text:
    Tony GIBSON, alias v. STATE.
    3 Div. 737.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.

      Edward W. Drinkard, Prattville, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

This is an appeal from a conviction of robbery wherein the jury fixed punishment at twenty years imprisonment. The appellant’s retained trial counsel was appointed to represent him on this appeal.

At approximately 12:30 on the morning of September 28, 1976, three males, the appellant, Kenneth Jackson, and Jim Dandy, entered the Seven-Eleven Store on Norman Bridge Road where Mr. Santiago Saez was working. They bought some beer, potato chips, dip and olives to the check-out counter. One of the individuals asked for a candy bar which was not on the shelf. Mr. Saez went to open a box to get the candy and as he was getting it out, Kenneth Jackson put a pistol to his head and told Mr. Saez to go to the back of the store and open the safe. Jackson and Saez headed to the safe, the other two individuals walked to the cash register. Mr. Saez positively identified the appellant as being one of these two men.

While Mr. Saez was in the back room he heard two of the men get the money from the register. After he convinced Jackson that he did not know the combination to the safe, Jackson made him go into the bathroom and demanded his money. Mr. Saez handed him a five dollar bill.

Saez remained in the bathroom no longer than one minute. When he came out the register was open and empty. Before the robbers came in there was about fifty-one dollars in the register. The only customers in the store left shortly after they entered the store.

The police were called and within twenty-five minutes after the store had been robbed, the Montgomery police had returned four individuals to the Seven-Eleven Store for identification. Saez positively identified the appellant and two others but was unable to identify the fourth individual.

I

The appellant’s first assignment of error is that the state failed to establish the corpus delicti of the charged crime of robbery. The basis of the appellant’s contention is that Mr. Saez did not see the appellant or anyone actually take the money from the cash register.

The three essential elements of the crime of robbery are: (1) Felonious intent, (2) force or putting in fear as a means of effecting the intent, and (3) the taking or carrying away of the personal property of another from his person or in his presence, with all three elements concurring in point of time. Moore v. State, 57 Ala.App. 668, 331 So.2d 422 (1976); Johnson v. State, 57 Ala.App. 470, 329 So.2d 160 (1976).

The testimony of Mr. Saez alone shows that the appellant entered the store with two men, that when they entered there was approximately fifty-one dollars in the cash register, that one of those men pulled a pistol on him and forced him into a back room and that while he was back there he heard the other two men take the money from the cash register.

“So, I hear the register when the other two guys, they got the money from the register, . . . ”
******
“(A)nd I know when I was at the safe one of the guys was getting the money from the register.”
* * * ^ * sfc
“I could see him standing there, and you could hear them raise and open it and get any change.”
sf: * Hi sfc * *
“I couldn’t say exactly he (defendant) was the one that opened the register; I know it was one of the other two . or both.”

At this time the three robbers were the only individuals in the store. When Saez came out of the bathroom, no longer than one minute after the robbers had departed, the register was empty. Thus the state proved the three elements constituting the corpus delicti of robbery. This evidence was also sufficient to satisfy the third element of a taking from the person. Harris v. State, 44 Ala.App. 449, 212 So.2d 695, cert. denied, 282 Ala. 726, 212 So.2d 704 (1968).

“A thing is in the presence of a person in respect to robbery if it is so within his reach, inspection, observation, or control that he could, if not overcome by violence or prevented by fear, retain his possession. Hence, property may be considered as taken from the victim’s presence where it was taken from another room of the house, from a car parked outside, or from another building on the premises.” 67 Am.Jur.2d 37 Robbery, § 12.

For this same proposition, see also: DeFranze v. State, 46 Ala.App. 283, 241 So.2d 125 (1970); Cobern v. State, 273 Ala. 547, 142 So.2d 869 (1962).

The testimony of Mr. Saez directly and positively incriminates the appellant. However the appellant in his brief also states that there is no evidence that the appellant had any knowledge of the robbery. From the evidence presented this was a matter of fact for the jury. From the testimony the jury could infer that the appellant was a willing and active participant in the crime.

Additionally, the state, after proving the corpus delicti of the charged crime, properly introduced the confession of the appellant wherein he admitted his active role in taking the money from the cash register. The proof of the corpus delicti aided by the confession of the appellant was sufficient to satisfy the jury beyond a reasonable doubt as to the guilt of the accused. Coleman v. State, 57 Ala.App. 392, 328 So.2d 642 (1976).

II

Secondly, the appellant contends that it was improper and reversible error for the trial court to allow the state in closing argument to argue that it could have introduced the money in evidence, the state having failed to introduce any money taken in the robbery into evidence.

On this matter the record only discloses the following exchange:
“MR. DRINKARD: (Defense Counsel) Please the Court, we object to talking about what the evidence could have been.
“THE COURT: I think you have asked, you have opened that, and I will let him answer it.
“MR. POOL: (District Attorney) We could have brought in all kinds of policemen who testified and brought in evidence here.
(MR. POOL CONTINUES CLOSING REBUTTAL ARGUMENT.)”

Initially we note that the objection of the appellant does not sufficiently disclose what was said by the District Attorney for this court to rule that the argument was improper. Flowers v. State, 269 Ala. 395, 113 So.2d 344 (1959); Neugent v. State, Ala.Cr.App., 340 So.2d 55, cert. denied, 340 So.2d 60 (1976). Since we are not informed of what the argument was by the record, we cannot pass on the objection. Baker v. State, Ala.Cr.App., 338 So.2d 528 (1976).

Additionally, even if we assume that the state was arguing that it could have introduced the pistol and the money, such remarks were considered by the trial judge to have been made in response to a similar argument presented by the appellant. Where the defendant in a prosecution for robbery argues the failure of the state to produce the money taken and the weapon used in the commission of the offense, the state has the right reply in kind. For example see Newell v. State, 16 Ala.App. 77, 75 So. 625 (1917); Hanners v. State, 147 Ala. 27, 41 So. 973 (1906). For the purpose of determining whether the statement made in argument had been improper, the argument must be viewed in its context and in light of what had transpired, that is, in light of preceding argument of defense counsel, to which the prosecutor’s argument was an answer. Washington v. State, 259 Ala. 104, 65 So.2d 704 (1953).

Ill

During the course of the trial in an effort to impeach and discredit the identification testimony of Mr. Saez, the appellant placed Attorney Collier Carlton on the witness stand. The substance of his testimony was that at the preliminary hearing in this case, Mr. Saez had been unable to positively identify the appellant as being one of the men in the store. On cross examination Mr. Saez had denied this inability to identify the appellant. On direct examination of Mr. Carlton, the state objected because the witness was testifying from notes. However the court allowed the witness to continue the use of the notes. On cross examination of Carlton the state sought to impeach him by showing the large number of hearings he had attended that day and since then.

On redirect the following exchange occurred:
“Q. (Defense Counsel) Did you take, you were testifying from a memorandum there, on something that you had in your hand. What is that you had in your hand that you were referring to as you were answering those questions?
“MR. POOL (District Attorney): Objection, Judge, it’s a self-serving declaration by this witness.
“THE COURT: I sustain the objection.
“MR. DRINKARD (Defense Counsel): You may come down.”

The appellant asserts that it was error for the trial court to refuse to allow the witness to describe what notes he was referring to when he testified on direct.

At the outset we note that the witness was not denied the opportunity to refresh his recollection from his notes; neither was an exception nor objection taken to the adverse ruling of the trial judge. On appeal the appellant complains that the witness should have been permitted to identify the notes as to their nature and the time when they were made.

A memorandum may be used to refresh the memory of a witness in two situations: (1) Where the witness is allowed to look at any writing which serves to arouse a present memory of a past experience (present recollection revived) and (2) where the witness fails to recall the events in question upon looking at a memorandum that was made soon after the occurrence (past recollection recorded).

In each case a proper foundation must be laid for the witness to be able to refresh his memory and certain principles must be followed. McElroy, The Law of Evidence In Alabama, § 116.01 at 279 to § 121.01 at 284; M. Walker, Witness’ Use of Memoranda: Present Recollection Revived And Past Recollection Recorded, 6 Cumberland Law Review, 471 (1975); Acklen v. Hickman, 63 Ala. 494 (1879); Connell v. State, 294 Ala. 477, 318 So.2d 710 (1974).

Where the witness’s memory is revived and he presently recollects the facts, the evidence is the testimony of the witness and not the writing which is used to stimulate his memory.

“The witness must testify to the facts as he remembers them and may not read or show the writing to the jury or state what the writing says or shows.” 98 C.J.S. Witnesses § 358, page 86. See also Hickman at 498.

Under present recollection revived the memorandum is used to refresh the memory and not necessarily for what it says. The witness is not even required to have made the writing. 1 McElroy, Law of Evidence In Alabama § 116.02(2) (2d ed. 1959); Con-nell, supra.

Under the doctrine of past recollection recorded a witness may testify to a transaction or event on the basis of a written record of his past recollection, although the writing does not refresh his memory and he has no independent recollection of the event or transaction. Under this rule the memorandum may be admitted into evidence as a substitute for the witness’s oral testimony. Witness’ Use of Memoranda, 476. However before the notes or record are admissible it must be shown (1) that the witness at one time personally knew the facts upon which he is being examined, and that the memorandum is a correct record of them; (2) that the record was made soon after the occurrence so that the facts were fresh in his mind; and (3) the original memorandum must be produced or its absence accounted for. Witness’ Use of Mem-oranda, 475-476. Only after this predicate has been laid may the actual memorandum be introduced into evidence.

Here the appellant laid no predicate for the use of the memorandum. Therefore the action of the trial court in not allowing the witness to identify his source of information was not error but was within the sound discretion of the trial court. The evidence was the testimony of the witness and not what was contained in his notes.

IV

Finally the appellant submits that the confession signed by the appellant should not have been admitted into evidence because the confession was involuntary. Specifically, the appellant alleges that the confession was obtained through “pressure, trickery and undeviating intent” and as a result of “fear, fatigue and undue influence”.

From the record we find that the appellant was advised of his constitutional rights by Detective Billy Wayne Knighten at 3:35 A. M. which was approximately two and one half hours after the robbery. Detective Knighten read the appellant his rights from a standard Montgomery Police “rights form” card. Those rights are in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The appellant indicated that he understood these rights but refused to sign a waiver of rights form. . The appellant stated that he did not want to make a statement.

Detective Knighten placed the appellant in an office which was located immediately behind his desk. Knighten then got another one of the four individuals (Herman Davis) that was in the car with the appellant, advised him of his rights and took his written statement.

After taking Davis’ statement, Detective Knighten went back and brought the appellant to his desk. He told him what Davis had just stated to him and asked the appellant if he wanted to give a statement. The appellant then stated that he would answer questions. The appellant’s statement was taken at 5:10 A. M., one hour and thirty-five minutes after the appellant had been advised of his rights and declined to make a statement. The appellant was not advised of his rights immediately before he made his statement.

During this one hour and thirty-five minute interval, the appellant was placed in a room by himself. No one coerced or threatened him in the presence of Detective Knighten. No promises, offers, or hopes or reward or leniency were made. Anyone going into the room where Knighten had placed the appellant would have to go by Detective Knighten. No one was seen going into the room although it is possible that someone could have when Knighten went to get some water or to the restroom. Knighten was not aware that anyone else questioned the appellant.

After the appellant gave the statement and Detective Knighten typed it, the appellant looked at the statement and signed it. The appellant had been in police custody for approximately five hours when the confession was given. After this evidence was adduced, the confession was admitted into evidence and read to the jury over the appellant’s objection.

On the voir dire hearing to determine the admissibility of the confession the appellant did not testify nor present any evidence on his behalf.

The record fails to show that the confession should have been excluded on the totality of circumstances doctrine. Once the mandate of Miranda has been complied with at the threshold of the questioning it is not necessary to repeat the warnings at the beginning of each successive interview. Here, the length of time and the events which occurred between the interrogations do not dictate that the warnings should have been repeated. Jones v. State, 47 Ala.App. 568, 258 So.2d 910 (1972); McBee v. State, 50 Ala.App. 622, 282 So.2d 62 (1973); Allen v. State, 53 Ala.App. 66, 297 So.2d 391 (1974). Also mere confrontation with a co-defendant’s confession cannot be held to be an unfair tactic or unlawfully coercive. Vander Wielen v. State, 47 Ala.App. 108, 251 So.2d 240, cert. denied, 287 Ala. 742, 251 So.2d 246 (1971).

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none. Therefore, the judgment of the trial court is due to be affirmed.

AFFIRMED.

All Judges concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Listle L. VAUGHN v. STATE.
    4 Div. 557.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.

      Gary L. Dozier, Troy, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

Several eyewitnesses testified that on September 23,1976, the victim, Will Starks, was walking up the front steps of a neighbor’s house when he was shot and killed. He was unarmed and was carrying only a bucket to get some water for his horse. The appellant drove up, parked across the street, got out of his automobile with a shotgun, and approached the victim. When appellant was about eight feet from the victim, he called out, “Willie,” and as the victim turned, appellant shot him.

The appellant made the following statement to officers which was admitted into evidence:

“This evening I saw Will Starks walking across the field on Galloway Road. We had been having trouble that afternoon. He had been chasing me and threatening to kill me. I just decided it was me or him. I pulled up beside him and asked him why he kept on messing with me. I don’t remember what he said. He was crossing the road and I got my shotgun out of the back seat and I shot him one time. Then I walked back and put my gun on the hood of my car and told them to call the Law.”

Witnesses for both the State and the defense proved an undisputed prima facie case of murder which fully supports the verdict. Appellant raises three issues on appeal.

I

Counsel for appellant objected to testimony from the coroner of Pike County as to the cause of death. His objection was on the ground that the coroner had not been properly qualified as an expert witness to express an opinion as to the cause of death.

The coroner testified that he had held that office for approximately two years and that during that time he had had occasion to examine dead bodies to determine the cause of death, and to examine dead bodies in relation to the determination of point of entry wounds. He stated that he had examined approximately fifty to one hundred bodies with gunshot wounds. He stated that in the area of training, he had worked for a funeral home for ten years; that he had a bachelor of science degree in law enforcement with a masters degree in criminal justice and had taken several courses which dealt with “gunshots, guns and death.” He had attended various schools offered by the Department of Toxicology dealing with crimes and evidence. While his qualifications in the medical area appeared somewhat sketchy, he nevertheless had fairly extensive practical experience in examining dead bodies.

In Willingham v. State, 50 Ala.App. 363, 279 So.2d 534 (1973), cert. denied, 291 Ala. 803, 279 So.2d 538, this Court stated:

“It has been said that a person who is a coroner does not per se qualify him to express an opinion as to the cause of death. However, where experiential qualifications are shown, a person who is a coroner or undertaker may be qualified to testify to the cause of a particular person’s death. . .

Many persons other than physicians may possess the requisite qualifications in order to express an opinion as to the cause of death. For a detailed listing of many such persons and their qualifications, see Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973).

It appears to this Court that the coroner was sufficiently qualified by'knowledge and experience to give his opinion as to cause of death in the instant case.

Yet, there is another equally important reason why the trial judge committed no error in admitting the coroner’s testimony. In addition to several eyewitnesses testifying that .they saw the defendant shoot and kill the appellant with a shotgun at close range, the appellant himself took the witness stand and admitted that he shot and killed the victim. This Court, when a similar question was presented in King v. State, 32 Ala.App. 134, 22 So.2d 448 (1945) held that such opinion evidence in no way affected the rights of a defendant where that defendant took the stand and admitted inflicting the fatal wound. Therefore, even had the coroner been unqualified to express an opinion as to cause of death, such testimony would have been without injury to the defendant, who admitted inflicting the fatal wound. Rule 45, Alabama Rules of Appellate Procedure.

II

Counsel contends that appellant’s inculpa-tory statement given to officers was not of a voluntary nature because appellant was “nervous” at the time.

The record clearly shows that the prosecutor established that every requirement of Miranda was complied with, and that the statement was freely and intelligently given without duress or promise of favor. We know of no holding in any jurisdiction that a “nervous” defendant is incapable of giving an admissible statement to police officers. If such were the law, the in-custody statements of almost all defendants would be inadmissible in court, since the ordeal of arrest and questioning would make most people nervous. Appellant’s contention in this regard is devoid of even a scintilla of merit.

III

Appellant contends the trial court erred in giving the deadlocked jury an Allen type charge. Although this Court does not favor such a charge, we nevertheless have recognized its approval by our Supreme Court. Ashford v. McKee, 183 Ala. 620, 62 So. 879 (1913); Strickland v. State, Ala.Cr.App., 348 So.2d 1105 (1977); Eady v. State, 48 Ala.App. 726, 267 So.2d 516 (1972) footnote by Harris, J., at p. 729.

Appellant’s counsel, in brief, argues that he objected to the Allen or “dynamite” charge, even though the record fails to show his objection. It is the duty of the appellant to perfect his appeal by seeing that a complete record is filed in the appellate court which reflects the points upon which he seeks review. We are bound by the record and cannot consider matter contained in briefs which is not on the face of the record. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971).

AFFIRMED.

All the Judges concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).


author: TYSON, Presiding Judge.

text:
    Charlie Frank DARDY, alias v. STATE.
    5 Div. 389.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.

      W. Larry Ray, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The appellant was indicted for the second degree burglary of Railroad’s Oyster Bar by taking some Miller’s Light beer therefrom. The jury found the appellant guilty of burglary, as charged, and the trial court entered judgment which set sentence at ten years imprisonment in the penitentiary.

Edward Burns testified that he owned and operated Railroad’s Oyster Bar, located on Second Avenue in Opelika, Alabama, on June 18-19, 1976. Burns testified that he locked his place of business between 10:00 and 11:00 p. m. and returned about 7:00 a. m. the next day. He testified that he found a plate glass window broken in the front of the store, and that two cases of Miller’s Light beer were missing. He testified that he had five cases upon closing the store, and only three were there when he opened it the next morning.

On cross-examination he testified that he had a number of cases of beer on inventory, but only five cases of Miller’s Light beer, and that none of this had been placed in the cooler. He also stated that the window appeared to have been broken from the outside of the building as the glass was scattered over the interior. Several photographs were then identified, showing the window and interior, and were admitted in evidence.

George Dozier Norton stated that he worked at Railroad’s Oyster Bar in Opelika on June 18-19, 1976. He testified that he locked the place of business shortly before midnight, that he had five cases of Miller’s Light beer in cans stored in one of the rooms near a window, and that these had not been placed in the cooler. He arrived at work around 9:30 the following morning and found only three cases of Miller’s Light beer. He testified that a plate glass window had been broken.

Roy Berry testified that he was a lieutenant with the Opelika Police Department in June, 1976. He testified that he observed the appellant, Charlie Frank Dardy, about ten minutes until 6:00 a. m. on June 19, 1976, standing alongside the building in which the Railroad’s Oyster Bar was located on Second Avenue in Opelika. Lt. Barry testified that the appellant had on black pants and a multi-colored shirt, that it was daylight at this time of the year. He testified that he recognized the appellant as he knew him. Lt. Barry further testified that later that morning he was advised of a breaking and entering of the Oyster Bar, and that he drove to a residence on Hooper Street and saw the appellant and one James Frank Taylor, another black male, seated on top of an abandoned Chevrolet car, that a Miller’s Light beer can was also on top of the car. He stopped to ask the men where they got the beer and observed two six-packs of Miller’s Light beer on the floorboard of the abandoned car. He stated this was about 7:30 a. m.

Lt. Berry further testified that Lt. Ab-bett drove over and they looked about the abandoned car for additional beer. He testified that he gave the appellant a Miranda card warning and advised him that he was under arrest for burglary.

Frank James Taylor testified that he lived at 1423A on Hooper Street in Opelika on June 19, 1976. He testified that the appellant’s father lived next door, and on the morning in question he was there when a police car drove up. He testified that he had paid the appellant $2.00 for one six-pack of Miller’s Light beer. He testified that the beer was warm. He further testified that the appellant’s stepfather, Charlie Jackson, was his next door neighbor and that they had been by the home of one Andrew Trimble early that morning and had some drinks. He testified that he was “pretty high” when Lt. Berry drove up on the morning of June 19, 1976.

Lt. Nick Abbett of the Opelika City Police testified that he investigated a burglary of the Railroad’s Oyster Bar in Opelika on the morning of June 19, 1976. He observed a large plate window which was broken from the exterior of the building and the glass was scattered on the inside, but practically no glass was on the exterior of the building. He- testified that he was there when photographs were made and that he took samples of the glass and placed them in a brown manila envelope, which he marked for identification and took the samples to the State Department of Toxicology at Auburn. He was also present when Lt. Berry brought the appellant, Charlie Frank Dardy, to Police Headquarters, and that he observed the Miller’s Light beer that had been taken from inside the abandoned Chevrolet. The beer, which was hot, was taken to Police Headquarters and the appellant was charged with second degree burglary. He testified the appellant was wearing black pants and a long sleeved shirt, that the sleeves had been rolled up. He testified that the pants and shirt were marked and placed in a brown bag, then subsequently delivered by him to the State Department of Toxicology. He stated that the beer which was seized consisted of two six-packs of Miller’s Light beer.

Tellus D. Hudson stated that he was a Criminalist with the State Department of Toxicology in Auburn on June 21,1976. He testified that he received two bags containing a pair of pants and a shirt, a pair of shoes, and one containing some broken glass and paint samples. These items were then identified by Mr. Hudson. He testified that he found three chips of paint and three small pieces of broken glass which were rolled up in the shirt sleeve of the shirt.

Mr. Hudson stated that there were three layers of paint, one a dark blue, a middle layer of red, and a top layer of white enamel, which were on the pieces of broken glass brought to him by Lt. Abbett. He also found pieces of glass on the shirt, and tests made determined that the paint samples had come from a common source.

Mr. Hudson also testified that he tested the glass for its color, density, and refracted index (the bending of light rays) and found from these tests that the samples of glass and those found on the shirt belonging to the appellant had come from the same source. He then gave his opinion that the glass particles found on the shirt had come from the same store window as the broken glass brought in by Lt. Abbett.

The appellant made a motion for a directed verdict which was duly overruled.

The appellant offered the testimony of his mother, Mary Dardy, who testified that her son lived with her on June 18-19, 1976, at her home at 542 East Hardaway Street in Opelika. She testified that she heard her son come in about 4:00 that morning and that he left again about 5:30 or 6:00, and that he was accompanied by one Jessie Ellis. On cross-examination she testified that often times her son went to see his stepfather, but that she was separated from Charlie Jackson.

Charlie Jackson, the appellant’s stepfather, stated that he lived at 1423B Hooper Avenue in Opelika on June 19, 1976. He stated that he and his wife were separated, and that his stepson, Charlie Frank Dardy, lived with his mother. Jackson related that he was at the home of his friend, Andy Trimble, between 6:30 and 7:00 that morning, which was about one-half block from his home. He stated that Jay Walton and Frank James Taylor were also there. He said that the men had been sitting around drinking for thirty minutes to one hour when his stepson, Charlie, got there. He said that Charlie was there ten or fifteen minutes and then left, and that Frank Taylor left with him. He said that Frank Taylor had been drinking wine, and that he, himself, had a pint of Gilby’s Gin. He further stated he saw his stepson when the police arrested him.

Charlie Frank Dardy stated he was twenty years of age and lived with his mother at 542 East Hardaway on June 18-19, 1976. He testified that he had been with one Jessie Ellis during the evening, and that they had picked up Jessie’s sister and taken her to the “Famous Door Club” in Lee County. He said that they left there about 2:00 in the morning, that they had been drinking beer and wine, that they drove toward town. He said that he stopped by his mother’s home about 4:00 in the morning, and that he left and decided to go over to his father’s (stepfather’s) home on Hooper Street. He stated that at this time he was walking. He said that Jessie left him to go pick up his mother. The appellant stated that when he arrived at his father’s home, no one was there, and he then went to Andrew Trimble’s house where he found several men sitting around having drinks. He said that he asked for a cigarette and upon seeing that they were out, he walked to a service station near the Railroad’s Oyster Bar and bought some. He said that he then walked back toward his father’s house, and on his way back he stopped by Frank Taylor’s yard. He said that Taylor asked him if he wanted a beer, and that he had started drinking it when Lt. Berry drove up. He denied having sold Taylor any beer that day or going by the Oyster Bar, or parking at the Oyster Bar.

On cross-examination the appellant admitted a 1975 conviction of petty larceny and also a conviction of second degree burglary and grand larceny of a motor vehicle.

I

In Eason v. State, 48 Ala.App. 471, 265 So.2d 913, we find:

“. . . The applicable elements of second degree burglary are: (1) breaking, (2) entering, (3) with intent to steal or to commit a felony. . . .”

It is clear from the evidence above set forth that the State here presented a prima facie case. Behel v. State, 40 Ala.App. 689, 122 So.2d 537; Hare v. State, 52 Ala.App. 279, 291 So.2d 371. Therefore the appellant’s motion for directed verdict on the basis that the State failed to establish a corpus delicti or prove a prima facie case was properly denied. Likewise the trial judge properly refused the affirmative charge and the affirmative charge with hypothesis in this case.

II

Appellant asserts that he applied for youthful offender treatment on August 29, 1976, and that the record does not reflect that such was denied, therefore the trial court improperly tried him as an adult.

It is clear under Pendleton v. State, 295 Ala. 325, 329 So.2d 142, that this Court has plenary power to direct that a supplemental record be sent this Court.

We have done this and find that in fact that following investigation and a hearing held October 1, 1976, the trial court did deny the youthful offender petition of the appellant.

We are of the opinion that this was proper under the facts presented. Clemmons v. State, 294 Ala. 746, 321 So.2d 238.

We have carefully examined this record and find no error therein. The judgment is

AFFIRMED.

All the Judges concur.


text:
    William James TURK v. STATE.
    6 Div. 73.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Richard L. Taylor and Chris S. Christ, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State, for appellee.
   TYSON, Presiding Judge.

The appellant was indicted for the first degree murder of John Edward Harbin “by shooting him with a pistol.” The jury found the appellant guilty of murder in the first degree as charged and fixed his punishment at life imprisonment. The trial court then set sentence in accordance with this verdict.

Mrs. Charlotte Harbin, the wife of the victim, testified that the last time she saw her husband alive was around 7:00 a. m., Friday, December 13,1974. She stated that on Sunday, December 15, 1974, she viewed the body of her husband at Johns-Ridouts Funeral Home.

Jefferson County Coroner James Butler, Sr., testified that around 10:25 a. m. on December 14, 1974, he received a call to come inspect a body which had been found by hunters an hour and a half before. The body was discovered beside the Hamilton-Oporto Mine Road near Daniel Payne College and identified at this site by a Clyde Walker, Jr., as that of John E. Harbin. Upon examining the body, Coroner Butler observed that Harbin had received a close entry gunshot wound in the right cheek. Coroner Butler stated that the “contusion around the wound was of the characteristics as if the muzzle [of the pistol] had been placed against the skin [and then fired].” Coroner Butler further testified that when he had concluded his preliminary investigation, he ordered that the body be taken to Mercy Hospital (now Cooper Green Hospital) where he witnessed an autopsy conducted by Pathologist Jay Glass. Coroner Butler stated that at the hospital he took custody of a .38 caliber bullet which had been removed from the head of the slain victim and kept it in his possession until he turned the bullet over to State Toxocologist Dr. Robert B. Johnson the following day.

Officer James A. Howell, the evidence technician of the Jefferson County Sheriffs Department, testified he went to the site where Harbin’s body was found and took several photographs. He stated that he searched the immediate area around the body and found a .38 automatic shell casing.

Pathologist Jay Glass testified that he conducted the autopsy on the body of John Harbin at Mercy Hospital under the direction of a Dr. Jean Garret. He stated that his external examination of the victim’s body revealed that a projectile had entered the head about a half inch below the right cheek bone. The witness testified that he then conducted an internal examination of the head by reflecting the victim’s scalp and removing the top of his skull. He noted that the projectile had perforated both cerebral hemispheres of the brain, the left side of the skull, and lodged just underneath the left scalp.

Ms. Jean Clements, who was an employee of the victim at Harbin Oil Company, testified she had been with Mr. Harbin during the evening of December 13, 1974 — the night before his body was found on Saturday morning. She stated he requested her to accompany him while he drove another employee to his Cordova oil refinery, and that they left Birmingham around 6:30 p. m. and returned about 8:15 p. m. She stated that after returning to Birmingham, he dropped her off at her car which was parked near 12th Avenue and 31st Street, North. The witness stated that Mr. Harbin was driving a brown over yellow Buick Electra, tag number 64-998. She further testified that about three weeks before his death, Mr. Harbin had purchased a blue Smith-Corona typewriter from her and that he had placed the typewriter in the trunk of his car.

Glenn Tommy Williams, an acquaintance of the appellant for ten years, stated that during the summer of 1974, he had purchased a .38 Colt automatic pistol from his brother. Williams stated that around October, 1974, he loaned this gun to the appellant and the appellant did not return the .38 pistol to him until December 20, 1974. The witness testified that on December 24,1974, the pistol was stolen during an armed robbery of the service station where he was employed.

Linda Marie Silmon, a girl friend of the appellant, testified that on the afternoon of December 13, 1974, the appellant drove her to her job at Cooper Green Hospital where she was employed as a nurses’ assistant. She stated she next saw the appellant at her home around 4:00 a. m. the following morning. The witness testified that the appellant told her at this time, “He had messed up ... he had shot some white men.” Ms. Silmon stated that the appellant had in his possession a pistol and a blue typewriter. The witness further testified that on the afternoon of this same day, she told the appellant that she had read about the incident in the newspaper and that the appellant replied, “They didn’t have any proof . . . .” She concluded her testimony by stating that on another occasion, when she asked the appellant about the gun he had used, the appellant told her “that he gave it back to Glenn [Williams].”

On cross-examination, Ms. Silmon stated that she was uncertain whether the appellant was referring to his possessing stolen property or his having shot two white men when he told her that “he had messed up,” and she further testified that she was not exactly sure when he made this statement to her.

Johnny Buford Silmon testified that around 1:30 a. m. on December'14, 1975, he received a phone call from the appellant and that the appellant stated he was “out of gas.” Silmon testified that he told appellant he did not have a car but that he would get him some gas the best way he could. The witness stated he next saw the appellant several hours later at his sister’s house and that the appellant had in his possession a pistol, a calculator, and a typewriter. Silmon testified that appellant told him he had taken these items from a white man he had shot. He further testified that the pistol the appellant had taken from this man had a “chrome stock and brown handle.”

Sergeant Howard Brooks testified that based upon information he had obtained in his investigation of the John Harbin homicide, he was able to secure a search warrant which commanded him to search the home of Linda Marie Silmon at 3169 43rd Avenue in Birmingham. He stated that the search of her home produced, among other things, one Smith-Corona typewriter, Serial No. 6YC13969, and “one pair of bloody field glasses.” He stated that he supervised this search of Ms. Silmon’s home on January 2, 1975.

Officer James A. Howell was recalled and testified that he participated in the search of Ms. Silmon’s home on January 2, 1975, and that he found both the typewriter and binoculars on a shelf in a hall closet. Officer Howell further testified that on December 16, 1974, Mr. Harbin’s automobile was found “just off the freeway headed toward Tuscaloosa.” He stated that he went to the place where the ear was discovered, took several photographs, then personally drove the car to the Sheriff’s Office where he processed the car “inside and out” for fingerprints. Officer Howell stated he sent seventy-two fingerprint “lifts” to the Federal Bureau of Investigation in Washington, D.C., for analysis.

Ms. Jean Clements was recalled to testify, and she positively identified the Smith-Corona typewriter (seized during the search of Linda Silmon’s home) as the one she had sold to Mr. Harbin three weeks before he was killed.

Mrs. John Harbin was also recalled to testify, and she positively identified the binoculars which were taken during the search of Ms. Silmon’s home as the pair her husband kept in his car and used mainly for birdwatching. She stated she last saw the binoculars in his car around October of 1974 when she and her husband were traveling near Scottsboro, Alabama.

Agent Robert Hostick testified that he was a fingerprint specialist with the F. B. I. in Washington, D.C. Agent Hostick stated he made comparisons of the latent fingerprints that Officer Howell lifted from Mr. Harbin’s automobile with a set of inked prints belonging to the appellant. Agent Hostick testified that the results of his examination positively established that a latent fingerprint taken from the rearview mirror of Mr. Harbin’s automobile was made by the right index finger of the appellant.

James Kenneth Jackson testified that around October of 1974, his brother, Michael Jackson, requested that he do some bodywork on a 1968 Dodge Coronet. He stated that his brother’s wrecked car had three bullet holes in it, and that during the process of repairing the car he found the “lead part” of one bullet in the trunk. The witness further stated that he gave this bullet to his sister, Olivia White, as a souvenir.

Olivia White testified that she lived in Montevallo; she was the sister of Michael and James Jackson; and sometime “after Christmas,” James had given her a bullet which he had found while doing some repair work on Michael’s car. Ms. White stated that she kept this bullet in her purse until the early part of February at which time she turned it over to Sergeant Brooks of the Jefferson County Sheriff’s Department.

Sergeant Howard Brooks was recalled and testified that during his investigation of the instant homicide, he received information that the appellant had been involved in a shooting incident with one Michael Jackson and that a bullet which had been recovered from Jackson’s car was in the possession of Ms. Olivia White of Monteval-lo. Sergeant Brooks stated that he went to Montevallo, got the bullet from her, and turned the bullet over to Toxocologist Dr. Robert B. Johnson on February 7, 1975.

Michael Jackson testified that on an October evening of 1974, he and his neighbor, Larry Silmon, were driving down 33rd Street in Birmingham when a car pulled in behind them and the passengers therein began firing pistols. He stated that he attempted to elude the gunshots by accelerating his car and making several turns which eventually caused him to lose control of his automobile in an alley near his home. Jackson testified that he and Silmon were able to get out of the wrecked automobile and escape on foot unharmed by their pursuers. Jackson stated he immediately reported this incident to the Birmingham Police Department and further testified that part of the damage to his car consisted of two bullet holes in the right side and one in the trunk. Jackson stated that about two weeks after this shooting incident, he took his car to his brother to be repaired.

Larry Silmon’s testimony was essentially the same as that of Michael Jackson, but Silmon, unlike Jackson, was able to identify two of the people who were shooting at them. Silmon stated that the car from which the shots were fired was a 1972 yellow Ford Ltd. and was being driven by Otis “Jig” Stevens. Silmon, who also knew the appellant, stated that the appellant was sitting in the back seat of the car and was firing a pistol from the rear (driver’s side) window. Silmon testified that when he and Jackson got out of their car and began to run, he saw the appellant alight from “Jig” Stevens’ car, armed gun in hand. Silmon concluded his testimony by stating that as they were running away, he recognized the appellant’s voice when appellant shouted, “There they go.”

Dr. Robert B. Johnson, a ballistics expert with the State Department of Toxicology, testified he made a comparison of the bullet taken from the skull of the victim with the one found in the trunk of Michael Jackson’s wrecked automobile. Dr. Johnson stated that in his opinion the two bullets “were fired from one and the same gun.” Dr. Johnson stated that the bullets were “jacketed” which indicated they were most likely used in an automatic pistol. He noted that the gun which fired the bullets “very characteristically marked them,” and further stated that the gun used had “six lands and grooves with a left hand twist.” The witness explained that there are only two manufacturers of guns which have that rifling description: One is a Colt 380; the other is a Llama 380. He further testified that “one land in the gun was so characteristic” that the marking it left on the two bullets made him absolutely certain that the bullets were fired by the same gun.

Sergeant Howard Brooks was recalled to the stand and testified that Otis “Jig” Stevens was arrested and placed in the Jefferson County Jail on November 26,1974. According to the testimony of James A. Hall, custodian of the Jefferson County Jail records (Birmingham Division), Stevens remained in the County Jail until January 13, 1975, and thus could not have possibly been involved in the John Harbin homicide.

The appellant’s motion to exclude for failure to make out a prima facie case was overruled.

The appellant’s first witness was Johnny Buford Silmon who had previously testified on behalf of the State. Silmon testified that he was with the appellant at his sister’s home during the time that Larry Sil-mon and Michael Jackson were allegedly fired upon while riding in Jackson’s automobile in October of 1974.

Linda Marie Silmon, also a prior State witness, testified that she had damaged her car in an accident in late November of 1974, had taken it to be repaired on the tenth of December, and had picked it up on December 14, 1974 — the weekend the appellant told her “he had messed up.”

Matilda Callins, a next door neighbor of appellant, testified that on a Friday during the mid-part of December, around 11:00 p. m., the appellant requested that she go pick up his girl friend (Linda Silmon) at work since Ms. Silmon’s car was in the shop being repaired. Ms. Callins stated she was unable to do so due to the fact that her car had no brakes.

After the defense rested, the State, in rebuttal, recalled Michael Jackson who testified that the automobile shooting incident he was involved in along with Larry Silmon took place on a Saturday in September or October of 1974.

I

Appellant contends that the trial court erred in allowing into evidence a photograph which depicted the gunshot wound on victim’s face. He asserts that the photograph was gruesome, had no probative value, was merely cumulative, and, thus served no purpose but to inflame the passions of the jury. We disagree.

A photograph which sheds light upon the character and location of the wound on the body of a deceased is admissible even though it constitutes cumulative evidence upon a matter not disputed. Snow v. State, 50 Ala.App. 381, 279 So.2d 552, cert. denied 291 Ala. 798, 279 So.2d 558 (1973); Robinson v. State, Ala.Cr.App., 342 So.2d 1331 (1977); Douglas v. State, Ala.Cr.App., 333 So.2d 880, and cases therein cited.

II

The appellant next contends that the trial court erred in allowing Coroner Butler to give his opinion as to the caliber of the bullet which was removed from the deceased’s head.

Coroner Butler testified that during his experience as a Coroner, he has observed “hundreds” of gunshot wounds and the projectiles which inflicted them. He stated his duties as coroner have required him to gauge “on many occasions” the caliber size of projectiles. Qualifying questions propounded by the trial court further revealed that the witness was familiar with various kinds and sizes of guns and ammunition. The witness’ credibility to testify as an expert rested in the sound discretion of the trial court; we find no error. Cobb v. State, 50 Ala.App. 707, 282 So.2d 327 (1973); Hardy v. State, 53 Ala.App. 75, 297 So.2d 399 (1974); Payne v. State, 261 Ala. 397, 74 So.2d 630 (1954).

Ill

Following an extensive oral charge to which the appellant made no exception, the appellant requested that two written charges be given. The subject matter of both charges were fully and substantially covered in the trial court’s oral charge; thus, their refusals were proper. Title 7, Section 273, Code of Alabama 1940.

Beyond question, the State of Alabama presented a prima facie case, and after careful examination, we find the record free of error. We are of the opinion appellant received a fair and impartial trial, and the judgment is therefore to be and the same is hereby

AFFIRMED.

All the Judges concur.


author: BOWEN, Judge.

text:
    Terry Charles GLOVER v. STATE.
    6 Div. 407.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.

      John W. Haley for Noojin, Haley & Ash-ford, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen. for the State.
   BOWEN, Judge.

The appellant was indicted and convicted for robbery. In accordance with the verdict and punishment fixed by the jury, judgment was entered and the appellant was sentenced to fifteen years in the penitentiary. The appellant has been represented at trial and on appeal by court appointed counsel.

At approximately 3:30 on the afternoon of June 22, 1976, the Creidman Clothing Store in Birmingham, Alabama, was robbed by two males. The owner of the store, Mr.' Creidman, and a part-time clerk, Eunice McAllister, were the only people in the store when the two robbers entered. One of the men, later identified as the appellant, approached Mrs. McAllister and pretended to seek assistance in selecting a denim jacket. While Mrs. McAllister was looking for the proper jacket, the appellant pulled a pistol, placed it within inches of her neck, and demanded that she follow his instructions.

Mrs. McAllister screamed. Larry Bracey, the appellant’s accomplice, grabbed Mr. Creidman and pushed him toward the back of the store. Mrs. McAllister and Mr. Creidman were placed in a bathroom with the door being shut and barricaded. While locked in the bathroom, Creidman heard a sound like a bell on the cash register. When Creidman and Mrs. McAllister got out of the room only minutes later, they found the cash register open and approximately seventy-five dollars missing. The police were called immediately and a description of the robbers was given at that time.

The day after the incident Sergeant John Barefield of the Birmingham Rohbery Detail returned to the store and showed Creid-man fifteen or twenty photographs. At this time, Creidman was unable to identify either of the robbers. However, the next day, Sergeant Barefield returned to the store with another group of pictures from which Creidman identified the appellant.

Some eight days later, a group of photographs was also shown to Mrs. McAllister. She testified that she viewed about thirty-six photographs at this time and positively identified the appellant as one of the robbers. Officer Barefield made no comment and gave no assistance to either Mrs. McAl-lister or Mr. Creidman in the photographic identification. The identification of the appellant as one of the robbers was completely independent with no discussion between the two victims.

Both Creidman and McAllister testified to having seen the appellant and Bracey in the store on a prior occasion.

At the preliminary hearing, Mr. Creid-man had some difficulty identifying the appellant. However Creidman testified that the preliminary hearing was very confusing and that he did not have a clear view of the defendant during the initial questioning. Once the appellant stood up, Creidman was able to make a positive identification.

In addition to the photographic identification made by Mrs. McAllister and Mr. Creidman, at trial both victims positively identified the appellant as one of the robbers.

Sergeant Barefield, in addition to corroborating the testimony of McAllister and Creidman, testified that he talked with the appellant on July 1st, while the appellant was incarcerated under an alias in the Jefferson County Jail. At that confrontation, Sergeant Barefield stated that the appellant told him that he should talk to Larry Bracey but professed his innocence and denied any knowledge of the robbery. Subsequently, Sergeant Barefield discovered that the appellant and Bracey were accomplices.

The defense presented the testimony of the court reporter who had reported the trial of the accomplice, Larry Bracey. The purpose of his testimony was to impeach the testimony of Mrs. McAllister and Creid-man by showing conflicting statements which they had given previously concerning the certainty of their identification of the appellant at the preliminary hearing.

The custodian of records of the city jail testified that the appellant was in the city jail of Birmingham until June 16, 1976, some six days prior to the robbery in question.

I

The initial contention of the appellant is that “the identification of the Defendant at a time (preliminary hearing) when he was handcuffed, sitting next to a co-defendant at counsel table, and no other blacks were present was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification”. This was the first face-to-face identification made of the appellant by Mr. Creidman.

On appeal, it is not contended that the photographic identification procedures employed in this case were unduly suggestive. The record indicates that they were conducted with due regard for the constitutional rights of the accused. The appellant objects to the identification procedure employed at the preliminary hearing.

Only after both parties had presented their case and rested did the appellant interpose any objection to suppress the evidence regarding the identification of the accused. There was no pretrial motion to suppress and no motion for a new trial. During the trial, there was no request by defense counsel for a hearing outside the presence of the jury to determine the admission of such identification testimony.

In the absence of an appropriate objection during trial, the issue of whether an in-court identification was tainted by pretrial identification procedures is not presented for review. United States v. Weeks, 487 F.2d 342, cert. denied, 416 U.S. 942, 94 S.Ct. 1948, 40 L.Ed.2d 294 (1973); McGuff v. State, 49 Ala.App. 88, 268 So.2d 868, cert. denied, 289 Ala. 746, 268 So.2d 877 (1972); McCary v. State, 47 Ala.App. 630, 259 So.2d 683 (1972); Allen v. State, 47 Ala.App. 566, 258 So.2d 909 (1972).

Nevertheless we have considered the identification procedures employed in the preliminary hearing and in light of the totality of the facts and those factors set out in Childers v. State, Ala.Cr.App., 339 So.2d 597, cert. denied, Ala., 339 So.2d 601 (1976). It is our finding and conclusion that the identification procedures employed were not so impermissibly suggestive as to give rise to any substantial likelihood of irreparable misidentification. Thomas v. State, Ala.Cr.App., 332 So.2d 168, cert. denied, Ala., 332 So.2d 171 (1976).

II

The appellant further objects to the action of the trial court in permitting the jury to carry pads and notes with them into the jury room. The trial judge overruled the objection of the appellant to this procedure and stated that he “had charged them that was for their own use”.

This court in Hooks v. State, 45 Ala.App. 221, 228 So.2d 833 (1969) quoted the rule set out in Denson v. Stanley, 17 Ala.App. 198, 84 So. 770 (1918) that the taking of notes by a juror is not objectionable so long as it does not cause delay or undue consumption of time. Here there was no showing that the notes were used by the jurors during their deliberations and no motion for a new trial was filed to protest this action. See Hooks, supra. In the absence of a showing that the notes were of an improper character or were prejudicial to the accused we will not presume error. 23A C.J.S. Criminal Law § 1367, page 972.

III

In conclusion, the appellant submits that the testimony of Sergeant Barefield concerning the conversation he had with the appellant was inadmissible under the doctrine of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Sergeant Barefield’s testimony disclosed that he talked with the appellant on July 1st in the Jefferson County Jail. At that time, Barefield made no promise of reward, applied no threat or coercion and fully informed the appellant of his Miranda rights. Sergeant Barefield asked the appellant if he would like to talk about the robbery. The appellant denied knowing anything about the robbery and stated that he “didn’t want to make any kind of statements” to Sergeant Barefield. The sergeant continued to talk with the appellant. Barefield asked the appellant if he wanted to talk to him “about this particular incident that I had downtown, and that I was in the process of dropping a warrant on him for robbery”.

“I told him in particular where the robbery went down and what date and time and description of the two people involved. And I told him that before I made any decision, I had to get to the bottom of it. So we had a conversation at which time he told me that he didn’t do the robbery, but that I needed to talk to, I believe it was Larry Bracey.”

Sergeant Barefield subsequently discovered that Bracey and the appellant were “companions” and had been arrested on the same day.

The procedures mandated by Miranda v. Arizona, supra, apply only to confessions and statements by the accused incriminating himself. The appellant made no inculpatory statement in the nature of a confession during his conversation with Sergeant Barefield. Indeed, the appellant maintained his innocence and implicated another in the commission of the robbery. Such statements are not within the scope and coverage of the Miranda rule requiring a proper predicate for a confession. Campbell v. State, Ala.Cr.App., 341 So.2d 735, cert. denied, Ala., 341 So.2d 742 (1977).

“A statement to amount to a confession must be inculpatory and not exculpatory in its nature; exculpatory statements are not within the common law and statutory rules relating to confessions. A denial of guilt or a claim of innocence obviously is not a confession of guilt.” 23 C.J.S., Criminal Law § 816b, page 156. See also Anderson v. State, 19 Ala.App. 606, 99 So. 778 (1924); 6 Alabama Digest, Criminal Law § 516.

Additionally we note that there was no objection made to the testimony of Sergeant Barefield until after both the state and the defendant had presented all of their evidence and rested their case.

For either of the reasons set forth the action of the trial court in permitting the testimony of Sergeant Barefield without objection was not error.

We have carefully studied the complete record and find no error adverse to the substantial or procedural rights of the appellant. Therefore the judgment of conviction is

AFFIRMED.

All Judges concur.


text:
    Mack A. GOLDEN v. STATE.
    8 Div. 921.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Walter Allen Davis for Sullins & Davis, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Elizabeth N. Petree, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Madison County charged the appellant, Mack A. Golden, with first degree murder of James Ricketts, by shooting him with a pistol. Appellant entered pleas of not guilty, and not guilty by reason of insanity. The jury found the appellant guilty as charged and fixed punishment at imprisonment for life. The trial court entered judgment in accordance with the verdict.

Appellant was at all proceedings in the trial court represented by counsel and is here represented by the same counsel appointed by the court. This appeal was submitted to this Court on briefs.

The State’s evidence tended to prove the following: that the deceased, Mr. James Ricketts, was 82 years of age, in good health, mentally alert, and on October 2, 1975 resided at 901 Maysville Road in the City of Huntsville, Madison County, where he had lived for about fifty years; that one Troy Henson had recently painted the house in which deceased lived, and had observed that deceased kept a roll of money in a closet in the kitchen of his house.

State’s evidence further tended to prove that on the night of October 2, 1975 Troy Henson, Kenneth Melvin Rice- and the appellant were together, and decided to go to the house of the deceased and get the money; that Rice and the appellant went in the house of the deceased, visited with him for awhile, and used a 38 pistol of the deceased with which to rob him; that during the robbery the deceased was shot and as a result of the shooting he had three wounds on his body, one in the abdomen, one in his upper chest, and one in his left hand; that as a result of the shooting the deceased died about thirty hours later; that the money was not found; that Mr. Ricketts’ pistol was taken by the appellant.

State’s evidence further tended to show that several months after the shooting of Mr. Ricketts the law enforcement officers recovered the 38 pistol, and the appellant was arrested; that appellant, after being informed of all his constitutional rights, voluntarily made a confession, stating his involvement in the shooting of deceased, that the shooting was an accident due to the fact that while the appellant was holding the pistol on the deceased, the deceased grabbed the pistol, and during the ensuing struggle over the possession of the pistol it went off and accidentally wounded the deceased, that after the struggle the appellant thought of having to go to prison and just shot the deceased again.

Appellant’s confession was admitted as evidence after a full hearing out of the hearing of the jury, and a determination by the trial judge based on sufficient evidence that the appellant was intelligent enough to know, and did know, the contents of the confession. Appellant was given his constitutional rights before he made the confession; that he could read and write, and he voluntarily signed his name to each page of the confession; that no threats, promises, offers of reward or other inducements were made to him by the officers at any time before or during the time he gave and signed the confession.

The appellant, on his behalf, offered evidence that he remembered nothing of the facts surrounding the shooting of the deceased.

In support of his plea of insanity, appellant submitted testimony of his mother, stepmother, father, and Dr. Goodson, Clinical Director, Madison County Mental Hospital Center, and the medical record of appellant’s stay in the Huntsville Hospital.

In rebuttal the State offered testimony of an acquaintance of appellant, and testimony of two police officers, two probation officers, and Dr. John C. McMillian, Psychologist, that appellant was not insane at the time of the shooting of the deceased.

There being a conflict in the evidence, we hold that under the pleas of not guilty, and not guilty by reason of insanity, the trial court properly refused to give the general charge requested by appellant, and after fully charging the jury on the law raised by the evidence and pleas, submitted both issues to the jury for its determination, and that the jury verdict of guilty as charged is fully supported by the evidence. Cooper v. State, 277 Ala. 200, 168 So.2d 231; Divine v. State, 285 Ala. 488, 234 So.2d 28.

Appellant in his brief claims that his plea of insanity was prejudiced by remarks of the trial judge. In the record before us we find the following:

“(Whereupon, Mr. Sullins continued to address the jury in closing statement; at which time, the following occurred:)
“MR. HOOPER: I object to this; because he is getting in areas and quoting the law that is not the law, he is quoting law to the jury that’s—
“MR. SULLINS: I am not quoting the law to the jury.
“THE COURT: You have told the jury what the Court will do in one situation and if you continue your argument, I will tell them what I will do.
“MR. SULLINS: All right.
“THE COURT: And based upon what you have already told them I probably should, anyway, because under the evidence as the Court understands it in the case, the testimony is that the Defendant is presently sane and based upon that testimony the Court would — the Defendant would be free.
“MR. DAVIS: Your Honor, if we might interject here, I don’t believe the evidence clearly shows he is sane. I think some layman testified he is sane.
“THE COURT: What are you telling the jury is that what the Court is going to do and that is not exactly the case.
“MR. DAVIS: I believe the evidence shows the only psychiatrist here says it warrants further consideration. We object to the Court’s remarks.
“MR. SULLINS: Be that as it may.
“THE COURT: I will take it and conduct an enquiry based upon that which is presented here in this Courtroom, see? Now, if you are trying to give the jury some other impression of what this Court will do, then, I will inform you of that, because that is what will happen.”

The above quotation is a conversation between the trial judge and counsel who represented the appellant. It does not appear from the record before us that the remarks of the trial judge to appellant’s counsel were made in the hearing of the jury. There is no ruling of the trial court presented to this Court for its consideration. Nichols v. State, 267 Ala. 217, 100 So.2d 750.

We have searched the record for any errors prejudicial to the defendant and have found none.

The judgment of the trial court should be affirmed.

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

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    AVILA SOUTH CONDOMINIUM ASSOCIATION, etc., et al., Appellants, v. KAPPA CORPORATION et al., Appellees.
    No. 48753.
    Supreme Court of Florida.
    May 4, 1976.
   Upon consideration of the Motion for Remand filed by attorneys for appellants, it is ordered by the Court that said Motion is granted and this case is hereby remanded to the Circuit Court in and for Dade County, Florida with directions to reinstate Plaintiff’s Complaint as to Count I.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD and HATCHETT, JJ., concur.