text:
    STATE DEPARTMENT OF PENSIONS AND SECURITY v. Terry T. WHITNEY and Galand S. Whitney.
    Civ. 1411.
    Court of Civil Appeals of Alabama.
    June 7, 1978.
    See also, Ala.Civ.App., 349 So.2d 1170.
    William J. Baxley, Atty. Gen., Mary Lee Stapp, and Clyde P. McLendon, Asst. Attys. Gen., Robert E. Gibney, of Kilborn & Gib-ney, Mobile, for appellant.
    Warren L. Hammond, Jr., Mobile, for ap-pellees.
   BRADLEY, Judge.

The sole issue presented by this appeal is whether the Department of Pensions and Security arbitrarily and unreasonably refused to consent to the adoption of a young child by the appellees, Mr. and Mrs. Terry T. Whitney.

The record in this matter discloses that the child in question, Tony Roberts, was born in 1974. In June of 1976 the Mobile County Circuit Court terminated all legal rights of the natural parents with respect to Tony and conferred upon the Department of Pensions and Security (hereinafter referred to as DPS) the legal guardianship and permanent custody of the child. The court also granted DPS the power to place the child with a family so he could be adopted. Finally, DPS was given the specific authority by the court to consent to any subsequent adoption.

In July of 1975 the child was placed in Mr. and Mrs. Whitney’s home as a foster child. The Whitneys had entered into a written agreement with DPS to be boarding home foster parents for wards of DPS on a temporary basis. Tony Roberts was placed in the Whitneys’ care pursuant to this agreement and remained in their care for a period of about thirteen months. During the time Tony was in the Whitneys’ temporary care, DPS was in the process of obtaining final authority from the circuit court for the disposition of Tony’s custody. Upon learning that the Whitneys had contacted the natural mother in order to obtain her consent so that they might adopt Tony, DPS removed Tony from the Whitneys’ care. Within two months of this occurrence the Whitneys filed a petition in the Probate Court of Mobile County seeking to adopt Tony Roberts. DPS thereupon moved the probate court to dismiss the Whitneys’ petition. This motion was based on the conclusion reached by DPS that the welfare and best interests of Tony Roberts would suffer if the Whitneys were permitted to adopt him.

On July 26, 1977 the probate court issued an interlocutory order granting Mr. and Mrs. Whitney’s petition of adoption. Following that action by the probate court, DPS filed a writ of mandamus with this court seeking to have the probate court’s order set aside.

In Matter of Roberts, Ala.Civ.App., 349 So.2d 1170 (1977), we issued an opinion provisionally granting the writ of mandamus. In our opinion we said that:

“The D.P.S. takes the position that their consent to an adoption is a jurisdictional requirement when a juvenile court, or court of like jurisdiction, has terminated parental rights in the natural parents and has granted guardianship and permanent custody of the child to D.P.S. The department further contends that a motion to dismiss an adoption petition should be granted when D.P.S. does not consent to an adoption.
“The respondents, through able counsel, argue that an administrative agency (i. e., D.P.S.) cannot arbitrarily prevent an adoption by the simple withholding of its consent.
“The initial question for answer by this court is whether the consent of D.P.S. is a necessary prerequisite to the adoption of a child committed to its care.
“The facts, as set out above, show that D.P.S. is the proper party to consent since legal guardianship has been placed with them. The natural parents had their parental rights permanently terminated by an order of the Circuit Court of Mobile County and, therefore, they are powerless to consent.
“Thus, it can be seen that the giving of consent by D.P.S. is a prerequisite to the probate court’s consideration of the subject matter.
“The initial question having been answered in the affirmative, we now proceed to ascertain whether D.P.S. can arbitrarily withhold its consent to the adoption of a child that has been committed to its custody and care. We find that it cannot arbitrarily withhold its consent.
“. . . Whether the consent of the D.P.S. is being withheld unreasonably or arbitrarily is a question of fact. The burden of proof is on the party asserting that the consent of D.P.S. is being withheld arbitrarily or unreasonably. And, the probate court must decide, after a hearing, whether D.P.S. is, in fact, arbitrarily withholding its consent to the adoption. See Straszewicz v. Gallman, Ala.Civ.App., 342 So.2d 1322 (1977).
“Summarizing, the consent required of the D.P.S. is jurisdictional, so that on its refusal to grant such consent, the court is without power to issue an adoption order unless the agency’s action is found to be arbitrary and unreasonable. .
“. . . For this reason, we deem it necessary to return this matter to the probate court so that the question of whether D.P.S. has arbitrarily withheld its consent to the adoption can be properly considered by that court at a hearing held for that purpose.”

An ore tenus hearing was subsequently held in compliance with our decision and at the conclusion of the evidentiary phase of the hearing, the probate court determined that DPS had acted in an arbitrary and unreasonable manner by withholding its consent to the adoption of Tony Roberts by the Whitneys.

A finding by a probate court based on the examination of witnesses ore tenus is presumed to be correct and will not be disturbed on appeal unless such finding is plainly and palpably erroneous. However, the burden of proving that DPS arbitrarily and unreasonably refused to consent to an adoption is on the party who is so contending. After a careful review of the facts in the instant case we conclude that the Whit-neys failed to sustain the burden of proving that DPS arbitrarily and unreasonably refused to consent to the adoption by them of Tony Roberts; therefore, we hold that the probate court’s judgment is plainly and palpably erroneous.

DPS is an administrative agency of this state. Its duties include the care and protection of dependent children. And pursuant to the performance of such duties, DPS may consent or refuse to consent to the adoption of a child committed to its care. We said in English v. Macon, 46 Ala.App. 81, 238 So.2d 733 (1970), that “. . . the Department ... became in loco parentis to the child and acquired all of the rights and had thrust upon it all of the responsibilities of natural parents.” However, in exercising its authority to grant or withhold its consent to an adoption, DPS must, in every instance, focus its paramount concern on the welfare and best interests of the child. Moreover, DPS cannot arbitrarily or unreasonably prevent an adoption which may be in the best interests of a child simply by withholding its consent. Matter of Roberts, supra.

In the present case the probate court found that DPS had arbitrarily and unreasonably withheld its consent to the adoption. However, a determination by an administrative agency is not “arbitrary” or “unreasonable” where there is a reasonable justification for its decision or where its determination is founded upon adequate principles or fixed standards. 3A Words and Phrases, Arbitrary 565. Cf. Crabtree v. City of Birmingham, 292 Ala. 684, 299 So.2d 282 (1974). The record before this court reveals that there existed a number of reasons which supported DPS’s refusal to permit the Whitneys to adopt Tony Roberts. Consequently, we believe the probate court incorrectly held that DPS had “arbitrarily” or “unreasonably” withheld its consent to the adoption of the child, and therefore reverse.

While the Whitneys would have been suitable as adoptive parents in certain instances, the presence of peculiar circumstances in this particular case suggests that the best interests of Tony Roberts would not be served by allowing them to adopt him.

At trial employees of DPS testified that the agency diligently tries to place children in homes where the prospective parents have no knowledge of the identity of the child’s natural parents. And although DPS occasionally allows exceptions to this rule, our examination of the record does not reveal any instance where the relationship between the natural parents and the prospective adoptive parents was as substantial and potentially injurious to the child’s welfare as the one which existed between the Whitneys and Tony Roberts’ natural mother. Not only did the Whitneys know the natural mother, they contacted her (or her family) on several occasions, and in one instance provided her with financial aid. Moreover, both the Whitneys and the child’s natural mother reside in Mobile in contravention to general DPS policy that the adoptive family should live in a locality where there is reasonable assurance that the child cannot be identified or interfered with by the natural parents. Department of Child Welfare v. Jarboe, 464 S.W.2d 287 (Ky.1971); In re Adoption of Daughtridge, 25 N.C.App. 141, 212 S.E.2d 519 (1975).

In addition, Tony Roberts has not been in the foster home of the Whitneys for over eighteen months. He has been placed in a prospective adoptive home pursuant to the directive of the Circuit Court of Mobile County, and his new place of residence is located outside of Mobile County. DPS has approved the persons who now have Tony as adoptive parents. And according to the evidence, Tony is happy and well adjusted in his new environment. Department of Child Welfare v. Jarboe, supra.

Finally, it should be remembered that Tony was never placed in the foster home of the Whitneys for purposes of adoption. The Whitneys were never considered by DPS to be anything other than hired foster parents. A number of foster children had resided in the Whitneys’ home prior to Tony, and because of their relationship and dealings with DPS we may presume that the Whitneys were aware of DPS’s policy regarding confidentiality between a child’s natural parents and those persons selected by DPS to provide temporary care of the child. Despite this fact, the Whitneys actively sought to discover the identity of Tony’s natural parents while the child was in their (the Whitneys) custody. Furthermore, after ascertaining the identity of both the natural mother and father of the child, the Whitneys contacted both individuals by telephone and by personal visits. The record, however, is unclear as to whether these contacts occurred before or after Tony had been removed from the Whitneys’ foster care. Nonetheless, as a result of their discussions and visits with Tony’s natural parents, the Whitneys eventually obtained the formers’ consent to adopt Tony even though neither individual had any power to consent to the adoption of their child due to the fact that their parental rights had been terminated by court order.

In addition to the activities described above, Mrs. Whitney admitted at trial that when Tony was removed by DPS from the Whitney home to another foster home, she (Mrs. Whitney) had a neighbor follow the DPS employee and Tony in an effort to learn where he was to be placed. On another occasion, Mrs. Whitney learned that Tony had been transferred to yet another foster home when her nephew reported that he had seen Tony at the grocery store where.he (the nephew) worked. The nephew copied the address of Tony’s foster home from a check used by the little boy’s new foster mother to pay for groceries and subsequently gave the address to his wife. The nephew’s wife then gave the address of the child’s new foster home to Mrs. Whitney.

We note these events because we believe that Mrs. Whitney’s conduct, while understandable in view of her desire to adopt Tony, violated the nature of her relationship with DPS. The Whitneys entered into an agreement with DPS to provide a foster home for the child. They were paid for their services at public expense. And at least implicit in terms of the arrangement which they had with DPS was the Whitneys’ duty not to interfere with any appropriate administrative action by DPS. As the agency of the State charged with protecting the welfare and best interests of dependent children, the Department of Pensions and Security has the discretion to choose foster parents as well as adoptive parents. Accordingly, interested persons such as the Whitneys may not unilaterally interfere or obstruct the manner in which the professionals who are in the pay of the State exercise their discretion in the placement of their wards. We are of the opinion that Mrs. Whitney’s actions in this case, while falling short of actual interference with DPS, were unwarranted and when considered with additional factors, constituted a valid basis upon which DPS could conclude that the best interests of the child would not be enhanced by placing the child with the Whitneys for adoption.

We are persuaded that the facts in this case strongly warranted the conclusion that there existed reasonable justification for the refusal of DPS to consent to the adoption of Tony Roberts by the Whitneys. Specifically, the need for maintaining confidentiality between the natural and adoptive parents, the policy of taking steps necessary to prevent interference with the child’s adjustment to its adoptive environment, and the fact that the child has long since been placed in another home for adoption and has become accustomed to that home, certainly indicate that DPS did not arbitrarily or unreasonably withhold its consent to the adoption in question. Department of Child Welfare v. Jarboe supra; Department of Human Resources v. Basham, 540 S.W.2d 6 (Ky.1976); In re Adoption of Daughtridge supra.

In the instant case, the Whitneys know and have associated with the child’s natural parents. Likewise, Mrs. Whitney has sought to interfere with efforts by DPS to provide for the welfare of the child and there exists a very real possibility of interference by the natural parents if the child is adopted by Mr. and Mrs. Whitney. Finally, the child is happy in his present home and DPS has authorized his adoption by the family with which he now lives. Furthermore, it is highly unlikely that the child remembers the Whitneys due to the fact that it has been almost two years since the child was last with the Whitneys. To return the child to the Whitneys’ custody would force him to make another adjustment, creating a situation that surely would not be in his best interests. Hence, we believe that DPS correctly decided not to consent to the adoption of this child by the Whitneys. Consequently, we hold that the probate court improperly concluded that the facts of this case warranted a finding that DPS had acted arbitrarily or unreasonably in withholding its consent to the adoption of Tony Roberts. See State Department of Pensions and Security v. Hall, 57 Ala.App. 290, 328 So.2d 295 (1976). Therefore, we reverse the judgment of the probate court holding that DPS had arbitrarily refused its consent to the adoption of the child, Tony Roberts, by the Whitneys, and hereby render the judgment that the probate court should have rendered, i. e. that there having been no consent by the legal custodian to the adoption of the child, the probate court was without jurisdiction to hear and decide the adoption request of the Whitneys.

REVERSED AND RENDERED.

WRIGHT, P. J., and HOLMES, J., concur.

      . The DPS policy with regard to confidentiality and geographic location is premised in part on the standards promulgated by the Child Welfare League of America in child adoption cases. (Pamphlet entitled Child Welfare League of America Standards for Adoption Services, published 1958.) Although a court is not absolutely bound by these standards, they nevertheless offer general information, as well as some specifics, which may be of aid to a judge in the handling of a particular adoption. In re Adoption of Reinius, 55 Wash.2d 117, 346 P.2d 672 (1959).


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    GANN & LEWIS ROOFING CO., INC., an Alabama Corporation v. Charles SOKOL.
    Civ. 1454.
    Court of Civil Appeals of Alabama.
    June 7, 1978.
    Donald B. Weir, Jr., Huntsville, for appellant.
    James T. Baxter, III, Berry, Abies, Tatum, Little & Baxter, Huntsville, for appel-lee.
   BRADLEY, Judge.

This appeal is from a judgment by the Circuit Court of Madison County awarding appellee (plaintiff below) damages in the amount of $1,619.17. The judgment was the result of appellee’s suit against appellant (defendant below) for breach of contract and breach of the warranty of workmanlike performance.

Plaintiff, Charles Sokol, entered into an agreement with defendant, Gann & Lewis Roofing Company, for the services of the latter in repairing a portion of the roof at plaintiff’s residence. Approximately seventeen months after defendant completed the work on plaintiff’s home, plaintiff discovered a leak in the roof. This leak caused water damage to the inside of the plaintiff’s house and subsequently resulted in a civil action by plaintiff alleging breach of contract and breach of workmanlike performance on the part of defendant. After an oral hearing on the matter at which both parties presented evidence on behalf of their cause, the trial court found in favor of plaintiff and awarded him a monetary judgment in the sum of $1,619.17. From that judgment defendant appeals, contending that the evidence adduced by plaintiff at trial was insufficient to support the judgment of the trial court. We disagree.

It is an established proposition that in instances where the trial judge has heard the evidence ore tenus his findings have the weight of a jury verdict and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Alabama Society for Crippled Children & Adults, Inc. v. Still Construction Co., 54 Ala.App. 390, 309 So.2d 102 (1975). Moreover, for us to reverse the decision of the trial court, the record must establish that there is no credible evidence to support its findings. Alabama Society for Crippled Children & Adults, Inc. v. Still Construction Co., supra. In the present case, there was credible evidence to support the trial court’s conclusion that defendant breached its contract with plaintiff and/or its duty to perform the work contracted for in a workmanlike manner.

In situations where a party has urged that the evidence was insufficient to ‘support the judgment of the trial court, only those tendencies of the evidence most favorable to the judgment are reviewed. C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975). Accordingly, we believe that plaintiff’s testimony that an employee of defendant had examined the roof after the leak occurred and had informed plaintiff that it appeared that the work had been done improperly was evidence tending to support the judgment of the trial court. Furthermore, plaintiff’s wife stated that when she complained to defendant that the roof was continuing to leak even though employees of defendant had inspected it and had taken some temporary measures to prevent the reoccurrence of the leak, defendant’s employee told her that they would send someone to fix the leak because “it was their problem.” This testimony was also evidence which supported the trial court’s determination that defendant was liable to the plaintiff. Of course, defendant presented evidence to rebut that adduced by the plaintiff; however, the trial judge as trier of fact was free to choose which of the parties’ testimony he believed. Apparently he chose to base his decision on the testimony of plaintiff and his wife and we cannot say he acted improperly in so doing.

A reviewing court does not weigh the evidence to ascertain if it reasonably satisfies the issues in question. Mayben v. Travelers Indemnity Co., 273 Ala. 643, 144 So.2d 52 (1962). Instead, it will indulge in all favorable presumptions to sustain the conclusions reached by the trial court and will not disturb the conclusion of that court unless it is plainly erroneous or manifestly unjust. Mayben v. Travelers Indemnity Co., supra. The trial judge in the instant case determined that plaintiff was entitled to recover damages in his action against defendant. And in view of the fact that there was evidence in support of the court’s determination we are not at liberty to reverse or revise his judgment on appeal.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: HARRIS, Judge.

text:
    Milton H. SATTERWHITE, Jr. v. STATE.
    5 Div. 335, 370 and 371.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Rehearing Denied March 1, 1977.

      David B. Byrne, Jr., and Robert T. Meadows, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted by the Grand Jury of Randolph County in two cases of selling marijuana, and one case for possessing marijuana. He was tried and convicted by a jury in two cases. He was tried and convicted by the trial judge in the third case without a jury. Appellant was sentenced to a total of seven years in the three cases. After the sentences were imposed, appellant gave notice of appeal in each case. He filed a motion stating that the issues in the three cases were essentially the same and that the cases should be consolidated for review by this Court. He was furnished free transcripts and trial counsel was appointed to represent him on appeal. We will consolidate the three records and dispose of these appeals in one opinion.

We have carefully reviewed the four-volume record in these cases and see no necessity in setting forth the evidence pertaining to the sale and possession of marijuana by appellant. Suffice it to say that the State made out a clearcut case for the jury, and the trial judge, on the guilt vel non of appellant. But this does not end the case.

A grave and important matter is presented in this prosecution that must have our attention as it strikes at the very heart of our criminal justice system and involves fundamental fairness and a keen sense of justice.

It is not disputed that shortly after appellant was arrested on the charges for which he now stands convicted he, along with three other arrestees, went to the law office of Honorable W. D. Wood II in Roanoke, Alabama, and conferred with him about the pending charges against him. At the time of this consultation Mr. Wood was engaged in the private practice of law. Mr. Wood admitted that appellant and three other individuals were in his office together and there was some confusion as they were all talking at the same time. Mr. Wood requested that these prospective clients wait in his reception office and he would consult with each of them individually.

Mr. Wood called appellant into his private office and discussed the cases against him to the extent, at least, that he could fix a fee for representing him. Mr. Wood testified at the hearing on the motion for a mistrial based on a conflict of interest and admitted he quoted appellant a fee of $500.00, plus expenses, to defend him in the Circuit Court. Mr. Wood was somewhat vague and indefinite as to the details of the charges related to him by appellant but he did recall that appellant mentioned that he had a previous criminal record. He certainly got enough details from appellant to be in position to quote him a fee to represent him on the pending charges.

Appellant did not pay Mr. Wood the quoted fee and left his office. Mr. Wood stated that he did not make a file in appellant’s case as he did not return to his office.

In June of 1974 Mr. Wood assumed the duties of Assistant District Attorney for Randolph County and he actively participated in the prosecution of the first case against appellant. It was during this first trial that the motion for a mistrial was made because of a conflict of interest or prosecutorial misconduct based upon appellant’s previous consultation with the lawyer who was now prosecuting him. At the conclusion of the hearing on this motion the trial judge denied the motion for a mistrial stating that he did not think appellant was prejudiced in any way. We disagree and reverse the case for a new trial.

In Hannon v. State, 48 Ala.App. 613, 266 So.2d 825, this Court held:

“The relationship of attorney and client is one of the most sacred relationships known to the law and places upon the attorney a position likened to a fiduciary calling for the highest trust and confidence, so that in all his relations and dealings with his client, it is his duty to exercise the utmost honesty, good faith, fairness, integrity and fidelity, and he may not at any time use against his former client knowledge or information acquired by virtue of the previous relationship. This rule is universal and hoary with age.
“To permit a District Attorney to prosecute his former client, or to divulge to one of his assistants, in charge of the prosecution, the confidential information imparted to him by the client, can never be sanctioned. It would constitute an act wholly at war with due process of law. The injury would not be limited to the defendant — there is injury to the entire system of justice, to the law as an institution, to the community at large, to the democratic ideal reflected in the processes of our court, and would destroy the last vestige of public confidence and respect in the administration of our criminal laws.”

We note that Mr. Wood did not actively participate in the two remaining cases against appellant. We think this points up most strongly that the prosecution team realized that Mr. Wood should not have participated in the first case. However, the records in the remaining cases show that he was a member of the prosecution team. We hold that the taint in the first case permeated all subsequent prosecutions.

It is of no consequence that money did not pass from appellant to Mr. Wood. The rule is best stated in Kansas v. Leigh, 178 Kan. 549, 289 P.2d 774:

“The authorities are to the effect that in a criminal action, even where no fee has been agreed upon, demanded or asked, and though the services rendered are gratuitous, yet if an attorney has discussed the case with his client or proposed client, or voluntarily listens to his statement of the case preparatory to the defense, he is thereby disqualified to accept employment on the other side as a prosecutor or assistant prosecutor.”

This case is clearly distinguishable from Hannon v. State, supra. In Hannon the Public Defender who had consulted and interviewed Hannon was subsequently elected District Attorney but he took no part in the prosecution, nor did he impart to any of his assistants any information he had gained from his conversations with Hannon. Here, Mr. Wood actively participated in the first case against appellant and this wrong infected the entire prosecution.

We cannot permit the convictions in these cases to stand.

REVERSED AND REMANDED.

All the Judges concur.


author: MADDOX, Justice.

text:
    In re Milton SATTERWHITE, Jr. v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    SC 2407.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
    David B. Byrne, Jr., and Robert T. Meadows, III, Montgomery, for respondent.
   MADDOX, Justice.

The State petitioned this Court for a Writ of Certiorari to issue to the Court of Criminal Appeals directing that court to review and reverse a judgment in Satterwhite v. State, Ala.Cr.App., 359 So.2d 816 (1977).

Milton Satterwhite, Jr., was convicted at two separate trials of selling marijuana and at a third trial, was convicted of possession of marijuana. Satterwhite was sentenced to a total of seven years and he gave notice of appeal from each conviction.

Certain issues being common in each case against Satterwhite, a motion to consolidate the cases on appeal was granted. The Court of Criminal Appeals reversed all three cases, basing its holding on Hannon v. State, 48 Ala.App. 613, 266 So.2d 825 (1972). That decision mandated that an attorney may not at any time use against his former client knowledge or information acquired by virtue of a previous relationship. The Court of Criminal Appeals found that this principle was violated when Mr. W. D. Wood, II, who had discussed the case with Satterwhite before leaving private practice and assuming the role of County Prosecutor, took an active part in the prosecution of the first Satterwhite conviction. The Court of Criminal Appeals held:

“We note that Mr. Wood did not actively participate in the two remaining cases against appellant. We think this points up most strongly that the prosecution team realized that Mr. Wood should not have participated in the first case. However, the records in the remaining cases show that he was a member of the prosecution team. We hold that the taint in the first case permeated all subsequent prosecutions.”

The State’s application for rehearing being denied, it petitioned this Court for cer-tiorari, asserting that the decision of the Court of Criminal Appeals was in conflict with prior decisions of both this state and other jurisdictions, and, in the alternative, was a case of first impression. We granted the writ, primarily to review the holding by the Court of Criminal Appeals “that the taint of the first case permeated all subsequent prosecutions.”

Satterwhite filed a motion to supplement the record pursuant to Rule 10(f), ARAP, along with an affidavit (attached as an appendix) of his attorney, setting out additional facts as to Wood’s participation in the last two proceedings. None of the facts in the attorney’s affidavit affirmatively appear in the record.

The pertinent portion of Rule 10(f) reads:

“If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. .

This rule replaced former Supreme Court Rule 18, Title 7, Appendix, Code of Alabama 1940. See Committee Comments to Rule 10(f). A reading of the provisions of Rule 18, as well as the cases construing that rule, shows that this Court required that a request to supplement must be submitted prior to submission of the cause. Welch v. State, 271 Ala. 199, 123 So.2d 205 (1960). The former rule further required a sufficient showing of need for certiorari when the requesting party seeks a reversal, Bowlin v. Bowlin, 267 Ala. 655, 104 So.2d 630 (1958), although a party seeking to sustain the lower court’s verdict was relieved of that burden.

The language of Rule 10(f), ARAP, substantially alters the former rule by allowing the transcript to be supplemented when any matter material to either party is omitted. Furthermore, either party or the appellate court, on its own initiative, may seek to correct an omission, and if necessary, an appellate court may direct a supplemental record to be certified and transmitted.

In order to decide the issues presented by the State on certiorari, especially in view of the allegations made in the affidavit, we deem it necessary to know what the true facts are. Consequently, we remand the cause to the Court of Criminal Appeals with directions to that court to remand, within 28 days, Case No. 5 Div. 370, and Case No. 5 Div. 371, to the trial court with directions to the trial court to conduct a hearing within 56 days from the date of the order of remand by the Court of Criminal Appeals, to determine the extent of the participation, if any, by W. D. Wood, II in cases 5 Div. 370, and 5 Div. 371. Any transcript of the hearing should be filed by the appellant, Satterwhite, within the time and under the provisions of law as apply to appeals in criminal cases. The Court of Criminal Appeals shall forward to this Court any transcript of the proceedings had in the trial court pursuant to this directive, within seven days after receipt by that court.

Nothing contained herein shall preclude the parties from stipulating the facts, in this Court, if done within 14 days, in the Court of Criminal Appeals or in the trial court. In fact, we encourage a stipulation of the facts, if possible.

Because of the unusual nature of this case, the relief we hereby grant should be construed as an exercise by this Court of its supervisory powers, and a liberal application of Rule 10(f); it should not be construed as establishing a departure from our rules governing review of cases from the Courts of Appeal, especially Rule 39. In other words, by handling this case in the manner we do, we may expedite a final determination of it, which is one of the stated purposes of Rule 1, ARAP.

REMANDED WITH DIRECTIONS.

TORBERT, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

BEATTY, J., recused.


text:
    Milton SATTERWHITE, Jr. v. STATE.
    5 Div. 370 and 371.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
   On Remand From Supreme Court of Alabama.

On September 9,1977, the Supreme Court of Alabama, 359 So.2d 819 remanded these cases to this Court with directions. That Court’s order, S.C. 2407, reads in part as follows:

“IT IS CONSIDERED AND ORDERED that this cause be remanded to the Court of Criminal Appeals with directions to remand within 28 days, Case No. 5 Div. 370 and Case No. 5 Div. 371, to the Circuit Court of Randolph County with directions to the Circuit Court of Randolph County to conduct a hearing within 56 days from the date of the order of remand by the Court of Criminal Appeals, to determine the extent of the participation, if any, by W. D. Wood, II in cases 5 Div. 370 and 5 Div. 371.
“IT IS FURTHER ORDERED AND ADJUDGED that the appellant-respondent, Satterwhite, file any transcript of the hearing within the time and under the provisions of law as apply to appeals in criminal cases, and that the Court of Criminal Appeals forward to this Court any transcript of the proceedings had in the trial court within seven days after receipt, and that jurisdiction of all three cases, Numbers 5 Div. 335, 5 Div. 370, and 5 Div. 371, are hereby retained until the further orders of this Court.”

It is therefore ordered that this cause be and the same is hereby remanded to the trial court to hold an evidentiary hearing in full compliance with the order and directive of the Supreme Court; that said hearing be held within the time limitations specified by the Supreme Court; and a full transcript of said hearing be filed with this Court as directed.

A copy of the opinion of the Supreme Court is attached to this order of remand.

Remanded with directions.

All the Judges concur.

Writ of certiorari quashed, Ala., 359 So.2d 821.


author: PER CURIAM.

text:
    In re Milton SATTERWHITE, Jr. v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    SC 2407.
    Supreme Court of Alabama.
    May 5, 1978.
   PER CURIAM.

We granted the writ here primarily to review the following statement in the opinion of the Court of Criminal Appeals, 359 So.2d 816:

“We note that Mr. Wood did not actively participate in the two remaining cases against appellant. We think this points up most strongly that the prosecution team realized that Mr. Wood should not have participated in the first case. However, the records in the remaining cases show that he was a member of the prosecution team. We hold that the taint in the first case permeated all subsequent prosecutions.

After having reviewed the supplemental record sent here under Rule 10(f), A.R.A.P., and upon consideration of the oral arguments, we are of the opinion that the writ of certiorari should be quashed as having been improvidently granted. By quashing the writ, we should not be understood as agreeing with all that was said in the opinion of the Court of Criminal Appeals.

WRIT QUASHED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

BEATTY, J., not sitting.


author: BOWEN, Judge.

text:
    Harold Otis HATTON v. STATE.
    8 Div. 941.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    As Corrected On Denial of Rehearing Dec. 20, 1977.

      Stanley E. Munsey of Heflin, Rosser & Munsey, Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was charged and convicted of possession of Phentermine contrary to and in violation of the Alabama Controlled Substances Act (Act No. 1407, 1971 Regular Session). The jury fixed his fine at $15,-000.00 and the trial judge added a ten year term of imprisonment.

The issues on appeal concern the propriety of the warrantless search of the appellant’s automobile, the nondisclosure of the identity of an informant and the admission into evidence of the results of an inventory conducted after- the date of the crime charged revealing substantial shortages of drugs.

On Thursday evening, May 27, 1976, around 10:00 o’clock, an informant went to the home of Colbert County Sheriff John Aldridge and asked Sheriff Aldridge “if (he) wanted to catch Mr. Hatton (appellant) with drugs”. Sheriff Aldridge, who personally knew the informant, as well as appellant, stated that he was interested in learning whatever information the informant had concerning this matter, and his informant related the following:

(1) That appellant was purchasing pills “. . . on a lot of Friday afternoons at a drugstore on Main Street in Tuscum-bia.”;
(2) That, he wasn’t sure of the name of the drugstore, but when Sheriff Aldridge asked if it was the one run by “Luke Chesteen”, informant replied, “ ‘that’s the one, that’s the one he goes to.’
(3) That appellant didn’t purchase drugs “every Friday, but some Fridays. .
(4) That appellant drove a Lincoln automobile, but that he had access to other vehicles and could possibly be driving an automobile other than a Lincoln;
(5) That appellant purchased a large quantity on each occasion and that he “got them for truckers . and carried them back to his (service) station.”;
(6) That upon learning additional information concerning future drug activities, he would contact Sheriff Aldridge.

Sheriff Aldridge stated at the suppression hearing that his informant had, on two previous occasions, supplied him with reliable information, and that upon his asking the informant how he knew of appellant’s activity, the informant merely stated, “. . .he was in a position to know”; a “position” Sheriff Aldridge stated he knew of.

The next day, Friday, May 28, around 12:00 noon, the informant tried to contact Sheriff Aldridge again, but the Sheriff was out of his office. Sheriff Aldridge had instructed' his informant that in case of his absence from the office further information concerning appellant’s activities could be relayed through his secretary. The informant communicated to the secretary the following message:

. . (W)hat we talked (about) the night before was going to take place at 4:00 (PM) and that he would be driving a Lincoln.”

Sheriff Aldridge did not return to his office until 4:15 P. M. At that time he discovered the message among other telephone “call-backs” on his desk. The Sheriff stated that he immediately called in Chief Deputy Aycock, briefed him on appellant’s activity, and instructed him to take Investigators Conley and May and stake out Tuscumbia Drugs (Chesteen’s Drugs). The officers proceeded to the drugstore and strategically positioned themselves on the streets in the drugstore area. Sheriff Al-dridge joined the “stake out” about 45 minutes later (5:15 P. M.). Around 6:00 P. M., the appellant arrived in a Lincoln automobile being driven by a man subsequently identified as Ray Willburn. The appellant got out of the car and went inside the drugstore; Deputy Aycock alerted the other officers of appellant’s presence by radio communication. Minutes later the appellant exited the drugstore carrying a white paper sack, got into the automobile and left. The appellant’s automobile was stopped; four officers were at the scene. The appellant and Willburn were removed from the car, and the warrantless search for the drugs ensued. The white bag containing the controlled substance was found on the floorboard of the passenger (appellant’s) side of the automobile. The bag contained two bottles marked “IONAMIN” (Phentermine, 800 capsules total). The appellant was arrested, and a search of his person produced two smaller bottles of Io-namin, each containing 50 capsules.

The appellant denied any knowledge of the presence of the drugs in the sack and testified that he only discovered the pills found in his pocket when they rolled out from under the seat of his automobile after he returned from the drugstore. According to the appellant, someone had “planted” these drugs in his car. The appellant had a regular account at Chesteen’s Drugs. Melvin Jeffreys the suspected informant, was an employee of the appellant who had recently been fired. The appellant proved that Jeffreys had the opportunity to plant the drugs in his automobile.

I

The basis of the appellant’s first argument is that the trial judge improperly denied his motion to suppress evidence obtained through an allegedly unlawful and war-rantless search of his automobile.

A.

The legality of the warrantless stop and search of the appellant’s automobile turns on whether the Sheriff and his deputies had probable cause to believe that it contained contraband. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Probable cause exists where the facts and circumstances within the knowledge of the officers and of which they had reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Brinegar v. United, States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

Probable cause may be based solely upon information "obtained from a reliable informant — hearsay information. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966). A tip may supply the basis for probable cause in and of itself where it discloses (1) some of the underlying circumstances which justify a conclusion that the informer is credible or his information is reliable, and (2) some of the underlying circumstances tending to demonstrate that, in the specific instance in question, he has drawn his conclusion of criminality in a reliable manner. Aguilar, supra. These two tests are the dual “prongs” of Aguilar, the veracity prong and the basis of knowledge prong. They constitute the initial standard to be applied in assessing the probative value of an informant’s information. If the tip fails one of these prongs, the informant’s report may still constitute the sole basis for a finding of probable cause if the information provided is in such detail and minute particularity that a “magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way”. This is the self-verifying tip. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Less detailed information from a reliable source may also be used as grounds for a finding of probable cause where the key elements of the tip are verified or corroborated. Ex Parte State ex rel. Attorney General v. State, 286 Ala. 117, 237 So.2d 640 (1970); Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). Finally a tip that will not meet any of these standards may still be used in conjunction with a number of other factors of “further support” to show probable cause.

In United States v. Squella-Avendano, 447 F.2d 575, 580 (C.A. 5 1971), the United States Fifth Circuit Court of Appeals commented on the composite test of Aguilar, supra and Spinelli, supra, which is applied where the tip fails to meet the requirements of Aguilar.

“First, if the information provided is in such ‘detail’ and ‘minute particularity’ that ‘a magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way,’ then the report, if sufficiently incriminating, may, without more, be grounds for finding probable cause. Secondly, less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agencies yields sufficient verification or corroboration of the informant’s report to make it ‘apparent that the informant had not been fabricating his report out of whole cloth.’ Corroboration must render the report ‘of the sort which in common experience may be recognized as having been obtained in a reliable way.’ Thirdly, even a report that is not under the above two standards sufficient of itself to establish probable cause may count in the magistrate’s determination of probable cause, but only as one of a number of other factors of ‘further support’ given in Spinelli involved law enforcement agencies’ knowledge of independent facts which suggest criminal conduct or of facts which take on an aura of suspicion in light of the informant’s tip.”

Aguilar’s veracity prong is not in issue here. The record reveals that the informer had supplied information on at least two occasions in the past and one “case” had been made. The Sheriff testified that he had talked with the informer before in some official capacity as a law enforcement officer and had no reason to doubt the informer. This was sufficient to satisfy the veracity prong of Aguilar. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Ex parte State ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970); Moore v. State, Ala.Cr.App., 340 So.2d 882, cert. denied, Ala., 340 So.2d 885 (1976).

However the source of the informant’s knowledge was not revealed. The only underlying circumstances presented in the record as the basis of the informant’s knowledge are found in the Sheriff’s statement that the informant said he “was in a position to know and knowing my informer, I felt he was”. This is merely the Sheriff’s conclusion from the informant’s conclusion. It states no underlying circumstances of how the informant obtained his information and from which he concluded that the appellant was engaged in criminal activity. The mere assertion that the informant speaks from personal knowledge without a factual basis or data illustrative of that conclusion is not sufficient. United States v. Long, 142 U.S.App.D.C. 118, 439 F.2d 628 (1971) claim that information personal not sufficient; Brunson v. State, 506 S.W.2d 594 (Tex.Cr.App.1974) informant’s claim that he had “reason to believe” insufficient; Commonwealth v. Smith, 453 Pa. 326, 309 A.2d 413 (1974) informer’s statement that he “found out” insufficient.

Additionally, the facts of the tip itself were not so detailed or in such minute particularity that they could be considered self-verifying in and of themselves. Yet the facts relayed to the Sheriff and corroborated by the deputies were of such a nature, in light of all the surrounding circumstances, that it could be reasonably inferred that the informer obtained his information “in a reliable manner and had substantial evidence on which to base his conclusion that the appellant was probably engaged in criminal activity”.

In United States v. Brennan, 538 F.2d 711, 720 (C.A. 5 1976) it was noted that “an accumulation of innocent detail conforming to the original tip” may have significant corroborative value.

“Where insufficient information about the tip and the tipster is available to justify reliance upon it alone, investigating officers may supplement the tip by surveillance of the subject or corroboration of key elements of the tip from relatively objective sources. Although there is no consensus on the type of information required to corroborate an informant’s tip, it is generally agreed that the better practice is to obtain corroboration of incriminating details. See Spinelli v. United States, supra, 393 U.S. at 414, 89 S.Ct. at 588, 21 L.Ed.2d at 642; Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer.L.Rev. 741 (1974). However, an accumulation of innocent detail conforming to the original tip has been held to have corroborative value. See, e. g., United States v. Holliday. 474 F.2d 320 (10th Cir. 1973).”

See also United States v. Tuley, 546 F.2d 1264 (C.A. 5 1977); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Considering the informant’s tip and the corroboration by independent observation we conclude that the Sheriff and his deputies had probable cause to stop and search the appellant’s automobile.

The facts and circumstances within the officers’ knowledge at the time of the search were (1) the informant’s tip, (2) the proven reliability of that informant, (3) the Sheriff’s knowledge of both the informant and the appellant, (4) the reputation of the appellant and (5) the officers’ verification and corroboration of the informant’s report. Admittedly no single factor considered separately would be a sufficient basis for probable cause. Yet when their combined cumulative effect is considered we have a solid probability that a crime has been or is going to be committed.

Reviewing the particulars, we find information from a reliable informant that the appellant is illegally purchasing drugs at a drugstore on Main Street in Tuscumbia on “a lot of Friday afternoons”, but not every Friday. The informant verified the name of the drugstore provided by the Sheriff and stated that the purchase would take place about 6:00 o’clock but did not know if it would be the next Friday (the next day). The informant generally described the color of the Lincoln automobile which the appellant would or may use. That automobile had just been purchased by the appellant on the very day the informant reported his information to the Sheriff. Around noon on Friday, the informant left word at the Sheriff’s office, as arranged, that the purchase would be made that very Friday at 4:00. When the Sheriff received this message it was 4:15. Chief Deputy Doug Aycock testified that he felt like he had probable cause based on the information he already had plus his knowledge of the appellant. Aycock stated that he had been on “raids” at the appellant’s service station but had never arrested the appellant. The trial court would not allow the state to ask Deputy Aycock if he had ever “on many occasions had suspicion that Mr. Hatton either had drugs or had them within his possession”. On rebuttal in the trial on the merits, the Sheriff testified that he had known the appellant for fifteen years and that his general reputation was bad. The reputation of the accused, though insufficient in itself to support a finding of probable cause may do so when combined with other factors. United States v. Brown, 150 U.S.App.D.C. 113, 463 F.2d 949 (1972); Rushing v. State, 500 S.W.2d 667 (Tex.Cr.App.1973). A finding of probable cause may rest upon evidence which is not legally competent in a criminal trial. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

The story of a reliable informant was corroborated by the independent observation of the deputies. The predicted events happened almost precisely as foretold, except that the appellant arrived approximately two hours after the informant stated. We note that originally the informant predicted the correct arrival time of the appellant at the drugstore. Under these circumstances we do not consider the mere delay of the appellant’s arrival to vitiate a finding of probable cause. The arresting officers would not be required to have seen the narcotics in order to furnish reasonable cause to believe that the appellant did in fact have them in his possession when he left the drugstore carrying a white paper bag. Clenney, supra.

In light of the facts and circumstances within the officers’ knowledge, we do not think that Sheriff Aldridge could have ignored, consistent with his duty to enforce the law, the inference that narcotics were probably in the possession of the appellant. Clenney, supra, 281 Ala. at 13, 198 So.2d 293.

We recognize that the probable cause present in this ease represents the bare minimum necessary for a valid search without a warrant. Yet here we have more than a mere whim, caprice, or naked suspicion. The “probabilities” implied by the term “probable cause” are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar, supra. Probable cause does not preclude all room for doubt nor need the officers be absolutely certain and positive that a crime is in the making.

B.

In further support of his argument that a search warrant should have been obtained the appellant argues that “the seizure was made not at the plum thicket but in the shadow of the courthouse”. See York v. State, 43 Ala.App. 54, 57, 179 So.2d 330, 333 (1965). This has reference to the fact that the appellant’s automobile was stopped and searched within four blocks of the county courthouse. The appellant contends that he should have been arrested, a search warrant obtained and then the search conducted. This question was answered in Chambers v. Maroney, 399 U.S. 42 at 51, 90 S.Ct. 1975 at 1981, 26 L.Ed.2d 419 (1970).

“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until' a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater’. But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.”

As Chambers specifically noted, “there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained”. 399 U.S. at 52, 90 S.Ct. at 1981.

The Sheriff actually obtained information at 4:15 that the illegal purchase was to occur at 4:00. Under these circumstances it was not reasonably practicable to obtain a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

There is no litmus paper test for determining probable cause. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 434, 94 L.Ed. 653 (1950) and each case must be determined upon its own facts and circumstances. Reviewing the conditions in this instance we find that the warrantless search of the appellant’s automobile was constitutionally permissible.

II

The second contention of the appellant is that the trial court erred in refusing to allow defense counsel to examine witness Melvin Jeffreys on the issue of whether he was the informant. Defense counsel stated to the trial judge that Jeffreys was suspected of being the informant and that he was neither credible nor reliable and was involved in a conspiracy or “set up” of the appellant. At trial the appellant testified that someone had “planted” the drugs in his automobile without his knowledge. The defense called Jeffreys as a witness at the suppression hearing. At the trial on the merits defense counsel attempted to prove his suspected identity as an informant. The trial court disallowed every inquiry into the informant’s identity.

The general rule is that the prosecution is privileged to withhold from the accused disclosure of the identity of an informant. Davenport v. State, 50 Ala.App. 321, 278 So.2d 769 (1973). This general rule is qualified and the state’s privilege to withhold an informant’s identity must give way where that identity is “relevant and helpful to the defense of the accused, or is essential to a fair determination of the case”. Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957); Hood v. State, 47 Ala.App. 192, 252 So.2d 117 (1971); Dixon v. State, 39 Ala.App. 575, 105 So.2d 354 (1958); Handley v. State, 214 Ala. 172, 106 So. 692 (1925); generally see annotation, 76 A.L.R.2d 262 (1961). When probable cause is in issue there is no fixed rule requiring or precluding the disclosure of the informant’s identity and responsibility for striking the proper balance between the state’s interest in nondisclosure and the defendant’s interest in preparing his case rests in each instance with the trial judge. United States v. Anderson, 509 F.2d 724, 729 (C.A. 9 1975). The disclosure of the identity of an informant who provided information constituting probable cause for a warrantless search is not constitutionally required. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). The burden rests upon the accused to show such disclosure. United States v. Prueitt, 540 F.2d 995, 1004 (C.A. 9 1976).

Applying these principles to the facts before us we observe that the entire defense centered around the contention that the appellant did not purchase the drugs and had no knowledge of their presence in his automobile until they rolled out from under his seat. The appellant did not merely speculate that the testimony of Melvin Jeffreys, the suspected informant, would have been helpful to his defense but presented testimony to show that Jeffreys had the motive and opportunity to secrete the pills in the appellant’s automobile. Thus Jeffreys’ testimony as to whether he was the informant became a relevant and material factor in the presentation of the defense on the guilt or innocence of the appellant on the merits. In view of the fact that the source (or basis of knowledge) from which the informant obtained his information was never revealed, the action of the trial court in preventing defense counsel from ascertaining Jeffreys’ identity as the informant became even more significant. Under these circumstances the defense should have been permitted to show that the suspected informant was or was not the true informer. While Jeffreys could not have been compelled to incriminate himself, his testimony or lack of it should have been allowed to be presented to the jury under the asserted defense advanced to the charge in this case. The informant’s possible testimony was highly relevant in that he might have disclosed a “set up”, throw doubt upon the guilt of the appellant or testified to the appellant’s possible lack of knowledge of the presence of the pills. Roviaro, supra; McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

Thus where the appellant alleged that he knew who the informant actually was, that the suspected informant’s actions were the sole cause and reason for the prosecution of the appellant, that the informer had actually set up the appellant and where the defense called the suspected informer as a witness in order to verify his identity, fundamental fairness dictates that the appellant should have been permitted to examine the suspected informant in line with his entire theory of defense. If Jeffreys were the informant as suspected, there would have been no reason for maintaining the privilege of nondisclosure for the simple reason that his identity was already known. However, if Jeffreys were not the informant then no harm would have resulted and the state would not have - been prejudiced because the true informant would still remain unidentified. We particularly noted that the appellant was not on a mere fishing expedition to uncover the identity of an informant. He was concerned only with one individual he allegedly knew to be the informant.

Balancing the interests of the state and the accused, we find that the scales tip heavily in favor of the accused. Here the disclosure presented a “real possibility of affording a defense that would create a reasonable doubt in the mind of a reasonable juror”. United States v. Edmonds, 535 F.2d 714, 718 (C.A. 2 1976). Defense counsel should have been permitted to inquire into suspected identity of Jeffreys as the informer. The action of the trial court in preventing such inquiry was reversible error,

III

The final contention of the appellant is that it was reversible error for the prosecution to present and the trial court to allow testimony that on the day after the appellant’s arrest agents of the “Drug Investigation Unit” conducted an inventory at Chesteen’s Drugstore and discovered a substantial shortage of Ionamine 30, “as much as 17,000” pills. This was the same type drug found in the appellant’s possession. The appellant was only charged with and shown to have had 900 capsules.

The objected to evidence is patently inadmissible. It has no tendency, however slight, to shed any light on the main inquiry at issue; Ward v. State, 52 Ala.App. 392, 293 So.2d 307 (1974). It has no logical reference or causal connection to the facts in issue and affords no reasonable inference to any matter under inquiry and is utterly without probative value. It is immaterial because it does not give rise to an inference that is an ultimate issue in the case. Additionally it is blatantly prejudicial to the accused, the only inference being that the appellant is also guilty of the theft of the other drugs.

The indictment is the compass and North Star of any criminal prosecution. The state must navigate its case according to the indictment or risk venturing into the waters of prejudicial and reversible error. The evidence of the inventory tends to show the commission of a separate and distinct crime than that charged in the indictment. For these reasons this case is also due to be reversed.

For the reasons set forth in this opinion this case is hereby reversed and remanded for new trial.

REVERSED AND REMANDED.

TYSON, P. J., and HARRIS and BOOK-OUT, JJ., concur.

DeCARLO, J., concurs in result.

ON REHEARING

In response to the state’s request for additional facts we add that, though the appellant called Jeffreys during the trial in chief, defense counsel did not specifically ask him if he was the informant, although Jeffreys did deny ever “working for” the sheriff. The trial court did, pursuant to the state’s objection, disallow every attempt made by the appellant throughout the trial to discover the identity of the informer through other witnesses.

This will not change the result of this cause. While we still adhere to the general rule that the state is not required to disclose the identity of an informer to the accused and that disclosure will be required only in the exceptional instance, each case must be considered on its own merits. The value of nondisclosure must be balanced against the prejudice resulting to the accused.

We have considered the additional arguments advanced by the state on rehearing and find them to be without merit.

APPLICATION OVERRULED: OPINION CORRECTED AND EXTENDED.


text:
    In re Harold Otis HATTON v. STATE of Alabama Ex parte State of Alabama ex rel. Attorney General.
    77-234.
    Supreme Court of Alabama.
    June 9, 1978.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for petitioner.
    Stanley E. Munsey, Heflin, Rosser & Munsey, Tuscumbia, for respondent.
   MADDOX, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur.


author: TYSON, Judge.

text:
    Curtis Leon LOMAX v. STATE.
    6 Div. 397.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    Rehearing Denied April 18, 1978.

      J. Wilson Dinsmore, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Curtis Leon Lomax was charged with the robbery of Jack McGee Sellers by taking $1,700.00 in currency from his person. The jury found the appellant “guilty as charged” and fixed punishment at ten years imprisonment. The trial court set sentence in accordance with this verdict.

Jack Sellers testified that on July 14, 1975, he was employed by Ed Braswell Furniture Company, 3106 North Twenty-Seventh Street, Birmingham, Alabama. On this date, shortly after 2:00 p. m., Sellers stated he was waiting on a customer in the rear of the building. Sellers related that someone struck him from the rear on his head with a blunt instrument, knocking him to the floor. Sellers indicated that when he regained his feet he saw a black male place a gun in Mrs. Marie Braswell’s back and tell her not to turn around or else he would shoot. Then this black male pulled the chair in which Ida Williams was sitting away from the desk and told Mrs. Williams and Mrs. Braswell to get on the floor. Sellers stated that the blunt instrument with which he was struck caused a cut on his scalp but did not affect his vision or cause him any dizziness. Sellers indicated that he observed the black male face to face approximately five to ten seconds after which he was told to lie on the floor. Although there were two black males participating in the robbery, he only got a good look at one of them. Sellers described this black male as being tall, slender, wearing a straw hat and sunglasses, a flowered shirt and blue pants, and having a goatee. Sellers related that the appellant put all of the cash from the cash register in the utility change box, then had him open the vault where the appellant obtained all the cash proceeds. It was during this time that he observed appellant’s face. The appellant then had everyone in the store, including two customers, go to the back room where they remained until the two black males had left the premises. While in this back room, Sellers indicated that he heard a gunshot and children screaming. Sellers testified that he found a straw hat on the floor in the front room after the robbery. Sellers stated the two robbers took somewhere between $1,700.00 and $1,800.00 in currency.

Sellers testified that a day or two after the robbery Birmingham Detective Coleman brought him between six and eight photographs from which he selected appellant’s picture as the man who had robbed him. Sellers stated that he also attended two lineups at the city jail but could not identify anyone in either lineup. Sellers stated that he also saw the appellant in the hallway just outside the courtroom before the preliminary hearing. The appellant was not handcuffed or in the custody of a law enforcement officer when he saw him walk by in the hall. Sellers positively identified the appellant at trial as one of the two men who had robbed him on July 14, 1975, at Braswell Furniture Company and stated that his identification was based on his observation of appellant during the robbery on this date.

Detective Sergeant LaVaughn Coleman testified that he was given the Braswell Furniture Store robbery case on July 15, 1975. Coleman indicated that he received a straw hat which was found at the scene of the robbery from Officer John Fisher. Coleman stated the hat was given to appellant’s father. Coleman testified that a day or two after the robbery Sellers picked the appellant from a group of pictures as one of the two men who robbed him.

Mrs. Marie Braswell picked the appellant out of a lineup on Saturday, July 19, 1975, as one of the two men who resembled the men involved in the robbery. She could not positively identify Lomax.

Officer Coleman stated that Mr. Sellers was never asked to select anyone from a lineup in his presence.

Mrs. Marie Braswell testified that she was employed at Braswell Furniture Company on July 14, 1975. She stated she was working in the vicinity of the cash register near the back of the store shortly after 2:00 o’clock in the afternoon. She stated that a gun was suddenly stuck in her back and she was told not to turn around. She was instructed by the gunman to get on the floor, which she did. Mrs. Braswell testified that one of the gunmen told Mr. Sellers to go with him to the vault and open it, which he did. After this, the two gunmen took Mrs. Braswell, Mrs. Williams, Mr. Sellers, and two customers to the back room. While in this room, a gunshot was heard after which some children screamed. Mrs. Braswell described one of the gunmen as being tall and slender, wearing sunglasses and a straw hat. Mrs. Braswell indicated that she attended a lineup consisting of several black males from which she saw only one man who resembled the build and height of the appellant. She stated that her identification of the appellant at the lineup as one of the robbers was not positive. Likewise, she could not positively make an in-court identification. Mrs. Bras-well selected the appellant at the lineup based primarily upon his height and build because she never actually got a good look at the man’s face during the robbery. She also said the appellant was the man she saw at the lineup.

Mrs. Ida Williams testified that she was employed by Braswell Furniture Company on July 14, 1975. She indicated that between 2:00 and 2:30 p. m. on this date a man jerked her chair around and told her to “hit the floor.” Mrs. Williams never saw the man’s face. In a few minutes the gunmen placed everyone in the back room where they remained until the two gunmen left the store. While in the back room a shot was fired. When she came out of the back room she noticed a straw hat on the floor of the store.

Mrs. Reaver Daniels testified that on July 14, 1975, around 2:00 p. m., she was in Braswell Furniture Company talking with Mr. Sellers about her account with the store. At this time a black man hit Mr. Sellers over the head with a pistol and said, “This is a stickup” (R. p. 123). Mrs. Daniels testified that the two gunmen instructed them to go to the back room and while they were back there “two shots” were fired. Mrs. Daniels stated she could not identify either of the two black males as she was very nervous and upset.

The appellant’s motion to exclude was overruled.

Curtis Leon Lomax testified that on July 14, 1975, he was employed by Lomax & Lomax Construction Company. He stated he was working in Fairfield, Alabama, on that date repairing a roof for a Mr. Paul Caruso. Lomax stated that he was working at Mr. Caruso’s home between 11:00 or 12:00 a. m. and 4:00 or 5:00 p. m. He stated that he was accompanied by his father and two other persons, a Mr. Allen and a Mr. Gilmore. Lomax related that he had been in Braswell Furniture Store several times to pay bills but had not gone there on July 14, 1975. Lomax admitted on cross-examination that he wore a goatee in July of 1975.

I

The in-court identification of the appellant by Mr. Jack Sellers, Lomax contends, was so tainted by the unduly suggestive photographic identification process as to constitute a denial of due process of law. The appellant points out that out of the six or eight photographs shown to Mr. Sellers a day or two after the robbery by Detective Coleman, one was of a white male. Appellant also contends that only one photograph, which was the appellant’s, showed a male with chin whiskers. The appellant also contends that among these photographs he was the only one who appeared to be “noticeably thin.” Also, the appellant contends that the six photographs, which were identified by Sergeant Coleman and introduced into evidence at trial, were black and white, and Mr. Sellers testified that he was shown color photographs.

Mr. Sellers stated that he observed the appellant, face to face, for about five to ten seconds (R. p. 10) and later saw him for about five minutes while Sellers was lying on the floor (R. pp. 10, 11). Further, Mr. Sellers indicated that he observed the appellant while opening the vault at appellant’s direction and watching him place the proceeds in the cash box before he, Sellers, and the other persons in the store were placed in the back room.

The record in this case indicates that all six of the photographs identified by Sergeant Coleman were of black males and several of these were of men who were noticeably thin. Two of those pictured had chin whiskers, and while Mr. Sellers did indicate initially that he was shown colored photographs, his subsequent testimony on cross and redirect indicated that he meant these photographs were “tinted.”

This Court is required by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, to consider the totality of circumstances to determine whether or not the exhibition to Mr. Sellers of photographs a day or two following the robbery was so suggestive as to make his in-court identification of the appellant subject to be stricken.

The facts in this case simply do not lend themselves to an interpretation such as suggested by the appellant. Mr. Sellers had ample opportunity to observe, and did observe, the appellant moving about the store at the time of the robbery. His testimony at trial indicates that this was the basis of his identification, though he did state that he recalled observing the appellant walking down the hallway shortly before the preliminary hearing at court and recognized him at that time. Mr. Sellers indicated that he did not identify anyone at a lineup as such.

As to the issue of the assistance of counsel at the time of the out-of-court identification process, this issue was determined adversely to the appellant by the United States Supreme Court in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619. See also McGhee v. State, 48 Ala.App. 330, 264 So.2d 560; Terry v. State, 50 Ala.App. 299, 278 So.2d 748; and Matthews v. State, Ala.Cr.App., 333 So.2d 189.

This corporal identification of the appellant was conducted before the initia.tion of any adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, or arraignment, thus, the right to counsel at this time had not attached. See Moore v. Illinois, 1977, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424. See also Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601; and Henry v. State, Ala.Cr.App., 355 So.2d 411, 6 Div. 359, February 7, 1978.

II

The appellant contends that Mrs. Bras-well’s identification of the appellant at trial was subject to be stricken as she was unable to make a positive in-court identification, either at the time of the lineup, or at trial.

In Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336, we find the following:

“The testimony of the victim of the alleged robbery which was offered to establish the identity of the appellant as one of the alleged robbers presented a jury question on that matter. Although this witness did not positively identify the appellant, did not observe appellant under ideal conditions, failed to identify him in a police line-up, and although there were minor discrepancies in his description of the alleged robber, these matters, in our opinion, went to the weight of the testimony and did not destroy its value for the purpose of establishing identity. See 23 C.J.S. Criminal Law §§ 864, 920.”

See Hall v. State, Ala.Cr.App., 353 So.2d 51 (1977); and Hopkins v. State, 57 Ala.App. 78, 326 So.2d 144.

We have carefully examined this record and find same to be free of error. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Curtis Leon LOMAX.
    77-501.
    Supreme Court of Alabama.
    June 23, 1978.
   EMBRY, Justice.

WRIT DENIED.

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


author: HARRIS, Presiding Judge.

text:
    Willie James SCRUGGS v. STATE.
    6 Div. 560.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    Rehearing Denied April 18, 1978.

      J. Richard Hynds of Smith, White & Hynds, Birmingham, for appellant.
    William J. Baxley, Montgomery, Atty. Gen. and James L. O’Kelley, Birmingham, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was convicted of burglary in the first degree and the jury fixed his punishment at imprisonment in the penitentiary for a term of forty-five years. He was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed, he gave notice of appeal. He was furnished a free transcript and trial counsel was appointed to represent the appellant on this appeal.

Omitting the formal parts the indictment reads as follows:

“The grand jury of said county charge that, before the finding of this indictment, and subsequent to June 6, 1935, Willie James Scruggs, alias Cookie, whose name is to the grand jury otherwise unknown, did in the nighttime, with intent to steal, break into and enter the inhabited dwelling house of Gertie M. Howard, which was occupied by Gertie M. Howard, a person lodged therein, against the peace and dignity of the State of Alabama.”

There was no request for the affirmative charge, no motion for a new trial, and no exceptions reserved to the oral charge of the Court. At the close of the State’s case appellant made a motion to exclude the State’s evidence on the ground the State failed to make out a prima facie case against appellant. This motion was overruled and this puts us to a recital of the evidence tending to support the verdict of the jury.

The victim was a 74 year old white woman who was completely and totally deaf. In order to elicit her testimony it was necessary to write questions to be propounded to her by both the prosecution and the defense which questions were read out load for the jury and then handed to the witness to read and state her answers. The Court handed the witness a written oath requesting that she read it and she raised her hand and stated, “I swear that the evidence I give in this case to be the truth, the whole truth, and nothing but the truth, so help me God.”

In response to the questions posed to her the witness testified that she was Mrs. Ger-tie Howard and lived at 3409 Jefferson Avenue, Southwest, in Powderly, Jefferson County, Alabama, and that she had lived at this address for twenty-five or twenty-six years and lived alone. She said that on the night that she was assaulted she had been to church and her pastor brought her home between 9:30 and 10 o’clock. The church had given her some Christmas flowers and she was separating the flowers to put them in some baskets for decoration for Christmas. She had been in her home for twenty, thirty or forty-five minutes when she was suddenly confronted by a black man with a knife in his hand. (The list of exhibits shows it was a butcher knife.) This man grabbed her and jerked her down on the floor. He got on top of her and beat her on her head with the heel of her shoe. He also beat her in the face and scratched her eyes. She grabbed the hand in which he had the knife and she was weak and bleeding all over. She did not get a good look at him because her eyes were filled with blood. He put his private part into her private parts while she was praying to God to help her. She told him if he wanted money, she didn’t have much, but to take it and get out. She asked him not to kill her.

She further testified that her windows and doors were closed and locked, saying, “I had even drove nails in my windows to keep someone from getting in.” After he had raped her he grabbed her pocket book and ran out the house. She said she had close to a hundred dollars in it and that it was found later with the money gone.

She managed to call her son who notified the police. She was carried to the hospital for treatment and when asked what injuries she received, said: “My ligament was cut, and, also, this leader across the back of my hand was cut. The finger was dropped down, and my face and head were black all over.”

The victim further testified that the last time she saw the knife it was lying on the davenport. She showed it to the police officers and she didn’t know what happened to it.

On cross-examination she was asked if the appellant was the man who broke into her house and she replied, “I couldn’t be positive, because I couldn’t see, because of the blood in my eyes. It'looks like him.”

On redirect she testified that her son mowed her yard two or three times and a girl from the church came out and mowed it twice. She stated that was the only time it was mowed. She was asked if appellant ever mowed the grass and replied, “I never seen him before. I never saw him until that night.”

Mr. George T. Howard, Jr. testified that the victim was his mother and she was 74 years of age; that she lived alone at 3409 Jefferson Avenue, Southwest, in the City limits of Birmingham, Jefferson County, Alabama; that on Thursday night, November 19, 1976, he got a call from his mother at approximately 11:30 or 12 o’clock and she was screaming, “Help, help, I’ve been -” He notified the Police Department and left immediately for his mother’s home arriving around 12:30 o’clock. When he got to her house he found her on a stretcher and present at that time were two police officers, a fire engine and a paramedic squad. He stated that his mother was “beat up in the face, her eyes were beat shut, and she was bloody all over.” He followed her to the hospital where she remained four or five weeks. He said he observed cuts on her head and she had about four lacerations on her hands that required surgery.

He further testified that he observed his mother’s clothing before she was carried to the hospital and “the undergarments were torn off her and scattered all over the front room and her dress was just hanging on her; that her blouse was partly torn off one arm.” He stated that she could hardly get around, she had a pin in her hip, and she had to get around on one crutch. She broke her hip before the night that she was assaulted and raped and the pin was in her hip at that time. He further stated that he mowed his mother’s yard.

Police Officer Lennie M. Sams testified that he was employed by the Birmingham Police Department and had been so employed a little over ten years. He stated that he and his partner, Officer Reese, responded to a call at 3409 Jefferson Avenue, Southwest, on the night of November 18 or the early morning hours of November 19, 1976. He said he had been to this house before and he knew what the problem was when no one answered his knock on the door. The officers looked in the window to see if they could get Mrs. Howard’s attention. They could see her in the living room with her flashlight and they got her attention. She came to the front door and let them in the house. Officer Sams described her physical condition in these words: “Physically, she looked like she had been beaten, and there was blood all over her head, ran down into her eyes. Her hands were bleeding and we could observe several cuts on them.” They observed blood all over her clothes, on the floor, and the wall. He said there was a large puddle of blood on the rug in the living room, on the couch and it was splattered all over the wall. There was blood on the telephone, the telephone book, and traces of blood throughout the house.

He further testified that he inspected the premises and in the rear bedroom the glass in the window was broken out and there was glass on the floor beneath the window. He stated there were at least two trunks near the broken window and one was on top of the other and blocked the view of the window to a certain extent. He said these trunks were disarranged as if they had been shoved over to make way to enter the room and they were shoved away from the window; that the top of one of the trunks was leaning over on the side of the bed. He stated that he went outside the house and found the screen which had been torn from the window. It was lying over the fence in the back yard approximately twenty feet from the window. He said he inspected the back door and it was open.

He further stated that the only way he could converse with Mrs. Howard was to write notes to her and she would answer the questions. He said he gave the evidence technician a knife that Mrs. Howard had given him. The knife was covered with blood and hair. At trial he stated that the knife looked like the same one they got that night while in the Howard house, and he gave the knife to the evidence technician. He saw an evidence technician lifting prints from the trunks.

Officer Robert E. Zeanah, an evidence technician with the Birmingham Police Department, testified that he responded to a call and went to Mrs. Howard’s home. He arrived at 1:18 a. m. on November 19,1976. He, too, saw blood on the couch, on a carpet in front of the couch, on the telephone, telephone book and on the wall near the telephone. He stated the telephone book was open. He inspected the house and in the rear bedroom he found the window open and a glass pane broken out. He processed the window for fingerprints, and lifted one print. He processed the trunks in this bedroom and lifted two palm prints from the metal band on one of the trunks, the one that apparently had been moved and was leaning against the bed. He placed these latent prints in a manila envelope, sealed it, and marked it. He took the envelope to City Hall and pushed it through a slot in a locked box.

Zeanah further testified that they designated the lifts as number 126 from the window, number 141 and 143 lifted from the metal band on the trunk. He said that when he deposited the envelope in the lock box at City Hall the lifts were in the same condition as they were when he made the lifts. He stated that after they were placed in the lock box they could not be removed by anyone except the fingerprint technician who had the only key to the box.

Zeanah stated that Officer Sams pointed the knife out to him and he took possession of it. He marked the knife by putting on it the date he got it, the complaint number and his initials and carried it to City Hall. During the trial he identified the knife and it was introduced into evidence over the objection of appellant, as State’s Exhibit A.

Police Officer Gasper Chwalek testified that he fingerprinted appellant at the City jail on February 4, 1976. He said that when a person is charged with a felony, fingerprints are made on all fingers and the palms on both hands, and the fingerprint card is then sent to the Identification Bureau where they have fingerprint technicians who classify the prints. He stated that the person whose fingerprints and palm prints are taken is required to sign his name on the fingerprint card. He stated that appellant signed his name on the card, Willie James Scruggs, Sr., in his presence and the officer signed the card also. The palm print of appellant was identified by Officer Chwalek at trial.

Sandy Triplett, a fingerprint technician with the Birmingham Police Department, whose qualifications as a fingerprint expert were not questioned by the defense, testified in detail as to fingerprint characteristics and how they are identified. She dia-gramed fingerprint patterns on a blackboard and explained how known prints are compared. She testified that the fingerprint numbered 126, taken from the window of Mrs. Howard’s home where the break in occurred did not have sufficient details to make a comparison and identification. She stated that the fingerprint numbered 143 had sufficient detail to make a comparison and it was not made by appellant. However, she said that the palm print numbered 141 was identical with the palm print of appellant. This palm print was lifted from a trunk in the rear bedroom of the home of Mrs. Howard and it had twenty-one points which were identical with the palm print of appellant’s known palm print on the card signed by him and taken by Officer Chwalek.

Donna Moore testified that she was a fingerprint technician with the Birmingham Police Department. She, too, qualified as a fingerprint expert. She identified appellant’s palm print on file with the lift taken from the trunk in Mrs. Howard’s home, and by comparison found them to be .identical. She made an enlargement of the print card and this known print card was introduced into evidence. This witness demonstrated her identification procedure by the use of the enlargements for the jury. The enlargements of the known print and the enlargement of the latent lift were introduced into evidence.

Appellant did not testify but offered the testimony of his sister, Wanda Solid, who stated that she lived behind Mrs. Howard on another street. She said that sometimes her brother stayed with her and that in the summer of 1976 her brother cut Mrs. Howard’s grass one time. She stated that appellant cut the grass the last part of August.

On cross-examination she said she never saw appellant go inside Mrs. Howard’s house though she could see the house from her alley. She further testified that she did not know of the night of the incident involving her brother and she had never seen Mrs. Howard’s son cut her grass. She also stated that she did not know Mrs. Howard and had never seen her. She further testified that her brother lived with his mother on Howard Avenue but stayed with her at times. She said she thought he was staying at her house on November 19, 1976.

On rebuttal the State called Sergeant B. R. Stephens and he first testified on voir dire out of the presence and hearing of the jury. According to his testimony he and his partner arrested appellant on November 30, 1976, at 401 Tuscaloosa Avenue which place was the Alcoholism Recovery Center. He said he knew appellant and had known him prior to the day he arrested him. Stephens stated that appellant was arrested around 10:20 in the morning and he told him he was being arrested for nighttime burglary, rape, and robbery and he read him the Miranda rights and warnings. He also testified that he had a conversation with appellant after giving him his Constitutional rights and that prior to this conversation no one in his presence or hearing offered appellant any promises, rewards, remuneration, or inducement of any kind to get him to make a statement. He further testified that prior to appellant making a statement no one in his presence or hearing told him that it would be better or worse for him if he did, or did not, make a statement, and that appellant was not threatened or coerced by the use of force or violence in order to obtain a statement.

From the record:

“Q. What did you say, and what did he say?
“A. We started off a conversation after we got in the car, en route to the jail. I asked him why he broke in that old lady’s house. And he said, ‘Which old lady?’ I said, ‘Mrs. Howard, down on Jefferson Avenue.’
“And he said, ‘Where?’ And I said, ‘3409 Jefferson Avenue.’
“And he said, T have never been in the house.’ ”

Appellant’s counsel objected to this testimony being given to the jury on the ground that he didn’t believe the defendant was fully aware of the circumstances and surroundings in the entire situation he was faced with at the time this statement was made, five minutes after his arrest, and was not fully aware of all the ramifications and all the .

The Court ruled that he would let him testify as to what was said about it and what he was arrested for and the Court further said:

“I think it is admissible for the purpose which he offered to use it. I think it is more or less a contradiction of what has been said by, perhaps, what the sister testified.
“She testified he cut the grass over there. It’s evidence in relation to the question of fingerprints.
“I think it is competent, a repudiation of that situation.
“I will admit it. When the jury comes back in, go through the same process.”

When the jury returned to the courtroom, the whole procedure which occurred out of the presence of the jury was repeated. The Miranda rights given the defendant and the proper predicate was laid for the admission of the statement made to Officer Stephens by the defendant were repeated in the presence of the jury.

From the record:

“Q. Tell the ladies and gentlemen of the jury, as best you can, what you said to the defendant and what the defendant said to you.
“THE COURT: Let me ask you this first: How long was this after you say you talked to him at the Center?
“A. Five minutes, time enough to walk out and get in the car.
“THE COURT: Going somewhere?
“A. From there to the City Jail.
“MR. HYNDS: Judge, at this time, I object to the introduction of that statement, or the testimony as to that statement.
“THE COURT: Overrule the objection.
“THE WITNESS: En route to the jail, I asked him: ‘Why did you break in that old lady’s house?’
And he said, ‘I didn’t .break into her house.’
And I said, ‘Well, do you know her?’
And he said, ‘Yeah. She lives behind my sister,’ or something like that.
‘My sister lives on Eighth Avenue.’
And I said, ‘Well, you stay right behind her, then, don’t you?’
And he said, ‘No. I just stay there sometimes. I live over on Highland Avenue.’
And I said, ‘Well, have, you ever been in her house?’
And he said, ‘No, I haven’t.’
And we had some other conversation. I don’t recall exactly what.
“Q. You asked him if he had ever been in her house, and he said no, he hadn’t?
“A. Yes, sir.”

After the jury began its deliberations they returned to the courtroom to ask the judge a question. We quote from the record:

“THE COURT: Ladies and gentlemen, did you have some question you wanted to ask?
“A JUROR: Your Honor, my name is Jonathan Putman, and I was selected as foreman of the jury.
The question, basically, is if we should find the defendant guilty, we have some question about sentencing.
“THE COURT: About what?
“THE JUROR: About sentencing. If we should find the defendant guilty and select a number of years as punishment, none of us understand what is involved on parole.
When could the defendant be free on parole?
“THE COURT: Ladies and gentlemen, that question very often arises with the jurors, and I will go as far as to instruct you, or direct you, about it.
The question of parole, if there is a conviction in this case, is entirely up to the Board of Pardons and Parole.
If they see fit to grant parole, it is not in my jurisdiction to say anything about it and to have anything to do with it. It is a matter that is entirely in the charge of that department of the State government, so to speak.
And if I should tell you what the limitations are about parole, I think I would be committing a reversible error.
The only issue before you—I must state this—is the question of whether or not he is guilty, and then the question—if you do find him guilty, if you are satisfied from the evidence beyond a reasonable doubt that he is guilty, then it is a question of fixing the punishment.
The question of parole, or the question of pardon, or anything of that nature, shouldn’t enter into it so far as you are concerned.
“A JUROR: Could I ask another question?
“THE COURT: Yes, sir.
“THE JUROR: Do some sentences carry a limit of parole possibility?
I have heard comments about a year and a day being different from a year.
“THE COURT: Well, I—I don’t think it is proper that I instruct you relative to that. It might have some influence on your judgment, and I think to do so would be—would not be proper.
I know what you are asking me, and I can tell you, but I don’t think it is within my province to do so.
“THE JUROR: Well, it is if it is our responsibility to set a penalty, I think we should know the consequences.
“THE COURT: I’m sorry. I can’t give you the consequences. I’m sorry, but that is just the way it is.”

Appellant bitterly complains that the State failed to make out a prima facie case against him. We do not agree.

The corpus delicti is a fact, proof of which may be established by circumstantial evidence. Hines v. State, 260 Ala. 668, 72 So.2d 296; Taylor v. State, 276 Ala. 232, 160 So.2d 641.

If there is a reasonable inference to prove the existence of the corpus delicti the Court should submit to the jury for consideration the question of the sufficiency and weight of the evidence tending to support that inference. Ellis v. State, Ala.Cr.App., 338 So.2d 428; Godfrey v. State, Ala.Cr.App., 333 So.2d 182.

The Court properly submitted the case to the jury. The victim was a 74 year old woman, living alone, who was completely deaf. She returned to her home from church at night between 9:30 and 10 o’clock. Her pastor drove her home from church and after arranging flowers the church had given her she is suddenly confronted by a black man armed with a butcher knife. He grabs her and beats and cuts her unmercifully and rapes her while she is praying to God to help her. The police arrive and find a broken window and a torn and discarded screen. A window pane was broken and glass is found on the inside of the room. Appellant’s palm print was found on a trunk inside the house and near the broken window.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict; whether there is such evidence is a question of law for the Court, with the weight and probative value for the jury. The rule is that if several crimes in fact constitute one criminal transaction, evidence of all such crimes may be given as part of the res gestae of the offense with which the defendant is charged. Parsons v. State, 251 Ala. 467, 38 So.2d 209; Jackson v. State, 229 Ala. 48, 155 So. 581; Bibb v. State, Ala.Cr.App., 339 So.2d 1108.

Under the principles of law announced in the above cases the evidence concerning the assault upon the victim, the bloody clothing worn by Mrs. Howard and the knife found at the scene of the crime, were all a part of the res gestae of one continuous transaction, or one continuous occurrence, and was properly introduced into evidence.

Appellant contends that the Court erred in its supplemental instructions to the jury with reference to how long an accused must serve a sentence before he may be considered for parole. There are two short answers to this contention: (1) the Court charged the jury that the question of parole, or the question of pardon, was not to be considered by them, and (2). there was no objection to the supplemental charge. Review on appeal is limited to matters on which rulings are invoked in the trial court. Slinker v. State, Ala.Cr.App., 344 So.2d 1264; Cooper v. State, Ala.Cr.App., 331 So.2d 752.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Willie James SCRUGGS.
    77-489.
    Supreme Court of Alabama.
    June 30, 1978.
   MADDOX, Justice.

WRIT DENIED.

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