit, in and for Volusia County, which rejected their claim of exemption for the corporation’s leasehold from ad valorem taxation. On appeal to the district court, the issues were whether exemption should be allowed under section 196.199(2)(a), Florida Statutes (1975), and whether the repeal of the tax exemption granted to the district in 1955 is an impairment of the obligation of contract in violation of the United States Constitution.

Both issues are resolved against the position taken by the appellants by the decision of this court in Volusia County v. Daytona Beach Racing & Recreational Facilities District, 341 So.2d 498 (Fla.1976). The case involved the same parties and the same issues but pertained to ad valorem taxes for an earlier year. The district court in the instant case acknowledged that the earlier decision was controlling but certified the question of whether the constitutional issue should be reconsidered in light of United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977).

We have examined the decision in United States Trust and find it to be completely inapplicable to the issue in the case at bar. The legislature cannot bind its successors with respect to the exercise of the taxing power; a subsequent legislature has the unquestioned authority to repeal prior tax exemption statutes. See, e. g., Hord v. Askew, 359 So.2d 455 (Fla.) (per curiam), appeal dismissed, 439 U.S. 922, 99 S.Ct. 302, 58 L.Ed.2d 314 (1978); Straughn v. Camp, 293 So.2d 689 (Fla.), appeal dismissed, 419 U.S. 891, 95 S.Ct. 168, 42 L.Ed.2d 135 (1974).

The decision of the district court of appeal is affirmed.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

ADKINS, J., dissents.

      . Daytona Beach Racing & Recreational Facilities Dist. v. Volusia County, 355 So.2d 175 (Fla. 1st DCA 1978).

      . Ch. 73-647, Laws of Fla.

      . Ch. 31343, § 13, Laws of Fla. (1955).

      . “No State shall . . . pass any . . Law Impairing the Obligation of Contracts . . . .” U.S.Const. art. I, § 10.