author: TYSON, Presiding Judge. BOWEN, Judge. TYSON, Judge,

text:
    Charles William ESTES v. STATE.
    1 Div. 769.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    On Rehearing Jan. 24, 1978.
    Rehearing Denied Feb. 21, 1978.

      James D. Sullivan, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State; James S. Ward, Asst. Atty. Gen., on application for rehearing.
   TYSON, Presiding Judge.

Charles William Estes was indicted for the first degree murder of one Felicia Thompson by running a motor vehicle over, or into, the said Felicia Thompson, resulting in her death. The jury’s verdict was guilty of murder in the second degree and punishment was set at fifteen years imprisonment. The trial court set sentence accordingly.

On the evening of September 13, 1975, at approximately 7:00 o’clock, Charles William Estes struck and killed Felicia Thompson, a five year old girl, while driving his automobile. A woman who was present when the accident occurred and the police officers who investigated the accident testified that Estes was intoxicated when he ran over the child. A Photoelectric Intoximeter Test administered to Estes some two hours after the accident revealed the alcoholic content of his blood to be 0.27 percent.

I

The dispositive issue on this appeal is whether the State laid a proper predicate for admitting into evidence the results of the Photoelectric Intoximeter Test. We find the proper predicate was not laid and we reverse.

Title 36, Section 155(b), Code of Alabama 1940 (Recompiled 1958, Supplement 1973), the statute in effect at the time of the accident and the trial, sets forth two requirements necessary to establish the validity and admissibility of a chemical analysis test under the Alabama Chemical Test for Intoxication Act. The test must be performed (1) “by an individual possessing a valid permit issued by the state board of health for this purpose” and (2) “according to methods approved by the state board of health.” It is mandatory that these two requirements be met before results of the test are admissible in a criminal case. Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247, cert. denied 293 Ala. 768, 304 So.2d 248.

In the case at bar the appellant’s attorney objected to the introduction at trial of the Photoelectric Intoximeter Test, saying that the proper predicate had not been laid before the introduction into evidence of the results (R. pp. 126-127). The State then proceeded to show that insofar as the State Board of Health was concerned the methods and regulations duly adopted by said Board were presented and admitted based upon a certification from Dr. Ira Myers, State Health Officer. This was proper. Patton v. City of Decatur, Ala., 337 So.2d 321; Weaver v. City of Birmingham, Ala.Cr. App., 340 So.2d 99.

A proper predicate, however, also requires that the officer administering the Photoelectric Intoximeter Test testify that he, too, has been duly authorized and licensed to administer such test, and also that the machine on which such test is to be given has been properly examined and found to be in good working order. Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247, cert. denied 293 Ala. 768, 304 So.2d 248; Weaver v. City of Birmingham, Ala.Cr.App., 340 So.2d 99; Pugh v. State, Ala.Cr.App., 343 So.2d 793, cert. denied, Ex parte State ex rel. Attorney General, Ala., 343 So.2d 795; Patton v. City of Decatur, supra.

The problem which confronts us and necessitates a reversal of this case is the fact that, while the officer who administered the test, Sergeant Carroll R. Mason, did testify that he had a license from the State Board of Health to administer such test and had a check list which he followed in administering the test in the case at bar, and that the appellant had agreed to take such test, nowhere in the record does it appear that the City of Mobile had adopted by ordinance that the Photoelectric Intoximeter Test is the method to be used by the City in such cases, nor is there any reference to an ordinance which may have been adopted for this purpose. In failing to meet this requirement in this case, reversible error results. Myrick v. City of Montgomery, supra; Weaver v. City of Birmingham, supra; Pugh v. State, supra.

A careful review of the record, including Sergeant Mason’s testimony, shows that the predicate in the case at bar is deficient for the reasons set forth above (R. pp. 127-140).

It is mandatory that the proponent offering the results of the chemical test establish that the particular test method used has been officially approved and adopted by officials of the law enforcement agency which administered the test in question. Authorities herein cited.

For the error shown, we reverse and remand this cause. In light of our decision as herein outlined we pretermit discussion of other issues raised in this appeal. We note for the information of the court below, however, the decision of the Supreme Court of Alabama in Langford v. State, Ala., 354 So.2d 313, 1977.

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

BOWEN, Judge.

The original judgment entered by this court on December 6, 1977, is set aside and the following becomes the opinion of this court. It is the opinion of the majority of the court that the admission into evidence of the results of the Photoelectric Intoxime-ter Test is not grounds for reversal of the judgment of the trial court.

The appellant’s conviction was reversed because the state allegedly failed to lay a proper predicate for the introduction of the PEI test.

“. . . nowhere in the record does it appear that the City of Mobile had adopted by ordinance that the Photoelectric Intoximeter Test is the method to be used by the City in such cases, nor is there any reference to an ordinance which may have been adopted for this purpose. In failing to meet this requirement in this case, reversible error results. Myrick v. City of Montgomery, supra; Weaver v. City of Birmingham, supra; Pugh v. State, supra.” (Emphasis added)

Estes v. State, p. 1052.

However a city ordinance is not an essential element of a proper predicate for the introduction of the PEI test as a following paragraph in that same opinion makes clear.

“It is mandatory that the proponent offering the results of the chemical test establish that the particular test method used has been officially approved and adopted by officials of the law enforcement agency which administered the test in question. Authorities herein cited.” Estes, supra, p. 1052. (Emphasis added)

This is a correct statement of the law.

Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247, cert. denied, 293 Ala. 768, 304 So.2d 248 (1974), was the first case in Alabama to state the necessary predicate for the introduction of the results of a PEI test under the Alabama Chemical Test for Intoxication Act, No. 699 of September 11, 1969, codified as Title 36, §§ 154-158, Code of Alabama 1940, Recompiled 1958, • 1973 Cumulative Pocket Part now §§ 32-5-190— 194, Code of Alabama 1975.

“Since this section making the analysis admissible is contrary to Common Law it must, particularly in a criminal case, be strictly construed. Hence, it was incumbent on the City to show:
(1) which test it had designated for its approved officers to administer (§ 1(a) of said Act, 3rd sent.); and
(2) that the test and the operator have been approved as required by § 2(b).” Myrick, 54 Ala.App. at 6, 304 So.2d at 248.

Myrick contains no mention of any city ordinance and would be in obvious conflict with “§ 1(a) of said Act, 3rd sent.” if it did. That sentence states:

“The law-enforcement agency by which such officer (who administers the test) is employed shall designate which of the aforesaid tests shall be administered.”

The Act authorizing the introduction of the test results does not require the State or City (in a municipal prosecution) to prove which test the city had adopted by reference to a city ordinance. The Act clearly and specifically states that it is the law enforcement agency, not the city, which designates which test is to be used.

Thus that portion of our original opinion requiring a city ordinance as an essential element of the predicate for the admission of the results of a PEI test is at best misleading; at worst, an incorrect statement of the law. For these same reasons the same statement in Weaver v. City of Birmingham, Ala.Cr.App., 340 So.2d 99 (1976), is also incorrect.

Since a city ordinance is not required to demonstrate or prove which test the law enforcement agency designated for use, such information could be supplied by any officer who would be in a position to know which test was authorized, e. g. among others, the officer who administered the test or a superior officer who authorized or designated the test to be administered. This was done in Patton v. City of Decatur, Ala.Cr.App., 337 So.2d 173, 176, reversed on the grounds that the state failed to introduce a copy of the regulations approved by the State Board of Health for the administration of the Photoelectric Intoximeter Test, Ala., 337 So.2d 177 (1976).

Admittedly there was no testimony specifically stating which test the Mobile Police Department had authorized. Yet a reading of the testimony of Sergeant Carroll R. Mason, the test operator, can leave no doubt as to which test was, in fact, designated and authorized. In this regard, Sergeant Mason testified that he had been operating the PEI test “ever since they first started; its been I’d say eight or ten years;” that in that time he had given well over a thousand tests; that he was sent to the Police Academy in Montgomery for training; that he was licensed by the State Board of Health; and that he followed a check list and the rules of the State Board of Health in administering the test. In our opinion this was a sufficient compliance with the Alabama Chemical Test for Intoxication Act to constitute a proper, if not formal, predicate for the admission of the test results.

However even if the test results were improperly admitted because of the lack of a formal predicate, the conviction is still due to be affirmed. The admission of evidence apparently illegal may be rendered prejudicially innocuous by subsequent legal testimony to the same effect or from which the same facts can be inferred. Yelton v. State, 294 Ala. 340, 317 So.2d 331 (1974); 7 Alabama Digest, Criminal Law ©=>1169.-2(1). The ultimate fact to be inferred here is intoxication or drunkenness. Before the results of the PEI test were admitted there was a staggering and overwhelming amount of evidence that the appellant was drunk and highly intoxicated. It is not error to allow facts to be shown over objection when they have already been proved without objection. Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968). Though Patton v. City of Decatur, Ala., 337 So.2d 321 at 324 (1976), held that the results of a PEI test are prejudicial, it is not binding in this instance because in Patton there was no independent proof of intoxication apart from the test itself.

In Holloway v. City of Birmingham, 56 Ala.App. 545, 323 So.2d 726 (1975), this court refused to even consider the assertion of the defendant that the city failed to lay a proper predicate prior to the admission of an intoximeter test because the court was firmly of the opinion that the defendant’s intoxicated condition at the time of the accident was fully proved by the testimony of two police officers who observed the accident and talked to the defendant immediately afterward. In Weaver v. City of Birmingham, Ala.Cr.App., 340 So.2d 99, 102 (1976), this court rejected this position under the particular facts because the evidence of intoxication was not as strong. However in this case the evidence of intoxication is so extensive and comprehensive that any other conclusion requires a forced and strained construction, if not utter disregard of the facts. Moreover, the summary rejection of the reasoning exercised in Holloway renders that case a legal anomaly and raises serious questions about the absence of continuity in the application of legal doctrine by this court.

The facts belie the assertion that the PEI test results were prejudicial to the appellant. Mr. and Mrs. Patterson testified that they closely observed the appellant driving his automobile immediately prior to the homicide. According to Mr. Patterson, the appellant’s automobile was swerving all over the road and ran off both the left and right sides of the road. The appellant ran at least ten or twelve cars off the road and made them go off the other side of the road. Mr. Patterson stated that he could “distinguish very well” that “something was wrong” and it looked like the car was “going to get in a wreck or something”. The appellant’s driving was so bad that the Pattersons wrote down his license tag number so that they could notify the police.

Mrs. Elizabeth Baldwin testified that she was within a foot of Felicia Thompson when the child was run over and crushed by the appellant’s automobile. She observed the appellant immediately after he got out of his car following the homicide and talked with him. She stated that she saw a drunk man

“ — that was drunker than anybody I’d ever seen before in my life. He was in a total stupor; he didn’t even know that he had killed the child. His eyes was not in focus; he was just completely blank. He said, ‘What happened?’ He didn’t know what happened.”

Officer Ernest Busby of the Mobile Police Department testified that when he arrived at the scene of the accident some ten minutes after receiving the accident report, he talked with the appellant. Officer Busby stated that the appellant’s “speech was slurred; his eyes were real bloodshot; and he had a strong smell of alcohol about his person”. Based upon his experience as a police officer and having seen a “couple of hundred” intoxicated persons, Officer Busby stated that the appellant was intoxicated. In conducting an inventory of the appellant’s automobile at the scene of the homicide, Officer Busby found a full pint of whiskey under the front seat and an almost empty bottle on the front seat.

Reserve Officer Norman V. Rickies of the Mobile Police Department was Officer Busby’s partner. He testified that the appellant required physical support and could not stand up; that the appellant was staggering and had to be steadied; that the appellant first dropped his wallet and then could only find his driver’s license after several “look-throughs” of the wallet. When Officer Rickies asked the appellant for his address, the appellant gave him two or three different addresses before giving the correct one. The appellant was slow in answering questions and was in a stupor: “He didn’t act like he could grasp what was going on.” Officer Rickies testified that the appellant looked like he was drunk.

Officer David R. Harvard of the Mobile Police Department arrived at the scene and transported the appellant to the Mobile Police Department. Officer Harvard testified that the appellant staggered and that based upon his experience and past observation of intoxicated persons, the appellant “was one of the drunkest drivers I’ve ever seen”. Harvard stated that although he may have handled some persons drunker than the appellant, “none were driving a vehicle I don’t believe”. Between the time Officer Harvard first observed the appellant until he was placed in the docket room at Mobile City Police Headquarters, the appellant

“was glassy eyed; there was a strong odor of alcohol about his person; his speech was slurred; he would make partially incoherent statements; he would begin a sentence and cut it off; very unsteady on his feet, Officer Rickies and I both had to help him or assist him to my patrol unit and place him in the back seat; he was very unsteady on his feet; after he got in the police car he slouched down in the seat several times on the way to town — I thought that he would go to sleep, I was watching him in my rear view mirror, and he would nod his head like he was dozing, and he would doze off.”

The appellant told Officer Harvard that he had had a few drinks but wasn’t drunk.

Sergeant Robert Moore of the Mobile Police Department was also at the scene and testified that the appellant was drunk. Approximately two hours after the homicide, the appellant was still thick tongued and had a strong odor of alcohol about his person.

Officer Mason who administered the PEI test to the appellant testified that the appellant seemed intoxicated and:

“. . . kept asking be how the little girl was, and he told me he was perfectly willing to take the test and he knew he was drunk, and that was about the limit of the conversation.”

All of this testimony, except that of Mr. and Mrs. Patterson which was introduced by the state on rebuttal, was given before the results of the PEI test were admitted. In our opinion the abundance of this evidence that the appellant was drunk and highly intoxicated renders the results of the PEI test innocuous and inoffensive. Any legal presumption of intoxication arising from the test was insignificant in view of the testimony by the actual observers of the appellant’s condition.

The PEI test was performed in the proper manner by a qualified operator. There is no issue of operator technique or faulty mechanical condition of any machine. The state proved that both the test and operator were approved by the State Board of Health and introduced a duly certified and authenticated copy of the methods and regulations adopted and approved by the State Board of Health governing the performance of the test. Under § 32-5-193(b) this was sufficient to validate the test. It should be sufficient to authorize its introduction into evidence. Even if not, the admission of the test results should not constitute grounds for reversal in view of the testimony presented.

The result and rule advocated by the original opinion in this cause reduces any function of appellate review to a computer formula of rigid and mechanical interpretation. It reveals a preoccupation with form instead of substance allowing the scales of justice to rust and collect dust. For these reasons we withdraw our concurrences in the original opinion and vote to affirm the judgment of the trial court.

APPLICATION GRANTED; Judgment of reversal set aside. Original opinion becomes a dissenting opinion.

AFFIRMED.

HARRIS, P. J., and DeCARLO and BOOKOUT, JJ., concur.

TYSON, J., dissents.

TYSON, Judge,

dissenting.

I adhere to the views as expressed by me in behalf of a then majority of this Court on original deliverance on December 6, 1977, in this cause.

I

Because a majority of this Court has now declined to follow the clear mandate of Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247, cert. denied 293 Ala. 768, 304 So.2d 248, as further defined in subsequent opinions such as Patton v. City of Decatur, Ala., 337 So.2d 321; Weaver v. City of Birmingham, Ala.Cr.App., 340 So.2d 99; and Pugh v. State, Ala.Cr.App., 343 So.2d 793, cert. denied Ex parte State ex rel. Attorney General, Ala., 343 So.2d 795, I feel required to also note the following:

“. . . [I]t was incumbent on the City [State] to show:
“(1) which test it had designated for its approved officers to administer (§ 1(a) of said Act, 3rd sent.); and
“(2) that the test and the operator have been approved as required by § 2(b).”

The record in this cause wholly fails to set forth any language by the officer administering the test, Sgt. Carroll R. Mason, or other city official, that the Photoelectric Intoximeter had been examined and found to be in good working order. No date is given for any examination of the machine. Nor does the predicate in this case indicate an adoption by the City of Mobile of the Photoelectric Intoximeter as the method to be used by the city for this purpose.

The lesson in Myrick v. City of Montgomery, supra, indicates that a city ordinance is the proper method for this purpose. This was specifically noted by this Court in Weaver v. City of Birmingham, supra.

Even though, as here, there be other evidence of the appellant’s alleged intoxicated condition, a failure to lay a proper predicate, such as in the case at bar has heretofore required reversal of such a case. Weaver v. City of Birmingham, supra; Patton v. City of Decatur, supra; and Pugh v. State, supra.

The failure of the majority of this Court to recognize the necessity of protecting individual rights when approving the use of test results of a machine is disturbing. The burden of proof is always on the prosecution. This necessarily requires that a proper predicate be laid in presenting the evidence for the prosecution.

The laying of a correct legal predicate before the admission of certain types of evidence is no stranger to the criminal law. Clearly, settled law requires the presentment of a proper voluntariness predicate, Duncan v. State, 278 Ala. 145, 176 So.2d 840, as well as a “Miranda ” predicate, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, before a defendant’s alleged confession may be admitted into evidence.

Similarly, close scrutiny is required of the details constituting the information upon which a search warrant is issued, Aguilar v. Tkxas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, before the fruits of such search may be admitted.

Likewise, a state trial court, before the acceptance of a guilty plea, must make a proper inquiry as to the voluntariness of such plea under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

Surely, where the results of a machine, fed by human input, are concerned, no less a constitutional safeguard should be required.

Hopefully, we have not regressed to trial by computer.

In this era of processing or recording human behavior or conduct through mechanical, electronic, or other such devices, certain basic protections must be maintained. This is the clear lesson of the past decisions of this Court and the Supreme Court of Alabama. Such, in my judgment, has not been here observed, nor precedent followed.

II

It is equally disturbing to me that a majority of my brothers would now vote to affirm this case in light of the opinion of the Supreme Court of Alabama in Langford v. State, 354 So.2d 313, 1977, rehearing overruled Jan. 6, 1978.

Estes, the appellant, was indicted for the first degree murder of one Felicia Thompson. The evidence offered on trial was intended to establish conduct “evidencing a depraved mind regardless of human life.” See Title 14, Section 314, Code of Alabama 1940.

The jury was charged under the evidence presented and the aforesaid statute. While the verdict of the jury was guilty of murder in the second degree, I am of the opinion that reversible error also resulted.

      . An explanation for the misinterpretation of the actual holding in Myrick may result from the use of the word “City” in that opinion. In Myrick the accused was tried and convicted under a city ordinance. As used in that opinion, “City” refers to the prosecuting authority as distinguished from the municipal entity.

      . “We deem it also appropriate to here point out that there is no proof in this record as to which ‘test’ the City of Birmingham has adopted as its method to be used in such cases, nor is there any reference to a Birmingham City Ordinance which may have been adopted for such test. Myrick v. Montgomery, supra, makes this an absolute requirement.” Weaver, supra, at 340 So.2d 101.

      . Section 32-5-193(b) reads:
      “(b) Chemical analyses of the person’s blood, urine or breath to be considered valid under the provisions of this section shall have been performed according to methods approved by the state board of health and by an individual possessing a valid permit issued by the state board of health for this purpose. The state board of health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, and to issue permits which shall be subject to termination or revocation at the discretion of the state board of health.”

      . Without a proper city ordinance, designating a particular device or machine as the proper method to be used under Title 36, Section 155, Code of Alabama 1940, as amended 1969, how is any individual, be he or she layman, lawyer, or judge, to know which standard or method is to be used in evaluating such person’s conduct or condition?


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    In re Charles William ESTES v. STATE of Alabama. Ex parte Charles William Estes.
    77-370.
    Supreme Court of Alabama.
    April 21, 1978.

      James D. Sullivan, Mobile, for petitioner.
    No brief for the State.
   BLOODWORTH, Justice.

The petition for writ of certiorari is denied because the admission of the ordinance is not a prerequisite to admission of the results of the PEI test. In denying this writ, we point out that we do not necessarily agree with the Court of Criminal Appeals’ holding on “harmless error.” Nor, do we agree that in Patton v. City of Decatur, 337 So.2d 321 (Ala.1976) there was no other evidence of intoxication.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Jerry EVERHART v. STATE.
    3 Div. 820.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    Rehearing Denied April 4, 1978.

      Rick Williams, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and L. B. Kendrick, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: four years imprisonment.

Appellant was charged with throwing a lighted jar of kerosene at Jimmy Joe Nelson on the night of November 25, 1976. The weapon was what is commonly called a “Molotov cocktail” or fire bomb.

Both appellant and Nelson were prison inmates at the Kilby Correctional Center in Montgomery County when the incident occurred. Appellant was housed in Cell Block B which was located above Block A where Nelson was quartered. A balcony ran the length of Block B. By leaning over the railing or lying on the balcony floor, a person could look over the edge of the balcony and see the cells below.

The evidence established that appellant and Nelson had been arguing about a football game shown on television earlier in the day. Testimony by prison guard John Banks, in the strongest light for the State, would tend to show that appellant was released from his cell on the pretense of emptying his trash can. He was carrying a brown paper bag, but Banks did not inspect it. Banks was down the corridor checking cells when he was informed he should not let appellant of out his cell. About then he heard someone shout, “fire.”

Although a dispute arose over the facts at this point, Banks’ final testimony was that he saw appellant lying on the balcony floor, and a small fire was going in a cell below. Banks went to the floor below and saw others stomping on some broken glass and a burning rag on the floor of the cell. Nelson had been taken to the hospital.

Guard Nathaniel Bryant was working on Cell Block A when the incident occurred. Bryant saw appellant lying on his stomach on the balcony floor immediately above Nelson’s cell. He saw a blaze of fire, and he went immediately to Nelson’s cell and pulled him out. Nelson had a laceration on his arm from the broken glass, and his hair was singed. Bryant saw no one else around, over, or beside Nelson’s cell other than the appellant.

Counsel for appellant brought out on cross-examination that Bryant had earlier signed a statement that he actually saw the appellant light the rag in the jar and throw it at Nelson’s cell. Bryant confirmed that the signed statement was true.

The victim Nelson testified in pertinent part as follows:

“Mr. Banks let him [appellant] out and he walked up there and come down there and Mr. Bryant said Everhart, don’t do that. And I got off a little stool I was sitting on and walked up there and was standing at the door when Bryant hollered at Everhart. Said, Everhart, don’t do that. And I looked up. And about that time that kerosene jar and all hit the bars and broke and splattered. And the fire — set my hair — my hair was long then and it set it on fire. And I got glass in my eye, also. And I told Mr. Bryant I wanted to go the the hospital and he took me down to the hospital. . . . ”

Defense witness, inmate Love Wilson, testified that on that occasion in question, he saw appellant talking to another inmate when he heard a “commotion” below. He said appellant and the other inmate went to the railing, lay down, and looked over the balcony to the cells below. Wilson said he did the same thing. He did not see the appellant throw anything and did not see a fire.

I

Appellant contends that the trial judge erred by forcing him to stand trial in prison clothes. During a hearing outside the presence of the jury, the following occurred in pertinent part:

“MR. WILLIAMS: Is that yours or was it issued to you by the State of Alabama?
“THE COURT: He asked you about your shirt, boy, so don’t point at your pants. Did the State of Alabama issue you that shirt, boy?
“THE DEFENDANT: No, sir.
“THE COURT: Where did you get it?
“THE DEFENDANT: I got it at home.
“THE COURT: That is yours? You bought that in the free world?
“THE DEFENDANT: My people bought it.
“THE COURT: Now let’s talk about your shoes. Did you get those issued to you?
“THE DEFENDANT: No, sir.
“THE COURT: You got those in the free world, didn’t you?
“THE DEFENDANT: Yes, sir.
“THE COURT: What about your pants? “THE DEFENDANT: They are also from the free world.
* * * * * *
“THE COURT: ... You should have found out whether these were prison clothes or not. They are not prison clothes. And if you had been an observer of prison life in any of your legal practice, you would have known they were not prison clothes. They are not prison clothes. The Sheriff of Montgomery County is careful in never allowing a prisoner to walk into this Courtroom with prison clothes on. So, you have made a reckless charge. Now back it up. . .”
******
“THE DEFENDANT: Well, Your Honor, I am trying to explain. We are not allowed to wear free world clothes. These clothes are the same or similar — these clothes are just like State clothes.
“THE COURT: No, sir. They are not.
“THE DEFENDANT: The shirts are made the same. The only thing, they are long sleeves and short sleeves. The jeans, understand—
“THE COURT: Well, are you objecting to his clothes?
“MR. WILLIAMS: Do you object to the clothes?
“THE DEFENDANT: Yes, sir.
“MR. WILLIAMS: Yes, sir.
“THE COURT: Well, your objection is not well taken. Sit down.
“MR. WILLIAMS: Yes, sir.
“THE COURT: Let the Jury back in.”

The record shows conclusively that the appellant was not dressed in prison clothes at the time of the trial. Whether the appellant’s clothing was similar to prison garb is not established by the record. Counsel made no showing of similarity between the clothing of the accused (which was admittedly supplied by relatives) and clothing issued by the state. The only comparison in the record was that, “[t]he shirts are made the same. The only thing, they are long sleeves and short sleeves. . . .” That description tells us absolutely nothing.

Secondly, the appellant waited too late to raise the objection. In Clark v. State, 280 Ala. 493, 195 So.2d 786 (1967), the Supreme Court stated:

“We hold that the defendant waited too late to move for a mistrial because of his clothing. If he seriously believed he could not get a fair trial while dressed in prison clothes, a motion to that effect should have been presented to the court prior to the time the jury panel was brought into the courtroom.”

In the instant case, the appellant waited until after the jury was selected, impaneled, and sworn before making his objection known to the trial court. Thus, not only was there no substance to the objection, it also came too late.

II

John Banks, in testifying for the State, stated that after he heard someone shout, “fire,” he turned around and saw the appellant standing by his cell. On redirect examination by the State, Banks admitted that he gave a statement to state investigators which was different from his present testimony. He was handed a copy of the statement and, after reading it, had considerable difficulty in answering questions on behalf of the State. After refreshing his recollection from his prior inconsistent statement, the questioning went in pertinent part as follows:

“Q. (Mr. Price continuing) Officer Banks, after you have read State’s Exhibit No. 1 to refresh your present recollection, sir, I ask you, is State’s Exhibit No. 1 a true copy of the statement that you gave the State investigator?
“A. I do not believe so.
“Q. Sir?
“A. I do not believe so.
“Q. So, you are saying that the State investigator has written a statement that is incorrect, or something you didn’t tell him?
“A. No. I seen him about, maybe, four times.
“Q. Well, did you sign a statement up there? After you gave him the statement, did you sign it?
“A. I don’t remember whether I did or not.
“Q. All right. On all of the statements that you gave him, did he allow you the opportunity to read what you had given him?
“A. He read over it.
"Q. He read over it? Did you understand at that particular time what it was that he was reading?
“A. Yes.
“Q. Okay. Did you at that time tell him what he read you was incorrect or was not exactly what you had told him?
“A. He asked me was this to the best of my knowledge; was it true? I told him I believe so.
“Q. And then do you recall the State investigator reading State Exhibit No. 1 back to you at that time you gave it to him or some later time?
“A. No, sir.
“Q. You don’t recall that?
“A. No, sir.
“Q. Okay. Well, let me ask you this. Do you recall — you are saying the statement here is incorrect?
“A. No.
“Q. It is correct?
“A. Well, now—
“Q. Is the statement here that I just showed you to refresh your present recollection of what you stated on December 2nd, is it correct or incorrect?
“A. Correct.
“Q. It is correct. It is your testimony then that State’s Exhibit Number 1, which was shown to you to refresh your present recollection what you stated on December the 2nd, 1976, is correct. Is that right?
“A. Yes.
“Q. Then let me ask you, sir, now that you have refreshed your present recollection, where was Jimmy Everhart when you turned around and looked back?
“A. (No response).
“THE COURT: Mr. White, send the Jury into the Jury Room.
“(Whereupon, the Jury was removed from the Courtroom and the following proceedings were had out of the presence of the Jury:)
“THE COURT: Are you still an employee of the State of Alabama?
“A. Yes, sir.
“THE COURT: All right. Now, you get down off that witness stand. Get down. “Give him that paper.
“Now, if you don’t want me to recommend you be fired for incompetence, you get around here and you read this statement and you try to remember what happened on this occasion. And if you are not able to remember, then I am going to recommend to the Commissioner of the Department of Corrections that you be fired for either lying on the stand or being unable to do your duty.
“Now, Mr. White, you carry him into one of those witness rooms.
“And when you get through reading that thing, you come back in and you tell me whether or not you can remember what happened on this occasion or not. You are under arrest, in effect. You are in the custody of Mr. White until you come back.

“Now we will have a ten minute recess.” After the recess, counsel for appellant moved for a mistrial because of the court’s instructions to the witness. The following then occurred:

“THE COURT: Do you want to question this witness as to whether or not he is required to tell the truth, the whole truth, and nothing but the truth, so help him God? Do you want to ask him whether he has been encouraged to tell anything but the truth?
“MR. WILLIAMS: No, Your Honor.
“THE COURT: Well, are you implying that the Court has told him to tell something other than the truth?
“MR. WILLIAMS: No, sir.
“THE COURT: All right. Have you been told — has anybody encouraged you to tell anything but the truth?
“A. No, sir.
“THE COURT: All right. Is that what you are going to tell?
“A. Yes, sir.
“THE COURT: All right. Are you going to tell it in a fashion where you don’t have to look up at this ceiling, and if you don’t understand the question are you going to say you don’t understand the question?
“A. Yes, sir.
“THE COURT: I don’t want to waste my time or this Jury’s time, when you have reasonable intelligence and a reasonably intelligent question is asked you that you can’t give an answer to. Do you understand that?
“A. Yes, sir.
“THE COURT: Okay. Now have you got any objections to that instruction, Mr. Williams?
“MR. WILLIAMS: Not that instruction. It was the other one, Your Honor.
“THE COURT: Well, what was the other instruction?
“MR. WILLIAMS: About recommending—
“THE COURT: Do you have a question of that statement?
“MR. WILLIAMS: Not this one. The other one.
“THE COURT: I am talking about this statement there. Do you have any reason to believe that there is a lie in that statement?
“MR. WILLIAMS: Well, Your Honor, he said it wasn’t like what he told the investigator.
“THE COURT: Did you tell that investigator a lie?
“A. No, sir.
“THE COURT: Did he write down something that you didn’t tell him?
“A. No, sir.
“THE COURT: After you have read that statement, is that what happened?
“A. Yes, sir.
“MR. WILLIAMS: I am just repeating what he said on the stand, Your Honor. “THE COURT: He was either obviously confused or he wasn’t paying much attention to the question.
“MR. PRICE: Now, as I recall it, if it please the Court, the witness did testify to my last question that this was the statement.
“THE COURT: Well, I don’t think the witness was interested enough to listen to the question. But I think maybe I have his attention now. Let the Jury in. . . ”

Banks then testified, in the presence of the jury, that he had in fact seen the appellant lying on the floor of the balcony rather than standing by his cell.

The State had a right to interrogate its own witness concerning his prior statement inconsistent with his present testimony for the purpose of refreshing his recollection or to show surprise. Cross v. State, Ala.Cr.App., 351 So.2d 698 (1977); Randolph v. State, Ala.Cr.App., 331 So.2d 766, cert. denied, Ala., 331 So.2d 771 (1976).

It is obvious from the record that the witness’ testimony was not only inconsistent with his prior statement to state investigators, but he also began to give contradictory and inconsistent answers on the witness stand. Whether this was occasioned by fading memory, lack of attention to questions propounded, incompetence, outright contempt, or perjury, the trial judge was in a better position to determine than we are. The trial judge was able to observe the demeanor of the witness, to hear the inflection in his voice, and to evaluate his sincerity or lack of candor. No objection was made to the remarks of the trial judge until after a recess, and the witness returned to the courtroom with either a refreshed recollection or a more sincere attitude toward the serious business of testifying in a court of law.

Assuming the objection to be timely and sufficiently specific, we find no reversible error in the trial judge’s blistering admonition to the witness outside the presence of the jury. As was said in Brantley v. State, Ala.Cr.App., 335 So.2d 189, cert. denied, Ala., 335 So.2d 194 (1976), while the trial judge could and should have been milder in his admonition: “It was clear that the witness had made two irreconcilable statements in testimony. The trial court did not direct the witness toward either statement, but made it clear that the witness should be careful in finally stating which of the two statements was correct.

. ” Also see: Huffman v. State, Ala. Cr.App., - So.2d - [1977]; and 23 C.J.S. Criminal Law §§ 995, 996.

A trial judge has certain sanctions available to impose against recalcitrant or untruthful witnesses such as citing the witness for contempt or charging him with perjury. A threat to seek termination of the witness’ employment is not a legal alternative open to a trial judge. While we do not condone the threat, we nevertheless find no prejudice to the appellant resulted for the following reasons:

(1) The trial judge did not direct the witness toward either version of the conflicting statements. In effect, he only instructed the witness to tell the truth.

(2) The reprimand occurred outside the presence and hearing of the jury.

(3) The testimony of all later witnesses to the occurrence, including that of the appellant, was that appellant was lying on the balcony floor. The final testimony of Banks that he saw appellant lying down rather than standing by his cell could hardly be considered so prejudicial as to cause reversal where the appellant himself later testified that he lay down on the balcony to see what caused the commotion below.

We likewise do not conclude that the conduct of the trial judge throughout the course of the trial was so highly prejudicial against the appellant and his counsel as to warrant reversal. While the trial judge used strong language to both the witness Banks and to counsel for appellant outside the presence of the jury, we find that the trial judge was exceedingly lenient in allowing counsel to prepare written requested charges after the jury had begun its deliberations and in presenting those charges to the jury on behalf of the appellant after the jury had returned to the courtroom to ask the trial judge a question.

Appellant’s argument is that the prejudicial conduct of the trial court toward him throughout the trial climaxed with a crescendo of degradation in the manner in which the court interrogated defense counsel about the details of charging the jury on a lesser included offense. We think the record reveals the opposite. The trial court had a lengthy discussion with the defense counsel about the proper manner of preparing his requested charges and additional form verdicts. The jury was returned to the jury room while counsel was given additional time to compose the requested charges. The trial judge submitted all the requested charges to the jury except the affirmative charge. At the end of the court’s oral charge to the jury and at the end of the supplemental instructions to the jury, defense counsel announced that he was satisfied. Likewise, the trial court’s discussion with defense counsel about the preparation of requested charges was not objected to and cannot be raised for the first time on appeal. Slinker v. State, Ala. Cr.App., 344 So.2d 1264 (1977). For a synopsis of cases concerning permissible limits of a trial judge’s comments, see Butler v. State, 55 Ala.App. 421, 316 So.2d 348, cert. denied, 294 Ala. 754, 316 So.2d 355 (1975).

Ill

Contrary to the appellant’s contention, we find that the State presented a prima facie case of assault with intent to murder. Testimony by the State’s witnesses was sufficiently strong to support a finding that the appellant deliberately threw the fire bomb at the victim. It certainly cannot be said that a fire bomb or “Molotov cocktail” is not a deadly weapon. The law is clear that the use of a deadly weapon raises a presumption of malice unless the circumstances disprove malice. The jury could reasonably infer from the act of throwing the deadly substance at the victim that the appellant intended to kill him. Hall v. State, Ala.Cr.App., 348 So.2d 870, cert. denied, Ala., 348 So.2d 875 (1977).

Affirmed.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Jerry EVERHART.
    77-459.
    Supreme Court of Alabama.
    May 26, 1978.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: BOWEN, Judge. TYSON, Judge,

text:
    Odis N. McMURPHY v. STATE.
    4 Div. 592.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    Rehearing Denied April 4, 1978.
    Brian W. Dowling, Dothan, for appellant.

      William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for the grand larceny of a 1962 Mercury automobile, the personal property of John Enfinger. The jury fixed punishment at seven years’ imprisonment. The appellant is represented by court appointed counsel both at trial and on appeal.

John Enfinger ran and owned Enfinger Chevron Service Center (a service station) in Dothan, Alabama. On March 7, 1977, he had a 1962 Mercury for sale and the appellant expressed some interest in purchasing it but first wanted his wife to see it. En-finger told the appellant to “be back shortly or something like that” and the appellant said or indicated that he would be right back with the car. Four hours later, En-finger notified the police when the appellant had not returned. Six days later the appellant was apprehended in Kentucky driving the Mercury. The automobile was “run down” and required repair before it could be driven back to Dothan.

I

Initially the appellant maintains that the trial judge should have given the requested charge on the misdemeanor of unauthorized use of a motor vehicle contending that unauthorized use is a lesser included offense of larceny.

In describing the mental state as an element of larceny it has been said:

“To constitute larceny, it is necessary that the property be taken without the consent of the owner or possessor and with animus furandi, that is, with the intent to deprive the owner or possessor permanently of the property taken. The intent is commonly described as the intent to steal.” 2 Wharton’s Criminal Law 80, § 452.

While the descriptions of the mental element which must accompany the taking and carrying away are at variance in the Alabama cases and despite the fact that we found no case in Alabama which so specifically states the definition of larceny, a fraudulent or felonious taking and carrying away can only be taken as requiring an intent to permanently deprive the owner of his property or a portion of it. Fort v. State, 82 Ala. 50, 2 So. 477 (1886); Harris v. State, 24 Ala.App. 59, 129 So. 795 (1930). See Beatty (now Supreme Court Justice), Alabama Property Offenses — Past, Present, Future, 12 Ala.L.Rev. 253 at 13 Ala.L.Rev. 114-116 (1960); also 50 Am.Jur.2d 193, Larceny, § 35; 52A C.J.S. 445, 452 Larceny §§ 25, 27.

The Alabama statute covering “temporary” or “unauthorized” use provides that:

“Any person who unlawfully takes for temporary use, or uses temporarily, any animal or vehicle without the consent of the owner or person having control thereof, and without bona fide claim of title thereto, shall, on conviction, be fined not more than $100.00 and may also be imprisoned in the county jail, or sentenced to hard labor for the county for not more than six months;” Title 14, § 339, Code of Alabama 1940, Recompiled 1958, now Section 13-3-56, Code of Alabama 1975.

Larceny is not committed when the defendant takes the property of the owner with the intent of borrowing it temporarily and of returning it thereafter to the owner. In such cases there is lacking the intent to deprive the owner permanently of his property. 2 Wharton 86, § 454; 52A C.J.S. 399 Larceny, § 1(2). Thus, where one takes the vehicle of another without his permission, intending only to drive it somewhere and then restore it to the possession of the owner or leave it where he may reclaim it, he is not guilty of larceny under a statute predicated upon the common-law definition of the offense of larceny. 7 Am.Jur.2d 847, Automobiles and Highway Traffic, § 303 (also p. 848, § 304). See also 9 A.L.R.3d 633, Annotation: Automobiles: elements of offense defined in “joyriding” statutes.

The unauthorized use statute was enacted in order to cover a “wrongful” or “unlawful” taking without the consent of the owner as opposed to the “felonious” intent required in larceny. Larceny and unauthorized use are separate and distinct, though related, offenses. One offense is not embraced within the other and unauthorized use is not a lesser or included offense of larceny. The intent for each crime is distinct and separate. For this same reason, assault with intent to rob is not a lesser or included offense of assault with intent to murder. Hargett v. State, 54 Ala.App. 544, 310 So.2d 263, cert. denied, 293 Ala. 758, 310 So.2d 264 (1975).

In Ashby v. State, 24 Ala.App. 466, 136 So. 483 (1931), the Alabama Court of Appeals held that a conviction of using an automobile without the owner’s consent could not be had under an indictment for grand larceny because the offense of unauthorized use is not included in the offense of grand larceny of an automobile. Though the court in Ashby was interpreting the predecessor of our present unauthorized use statute, we think that the same principles apply and specifically reaffirm the principle announced in Ashby.

Although under an indictment for grand larceny of a automobile the defendant is not entitled to a jury charge on the separate crime of temporary or unauthorized use, the defendant may request an instruction to the jury on the issue of permanent or temporary deprivation and intent. Such a charge need not be given where there is no evidence that the defendant intended a temporary use or taking. 52A C.J.S. 703 Larceny § 150. In this case the appellant did not request such an instruction and furthermore, there is no evidence to support any claim that he took the automobile for temporary use. Therefore the action of the trial judge refusing the requested charge on the issue of lesser or included offenses was proper.

II

From our review of the record, we find that the trial court properly denied the appellant’s motion to exclude the state’s evidence. In McMullen v. State, 53 Ala. 531, 533, 534 (1875), it was said:

“The existence of the intent is not often capable of direct proof,-but is matter of inference from the circumstances attending the caption and asportation. It is said by Blackstone, ‘The ordinary discovery of a felonious intent is where the party doth it clandestinely: or, being charged with the fact, denies it. But this is by no means the only criterion of criminality: for, in cases that may amount to larceny, the variety of circumstances is so great, and the complication thereof so mingled, that it is impossible to recount all those which may evidence a felonious intent, or animus furandi: wherefore they must be left to the due and attentive consideration of the court and jury.’ ”

Though the appellant unquestionably had the owner’s consent to take the automobile and show it to his wife there is overwhelming evidence that he intended to steal the car from the moment he climbed behind the steering wheel: The length of time the appellant kept the vehicle; the fact that he never returned it; the fact that he was apprehended in another state driving the same automobile; and the deteriorated condition of the automobile upon its recovery. All these circumstances attest to the fact that the appellant had the requisite intent to steal the automobile which would sustain a conviction for grand larceny.

III

The prosecutor’s remark in closing argument that the jury’s “job is to determine whether someone should be let loose” is well within the legitimate bounds of argument to the jury. Hawes v. State, 48 Ala.App. 565, 266 So.2d 652 (1972). From the record before this court we can find no manner in which it prejudiced the appellant.

IV

The fourth and fifth errors for reversal raised by the appellant are based on matters outside the record and not properly before this court. Review by this court is limited to that which appears in the record. Jones v. State, 57 Ala.App. 275, 327 So.2d 913, cert. denied, 295 Ala. 409, 327 So.2d 915 (1975). Contentions argued in the appellant’s brief but not supported by the record cannot be considered on appeal. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971); and cases cited at 7 Alabama Digest, Criminal Law, 1128(2). See Tyus v. State, Ala.Cr.App., 347 So.2d 1377, cert. denied, Ala., 347 So.2d 1384 (1977), for the procedure to follow in correcting an allegedly defective record.

In conjunction with the appellant’s fifth assignment of error, he has filed an appendix which appears to be a copy of a subpoena issued in the trial court. That subpoena was never identified or introduced in the court below and constitutes no part of the record on appeal. Therefore the state’s motion to strike is due to be and is hereby granted as to the appendix filed by the appellant.

We have reviewed the record in its entirety and finding no error adverse to the substantial rights of the appellant we hereby affirm the judgment of the lower court.

AFFIRMED.

HARRIS, P. J., and DeCARLO and BOOKOUT, JJ., concur.

TYSON, J., concurs specially.

TYSON, Judge,

concurring specially.

Many Alabama cases have defined larceny in the following manner:

“Larceny is the felonious taking and carrying away of the personal property of another with the intent on the part of the taker to convert it to his own use, or to deprive the owner thereof. Higgs v. State, 113 Ala. 36, 21 So. 353; Moulden v. State, 47 Ala.App. 573, 258 So.2d 915; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603.” See also, Jones v. State, 56 Ala.App. 444, 322 So.2d 735; Volume 13A, Alabama Digest, Larceny, «=>1.

Moreover, the former Court of Appeals, in Johnson v. State, 41 Ala.App. 351, 132 So.2d 485, stated:

“ . . . It is immaterial how short the distance moved, or the length of time he exercised dominion over it. It may constitute larceny if there was a severance of the possession of the owner and an actual possession and removal by the wrongdoer. Phelps v. State, 6 Ala.App. 58, 60 So. 537; Molton v. State, 105 Ala. 18, 16 So. 795; Blakeney v. State, 244 Ala. 262, 13 So.2d 430; Arthur v. State, 38 Ala.App. 490, 93 So.2d 793.” See Klemmer v. State, 51 Ala.App. 383, 286 So.2d 58; Tucker v. State, 50 Ala.App. 405, 279 So.2d 576; Bonner v. State, 57 Ala.App. 462, 329 So.2d 152.

I

The majority’s definition of larceny refers to a definition taken from 2 Whartons’ Criminal Law 80, Section 452. I do not believe this to be in accord with the Alabama cases as herein above set forth.

II

As noted in Section 1 of this special concurrence, it matters not the length of time a party exercises dominion over the property of the owner, nor the distance moved. Necessarily, the proof of one’s intention is best demonstrated by one’s overt actions. Under the circumstances of the case at bar, I believe the majority opinion has reached the correct result, i. e., that the appellant, McMurphy, intended to deprive the owner of the automobile, and as such the proof would sustain a conviction for grand larceny.

I also agree that unauthorized use of the vehicle is not a lesser included offense under the testimony in this cause, and, therefore, the trial court properly refused the requested charge on this issue.

      . “3337. Penalty for use of vehicle without consent of owner, etc. Any person who without the consent, expressed or implied, of the owner, uses the motor vehicle of such owner on any public highway or elsewhere in this state, shall be guilty of a misdemeanor and shall on conviction be fined not less than twenty-five dollars nor more than one thousand dollars, and may also be sentenced to hard labor for not more than twelve months; and if it be shown on the trial of said cause that the motor vehicle so unlawfully used has been damaged in whole or in part by such person, then the fine imposed shall not be less than twice the amount of the damage shown and one-half of such fine shall be paid to the owner of such motor vehicle; provided said fine shall in no event exceed one thousand dollars.”


author: TORBERT, Chief Justice.

text:
    In re Odis N. McMURPHY v. STATE of Alabama. Ex parte Odis N. McMurphy.
    77-456.
    Supreme Court of Alabama.
    May 19, 1978.
    Brian W. Dowling, Dothan, for petitioner.
    No attys. for the State, respondent.
   TORBERT, Chief Justice.

The petition for writ of certiorari to the Court of Criminal Appeals is denied, 358 So.2d 1065.

The denial of this writ should not be construed as approval of the definition of larceny taken from 2 Wharton’s Criminal Law 80, section 452, which is set forth in the majority opinion of the Court of Criminal Appeals. Such definition, which includes as a necessary element that the property be taken “without the consent of the owner or possessor,” is not in accord with the general definition of larceny used by both this court, and the appeals court, to wit:

“Larceny is the felonious taking and carrying away of the personal property of another with the intent on the part of the taker to convert it to his own use, or to deprive the owner thereof. Higgs v. State, 113 Ala. 36, 21 So. 353; Moulden v. State, 47 Ala.App. 573, 258 So.2d 915; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603.”

Jones v. State, 56 Ala.App. 444, 447, 322 So.2d 735, 737 (1975).

WRIT DENIED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


text:
    James THOMPSON, alias v. STATE.
    4 Div. 623.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.
    Rehearing Denied May 16, 1978.

      J. Allen Cook of Cook & Cook, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and L. G. Kendrick, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Carnal knowledge, or abuse in the attempt to carnally know a girl under the age of twelve years; sentence: ten years imprisonment.

Appellant confessed to abusing a five-year-old girl’s genitalia. As a result, the girl was injured and had to be examined by a physician.

I

Appellant contends that there was insufficient proof of the corpus delicti to allow introduction of his confession into evidence.

Proof of the corpus delicti requires that the State present evidence which connotes the commission of the offense by the criminal agency of someone. Proof of the corpus delicti does not necessarily include evidence connecting the defendant with the crime. Tanner v. State, 57 Ala.App. 254, 327 So.2d 749 (1976). Proof of the corpus delicti may be by circumstantial as well as direct evidence. Gaddis v. State, 39 Ala.App. 630, 106 So.2d 268 (1958).

The earliest case on the instant subject in this jurisdiction is Matthews v. State, 55 Ala. 187 (1876). There the Supreme Court recognized the instant issue as being one of first impression in Alabama. The Court examined opinions of other states and the English common law before reaching its decision. The Court held that extrajudicial confessions of a defendant, not corroborated by independent proof of the corpus delicti, will not justify a conviction of a felony. There, the appellant was charged with rape, and as here, the victim did not testify. The trial court admitted conversations the appellant had had with other parties after the alleged crime wherein he was accused of the rape, but made statements which were not absolute denials.

No evidence of a rape had been admitted prior to the above testimony, which was objected to at the time of its admission and was the basis for the defendant’s motion to exclude the evidence at the end of the State’s case. The Supreme Court reversed and adopted the rule that a confession without independent corroborating evidence will not support a conviction stating, “it is better that a guilty man should escape than that a precedent should be introduced which may press hardly hereafter on the innocent.”

The real issue in the instant case is whether there was independent corroborating circumstances to support the confession of the appellant. If there are some such circumstances, though not sufficient standing alone, they may nevertheless be sufficient to corroborate the confession and establish the corpus delicti.

The general rule is still that an uncorroborated extrajudicial confession of a defendant is inadmissible as prima facie proof of the corpus delicti. Shelton v. State, 217 Ala. 465, 117 So. 8 (1928). However, the Alabama Supreme Court, in Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969), stated:

“ . . . ‘inconclusive facts and circumstances tending prima facie to show the corpus delicti may be aided by the admissions or confession of the accused so as to satisfy the jury beyond a reasonable doubt, and so to support a conviction, although such facts and circumstances, standing alone, would not thus satisfy the jury of the existence of the corpus delicti. . ’ ” (Citations omitted.)

See also: Coleman v. State, 57 Ala.App. 392, 328 So.2d 642 (1976); Gaddis, supra.

Proof presented at trial showed that the victim was a five-year-old girl who suffered an injury to her vagina. The injury, in the opinion of the examining physician, did not appear to be a knife cut or wound from a sharp instrument. The physician testified that the wound was a tear which began at the hymenal ring just inside the vagina and extended onto the skin surface toward the rectum. The physician further testified that a smear taken for spermatoza tested negative. The appellant was with the girl the day she was injured.

It has been held that the corpus delicti is a fact, “proof of which may be established by circumstantial evidence, and, if there is a reasonable inference to prove its existence, the court should submit to the jury for consideration the question of the sufficiency and weight of the evidence tending to support that inference.” Hines v. State, 260 Ala. 668, 72 So.2d 296 (1954). Here, we are faced with the circumstance that the child was discovered to have had a tear in the area of the hymenal ring after having been in the company of the appellant. Coupled with the appellant’s admission that he abused the child with his finger, which was consistent with the physician’s explanation of the nature of the injury, such circumstances are sufficient to support the jury finding of the existence of the corpus de-licti.

II

Appellant contends that the evidence did not authorize finding the defendant guilty of carnal knowledge. Appellant argues that at most the evidence was only sufficient to support a conviction for assault and battery.

It is true that “carnal knowledge” as used in the statute, means sexual intercourse, that is, the actual penetration by the male sexual organ in to the sexual organ of the female. Reynolds v. State, 274 Ala. 171, 146 So.2d 85 (1962). The statute, however, is directed not only against the offense itself, when complete, but against attempts to commit it. James v. State, 246 Ala. 617, 21 So.2d 847 (1945). The crime may be committed without any contact of the genital organs. Lee v. State, 31 Ala.App. 91, 13 So .2d 583 (1943). Here, the prosecution proved that the appellant abused the girl’s genitalia. Once abuse is proved, the intent with which he did the act is to be determined from the circumstances surrounding the act and presents a question for the jury. Huggins v. State, 41 Ala.App. 548, 142 So.2d 915 (1962).

As the evidence at trial did prove physical abuse of the girl’s genitalia, the jury could properly find that appellant intended to carnally know her, and that the injury resulted from an attempt to do so. See also: Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944); Title 14, § 398, Code of Alabama 1940.

AFFIRMED.

All the Judges concur.

      . The Supreme Court stated that the admissibility of such statements was founded on the probability that a man will deny an unfounded accusation and, therefore, silence or a response which is not a denial is a tacit admission that the accusation is true. The Court did not fully accept such reasoning, stating that such a rule depended upon the time, place, and manner in which the accusation is made, and the purpose from which it proceeds, and on the peculiar temperament and characteristics of the person accused.


author: BOWEN, Judge.

text:
    Noble TWYMON v. STATE.
    7 Div. 564.
    Court of Criminal Appeals of Alabama.
    April 18, 1978.

      George N. Sims, Jr., Talladega, for appellant.
    William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

This is an appeal from an indictment and conviction of murder in the first degree. The jury fixed sentence at life imprisonment. The appellant is represented at trial and on appeal by court appointed counsel.

Three issues are presented for our review: (1) The admissibility of evidence that a law enforcement officer “taped” an interview with the appellant; (2) the question of the capability of the appellant to make a knowing and voluntary waiver of his constitutional rights in view of his limited mental capacity; and (3) whether a tape recorded confession was inadmissible because it contained “highly prejudicial leading questions.”

Reduced to the basic facts, the evidence reveals that on the evening of March 12, 1977, the appellant and Samuel Louis Smoot had a fight when Smoot attempted to prevent the appellant from beating Rosie Mae Taylor. Ms. Taylor lived with the appellant’s brother and the appellant was under the impression that she was “mistreating” his brother. As the fight came to an end the appellant ran way but stated that he would return.

Later that night, James Ashley, an off-duty auxiliary sheriff’s deputy stopped by Reeves’ Grocery Store in Talladega County. The appellant was already there and told Ashley that he had shot someone. The appellant voluntarily gave Ashley the single-shot twelve gauge shotgun which he was carrying at his side.

The appellant led law enforcement officers to a cornfield and showed them the body of Samuel Smoot. Five spent shotgun shells were found near or around the body. Smoot had been shot by a shotgun once in the back and once in the back of the head, In the opinion of Dr. Carlos Rabren, Assistant Director for the Department of Toxicology and Criminal Investigation, State of Alabama, “the end of the barrel (of the shotgun) would have been in contact with the scalp tissue at the time the round was fired”. Another toxicologist testified that the round was fired from a distance of not more than five feet. Either wound could have produced death.

After being advised of his Miranda rights the appellant freely and voluntarily gave statements admitting his guilt to the Sheriff of Talladega County and an investigator for the Sheriff’s office.

I

In questioning the investigator for the Sheriff’s office, the District Attorney asked:

“Q. Did you later have occasion to tape an interview with the defendant?
“A. Yes, I did.
“Q. When did that take place?
“MR. SIMS (Defense Counsel): Now I’m going to object to this, Judge, any tape recording.
“MR. HOLLINGSWORTH (District Attorney): Tapes are admissible in evidence. They’re higher than written statements. That’s everything that everybody says in their own voice.
“MR. SIMS: I object.
“THE COURT: I overrule to that as a preliminary question.”

Initially we note that the question called for admissible evidence, the answer was responsive, and objection was made only after the answer had been given. The objection was therefore untimely. Gamble, McElroy’s Alabama Evidence (3rd ed. 1977), § 426.01(3), p. 793. In this situation a motion to strike or exclude the answer was necessary.

Even if timely objection had been interposed, evidence that the accused merely made a statement is admissible. The “statement” was not characterized as a “confession” or an “inculpatory or incriminating admission”. The acts, declarations, and demeanor of an accused, before or after the offense, are admissible against him. Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954).

Moreover the fact that subsequent proof disclosed that the confession was not improperly induced cured any possible error in the admission of the objected to remark. Crenshaw v. State, 225 Ala. 346, 142 So. 669 (1932); Vincent v. State, 284 Ala. 242, 224 So.2d 601 (1969).

II

The fact, without more, that the accused was of less than normal intelligence does not render a confession of a crime inadmissible or require that the confession be excluded because there was no intelligent and knowing waiver of the Miranda rights. Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967).

The fact that the appellant, thirty-three years old, had an I.Q. of 57, which would be roughly equivalent to the mental age of nine years and two months, is only one factor to be considered in determining the voluntariness of his confession. Goldin v. State, 271 Ala. 678, 127 So.2d 375 (1961). In this case there was testimony that even, at this mental age, the appellant would have been able to understand his rights and could therefore make a free and voluntary waiver. Thus, as a matter of law and fact, the confession of the appellant was not inadmissible merely because he was of weak intellect.

Ill

The confession was not inadmissible merely because it contained “leading” questions. Confessions are not rendered inadmissible by reason of having been obtained by propounding to the accused questions assuming his guilt. Curry v. State, 203 Ala. 239, 82 So. 489 (1919); White v. State, 133 Ala. 122, 32 So. 139 (1902).

We have searched the record for error and, finding none, affirm the judgment of the trial court.

AFFIRMED.

All Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Chester Orven RIVERS v. STATE.
    1 Div. 836.
    Court of Criminal Appeals of Alabama.
    May 16, 1978.

      Edward R. Tibbetts, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

By the appeal herein, appellant attempts to obtain the review of a judgment holding him in contempt of court and imposing a fine of fifty dollars and ordering that he be imprisoned in the Mobile County jail for five days as additional punishment.

It appears from the record that while some case was being tried in the court from which the appeal herein was taken, information was brought to the court indicating that a witness in the case had been intimidated by appellant herein. The witness was then called and testified, out of the presence of the jury in the other case but in the presence of appellant herein and his attorney, as to what appellant had said to her. The court then “cited” appellant herein for contempt and set a hearing thereon for a later date, which resulted in the judgment and sentence from which this appeal was taken.

Appellant relies heavily upon Ex parte Tarpley, 53 Ala.App. 363, 300 So.2d 401, aff'd 293 Ala. 137, 300 So.2d 409, in which it was held that a witness who had failed to appear pursuant to an “on call” subpoena, could not be held in contempt of court in the absence of due process requirements of notice of the charge of contempt and an opportunity to be heard thereon. As such requirements were not met in Tarpley, the judgment of the trial court was reversed and a judgment rendering discharging Tarpley. It is argued by appellant that the due process requirements set forth in Tarp-ley were not met in the case now before us and that the judgment of the trial court should be reversed.

As to the mentioned due process requirements, it appears that appellant was given due notice of, and an opportunity to appear and be heard on, the charge of contempt of court, that he availed himself of that opportunity, that he did appear and was heard, in person and by counsel. The record does not contain a copy of any written charge made before the judgment appealed from, but it does not show conclusively that there was no such written charge.

The record is not sufficient, and the issues between the parties are not specific enough, for us to find that any due process rights of appellant were violated. This emphasizes, we think, the wisdom of the rule that has prevailed, with one statutory exception, that an appeal is not an appropriate remedy for an attempted review of a contempt proceeding, but that the appropriate remedy is by habeas corpus if the alleged contemnor is in confinement, or by certiorari if he is not. Ex parte Dickens, 162 Ala. 272, 50 So. 218 (1909); Worley v. Worley, 267 Ala. 71, 100 So.2d 18 (1958); Pope v. State, 229 Ala. 643, 159 So. 51 (1935); Ex parte Wetzel, 243 Ala. 130, 8 So.2d 824 (1947); Jones v. Jones, 249 Ala. 374, 31 So.2d 81 (1947); Lovelady v. Lovelady, 281 Ala. 642, 206 So.2d 886 (1968); Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969); Knight v. State, ex rel. Butler, 288 Ala. 428, 261 So.2d 750 (1972); Ex parte Caldwell, 50 Ala.App. 508, 280 So.2d 558 (1973); Stout v. Stout, Ala. Civ.App., 336 So.2d 1123 (1976); Hayes v. Hayes, Ala.Civ.App., 337 So.2d 770 (1976).

As stated by Judge Holmes in Stout v. Stout, supra:

“There are cogent reasons why the above is the law. See Graham v. City of Sheffield, 292 Ala. 682, 299 So.2d 281. Suffice it to say that one of the reasons is to prevent the appellate courts from having to speculate as to the exact nature of what has previously transpired.”

We conclude that the contempt proceedings in this ease are not reviewable by appeal and that the appeal should be dismissed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court.

APPEAL DISMISSED.

All the Judges concur.

      . Code of Alabama 1975, § 12-1-11, which provides for an appeal from a judgment of contempt by an attorney or officer.


author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

text:
    Dave THOMAS v. STATE.
    5 Div. 411.
    Court of Criminal Appeals of Alabama.
    May 16, 1978.
    On Return to Remandment July 25, 1978.

      Robert J. Hooton of Hooton & Hooton, Roanoke, for appellant.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted, tried, and convicted pursuant to the statute that provides for a sentence of death or life imprisonment without parole in certain aggravated offenses. Acts 1975, No. 213. The jury found him guilty and fixed his punishment at death. The court thereafter conducted a hearing pursuant to § 3 of the Act and in accordance with § 4 sentenced defendant to life imprisonment without parole.

The indictment charged that defendant and two others, Zebedee Hayes and Howard Lee Prothro, feloniously robbed Luther Monroe Shoffeitt and, while committing the robbery, intentionally killed Shoffeitt by shooting him with a shotgun. Upon request of appellant-defendant he was granted a severance and tried separately.

The evidence without conflict unquestionably shows that shortly after 10:30 A.M. on December 16, 1976, Mr. Shoffeitt was robbed and shot to death by a shotgun while he was operating the G. W. Hewitt General Merchandise store in the Pinehill Community; Mr. Shoffeitt arrived for work at approximately 7:45; Mr. Hewitt left Shoffeitt at the store with approximately three hundred dollars in cash and a .25 automatic pistol. Mr. Hewitt’s wife saw Mr. Shoffeitt when she went to the store at approximately 10:30 A.M. and left about ten minutes later. About ten minutes after Mrs. Hewitt left, Roscoe Livingston, an RC Cola salesman, arrived at the store and discovered Mr. Shoffeitt’s body blocking the front door entrance. He immediately went to a nearby country store and returned with the proprietor thereof to the Hewitt store, which they entered, and found Mr. Shof-feitt lying against the front door in a pool of blood. He was dead at the time.

According to the testimony of eminent expert witnesses, Mr. Shoffeitt had died as a result of a gunshot wound to his chest. The pellets found in his chest were No. 4 shot and the size of the wadding disclosed that the gun used was a twelve-gauge shotgun.

There was considerable testimony by a large number of witnesses respectively, as hereafter named, as to the movements of a green Vega automobile with a white stripe on it and no tag on the morning of the crime. Mr. Ocie Coefield saw the automobile at about 8:00 A.M. and again at about 9:00 A.M. at Morrison Cross-Roads, about eight or nine miles from the Hewitt store, at which times it was occupied by three black men. Mrs. Ferry Stewart, one of the proprietors of a store at Morrison CrossRoads observed a green automobile with a white stripe and no tag parked at the Stewart’s store at about 10:30 A.M. Two black men were in the automobile at the time and the driver looked like appellant-defendant. A third black man came into the store, but suddenly turned around stating that he had forgotten what he had “come in for” and then left and returned to the automobile. Joyce Foster, the proprietor of Foster’s store, identified appellant-defendant as one of three black men who entered her store at about 10:00 A.M. The store was located about ten miles from the Hewitt store. The three men were in a green Vega with a white stripe. No purchase was made by appellant-defendant. About 10:30 A.M. Marie Meadows, who lived about three miles from the store where Mr. Shoffeitt was killed, saw a small green automobile with white stripes turn around in her driveway.

At about 10:30 A.M. the same day, Ralph Iverson, while passing the Hewitt store saw a green automobile back into a dirt road, about three or four hundred yards from the store. He said there were three “colored people” in the automobile and that one of them had a gun.

On the day, but after the time of the robbery and homicide, Ertest Blanks, who had previously employed Zebedee Hayes and Howard Prothro, saw them as they came near where Blanks and others were building a house in Heflin, Cleburne County. With them was another black man. Prothro lived about a quarter of a mile from where the house was being built. The three men were there about five or ten minutes and then walked off. This occurred between 11:30 and 11:45.

Chief Deputy Sheriff Taylor, of Cleburne County, having received a dispatch as to the homicide and robbery and information as to the green Vega with a white stripe and no tag at about 3:15 of the day of the homicide, proceeded in an attempt to locate the automobile. Soon thereafter, he located a similar automobile at the Western Auto Store in Heflin. He saw Howard Prothro start from the automobile toward the back of the store building. Dave Thomas was standing on the right side of the vehicle with the door open and attempted to get back in the automobile. Armed with a gun, the officer ordered them both to stop. At that time Piedmont police drove up and assisted in the arrest and search of Thomas and Prothro. The automobile was transported to the Cleburne County jail. A search warrant for it was obtained. Upon searching the automobile a .25 caliber automatic pistol that was missing from the Hewitt store was found. A search warrant was also obtained for the residence of L.. J. Prothro, the father of Howard Prothro, where Howard Prothro was living. Obtained therefrom were two twelve-gauge shotguns.

State Investigator William Traylor, of the Alabama Bureau of Investigation, testified that he interviewed appellant Thomas at the Cleburne County jail at Heflin on the evening of December 16,1976, and obtained a statement from him, which was handwritten at the time by an officer. He said appellant stated then that he could not write, but that he afterwards found that appellant could write, and he obtained another statement from him on December 21 at the Randolph County jail which was promptly typed, and appellant signed it. The second statement, or a substituted photocopy thereof, was introduced in evidence. Officer Traylor testified in detail that appellant was given plenary advice and warnings as to all of his constitutional rights at the time such statement was made; that he read to appellant the contents of the waiver of rights form; that appellant expressed his understanding thereof and signed the waiver of rights form on the occasion the second statement was made and typed. According to the witness, appellant said that Hayes and Prothro came to his house about 6:00 A.M., December 16,1976, and that the three went to Heflin. They stopped near a school house at Heflin and obtained two twelve-gauge shotguns out of the trunk of a red Chevrolet and put them in the Vega. Prothro and Hayes told him they were going to get some money, and Hayes said “he would kill if he had to get it.” They left Heflin and went to Randolph County, stopped at some stores and saw that they were crowded; they discussed the subject of robbery and the probable necessity for killing someone. They “went back to the store where the man got shot and parked next to the garage.” Appellant’s statement continued as follows:

“Zebedee said for Howard to go in and see if everything was alright and to come back and ask what kind of drinks we wanted. While Howard was gone Zebedee told me that if he had to shoot the man, he would. I told him that I didn’t have the heart to shoot anyone. Howard came back to the door of the store and asked us what kind of drink we wanted. That was the signal for us to come in. I handed him the gun with the black tape on it and I took the other one. We both went into the store about the same time. This old man was coming up the aisle between the counter and the drink box and Zebedee told him this is a stick-up, and pointed his gun toward the man. The man said I have one too, and pulled a gun out of his back pocket and pointed it towards Zebedee’s chest. Howard came up behind the man and threw his arm around his neck and began to choke him. The man was still pointing his pistol toward Zebedee and trying to pull the trigger. Zebedee shot him in the chest and Howard dropped the man, because he-thought he had been shot also, when Howard dropped the man Zebedee went behind the cash register and got the money and put it in his pocket. Zebedee told Howard to get the pocket book and anything in it. Zebedee said to let’s get out of there because he had done shot somebody. I told them to go ahead. I stopped and picked up the pistol and put it in my pocket. I jumped in the back seat, Howard was driving and Zebedee was in the front.”

He said they divided the money, which amounted to $49 apiece. He said it was “between 10:30 and 11:00 A.M. when we robbed this store and Zebedee shot the man.”

At the conclusion of the evidence for the State, defendant moved to exclude the evidence. The motion was overruled, and defendant rested without offering any evidence.

The evidence was sufficient to support the verdict of the jury, and there was no error in the court’s overruling defendant’s motion to exclude the evidence. By his statement, appellant endeavored to place himself in a more favorable light than the other two defendants, and perhaps he was not as aggressive as the other two in the perpetration of a planned robbery, in which it was obvious that murder might be committed if necessary. We are not unmindful of the provision of § 2(a)(14), (b) of Acts 1975, No. 213, that “Evidence of intent under this section shall qot be supplied by the felony-murder doctrine.” We hold that it cannot. Even so, notwithstanding appellant’s references to his claimed reluctance to kill, his conduct under all the circumstances is sufficient basis for a logical finding that he stood ready, willing, and able to kill if necessary. The self-serving features of his admission are to be considered in the light of his natural interest. They may have constituted part of the mitigating circumstances that prompted the trial judge to reduce punishment from death to life imprisonment, but they cannot serve to mandate a reasonable doubt1 as to appellant’s intentionally aiding and abetting Hayes in killing Mr. Shoffeitt. Appellant may have preferred not to shoot the victim, he may have hoped that the robbery could be accomplished without killing him, but his presence without protest, armed with a gun in the commission of a planned robbery, is strong evidence of his intention to kill if and when a homicide became necessary.

A large number of rulings of the court in admitting in evidence, over the objection of defendant, testimony of various witnesses as to the movements and occupants of the green Vega automobile with a white stripe and no tag on the morning of the crime, are argued in mass by appellant as bases for reversible error.

In objecting to such items of evidence, it was usually urged that the particular evidence did not show any connection between appellant and the movements of the automobile and the activities, of its occupants. In some instances, the particular evidence did not show such a connection, but in others it did. The admissibility of each item of such evidence does not depend upon its competency, standing alone, to impute guilt to defendant. It is admissible if, in connection with all other items of .circumstantial evidence, it is worthy of consideration as a logical link of a chain of circumstances pointing to defendant’s guilt. In Turney v. State, 16 Ala.App. 134, 75 So. 726, 727, cert. denied, 200 Ala. 700, 76 So. 998 (1917), it was said:

“ . . . Where evidence is circumstantial, it is proper to permit the state to show facts which, though standing alone, might be without probative force, yet, when connected by evidence with other facts, are material. . . . ”

In cases based largely upon circumstantial evidence, the testimony may rightly take a wide range, and much discretion must be vested in the trial court as to its admissibility. Dockery v. State, 269 Ala. 564, 570, 114 So.2d 394, 399 (1959); Creel v. State, 53 Ala.App. 504, 301 So.2d 267 (1974); Bass v. State, 55 Ala.App. 88, 313 So.2d 208 (1975); McClendon v. State, Ala.Cr.App., 341 So.2d 174, writ quashed, 341 So.2d 178 (1976).

Objections to the admission in evidence of the pistol taken from the Vega automobile pursuant to a search warrant and the twelve gauge shotguns similarly obtained from the home of Prothro which challenged the validity of the warrants on grounds somewhat different on the trial from the grounds insisted on upon appeal, were properly overruled. The evidence in its entirety shows that appellant had no interest in the automobile from which the pistol was obtained. According to the undisputed evidence, the pistol was the one that was stolen from the store. Furthermore, the evidence shows without dispute that appellant did not have any claim to or property right in either of the shotguns obtained from the home of Prothro and his father. In no way was any right of privacy or property of appellant violated. Only those persons whose privacy or whose proprietary or possessory interest in property has been invaded have standing to object to a search or seizure. Hodges v. State, 49 Ala.App. 1, 267 So.2d 798 (1972); Jones v. State, 49 Ala.App. 438, 272 So.2d 910 (1973); Bridges v. State, 52 Ala.App. 546, 295 So.2d 266 (1974); Wilson v. State, 57 Ala.App. 124, 326 So.2d 316, cert. denied 295 Ala. 429, 326 So.2d 319 (1975); Brown v. State, Ala. Cr.App., 339 So.2d 125 (1976).

It is contended that prior to the trial the court ordered the State to furnish appellant with copies of all statements “made by this defendant,” that defendant had been furnished with a copy of the typed statement signed by him on December 21, 1976, but had not been furnished with a copy of the statement purportedly made by him on December 16. Defendant objected to the introduction of each statement. The statement of December 16 was not admitted in evidence.

We can readily see some basis for a misunderstanding as to what the State was to furnish appellant-defendant, but it is clear that there was no intentional withholding of the copy of any document the court had ordered to be delivered to defendant or that defendant had requested. The first statement was shown defendant and his counsel during an interrogation, out of the presence of the jury, of the witness who took both statements. Ample time was afforded defendant and his counsel to study both statements and compare the statement exhibited at that time with the statement previously furnished. It appears that no motion for a mistrial was made, but appellant argues that a mistrial should have been granted by reason of the State’s failure before trial to furnish defendant with a copy of the statement purportedly made by him on December 16. As there was no intentional withholding of information and as it appears that defendant was not harmed by his not having a copy of the statement of December 16 at the time the trial commenced, there was no basis for a mistrial. A fortiori, the trial court was not in error in not ordering a mistrial ex mero motu. Perry v. State, 56 Ala.App. 454, 322 So.2d 745 (1975).

The court refused defendant’s requested charge 3:

“I charge you Ladies and Gentlemen of the Jury, that if you believe from the evidence, that the Defendant was illegally searched and seized in Heflin, Alabama, that you will disregard all evidence that may have been found.”

There was no evidence that in any way indicated that appellant-defendant was illegally searched and seized in Heflin, Alabama. The charge did not relate in any way to the search of the automobile or to the search of the residence of Prothro. Moreover, the evidence shows without dispute that nothing was found on defendant when he was arrested, searched and taken into custody. The charge was properly refused. Like considerations justify the refusal of defendant’s charge 4.

Defendant’s refused charge 5 directed the jury to disregard the statement made by defendant “against his interest” if the jury “believe” that it was “brought on by fear, undue influence, hope of reward or any other illegal act of the state.” No contention was made on the trial of the case, no contention is made here, that there is any basis for a finding that the “admission against interest” statement of defendant was not voluntary in every respect or that the evidence did not conclusively rebut the presumption of its involuntariness. The central theme of defendant’s defense was that, even though he had confessed to a robbery of which he was guilty according to the undisputed evidence, he was not guilty of the intentional killing of Mr. Shoffeitt, and for that reason was not guilty of the offense that called for a verdict fixing the punishment at death. There was no evidence in the case that warranted the giving of the charge. Moreover, the hypothesized belief of the jury was not predicated upon the evidence, which of itself justified the refusal of the charge. Otwell v. City of Birmingham, 23 Ala.App. 299, 124 So. 406 (1929).

We have looked for error in the record prejudicial to substantial rights of appellant and have found none. However, the record indicates that the trial court failed to ask defendant if he had anything to say as to why sentence should not be pronounced upon him. In accordance with the authorities now cited and many others, the judgment of conviction should be affirmed but the cause must be remanded for proper sentence. Gaines v. State, 52 Ala.App. 29, 288 So.2d 810, cert. denied, 292 Ala. 720, 288 So.2d 813, cert. denied, 419 U.S. 851, 95 S.Ct. 92, 42 L.Ed.2d 82; McGuff v. State, 49 Ala.App. 88, 268 So.2d 868, cert. denied, 289 Ala. 746, 268 So.2d 877.

The judgment of conviction is affirmed but the cause is remanded for proper sentence.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED. Remanded for proper sentence.

All the Judges concur.

ON RETURN TO REMANDMENT

LEIGH M. CLARK, Retired Circuit Judge.

A certified copy of a judgment entry in the instant ease has been furnished to this court by the Circuit Court of Randolph County showing that on June 27, 1978, in compliance with the mandate of this court, the appellant and his attorney appeared in open court for resentencing. The judgment entry shows a proper allocutus and sentence.

AFFIRMED.

All the Judges concur.


text:
    Terry Clifford PARKER v. STATE.
    6 Div. 705.
    Court of Criminal Appeals of Alabama.
    May 16, 1978.
    J. Louis Wilkinson and Gerald S. Topazi, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Appellant was convicted in the District Court of Jefferson County of assaulting a peace officer and resisting arrest. He appealed his conviction to the Circuit Court and was tried without a jury. He was found guilty by the trial judge and fined $200 for assaulting a peace officer and $100 for resisting arrest.

The only issue here considered is whether the appellant was wrongfully denied the right to a trial by jury. The record shows that counsel for the appellant, on appealing to the circuit court wrote on the face of each appearance bond, “Defendant demands a trial by jury in this case.” At the beginning of the trial in circuit court, the defense again moved for a jury trial which was denied by the circuit judge.

Section 15-14-30, Code of Ala. 1975, provides in pertinent part:

“In all misdemeanor cases in the circuit court, the issues and questions of fact shall be tried by the judge of the court without the intervention of a jury except in cases where a trial by jury is demanded in writing by the defendant .
[I]f the case is brought to the circuit court by appeal . . . then such written demand must be filed with the clerk within thirty days after the defendant has appealed . . .

Title 15, § 321, Code of Ala. 1940, contained substantially the same provision as above.

The State argues that Jones v. State, 27 Ala.App. 306, 171 So. 759 (1936), would disallow a jury trial where the demand was not signed. We disagree. In Jones there appeared on the back of the appearance bond form a printed statement unsigned by the defendant or his counsel stating, “I hereby demand a jury for the trial of this cause in the circuit court.” Since the demand was a part of the printed form, the Court of Appeals merely said, “ . the mere appearance of a printed form on the back of an appeal bond, unsigned either by the defendant or an attorney representing him, is not sufficient to meet the requirements of the statute.”

In the instant case, the demand for a jury trial was not a part of the printed form, but was handwritten across the bottom of the face of the appeal bond by defense counsel. The demand was made a part of the record and was called to the attention of the trial judge within the statutory time limit. The written demand was not signed, however, the statute does not require a signature, only that a trial by jury is “demanded in writing.”

In the civil case of Western Union Telegraph Company v. Merrill, 144 Ala. 618, 39 So. 121 (1905), the defendant had moved to strike the case from the jury docket on the ground that the demand for a jury trial, which was endorsed on the complaint, was not signed by the plaintiff or by his attorney. The Supreme Court stated:

“There was no merit in the motion to continue the case or to strike it from the jury docket because the demand for a jury indorsed upon plaintiff’s complaint was not signed by him or his attorney. “The act requiring the demand for a jury to be indorsed on the pleadings does not make such a requirement mandatory.— Acts 1896-7, p. 808, § 11. . .

See also: Ex parte Konig, 279 Ala. 151, 182 So.2d 883 (1966); Ex parte City of Florala, 216 Ala. 351, 113 So. 312 (1927); Ex parte Fletcher, 188 Ala. 1, 66 So. 148 (1914).

We deem the handwritten demand for a jury trial by defense counsel to comply with § 15-14-30, Code of Ala. 1975. The trial court was therefore in error, and the appellant is thus entitled to a new trial by jury.

REVERSED AND REMANDED.

All the Judges concur.