text:
    Edward HUMPHREY v. STATE.
    3 Div. 442.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Donald R. Harrison, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree. He was represented at arraignment and trial by two experienced trial lawyers retained by him and his family. He pleaded not guilty. The jury found appellant guilty of manslaughter in the first degree and fixed his punishment at ten years in the penitentiary. Notice of appeal was made in open court and a free transcript was requested. Appellant was found to be indigent and a free transcript was furnished him. Trial counsel did not file a brief on this appeal and this Court appointed counsel to represent appellant on appeal.

There was considerable conflict in the evidence which was within the province of the jury to resolve.

On the night of August 22, 1975, there was a shoot-out at or near the Edgewood Lounge, also known as the Harlem Inn, located on High Street in Montgomery, Alabama. As a result of the shoot-out one woman was killed. Her son was wounded, and another woman was also shot.

Ernestine Givens testified that the deceased, Katherine Givens, was her mother-in-law and that she had known appellant most of her life. She was 26 years of age and appellant was 27 years of age. Ernestine Givens testified that on the night of August 22,1975, she was at the Harlem Inn and saw the deceased and appellant there. The Harlem Inn is a nightclub where alcoholic beverages are sold and consumed. It has a dance floor and music is furnished by a Rockola.

Ernestine Givens testified that the deceased was sitting at a table with a Mary Ruth Givens. Appellant was with his brother, Ben Patterson, his aunt, Betty Patterson and another man. This latter group sat at a table next to the deceased. A fuss ensued between the deceased and Betty Patterson. The argument grew heated and the deceased drew a pistol on Betty Patterson and told her if she did not go away, she was going to hurt her, but she did not see the deceased point the pistol at Betty Patterson. She further stated that she did not see the deceased point her pistol at appellant or try to fire it at appellant in the Harlem Inn. The owner of the Harlem Inn told everyone to leave. As appellant was leaving he made the statement that everyone had better clear High Street when he returned.

Ernestine Givens further testified that she saw the deceased on the sidewalk next to the door of the Harlem Inn and that she had her pistol down by her side. Appellant returned with a .38 caliber and told the deceased to drop the gun she was holding down and the appellant told deceased that she was going to- die and the shooting started, but Ernestine stated she did not see the deceased try to shoot appellant when he was firing his pistol in her direction.

According to the State’s evidence appellant went home and told his mother, father and brothers that they were being ambushed at the Harlem Inn. Appellant’s brother, Charles Ray Humphrey, got a .22 rifle and went to the Harlem Inn. That appellant and Charles Ray stood side by side with appellant firing his .38 caliber pistol and Charles Ray firing the .22 rifle. The investigating officers found a number of spent .38 caliber cartidges and a number of spent .22 caliber cartridges at different places in the vicinity of the place where the shooting occurred. They also found an automatic pistol in the purse of the deceased.

A postmortem examination was preformed on the body of the deceased and two .22 caliber slugs were removed. Dr. Richard Roper of the State Department of Toxicology performed the autopsy. He testified that one bullet entered the back of the neck of the deceased and another entered her side. He stated that the cause of death “resulted from hemorrhage and shock and central nervous system trauma.” He further testified that the deceased had a blood alcohol level of .14 percent and this would indicate that the deceased was under the influence of intoxicating beverages. Dr. Roper delivered the two slugs he removed from the body of the deceased to Mr. Charles Smith, a criminalist in his department.

Mr. Smith whose qualifications were not questioned by the defense testified that he test-fired the .22 rifle and made a comparison with the two slugs delivered to him by Dr. Roper and they “were consistent in' all major class characteristics,” but he could not say they were fired from that particular rifle but there was noting to indicate that they were not fired from this rifle.

The officers turned over to Mr. Smith a .38 caliber pistol together with some spent cartridges and some live rounds of .38 caliber bullets. Mr. Smith test-fired the pistol and made a comparison and reached the same conclusion he reached with reference to the .22 rifle. He examined the pistol that was found in the purse of the deceased and found that the bullet in the chamber had “misfired” indicating that someone had tried to fire this weapon.

Appellant’s father testified that his son came home around 1:00 a.m. on the morning of August 22, 1975, and told him that they were being “ambushed” at the club on High Street. He stated that appellant left but he did not see him carry a pistol. He further testified that he did not see his other son, Charles Ray, leave the house, but that appellant and Charles Ray came back to the house in about 20 minutes and appellant had his pistol and Charles Ray had the rifle. Appellant told his father that they “both shot” but he thought he shot a woman in the leg. The father told appellant to call the Police Department and he did. When the officers came to appellant’s father’s house looking for the weapons used in the shoot-out, the father gave them to the officers on the porch of his home. The officers did not enter the house and conduct a search.

Harold Washington testified that he was at the Harlem Inn the night of the shooting and that he knew appellant. He stated that he was standing in front of the Harlem Inn when he heard someone come around the corner and say, “All you _ _ clear the corner.” Washington ran to the other side of the street and heard some shots. When the shots were over, he went back across the street and saw “two ladies laying on the sidewalk, and a young dude.” He said he saw the deceased on the sidewalk before she was shot and did not see her point a gun at anyone.

Appellant and Charles Ray were arrested and carried to the station house where Detective C. H. Brannon read appellant the Miranda rights and warnings and appellant signed a waiver of rights form. He then gave Detective Brannon a signed statement. A voir dire examination was conducted out of the presence and hearing of the jury to determine the voluntary character of the statement. The Court ruled the statement was voluntarily made and the proper predicate was laid and the statement was introduced into evidence. The statement is as follows:

“Montgomery Police Department Room 210-2
August 22, 1975, 3:00 A.M.
“I, Edward Junior Humphrey, Black Male, DOB 2-10-48, home address 445 South Hall Street, Home telephone 264-9781, give the following statement to Detective C. H. Brannon, Jr., of the Montgomery Police Department regarding a shooting incident which occurred earlier tonight on High Street. I have been advised of my rights and I understand them and know what I am doing. No promise or threats have been made to me by anyone and no pressure of any kind has been made against me by anyone.
“Q. Tell me what happened tonight?
“A. My brother Ben and myself Ed, Betty, Louis, and I think they call him Red was at one table at the Harlem Inn. Betty left from the table that we was at. It was three girls sitting in the back of us. One of them was named Ernestine, Mamie Dean, and one was named Harriet. I don’t know the exact words that was in the conversation that they was saying. It was the table that was sitting directly in front of the table that I was at that the Givens lady — the lady that got shot — was sitting. She said to Betty— but she was talking about Ernestine, and she said that’s my daughter-in-law and this is my friend and she pointed at ‘Baby-Doll.’ They call her Baby-Doll but her name is Harriet. I don’t know what all else was said but it was going back and forth between her and Betty. About three or four words were exchanged. This Givens lady put her pocket book on top of the table, she reached in her pocket book, and she got out a pistol — it was a silver pistol. She stepped around from where she was sitting at in front of me. Betty was behind me. I got up from where I was sitting and walked up towards the bar. The man that owned the place he grabbed her wrist what had the gun. My oldest brother Ben he asked her what was going on. She allowed I’m gone kill me two mother fuckers and the man what owned the place said get your brother out of her to me. The Givens lady scratched me on my stomach. I don’t think she was meaning to do it. I got to the door. I don’t know who it was. It was the little girl that was with her. She had a object in her hand and she hit me directly in the hand with it. To me it was a Chámpale bottle. My brother and Betty was still in the place when I left. I ran home. I told my mother — I say Mama open the door. I said they got Betty and Ben up there and they trying to kill them. My brother Ray was asleep. My brother Josie was asleep. Joseph and Ray woke up. Ray had a rifle and I had a thirty-eight. To my knowledge there wasn’t but two shots that was fired and it was from the automatic rifle. She was on the outside when we got back. She had her back turned towards me. She turned around in the company of a young man — now I know it was her son, but I didn’t know it then. She raised the gun about level to her breast and she was turning towards me. I hollered out real loud, I said drop it Mam — them’s the words I used. About that time a gun went off. It could of been two shots. Both people fell — the person that was with her and she did. I told everybody that was up there with her to go home. That’s all. I called ya’ll when everything quieted down.
“Q. When you left the Harlem Inn and went home to get help was the manager still struggling with Givens lady over the gun?
“A. Yes.
“Q. Why didn’t you try to call the police?
“A. My mother called the police.
“Q. Did you come home, to get your gun?
“A. No. I went by my brother-in-law’s house on the way back up to the place and got the thirty-eight.
“Q. Who is your brother-in-law and where does he live?
“A. His first name is Cleve. I don’t know his last name. He lives on Youg-ene Curve and he works at Oak Park.
“Q. How long was it from the time you left the Harlem Inn until the time you returned to the Harlem Inn?
“A. I would estimate ten minutes, maybe fifteen.
“Q. Who went back to the Harlem Inn with you?
“A. Ray and Joseph. They had beat me back up there. I was the last getting back up there.
“Q. What kind of weapon did Joseph have?
“A. He didn’t have anything.
“Q. Why didn’t Ben and your aunt leave when you did?
“A. I can’t say why Ben didn’t leave. Betty was behind me and walked out when I did. When I got back up there Ben and Betty was on the outside.
“Q. Did you shoot your pistol?
“A. Yes sir.
“Q. How many times and who did you shoot?
“A. One time. I didn’t shoot anybody. I shot above her head.
“Q. Above who’s head?
“A. The lady who had the gun.
“Q. How many time did Ray shoot and who did he shoot?
“A. It was an automatic rifle. I don’t know how many times he shot. The lady and the person that was with her fell.
“Q. Is Betty your aunt?
“A. Yes. My mother’s sister.
“Q. What is her full name and where does she live?
“A. Betty Deloris Lewis. 738 Alabama Street.
“Q. Did you go home and get a gun and go back up to the Harlem Inn without calling for the police or waiting for the police?
“A. I didn’t call them — My mother did. I didn’t wait for them.
“Q. When you got back up to the Harlem Inn was the lady aiming the gun at Ray or who?
“A. Ray got back up to the scene before I did but he wasn’t standing as close to the lady as I was. She had her back to me and she turned around and pointed the gun at me.
“Q. What was the lady doing when you first saw her?
“A. When I came back she was in between two brick pillars. There are some steps going up to a house just the other side of the Harlem Inn and there is a sort of a walkway and the sides of the walkway and her and this fellow was sort of squatting against the blind side of these pillars. Because you can’t see them from down towards Bibbens way.
“Q. How did you know they were squatting where they were?
“A. When I got there she stepped out from behind the walkway. The fellow that was with her — I don’t know what he said I wasn’t that close to her. She turned her back to me. She turned back around and she made about two steps. When she turned around she brought her gun about chest high. I fired above her head and at that length of time I heard one or two more gunfire. And her and the person that was with her fell and we left.
“Q. Have you anything you would like to add to this statement?
“A. No sir.
“I have read the above and it is true and correct to the best of my knowledge and memory. I have been read my rights and understand them and know what I am doing. I do willingly and voluntarily sign my name.
Wit: /s/ C. H. Brannon. Jr. Det. C. H. Brannon, Jr.
/s/ Edward Junior Humphrey
Edward Junior Humphrey”

Appellant claims that the trial court committed reversible error in charging the jury on the law of conspiracy. We do not agree. Title 14, Section 14, Code of Alabama 1940.

The leading case on this issue is Stokley v. State, 254 Ala. 534, 49 So.2d 284, where the Supreme Court said:

“It is well established that when, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act. Such community of purpose or conspiracy need not be proved by positive testimony. It rarely is so proved. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Morris v. State, 146 Ala. 66, 41 So. 274, and cases cited; Jones v. State, 174 Ala. 53, 57 So. 31; Teague v. State, 245 Ala. 339, 16 So.2d 877.
“When two or more persons enter upon an unlawful purpose, with a common intent to aid and encourage each other in anything within their common design, they are each responsible, civilly and criminally, for everything which may consequently and subsequently result from such unlawful purpose, whether specifically contemplated or not. Jones v. State, supra; Jolly v. State, supra; Tanner v. State, 92 Ala. 1, 9 So. 613.”

Next appellant contends that the conduct of the trial court which tends to indicate to the jury the Court’s contempt for defense counsel constitutes reversible error. The cases relied on by appellant fully support this contention. We have carefully read the record in the light of the serious charge made in brief but the facts simply do not support the charge made by counsel. Of course a trial judge has the duty to be courteous, patient, just and impartial, and this duty extends to the demeanor of the judge. Allen v. State, 290 Ala. 339, 276 So.2d 583.

Our examination of the record reveals that the trial judge did manifest a degree of impatience with reference to the failure of counsel to call to his attention motions to suppress certain evidence until the trial was well underway. This all took place in chambers and not in the presence of the jury.

This was a cold blooded murder and the fact that appellant was convicted of manslaughter in the first degree has to be due to the resourcefulness of his trial counsel.

We find no reversible error in the record and the case is due to be affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: L. P. WAID, Circuit Judge.

license: Public Domain

text:
    Dorothy Nell JENKINS v. STATE.
    3 Div. 489.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Crenshaw & Minor, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State, appellee.
   L. P. WAID, Circuit Judge.

The appellant Dorothy Nell Jenkins, a woman, was convicted of the crime of carnal knowledge of a girl under the age of twelve years, and received the minimum sentence of ten years imprisonment.

The State’s evidence showed that appellant’s husband had had sexual intercourse with the girl several times; and that on the first occasion of such intercourse, the appellant had assisted by putting vaseline in the girl’s private parts, putting a pillow behind her back and holding her legs apart.

The appellant, who was represented by competent appointed counsel, denied any participation in the act, although admitting she knew her husband had had sex with the girl one time.

The Court allowed the State to read into the evidence part of a statement in the nature of a confession made and signed by appellant. The Court first determined the admissibility of this statement, outside the presence of the jury, by the testimony of Mrs. Henley of the Montgomery Police Department. The State’s evidence showed that appellant was advised of her constitutional rights and given the “Miranda” warnings; that no promises, threats or other pressures were used; and that appellant stated she understood her rights and wanted to make the statement.

At the trial, appellant testified that she was scared at the time and that she signed because Mrs. Henley told her if she signed the statement her husband could get her out of jail. Mrs. Henley and another officer denied that any such statement was made.

A motion for continuance and a motion for a new trial were overruled. This is an indigent appeal, with the trial attorney appointed to represent appellant on appeal.

I

Before the trial began, the appellant made a motion for a continuance based on unfavorable publicity in the papers and over the local television and radio stations. This publicity was connected with the trial and conviction of her husband during the preceding week, with the charges against the appellant being referred to. Although the record shows that copies of these articles and a summary of the broadcasts were introduced into evidence solely for the motion for continuance, they do not appear in the record. However, they are set out, in part at least, in appellant’s brief. A careful study of these statements and articles shows that they only state what appellant stood accused of—a fact of which the jury would be informed before the trial began.

From both briefs it appears that during the interrogation of the jurors by the trial court only six members of the venire had heard of the case against appellant and that all six answered that they could render a fair,- just and impartial verdict.

From the record and briefs, this Court cannot find that the trial court abused its discretion in refusing a continuance, or that any prejudice resulted to appellant by the denial of a continuance. The trial court has discretion on the question of continuance or postponement, and such discretion will not be revised in the absence of clear abuse of discretion. Jordan v. State, 56 Ala.App. 55, 318 So.2d 793.

II

Appellant also contends the Court committed reversible error by the denial of the following charge:

“If the State should fail to prove to each and every one of you beyond a reasonable doubt, that the Defendant was attempting to carnally know * * * but does prove beyond a reasonable doubt that the Defendant did assault her, then I charge you that you should find the Defendant guilty of assault and battery.”

The evidence for the State showed that the act of carnal knowledge was completed by appellant’s husband with her help. The defendant denied any participation. The case was submitted to the jury on the theory that defendant was guilty of carnal knowledge or nothing. In the cases of Hutto v. State, 169 Ala. 19, 53 So. 809, and Montgomery v. State, 28 Ala.App. 442, 186 So. 589, relied upon by appellant, there was neither penetration of or abuse or injury to the "girl’s private parts. A review of the evidence in this case discloses no reasonable theory on which the jury could have convicted the defendant of assault and battery and the refusal of the charge was not error. Fish v. State, 56 Ala.App. 151, 320 So.2d 84.

III

Appellant contends that the admission of the statement made by her was error on the ground that the voluntary nature of the statement was not shown. The trial court determined that the confession was voluntarily made. The facts and circumstances surrounding the taking of the statement, and the conflict in the testimony, were all before the jury, and made the weight and credibility to be given to the confession a question for the jury. Jones v. State, 292 Ala. 126, 290 So.2d 165; Sheppard v. State, 49 Ala.App. 674, 275 So.2d 353. Where the trial court finds on conflicting testimony that a confession was voluntarily made, such finding will not be disturbed on appeal unless the appellate court is convinced that it is palpably contrary to the weight of the evidence. Bass v. State, 55 Ala.App. 5, 312 So.2d 576.

IV

Appellant contends the trial court committed error in overruling the motion for a new trial. This contention is based on the three previously assigned errors which appellant contends denied her a fair and impartial trial.

A decision on motion for new trial rests largely within the sound discretion of the trial court and, in reviewing that decision, the Court of Criminal Appeals will indulge every presumption in favor of the correctness thereof, Green v. State, 56 Ala. App. 229, 320 So.2d 742.

CONCLUSION

We have carefully searched the record for error injuriously affecting the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

However, it appears that the case must be remanded to the trial court for proper sentencing.

The trial court correctly instructed the jury that they “must” set the punishment. Title 14, Section 398, Code of Alabama 1958. The verdict of the jury was: “We, the jury, find the Defendant guilty as charged and recommend the minimum sentence of ten years imprisonment in the penitentiary.” No question is raised as to the sufficiency of this verdict, either at the time it was received, on the motion for a new trial, or on this appeal.

The foregoing opinion was prepared by Hon. L. P. WAID, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED. REMANDED FOR COMPLIANCE WITH TITLE 14, SECTION 398, CODE OF ALABAMA 1940.

All the Judges concur.


text:
    Larry MACK v. STATE.
    3 Div. 592.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.

      Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

This appellant, an indigent minor, was indicted and convicted of robbery. The jury fixed punishment at ten years. Judgment therefor and this appeal therefrom.

The victim of the robbery was Gary Holley, who, at the time, November 30,1974, at about 6:30 P.M. (Saturday night) was employed by a Texaco filling station operator as an attendant. He was on duty and in custody of the money which was the fruit of the robbery. The Texaco station was in the city of Montgomery, Alabama.

Proof was fully made that the robbery was committed by threats and gestures of violence by the use of a .22 black pistol. The alleged robbers hurriedly left the scene and were later apprehended and detained.

The victim was not too certain of the identification from a view of the robbers’ faces. He was told by one of the robbers not to look at them, using the pistol to intimidate. He did observe the robbers’ wearing apparel and when the two were brought back by the police officers, he expressed a judgment, not beyond a reasonable doubt, that the two were the persons who held him up. The weight of this identification was for the jury.

But there were two other witnesses for the State, who, during the robbery, drove up for Texaco service and recognized the robbers. They knew them and testified that defendant and another, one Mosby, were the two who were in the filling station when the robbery was going on.

The defendant, while in custody of the police officers at the jail, made a statement after Miranda warnings, free of force, coercion, etc., that he was the guilty party along with another.

The confession carried several details, including one that they left the stolen money, the bills, with Michelle Smith in whose possession some bills along with a .22 pistol were later found by the officers. The money and pistol were produced in court and admitted in evidence. Both were lawfully seized as we view the evidence. Defendant did not take the stand, nor did Michelle Smith appear as a witness.

We think that the evidence was ample to establish the use of a .22 pistol in the commission of the robbery and that bills (money) were stolen and that the same was less than $100.00. However, defendant in his confession did state he thought that the gun or pistol was taken back to the place from which it was stolen, “the grandmother’s house.”

It is true that the .22 pistol in possession of Michelle Smith was not positively identified as the res gestae weapon. We think that the jury might have inferred that when the stolen money was delivered to Michelle Smith, that the pistol found in her possession was also given to her, although the contrary appeared in the confession. It is certainly clear that a .22 pistol was used in the robbery, and if the pistol in evidence was not the one, we do not see that defendant suffered any prejudicial injury by the mistake. The jury was certainly informed that a .22 pistol was brandished as a means of effectuating the robbery.

The next contention of appellant is addressed to what Linda Norman, one of the two girls present when the robbery was taking place, told her girl companion:

“I got back in the car and I told Maria [the other female], I said, I don’t know what is going on, but I think they are robbing the place. And we left.”

This was all a part of the res gestae and was admissible. Hallman v. State, 36 Ala. App. 592, 61 So.2d 857, cert. denied, 258 Ala. 278, 61 So.2d 861. The testimony bears out that a robbery was going on and that her expressed judgment was correct. We fail to see that the defendant suffered any injury from this expression of opinion to the companion.

The witness further testified, over defendant’s objection because of irrelevancy, that:

“I went to Maria’s house and used the phone to call my grandmother. And I asked her who was there and she said all of them were there. So, I told her, I said, well, I don’t know what is going on, but you had better get them out of your house. All right. I called her back and she said they had left. Where they went, I don’t know.”

An inference may be drawn that the witness was warning her grandmother to “get them out” of her house.

We think the trial court could properly have sustained the objection, but we are not willing to reverse because we fail to see that defendant suffered any injury thereby. Supreme Court Rule 45.

A final contention is that the Deputy District Attorney argued as follows and error resulted by the court overruling defendant’s objection thereto: We quote:

“MR. POOL: There may be some doubt in some of your minds as to why Linda Norman has taken the stand; her brother, Terry McGee by the own statement of this man, knew that this place was going to be robbed. I don’t know whether he did or not. This man assumed that he did because he told the detective that Terry McGee knew that it was going to be robbed. There has been no evidence to show that Terry McGee was there. Terry McGee is not on trial.
“MR. PAYNE: Your Honor, I object to any comment on whether my client would or would not have stated something from the witness stand. And he is indirectly commenting on that.”

It dóes not appear that the court ruled on the objection. We quote:

“THE COURT: All right.”

This argument refers to Terry McGee’s knowledge vel non that the robbery was going to take place and makes no reference to defendant’s failure to take the witness stand. The defendant in his confession said:

“Nobody but Terry McGee knew that we were going to do it.”

If it may be said that the trial court overruled defendant’s objection, we are unwilling to ascribe error to the ruling.

The judgment is due to be affirmed. It is so ordered.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7,1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


text:
    J. W. RICKETT v. STATE.
    7 Div. 454.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    John D. Coggin, Centre, for appellant.
    William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

All of appellant’s argument for a reversal revolves around the chief contention of his counsel on appeal, who was also defendant’s counsel at the trial, that his counsel was so “inexperienced and inadequately prepared” that defendant was deprived of his right to “the assistance of counsel for his defense,” guaranteed by the last words of the Sixth Amendment to the Constitution of the United States. As much as we admire counsel’s humility, we are in disagreement with his self-appraisal.

We find nothing in the record to reflect derogatorily upon the ability of counsel for defendant. In counsel’s brief, he says, and we accept as correct, that he had only been practicing law nineteen working days at the time of defendant's arraignment, when he was appointed to represent defendant as an indigent. He states that he at the same time accepted court appointments to defend fifteen defendants against seventeen felony charges and four misdemeanor charges, set for trial November 17, 1975, at the same time as the case before us. We are not informed as to what happened in the other cases. If counsel handled them as well as he did this one, congratulations are in order.

Appellant was charged with robbery. The man he is charged with having robbed testified positively to defendant’s alleged act of robbery. There was no question as to identity. Defendant took the stand and attempted to explain away the charge of robbery by some evidence indicating that the alleged victim had misinterpreted the action of defendant. Upon finding defendant guilty, the jury fixed the minimum punishment, ten years imprisonment in the penitentiary.

In support of the theme of appellant’s counsel that defendant was not adequately and effectively represented by counsel, counsel refers to some of the important procedures employed in the defense of appellant, particularly a motion for change of venue, which was overruled by the trial court.

In the verified motion for a change of venue, defendant set forth two major reasons why he claimed that he could not have a fair and impartial trial in Cherokee County, which were (1) that some members of his family had a record of seventeen trials in criminal cases in the past twenty years and (2) newspapers published both in Cherokee County and Etowah County had publicized the crime for which defendant was charged to the prejudice of defendant. We are required to review the action of the trial court “without any presumption in favor of the ruling denying defendant’s motion for a change of venue.” Code of Alabama, Recompiled 1958, Tit. 15, § 267. In our effort to arrive at a correct conclusion, we have considered the verified contents of the motion and all testimony offered in support of it. Without indulging any presumption whatever in favor of the ruling, we are persuaded that, although the trial court could have ruled otherwise, there was little substance to sustain the contention that defendant could not obtain a fair and impartial trial in Cherokee County for this particular offense under the undisputed circumstances thereof. There was nothing unduly prejudicial in the newspaper articles. In order for them to support a ground for a change of venue there must be some evidence indicating that they could or did have influence on public opinion in the county of the trial. Malloy v. State, 209 Ala. 219, 96 So. 57. That some of the members of defendants family had been defendants in criminal eases in Cherokee County, without more, furnishes no basis for a change of venue. The ultimate issue is whether defendant could obtain a fair and impartial jury, and the burden as to that issue was upon defendant. Baker v. State, 209 Ala. 142, 95 So. 467; Boutwell v. State, 279 Ala. 176, 183 So.2d 774; Gilliland v. State, 291 Ala. 89, 277 So.2d 901; Aycock v. State, 50 Ala.App. 130, 277 So.2d 404, cert. denied, 291 Ala. 49, 277 So.2d 412.

Appellant’s counsel complains of his own conduct in calling the Cherokee County sheriff and the state investigator for Cherokee County as witnesses on the motion for a change of venue. We realize that this may have been a tactical mistake, but we cannot say so from the record itself, and no explanation for the action is sought to be given. The witnesses testified that in their opinion defendant could obtain a fair and impartial trial in Cherokee County. That such testimony may have had some influence on the trial court in denying the motion, we do not question, but we must conclude that the action of the trial court was justified by reason of the lack of evidence to support the gravamen of the motion. We do not doubt in the least that if there had been such evidence defendant’s counsel would have presented it. Nor do we doubt in the least that if there had been such evidence presented, the State would have presented the testimony of the sheriff and the investigator.

Defendant’s testimony was doubtless, weakened by testimony obtained from him on cross-examination that he had been convicted of an assault with intent to rob and of grand larceny. When a defendant in a criminal case has a prior conviction or convictions of a crime involving moral turpitude, a difficult question is often presented whether he should take the stand. Even the most experienced counsel often deplore the choice made. However, in the case now before us, it is clear to us that defendant did not worsen his case by taking the stand.

It is our belief, after considering all of the record in the case, as well as briefs of counsel, that there is nothing in the record to indicate that defendant would have obtained a better result than he did, nor that this case would have been better tried from the standpoint of defendant, if his counsel had been a trial lawyer with many years of experience. We are surprised at the statement of counsel as to his limited experience and we are equally surprised in our failure to find anything in the record to denote it.

We find no error prejudicial to defendant in the record and no basis for a reversal. The judgment 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 of the trial court is hereby

AFFIRMED.

All the Judges concur.


text:
    Larry POWE v. STATE.
    3 Div. 555.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Crenshaw & Minor and Edward Cunningham, Montgomery, for appellant.

      William J. Baxley, Atty. Gen. and Bernard Sykes, Asst. Atty. Gen., for the State, appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was charged in a two-count indictment with burglary in the second degree and grand larceny. At first he interposed a plea of not guilty and a plea of not guilty by reason of insanity. Thereafter he withdrew such pleas and pleaded guilty.

The only contention made on appeal is that the failure of the record to show that there was a colloquy between the trial judge and appellant requires a reversal of the judgment, that such a record of the judgment does not meet the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), vitiating judgments based on pleas of guilty absent a sufficient showing by the record that they were intelligently and voluntarily made.

The contention of appellant is answered adversely to appellant in Bland v. State, 56 Ala.App. 547, 323 So.2d 730, in which it was held that a defendant is not entitled to a reversal for failure of the record to show a colloquy between the trial judge and defendant before a court reporter, where the record otherwise shows that a guilty plea has been intelligently and voluntarily entered. '

As in Bland, the record before us shows the execution of an Ireland form. Ireland v. State, 47 Ala.App. 65, 250 So.2d 602. The record here also contains a minute entry that is substantially, and almost word for word, in the language of the minute entry in Bland. In accordance therewith, the judgment 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 of the trial court is hereby

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Ricky BEASLEY v. STATE.
    8 Div. 819.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    C. Collier Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ban-zetta Penn Durant, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ten years imprisonment in the penitentiary. He was represented at arraignment and trial by retained counsel. He pleaded not guilty. After conviction he was found to be indigent and he was furnished a free transcript. Trial counsel was appointed to represent him on appeal. His counsel failed to file a brief and this Court appointed counsel to represent him on this appeal.

Appellant made application to be tried as a Youthful Offender and his application ' was referred to a probation officer for an investigation and report. Upon an examination and consideration of the probation officer’s report, the Court denied appellant’s application to be treated as a Youthful Offender.

In the light of appellant’s motion to exclude the State’s evidence we will summarize as much of the State’s evidence as is necessary in treating the issues raised on this appeal.

On August 19,1975, Charles E. Jackson, a graduate student of Alabama A & M University, and his roommate, Charles Woods, were watching television at their Ebony Heights house located at 215 Salem Drive in Huntsville, Madison County, Alabama. As Jackson rose to leave the room to go to the bathroom during a commercial, someone knocked on the door, which was not locked, and Jackson said, “Come in” and continued walking toward the bathroom. Upon hearing someone call him Jackson turned and came face to face with appellant who was pointing a pistol at him.

Appellant grabbed Jackson by the arm and led him back to the living room where they found another tall and big black man holding a pistol on Charles Woods. The gunmen pushed and shoved Jackson and Woods from room to room still holding the pistols on them while they made a thorough search of the entire house. The bandits demanded money and jewelry. Appellant and his companion took from Jackson at gunpoint approximately $50.00 from his person and $600.00 that Jackson had in an envelope, half of which belonged to Woods. The gunmen also took from Jackson a watch and a ring and some items of clothing. They also took $73.00 from Woods and some clothing.

During the robbery appellant clutched Jackson’s arm from time to time commanding him to move from place to place in the house. The robbers were in the house from 30 to 40 minutes and Jackson and Woods got a good look at them in close quarters in a well lighted house.

Both Jackson and Woods were physically abused and threatened and at one point appellant struck Woods on the back of the head with his pistol and he was carried to the hospital for x-rays. Before the robbers left they made Jackson and Woods stand against a wall and ordered them not to move. A few moments later one of the gunmen came back in the room just to be sure the robbery victims were still standing against the wall.

When the victims were certain the robbers had left, Jackson went next door and reported the robbery to the police department. The police officers arrived about 20 minutes later and got a description of the robbers. Jackson described appellant as having on some overalls, a light colored shirt, a straw hat and sunglasses. He described the other robber as wearing an Army fatigue jacket, a shirt with the sleeves cut out and jeans. He also gave the officers their approximate height and weight. One was over six feet tall and weighed about 180 to 190 pounds and appellant was much shorter.

Later at the police station Jackson and Woods were shown more than 20 photographs, separate and apart from each other, and both made independent identifications of appellant’s photograph without suggestions from the officers. Over appellant’s objection his picture was introduced into evidence. Both Jackson and Woods made positive in-court identification of appellant as one of the robbers.

After the jury had deliberated for some time the jury returned to the courtroom to pose a question to the Court. It developed that one of the jurors was a teacher at A & M University and that Jackson was in at least one of his classes. The jury wanted to know if this fact would have any bearing on their verdict.

The Court responded as follows:

“THE COURT: Ladies and gentlemen of the jury, I have your question, I will answer it for you. ‘A member of the jury recognized Mr. Jackson, a witness for the State as being in one of the classes at A & M University after the trial was in progress, does this have any bearing on the verdict we may render?’ Let me answer it in this fashion. The attorneys have the opportunity to ask you any questions about any knowledge you may have of any person prior to selecting you as jurors, and they can strike from the venire or panel rather, any person they wish. The fact that you might know someone that you didn’t recall until the course of the trial would have no bearing on whether or not, in my judgment you could render a legal verdict, so you may return and consider your verdict.”

The fact that one of the jurors was a professor at the college attended by Jackson does not constitute a legal ground to challenge that juror’s qualification to sit as a juror.

Appellant’s counsel was given every opportunity to test the qualifications of the jury panel. Failure to use due diligence in testing jurors as to their qualifications or grounds of challenge is an effective waiver of grounds of challenge and a defendant cannot sit back and invite error because of a juror’s qualification. Batson v. State, 216 Ala. 275, 113 So. 300; Beasley v. State, 39 Ala.App. 182, 96 So.2d 693; Aaron v. State, 273 Ala. 337, 139 So.2d 309.

In Simmons v. U. S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the Court said:

“Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972-1973, [18 L.Ed.2d 1199], and with decisions of other courts on the question of identification by photograph.”

Jackson and Woods based their identification of appellant more on a face to face confrontation for 30 to 40 minutes than on the photographs of appellant.

Appellant claimed an alibi. He testified that he was visiting an aunt in Tennessee at the time of the robbery. There was no supporting testimony for his alibi. Alibi evidence presents a jury question and the jury did not believe his testimony.

We have carefully searched the record and find no reversible error.

AFFIRMED.

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


text:
    Ronnie DOTSON v. STATE.
    3 Div. 535.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of forgery and the trial court sentenced him to two years imprisonment in the penitentiary. With counsel present at arraignment appellant pleaded not guilty and not guilty by reason of insanity. After conviction he gave notice of appeal and requested a free transcript. He was determined to be indigent and the Court granted his request for a fre„e transcript. Trial counsel was appointed to represent him on appeal.

The evidence adduced by the State is not disputed. Appellant did not testify nor did he offer any evidence in his behalf.

At the commencement of the trial the prosecution introduced State’s Exhibit No. 1 without objection. This exhibit was a U. S.Treasury Check No. 23804057, dated August 1, 1974, in the amount of $314.95, and was issued to Ben Peck, 955 Highland Avenue, Montgomery, Alabama, 36104.

Gail Robinson then testified that on August 1, 1974, she was working for the First National Bank, Adams Avenue Branch, as a utility teller. She described a utility teller as a person who is transferred among the various branches of the bank and fills in for people who are not at work due to being on vacation. The utility person takes the P.T. number of the absent person.

Mrs. Robinson testified that on August 1, 1974, someone relayed a note to her as Ronnie Dotson and she cashed a check for him. She stated that State’s Exhibit No. 2, check number 23804057, a government check, was the check she cashed for appellant. Further identification of this check was made by the P.T. # 49, which was her P.T. stamp.

While Mrs. Robinson was at the Western Branch some time after she took the above check she was shown six pictures by a Charles Martin and out of those pictures she picked the appellant and another one. She stated that she picked the two because they looked similar. Despite the fact that she picked out two pictures she couldn’t say positively if these two were the ones or one who cashed the check.

Her original description was that it was a young black male. She also stated that they had quite a few colored people out at the Adams Avenue Branch.

Further testimony by Mrs. Robinson was that she worked ten hours that day and they were hectic hours. She also cashed other checks from young black males that day and she estimated the number of checks as more than five.

Mrs. Robinson said the person stayed at the cashier’s window long enough for her to give him a pencil to endorse the check. She has no idea how long this took but she remembered stamping the check after getting it and her recognition of the check is by her stamp number.

The type clothing worn by this person was not noted by Mrs. Robinson. She did not recall ever seeing this person again.

Mrs. Robinson said the man came by with the pictures in August but she didn’t remember as it was a few months later. She also stated that she couldn’t swear if the photographs were of all young black males and she couldn’t say if appellant was the person she saw that day.

Carl Martin testified that he was employed in Montgomery, Alabama, for the United States Postal Service and that he had been employed in that capacity for eight and a half years.

Mr. Martin further testified that he was involved in the investigation of an alleged forgery of a check issued to Ben Peck. During this investigation he talked to Gail Robinson at the First Alabama Bank. He showed Mrs. Robinson a photocopy of a check payable to Ben Peck and six photographs of black males.

Mrs. Robinson was able to identify the check according to Carl Martin. He also said that he talked to appellant two times; Montgomery City Jail, October 10, 1974, and November 11, 1974.

During the first time that he talked to appellant he obtained a copy of appellant’s fingerprints. Over appellant’s objection State’s Exhibit No. 3, a copy of appellant’s fingerprints, was admitted into evidence.

Mr. Martin further stated that he never had State’s Exhibit No. 2 in his possession. This exhibit was the check in question. He stated that during the questioning of appellant concerning this check he was cooperative to a certain point and became uncooperative when asked for some handwriting samples.

According to Mr. Martin, appellant refused to discuss the case during the time and he would not sign the waiver form.

State's Exhibits 4, 5 and 6 were copies of appellant’s handwriting samples which Carl Martin testified that he obtained from appellant. These exhibits were introduced into evidence over appellant’s objection.

Mr. Martin testified that State’s Exhibit No. 3 (fingerprint copy), left his hands on October 16, 1974, and this was sent to Cincinnati Postal Crime Lab, Cincinnati, Ohio, by registered mail No. 23214.

State’s Exhibits No. 4, 5, and 6 (handwriting samples) were mailed by Martin on October 2, 1974, to the same address by registered mail No. 23858.

Martin admitted that Mrs. Robinson stated she couldn’t identify the person she saw.

James Dibowski testified that he lived in Cincinnati, Ohio; that he was an examiner of questioned documents or handwriting expert; that he was Laboratory Director of the Cincinnati Crime Laboratory which is one of four postal inspection service laboratories in the country. The Cincinnati lab serves the Eastern part of the United States.

His duties consisted of making examinations and comparisons of disputed documents submitted to him. He further stated that he had received substantial training in handwriting and fingerprint examination.

According to Dibowski he began his studies in 1947 and has continued them up to the present time. He estimated that he had examined close to the neighborhood of half-a-million disputed documents.

He further stated he had qualified and testified many times in State and Federal Courts in 21 states. His laboratory in Cincinnati is completely equipped and he has performed work for other governmental agencies including the Secret Service, Bureau of Narcotics and the Customs Office.

Dibowski then described the various methods of lifting fingerprints that he had studied including the dusting method; the silver nitrate method and the iodine method. According to Dibowski the Nind Hyd-rin method was studied in recent years and this method was developed in the Cincinnati laboratory and other postal laboratories. He stated that in the last 12 years all the stolen checks and money orders that are submitted to him are processed with the Nind Hydrin process.

The Court then allowed Mr. Dibowski to testify as an expert witness. The defense did not question the qualifications of this witness.

He identified State’s Exhibit No. 2 as a U. S. Treasury check number 23804057, payable to Ben Peck in the amount of $314.95 which he ordered from the Department of Treasury back in September, 1974, and which was received in the laboratory on February 10, 1975. He kept this check in his possession from that time until the date of the trial.

Dibowski identified State’s Exhibit No. 3 as a fingerprint document of a Ronnie Dotson, submitted to him by Postal Inspector Carl Martin in October of 1974. He then stated that he processed State’s Exhibit No. 2 for fingerprints and that he found two suitable for comparison. These prints were located on the front of the check.

Mr. Dibowski testified that he used the Nind Hydrin process to check State’s Exhibit No. 2 for prints and that upon finding the prints usable he compared these prints to the prints located by State’s Exhibit No. 3. From this comparison he reached the conclusion that one of the developed latent fingerprints on the face of State’s Exhibit No. 2 is an impression of the right middle finger of Ronnie Dotson as it appears on State’s Exhibit No. 3.

He then produced a chart which he used to show the eight points of identification which the postal service feels are necessary for making a positive identification.

On the chart under the word questioned is an enlargement of the developed latent fingerprint on the face of State’s Exhibit No. 2, and on the other side is an enlargement of the middle fingerprint of Ronnie Dotson as it appears on State’s Exhibit No. 3.

He identified the points he marked off as being the skin on the fingers. This skin is described as friction skin which has a series of ridges in it. These ridges form various patterns or various lines. For instance, if the lines come along and end this is called a ridge ending. If the ridge line comes along and forms into two lines, this is referred to as a bifurcation or fork. He stated there is an adequate number of agreeable characteristics between the questioned document and the known print with known differences and concluded that both are the same or were made by the same finger.

On the chart Dibowski marked off 13 identifying points. He described point # 1 as a ridge ending. He stated there were no intervening ridges from point # 1 to point # 2. Point # 3 is a ridge ending; point # 4 is one intervening ridge from point # 3 and it leads down to a fork or bifurcation; point # 6 is two intervening lines from point # 5; point # 10 is 13 intervening lines from point # 6. Dibowski stated that he had 13 points that are in agreement.

Dibowski then stated that he also made a comparison between the known handwriting of the defendant, which was found in State’s Exhibits No. 4, 5, and 6, with the handwriting in back of the check.

He stated that his opinion as a result of that comparison was that the person who wrote the endorsement “Ben Peck” which appears on State’s Exhibit No. 2 was written by the same person who completed the handwriting samples described as State’s Exhibits 4, 5, and 6, which are purported to be the handwriting and handprinting of Ronnie Dotson.

Dibowski stated that he had four samples of the capítol “B” as written by Ronnie Dotson. He had three samples of the capí-tol letter “P”.

He stated that handwriting comparison is based on the combination of usual features in one writing and finding the same group of characteristics in another writing. In the “B”' he described it as being started with a little bit of a hook in an upward position and described this as a printed style of “B”. He found the same characteristic in the first sample. Another feature is the little bit of upper hook in the staff of the “B”. He found the same feature in lines 2 and 3 of the known. He also found that the proportions of the upper portion of “B” to the lower proportions, between the questioned and known are in very good agreement, particularly with sample of line 3.

The “E” started with a little bit of a down stroke and he stated this is a characteristic of the writing of the appellant. He compared the second arch of the “N” as being the same characteristic as shown on line 3.

He described the capítol “P” in Peck as being a printed style with the upper portion of the top of the “P” not touching the staff. He stated this as being characteristic in the writing provided by the defendant.

Again returning to the “e” as shown in Peck he described the little bit of a down stroke which he stated as being characteristic of appellant’s writing.

He described “C” as being the most unusual letter due to its eight formation. He found similar comparison characteristics in the sample “Peck” as in the “C” in the State’s Exhibit No. 2.

The letter “K” was described as being a real small “K” which had retracing in it. He described this as being characteristic in the handwriting of appellant.

Thereupon the State’s Exhibits 7, 8, and 9 were offered into evidence over appellant’s objections.

Dibowski stated that he was a criminologist with the Postal Service and that his basic job was the gathering of evidence while working with the postal inspector. He had spent 99% of his time testifying for the prosecution and that he was basically a law enforcement agent, but he said, “If there is any question, I always resolve it in favor of the person who is under suspicion.”

He further stated that in all of his years as an examiner he had never made a mistake and that the job always called for the use of his personal judgment.

Ben Peck testified that he lived at 955 High Avenue and that his address was not Highland Avenue. He identified State’s Exhibit No. 2 as being a check for Ben Peck, 955 Highland Avenue. He stated that the check was for railroad retirement.

He stated that he missed one of his checks back in the first of August. Upon looking on the back of the check he stated that he saw Ben Peck endorsed on it but that he didn’t do it because he couldn’t write, he printed.

Upon looking at appellant, Peck said he did not know appellant and did not authorize appellant to sign his name on the check. Peck said that when he went home, his check was gone and that he did not tell anyone to endorse his name.

Peck stated that he did not see anyone take his check but Mr. Little sent him word that someone said he was Ben Peck’s son and wanted to cash a check. He also said that when he went to Mr. Little’s store, he was told that the young man who tried to cash the check had a full beard.

Jacqueline Arrington testified that she lived at 519 Smythe Curve and that she had known the appellant for five years. She stated that appellant lived across the street from her.

Miss Arrington stated that on August 1, 1974, she was in Mr. Little’s grocery store on the corner of Highland Avenue and High Street and during one of the times she was there she saw appellant there. According to Miss Arrington, he had a check and wanted to cash it for his daddy. She further stated that she thought he said Peck.

She said appellant asked Mr. Little to cash the check which was one of his father’s, but Mr. Little looked on the back of the check and said he couldn’t cash it because it wasn’t signed and for appellant to go home and get it signed. She further stated that after appellant came into the store the second time, Mr. Little refused to cash the check.

Miss Arrington stated that she couldn’t positively state that State’s Exhibit No. 2 was the same check. She also knew that appellant had a family but she didn’t know anything about the family. She also said she didn’t particularly remember anything that happened.

Carl Martin returned to the stand and testified that in the course of his investigation on the subject case he had occasion to talk to Miss Jacqueline Arrington.

He stated that he took a statement from her concerning the attempted forgery of Ben Peck’s check in the Little Grocery Store. He stated that she selected a photograph that resembled the appellant as the person who came into Little’s store and attempted to cash a government check.

Mr. Martin testified that he saw Miss Arrington on September 9, 1974. He took six photographs of young black males with him. He stated the approximate height of these young black males were from 5 feet 11 inches to 6 feet tall but he didn’t know the weight although in the photograph they appear to be slim and had small afros. Mr. Martin further testified that the photographs were of the shoulders and face and all had medium shoulders.

Appellant then moved to exclude all testimony relative to these photographs and the trial court overruled same.

The State rested and appellant then made a motion for the trial court to exclude the State’s evidence based on a failure to prove a prima facie case. This motion was overruled and the defense rested.

Appellant asserts that reversible error was committed because there was a variance between the allegations in the indictment and the proof at trial. The basis for this contention is that the U. S. Treasury check payable to the order of Ben Peck listed his address at 955 Highland Avenue and Ben Peck testified that his address was 955 High Street. Anyone familiar with the streets of Montgomery knows that High Street begins at the intersection of South Court Street and runs east for about 1400 blocks and without a change in direction becomes Highland Avenue; so that in reality High Street and Highland Avenue are one and the same street.

The name of the street is not the material allegation in the indictment against appellant. He was charged with forgery in that he signed the name of “Ben Peck” to Peck’s railroad retirement check. That very check with the endorsement thereon was the subject matter of his trial and the basis of his conviction. There is no material variance where there is proof of so much of an indictment as shows the defendant committed a substantial offense specified therein. Owens v. State, 291 Ala. 107, 278 So.2d 693; Taylor v. State, 47 Ala.App. 285, 253 So.2d 354; Fuller v. State, 39 Ala.App. 219, 96 So.2d 829.

Appellant next contends that the testimony of Jacqueline Arrington prejudiced his right to a fair trial. We do not agree for several reasons. In the first place there was no objection to the testimony of this witness. A review on appeal is limited to those matters on which rulings are invoked in the trial court. Daniels v. State, 53 Ala.App. 666, 303 So.2d 166; Lucky v. State, 50 Ala.App. 324, 278 So.2d 772.

There is nothing in the record which indicates that the testimony of Miss Arring-ton was not a part of the same criminal activity for which appellant stands convicted. Had Mr. Little required appellant to endorse the name of “Ben Peck” to the check and cashed it, the crime of forgery would have then and there been committed.

The testimony of Miss Arrington was clearly admissible to prove identity, scien-ter, intent, motive and scheme. Murphy v. State, 52 Ala.App. 490, 294 So.2d 457.

The judgment of conviction is affirmed.

AFFIRMED.

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


author: TYSON, Judge.

text:
    J. C. ADAMS v. STATE.
    1 Div. 660.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Thomas P. Doyle, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged J. C. Adams with the robbery of Howard Gaskins by taking currency and other valuables from his person. The jury’s verdict found the appellant, “guilty as charged,” and fixed punishment at fifteen years imprisonment. The trial court entered judgment in accordance with this verdict.

Linda Marks testified that on November 24, 1974, she was employed by Dr. Howard Gaskins, the pharmacist who owned Eagle Drug Store in Prichard, Alabama. She testified that about 8:30 P.M., two black men came in. She testified no customers were present at the time. From the record:

“Q Could you tell this jury what, if anything, happened at that time?
“A Yes; these two guys came into the drug store and it was a tall guy and a short guy and the tallest guy, he started unzipping his pants and he took this rifle out of his pants or a shotgun or something and he gave it to this other guy and he ran and held the gun on Dr. Gaskins and told the rest of us to go in the back.
“Q Okay; let me ask you this, was the store locked at that time?
“A Yes; it was.
“Q All right; were the people that came in there and robbed you all, were they disguised in any way?
“A No; they weren’t.
“Q Now, you said there were two of them?
“A Yes.
“Q And one of them gave the gun to the other one, is that right?
“A Yes.
“Q Now, I want you to look around this Courtroom and see if you see either one of the ones involved in this?
“A Yes; there he is.
“MR. HUGHES: Let the record reflect that she has identified the defendant.
“THE COURT: The record will so reflect.
“MR. HUGHES: Now, what part did Mr. Adams play in this?
“A He held the gun and he told us to get in the back.
“Q Okay; did he point the gun at you?
“A Yes; he did.
“Q Now, do you know what kind of a gun it was?
“A It was a sawed-off gun.”

The appellant then directed Miss Marks, Dr. Gaskins and the third employee to the back of the store, and they left after taking Dr. Gaskins’ wallet and a pistol.

Howard Gaskins testified he owned Eagle Drug Store located at First Avenue and Highway 45 in Prichard. He testified that on November 24, 1974, he was on duty and had two employees, Linda Marks and Monica Strother, working for him at the store. He testified about 8:30 that evening the appellant and a taller companion came into the store, pointed a gun at him and took $90.00 in cash from him. He testified that the appellant and his companion also took a pistol, his wallet and his watch. He testified he immediately telephoned the police and reported the robbery and gave the police the name of one of the robbers who was positively identified in court as the appellant J. C. Adams. On cross-examination, Dr. Gaskins testified the appellant had some fuzz or beard on his face and was wearing a black leather jacket.

Monica Strother testified she was employed by Dr. Howard Gaskins at the Eagle Drug Store on St. Stephens Road in Prich-ard, Alabama, on November 24, 1974. She stated that about 8:30 that evening, she was employed as cashier when the appellant walked in with a taller companion and that the taller man came in with a “sawed-off gun” and handed the gun to appellant. She testified the appellant, whom she positively identified in court, pointed the gun at them and took the proceeds from the cash register. She stated she recognized the appellant as he was a cousin of her aunt, and she had known who he was for several years. She stated she gave the appellant’s name to the investigating police officers. She testified the appellant had a mustache on the night in question. On cross-examination she stated she saw the taller man pull the gun from his pants and hand it to the appellant and then the appellant told all three persons to “get in the back.”

The State and the defense stipulated that Officer Meyers’ testimony would be that upon receiving the complaint from Dr. Gas-kins, he went out and arrested appellant J. C. Adams.

Linda Mae Adams testified she lived at 1723 Victor Avenue, Prichard, Alabama. She stated that on November 24, 1974, her son, J. C. Adams, lived with her and that he was twenty-four years old. She testified he was a brick mason, but that on the night of Sunday, November 24, 1974, he was at home with her, her niece and two daughters playing cards and that he did not go out that evening. She did state that the appellant was wearing a mustache at that time. She identified her niece as Virginia Small-wood and her daughter as being Bonnie Mae Anderson and that both of them were at her home that evening.

Bonnie Mae Anderson testified she was the sister of J. C. Adams. She stated on November 24, 1974, she had gone over to her mother’s house shortly before 7 o’clock and had been there with her cousin, Virginia Smallwood, her sister and her mother playing cards. She testified the appellant was there during that time and that she did not see him leave the house. On cross-examination, she testified she lived right around the corner from Eagle Drug Store and that she had gone over to Ransome’s Cafe around 8 o’clock that evening.

Virginia Smallwood testified she was a first cousin of the appellant. She testified that on the night of November 24,1974, she had been at the Adams’ home playing cards, having gone over about 7 o’clock in the evening. She testified that appellant was playing with her and Bonnie Mae and his younger sister. She did testify that about 8 o’clock they walked over to Ransome’s Cafe, but the appellant did not leave the house.

Appellant J. C. Adams testified that he was arrested on a Wednesday following a neighborhood drug store robbery on Sunday evening. He testified that he did not go to the Eagle Drug Store that Sunday as he had been playing cards at his mother’s home and that other than going by Ran-some’s Cafe, he had not been out that evening. He denied going in the drug store with a sawed-off gun and taking a wallet, $90.00 and a pistol from Dr. Gaskins. He stated that he had “seen Monica Strother around,” but did not really know her.

I

It is clear from the evidence presented that the appellant was positively identified in court by three State witnesses. The nature of his defense is that of alibi. The issue thus presented by this record is whether or not the evidence is sufficient to sustain the verdict of guilty. After careful consideration, we are of the opinion that the trial court correctly overruled the appellant’s motion to exclude. Williams v. State, 48 Ala.App. 737, 267 So.2d 526; Clay v. State, 52 Ala.App. 272, 291 So.2d 364, and authorities cited therein.

The conflict in the testimony presented a question for the jury. Zimmerman v. State, 49 Ala.App. 442, 272 So.2d 914.

II

The appellant next contends the trial court should have given his requested instructions on lesser included offenses such as grand larceny or assault. Where as here the evidence, if believed, would not support a conviction for larceny on one hand or assault and battery on the other, such written requested charges were properly refused. Kelly v. State, 235 Ala. 5, 176 So. 807; Chamberlain v. State, 48 Ala.App. 254, 263 So.2d 709; Browder v. State, 54 Ala.App. 369, 308 So.2d 729, cert. denied 293 Ala. 746, 308 So.2d 735.

We have carefully examined this record as required by law and find no error therein. The judgment of the trial court is due to be and the same is hereby

AFFIRMED.

HARRIS, DeCARLO, BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


author: BOOKOUT, Judge.

text:
    Roy WATTS v. STATE.
    7 Div. 434.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Rehearing Denied Aug. 24, 1976.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: twenty years imprisonment.

Pursuant to Rule 2(b), Alabama Rules of Appellate Procedure, Rules 2(a), 31(a) and 31(c) are hereby suspended and this cause restored ex mero motu to the rehearing docket of this Court.

On rehearing, it appears that this Court must determine if an appeal must be dismissed on failure of the appellant to file a brief, pursuant to Rules 2(a), 31(a) and 31(c), A.R.A.P., or whether Title 15, § 389, Code of Alabama 1940 precludes such dismissal.

Upon reconsideration of this cause, § 389, supra, requiring that we search the record for error, appears to control. This is especially true in light of the flexibility given the appellate courts in the Rules of Appellate Procedure. It should be noted that Rule 2(a)(2) states that an appeal may be dismissed for failure of the appellant to file a brief. Such dismissal is not mandatory. The Supreme Court likewise has_applied the Rules with considerable flexibility. Pendleton v. State, Ala., 329 So.2d 144 (1976).

Title 15, § 389, supra, has long been construed to the effect that the filing of a brief is not essential to an appeal in a criminal case. Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955).

Our prior opinion in this cause, dated April 20, 1976, is hereby withdrawn.

ON REHEARING

Appellant was convicted of second degree murder for shooting his divorced wife in the back with a shotgun. The evidence is clear and uncontroverted that the shooting was the cause of death and that the appellant did the shooting. His chief defense was that of insanity.

I

Appellant introduced testimony from two psychologists as to his insanity at the time of the offense. Likewise, lay witnesses were called in his behalf who testified as to appellant’s unusual conduct after his wife left him. The State introduced lay witnesses who testified that the appellant appeared sane to them. Needless to say, the testimony concerning appellant’s sanity was conflicting.

Title 15, § 422, Code of Alabama 1940, states:

“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.” (Emphasis supplied.)

In Smith v. State, 54 Ala.App. 237, 307 So.2d 47 (1975), this Court stated:

“Where, as here, the evidence is in conflict as to the defendant’s sanity at the time of the alleged criminal homicide, such question, with proper instructions, is properly submitted to the jury. Divine v. State, 285 Ala. 488, 234 So.2d 28. In Cunningham v. State, 47 Ala.App. 730, 261 So.2d 69, this Court held that even though the only evidence presented regarding the defendant’s sanity at the time of the commission of the homicide was that of one physician who testified that in his opinion the defendant was not entitled to the affirmative charge on that ground. Citing George v. State, 240 Ala. 632, 200 So. 602, the Court continued:
‘The opinion of expert witnesses as to insanity are not conclusive upon the jury; they are to be weighed like other evidence, such evidence being intended to aid the jury, and its value depending largely upon the intelligence, experience, honesty and impartiality of the witness. The jury may reject it all, though it is without conflict.’ 47 Ala.App. at 733, 261 So.2d at 71. (Citations omitted). (Emphasis ours).”

In the instant case, the question of appellant’s sanity was the subject of lengthy testimony. The trial judge gave a full and detailed charge to the jury on that issue and the jury,- by its verdict, found adverse to the appellant.

II

A color photograph showing the wound in the back of the victim was admitted into evidence over objection of the appellant. While the photograph showed an amount of blood and an open wound, it was properly identified and was illustrative of testimony concerning the location and nature of the fatal wound. The photograph was approximately 3 X 3% inches in size and was not enlarged in a manner so as to distort the subject or grossly magnify the wound. The fact that a photograph is gruesome is insufficient ground for its exclusion if, after proper authentication and identification, it tends to shed light on, strengthen, or illustrate the truth of other material testimony. 6 Ala.Digest, Criminal Law @=>438; Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); McHugh v. State, 53 Ala.App. 473, 301 So.2d 238 (1974). The trial judge was not in error in admitting the photograph in evidence.

We have searched the record pursuant to mandate of Title 15, § 389, supra, and find no error prejudicial to the appellant.

RULES SUSPENDED. OPINION WITHDRAWN. REHEARING GRANTED.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.

CATES, P. J., not sitting.


text:
    Lamar ANDERSON v. STATE.
    4 Div. 449.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Rufus R. Smith, Jr., Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Jackson P. Burwell, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of grand larceny and sentenced to five years imprisonment in the penitentiary. Prior to arraignment he was found to be indigent and counsel was appointed to represent him. At arraignment he pleaded not guilty. After conviction he gave notice of appeal and a free transcript was furnished him. New counsel was appointed to represent appellant on this appeal.

The evidence adduced by the State is not disputed. Appellant did not testify in his behalf.

Around the first day of November, 1975, a 1973 Camaro automobile worth $2,800.00 was taken from the used car lot of the Williams Pontiac-Cadillac dealer in Dothan, Alabama. Ronnie Thompson, an employee of the company, testified that the Camaro was maroon and the identification number of this vehicle was 1S87T3N145727. He stated that he discovered the car was missing when he started closing the business for the night and he began to question the other employees to ascertain if anyone had seen the car or if it had been sold or if anyone was using it. He said no one had authority to use the car unless it was cleared through him or the sales manager, Michael Williams, and that the records at the place of business did not show that anyone had permission to use the car. He reported the theft of the ear to the Dothan Police Department and that he saw the car about a week later when the police picked the car up in Griffin, Georgia, and brought it back to Dothan. He stated that the serial number checked with the number on the bill of sale on file in the office of the company.

Elma Madison testified that she lived at 603 Monroe Street in Dothan and that she knew appellant and knew him in November of 1975. She saw him on Saturday, November 1, 1975, walking up the street toward her home. She had been to the washerteria and had just driven in her driveway when appellant came up to her and told her he had his car in her back yard. She told him there was no car in her back yard and appellant carried her back of the house and showed her the car. He told her he wanted to do some decorations on the car and she gave him permission to do so. She further testified that appellant left the car at her house and later that afternoon she called the Police Department. She stated that a policeman came to her house and took the tag number and wrote down some information. She stated the color of the car was maroon. She did not see appellant drive the car to her house and did not see him drive it away.

Police Officer Danny Moates testified that on November 1, 1975, he got a call to go to the house of Elma Madison on Monroe Street in Dothan. That he saw a Camaro automobile at the Madison home and that it was either red or maroon in color. The officer checked the serial number and also wrote down the tag number. The serial number was 1S87T3N145727 and the tag number was 19-18408. The officer did not do anything further with reference to the car as he had not received a stolen car report on it at that time.

Detective Harold Lock testified that he was employed by the Dothan Police Department on November 20, 1975, and was assigned to the Criminal Investigation Division. He further testified that at 4:25 p. m., on that date, he interviewed appellant at the Police Department. That before asking him any question, he gave him the Miranda rights and warnings and appellant said he understood his rights. The officer stated that no one was present but him and the appellant. That he did not threaten appellant or offer him any promises, rewards or other inducements to get him to make a statement. Appellant told the officer that he did take the car from the lot of the Williams Pontiac-Cadillac Company one evening and that he only drove it to test drive it and that he intended to take it back. He claimed he got permission from one of the salesmen before he took the car out. He further told the officer that he drove the car to Griffin, Georgia, to see his mother who was ill. No salesman was called by appellant to corroborate his claim that he had permission to drive the car.

The sufficiency of the evidence is not presented by this record. There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; no exceptions were reserved to the Court’s oral charge to the jury, and there were no adverse rulings on the admission of evidence which contained any merit. Eady v. State, 48 Ala.App. 726, 267 So.2d 516; Webb v. State, 55 Ala.App. 195, 314 So.2d 114; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613.

Appellant filed a motion for a new trial in which he did not raise the sufficiency of the evidence but alleged that one of the' jurors had in the past purchased stolen property from appellant knowing the same had been stolen, and this was highly prejudicial to the appellant and that he was due a new trial. This was a mere naked allegation and no proof whatsoever was offered in support of this claim. Since no testimony was offered on the motion for a new trial, nothing was presented to the trial court on which a ruling could be invoked.

We have carefully searched the record and find no reversible error. Accordingly, the judgment of conviction must be affirmed.

AFFIRMED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Robert Louis MASON v. STATE.
    1 Div. 645.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Rehearing Denied Aug. 24, 1976.
    Willis W. Holloway, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

This is an indigent appeal from a conviction of assault with intent to murder where a ten-year sentence was imposed.

The scene of this offense was the Sidekick Social Club in Prichard, Alabama.

About 3 A.M., on March 8, 1975, Officer T. C. James of the Prichard Police Department received a call that there had been a shooting at the Side-kick Club. On his arrival he found Margarite Griffin had been shot and was told that Robert Louis Mason, the appellant, did the shooting. He went outside and saw the appellant standing near a taxi occupied by a passenger, Ernestine Finney. The appellant was arrested and taken to the police station.

Margarite Joyce Griffin testified that on March 8,1975, she was in the Side-kick Club and had been there about one hour. She had one drink and was alone. After she completed her drink, the appellant came in and asked several times to speak with her. She consented and went to the foyer of the club with him. Appellant “fussed” at her and said she had “hoodooed” him.

During the time appellant was talking, the witness said he kept his hand in his pocket. Finally she remarked, “Let me go back . . . I’m fixing to go back inside.” At that point, Mason pulled her “back around” and shot her in the stomach. She fell to the floor and was subsequently taken to the hospital.

On cross-examination, Margarite Griffin admitted she had gone with appellant for about five years and had borne him a child. She explained that three months before, she had “broken up with him.”

The only testimony presented by the defense came from the accused after a motion to exclude had been overruled.

Robert Louis Mason testified he was a preacher and evangelist whom God had called to the ministry on Father’s day. He stated at the time of his “call”, God anointed his hand so he could break the “yoke of bondage.” According to Mason, the yoke of bondage was witchcraft and he had been bound by it for five years.

Mason said he had been a truck driver and when he came off the road, the “call” came. He stated he was a member of the “Endtime Revival Church” and was presently working on “witchcraft, drugs and . preachers . . .” The appellant remarked that people in Searcy Hospital at Mount Vernon and Mobile General Hospital had died and were dying from witchcraft. Further, he said people on the seventh floor of Mobile General were not crazy but were only “bound by demon spirits.”

Mason stated he lived with Margante Griffin for five years and they had one child. He explained that he left her five months before, after “Reverend J. E. Lowery laid hands on me to break the yoke of bondage . . . ”

On the day of the shooting, Mason said he had gone in the club to purchase a beer for his taxi passenger. When he saw Margar-ite Griffin he went over and asked her to come outside. She was with “some individual fellow” at the time. Once they stepped to the side, Mason said he asked why she was “putting my son in bondage;” she replied, “. . . good luck to you and I hope your son good luck.” At that point a fellow named Charlie came out behind Mason with his hand in his pocket. Appellant said the fellow had his “buddies” inside and, “. . . he was going to either do it to me or her.”

Appellant admitted he shot Margarite Griffin with a gun he had in his pocket. He said he was aware guns kill people but remarked, “witchcraft can kill.” Mason stated he did not know whether the victim had a gun but that she had a pocketbook.

No other testimony was presented and the case went to the jury on the outlined facts, appellant’s pleas of not guilty and not guilty by reason of insanity, and the court’s oral charge. The jury subsequently found the appellant guilty and sentence was pronounced in accordance with the verdict.

On February 10, 1976, appellant wrote a letter to this court which we have interpreted to be a pro se brief. In that letter he contends the Prichard police officer lied on two occasions during the trial.

In view of our responsibility under T. 15, Section 389, Code of Alabama 1940, Recompiled 1958, we have searched this record for error. Our review involved each of the court’s rulings adverse to this appellant and due to the fact error was present, only that point will be discussed here.

During the direct examination of the appellant, defense counsel asked:

“Q Did you mean to kill her?
“A No sir.
“MR. VALESKA: We move to strike that last answer. That invades the province of the jury.
“THE COURT: Strike his last answer. That’s for the jury to determine.
“MR. VALESKA: Would Your Honor instruct the jury that they are .
“THE COURT: Gentlemen of the jury, disregard his statement what he intended. That’s for you to determine under all the circumstances of the case. Go ahead.”

This court in a majority opinion wrote to this precise question in Grimes v. State, 56 Ala.App. 439, 322 So.2d 729. In that opinion, Judge Simmons, S. C. J., reviewed the Alabama Supreme Court’s holding in Starr v. Starr, 293 Ala. 204, 301 So.2d 78, and quoted from that opinion. The significant portion we now quote:

“ ‘. . . We now hold that a witness, on direct examination, may testify as to his intention, motive or other physically unexpressed mental state, provided, that the testimony is material to the issues in the case. This is another area where the sound discretion of the trial judge will come into play. Thus we will not review the court’s ruling in either admitting or excluding such evidence in the absence of abuse.’ ” (Emphasis ours.)

Bound by this foregoing pronouncement by our Supreme Court in Starr, supra, and the subsequent holding by this court in Grimes, supra, we have no recourse but to reverse.

REVERSED AND REMANDED.

TYSON, HARRIS and BOOKOUT, JJ., concur.


text:
    Harold Dover GURLEY v. STATE.
    1 Div. 690.
    Court of Criminal Appeals of Alabama.
    June 29, 1976.
    Rehearing Denied Aug. 24, 1976.
    Willis W. Holloway, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of buying, receiving, concealing or aiding in concealing stolen property and sentenced to four years in the penitentiary. He was represented by retained counsel and at arraignment pleaded not guilty. After sentence was imposed, he gave notice of appeal and requested that the sentence be suspended pending appeal which request was granted. The appeal bond was fixed at $6,000.00.

In August of 1974 Dale Boyd was the owner of a 19 foot Sabre fiberglass boat, model 190R, serial number 1966086, of the value of $2,500.00. He had it on a galvanized trailer parked on a concrete slab in his driveway at Fairmont Avenue in Pascagou-la, Mississippi. This boat was stolen on or about August 28 or 29, 1974. He reported the boat stolen and showed the officer the original bill of sale bearing the description set out in the indictment. Mr. Boyd testified that the boat was worth at least $2,500.00.

The boat was found about three weeks later at the home of Preston Miller on Cross Street in Saraland, Mobile County, Alabama. Officers of the Mobile Police Department recovered the boat and carried it to a storage room in the basement of the Mobile County Courthouse and notified Mr. Boyd. Mr. Boyd came to Mobile and identified the boat as his. He noted that the plastic lettering bearing the State of Mississippi registration number had been pulled off and a place on the side of the boat had been sanded or repainted, but the registration numbers were still visible. The Mobile detectives who found the boat at the Miller residence took photographs of the boat before it was removed from the Miller’s house. These photographs along with Mr. Boyd’s bill of sale were introduced into evidence without objections.

Mr. Boyd testified that he did not know appellant and did not know a man by the name of Robert Loper.

During appellant’s trial defense counsel admitted the boat belonged to Dale Boyd. Mr. Boyd recovered his boat around September 19, 1974.

Mrs. Lucille Miller testified that she and her husband lived at 723 Cross Street in Saraland and that she knew appellant. She stated that before daylight on the morning of August 29, 1974, he knocked on her door and told her he had brought her husband’s boat and that he was going to put in their garage and she told him all right. She watched the appellant and two other men put the boat in the garage. She further stated that she knew appellant’s truck but it was not his truck that brought the boat to her house that morning. She said the boat and trailer were being pulled by an “old truck” that did not belong to appellant and she had never seen this particular truck before the morning that appellant brought the boat. It was so early in the morning that Mrs. Miller went back to bed after appellant and the other men put the boat in the garage and left her home.

Later in the day Mrs. Miller went to the bank and drew out $500.00. Between 5:30 and 6:00 p. m., that same day appellant came back to her house. Her husband had just come home from work and she gave him the $500.00 in the presence of appellant. She further testified that she did not see any other person present when she gave the money to her husband. The boat stayed at her home a couple of weeks before the officers came and carried it away and they were never refunded the $500.00.

Appellant testified that he owned and operated Gurley’s Garage and that he did marine and automobile repair work. He stated he knew a Robert Loper who lived in Lucedale, Mississippi. He stated that in 1974 he put a new motor in a 1967 Chevelle Malibu for Loper. Loper asked appellant if he wanted to buy his boat and appellant said he did not but he told Loper that Preston Miller wanted a boat. Appellant and Loper contacted Miller concerning a boat. Miller was to pay Loper $800.00 and build a box trailer worth $1,000.00 to $1,200.00 which appellant would get for the repair of Loper’s car.

A few days later Loper called appellant at 4:30 a. m. and told him he had a boat for Miller and that he was on the Interstate. Appellant rode out on the Interstate and met Loper who had a maroon and white boat exactly like Mr. Boyd’s boat. Loper followed appellant to the Miller residence where they put the boat in the garage. Appellant stated that in his opinion the boat was worth about $1,500.00 to $1,800.00.

Appellant further testified that he arranged for the sale of the boat between Loper and Miller and he was to get a trailer out of the deal to haul his racing cars in. He said he had only known Loper about five days before the boat transaction and he had not seen Loper since they delivered the boat to the Miller residence and that Loper never did come back to get the car that appellant had repaired. He stated he had no idea where Loper was at the time of appellant’s trial. It was developed during the trial that Loper lived in Mississippi and had been arrested there.

On cross-examination appellant admitted that he had been previously convicted of kidnapping.

In his closing argument the prosecutor referred to Loper and appellant as “two convicted felons.” Appellant’s counsel objected to this description of appellant and the trial judge sustained the objection and pointed out that his prior conviction had nothing to do with his guilt or innocence in the case then on trial but only went to the credibility of his testimony and further that it was not proper argument for the Assistant District Attorney to refer to appellant as a convict. The trial court in sustaining appellant's objections to the prosecutor’s argument rendered innocuous any error committed by the prosecutor.

Appellant raises only one issue on this appeal on which he relies for a reversal of the conviction and that is the refusal of the trial court to give the following written charge:

“I charge you, members of the jury, that the assertions of counsel are not evidence in this case.”

Appellant cites Lane v. State, 85 Ala. 11, 4 So. 730, as authority to reverse this case. In Lane, the refused charge read:

“The state must prove its charge, and prove it beyond a reasonable doubt, by evidence. The assertions of counsel are not evidence.”

In this case the Court meticulously charged the jury that the burden was on the State to prove appellant’s guilt beyond a reasonable doubt and that proof must be based on the testimony of witnesses.

The refused charge could well have been given but its refusal was harmless error in the light of the Court’s favorable rulings on appellant’s objections to the argument of the prosecutor and on the oral charge to the jury as to the burden of proof. See Buckles v. State, 291 Ala. 352, 280 So.2d 814.

The judgment of conviction is affirmed.

AFFIRMED.

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