author: HOLMES, Judge. WRIGHT, Presiding Judge

text:
    WINSTON INDUSTRIES, INC. v. The STUYVESANT INSURANCE COMPANY, INC.
    Civ. 443.
    Court of Civil Appeals of Alabama.
    June 11, 1975.
    Rehearing Denied July 9, 1975.

      James N. Brown, III, Birmingham, for appellant.
    C. William Gladden, Jr., Birmingham, for appellee.
   HOLMES, Judge.

Appellant appeals a jury verdict rendered against it and in favor of appellee in the amount of $2,950.

Appellant was the manufacturer of a mobile home sold by a retailer to Freeman Floyd, hereinafter referred to as Purchaser. Appellee is an insurance company who insured the mobile home for Purchaser and is subrogee of Purchaser.

The mobile home was purchased on December 18, 1969, by Purchaser from a retailer for a purchase price of $7,200. The retailer was a Mississippi company. However, the mobile home was delivered by the retailer directly from appellant-manufacturer, an Alabama business, and was then “set” up by the retailer. The Purchaser, in fact, had several dealings directly with appellant-manufacturer prior to delivery of the mobile home, e. g., picking out carpets. The mobile home was the personal residence of Purchaser.

The mobile home was insured by the ap-pellee for Purchaser, apparently in January of 1970. Sometime during this same month Purchaser entered a hospital some two hundred miles from his home. While in the hospital Purchaser’s wife spent much time with him, including some nights, and, of necessity, left the mobile home unattended.

After discharge from the hospital, Purchaser and his wife, who. had been away from the mobile home for several days to be with her husband, returned home and discovered that the mobile home was saturated with water. Purchaser discovered that this flooding within the mobile home was caused by a waterline under the lavatory having come loose. This resulted in flooding the mobile home. In fact, according to testimony of Purchaser, the water reached a depth of six inches as evidenced by water stains on the curtains.

This flooding resulted in extensive damage. Purchaser testified that the carpet became discolored, the curtains had to be replaced and the floor began to buck. Additionally, in the months following the flooding, other changes in the condition of the mobile home occurred. On the side of the main entrance of the front door the outriggers gave way. This resulted in the sidewall dropping; the front door being unable to be opened or closed; and the floor beginning to cave through. In fact, in the front bedroom the bed fell through the floor. The carpet that replaced the original discolored carpet rotted out. Certain personal property within the mobile home was also damaged.

Following his discovery of the damages, Purchaser contacted both the retailer and the manufacturer-appellant and reported to them what had happened. Appellant-manufacturer sent someone out to inspect the damage. According to testimony of Purchaser, people representing appellant-manufacturer came out four or five times. Not only did manufacturer inspect the premises, but they also made several repairs, including replacing the carpet in the living room, replacing the tile in the half bath (site where the leak occurred) and the front bedroom, and also attempting to nail the buckled presswood back down.

Purchaser wrote appellee-insurance company a letter informing it of his damages. The claim was finally settled for $5,900 after Purchaser brought suit against appel-lee.

Purchaser testified that he purchased the mobile home for $7,200. He made thirty-three monthly payments on it, in an amount of $106.42 a month. He lived in the trailer, despite the damage to it, for three years. He eventually stopped making the payments on the mobile home. His case with the insurance company was settled shortly thereafter.

Appellee-insurance company, having settled its claim with Purchaser and, as sub-rogee of Purchaser, filed a petition for declaratory judgment against appellant (and other named defendants) alleging breach of express and implied warranties. The suit went to the jury on the issue of breach of express warranty resulting in the aforementioned verdict in favor of appellee in the amount of $2,850. Appeal was then taken to this court.

Appellant’s argued assignments of error present three issues. The first issue raised is the contention by appellant that the verdict is against the weight of the evidence in that appellee did not prove that an express warranty existed from appellant to Purchaser. The second contention of appellant is that appellee did not prdve any product or manufacture defect. The third contention is that the amount of damages is excessive in that the amount of payment by appellee to Purchaser is unsupported by the evidence.

I

The main contention of appellant is that appellee failed to prove that an express warranty existed from appellant to Purchaser upon which appellee, as subro-gee, could rely in his claim against appellant-manufacturer. The basis of this contention is testimony by Purchaser, himself, that he did not receive a warranty nor know about one. Appellant relies on Alabama cases indicating reliance by a purchaser in order to prove an express warranty. Landman, Halsey & Co. v. Bloomer, Wolf & Michael, 117 Ala. 312, 23 So. 75.

Thus, the basis of this contention by appellant is that appellee, as subrogee, is erroneously being allowed to rely on an express warranty which Purchaser did not receive, and which appellant did not make in this particular sale to Purchaser.

Express warranties in Alabama are created in the following manners as set out in Tit. 7A, § 2-313, Code of Ala.1940 (Re-comp.1958):

“Express warranties by affirmation, promise, description, sample. — -(1) Express warranties by the seller are created as follows:
“(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
“(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
“(c) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
“(2) It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”

Despite the persuasiveness of appellant’s argument, after a thorough review, of all the evidence, this court is of the opinion that despite the fact that the purchaser did not physically receive a copy of the written expressed warranty an express warranty was, in fact, in existence and does inure to the benefit of appellee.

There is much evidence in the record to indicate the existence of an express warranty. Foremost is the response by appellant to the following request for admission by appellee.

(Appellee) : “2. That there was an express written warranty on the mobile home that is the subject of this litigation. If so, product [sic] a copy or duplicate of said warranty for inspection and copying.”
(Appellant): “In response to request for admissions numbered 2, defendant admits a written warranty existed at the time of this sale, but Floyd has stated under oath that no written warranty was given to him on the mobile home in question.”

In accord with Rule 36(b) ARCP, this matter is conclusively established, to wit, that a written warranty on the subject property existed at the time'of sale to Purchaser.

A copy of appellant-manufacturer’s warranty was admitted into evidence.

The testimony of Ray Forrester, employee of appellant, was that appellant put a warranty similar to the one introduced into evidence by appellee in .every home built and sent to a dealer, and that this was the business practice of the appellant during the years in question. He further testified that as far as appellant was concerned the procedure would be that the warranty would be delivered by the dealer to the ultimate purchaser.

We also find that the course of conduct of appellant from the very beginning was in conformity with the existence of an express warranty. Appellant made several trips to the mobile home after being informed of the damage. On some of these trips actual repairs were made by them. There- is also the testimony of Mr. Forres-ter that the job was conducted completely in conformity with the idea that there was a written warranty.

Even more proof of the existence of a warranty is the following paragraph from the bill of sale of the retailer to Purchaser.

“This trailer is sold as is, without warranty (except for title) and is guaranteed free and clear from all mortgages, liens, or other encumbrances, except that referred to herein as security for the within indebtedness. If the trailer sold be a used trailer, it is without warranty except of title. New trailers bear usual factury guarantee.” [Emphasis ours]

As we perceive appellant’s contention, it would have us hold that even though it offered a warranty on its product, merely because the purchaser failed to receive a copy of the warranty (even if through no fault of his own) the purchaser would be barred from the protection offered by the warranty. We decline to do this, in this instance, and, accordingly find an express warranty to the purchaser. In view of the above, the trial court was not in error in allowing the introduction of appellant-manufacturer’s express warranty.

Nor do we find those cases requiring reliance on the part of the purchaser applicable here.

As both counsel admit and the court concurs in, there is a dearth of cases on point.

As this court perceives it, the determining factor in this case under the newly enacted Uniform Commercial Code is not reliance by the purchaser on the seller’s warranty, but whether it is part of the “basis of the bargain.” See Elanco Products Company v. Akin-Tunnell, Tex.Civ.App., 474 S.W.2d 789; Young & Cooper, Inc. v. Vestring, 214 Kan. 311, 521 P.2d 281; Hawkins Construction Co. v. Matthews Co., Inc., 190 Neb. 546, 209 N.W.2d 643.

In fact, it is not necessary to show any particular reliance by the buyer to give rise to such warranties. Anderson, Uniform Commercial Code, Vol. 1, § 2-313:18, 2d ed.

Comment 7 to § 2-313, Tit. 7A, Code of Ala.1940 (Recomp.1958), reads as follows:

“7. The precise time when words of description or affirmation are made or samples are shown is not material. The sole question is whether the language vr samples or models are fairly to he regarded as part of the contract. If language is used after the closing of the deal (as when the buyer when taking delivery asks and receives an additional assurance), the warranty becomes a modification, and need not be supported by consideration if it is otherwise seasonable and in order (Section 2 — 209).” [Emphasis ours]

Certain writers have concluded that reliance is no longer necessary when a warranty can be agreed upon after the closing of the sale. See Texas Law- Review, Vol. 53:60, pp. 63-65.

The question before us, in this instance, is whether the warranty is to be regarded as part of the contract, to wit, whether it is part of the basis of the bargain. Referring once again to the aforementioned bill of sale which states that “new trailers bear usual factory guarantee,” we find it is indeed a basis of the bargain. Therefore, the trial judge properly refused appellant’s required charge to the jury requiring personal knowledge.

II

The next contention raised by appellant is that appellee failed to prove any product defect or manufacturer defect which resulted in the damage.

The argument appears to be that inasmuch as Purchaser testified he did not know how the fitting came loose the verdict is based on conjecture and speculation.

Appellant also introduced into evidence a climatological data chart which indicated freezing temperature during the period Purchaser was in the hospital and away from the trailer. The introduction of the chart is supplemented by testimony of an expert witness that the pressure seal connections used by appellant could come apart under conditions of low temperature. In brief, counsel for appellant contends that it is reasonable to speculate Purchaser’s wife may have turned the thermostat down while visiting Purchaser; or that even if she did not, the extraordinarily low temperature outside the mobile home could have caused the loosening.

Thus, it appears that appellant attempts to offer a second possible cause of damage in án effort to show that, absent direct proof of the cause, the verdict is based on speculation and conjecture. We do not agree.

Purchaser testified that he found a water line had come loose under the lavatory in the half bath approximately sixty days after purchase. He had had no trouble before. The copper tube in the leaking pipe had slipped out of the fitting. Purchaser repaired the problem, himself, by buying and putting on a larger rubber grommet and screwing it on tightly. He testified he had had no trouble since. Additionally, the plumber, testifying on behalf of appellant, responded affirmatively to a question as to whether the pipe would leak if the connection were not properly tightened. We also note that Purchaser testified that as far as he 'knew the thermostat was not turned down while he was away and that he did not believe the pipes froze in the lavatory.

We find the testimony as set out above indicates a logical sequence of cause and effect and that more than mere conjecture alone was presented as a basis for determination. Campbell Construction Engineers, Inc. v. Water Works and Sewer Board of the City of Pritchard, Alabama, Inc., Ala.App., 290 So.2d 194. See also Central of Georgia Railway Co. v. Griffin, 36 Ala.App. 292, 55 So.2d 218.

Ill

Appellant’s next contention is that appellee-subrogee failed to prove that the payment of $5,900 to Purchaser approximated the amount of damage to the mobile , home.

The purchase price of the mobile home was $7,200. Purchaser testified that he was informed by counsel for appellee that appellee’s agent estimated it would cost $1,243 to repair the mobile home. The final settlement, however, was for $5,900. Thus, appellant contends there was no basis for the payment of $5,900 to Purchaser.

We do not agree with appellant. The Purchaser, himself, testified that while he had no idea as to what the actual cash value after the damage would be, that, to him, it “wasn’t worth much” because his family “couldn’t hardly live in it.” He also testified that he was informed by two other mobile trailer dealers—one a president and the other an employee—that the trailer was “unrepairable” and “too expensive” to repair.

Thus, there is evidence that the damage approximated the value of the home, itself. The measure of damages due to injury to personal property which is a total loss after accident, under the theory of this case as tried by the parties, is reasonable market value before accident, less salvage value after. Parker v. Muse, A7 Ala.App. 84, 250 So.2d 688.

Appellant, by his assignments of error 1, 4, and 6 argues that the trial court committed reversible error in its oral charges regarding the measure of damages. We find no merit in these assignments of error as no valid objection was made to the court in this regard. Failure to object below to alleged error in oral charge of trial court precluded review. Scroggins v. Alabama Gas. Corp., 275 Ala. 650, 158 So.2d 90.

All argued assignments of error which were properly raised below having been considered, the case is due to be and is, therefore and accordingly, affirmed.

Affirmed.

BRADLEY, J., concurs.

WRIGHT, P. J., concurs in part and dissents in part.

WRIGHT, Presiding Judge

(concurring in part, dissenting in part.)

I specially concur in part with the decision of the majority and respectfully dissent in part.

Though I concur with the majority that under the evidence in this case the question of the existence of an express warranty was for the jury, I do not agree with certain language used in arriving at the decision of the majority. I would hold that the response of appellant, Winston, to request for admissions was sufficient for the matter to go to the jury as to the existence of the warranty.

The discussion of the requirements of the Uniform Commercial Code for the creation of an express warranty by the majority, and the application of such requirements to the evidence in this case is inappropriate. I would hold that Winston was bound by its admission that its manufacturer’s warranty existed for the benefit of the purchaser. The principle of estoppel is applicable. I would not hold under the evidence in this case that an express warranty was created under Title 7A, Sec. 2-313, Uniform Commercial Code. The evidence is totally to the contrary.

The purchaser denied any knowledge of any warranty extended by the manufacturer. I am unable to determine how a warranty can be created without knowledge of its existence by the purchaser. Creation of an express warranty requires affirmation of fact or promise by the seller to the buyer relating to the goods, which affirmation or promise becomes part of the basis of the bargain. Such affirmation or promise must be made known to the purchaser if it is to form any basis for the bargain. Without communication in some form there can be no affirmation or promise nor can such be said to be any consideration or inducement to the purchaser for entering the bargain. An express warranty is a contract and its creation is determined by the law of contracts. An uncommunicated affirmation of fact or promise cannot be a part of a contract or form any basis for the entering into the contract. The fact that the manufacturer intends to extend a warranty to every purchaser may create a moral obligation but unless the purchaser knows of the extending or at least of the policy of extending, he could not have considered it in entering into the bargain for the purchase of the goods. If such is determined to be the law of warranty, there would be a requirement of nullification or denial of a warranty by the seller or manufacturer rather than affirmation of fact or promise.

It is with some trepidation that I concur with the majority in its decision that there was sufficient evidence of an express warranty, but I do not concur that the evidence is sufficient to create such warranty under Title 7A, Sec. 2-313, Uniform Commercial Code.

I cannot agree with the majority that the evidence established that there was a defect in the manufacture or design of the product.

The evidence presented was that after purchasing the mobile home, it was delivered to the purchaser by the dealer in Mississippi. It was picked up by the dealer from the manufacturer and transported a substantial distance over the highways to the place designated by the purchaser. There it was “set up” by the dealer. The dealer connected it with its water and electrical supply and presumably with sewer connection. Purchaser moved in and resided therein for about six weeks. During this time there was no problem with the particular water pipe which was later found to be loose and leaking. It was used and worked properly.

Purchaser became ill and was hospitalized some 200 miles away. His wife spent part time with him and part in the mobile home for several days. Upon leaving the hospital and returning home, purchaser found the home to have flooded at some time since it was last occupied by his wife. Examination disclosed a loose connection of a copper pipe attached to a lavatory. This apparently was the source of the flooding. The leak was repaired by the purchaser. He testified that he did not know why the pipe became loose. Neither he, nor any witness, testified as to any material fault or fault of design. He merely found a connection loose from some unknown cause.

Manufacturer presented testimony that during several nights immediately preceding the flooding there had been temperatures 10 or more degrees below freezing in the area of the home. It was further shown by a qualified witness that water pipes in trailers were susceptible to easy freezing, particularly when unoccupied with the heat unregulated. It was shown that the type connection involved would pull loose if the water in the pipe froze.

The burden of proof to establish a breach of a manufacturer’s warranty is upon the buyer. 99 ALR2d 1419, 63 Am. fur.2d Sec. 98, Products Liability. The doctrine of res ipsa loquitur does not apply in an action for breach of warranty. Gardner v. Coca-Cola Bottling Co., 267 Minn. 505, 127 N.W.2d 557; United States Rubber Co. v. Baur, 8 Cir., 319 F.2d 463. The burden is on the buyer to show that there was defective material or workmanship within the scope of the warranty and such defect existed at the time the product left the custody of the manufacturer. Shramek v. General Motors Corp., Chevrolet Motor Div., 69 Ill.App.2d 72, 216 N.E.2d 244; Dufon v. Wilbur Curtis Co., 425 F.2d 1294, (6th Cir.1969).

The mere proof that a fitting comes loose and leaks after the product has been delivered and used for a period of time does not alone establish a presumption or inference of a defect in manufacture. Wear v. Chenault Motor Company, Inc., 52 Ala.App. 382, 293 So.2d 298; Eversmeyer v. Chrysler Corp., 192 So.2d 845 (La.App.). Such was the only proof presented in this case. The jury could not presume or speculate as to the existence of a defect in manufacture, especially when evidence was presented of a plausible cause of the leak.

It was said in Southworth, Admx. v. Shea, 131 Ala. 419, 30 So. 774, and quoted in Southern Railway Co. v. Dickson, 211 Ala. 481, 100 So. 665, as follows:

“Proof which goes no further than to show an injury could have occurred in an alleged way, does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause.”

Under the evidence presented by plaintiff in this case there was mere proof that a pipe was loose and leaked. Why it came loose and leaked was left solely to conjecture by the jury. There was no evidence of failure of materials, workmanship or design. Liability under such proof is at best founded upon res ipsa loquiter and at worse makes the manufacturer an insurer.

I would reverse and remand.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    In re WINSTON INDUSTRIES, INC. v. STUYVESANT INSURANCE CO. Ex parte Winston Industries, Inc.
    SC 1388.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    James N. Brown, III, Birmingham, for petitioner.
   FAULKNER, Justice.

Petition of Winston Industries, Inc. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Winston Industries, Inc. v. Stuyvesant Insurance Co., 55 Ala.App. 525, 317 So.2d 493.

Writ denied.

HEFLIN, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: W. J. HARALSON, Supernumerary Circuit Judge. PER CURIAM.

text:
    Charles NESBITT, alias v. STATE.
    5 Div. 250.
    Court of Criminal Appeals of Alabama.
    May 27, 1975.
    Rehearing Denied June 30, 1975.

      Samford, Torbert, Denson & Horsely and Robert H. Pettey, Jr., Opelika, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
   W. J. HARALSON, Supernumerary Circuit Judge.

Appellant was charged by indictment and convicted in the lower court of selling marijuana, the sale of which constitutes a felony under the Alabama Uniform Controlled Substances Act, Code of Alabama 1940, Recompiled 1958, Title 22, Section 258(29). His punishment was fixed by the court at 15 years imprisonment in the penitentiary.

Without attempting to detail the evidence, we may observe the State’s evidence tended to show a sale of marijuana by the appellant to witness Alex Smith, a deputy sheriff with the Lee County Sheriff’s Office who was working as an undercover agent at the time. The State’s testimony further showed that witness Smith had been connected with the sheriff’s department for more than two years before the night of April 3, 1974, the time the sale was alleged to have occurred.

The testimony presented by the appellant and his witnesses was in the nature of an alibi. He specifically claimed that' on the night in question, April 3, 1974, he had been with one Sidney Brewer, from 7 o’clock to 1 o’clock the next morning and that during the early part of the night, he had attended a class in which fraternity pledges were being instructed by Sidney Brewer, who was acting as “dean of pledges” for the Omega Psi Phi fraternity at Auburn, Alabama, and that after the meeting that he and Brewer were in the company of two girls until about 1 o’clock. He emphatically denied the sale of any marijuana to State witness Smith but did say that at one time Smith had given him an envelope containing marijuana but that he put the substance in a medicine bottle and put it on a shelf in his apartment and never attempted to smoke it.

We think this brief outline of the evidence will demonstrate that it presented a case for a jury decision.

While no motion to exclude the evidence was made nor a motion for a new trial filed by appellant, he did request the affirmative charge and several other written charges which were properly refused by the court.

Appellant argues that the court unduly restricted the cross-examination of Lt. Watkins and Alex Smith as to the former employment of Smith while he was on loan from his employment in Lee County to other law enforcement agencies according to testimony of Watkins and Smith. The objections of the State to questions as to whether Smith had worked as an officer for Roanoke and also what counties other than Lee County he had worked as such were sustained by the court. The State’s objections were sustained also to questions of appellant as to what counties other than Lee County he had been instrumental in arrests for violations of the drug laws and where he lived from 1972 to 1974.

We think this action of the court was error for the reasons hereinafter set out.

The right of cross-examination, thorough and sifting, is guaranteed to every person as to witnesses called to testify against him. Title 7, Section 443, Code of Alabama 1940, Recompiled 1958; Warren v. State, 292 Ala. 71, 288 So.2d 826. (Further cases, too numerous to set out here, could be cited to illustrate this fundamental rule.)

Further it has been held that the cross-examination of a witness to determine bias or prejudice may even pertain to irrelevant and immaterial matters as bearing on the memory, accuracy, credibility, interest, or sincerity of the witness. State v. Howington, 268 Ala. 574, 109 So.2d 676; Mobile City Lines v. Alexander, 249 Ala. 107, 30 So.2d 4.

The rule set out above applies to experts as well as ordinary lay witnesses. Wilson v. State, 243 Ala. 1, 8 So.2d 422. We quote from the case of McDade v. State, 10 Ala.App. 241, 64 So. 519, as follows :

“The witness was giving his opinion as an expert, or one having knowledge of such matters, and the court should permit all reasonable latitude to the cross-examination of such a witness for the purpose of testing the means and accuracy of his knowledge.”

The competence of a witness to qualify as an expert is an inquiry addressed to the sound discretion of the trial court. This court on appeal will not disturb the court’s finding of expert qualifications, unless there is shown a clear abuse of this discretion. Cobb v. State, 50 Ala.App. 707, 282 So.2d 327.

For a witness to so qualify in a particular field of endeavor depends upon his possession of a knowledge which “extends beyond or supersedes that of an ordinary witness.” Cobb v. State, supra.

In the instant case the chief State’s witness, Alex Smith, was considered an expert by the court and attorneys, and we think properly so, as based upon his knowledge of the peculiar jargon, habits, and conduct of users of illicit drugs in violation of law. He was shown to have had considerable experience as an undercover agent for law enforcement agencies in detecting and making arrests of those engaged in this activity.

We are of the opinion that the action of the court in sustaining objections of the State to the questions above re7 ferred to on the cross-examination of witnesses Smith and Watkins unduly restricted the right of appellant to attempt to show the memory, accuracy, credibility, interest, or sincerity of the witnesses and that the court’s action was error to reverse.

During the examination of appellant’s witness, Brewer, the appellant offered as Exhibit 1 a schedule of future events prepared by witness Brewer, who as above pointed out was “dean of pledges” for the fraternity, which had pledged the appellant, which schedule showed a list of meetings of the different pledges over a period of time including April 3, 1974. This exhibit was first offered before there was any testimony that the proposed meetings had been held and upon objection by the State the list was held to be inadmissible. After further testimony that in fact the meetings, particularly the one on April 3, 1974, had been held in compliance with the schedule, Exhibit 1, the exhibit was again offered by the appellant and again the objection of the State was sustained.

This testimony was material and relevant, as tending to support the testimony of appellant and Brewer, that appellant was present at the said meeting on April 3 and supportive of the appellant’s defense of an alibi.

We are further of the opinion that this action of the court was erroneous.

Several written charges were refused to the appellant, some of which were affirmative in nature. The remaining charges which were good were covered by the oral charge of the court.

We have examined the record as required under the statute, and for the errors above pointed out, the case must be reversed and remanded for another trial.

The foregoing opinion was prepared by Honorable W. J. HARALSON, Supernumerary Circuit Judge, serving as a Judge of this Court under Section 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby Reversed and remanded.

All the Judges concur.

ON REHEARING

PER CURIAM.

On consideration of the Appellant’s application for rehearing, the opinion of April 22, 1975, is hereby withdrawn and the opinion of Judge Haralson heretofore rendered on March 18, 1975, is reinstated as the opinion of the court.

Appellant’s application for rehearing granted; reversed and remanded.

All the Judges concur.


author: EMBRY, Justice.

text:
      In re Charles NESBITT v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1369.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for petitioner.
   EMBRY, Justice.

Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that. Court in Nesbitt v. State, 55 Ala.App. 534, 317 So.2d 501.

Writ denied.

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


author: TYSON, Judge.

text:
    Doris COOKS v. STATE.
    5 Div. 239.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1974.
    Rehearing Denied Oct. 29, 1974.

      Walker, Hill, Gullage, Adams & Um-bach, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and Richard F. Calhoun, Sp. Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Doris Cooks was indicted by the Grand Jury of Lee County at its September, 1972, Term for the unlawful sale of marijuana. The Jury found her guilty of the unlawful sale of marijuana, but declined to assess a fine. The trial court then sentenced the appellant to fifteen years imprisonment in the penitentiary.

In our review of the record, we found that Doris Cooks, at the time of trial, was twenty years of age, and at no time before or during the trial was she ever apprised of the fact that she had the right to re-, quest to be considered as a youthful offender.

Under Morgan v. State, 291 Ala. 764, 287 So.2d 914, we must remand this cause to the Circuit Court to investigate and examine the appellant at a hearing and determine whether in its discretion appellant should be tried as a youthful offender. Title 15, § 266(1), Code of Alabama, as amended. See also Edwards v. State, 55 Ala.App. 544, 317 So.2d 511; Pride v. State, 55 Ala.App. 575, 317 So.2d 541; Clemmons v. State, 56 Ala.App. -, 321 So.2d 243 all this day decided.

The trial court is further instructed that the hearing be held speedily, and that a full record be made together with the court’s determination. A transcript of these proceedings, under the seal of the Clerk, will then be forwarded to this Court for review. Seibold v. State, 287 Ala. 549, 253 So.2d 302.

^ , .. Remanded with directions,

All the Judges concur,


author: MADDOX, Justice.

text:
    In re Doris COOKS v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1040.
    Supreme Court of Alabama.
    May 22, 1975.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State, petitioner.
   MADDOX, Justice.

Affirmed on the authority of Ex Parte State of Alabama ex rel. Attorney General (In re Edwards v. State of Alabama), 294 Ala. -, 317 So.2d 512, decided May 22, 1975 and Ex Parte State of Alabama ex rel. Attorney General (In re Clemmons v. State of Alabama), 294 Ala. -, 321 So.2d 238, decided May 22, 1975.

Affirmed. Ala.Cr.App., 55 Ala.App. 537, 317 So.2d 504.

HEFLIN, C. J., MERRILL, BLOOD-WORTH, JONES, SHORES and EM-BRY, JJ., and COLQUITT, Circuit Judge, sitting specially, concur.

FAULKNER, J., dissents.

ALMON, J., not sitting.


text:
    Doris COOKS, alias v. STATE.
    5 Div. 239.
    Court of Criminal Appeals of Alabama.
    June 17, 1975.
    Arnold W. Umbach, Jr., Opelika, for appellant.
    William J. Baxley, Atty. Gen. and Richard F. Calhoun, Sp. Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

Following the remandment of this cause for a hearing with counsel on the merits of the appellant’s Youthful Offender Petition, the trial court then proceeded in accordance with the mandate of this court, and has sent this court a return to the remand, showing full compliance. After full investigation by the probation officer, and a hearing on the merits of the appellant’s petition, the trial court, after considering the appellant’s prior record, including two convictions of petty larceny, and one for sale of marihuana, entered the following findings:

“The Court is of the opinion that this defendant is not and was not entitled to trial under the Youthful Offender Act.”

It should be noted, however, that since the answer to the remandment, the Alabama Supreme Court has modified the effect of Morgan v. State, 291 Ala. 764, 287 So.2d 914, by holding that referral to a probation officer is no longer mandatory. The trial courts may now make or order such investigation as they deem necessary, and then hold an examination, and then make a determination whether or not to accord youthful offender treatment to an accused. Clemmons v. State, 1975, 294 Ala. -, 321 So.2d 238.

We will now review the merits of this appeal. Taylor Noggle testified that he had been employed as a State Toxicologist with the State of Alabama Department of Toxicology and Criminal Investigation at Auburn for the past two years. Noggle testified to his qualifications and to the fact that over the past two years he had tested for marihuana “several thousand times.” Noggle stated that on Monday, April 10, 1972, while employed as State Toxicologist, Deputy Watkins delivered some evidence to him, and one of the items was a brown manila envelope. Noggle testified that in the envelope he found a clear plastic bag, which contained a green-brown vegetable matter. Noggle further testified that upon examination, he determined the vegetable matter to be Cannabis Sativa L., which is commonly known as “marihuana.”

Ronnie Watkins testified that he was an investigator with the Lee County Sheriff’s Department, and was so employed in February, March, April, and May of 1972. Watkins testified that he came to know Alex C. Smith in February of 1972 when Smith applied for a job as a deputy sheriff with the Lee County Sheriff’s Department. Smith was sworn in as a deputy sheriff on March 14, 1972. Watkins stated that Smith was to work directly under him as an undercover agent, with his primary purpose to be the purchase of illicit or contraband drugs. Watkins testified that Smith was paid his expenses and received some compensation, but that it was not carried on the payroll, but was paid out of a special fund that' is authorized by the Probate Judge and used at the Sheriff’s discretion. Watkins stated that Smith was paid on the time he was employed, the time he put into the job, not as to the number of cases, or defendants. He was still on the force as of the time of trial.

Watkins stated that during this period he knew one Michael Watson. Watkins testified that Watson had been arrested and convicted for the sale of L.S.D., and had thereafter expressed a desire to work as an informer.for the Lee County Sheriff’s Department, which he did. Watson was to introduce Deputy Smith in traffic in drugs, and in general, act as a go-between for the people on the street and Deputy Smith. Watkins testified that Mr. Smith was working in an official capacity, duly authorized and commissioned by the Lee County Sheriff’s Department. He had all the powers of arrest. Watkins stated that Mickey Watson was an informant, that he had no powers of arrest, and was not given any authority by the Sheriff of Lee County.

Watkins testified that on or about April 3, 1972, in connection with an investigation into one Doris Cooks, he and Sheriff Pearson met Watson and Deputy Smith behind Mount Olive Church, which is on Lee County 43, on Society Hill Road, South of Opelika, in distance some two or three miles. They met behind the church in the graveyard in ,the daytime. Watkins stated that he and Sheriff Pearson got into the undercover vehicle with Smith and Watson, at which time undercover Deputy Smith turned over a white business-type envelope that bore the initials “A. C. S.” over the seals. After returning to the office, Watkins opened the envelope, removed a small cellophane plastic bag, which contained a substance, placed it in a brown manila envelope, marked it for identification purposes, and delivered it to the Toxicologist.

On cross-examination, Watkins testified that Smith had received no formal training in police work, but that he had received instructions from the Sheriff’s Department as to the proper procedure for handling evidence, drug traffic, and the proper way to make a purchase, or make a buy, from an individual. Watkins stated that Smith was also instructed as to what he could and could not do as a police officer, or as a deputy sheriff, along the lines of entrapment; that if he purchased narcotics from a violator, it had to be something that the violator wanted to do, and he could not entice the violator to sell to him. Watkins testified that.the cost of the total investigation, the undercover investigation, was a little better than $1800.00, and ran for a period of about seventeen weeks.

On redirect, Mr. Watkins testified that of the $1800.00, $600.00 was used to purchase narcotics; $300.00 was spent for meals for Mr. Smith and informants; approximately $400.00 was spent for gas, oil, and operation of three undercover vehicles; approximately $400.00 was spent for the repairs and the purchase of an undercover vehicle, which was a motorcycle, and miscellaneous expenses; $100.00 was paid to Mr. Smith as salary. Watkins stated that in the vicinity of April 14, 1972, Smith began working full time for the Sheriff’s Department as an undercover agent, and that during this period he was working full time, the Sheriff’s Department paid his living expenses, plus $100.00 salary. Watkins testified that most, but not all of the $1800.00 passed through Mr. Smith’s hands. Some expenses and repair bills were paid directly by the Sheriff’s Department.

Alex Smith testified that on March 14, 1972, he was hired as a deputy sheriff by the Sheriff’s Department of Lee County, and began working on a part-time basis. Smith stated that he had no previous law enforcement training, but had attended Columbus College in Columbus, Georgia, for about two years, and had completed two quarters at Auburn University. Smith testified that at the time he was hired as a deputy sheriff, he was employed as assistant manager in a paint store which his father managed in Phenix City, Alabama.

Smith testified that he was to do undercover work in narcotics and that Mickey Watson was one of his informants. Smith testified that on March 30, 1972, he and Mickey Watson were driving down Toomer Street in Opelika, Alabama, in a white Volkswagon Van when Doris Cooks and Ernestine Knight “hollered at them.” Smith stated that he was driving, and that when he heard the defendant “holler,” he pulled over in front of the apartment building where she was standing. Smith testified that after they exchanged greetings, the defendant asked Watson and him if they could find some L.S.D. for her. Watson replied that maybe he could, and maybe he could not. Smith stated that Doris Cooks next asked them if they would like to purchase some “grass,” and he said, “Yeah.” Smith testified that he took a five dollar bill out of his wallet, reached across Mickey Watson, and handed it through the passenger window to Doris Cooks, who handed him a plastic bag containing a leafy substance. Smith testified that the defendant had taken the bag from her purse. Smith stated that Watson and he said they had to leave and drove off. About six blocks down the road they pulled over to the side of the road, and Smith placed the plastic bag'containing the leafy substance into a • white business envelope, which he initialed. Smith stated that he kept the envelope on his person until that night when he returned to his residence, at which time he placed the envelope in an ammo box. On the following Monday, April 3, Smith met Ronnie Watkins and Sheriff Pearson behind a large white church on Society Hill Road in Opelika, Alabama. Smith testified that at this time he turned various articles of evidence over to Ronnie Watkins, including the envelope which contained the substance he had obtained from Doris Cooks.

On cross-examination Smith testified that, although he saw the defendant reach down in the direction of her purse, he could not actually see her hand reach into her purse.

On redirect, Smith stated that he saw the defendant reach in the direction of her bag, and that he saw the straps move in a more or less downward motion as she was digging.

At the conclusion of the State’s case, the defendant moved to exclude the State’s evidence, and was denied.

Doris Cooks testified that she was twenty years old and lived at 1718-B Cherry Hill Circle, Opelika, Alabama. She stated that on March 30, 1972, she and Ernestine Knight approached, but did not come all the way up to a van driven by Alex Smith, in which Mickey Watson was riding. Cooks testified that she did not at any time during this occasion sell marihuana to Alex Smith. The defendant testified that she and Ernestine Knight were about the same height and in general looked “similar.”

On cross-examination, Cooks stated she had seen Smith a couple of times before the day she went out to the van, but did not meet him until that day when two of her friends, Robert Calloway and Harvey McKay, who were also in the van, introduced him to her. Cooks testified that on the date of the alleged sale she never sold any marihuana to Smith, and, in fact, it was Smith and Watson who were trying to sell to her.

The State recalled Alex Smith in rebuttal. Smith testified that on March 30, 1972, when he was sold marihuana by the defendant, Robert Calloway and Harvey McKay were not present; that the only persons present, aside from himself, were Mickey Watson, Ernestine Knight, and the defendant, Doris Cooks.

Appellant’s motion for new trial was denied.

I

On remand, after determining that appellant was not entitled to be tried as a youthful offender, the trial court attempted to reduce appellant’s sentence from fifteen years to ten years imprisonment in the penitentiary. This took place on October 16, 1974, nearly two years after appellant was sentenced. The Circuit Court was without jurisdiction to reduce the sentence at this late date, as the request for a reduction was not made within thirty days of sentencing, or by December 28, 1972, when the trial court finally denied appellant’s motion for new trial. Title 13, Section 119, Code of Alabama 1940; Ex parte Merkes, 43 Ala.App. 640, 198 So.2d 789 (1967), cert. den. 281 Ala. 722, 198 So.2d 790; Essex v. State, 45 Ala.App. 141, 227 So.2d 138 (1969).

II

Appellant contends that the trial court committed reversible error in failing to grant her motion for a mistrial and to exclude the argument of the District Attorney, which was made during the District Attorney’s closing argument.

During the closing argument of the District Attorney, the following occurred:

“CLOSING ARGUMENT BY MR. WRIGHT: —now, ladies and gentlemen, go back there and use your good, common, judgment; reason out the facts, and do your duty and you will rid us of one more pusher.
“MR. GULLAGE: Your honor, I object to that and move to exclude Mr. Wright’s argument and move for a mistrial. There’s no evidence in this case that she’s a pusher.
“THE COURT: Well, I’m going to leave that up to the jury: The motion for a mistrial is respectfully overruled. I think that’s entirely a question for the jury.”

In Barnett v. State, 52 Ala.App. 260, 291 So.2d 353, a statement quite similar to the one in question was made during the District Attorney’s closing argument:

. . .In other words, get the pushers. You get them and you’re going to stop the drugs. Or, at least, going to slow them, up.’ ”

There, this Court held that such a statement was merely arguendo of the District Attorney’s opinion of the case, and did not constitute reversible error. Barnett, supra, and cases cited therein.

Ill

Since the appellant had moved to exclude the evidence at the close of the State’s case, requested in writing, the affirmative charge, and moved for a new trial, the issue of the weight and sufficiency of the State’s evidence is before us for review. In this regard, counsel for appellant cites Williamson v. United States, 311 F.2d 441 (5th Cir.), for the proposition that a conviction cannot be had on the uncorroborated testimony oi an informer hired under a contingent fee arrangement to produce evidence against particular named defendants as to crimes not yet committed. By-passing the question of whether or not such a rule'would be binding on this Court, suffice it to say that the undisputed testimony in the instant case shows that Alex Smith was not hired under a contingent fee arrangement. From the record:

“Q. All right, sir. Now, was he to be paid based on the number of cases he made, or time worked ?
“A. He was paid on the time that he was employed, the time that he put into the job, no pay as to the number of cases or defendants.”
Again, from the record:
“THE COURT: Mr. Watkins, let me ask you this question: Was Mr. Smith paid according to the number of cases he made?
“THE WITNESS: No; sir . . . I’ve already answered . . ,.
“THE COURT: Was it based on that?
“THE WITNESS: No, sir, it wasn’t.”

The undisputed testimony further shows that Alex Smith was not an informant, but a duly authorized and commissioned officer with the Lee County Sheriff’s Department, having all the powers of arrest. Thus, Williamson, supra, is inapplicable.

The State here presented a prima facie case against the appellant. Therefore, the trial court’s rulings as to the weight and sufficiency of the evidence were correct. Barnett v. State, 52 Ala.App. 260, 291 So.2d 353; Russell v. State, 53 Ala.App. 447, 301 So.2d 214; Miller v. State, 53 Ala.App. 213, 298 So.2d 633, cert. den. 292 Ala. 741, 298 So.2d 639.

After careful examination of this record, as required by law, we find same tó be free from error. The judgment appealed from is therefore due to be and the same is hereby

Affirmed.

All the Judges concur.

      . In Williamson, Judge Rives stated that neither of the parties had cited a case involving-such a contingent fee arrangement, and the court had been unable to find one. However, the Fifth Circuit went on to reverse the conviction, basing its decision largely on the principles first stated in McNabb v. United States, 1943, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819, vis-a-vis the standard of conduct required from federal agents in the furnishing of evidence. The McNdbb rule does not apply in Alabama, nor is it obligatory upon state trials in Alabama as a matter of constitutional law. Hikes v. State, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Hutto v. State, 278 Ala. 416, 178 So.2d 810 (1965); Braggs v. State, 283 Ala. 570, 219 So.2d 396 (1969).


author: DeCARLO, Judge.

text:
    Robert P. EDWARDS, alias v. STATE.
    5 Div. 216.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1974.
    Rehearing Denied Oct. 29, 1974.
    Jack Floyd, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Richard F. Calhoun, Sp. Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Appellant was indicted in the Circuit Court of Lee County for nighttime burglary with intent to rape. At arraignment, the appellant, then twenty years of age, filed a petition to be tried as a youthful offender. When presented to the court, the motion was overruled. Counsel for appellant contends that the court overruled the motion without referring the matter to a probation officer for investigation and without an examination by the court.

We are of the opinion that the cause must be remanded to the court to investigate and examine the appellant at a hearing and determine whether in its discretion appellant should be tried as a youthful offender. Title 15, § 266(1), Code of Alabama; Morgan v. State, 291 Ala. 764, 287 So.2d 914.

The trial court is further instructed that the hearing be held speedily, and that a full record be made together with the court’s determination. A transcript of these proceedings, under the seal of the Clerk, will then be forwarded to this court for review. Seibold v. State, 287 Ala. 549, 253 So.2d 302.

Remanded with directions.

All the Judges concur.


text:
    In re Robert P. EDWARDS, alias v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1048.
    Supreme Court of Alabama.
    May 22, 1975.
    Rehearing Denied June 19, 1975.
    William J. Baxley, Atty. Gen., and John M. Gruenewald, Asst. Atty. Gen., for petitioner.
    Jack Floyd, Gadsden, for respondent.
   MADDOX, Justice.

Robert P. Edwards was indicted for a felony. He was 20 years old. At arraignment, he asked to be tried as a youthful offender. The court overruled his request without conducting an investigation or examination of Edwards. The Court of Criminal Appeals remanded the cause to the trial court on the authority of Morgan v. State, 291 Ala. 764, 287 So.2d 914 (1973), with instructions to the court “to investigate and examine the appellant at a hearing and determine whether in its discretion appellant should be tried as . a youthful offender.” 55 Ala.App. 544, 317 So.2d 511. We granted certiorari. We affirm.

The trial court should have conducted some investigation or examination. Even though the court is not now required to refer the matter to a probation officer, it may. Ex parte State of Alabama, ex rel. Attorney General (In re: Clemmons v. State of Alabama), 294 Ala. -, 321 So.2d 238, decided May 22, 1975, which modified this Court’s holding in Morgan v. State that referral to a probation officer was mandatory.

Affirmed.

HEFLIN, C. J., MERRILL, BLOOD-WORTH, JONES, SHORES and EMBRY, JJ., and COLQUITT, Circuit Judge, sitting specially, concur.

FAULKNER, J., dissents.

ALMON, J., not sitting.

      . A checklist for use by the trial court in informing “youthful offenders” of their rights under the Act are set out in Ex parte Romes (In re: Baines v. State), 294 Ala. 360, 317 So.2d 559, decided May 22, 1975.


text:
    Robert P. EDWARDS, alias v. STATE.
    5 Div. 216.
    Court of Criminal Appeals of Alabama.
    June 30, 1975.
    Jack Floyd, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and John M. Gruenewald, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Burglary; first degree; ten years.

Prior to trial Robert P. Edwards petitioned the trial court to be treated as a youthful offender, and the petition was denied. On October 1, 1974, this court remanded the cause to the Lee County Circuit Court for compliance with Title 15, Section 266(1), Code of Alabama 1940; Morgan v. State, 291 Ala. 764, 287 So.2d 914. Testimony was presented at the hearing on October 16, 1974, and the trial court decreed that appellant should not be treated as a youthful offender.

Before return to remand was submitted to this court, certiorari was granted by the Supreme Court of Alabama, to review our order of remandment with directions. This court’s decision was subsequently affirmed Edwards v. State, 294 Ala. 358, 317 So.2d 512, 1975.

The proceedings on remandment have been reviewed and are in accordance with the statute. We now turn to the evidence presented at trial.

Brenda Ann Guillette, while acting as secretary for the Royal Park Estates in Opelika, Alabama, lived there in a mobile home with her three-year old son. On July 20, 1973, she had gone to bed attired in a “long, shirt-tailed shirt” and after falling asleep was awakened by a pair of hands around her throat. She screamed, grabbed the man’s hands and tried to get away. The man tried to cover her mouth to prevent her screaming and in the struggle she scratched his arms. As he turned and ran toward the door, followed by Mrs. Guillette screaming, he momentarily stopped, trying to get the door open. At that time, she noticed the man’s build and his long blond hair. Armed with a “38 pistol” she pursued him as he ran around the front of her mobile home and veered off behind another trailer, disappearing in the dark.

She returned to her trailer, picked up her son and ran to the manager’s office some 100 feet away. While the manager called the police, she stood outside near the window of his trailer and watched the entrance of the trailer park. Except for the police who arrived about 12:15 A.M., no one left or entered the park.

During the struggle she sustained a cut over her left eye. There was also a hand-print visible on her throat. In describing her assailant she explained, “I can’t make a positive identification from the front, but if I ever see the guy again from the back, I’ll know him when I see him.” Returning to her trailer, they observed marks on the door where it had been forced open and found some clods of dirt in her bed. Mrs. Guillette told the police she thought her attacker was a male tenant at the trailer park because of his sudden disappearance.

At the request of one of the investigating officers, she pulled the files of all the male residents and during the next two days, observed each occupant.

On Monday, following the incident, she asked Jimmy Bearden, appellant’s roommate, to have Robert Edwards come to the office and fill out an application. Appellant and his roommate came to the office while she was alone. At that time she noticed Edward’s build, his blond hair and scratch marks on both his arms from the elbows down. Being a licensed cosmotologist, she recognized the razor marks on his neck indicated a recent haircut. After the two left, she called and informed Detective Davis that she was quite sure appellant was the man. During the trial she made an in-court identification of Edwards.

Detective Abbett investigated the alleged burglary about 12:36 A.M., and immediately talked to Mrs. Guillette. As she was describing her assailant he noticed she was bleeding from a head wound. On examining the door of the mobile home they found it had been broken into with a tool similar to a screwdriver. In searching the immediate vicinity around the trailer, he observed footprints but could not follow them because of the darkness.

On Tuesday, July 24, 1973, appellant was picked up and advised of his constitutional rights by Sergeant Dan Davis who accompanied Detective Abbett. After their arrival at the police station and before appellant made a statement, Sergeant Davis again advised him of his rights.

At the conclusion of a voir dire hearing out of the presence of the jury, the court held appellant’s admission of the burglary and assault was voluntarily made and admissible.

James Bearden, appellant’s roommate during the alleged burglary, testified that on the night in question he and appellant ate supper and then went to “Peeps” in Auburn. About 12:30 A.M., they returned to their trailer and were visited by “Pete”, a friend of appellant. Pete was accompanied by one of his friends and the four sat around and drank a couple of beers. After Pete and his friend left, Bearden and appellant went to bed between 1:15 and 1:30 A.M.

Appellant took the stand and proclaimed that the statement was induced by a promise from Detective Abbett that if the appellant signed the statement he would be released from jail. Further, appellant denied breaking into Mrs. Guillette’s trailer and explained he sustained the scratches on one arm from a tree limb while he was clearing land.

At the time of original submission, appellant assigned two instances of error. One concerned the trial court’s failure to submit for investigation appellant’s request to be considered a youthful offender. The second alleged the trial court erred in allowing evidence of the out-of-court identification. Counsel argues that the confrontation conducted by Mrs. Guillette was so suggestive and conducive to irreparable mistaken identity that appellant was denied due process.

We are not persuaded that the doctrines announced in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 and Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, are applicable to the non-police connected circumstances involved here. The procedure conducted by Mrs. Guillette as revealed by this record, was logical, and within the rights of a private citizen in responding to an offense committed against her.

The cases, supra, urged upon us in support of the appellant’s contention were concerned with confrontations arranged by law enforcement officers for persons in custody after arrest. If it be true that it is constitutionally permissible for police officers to confront victims with suspects at the scene of the crime, Russell v. U. S., 133 U.S.App.D.C. 77, 408 F.2d 1280; United States v. Abshire, 5th Cir., 471 F.2d 116; Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623, then it follows that a victim has the right to confront suspects before deciding that he has the right person.

It is our judgment that nothing concerning the events surrounding Mrs. Guillette’s confrontation with Robert Edwards at the trailer park office was constitutionally impermissible. U.S. v. Venere, 5th Cir., 416 F.2d 144.

Appellant’s motion to exclude the State’s evidence was properly denied. Young v. State, 283 Ala. 676, 220 So.2d 843.

Our search of the record does not reveal any error.

Affirmed.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Walter Bernard ALLEN, Jr., alias v. STATE.
    6 Div. 726.
    Court of Criminal Appeals of Alabama.
    May 6, 1975.

      William T. Kominos, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and David L. Weathers, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Murder: sentence, life imprisonment.

The minute entry, recites in pertinent part:

“This the 25th day of January, 1974, it appearing to the Court that heretofore the defendant made a motion to be tried as a youthful offender and the same being duly considered by the Court, it is ordered by the Court that said motion be and the same is hereby denied and this case is set for trial on February 25, 1974.”

Although the trial court considered and denied the appellant’s motion to be tried as a youthful offender, it does not appear from the minute entry that the trial judge referred the defendant to a probation officer as required pursuant to the Youthful Offender Act. Act No. 335, Acts of Alabama 1971, 3rd Special Session, approved February 10, 1972 (Title 15, § 266(1) et seq., Code of Alabama 1940, Recompiled 1958)..

The appellant had been denied treatment as a juvenile offender by the Family Court and in all probability, had been investigated by a probation officer, however, such is not reflected on the face of the record now before this Court. We are bound by what appears in the record before us.

In the landmark decision on the Youthful Offender Act by the Alabama Supreme Court, Justice Faulkner wrote:

“The Act therefore charges the trial judge with the duty to refer any person under 21 years of age, whose case has not been disposed of in the juvenile court and who is charged with a crime involving moral turpitude or is subj ect to a sentence of confinement for one year or more, to a probation officer to make such investigation requested by the court. Referral in such event is not. discretionary, but mandatory, on the part of the trial judge. . . . The duty is upon the trial judge to call the Act to the attention of the youthful offender, just as much as it is the duty of the trial judge to explain to a defendant his constitutional rights when he enters a plea of guilty.” Morgan v. State, 291 Ala. 764, 287 So.2d 914.

This Court remanded with directions the following cases: Tarver v. State, 56 Ala.App. 36, 318 So.2d 775; Edwards v. State, 55 Ala.App. 544, 317 So.2d 511. In both of those cases, the minute entry failed to show a referral to a probation officer as required under the Youthful Offender Act.

Based upon Tarver, Edwards and Morgan, supra, it is necessary that this Court remand the instant case to the trial court for reference to a probation officer and thereafter a hearing on the merits of the petition for treatment under the Youthful Offender Act.

Remanded with directions.

All the Judges concur.


text:
    Walter Bernard ALLEN, Jr., alias v. STATE.
    6 Div. 726.
    Court of Criminal Appeals of Alabama.
    June 17, 1975.

      William T. Kominos, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, David L. Weathers, Asst. Atty. Gen., Birmingham, for the State.
   BOOKOUT, Judge.

First degree murder: sentence, life imprisonment.

After appellant’s arraignment on an indictment for first degree murder, he applied for treatment as a youthful offender pursuant to Act No. 335, Acts of Alabama 1971, 3rd Spec. Session, approved February 10, 1972. The trial court, after a hearing, denied treatment as a youthful offender. On appeal, we found that the judgment entry failed to reflect whether an investigation had been made by a probation officer, and we remanded with directions on May 6, 1975, on authority of Morgan v. State, 291 Ala. 764, 287 So.2d 914; Tarver v. State, 1975, 56 Ala.App. 36, 318 So.2d 775; and Edwards v. State, 1974, 55 Ala.App. 544, 317 So.2d 511.

On May 12, 1975, the trial court filed a supplemental transcript in answer to our order on remandment, making a showing that a probation report was in fact made and inadvertently omitted from the original transcript of the record on appeal. The full report of the probation officer is set out in the supplemental transcript of the record, and this Court will now review the case on its merits.

It should be noted, however, that since the answer to the remandment, the Alabama Supreme Court has modified the effect of Morgan, supra, by holding that referral to a probation officer is no longer mandatory. The trial courts may now make or order such investigation as they deem necessary and then hold an examination and then make a determination whether or not to accord youthful offenders treatment to an accused. Clemmons v. State, 1975, 294 Ala. -, 321 So.2d 238.

On August 6, 1973, Walter Bernard Allen, Jr., and three companions, Ronald Allison, Willie Jones and Adrian McCall, were driving on Highway 280 approaching the interchange ramp at Highway 31 in Mountain Brook, Jefferson County, Alabama. The appellant was driving a Cadillac which belonged to his employer which he apparently took without permission. He was stopped by Officer Fred Harp of the Mountain Brook Police Department. Officer Harp, upon discovering that the appellant did not have a driver’s license, ordered him out of the car where he was then searched and handcuffed with his hands behind him. As Sergeant Harp reached into the car, apparently to remove the keys from the ignition, the appellant grabbed the officer’s pistol from his holster.

From here on, the facts are somewhat in dispute as to what exactly happened. However, the appellant, while still handcuffed, somehow fired a shot which sent Sergeant Harp down wounded. After this, the appellant asked the Sergeant for the keys to the handcuffs, and Sergeant Harp stated that they were in the police car. Appellant stated that he only fired one shot and that he gave the pistol to Ronald Allison and then went' back to the police car in order to get the keys to the handcuffs, but was unable to find them. The appellant said he then heard another shot. After this, all of the occupants of the car ran across the highway and fled the scene.

The State’s evidence presented at trial showed that the death of Officer Harp was caused by a bullet or bullets from his own pistol. His revolver was found by the police in a home near where the appellant was taken into custody. The State called some twenty-one witnesses. The defense called two witnesses, one of which was the appellant himself.

Charles G. Robey testified that he was Deputy Coroner of Jefferson County. His testimony was that he received a call on August 6, 1973, at 11:45 P.M. to the University Hospital. He arrived there at 12:15 A.M. on August 7, 1973. He viewed the deceased, Fred Harp, and stated that he was dead. He also testified that he and Dr. Willis Crawford were together that morning at Mercy Hospital in the morgue and autopsy room and that he was given a bullet by Dr. Crawford along with a blood sample and some tissue of the body. Mr. Robey stated that he received another bullet from a Dr. Carraway at the University Hospital.

Dr. Willis B. Crawford, a pathologist, testified that he had performed the autopsy on the deceased, Fred Harp. Dr. Crawford testified as to the wounds on the body. He used diagrams and photographs to illustrate his testimony. Dr. Crawford further testified that possibly three bullets could have entered the body and that a bullet designated on his diagram as bullet # 1 was the cause of death.

Patrolman Hocutt testified that he was the radio dispatcher for the Mountain Brook Police Department, and that he had been in communication with the deceased just before the shooting. He further testified that the deceased called in to check the license number of the Cadillac which the appellant was driving at the time of the incident. Patrolman Hocutt stated also that he had no further contact with the deceased, but some other person using Officer Harp’s radio called to report that an officer had been shot, and Hocutt called for an ambulance.

The State put on numerous witnesses who had happened along the ramp at the Red Mountain Expressway immediately after the incident and one witness who came by possibly just before the shooting.

Much of the State’s presentation of evidence involved the testimony of various law enforcement officers who arrived at the scene or those who took part in the investigation of the murder. The appellant’s attorney sought to show that the appellant was severely beaten by the arresting officers.

The State called as a witness, Adrian McCall, a rider in the back seat of the car which the appellant was driving on the night of the fatal shooting. Adrian McCall stated that when he heard the shot, he looked around and saw the appellant “jumping back.” He further stated that after the shot, he and the others jumped out of the car and ran. The record shows that Adrian McCall was the cousin of Ronald Allison who was also indicted for the murder. On cross examination, Adrian McCall testified that three shots were fired. The witness stated that he heard one shot, a pause, and then heard two more shots right after each other.

The next witness called was Willie Jones, a rider in the back seat of the Cadillac on the night of the shooting. His testimony closely paralleled that of Adrian McCall’s in that neither one of them actually saw Ronald Allison fire any shots. Willie Jones demonstrated for the jury the way the appellant moved his handcuffed hands to his side in order to reach and get the policeman’s gun from his holster. On cross examination, the witness testified that he did see the gun “jerk” while in the hands of Ronald Allison.

The next few witnesses had to do with the arrest of the appellant at 2102 Henrietta Road. Officer Thomas C. Green and Officer Tommie Evans were the first to arrive at the scene of the arrest. Sergeant Higgins, Commanding Officer of Scientific Investigation, Birmingham Police Department, testified that he took into his possession a revolver found in the closet at 2102 Henrietta Road and that three of the cartridges had been spent. He test fired six cartridges, and turned the bullets over to the State Toxicologist. Sergeant Watkins of the Mountain Brook Police Department made positive identification of the handcuffs belonging to the deceased, Fred Harp, that had been used on the appellant. Don Knight testified to the purchase of and identified the revolver owned by the deceased, Fred Harp.

The State called as its witness Dr. Robert B. Johnson, Toxicologist in charge of the Birmingham Division, who testified to receiving two spent bullets and the six test-fired bullets from the murder weapon. Dr. Johnson stated, “. . . they all had six land and grooves with a left hand twist; that is left right . . . .” After viewing them, Dr. Johnson microscopically identified them as having been fired from the same gun.

The defense called the appellant as its first witness. As to the shooting, his testimony appears as follows:

“Q. All right, now, put your hands behind your back like you were handcuffed that night. If I represent the policeman, what if anything, did you do with your hands handcuffed behind your back?
“A. I ‘retch’ like this for his pistol.
“THE COURT: Talk louder, please.
“A. I ‘retch’ for his pistol like this.
“Q. Did you reach for it in his holster?
“A. Yes, sir.
“Q. And he was bending over in the car?
“A. Yes, sir.
“Q. And did you pull the pistol out?
“A. Yes, sir, as I was pulling it out he felt it, started coming out of the car. He came on out and turned and grabbed for it.
“Q. He grabbed for the gun ?
A. Yes, sir.
“Q. And then what happened, Walter?
“A. It went off.”

The defense called as its second and last witness, Linda Robinson who lived at 2104 Henrietta Road, next door to where the appellant was arrested. She testified as to the arrest of the appellant. In her testimony, she stated that the appellant was beaten by some of the policemen. Rebuttal witnesses called by the State denied the beating of the appellant. Witnesses at the police station where appellant was brought after the arrest denied that he appeared to have been beaten as was indicated in his testimony.

I

We find no merit whatsoever in the appellant’s argument that the State failed to make a prima facie case under the indictment. The facts and evidence hereinabove set out clearly establishes the death of Officer Harp, the means and cause of death, and the shooting of the deceased by the appellant. From the witness stand, from the appellant’s own lips, comes a clear description of how he took the victim’s gun and shot him. Whether he or others present fired other shots into the wounded officer are questions for the determination of the jury. Likewise, where the officer was shot three times, under the circumstances of the evidence presented, the jury had ample ground to determine it was the appellant who fired the fatal shot. The trial judge did not err in submitting the case to the jury and in denying the appellant’s motion to exclude the State’s evidence. See: McDowell v. State, 238 Ala. 101, 189 So. 183 (1939); Payne v. State, 48 Ala.App. 401, 265 So.2d 185, cert. denied 288 Ala. 748, 265 So.2d 192, cert. denied 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669 (1972); Price v. State, 52 Ala.App. 21, 288 So.2d 803 (1974).

II

Counsel for the appellant argues that the trial court erroneously admitted into evidence State’s Exhibit 3, which was a photograph of the body of the deceased showing bullet wounds. The grounds for objection were that the photograph was repetitious of the first photograph that the State had introduced into evidence, that it was cumulative and of no further probative value in the case. The trial court overruled, and Dr. Crawford, who performed the autopsy, testified concerning the wounds depicted in that photograph, using it to illustrate his testimony.

Later, on cross examination, counsel for the appellant questioned the physican concerning State’s Exhibit 3. Defense counsel then objected to that exhibit because it showed an incision made during the autopsy and that the body was not in the same condition in the photograph as it was when it was first brought to the hospital. Counsel asked that the court remove the exhibit from evidence and after argument out of the presence of the jury, the court overruled the objection and allowed the photograph to remain in evidence.

In a similar case, this Court approved the introduction of a photograph showing both surgical incisions and stab wounds. Judge Tyson in Means v. State, 51 Ala.App. 8, 282 So.2d 356 (1973), in approving the use of such photograph, quoted from McKee v. State, 253 Ala. 235, 44 So.2d 781 (1950):

“ ‘. . . There was no error in admitting in evidence a photograph of the deceased, taken after the performance of an autopsy, even though the photograph showed marks of incisions made for the purposes of the autopsy, the autopsy surgeon pointing out to the jury the marks resulting from his examination.’

In the instant case, Dr. Crawford, the pathologist who performed the autopsy, pointed out to the jury the fact that incisions were made for the purpose of the autopsy. Likewise, the trial judge instructed the jury concerning State’s Exhibit 3 that “. . . the only thing which you are to consider within this photograph, is the wound as described by Dr. Crawford and nothing else.”

The appellant’s first ground for objection, that the photograph was similar to another already in evidence and, therefore, cumulative, is insufficient. In Cook v. State, 52 Ala.App. 159, 290 So.2d 228 (1974), Judge Harris, speaking for this Court, stated:

“The fact that such evidence is cumulative does not affect its admissibility so long as it sheds light upon a material inquiry, illustrates the transaction at issue, or tends to elucidate the material facts under inquiry, and has a tendency to illustrate the severity of the assault. Swindle v. State, 27 Ala.App. 549, 176 So. 372; Wilson v. State, 31 Ala.App. 21, 11 So.2d 563; Reedy v. State, 246 Ala. 363, 20 So.2d 528; Grissett v. State, 241 Ala. 343, 2 So.2d 399.”

Ill

During the appellant’s cross examination of Adrian McCall, an occupant in the Cadillac at the time of the shooting, the following occurred:

“Q. Ronald Allison is your cousin, isn’t he?
“A. Yes, he is.
“Q. Would you do or say anything to protect Ronald Allison ?
“MR. BROWN: I object to the form of the question.
“THE COURT: Sustained.”

Earlier, at the beginning of the State’s direct examination of the witness, he was asked if he was related to Ronald Allison. He stated that he and Ronald Allison were cousins, that their mothers were sisters. The fact of the witness’s relationship with Allison was clearly put before the jury by both the State and the defense, and his testimony could be given such weight and credibility by the jury as that relationship might suggest.

The appellant, however, contends that the court erred in sustaining the State’s objection to the question propounded to the witness on cross examination of whether he would do or say anything to protect his cousin, who the record shows was also charged with murder arising from the same shooting incident.

The State relies upon the case of Maples v. State, 44 Ala.App. 491, 214 So.2d 700 (1968), which held in part as follows:

“. . . It is always permissible to cross examine a witness to ascertain his interest, bias, prejudice or partiality concerning matters about which he is testifying. The proper way to show bias on the part of the witness is to ask him directly the state of his feelings, and if he denies bias, then resort may be had to facts tending to show it. Nichols v. State, 276 Ala. 209, 160 So.2d 619; Meador v. State, 37 Ala.App. 573, 72 So.2d 418.”

The Meador case, cited in Maples, supra, held :

“The proper way to show bias on the part of a witness is to ask him directly the state of his feelings, and if he denies bias, then resort may be had to facts tending to show it. . . . ”

We are not unmindful of Nichols v. State, likewise cited in Maples, supra, wherein Justice Merrill acknowledged the general rule in this regard set out in Mea-dor, supra, but pointed out that it is not required in every case as a condition precedent to showing bias of a witness during cross examination, that the witness must first be asked about the state of his feelings.

Justice Merrill set out several examples of questions not so predicated which had been held proper. We do not find the questions asked on cross examination in the instant case to be sufficiently similar to the examples which Justice Merrill sets out, so as to qualify it as .an exception to the general rule set forth in Maples, supra.

The Supreme Court of Alabama has likewise held that although the statutory right to a thorough and sifting cross examination belongs to every party, the extent of cross examination is a matter addressed to the sound discretion of the trial judge, which is not reviewable except for abuse. Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969); Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968). Where the State had previously brought to the attention of the jury the fact that the witness against the appellant was a cousin of another defendant charged in the same shooting, and where the same fact was again brought to the attention of the jury by the appellant’s counsel, the possibility of bias arising out of such kinship was squarely before the jury for their consideration. Therefore, the additional question to the witness as to whether he would “do or say anything” to protect his cousin could properly be sustained by the trial judge without abusing his discretion.

Additionally, we are of the opinion that the form of the question was improper as calling for a conclusion or a speculative opinion on the part of the witness as to what he would do to protect his cousin. As a general rule, questions posed to witnesses must be in such form to elicit facts. Witnesses, certainly non-expert witnesses, must testify to facts, not conclusions, inferences or opinions. See Alabama Digest, Criminal Law, Section 448 and Evidence, Section 470, et seq.

The Attorney General, in his brief, on this point stated:

“. . . The prosecutor made an objection to the form of the question which was sustained. This question clearly went beyond the scope of proper cross-examination. How could a witness be expected to say whether or not he would do ‘anything’ to protect someone else. This was not a question designed to show bias on the part of the witness. Rather, it was a nebulous catch-all designed to confuse the witness and prejudice the jury against his story. For that reason, the objection to it was properly sustained.”

We agree.

Affirmed.

TYSON, HARRIS and DeCARLO, JJ., concur.

CATES, P. J., not sitting.


text:
    Leon JONES v. STATE.
    8 Div. 649.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Johnston & Johnston, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and James S. Ward, Asst. Atty. Gen., for the State, appellee.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant entered pleas of guilty to four different indictments for felonies and thereafter, on January 9, 1975, moved the court to permit him to withdraw his pleas of guilty and defend on the merits. This motion was denied and this appeal follows therefrom.

Appellant also, on January 3, 1975, appealed the four judgments for commission of the four felonies, supra. The appeals were taken on January 3, 1975. They are cases, 74-46F, 74-85F, 74-86F and 75-87F.

This appeal from the judgment denying the motion, supra, and the appeals from judgments entered in the foregoing numbered cases were all consolidated and are before this court in the same record.

The trial court had lost jurisdiction of the several numbered judgments or cases for that: (1) More than thirty days had elapsed when the motion to vacate the pleas of guilty was filed. Title 13, § 119, Recompiled Code 1958; Ex parte Sykes, 44 Ala.App. 473, 213 So.2d 413; Crook v. State, 44 Ala.App. 83, 203 So.2d 138; Woodward v. State, 42 Ala.App. 552, 171 So.2d 462. (2) Appeals from the several judgments in the numbered cases, supra were taken on January 3, 1975, which date was prior to the date (January 9, 1975) when the motion to vacate was filed. The •trial court at that time had lost jurisdiction of the several judgments entered pursuant to defendant’s pleas of guilty in the said numbered cases. There were no motions for new trials. Title 15, § 368, Recompiled Code, 1958.

However, as a courtesy to the diligence of appellant’s counsel, we have reviewed the colloquy between the trial court and defendant when his pleas of guilty were tendered. We find that the trial judge fully informed the defendant of his rights and fully complied with the mandates of law with reference thereto. Defendant’s attorney also informed him of his rights. Details are unnecessary.

The denial of the motion to vacate the pleas, supra, is not an appealable order, and is therefore not considered as a part of this appeal.

The judgments from which the appeals were taken are affirmed.

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

Affirmed.

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


text:
    Ronald Harold HUGHLEY, alias v. STATE.
    5 Div. 263.
    Court of Criminal Appeals of Alabama.
    Feb. 4, 1975.

      Richard D. Lane, Auburn, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted by the Grand Jury of Lee County for the second degree burglary of Bryant’s Washateria. The Jury found the appellant guilty as charged, and the trial court then entered judgment, setting sentence at ten years imprisonment.

I

In the Minute Entry in this cause we find the following:

“It appearing to the satisfaction of the Court that the Defendant in this case is INDIGENT and desires LEGAL COUNSEL, it is therefore ordered and adjudged by the Court that: Richard D. Lane, Attorney at Law, be and is hereby appointed as Counsel to represent, assist and defend said Defendant in this case.
“This May 21, 1974.
“/s/ L. J. Tyner, Judge
“5-22-74. Defendant makes application for Youthful Offender treatment.
“/s/ L. J. Tyner, Judge
“5-23-74. Defendant’s application for Youthful Offender treatment is hereby denied.
“/s/ L. J. Tyner, Judge
“5-23-74. On this day came Hon. Ronald L. Myers, as District Attorney, who prosecutes for the State of Alabama, also came in open Court the defendant, Ronald Harold Hughley, in his own proper person and attended by his court appointed attorney, Hon. Richard D. Lane, and the defendant being duly and formally arraigned on an indictment charging him with Burglary in the Second Degree, for his plea thereto says, in the presence of and with the consent and approval of his said attorney, that he is not guilty as charged in the indictment. This case is set for trial at 9:00 A.M. on Wednesday, June 12, 1974.
“/s/ L. J. Tyner, Judge”

In Morgan v. State, 291 Ala. 764, 287 So.2d 914, we find:

“Act 335, Alabama Legislature, Third Special Session, 1971, known as the Youthful Offender Act, has been codified as Tit. 15, § 266(1) (2) (3) (4) (5) (6), Code of Alabama, 1940, Recompiled 1958.
“Section 266(1) provides that ‘a person charged with a crime which was committed in his minority but was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence of commitment for one year or more shall —and, if charged with a lesser crime, may — be investigated and examined by the court to determine whether he should be tried as a youthful offender, provided he consents to such examination and to trial without a jury where trial by jury would otherwise be available to him.’
“The Act therefore charges the trial judge with the duty to refer any person under 21 years of age, whose case has not been disposed of in the juvenile court and who is charged with a crime involving moral turpitude or is subject to a sentence of confinement for one year or more, to a probation officer to make such investigation requested by the court. Referral in such event is-not discretionary, hut mandatory, on the part of the trial judge.” [Emphasis supplied]

As shown above, the appellant’s request that he be tried as a Youthful Offender was decided without referring the matter to a probation officer for investigation, and without examination by the court. This precise point was decided by this court in Edwards v. State, 1974, 55 Ala.App. 544, 317 So.2d 511.

In accordance with the above authorities, this cause is remanded for a referral to the probation officer, and thereafter for a full hearing with counsel, on the merits of the Youthful Offender petition. Edwards v. State, supra; Tarver v. State, 1975, 56 Ala.App. 36, 318 So.2d 775.

Remanded with directions.

All the Judges concur.


text:
    Ronald Harold HUGHLEY, alias v. STATE.
    5 Div. 263.
    Court of Criminal Appeals of Alabama.
    May 6, 1975.
    Rehearing Denied May 27, 1975.
    Richard D. Lane, Auburn, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Following the remandment of this cause for a hearing with counsel on the merits of the appellant’s Youthful Offender Petition, the trial court then proceeded in accordance with the mandate of this court, and has sent this court a return to the remand, showing full compliance. After full investigation by the probation officer, and a hearing on the merits of the appellant’s petition, the trial court then entered the following findings:

“THE COURT: Well, the Court is of the opinion that the defendant was properly tried as an adult, that he was not entitled to treatment as a youthful offender in this case, number 804, where he was indicted and tried for burglary in the second degree; that he had formerly been convicted in this same Court on a charge of forgery, and he was sentenced by Honorable G. H. Wright, Jr., Associate Judge of this Court, to imprisonment in the penitentiary for a term of three years in that forgery case. Judge placed him on probation, and while he was on probation, he committed this second offense, burglary in the second degree.
“In the opinion of this Court, he was not entitled to treatment as a youthful offender, and is not now entitled to treatment as a youthful offender.”

We are of the opinion that the mandate of Morgan v. State, 291 Ala. 764, 287 So.2d 914, has now been fully followed.

I

We will now review the merits of this appeal. Jessie Lee Bryant testified that he was the owner and operator of Bryant’s Washateria and Grocery Store, located at 404 Hardaway Avenue, in Opelika, Alabama. He testified that on the evening of April 8, 1974, he closed his business about 7:00 that evening and barred the door between the washateria and grocery store. He testified further that he ran a string through the bottom of one of the dryers into the grocery store where the thread was attached to a pencil, which he placed into the dial system of the telephone. He testified that he dialed all except the last digit of his home telephone number so that should someone come into either store they would strike the cord, which would immediately pull the pencil from the telephone dial system, causing the telephone to ring his home telephone. Mr. Bryant further testified that about 2:00 on the morning of April 9, 1974, his telephone rang at home, and that upon answering he could not get a reply over his telephone. From the record:

“Q. Okay. What happened then?
“A. I got up and I answered and I didn’t get any answer, and then I just put on my clothes and called the police.
“Q. And you say this was about 2:00 o’clock in the morning ?
“A. Yes, it was about 2:00 o’clock.
“Q. And would this be the morning of April the 9th, the next day ?
“A. Yes, sir.
“Q. After you called the police, what did you do, if anything?
“A. Well, I called them and they said they’d be right on out, and then I drove on around, kinda slow like, I wanted the police to be there when I got there, and so the police was there.
“Q. And what did you do when you arrived ?
“A. Well, I sat there a minute or two until about two cars and about three .or four polices had gone in, and then I went in.
“Q. When you arrived at your store, were the lights in the washateria on or off?
“A. They was on.
“Q. When you left the store that evening, did you leave the lights on, or did you turn them off?
“A. I turned them off.”

Mr. Bryant further testified that he gave the key to his business to two police officers who answered the call, and that they then went into the washateria. He testified that the door between the washateria and the grocery store was open, and that the bar had been removed which had been placed across the door. He noticed that there was a hole inside the door, and that there were splinters on the floor. He further noticed that part of the door frame had been broken off. Mr. Bryant testified that, upon looking in the direction of the washers and dryers, he observed the appellant seated on the floor, and that a companion was apprehended behind the hot water heater.

Opelika Police Officer John T. Pruitt testified that, in response to a telephone call received on the early morning of April 9, 1974, he and Lt. Florence went to Bryant’s Grocery and Washateria shortly after 2:00 in the morning. He testified that he met Mr. Bryant there and noticed that the door to the washateria was partially open. He stated that he turned on the light switch inside the washateria and found one William Moody hiding behind the water heater, and that a hawk-billed knife was found on the floor near where Moody was standing. He placed Moody under arrest. He further testified that part of the door frame had been pulled off, and that a cross bar, which had been placed across the door which lead into the grocery store, had been removed, that there was debris on the floor and a piece of molding had been torn off. He further testified that he and the other officer made several photographs of the interior of the premises, and these were admitted in evidence by the trial court. The appellant was found near a dryer in one corner of the building, and was placed under arrest.

The appellant’s motion to exclude the State’s evidence was overruled by the trial court. The appellant presented no testimony at trial.

II

Appellant first contends that the trial court committed error in qualifying the ve-nire in this cause when it asked the question if any member of the venire had a fixed opinion against penitentiary punishment.

We are of the opinion that no error here occurred, as the trial court properly asked this question of the prospective jurors under the provisions of Title 30, Section 57, Code of Alabama 1940. Moreover, no juror responded in reply to this inquiry by the trial judge.

III

Appellant also asserts as error the overruling of his motion to exclude the State’s evidence, stating that the State failed to prove a prima facie case.

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

“The applicable elements of second degree burglary are: (1) breaking, (2) entering, (3) with intent to steal or to commit a felony. The evidence, without contradiction, shows the first two ingredients. Behel v. State, 40 Ala.App. 689, 122 So.2d 537. From Behel, this Court, per Cates, J., stated: ‘“The jury may reasonably infer intent to steal from the mere presence of the accused in the shop in circumstances showing a breaking and entering in the night. . . . ” ’ [Cases cited.]”

Judge Harris, speaking for a unanimous court, in Burleson v. State, 52 Ala.App. 399, 293 So.2d 317, observed:

“We are unwilling to hold that the evidence in this case is insufficient to establish the essential elements of the crime for which appellant stands convicted. The corpus delicti is a fact, proof of which may be shown by circumstantial evidence, and if there is a reasonable inference to prove its existence, the court should submit to the jury for consideration the question of the sufficiency and the weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296.”

It is clear here that the trial court properly denied the appellant’s motion. Creel v. State, 53 Ala.App. 504, 301 So.2d 267; Hare v. State, 52 Ala.App. 279, 291 So.2d 371; Tucker v. State, 50 Ala.App. 405, 279 So.2d 576; Burleson v. State, supra; Wicks v. State, 44 Ala. 398; Eason v. State, 48 Ala.App. 471, 265 So.2d 913.

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

Affirmed.

All the Judges concur.


text:
    In re Roland Harold HUGHLEY, alias v. STATE. Ex parte Roland Harold Hughley.
    SC 1327.
    Supreme Court of Alabama.
    July 3, 1975.
    Richard D. Lane, Auburn, for petitioner.
    None for respondent.
   MADDOX, Justice.

Petition of Roland Harold Hughley for Certiorari to the Court of Criminal Appeals to review and revise the judgments and decisions of that Court in Hughley, alias v. State, 55 Ala.App. 559, 317 So.2d 526, 55 Ala.App. 557, 317 So.2d 524.

Writ denied.

HEFLIN, C. J, and MERRILL, JONES and SHORES, JJ., concur.