text:
    Charles Edwin BALENTINE v. STATE.
    8 Div. 795.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rehearing Denied Oct. 5, 1976.
    John C. McKelvey and Rodney B. Slusher, Florence, for appellant.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree and the jury fixed his punishment at life imprisonment in the penitentiary. Prior to trial appellant was found to be indigent and the Court appointed counsel to represent him at arraignment and trial. He pleaded not guilty and not guilty by reason of insanity. The Court directed that appellant be examined by a psychiatrist and a psychologist at the Mental Health Center in Florence, Alabama. The reports from these examinations reflected that appellant had an antisocial personality but was not suffering from any mental illness. Appellant’s counsel withdrew the special plea of not guilty by reason of insanity. After sentence was imposed, appellant gave notice of appeal and was furnished a free transcript and trial counsel was appointed to represent him on appeal.

Appellant had previously been convicted of several felonies and while serving time his father was killed and according to the tendencies of the State’s evidence he had made up his mind to avenge the death of his father. He had been out of prison less than 30 days when he shot and killed Joe Wright with a twelve gauge automatic shotgun using number six shot. Wright died instantly.

The testimony of this case covers over 300 pages of the record. We do not deem it necessary to detail the testimony of each witness but we will recite so much of the testimony as is necessary to cover the issues raised by appellant in which he claims reversible errors were committed.

While in prison appellant heard rumors that James (Fish) Wright, a brother of the deceased, Joe Wright, was the person who killed his father. He also heard that J. V. Odum, Jr., and Mavis Balentine (his stepmother) had started dating after his father was killed. Appellant made the statement that he thought they were dating before his father was killed and that J. V. and Mavis had some part in his father’s death. J. V. Odum was Joe Wright’s brother-in-law. John Odum, Sr., and J. V. Odum, Jr. owned and operated the»St. Joe Milling Company, and Jane Wright (Joe Wright’s widow) worked at this feed mill on April 24, 1975, the day appellant shot and killed Joe Wright. Appellant also thought that Mitchell Simpson was in some manner involved in his father’s death.

C. W. Lawson testified that he was a resident of St. Joseph, Tennessee, and that between 3:00 and 4:00 p. m. on April 24, 1975, he and his brother saw Randy Wilson and appellant in St. Joe. Lawson saw that appellant had a shotgun. Appellant asked Lawson to take him to the J. V. Odum Mill. Lawson asked him why he wanted to go there and appellant, over counsel’s objections, replied that he planned to kill J. V. Odum and Mavis Balentine. Lawson refused to carry appellant to the mill.

The testimony for the State tended to show that appellant and one or more companions spent most of the day the shooting occurred going from one beer joint to another and appellant consumed at least a case of beer and probably a good deal more. It was also shown that the deceased and Mitchell Simpson were together on the afternoon of April 24, 1975, and they were drinking heavily.

Mitchell Simpson testified that he had known appellant for about five years. On April 24,1975, Simpson saw the deceased at Buck’s Tavern at 12:00 noon. He and the ^deceased visited a sick friend and then they went to Parker’s beer joint and had one beer each. They returned to Buck’s Tavern and found that Simpson’s car was gone. The deceased told Simpson he would carry him home and they left going toward the Cowpen Road. They met appellant in Simpson’s car and Simpson told the deceased to stop and he would ride home with appellant. Appellant came out of the car with a shotgun and accused Simpson of aiding in the killing of his father and he ordered him to get in the car saying, “I am not going to kill you right now,” or words to that effect. Simpson further testified that when he was getting out of the deceased’s car the only thing he heard the deceased say was that he would like to speak to appellant as he had not seen him in a long time. He stated the deceased was not mad about anything and did not have a weapon of any kind. Simpson said as he was returning to get in the car as ordered by appellant he saw appellant fire the shotgun in the air one time and then appellant fired three more shots. Appellant then ordered Simpson to accompany him and that he was going to St. Joseph to find Mavis Balentine at the feed mill. They went to the feed mill but it was closed. They saw the wife of the deceased and appellant said, “There’s one of them people that works at that feed mill now,” and reached down as though he were going to lay his hand on the gun. Simpson stopped him and told him, “That’s Joe’s wife. Don’t bother her. That’s a good woman.” The deceased’s wife came up to the car and asked where her husband was. Appellant replied that he did not know.

Appellant and Simpson proceeded to C. W. Lawson’s home but he was not at home. Appellant told Lawson’s wife that he needed some shells and he gave her some money to buy the shells and a six pack of beer. Appellant put the gun down and Simpson grabbed it and pointed the gun at appellant and appellant asked him not to shoot and threw up his hands. Simpson told Lena Mae Lawson to “go get the law,” and she got in the car and started up the road. Simpson stated that after Lena Mae left appellant took all of his clothes off except his shorts and told Simpson to shoot him saying, “I want to die.” After appellant stripped his clothes off, Simpson knew he didn’t have a pistol so he decided this was a good time to get away from appellant. He then went over a fence and through the woods to a service station. Appellant started after him in Simpson’s car but got the car hung in the fence. When Simpson got to the service station, one of the attendants examined the shotgun and told him it was jammed by a shell and he removed the shell and gave it to Simpson. Harold Purser, Simpson’s son-in-law, drove up and they rode by to the scene of the shooting. Simpson was arrested when he got back to the place where the killing occurred and the officer got the shotgun out of the pickup truck. When Simpson was placed in jail, he still had the shotgun shell that had jammed the gun and it was left with the officers.

Simpson further testified that after appellant hung the car in the fence he backed up and headed north at a high rate of speed.

Lena Mae Lawson testified that around 5:30 p. m. on April 24, 1975, she saw appellant and Simpson at her house. Appellant told her that he had killed one S. O. B. that was involved in the killing of his father, and that Simpson was also involved and he was going to kill him. Appellant asked Mrs. Lawson for some shotgun shells and gave her a twenty-dollar bill. She then saw Simpson seize the shotgun and go over a fence into the woods. Mrs. Lawson gave the twenty-dollar bill to Jerry Rooker, Chief of Police of St. Joseph, Tennessee. At trial Chief Rooker identified the bill and it was admitted into evidence.

Lanny Jackson, Deputy Sheriff of Laud-erdale County, got a call from Rick Thompson, an investigator for the District Attorney, to be on the alert for a ’64 white Oldsmobile with Tennessee license plates. Jackson saw the car just south of Shoals Creek bridge on County Road 47 and this car was coming in his lane of traffic and ran him off the road. He judged the speed of the Oldsmobile to be between 80 and 90 miles per hour. Jackson turned around and gave chase with his blue lights on and also his siren. He radioed for a backup. The driver of the Oldsmobile drove off the road, abandoned the car and ran into the woods.

Joel Williams, a police officer with the Florence Police Department, got the call for help and he responded with his partner, Mrs. Elizabeth Hawk. Williams saw the suspect running in the woods and ordered him to stop but he kept running. Williams shot at him one time and he fell. He shouted that he was shot. Officer Hawk radioed for an ambulance and went to the suspect who turned out to be appellant. She put appellant’s head in her lap but she did not ask him any questions. Appellant asked her if she knew James Balentine and she said no. She told appellant to be quiet and lie still. Appellant said, “I want you to understand I killed the man that killed my father.”

Appellant was carried to a local hospital for emergency treatment for superficial wounds. At 8:00 p. m., the night of April 24, 1975, Lawrence Smelley, a criminal investigator with the Alabama Bureau of Investigation, took an oral statement from appellant in the hospital emergency room. Before asking appellant any questions he gave him the Miranda rights by reading them to him from a card. Officer Smelley stated that appellant did not appear to be intoxicated at all when he took his statement and that he did not appear to be under the influence of any drugs at the time.

Testimony was taken out of the presence and hearing of the jury to determine if appellant was given any medication that might render his statement involuntary and inadmissible into evidence.

Martha Kennedy, an LPN, was on duty in the Eliza Coffee Memorial Hospital Emergency Room when appellant was brought in. She testified that appellant had gunshot wounds on his legs and buttocks and he was given 1000 cc Ringers Lactate which was I.V. fluids. He was also given a tetanus toxoid, which is a lockjaw shot. He was given E-Mycin tablets which is an antibiotic. She expressed the opinion that none of these medications would affect a person’s mind. She stated that the hospital chart did not show that appellant was given any shots for pain. She said if any pain shots had been given, they would have been recorded on the chart.

Dr. Quintus Langstaff, a medical doctor, testified that none of the medicines given to appellant would have any effect upon a person’s ability to reason and communicate. He also testified that if appellant was under the influence of alcohol, his mental faculties would still not be impaired.

The jury was called back to the jury box and both Mrs. Kennedy and Dr. Langstaff gave the same testimony before the jury. Dr. Langstaff looked at appellant’s medical records and testified that the notations on the record would indicate that these were superficial wounds and from examining the record, it was his judgment that appellant was not in shock.

Officer Smelley was recalled and testified as to his expertise in determining whether or not a person is intoxicated.. After talking with appellant he determined that he was not intoxicated. He gave appellant the Miranda rights and warnings by reading them to him from a card. He asked appellant if he understood his rights and he said that he did.

From the record:

“Q. All right, sir, and would you tell the Ladies and Gentlemen of the Jury and the defense what type training you have been through other than just your everyday experience with people who are intoxicated?
“A. Well, that would be it. I have been with the State Troopers for a period of thirteen years, ten of those years were on the road as an arresting officer and during that time I arrested numerous people and charged them with violation of driving while intoxicated.
“Q. All right, sir, and have you been associated with and talked with and dealt with people who have been given sobriety tests?
“A. Yes, sir.
“Q. All right, sir, and are you basing your opinion upon your viewing of these individuals who have had the sobriety tests in your presence and their actions?
“A. Yes, sir.
“Q. All right, sir, and from your experience of ten years or more of dealing with these people, do you have an opinion as to whether or not Mr. Balentine was intoxicated at the time that you talked with him?
“A. Yes, sir.
“Q. What is that opinion?
“A. At the time I talked with Mr. Bal-entine, it is my opinion that he was not intoxicated.
“Q. All right, sir, and did he make a statement to you?
“A. Yes, sir, he did.
“Q. Tell the Ladies and Gentlemen just what Mr. Balentine said to you.
“MR. SLUSHER: AGAIN, YOUR HONOR, WE WILL RENEW OUR OBJECTION TO THE ADMITTANCE INTO EVIDENCE OF THIS STATEMENT ON THE GROUNDS THAT IT WAS NOT VOLUNTARILY GIVEN AND THAT MR. BALENTINE DID NOT FULLY UNDERSTAND THE MIRANDA WARNING AS GIVEN TO HIM BY— IF, IN FACT, IT WAS GIVEN TO HIM BY OFFICER SMELLEY.
“THE COURT: WE OVERRULE THE OBJECTION.
“Q. After you read the Miranda Rights to him and ask him if he wanted to talk to you, what did he say to you?
“A. Well, I didn’t ask him if he wanted to talk to me. He first called me over to the table that he was lying on and he said he wanted to ask me something and at that time I read him his rights. I said, ‘Charlie, before you say anything to me’ or ‘Mr. Balentine, before you say anything to me, let me read you your rights.’ And I read him his rights as I have explained and he said he understood all that, knew all about that, and then he said, ‘Is that fellow dead up there?’ And I said, ‘Charlie, I don’t know; now, they tell me he’s dead, but I haven’t seen him.’ And he was quiet — paused for a moment, and then he said something to the effect, he said, ‘Who was he?’ And I said, ‘Well, I can’t give you a real good answer on that, Charlie, because I don’t really know. Now, I’ve been told it was a man by the name of Joe Wright.’ And he paused again, and he said, T killed the wrong man.’ And I said, ‘What do you mean by that, Charlie?’ And he said, ‘Hell, I’ve killed the wrong man and now I’ve got to do it all over again.’ And at this time I suggested to Mr. Balentine that he might should wait until he had the benefit of a lawyer before he said anything else to me.
“MR. JOHNSON: You may ask him.
“CROSS EXAMINATION BY MR. SLUSHER:
“Q. Officer Smelley, when you began reading the rights to Mr. Balentine here and he stated to you that he knew all about those rights, did you then discontinue reading him his rights, or did you continue on and read him the full Miranda Warning?
“A. I had already completed reading him his rights and asked him if he understood those rights and he said, ‘Yeah, I know all about them, I understand them.’ ”

Mr. John Kilbourn, Assistant State Toxicologist stationed at Florence, Alabama, was called to the scene of the shooting where he viewed the body and took photographs of the body and the scene. While at the scene, he collected four twelve gauge spent shotgun shells and a twelve gauge shotgun. He test-fired the weapon in the laboratory and the test hulls were examined and compared with the evidence hulls recovered at the scene and this was done microscopically to determine whether or not the hulls found at the scene were fired from this particular gun. He stated that all four of the evidence hulls recovered at the scene were fired from the twelve gauge shotgun he received at the scene of the shooting.

The body was examined by the Toxicologist at a funeral home in Sheffield where a blood sample showed an alcohol level of .34%. Kilbourn stated that a person with that much alcohol in his system would be highly intoxicated and would have a tremendous loss in muscle coordination. He further said such a person would be nearing a state of unconsciousness.

An autopsy was performed and Mr. Kilb-ourn described the wounds as follows:

“A. There were three wounds on the body. One was a three-inch hole, which was noted in the right anterior chest. The wound had around it numerous smaller holes and the diameters across these holes were approximately three and one-half inches. Located just to the right of this wound was a tangential abrasion which measured approximately one inch by three-quarters of an inch. From this wound were removed several pieces of lead shot. There was a one and three-quarter inch hole located on the right hip; four and one-quarter inches below the iliac bone. The periphery of this wound was very rough and irregular, and from this wound I removed two pieces of 12-gauge plastic wadding. The third wound was a one and three-quarter inch hole and it was in the center of the back just above the waist and near the. periphery of this hole was noted to be irregular and from this wound one piece of 12-gauge plastic wadding was removed.”

On cross-examination this witness said that the deceased was approximately six feet tall and weighed about 230 pounds. He further testified that the wounds sustained by the deceased were such that he would go down quite rapidly and would not be able to walk. He stated that the gunshot wound to the back hit the spinal cord and “I would expect this to paralyze the individual, so I wouldn’t expect him to advance.”

Appellant testified that on April 24, 1975, as he and Randall Wilson were traveling on Cowpen Road a car pulled up in front of them. Mitchell Simpson came out of the car with a knife in his hand. The car in front of appellant was blocking the road. Simpson was standing to the rear of him with an open knife. He saw a big guy whom he believed to be Fish Wright (Joe Wright’s brother) get out of the car that was parked 20 to 30 feet from his car and that he was slow, “he was just like he couldn’t walk, or you know, real slow like,” and the man came toward him with an angry tone in his voice. Appellant reached for his shotgun and shot once into the air, and then shot Wright three times.” He claimed there was no way for him to escape with Simpson behind him with a knife and Wright in front of him. He stated he did not see a weapon in Wright’s hands but he could see only one hand as Wright had his left hand behind him. He claimed he shot in self-defense.

Appellant was subjected to a vigorous cross-examination and made many contradictory statements and was impeached in many respects.

Rick Thompson was recalled as a rebuttal witness for the State. He stated that he interviewed appellant on April 25, 1975, the day after he killed Joe Wright. Before the interview he gave appellant his constitutional rights by reading from a card containing the Miranda rights and appellant told him he knew and understood his rights. This interview was tape-recorded and transcribed. The proper predicate was laid to show the voluntary character of this statement and it was read to the jury. This statement is as follows:

“STATEMENT OF CHARLES BALEN-TINE
“On April 25, 1975, who made statement to RICHARD B. THOMPSON, of Lauder-dale County Courthouse, District Attorneys Investigator. ,
“Early this morning me and Randy Wilson got together and got off and got to drinking and there was nobody going to shoot anybody. Randy came over and picked me up where I had been staying and that is at Rt. 3, Zip City and that is my Uncle’s house, Jessie Phillips. We left there and went to Fox’s and bought a case of beer. Warren Cheeks went with me and Randy Wilson. We were in Warren Cheeks’ car and later that day he dropped us off at Randy Wilson’s uncle’s house. Me and Randy ended up at Buck’s Place. Mitchell Simpson’s car was there and had the keys in it, so I borrowed Mitchell’s car because he always is borrowing mine. Earlier in the day, Randy Wilson and I had gone back by Jessie Phillips, my uncle and had gotten my shotgun. The reason why I went to the house to get my shotgun was the more I had thought about things the more I got madder, but I was not planning on shooting anybody. The shotgun had originally belonged to my daddy and while I was in prison, Mavis Balentine kept the gun and when I got out, she gave it back to me. When I got in Mitchell’s car, Randy drove his uncle’s car back down to the little dirt road just South from the state line and he parked it there. We left Mitchell’s car and went to C. W. Lawson’s house and he wasn’t there so we came back to the dirt road and I had stopped there on the dirt road to talk with Orbie Linvell about a job. I got in the car and left and started back to Cowpen Road and then we'got to the intersection of the Dirt Road and Cowpen Road, there Mitchell Simpson pulled out across in front of us. There was another man in the car with him and I thought it was Fish Wright. I didn’t even know his brother, Joe, and Mitchell jumped out of the car and came around toward my side and was taking a knife out of his pocket. I told him — Mitchell don’t come over to this car with that knife. He saw the shotgun and wouldn’t even open his knife then and started backing up. This other guy with him got out of the car then and told me to get out of the ear and then he told me to get out again. I told him don’t come any closer. I thought this man was Fish Wright coming towards me. I didn’t see anything in his hand, a gun, knife, or anything at all. Then I shot him two or three times. I don’t know why he kept on coming at me because I told him to stay back. During, this time the boy with me, Randy had run off. Earlier that day Randy and I had seen C. W. Lawson in downtown St. Joe, Tennessee. C. W. and his brother, Jimmy were together and I tried to get them to drive me to the Feedmill. The reason why I wanted to go to the Feedmill was because I wanted to see my stepmother and her boyfriend J. V. Odum. C. W. said that he could not take me down there. The reason Randy and I didn’t go to the Feedmill was because we didn’t know where it was. I knew Mavis would be there with J. V. because she had been staying with him ever since my father’s death. I believe there is something funny about this because my dad didn’t even know J. V. I believe they had something to do with my father’s death and I believe they set it up. The reason why I say this is because I had some information given to me that Mavis was going with him before my father’s death. I have heard through different people that Fish Wright did it. I don’t know why Mitchell Simpson said that Jimmy Hood did it but I was going to find out yesterday. Yesterday after I shot Mr. Wright, Mitchell and I got in the car and drove off. We got in the white car that belonged to the man that I shot. I didn’t think Mitchell would get in the car, he just got in the car with me. I then drove the car to C. W. Lawson’s house. We got to his house and both got out and went inside. I sent C. W.’s wife to the store and when I laid the shotgun down to give her some money, Mitchell put the shotgun on me. I sent her to the store to get some beer and more shells. The reason I wanted more shells is because I knew they were going to be after me. I guess the reason Mitchell put the shotgun on me was because he thought I was going to shoot him but I haven’t said anything about shooting anybody. I did say in front of Mitchell and Lena Mae Lawson that I thought Mr. Mitchell had something to do with my father’s death. Then Lena Mae Lawson said you know Mr. Mitchell had nothing to do with your father’s death. When Mitchell had put the gun on me I didn’t have but one shell in the gun, so he ran off down through the woods and I got in the car and left and came back to Alabama. I came down Highway 43 and turned down old Jackson Road and that is when I met Mr. Jackson. When I down Bailey Springs Road, I got out of the car and ran in the woods. I stayed in the woods ten or fifteen minutes, then I came out and went to the road and didn’t see anything or anybody. So, then, I started back into the woods and everything went black.”

There was no motion to exclude the State’s evidence; there was no request for the affirmative charge, and no exceptions were reserved to the Court’s oral charge to the jury. Appellant did file a motion for a new trial but no testimony was offered in support of the motion. The motion was argued and submitted and was overruled and denied. In this state of the record very little is presented to this Court for review. Jones v. State, 55 Ala.App. 466, 316 So.2d 713; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

In Young v. State, 283 Ala. 676, 220 So.2d 843, the Supreme Court said:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trail, does not constitute error.”

This Court has ruled on many occasions that the decision on a motion for a new trial rests largely within the sound discretion of the trial court and that in reviewing that decision we will indulge every presumption in favor of the correctness thereof. Clark v. State, 54 Ala.App. 217, 307 So.2d 28; Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624.

Photographs of the deceased and the locus in quo are admissible in murder prosecutions when they shed light upon the character and location of the wounds on the victim’s body and when the proper predicate has been laid. Snow v. State, 50 Ala.App. 381, 279 So.2d 552; Boulden v. State, 278 Ala. 437, 179 So.2d 20; McKee v. State, 253 Ala. 235, 44 So.2d 781.

The photographs of the victim and the scene of the homicide were properly admitted into evidence.

Appellant contends that he was intoxicated at the time he made the confession and therefore the confession was involuntary and inadmissible. The law is clear that proof of intoxication amounting to mania or such an impairment of the will and mind as to make the person confessing unconscious of the meaning of his words renders a confession so made by him inadmissible, but a lesser state of intoxication will not render the confession inadmissible. The voluntariness of an alleged confession is a question of law for the Court and should be decided by the trial court upon preliminary proof, showing the circumstances surrounding the alleged confession, taken outside the hearing of the jury, and such finding will not be disturbed unless it appears contrary to the great weight of the evidence or is manifestly wrong. Stewart v. State, 49 Ala.App. 681, 275 So.2d 360; Daniels v. State, 53 Ala.App. 666, 303 So.2d 166.

The rule announced in Stewart, supra, was fully complied with in this case and the confession was properly admitted into evidence.

The motive for a killing is always a proper subject of proof in a murder prosecution. Brothers v. State, 236 Ala. 448, 183 So. 433.

There was no error in allowing the State to prove the threats made by appellant to kill J. V. Odum and Mavis Balentine. These persons were members of a class that appellant thought was involved in the death of his father. The wife of the deceased was a sister to J. V. Odum who appellant thought was dating his father’s wife before he was killed. The evidence showed that appellant vowed to kill everyone who he thought had anything to do with his father’s death. Patterson v. State, 202 Ala. 65, 79 So. 459; Miller v. State, 20 Ala.App. 354, 102 So. 153; King v. State, 19 Ala.App. 153, 96 So. 636.

There were numerous requested charges and the trial court gave most of them. The refused charges were adequately and substantially covered in the oral charge or in the other given charges.

Appellant was tried before one of our most experienced and distinguished trial judges and he was represented by able, astute and competent counsel. He received a fair and impartial trial and that is all he was entitled to under the law.

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none.

The judgment of conviction is affirmed.

Affirmed.

All the Judges concur except CATES, P. J., not sitting.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    In re Charles Edwin BALENTINE v. STATE of Alabama. Ex parte Charles Edwin Balentine.
    SC 2100.
    Supreme Court of Alabama.
    Dec. 3, 1976.

      John C. McKelvey and Rodney B. Slusher, Florenee, for petitioner.
    None for the State.
   SHORES, Justice.

Petition of Charles Edwin Balentine for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Balentine v. State, 339 So.2d 1063.

WRIT DENIED.

HEFLIN, C. J., and MADDOX, FAULKNER and BEATTY, JJ., concur.


author: CATES, Presiding Judge.

text:
    Gary LITTLE v. STATE.
    4 Div. 436.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Nov. 2, 1976.
    Griffin Sikes, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Involuntary manslaughter (by means of an automobile); sentence (per jury verdict) nine months in county jail.

I

Appellant was convicted in a municipal court of reckless driving but the judgment was suspended pending a trial de novo. This second tier proceeding was still pending at the time of the trial of the instant indictment for the homicide. Hence, under Ludwig v. Massachusetts, - U.S. -, 96 S.Ct. 2781, 49 L.Ed.2d 732 there has been no jeopardy within the meaning of the prohibition in the State or Federal Constitutions.

Moreover, though reckless driving may be a component of second degree manslaughter, it is not the same offense. See Racine v. State, 291 Ala. 684, 286 So.2d 896; and Tyson, J., Double Jeopardy and Collateral Estoppel, 37 Ala.Lawyer 208.

II

Exception was taken to the oral charge that simple negligence contributing to death of a human being constituted involuntary manslaughter. This was not error. Golden v. State, 39 Ala.App. 361, 103 So.2d 52(16); Rutledge v. State, 36 Ala.App. 457, 60 So.2d 360.

III

The foreman of the jury’s wife was a blood first cousin of the deceased. This kinship was in the fourth degree. See Nolan Chart in Owen v. State, 255 Ala. 354, 51 So.2d 541. A husband, by affinity, has the same degree of relationship to his wife’s blood kin as she has by her consanguinity. State v. Hooper, 140 Kan. 481, 37 P.2d 52.

Code 1940, T. 30, § 55 confers a challenge for cause, inter alia:

* * * 4. That he [a prospective juror] is connected * * * by affinity within the fifth degree * * * with * * * the person alleged to be injured-.” [Italics added]

When the trial judge was qualifying the venire the instant juror remained silent. The record (on the motion for new trial) shows no lack of diligence on the part of the defendant or his attorney amounting to a waiver of the juror’s disqualification. McHenry v. State, 279 Ala. 30, 181 So.2d 98. In Smithson v. State, 50 Ala.App. 318, 278 So.2d 766, the question did not concern a juror related to the injured party.

In a criminal trial by jury the parties exercise their peremptory challenges by “striking.” Ordinarily this is done by counsel using a typewritten sheet having the names of the veniremen, each with a number. The challenging is done by calling the number (but not the name) of the juror to be withdrawn. After this twelve are left to be sworn and empaneled.

This strike privilege has been described by Judge Simpson as a valuable one. We consider this case is controlled by his decision in Leach, 31 Ala.App. 390, 18 So.2d 285, wherein he wrote regarding a taciturn juror who had been formerly a deputy sheriff:

“It would, it seems to us, be the rankest casuistry to contend that there was no probable injury to defendant by the concealment of the juror, aforesaid. It is but natural that such a juror, as a general proposition, who had been engaged in the same business, had arrested persons guilty of similar misconduct, and had probably been subjected to like attempted assaults, as the victim here, would stand less indifferent than a layman, free from the tug of such former professional influences.
“Here is no scope for the operation of Rule 45, to the effect that the burden is upon appellant to show injury. The test here is not was the defendant thereby injuriously prejudiced, but that he might have been. Roan v. State, 225 Ala. 428, 435, 143 So. 454; Arrington v. State, 23 Ala.App. 201, 123 So. 99; Kabase v. State, 244 Ala. 182, 12 So.2d 766.
“We think and hold that a new trial should have been awarded for this error.”

Certain qualifications bear more weightily on the required impartiality of jurors. Thus, blood or marriage kinship to a party within certain degrees works an absolute disqualification of a venireman. Brazleton v. State, 66 Ala. 96. Also in criminal cases a more careful scrutiny is a necessity because of the more severe penalties possible.

Here the jury foreman’s claimed ignorance of his wife’s kinfolk, if credible, somewhat exhibits an absent-mindedness calling in question his fitness to serve.

Hence, we distinguished Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 and hold that under Leach, supra, it was an abuse of discretion to deny the motion for new trial.

The judgment below is reversed and the cause remanded for trial de novo.

REVERSED AND REMANDED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    In re Gary LITTLE v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2182.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    William J. Baxley, Atty. Gen., Milton C. Davis, Asst. Atty. Gen., Montgomery, for petitioner, the State.
    None for respondent.
   FAULKNER, Justice.

Petition of the State by its Atty. Gen., for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Little v. State of Ala., 339 So.2d 1071.

WRIT DENIED.

HEFLIN, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.


author: HARRIS, Judge.

text:
    Ray TORRIS v. STATE.
    6 Div. 49.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 12, 1976.

      Michael Crespi, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for appellee.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ten years imprisonment in the penitentiary. Before arraignment appellant was determined to be indigent and the Court appointed a very experienced trial lawyer in criminal cases to represent him. He went to trial on a plea of not guilty. After sentence was imposed, he gave notice of appeal and requested a free transcript which request the Court granted. New counsel was appointed to represent him on appeal.

Thomas Roberts testified that he came to Birmingham the latter part of January 1975, in the course of his business as a salesman. He registered at a local motel and went to the Redmont Lounge where he drank several beers. Two men dressed in women’s clothes approached him and he bought each of them a drink and danced with one of them. While dancing this man (woman) took his wallet but the barmaid made the pickpocket return the wallet. Roberts made a sexual advancement to this person and they left the motel in Roberts’ car.

Roberts noticed that another car was following him and he tried to lose this car but was unable to do so. Roberts stopped his car and got out and when he did, he was accosted by two men. One of the men struck him over the face and head knocking him to the ground with an iron bar. While on the ground he was hit several more times. Roberts identified appellant as the man who struck him. While Roberts was on the ground the other man went to Roberts’ car and got his wallet which contained $350.00. Both men and the person who accompanied Roberts from the lounge drove away together. Roberts reported the robbery to the local police and several days later he discovered that the “women” for whom he had bought drinks were actually men.

Howard Wilson was one of the men dressed like a woman and was the person who had driven off from the Redmont Lounge with Roberts. He further stated that he met the appellant a few hours before his “date” with Roberts. He amplified Roberts’ description of the robbery by stating that the two men who followed Roberts’ car were appellant and one Jerry Ricco and that both men beat Roberts and got his wallet.

On cross-examination Wilson admitted that Roberts had offered to pay him for sexual relations and that he had accepted though the specific amount was never agreed on.

One Daniel Martin who was also dressed as a woman testified that Roberts bought both him and Wilson a drink and danced with them. He corroborated the testimony of Roberts and Wilson as to their dancing together and their subsequent departure from the lounge.

Appellant did not testify in his behalf but rested his case exclusively on the testimony of Jerry Ricco. Ricco was warned by the trial judge that since he was also charged with the robbery that he had a constitutional right not to testify. The trial judge warned him on at least four occasions. He elected to testify anyway even over the warnings, protests and objections of his appointed counsel.

Ricco testified that he was in the lounge on the night that the alleged robbery occurred and that he became offended by an insulting remark made by Roberts. That when Roberts left the lounge with Wilson he and one Frank Carrier went after Roberts. They caught up with Roberts and a fight ensued, but he denied that an iron pipe was used during the fight. He further claimed that no money was taken from Roberts. He denied that appellant went with him after Roberts and said that his acquaintance with appellant was limited to a few meetings in lounges around town.

After conviction and notice of appeal appellant filed a pro se petition for a writ of habeas corpus on the ground that he was represented by ineffective counsel. The Court overruled and denied the writ noting that the case was on appeal and counsel had been appointed to represent him on appeal.

The charge that appellant was represented by incompetent counsel is wholly without merit. The Court-appointed counsel had been defense counsel in numerous criminal cases and had enjoyed considerable experience in successfully defending criminal cases. This distinguished lawyer was so well known as a trial lawyer that he was nominated in the recent primary for a District Judgeship. To charge him with being incompetent is utterly without foundation.

The conviction of a client does not prove lack of skill or zeal on the part of counsel. Hendricks v. State, 281 Ala. 376, 202 So.2d 738; Taylor v. State, 291 Ala. 756, 287 So.2d 901; Tillis v. State, 292 Ala. 521, 296 So.2d 892; Gore v. State, 45 Ala.App. 146, 227 So.2d 432; Aldridge v. State, 278 Ala. 470, 179 So.2d 51.

The sufficiency of the evidence is not presented to us for review. There was no motion to exclude the State’s evidence; there was no motion for a new trial; there was no request for the affirmative charge; no exceptions were reserved to the oral charge to the jury, and there were no adverse rulings on the admission of evidence which contained any merit. Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Bass v. State, 55 Ala.App. 88, 313 So.2d 208.

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

The jury was so impressed with the State’s case that they returned a verdict within 17 minutes after the case was given to them.

The evidence in this case fully supports the judgment of conviction and the case is affirmed.

AFFIRMED.

All the Judges concur.


text:
    In re Ray TORRIS v. STATE of Alabama. Ex parte Ray Torris.
    SC 2127.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    Michael Crespi, Birmingham, for petitioner.
    Nope for the State, respondent.
   SHORES, Justice.

Petition of Ray Torris for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Torris v. State of Ala., 339 So.2d 1073.

WRIT DENIED.

HEFLIN, C. J., and MADDOX, FAULKNER and BEATTY, JJ., concur.


text:
    George Daniel HUMPHREY, Jr. v. STATE.
    6 Div. 57.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Nov. 2, 1976.
    Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

This is an appeal from a decision below turning down a petition for coram nobis.

The conviction was reviewed by this Court and affirmed without opinion in Humphrey (6 Div. 533) July 30, 1974.

In the post conviction hearing an apparent infirmity in one of two search warrants was stressed. Can a coram nobis proceeding reach such an assumed error?

We think not unless the other elements of coram nobis cause of action are proved. See Woodard v. State, 42 Ala.App. 552, 171 So.2d 462, particularly fn. 3 as to prior knowledge of the defendant at time of trial.

Along this line the Assistant Attorney General advances the following:

“ * * * a Writ of Error Coram No-bis is not intended to relieve a party of his own negligence, and cites as applicable authority those decisions of the Alabama Appellate Courts which state that facts known to the accused at the time of trial, or which could have reasonably been discovered within the time for taking direct appeal, afford no grounds for relief. Seagroves v. State, 53 Ala.App. 481, 301 So.2d 245 (1974); Taylor v. State, 46 Ala.App. 659, 248 So.2d 154 (1971); Adams v. State, 281 Ala. 432, 203 So.2d 448 (1967); Eagen v. State, 280 Ala. 438, 194 So.2d 842 (1967). The State submits that even had the Defendant-Petitioner prevailed in his ‘invalid warrant’ argument there is nothing about the nature of the warrants admitted into evidence at the hearing which was not apparent to the Defendant-Petitioner and his attorney at trial and upon appeal from the Circuit Court conviction.”

Furthermore, nothing appears that appellant claims he was innocent.

The judgment below is

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte George Daniel HUMPHREY, Jr.
    SC 2180.
    Supreme Court of Alabama.
    Dec. 10, 1976.
   ALMON, Justice.

WRIT DENIED, Ala.Cr.App., 339 So.2d 1076.

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


text:
    Warren Theophilus HILL v. STATE.
    6 Div. 898.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 12, 1976.
    J. Massey Relfe, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Upon trial on an indictment charging murder in the first degree of Reginald Williams, appellant was convicted of murder in the second degree and sentenced to imprisonment in the penitentiary for a term of fifteen years.

No contention is made on appeal that the evidence was not sufficient to justify the verdict of the jury, and we see no reasonable basis for such a contention.

There is little, if any, need for a recitation of any of the evidence, but a brief summary of some of it is here given.

The principal witness for the State was Charles Taylor, an acquaintance of both the victim and defendant. He testified that on January 11, 1974, at 108 Princeton Avenue, S. W., Birmingham, he and Williams were sitting in the den of the house when defendant entered. He heard a discussion between defendant and Williams, in which each said that he had heard that the other had “snitched on him.” After further discussion among the three, defendant invited Williams to step outside. The witness said, “I went out front to see who was out there.”, and there he saw defendant’s wife in an automobile, went over and talked with her, and while doing so heard some (more than three) shots. He turned around at the first shot, saw defendant and Williams on the porch, saw defendant shooting Williams with a pistol; he saw Williams back up against the porch and holler, “Oh.” He said defendant then pointed the pistol at Taylor; that he ran and then left the scene in his automobile, returned in about ten minutes and observed Williams lying on the floor of the den, dead.

An autopsy showed that one bullet entered the victim’s right chest, one his left chest and one his head, which was fatal.

The testimony of defendant and his wife, the only other witnesses who saw the fatal encounter, was different in some material respects. They testified that defendant and the victim had been talking at the house, that as the victim saw defendant’s wife in the automobile, he began to curse her, that a three-person fight took place among the victim, defendant and Charles Taylor, that Charles Taylor had a pistol and that Williams had a knife. In the course of the struggle, defendant grabbed the pistol and shot it four or. five times and then he and his wife left the scene in their automobile.

The credibility of the testimony of Taylor was justifiably challenged by defendant by reason of his admitted convictions of some crimes involving moral turpitude and the friendly relationship between the witness and the victim, which included joint participation in one or more of the crimes.

The evidence was sufficient for the jury to have concluded that Taylor was testifying falsely as to material facts, that either defendant was acting in self defense in killing Williams or that he did not voluntarily kill him, but this was in the exclusive province of the jury, and it cannot be said that the verdict was palpably wrong or unjust.

The State was permitted to show by a Birmingham detective, over the objection of defendant, that on February 8, 1973 the victim Williams made a statement to the witness implicating the defendant in a burglary. Before the witness was allowed to answer, a hearing was conducted out of the presence of the jury in which the following occurred:

“THE COURT: What does the statement purport to show- — relate to?
“MR. PICKARD: A statement of Reginald Williams to Sgt. Patmon that Warren Hill had borrowed his car and used it in a burglary and sold some of the items taken in the burglary and given him part of the money, which the State claims that this is an exception to the hearsay rule to show motive, design, scheme and plan. There has been evidence brought out on both sides that the defendant snitched on the deceased and the deceased snitched on the defendant.
“THE COURT: Right. Now a motive, scheme, plan or design I don’t think that would apply.
“MR. PICKARD: Motive.
“THE COURT: Yes, motive. I’ll need to know also exactly what he’s going to say about this conversation because it’s going to have to be restricted carefully.
All right, now, Mr. Pickard, what — how far are you going to start on this and how far are you going to go?
“MR. PICKARD: The only portion of the statement that I’m interested in is that Warren borrowed the car from Reginald and that he returned with a stolen T.V. in the car and gave him part of the money for it.
“MR. PARKER: Of course I’m going to object to any of this on two grounds. First, that it is hearsay; secondly, it is prejudicial. It is evidence of a separate offense altogether than this case right here and therefore it becomes prejudicial. It is not a conviction. It is just alleged information concerning an offense.
“THE COURT: All right, I’m going to overrule it. Bring the jury in. Carefully restrict it to that, Mr. Pickard.”

Thereupon, in the presence of the jury the following occurred:

“THE COURT: Proceed, Mr. Pickard. “Q. (BY MR. PICKARD) Sgt. Patmon, will you tell the ladies and gentlemen of the jury in substance what was told to you?
“MR. PARKER: We object to it and assign as grounds it is hearsay and it is an attempt to prejudice this jury against this defendant.
“THE COURT: Overruled.
“MR. PARKER: We except.
“A. Reginald Williams stated that he had loaned his car to defendant, Warren Hill, and that when Warren returned the car to him or came back with the car he had some stolen merchandise in it that was taken in a burglary. He went with Warren, they transferred the stolen property from Reginald Williams’ car into Warren Hill’s car and they went and sold the T.V. and Reginald Williams got part of the money.
“MR. PICKARD: That’s all, Mr. Pat-mon.”

The record supports the remark of counsel for the State that there was evidence that on the occasion of the fatal altercation, the victim told defendant and the defendant told the victim that the other “had snitched on him.” As shown by the quoted portion of the record, the State on the trial contended that the evidence of what the victim had said was admissible to show motive. When the State had rested its case, the Court instructed the jury as follows:

“THE COURT: Who is the next witness? .... Ladies and gentlemen, this testimony with reference to the statements made by Reginald Williams is in for one purpose only. There has been some evidence in the past, yesterday as I recall, about somebody snitching on somebody or somebody snitching on somebody else and vice versas. The purpose of this testimony today is only on that point; namely, on the point of motive. The fact that who arrested who or who was tried or who did what and the fact that an arrest was made on anyone else involved is irrelevant and has absolutely nothing to do with this case and should be ignored by you. As I said, the only purpose is to show some possible motive, if there be a motive, based on what was gone into by either one or both sides yesterday. And with that, who is the next witness?”

The reason for the objection to the testimony was definitely stated, that it is “hearsay” and that it is “prejudicial.” In appellant’s brief, it is argued that the testimony constituted inadmissible hearsay, and that its admission in evidence violated the exclusionary rule as to testimony of other crimes and not within an exception to that rule in shedding light on “motive, any scienter or identity, and so tend to establish the guilt of the party of the offense of which he is being tried” as set forth in Jackson v. State, 229 Ala. 48, 155 So. 581, 582.

At least three separate and distinct phases of the law of evidence are alluded to in the quoted portions of the record pertaining to the question now considered: motive, hearsay and its exceptions, and other crimes (offenses). Consideration of the phases separately, rather than jointly, should be helpful in attempting a correct solution of the problem raised. The principle that evidence of defendant’s commission of another crime is admissible if it tends to show motive for the commission of the crime charged is well established. Miller v. State, 130 Ala. 1, 30 So. 379, and numerous other cases cited in McElroy, Law of Evidence in Alabama, § 70.12(4). As the author points out, with a citation of authorities, in § 69.01(1), proof of “accused’s commission of another crime” or “misdeed” may be made whenever “it tends to prove his guilt otherwise than as tending to prove guilt via bad character.” This presupposes, however, that the evidence is not subject to some valid' objection, which could be many and various, including the exclusionary hearsay rule in the absence of an exception to it.

The parties do not seem to be at issue, and we do not now decide, whether the defendant’s commission of the crime imputed to him by Williams’ statement to Sgt. Patmon was provable by legal evidence as tending to show a motive in defendant to kill Williams.

We do decide that if defendant’s commission of the crime imputed to him by Williams’ statement to Sgt. Patmon was provable by legal evidence as tending to show a motive in the defendant to kill Williams, Sgt. Patmon’s testimony was inadmissible for the reason that it was hearsay evidence of the defendant’s conduct, and did not come within any exception to the hearsay rule. Kitchens v. State, 251 Ala. 344, 346, 37 So.2d 428, citing, among other supporting decisions, Holland v. State, 162 Ala. 5, 50 So. 215.

In Kitchens v. State, supra, Kitchens who was being tried for the alleged murder of his wife, claimed that the killing was accidental, and introduced evidence tending to show the existence of a harmonious domestic relationship between him and his wife. The Supreme Court held that the trial court erred in admitting evidence, offered by the State as tending to show a non-harmonious relationship, that a few days before the wife was killed, she stated to a justice of the peace that defendant had made threats against her life. The Supreme Court said that such evidence was “pure hearsay”; and held, in effect, that there was no hearsay exception for statements in general by the victim in a charge of homicide; and that the wife’s statement did not come within any exception to the hearsay rule.

The testimony of Sgt. Patmon as to what was told him by the victim was objectionable as hearsay, and the admission of such testimony, over the objection of the defendant, constituted prejudicial error. We must, as was done in Kitchens, reverse the judgment of the trial court. .

On the question of the admissibility of the testimony of what was said by the victim, appellee relies upon Manassa v. State, 47 Ala.App. 287, 253 So.2d 356, wherein one Marcum a detective, was allowed to testify in a robbery case to a conversation with one Giles, the owner of the pistol allegedly used by the defendant in the robbery, which conversation was repeated to defendant at the time of defendant’s arrest.

Manassa is not in point. There, the admissibility was based upon the repetition to defendant of what the witness had been told. In the instant case, there was no contention on the trial, and there is no just basis for any contention on appeal, that the statement of the victim was repeated to defendant by the witness. The witness was merely testifying to what the victim told the witness. That, is hearsay, as the State conceded on the trial, and the State offered it as an exception to the hearsay rule, which it is not.

During direct examination of defendant, the following occurred:

“Q. Incidentally, you had been convicted of grand larceny before, haven’t you?
“A. Yes, sir, it was a—
“MR. PICKARD: I object to that.
“THE COURT: I’ll sustain it. Exclude that, ladies and gentlemen.”

On cross-examination, the following occurred:

“Q. (BY MR. PICKARD) That conviction for grand larceny was larceny from the person?
“MR. PARKER: I object to that.
“MR. PICKARD: He opened the door.
“MR. PARKER: He objected to me questioning about it, so I object to him questioning about it.
“THE COURT: I’ll oberrule your objection as I did his.
“MR. PARKER: I thought you sustained his, Judge.
“THE COURT: I’ll overrule yours now, then.
“MR. PARKER: All right. We except.
“Q. That was larceny from the person, wasn’t it?
“A. I’m not sure it was larceny from the person.
“Q. You were originally charged with robbery?
“A. My car was involved—
“MR. PICKARD: I object, trying to prejudice the jury now. (sic)
“THE COURT: As I understand, the only question is was it larceny from the person.
“Q. Were you indicted in the case?
“A. Yes, sir, charges were brought against me.
“Q. Huh?
“MR. PARKER: Now, Judge, I’m going to object to this. I think I know what he’s going to try to do. This man has admitted a conviction for larceny and he’s going to try to bring in something that is completely—
“THE COURT: I have already — if this is the matter we have discussed—
“MR. PARKER: It is not that, but he is going to try to—
“THE COURT: All right, ladies and gentlemen, you will have to be excused. Retire to the jury room for a moment.
“(WHEREUPON, the jury was retired to the jury room and the following proceedings were had and done outside the presence and hearing of the jury:)
“THE COURT: All right, Mr. Pickard, what are you about to do that is illegal?
“MR. PICKARD: The case was pled (sic) guilty to, larceny from the person, you were indicted in that case, weren’t you?
“MR. PARKER: No that’s what I was objecting to. Now a man could be convicted and—
“THE COURT: Right. Right. I’m going to sustain the objection he could have been indicted for murder, guilty of robbery or something else. Is that all?”

After the last quoted portion of the proceeding out of the presence of the jury, the court and the attorneys continued the colloquy but on an entirely different subject. Nothing further was said, either in the presence of the jury or out of the presence of the jury, relative to the issue between the attorneys as to interrogation by one or both of them relative to the prior conviction of defendant.

It is urged by appellant that the court erred in not allowing defendant’s attorney, on direct examination of defendant, to show that he had been convicted of grand larceny and that such alleged error was compounded by the court’s allowing counsel for the State to show, or attempt to show, that he had been convicted or indicted for larceny from the person. The contention is made that, as the State can show, after defendant has taken the stand as a witness for himself, that he has been convicted of a crime involving moral turpitude, defendant should be allowed to show such fact in anticipation of the presentation of such evidence on cross-examination. In Garvin v. Robertson, 289 Ala. 60, 265 So.2d 602, a witness for plaintiff testified on direct examination that he had been convicted of robbery. Appellant relies heavily upon a statement in Garvin as follows:

“. . . Plaintiff probably anticipated that evidence of the conviction might later be offered and acted within her rights in adducing this evidence without waiting for its adduction by defendant.”

The point under consideration by the court at the time was whether after conviction had been shown on direct examination of the witness the adverse party would be allowed to show what defendant had robbed, and the court held: “It was not permissible for defendant to go into the details of such offense.”

We agree with appellant that the State was not correct in its contention on the trial that defendant had opened the door to such an extent that the State would be able to show details of the grand larceny conviction. This conclusion is in accordance with Garvin, but it does not necessarily follow that the language first quoted above from Garvin necessitates a conclusion that there was error in not allowing defendant to show on direct examination that he had been convicted of grand larceny. At any rate, we are convinced that the “tit for tat” between counsel did not in any way work to the injury of defendant. The jury knew no more after the colloquy than that which both parties seemed to want it to show, that defendant had been convicted of grand larceny. The answer of defendant, “I’m not sure it was larceny from the person.”, left the issue between the parties in mid-air. The entire matter is somewhat complicated from our standpoint in that it appears that counsel for both parties and the court had something in mind that is not fully revealed by the verdict,, something that defendant’s counsel said that State’s counsel was “going to try to do.” After the conference out of the presence of the jury, no further questions were asked the witness as to a conviction and no further point was made on the subject. We conclude that the affair as a whole was without harm to defendant and that no error prejudicial to him is to be found in any of the rulings of the court on the subject.

A third contention of appellant is that in six particulars counsel for the prosecution overstepped the bounds of legitimate argument to the prejudice of defendant. In some of the instances complained of, defendant’s objections were sustained and the argument excluded. In others, the court overruled defendant’s objections. As the same considerations will not likely be presented on another trial, we now forego a decision as to them.

For the error indicated, the judgment of the trial court should be reversed and the case remanded for another trial.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


author: MADDOX, Justice.

text:
    In re Warren Theophilus HILL v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2131.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    William J. Baxley, Atty. Gen. and Stephen M. Langham, Asst. Atty. Gen., for petitioner.
    None for respondent.
   MADDOX, Justice.

Petition of the State by its Atty. Gen. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hill v. State of Ala., 339 So.2d 1077.

WRIT DENIED.

HEFLIN, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


text:
    Judy Mae BARNETT v. STATE.
    8 Div. 727.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.
    Rehearing Denied Dec. 7, 1976.

      Joseph F. Gilliland, Russellville, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   L. S. MOORE, Supernumerary Circuit Judge.

The appellant, Judy Mae Barnett, was indicted in June, 1975. The indictment charged her with murder in the first degree. Upon the filing of the indictment bail was fixed by the circuit judge at $20,-000 on June 11, 1975. The appellant’s appearance bond was approved by the sheriff on June 14,1975, and she was released from the county jail. The district attorney filed a motion on June 26,1975, to raise the bond from $20,000 to $22,000. This motion was granted without a hearing and without any evidence being taken in support thereof. One of the grounds stated in said motion was:

“Following her release the Defendant returned to her home on East Marion Street, Russellville, Alabama, where she has exhibited a pattern of behavior evidencing a condition likely to cause harm to herself, family or neighbors.”

The appellant was again arrested and returned to jail.

The appellant filed on July 2, 1975, an instrument in which she states she is entitled to a special jury venire for the trial and that the court had not drawn a special venire. The appellant also filed on July 8, 1975, an instrument in which she alleges she is entitled to a special jury venire as required by T. 30, § 63, Code of Alabama; that the court has not drawn a special ve-nire; that the court had excused five jurors, named in the said instrument, without the defendant being present and that the defendant objected to the jury venire on grounds set out. The record does not disclose that any hearing was held or that any ruling was made on either of said instruments.

The appellant, on arraignment on July 1, 1975, entered pleas of not guilty, and not guilty by reason of self defense.

Trial was had and the jury returned the following verdict:

“We the Jury find the defendant guilty of murder in the second degree and fix her punishment at 20 years in the penitentiary.”

The trial court entered Judgment of Conviction and Sentence in accordance with the jury verdict. Hence this appeal.

A motion for a new trial was filed on August 15, 1975, for appellant by counsel that represented her on the trial. On August 27, 1975, said counsel filed a request with the court for permission to withdraw as her attorney. That request was granted and Hon. Joe Gilliland was appointed by the trial court to represent the appellant on this appeal and said attorney filed on August 15, 1975, a second motion for a new trial as follows:

“Comes now the attorney for the defendant, Judy Barnett, and asks the court for a new trial and states as his reason, the fact that the attorney for the defendant failed to even consider insanity of the defendant in the original trial.”

Said attorney filed a written statement with the trial judge in which he made a motion for an order directing that the defendant be sent to the state mental hospital for mental examination and report. In said statement appears the following:

“I have visited the defendant at the jail. It is my impression after visiting with the defendant that she is presently and has in times past suffered from a mental condition. I believe she may be suffering under such mental illness that should be reported to and considered by the court prior to having motion on rehearing. Defendant has a history of previous mental illness, having taken val-ium for a period of thirty years.”

Thereafter, the court entered an order on August 27, 1975, directing the Sheriff of Franklin County, Alabama, as follows:

“You are therefore ordered, as provide [sic] by Section 428 of Title 15 of the Code of Alabama, to transport the said Judy Barnett to Bryce Hospital, Tuscaloosa, Alabama, for observation, examination and evaluation.
“The Bruce [sic] Hospital is directed to report to the Court the results of its investigation specifically whether or not the defendant is considered competent to stand further proceedings on the charge against her.”

On the hearing of the motions for a new trial the appellant testified that she had headaches; that she had a hysterectomy operation when she was 18 or 19 years of age; that she had been taking Valium for her nerves for about eight years; that about six years ago she was in a car accident and two people were killed in it; that her head was injured in it; that she did not tell the attorneys that represented her at the trial about any of those things; that she got straightened back to her senses and that she had spells with her head when she could not think clear like she could at other times.

The appellant was carried to Bryce Hospital on or about September 3, 1975, and was returned to Franklin County Jail October 22, 1975. On October 16, 1975, Bryce Hospital authorities notified the trial judge in writing that Mrs. Judy Barnett “Has been committed .to Bryce Hospital until such time as he/she is ‘restored to his right mind.’ The Forensic Evaluation Board (Jerold S. Lower, Ph.D., Chairman) and the Superintendent are now of the opinion that the above named person is so restored and do, by this writing, inform the Judge * * * yy

The attorneys that represented the appellant in the trial of this cause, in their motion for permission to withdraw as her counsel, stated:

“Your petitioner avers that he talked to two sisters of the defendant, a brother, and a niece prior to the trial of the case. That your petitioner carefully observed their facial expressions, speech patterns, mannerisms and compared them with those of the defendant. There was a strong similarity between the characteristics of the defendant and her relatives. The strong characteristics which are so noticable [sic] in the defendant were just family pecularities [sic] and not manifestations of insanity. I talked to the defendant about the matter of a plea of not guilty by reason of insanity and she opposed to filing a plea of not guilty by reason of insanity.
“Upon consideration of the many issues which could be offered in evidence by way of rebuttal testimony on a plea of not guilty by reason of insanity we concluded that even though our client had some mannerisms which had offended many local persons in times gone by, that a plea of not guilty by reason of insanity was not proper in her case, and in good faith filed the plea of not guilty and not guilty by reason of self defense.”

The appellant on the hearing of the motion for a new trial did not deny or explain the statements made in said motion by the attorneys who represented her on the trial of the case.

When the State rested its case on the trial of this case in the trial court, the appellant moved to exclude the evidence on the ground that the State had not made out a prima facie case. That motion was denied and overruled by the trial judge.

The appellant, in her motion for a new trial, stated:

“Comes now the attorney for the defendant, Judy Barnett, and asks the court for a new trial and states as his reason, the fact that the attorney for the defendant failed to even consider insanity of the defendant in the original trial.”

There is some difficulty in trying to understand said motion on request, however, if it be given its strongest meaning it is a motion asking the trial judge to grant a new trial and permit a plea of not guilty by reason of insanity. Construed another way it is a motion asking the court to grant a new trial on the ground the attorneys that represented her on said trial were incompetent. Whatever construction may be reasonably giving it an adverse ruling by the trial court on that ground would be legally correct.

The attorneys representing the defendant on said trial were selected by her. She employed them and agreed to pay them a substantial fee. The record reveals they were diligent and vigorous in their efforts, and demonstrated intelligent legal ability. In her testimony on the hearing of the motion for a new trial she makes no assertion that they were not capable attorneys or that they did not efficiently represent her. She did make some effort to show some mental weakness, which fell far short of proving she was insane to such extent as would excuse for crime, or that she was insane at the time of the trial.

There is no evidence that she was treated at Bryce Hospital the brief time she stayed there. The report of the hospital does not, when considered in its context, show prior or present insanity. It does show she was not insane at the time of the report. The evidence taken on the trial does not show such insanity, nor does it present a case that could have raised in the mind of the trial judge a reasonable doubt of her sanity at the time of the trial, or at the time of the commission of the offense charged to her.

There is a total failure to show that a new trial should be granted because her attorneys were incompetent, or that they failed to adequately represent her.

Considering said motion as a delayed effort to enter a plea of not guilty by reason of insanity, it must be remembered it was not made at the arraignment. It was not made at any time during the trial. It comes for the first time after trial, conviction and final judgment. This is a species of a game of chance the law should not permit, and the law does not permit it.

In Morrell v. State, 136 Ala. 44, 34 So. 208, the facts were stated as follows:

“When the defendant was arraigned for trial she pleaded not guilty, and the cause was set for trial for a succeeding day of the term of the court. When the cause was called for trial on the day set therefor, the defendant, through her attorney, asked leave of the court to withdraw the plea of not guilty and put in the plea of not guilty by reason of insanity. The state objected upon the ground that the plea of not guilty on the ground of insanity came too late. The court sustained the objection, and refused to allow the defendant to withdraw her plea of not guilty, and to this ruling the defendant duly excepted.
“The evidence introduced for the state tended to show that the deceased was the husband of the defendant; that upon the deceased going home one evening he found defendant administering medicine to her sick baby; that the defendant did not fix his supper; that he became enraged, and told the defendant to make haste, and get through giving the medicine to the baby, as he was going to kill her, and then kill himself; that he loaded the gun in the presence of the defendant, and sat it down by him; that he then laid down upon a pallet upon the floor, and continued to abuse the defendant; that after awhile he fell asleep, and when the defendant had finished with the baby she took the gun which he had loaded, and stepping a few feet.from the deceased, she leveled the gun at his head and fired, killing him instantly.”

The opinion then stated:

“Section 4939 of the Code requires that ‘when the defense of insanity is set up in any criminal prosecution it must be by special plea, interposed at the time of arraignment,’ etc. Defendant’s absolute right to defend on the ground of insanity was lost by her failure to plea to that end when she was arraigned, and her right to thereafter interpose that defense was subject to the trial court’s discretion. If it be conceded that the court’s action in that regard can properly be reviewed, the revision cannot extend beyond the ascertainment of whether there was an abuse of discretion; and that there was such abuse in the present case does not appear.”

In Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, on appeal from the Supreme Court of Alabama, and decided November 13, 1961, Mr. Justice Douglas in expressing the unanimous view of the court said:

“Arraignment under Alabama law is a critical stage in a criminal proceeding. It is then that the defense of insanity must be pleaded (15 Ala.Code, § 423), or the opportunity is lost. Morrell v. State, 136 Ala. 44, 34 So. 208. Thereafter that plea may not be made except in the discretion of the trial judge, and his refusal to accept it is ‘not revisable’ on appeal. Rohn v. State, 186 Ala. 5, 8, 65 So. 42. Cf. Garrett v. State, 248 Ala. 612, 614-615, 29 So.2d 8, 9. Pleas in abatement must also be made at the time of arraignment. 15 Ala.Code § 279. It is then that motions to quash based on systematic exclusion of one race from grand juries (Reeves v. State, 264 Ala. 476, 88 So.2d 561), or on the ground that the grand jury was otherwise improperly drawn (Whitehead v. State, 206 Ala. 288, 90 So. 351), must be made.
“Whatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes. Cf. Canizio v. New York, 327 U.S. 82, 85, 86, 66 S.Ct. 452, 90 L.Ed. 545.”

We now consider the appellant’s motion to exclude the evidence.

The State’s evidence clearly shows the appellant killed the deceased by shooting him with a gun; that he died as a result thereof; that she had made repeated threats to do so. There was substantial evidence of the guilt at the time said motion was made. A jury question was presented. The motion was correctly overruled. Stephens v. Town of Blountsville, 37 Ala.App. 219, 66 So.2d 196.

The defendant’s requested written charges, Nos. 1 through 19 were refused by the trial court. Those charges fall in two classes: (1) Incorrect statements of the law, or (2) they were covered by the oral charge of the court to the jury. Therefore, errors are not shown by their refusal.

The appellant’s objection to being put to trial without a special venire as required by T. 30, § 63, is without merit. In Scott v. State, Ala.Cr.App., 331 So.2d 759, (rehearing denied March 9, 1976) the Court said [quoting from Fisher v. State, 57 Ala.App. 310, 328 So.2d 311]:

“The appellant challenges the trial court’s ruling that capital felonies are now to be considered non-capital felonies since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Appellant’s challenge of the venire is based upon the recent ruling of the Alabama Supreme Court in Ex parte Bynum, Jr., 294 Ala. 78, 312 So.2d 52 (1975). There the Court held that ‘capital offenses’ still exist in Alabama stating, ‘ . . . The only effect of Furman was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment.’
“Contrary to the broad language employed by the Supreme Court in Bynum, we are of the opinion that the Court was addressing itself solely to the question of bail. The purpose for a special venire in ‘capital cases’ was to give a defendant, on trial for his life, an additional safeguard not given to those where only their liberty was at stake. At the time Act No. 532, supra, and Title 30, § 63, Code of Alabama 1940, were enacted, the only distinction between ‘capital’ and ‘non-capital’ cases was the possible imposition of the death penalty. Since the imposition of the death penalty has been suspended, there is no rational justification for a special venire in a case formerly classified as ‘capital’ where the maximum punishment is now the same as in a ‘non-capital’ ease.
“Should the legislature ever enact a death penalty statute which meets all the constitutional tests for validity, then such special venire statutes would again become applicable, in our opinion. We do not believe the Alabama Supreme Court intended that its reasoning in the Bynum decision should be extended to require a special venire in cases where the death penalty cannot be imposed.”

In Scott, supra, the opinion continues:

“We think our pronouncements in Fisher, supra, have application to the instant ruling of the court with respect to excu-sáis; also, sustain our holding in Usrey [Usrey v. State, 54 Ala.App. 448, 309 So.2d 485] and Dean [Dean v. State, 54 Ala.App. 270, 307 So.2d 77].”

The appellant in the case at bar was indicted, tried, convicted and sentenced before the effective date of Act No. 213, Acts of Alabama, 1975, Vol. 1, page 701, approved September 9, 1975, which provides for the death penalty in certain enumerated cases. Furthermore, the indictment did not contain averments necessary under the provisions of said Act had it been in effect.

Therefore, a special venire was not required and jurors could legally be excused without the presence of the defendant-appellant.

The court has searched the record in accordance with our statutory duty and found no reversible errors therein. Therefore, the judgment below is affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge L. S. MOORE, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur, except CATES, P. J.-, who was not sitting.


author: BOOKOUT, Judge.

text:
    Benny Ray FIELDS, alias v. STATE.
    1 Div. 749.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

On guilty pleas, appellant was sentenced to five concurrent terms of twenty years imprisonment on five robbery indictments.

Each judgment entry makes the finding that:

“ . . (1) the defendant understands his constitutional rights and the nature of the crime charged in this indictment, and the consequences of his guilty plea, and (2) the defendant understandingly and voluntarily waives his constitutional rights and pleads guilty.”

There is no colloquy between the trial judge and the appellant anywhere in the record. There is an Ireland form (Ireland v. State, 47 Ala.App. 65, 250 So.2d 602) executed by the appellant and witnessed by his attorney.

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) requires that the record must clearly show that the appellant intelligently and voluntarily entered the guilty plea and that he understood certain rights, enumerated therein.

While a colloquy between the trial court and the appellant is definitely preferable, Twyman v. State, 293 Ala. 75, 300 So.2d 124 (1974) allows the trial court to accept a guilty plea without a colloquy provided certain standards are met. In Twyman, our Supreme Court found that:

“The trial judge, the defendant, and defendant’s attorney all attest over their respective signatures that the matters and things stated in ‘Court’s Exhibit A’ were read by defendant or read to defendant. Defendant acknowledges that this was done and that he understands those matters and things.
. . There is no rule of law that requires or even suggests that it must be presumed that the trial judge, the defendant, defendant’s attorney, or the judgment entry do not speak the truth. The judgment is not contradicted by the instant record . . . .”

In Starks v. State, 56 Ala.App. 552, 323 So.2d 735 (1975) this Court upheld the acceptance of a guilty plea without a full colloquy, transcribed by the court reporter and entered in the record, where: (1) an Ireland form had been executed by the defendant and attested by his attorney, the circuit judge and the circuit clerk, (2) the judgment entry recited that before accepting the guilty plea, the trial court ascertained that the plea was intelligently and voluntarily made and that the appellant understood his Boykin rights which the judgment entry specifically enumerated, and (3) a short court reporter’s transcript showed that the trial court asked the appellant if he had read the Ireland form or had it read to him, and the defendant answered in the affirmative.

In Bland v. State, 56 Ala.App. 547, 323 So.2d 730 (1975) this Court affirmed the conviction of Bland on a guilty plea where there was no colloquy at all recited in the record. However, in Bland, a complete Ireland form had been executed by the defendant and attested by his attorney and the circuit judge acknowledging that the defendant understood the rights enumerated therein and voluntarily entered a plea of guilty.

Likewise, in Bland, the judgment entry in the record recited that before the trial judge accepted the guilty plea, he ascertained that the plea was, “intelligently and voluntarily made and also that the defendant understood (1) the privilege against self-incrimination, (2) the right to a trial by jury, (3) the right to be confronted by his accusers, (4) that he fully understood what the plea connoted, including the nature of the charge and acts sufficient to constitute the offense, and (5) the consequences of the plea, including the range of the sentence, and being satisfied that the foregoing was fully and intelligently understood by the defendant and that his plea of guilty was freely and voluntarily made, the Court proceeded with the hearing.”

There, we held that a plea of guilty may be accepted as intelligently and voluntarily entered where a complete Ireland form was executed and signed by a defendant and acknowledged by the signatures of the defense counsel and the circuit judge, provided there is other evidence in the record supporting that fact. That showing may be made by a recitation in the judgment entry and in such case, a verbatim colloquy recorded by a court reporter is not required. Twyman, supra.

In the instant case, the judgment entries are not as complete as those in Bland and Starks, supra, in that there is no enumeration of the specific Boykin rights. The issue now before us is whether the “bob-tailed” recitation in the judgment entries, quoted at the beginning of this opinion, are sufficient, when coupled with an Ireland form, to support a guilty plea pursuant to Boykin and Twyman. While we express serious doubt, we nevertheless are constrained to hold that the abbreviated recitation in the instant judgment entries is in compliance with the requirements of Twy-man. But barely so. This, because Twy-man does not specially require that the judgment entry recite a detailed enumeration of the rights understood and waived by a defendant.

While we affirm, in the instant eases, this opinion should not be construed by the trial courts as leave to continually whittle away at the requirements of Boykin as construed in Twyman. We believe the judgment entry should be at least as detailed as those set out in Bland and Starks, supra. In this regard, we call to the attention of the trial court the admonition of Chief Justice Hef-lin, dissenting in Twyman, concerning the use of written forms in connection with accepting guilty pleas:

“. . . There is a danger that the use of such can become so commonplace and perfunctory that they fail to serve the purpose for which they are intended. Steps should be taken to guard against such use. I am of the opinion that when written instruments are used it is incumbent upon the trial court to ascertain that the defendant has read said instruments, or has had said instruments read to him, and that he fully understands that he has executed such a document. I think it is further incumbent upon the judge to ascertain whether or not the defendant can read or write. In my opinion, the colloquy to ascertain all of this should appear in the record of the case in order that an appellate court can be convinced that there was not just a perfunctory use of written documents.”

AFFIRMED.

All the Judges concur.


text:
    Jessie W. SOWELLS, alias v. STATE.
    3 Div. 451.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1976.
    Emily B. Gassenheimer, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: fifteen years.

The appellant, the appellant’s brother, and the deceased, Oscar Bill Wright, were at the appellant’s home around noon on Saturday, July 19, 1975. They had been drinking since the previous evening as was their custom on weekends. The deceased died as a result of a shotgun blast. The appellant, after waiving the appropriate Miranda warning, gave and signed the following confession:

“. . . ‘We was shooting craps, so he picked up $10.00 of my money one time. The lady that I live with don’t allow any gambling there, so she went to town to buy some grocery (sic). So we started shooting craps. So when he picked up my $10.00 once I told him, “Bill, don’t do that anymore.” I told him, “Don’t pick up my money no damn more.” He said that as long as I put money down he was going to pick it up; and I said that “if you do, I’m going to kill you.” I went in my bedroom and I got my gun and loaded it. And as I started back out, my brother stopped me. So I put my gun back, and I shot some more dice; and he did the same thing all over again, by picking up my $10.00. He started out the side door, and I said, “Bill, I am going to kill you.” My brother jumped in front of me, and I said, “Move, Thomas,” and he fell back. Then Bill said, “He ain’t going to shoot me;” and as he started out the back door, I shot him. After I shot him, he came back in the house and sat down by the kitchen table and he said, “Jessie, I didn’t think that you would do this to me.” And I said, “Bill, I am sorry.” Then I called the police.’ ”

The appellant’s brother, Thomas James Sowells, testified that the deceased told him that the fatal shot was fired by the appellant. Fred Gamble, a neighbor, testified that he was at the appellant’s home at the time of the shooting. Gamble said that the appellant and the deceased were gambling and that the deceased appeared to be winning. Gamble also stated that the appellant alleged immediately prior to the shooting that the deceased had not given proper change for a ten dollar bill.

I

From a review of the record, we hold that the State made out a prima facie case for second degree murder. The appellant contends that the State failed to prove the essential elements of malice. This contention is without merit.

The intentional killing with a deadly weapon raises a presumption of malice unless the circumstances of the killing disprove malice. McDowell v. State, 238 Ala. 482, 191 So. 894 (1939). In the present case, the circumstances of the killing do not disprove malice. The jury could reasonably conclude from the appellant’s confession and from the testimony of Fred Gamble that the appellant maliciously shot the deceased as a result of an argument over the proceeds of a wager.

The appellant also appears to contend that he was too drunk to exhibit the element of malice. Ivory v. State, 237 Ala. 344, 186 So. 460 (1939). The problem of evaluation of alcoholic influence was discussed at length in Scott v. State, Ala. Cr.App., 333 So.2d 619 (1976). Whether the degree of intoxication is so excessive as to paralyze the mental faculties and render the appellant incapable of performing or entertaining the design to take life is a question for the jury. We hold that the jury finding regarding the element of malice was not against the weight of the evidence.

II

A motion to suppress the confession was filed before trial. The trial court waited until trial and then held a hearing on the motion out of the jury’s presence. The appellant contends that the denial of the motion was erroneous. The appellant’s primary argument is that he was too drunk to make a voluntary, knowing and rational confession of his own free will.

The interrogating officer testified that although the appellant appeared to have been drinking that he was not drunk. In addition, Fred Gamble testified that the appellant did not appear to be drunk on the day in question. We quote from Scott, supra:

“Intoxication which would affect the vol-untariness of a statement is primarily a question of fact which first addresses itself to the trial judge to determine admissibility and later to be submitted to the jury for whatever consideration it may deem appropriate. There was ample evidence, even though conflicting, from which the trial judge could conclude that the appellant was not intoxicated to the extent of mania. . . . ”

The trial court and the jury’s judgment were not against the weight of the evidence.

Ill

On December 15, 1975, the appellant moved for discovery and inspection and production of evidence. The motion was denied, and the trial began on December 15, 1975, at which time the appellant moved for a continuance which was also denied. The appellant contends that his right to confront witnesses under the Sixth Amendment and his right to due process under the Fourteenth Amendment were violated by the denial of the two motions. He cites Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) for the above proposition.

The appellant contends that he should have been allowed to inspect the murder weapon to see if it would fire; that he should have been told that the deceased’s father would be called as a witness to identify a photograph of the deceased;, that he should have been informed of the State Toxicologist’s likely testimony concerning the location and type of gunshot wound; and that he should have been given a statement made by his brother, Thomas Sowells.

At trial, the appellant testified, along with a police officer, that the shotgun would fire. In addition, the testimony of the deceased’s father, the testimony of the State Toxicologist, and the written statement of Thomas Sowells were not favorable to the appellant and did not tend in any way to exculpate the appellant. In Giles, supra, the prosecution suppressed evidence favorable to the defendants and used perjured testimony against the defendants. In Brady, supra, the prosecution suppressed extra-judicial statements made by the defendant’s confederate which were favorable to the defendant. Obviously Brady and Giles are inapplicable to the present case.

The granting of the appellant’s motion was within the sound discretion of the trial court. Daniels v. State, 49 Ala. App. 654, 275 So.2d 169 (1973). We find that the trial court did not abuse its discretion by denying the appellant’s motion for discovery. This is especially true in view of the fact that the appellant waited until the day of the trial to make the motion. All of the information sought by the appellant was made available at trial.

The denial or granting of a motion for a continuance rests in the sound discretion of the trial court, and the denial is usually not reviewable on appeal except for gross abuse. Gandy v. State, 49 Ala.App. 123, 269 So.2d 141 (1972). We find no gross abuse in this instance. We fail to see how the appellant was prejudiced by the denial of that motion.

AFFIRMED.

All the Judges concur.