text:
    Jack MESSELT v. STATE.
    8 Div. 687.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.

      Laura Jo Wilbourn, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury returned a general verdict finding defendant guilty under a two-count indictment charging him with a violation of the Alabama Uniform Controlled Substances Act of 1971 (Code of Alabama Recompiled, 1973 Cum. Supp. Tit. 22, §§ 258(25)-258(60)). One count charged him with possession of one hundred tablets of amphetamine; the other charged that he did unlawfully “sell, furnish or give away one hundred tablets of amphetamine.” The court fixed his punishment at imprisonment for seven years and sentenced him accordingly.

The evidence in the case was brief, particularly the testimony of the State as to the conduct of defendant. It is contained in the testimony of one witness, an undercover officer of the Huntsville Police Department. He testified that at 3:10 a. m., September 5, 1973, he went to the apartment of defendant at 120 Smith Street, Huntsville, and purchased one hundred tablets from him, after telling him that he was interested in some “speed,” which he said is the street name for amphetamine. The witness further testified that he kept intact the tablets or pills purchased until he could get to the office and then placed them in a white envelope, on which he wrote an identifying legend, and placed it in a metal locking cabinet.

On cross-examination of the undercover officer, it was shown by him that he was accompanied to defendant’s apartment by a paid informer of the police department, a girl he knew by another name, but whom he identified as “Sherrie.” He said Sherrie informed him that they could probably obtain some speed at defendant’s home. He said that Sherrie knocked at the door at first and then he knocked, and after they had knocked eight or nine times, defendant came to the door and asked who it was and she said, “Sherrie,” and defendant “said something — I don’t recall what it was and then he opened the door and Sherrie introduced me to him and we went on in the living room through the front of the house.” He said Sherrie, he thought, first asked him if he had any speed and he said, “Yes.” The three apparently talked together about five or ten minutes and then Sherrie “just faded out of the conversation.” Thereafter, according to him, he and defendant had a “random conversation,” during which Sherrie was at one time “sitting on the couch but she got up and either went to the bathroom or to a bedroom — I don’t know where she went.” He said he went into the kitchen with defendant, where defendant obtained the “white crosses” out of a “larger baggie.”

Mr. Alan Adair, a criminalist with the Alabama Department of Toxicology and Criminal Investigation, testified that he took ten of the tablets from the envelope in which they had been placed by the undercover agent, and subjected them to a detailed, appropriate micro-chemical test and determined that they contained amphetamine.

Defendant testified that he had known Sherrie but that his relationship with Sherrie “was about to break apart” prior to the time he and the undercover agent came to his apartment, and the transaction took place with reference to the amphetamine. He said that at that time he was going with a girl by the name of Lynn and that she was with him in the bedroom when the undercover agent and Sherrie came to his apartment and obtained the amphetamine. He said that on the day or night before Sherrie brought “two little baggies of what we call white crosses” and asked him to keep them for her; he stuck them in his dresser drawer. According to defendant, Sherrie and the undercover agent came to his apartment at 3:00 a. m. on the morning of September 5, 1973, and banged on the doors and the windows. At that time, he was in the bedroom with Lynn, and the apartment was being occupied by another person, a young man by the name of Bob, who first went to the door, cracked the door and went back to his bedroom. Sherrie than came over and rapped on his door and “I got up and she introduced me to this individual that was with her as a cousin from Nashville that was on his way to — as a truck driver — and it was Three o’clock in the morning and she said she needed that speed.” He said he went back in the bedroom and obtained the speed for her. He said:

“She took me out in the kitchen and she said that since it was her cousin she was wanting them to be sold to him so she could make some money off them. She wanted me to charge him Forty Dollars for them and I said, ‘what?’
“Q Well, did you give her the pills like this Simpson—
“A I gave her the pills.
“Q Did you engage in any conversation with any man thereabout — did you sell some pills to anybody that night?
“A I didn’t sell them per se.
“Q Did you give them to this Sherrie girl?
“A I gave them back to Sherrie, correct.
“Q That man that was there, had you ever seen him before?
“A To the best of my knowledge, no.”

The undercover agent had testified, as to which there was no conflict in the evidence, that defendant charged him forty dollars for the tablets, but that the undercover agent only had thirty dollars with him at the time, that he gave defendant twenty dollars with the understanding between them that he would pay him the other twenty, which was never paid.

Lynn testified that she was formerly a close friend of defendant, which close friendship she emphasized by stating that she was living in the apartment with defendant, and was with him in his bedroom, at the time of the occurrence involved; that Sherrie came there the night before and gave defendant a small bag and asked defendant if he would keep it for her. According to her, the next night, when Sherrie and the undercover agent came to the apartment, Sherrie told defendant that she needed what she had given him the day before; defendant came in the bedroom, “got it and he took it back out and he handed it to her.” At the time of the trial, it had been “a year and a half” since she dated defendant.

Robert, who was sharing the apartment with defendant, testified as to the relationship between defendant and Lynn, as well as to the previous relationship between defendant and Sherrie, and that he was in the apartment when Sherrie and the undercover banged on the door and window, that he let them in and then “went directly back to bed but I did hear some voices.”

A major insistence of appellant is that the evidence sustained his claim of entrapment and that by reason thereof, he should have been found not guilty. He requested in writing a general charge in his favor, with hypothesis, which was refused by the trial judge.

Appellee takes the position that appellant is precluded from the defense of entrapment by reason of a denial that he committed the offense charged. This principle is now well established in Alabama. Owens v. State, 291 Ala. 107, 278 So.2d 693 (1975); McCarroll v. State, 294 Ala. 87, 312 So.2d 382 (1975). We turn to the question whether defendant denied that he committed the offense charged. As stated in McCarroll:

“The defense rests on the defendant’s admitting the deed but disclaiming the thought. Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716 (1960).”

Although the evidence is not altogether satisfactory as to all of the particulars that took place at the time of the commission of the alleged crime, we do not understand that defendant denied that he received twenty dollars from the undercover agent for the controlled substance received by the agent. This was the positive testimony of the agent. Defendant was not asked either by the State or defendant’s counsel whether such was true; but, as we view the record, that feature of the transaction was assumed by all to be true, and there was no issue made as to it. Furthermore^ unlike the facts in McCarroll, where defendant admitted he sold capsules to the undercover agent, but contended they contained whole wheat flour, instead of a prohibited substance, defendant in instant case admitted enough to show that he knew that the tablets were contraband. Defendant did deny that “the pills were his,” as urged by appellee, but he did not deny that he possessed them or that he sold them. His statement that tie “didn’t sell them per se” is, in the context of the record as a whole, to be understood as an admission that he took part in the transaction, including that part testified to by the undercover agent, as to which there is no conflict in the evidence, wherein the passing of twenty dollars from the agent to defendant is shown.

In addition, unlike Owens and McCarroll, all parties on the trial of this case, including the court, the State and defendant, recognized the defendant’s standing to insist on his defense of entrapment. The trial court orally charged, and gave the jury some written charges requested by defendant, on the subject.

In a number of appeals in Alabama from convictions of possession or sales of narcotics or drugs, efforts were made to show that defendant was entitled to an acquittal by reason of entrapment. In most, if not all, of them, the efforts failed. Boswell v. State, 290 Ala. 349, 276 So.2d 592, app. dis’d, 414 U.S. 1118, 94 S.Ct. 855, 38 L.Ed.2d 747 (1973); Reynolds v. State, 56 Ala.App. 509, 323 So.2d 394, cert. denied 295 Ala. 415, 323 So.2d 404 (1975); Miller v. State, 53 Ala.App. 213, 298 So.2d 633, cert. denied, 292 Ala. 741, 298 So.2d 639 (1974); Pinson v. State, 52 Ala.App. 444, 293 So.2d 869. In Boswell, the Supreme Court expressly approved what was stated in Johnson v. State, 36 Ala.App. 634, 636, 61 So.2d 867, 869 (1952), as follows:

“[Entrapment is not available as a defense to a person who has the intent and design to commit a criminal offense and who in fact does commit the essential acts constituting it, merely because an officer of the law, in his effort to secure evidence against such person, affords him an opportunity to commit the criminal act

It is not contended by appellant, nor was it contended by defendant on trial, that the undercover officer himself entrapped defendant, but that the informer, Sherrie, while acting as an agent for the city of Huntsville, and in turn an agent for the state of Alabama, entrapped defendant. In this respect, as well as in another respect hereinafter discussed, instant case is different from the cases cited in which the defense of entrapment was not upheld on appeal.

It has been firmly held by many respected authorities that the government cannot utilize the services of an informer or informant and be allowed to disown his (her) actions in order to prevail against a defense of entrapment. Sherman v. United States, 356 U.S. 369, 373-374, 78 S.Ct. 819, 2 L.Ed.2d 848; State v. Tomlinson, 243 N.W.2d 551 (Iowa 1976); People v. Stanley, 68 Mich.App. 559, 243 N.W.2d 684 (1976); United States v. Mosley, 496 F.2d 1012 (5th Cir. 1974); People v. Dollen, 53 Ill.2d 280, 290 N.E.2d 879 (1972); State v. Talbot, III, 135 N.J.Super. 500, 343 A.2d 777 (1975); State v. Moore, 69 Wash.2d 206, 417 P.2d 859 (1966); Lynn v. State, 505 P.2d 1337 (Okl.Cr.1973).

Under the uneontradicted evidence in the case now under review, the informer Sherrie furnished defendant with the controlled substance, the amphetamine tablets, which she is alleged to have possessed and sold. According to a number of cases, this single fact distinguishes such a case from the host of cases in which the defense of entrapment was not upheld. In People v. Strong, 21 Ill.2d 320, 172 N.E.2d 765, the Supreme Court of Illinois tersely held:

“We believe the record as a whole tends to show that defendant’s only sale was of narcotics supplied to him by an informer in the employ of the government. This constitutes a valid defense of entrapment and the defendant should have been discharged.”

More recently, the Supreme Court of Arizona, in State v. McKinney, 108 Ariz. 436, 501 P.2d 378 (1972), held:

“In cases wherein narcotics are supplied by the state, the courts are in agreement that the state is providing more than the opportunity to commit the offense, they are also providing the very means for the commission of the crime.”

In McKinney, the court quoted approvingly what had been said more than ten years previously by the Supreme Court of Illinois in People v. Strong, supra, as follows:

“. . . We know of no conviction for sale of narcotics that has been sustained when the narcotics sold were supplied by an agent of the government. This is more than mere inducement. In reality the government is supplying the sine qua non of the offense.”

In Jones v. State, 285 So.2d 152 (Miss.1973), defendant’s conviction was reversed and defendant discharged under facts in many respects similar to the facts in the case now under review. According to the testimony of defendant, he and the admitted paid informer of the State had been good friends and had smoked marijuana together. The informer told defendant that he had a good friend in town who wanted to buy some marijuana, that the informer had marijuana for sale but was indebted to the friend and if he sold his friend the marijuana he would expect the informer to give him the marijuana to be applied on a debt from the informer to the friend. Defendant finally agreed to make the sale for the informer; the informer showed defendant where the marijuana was hidden. Thereafter, two representatives of the Mississippi Narcotics Bureau, together with the informer, met defendant and proceeded to the point of the hidden marijuana, where it was retrieved by defendant and sold to one of the undercover agents for fifteen dollars. The court said:

“We come now to the proposition of whether or not the defendant was entitled to a directed verdict because the marijuana which he sold was supplied to him by a paid confidential informant. The undercover agents were not aware of the fact that Agregaard, the confidential informant, had furnished the marijuana to the defendant at the time they made their purchase, but their lack of knowledge on this point would not bar the defense of entrapment. In Alston, supra [Alston v. State, Miss., 258 So.2d 436], the Court stated that entrapment was an affirmative defense and the defendant must go forward with proof necessary to establish the defense, and if he does so the state has the burden of proof on that issue. In this case the defendant, by his testimony, established the defense of entrapment with no rebuttal on the part of the state.”

In Jones, supra, as well as in other cases cited, in which the judgments of conviction were reversed by reason of the establishment of the defense of entrapment in cases where an informer, working at the behest of the government, had furnished defendant the drug or narcotic necessary for his conviction, the informer did not testify. In those cases, the principle was recognized, as it was in Jones, supra, that as the burden was upon the State to prove by the evidence beyond a reasonable doubt the guilt of defendant, an affirmative showing by defendant that he had been entrapped by an informer, who did not testify in the case, the burden was not upon defendant to corroborate his testimony by the testimony of such an informer but if the testimony of the informer was necessary to provide a conflict in the evidence on the issue of entrapment, it was the State’s duty, not the defendant’s, to produce the informer as a witness.

We are not saying what the informer in this case would have testified, if she had testified, or what she will testify in the future, if she is called upon to testify. The lack of extrasensory perception prevents the former and the gift of prophecy would require the latter. We must judge by the record before us, with a full realization of the possibility that if the State had met its burden, the case would not have to be reversed. We cannot base a judgment on “what might have been.” Logic requires us to reach the same conclusion stated in United States v. Bueno, 447 F.2d 903, 906 (5th Cir. 1971) as follows:

“Neither party produced the Informer. If the Informer’s testimony would tend to disprove the Defendant’s story, it was up to the government to produce him. The Defendant having testified to facts which establish a defense as a matter of law, the government has the duty to come forward with contrary proof, if it is to carry its ultimate burden of proving guilt beyond all reasonable doubt. United States v. Groessel, 440 F.2d 602 (5th Cir. 1971).”

An anomalous situation is presented in that the appellant in this case is presently the appellant in two other controlled substances cases before this Court, which are in the process of determination. Messelt v. State, 8 Div. 712, Ala.Cr.App., 351 So.2d 636 (1977) and Messelt v. State, 8 Div. 754, Ala.Cr.App., 351 So.2d 640 (1977). The evidence supporting the convictions in both cases is strongly indicative of the disposition of defendant to traffic in drugs and narcotics. However, we cannot lift such evidence from those cases, especially as they are later cases than this one and are for alleged later crimes than the one here involved; and thereby supply omissions on the trial of this case of any evidence even tending to show defendant’s predisposition to commit the crime charged. Even so, it is doubtful that where, as here, defendant was furnished with the prohibited substance by the informer, acting for the State, and induced by said informer to commit the specific crime, which he would not have committed, but for the informer’s action, his willingness to commit a similar crime, or his predisposition to the commission of such crime, would disentitle him to the defense of entrapment. Although there is authority to that effect, we do not find it necessary to decide the question now.

For the reasons stated, the judgment should be reversed and the cause remanded.

Other questions have been raised herein by appellant that are fully discussed and decided adversely to appellant in his other two cited appeals on other convictions.

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

REVERSED AND REMANDED.

All the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jack MESSELT v. STATE.
    8 Div. 712.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.

      Laura Jo Wilbourn, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

A jury found defendant guilty of selling, furnishing, or giving away marijuana, in violation of the Alabama Controlled Substances Act. Code of Alabama, 1973 Cum.Supp.Tit. 22, §§ 258(25)-258(60). The court fixed his punishment at nine years imprisonment in the penitentiary and sentenced him accordingly.

There was positive testimony by an undercover agent of the Police Department of the city of Huntsville that on August 29, 1974, about 8:00 P.M., he and an employed informant went to the apartment of defendant in Huntsville and bought some marijuana from defendant. He said the informant first bought a small bag of marijuana from defendant, paying him a twenty-dollar bill therefor. Promptly thereafter, the undercover agent handed defendant a twenty-dollar bill, and defendant left the room they were in for two or three minutes and returned with another small bag of marijuana. Soon thereafter, according to the testimony of the undercover agent, he and the informant left the apartment; the bag of marijuana sold to the undercover agent was sealed in a brown manila envelope and turned over to an officer of the Huntsville Police Department. The chain of custody of the bag of marijuana sold to the undercover agent was substantially established by the evidence. A technician of the crime laboratory of the State Department of Toxicology and Criminal Investigation testified that the substance was marijuana.

Defendant did not testify, but four witnesses testified in his behalf. Their testimony was to the effect that they were with defendant at or near his apartment at approximately the time the undercover agent testified the sale of marijuana was made by defendant, but that no such occurrence took place.

No contention is made that the evidence was not sufficient to support the verdict of the jury, and we conclude that it was.

Appellant complains of the action of the court with reference to the conduct of an attorney for the prosecution in questioning one of defendant’s witnesses, Gary Bryant, and similar conduct of said counsel in interrogating Susan McAnnally, a witness for defendant. In each instance counsel for the State asked as to an arrest or raid relative to a drug incident. In each instance the trial court in effect sustained the objection of defendant to the question. In the first instance, defendant objected and moved for a mistrial, as shown by the following:

“Q Do you recall on the 22nd of September, 1974, at 6:40 in the morning that you were arrested in the apartment of the Defendant?
“MR. KEMPANER: Your Honor, we would extremely, definitely object to that. It is improper. It is an attempt to impeach this witness. He knows that is improper and he has not laid any sort of predicate and we ask for a mistrial.
“THE COURT: Denied. Ladies and Gentlemen, disregard the questions about the arrest of defendant from this witness.”

We agree with the trial court that the questions were improper, but we do not agree with counsel for defendant that counsel for the State was attempting to discredit or impeach either witness on the ground that he or she had been charged with some other crime. It appears to us that counsel was endeavoring to show that the witness in each instance was probably confused as to the time the witness testified that he or she was with defendant when the undercover agent said defendant sold him the marijuana made the basis of the indictment in this case. Certainly, no mistrial was justified under the circumstances, and the court was not in error in overruling defendant’s request or motion therefor.

During the opening argument of counsel for the State at the close of the evidence, the following occurred:

“Mr. Chadbourne made the statement, ‘Would you convict one police officer on the mouth of one defense attorney?’ ”
“MR. KEMPANER: We object to that.
“THE COURT: Overruled.”

The context of the argument objected to is not shown. As the only witness on the vital issue in the case was a police officer, it appears probably that State’s counsel was indirectly arguing that the jury should not acquit defendant merely because one witness only, a police officer, had testified against defendant. We do not approve the argument, but we fail to see how any injury to defendant resulted from the argument or the overruling of defendant’s objection thereto. In an effort to show injury to defendant, appellant argues that the State’s argument just quoted was a “derogatory” reference to defense counsel and was a personal accusation “against Defendant’s trial counsel in an effort to reflect such derogation to the Defendant.” We do not so consider the particular argument of State’s counsel, and we fail to find any justification in the record for the argument of appellant’s counsel with reference to it. On the other hand, it seems to us that State’s counsel was endeavoring to prevent a “derogation” of the testimony of a single police officer by placing it on parity with the testimony of one defense attorney. State’s counsel had the right to disabuse the minds of the jurors of the notion that the jury could not convict “on the mouth of one witness.”

Appellant also contends that he was not adequately and competently represented by his trial counsel and that thereby he was denied his right to counsel in violation of the Sixth Amendment to the Constitution of the United States. He attempts to support this contention by saying: (1) his counsel should have found out whether the informant, who the undercover agent testified accompanied him when the purchases of marijuana were made, would have corroborated the testimony of the undercover agent and, if not, obtained the testimony of said informant; (2) he should have then opposed a timely demurrer to the indictment; and (3) he neglected to perfect defendant’s appeal.

As to (1), no showing is attempted to be made to the effect that the informant would not have corroborated the testimony of the undercover agent. Such a conclusion would be based upon sheer speculation. Furthermore, there is no reason to conclude that his counsel did not act wisely in not endeavoring to maneuver the State into using the informant as a State’s witness.

As to (2), no point is made that the indictment was subject to grounds of a demurrer, which non-understandably entered the file in this case about a month after defendant’s trial. This inexplicable irregularity in no way injuriously affected the rights of defendant.

As to (3), appellant relies upon what was determined in Messelt v. State, Ala.Cr.App., 351 So.2d 627 (1977), wherein, on appeal by this appellant from a denial of his petition for a writ of error coram nobis, we remanded the cause with directions that have resulted in the perfection of an appeal in each of the three cases in which this appellant had been convicted, and the appointment of counsel to represent him on appeal (to supplant his former employed counsel) which she has done with commendable zeal and ability. In her dedication to the task before her, she has documented an appendix to her brief with matters relative to alleged conduct of appellant’s employed trial counsel in addition to that discussed in Messelt, supra. Nevertheless, none of this relates to any conduct of appellant’s trial counsel before or during the trial of the case sub judice. It formed no logical connection with the question whether appellant was competently and adequately represented on his trial.

We have held that even where it is shown that trial counsel has made a mistake in trial tactics, this alone does not constitute a violation of defendant’s right to adequate and competent representation by counsel. We have said “Trial tactics should not be enforced with speculative wisdom ex post facto veredicto.” Gore v. State, 45 Ala.App. 146, 227 So.2d 432, 433 (1969).

The record shows that defendant’s trial counsel conducted defendant’s defense with skill and zeal; he diligently cross-examined State’s witnesses; he interposed, and was sustained by the court as to, numerous timely objections to questions or other actions of counsel for the State; he called and interrogated adeptly a number of witnesses for defendant. The charge that he was not adequately and competently represented by counsel on the trial is not supported by the record. Mills v. State, 275 Ala. 217, 153 So.2d 650, cert. denied 375 U.S. 867, 84 S.Ct. 142, 11 L.Ed.2d 95; Drinkard v. State, 43 Ala.App. 294, 189 So.2d 583, cert. denied 280 Ala. 713, 189 So.2d 587.

Appellant’s final argument that punishment fixed by the court of imprisonment of defendant for nine years constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution has been decided adversely to appellant time and again. His punishment was within the range prescribed by the statute. Appellate courts cannot divest the trial courts of their right and duty to be governed by their own discretion in fixing punishment within the statutory range. Goolsby v. State, 283 Ala. 269, 215 So.2d 602; Moore v. State, 54 Ala.App. 463, 309 So.2d 500. Where the punishment prescribed by the Legislature is severe merely by reason of its extent, as distinguished from its nature, there is no collision with the Eighth Amendment. Cabble v. State, 347 So.2d 546 (Ala.Cr.App.); Smith v. United States, 273 F.2d 462, 467-468 (10th Cir.); 24B C.J.S. Criminal Law § 1984.

We find no error in the record prejudicial to appellant, and the judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Jack MESSELT.
    77-38.
    Supreme Court of Alabama.
    Nov. 10, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    Jack MESSELT v. STATE.
    8 Div. 754.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.
    Laura Jo Wilbourn, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of selling, furnishing, or giving away marijuana, a controlled substance as listed in the Alabama Uniform Controlled Substances Act of 1971 (Code of Alabama 1940, 1973 Cum.Supp.Tit. 22, §§ 258(25)-258(60). The case was tried without a jury, the defendant, accompanied by his counsel, having made known to the court that he understandingly and voluntarily waived his right to a jury trial with full awareness of the consequences.

This is one of three cases wherein appellant has appealed from a conviction and sentence for a violation of the Alabama Uniform Controlled Substances Act, the other two being 8 Div. 687 and 8 Div. 712, Ala.Cr.App., 351 So.2d 630, 636.

Three witnesses testified for the State, two of them merely to establish the chain of custody of the substance involved and its identity as marijuana. The only other witness, Kenneth Dupree, an undercover narcotics agent, testified that he went to defendant’s apartment on the evening of September 20, 1974, in company with an unnamed informer, that each of the two asked defendant to sell him some marijuana, and defendant complied with the requests. The marijuana that was sold to the witness was thereafter sealed in an envelope by the witness, marked for identification, turned over to the Police Department for an examination by the Department of Toxicology, whose representative analyzed it and testified that it was marijuana.

As shown by one or more of the other Messelt cases consisting of appeals from judgments of conviction under the Alabama Uniform Controlled Substances Act of 1971, as well as in Messelt v. State, Ala.Cr.App., 351 So.2d 627 (1977), an appeal from a denial of a petition for writ of error coram nobis, his attorney on the trial does not represent him on appeal. His attorney on appeal was appointed by the trial court on a determination by the trial court of defendant’s indigency.

Appellant contends that his conviction is not supported by the evidence, that the judgment of the trial court is contrary to the great weight of the evidence, and that the judgment should be set aside. Appellant bases his contention largely on the claimed weakness of the State’s evidence, but apparently chiefly on the evidence for defendant.

Defendant testified but denied any such transaction as described by the State’s witness. To some extent he was supported by three witnesses, who testified that defendant was not in his apartment at the time, claimed by the State’s witness, that he was with the three witnesses in another place at that time.

Our review of the evidence fails to convince us that the judgment is not amply supported by the evidence. Nor are we convinced by the record that the judgment is contrary to the weight of the evidence. Furthermore, we must adhere to the general proposition that, on appeal, the judgment of a trial court upon evidence taken ore terns is to be treated like the verdict of a jury, and will not be disturbed unless plainly contrary to the weight of the evidence. Moseley v. State, 53 Ala.App. 272, 299 So.2d 317, cert. denied 292 Ala. 743, 299 So.2d 319; Peterson v. State, 17 Ala.App. 662, 88 So. 49.

Appellant says also that the trial judge should have recused himself sua sponte as he had presided as judge in a case against defendant for the same type of crime in which the evidence was very similar to that in this case. We do not agree. A judge’s participation in the trial of a defendant for another crime does not, without more, furnish a basis for his recusal. Walker v. State, 38 Ala.App. 204, 84 So.2d 383.

In addition, appellant says that defendant’s counsel’s action in arranging for a non-jury trial demonstrated that defendant was not afforded adequate and effective counsel. The failure of one’s counsel to insist on a jury trial is not necessarily attributable to incompetence or bad judgment. Notwithstanding what has been said in one or more of these cases, particularly the appeal from the order on petition for writ of error coram nobis, as to the conduct on appeal of defendant’s former counsel in these cases, we have found nothing to indicate that r his efforts during trial were not intelligently directed toward a result favorable to defendant. It is to be noted also that in this particular case, defendant by having a non-jury trial was able to obtain a break in the trial for several days in order to obtain witnesses to testify in his behalf, which would not have been feasible if the case had been tried by a jury.

Other matters raised by appellant are considered and determined adversely to appellant in 8 Div. 712.

We find no error in the record prejudicial to defendant, and the judgment appealed from should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Jack MESSELT.
    No. 77-39.
    Supreme Court of Alabama.
    Nov. 10, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    Jimmy Tate RALEY and Janet McLain Flowers v. STATE.
    4 Div. 512.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Rehearing Denied Aug. 16, 1977.

      James M. Prestwood, Andalusia, for appellants.
    William J. Baxley, Atty. Gen. and Yiilton E. Belcher, Asst. Atty. Gen., for the State, appellee.
   TYSON, Presiding Judge.

The appellants, Jimmy Tate Raley and Janet McLain Flowers, were indicted along with George G. Miller for first degree murder. The jury found Raley guilty of first degree murder and fixed punishment at life imprisonment. The jury found. Flowers guilty of murder in the second degree and fixed punishment at twenty years imprisonment. The trial court then entered judgment which set sentences in accordance with these verdicts.

Mr. Gene Hendley of the United States Corps of Engineers testified that on September 8, 1976, he discovered the body of Charlie Leroy Brown. The body was located in a slue, fifteen or twenty feet from the bank of a lake in Henry County. There were four concrete blocks attached to the body with rope.

Mr. Richard Dale Carter of the Alabama Department of Toxicology testified that the rope removed from the deceased was identical to some rope found in appellant Raley’s home.

Dr. G. R. McCahan, Jr., of the Alabama Department of Toxicology and Criminal Investigation stated that on September 8, 1976, he performed a post-mortem examination of the deceased (Brown). Dr. McCahan testified that the cause of death resulted from ligature strangulation. Death occurred, according to Dr. McCahan, before the body was placed in the lake.

George Miller was also indicted for first degree murder along with Raley and Flowers. Miller testified that he had known Charlie Brown for two or three years. Miller stated that Raley and Flowers lived together at Holiday Shores in Henry County, Alabama. Miller testified that on September 3, 1976, Raley and Flowers came to his home around 4:00 p. m. According to Miller, the three of them drank gin for about an hour and then drove to the State Store where they purchased another half gallon of gin. Miller testified that the three of them also purchased some rifle cartridges and “stuff” at the Minit-Market to make a deer stew (R. 56). Around 5:00 or 5:30 p. m., according to Miller, the three of them (Miller, Flowers, and Raley) went to Raley’s home at Holiday Shores. On the way, Miller stated, they purchased some more gin. After arriving at Raley’s home, Miller testified, Raley and Miller shot cans in the back of Raley’s home on the lake. Around 9:00 p. m., Deputy Sheriff Horace Hancock arrived at Raley’s home. Sheriff Hancock told Raley and Miller that he had received complaints concerning the shooting and told them to stop firing their rifles. Miller testified that after Hancock left, Ra-ley told him to go pick up Brown and bring him back to Raley’s home. When Miller asked Raley why he wanted to see Brown, Raley replied that Brown had been “running his mouth” about dope, whiskey, and raping Flowers (R. 60). Miller stated that Brown came back to Raley’s house with him voluntarily. Brown got out of Miller’s car, according to Miller, and Raley knocked him to the ground, then asked him if he tried to rape Flowers. Brown, Miller testified, denied doing so, whereupon Flowers hit him with a drink bottle across the face. Raley, Miller testified, kicked Brown in the side several times while he was on the ground. Miller testified that he tried to stop Raley, but Raley told him to shut his mouth and go inside the house.

Miller stated that he went inside Raley’s house for about ten minutes and that when he came back outside, Brown was on the ground in an unconscious state. Raley, according to Miller, made him help carry Brown’s body to a small boat on the lake behind Raley’s house. Miller testified that Raley made him lay on his stomach in the boat and told him to keep his head down and his eyes closed. Then, according to Miller, Flowers, Raley and himself drove out to the interior of the lake and then back to Raley’s house. When the three of them returned to shore, Miller stated, Brown was not in the boat. Raley, Miller testified, said he would kill Miller if he told anyone what happened.

Raley testified that Brown owed Miller some money. On September 3, 1976, according to Raley, Miller left his home around 10:00 p. m. and returned around 10:30 p. m. with Brown and someone called Carl. Raley indicated that Miller and Brown began arguing over the debt. Raley stated that he asked both to leave after they began fighting. Raley testified that they left, and the next morning when he awoke he discovered Miller sleeping on his couch. Miller, according to Raley, told him not to tell anyone that he had been with Brown that night.

Flowers testified basically as to the same set of facts as Raley. Flowers testified that Miller admitted killing Brown to her while he was in the Headland jail.

Cecil Brown, deceased’s thirteen year old son, testified that on September 2, 1976, he had seen Miller and Raley on the street. Miller, Cecil stated, told him that he and Raley were going to kill his father and throw him in the lake.

Bobby Earl Dansby testified that Miller and Raley came to his house on September 3,1976. Dansby stated that Miller told him that he and Raley were going to beat up Charlie Brown.

Lorene Turner testified that she shared a cell at the Henry County Jail with Flowers in the fall of 1976. Turner stated that Flowers admitted killing Brown while with Raley, despite Miller’s efforts to stop them.

I

Appellants contend that the trial court erred in its denial of appellants’ motions for change of venue where the court had made a prior judicial determination that the safety of one of the appellants (Flowers) was in peril in the county in which the case was to be tried and where the court entered an order directing the sheriff to transport the appellant (Flowers) out of the county for her safekeeping. In connection with this, the appellants claim error in not being informed of the court’s order directing the sheriff to transport the appellant out of the county for safekeeping.

On September 16, 1976, Judge Jerry M. White, Henry County Circuit Court, entered an order directing the sheriff of Henry County to transport the appellant (Flowers) to Julia Tutwiler Corrections Institution for Women until her trial, pursuant to Title 15, Section 268, Code of Alabama 1940. The grounds for removal in said order were (R. 415):

“1. That the above named defendant is the only female prisoner in the Henry County Jail at the present time.
“2. That the only cell available to separate her from male prisoners is directly in front of a window leading to the outside. “3. That law enforcement officers in the county have been informed of threats and ill will toward prisoner and fear for her safety.
“4. That the Sheriff of Henry County feels adequate protection and security cannot be provided for the prisoner in the Henry County Jail.”

The order was never executed and therefore appellant Flowers remained in the Henry County Jail until after her trial.

On October 7, 1976, the appellants filed their respective motions for a change of venue. On October 21,1976, the appellants’ motion for a change of venue was heard before the Honorable Jerry M. White, Circuit Judge, Henry County. At the hearing, Sheriff J. F. Welcher testified that the Henry County Jail did not have the facilities to accommodate a female prisoner. Sheriff Welcher stated that the only way to isolate Flowers from the male prisoners was to place her in a cell having a plexiglass (non-bullet proof) window. The interior of this cell is visible to anyone outside the jail. Sheriff Welcher testified that he had only seen one television account of the recovery of Charlie Leroy Brown’s body. The appellants, according to Sheriff Welcher, could receive a fair and impartial trial in Henry County. The court denied appellants’ motion for a change of venue. Judge White’s order pertaining to the transfer of appellant Flowers to Julia Tutwiler Corrections Institution for Women, pursuant to Title 15, Section 268, Code of Alabama 1940, was not made known to appellants or their counsel until November 8, 1976, after the trial of the case.

“The movant [for a change of venue] has the burden to reasonably satisfy the trial court that an impartial jury cannot be had in the circuit court to which the indictment is returnable.” Garrison v. State, 47 Ala.App. 536, 258 So.2d 68. See also Gilliland v. State, 291 Ala. 89, 277 So.2d 901; Tiner v. State, 271 Ala. 254, 122 So.2d 738; Dannelly v. State, 47 Ala.App. 363, 254 So.2d 434.

The television report of the crime was of a routine nature and was not in any sense of the word sensational. Aycock v. State, 50 Ala.App. 130, 277 So.2d 404. The appellants did not establish at the hearing that an impartial jury could not be had in Henry County. The fact that Sheriff Welcher was concerned with the jail’s facilities being able to accommodate a female prisoner is completely irrelevant as to whether or not an impartial jury could be had in Henry County.

There was no error in the appellants not being informed of the transfer order issued by Judge White pursuant to Title 15, Section 268, Code of Alabama 1940. Such order was not executed, and no prejudice was shown by the appellants due to its not being communicated to them. The grounds set out in the order, supra, have no bearing as to whether or not an impartial jury could be had in Henry County. The judicial determination that appellant Flowers be transferred to Julia Tutwiler Prison was not a “critical stage” of the trial, and therefore appellants’ absence from such determination was not error. Johnson v. State, Ala.Cr.App., 335 So.2d 663; Berness v. State, 263 Ala. 641, 83 So.2d 613.

II

Appellants contend that the trial court erred in not allowing appellants’ counsel to question the attorney of an alleged accomplice of these appellants about any concessions made by the district attorney to the accomplice where said accomplice was the State’s key witness.

Miller, the alleged accomplice, was asked on cross-examination the following question (R. 84):

“Q. Now, was he present when you made any sort of agreement with Mr. Sorrells and Mr. Whiddon and Mr. Hal-stead about testifying in this case?
“A. I haven’t made any agreement.
“Q. Are you telling — am I understanding you right, that you haven’t had any promise of anything on the indictment against you? If you testified, you would receive another treatment?
“A. Only that they would take my testimony into consideration.
“Q. Who said that?
“A. Mr. Sorrells.”

As may be seen, the possibility of bias or interest on the part of this witness was squarely before the jury for their consideration. Allen v. State, 55 Ala.App. 549, 317 So.2d 517.

During the cross-examination of Miller, counsel for appellant wished to question him concerning several written statements he had made to police officers (R. 103-105). The trial court allowed Mr. Lewis, Miller’s attorney, to confer with the district attorney outside the presence of the court in the hall. Upon returning, the district attorney gave appellants’ counsel the written statements with which to cross-examine Miller. Later in the proceedings, Mr. Lewis, Miller’s attorney, was called to the stand on behalf of the appellants and the following occurred (R. 235):

“Q. All right. This question: Did you have any discussion yesterday with the District Attorney about exhibits 2, 3, and 4?
“A. Yes. Yes, I think I did.
“Q. Now, what did the District Attorney tell you?
“MR. SORRELLS: Now, Judge, we object to that.
“THE COURT: I sustain the objection to that. Mr. Prestwood, he represents a defendant in this case, and I am not going to allow that. I sustain the objection to it.”

The question asked was so vague and indefinite as to the specifics of Lewis’ conversation that any irrelevant evidence could have been given in reply. The trial court cannot be put in error therefore for sustaining an objection. Jones v. State, 52 Ala.App. 184, 290 So.2d 251. The question was too broad and lacked specificity.

Ill

The appellants’ motion for a new trial, which was denied by the trial court, cites as grounds the issues already resolved by this opinion. The facts stated above clearly establish a prima facie case of first and second degree murder. We are unwilling to disturb the verdict of the jury and judgment of the trial court.

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

AFFIRMED.

All, the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Jimmy Tate RALEY and Janet McLain Flowers.
    SC 2800.
    Supreme Court of Alabama.
    Nov. 18, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Frank HILLYER, Jr. v. STATE.
    5 Div. 392.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Rehearing Denied Aug. 16, 1977.

      W. Larry Ray, Opelika, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Sale of marijuana; sentence: ten years imprisonment.

On April 19, 1976, Deputy Sheriff Alex Smith, an undercover agent for the Lee County Sheriff’s Department, went to the appellant’s residence pursuant to an undercover drug investigation conducted by the Lee County Sheriff’s Department. Smith entered the appellant’s dwelling and told the appellant that he “had come to buy a bag.” The appellant then gave Smith a plastic bag containing a green vegetable substance, later identified as marijuana by the State Department of Toxicology. He received $25.00 from Smith in exchange for the bag of marijuana.

The appellant was indicted for the sale of marijuana on September 21, 1976. On September 27, after determining that the appellant was indigent, the trial court appointed Honorable W. Larry Ray to represent him. By formal arraignment on September 29, the appellant entered a plea of not guilty. On October 12, 1976, when the case was called for trial, the appellant’s attorney made an oral motion that the case be continued. His ground for the motion was that the appellant from September 27 until October 11, 1976, represented to him that he would plead guilty, but the appellant had changed his mind the day before the trial and intended to plead not guilty. As a result of the appellant’s change of mind, witnesses for the appellant had not been subpoenaed. However, the appellant's counsel stated that, as far as he knew, the appellant had no witnesses to call to testify. The court denied the appellant’s motion.

After the jury venire was qualified, but prior to striking a jury, the appellant requested the court appoint another attorney to represent him. The court denied the motion, and the appellant’s attorney thereupon attempted to withdraw from the case. He stated in the judge’s chambers that he could not ethically represent the appellant and advocate a position he believed to be untrue. The court treated the withdrawal as a motion to withdraw, and denied it. The case proceeded to trial, resulting in a conviction.

I

Appellant contends that he was deprived of his constitutional right to have compulsory process for obtaining witnesses in his favor as a result of the trial judge’s refusal to grant a continuance.

The continuance of a criminal prosecution due to the absence of defense witnesses or on the ground that sufficient time was not allowed to locate certain persons, is a matter left to the trial court’s discretion. The exercise of that discretion is revisable only upon a positive showing of clear abuse. Henry v. State, 57 Ala.App. 383, 328 So.2d 634 (1976); Clayton v. State, 45 Ala.App. 127, 226 So.2d 671 (1969); Huskey v. State, 129 Ala. 94, 29 So. 838 (1901). The appellant’s attorney himself stated that there were no known witnesses which the appellant would wish to call; further, any failure to contact witnesses prior to trial was caused by the accused’s role in shortening the time for such preparation by his last minute change of mind as to his plea. Considering the noncomplexity of the case; the admitted non-existence of other witnesses; the absence of likelihood of prejudice; the appellant’s role in causing the lack of preparation time; and the adequate defense presented by appellant’s counsel as revealed by the record, we can find nothing to indicate that the appellant was prejudiced in his defense, nor do we find any abuse of discretion by the trial court below. Sowells v. State, Ala.Cr.App., 339 So.2d 1090 (1976); Demos v. State, 57 Ala.App. 588, 329 So.2d 646 (1976). See: United States v. Uptain, 531 F.2d 1281 (5th Cir. 1976). Without more than appears in the instant record, there was no “. . . invasion of the defendant’s constitutional right ‘to have compulsory process for obtaining witnesses in his favor.’ ” Walker v. State, 117 Ala. 85, 23 So. 670 (1897) (quoted in Huskey, supra, 129 Ala. at 99, 29 So. at 840).

II

Appellant contends also that he was deprived of his Sixth Amendment right to effective counsel by: (1) the trial court’s refusal to allow his attorney to withdraw, and (2) the trial court’s refusal to allow him to obtain other counsel.

In order to show ineffective representation by counsel, the appellant must show that the conduct of the attorney reduced the trial to a farce, sham, or mockery of justice. Johnson v. State, 57 Ala.App. 470, 329 So.2d 160 (1976). There is nothing in the record to indicate that the appellant’s counsel was ineffective, nor that appellant believed his counsel was incompetent, nor that the appellant seriously believed he would be better off by being represented by other counsel. Demos, supra. Though the appellant’s counsel expressed some reservation about representing the appellant under the circumstances, the record of the proceedings indicate that appellant was ably represented at trial by his attorney. We therefore find no error in the ruling of the trial judge in this regard. Also see: Hayes v. State, Ala.Cr.App., 340 So.2d 1142 (1976).

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Frank HILLYER, Jr.
    SC 2798.
    Supreme Court of Alabama.
    Nov. 10, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: DeCARLO, Judge. BOOKOUT, Judge,

text:
    John Charles DOANE v. STATE.
    3 Div. 666.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.

      Maury D. Smith, Sterling Culpepper, Jr. and Charles S. Coody, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

John Charles (Jack) Doane was indicted by the Grand Jury of Montgomery County for unlawfully and with malice aforethought killing Catherine (Kitty) Doane by stabbing her with a knife. The appellant was arraigned on this charge and trial was commenced on June 17, 1975.

After a four-day trial the jury returned a verdict finding the appellant guilty of manslaughter in the first degree and fixing his punishment at five years in the penitentiary. The court entered judgment in accordance with the jury’s verdict and the appellant gave notice of appeal. The appellant renewed his notice of appeal when his request for probation was denied and his case is now before this court on appeal.

The record did not disclose a motion to exclude the State’s evidence, a request for the affirmative charge or a motion for a new trial. Therefore the sufficiency of the evidence was not raised and only a brief recitation of the facts will be given.

The evidence presented at trial showed that the appellant and the deceased, Catherine (Kitty) Doane were separated on April 13, 1974, and a divorce was being sought.

On April 13, 1974, the night before Kitty Doane’s death, the appellant was having a birthday dinner for his mother at the Ames-bury Apartments where he lived in Montgomery, Alabama. His mother, sister, nephew, and Jim Leyland, a friend, were present. The party continued until about 11:30 P.M., when the appellant drove Ley-land to the Spanish Fort Apartments.

From Leyland’s apartment he proceeded to Kitty Doane’s residence in the Down-towner Apartments. On arrival, Doane knocked on the door and when there was no response he went to a local nightspot called Dale’s. In was about 12:30 A.M., and after he was allowed in, he saw Kitty Doane at the bar. According to appellant, Kitty was alone at the time and when she refused to let him take her home he left and went to Quinn’s, another nightspot. Doane remained there for approximately forty-five minutes and then returned to Dale’s. Kitty was sitting at the bar and at that time there was a man seated next to her. Doane again tried to persuade her to go home and she again refused. At that point he left and returned to Quinn’s.

Sometime after he returned to Quinn’s, he met a young lady that he knew and they sat at a table and talked. Shortly thereafter Kitty came to Quinn’s. Doane said she was screaming and that he could not understand her. After making the remarks, she slapped him and left. Doane said he then got into his car and when he started to drive off, Bruce Beaupit hollered at him to stop. Beaupit came over and asked Doane to take him to the Whitley Hotel, which he did.

On leaving the hotel, appellant drove to the Downtowner Apartments again. He parked his car on Scott Street beside the First Baptist Church and walked into the apartment building. Doane recalled that he knocked lightly on the door and simultaneously turned the knob. Doane said the door caught on something and that he pushed it open. He then saw a person that he first thought was Kitty but then realized it was a man in his underwear. Doane looked to his left and at that moment was struck on the head and knocked to the floor. Appellant said that when he hit the floor Kitty ran to the drawer where knives were kept and tried to get them. According to Doane, he was trying to get to his feet and was also trying to reach and grab Kitty’s hand when the man grabbed him from behind. They began to wrestle and Kitty came toward him with what be believed to be knives in both hands. He said he could not see what the objects were because the lights were dim. Doane threw up his left arm at that point and jumped back. He said Kitty then stabbed him on the wrist. Doane maintained it was a three-way fight with Kitty and the man fighting him. He stated that because of his injured arm he could not protect himself and, after Kitty started stabbing him in the stomach, he tried to get out the door. Appellant said he went out the door and turned to his left. He recalled that as he was going out the door he was struck some four times and Kitty was on her feet.

Bill Graham testified that he met Kitty Doane at Dale’s and at her invitation he went to her apartment. On their arrival he latched the door after they entered and she went to the refrigerator and asked if he would like a beer. Graham said “No” and she began to drink one herself. According to Graham, he was standing in the center of the living room near a coffee table, with his shirt and shoes off but with his trousers on. Graham recalled “The door came open all of a sudden, and Jack Doane looked in, and told me, he said, T see you in there.’ He looked straight at me.” At that point Doane pushed the door open and headed straight for the kitchen. Graham said that Doane removed something from a drawer and then charged straight at him. He ran to the back part of the apartment but Doane pursued him and stabbed him on the nose. Graham felt the blood “gushing out” and ran from the apartment. He said that Kitty was in the vicinity of the refrigerator when he left.

Graham ran down the hallway and then headed north on Perry Street. He said that he had traveled about two blocks when he heard a car. Graham continued to run and heard the sound of a car’s brakes slam on behind him. When he looked up he saw the appellant and heard him say: “ ‘It’s going to be a pleasure to kill you, you son-of-a-bitch.’ ” Graham said that at that point he ran, jumped over a fence and went to the bus station from which he was later taken to the hospital.

I

The appellant contends that the admission of the testimony of the witness, Graham, concerning events occurring subsequent to Graham’s exit from the deceased’s apartment was immaterial and prejudicial. Counsel argues that the information elicited from Graham, including the purported threat, was introduced solely to show that the appellant may have had a tendency to commit the crime, with which he was charged and that this was error. Counsel further argues this evidence had no bearing on the questions of knowledge, plan, design, motive or identity. Moreover, counsel for the appellant argues that these events after the incident at the apartment could not be part of the res gestae of the crime with which the appellant was indicted. He insists that the events leading up to the death of Catherine Doane were at an end insofar as the evidence shows.

In Smith v. State, 88 Ala. 73, 7 So. 52, the facts were similar to those giving rise to the testimony being objected to in the instant case. In Smith v. State, the facts show that a homicide occurred on the evening of January 17, 1888 at the home of Mary Goodwin, where J. D. Connelly and one Spears were sitting by the fire. Subsequently, the defendant and Joe Gill entered the house and Spears and Gill became involved in a slight altercation. As a result the defendant fired a shot hitting John Spears in the right hip and then turned and fired again, shooting the deceased in the breast. Spears testified that he then ran from the house and defendant shot at him after he had run some thirty yards. The Supreme Court said in Smith v. State:

“According to the testimony for the prosecution, the shooting of Spears and of Connelly, the deceased grew out of one altercation, and was one continuous transaction. And the pursuit of Spears by defendant, firing at him as he ran immediately after inflicting the death-wound on Connelly, was not only part of the res gestae, but tended strongly to show the hostile spirit under which he was acting. Speaking on a kindred subject, the General Court (Supreme Court) of Virginia in Heath's Case, 1 Robertson, 735, 743, said: ‘The fact of the shooting, as being a part of the circumstances and of the res gestae, ought not to have been precluded from being given in evidence to the jury, although such evidence might itself have tended to prove a distinct felony committed by the prisoner.’ ”

See: Granberry v. State, 182 Ala. 4, 62 So. 52; Smith v. State, 183 Ala. 10, 62 So. 864.

In the present case the appellant’s confrontation with Graham on the second occasion resulted from the earlier altercation and seems to have been a deliberate act on the part of the appellant. Graham testified that he was some two blocks from the apartment when he first heard a car behind him. He said he then cut across a parking lot and when he came near the Arco Station on the corner of Adams and Perry Streets he heard a car’s brakes slammed on behind him. When he looked up he saw the appellant and heard him make the threat.

According to the testimony for the State, the stabbing of Graham and Kitty Doane grew out of the same encounter and was one continuous transaction. The pursuit of Graham by the defendant was not only part of the res gestae, but tended strongly to show the “hostile spirit under which he was acting.” Although such evidence might of itself have had a tendency to prove another felony, being a part of the circumstances and of the res gestae, it should not be precluded from the jury’s consideration.

II

The appellant maintains- that the failure to exclude evidence of difficulties occurring prior to the marriage of the appellant and his deceased wife constituted abuse of the trial court’s discretion. Counsel argues that the incident which occurred in 1970 could not have any bearing on the question of whether, during the marriage, the appellant had threatened harm to the deceased should she seek a divorce. Further, appellant insists that this event was too far removed in time to have any effect other than to prejudice the jury.

The incident alluded to in appellant’s contention is found in the following testimony of the deceased’s brother:

“Q Did you ever have an occasion to go to Qunn’s [sic] with Jack Doane and your sister?
“A Yes, sir, I have on many occasions.
“Q All right. Did a fight every erupt during any of these occasions?
“A Yes, sir.
“Q Between Jack and your sister?
“A Yes, sir, it did.
“Q All right. I want you to tell the jury did Jack Doane ever try to harm your sister during any of these fights?
“A Yes, sir.
“MR. SMITH: We object to that.
“THE COURT: Wait just a minute. What, if anything, did he do to her?
“Q (By Mr. Thomas) All right. That is what I’m getting to: What if anything, did he do to her?
“MR. SMITH: I would like to know the time and place or the approximation of it.
“Q (By Mr. Thomas) All right. Give us the time and the date, the best of your recollection, and where it was.
“A The best of my recollection, it was in November of 1970.
“Q All right.
“MR. SMITH: In November of 1970?
“THE WITNESS: Yes, sir.
“Q (By Mr. Thomas) All right. Now, tell the jury under what circumstances and what happened?
“A Well, sir, we went up to sing with Henry the piano player.
“Q Who is Henry the — piano player where?
“A He plays down at Quinn’s, sir.
“Q Okay. Who was with you?
“A Jack Doane, my sister, and myself.
“Q Okay.
“A And we were up there singing with the piano player. Well, he didn’t — I don’t know what he had against Henry, but he called Kitty back. He told her to get up off the stool, and everything else, because we’re sitting next to Henry on the piano stool; and he was playing and we were singing. And he told her to get up off the piano stool and get back over to the table, and a few other words; and an argument ensued, and we left out of there.
“Q You and Jack and Kitty left?
,!A Right, sir. And my sister—
“Q What happened when you got outside?
“A Well, nothing happened when we got outside, but my sister drove Jack Doane to his apartment, where he lived at the time.
“Q Were you in the car with her?
“A Yes, sir.
“Q And what happened while they were driving?
“A Jack Doane had gotten out of the car, and at first we were going into his apartment.
“Q Were they separated or married?
“A They weren’t married at the time, sir.
“Q Oh, this was before they got married?
“A Yes, sir.
“Q Okay. Fine. What happened?
“MR. SMITH: We object to that.
“THE COURT: Overruled.
“THE WITNESS: Well, we were going to go into his apartment for a drink before we went back to Hope Hull trailer park.
“MR. SMITH: May we just have a continuing objection to this line of testimony?
“THE COURT: Yes. Let the record show that he has a continuous objection to these questions and a continuous exception to the court’s ruling.
“MR. SMITH: Thank you, Your Honor.
“Q (By Mr. Thomas) This was before they got married, right?
“A Yes, sir.
“Q All right. Now, tell the jury what happened?
“A Well, we were going to go into the apartment, and he was calling this Henry the piano player at Quinn’s — he was calling him a—
“Q He was cussing him?
“A Right.
“Q Okay. Tell us what happened.
“A He grabbed my sister by the throat; and I was out of the ear already, and my sister didn’t want to come out of the car.
“Q Grabbed her by the throat?
“A Right, sir.
“Q Did you see him grab her by the throat?
“A Right, sir.
“Q What was she doing while he was grabbing her by the throat?
“A She was hollering, ‘Jimmy,’ as much as she could, ‘he’s choking me.’ And I didn’t know what in the heck to do; the man is bigger than me.
“MR. SMITH: Object to it, if the court please.
“THE COURT: Yes.
“Q (By Mr. Thomas) What did you do, if anything?
“A Well, I had infantry training, and the only thing I could tell him, if he doesn’t leave her alone, I was going to do something—
“MR. SMITH: We object to it and move to exclude it. It’s not responsive, and it calls for mental operation. He stated a mental operation, not stated a fact.
“Q (By Mr. Thomas) Did you grab him?
“A No, sir, I did not. I threatened him, though, to grab him.
“Q You threatened to grab him—
“A Right, sir.
“Q —where?
“A By his scrotum.
“Q Did he then turn her a loose?
“A Yes, sir, he backed away; and then at the same time what happened, my sister was behind the wheel, and the motor was running. And she hit the accelerator pedal fast; it was in reverse. And the next thing I know Jack Doane went up on his head backwards and landed on his belly, just like a stick falling over. And I reached in and I grabbed the keys out of the ignition and I told Katy — I call her Katy — Kitty Doane — .”

It is settled law in Alabama that the prosecution may prove former acts of hostility by the accused toward the victim for the purpose of showing motive and malice. Wright v. State, 279 Ala. 543, 188 So.2d 272; Emerson v. State, 281 Ala. 29, 198 So.2d 613; Spain v. State, 37 Ala.App. 311, 68 So.2d 53. However, uncertainty prevails with respect to the extent to which the details of a former difficulty may be proved. This court in Padgett v. State, 49 Ala.App. 130, 269 So.2d 147, in speaking to the extent to which details of a former difficulty may be proved, said:

“. . .we are of the opinion that a large measure of discretion should be given to the trial judge. As Judge McElroy has stated in McElroy, the Law of Evidence in Alabama, Second Edition, Volume I, Section 45.06(6):
“ ‘It is submitted that the sound rule to apply is: If the gravity or triviality of a former difficulty or quarrel is material to be proved, the trial court should exercise its discretion to admit evidence of such details or particulars as is necessary to a correct ascertainment of such gravity or triviality, even though such evidence tends to show who was at fault in such difficulty or quarrel.’ ”

The testimony concerning the incident occurring in 1970, just prior to the appellant’s and the deceased’s marriage, was a fact from which the jury could infer what motivated the appellant to do the act charged. Such evidence tended to show the malice or motive inducing him to commit the offense.

The trial judge in allowing the detailed testimony of the former difficulty acted within his discretion and it was not error.

III

The appellant complains that the judge in his oral charge referred to the word “necessity” in charging the jury as to the elements of first degree manslaughter and again used the same word during his explanation of self defense. The appellant insists that the jury through confusion, would have no choice other than to find the appellant guilty of manslaughter in the first degree based upon the court’s oral charge.

The charge in question reads as follows: “Manslaughter is the unlawful filling [sic] of another without malice either expressed or implied, which may be either voluntary upon a sudden heat of passion or involuntary but in the commission of some unlawful act. Manslaughter in the first degree is the voluntary and unlawful depriving of a human being of his life. There must be a positive intention to kill or an act of violence from which ordinarily in the usual course of the events, death or great bodily harm may result. It is not necessary that the perpetrator intended or willed the death of the party. It boils down in its final analysis, ladies and gentlemen of the jury, this of taking of human life to the question of necessity. Was it necessary to take human life in this case? Based on that doctrine of necessity, was it necessary, if the Defendant did take her life? And that is what it’s boiled down to.” [Emphasis added.]

Following the charge on first degree manslaughter, the court charged on second degree manslaughter, character evidence and then gave the following instruction on self defense:

“Now, there is another question involved in this case, and I want to direct your attention to that, the question of self-defense. You have heard the evidence in this case as to what happened to the Defendant, if it did happen, and you are convinced beyond a reasonable doubt that it did happen. There are three essential elements of self-defense, which are this: that the Defendant must be free from fault in bringing on the difficulty. This appears to mean that the Defendant must be wholly free from fault in bringing on the difficulty, that he must not say or do anything to provoke or bring on the difficulty, must not be unmindful of the consequences of this or any wrongful word or act. There must be a present impending peril to life or danger of great bodily harm either real or so apparent as to impress on the mind of a reasonable prudent person a reasonable belief of existing necessity." [Emphasis added.]

It is the use of the word “necessity” in the two portions of the court’s oral instructions that the appellant contends, through confusion, would have caused the jury to find the appellant guilty of manslaughter in the first degree. Counsel argues that from the facts presented at trial the jury could have concluded that the appellant’s actions were in self defense and that he acted out of necessity. Further, counsel insists that when the court defined manslaughter in the first degree as a killing of necessity, the jury had no choice but to find the appellant guilty of manslaughter in the first degree. He argues the jury could not be expected to understand that the trial court may have used the word “necessity” with two different meanings.

A careful review of the court’s oral charge shows that the court instructed the jury as to all the other degrees of homicide, as well as manslaughter in the first degree. The instructions in no way suggested or directed the jury to find the appellant guilty of first degree manslaughter. The words complained of, “necessary” and “necessity” when read in the context of the complete charge would seem to negate rather than demand a finding of first degree manslaughter in any case where the jury found the appellant’s actions necessary.

Taken in its entirety the court’s instruction did not confuse or mislead the jury. The instructions were in accord with the law and were proper.

IV

We have studied the record and find no reversible error.

AFFIRMED.

TYSON, P. J., and BOWEN, J., concur.

BOOKOUT, J., dissents.

HARRIS, J., recuses.

BOOKOUT, Judge,

dissenting:

I differ from the majority opinion concerning the trial judge’s oral charge to the jury. It is my opinion that the trial court was in error in charging on manslaughter:

“. . .It boils down in its final analysis, ladies and gentlemen of the jury, this of taking of human life to the question of necessity. Was it necessary to take human life in this ease? Based on the doctrine of necessity, was it necessary, if the Defendant did take her life? And that is what it’s boiled down to.” (Emphasis supplied.)

The jury found appellant guilty of first degree manslaughter. Such an instruction could have easily confused and misled the jury on the difference between the technical elements of manslaughter and of the defense of self-defense. Self-defense is based upon necessity to take life. If the jury, following the charge on necessity, found that appellant killed out of necessity to save his own life, they may have very well thought it was their duty to return a verdict of guilty of manslaughter.

A trial judge generally cannot be put in error for erroneously instructing the jury where the exception to the oral charge is made after the jury has retired and commenced its deliberations. The reason for that rule is that the exception must come at a time where the trial judge will have an opportunity to correct his charge. Strickland v. State (1977) Ala.Cr.App., 348 So.2d 1105; Tuberville v. State (1977) Ala.Cr. App., 348 So.2d 868; Owens v. State, 53 Ala.App. 553, 302 So.2d 240, cert. denied 293 Ala. 769, 302 So.2d 243 (1974).

In Strickland the jury had retired the previous night, but had not begun its deliberations when the exception was made, outside their presence, the next morning. In Tuberville the jury had retired to commence deliberating when the exception was made. In both cases the trial judge refused to call the jury back in and give further instructions. We affirmed the trial court in both of those cases.

The instant situation is somewhat different. In the presence of the jury, counsel for appellant stated, “Your Honor, we would except to a portion of the court’s charge out of the presence of the jury.” The court agreed, sent the jury out (with instructions that they could begin deliberating) then five minutes later, after hearing several exceptions, called them back into the court and corrected only one part of the oral charge relating to the punishment for second degree manslaughter.

As distinguished from Strickland and Tu-berville, supra, here the exception was made in the presence of the jury, but the grounds for exception were explained outside their presence. The trial judge had an opportunity to correct the entire charge when he brought the jury back in, but corrected only a portion. It was not necessary for the appellant to renew his exception where the trial judge, in his extended charge, did not attempt to correct the portion excepted to. Milligan v. State, 45 Ala.App. 112, 226 So.2d 172 (1969); Davis v. State, 40 Ala.App. 118, 112 So.2d 353 (1959) cert. denied 269 Ala. 695, 112 So.2d 355.

I conclude that the trial court committed prejudicial error in refusing to correct that portion of his oral charge excepted to. I therefore respectfully dissent.


author: FAULKNER, Justice.

text:
    Ex parte John Charles DOANE.
    No. 77-43.
    Supreme Court of Alabama.
    Nov. 10, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Emory Ward ALDRIDGE, Jr. v. STATE.
    6 Div. 27.
    Court of Criminal Appeals of Alabama.
    Aug. 16, 1977.
    Rehearing Denied Oct. 4, 1977.
    Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

In September of 1972, Emory Ward Al-dridge, the appellant, was indicted for first degree murder in the strangulation death of his wife. At his arraignment he entered a plea of not guilty and not guilty by reason of insanity. Upon motion by defense counsel, Aldridge was ordered confined to Bryce State Mental Hospital for examination. On January 24, 1973, a lunacy commission determined Aldridge to be incompetent then and at the time of the murder.

On October 30, 1974, Aldridge was adjudged competent “to participate in the legal process”. He was returned to the county jail and his case scheduled for trial. On the 18th of June, 1975, Aldridge was found guilty of murder in the second degree and sentenced to thirty years imprisonment.

There is no question that Aldridge actually strangled his wife on July 25, 1972. His eleven year old daughter witnessed the murder and testified against her father. Aldridge admitted killing his wife but claimed he just went “crazy”. His defense was insanity. Two staff psychiatrists from Bryce Hospital testified that Aldridge was psychotic and paranoid at the time of the murder; that he suffered delusions about his wife’s infidelity to him; and that he thought his wife was trying to kill him. Aldridge testified that his family had had him committed to the state mental hospital in Mississippi in March of 1972. There he was given shock treatments and was in a coma for three days. He remained in the hospital for six days. His release was obtained by his wife.

Aldridge’s brother testified that Aldridge was aggressive before his “change” and that in the early part of 1972 when the brother had an opportunity to observe Al-dridge, he was calmer and “you could talk to him better than you could before” the change. The brother stated that Aldridge needed mental help.

I

The principal argument asserted by the appellant for reversal is that it was error for the trial judge to charge the jury that the burden was on the defendant to prove the defense of insanity to the reasonable satisfaction of the jury. The appellant contends that since the state has the burden of proving intent the state should also be burdened by being required to prove the defendant’s mental competency. Generally see 17 A.L.R.3d 146 Annotation : Modern status of rules as to burden and sufficiency of proof of mental incompetency in criminal case.

Title 15, § 422, Code of Alabama 1940, Recompiled 1958, provides that:

“Every person over fourteen years of age charged with crime is presumed to be responsible for his acts, and the burden of proving that he is irresponsible is cast upon the accused. The defense of insanity in all criminal prosecutions shall be clearly proved to the reasonable satisfaction of the jury.”

The constitutionality of this statute has been upheld in Martin v. State, 119 Ala. 1, 25 So. 255 (1898) and McGhee v. State, 178 Ala. 4, 59 So. 573 (1912). In Hutchens v. State, 45 Ala.App. 507, 232 So.2d 687, cert. denied, 285 Ala. 755, 232 So.2d 700 (1970), this court addressed the identical issue presented here and held that this statute was not invalid as being contrary to due process relying on Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). Subsequently the United States Supreme Court has confirmed that it remains constitutional to burden the defendant with proving his insanity. Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976); Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

“We thus decline to adopt as a constitutional imperative, operative country-wide, that a State must disprove beyond reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of the accused. . We therefore will not disturb the balance struck in previous cases holding that the Due Process Clause requires the prosecution to prove beyond reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the nonexistence of all affirmative defenses has never been constitutionally required; and we perceive no reason to fashion such a rule in this case and apply it to the statutory defense at issue here.” Patterson, supra, at 210, 97 S.Ct. at 2327.

Although a plea of insanity was made, the prosecution was required to prove beyond a reasonable doubt every element of the crime charged, including, in the case of first degree murder, premeditation, deliberation, malice and intent. No additional elements were required for conviction. The trial judge instructed the jury on this point in clear and definite language.

“These and other instructions, and the charge as a whole, make it clear that the burden of proof of guilt, and of all the necessary elements of guilt, was placed squarely upon the State. As the jury was told, this burden did not shift, but rested upon the State throughout the trial, just as, according to the instructions, appellant was presumed to be innocent until the jury was convinced beyond a reasonable doubt that he was guilty. The jurors were to consider separately the issue of legal sanity per se — an issue set apart from the crime charged, to be introduced by a special plea and decided by a special verdict.” Leland, supra, 343 U.S. at 795, 72 S.Ct. at 1006.

We affirm and renew our holding proclaiming the constitutionality of Title 15, § 422 placing the burden on the accused to prove an insanity defense to the reasonable satisfaction of the jury.

II

The argument of the appellant that it was error for the trial court to instruct the jury that the evidence of insanity was separate from the evidence on the general plea of not guilty is without merit. Leland, supra, 343 U.S. at 790, 72 S.Ct. at 1006, set out above.

Title 15, § 423, Code of Alabama 1940, Recompiled 1958, provides that the defense of insanity must be specially pleaded, and evidence of insanity is not admissible under the general plea of not guilty.

“The purpose of the statute has been said to be to separate as far as possible the two defenses of ‘not guilty’ and ‘not guilty by reason of insanity,’ and to have the proof directed to each of the two defenses, and the verdict to respond to each of such defenses. (Citations omitted)” Parrish v. State, 139 Ala. 16, 50, 36 So. 1012, 1023 (1903).

The two assignments of error we have just discussed are concerned with the oral charge of the trial court to the jury. The only objection made to the court’s oral charge was a simple, “We accept (sic).” The proper way to reserve exceptions to the oral charge of the court or to portions thereof, is to recite the portion objected to or the substance thereof. Failure to do so waives any error for the judge is not allowed to correct erroneous instructions. Owens v. State, 53 Ala.App. 553, 555, 302 So.2d 240, 242, cert. denied, 293 Ala. 769, 302 So.2d 243 (1974).

Ill

Appellant also cites as error the failure of the trial court to give ten of his requested instructions. All dealt with the subject of insanity. Some of these requested charges were incorrect statements of law. Those that were correct statements were fully and substantially covered in the court’s oral charge where they were presented and framed in clearer and more articulate language. The refusal of these charges was not error. Title 7, § 273, Code of Alabama 1940, Recompiled 1958.

We have reviewed the record as required by law and finding no error prejudicial to the substantial rights of the accused, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

All Judges concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Emory Ward ALDRIDGE, Jr.
    No. 77-47.
    Supreme Court of Alabama.
    Nov. 18, 1977.
   TORBERT, Chief Justice.

WRIT DENIED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.