author: TYSON, Judge.

text:
    Danny Ray MILES, alias v. STATE.
    6 Div. 312.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      James Gordon Stevens of Wilder & Stevens, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the robbery of one Clarise Knabe by taking some $261.85 in currency from her person and by putting her in fear, etc. The jury found the appellant guilty as charged and fixed punishment at eighteen years imprisonment. The trial judge set sentence in accordance with the verdict, ruling that the sentence be served concurrently with a life sentence for murder, which grew out of the same incident. See Miles v. State, Ala.Cr.App., 343 So.2d 801 (1977), cert. denied, Ala., 343 So.2d 806 (1977).

To the indictment the appellant filed a plea of autrefois convict. In support thereof, counsel argued that the same evidence used in the prior murder conviction would be used in the robbery prosecution. The trial judge rejected the plea ruling that the intent to rob and the intent to murder are sufficiently distinct to support separate prosecutions and separate convictions. No issue is made of the trial judge’s ruling in this matter. See generally, Clift v. State, Ala., 352 So.2d 838 (1977).

Gus Constance, owner of the Twenty-Ten Lounge in Birmingham, testified that, on the night of November 3, 1975, he returned to the bar about 11:15 p. m. to assist his employee, Clarise Knabe, in closing the bar for the night. Upon arriving, Mr. Constance found the front door to the bar locked from the inside. Peering through the window, Mr. Constance could see that the television set and game machines were still operating. Mr. Constance’s shouts demanding to be admitted went unanswered. Mr. Constance gained entrance to the bar through the back door, which he found open. Upon entering, Mr. Constance noted that two wallets were on top of the bar,' that Ms. Knabe’s purse was on the floor behind the bar along with several cartons of cigarettes, and that the contents of the cash register had been substantially depleted. Mr. Constance then contacted the police.

Alma Vest testified that she was at the Twenty-Ten Lounge in Birmingham on November 3, 1975, from approximately 9:15 p. m. until 11:00 p. m. Ms. Vest recalled seeing the appellant and a person she later came to know as Samuel Yarber talking to one Ronnie White, whom she had known previously. Ms. Vest stated that Mr. White arrived about 10:15 p. m. The appellant and Mr. Yarber arrived shortly thereafter. Ms. Vest recalled that a football game was being shown on the large television set for the patrons of the bar. At the conclusion of the football game, Ms. Vest and her companion left the bar. The remaining people in the bar were the appellant, Mr. Yarber, Mr. White, and Ms. Knabe.

Birmingham Police Evidence Technician Darnell Guyer testified that he arrived at the Twenty-Ten Lounge on the night in question at approximately 11:55 p. m. During the course of his investigation, Officer Guyer made several fingerprint lifts from various surfaces in the bar and recorded the date, time, and location of the original fingerprints. The proper predicate having been laid, the trial judge admitted two fingerprint lifts taken from the same drinking glass found on the bar at the Twenty-Ten Lounge.

Officer Guyer testified that his investigation also uncovered a spent .38 caliber bullet retrieved from the wall over the bar. Officer Guyer identified the bullet from the markings that he made on its sealed container when he recovered the bullet from the wall. Officer Guyer delivered the spent bullet in its container to Birmingham Police Sergeant Higgins. The trial judge admitted this bullet into evidence.

Through the testimony of County Jailer Dan Prater, the State introduced a complete set of the appellant’s fingerprints taken when he was admitted to the Jefferson County Jail after his arrest. The trial judge admitted this exhibit into evidence.

Sandra Triplett testified that she was employed as a fingerprint technician with the Birmingham Police Department. Ms. Triplett was shown to possess the requisite qualifications and expertise to express her opinion as to latent fingerprint comparison and identification. Ms. Triplett stated that she examined the fingerprint lifts in evidence and compared them with the known fingerprints of the appellant. Based on her examination and her experience, the fingerprint lifts taken from the drinking glass found on the bar by Officer Guyer matched the known fingerprints of the appellant (R. p. 62). On cross-examination Ms. Triplett testified that none of the latent fingerprint lifts that she examined matched the known fingerprints of Samuel Yarber.

James Howell, evidence technician with the Jefferson County Sheriff’s Department, testified that, on the morning of November 4, 1975, he and Sergeant Jones went to an area near Bessemer via Highway 150 to assist in the investigation of a crime scene where the bodies of Clarise Knabe and Ronald White had been discovered. During the course of his investigation, Officer Howell took several photographs, made diagrams showing the bodies’ location, and recovered five spent bullets from the ground underneath the place where the bodies had lain. Officer Howell delivered the spent bullets in substantially the same condition in which they were found to Sergeant David Higgins of the Birmingham Police Department. Officer Howell stated that the bodies were found approximately 200 feet from Highway 150 and were visible to passers-by.

Sergeant David Higgins testified that he was employed in the Scientific Investigation Bureau of the Birmingham Police Department. Sergeant Higgins was properly qualified as an expert in the field of firearms identification. Sergeant Higgins participated in the investigation on November 4, 1975, of the discovery of two dead bodies off Highway 150 near Bessemer. Sergeant Higgins was present during the performance of an autopsy by Jay Glass on the two bodies at Cooper Green Hospital later the same day. During the autopsy, Sergeant Higgins received several spent bullets removed from the victims’ bodies. Sergeant Higgins compared the bullets removed from the victims’ bodies with the bullet recovered by Officer Guyer from the wall of the Twenty-Ten Lounge and concluded that they were fired from the same .38 caliber weapon (R. p. 88).

Sergeant Higgins also identified a .38 caliber pistol given to him by Officer Howell. Based upon testfirings conducted on this weapon, Sergeant Higgins concluded that the pistol marked as State’s Exhibit Fourteen fired the bullets recovered from the victims’ bodies and from the wall of the Twenty-Ten Lounge (R. p. 91).

Samuel Yarber, the appellant’s alleged accomplice, was called to the stand for the State. Mr. Yarber was represented in court by Mr. Fred Erben who explained that Mr. Yarber at that time had two appeals pending from convictions arising out of the same incident as the instant prosecution. In a statement made prior to Mr. Yarber’s taking the stand, Mr. Erben stated that his client desired to say nothing in court, thus exercising his Fifth Amendment privilege (R. p. 95).

The State moved to have Mr. Yarber declared unavailable for purposes of admission of a transcript of testimony he gave at a prior proceeding. After hearing argument from both appellant’s counsel and Mr. Yarber’s counsel, the trial judge granted the State’s motion and admitted the testimony over objection from the defense. The issues on this appeal concern whether or not the trial judge’s admission into evidence of Yarber’s preliminary hearing testimony was proper. For purposes of brevity, we do not herein re-state the gruesome facts of the episode as garnered from Yarber’s testimony. For these details, see Miles v. State, supra. Suffice it to say that Yarber, in the transcript of his preliminary hearing testimony, and the appellant, in .his testimony from the stand, each accused the other of primary responsibility for the acts committed on November 3, 1975. The appellant’s account of the facts was the only testimony presented by the defense. There was no motion to exclude the State’s evidence nor was there a request for the affirmative charge.

I

The appellant asserts that his right to confront the witnesses against him, guaranteed to him by the Sixth Amendment to the United States Constitution, was violated by the trial judge’s admission into evidence at trial of Yarber’s preliminary hearing testimony. However, the appellant’s contention lacks support, both from the applicable law and from the facts of the case.

The appellant relies on two cases involving the admission at trial of a transcript of testimony given at a prior preliminary hearing. In Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), the United States Supreme Court held that the right to confront adverse witnesses, guaranteed by the Sixth Amendment, applied to the states via the Fourteenth Amendment, and that, under the facts of that case, the petitioner therein was denied that right. A key factor in the Pointer court’s holding was the fact that the defendant had not been represented by counsel at the preliminary hearing and had no opportunity to cross-examine the witness whose testimony was being introduced at trial.

“The case before us would be quite a different one had [the witness’] statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” Pointer v. Texas, supra, at 407, 85 S.Ct. at 1069.

In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the United States Supreme Court vacated the judgment of the California Supreme Court which had ruled the' admission of a transcript of testimony given at a prior preliminary hearing an unconstitutional violation of the Sixth Amendment right to confront adverse witnesses. In Green, the witness’ testimony at trial was markedly different from the recorded testimony at the preliminary hearing. In allowing the preliminary hearing testimony to be used, the court found sufficient indicia of reliability in the circumstances surrounding the taking of the preliminary hearing testimony to satisfy the requirements of traditional hearsay exceptions wholly independent of any issues involving possible violation of the Confrontation Clause. These indicia of reliability include the fact that the witness was under oath at the preliminary hearing, which was conducted before a judicial tribunal and he was subject to cross-examination by the defendant who was represented by competent counsel.

In the instant ease, Yarber was under oath at the preliminary hearing. The appellant was represented by competent counsel, who was afforded ample opportunity for cross-examination before a judicial tribunal. The admission of the transcript of Yarber’s prior testimony as a result of his refusal to testify complied in every respect with the requirements in Green, supra.

The law of this jurisdiction further supports the conclusion that admission of Yar-ber’s testimony was proper. In Miles v. State, Ala.Cr.App., 343 So.2d 801, cert. denied, Ala., 343 So.2d 806 (1977), this court ruled, under facts almost identical to those herein presented, that admission of Yar-ber’s preliminary hearing testimony was proper.

In Bridges v. State, 26 Ala.App. 1, 152 So. 51 (1933), this court statedr

“The witness . . , when called, refused to testify, claiming his constitutional right not to be forced to give evidence which would tend to incriminate him. He thereby placed himself where he was not available to the state to be used as a witness. Thereupon, over the objection and exception of defendant, the state was allowed to make preliminary proof that this witness had been examined and cross-examined as a witness for the state on the former trial of this same case in the circuit court of Jefferson county, and over objection and exception of defendant the state was then allowed to read to the jury the testimony of the witness given on such former trial. This is not now an open question in this state, and while there are some decisions to the contrary, this court and the Supreme Court have spoken on the question and we see no reason to reopen the subject. The witness . . . having testified on a former trial of this case, with full opportunity for cross-examination and when called to testify on this trial he rendered himself incompetent as a witness without fault on the part of the state, the trial court properly allowed his testimony on the former trial to be read in evidence.” [Citations omitted]

Therefore, we find that admission of Yarber’s preliminary hearing testimony was proper under the unavailability hearsay exception. See 5-Wigmore, §§ 1408, 1409. Under the rationale of California v. Green, supra, we further find no constitutional infirmity in the trial judge’s ruling.

II

The appellant next contends that the unavailability of the witness was the fault of the State and that the State failed to show affirmatively absence of fault associated therewith. The basis for the allegation that Yarber’s unavailability was the fault of the State is the unsupported assertion in brief that Yarber’s subsequent prosecution was a violation of an alleged grant of immunity. Moreover, nothing in the record supports the contention that Yarber was given a grant of immunity in exchange for his preliminary hearing testimony. This court cannot consider statements contained in the appellant’s brief as- to circumstances not reflected by the appeal record. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971); Chambers v. State, Ala.Cr.App., 356 So.2d 767 (1978).

The state is not required to show affirmatively that it was free from fault associated with the witness’ unavailability. A sufficient predicate for a determination of unavailability is laid when the state shows it exercised due diligence in procuring the witness’ presence at trial. Williams v. Calloway, 281 Ala. 249, 201 So.2d 506 (1967). Here the state produced Yarber at trial. The witness’ claim of the Fifth Amendment privilege was the basis for the determination of unavailability. The question of the sufficiency of the proof of the predicate is addressed to the sound discretion of the trial judge. Washington v. State, 274 Ala. 386, 148 So.2d 206 (1962).

Ill

The appellant finally contends that the state did not lay the proper predicate for the introduction of the preliminary hearing testimony. In Hardy v. State, 53 Ala.App. 75, 297 So.2d 399 (1974), this court stated that in order for such testimony to be admissible, it must appear that the testimony was given .

“(1) [U]nder oath, (2) before a tribunal or officer having by law the authority to take testimony and legally requiring an opportunity for cross-examination, (3) under circumstance affording the party against whom the witness was offered an opportunity to test his credibility by cross-examination, and (4) given in a litigation in which the issues and parties were substantially the same as in the present cause, is receivable as evidence in the present trial (5) when the personal attendance of the witness to testify in the present trial is not feasible.” [Citations omitted]

See generally, Gamble, McElroy’s Alabama Evidence, § 245.07(1), 3d Ed. (1977), and authorities cited.

In the instant case, it is clear that the witness Yarber was under oath in the Jefferson County Criminal Court. The appellant’s counsel conducted a lengthy cross-examination of the witness in a case which involved the same parties and similar issues as the instant case. The live testimony of the witness was not feasible by virtue of his exercising his right to remain silent. We find, therefore, that the requirements set out in Hardy, supra, were met. The state therefore laid the proper predicate for admission of the preliminary hearing transcript.

For the reasons hereinabove stated, and after careful consideration of the record on this appeal, we find that this case is due to be and is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Curtis Sanders GILES v. STATE.
    6 Div. 638.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      Arthur Parker, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and James L. O’Kelley, Asst. Atty. Gen. for the State.
   BOOKOUT, Judge.

Kidnapping; sentence: ten years imprisonment. Title 14, § 6, Code of Ala. 1940 [now § 13-1-23, Code of Ala. 1975].

The appellant contends the trial court committed reversible error in refusing to give his Requested Charge No. 24 which is as follows:

“The Court charges the jury that if, after considering all the evidence in this case, there is a reasonable doubt as to the presence of the Defendant near the scene of the alleged crime, then you should not convict the Defendant.”

The substance of the above charge has been approved in Stewart v. State, 25 Ala.App. 266, 145 So. 162 (1932), cert. denied, 266 Ala. 15, 145 So. 160, and Gilbert v. State, 20 Ala.App. 565, 104 So. 45 (1925). Also see: Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396 (1948).

The appellant testified that he was somewhere else, not at or hear the scene of the crime and that he did not commit the offense. Thus, his defense was that of alibi. The State’s evidence, however, pointed directly to the defendant as the offender placing him at the scene of the crime. Therefore, the presence of the defendant at the scene, vel non, was a litigated issue.

In determining whether a requested charge should be given, the question is not whether the court believes the evidence supporting the charge, “but simply whether such evidence was presented.” Hunter v. State, 295 Ala. 180, 325 So.2d 921 (1976).

The trial judge may have had reason to disbelieve the appellant’s version of the facts, however, he did not have legal cause to withhold that version of the facts from the jury’s consideration.

In Burns v. State, 229 Ala. 68, 155 So. 561 (1934), our Supreme Court held in part as follows:

“Our decisions are to the effect that every prisoner at the bar is entitled to have charges given, which without being misleading, correctly stated the law of his case, and are supported by any evidence, however weak, insufficient, or doubtful in credibility. Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am.St.Rep. 96. And in Morris v. State (Ala.Sup.), 39 So. 608, 611, it is said: ‘It matters not how slight the tendency of evidence may be towards establishing any material fact involved, the court cannot exclude it from the jury. Its weight is for their determination. . ’ ” (Emphasis supplied.)

Likewise, in Chavers v. State, Ala., 361 So.2d 1106 (1978), the Alabama Supreme Court stated:

“. . . [0]ur decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of nis case, and which are supported by any evidence, however, weak, insufficient, or doubtful in credibility. . .

The requested charge was not covered in the court’s oral charge or in any of the appellant’s given charges. As refusal of the above charge mandates a retrial, it is unnecessary to go into the other issues raised by the appellant, i. e. that a juror was sleeping during part of the trial and that a part of the trial court’s oral charge lessened the burden on the State to prove its case. Those two issues are highly unlikely to arise on a second trial.

REVERSED AND REMANDED.

All the Judges concur.


author: CLARK, Retired Circuit Judge.

text:
    Wayne Ike BLAINE v. STATE.
    3 Div. 835.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      Benjamin E. Pool, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

A jury found appellant guilty of possession of heroin. The trial court sentenced him to imprisonment for fifteen years.

A large part of the record (more than one hundred pages) pertains to a motion to suppress certain evidence, which motion was filed and heard before the trial of this case. The court overruled the motion, and the evidence sought to be suppressed was admitted during the trial. It related to the circumstances of the finding by law enforcement officers of a large quantity of heroin at the Travelodge Motel on Federal Drive in Montgomery, Alabama, on May 18, 1977. In the process of the hearing on the motion to suppress, it developed that the State was contending that there was a connection between defendant and the heroin at the Travelodge Motel, but it appears that .it was definitely understood between the parties that defendant was not charged in this case with the possession of such heroin. It was definitely understood between the parties that the prosecution in the instant case was for the possession of heroin which the evidence shows was found in an automobile being driven by defendant. The basis of the motion to suppress was a charge by defendant that the heroin found at the Travelodge Motel was obtained as a result of an unconstitutional search and seizure. A recital at this time of the evidence on the hearing of the motion to suppress would be a mere repetition of what was comprehensively stated by Judge Tyson in Golden v. State, Ala.Cr.App., 361 So.2d 1128, cert. denied 361 So.2d 1132 (1978). The relation between appellant and Golden, as indicated by substantial evidence, is shown by the opinion in Golden, as well as by the record in the instant case.

We adopt the conclusion reached in Golden that “. . . probable cause, coupled with exigent circumstances (the destruction of evidence), justified the war-rantless search of appellant’s motel room under the fifth exception to warrantless searches listed in Daniels, supra, [Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973)].”

The determination that there was no illegal search and seizure at Travelodge makes it unnecessary to decide whether appellant herein had standing to question the constitutionality of the search of a room at the Travelodge and the seizure of the heroin found therein, as to which parties were in disagreement at the hearing on the motion to suppress.

Detective Michael M. Farrier and Officer T. M. Armstrong, of the Narcotics and Dangerous Drugs Division of the Montgomery Police Department, testified that soon after the search and seizure of the heroin at the Travelodge and the arrest of Holly Golden and the other female who, according to the facts narrated in Golden, supra, and according to the evidence in this case, were emptying heroin into the toilet and bathtub of the motel room they were occupying, they located defendant herein in a Thunderbird automobile, which answered a description and license tag number of the automobile they had been informed he had been using in connection with the sale of heroin, and for which vehicle a dispatch had been “put out” by the Police Department. The two were frisked for a weapon and brought to the City Hall, one by one of the officers in the officers’ automobile and the other by the other officer in the automobile defendant was driving.

Officer Farrier testified that before they left the scene of the apprehension of defendant, a search of his automobile was made by Officer Farrier. He stated that he was looking chiefly for any weapon in the automobile, and he said that at the time he pulled up the arm rest “in the middle of the seat on the driver’s side” he found a penny match box under the arm rest. He then searched the seat and under the seat on the passenger’s side and found nothing. According to Officer Armstrong, he did not see Officer Farrier searching the automobile defendant was driving.

Both officers testified that after the two men in the automobile driven by defendant were brought to police headquarters, defendant was taken out of the automobile he had been driving, and the car was locked, with Officer Farrier keeping the keys for the time being. While defendant was at headquarters he was asked if he would consent to a search of his automobile,- and he replied in the affirmative. The two officers then went out and searched the automobile. At that time, according to both officers, Officer Armstrong found a penny match box on the floorboard under, or almost under, the seat on the passenger’s side of the automobile. In the match box was a paper in which a powdery substance was contained. The match box and its contents were preserved, turned over to a State toxicologist, whose qualification as a witness was admitted by the defendant and who testified that the powdery substance was heroin.

We do not agree with appellant that the search of the automobile at police headquarters that resulted in the seizure of the penny match box with heroin therein was illegal. Appellant does not deny the existence of the probable cause premise but insists that at that time no legal search could be made without a warrant. He does not claim that the circumstances at the time of the apprehension of defendant while driving his automobile were not sufficiently exigent to justify an arrest without a warrant.

One answer to appellant’s contention in this respect is found in the conclusion reached in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970):

“. . . For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
“On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained. The same consequences may not follow where there is unforeseeable cause tsearch a house. Compare Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409. But as Carroll, supra, held, for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.”

Another answer to the position taken by appellant is that the trial court was justified in concluding that defendant had voluntarily consented to a search of the automobile. This conclusion is reached with full regard for Rosenthall v. Henderson, 389 F.2d 514 (6th Cir. 1968); Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (1951); and Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819 (1954), cited by appellant as holding that a consent to search is per se invalid, but which would be better assayed as holding in effect that consent is prima facie invalid. The evidence in this ease is sufficient to overcome any possible presumption of invalidity. It is not a case in which “it is incredulous to say that he actually consented to a search of a place where he knew incriminating evidence to be” as argued by appellant. Whether a correct conclusion or not, it is certainly a reasonable conclusion that during the process of defendant’s being required to get back in the Thunderbird, after he and the other occupant had been personally frisked while they were out of the automobile, he (the defendant) while moving or being moved from the driver’s side to the passenger’s side of the automobile adroitly moved the penny match box with its contents from beneath the hand rest near the driver’s seat to the floorboard under the passenger’s seat. This is emphasized by one of the contentions made on the trial that the match box and its contents could as well have been property of the passenger as the property of defendant. In this connection, it should be said that the record is silent as to any possible connection between the passenger in the automobile and the presence of heroin therein and that no charge was made against the passenger.

While Officer Farrier was being cross-examined as a witness, the following occurred:

“Q Well whatever you did at the scene, whatever you did, did it turn up any thing to connect Wayne Blaine with any of the alleged heroin in the car?
“MR. BELL: I object to that.
“THE COURT: Sustained.”

A similar question was asked and a similar ruling made during cross-examination of Officer Armstrong:

“Q Yes, sir, you stated that. Did you find anything in the vehicle that would in any way connect or provide a link between Wayne Blaine, the Defendant, and that match box?
“MR. BELL: I object to that as calling for—
“THE COURT: Sustained. Ask him what else he found in the vehicle.”

We find no error in either of the court’s rulings. Both witnesses were interrogated intensely by both parties as to what was found in the automobile at the time defendant was first apprehended and thereafter at the police station. Counsel for defendant was given great latitude to bring out from the witnesses all of the facts. Appellant cites no case in which it was held that the trial court committed reversible error in sustaining objections of the State to questions similar to those quoted above. Notwithstanding the difficulty often encountered as to whether a particular question calls for an inadmissible unauthorized conclusion or opinion of a witness on the one hand, or admissible testimony on the other, we consider both questions as argumentative in nature and as calling for nothing but bald unauthorized conclusions of the witnesses. Assuredly, the trial court did not abuse the discretion vested in it in sustaining the State’s objections to the questions. Dersis v. Dersis, 210 Ala. 308, 98 So. 27 (1923); Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960); Daniell v. State, 37 Ala.App. 559, 73 So.2d 370, cert. denied, 261 Ala. 145, 73 So.2d 375 (1954); White v. State, 40 Ala.App. 378, 114 So.2d 325 (1959). See also, Gamble, McElroy’s Alabama Evidence, § 127.01(4) for a valuable and comprehensive consideration of the fact-opinion dichotomy.

Defendant objected to the introduction of a copy of the rental contract between the Hertz rental company and Anna Consalvo to the Thunderbird automobile bearing the license number of the automobile defendant was driving, which copy was found in the room at the Travelodge where the two females were found pouring heroin into the bathtub and toilet. The objection was limited to the ground that the copy was not the best evidence and there was no “offer of any explanation as to the original of the document.” The objection was overruled. Although the copy is referred to in the record as a “carbon copy,” it is not merely a carbon copy. It is one of the duplicate originals of the instrument and was admissible without any explanation as to the nonproduction of the other duplicate original. London & Liverpool v. Globe Ins. Co., etc. v. McGree, 213 Ala. 534, 105 So. 901 (1925); Campbell Motor Co. v. Brewer, 212 Ala. 50, 101 So. 748 (1924); Robinson v. State, 38 Ala.App. 315, 82 So.2d 815 (1955). In addition, the particular instrument was “merely incidental and collateral to the main, or a main, issue in the case,” and only “the general gist of the writing was important” and there was “no need to ascertain or know the precise details of the contents of the writing.” Gamble, McElroy’s Alabama Evidence, § 226.01(2)(3) (1977).

Where constructive possession of contraband is relied upon by the prosecution, it is necessary to show guilty knowledge, but such guilty knowledge can be shown by circumstantial evidence. Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 (1973). The circumstances as a whole, including those narrated above, point strongly toward guilty knowledge on the part of appellant and furnish sufficient basis for the verdict finding him guilty.

This case is distinguishable from cases such as Parks v. State, 46 Ala.App. 722, 248 So.2d 761 (1971) in which defendant’s mere presence as a passenger in the front seat of an automobile his brother was driving was held to be insufficient to show his knowledge of the presence of narcotics found on the floorboard back of the driver’s seat.

Proof of ownership of a controlled, or an illegally possessed substance is not required. Parks v. State, supra; Womack v. State, 34 Ala.App. 487, 41 So.2d 429 (1949); Thompson v. State, 32 Ala.App. 402, 27 So.2d 55 (1946).

After considerable testimony as to the search of the room in the Travelodge Motel and the seizure of a large quantity of heroin and the identification of “State’s Exhibits Eight, Nine, Ten, Eleven, Twelve, Thirteen and Fourteen as sealed clear plastic packets containing heroin” that had been retrieved by the officers from the toilet, the bathtub, the trash basket, or the drains of the bathtub, of said room, the following occurred:

“MR. BELL: Your Honor, at this time the State would offer in evidence State’s Exhibits Numbers Eight, Nine, Ten, Eleven, Twelve, Thirteen and Fourteen— the heroin found in Room 105 of the TraveLodge Motel.
“THE COURT: Any objection?
“MR. POOL: Object on the grounds of relevancy and also missing chain in the chain of evidence.
“THE COURT: Overruled, it’s admitted.”

Appellant insists that this ruling of the court was erroneous, that such evidence was subject to the “general exclusionary rule that evidence of other offenses occurring before the offense charged is ordinarily not admissible because of the tendency to prejudice the defendant and to secure a conviction based upon crimes other than the crime instantly charged.” In support of his insistence, appellant cites Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975) and Lucy v. State, Ala.Cr.App. 340 So.2d 840, cert. denied 340 So.2d 847 (1976). Both cases, as well as a host of other cases, support the proposition stated by appellant that, according to the general exclusionary rule, evidence as to crimes other than the one for which defendant is being tried at the time is not admissible. Both cases, however, as well as a large number of other cases, recognize that there are many exceptions to the general exclusionary rule.

We doubt that there was timely and definite objection, on the ground now claimed, to abundance of evidence as to the activities as to heroin being conducted in or about the room of the Travelodge that was searched, and we further doubt that the introduction into evidence of the physical results of the search was harmful to defendant, for the reason that the jury had already been fully informed by undisputed evidence as to the location and seizure of the heroin. As heretofore stated, defendant had filed a pretrial motion to suppress such evidence on the ground that it was obtained by an illegal search and seizure and such motion had been denied, correctly, we think. Contrary to a ground of objection to the introduction of the physical fruits of the search and seizure specifying that a chain of possession of it had not been established, we are of the opinion that it was well established by the evidence. Furthermore, appellant does not insist on such ground on appeal.

As to the ground of the objection “of relevancy,” neither party on appeal takes any definite position. Nor does either party cite any case as a precedent for determining whether the evidence was relevant. In our opinion, it was, and comes well within one or more of the exceptions to the general exclusionary rule, particularly the exception of scienter or guilty knowledge.

Both at the time of the objection under consideration and at the conclusion of the case, the evidence was uncontradicted that heroin had been found in the automobile defendant was driving. The real issue between the parties was whether defendant had knowledge of his constructive possession of the heroin. The evidence, in this case, as well as the evidence narrated in Golden v. State, supra, was that the person who registered for the room in which the heroin was found had recently registered and paid for another room in the motel for Wayne Blaine, the appellant, and had “registered a Thunderbird, License No. LCC 744” on her registration card, and had paid for two other rooms in the motel. Although defendant’s scienter or knowledge of the presence of the heroin in the automobile being driven by him is not conclusively established by the evidence as a whole, that part of the evidence as to the heroin in the motel room, defendant’s connection with the person registering for the room and the persons in the room at the time the heroin was seized, the identity of the automobile in which the heroin was found as the automobile being operated by the registrant for the room in which the heroin was found and the registrant for the room assigned to defendant, was definitely relevant to the question of his scienter or guilty knowledge and was admissible. The case is distinguishable from Van Nostrand v. State, 51 Ala.App. 494, 286 So.2d 903, cert. denied 291 Ala. 799, 286 So.2d 906 (1973), in which it was held that on a trial on an indictment charging an unlawful possession or sale of heroin it was error to admit “evidence constituting a separate and distinct offense from that charged in the indictment: to-wit, possession or giving away marijuana.”

During the closing argument of counsel for the State, the following occurred:

“MR. POOL: Your Honor, we object to that. There is no evidence of any sale of any drugs in this case and we object to that.
“THE COURT: That’s not in this case. Argue your facts.”

The particular portion of the record is an island unto itself. The record does not show the argument to which the objection was made or any effort on the part of defendant to obtain a more definite ruling of the court as to defendant’s objection. We are called upon, in effect, to reverse the trial court for not unequivocally sustaining defendant’s objection to an argument of State’s counsel not shown by the record other than by the possible implication of the objection made by defendant’s counsel, which is even less informative as to the substance of the argument objected to and more fragmentary than the objection of defendant’s counsel in McClary v. State, 291 Ala. 481, 282 So.2d 384 (1973), in which it was held:

“The fragmentary objection contained in the record does not meet the requirements of the authorities cited supra and the trial court’s action in overruling the stated objection did not constitute reversible error.”

In accordance with McClary, the ruling of the trial court was not erroneous.

An oral statement, which Detective Jim Nichols testified was made by defendant soon after his arrest, was admitted in evidence over the objection of defendant. Promptly after the witness was sworn, the court conducted a hearing out of the presence of the jury as to the question of the admissibility of the statement, at which hearing defendant, as well as Detective Nichols, testified. According to the testimony of Detective Nichols, the statement was a lengthy one, of which Detective Nichols had had made a typewritten transcription, which he possessed as he was testifying but which transcript was not offered or admitted in evidence, although it was obviously used by the witness to refresh his recollection. According to Detective Nichols, defendant denied knowledge of and connection with the heroin found in the automobile he was driving but admitted “that he knew the heroin was located in Room 105 of the Travelodge Motel” and his personal acquaintance with Molly Golden and Anna Consalvo. The witness fully covered the field as to voluntariness and all post-Miranda requirements as a prerequisite to the admission in evidence of the confession of an accused. He read to defendant from a printed form including a waiver to be signed by an accused, but defendant refused to sign the waiver.

Appellant’s contention as to the question of the admissibility of defendant’s statement is directed, solely to the fact that defendant refused to sign a waiver. He argues that this shows that defendant did not in fact voluntarily, knowingly and intelligently waive his constitutional right to an attorney at the expense of the State and his right against self-incrimination.

Defendant did not testify in the case except on the in camera hearing as to the admissibility of his statement. He there testified that he did not make any oral statement whatever to Detective Nichols or the other officers. He also testified that he was advised of his rights. He said also that he was asked to sign a waiver of rights form, but that he refused to do so; that the detectives attempted to induce him to make a statement by promising to protect him, which he “didn’t listen to” and “I didn’t tell them nothing.” As to his ability to read and write, he said:

“Q Can you read well?
“A No, sir.
“Q Can you write well?
“A No, sir.
“Q Can you read at all?
“A Well, not too good. No, sir.
“Q Can you write?
“A No, sir, I print.”

Defendant was not asked to sign anything other than the waiver of rights form.

The fact that defendant refused to sign the waiver of rights form may well be a circumstance tending toward the inadmissibility of his statement, but it does not in and of itself make it inadmissible. Under all of the circumstances properly taken into consideration by the trial court, we are of the opinion that the trial court was not in error in admitting it. We readily distinguish United States v. Nielsen, 392 F.2d 849 (7th Cir. 1968), relied upon by appellant, in which defendant “refused to sign anything until he saw his attorney.” It was held that “defendant’s refusal to sign the waiver form, followed by an apparent willingness to allow further questioning, should have alerted the agents that he was assuming seemingly contradictory positions with respect to his submission to interrogation.” No such conclusion can be reached from the facts in the instant case. There is nothing in the record to indicate that defendant’s refusal to sign a waiver was reasonably attributable to anything other than his inability to read and write well. Furthermore, defendant’s own testimony in the instant case discloses that he was advised of his rights, that his status as an ex-felon helped him to know that he was advised of his rights before he made the statement to which the objection was made. He said, inter alia, that the offers or inducement made to him to get him to make a statement, which he said he never made, occurred “At the time I was placed in the Montgomery City Jail that Detective Green and Detective Mike Farris and the other officer give me my rights and all."

The only other ground for a reversal asserted by appellant is to the effect that the trial court was in error in looking over the typewritten transcript of the oral statement of defendant prior to the determination by the trial court of the question of the admissibility of the oral statement. Appellant states in his brief:

“Although there seem to be no Alabama cases in point, Appellant takes the position that it is without the province of the Court to examine the substantive aspects of a confession prior to reaching a determination as to its voluntariness vel non.”

We think counsel would be hard pressed to find a precedent anywhere for holding that the trial court committed reversible error in the respect claimed. We hold that it did not.

We have considered all questions raised by resourceful counsel for appellant. We think that he has presented all that the record permits. We find no error prejudicial to appellant. The judgment should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: HARRIS, Presiding Judge.

text:
    Leon L. FRAZIER, alias v. STATE.
    4 Div. 639.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      Earl V. Johnson for Prestwood & Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen. and Edwin L. Yates, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Appellant was indicted by the grand jury of Covington County, Alabama, for assault with intent to murder Henry Frazier. In the presence of counsel, appellant was duly arraigned, entering a plea of not guilty to the charge against him. A jury found appellant guilty of assault and battery and fined him five hundred dollars. Adjudging appellant guilty in accord with the jury’s verdict, the trial court imposed the fine set by the jury and as additional punishment the Court sentenced appellant to five months and twenty nine days in the Cov-ington County Jail.

This incident arose from a family dispute over a land line. The victim in the case was appellant’s eighty-three-year-old uncle. It is only to these two facts that the parties agree, all other evidence surrounding the fracas being in hopeless conflict.

Henry Frazier, the victim, testified that on August 20, 1977, appellant and his father, J. D. Frazier, Henry’s brother, drove up to the house in a Volkswagen. Appellant’s four-year-old son accompanied them. Frazier’s home was on the Elba and Andalusia road, near Sasser’s Cross' Roads in Covington County.

When appellant and his father arrived at the house, Frazier was sitting on the porch. Appellant walked up and sat down beside Frazier, while his father, known as “Dee” to the family, sat down beside a big tree in the front yard. Frazier’s wife was “going and coming,” but she too sat out on the porch for some time also. Shortly after appellant sat down, he sent his son to the car to bring back a quart of whiskey.

Henry Frazier had not invited his relatives over to visit and when appellant began “cussing about every breath he drawed,” Frazier asked Dee to take appellant home before there was trouble. Appellant then told Frazier that his mother had sent him there “to do a job,” and appellant was going to do it.

Henry Frazier asked Dee again to take appellant home, but appellant spoke up, saying “that is what we come up there for is trouble.” Appellant then called Henry Frazier a “son-of-a-bitch,” whereupon Henry Frazier hit him with his fist. A general melee ensued, appellant and victim falling off the porch, when they “tangled up.” Appellant struck Frazier on the head and in the mouth, Frazier falling again. While Henry Frazier was on the ground and unable to get up, appellant began to kick him, the reason for which Henry Frazier testified, “I have been hobbling today.”

At this point, Mrs. Frazier, seventy-six years of age, walked out of the house with a small pistol. Appellant tried to take the pistol away from his aunt and struck her on the head. Appellant and his father then left.

Henry Frazier further testified that he required hospitalization for four days. He also identified two photographs depicting himself wearing a full length cast on his left leg. These photographs were received in evidence without objection.

Mary Lou Frazier testified that she was the victim’s wife. On August 20, 1977, as Mrs. Frazier was about to take a bath, the doorbell rang. Mrs. Frazier opened the door and saw appellant standing on the walk with a quart of whiskey in his hand. Appellant was drunk, cursing, and he wanted to go inside the house. However, Mrs. Frazier told him to wait outside and Mr. Frazier would be out in a minute.

Appellant and Mrs. Frazier then sat down on the porch. The record reflects the following occurred:

“Q. And who was he cussing?
“A. He was cussing — He first began on Mr. Reeves, calling him all kinds of son-of-a-bitches.
“Q. Mr. who?
“A. Mr. Doug Reeves, all kinds of son-of-a-bitch, and I begged Dee to take him home and he looked up at me, he said, shut your god-damned mouth, you goddamned old bitch, said my daddy knows what I come up here for. My mother sent us up here to do a job and we are going to do it before we leave.
“Q. If you will, if a ruckus started there or if a fight started, how did it start?
“A. When he just come in a cussing about the land, he said he come up there and we were sure going to have to sign a deed, that we had deeded some land away that didn’t belong to us. And we didn’t have no land there to deed. We had done deeded it about seven or eight years he-fore then. We didn’t have no land down there to deed.
“Q. He said that you were going to sign a deed?
“A. He said we had to, or he was going to beat — I think, I wouldn’t be for sure, he said he was going to beat something out of us. He said so much, I couldn’t tell you what' all he did say.
“Q. All right, what brought on the first blow and who hit the first blow.
“A. Well, Henry hit the first blow.
“Q. Well, what brought it on.
“A. He called Donald a god-damned-son-of-a-bitch and he called Henry a goddamned-son-of-a-bitch, and when he did Henry hit him in the mouth, and I got up and tried to get Dee to take him on but Dee wouldn’t do it. He just stood there and laughed about it. And so I got up and I begged him, and I cried and 1 begged him, I said Dee take him off. And he had his bottle in his hand and he was hitting Henry in the breast with his fist. Just hitting him and I said Dee please take him off, before Henry has a heart attack. He said you shut your mouth, you god-damned-old-bitch, my daddy knows what I come up here to do. And my mother sent me up here to do it and I’m going to do it.
“Q. All right, what happened then?
“A. And then is when I went in the house and got the gun and come out and pointed it at him and told him if he didn’t quit I was going to shoot him, with it. So he pushed Henry over on me and hit me right there with his fist, just as hard as he could. And when he did, I come around with the gun and meant to hit him. If I didn’t hit him, it wasn’t because I wanted to, I tried. And then he picked me up and throwed me out in the yard and he jumped out there on me and then Henry knocked him off of me, and Dee was sitting out there laughing about it. And he had me down to where I couldn’t get up. He had Henry down there kicking him just as hard as he could kick him and all. So I crawled back to the door and got on the inside and I got to the telephone. It is just a little ways, my kitchen, and I called the operator and told them to get the police for me and I don’t know when they left. I just don’t know. I don’t know no more when they left than nothing.”

Mrs. Frazier further testified that both . she and her husband were in the hospital for a week.

Mr. Frazier’s hospital records were then introduced into evidence through Bernice Forman, the custodian of records for Mizell Memorial Hospital in Opp, Alabama.

Dr. J. E. Dunn testified that he was a general practitioner in Opp, Alabama. On August 20, 1977, Dunn examined Henry Frazier at Mizell Memorial Hospital. At that time Mr. Frazier was “quite upset,” and complaining of pain in his left knee and right hand. Dunn X-rayed Mr. Frazier and admitted him to the hospital. Dr. Dunn turned the patient over to Dr. Lee who was his regular physician.

Dr. A. V. Lee testified that he examined Henry Frazier at Mizell Memorial Hospital on August 21, 1977. Lee stated that Mr. Frazier had suffered a fracture of the left femur just above the knee. Lee also noticed swelling in Mr. Frazier’s right wrist; however, no fracture was present there. Mr. Frazier had had difficulty with arteriosclerosis in the past.

At this point the State rested its case and appellant made the following motion, which was denied by the trial court.

“MR. PREST WOOD: May it please the Court, at this time we move that Your Honor exclude the evidence of the State, and the State has rested, of course. And' as grounds for our motion to exclude the evidence and to discharge this Defendant we say as follows: One, the State has not made out a case. Has not presented facts to support the charge of assault with intent to murder. The injured party, the prosecuting witness Henry Frazier testified in your presence this morning, that he fell. He testified further that LaDon might have pushed him. He wasn’t certain. Or in substance that. He testified further that he wouldn’t say, when I asked him directly that question, would he answer under oath that LaDon hit him, knocked him off or shoved him. He dropped his head and said he wouldn’t answer it, he just didn’t remember. We have the testimony of Dr. A. V. Lee, whose qualifications were recognized by all parties and who stated that the injured party Henry Frazier, was suffering from arteriosclerosis and that a patient suffering from arteriosclerosis, especially at his age, would have trouble recalling. And some of them did. Which means, the way I understand it, that his memory would not function as well as somebody that didn’t have arteriosclerosis, at the age which he has now obtained. And we argue further as a ground that there is no felonious intent involved. That a conviction with assault with intent to murder has got to meet the test had the person died the charge would have been murder. And I think it is clear to everybody at the conclusion that the first blow was struck out there — we are getting now, away from just talk Your Honor, but on assault with intent to murder the first blow out there was struck by Henry Frazier by his own admission. The first and only weapon on the scene was not produced by LaDon Frazier, here, but by Mrs. Mary Lou Frazier of her own testimony. There is no evidence that LaDon Frazier made any remarks to the effect that he was going to knock anybody’s head off or kill them or take their life. On the other hand there is evidence that she engaged in violence when she brought the gun out there and tried to knock his head off. That is what she said and she said it twice. Now, I realize that motions to exclude the evidence are rarely granted, I understand that, but I also think it is our duty to point out to the Court that the elements required in proving the case of assault with intent to murder are not complete in this case.
“THE COURT: I deny the motion.”

Aubry McGraw testified that he was a Deputy in Covington County. On the day of trial, McGraw went to the home of Henry Frazier and got a revolver from a chest of drawers in the house. Five cartridges, one of which was spent, were in the weapon.

Mary Lou Frazier was then recalled. Mrs. Frazier identified the revolver brought to court by McGraw as the pistol with which she had hit appellant. The spent cartridge had been fired by Herman Lord, the Fraziers’ son-in-law, to check the weapon, after the incident on August 20, 1977.

Howard Easley testified that he was employed by the Covington County Sheriff’s Department. On August 20, 1977, Easley went to Henry Frazier’s home in response to a disturbance call. After arriving there, Easley went and spoke to appellant at Dee’s house. Appellant’s account of the incident as related to Easley is set out below:

“Q. Did you ask him to tell you what had happened?
“A. Yes, sir, as he came out the door, I told him that I wanted to talk to him and that we were answering a call to a disturbance, wanted to talk to him in regards to this disturbance. At that time I advised him of his constitutional rights and asked him if he would tell me what was going on, what had happened.
“Q. Did he tell you?
“A. Yes, sir, he did.
“Q. What did he tell you?
“A. He told me that he had been to, I believe the relationship, in his uncle’s house, Mr. Henry Frazier’s house, with his father and that they had gotten into an argument. And particularly over a land line dispute and that in the course of the argument he and Mr. Frazier had become involved in some sort of tussle and that Mr. Frazier was pushed down.
“Q. Now, did he mention to you about a gun?
“A. Yes, sir, he did.
“Q. What did he say to you about the gun?
“A. He said that Mrs. Frazier had gone in the house and gotten a gun and had come back out and this is the time that he had gotten into the tussle with Mr. Frazier.
“Q. All right, when the gun came out, is when the tussle started, is that what he told you?
“A. That is what he told me, yes, sir.
“Q. In other words the fight did not start until the gun arrived on the scene?
“MR. McGILL: Object to his leading his own witness, Your Honor.
“THE COURT: Sustained.
“Q. Well let’s put it in sequence for the jury. I am confused myself. He told you about a gun being present. Did he tell you the fight stárted or the tussle started before or after the gun got there?
“A. He told me that it started after the gun was presented.
“Q. All right, and what else did he tell you?
“A. That is basically all that he said.”

Further, Easley testified that he did not see any abrasions or blood on appellant’s head. Nor did he see any blood on appellant’s clothing.

J. D. Frazier testified that he was appellant’s father and the brother of Henry Frazier, the victim. On August 20, 1977, Dee and appellant stopped by Henry Frazier’s home to see how he and his wife were getting along and talked twenty to thirty minutes. Then Mrs. Frazier asked how the land line dispute was progressing between Dee and Dudley Reeves. When Dee told Mrs. Frazier that he had gotten his spring back, she “commenced to raying” that it was not Dee’s spring, but hers and Henry’s. Mrs. Frazier ran inside the house and returned with a pistol which she snapped twice and then used to strike appellant on the head. When appellant attempted to get the pistol, Henry Frazier “run up on Don [appellant] and was hung around Don’s neck. And all three of them fell in the yard and that was it.” Dee further testified that he and appellant then went home. Dee then identified two photographs, depicting a wound on his son’s forehead, which were introduced into evidence. Further, Dee testified that no cussing or drinking was done by him or appellant.

Peggy Frazier, appellant’s wife, testified that when appellant came home that night there “was blood pouring all down his face.” Appellant required first aid, and Mrs. Frazier stanched the flow of blood with alcohol and cotton. Through testimony of appellant’s wife, appellant’s clothing which he wore the day of the incident was introduced into evidence. Blood and grass stains were on appellant’s shirt and trousers.

Appellant then testified that he had never had any trouble with his aunt or uncle until August 20, 1977. Appellant’s testimony was substantially the same as his father’s. In summary, appellant testified that he did not initiate the trouble and that he struck neither his aunt nor his uncle. He denied that he was drinking at the time of the incident and said that he had not had a drink that day.

Several witnesses then testified to the good general reputation appellant enjoyed in the community for truthfulness and veracity and peacefulness.

This concluded the defendant’s case.

In rebuttal, Howard Easley testified that appellant did not tell him about having been struck on the head by a pistol. Nor did Easley observe any wound or blood about the appellant’s forehead.

Appellant first contends that the trial court cut short appellant’s opening statement to the jury, denying him the right of explaining to the jury what he expected the evidence to show. From the record:

“MR. PRESTWOOD: We expect the evidence to show that the feelings were going from Mr. and Mrs. Henry Frazier, down through their daughter, Herman Lord and his wife, and we expect the evidence to show that the sentiment and feeling has been so strong that up here in the Courthouse _ _ _
“MR. McGILL: We object to this, Your Honor, that is not what he expects the evidence to show in this case.
“THE COURT: Yes, sustained.”

It is well established that the scope and extent of counsel’s opening statement to the jury in a criminal case are matters in the sound discretion of the trial judge and his ruling will not be overturned unless an abuse of discretion is shown. Baker v. State, 48 Ala.App. 535, 266 So.2d 340, cert. denied, 289 Ala. 739, 266 So.2d 344. Hooks v. State, 45 Ala.App. 221, 228 So.2d 833. We find no such abuse here. From the tenor of appellant’s other comments from his opening statement which appear in the record, it is apparent that appellant was attempting to interject prejudicial matters into the case. Furthermore, appellant presented no evidence at trial concerning the bias or prejudice of any party against him. The trial court committed no error in limiting counsel’s opening statement to the jury.

Next appellant urges that the trial court erred to reversal by allowing in evidence the hospital records of the victim which showed how he came to be injured. In those records, the following statement by Dr. Lee appears:

“This 82 year old male was brought into the hospital during the night after being involved in this trouble in his home by an intruder. They got into a scramble and in some way he injured his left knee and right wrist. He has swelling in these areas. His X-ray reveals questionable' fracture off the inner aspect of the tibial. Wrist does not demonstrate a fracture that we can make out. He is complaining of being real sore with quite a bit of pain mainly in this knee. He was admitted to the hospital for further treatment.”

The expert opinion testimony of a witness physician concerning the medical condition of a patient may be based in part upon present and past symptoms as related to the physician by the patient. However, this rule does not allow the admission in evidence of the patient’s statement concerning the circumstances of his injury or the question of responsibility for the injury. Gamble, McElroy’s Alabama Evidence, 3rd Edition, Section 110.01(1), (2). The victim did not tell the doctor who inflicted the injuries on him. Appellant’s name was not mentioned.

Here there was no error. In Humphries v. State, 39 Ala.App. 316, 98 So.2d 625, we find the following excerpt:

“Citing the principle that, while medical opinion evidence may be founded on a patient’s statement to the physician, yet the patient’s statement as related by the witness cannot go into ‘responsibility for the injury,’ the defendant claims error in the following answer of Dr. Barnes on direct examination.
“ ‘A. I assumed from medical history that the girl had had some rough treatment, and had been forced to have sexual intercourse some 24 hours or maybe the afternoon before somewhere out near the edge of the county, but I don’t remember which direction.
“ ‘Mr. Ralph Bland: We make a motion to exclude that statement.
“‘Court: Overruled.’
“We do not infer that the defendant was thereby associated with rough treatment or with forcing the girl to have intercourse. We construe Judge Bouldin’s use in Lowery v. Jones, 219 Ala. 201, 121 So. 704, 706, 64 A.L.R. 553, of ‘responsibility for the injury’ to mean identifying the person whom the patient claimed to be responsible for causing the injury. See Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543; discussion in Taylor v. Atlantic Coast Line R. Co., 232 Ala. 378, at page 381, 168 So. 181, at page 183; and McElroy, Law of Evid. in Ala., § 110.”

Appellant also contends that additional error was committed by the trial court in overruling certain objections by appellant to questions asked of appellant’s character witnesses by the State. From the record:

[Cross-examination of C. L. Carlisle]
“Q. Have you ever heard any rumors or statements prior to August the twentieth, 1977, that would impute acts of violence toward Mr. LaDon Frazier?
“A. No, sir.
“Q. Never heard that?
“A. No, sir.
“Q. Back before August the twentieth, 1977, had you heard he was charged with trespass after warning and destroying property of others?
“A. No, sir.
“Q. Haven’t heard that?
“A. No, sir.
“Q. You live up there in the community with him?
“A. I live over on 331 and I believe he lives in Andalusia here. His family lives over there.
“Q. Well, you said you knew his general reputation in the community where he lives? What do you base it on? You have to base it on what you hear, don’t you?
“A. Yes, sir.
“Q. But you haven’t heard that?
“A. No, sir.
“Q. All right, prior to August the twentieth, 1977, had you heard that he was charged with assault and battery?
“A. No, sir.
“Q. You haven’t heard that, either?
“A. No, sir.
“Q. Then you haven’t heard all of the statements about him?
“MR. JOHNSON: We object to that, Your Honor, as if there have been such statements.
“THE COURT: Overruled.
“MR. JOHNSON: We except.”

Appellant argues that the State cannot prove a defendant’s bad character by proof of specific acts. This rule of evidence is inapplicable to the facts of the case at bar.

A witness who has testified to the good general reputation of the accused may be cross-examined as to rumors derogatory to the accused. The purpose of the State’s being able to do this is not to prove the bad reputation or character of the accused, but to test the credibility of the character witness. A full discussion of this principle may be found in Gamble, McElroy’s Alabama Evidence, 3rd. Edition, Section 27.01(5), and cases there cited.

Finally, the sufficiency of the evidence to sustain appellant’s conviction for assault and battery must be examined. This question is preserved for review through appellant’s motion to exclude the State’s evidence and motion for new trial.

An assault and battery consists of any touching of another in rudeness or anger. Englehardt v. State, 88 Ala. 100, 7 So. 154; Jacobi v. State, 133 Ala. 1, 32 So. 158. And an intent to injure is an essential element of the offense. McGee v. State, 4 Ala.App. 54, 58 So. 1008.

Here the State’s evidence, if believed by the jury to the required degree, was sufficient to sustain appellant’s conviction. Appellant has no defense to his attack on Henry Frazier, though Henry struck the first blow. Riddle v. State, 49 Ala. 389. Appellant’s use of opprobrious words to the victim provoked the first blow and, thus, Henry Frazier’s striking appellant was justified. Section 13-1-51, Code of Alabama, 1975, and the annotations.

As noted before, the evidence surrounding this incident is almost in total conflict. However, such evidence presented a question for the jury to determine. See Alabama Digest, Criminal Law, &wkey;747, for numerous cases on this principle of law.

A careful search of the record reflects no error injuriously affecting the substantial rights of the appellant. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except BOOK-OUT, J., who concurs in the result.


text:
    Dennis Carl CHASTANG v. STATE.
    1 Div. 952.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.
    C. LeNoir Thompson of Thompson & Morgan, Bay Minette, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Dennis Carl Chastang, was convicted in the Inferior Court of Baldwin County, Alabama on a charge of night hunting, and on a charge of carrying a pistol without a permit. He appealed both convictions to the Circuit Court of Baldwin County where the charges were tried together by the court without the intervention of a jury, and appellant was convicted on both charges. A fine of $100.00 for night hunting, and $25.00 for carrying a pistol without a permit were assessed against him.

The appellant is now, and was at all proceedings in the trial court, represented by counsel of his own choice. This appeal was submitted to this Court on briefs.

Appellant states in his brief three reasons why his conviction should be reversed: First, because the District Attorney did not file a Solicitor’s complaint; second, because the evidence does not support the judgment; third, because a search and seizure was illegal.

The record discloses that the appellant appeared in the circuit court with his counsel present and was arraigned on the original affidavits filed in the Inferior Court of Baldwin County and entered a plea of not guilty in each case. No question was raised in the trial court with reference to a Solicitor’s complaint, and the original affidavits being filed in the circuit court, and the appellant having pleaded to them without objection, we hold that the failure of the District Attorney to file a complaint in the circuit court was waived by the appellant, and he cannot complain for the first time in this Court on appeal from the circuit court. Seaman v. State, 28 Ala.App. 480, 188 So. 269; Chambers v. State, 31 Ala.App. 269, 15 So.2d 742.

State’s evidence tended to prove that the appellant and another person were hunting deer at 12:15 A.M. o’clock along a public road in Baldwin County, Alabama; that appellant had in his possession in his car a spotlight and a pistol, and no pistol permit.

There was no objection to state’s evidence during the trial, there was no motion to exclude state’s evidence as to the charge of night hunting, there was no motion for a new trial. We hold as to the charge of night hunting the sufficiency of state’s evidence is not presented to this Court by this record. Thornton v. State, Ala.Cr.App., 356 So.2d 667; Lambert v. State, Ala.Cr.App., 358 So.2d 773.

At the conclusion of state’s evidence the appellant moved the court to suppress the evidence of the pistol and to dismiss the charge of possession of a pistol without a permit because it was the fruits of an illegal search of appellant’s automobile.

State’s evidence tended to prove the following: That a deputy sheriff of Baldwin County, a few minutes before 12:15 o’clock, A.M. on the day appellant was arrested, had observed the appellant on three occasions riding up and down the same public road in Baldwin County near a bean patch where deer are hunted, driving about ten or fifteen miles an hour, flashing a spotlight into the woods and had heard a gun blast come from down where appellant’s car was and in about a minute or a minute and a half appellant’s car was stopped by the officer and a loaded 38 pistol was found by the officer under the driver’s seat, and a spotlight was found on the floor board on the passenger’s side; that the officer arrested the appellant for night hunting and for possession of a pistol without a permit.

It appears to us that the deputy sheriff had probable cause to arrest the appellant for night hunting and to search his car for articles situated therein used in night hunting. We hold that the trial court did not err in overruling appellant’s motion to suppress the evidence of the pistol and dismiss the charge of possession of a pistol without a permit. Daniels v. State, 290 Ala. 316, 276 So.2d 441; Code Of Alabama, 1975, Sec. 13-6-153.

We have searched the entire record for errors prejudicial to the appellant 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; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Antionette POSEY v. STATE.
    3 Div. 957.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.

      Joseph G. L. Marston, III, Prattville, for appellant.
    William J. Baxley, Atty. Gen. and Karen Neal Daniel, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant in this case was indicted for the first degree murder of her infant daughter “by holding her face down on a mattress until she suffocated.” The jury found appellant guilty of murder in the second degree and fixed punishment at twenty years imprisonment. The trial judge set sentence accordingly.

On pretrial motion of appellant’s counsel, the court below ordered on February 8, 1978, that appellant be delivered to Bryce Hospital for observation and evaluation pursuant to § 15-16-20 and § 15-16-21, Code of Ala.1975. Subsequently, the superintendent of Bryce Hospital certified that appellant had been “restored to her right mind” as specified in the above mentioned statute. (R. p. 115) On April 12, 1978, appellant was transferred to the Montgomery County Jail to stand trial for the charges against her. (R. p. 116)

Dr. Richard Roper, State Toxicologist, testified that he performed an autopsy on the infant portrayed in the photograph introduced as State’s Exhibit No. 1. Dr. Roper was shown to possess the requisite qualifications and experience to express his opinion as to factors capable of causing human death. Dr. Roper stated that various observed characteristics of the organs of the infant’s body indicated that death was the result of a respiratory insufficiency which lacked any natural cause such as disease or other pathology. More specifically, Dr. Roper stated that the respiratory insufficiency occurred as a result of asphyxia due to suffocation. (R. p. 8)

George Leak, a Montgomery police detective, testified that on the morning of December 11, 1977, he went to an apartment at 425F Caroline Court in Montgomery County, Alabama. In one of the bedrooms, Detective Leak found the dead infant. Outside the presence of the jury, Detective Leak repeated the warning he gave to the appellant as to her rights under the Fifth and Fourteenth Amendments to the United States Constitution. The appellant requested permission to call a witness to testify as to appellant’s mental capacity to waive her constitutional rights. The trial court denied the request ruling that such testimony could be presented during the case for the defense.

When the jury returned, Detective Leak was allowed to testify that the appellant had told him how the infant’s death had occurred. Detective Leak assured the court that no threats, intimidation, promises, inducements or other coercive influences of any nature had been offered or made in order to induce the appellant to talk to him. Officer Leak stated:

“A.. She said the baby had been crying during the night and about four thirty A.M. she had got up with the baby and fed it. And after this the baby still would not quit crying so she turned it face down to the mattress and held its face into the mattress until it did quit crying. And then she woke up the next morning and the baby was still laying face down.”

It was shown by Detective Leak’s testimony that later the same day at approximately 9:45 a. m., the appellant signed a waiver form and a written statement which were introduced and admitted into evidence over objection of defense counsel. On cross-examination it was noted that the appellant was in custody at the time the statement was taken.

Montgomery Police Detective Leo Blankenship testified that the appellant executed a second waiver of rights form at 4:20 p. m. on December 12, 1977. Shortly thereafter, the appellant gave another statement to the police which was reduced to writing and signed by the appellant. The proper predicate having been laid, the trial judge admitted the second waiver and written statement into evidence over defense counsel’s objection. At the close of Detective Blankenship’s testimony, the State rested its case.

Outside the presence of the jury, the defense moved to exclude the State’s case. The trial judge denied the motion whereupon the defense presented its case to the jury.

The sole witness presented by the defense was Leonard Daley. Although he was not a licensed psychologist, Mr. Daley testified that he had earned a Master’s Degree in Psychology and had been involved in psychological counseling for ten years. Mr. Daley had listened to a taped interview between the appellant and her attorney in jail and had interviewed the appellant for about one hour in jail. Based on this examination of the appellant, Mr. Daley was able to evaluate the appellant’s psychological condition. Mr. Daley concluded that the appellant appeared to be displaying some symptoms of an incipient schizophrenic episode. Mr. Daley explained that this meant that, on certain occasions, the appellant would be incapable of accurately perceiving her external reality. These occasions could be the result of hysteria or stress. Mr. Daley stated that the appellant would probably behave aggressively or violently during the occurrence of a schizophrenic episode. While behaving in this manner, the appellant would have no consciousness of what is right and what is wrong.

Following Mr. Daley’s testimony, the defense rested. Subsequently, the trial judge delivered the oral charge to the jury together with certain requested written charges. The trial judge refused to give the affirmative charge to the jury.

I

The appellant’s counsel contends that the appellant was incompetent at the time of trial and, consequently, should not have been put to trial under the rationale of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The record in this case does not support this contention. The appellant’s medical and psychiatric records which were compiled during her three months at Bryce Hospital were carefully reviewed and evaluated prior to the superintendent’s letter to the circuit judge dated April 3, 1978. (R. p. 115) In that letter, the superintendent stated that the appellant had been “restored to her right mind” in accordance with § 15-16-20, Code of Ala.1975. In a subsequent letter to the circuit judge dated June 8, 1978, the superintendent of Bryce Hospital stated: “Upon discharge from his hospital, she [appellant] was competent to stand trial.” (R. p. 123)

Therefore, it is our opinion that the circuit judge on April 12, 1978, properly ordered the appellant transferred to the Montgomery County Jail to stand trial. (R. p. 116) Furthermore, we find no error in the trial judge’s decision not to hold a formal hearing to determine the competency of the appellant to stand trial. In Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974), the Alabama Supreme Court, per Mr. Justice Faulkner, collected the cases dealing with the issue here presented. The Court stated:

“The defendant contends that at no time was there a valid determination of his competency to stand trial and assist in his own defense. This raises several issues of paramount importance. In the case of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Supreme Court of the United States enunciated the rule that if a sufficient doubt as to the present competency of the accused is made known to the trial court, then the court must hold a hearing on the issue of competency to stand trial. The defendant is constitutionally entitled to such a hearing. The law in this State until very recently has been that it is in the complete discretion of the trial judge to implement any sanity investigation, whether under § 425, 426, or 428 of Title 15, Code of Alabama, 1940, Recompiled 1958. Numerous cases have in the past supported this proposition. See Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970); Ex Parte Bush, 247 Ala. 351, 24 So.2d 353 (1945); Burns v. State, 246 Ala. 135, 19 So.2d 450 (1944); Whitfield v. State, 236 Ala. 312, 182 So. 42 (1938); Rohn v. State, 186 Ala. 5, 65 So. 42 (1914); Granberry v. State, 184 Ala. 5, 63 So. 975 (1913).
“However, in Pierce v. State, 292 Ala. 745, 293 So.2d 489 (1974) (writ quashed), the ‘old’ approach was abandoned in favor of one more in keeping with the due process requirements of Pate. Chief Justice Heflin wrote in Pierce:
‘The law is now settled that if sufficient doubt of the defendant’s present mental competency is raised before or during trial, then it is mandatory that there be a judicial hearing to determine his mental competency to stand trial, and that the refusal of the trial court to grant such a hearing is reviewable.’
“To the extent the above cited cases conflicted with the holding, they were overruled.
“In light of the above, we still do not feel the trial court was in error. The mere fact that the defendant asked for a sanity investigation under § 428, Title 15, Code of Alabama 1940 certainly did not constitute a ‘sufficient doubt’ or ‘reasonable cause.’ . . . ”

Under the evidence presented in the instant case, we find a similar lack of “sufficient doubt” or “reasonable cause” to doubt appellant’s sanity at the time of trial. Hence, a hearing under either § 15-16-20 or § 15-16-21, Code of Ala.1975, was unnecessary.

II

Appellant contends that her confessions were not shown to have been voluntarily and intelligently given. In support of this argument, appellant relies strongly upon the results of intelligence tests administered at Bryce Hospital. These results placed appellant in a category denominated “borderline mental retardate.”

In Jones v. State, Ala.Cr.App., 362 So.2d 1303 (1978), this court quoted Mitchell v. State, Ala.Cr.App., 338 So.2d 524 (1976):

“ ‘In order to hold that the appellant was incapable of voluntarily confessing, we would have to take judicial notice of a fact not in evidence, i. e., that a person with an I.Q. of 65 does not have the mental capacity to voluntarily confess. This we cannot do. . . .’”

In the instant case, the evidence showed that the appellant had a full-scale I.Q. of 76. (R. p. 51) Moreover, it was shown that the appellant completed the eleventh grade in school. Although Mr. Daley testified that it was his opinion that under stress the appellant could not function rationally, the opinions of the experts at Bryce Hospital were to the effect that the appellant was competent to give a voluntary and intelligent statement to the police. Elrod v. State, 281 Ala. 331, 202 So.2d 539 (1967); Twymon v. State, Ala.Cr.App., 358 So.2d 1072 (1978).

Furthermore, it was pointed out on cross-examination that Mr. Daley’s total contact with the appellant consisted of a one hour interview in jail and listening to a ten minute tape of an interview between the appellant and her attorney. In such a situation, the conflict in the evidence presents a question of fact for the jury. Barnes v. State, Ala.Cr.App., 361 So.2d 390 (1978), cert. denied, Ala., 361 So.2d 396 (1978); Higginbotham v. State, Ala.Cr.App., 346 So.2d 525 (1977); Jones v. State, 54 Ala.App. 251, 307 So.2d 59 (1975).

It was shown through testimony of the police that the appellant was duly informed of her Miranda rights. (R. p. 27) Furthermore, we find the record in this case totally void of any indication of improper inducements, threats, abuse or promises made to the appellant in order to get her to make a statement. We, therefore, conclude that the trial court’s admission of the appellant’s statements was proper.

In a related argument, the appellant contends the trial court erred in refusing to allow the testimony of Mr. Daley to be presented at the hearing to determine the voluntariness of the appellant’s statements. In his ruling, the trial judge stated that such testimony would be allowed when the defense presented its case in chief. (R. p. 30) The issue of the appellant’s competence to stand trial having already been decided prior to trial, Mr. Daley’s contradictory testimony was clearly not probative of the issue of whether vel non the appellants confession was voluntary. Hence, the exclusion of Mr. Daley’s testimony from the voluntariness hearing was proper.

Ill

The appellant contends that she was denied her constitutional right to confront witnesses against her when the trial judge ruled that the proper procedure to obtain the testimony of the physician in charge of the state mental hospital is by way of deposition under § 12-21-260, Code of Ala.1975. This court has addressed this issue, and it is settled that the statutory procedure referred to hereinabove comports with constitutional requirements. Sheppard v. State, 49 Ala.App. 398, 272 So.2d 605 (1973); Rich v. State, 51 Ala.App. 556, 287 So.2d 873 (1973); Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, cert. quashed, 292 Ala. 745, 293 So.2d 489 (1973).

This court is aware of no controlling authority requiring the appointment of a court reporter to depose a witness when the accused is indigent. See Clark v. State, 294 Ala. 493, 318 So.2d 822 (1975).

After careful examination of the record in this case, we find same to be free of error. The judgment of conviction is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Nathaniel DOUGLAS v. STATE.
    6 Div. 604.
    Court of Criminal Appeals of Alabama.
    Jan. 16, 1979.

      Roy J. Brown, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Larry Newman, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant, Nathaniel Douglas, was indicted by the grand jury of Jefferson County for the robbery of one William A. Harrison by taking some $48.00 in currency from his person and against his will, etc. The jury found the appellant guilty as charged and fixed his punishment at ten years imprisonment in the penitentiary. The trial judge set sentence in accordance with the verdict.

William A. Harrison, Jr., testified that, on the evening of February 11,1977, he was working at a U-Totem convenience store in Birmingham. The appellant entered the store about 9:45 p. m., pulled a ski-mask over his face, brandished a pistol, and demanded money (R. pp. 10-13). Harrison maintained that he saw the appellant’s face before he pulled on a ski-mask (R. pp. 12, 18). After handing over some $45.00 to $50.00, Harrison was instructed to lie down behind the counter and was told that the robber’s partner would return for the “big bills” (R. p. 13). Shortly thereafter, Harrison heard gunshots, and he called the police (R. p. 19). Harrison indicated that he did not remember giving a description to the police that night (R. pp. 71-77). Fifteen to twenty minutes later, the police took Harrison to see a suspect they had apprehended (R. pp. 40-43). At that time, Harrison identified the suspect as the person who had committed the robbery (R. pp. 46-47). The suspect was handcuffed when shown to Harrison, and no other suspects were present (R. p. 43).

Under voir dire examination, Harrison described the perpetrator as standing approximately six feet tall, weighing about 130 to 140 pounds, and wearing a goatee and mustache. Harrison said the robber was wearing a dark brown pullover shirt, khaki pants, a dark leather jacket, and a toboggan (R. pp. 16-17). In court, Harrison identified the appellant as the person who committed the robbery (R. p. 15). He testified that State’s Exhibit One looked like the ski-mask used in the robbery (R. p. 199).

On the night of the robbery, Officers Frederick Lee Fulgham and Kenneth W. Williams of the Birmingham Police Department were involved in a stake-out of the U-Totem store (R. pp. 24, 138). Officer Fulgham stated he observed the appellant approach and enter the store (R. pp. 24-25, 118). He was uncertain, however, about whether or not he saw facial hair on the appellant at this time (R. pp. 26, 36, 128-130, 140-141). Fulgham recalled that, when the appellant left the store, he pulled the ski-mask, which was over his face, onto the top of his head and tucked something down the front of his pants (R. pp. 27,119). At that point Fulgham and his partner identified themselves as police officers and several times ordered the appellant to stop (R. pp. 27, 120). The appellant ran to a parked car and shots were exchanged as the appellant drove away (R. pp. 28, 136-137). Fulgham and his partner alerted other police units as to what had transpired (R. p. 122) and then attempted to follow. They found the car abandoned a few blocks away on a dead end street. The car had three bullet holes in it (R. p. 127). Fulgham testified that he did not directly participate in the arrest of the appellant (R. p. 33). At trial, Fulgham identified the appellant as the person he saw go into the U-Totem store on the night of February 11, 1977 (R. p. 125).

Officer Donald H. Boner testified that, on the night of the robbery, he was sent to bring William A. Harrison to the scene of the abandoned getaway car because the police had a suspect in custody there (R. p. 40). Upon arrival at the scene, the handcuffed suspect (appellant) was shown to Harrison, and he identified the suspect as the person who had robbed him earlier that night (R. p. 47).

Officer Kenneth W. Williams was Officer Fulgham’s partner on the night of the robbery (R. p. 81). Officer Williams’ testimony was substantially the same as that of Officer Fulgham. Williams, however, remembered seeing a mustache and goatee on the appellant before the robbery (R. p. 91). Furthermore, he said that some twelve one-dollar bills were found scattered in and around the abandoned automobile (R. p. 92). He also identified the appellant in court as the person he saw and chased on the night of the robbery (R. p. 94). Finally, Williams identified State’s Exhibit Two as a photograph of the abandoned getaway car and State’s Exhibit Three as a photograph of the handcuffed suspect (appellant) taken in the vicinity of the abandoned car (R. p. 106).

Officer Jerry Frazier of the Birmingham Police Department testified that, on the night of the robbery while on patrol (R. p. 143), he got a call to proceed to a residential address to look for a prowler (R. p. 157). When he arrived at that address, he apprehended a black male (appellant) who was on the front steps of the residence (R. p. 144). He told the black male to get on his stomach. He then placed handcuffs on him and put him in the back seat of the patrol car (R. p. 145). Officer Frazier testified that the suspect was soaking wet at the time and had mud all over his pants and shoes (R. p. 146). After the suspect was placed under arrest for suspicion of prowling and suspicion of robbery, Officer Frazier conducted a pat down search of his person (R. p. 161). Frazier took the suspect to where the getaway car had been abandoned and showed the suspect to the store manager (R. p. 147). At this time, Frazier conducted a thorough search of the suspect’s person and found a set of car keys and some money (R. pp. 147,161,164). Officer Frazier successfully started the getaway car with keys he had taken from the suspect (R. pp. 147-148,162,167). Frazier said he gave the keys and money to the evidence technician (R. pp. 148, 169). At trial, Officer Frazier identified the appellant as the person he had arrested and searched that night (R. p. 156).

Officer Roger D. Harrison of the Birmingham Police Department testified that, on the night of the robbery, he received a call to go to a residential address (R. p. 177). When he arrived, he saw Officer Frazier conducting a pat down search of the appellant (R. pp. 177-178). Officer Harrison and several officers searched the wooded area behind the residence and found a red ski-mask, a black leather jacket, and some currency (R. p. 182). Officer Harrison identified State’s Exhibit One as the ski-mask he found that night (R. p. 184). He identified State’s Exhibit Six as the black jacket he found that night (R. p. 186). Officer Harrison said he turned the above named items over to the evidence technician at the Ens-ley Precinct (R. p. 187).

The parties stipulated that the appellant had $123.00 in currency in his possession at the time of his arrest (R. p. 204).

At the close of the State’s case, appellant made a motion to exclude the State’s evidence, which was overruled.

No evidence was presented for the defense at trial.

I

Appellant contends that the identification of appellant, made by the victim of this robbery shortly after the robbery occurred, was unnecessarily suggestive and conducive to irreparable mistaken identification and, therefore, it was error for the trial court to overrule a motion to suppress this evidence.

The appellant claims that Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), mandate a reversal of his conviction. We do not agree.

In Denson v. State, Ala.Cr.App., 348 So.2d 1139 (1977), this Court held that a “one-man showup” identification of the defendant, conducted within forty-five minutes of the robbery, was “good police work” and not so unnecessarily suggestive and conducive to irreparable misidentification as to deny the defendant due process. Id. at 1140. See also cases cited therein.

In the present case, the victim, Mr. Harrison, saw the appellant’s face before he pulled the ski-mask down (R. pp. 12, 18), and the subsequent one-man showup occurred within twenty minutes of the robbery.

In Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623 (1973), Judge Harris, in quoting from Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104 (1968), expressed the rationale for the rule as follows:

“[T]he police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh.” Id. 132 U.S.App.D.C. at 38, 405 F.2d at 1106.

The appellant’s motion was properly denied.

II

Appellant next contends that the failure of the prosecution to trace the possession of the ski-mask from the evidence technician to the courthouse broke the “chain of custody” and therefore the ski-mask should not have been admitted into evidence.

Judge Bowen, in Sexton v. State, Ala.Cr.App., 346 So.2d 1177 (1977), set forth that to admit an object into evidence against a claim that “an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.” Id. at 1180. See cases cited therein.

In the case at bar, Officer Harrison testified that the ski-mask was the one he had found, that it was in substantially the same condition, and that it had the same coloring, design, and holes as when he found it (R. pp. 184, 185). Therefore, the admission of the ski-mask into evidence was not error.

Ill

Appellant’s final contention is that, since no grounds existed which would support the lawful arrest of appellant, any evidence found while searching appellant would be inadmissible.

We disagree with appellant’s contention that no probable cause existed which would support a lawful arrest.

This Court in Brown v. State, 55 Ala.App. 615, 318 So.2d 311 (1975), noted that “[A] police radio message as to a felony involving fleeing suspects is sufficient to support a lawful arrest.” Id. at 619; 318 So.2d at 314. See cases cited therein.

In the present case, the arresting officer, prior to the arrest, had received a radio message informing him that a robbery had been committed and giving him a description of the suspect’s clothing (R. pp. 158, 159). Thus, the arresting officer did have probable cause to arrest the appellant, and any evidence found on the appellant incident to the lawful arrest was therefore admissible.

We find no error, and this cause is

AFFIRMED.

All the Judges concur.

BOWEN, J., in result only.