author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    George MERRIWEATHER v. STATE.
    6 Div. 510.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.

      Joel R. Chandler, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Milton E. Belcher, Asst. Atty. Gen. for the State, appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found appellant-defendant guilty of robbery and fixed his punishment at imprisonment for ten years. He was sentenced accordingly.

The undisputed evidence is that defendant was one of two stocking-masked men who, at about 10:00 P.M. on the night of March 22,1976, robbed Verna Bradley, then in charge of the C & C Pit Barbecue in Tuscaloosa, and took from the cash register approximately forty dollars and from under a counter a revolver. In accomplishing the robbery, one of the men was armed with a pistol and the other with a sawed-off twenty-two rifle.

The only eyewitness identifying appellant-defendant as one of the robbers was the other robber, Donald R. Little, who testified in detail as to the plan made between him and appellant-defendant for the robbery, the consummation thereof, and the subsequent division of the loot.

Appellant premises one of his two asserted grounds for a reversal on the necessity for corroboration of the testimony of an accomplice to sustain a conviction for a felony. Code of Ala.1975, § 12-21-222.

In addition to the testimony of the accomplice, the prosecution presented testimony that after the robbery, fingerprints or a palm print of defendant were found on the top of a drink box or beer cooler inside a portion of the premises enclosed by a counter and swinging door that separated the section occupied generally, if not exclusively, by employees from the part usually occupied by customers.

Appellant assails the testimony as to the fingerprints or the palm print as insufficient corroborative evidence on two principal grounds:

(1) The witness testifying as an expert examiner of fingerprints was not sufficiently qualified to testify as such an expert and

(2) There was some evidence to the effect that defendant’s fingerprints or palm print could have been placed on the drink box or beer cooler by him at some time previous to the robbery while he was lawfully behind the counter in the process of getting beer from the cooler.

As to the qualification of Ron Smith, employee of the Alabama Bureau of Investigation, as a latent fingerprint examiner, who testified emphatically and positively that his examination of the fingerprints or palm print that another witness had testified had been lifted from the top of the drink box after the robbery, matched a known fingerprint card of defendant, had had approximately five years experience in latent fingerprint work. He was a graduate of the FBI Advanced Latent Fingerprint School. He had attended seminars on the subject and crime scene photography schools held in Montgomery. He had taken courses while attending college that aided him in latent fingerprint work.

The question of the competency of a particular witness to testify as an expert is addressed primarily to the trial court. In the absence of abuse of discretion vested in the trial court, we cannot supplant its judgment by our own, even if it were otherwise. Byars v. Mixon, 292 Ala. 661, 299 So.2d 262 (1974); Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974); Hunter v. State, Ala.Cr.App., 338 So.2d 513 (1976); Chafin v. State, Ala.Cr.App., 333 So.2d 599, cert. denied 333 So.2d 609 (1976). The trial court was not in error on admitting the testimony of the particular witness.

Furthermore, relative to the qualification of the witness as an expert, we should note that it appears to us that he demonstrated by his testimony a high degree of expertness in the field of fingerprint identification.

There was some evidence, though of a weak and inconclusive nature, that defendant had been behind the counter of C & C Pit Barbecue on occasions prior to the robbery and conceivably could have been there a short while before the robbery. On the other hand, there was evidence to the effect that every night before the close of business, the top of the drink box or beer cooler was cleaned with a dish rag or dish towel.

In order for testimony to be sufficiently corroborative of that of an accomplice to meet the statutory requirement, it is not necessary that it be direct and conclusive. Circumstantial evidence from which guilt of defendant can be reasonably inferred is sufficient. As quoted in Goodman v. State, 52 Ala.App. 265, 291 So.2d 358, 363 (1974):

“Any circumstantial evidence is sufficient to corroborate if it proves that accused was connected with the criminal act, or tends to connect him with the commission thereof, or if such connection may reasonably or clearly be inferred from the corroborative evidence; and where the accomplice is strongly corroborated by facts and circumstances connecting accused with the crime, a conviction will be sustained. 23 C.J.S., Criminal Law, § 812(3), page 109.”

Able counsel for appellant have rendered noteworthy dedicated service in their thorough analysis of the law and evidence and in emphasizing in their argument the possibility that the evidence, separate and apart from the testimony of the accomplice, fails to show that appellant was one of the robbers. Notwithstanding such a possibility, we do not think the evidence in this respect lacked substance or strength. Evidence, other than that of the accomplice, was to the effect that both robbers came close to the drink box or beer cooler, that one of them rifled the cash register while the other was standing at the drink box or beer cooler with a long gun in his hands, that they were there four or five minutes and that during a part of that time the only other person in the place, Verna Bradley, was lying on the floor at the direction of one of the robbers. Such evidence, when compared with evidence that fails to show with reasonable, certainty that appellant had ever been where he could have placed his hand on the drink box prior to the robbery and fails to furnish a basis for a strong inference that he had been there previously on the day of the robbery, leads to a reasonable, if not absolutely certain, conclusion that appellant was guilty.

Immediately after the jury returned its verdict and was “excused for the day” the following occurred:

“MR. CHANDLER: Your Honor, we would like to move for a mistrial at this time. We would do it either before or after sentencing, whichever Your Honor prefers.”

Thereafter, counsel for defendant made known to the court that a drawing of the scene of the robbery, which had not been admitted in evidence, had gone with the evidence and other appropriate documents to the jury room at the time the jury commenced deliberations and had remained there until the verdict was returned. It was also made known to the court that on the back of the particular diagram was a diagram of a robbery of the First Alabama Bank.

A lengthy hearing on defendant’s “motion for a mistrial” was conducted, which was commenced promptly after the return of the verdict and resumed the following day, at which time the jurors were interrogated and made statements relative to the diagram, and other evidence was presented. At the conclusion of the hearing, the court overruled the motion for a mistrial. Appellant urges error in this ruling of the court.

In Gilliland v. State, 266 Ala. 24, 93 So.2d 745, it is stated:

“. . . The jury is not permitted to consider extraneous matters, but only that which is introduced into evidence pending trial. Humber v. State, 19 Ala.App. 451, 99 So. 68, certiorari denied 210 Ala. 559, 99 So. 73; 39 Am.Jur., § 84, p. 97; 23 C.J.S., Criminal Law, § 1369, p. 1038; 67 A.L.R. at page 1531.
“In reviewing the ruling of the trial court on a motion for a new trial when extraneous matter apart from the trial is brought before the jury, the test is, whether, in our opinion, such matter might have influenced the jury in reaching their verdict, . . . ”

We apply the stated test to the facts in instant case.

Upon inquiry of the jurors in open court in the presence of the parties, it was disclosed that the back of the diagram was never seen by the jurors. It was laid on the table in the jury room face up and other matters placed on it. In this circumstance, it is our opinion that the matter on the back of the diagram could not have influenced the jury in reaching their verdict.

As to the contents of the front of the drawing, it is to be noted that the drawing was in the view of the jury throughout the trial of the case. Upon identification of the first witness in the case until the conclusion of the testimony it was repeatedly referred to by witnesses and counsel for the parties. There is no contention that there was anything on the face of the drawing that was inappropriate. There is no contention that there was any thing objectionable to either party on the face of the drawing. The face of the drawing conveyed no information to the jury while in the jury room that had not been emphatically conveyed to the jury during the trial of the case. In our opinion, no harm to defendant could have resulted from the apparently inadvertent mistake of someone in allowing the diagram to go with the jury to the jury room.

A determination of what documents or other material should go to the jury room for consideration by the jury during deliberations is the responsibility of the trial judge, but the attorneys for the parties, the court reporter, the acting clerk and the bailiff, in degrees varying with the circumstances, share responsibility for bringing to the attention of the trial court any question as to whether particular documents or other material should go to the jury room. We do not find any blameworthy conduct on the part of any particular person in connection with the taking of the drawing to the jury room, but when the one complaining is no less responsible therefor than others, his complaint is not ordinarily well taken. See McCormick v. Badham, 204 Ala. 2, 11, 85 So. 401 (1910).

We have found no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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. The judgment below is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex Parte George MERRIWEATHER.
    77-777.
    Supreme Court of Alabama.
    Nov. 22, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Michael HOLSCLAW v. STATE.
    8 Div. 18.
    Court of Criminal Appeals of Alabama.
    July 25, 1978.
    Rehearing Denied Aug. 29, 1978.
    Richard Chesnut of Watson, Moore & Chesnut, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The indictment in this case charged the appellant with having “forcibly ravished Patricia Harper.” The jury returned a verdict of guilty of the lesser included offense of assault with intent to ravish. Thereafter, the trial judge set sentence at fifteen years imprisonment in the penitentiary. Appellant’s timely motion for a mistrial was overruled.

From the evidence presented by the State at trial, it appeared that the following events transpired in Madison County, Alabama, on the night of May 24th and 25th, 1977:

About 11:00 p. m., Patricia Harper went to a local bar in Huntsville where she met one Michael Hand. Mr. Hand invited Mrs. Harper to smoke some marijuana with him, and the two of them went outside to the parking lot. There Mr. Hand introduced Mrs. Harper to the appellant. The group of three decided to take Mrs. Harper’s automobile to the appellant’s home. On the way one marijuana cigarette was smoked by the three of them. Mrs. Harper examined the appellant’s driver’s license before allowing him to drive her automobile and recalled his name and age. Near Monte Sano Boulevard, the appellant turned right off the main road onto a gravel road and drove a few hundred yards, then stopped. The appellant got out of the driver’s side of the automobile and told Mrs. Harper to get out of the passenger’s side. The two of them walked away from the automobile to the rear while Mr. Hand remained in the back seat. Shortly later, Mr. Hand heard screams and went to investigate. He found Mrs. Harper sprawled on the ground with the appellant standing over her. Mrs. Harper. claimed that the appellant had tried to strangle her. Mrs. Harper testified that the appellant raped her. The appellant drove away in Mrs. Harper’s automobile, leaving Mr. Hand and Mrs. Harper. The two of them managed to flag down a passing motorist who subsequently delivered them to the police. Examination of Mrs. Harper at Redstone Arsenal Hospital resulted in a negative finding in a test for the presence of spermatozoa, but a more sensitive test for the presence of acid phosphatase, an element of male seminal fluid, yielded positive results which indicated probable coitus within twenty-four to forty-eight hours of examination.

I

At trial the State was allowed to introduce twelve police photographs of six people which had been used by the arresting officer, Bell, in obtaining an identification of the appellant from Mrs. Harper and Mr. Hand. Several days after the incident, both witnesses identified photographs of the appellant as being one of the group of six suspects. The photographs of the appellant depicted the subject in the standard profile and frontal views. Hanging from the appellant’s neck was a placard bearing the following words and numbers (R. p. 125):

POLICE DEPARTMENT

HUNTSVILLE, ALABAMA

1-13-75

056567

When the State offered the photographs into evidence, the defense objected as follows (R. p. 75):

“MR. CHESNUT: Your Honor, we object to the photographs. Been no proper foundation as to when the identification was made, whether it was contemporaneous with or days passed the actual incident.
“THE COURT: Overruled. You are moving to admit 2 through 7?
“MS. ANDERSON: Yes, your Honor. “THE COURT: They are admitted.”

Subsequently the defense amended its ground of objection to the photographs (R. p. 82):

“Judge, this may be to my own detriment, the pictures, I objected to the time they were taken. I didn’t object to the content, but the picture of Holsclaw is a police picture and shows he was booked in, it’s got the numbers on it, and everything. I would like to register an objection to the entry of that based on that fact.”
“THE COURT: Overruled.”

These photographs were admitted into evidence notwithstanding the fact that there was a prior positive in-court identification of the appellant by both Mrs. Harper and Mr. Hand. We note specifically that both of these identifications appeared to be especially reliable since Mr. Hand had previously known the appellant and Mrs. Harper had examined the appellant’s driver’s license just prior to the incident.

On further examination of arresting Officer Bell, the State went into an oral statement made by the appellant to Officer Bell after Miranda warnings had been given. On voir dire examination, out of the presence of the jury, defense counsel elicited the following testimony from Officer Bell relating to the appellant’s statement (R. p. 78):

“So he told me, says, the first statement he made was, ‘I’m a homosexual.’ Then he says, ‘I’m bi-sexual,’ and he said that Michael Hand was the one that did this, and he was going to get some help; and, on the way down the mountain, he got to thinking about his prison record, so he just kept going, and that was it.
“Q. That was the sum total of the statement?
“A. Yes, sir.
“MR. CHESNUT: Your Honor, we would move to exclude that statement as having no probative value whatsoever on the issue; and, furthermore, the statement about the prison record, his personal sexual preferences would be highly prejudicial.
“THE COURT: Overruled.
“MR. CHESNUT: Judge, could we ask then the reference to the prison record to be stricken from the statement?
“THE COURT: Well, I think the function of the Court is to make some ascertainment at this stage of the voluntary statement without force or coercion; and, once that determination is made, the Court then doesn’t extract any portion of the statement.”

After the jury was recalled to the courtroom, Officer Bell restated the substance of the appellant’s statement. At this point, defense counsel stated (R. p. 80):

“MR. CHESNUT: Your Honor, at this time I am going to object to the statement offered into evidence and ask for instructions regarding the admissibility of the statement; and, in the alternative, move for a mistrial.
“THE COURT: Overruled.”

On this appeal the appellant asserts that the trial court erred in admitting the “mug shots” or “rogue’s gallery” photographs of the appellant and in allowing the above-quoted testimony into evidence concerning the appellant’s statement. After careful examination of the record in this case and the applicable law, we conclude that the errors complained of did injuriously affect the substantial rights of the appellant. Accordingly, for the reasons hereinafter expressed, we reverse and remand the case to the trial court for a new trial.

On appeal the State asserts that the “mug shots” of the appellant were admissible under the so-called “identity exception” to the general rule that evidence of collateral offenses is inadmissible at trial of another unrelated offense. We do not agree.

In Scott v. State, Ala.Cr.App., 353 So.2d 36 (1977), this Court followed the applicable rule expressed by the Supreme Court of Alabama in Williams v. State, Ala.Sup., 350 So.2d 708. In that case the Supreme Court, per Mr. Justice Faulkner, stated:

“The issue presented is, does a plea of not guilty, where the defendant offers no other defense, and where the witness made a positive identification based upon her observation of defendant at the first robbery, place his identity in issue, so as to justify admission of a separate and distinct subsequent offense. The answer is no. . . .” (Williams, supra, at 709)

In the instant case, the appellant, not having taken the stand and having been identified positively in court by two witnesses, did not place his identity in issue. It follows, therefrom, that the “identity exception” relied upon by the State in asserting the photographs’ admissibility is inappo-site here.

The appellant also relies upon the case of United States v. Harrington, 490 F.2d 487 (2d Cir. 1973), wherein the United States Court of Appeals for the Second Circuit enumerated three prerequisites to a ruling that the introduction of “mug shot” type photographs does not result in reversible error:

“1. The Government must have a demonstrable need to introduce the photographs; and
“2. The photographs themselves, if shown to the jury, must not imply that the defendant has a prior criminal record; and
“3. The manner of introduction at trial must be such that it does not draw particular attention to the source or implications of the photographs.” (Harrington, supra, at 494)

More recently, in United States v. Bowers, 567 F.2d 1309 (5th Cir. 1978), the United States Court of Appeals for the Fifth Circuit adopted the analysis used in the Harrington case. In Bowers, supra, the court cited another of its own opinions, United States v. Rixner, 548 F.2d 1224 (5th Cir. 1977), cert. denied, 431 U.S. 932, 97 S.Ct. 2639, 53 L.Ed.2d 248, wherein it was stated:

“This Court finds that the photographs were erroneously admitted, but constitute only harmless error in light of the strong evidence otherwise introduced regarding defendant-Jones’ participation in the conspiracy and identification of him by other witnesses and the in-court identification of him by Mrs. Willard [Citations omitted] . . However, the assistant United States Attorneys and other government prosecutors should take heed regarding the introduction of mugshots during trial and if this practice is continued, future cases may very well be reversed [Citation omitted]. . . ” (Emphasis supplied) Rixner, supra, at 1226.

It is noteworthy that the photographs used at trial in the Rixner case had been carefully “doctored” so that the prejudicial words and numbers were not visible to the jury. See also United States v. Davis, 487 F.2d 112 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878.

In the instant case, this Court will follow the analysis adopted by the United States Court of Appeals for the Fifth Circuit in the Bowers case, i. e., the Harrington analysis. In applying this analysis, we find that (1) the State did not have a demonstrable need to introduce the photographs in light of the two reliable in-court identifications; (2) also, the photographs in question depicted the appellant in such a way that the jury could reasonably infer that he had a prior criminal record; and (3) the manner of introduction at trial drew particular attention to the source or implications of the photographs themselves. Thus, having failed to pass all three prongs of the Harrington analysis, the introduction of the photographs into evidence constituted reversible error.

II

In asserting that the trial judge did not err in admitting arresting Officer Bell’s testimony concerning the appellant’s statement, the State again relies on the so-called “identity exception” noted in Part I of this opinion. For the reasons therein stated, we feel that application of the “identity exception” is inappropriate in this case. Officer Bell’s testimony contained irrelevant material which had no probative value, other than proving the existence of prior offenses. Madison v. State, 40 Ala.App. 62, 109 So.2d 749 (1958), cert. denied, 268 Ala. 699, 109 So.2d 755.

The references therein to the appellant’s sexual preferences should have been excised by the trial court. The reference to the appellant’s prison record only served to get before the jury indirectly information which the State, by virtue of the appellant’s not having taken the stand, was forbidden to present directly. Williams v. State, Ala.Sup., 350 So.2d 708; Scott v. State, Ala.Cr.App., 353 So.2d 36 (1977). It is fundamental that the accused in a criminal trial is entitled not to have his prior criminal record brought before the jury if he chooses not to take the witness stand, and if the evidence of collateral offenses does not specifically fit within an enumerated exception to the general rule of exclusion. McMurtrey v. State, 37 Ala.App. 656, 74 So.2d 528 (1954); Hinkle v. State, 50 Ala.App. 215, 278 So.2d 218 (1973).

For the errors hereinabove enumerated, the judgment is reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.

DeCARLO, J., in result only.


author: BLOODWORTH, Justice.

text:
    Ex parte STATE of Alabama, Ex rel. ATTORNEY GENERAL.
    77-772.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Grant COOPER v. STATE.
    6 Div. 738.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
    Rehearing Denied Oct. 3, 1978.

      David S. Hassinger, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., J. Bernard Brannan, Jr., Asst. Atty. Gen., Montgomery, for appellee.
   HARRIS, Presiding Judge.

Under an indictment charging murder in the first degree appellant was convicted of murder in the second degree and the jury fixed his punishment at twenty-five years in the penitentiary. Throughout the trial proceedings appellant was represented by Court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on this appeal.

The evidence presented by the State was more than sufficient to sustain the verdict of the jury and the judgment rendered thereon. Appellant did not testify in his behalf.

On June 24, 1977, appellant and the deceased, Ernest Howard Winchester, were both residing at the Forgotten Man Mission located at 1721 Pearson Avenue, Southwest, Birmingham, Alabama. This was a charitable mission known as a half-way house for ex-felons who did not have a place to live.

Joseph K. Morgan testified that he was associated with the Forgotten Man Mission on June 24, 1977, and had been connected with the mission house since 1976. Mr. Morgan knew both appellant and the deceased, but he was not present when an argument occurred between the deceased and appellant. There was testimony that during this argument appellant pulled out a pocketknife and stabbed the deceased nineteen times causing his death. After the stabbing Mr. Morgan was called back to the mission house and found the deceased prostrate on the kitchen floor. He appeared to be dead. Mr. Morgan found appellant sitting in a chair on the front porch and he asked him if he killed Mr. Winchester and he said, “yes,” but he did not say anything else; that appellant appeared to be calm and not nervous or upset in any way. He further testified that two days later he attended Mr. Winchester’s funeral in Tuscaloosa, Alabama, and observed him in an open casket.

On cross-examination Mr. Morgan testified that a new resident, Alvin Jackson, arrived on June 24, 1977, and he was called on the telephone and was asked what room he was to be assigned. Mr. Morgan asked to speak to one of the older residents and appellant came to the telephone. Mr. Morgan directed the appellant to show him a room upstairs in which he was to live.

Mr. Jack R. Parker testified that he was employed by the Jefferson County Coroner’s Office and had served as Deputy Coroner since 1973. Prior to joining the Coroner’s Office he had seven years investigative experience with the Jefferson County Sheriff’s Department and had seen knife wounds on the bodies of deceased persons many times. He had a degree from Jefferson State University in mortuary science. His qualifications were not questioned by defense counsel. On June 24,1977, he went to the Forgotten Man Mission house and examined the body of a man identified to him as Howard Winchester. He viewed the body of the victim and observed a “good bit of blood around the room.”

This witness was present when an autopsy was performed on the victim and he observed nineteen slashing and penetrating knife wounds on the body of the deceased. He said that one of the wounds entered the left lung of the victim which caused him to bleed to death.

Alvin D. Jackson testified that he moved into the Forgotten Man Mission on June 24, 1977. On that day, Winchester and appellant began arguing. Jackson testified that appellant suddenly drew a pocketknife, the blade of which was approximately four inches long. Winchester had no weapon at all.

From the record:

“Now, after the defendant got a knife out, what, if anything, did you see happen there between him and Mr. Winchester, if anything did happen?
“What happened?
“A. Well, all I know is that they had got to arguing and using bad profanity.
“And he just started sticking him.
* sff * * * *
“A. There was a table up here (indicating), right in the middle of the dining room.
“Q. All right.
“A. And he had pushed him all up against the table and started sticking him.”

Jackson further testified that Winchester did not try to hit appellant: “He didn’t even try to defend himself.”

James L. Robertson testified that he resided at the Forgotten Man Mission on June 24, 1977. Robertson knew both appellant and the victim. About five-thirty, in the afternoon, Robertson was upstairs in his room when he heard a noise which attracted his attention. Robertson came downstairs and saw the deceased and appellant scuffling. After walking into the office, Robertson walked back out and saw the deceased backing around the kitchen table, “hollering, ‘Don’t stab me anymore, Grant.’ ” Appellant walked out on the front porch when the deceased fell on the kitchen floor.

Alvin Jackson was then recalled to testify. Jackson examined a knife shown to him and identified it as the weapon used by appellant to stab the deceased.

Jerry Frazier testified ’ that on June 24, 1977, he investigated an incident at the Forgotten Man Mission in his capacity as a patrolman for the Birmingham Police Department. There he observed a body identified to him as being Howard Winchester. Appellant was sitting on the front porch. Frazier obtained from appellant a pocketknife and took appellant to the City Jail, after appellant was examined at Cooper Green Hospital because of his complaint of chest and shoulder pain.

Kenneth H. Glover testified that he was employed by the Birmingham Police Department. On June 24, 1977, he and Frazier investigated an incident at the Forgotten Man Mission. Glover testified that he was present at Cooper Green Hospital when appellant was examined. He observed no cuts, scratches, or bruises on appellant, with the exception of one scratch on one of appellant’s hands.

David Barnett was called to testify for the defense. Barnett was a councilman for the Vocational Rehabilitation Service. On June 24, 1977, Barnett took Alvin Jackson to the Forgotten Man Mission, since he had no place to stay. When Barnett arrived, Kenneth Morgan was not present at the Mission; so he called him at home. Morgan spoke to appellant over the phone. After the call was finished, appellant led Barnett and Jackson upstairs to show Jackson a room. When the three men came downstairs, another man asked appellant, “Grant, do you know what you are doing?” This question was repeated twice, and the man appeared to be upset. Barnett left at this time. Barnett did not recognize a picture of Howard Winchester, which was shown to him.

Jack Parker was called as a defense witness. Parker testified that an examination of a blood sample taken from Howard Winchester revealed that the alcohol content in the blood was .15 percent.

Reverend Sam. Browning testified that he was pastor and assistant director of the Forgotten Man Mission. On June 24, 1977, Browning received a phone call, telling him that there was trouble at the Mission. When Browning arrived there, he found appellant trying to use the telephone. Appellant told Browning he was trying to get himself some help. Earlier that day, Browning testified, Winchester had helped appellant fix an electric fan.

During redirect examination of James Robertson by the District Attorney, the following occurred:

From the record:
“Q. How long did you know Mr. Cooper, the defendant?
“A. I don’t know. We both done a lot of time in the penitentiary.
“MR. HASSINGER: May I approach the bench, Your Honor?
“THE COURT: All right.
(Thereupon, ensued an off-the-record discussion, following which the following proceedings were had and done:)
“MR. HASSINGER: Your Honor, I would object to that remark and ask for a mistrial.
“THE COURT: Let me say this to you, Mr. Robertson:
“He just asked how long he knew him, and he replied by telling him where he had known him and how, and so forth.
“That was not responsive to the question. I am going to instruct you, and I do instruct you, to answer the questions just like they are asked.
“Don’t volunteer, don’t explain anything.
“If he says, ‘How long have you known him?’ don’t say, ‘We sat on the moon together nine months.’
“You say, T knew him nine months.’
“Do you follow me?
“A. Yes, sir.
“THE COURT: Now, ladies and gentlemen, let me say this to you:
“I do overrule the motion for a mistrial,—
“MR. HASSINGER: We except.
“THE COURT: —but I do instruct you not to consider, on the question of the guilt, or innocence, of the defendant, any statement by this witness about where he knew him.
“That is not a fact in this case.
“This man is being tried not for where he may have been at some other time, but he is being tried because a grand jury indicted him for first degree murder.
“The indictment states: ‘ — unlawfully and with malice aforethought killed Ernest Howard Winchester by stabbing him with a knife.’ That is exactly what he is being tried for.
“You are not to let some unresponsive remark of a witness prejudice you against the defendant and his right to a fair and impartial trial.
“We are not trying him for where he may, or may not, have been at some other time. That is not proper for the witness to say that. I instruct you not to consider it.
“Is there any one of you who feels like you cannot conscientiously disregard that?
“Until this is answered, I am going to withdraw my ruling on the motion for a mistrial.
“Is there any one of you who feels like you cannot disregard that statement of the witness in passing on the question of the guilt, or innocence, of this defendant?
“If there is anyone that feels like they can’t disregard it, I want you to raise your hand so that I will know how to proceed.
“All right, no one raised his hand, so the Court will infer from that that the jury will not permit the unresponsive statement to affect their verdict one way or another.
“All right, proceed. Overrule the motion for a mistrial. Proceed.”

Appellant contends that the trial court erred in refusing to grant a mistrial, because the prosecution injected in the case evidence of his bad character before he had entered any evidence of his good character. Gamble, McElroy’s Alabama Evidence, Section 27.01(1), 3rd Ed. (citations omitted). There was no error for two reasons.

First, it should be noted that appellant brought out on the cross-examination of Kenneth Morgan that the Forgotten Man Mission was a half-way house for ex-felons without a home. Alabama Digest, Criminal Law, Section 1169(2).

Secondly, the trial court exhaustively reprimanded the witness for replying unresponsively and similarly instructed the jury to disregard the response of the witness, as shown above. Kimbrough v. State, Ala.Cr.App., 352 So.2d 512, cert. denied, Ala., 352 So.2d 516.

Next appellant contends that the trial court erred in not allowing him to argue self-defense before the jury.

To sustain a claim of self-defense, it is necessary that the following conditions be established: (1) that the accused was in actual or apparent imminent peril; (2) that the accused was unable to retreat; and (3) that the accused was free from fault in bringing on the difficulty. Collier v. State, 57 Ala.App. 375, 328 So.2d 626, cert. denied, 295 Ala. 397, 328 So.2d 629. If the undisputed evidence fails to establish one of these conditions, or there is no evidence warranting the finding of these conditions, the accused is not entitled to have his claim of self-defense submitted to the jury. Gamble, McElroy’s Alabama Evidence, Section 457.02(5), 3rd Ed. (citations omitted). The burden of establishing inability to retreat and the requisite state of imminent peril is on the accused. Kemp v. State, 278 Ala. 637, 179 So.2d 762.

No evidence was presented that appellant was ever in any degree of peril; nor was there any evidence to imply that appellant could not retreat. From the evidence presented it was undisputed that a vocal dispute rapidly escalated into a brutal onslaught upon Howard Winchester, who was unarmed, by the appellant. There was no error in the trial court’s refusal to charge the jury on the law of self-defense under the facts of this case. A defenseless man was stabbed to death without any reason.

Appellant also urges that the trial court erred to reversal by failing to charge the jury on the lesser included offenses of first degree murder. This contention is only predicated on the fact that the trial court did not charge the jury on involuntary manslaughter. However, the trial court gave full, complete and comprehensive instructions on first degree murder, second degree murder, and first degree manslaughter.

Appellant did not request charges on involuntary manslaughter. In order that the question be reviewable, it is necessary that counsel submit written requested charges. Cooper v. State, Ala.Cr.App., 331 So.2d 752.

An accused is entitled to have the jury charged on a lesser included offense only where there is a reasonable theory from the evidence to support such a position. Fulghum v. State, 291 Ala. 71, 277 So.2d 886. Manslaughter in the second degree , is the unlawful killing of a human being without malice, either express or implied, and without intent to kill or inflict injury causing death, committed accidentally in the commission of an act not felonious or in the improper or negligent performance of a lawful act. Callahan v. State, Ala.Cr.App., 343 So.2d 551.

In Fulghum, supra, we find the following language:

“Where it is clear to the judicial mind that there is no evidence tending'to bring the offense within some particular degree, and where it clearly shows from the evidence that the defendant was either guilty of murder or voluntary manslaughter or innocent, and, where there is no evidence tending to show that the killing was unintentional or accidental, a charge on manslaughter in the second degree is unnecessary and is not proper. Ware v. State, 147 Ala. 699, 41 So. 181 (1906); Ragsdale v. State, 134 Ala. 24, 32 So. 674 (1901); Pierson v. State, 99 Ala. 148, 13 So. 550 (1892).”

It was not error for the trial court to omit an instruction to the jury on involuntary manslaughter.

At the close of the State’s case, appellant made the following motion, which was denied:

“MR. HASSINGER: Your Honor, at this time we move for a directed verdict for failure of the State to prove a prima facie case.
“THE COURT: Overrule.”

Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation or deliberation. Brown v. State, Ala.Cr.App., 348 So.2d 534. The State’s evidence as detailed above is sufficient to sustain the appellant’s conviction for murder in the second degree.

There was no error in the refusal of certain written charges requested by appellant as the principles of law embodied in the refused charges were adequately and substantially covered in the oral charge to the jury. Garraway v. State, Ala.Cr.App., 337 So.2d 1349; Slinker v. State, Ala.Cr.App., 342 So.2d 44.

In the absence of the jury appellant reserved two exceptions to the oral charge. Exceptions to the oral charge, or any part of it, to be availing, must be taken and reserved in the presence of the jury and before the jury retires. Lowery v. State, Ala.Cr.App., 342 So.2d 797.

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Grant COOPER.
    78-42.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    James BLEVINS v. STATE.
    8 Div. 83.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 1978.
    Rehearing Denied Oct. 3, 1978.

      James D. Whitmire, of Lentz & Nelson, Decatur, for appellant.
    William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

This is an appeal from the judgment of the Circuit Court of Morgan County, Alabama, denying appellant’s petition for a writ of habeas corpus. He was in custody of the Sheriff of Morgan County under a rendition warrant issued by Honorable George C. Wallace, Governor of Alabama, at the request of Honorable Dolph Briscoe, Governor of Texas.

The rendition warrant recites that appellant is charged by transcript in the County of Harris in said State, with the crime of murder with malice (1) and escaped from lawful custody. The rendition warrant fails to comply with the requirements of Section 15-9-33, Code 1975. It is necessary for the issuance of a warrant in such cases that the accused is “lawfully charged by indictment or by an information filed by a prosecuting officer and supported by affidavit as to the facts, or by affidavit made before a magistrate in that state, with having committed a crime under the laws of that state, or that he has been convicted of crime in that state and has escaped from confinement or broken his parole.” (Emphasis supplied). Beasley v. State, 43 Ala.App. 247, 187 So.2d 806; Watson v. State, 30 Ala.App. 184, 2 So.2d 470; Smith v. State, 45 Ala.App. 125, 226 So.2d 668; Lofton v. State, 46 Ala.App. 229, 239 So.2d 901.

The return of the Sheriff recites:

“Now comes Van Ward, Sheriff of Morgan County, Ala., to whom the Writ of Habeas Corpus in this case was directed, and who has been duly served therewith, and for return to said writ shows to the Court that he detains and holds the said James Blevins by virtue of an executed rendition warrant issued by George C. Wallace, Governor of Alabama, and accompanying State of Texas Certified Requisition with attached exhibits and certifications, a correct copy, marked Exhibit A, of said above stated papers is attached hereto and incorporated herein as though set out in full. And he herewith produces the body of said petitioner and submits him to the jurisdiction of the Honorable R. L. Hundley, Judge of the Circuit Court of Morgan County, Alabama, the Judicial Officer issuing the writ in this case. Dated at Decatur, Alabama, this the 1st day of May, 1978.”

When the rendition warrant is defective, as here, and there are allied papers in evidence, we look to them to determine their legal sufficiency to justify the issuance of the rendition warrant. Aldio v. State, 44 Ala.App. 303, 208 So.2d 212; Lofton v. State, supra; Harris v. State, 257 Ala. 3, 60 So.2d 266; Tyner v. State, Ala.Cr.App., 346 So.2d 493, certiorari denied, Ala., 346 So.2d 496.

The allied papers attached to the Sheriff’s return, and which were introduced into evidence, include the following:

1. A certified copy of the judgment of conviction of petitioner, and another, of murder with malice (1) and a sentence of 99 years in the Texas State Penitentiary.
2. A duly certified mandate from the Court of Criminal Appeals of the State of Texas affirming appellant’s conviction on June 15, 1962.
3. A Certificate of Parole from the Texas Board of Pardons and Paroles issued to appellant under date of July 3, 1972.
4. A copy of the Parole Agreement signed by appellant on July 6, 1972, in which he agreed to all the terms and conditions of a parole from the Texas State Penitentiary.
5. A Waiver of Extradition signed by appellant in which he agreed that if he violated any of the terms and conditions of his parole he would voluntarily return to the Texas State Penitentiary and that he would not in any manner contest any effort by the State of Texas to return him to that State to serve the remainder of his sentence.
6. A State Warrant issued by the Texas Department of Corrections for the arrest of appellant for violating the terms of his parole which parole was revoked on February 10, 1975, and stating that appellant’s unexpired sentence is 77 years, 11 months and 24 days.
7. Application for requisition to the Governor of Texas, signed by the Assistant Warden of the Texas Department of Corrections, stating that appellant was a parole violator and was in custody of the Sheriff of Morgan County, Alabama, and had refused to waive extradition, which application was properly certified by the Presiding Judge of the County Court and attesting to the genuine signature of the Assistant Warden. This document was also signed by the County Clerk attesting to the genuine signature of the Presiding Judge of said County Court.
8. A State Warrant issued by the Board of Pardons and Paroles for the arrest of appellant for parole violation issued on February 10, 1975, under the seal of said Board.

The requisition from the Governor of Texas to the Governor of Alabama recites:

“Whereas, it appears by the papers required by the Statutes of the United States which are hereto annexed, and which I certify to be authentic and duly authenticated in accordance with the laws of this State, that James Blevins who stands convicted by virtue of final judgment and sentence pronounced by the District Court, within and for the County of Harris, State of Texas, of a felony to-wit: Murder with malice (1) committed in Harris County, and delivered in due course of law to the Penitentiary to serve a term of ninety-nine (99) years but who, since his receipt at the Penitentiary, has been released on clemency, which he violated and with a view of avoiding the service of said sentence, fled from the justice of the State of Texas, and is now a fugitive from justice of the State, and it having been represented to me that he has taken refuge in the County of Morgan, State of Alabama.” (Emphasis supplied).

In the above requisition the Governor of Texas designated several agents to apprehend appellant and deliver him to the Warden of the Texas Department of Corrections, within the walls of the penitentiary. This document was properly authenticated and had affixed thereto the Great Seal of the State of Texas.

In 78 A.L.R. page 420 we find the following:

“The general rule seems to be well settled that either a convict who escapes, or one who is released from prison on parole and violates the terms of his parole, may be extradited from another state in which he is found, as a fugitive from justice, on the ground that he is a convict whose time has not expired, and who, therefore, is ‘charged with crime’ under the United States Constitution.”

Cases supporting the above quotation are cited with approval by this Court in Johnson v. State, 45 Ala.App. 40, 222 So.2d 370.

We have carefully reviewed the request from the Governor of Texas for extradition and the allied papers and find that the Governor of Alabama had before him necessary jurisdictional matters to issue his rendition warrant in conformity with the pronouncement made by the Supreme Court of Alabama in Harris v. State, 257 Ala. 3, 60 So.2d 266, wherein it is said:

“We think, then, the rule in Alabama should be consonant with the weight of authority to the effect that if the rendition warrant is defective but is accompanied by allied papers, either on the return to the writ of habeas corpus or introduced on the trial, which when taken together with the warrant, show that the executive of the asylum state did in fact have before him the necessary jurisdictional matters, viz., the documents required for the issuance of the warrant, then the prisoner is not illegally restrained. 89 A.L.R. [595], supra. This annotation reveals that many jurisdictions have adopted an even more liberal rule than is here urged. See Ross v. Crofutt, 84 Conn. 370, 80 A. 90; Kingsbury’s Case, 106 Mass. 223; State ex rel. Burnett v. Flournoy, 136 La. 852, 67 So. 929; Ex parte Devine, 74 Miss. 715, 22 So. 3.”

For the reasons above stated we feel that the judgment of the Circuit Court of Morgan County in denying appellant’s petition for writ of habeas corpus was, in all things, correct; and the judgment in this case is affirmed.

AFFIRMED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte James BLEVINS.
    78-37.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   JONES, Justice.

WRIT DENIED.

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


text:
    Ted DEESE, Jr. v. STATE.
    3 Div. 899.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      Michael A. Sundock, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant was indicted for selling marijuana contrary to the provisions of Act No. 1407, Section 401(a), Regular Session of the Legislature of Alabama, 1971. The jury convicted and the Court fixed punishment at two years imprisonment.

Briefly, the evidence shows that defendant was approached by an undercover agent at his trailer home in Montgomery County, Alabama, who importuned him to sell him some marijuana. The purchase was made. The agent paid him $160.00. An acquaintance or friend of defendant came with the agent to make the purchase. Defendant testified and denied the sale.

During the res gestae of the proposed sale, some discussion ensued as to the correct weight of the narcotic substance, but defendant did not have any scales to weigh the marijuana. He refused to guarantee the exact weight.

During this discussion, supra, the State asked the witness-agent a question and elicited an answer, all without objection, as follows:

“Q Was there any further conversation between you all after that took place concerning marijuana?
“A Most of the conversation was about the weight. Of course, I asked him if he could guarantee it and if it didn’t weigh out right could I come back. He said he couldn’t guarantee it because he didn’t have a good set of scales and he couldn’t find a good set of scales. And at that time I asked him what he would — how much marijuana he would give me for a good set of triple-beam scales. And he thought a second and replied that he would give me a quarter pound. And I said I thought I could come up with a set and if I did I would get back with him.”

Defendant’s contention was, when he testified, that the companion of the agent, whom defendant knew, had promised to get defendant some money for his use in obtaining aircraft transportation to go to see his seriously ill father in Washington; that this companion came with the agent to his house; that the agent produced the money for the friend to let him have to make the flight to Washington.

It further appears that after defendant returned to Montgomery from Washington, the agent and his friend came out to where defendant was at work in Montgomery County from which place they then went back to the trailer house of defendant. We quote:

“Q (Mr. Bentley) Isn’t it true, Mr. Deese, on April the 28th you and Mr. Kominitsky and Rick Davidson went to your trailer, or the vicinity thereof, and you sold him a quarter pound of marijuana?
“MR. SUNDOCK: Objection. Same reasons as before.
“A That is false.
“THE COURT: Overruled.
“Q (Mr. Bentley) Did you do that?
“A No, I did not.
“Q Isn’t it a fact, Mr. Deese, that you sold him approximately a quarter pound of marijuana and he traded with you for that a set of scales?
“MR. SUNDOCK: Before you answer. Your Honor, we would object to this line of questioning. We would renew the objection in that it is both prejudicial and unnecessary. It does not relate to this particular incident and we move for a mistrial.
“THE COURT: Motion denied. Overrule the objection.
“Q (Mr. Bentley) Isn’t it true that on April 28th in your trailer, or the vicinity thereof, that you gave Agent Kominitsky approximately a quarter pound of marijuana in exchange for his giving you a set of scales?
“MR. SUNDOCK: We will renew the objection and ask for a continuing objection, sir.
“THE COURT: Overrule the objection.
“A I have answered that question several times as being negative.”

Appellant here asserts that the ruling of the Court was error and that the question, even though answered in the negative, carried prejudicial implication that entitles defendant to a reversal of the judgment of guilt.

It is to be noted that the question related to prior evidence, quoted supra, with respect to the procurement of scales for defendant in exchange for some marijuana. The question as to the sale of the marijuana for the scales sought to elicit evidence that tended to sustain and verify the agreement that was a part of the res gestae. The alleged original sale and the incident with respect to the second sale were interwoven and related although separated. We find no error in permitting the question to be asked although the answer was in the negative. We do not think defendant suffered any injury thereby. O’Neal v. State, 50 Ala.App. 31, 276 So.2d 616(4-5); cert. denied, 290 Ala. 370, 276 So.2d 621.

Appellant asserts also that it was prejudicial for the trial Court to allow the State “to ask questions of the appellant concerning offenses for which no conviction existed, and then, having sustained the objection of the appellant to said question, not expunging or clearing the record by instructing the jury.” We quote from the record:

“Q Isn’t it also a fact that on June 22nd, 1977, you sold a Montgomery Police Officer a substance—
“MR. SUNDOCK: Your Honor—
“Q (Mr. Bentley) —which you believed to be phencyclidine at the Omelette Shop on Azalea Drive?
“MR. SUNDOCK: Your Honor, could we have a few moments outside the presence of the jury?
“THE COURT: Do you object?
“MR. SUNDOCK: I do, Your Honor.
“THE COURT: Sustain your objection.
“MR. SUNDOCK: And move to strike and move to instruct the jury to disregard.
“THE COURT: I don’t believe the witness answered the question.
“MR. SUNDOCK: I would like to ask that the question be removed.
“MR. BENTLEY: I will withdraw that question, Your Honor, consistent with the Court’s ruling.”

It appears that the trial court sustained defendant’s objection to the question and that the State withdrew it.

We think the ruling of the Court and the withdrawal expunged the question and its implication from consideration of the jury.

The Judgment is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Ex parte Ted DEESE, Jr.
    78-78.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   JONES, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Bennie Dixon BURTON, alias v. STATE.
    3 Div. 924.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      Rick A. Williams, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: ninety-nine years imprisonment.

William B. Harrison testified he was the resident manager of Hilltop Arms Apartments in Montgomery, Alabama, on January 18,1978. Approximately 6:00 p. m. that day Mr. Harrison closed his office and walked to a nearby elevator in the lobby of the apartments carrying a tackle box which he used as a money box for business receipts. Harrison testified at trial that the box contained currency and checks amounting to approximately $380.

As he was waiting on the elevator, two black males approached him and asked the location of a nonexistent apartment number 421. Harrison told them the apartment numbers did not go that high. One of the men (appellant) then grabbed the money box and attempted to wrench it from Harrison’s hand. Harrison held on and appellant hit him across the head. As appellant continued to twist the box, breaking Harrison’s hand in the process, Harrison drew his gun from his pocket and shot appellant just as he wrenched the box free. Appellant fled as had the other assailant, and Harrison shot him again. Mr. Harrison chased after appellant out to the street and saw that he still had the box. Harrison returned to the lobby and called the police. A short time later, Harrison again saw appellant when he was brought to the apartments after having been taken into custody by police.

Ms. Lady Ruth Johnson, a resident of Hilltop Arms, testified she and her mother were seated in the lobby at the time of the robbery and witnessed the assault upon Mr. Harrison. She corroborated Harrison’s version of the events and added that she ran to the street and called for help and had seen the robber fall in the gutter as he fled. She stated that appellant, when brought back to the apartments by police, appeared to be wearing the same clothes as the man who had robbed Harrison. She could not, however, make an identification of appellant himself, because she had been unable to observe his face during the robbery.

Patrolman Frank Robinson testified that after receiving a call from the Hilltop Arms, he patrolled the surrounding area and observed appellant walking down a sidewalk on Clayton Street. Robinson noticed appellant’s mouth was bloody and questioned him. Appellant stated he had been involved in an accident. Robinson took appellant to the Hilltop Arms and turned him over to detectives at the scene.

Detective William R. Wilson stated he saw appellant in Jackson Hospital. He gave appellant the Miranda warning and procured a signed waiver of rights form from appellant. He testified appellant confessed his guilt to him several times orally, but made no written confession.

I

Appellant argues the trial court erred in changing the ten year prison sentence returned by the jury against appel-. lant to a term of ninety-nine years imprisonment. Appellant contends that the Code of Alabama 1975 tacitly adopts the Code of Alabama 1940 provisions as to sentencing for the punishment of robbery.

Title 14, § 415, Code of Alabama 1940 reads as follows:

“Punishment of robbery.- — Any person who is convicted of robbery shall be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years.” (Emphasis added)

Section 13-3-110, Code of Alabama 1975, which replaces Title 14, § 415 above, omits the phrase investing the jury with sentencing authority:

“Any person who is convicted of robbery shall be punished by imprisonment in the penitentiary for not less than 10 years, or as otherwise specified by law.”

It is clear, however, that § 13-3-110 does not tacitly adopt the 1940 Code sentencing authority provision. Section 15-18-20, Code of Alabama, 1975, which must be read in conjunction with § 13-3-110, specifically states:

“When an offense is punishable by imprisonment in the penitentiary or hard labor for the county, the court must impose the term of punishment, unless the power is expressly conferred on the jury.” (Emphasis added).

Hence, unless the jury is expressly invested with sentencing authority by statute, that power is vested exclusively in the trial court. The jury is not invested with sentencing authority for robbery convictions under the 1975 Code. That authority rests in the trial judge alone. Thus, appellant’s argument is without merit.

II

Appellant argues the trial court erred in denying his motion for a directed verdict based upon a variance between the amount alleged in the indictment to have been stolen and the proof of such amount adduced at trial. The indictment alleged $320 in lawful currency and $62 in checks had been stolen. Detective Toddy testified $102 in checks was stolen along with approximately $326 in currency. Mr. Harrison testified initially there was $380 to $382 stolen, and later that $240 in currency and one check for $62 had been stolen.

The indictment alleges the amount stolen was $382. Mr. Harrison, though contradicting himself later, did testify that $382 was the amount stolen. Thus, even though there was a conflict in the evidence, this was a question of fact for the jury and there was ample evidence presented to sustain their finding that the indictment correctly alleged the amount stolen. May v. State, Ala.Cr.App., 335 So.2d 242 (1976). Additionally, when testimony at trial on a robbery charge as to the amount stolen does not coincide with the amount alleged in the indictment, such a variance is not fatal and is immaterial. Sanders v. State, 289 Ala. 224, 266 So.2d 802, on remand, 48 Ala.App. 753, 266 So.2d 806 (1972).

Ill

Appellant’s last contention is that the following testimony was a prejudicial plea for retribution by the witness which should not have been allowed as evidence by the trial court:

“A And, so, I was — well, greatly shocked and frightened beyond words, and furious to think that anybody would come in and do such a thing. There we were in our own—
“MR. WILLIAMS: Objection, your Honor.
“THE COURT: Overruled. You may proceed.
“A There we were in our own lobby sitting there behaving ourselves—
“MR. WILLIAMS: Your Honor, I object.
“THE COURT: Overruled.
“A And these two men came in and— there were two. And, so, we couldn’t do anything because there were two of them. One could engage Mr. Harrison and the other one, if we had started to the telephone, which I wanted to do but I could not—
“MR. WILLIAMS: Your Honor—
“THE COURT: All right. Next question.”

Where a question has been answered before an objection is stated, the objection comes too late, and in the absence of a motion to exclude, amounts to a waiver. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353 (1974); Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954). Appellant having failed to properly preserve any possible error, there is nothing before this court to review.

We have reviewed the grounds for reversal relied upon by appellant in light of the record and the briefs, and find no prejudicial error to the substantial rights of appellant which would mandate a retrial to this cause.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Bennie Dixon BURTON.
    78-83.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   BEATTY, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Robert Andrew JACKS, alias v. STATE.
    5 Div. 409.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 1978.
    Rehearing Denied Oct. 31, 1978.

      J. Louis Wilkinson, of Wilkinson, Purvis & Pickard, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.
   BOWEN, Judge.

On May 30, 1977, Dr. Farris Walker, a dentist in Auburn, Alabama, was reported missing. His automobile and some of his clothing were gone. Several small spots of blood splattered his bedroom and his bed had been stripped of all linen. Forty-five days later Dr. Walker’s badly decomposed body was found partially concealed in a wooded area near Cook’s Landing in Lee County, Alabama. Twenty-five year old Randy Jacks was indicted and convicted for the murder of the Auburn dentist. A jury fixed sentence at life imprisonment.

Only two issues are presented on appeal: (1) Whether Cash, the only eyewitness to the murder, was an accomplice and (2) if so, whether his testimony was corroborated and therefore sufficient to sustain the conviction.

In the Fall of 1974, Randy and Susie Jacks moved to Auburn where Randy attended college. They met Farris Walker, a dentist, and became friends. They even lived in his house for a couple of weeks. In July, 1975, Walker was divorced from his wife.

Fearing that his wife was having a romantic affair with Dr. Walker, Jacks separated from his wife in November of 1976. Randy and Susie Jacks obtained a divorce on the day of Walker’s death.

Jacks made threats against Walker’s life to his roommate, Billy Joe Sublett and Dale Parkman, Sublett’s girlfriend. Jacks told Walker’s ex-wife that he had thought about killing Walker but hadn’t “for two reasons and those two reasons are your two children”.

Jacks also discussed killing Dr. Walker with a friend, Gary Cash. Cash and Jacks discussed murdering Dr. Walker “40 or 50 or 60 times”. Cash testified that

“Whenever we would talk about killing Dr. Walker, it would be when Randy was depressed about the situation or whatever and it was, you might say, a way of relieving hostilities to psychologically cope with the situation.”

To help “more or less settle him down”, Cash would add to the conversations and actually thought up some ways to kill Walker. They discussed various methods of committing the murder; “just lots of ways, all of them stemmed around what we thought we could get our hands on and the opportunity at the time”. They also discussed various methods of disposing of the body. Cash testified that he “really didn’t want to kill Dr. Walker” and never thought that Jacks was going to actually carry out any of these threats.

Together Jacks and Cash would drive to the trailer where Susie was living to see if Walker’s automobile was parked outside. They would also drive by Walker’s home.

Although Cash testified that he never actually went on Walker’s property or in his house before May 30, 1977, he stated that on some occasions they would stop and get out and Jacks would walk up to the house. On these occasions Jacks wore green Army fatigues.

“Whenever he would go up to the house, he would carry numerous things, a knife, rope, and that sort of things.”
* * * * * *
“Gloves, screwdrivers, pair of pliers, some poison, some chloroform.”

Cash stated that they never went to Walker’s house to kill him on any occasion prior to May the 30th. Their purpose for going there was just to see who was there; “just because the car wasn’t there didn’t mean that Susie wasn’t”.

Around 3:30 on the Monday morning of May 30, 1977, Cash parked his pickup truck three blocks from Dr. Walker’s house. Jacks had changed into his fatigues while Cash had been driving. Jacks also had his attache case where Cash knew he kept his .22 revolver with the homemade silencer and some tools.

Jacks, who had only been notified on Sunday afternoon that the hearing on his divorce was set for Monday morning, told Cash that “he was going to Court the next day and he wanted to go in and to see if Susie was there in the house”. Jacks did not tell Cash that he intended to kill Walker and Cash testified that he did not know that Jacks was carrying the revolver.

Once at the house, Jacks disconnected the telephone lines. Jacks then took off his shoes and put on a pair of rubber surgical gloves. With Cash’s assistance, he climbed through a kitchen window. Cash then went to each side of the house to see if any lights had come on in the neighboring houses.

Jacks opened a side door and motioned for Cash to enter. Cash testified that he did not know why he entered the house; “My better judgment told me not to but I don’t know”. Jacks warned Cash about a step that squeaked on the stairs.

Jacks started up the stairs and Cash followed. When Cash arrived at the top of the stairs Jacks was at the foot of Walker’s bed. Cash stopped in the doorway. Jacks took a step or two and Cash saw a shadow rise up in the bed and state, “Randy, are you crazy?” Cash then heard a gunshot and saw the muzzle flash. Only later did he see the .22 equipped with a silencer.

After being shot, Walker mumbled and fell back in bed. Jacks immediately jumped on top of Walker and a slight struggle ensued. Jacks then “backed off” the bed and turned on a bedside lamp. Walker was lying on his back with a disposable diaper stuck in his mouth. Jacks took some bloody pillows and put them in the middle of the bed. He grabbed some of the bedclothing and pulled Walker off the foot of the bed positioning Walker so that he was sitting on the floor with his head leaning forward. Cash still had not moved from the doorway or said anything. He testified that “it happened so fast and it was like a nightmare-it’s something that’s hard to really grasp and I was just petrified”.

Jacks took a piece of white ski rope and strangled Walker. Cash then walked into the room and helped Jacks clean up. Cash stated that he did this because “it was nothing else for me to do. I was there. I was an accessory.” Cash stated that they had not discussed the particular method by which Walker was actually killed and that prior to the time the gun was fired he did not know that Jacks was going to kill Walker.

Together they cleaned up the bedroom and carried Walker’s body downstairs and placed it in Dr. Walker’s Fiat automobile which was parked under the carport. Cash then went to his truck and Jacks drove the Fiat toward Phenix City. Before they reached Phenix City they transferred the body and the bloody bed linen and the fatigues that Jacks had been wearing into the back of Cash’s pickup truck which had a camper shell. Jacks then drove to Phenix City and left the Fiat in the parking lot of a Holiday Inn. Cash followed and picked him up.

The pair drove toward Lake Harding and disposed of the body near Cook’s Landing. The pistol was thrown into the lake by Jacks. They returned to Cash’s trailer around 9:00 that morning and Jacks went to class. Cash then drove down the highway and placed the three plastic trash bags containing the bed linen and clothes in separate dumpsters.

On Wednesday, two days after the murder, Cash and Jacks were interviewed by the Auburn Police Department. Previously the two men had made up a story to account for their time. Seven weeks after the murder Cash began to relate parts of the crime to the police. Cash never revealed the entire truth of the murder until after he was granted immunity from prosecution though that immunity was conditioned on Cash telling the whole and complete truth. Eventually Cash led the police to Walker’s body. The next day Jacks was arrested for the murder of Dr. Walker.

In a voluntary statement given to Detective Roy Plant of the Auburn Police Department before he was arrested Jacks admitted being with Cash from 2:00 until 8:00 on the morning of May 30th. He maintained that he and Cash stopped at the Ridgewood Trailer Park in Auburn and talked for about an hour. When they were ready to leave the truck would not start so they sat and talked from 4:00 A.M. until 8:00 A.M., when they were able to “crank” the truck and return to Cash’s trailer.

Detective Lieutenant Ted Murphy took charge of the investigation into Walker’s disappearance. After Cash showed Murphy the location of Walker’s body, a warrant was issued for Jacks’ arrest. On July 15, 1977, Randy Jacks was arrested in Birmingham, Alabama, for the murder of Dr. Walker. On the trip back to Auburn Jacks was advised of his constitutional rights and voluntarily waived them. Detective Murphy said, “Randy, you don’t appear in any way to be sorry that you killed Walker”. Jacks responded, “I am sorry the man is dead. I’m glad you found the body for the sake of the family.” Jacks also stated that he knew they would come after him if they ever found the body.

At the Auburn Police Department, Jacks was again advised of his constitutional rights and signed a waiver of rights form. Though he would not make a statement, he requested pencils and paper, stating that he would give a statement later as to what happened in Walker’s home on the morning of May 30th. Jacks stated that he needed to go to sleep and needed time to collect his thoughts. The interview was ended and Jacks was taken to his cell.

That afternoon Jacks was taken to Murphy’s office. He was again advised of his rights and again signed a waiver of rights form. Detective Murphy testified that Jacks then told him that

“I want you to understand I never went to that house with intention of killing Dr. Walker. I will give you a statement as to what happened in Walker’s bedroom that night and when I tell you, it will seem so unreal, you won’t believe it; but I have to get it straight in my own head first and if you will give me some more paper or some paper and pens, I could write it all out in my cell.”

Though Jacks never gave a statement he never denied killing Walker. The voluntar-iness and admissibility of his remarks to the officers of the Auburn Police Department are not challenged on appeal. However we have determined that they were properly admitted into evidence.

At trial Jacks testified in his own behalf and denied murdering Walker and stated that he told Detective Murphy that he would write out a statement so Murphy would allow him to get some sleep.

I

The classic and usual test to determine whether a witness is an accomplice is whether he could be indicted and convicted for the particular offense, either as principal or accessory. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973); Doss v. State, 220 Ala. 30, 123 So. 231 (1929); Ash v. State, 81 Ala. 76, 1 So. 558 (1887). An accomplice is defined as “ ‘an associate in crime; a partner or partaker in guilt’ ”. Darden v. State, 12 Ala.App. 165, 167, 68 So. 550, 551 (1915).

Parties are responsible as accomplices for consequent acts growing out of a general design, but they are not for independent acts growing out of the particular malice of individuals. Alston v. State, 109 Ala. 51, 55, 20 So. 81 (1896); Pierson v. State, 99 Ala. 148, 152, 13 So. 550 (1892).

“And this criminal accountability extends, not alone to the enterprise, adventure, or encounter in which the conspirators are engaged, but it takes in the proximate, natural, and logical consequences of such adventure. This, because all men are presumed to intend the proximate, natural, and logical consequences of acts intentionally done; and one who is present, encouraging or ready to aid another in such conditions, must be presumed to be cognizant of that other's intention, to the extent above expressed. If such conspiracy, or community of purpose, embrace the contingency that a deadly encounter may ensue, with the common intention, express or implied, to encourage, aid, or assist, even to the taking of life, should the exigencies of the encounter lead up to that result; then, as a general rule, the act of one becomes the act of all, and the one who encourages, or stands ready to assist, is alike guilty with the one who perpetrates the violence. And such community of purpose, or conspiracy, need not be proved by positive testimony. It rarely is proved. The jury are to determine whether it exists, and the extent of it, from the conduct of the parties, and all the testimony in the cause.”
******
“We have said the accomplice, equally with the actor, is responsible for the acts done, if they are the proximate, natural, and logical result of the adventure upon which they enter with common purpose. This needs some explanation. The accomplice, as we have seen, is criminally responsible for acts which are the direct, proximate, natural result of the conspiracy formed. He is not responsible for any special act, not within the scope of the common purpose, but which grows out of the individual malice of the perpetrator. 1 Wharton Crim. Law, § 397. “A further explanation: Many public offenses consist of an act done, coupled with a constituent element which extends beyond the act, and takes in something outside of it. Knowledge and intent, when constituents of crime, are of this class. When knowledge is one of the required elements, then the accomplice must have knowledge, or he is not guilty. Buying or receiving stolen goods, knowing them to be stolen, furnishes an illustration of this principle. So, when intent is one of the required constituent elements, the co-conspirator, or accomplice, to authorize his conviction, must himself have entertained the intent, or must have known that the actor, whom he was encouraging, aiding, or abetting, entertained it. Without this individual intent, or personal knowledge, it can not be affirmed that he aided or abetted in the crime charged. This need not, however, be positively proved. If it fall within the scope of the common purpose, formed and entered into, it is enough.”
Tanner v. State, 92 Ala. 1, 6, 7, 9 So. 613, 615 (1890).

See also Howell v. State, Ala.Cr.App., 339 So.2d 138 (1976). For this reason, the mere presence of a witness at the scene of a homicide, without more, is insufficient to show the witness’s complicity in the crime. Jones v. State, 174 Ala. 53, 57 So. 31 (1911); Taylor v. State, 49 Ala.App. 433, 272 So.2d 905 (1973); Leonard v. State, 43 Ala.App. 454, 192 So.2d 461 (1966).

In Ladd v. State, 39 Ala.App. 172, 98 So.2d 56 (1957), the statement was made that a participant in an illegal venture for one purpose becomes one for all and the court will look at him as a “derivative accomplice” so far as requiring corroborative evidence is concerned. This principle must be limited and applied in light of the rules set forth above. Thus a participant in an illegal venture for one purpose becomes one for all where the additional crimes are the proximate, natural, and logical result of the adventure upon which the actors engaged with a common.purpose.

Except where the state’s evidence undisputedly makes the witness an accomplice, the defendant has the burden of showing the witness’s complicity. Fairbanks v. State, 46 Ala.App. 236, 239 So.2d 908 (1970); Moore v. State, 15 Ala.App. 152, 72 So. 596 (1916).

Whether a witness is an accomplice may be a question of law or fact, depending on the circumstances. Doss v. State, 220. Ala. 30, 123 So. 231 (1929). However the question of complicity is usually a question of fact; it becomes a question of law only where the court is clearly convinced by a preponderance of the evidence that the witness could have been indicted and convicted of the same charge of a felony for which the defendant is on trial and that the witness freely participated in the crime. Where there is no conflict in the testimony, the question of whether a witness is an accomplice is a question of law for determination by the trial court. Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972).

“The question of law for the court resolves itself into one of undisputed evidence. If this, taken altogether most favorably toward the noncomplicity of the witness, still leaves unchallenged acts which would support a verdict of guilt of the witness, then the court, if requested, must require the State to adduce corroboration.”
Leonard, supra, 43 Ala.App. 464, 192 So.2d 469.

Thus where there is doubt or dispute whether a witness is in fact an accomplice, the question is for the jury and not the trial court. Skumro v. State, 234 Ala. 4, 170 So. 776 (1936). Where there is doubt whether a witness is in fact an accomplice, and the testimony is susceptible to different inferences on that point, that question is for the jury. Sweeney v. State, 25 Ala.App. 220, 143 So. 586 (1932); Horn v. State, 15 Ala.App. 213, 2 So. 768 (1916).

Daniels v. State, 50 Ala.App. 88, 277 So.2d 364 (1973), involved a prosecution for robbery. The state’s chief witness against the defendant had also been indicted for the robbery.

“The fact that Bailey was jointly indicted with the appellant will not per se raise a presumption that he was an accomplice. * * * According to Bailey’s testimony he was unaware that appellant and the others were intending to commit a robbery. Whether this testimony was believable was for the jury. This issue was properly submitted to the jury via given written requested charges and decided adversely to appellant.”

Daniels, 50 Ala.App. 91, 92, 277 So.2d 367. This is in accord with the general rule.

“If a witness admits his participation with the defendant in the crime but seeks by his testimony to explain it and to show his innocent intent, it has been held that a question is presented for the jury.” 19 A.L.R.2d 1352, 1381 (1951).

White v. State, 352 So.2d 29 (Ala.Cr.App.1977), also involved a prosecution for robbery. This court held that, although it was difficult to reconcile the witness’s statement that he and the defendant were driving around trying to find someone to rob and his other testimony to the effect that immediately on observing the actions of the others (i. e., picking up a stick and a pipe and stating that they were “going to get them”) he left the scene, the witness was not an accomplice absent any showing that he said or did anything in the way of encouragement or assistance. Therefore his testimony was not required to be corroborated before it could be used to convict the defendant of robbery.

Most recently, the Alabama Supreme Court addressed this question and held that, where a witness denies his participation in the crime charged against the defendant, the issue of his being an accomplice is a disputed fact presenting a question for the jury despite the additional fact that the witness had previously been convicted for the identical crime for which the defendant is on trial. Yarber v. State, Ala., - So.2d - (1978). The court distinguished Yarber from Childs v. State, 43 Ala.App. 529, 194 So.2d 861 (1966) on the basis that in Childs the accomplice-witness admitted his participation in the crime for which both he and the defendant were indicted.

Where the issue of whether the state’s witness was an accomplice is for the jury, the denial of the accused’s motion to exclude the state’s evidence for insufficient corroboration is not error. Perry v. State, 340 So.2d 895 (Ala.Cr.App.), cert. denied, Ex parte Perry, 340 So.2d 896 (Ala.1976); Welch v. State, 35 Ala.App. 643, 51 So.2d 905 (1951).

Cash admitted his participation in the breaking and entering into Dr.- Walker’s house. However he positively denied any knowledge that Jacks intended to kill Walker that night or that Jacks was armed with a pistol. Though present at the scene, Cash denied any participation in the murder or any prior knowledge of Jacks’s intent. Jacks also denied that he went to Walker’s house with the intention of committing murder. Though Cash assisted Jacks in disposing of the evidence of the crime, the testimony of an accessory after the fact does not require corroboration. Cooper v. State, 43 Ala.App. 385, 191 So.2d 224 (1966).

From the testimony given at trial and Cash’s denial of any participation in and prior knowledge of the murder, the question of his complicity in the murder was one for the jury. While there is evidence to show that Cash might have been an accomplice, we cannot define him as such as a matter of law. Yarber, supra. Therefore the trial court’s refusal to exclude the state’s evidence was not error. Perry, supra; Welch, supra.

II

Nevertheless, even assuming that Cash was an accomplice, the facts in this case convince us that there was sufficient corroboration of his testimony.

While Section 12-21-222, Code of Alabama 1975, prohibits the conviction of a felony on the uncorroborated testimony of an accomplice, both circumstantial and direct evidence are competent to connect the defendant independently with the crime about which the accomplice has testified. Blevins v. State, 56 Ala.App. 115, 319 So.2d 734, cert. denied, 294 Ala. 753, 319 So.2d 739 (1975); Goodman v. State, 52 Ala.App. 265, 291 So.2d 358 (1974); Pryor v. State, 47 Ala.App. 706, 260 So.2d 614 (1972).

The corroborative evidence need not refer to particular statements testified to by the accomplice. Skumro v. State, 234 Ala. 4, 170 So. 776 (1936); Malachi v. State, 89 Ala. 134, 8 So. 104 (1889).

“It is not necessary that the corroborating evidence refer to any particular statement or fact testified to by the accomplice. If it strengthens the probative cri-minating force of his testimony and tends to connect the defendant with the commission of the offense it is sufficient to warrant the submission of the issue of guilt or innocence'to the jury.” Smith v. State, 230 Ala. 413, 416, 161 So. 538, 542 (1935).

The evidence corroborating the testimony of an accomplice need not be strong, nor sufficient in and of itself to support a conviction. Its sufficiency is tested by whether it legitimately tends to connect the accused with the offense. Currington v. State, 342 So.2d 390 (Ala.Cr.App.), cert. denied, 342 So.2d 393 (Ala.1976) and cases cited at 342 So.2d 392.

“The corroboration necessary to support the testimony of an accomplice must be of some fact tending to prove the guilt of the accused. It is not sufficient if it is equivocal or uncertain in character and must be such that legitimately tends to connect the defendant with the crime. It must be of a substantive character, must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt.”
Sorrell v. State, 249 Ala. 292, 293, 31 So.2d 82, 83 (1947).

See also Kimmons v. State, 343 So.2d 542 (Ala.Cr.App.1977).

A voluntary confession by the accused may constitute sufficient corroboration of an accomplice to authorize a conviction. Snoddy v. State, 75 Ala. 23 (1883); Williams v. State, 52 Ala.App. 406, 293 So.2d 324 (1974). However evidence of motive alone is not sufficient corroboration, Sorrell v. State, 249 Ala. 292, 31 So.2d 82 (1947); Brown v. State, 31 Ala.App. 529, 19 So.2d 88 (1944), although it may be considered in connection with other evidence tending to connect accused with the crime. Slayton v. State, 27 Ala.App. 422, 173 So. 632, reversed on other grounds, 234 Ala. 1, 173 So. 642 (1937). Threats against the deceased made by the accomplice have been considered corroborative of the testimony of the accomplice. Bonner v. State, 107 Ala. 97, 18 So. 226 (1894).

“Thus, evidence showing the existence of malice or ill-will on the part of accused toward the victim of the crime has been considered corroborative of the testimony of an accomplice, especially where such malice has been manifested by threats to commit an act such as that for which accused is on trial; but it has been held that a mere showing of ill-will toward the victim, or of a threat, is not sufficient corroboration.” 23 C.J.S. Criminal Law § 812(4)a.

Additionally, sufficient corroboration of the testimony of an accomplice may be furnished by a tacit admission by the accused, by the suspicious conduct of the accused, and the association of the accused with the accomplice, or by the defendant’s proximity and opportunity to commit the crime. Cheatwood v. State, 22 Ala.App. 165, 113 So. 482, cert. denied, 216 Ala. 692, 113 So. 915 (1927); 23 C.J.S. Criminal Law § 812(4).

“In determining the sufficiency of corroborative evidence testimony the entire conduct of an accused within reasonable time limits of the date of the offense may be examined.” Fuller v. State, 34 Ala.App. 211, 215, 39 So.2d 24, 27, 252 Ala. 20, 39 So.2d 29 (1949). An accused’s consciousness of guilt as shown by the evidence may be corroborative. Fuller, 34 Ala.App. 215, 39 So.2d 24.

Applying these principles to the facts before us we have no difficulty in finding that the incriminating testimony of Cash, even if he be considered an accomplice, was sufficiently corroborated. Jacks made threats on Dr. Walker’s life to a number of people. He asked Sublett if he would back up his statement in case anything happened to Dr. Walker. Cash, Sublett, and Parkman all testified to the various methods and schemes Jacks had devised for murdering Dr. Walker. Sublett and Cash had ridden with Jacks in checking Dr. Walker’s home to see if Susie Jacks was there. Dale Parkman testified that Jacks told her that he had gone to Walker’s house and entered it through a window in the back, intending to shoot Walker. In a voluntary statement, Jacks admitted that he had been with Cash on the morning of May 30th from 2:00 A.M. till 8:00 A.M.

Though accused, Jacks never denied murdering Dr. Walker! Detective Murphy accused him but Jacks only responded, “I am sorry the man is dead. I’m glad you found the body for the sake of the family.” Jacks also testified that he knew they would come after him if they ever found the body. Jacks told Detective Murphy that he would give a statement as to what happened in Walker’s home on the morning of May 30th and requested pencils and paper. Jacks told Murphy that

“I want you to understand, I never went to that house with intention of killing Dr. Walker. I will give you a statement as to what happened in Walker’s bedroom that night and when I tell you, it will seem so unreal, you won’t believe it; but I have to get it straight in my head first and if you will give me some more paper or some paper and pens, I could write it all out in my cell.”

Jacks had a motive for and the opportunity to commit the murder. He threatened Dr. Walker’s life and planned his murder. His statements to the police indicate a consciousness of guilt and his conduct arouses suspicion. All of these factors together are sufficient to connect Jacks to the crime and corroborate Cash’s testimony.

III

Though the issues of whether Cash was an accomplice and, if so, whether there was sufficient corroboration were for the jury, the trial judge did not instruct the jury .on accomplices or their testimony. The record contains no written charge and apparently no instruction was requested on this subject. At the close of the court’s oral charge defense counsel announced “satisfied”. The partial or total failure to instruct in oral charge with reference to the principles of law that are involved in the trial of a criminal case cannot serve as a basis for a reviewable question on appeal where no objection was made to that oral charge and no requested written instructions were refused. McPherson v. State, 198 Ala. 5, 73 So. 387 (1916); Ingram v. State, 48 Ala.App. 193, 263 So.2d 179, cert. denied, 288 Ala. 743, 263 So.2d 181 (1972).

We have thoroughly searched this record on appeal and found no errors affecting the rights of the appellant. Therefore the judgment of the trial court is due to be affirmed..

AFFIRMED.

All Judges concur.


text:
    Ex parte Robert Andrew JACKS.
    78-92.
    Supreme Court of Alabama.
    Dec. 1, 1978.
   BEATTY, Justice.

WRIT DENIED.

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