text:
    Willie CARR v. STATE.
    6 Div. 858.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Rehearing Denied Oct. 1, 1975.

      Robert R. Bryan, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at twenty years in the penitentiary. At arraignment, attended by counsel, he pleaded not guilty. He was adjudged guilty and sentenced in accordance with the verdict of the jury. He gave notice of appeal and was found to be indigent. He was furnished a free transcript but is represented by new and retained courfsel on this appeal.

Appellant did not testify in his behalf but offered testimony in support of his alibi.

On November 8, 1973, between the hours of 1:45 and 2:00 o’clock in the afternoon, the Dolly Madison Thrift Store which was then located at 1101 North Twenty-Sixth Street was robbed by two Negro men. Mrs. Sue Hollis was working in the bakery department and was alone at the time the two men came in. Another girl who was employed at the store had gone to the bank to make a deposit. She described one of the men as being two to three inches shorter than the other one. She stated that both men were wearing three-quarter length beige colored coats. She said both had on hats, — “brownish-beige, pooched-out hats with a little brim across the front.”

Mrs. Hollis further testified that both men carried open knives, but the smaller of the two did all the talking. She said he grabbed the throat of her uniform and said, “ You_, you say anything and I’ll cut your throat from here to here.” He told her to open the cash register and go to the back of the store and lie on the floor. She opened the cash register and went to the back followed by this man. The tall man went behind the counter. When she got to the back, she kind of stooped down and the man said, “Lay down, —, and give me those rings and that watch you have on.” She described the rings as a wedding band and an engagement ring and they were worth a total of six hundred dollars, that the watch was a Hamilton watch, and it was worth forty-five dollars. After taking her jewelry the man walked toward the front of the store. He returned in a few seconds and said, “ — , come open the register.” She got up and went to the register. The register was jammed and she could not open it. He told her, “If you don’t open the register, I am going to cut your throat.” She said, “Well, I am sorry but I can’t open it.” They returned to the back and she got on the floor. The same man came back to her for the third time and said, “Where’s your purse?” She told him where her purse was located and he got her purse which she said was worth twenty-five to thirty dollars. She had forty dollars in change in her purse. Mrs. Hollis further testified that she had not seen her rings, watch, purse or money since the day of the robbery.

After the robbers left she went to the cash register and found it empty. She called the police and several officers responded immediately. She gave them a description of the robbers and told them the robbery lasted a good five minutes during which time she got a good look at them in broad daylight in a well lighted store.

The next day an officer brought her a number of photographs and she immediately identified appellant as the man who put the knife to her throat and threatened her life and she also identified the tall man who turned out to be one Percy McAlpine. She subsequently attended a lineup and identified the two men who robbed her on November 8, 1973. She also made a positive in-court identification of appellant.

Allen Cabiness testified that every other day he delivered ice to the Dolly Madison Thrift Company and that on November 8, 1973, around 1:30 p. m., he went to this place to make a delivery and his driver drove the truck right up to the door. He stayed in the truck while the driver went inside the store. While he was sitting in the truck, he observed two black males come out of the place and go down the street. He did not observe them long enough to give a description of them. His driver came back to the truck and told him no one was in the store. He got out and walked to the back and found a woman lying on the floor. That this woman looked around and saw him coming and said, “Oh, am I glad to see you.” He asked her what happened and she said, “They robbed me.”

Mr. B. J. Mann, a patrolman with the Birmingham Police Department, was on special detail investigating robberies and house burglaries and was riding in an unmarked car. He heard a radio dispatch at 1:45 p. m. describing a robbery and giving the tag number and the description of a white Mercury automobile and bearing tag number 25-22489, 1973, Alabama. He spotted the automobile in the 3800 block of First Avenue, North, eastbound. He was westbound and turned over into the eastbound lane. He noticed two or three units following this car. He stopped the car at 2:15 p. m. He was present when other officers arrested three Negroes who were riding in this car.

Officer Mann made an inventory search of the Mercury automobile. From the record:

“Q. What were the articles ?
A. I have listed one blue sweater; two pair mens pants, one brown pair, one green pair; - two shirts; one pair shoes ; one maroon jacket, sweater type jacket; one plaid coat, half length; one plastic raincoat; one cream jacket; one maroon flop hat; one spare tire assembly; one bumper jack; one four-way lug wrench; one glass with 7-Up on the glass; one empty watch box; five pounds of Irish potatoes; and one gallon can,
Q. Do you recall if any individual taken to the City Jail, or wherever they were taken, had on a cream colored jacket?
A. Yes, sir.”

Officer Mann further testified that the rear window on the Mercury was a plastic window and was taped up and this was described in the radio dispatch that he picked up. He stated he did not find the rings, watch, purse or any money in the car when he was making the inventory search.

Mr. Sam Monteith was called as a witness for the state. He testified that he owned and operated the Springaire Cleaning Center located at 3916 Tenth Avenue, North, and that his place was next door to the East Birmingham Variety Store; that he was at his place of business on November 8, 1973, around 1:30 p. m., when a Mrs. Pearline Brown came in his place to wait until the East Birmingham Variety Store, where she was employed, opened for business. He stated that Mrs. Brown was ill in the hospital at the time of appellant’s trial.

He further testified that he had a conversation with Mrs. Brown on that occasion concerning three black men and as a result of that conversation, he noticed three black males get in a white Mercury convertible automobile and that the rear window was taped up with silver or masking tape, the complete window. He got the tag number of the automobile but at appellant’s trial could remember only the first two numbers denoting the county. The first two numbers were “25.” He called the Birmingham Police Department and gave an officer the tag number and a description of the automobile and told the officers the car was occupied by three black males. He stated that one of the men had on a knit cap and one had on a hat but he didn’t know about the third man, and it seemed to him they were wearing some kind of blousy shirts.

On direct examination Mr. Monteith testified that he had not seen either of these three men prior to that date. On cross-examination the following occurred:

“Q. (BY MR. HILLIARD) Mr. Mon-teith, have you seen the person to my left before?
A. Yes.
Q. Would it be a fair statement to say you have seen him several times ?
A. I think so, yes.
Q. Would you have seen him — do you know where you have seen him ?
A. Well, I saw him in court last year and — may I ask him a question ?
THE COURT: No, we had better be careful about that.
THE WITNESS: Can I say I think so ?
THE COURT: Yes, you can say that.
MR. HILLIARD: Well, Your Honor, I will permit him to ask a question.
THE COURT: Go ahead, ask the question then.
THE WITNESS: Did you used to be a customer of mine, Willie?
THE DEFENDANT: Yes, sir, I did.
THE WITNESS: When we first bought the place, it seems like we had a Willie Carr and I believe I remember him from that.
Q. Was Willie Carr one of the three persons you saw that day ?
A. Right. I say I didn’t see them that close. They were scuffling and shuffling to get away.
MR. HILLIARD : All right, thank you.”

After the above testimony was given the prosecutor told the court that he had been taken by surprise and asked the court to allow him to cross-examine the witness, and he was allowed to do so. The prosecutor asked him if he had testified previously in this case and he answered, “yes, sir.” He was permitted to read a transcription of his previous testimony and it developed that this witness identified appellant as one of the three black males he saw get in the Mercury automobile above described.

Mr. Howard B. Felts, a Detective with the Birmingham Police Department, testified he was assigned to the robbery division and was in charge of the investigation of the robbery of the Dolly Madison Thrift Store. He stated he got the complete number of the Mercury automobile from Mr. Monteith and the number was “25-22489.” After the suspects were arrested, he conducted a lineup which was viewed by Mrs. Sue Hollis and she immediately identified appellant as one of the robbers and she also identified the other robber but the court limited the lineup testimony to the identification of appellant. Mr. Felts also testified that Mrs. Hollis positively identified appellant from a stack of photographs viewed by her.

The state rested and appellant’s counsel moved to exclude the state’s evidence on general grounds. The court overruled the motion.

The first alibi witness for appellant was a local attorney. He testified that he knew appellant and Percy McAlpine. He testified they were waiting in his office during his lunch hour. That he represented both appellant and McAlpine and that he waived the McAlpine case between 12:30 and 1:00 o’clock on November 8, 1973; that he had to go back to Federal court that afternoon and he rode in the car with appellant and McAlpine to the Federal Building and it could have been 12:45 p. m. when he got out of the car at the Federal Building. This attorney said he did not know a man by the name of Per-nal Weatherington.

Pernell Weatherington testified that he knew appellant and Percy McAlpine and that the night before November 8, 1973, McAlpine spent the night at his house. The next morning they called appellant to carry them to see a counselor at the Spain Rehabilitation Clinic. That a little after 11:00 o’clock they went to the office of the attorney representing McAlpine as he had to be in court that day. The attorney was not in and they were told to wait. All three sat in the office until the attorney arrived. When the attorney came in, they went to Judge Gwin's court where Mc-Alpine’s case was waived. The attorney kept telling them he had to be in Federal Court and he was running late. He denied that the attorney rode with them to the Federal Building.

This witness further testified after he, appellant and McAlpine were arrested they were placed in a lineup with three other men and he could hear an officer and a lady talking. That he heard the lady tell the officer that she was not certain that anyone in the lineup was involved in robbing her and the officer told her the two heavy men were the robbers and that she then identified appellant and McAlpine.

On cross-examination he testified that he clearly remembered that they did not drive McAlpine’s attorney to the Federal Court on the day McAlpine’s case was waived to the grand jury. He further testified that in 1971, he was convicted of aggravated assault and served time in Ft. Leavenworth, Kansas. He stated that on November 8, 1973, they did not go to the East Birmingham Variety Store where Mrs. Peraline Brown was working.

By stipulation the testimony of Mrs. Pearline Brown given at the trial of this case at a previous term was admitted in evidence. In that trial Mrs. Brown positively identified appellant as one of two Negroes who came in the East Birmingham Variety Store where she was employed on November 8, 1973, and she also identified McAlpine as the other one. She said they were wearing beige colored hats and they had on jackets which were three-quarters in length. She identified a photograph of Pernell Weatherington as being the man on the outside of the store.

Mrs. Hattie Mae Thomas testified for the state. She stated that on November 8, 1973, she went with her daughter to the East Birmingham Variety Store where Mrs. Pearline Brown worked. That she was in the store at about 12:30 or a quarter to one. There were some black males in the store at the time. She .was asked to look around the courtroom to see if she could identify any of the individuals she saw in the store that day. She pointed to appellant.

On cross-examination she was asked the height of the two Negroes she saw in the store that day and she said the tallest one was close to six feet and the shortest one was about five feet six. She said they had on hats and one had on a beige colored coat.

In the light of Pernell Weatherington’s testimony concerning the lineup we think it well to quote Mrs. Hollis’ testimony in reference thereto:

“Q. All right. Now at the lineup — at the time you were at the lineup, did you —at any time did anyone say to you anything ?
A. Yes, uh-huh.
Q. All right. Now who was that person?
A. Sgt. Felts.
Q. Was anyone else in the room with you when you looked through the lineup?
A. Yes. There were several policemen.
Q. Several policemen.
A. Uh-huh.
Q. Did either one of them ever say anything to you ?
A. No.
Q. What did Detective Felts say to you?
A. He told me to look at the lineup, take my time and make sure if I saw the right ones—
Q. How many times did he tell you that?
A. Just told me one time when I first went in.
Q. Did he say anything else to you during the time you were in the room ?
A. No, he just told me to be sure.
Q. To be sure?
A. To be sure.
Q. All right. Now at any time — did you at any time tell him anything while you were in the room ?
A. I just picked out the two that was the ones.
Q. All right. You say they were the ones. Did you tell him — what did you tell him?
A. I just told him that one and that one. I don’t remember now what numbers they were. I did at the time but I don’t now.
Q. All right. Did he say anything else to you?
A. No.”

This case was vigorously tried on both sides and appellant certainly had his day in court. A fair trial is all he was entitled to and he got one and that is all he could expect.

There was no motion for a new trial; there was no request for the affirmative charge, and no exceptions were reserved to the court’s oral charge to the jury. There was a motion to exclude the state’s evidence but no specific grounds were alleged. The evidence in this case presented a straight jury question as to appellant’s guilt.

In Young v. State, 283 Ala. 676, 220 So.2d 843, the Supreme Court said:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

We have repeatedly held that alibi testimony, like all other evidence in a criminal prosecution, is an issue to be determined by the jury. The jury resolved this issue against appellant, and that leaves little to be said. Brown v. State, 229 Ala. 58, 155 So. 358; Price v. State, 53 Ala.App. 465, 301 So.2d 230; Mosley v. State, Ala.App., 304 So.2d 613.

It is established law in this state that where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court is without warrant to disturb the verdict. Whether there is evidence of the defendant’s guilt is a question of law and its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Bolton v. State, 21 Ala.App. 373, 108 So. 631; Washington v. State, Ala.App., 313 So.2d 544; Taylor v. State, Ala.App., 314 So.2d 104.

Appellant claims that the lineup was illegally constituted. He bases this claim on the testimony of a convicted felon. The other testimony in the record completely refutes this claim.

Conflicting evidence always presents a question for the jury as to the guilt of the defendant unless the evidence palpably fails to make out a prima facie case. The evidence in this case overwhelmingly pointed to the guilt of appellant. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Jones v. State, Ala.App., 307 So.2d 59.

The victim of robbery viewed appellant for five minutes in a well lighted store in broad daylight, in close quarters on three occasions, without disguise. Her testimony was positive and unequivocal. Rhodes v. State, 50 Ala.App. 661, 282 So.2d 100.

In Hill v. State, 207 Ala. 444, 93 So. 460, the Supreme Court held:

“Circumstantial evidence may afford satisfactory proof of the corpus delicti; and if any facts are shown from which the jury may reasonably infer that the crime has been committed, the question must be submitted to the jury, and other evidence tending to implicate the accused is thereby rendered admissible.”

Appellant claims that his constitutional rights were infringed on when his counsel agreed to let a witness ask him a question during the trial. We do not agree with appellant’s contention. This was a matter of trial strategy and did not incriminate appellant in the slightest degree.

We have carefully examined the entire record and have found no reversible error. The judgment of conviction is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    David GRAY, alias v. STATE.
    7 Div. 367.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.

      C. R. D. Burns, Jr., Gadsen, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery — 36 years imprisonment.

Edward Robinson testified that on December 30, 1974, on returning home from work, he was attacked by two men who were waiting inside his home. He identified one of the men as Junior Williams, a neighbor, and identified the other as the appellant.

Robinson further testified in part a s follows:

“A. Well, David Gray hit me across the head with a club that they had made just about this long. It wasn’t completely round. It was kind of beveled like. They had trimmed the handled so it wouldn’t slip out of his hand. He hit me four or five times across the head with it just as hard as he could hit, but Junior grabbed my hand and pulled me on in the house and said ‘come on in here’ and I said these very words, I said ‘Junior, what in the devil are you all doing in my house ?’
“Q. All right, then what happened?
“A. Well, he seen he couldn’t knock me out. Junior run up under me and snatched my feet out from under me and I fell across in front of my fireplace. Well, David grabbed this rifle, my own rifle, and held it just about that close to my head and he said ‘shut up, shut up.’ Said ‘be quiet or we will kill you.’ ”

He made a very positive in-court identification of the appellant. At the time of the robbery, he did not know the appellant’s name, but learned it later. He also identified Gray in a police lineup. Robinson testified that the two assailants robbed him of his watch, his color television set, two shotguns, a .22 caliber rifle, his billfold and his 1967 Cadillac automobile.

On March 4, 1975, the date of the trial, the appellant filed a motion for change of venue on the ground that pretrial newspaper articles from December 31, 1974, through January 4, 1975, “have so prejudiced any possible jury that this defendant cannot receive a fair trial in this County.” The trial court heard arguments on the motion and overruled it. Copies of three newspaper articles were admitted into evidence on such hearing.

I

The appellant contends the trial court erred in overruling his motion for a change of venue.

The instant indictment was filed on February 4, 1975, the appellant was arraigned February 20, Í975, and the motion for a change of venue was not filed until the day of trial, March 4, 1975. We do not think the trial court committed error in overruling the motion. It could be said that the motion was not made as early as practicable before trial as required by Title 15, § 267, Code of Alabama 1940, and that no reason was shown by the appellant for failure to file prior to the actual date of the trial. Byers v. State, 105 Ala. 31, 16 So. 716 (1894); Kelly v. State, 160 Ala. 48, 49 So. 535 (1909). It could also be said that the application lacked specificity as required by the statute.

The trial court admitted the appellant’s exhibits into evidence and heard his attorney’s argument and overruled the motion without specifying his grounds. While the trial court may have assigned any number of reasons for so ruling, it is obvious to this Court that on the merits of the motion, absolutely no evidence was presented to the trial court to support the granting of the motion.

The newspaper articles objectively reported the commission of a cold and calloused crime. The articles in the record do not carry inflammatory headlines, nor do they editorialize on the facts in a manner to inflame the community or create an atmosphere of prejudice. The three articles were published in the Gadsden Times on December 31, 1974, and on January 2 and 3, 1975. The trial was held two months later and there is no showing of other articles published in the interim that had any prejudicial effect upon the jury.

It should be specifically noted that none of the three articles relied upon by the defense in any way mention the appellant by name or otherwise describe him. The mere fact that publicity relating to the commission of a crime has been dispersed does not, in itself, indicate that a defendant cannot obtain a fair trial. Beecher v. State, 288 Ala. 1, 256 So.2d 154 (1971). The appellant failed to meet the burden of proof required to obtain a change of venue and the trial court properly overruled such motion. Aycock v. State, 50 Ala.App. 130, 277 So.2d 404 (1973). Acoff v. State, 50 Ala.App. 206, 278 So.2d 210 (1973).

II

Later in the trial, the appellant’s attorney moved for a mistrial on the grounds of an article published in the Gadsden Times dated March 4, 1975, which was introduced into evidence as Defendant’s Exhibit 4. That article concerned the conviction of Edward Williams, Jr., the accomplice of the appellant. Counsel for the appellant claims the following sentence in that article prejudiced his client:

“Trial of Williams companion in the case is also set for this week.”

Counsel for appellant argued that since the jury had not been sequestered it had read the article.

We do not find the newspaper article to be prejudicial in any way to the appellant. It does not name him or otherwise identify him. The mere fact that the jury was not sequestered is no proof that any member read the article or was in any way prejudiced by it. The jury was not sequestered by agreement of the appellant and his counsel. The appellant made no showing nor offer to show any prejudice resulted from the article, but instead relies upon the mere publication of the article and his deduction that it may have been read and may have caused prejudice. This is insufficient to put the trial court in error. Aycock v. State, supra.

III

The appellant objected to admission of evidence concerning his identification from a lineup which took place at the Gadsden Police Department. We find no error on the part of the trial court in this regard for several reasons. We do not find the lineup to have been tainted or held under such circumstances to show it to be unfairly constituted, neither was it conducted in a suggestive manner as to be conducive to mistaken identification. The testimony of the officers present and of Mr. Robinson clearly indicate that no suggestion was made to him in any manner prior to his identification of the appellant. Neither can the appellant complain of denial of counsel on a preindictment lineup. In any event, he signed a waiver of right to counsel prior to participating in the lineup. While the appellant’s attorney, during trial, contested the waiver as having been given involuntarily, the evidence does not support such contention.

Testimony was taken on this point in chambers outside the presence of the jury wherein the appellant testified in pertinent part as follows:

“A. ... So when I come out there he handed me this paper and told me what it was and I told him that I wanted to have an attorney present before I signed it. He told me it wasn’t necessary for me to have an attorney present, for me to go on and sign it. So I took the paper and signed it because I knowed that I hadn’t did nothing; that it didn’t make no difference if they did put me in a line-up. So I signed it." (Emphasis supplied.)

Officer Don Longshore, an investigator with the Etowah County Sheriff’s Department, then testified as follows:

“A. Well, I explained his rights to him just like it is right here and he signed it.
“Q. When you say ‘explained your rights’ what rights did you explain ?
“A. That he had the right to an attorney and he was doing it on his free voluntary will.
“Q. All right, sir, and did you ask him if he understood that? Did you explain ?
“A. Yes.
“Q. He said he understood it ?
“A. Right.
“Q. And then he voluntarily signed it?
“A. Right.”

Captain Richard Moore of the Gadsden Police Department, who conducted the lineup, testified as to the procedure used. He further testified that he was present when Deputy Longshore advised the appellant of his rights, that the appellant signed the waiver of the right to counsel, and he witnessed it. Therefore, even if there had been a constitutional right to counsel on a preindictment lineup, the trial court certainly had substantial evidence to support his finding that the appellant had knowingly and voluntarily waived counsel.

We find no error committed by the trial court relative to the lineup identification and admission of evidence concerning such. Thomas v. State, 50 Ala.App. 227, 278 So.2d 230 (1973); Houston v. State, 49 Ala.App. 403, 272 So.2d 610 (1973); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967).

IV

During the course of the trial, the defense called Edward Williams, Jr., as a witness. Williams admitted participating in the robbery of Ed Robinson, who is also known by the nickname of Attalla Red. He testified as to the details of breaking into Robinson’s home and robbing him when he' returned home from work. Williams testified, however, that David Gray was not with him on that occasion, that “. . . me and this other dude got together and went in his house.” He stated that the appellant was not involved in the robbery and only assisted him at a later time in finding someone to purchase the stolen television set.

He testified that he had given the police a confession implicating David Gray as being his accomplice, and that he had only used Gray’s name, “. . .in order for that other dude to leave town.” He named the “other dude” as being Leroy Williams.

On cross examination, he was questioned at length concerning Leroy Williams. Although the witness stated that he had known the appellant a year, and had only just met Leroy Williams once prior to the robbery, he nevertheless had implicated his friend Gray in the robbery in order to allow the relative stranger, Leroy Williams, to leave town. It is obvious that the jury did not believe this story anymore than this Court does.

The witness could not give any description of Leroy Williams, did not know where he lived, did not know where he grew up, did not know where he went to school, did not know where he was employed, did not know whether he was married, and could not give any distinguishing characteristics about him because, “. . . I wasn’t looking at him that hard.”

The appellant testified that Leroy Williams was a cousin of Ed Williams, Jr. Ed Williams, however, stated that Leroy Williams was no kin to him and was not his first cousin. Later, upon being told that the appellant had stated otherwise, he changed his testimony stating that Leroy Williams could be his cousin, however, he did not know whether or not he was his cousin.

It was brought out on cross examination that Ed Williams, Jr., alias, Junior Williams, had just been tried that morning in the same circuit court on charges of robbery, burglary and assault growing out of the same facts in the instant case and had been sentenced to 35 years in the penitentiary.

On the next day of. the trial, the State recalled Williams to the stand and the following transpired:

“Q. Mr. Williams, I will ask you if yesterday when you went back up to your jail cell upstairs if you had occasion to talk with one of the deputy sheriff’s on your way back up to the jail ?
“A. By who ?
“Q. Deputy sheriff James Hayes. Did you talk with him on the way back up to yom cell yesterday ?
“A. No, I didn’t talk to no James Hayes. I don’t even know no James Hayes.
“Q. A Deputy Sheriff that took you back to your cell yesterday. Did you talk with a deputy sheriff?
“A. No, I did not talk to no deputy.
“Q. You didn’t talk to anybody ?
“A. No.”

The State then called Deputy Sheriff James Hayes in rebuttal and the following occurred:

“Q. All right, sir, I will ask you if yesterday after Edward Williams testified in this case if you had occasion to take him back upstairs to his cell ?
“A. Yes, sir, I did.
“Q. I will ask you if there was a conversation between you and he ?
“A. Yes, sir.
“Q. All right, sir, and if you would please tell us that conversation.
“MR. BURNS: Judge, I object to any conversation that transpired. Mr. Williams was no longer in the courtroom. So therefore that would be hearsay.
“DEPUTY DISTRICT ATTORNEY CARNES: Your Honor, this is for the purpose of impeaching the witness who has denied he even had a conversation.
“THE COURT: Overrule.
“MR. BURNS: We except to your Honor’s ruling.
“A. On the elevator going back up he was laughing and I said ‘man, you are laughing a lot, taking this easy to have done got 35 years.’ He said ‘what the hell, I will be out in 10 years.’ So I said ‘well, was Gray with you or not when all this happened?’ And he said ‘well, hell yeah. No need of both of us going.’
“DEPUTY DISTRICT ATTORNEY CARNES: Your witness.
“MR. BURNS: We move that all that be striken from the record. The fact that we don’t have the right to cross-examine the declaring of that statement. It’s hearsay.
“THE COURT: Overrule.
“MR. BURNS: We except to your Honor’s ruling.”

The appellant claims that such testimony was hearsay and denied him the right to cross examine the declarant. Of course, the witness Williams had just left the witness stand when Deputy Hayes was put on in rebuttal, and Williams could have easily been recalled to the stand by the appellant and examined concerning the incident.

It should be noted that the testimony in question was not presented by the State to prove its case in chief. It was the defense that called Williams to the stand to testify that someone other than the appellant committed the robbery with him. If he immediately left the courtroom and made a statement to a deputy sheriff inconsistent with his prior statement on the witness stand, it is our opinion the State had a right to introduce the inconsistent statement for the purpose of impeachment of Williams as a witness. The contradictory statement of Williams goes to his credibility as a witness, and for that purpose, was admissible. 98 C.J.S. Witnesses § 614; Sims v. Struthers, 267 Ala. 80 (at p. 87), 100 So.2d 23 (1958); 19A Alabama Digest, Witnesses ®=>391.

The general rule is that a witness, who on cross examination denies making a statement of a material fact, may be impeached by use of another witness to whom the inconsistent statement was made. To introduce such contradictory statement, a predicate must be laid. We believe by asking Williams if he talked with Deputy Hayes the day before on his way back to the cell, and by Williams denying talking to Hayes or anyone else at that time and place, a proper predicate was laid to call Deputy Hayes for impeachment purposes. Bryson v. State, 38 Ala.App. 517, 84 So.2d 782 (1956).

As stated in Lanier v. State, 43 Ala.App. 38, 179 So.2d 167 (1965), by the late Presiding Judge Price of this Court:

“A witness may be cross examined as to whether he made certain statements before the grand jury which are contradictory to those made on the trial. An affirmative answer tends to impeach him. If he denies making the prior statement members of the grand jury may be called as impeaching witnesses. Bryson v. State, 38 Ala.App. 517, 84 So.2d 782. The sustaining of the state’s objection to the above question was reversible error. Davis v. State, 30 Ala.App. 562, 10 So.2d 35; Williams v. State, 32 Ala.App. 597, 28 So.2d 731.”

If the question put to the witness is not collateral or irrelevant, the rule is as stated in Frazier v. State, 48 Ala.App. 210 (at p. 213), 263 So.2d 511 (1972):

“A witness may not ordinarily testify to acts or statements made by third parties which occur outside the presence or hearing of the defendant. 29 Am.Jr.2d, Evidence, Section 610. However, for impeachment purposes, a statement may be offered to prove that one made a particular assertion, rather than to prove the truth of the statement, and the evidence is not hearsay. ...”

The proper remedy for the appellant would have been to request the trial court to instruct the jury to only consider Deputy Hayes’ testimony for impeachment purposes, which he did not do. Sims v. Strut hers, supra.

Affirmed.

All the Judges concur.


author: HARRIS, Judge.

text:
    Thomas RIDER v. STATE.
    1 Div. 605.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.

      Claude E. Bankester, Bay Minette, for appellant.
    William J. Baxley, Atty. Gen., and J. Brent Thornley, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

This case involves a “hit and run” accident. Omitting the formal parts the .indictment upon which appellant was convicted reads as follows:

“The Grand Jury of said County charge that before finding this indictment on, to-wit: March 3, 1974, .Thomas Rider, the owner of a motor vehicle involved in an accident resulting in injury to Don McCormick, did fail to immediately stop such vehicle at the scene of such accident, did also fail to give his name and address and the registration license number of such vehicle and did fail to render to said person in said accident reasonable assistance, including the carrying of such injured person to a physician or surgeon for medical or surgical treatment, it then being apparent that such treatment was necessary, against the peace and dignity of the State of Alabama.”

Prior to arraignment on October 29, 1974, appellant was found to be indigent, and counsel was appointed to represent him at arraignment and trial. He pleaded not guilty. The jury returned a verdict finding appellant guilty as charged and the court sentenced him to three years imprisonment in the penitentiary. He gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

Appellant filed a pro se assignments of error and one of the grounds alleged that he was not represented by competent counsel during any phase of the criminal proceedings against him. Trial counsel filed a motion for leave to withdraw from the case. This motion was granted and the court appointed another attorney to handle this appeal.

Appellant was specifically charged with violating Title 36, Section 128, Code of Alabama 1940, which, in pertinent part, reads as follows:

“The driver of any vehicle involved in an accident resulting in injury to or death of any person, or damage to a vehicle, shall immediately stop such vehicle at the scene of such accident, and shall also give his name and address, and the registration license number of his vehicle, and shall render to any person injured in such accident reasonable assistance, including the carrying of such injured person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary.”

The evidence for the state is uncontra-dicted that on the afternoon of March 3, 1974, a boy, Don McCormick, 18 years of age, was riding a motor bike on Old Highway 98 going south. He was riding on the paved portion of the highway as close to the shoulder of the road as possible. He described the accident in these words:

“I was headed south on my bicycle and there was a blue Plymouth — old Plymouth — in the sixties. It was headed west from east and it turned going north on Old Highway 98. This car came into my lane — I was headed south, came straight at me and I had no where to go; I tried to get out of the highway to the left and could not.”

He further testified that the car came all the way across the highway into his lane and headed straight into him. He was knocked off his bicycle and suffered a compound fracture of the left leg. He said the accident happened about 2:00 o’clock in the afternoon and it was perfectly clear spring weather. He stated that the car did not stop and offer to render any aid to him. He did not have a chance to see the occupants in the car to be able to identify them but thought there were three persons in the car and remembered seeing a Negro in the back seat. He was carried by ambulance to the hospital.

Dennis Ray Brown was called as a witness for the state. He stated that appellant came to his home on March 3, 1974, and picked him up. That appellant was driving a Navy blue Plymouth automobile and that he struck a boy riding a bicycle in Daphne, Baldwin County, Alabama, and kept going. That he asked appellant if he was going to stop but he just kept on going. He said the accident happened about 2:00 o’clock in the afternoon. He further testified that he and appellant had been drinking and after appellant hit McCormick, they went to the Rebel Lounge. Appellant and a person who was picked up by him went in the lounge! Brown said he stayed in the car as there was a sign on the door of the Rebel Lounge reading “White Only.” Brown was also charged with leaving the scene of an accident.

Mr. Joe Hall, Chief of Police of Daphne, testified that he investigated an accident involving an automobile and a bicycle; that the accident occurred near the intersection of Johnson Road and Main Street in Daphne. That he got to the scene at approximately 3:50 p. m. and he talked to McCormick and got a description of the automobile that struck him and he put out a dispatch on his radio. He later received a radio message from a State Trooper that this car was parked at the Rebel Lounge. He went to the Rebel Lounge and found the automobile and found a Negro by the name of Brown in the back seat. That Brown had passed out and he could not communicate with him. He walked in the lounge where several people were seated and asked if the owner of the car, which he described, was present. Appellant got up and said he was the owner of the car. The Chief arrested both appellant and Brown and put them in his patrol car. The officer stated that in his opinion both appellant and Brown were drunk.

The Chief of Police further testified that when he got to the scene of the accident, Don McCormick was lying on the ground on his back and a colored woman, who was either a nurse or an LPN, was administering first aid to him. He stated there was blood all over the ground where the boy had been bleeding profusely; that his left thigh was injured, and that it was apparent that he needed medical assistance.

Mr. Andrew Underhill testified that he caught a ride with appellant in front of his house on the afternoon in question and they went to the Rebel Lounge. He stated that appellant was driving but that Dennis Brown was in the back seat of the car.

On cross-examination he testified that after he got in the car with appellant he told them they had been in an accident. He denied that he was in the car when the accident occurred.

There were other witnesses to the accident who testified that after the automobile struck the boy on the bicycle the car did not stop. They could not identify the occupants of the car but thought they were black men.

Appellant testified that the car he was driving on the day in question belonged to his father. He had been up the river on this particular Sunday and was looking for something to drink. Dennis Brown walked by and told him he knew where they could get some whiskey. Appellant stated that he let Brown drive because he knew where they were going. They went to Brown’s girl friend’s house and appellant went to sleep in the car after having had a couple of drinks of wine. Appellant stated he did not wake up when Brown came back to the car. He said he awoke when the car made some kind of bump or swerved or something. He said after he awoke, he started driving because Brown was driving too fast. Later he picked up Andrew Under-hill and Brown got in the back seat. They went to the Rebel Lounge where he was later arrested. He testified that he didn’t know there had been an accident until Chief Hall proved it to him by showing him some light blue paint on the side of his car.

The state called Underhill on rebuttal and he testified that appellant picked him up in front of his house on the Belforest Road. That he saw appellant when he turned off the four lane on to Belforest Road and he did not stop before he picked him up. He stated that he got in the back seat and that appellant and Dennis Brown remained in the front seat.

There was no motion to exclude the state’s evidence; there was no motion for a new trial, and there was no request for the affirmative charge. At the conclusion of the oral charge to the jury, appellant’s counsel said, “I would like to reserve an exception to your charge as to ownership of the car.” This exception was not specific enough to invite a review by this court.

In Robinson v. State, 38 Ala.App. 315, 82 So.2d 815, this court held:

“In order to be sufficient to invite our review, exceptions to the court’s oral charge should set out the particular parts which are objectionable to the defendant, and not merely refer to the charge on a particular subject. McGhee v. State, 178 Ala. 4, 59 So. 573; Corder v. State, 32 Ala.App. 584, 28 So.2d 651; Head v. State, 35 Ala.App. 71, 44 So.2d 441; Favors v. State, 32 Ala.App. 139, 22 So.2d 914.”

Under this rule the above-quoted exception to the oral charge was too indefinite for our review.

In Goodman v. State, 20 Ala.App. 392, 102 So. 486, the rule is stated to be that in law the owner of an automobile is liable if the vehicle is being operated by such owner or under his control, and in all cases where the owner is present he is liable for a noncompliance with a statute, unless the operator disobeys his instructions, as the owner is in control of the vehicle.

According to the testimony of Chief Hall, appellant told him he was the owner of the automobile involved in the accident. Appellant testified that the automobile belonged to his father who had loaned it to him. Assuming this to be true appellant had a special interest as bailee in the automobile and as against all other persons, except his father, he was the owner of the car involved in the accident.

According to the testimony of Brown, appellant was driving the automobile when it struck the bicycle. On the other hand appellant claimed Brown was driving at the time of the accident. This conflicting testimony made and presented a jury question. Jones v. State, 54 Ala.App. 251, 307 So.2d 59.

Where there is legal evidence from which the jury can by fair inference find the accused guilty, this court has no right to disturb the verdict. Whether there is such evidence is a question of law, its weight and probative value are for the jury. Stiles v. State, 55 Ala.App. 374, 315 So.2d 609.

We find no error in the record and the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


text:
    Richard VAN NOSTRAND v. STATE.
    8 Div. 637.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    J. R. Brooks, Jr., Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for the possession of 70 pounds of marihuana. He was also indicted for maintaining a dwelling house, located at Route 5, Huntsville, Alabama, where persons resorted to for the purpose of using controlled substances. At arraignment, attended by counsel, he pleaded not guilty. The jury returned a verdict finding the defendant guilty of possession of marihuana for personal use. The trial court sentenced appellant to one year in the Madison County Jail.

The evidence is uncontradicted that appellant, his wife and one William James Hillenbrand jointly rented the house located at the above address. It is further un-contradicted that on July 6, 1973, the officers went to this house armed with a search warrant and made a thorough search of the house. Upon arriving at the house they saw appellant walk off the porch and go to a blue Volkswagen. They saw appellant’s wife at the front door. The officers identified themselves by showing their badges and they told appellant they had a search warrant to search the house. Appellant walked with officers to the house and his wife slammed the door and went back in the house. One of the officers went after her and she pointed a pistol directly on this officer. The officer took the pistol out of her hand and carried her into the living room.

The officers found the southwest bedroom door locked. They knocked on the door but got no response. They forced the door open and found Hillenbrand in bed and saw his personal effects in this room. They conducted a search of this room and found one large plastic trash bag, approximately 20 gallon size, with ten packages inside, weighing about two pounds each, containing green vegetable material believed to be marihuana. They found another large trash bag containing nine packages weighing approximately two pounds each, enclosing a green vegetable material believed to be marihuana. They found four large grocery bags containing green vegetable material, weighing about five pounds each, believed to be marihuana. In this same room they found a set of scales, a Browning automatic weapon, a Winchester pump shot gun, and six roaches with green substances believed to be marihuana.

In the southeast bedroom, the one occupied by appellant and his wife, they found a few roach clips, two small plastic bags containing green vegetable material believed to be marihuana, a small tin can, about two inches high, with vegetable material believed to be marihuana, a glass jar containing roaches believed to be marihuana and a cigarette roller.

In the middle bedroom the officers found one roach containing vegetable material believed to be marihuana. In the middle east bedroom they found one roach containing vegetable matter believed to be marihuana and an ashtray on a chest. They also found three more roaches in a paper bag on the floor in front of the chest. In the living room they found one roach in the ashtray containing vegetable matter believed to be marihuana and another one in an ashtray on top of the television set.

Deputy Sheriff Pat Edwards testified that he was employed by the Madison County Sheriffs Department and that on July 5, 1973, he participated in the “stake out” of the location on Smith Road in Madison County. He stated that he viewed the house occupied by appellant and his wife and Hillenbrand and that at approximately 11:20 on the night of July 5, a red pickup truck drove into the driveway of this residence. He saw two occupants of the truck carry two large plastic bags to the porch. A girl opened the door and a male having long blonde hair pulled the bags in the house and the lights went off in the house again. This witness stated that Hillenbrand has long blonde hair. Edwards was the officer who executed the search warrant. He said they found about 58 pounds of marihuana in the room occupied by Hillenbrand.

Mr. Robert M. Patterson testified that he was employed by the State of Alabama, Department oí Public Safety, Bureau of Investigation, Narcotics Unit. He participated in the search on the morning of July 6, 1973. He stated that in the southeast bedroom they found two plastic bags of marihuana. He also saw several grocery type bags of marihuana in the southwest bedroom.

After the search the officer arrested appellant, his wife and Hillenbrand and gave each of them the Miranda rights and warnings.

Mr. John Kilbourne testified that he was employed by the State Department of Toxicology and Criminal Investigation and had been so employed for six years. After stating his education and background experience, he testified that he received from Officer Allen Adair one brown bag containing plant material, one manila envelope containing two plastic bags containing plant material, one plastic bag containing plant material and one manila envelope containing a metal tin can which contained plant material. He testified that their evidence was turned over to him on July 9, 1973, and he put it in a locker to which he had the only key; that on September 19, 1973, he removed this material from the locker and performed a microscopic examination and a microchemical test to determine the contents. He, stated he had performed many thousands of such tests. He determined the contents of the evidence submitted to him to be marihuana. There was other testimony that this evidence came from the southeast bedroom occupied by appellant and his wife. This evidence was subsequently introduced during the trial.

At the conclusion of the state’s case appellant made a motion to exclude the state’s evidence. This motion was overruled.

Hillenbrand was indicted, separately, for the same offenses as appellant. He made application to be treated as a youthful offender. His application was granted and he pleaded guilty to possessing the marihuana found in his room. He was convicted of being a youthful offender and applied for probation. His application for probation had not been decided prior to appellant’s trial. He was out on bond and testified at appellant’s trial.

According to his testimony all of the marijuana found in his room belonged to him and that appellant had no interest in it.

On cross-examination he testified that he and a man in a pickup truck brought the marihuana to this house between eleven and twelve o’clock on the night of July 5, 1973. He admitted that appellant and his wife knew he was going to bring the marihuana there that night. That appellant opened the door, but he was vague as to whether appellant helped him carry the marihuana to his room.

From the record:

“Q If it was dragged back there, who helped you drag it back into your room?
A I am not really sure. I couldn’t swear to who helped me.
Q Didn’t Ricky help you put it back there ?
A I couldn’t say for sure. I don’t believe so.
Q But he could have ?
A He could have, yes. I don’t know that he did.
Q And there was other marijuana in the house at that time also, wasn’t there ?
A Yes.
Q In fact, there was a little bit of marijuana or some quantity of marijuana in every room, wasn’t there ?
A Yes.
Q And wasn’t marijuana frequently smoked there by people that lived there and also by people that came there?
A Yes.
Q Weren’t there a lot of partially smoked marijuana cigarette butts around the house also?
A Probably.”

He further admitted that appellant and his wife were living in this house and had been living there about two weeks; that they contributed to the payment of the rent and paid their share of the rent directly to him.

Appellant testified in his behalf. He stated that none of the marihuana found in Hillenbrand’s room belonged to him.

On cross-examination ■ he admitted- ownership of the marihuana found in the southeast bedroom occupied by him and his wife. He admitted that he contributed toward the payment of the rent on the house and he gave the money to Hillenbrand the day they moved in. He further admitted that he knew that Hillenbrand was going to bring marihuana to the house on the night of July 5, 1973. He stated that the day they moved in they brought the majority of their personal belongings. He admitted smoking marihuana and stated that some of the partially smoked cigarettes found by the officers around the house might have been his.

In Daniels v. State, 49 Ala.App. 654, 275 So.2d 169, this court said:

“In a prosecution for unlawful possession of narcotics it is not necessary to prove manucaption but constructive possession may be shown, and where such possession is relied upon the State must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520; Spruce v. State, 43 Ala.App. 487, 192 So.2d 747. See cases in 16 Alabama Digest, Poisons, '®=59.
Such guilty knowledge may be established by circumstantial evidence and guilt does not necessarily depend upon ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761.”

The verdict of the jury finding appellant guilty of possessing marihuana for personal use had the effect of acquitting him of the felony charge of possession of marihuana and of maintaining a dwelling where persons resorted to buy or use controlled substances. Appellant admitted ownership of all the illegal drugs found in his room by the officers executing the search warrant.

It is sufficient to prove so much of an indictment as shows that the defendant has committed a substantial offense specified therein. Owens v. State, 291 Ala. 107, 278 So.2d 693; Taylor v. State, 47 Ala.App. 285, 253 So.2d 354.

Possession of marihuana for personal use, a misdemeanor, is a lesser included offense under an indictment charging possession of marihuana which is a felony. Powers v. State, 49 Ala.App. 690, 275 So.2d 369.

In Parks v. State, 46 Ala.App. 722, 248 So.2d 761, this court held:

“The offense of possession of illegal drugs is susceptible of joint commission. Green v. State, 30 Ala.App. 94, 2 So.2d 324; Gunnells v. State, 21 Ala.App. 648, 111 So. 320. Further the guilt of the accused does not necessarily depend upon proof of his ownership of the drugs. Womack v. State, 34 Ala.App. 487, 41 So.2d 429; Thompson v. State, 32 Ala.App. 402, 27 So.2d 55. However, there must be evidence from which the jury might conclude beyond a reasonable doubt that defendant knew of the presence of the drugs. Such guilty knowledge may be established by circumstantial evidence. Womack v. State, supra; Thompson v. State, supra.”

See also Miller v. State, 51 Ala.App. 303, 285 So.2d 113, Certiorari denied. 291 Ala. 793, 285 So.2d 117.

The evidence in this case leaves no lingering doubt that appellant was fully aware that the house he was living in was completely saturated with marihuana, smoked and unsmoked, and this by his own admissions.

Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain the conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for a new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71; Young v. State, 283 Ala. 676, 220 So.2d 843.

Having carefully examined the record for any reversible error, whether assigned or not, Title 15, Section 389, Code of Alabama 1940, as well as having considered all of the appellant’s assignments of error, it is our opinion that the judgment of conviction should be affirmed.

Affirmed.

All the Judges concur.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Walter NUNEZ and Russell Nunez.
    No. 56396.
    Supreme Court of Louisiana.
    Oct. 1, 1975.
    William H. Egan, Indigent Defender Board, Parish of St. Bernard, Chalmette, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leander H. Perez, Jr., Dist. Atty., Gilbert V. An-dry, III, Asst. Dist. Atty., for plaintiff-ap-pellee.
   DIXON, Justice.

Defendants were convicted of simple burglary and appeal to this court, raising one assignment of error which rests upon the contention that the trial court erred by not granting defendants’ motion for a directed verdict in which they argued that there was no evidence of either an “unauthorized entry” or “the intent to commit a felony or any theft therein.”

Former officer Larry Ferran testified that on the night of July 13, 1974, during his routine patrol assignment, he noticed an Oldsmobile, riding on a flat rear tire, pull out of the Veronica Service Station and proceed in a direction opposite to that which the officer had been traveling. The officer circled back to the service station and noticed that the front door panels of the station had been kicked out and that the cigarette machine had been pried open. He chased the vehicle, following a path of frittered tire left by defendant’s car, and apprehended them some two or three minutes and a few blocks later. In a consent search of the automobile, officers later found a battery, a box of assorted cigarettes and a box of change. Two tires were found on the back seat of the car.

The proprietor of the station testified that he gave neither defendant permission to enter his establishment. He further testified that two tires of the same brand as those found in defendants’ possession were missing from the station, that an automotive battery was missing and that his change box was missing from his office. The proprietor was able to identify the box introduced at trial as the one taken from his establishment.

Since State v. Douglas, 278 So.2d 485 (La.1973), this court has held that it is only in cases where there is no evidence of the crime or of an essential element thereof that this court has the power to find meritorious a motion for directed verdict and reverse a conviction. Recently we discussed and reaffirmed this position. See State v. Evans, La., 317 So.2d 168, 1975 and State v. Sonnier, La., 317 So.2d 190, 1975.

The record before us is replete with evidence that there was an entry, that such entry was unauthorized and that a theft was committed therein; the circumstantial evidence that defendants were the burglars is strong enough to exclude any other reasonable hypothesis. It cannot be said that there is no evidence of any essential element of the crime.

The convictions and sentences are affirmed.

      . “Simple burglary is the unauthorized entering of any dwelling, vehicle, watercraft, or other structure, movable or immovable, with the intent to commit a felony or any theft therein, other than as set forth in Article 60. “Whoever commits the crime of simple burglary shall be imprisoned at hard labor for not more than nine years.” (R.S. 14:62).