text:
    In re Willie James WRIGHT v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1778.
    Supreme Court of Alabama.
    Nov. 5, 1976.

      William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State, petitioner.
    Wm. J. Fuller, Jr., Montgomery, for respondent.
   BLOODWORTH, Justice.

We granted the Attorney General’s petition to review the Court of Criminal Appeals’ decision which reversed respondent’s conviction for carnal knowledge of an eight-year-old girl. Although the writ was granted May 7, 1976, the ease could not be submitted until after oral argument was heard at our October term. After a careful consideration of the issues raised by the petition for certiorari, we reverse and remand this cause to the Court of Criminal Appeals.

The jury found respondent guilty and fixed his punishment at life. The Court of Criminal Appeals reversed: I. A. because, in addition to Miranda warnings, the trial court should have “determined that this defendant did knowingly and intelligently waive his right to remain silent”; B. because the trial court admitted the confession, although it was informed the respondent had requested counsel and none was present when the confession was taken; and, II. because the trial court excluded the public from the courtroom, denying respondent a “public trial.”

We proceed to consider these holdings seriatim.

This was a revolting sex offense in which respondent assaulted the victim sexually, stabbed her repeatedly, then carried her to an abandoned burned-out house where he laid her in an old bath tub, tied her hands, and forced her panties down her throat with a stick. He left her for dead. Amazingly, the little girl regained consciousness, stumbled to a nearby house where she was taken in, naked and bloody. Thereafter, the police were called and respondent was arrested later that afternoon.

I. Miranda

Respondent was read a “rights form” which informed him of his rights in accordance with Miranda. At this point, he asked to speak to his lawyer, George Cameron. The police called Mr. Cameron and permitted respondent to speak to him over the telephone. After speaking to his lawyer, respondent told the officers that “Mr. Cameron told him to tell the truth” and “to talk with you all.”

Approximately 43 hours later, respondent confessed. Officers testified that he was questioned off and on during a period of two days, that they stopped the questioning “when he got tired of talking [and when he] didn’t want to talk to us, we would take him back [to his cell].” Nothing appears to show that “the statement was the product of an uninterrupted period of continuous questioning” — or that respondent “was refused access to his family, friends or counsel, or that he had been physically abused.” At no time after the telephone conversation with Cameron, did respondent again request counsel.

At the beginning of the statement which respondent signed, he again acknowledged he was advised of his Miranda rights and delineated them. In the statement, he confessed to the crime. At trial, his defense was irresistible impulse to commit “pedo-philic sex acts.”

A.

We agree with the State’s contention that the Court of Criminal Appeals erred in holding that it was necessary for the trial court to determine first that the defendant knowingly and intelligently waived his right to remain silent before proceeding to determine voluntariness. No authority is cited for this proposition. The State argues that this is a “novel” holding, is an incorrect interpretation of Miranda and is not required by any Alabama statute or case. We agree. The State contends that if a defendant did not knowingly and intelligently waive his right to remain silent a confession wouldn’t be voluntary under Miranda anyway.

We agree with the Court of Criminal Appeals that, under Alabama law, “[t]he duty rests in the first instance on the trial court to determine whether a confession is voluntary.” Since before Miranda our rule has been that a confession is prima facie involuntary and therefore inadmissible. Its voluntariness must be shown by the State before it can be admitted, irrespective of Miranda. Ex parte State, In re Lewis v. State, 295 Ala. 350, 329 So.2d 599 (1976).

We expressly reject the notion that the trial court must make some express factual or legal or factual-legal determination on the record (as appears to be the holding in the Court of Criminal Appeals’ decision) that the defendant “did knowingly and intelligently waive his right to remain silent.”

We reaffirm our holding in Dotson v. State, 288 Ala. 727, 265 So.2d 162 (1971) (per Maddox, J.):

“. . . The ultimate test is whether the waiver of the right to silence and to counsel was knowingly, voluntarily and intelligently made. This determination can be deduced from the particular facts and circumstances of each case and need not be determined solely upon the presence or absence of an express statement of certain words.”
“A heavy burden rests upon the State to prove that a person in custody ‘knowingly and intelligently’ waived his privilege against self-incrimination and his right to retained or appointed counsel.”

See also Dotson v. State, 48 Ala.App. 381, 265 So.2d 164 (1972) (per Almon, J.) after remand by this Court.

Of course, the trial judge must first satisfy himself that a defendant has knowingly and intelligently waived his right to remain silent, and he accomplishes this when he rules that a confession is admissible. Else, his ruling would be in error. On appeal it is the duty of the appellate court to be satisfied that the record contains . . testimony conclusionary or detailed, as to . . . ” defendant’s “. stating that he understood the Miranda warning . . .” although the record need not show that defendant expressly state[d] that he [understood].” Dotson, supra, 288 Ala. at 728, 265 So.2d at 163.

It is, of course, the duty of the Court of Criminal Appeals to determine from the record in this case whether the state met its burden “in view of the totality of the circumstances surrounding the making of the in-custody statement.” Dotson, supra.

Although the majority opinion of the Court of Criminal Appeals alludes to the “continuous periods of questioning” of respondent, the dissent reveals the following:

“From the time of this man’s arrest until the time the statement was executed, approximately 43 hours elapsed. Nothing in the record indicates that the statement was the product of an uninterrupted period of continuous questioning. On the contrary, the record reflects the following in Officer King’s testimony:
“ ‘Q. . And how long did you observe him?
“ ‘A. I stayed with him approximately —well, near about two days.
“ ‘Q. Yes, sir. Now, during that time—
“ ‘A. (Interrupting) Off and on, we took him—
“ ‘Q. (Interrupting) Sir?
“ ‘A. Off and on for two days, we would take him out and when he got tired of talking, he didn’t want to talk to us, we would take him back.’
“No evidence was presented that made it appear appellant was refused access to his family, friends or counsel, or that he had been physically abused and not given food or drink.”

B.

We also agree with the State that the Court of Criminal Appeals erred in its holding that the confession should be suppressed because the “defendant wanted an attorney and none was present when the confession was obtained.”

We agree with that part of the dissent which concludes that defendant was afforded his right to confer with his own counsel viz.:

“. . . An evidentiary hearing was held out of the jury’s presence to determine the voluntariness of the confession. At its conclusion, the trial judge found the evidence sufficient to show that the admission in question was freely given by the appellant.
“The record showed the appellant was arrested at approximately 5:30 P.M., on August 13, 1974, and was brought to jail. He was advised of his constitutional rights by Officer King, who read them to him from a ‘Miranda Card.’
“On being informed of these rights, appellant asked to speak to his lawyer, George Cameron. At that point, the officers contacted Mr. Cameron.
“From the record:
“ ‘Q. (By Mr. Thomas) Did he ask for a lawyer?
“ ‘A. The day this was signed and read or the day that we picked him up and it happened?
“ ‘Q. The day you picked him up and it happened?
“ ‘A. He did. He wanted to talk to a lawyer that day.
“ ‘Q. Now, did you all contact his lawyer?
“ ‘A. We did.
“ ‘Q. Who was that?
“ ‘A. Mr. George Cameron.
“ ‘Q. Did he talk with his lawyer?
“ ‘A. Let him talk to the lawyer, himself.
“ ‘Q. What, if anything, did he say after he got through talking with Mr. George Cameron?
“ ‘A. He said Mr. George Cameron—
“ ‘MR. FULLER: (Interrupting) Excuse me—
“‘MR. THOMAS: (Interrupting) This is what the defendant said.
“ ‘MR. FULLER: Oh; all right.
“ ‘Q. What did he say?
“ ‘A. The defendant said Mr. Cameron told him to tell the truth.
“ ‘Q. And told him to talk with you all?
“ ‘A. (Nods head affirmatively).’ ”
“Here this man was afforded the right to confer with his own counsel and only after he talked with his attorney was any interview conducted. As is shown from the record, the appellant acted on the advice of his counsel when he made the incriminating statement.
“The statement made to the police was two pages in length and was signed at the bottom of each page by the appellant. Near the middle of the last page, the appellant initialled a correction. It was dated August 15, 1973, and indicated a time of 12:05 P.M.
“In addition to the written confession, appellant also executed a written statement delineating his constitutional rights. Included in this statement of rights was the admonition concerning the right to confer with, presence of, and appointment of counsel.
“Also, in the confession proper, at the very beginning, we find that appellant again was apprised of his right to counsel in this language:
“ ‘STATE’S EXHIBIT 5
“ T, Willie James Wright, hereby make the following statement to Det. G. J. Vaillancourt & Sgt. C. L. King who I know as police officers of the City of Montgomery. I have been advised of my rights and I know that I may have an attorney present if I wish and if I cannot afford to hire one the court will appoint one for me. I make this statement of my own free with (sic) and no threats or promises have been made to me . .

We cannot agree with the Court of Criminal Appeals, which concluded in its majority opinion, “that defendant expressed a desire for an attorney, but was accorded only the privilege of talking with one over the phone” and that this method of talking to his lawyer was unsatisfactory.

We see nothing unsatisfactory about this method of consultation. Ordinarily, people in their everyday affairs consult lawyers over the telephone. Many lawyers, we judicially know, conduct most of their business over the telephone. Many lawyers, as well as many clients, prefer it this way.

There is nothing apparent to us to indicate that the officers “eavesdropped” or “listened in” on the conversation in this case or engaged in some other improper activity in according respondent his right to consult his attorney. Further, it appears that respondent was satisfied with his consultation with his counsel and did not ask for or require further or different' consultations with his counsel.

Very recently in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) the U. S. Supreme Court was faced with a similar Miranda issue. Respondent was arrested in connection with certain robberies and was advised in accordance with Miranda. He declined to discuss the robberies, whereupon the detective ceased the interrogation. More than two hours later, after giving additional Miranda warnings, another detective questioned respondent solely about an unrelated murder. Respondent made an inculpatory statement, which was later used in his trial for murder. This resulted in his conviction. The Supreme Court held that the admission in evidence of respondent’s incriminating statement did not violate Miranda principles. Respondent’s right to cut off questioning was scrupulously honored, the police having immediately ceased the robbery interrogation after respondent’s refusal to answer and having commenced questioning about the murder only after a significant time lapse and after a fresh set of warnings had been given respondent.

Likewise, in the case at bar, we do not see any violation of Miranda principles.

Respondent said he wanted to talk to his lawyer. He did, albeit over the telephone. He said his lawyer said “to tell the truth” and “to talk to the officers.” For aught appearing, as Judge DeCarlo observes in the dissent, respondent, in confessing, “acted on the advice of his counsel.”

Moreover, before the confession was obtained, respondent was given additional Miranda warnings, at least twice.

II. “Public Trial”

We now reach the final issue — wherein the Court of Criminal Appeals held that reversible error was committed by the trial judge in excluding the public from the courtroom during the trial of this case. We agree with the State that no reversible error resulted.

The context in which this matter arose appears in the following quotation from the Court of Criminal Appeals’ opinion on rehearing:

“Deputy District Attorney Thomas, prosecuting for the State, commented to the trial court that the facts were repulsive and the alleged victim was eight years old. He asked the court to strongly consider whether or not the courtroom should be cleared. The judge then asked Mr. Fuller, defendant’s attorney, if he had any objections. He replied: ‘Your Honor, I believe it is within the Court’s discretion, in any case. . . .’ After a short discussion about certain witnesses being excused from the rule, the Deputy Solicitor again observed, ‘. . . we would request that the courtroom be cleared.’ The court then stated: T am going to exercise my discretion in favor of the State, Mr. Fuller, and clear the courtroom.’ Thus, it appears that the motion of the State was granted.” [Sic! ] ******

“The record is silent as to how the court went about executing the motion that it granted." (Emphasis supplied.)

We think the Court of Criminal Appeals erred in its reversal on this ground because it affirmatively appears that there was no objection; consequently, a “waiver” resulted.

The attorney for respondent plainly stated on the record:

“Your Honor, I believe it is within the Court’s discretion, in any case. . . ”

We think this assertion coupled with the fact of the lack of an objection amounts to a waiver of the right to “public trial.”

The general rule throughout the country is that an accused may waive this right expressly or by failing to object. 23 C.J.S. Criminal Law § 963(8).

Only one state is cited as being contra to the general rule. It is Alabama and the case cited is the first Wade case at 207 Ala. 1, 92 So. 101. In that case, in an opinion authored by Anderson, C. J., the Court held that failure to object did not operate as a waiver of this constitutional right and that it could not be waived because it was “like unto the right of trial by a jury in felony cases.” 207 Ala. at 4, 92 So. at 104. Anderson, C. J., was joined by McClellan, Somer-ville, Thomas and Miller, JJ. Gardner, J., (later Chief Justice) and Sayre, J. dissented for the reason that they considered the failure to object constituted a “waiver.”

We think the dissent to be the sounder view. Particularly is this so when we consider that Chief Justice Anderson put the “non-waiver” aspect of public trial on a par with the right to trial by jury in felony cases — which he likewise considered to be “non-waivable.” This court in a recent decision, Singleton v. State, 288 Ala. 519, 262 So.2d 768 (1971) (per Maddox, J.), expressly held that, with the consent of the State and the court, a defendant charged with a noncapital felony may “waive” a jury trial. Such consent was held not to be violative of public policy. ' If jury trial in felony cases is “waivable,” we do not see why “public trial” is not also.

It is thus that we reverse and remand the decision of the Court of Criminal Appeals.

REVERSED AND REMANDED.

All the Justices concur.

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

      . Dissent per DeCarlo, J., Court of Criminal Appeals’ decision, 340 So.2d 69.


source: Caselaw Access Project

license: Public Domain

text:
    Willie James WRIGHT v. STATE.
    3 Div. 418.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
   AFTER REMAND BY SUPREME COURT:

AFFIRMED on authority of Ala., 340 So. 2d 74.


author: HARRIS, Judge.

text:
    Eddie McDonald v. STATE.
    No. 8 Div. 831.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 5, 1976.

      Robert Straub and Sherman Powell, Jr., Decatur, for appellant.
    William J. Baxley, Atty. Gen. and Gary R. Maxwell, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree and the jury found him guilty of murder in the second degree and fixed his punishment at 35 years in the penitentiary. Prior to arraignment and trial appellant was found to be indigent and counsel was appointed to represent him. He pleaded not guilty and not guilty by reason of insanity. After sentence was imposed he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent appellant on appeal.

The evidence was in sharp conflict in many respects. The State produced an eyewitness to the shooting of the deceased in his own home by appellant with a sawed-off shotgun. Appellant’s version as- to the circumstances that preceded and led up to the shooting was at variance with the State’s eyewitness in some degree.

There was no motion to exclude the State’s evidence; there was no request for the affirmative charge, and no exceptions were reserved to the Court’s oral charge to the jury. Appellant did file a motion for a new trial in which he questioned the sufficiency of the evidence but no testimony was taken on this motion and the motion was overruled and denied. The motion also raised the refusal of the trial court to give at the request of appellant a number of charges on the law of self-defense.

This two-volume record covers more than 400 pages and we see little need to detail the testimony of all the witnesses. We feel that a condensed recital of the testimony of the State’s eyewitness and appellant’s testimony will serve to point up the major issues presented on this appeal.

On August 23,1975, appellant and five or six other men came to Lawrence County from Limestone County in search of a man named “Tex” who they thought had stolen some tools and some rare coins that belonged to one of the men. While in Lawrence County, they decided to go to the home of Rita Ferguson and Bessie Jones who were “go go” girls at a nightclub. When they entered this home, one of the girls was holding a shotgun and Bessie Jones had blood on her face. The girls told the boys that the deceased had come to their house and beat them up and generally tore up the house as there was broken glass all over the living room and the floor was wet. They told the men that the deceased threatened to come back later and give them some more of the same. The men decided to take matters into their own hands and go to the home of the deceased as they saw no reason for anyone to beat up the girls and tear up their home. The girls went with them to show them where the deceased lived. The time was around 7:00 p. m. on August 23, 1975. Just before the men and girls drove up to the home of the deceased, the deceased and his friend Tommy Mackey went to the home of the deceased’s grandmother to make a telephone call.

According to the testimony of Tommy Bruce Mackey, who lived with the deceased and they had been close friends for six years, after the deceased had made the telephone call and they were walking back home, a car pulled into the driveway of the deceased. Someone in this car called the deceased and he went over to the car. Mackey stated that he went in the home of the deceased where he saw the appellant standing inside the house next to the wall of the living room holding .a shotgun. The deceased came stumbling backwards through the front door into the room. When Mackey first entered the room, the man who was holding the shotgun pointed the gun at him and ordered him to sit in a chair next to a couch. As soon as the deceased entered the room, he saw the man with the shotgun and approached him to take the shotgun and as he grabbed the gun, it discharged and the load went into the floor of the living room. At this point one of the other men struck the deceased, knocking him to the floor and began to beat on him. Appellant was the man with the shotgun. The deceased was pretty well intoxicated and after he was knocked to the floor, he was subdued. The man who knocked him to the floor picked him up and put him on the couch.

About this time several of the other men and the two girls entered the room and there was some talk about previous difficulties concerning the girls. Mackey stated that during this conversation appellant had the shotgun pointed at the deceased. Mackey told the girls to tell the men that he was not involved in any difficulties with them. The deceased was still sitting on the couch and he told appellant to put the gun up and there was no need or use for the gun. The man who knocked the deceased to the floor was standing between him and appellant and he could not see the shotgun though he could see the deceased still sitting on the couch. He heard someone say, “Don’t shoot,” and the gun fired and the load struck the deceased in the upper left chest and he fell backward on the couch. The girls started screaming and they all left the house immediately. Mackey waited until he heard the car leave and he went to the deceased’s grandmother’s house and called the officers.

Ernest Knox, Deputy Sheriff of Limestone County, arrested the defendant at his uncle’s house. Mr. Knox testified that he had a murder warrant for appellant’s arrest and had been looking for' him for two days all over Limestone County. He further stated that before he could ask appellant a single question, he stated, “Mr. Knox, I have messed up. I have killed a man down in Lawrence County.” A shotgun in the possession of appellant was identified by him as the same gun he brought back from Lawrence County.

Mr. J. D. Ferguson, the father of Rita Ferguson, testified that the shotgun was his. He stated that he owned two shotguns, a regular Magnum Browning and a Buck Special. He said the guns were supposed to be at his place and he did not take the gun anywhere that day. He further testified that he saw his daughter, Rita, shortly after 12 o’clock noon on August 23, 1975, and she was upset and excited. He stated that her companion, Bessie Jones, was bruised and bleeding. He went to his daughter’s house and there was broken glass and water all over the floor.

Mrs. Elaine Scott, a member of the State Toxicology Department, testified that she ran a blood test on a blood sample taken from the body of the deceased and the alcoholic content showed it was .26 percent.

John H. Kilburn, also with the State Department of Toxicology, testified that he ran tests on the weapon shown as State’s Exhibit 1, and the shells found at the scene of the crime. He found that one shell was not fired from the weapon and the other shell was possibly fired from the weapon.

Appellant testified that on August 23, 1975, he and five other men came from Limestone County to Lawrence County looking for the house of two girls they had met. All of the men had been drinking beer but they were not drunk. They found the house and it had been torn up and one of the girls had been beaten. One of the girls had a shotgun. The girls accused the deceased of the beating and the destruction. They decided to go talk to the deceased. He denied pointing the gun at anyone. He stated that the deceased grabbed the gun both times that he fired and that the gun was pointed toward the floor. He further testified that the deceased appeared to be drunk and that he did not see a weapon of any kind in the hands of the deceased or near him. He stated he had met the deceased one time but that he had never bothered him.

On cross-examination he identified State’s Exhibit No. 8 as being his gun. It was a 20 gauge sawed-off shotgun that he brought to Lawrence County with him. He further stated that when he got out of the car on the .passenger side in the driveway of the home of the deceased, someone handed him a shotgun and he carried this gun into the deceased’s home. He said when everyone was getting out of the ear he was handed a shotgun and that he didn’t want anything to do with the matter. He was asked if he did not want to be involved why didn’t he hand the gun back and he said, “I can’t answer that, I don’t know.” Appellant first stated that he didn’t know the gun was loaded but after it was shot into the floor he knew it was loaded, but he did not try to leave the house then. He just stood there holding the gun up when the gun went off. That when the deceased grabbed the gun, the second time, he did not reach for the trigger as appellant was holding that part of the gun.

Appellant further testified that he had his finger on the trigger when the gun went off and he shot the deceased in his own house.

The Coroner of Lawrence County came to the shooting scene and found the deceased dead on the couch where he had been shot.

An autopsy was performed and six buckshot were removed from the body of the deceased and these shot severed the spinal cord. Death was immediate.

The statement made by appellant to the Deputy who came to arrest him that he had messed up and had killed a man in Lawrence County was properly admitted as a “spontaneous exclamation.” The arresting officer had not addressed a single remark to appellant before he made this statement. Veith v. State, 48 Ala.App. 688, 267 So.2d 480; Moore v. State, 54 Ala.App. 22, 304 So.2d 263; Osner v. State, 54 Ala. App. 520, 310 So.2d 241; Bedingfield v. State, 47 Ala.App. 677, 260 So.2d 408.

The law does not prohibit the trial judge from giving trial counsel his reasons in making certain rulings as to the law applicable to the case. This falls far short of a comment on the evidence. Bedingfield v. State, supra.

In 23 C.J.S. Criminal Law § 993, p. 1024, it is said, “Generally, it is not improper comment on the evidence for the judge to explain his ruling on a matter of law, and he may refer to testimony and state its legal effect, in deciding a point raised during the trial.”

Where the accused claims the shooting was in self-defense, the onus rests on him to show that he could not safely retreat without increasing or apparently increasing his peril. Cosby v. State, 269 Ala. 501, 114 So.2d 250; Payne v. State, 48 Ala.App. 401, 265 So.2d 185.

To excuse one charged with murder on the ground of self-defense the accused must neither have provoked nor encouraged the difficulty, and must at the time have been, or appeared to be, so menaced as to create a reasonable apprehension of loss of life or grievous bodily harm, and there must have been no other reasonable mode of escape. Alabama Digest, Homicide, ®=109 et seq.

The killing in this case would be more appropriately termed an assassination than a murder case in the usual sense. Appellant shot and killed a drunk, unarmed and defenseless man in his own home. He and five other men left their homes in Limestone County and went to Lawrence County where they invaded the home of the deceased and appellant shot him with buckshot as he was sitting on a couch. There is not one thread, glimmer or scintilla of evidence that the deceased was making an attack on appellant when he fired the shot that killed him. This is evident from the State’s eyewitness and the testimony of appellant himself. Appellant was the only person in the house at the time who had a weapon and he could have walked out of the house any time he chose.

We hold that the trial court properly ' refused all requested charges dealing with self-defense.

There was no error in the introduction into evidence of the sawed-off shotgun appellant carried from Limestone County to Lawrence County even though it was not the £un actually used in killing the deceased. It tended to prove that appellant came to Lawrence County on a mission that cannot be said to be a friendly visit. Morris v. State, 268 Ala. 60, 104 So.2d 810; Gautney v. State, 46 Ala.App. 102, 238 So.2d 900; Walton v. State, 54 Ala.App. 317, 307 So.2d 713.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    In re Eddie McDONALD v. STATE of Alabama. Ex parte Eddie McDonald.
    SC 2112.
    Supreme Court of Alabama.
    Dec. 3, 1976.
    Robert Straub and Sherman Powell, Jr., Decatur, for petitioner.
   MADDOX, Justice.

Petition of Eddie McDonald for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in McDonald v. State of Ala., 340 So.2d 327.

WRIT DENIED.

HEFLIN, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: TYSON, Judge.

text:
    Dorothy Bell SMITH v. STATE.
    2 Div. 182.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1976.
    Rehearing Denied Dec. 7, 1976.

      William L. Utsey and James D. Evans, Butler, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant, Dorothy Bell Smith, was indicted for the first degree murder of George Pennington “by shooting him with a .22 pistol.” At trial the jury found the appellant guilty of manslaughter in the first degree and fixed her punishment at ten years in the penitentiary. The trial court then pronounced judgment, setting sentence in accordance with this verdict. The evidence presented at trial disclosed that the appellant and her step-daughter, Shirley Smith, left their home in the early evening of August 16, 1975, and headed for Buddy Pete’s Cafe, which is located a short distance from their Lisman, Alabama home. Sometime after their arrival there, the deceased, George Pennington, entered the cafe, and shortly thereafter a heated argument began between himself and the appellant. Not wanting to “fuss,” the appellant left Buddy Pete’s Cafe and walked with her step-daughter to another “sandwich, whiskey, and beer” establishment, Ellen Bol-den’s Place. There they met a friend, Daisy Coleman, who joined the appellant’s stepdaughter in a dance to the music of the “rock-o-la” while the appellant talked with friends. Thereafter the deceased walked in, sat down at the appellant’s table, and tried to engage in conversation with her. An argument began again between the appellant and the deceased with the appellant insisting that “she didn’t want to talk . ” The appellant got up from the table, told her step-daughter to “let’s go,” and they left (along with Daisy Coleman) walking “up the hill” toward Mitchell’s Cafe where the appellant’s husband, Allain Smith, was present. Upon seeing that the deceased was following them, the appellant told her step-daughter to run ahead and get her father, Mr. Smith. Both the appellant’s step-daughter and Daisy Coleman began running up the hill toward Mitchell’s Cafe, but the appellant yelled for them to come back, stating that it was not necessary that they get her husband. By this time the deceased had “caught up” with the appellant, and according to the testimony of Daisy Coleman and the appellant’s step-daughter, an argument once again began during which the deceased struck the appellant on the head with his fist after the appellant had told him “to go leave her alone.” Daisy Coleman’s testimony revealed the deceased stated to the appellant that, “[either] she was going to kill him that night or . he was going to kill her” just before the appellant pulled a gun from her purse and shot the deceased. The appellant’s stepdaughter’s testimony indicated that the appellant fired her .22 caliber pistol when she saw the deceased “go in his pocket for something” just after he had threatened the appellant that, “he was going to cut her throat.”

I

The appellant insists that the trial court committed “ineradicable error” in the instruction to the jury concerning who had the burden of proof in connection with her plea of self-defense. The record recites the objectionable portion of the oral charge as follows:

“As I also told you, the defendant, in addition to the plea of not guilty, has entered a plea of self-defense in this case, which, if proved beyond a reasonable doubt and to a moral certainty in this case, then it would be a complete defense to the charges embraced in the indictment. There has been evidence introduced in this case to the effect that the defendant acted in self-defense.”

[R. p. 91]

The appellant is indeed correct in her contention that the burden is never upon a defendant to prove each element of self-defense “beyond a reasonable doubt and to a moral certainty.” The quantum of proof which a defendant must shoulder after entering a plea of self-defense was noted by Justice Sommerville in Ex Parte Williams, 213 Ala. 121, 104 So. 282 (1925):

“In homicide cases, where self-defense is relied upon — the state having made out a prima facie case of intentional killing by evidence which does not itself tend to show that the killing was done in self-defense — the burden rests upon the defendant to offer some evidence tending to show (1) that he was in actual and imminent danger of death or serious bodily harm, or that he honestly and reasonably believed that he was in such danger by reason of circumstances apparent to him; and (2) that he was apparently unable to retreat in safety, or without increasing his peril.
“The defendant’s burden in this behalf has often been loosely referred to as the burden of proving self-defense, and sometimes as the burden of reasonably satisfying the jury of the existence of the two elements above referred to. But the actual burden is not a burden of proof, in the ordinary sense of the phrase, to establish an issue to the reasonable satisfaction of the jury, but a burden merely of offering enough evidence tending to show these two elements to generate, in connection with all the other evidence, a reasonable doubt of defendant’s guilt of 'the unlawful killing charged. . . . ”

The record reveals that the trial court in the instant case became aware of his erroneous instruction before exception thereto was reserved by the appellant and that the appellant was apparently satisfied with the court’s attempts to correct its prior misstatement of law. We note the first written charge given by the trial court at the appellant’s request with emphasis on the comments which followed:

“When, as in this case, some evidence of self-defense is offered by the defendant, the prosecution must then prove beyond a reasonable doubt that the defendant did not act in self-defense. The defendant, in other words, has no burden to prove that she acted in self-defense, if the evidence has created a reasonable doubt that the defendant did act in self-defense, you must find her not guilty.
“JUDGE HOLLADAY (to Mr. Utsey): Now does that correct that statement that I made earlier that I saw you start writing on?
“MR. UTSEY: Yes, sir, if you will run over it one more time to the jury to be sure that they got it.
“JUDGE HOLLADAY: Of course, if the Court makes a misstatement of law either side, of course the defendant has a right to take exception to it, and of course I recognize that right of the defendant that at any time this Court makes a misstatement of law I think it would be their duty to take exception to the Court’s charge. And if I have made any you can except to it and I will try to correct it.”
[Emphasis supplied] [R. pp. 100-101]

Thereafter the trial court further read to the jury ten of the appellant’s requested charges which correctly explained the law of self-defense and stressed that the burden of proof is never cast on a defendant when he relies on self-defense as a justification of his actions. Moreover, at the conclusion of the trial court’s entire charge, the following remarks were made by the trial judge to the jury before they retired to deliberate their verdict:

“JUDGE HOLLAD AY: Ladies and gentlemen, I am going to, with an abundance of caution in this case, will tell you that the burden of proof is never on the defendant in this case. If I said anything that gave you the idea, I think that at one point there I might have possibly stated in a manner that might have given you the idea that I was telling you that the burden was on the defendant in this case to satisfy you beyond a reasonable doubt and to a moral certainty some point. Now, the burden of proof is never on the defendant. The burden of proof is even as far as offering evidence of self-defense. The matter of self-defense can be brought up by evidence put on by the State of Alabama, but the burden of proof is never cast upon the defendant in this case, which I charged. If you want to take an exception after the jury retires, I will hear you.”
[R. p. 106]

We are of the opinion that the erroneous portion of the trial court’s oral charge was rendered innocuous by the court’s subsequent curative action. Richardson v. State, 39 Ala.App. 207, 98 So.2d 59 (1957); Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955). We are not unmindful of the confusion which may be generated when a jury is given conflicting instructions on a proposition of law, but we are certain in the instant case that the conflict as to where the burden of proof on the issue of self-defense rested was ably clarified by the trial court. See Lester v. State, 270 Ala. 631, 121 So.2d 110 (1960). Therefore in rejecting the appellant’s contention that the misstatement of law made by the trial judge in his oral charge constituted “ineradicable error,” we conclude by noting the observation of Chief Justice Stone in Booker v. The State, 76 Ala. 22:

“ . . . Illegal evidence admitted, and afterwards distinctly and clearly withdrawn from the jury, presents no reversible error; and all will admit that in such case, the jury is much more likely to be biased, than they would be by an error in charging, but afterwards corrected

Having carefully reviewed this entire record, as required by Title 15, Section 389, Code of Alabama 1940, and finding it to be free from error, the judgment of the trial court is due to be and is hereby

AFFIRMED.

DeCARLO and BOOKOUT, JJ., and BOWEN W. SIMMONS, Supernumerary Circuit Judge, concur.

HARRIS, J., concurs in result.

CATES, P. J., not sitting.


text:
    Melvin SARTAIN v. STATE.
    1 Div. 682.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Nov. 2, 1976.
   First degree murder conviction in Circuit Court, Mobile County, Robertson, J., AFFIRMED without opinion.


author: JONES, Justice.

text:
    In re Melvin SARTAIN v. STATE of Alabama. Ex parte Melvin Sartain.
    SC 2181.
    Supreme Court of Alabama.
    Dec. 10, 1976.
    D. Wayne Childress, Mobile, for petitioner.
    None for the State, Respondent.
   JONES, Justice.

Writ denied. See Ex parte Phelps, Ala., 339 So.2d 124 [1976].

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


text:
    Jimmy Lee LITTLE v. STATE.
    8 Div. 860.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1976.
    Rehearing Denied Dec. 7, 1976.
    No brief for appellant.
    William J. Baxley, Atty. Gen. and Stephen M. Langham, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree. At arraignment he was represented by two experienced trial lawyers of his own choice. He pleaded not guilty. The jury returned a verdict finding the defendant guilty of murder in the second degree and fixed his punishment at twenty-one years imprisonment in the penitentiary. At the time sentence was imposed, he gave notice of appeal and filed a petition for a free transcript and the appointment of counsel to represent him on appeal. A hearing was held on appellant’s petition and he was determined to be indigent and a free transcript was furnished him. One of his retained counsel was appointed to represent him on appeal.

Thé testimony is conflicting in the extreme. The evidence for the State tended to make out a strong case of murder in the first degree without any mitigating or extenuating circumstances. Appellant claimed the shooting was accidental.

The homicide occurred in the early morning hours of October 5, 1975, in Florence, Alabama, at an apartment where the .deceased, a seventeen year old boy, lived with his mother, two sisters, and three brothers. The deceased was the oldest of the children. The mother of these six children had been separated from her husband about three years and she was going with appellant. She testified that appellant had spent the night with her in the apartment twelve to fourteen times during the eighteen month period that she had been going with him, and that she had spent a few nights at his apartment and other places during this period of time. She further testified that appellant kept no personal belongings at her house — not even a toothbrush.

Annie Liner, mother of the deceased, testified that appellant spent Friday night, October 3, 1975, in her bedroom in the apartment located at 1454-A Carver Heights, in Florence. Her deceased son, Rohn, left the apartment around 7:30 o’clock on Saturday morning, October 4, 1975, to attend band practice at his school. Appellant did not get up until about 10:00 a. m. and he told Annie that he was missing $120.00 from his pockets and asked her if she took the money. She denied taking the money and told him that none of her six children would have taken it. Appellant then said, “What about Rohn?” Annie became upset at this accusation against her son but agreed to go with appellant and find Rohn and ask him about the missing money. They found Rohn with some of his friends on Noble Street and Annie called him to come over and get in the car. When he got in the car, Annie told him that appellant had missed $120.00 and thought he had taken it. Rohn denied taking the money or any part of it. Appellant and Annie let Rohn out of the car and appellant told Annie that he needed a drink and they went and bought a half pint of gin. After drinking the gin, appellant gave Annie $50.00 to buy groceries and carried her back to the apartment. When appellant left, he was still talking about the missing money. Annie told him if he still thought Rohn had taken his money, he should go to the police and have them bring Rohn in for questioning.

At approximately 8 o’clock that night appellant called Annie and told her he was not coming to her apartment again and Annie told him it was all right with her and broke off the conversation. Annie went to bed and around 11:50 she was awakened by another telephone call from appellant who wanted to know if Rohn was at home and she said yes and asked why he wanted to know. Appellant said he wanted to talk to Rohn. Appellant arrived some time after midnight and knocked on the door. Annie opened the door and she told appellant to wait in the living room and she would go to Rohn’s room and get him. However, when she went to awaken her son, appellant followed her into the room and started cursing Rohn in a loud tone of voice and demanded his money. Rohn was on the top bed of bunk beds in the room and Annie told appellant to leave. Rohn again denied taking appellant’s money. Annie became nervous and upset and went into the bathroom. When she came back in the room, she saw Rohn on the floor and appellant was striking him with some kind of a stick. Rohn was completely undressed except for a pair of jockey shorts. Rohn got off the floor and started running out of the house. Annie reached for her son and appellant pushed her aside and ran after Rohn who went out the front door. Annie saw appellant pointing a pistol at Rohn and heard several shots. Appellant shot and killed Rohn as he was running across the street and he fell on the street and died immediately. Appellant walked to where Rohn was lying in the street and saw that he was dead.

Charles Roy testified that he was driving by the Carver Heights Apartments in the early morning hours of October 5,1975, and when he turned off of Carver Road on Beale Street, he heard some shooting and saw the flash of a gun. He saw a young boy run in front of his car lights and across the street where he fell. He then saw appellant walk over to where the boy was lying in the street. Roy stopped his car near where appellant was standing and asked him what happened and appellant replied, “I shot this boy for nothing, go call the police.” Roy went to the home of his ex-wife and called the police. Roy further testified that in his best judgment he heard four shots.

After Rohn was killed and removed from the scene by ambulance, his clothing and personal effects were searched and no money was found — not even a penny.

Police Officer James Curtis of the Florence Police Department testified that he got to the scene of the shooting'in two or three minutes after the dispatcher gave him the report. When he arrived appellant walked over to him and said he had shot the boy. Officer Curtis stopped him at this point and read him his rights. The officer then took a revolver out of appellant’s right front pocket. The revolver contained two live rounds and two spent cartridges. Later that morning another spent cartridge was found on the street near where the deceased fell. The revolver and cartridge were introduced into evidence. Photographs were taken of the scene before the body was removed and were introduced into evidence over the objections of appellant that they tended to inflame the minds of the jury.

State Toxicologist John Kilbourn testified that the spent cartridge case found in the street near the body of the deceased was turned over to him along with the revolver taken from appellant. He test-fired the revolver and compared the cartridge found in the street with the test-fired bullets and stated that the spent cartridge found in the street was fired from the pistol taken from appellant at the scene of the homicide.

Kilbourn performed an autopsy on the body of the deceased. The autopsy revealed that the deceased sustained a single gunshot wound in the back of the neck that had lacerated the spinal cord and it came to rest under his tongue. This slug was removed and tests revealed that this bullet was similar in all class characteristics to the test slugs fired from the weapon taken from appellant, but due to the mutilation of the slug, Mr. Kilbourn could not say that it was fired from the particular weapon. Kilbourn stated that the cause of death was due to the destruction of the spinal cord and shock.

Appellant testified in his behalf and offered the testimony of several witnesses who testified to his good character, that he had a good reputation for being a peaceful man, and that they would believe him under oath in a court of justice whether he was interested or not.

Appellant testified that he went in Rohn’s room with his mother on the morning or night in question and that she told Rohn to give appellant the money. That Rohn denied taking it/ Appellant stated he got a stick and hit Rohn on his legs and Rohn ran out of the room and out the front door. That appellant followed Rohn, pulled a gun out and shot into the air to scare him. He denied aiming the pistol at the boy. He stated that Rohn’s sixteen year old sister grabbed the gun and when the gun came down, it went off.

Bridgette Liner, sister of the deceased, testified that she saw appellant take “good aim” at her brother and she tried to disrupt him but appellant pushed her away. That she did not touch either the gun or the hand of appellant when he was shooting at her brother. She said the last shot was fired when appellant pushed her down.

The trial court charged the jury on all four degrees of homicide. This was more than appellant was due. Appellant shot a defenseless youth in the back of the neck while he was fleeing for his life. The deceased had not said or done anything to provoke appellant. He was trying to escape further beatings from appellant and was clad only in a pair of jockey shorts.

In a prosecution for murder it was for the jury to determine whether shooting of the deceased by appellant was accidental or whether it was intentional. Smith v. State, 54 Ala.App. 96, 304 So.2d 914; McMillan v. State, 44 Ala.App. 216, 205 So.2d 603.

Conflicting testimony is for the jury and a verdict rendered thereon will not be disturbed on appeal. Waters v. State, 55 Ala.App. 646, 318 So.2d 342; Jones v. State, 55 Ala.App. 466, 316 So.2d 713; Pugh v. State, 51 Ala.App. 164, 283 So.2d 616; Morris v. State, 47 Ala.App. 132, 251 So.2d 629.

Photographs of the deceased and the locus in quo were properly admitted into evidence. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

There was no error in overruling and denying appellant’s motion to exclude the State’s evidence. Young v. State, 283 Ala. 676, 220 So.2d 843.

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

The judgment of conviction is affirmed.

AFFIRMED.

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


author: BOOKOUT, Judge.

text:
    Christopher John COOPER v. STATE.
    3 Div. 538.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    J. Doyle Fuller, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and James S. Ward, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

On November 14,1975, Terry Jenkins was shot to death on the campus of Alabama State University in Montgomery. Around 3:00 P.M. on that date, Jenkins was walking between buildings on the campus with companions Cliff Eaton, Willy Dunn and Jessie Giles. Someone came up behind the group and called Jenkins’ name. Suddenly a quick series of gunshots was heard, and Jenkins lay dead on the ground.

At the end of the State’s case in chief, the defense rested without putting on any evidence. Appellant futilely tested the sufficiency of the evidence by a motion to exclude, by a request for the affirmative charge and by motion for a new trial.

I

Cliff Eaton testified that on hearing the shots, he turned and saw Jenkins lying on the ground and saw a man running away toward Bibb Graves Hall, a girls dormitory. He said the fleeing man was wearing a burgundy-colored coat rimmed with white fur. He did not see the gun and could not identify the assailant.

Willy Dunn heard shots and saw the killer standing over Jenkins and shooting him as he was on the ground. Dunn heard a total of four or five shots and saw the assailant run toward Bibb Graves Hall. Dunn could not identify the man who shot Jenkins, but said he was wearing a burgundy coat with white trim on the collar and sleeves.

Floretta McCary was walking across campus and witnessed the shooting, stating:

“Well, it was a lot of guys standing in front of Patterson Hall. And there was a dude with a burgundy jacket on .

He shot this other dude and he fell.” She said Jenkins fell and the killer kept shooting him and then ran by Bibb Graves Hall. As the man ran past her, she saw him putting a pistol in his pocket, however, she could not identify him.

Perry Lee Ayres had gone to the campus on the day in question to pick up the sister of a friend. He was parked in front of Bibb Graves Hall and was in the process of tightening the mud flaps on his car when he heard three shots. He did not see the shooting, but the assailant ran within ten feet past him. Ayres said the man was wearing a maroon coat with a white fur collar and was putting a gun into his right coat pocket. Ayres positively identified the. appellant as that man.

Greta Kent, a resident student, was lying down in her dormitory room when she heard the shots. She immediately got up and looked out the window and saw the appellant, whom she identified, running across the street behind Bibb Graves Hall toward her dormitory. He was wearing a dark-colored coat and appeared to be holding his right side.

Gwendolyn McCurdy shared an apartment with Debra Carter, Margaret McGhee and Linda Brooks. Appellant had been dating Margaret McGhee. On the afternoon of November 14, 1975, appellant came to the apartment. He was wearing a burgundy or maroon coat. He asked Miss McCurdy to go to the campus and find his brother Jerome and bring him to the apartment. She could not locate Jerome, but he nevertheless came by the apartment about twenty minutes later. Jerome told appellant that there had been a shooting on campus, and appellant replied that he knew it and had to get out of there.

Appellant asked Miss McCurdy for a wig, but she did not have one. She said appellant, “. . kept saying the guy had ripped him off for six hundred and fifty dollars or seven hundred dollars.” She did not know to whom he was referring however. The witness said she pulled her car around to the back of the apartment and picked up appellant and his brother. Jerome rode up front with her, but completely inconsistent with innocence, appellant rode in the trunk of the ear. She drove them to a house across town and let them out.

After appellant had left and Gwendolyn McCurdy had returned, Debra Carter found appellant’s burgundy coat rolled up and stuffed in the mattress of a roll-away bed in the closet of Margaret McGhee’s bedroom. She found a pistol under the mattress of Miss McGhee’s bed. The gun was test fired, and a ballistics test showed that it was the same gun that fired the bullets that killed Jenkins.

There were no eyewitnesses to the actual shooting who could positively identify appellant as the killer. Likewise, none of the witnesses who identified appellant at or near the scene of the crime actually saw the shooting. Because of this, appellant says the evidence is insufficient to support the verdict. We strongly disagree. Without citing the numerous cases holding that circumstantial evidence will support a verdict of guilty, we simply observe that seldom do we see a stronger, more cogent case of circumstantial evidence. All the evidence points toward appellant as the killer and conversely, all of appellant’s actions were inconsistent with his innocence. The trial judge ruled correctly on appellant’s challenges to the sufficiency of the evidence.

II

Appellant contends that Charles Wesley Smith was not properly qualified as a ballistics expert and that the court erred in allowing him to connect the death bullet with the gun found in the room of appellant’s girl friend.

Appellant’s objection went to the sufficiency of testimony qualifying Smith as an expert witness in the field of ballistics. Appellant’s objection did not question the standards of the scientific test or its general acceptance as such. The State, in its brief, correctly cites White v. State, 294 Ala. 265, 314 So.2d 857 (1975) as controlling:

“. . . The criterion for admission of expert testimony is that the witness, by study, practice, experience, or observation as to the particular subject, should have acquired a knowledge beyond that of ordinary witnesses. . . .”

White restates the time-honored proposition that, “[wjhether a witness is shown to possess the requisite qualifications of an expert is a preliminary question largely within the discretion of the trial court. . The appellate court will not reverse its ruling unless there has been an abuse of that discretion.” (Citations omitted.) White likewise strongly supports the proposition set out in Section I, above, that circumstantial evidence alone is sufficient to support a guilty verdict of the most heinous crime.

The State, in attempting to establish Charles Wesley Smith as an expert in ballistics, elicited some general information on his background, but failed to establish many specific facts to support his expertise in the field of ballistics. The State established that he had a chemistry degree from Auburn University; that he had worked an unspecified period of time for the Department of Toxicology under Dr. C. J. Rehling, Mr. Robert Johnson and Dr. Richard Roper; that he had attended an unspecified number of schools and seminars dealing with analysis of physical evidence; that he had taught in an unspecified number of schools or courses; and, most strongly, that his primary duty was the examination of physical evidence, which included examining weapons and bullets. While the State should have elicited more specific facts to establish Smith’s competency as a ballistics expert, enough general information was put forth to show that Smith had acquired a knowledge beyond that of an ordinary witness on the subject. Such a predicate was probably sufficient to support the trial court’s ruling, but barely so.

In any event, counsel for appellant subjected the witness to a thorough and sifting cross-examination, and by his detailed and descriptive answers, the witness conclusively proved himself to be an expert on the subject of ballistics. Cross-examination is one of the methods available to an appellant as a safeguard “against being railroaded by the testimony of a mountebank or charlatan” as set out in Frazier v. State, 40 Ala.App. 67, 112 So.2d 212 (1958). No error resulted.

Ill

After the jury had retired and begun its deliberations, it returned to the courtroom and asked to rehear the testimony of Perry Lee Ayres. Appellant objected, and the court stated:

“All right. We will allow the testimony —Well, do you object to the method of having the recording played back, or do you want the Reporter to read question and answer? . . . ”

Counsel for appellant replied:

“I don’t have any objection to which way it is done. I just object, period, to it being done.” ~

The jury was returned to the courtroom, and the complete testimony of Ayres was replayed on the tape recorder, after which the jury retired for further deliberations. Appellant contends that it was error to replay the testimony of Ayres because it would place undue emphasis on that portion of the testimony to the prejudice of the appellant, citing Autry v. State, 34 Ala.App. 225, 38 So.2d 348 (1949).

Autry distinguished between the court giving a jury charge that emphasizes a particular portion of the evidence, and the case where a jury requests to rehear a particular portion of the evidence. There, the Court of Appeals stated that, “the vice of such charges is that the emphasis of particular portions of the evidence emanates from sources outside the jury . . . .” In the latter case, “the emphasis on this portion of the testimony is already inherently present in the jury’s mind, and certainly the mere rereading of the requested portion of the testimony, to clarify the jury’s recollection thereof cannot add any emphasis not already present as to such testimony.

Here, there was no objection to the manner in which the jury heard the testimony, whether by replaying it on a tape recorder or by having a court reporter read the testimony to them. So long as there is no valid question raised as to the accuracy of the transcript or transcription, it is immaterial to this Court whether the testimony be read aloud by the court reporter or replayed on a tape recorder. The trial court may properly allow the jury to rehear the testimony of witnesses when requested by the jury, and this matter is within the sound discretion of the trial court. Jenkins v. State, 51 Ala.App. 521, 287 So.2d 233 (1973); Morrow v. State, 52 Ala.App. 145, 290 So.2d 209 (1973),. cert. denied 292 Ala. 743, 290 So.2d 213, cert. denied 419 U.S. 853, 95 S.Ct. 97, 42 L.Ed.2d 85. Adams v. State, 46 Ala.App. 402, 243 So.2d 386 (1970) has no application here.

This Court has carefully reviewed the record and has entertained oral argument on this appeal. All the grounds relied upon by the appellant for reversal have been considered in the light of the record, briefs and arguments of counsel, and we find no reversible error.

AFFIRMED.

All the Judges concur.

      . 6 Ala.Digest Criminal Law &wkey;552.


text:
    Rufus Ledford CARTER v. STATE.
    6 Div. 285.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.

      Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and Eric A. Bowen, Asst. Atty. Gen., for the State, ap-pellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant’s conviction of robbery, for which the jury fixed the minimum punishment of imprisonment for ten years, is amply supported by direct evidence. No contention to the contrary is made on this appeal.

Appellant insists that the jury should have been charged on the lesser included offense of larceny. We find it unnecessary to determine whether defendant properly raised the question on the trial. As to that there may be considerable doubt, but neither side has referred to it on appeal.

According to the testimony of the alleged victim of the robbery, the cashier of the Zippy Mart in Tuscaloosa, defendant caused her to hand him the money in the cash register, which amounted to approximately forty dollars. She said he asked for the money three times, that she did not take him seriously the first two times and laughed at him then and said, “You’re kidding.” She said that “Then he got mad and said, ‘No, I’m not kidding, give me the money, now.’ ” He had a “case cutter” in his hand, “a razor blade cutter you use to cut cardboard boxes and things with,” an instrument that works “like a pocket knife works” that “looks kind of like one of those knives they use to shave with except its real thin.” As correctly pointed out by appellant, he told her several times not to be afraid, that he wasn’t going to hurt her and asked her why she was shaking so much. He never touched her and never hurt her physically. In answer to the question on cross-examination, “Did he ever threaten you?”, she replied, “No.”

In a trial on an indictment for robbery, if the evidence, according to any reasonable theory, presents a controversy whether the particular conduct constitutes robbery on the one hand or larceny on the other, defendant is entitled to have the court charge on the lesser included offense of larceny. Kelly v. State, 235 Ala. 5, 176 So. 807; Stovall v. State, 34 Ala.App. 610, 42 So.2d 636; Golston v. State, 57 Ala.App. 623, 330 So.2d 446. Notwithstanding the parts of the testimony of the victim of the robbery relied upon by appellant for his contention that there was a “reasonable theory” for a finding of larceny, as distinguished from robbery, we are persuaded that under no reasonable theory could there have been such a finding. Of the cases cited by appellant in support of his insistence, Twitty v. State, 50 Ala.App. 246, 278 So.2d 247, is most nearly in point. In Twitty, a conviction of grand larceny was upheld, but the case is clearly distinguishable from the instant case. The evidence in Twitty showed that defendant demanded twenty dollars from the victim, said he was “going to get twenty dollars off of” him, grabbed the victim’s hand, opened his pocket book and “jerked” five dollars out. There was sufficient evidence in Twitty to support a finding of robbery, but the fact that defendant snatched or “jerked” the money from the pocket book of the victim constituted some evidence of larceny from the person. There was no such action involved in the conduct of defendant toward the victim in the case now before us. In this case, the victim went into the cash drawer and handed the money to defendant. The transfer of the money from her possession to the possession of defendant consisted of action by her, not by him, although his action caused her to surrender possession of the money to him. Assuming the truth of the victim’s testimony as to the circumstances and that there was no collusion between her and defendant, as to which there is no contention to the contrary, the only reasonable conclusion from the testimony is that defendant was either guilty of robbery or guilty of no crime whatever, which he claimed in that he testified he was not present at the time and place of the alleged crime.

Tuscaloosa City Detective Earl Harless was allowed to testify, over the objection of defendant, that defendant confessed the robbery, some three or four hours after the robbery, after he had been arrested and while he was in custody. Admittedly he had been given the Miranda warnings and fully advised of his rights in every respect, including his right to counsel without expense to him. The gist of defendant’s objection to the admission of the confession was that defendant at the time thereof was too intoxicated to understand his rights and warnings given him and that under all the circumstances his confession was inadmissible in evidence. The parties are not in disagreement as to the controlling principle of law. It is well established that “intoxication short of mania or such an impairment of the will and mind as to make the person confessing unconscious of the meaning of his words will not render a confession inadmissible.” Anderson v. State, 45 Ala. App. 653, 235 So.2d 902; Winn v. State, 44 Ala.App. 271, 207 So.2d 138; Bay v. State, 39 Ala.App. 257, 97 So.2d 594. Unquestionably, defendant was intoxicated at the time of the confession. There was much evidence, including defendant’s own testimony, that pointed to the high state of intoxication. According to his testimony, he had been drinking intoxicating liquor practically all the morning and afternoon before the night of the alleged robbery and had continued drinking for approximately two hours after the time of the alleged robbery. He said that he himself was robbed, that he was knocked in the head in the process of the robbery, a short time after the time of the robbery for which he was tried. Notwithstanding the strong evidence as to a high state of intoxication, including testimony of one of the law enforcement officers that he was “under the influence of alcohol or some stupifying drug,” there was substantial evidence that he was not so intoxicated as to render his confession inadmissible, m accordance with the agreed upon, controlling principle of evidence. In the process of the court’s determination of the question of the admissibility in evidence of the confession out of the presence of the jury and in response to questions propounded by defendant’s attorney, a witness for the State said that defendant did not have any difficulty in walking, that he did not stagger, that defendant was intoxicated to the extent that the witness as an officer would have arrested him for driving while intoxicated but, “I don’t know if I would have arrested him for public drunkenness.” One of the law enforcement officers testified that after “his rights” had been read to defendant, defendant stated that he understood his rights, that he “talked pretty plain all the time he was talking.” Upon being cross-examined, one of the State’s witnesses stated, “Well, he knew what we was talking about and what we was doing.” A review of the entire testimony of the witnesses as to what was said by defendant the entire time he was in custody does not reveal any incoherence or unintelligibility of statements by him. After careful consideration by the trial court, it determined that defendant was not so intoxicated as to render his confession inadmissible. We find no error in the trial court’s ruling.

After the victim had testified to the robbery and had identified the defendant in court as the robber, she was asked by the State whether “anytime that night did you again see the defendant.” At that point, counsel for defendant stated “We would like to enter an objection and ask to take the witness on voir dire outside the presence of the jury.” During the interrogation of the witness by defendant’s counsel out of the presence of the jury, it was shown that the two law enforcement officers, Tuscaloosa City Detectives Earl Harless and John Cork, who had answered the victim’s telephone call reporting the robbery, had brought defendant to the store, that the three got out of the car, and while defendant was standing by the car, one of the detectives asked if she recognized him and she said, “Yes, sir, that is the man.” After such interrogation by defendant’s counsel, defendant’s counsel objected “to any identification based on this one man’s show up on the ground it doesn’t meet the requirements set forth in the case law of Alabama for a one man show up.” The trial court overruled the objection, the witness was allowed to testify that she identified the person at the time as the defendant and as the person who had robbed her. In determining whether such evidence was admissible, both parties seem to deem that the question of the admissibility of the witness’ identifying evidence on this one-man showup is to be determined by the circumstances shown by the evidence as a whole in the case and not merely by the testimony of the particular witness on voir dire cross-examination. According to Detective Harless, upon his arrival at the store with Detective Cork, they closed the store to the public and made a prompt inspection of the premises in search of clues, including any identifiable finger prints, which they did not find. They interrogated the victim in detail as to what occurred and obtained a description of the robber and his clothing. About 10:00 P.M., they located defendant about three-quarters of a mile from Zippy Mart, observed that he met the description furnished by the victim of the robbery, with the exception that he had on no shoes at the time, and interviewed defendant. They “picked him up,” and he asked why they were picking him up; they said, “Suspicion of robbery,” and he said, “Well, I have been robbed myself.” They took him promptly to the scene of the robbery and exhibited him to the victim.

Both parties in their briefs rely chiefly on Robinson v. State, 55 Ala.App. 658, 318 So.2d 354, in which Judge Harris set forth clearly the controlling principles of law, with authorities cited, and, in applying them to circumstances of the particular case, concluded that the one-man showup identification was admissible in evidence. Appellant urges that the result in Robinson should not obtain in this case, for that in Robinson, defendant “was brought to the store by police officers a few minutes after the robbery” and was there identified by the victim, the operator of a store in Eufau-la, incidentally another Zippy Mart store. Appellant emphasizes the fact that in Robinson the time between the robbery and the identification was no more than approximately forty-five minutes. Our consideration of Robinson, the supporting authorities cited therein, and other authorities on the subject, convinces us that most, if not all, of the applicable cases have involved periods of time of less than an hour between the crime and the confrontation. Appellant ably argues therefrom that the principle of the cases requires the rejection in evidence of testimony of a one-on-one confrontation identification that occurred two and one-half hours after the robbery. Unquestionably, the words such as “prompt,” “immediate identification,” “near the time of the alleged criminal act,” and other such expressions found in the cases on the subject, emphasize the importance of shortness in the interval of time between the robbery and the confrontation as a factor in favor of the State on the question of the admissibility of the confrontation identification testimony. The standard for determining whether the evidence is admissible is whether the procedure used in obtaining the identification was so impermissibly suggestive as to create a substantial risk of misidentification. Robinson v. State, supra; United States v. Henderson, 5 Cir., 489 F.2d 802, cert. denied 417 U.S. 913, 94 S.Ct. 2612, 41 L.Ed.2d 917.

The evidence in this case indicates, if it does not conclusively show, that there was no more likelihood of misidentification at the time of the confrontation than there would have been if the confrontation had been within thirty minutes after the robbery. Of far greater importance than the registered period of time involved are the circumstances from the time of the robbery to the time of the confrontation and the effect that such circumstances might have upon the question whether the confrontation meets the test of admissibility.

The statement of Judge Burger, now Chief Justice of the Supreme Court of the United States, in Bates v. United States, 132 U.S.App.D.C. 36, 405 F.2d 1104:

“There is no prohibition against a viewing of a suspect alone in what is called a ‘one-man showup’ when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy.”

is just as applicable to the circumstances here as in Bates, although time was shorter in Bates. Also applicable is the following excerpt from Bates:

[T]he police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trial is fresh. . . . ”

In the instant case, when defendant was apprehended and the officers were confronted with his claim that he himself had been robbed, that he was not guilty of any robbery, they were faced with a dilemma. They had probable cause for apprehending him and taking him to jail on the basis of the description given to them by the victim, but his statement that he himself had been robbed, his denial of any robbery by himself, and some blood on his face that indicated some violence to him, were calculated to give the officers pause. They would not have been justified in releasing him at that time; they were clearly justified in rechecking at that time with the victim of the robbery. There was nothing improper about their conduct. There was nothing unnecessarily suggestive in their taking him to the victim and asking her if she recognized him. They were performing their duty to all concerned, the public, the victim and the defendant. This cannot be said of any other course that they could have taken at that time, including particularly the suggested course that they should have locked him up and thereafter, around midnight perhaps, or the next morning, conducted a lineup. The procedure followed by them was neither impermissibly suggestive nor conducive to a likelihood of misidentification.

The evidence of the one-on-one identification was not subject to the objection made by defendant.

Defendant reserved an exception to the court’s charge relative to reasonable doubt. By reason of some uncertainty as to exactly what was said by the court, the parties have stipulated that the court said:

“. . . Now, a reasonable doubt is not just a guess or surmise, it is a doubt for which you must find a reason for, a reason for which you must have abiding conviction as to the truth of the charge

It is further stipulated by the parties that the exception or objection of defendant was as follows:

“. . . The defense . . . would also object and except to Your Honor’s definition of a reasonable doubt as being a reasonable doubt for which you must find a reason for . ”

The objection or exception stops short of “. . a reason for which you must have abiding conviction as to the truth of the charge . . ” It is not for us to disagree with the stipulation as to what the trial court said, but we suggest that there may have been more of a separation in thought between “. . . you must have abiding conviction as to the truth of the charge . . .” than the immediately preceding part of the court’s partial explanation of a reasonable doubt, than the stipulation indicates. At any rate, the objection or exception did not embrace the present criticism of the charge. An exception to a portion of the court’s oral charge must be taken and reserved to the particular language the exceptor conceives to be erroneous. Allford v. State, 31 Ala.App. 62, 12 So.2d 404, cert. denied, 244 Ala. 148, 12 So.2d 407. Furthermore, in the light of the remainder of the court’s oral charge to the jury as to the necessity for the jury to be convinced beyond a reasonable doubt of defendant’s guilt, we conclude that defendant was not prejudiced by the portion of the court’s charge here urged as erroneous.

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.

      . His shoes were afterwards found where defendant had been between 7:30 and 10:00 P.M.


author: TYSON, Presiding Judge.

text:
    Ervin WEAVER v. The CITY OF BIRMINGHAM.
    6 Div. 328.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.

      Jones & Arnold, Birmingham, for appellant. '
    W. 0. Macmahon, Birmingham, for appel-lee.
   TYSON, Presiding Judge.

The City of Birmingham’s complaint charged Ervin Weaver with driving a vehicle while under the influence of intoxicating liquor at 31st Street and Pearson Avenue, Southwest, on January 24, 1976, in violation of Section 34-56 of the City Code of Birmingham, Alabama. Prom an adverse judgment in Recorders Court, the appellant appealed to the Circuit Court, and following a jury trial, the appellant was found guilty and punishment fixed at a fine of $75.00. The trial court, in addition, sentenced the appellant to perform hard labor for the City of Birmingham for a total of twenty-five days (ten days because of his failure to pay Recorders Court for fine and costs), and assessed $45.00 costs against the appellant.

The issue dispositive of this appeal is whether or not the City of Birmingham laid a proper .predicate before the admission into evidence of the results of the photoelectric intoximeter test (PEI) administered to the appellant on January 24, 1976, at the Birmingham City Jail. We find the predicate deficient in at least two respects, and therefore reverse this case.

Birmingham Police Officer Fulghan testified that on January 24, 1976, he saw Mr. Ervin Weaver at the Birmingham City Jail at about 10:30 in the evening. He stated he observed him for about twenty or twenty-five minutes, and during this time he detected the odor of alcohol about his breath and that he appeared unsteady on his feet. He stated that Mr. Weaver had no food during this interval before the photoelectric intoximeter test was administered to him.

Mr. Fulghan also testified that he had received a permit from the Alabama State Board of Health to operate the PEI machine, having attended a school for one week, and then being given his permit. Mr. Fulghan stated that he had a check-list which he used in operating the machine. He described the several steps which he followed before administering the test to Mr. Weaver. He stated that he was given the same check-list by the Alabama Department of Health, but nowhere in the record does the “check-list” appear.

Mr. Fulghan testified that he had been operating the machine for about a year and four months prior to January 24, and that under questioning by the Court, the machine was inspected “once a month by State Troopers,” but he did not know when the machine had been last inspected by either the Health Department or the State Troopers.

Over motion to suppress because of a lack of a proper predicate, the objection, and motion to exclude, Mr. Fulghan was allowed to state that the reading in the case at bar was .18%.

Birmingham Police Officer Orville Jerome Webster testified that he and his partner, Officer Glover, observed Ervin Weaver, the appellant, operate a motor vehicle at the intersection of the 3200 block of Pearson Avenue, making a left-hand turn on Pearson Avenue from 32nd Street. He stated that he observed Mr. Weaver’s car weave a little and stop at about 31st Street and Pearson Avenue. He detected the odor of alcohol on the breath of Mr. Weaver, and he and his fellow officer placed him under arrest at the scene. He stated that Mr. Weaver was held at the scene about thirty minutes before being taken to police headquarters.

On cross-examination, Officer Webster testified that he did not observe Mr. Weaver smoke during this interval, and it appeared that Mr. Weaver had had a “little to drink.”

Officer Kenneth H. Glover testified that he was riding with Officer Webster on January 24, 1976, when they observed Mr. Weaver making a left-hand turn at about the 3100 block onto Pearson Avenue in Birmingham. He stated that he saw the appellant’s car weave across the yellow line, and that they stopped the car. He stated that he detected the odor of alcohol on the appellant’s breath, and that the appellant walked in an unstable manner. He further testified that Mr. Weaver said “he had a little to drink.” He stated that Mr. Weaver’s ear was inventoried, and they found two quarts of Bourbon unopened.

The appellant’s motion to exclude was overruled.

The appellant, Ervin Weaver, testified that he was self-employed as a carpenter and lived at 1531 Fourteenth Street, Southwest, in the City of Birmingham. He testified that he had been to a friend’s home, one Charlie Boren, for dinner, that they had played some cards, and that he had had one drink of Bourbon before leaving about 9:30 or 10:00 to drive home. He testified that he had purchased a Fifth of Bourbon and a Fifth of Scotch, which were in his car, but unopened. He stated that he was driving home when the officers stopped him.

The appellant’s motion for a new trial was overruled.

I

This Court, in Myrick v. Montgomery, 54 Ala.App. 5, 304 So.2d 247, cert. denied 293 Ala. 768, 304 So.2d 248, construed the provisions of the so-called “Alabama Chemical Test for Intoxication Act” (Title 36, Section 155, Code of Alabama 1940, amended 1969) and determined that certain criteria must be observed by the cities of Alabama in laying a proper predicate before the introduction into evidence of the “breatholizer test.” We also observe that since this section was contrary to common law, it was penal in nature, and that it must be strictly construed. Myrick, supra.

While it is true that Officer Fulghan testified that he had attended an approved course on the operation of the PEI machine, and held a valid permit to operate same, nowhere in the record is there duly certified and authenticated copy of the methods or regulations duly adopted by the Alabama State Board of Health for the operation by law enforcement agencies of the photoelectric intoximeter. Patton v. City of Decatur, 1976, Ala., 337 So.2d 321, makes this an absolute requirement as part of the predicate to be laid in the cases, such as is here present. We cannot find that Mr. Ful-ghan’s reference to a “check-list” was a proper observance of this requirement.

II

We deem it also appropriate to here point out that there is no proof in this record as to which “test” the City of Birmingham has adopted as its method to be used in such cases, nor is there any reference to a Birmingham City Ordinance which may have been adopted for such test. Myrick v. Montgomery, supra, makes this an absolute requirement.

The City of Birmingham contends that because the two officers observed Mr. Weaver in the automobile at the scene where he was arrested, “there is other proof of the appellant’s condition,” hence, the failure to lay a proper predicate in the case at bar may be laid aside. Holloway v. Birmingham, 56 Ala.App. 545, 323 So.2d 726.

However, in Holloway, the two officers actually observed the accident in question, arrested Holloway at the scene, and gave much stronger testimony as to his condition than is here present in this record. Also, Patton v. City of Decatur, supra, had not been enunciated by our Supreme Court at the time of the decision by this Court in Holloway.

Our Appellate Courts must view the record in light of what it contains, as tested by legal principles articulated by the Legislature of Alabama and the dispositive authorities as enunciated by the courts.

For the errors shown, the judgment is reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: SIMMONS, Retired Circuit Judge.

text:
    Bob KEAN v. STATE.
    Div. 489.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Scruggs, Rains & Wilson, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen., for the State.
   SIMMONS, Retired Circuit Judge.

Appellant-defendant was convicted in the county court of DeKalb County of selling or possessing illegal alcoholic beverages in De-Kalb County, a dry county, contrary to T. 29, Article 13, § 262, Code of Alabama 1940, Recompiled 1958. The court tried the case without a jury and imposed a fine of $100 plus 30 days in jail. Judgment was entered and this appeal is direct to this court pursuant to law.

It appears in the record that when sentence was imposed the trial judge took into consideration what law enforcement officers had told him about the prevalence of illegal alcoholic beverage traffic in DeKalb County among taxi-cab operators (defendant was a taxi-cab operator for 8 hours) and generally among others. He also took into consideration defendant’s reputation, his family dependents and other factors.

Defendant’s counsel objected to the sentence because it was influenced by the prev-alenee of this illegal traffic which was not evidentiary.

We are unwilling to say as to what extent these factors, namely the liquor traffic, influenced the sentence or how much the sentence was softened by the number of family dependents and the other factors.

Sentence was the product of mental process experienced by the trial judge that resulted from some non-evidentiary factors, and we cannot draw a line of demarcation so as to separate them, and say with any degree of certainty which resulted in what.

We certainly do not expect a trial judge to walk around with deaf ears as to what is going on in his community or wear shaded glasses to obscure his vision as to law enforcement. The fact that he got some information from law enforcement officers as to certain phases of law violation does not necessarily exclude other sources. Perhaps such prevalence was a matter of atmospheric circulation. It is present without identification.

We do not think the judgment should be reversed or the cause remanded on such speculative and argumentative contention that the trial court was unreasonably influenced in pronouncing sentence.

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

The judgment is hereby

AFFIRMED.

All the Judges concur.


text:
    William Fletcher McDONALD v. STATE.
    8 Div. 820.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.

      David L. Thomas, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Presented by appellant’s brief as the only basis for a reversal of his conviction of murder in the first degree are several instances in which the trial court sustained the State’s objections to questions asked witnesses for the State on cross-examination.

Hardly in any of the instances complained of by appellant can it be said an important witness was being cross-examined at the time of the particular question on any matter which tended to indicate bias of the witness. In such a situation, the reins of the trial court’s bridle of discretion are more tightly drawn than usual. Wells v. State, 292 Ala. 256, 292 So.2d 471.

We consider the rulings complained of in the sequence presented in appellant’s brief.

The first was in sustaining State’s objection to a question asked on cross-examination by defendant of Spate’s witness, the operator of the “shot house” where the killing occurred. The text and context are as follows:

“Q Let me ask you this: Did you see Dean Adkins down there?
“A Yes, he was there.
“Q Now, were you there when Frederick Boone [the deceased] pulled a pistol on Dean Adkins? Do you remember that?
“A No, I didn’t see that.
“Q Do you remember Dean Adkins and his girlfriend being there?
“MR. MORGAN: Your Honor, the State will object to impermissible leading at this point. Mr. Jeff is testifying.
“THE COURT: I sustain the objection.”

The question contains a factual assumption not in evidence, and for that reason the objection was properly sustained. Byrd v. State, 51 Ala.App. 234, 283 So.2d 683. In McElroy, Law of Evidence in Alabama, § 121.06, it is stated:

“As a general rule, a question to a witness which assumes the existence of a material fact to which he has not testified is an improper question; and this is true whether such question is asked on direct or on cross-examination.”

It is to be noted that it had already been stated by the witness on cross-examination that he had seen Dean Adkins “down there,” but there was no testimony that his girlfriend was also “down there.” If the addition of the girlfriend to the question to which an objection was sustained was the addition of a material fact, the question was improper; if the added assumed fact was not material, there is no just ground for complaint.

Defendant asked one witness on cross-examination, “Why did he [the deceased] threaten you?” and another, “And he thought you all turned him [the deceased] in on the armed robbery?” Each of the questions called for testimony as to the mental operation of another, and the State’s objection thereto was properly sustained. Bailey v. State, 107 Ala. 151, 18 So. 234; Spurlock v. State, 17 Ala.App. 109, 82 So. 557; Whigham v. State, 20 Ala.App. 129, 101 So. 98; Hembree v. State, 20 Ala. App. 181, 101 So. 221; Bynum v. State, 20 Ala.App. 619, 104 So. 834; Poellnitz v. State, 48 Ala.App. 144, 262 So.2d 631.

Another cross-examination question asked a witness for the State was, “Had you ever seen him [the deceased] with a gun before? The witness had just answered an inquiry on cross-examination whether he had seen anything in the pockets of deceased the day of the killing while he and deceased were at the “shot house,” and he had replied in the negative. Whether deceased had “ever” before been seen by the witness with a gun was too remote to have had any material bearing on the issues in the case, including defendant’s claim of self-defense and particularly defendant’s testimony to the effect that he thought the deceased was reaching for a gun when defendant shot him with a sawed-off shot gun immediately after defendant entered the “shot house” for the admitted purpose of a confrontation with deceased about the previous difficulty between them.

A detective, who testified as to what he had learned when he arrived at the scene of the killing, was asked on recross examination whether he had been looking for the deceased “earlier that day.” It was not error for the court to sustain the State’s objection to the question. It had no apparent relevancy, and the trial court was not apprised of any claimed relevancy.

One of the witnesses for the State, who knew both defendant and deceased and who had gone with defendant to the “shot house” just before the killing and had entered the “shot house” with defendant and witnessed the killing, testified on cross-examination that he had previously been to the “shot house” the same night and had seen the deceased there. He said on further cross-examination he was there only two or three minutes and left through the back door, that the reason he left through the back door was that he was trying to dodge trouble with “Frederick, the dead man.” He was then asked, “Well, why didn’t you tell the Jury about that?”, to which question the court sustained the State’s objection. Then the following occurred:

“Q You say you were trying to dodge trouble?
“A Right.
“Q Well, was it what he said to you or the way he looked at you, or what made you think there was reason for you to be trying to dodge trouble?
“MR. MORGAN: Your Honor, the State objects.
“THE COURT: Sustained.
“MR. MORRIS: Judge, we were doing that for the purpose of showing bias and prejudice of this witness.
“THE COURT: As to that question, I sustain the objection.”

The rule, which prevailed even before Starr v. Starr, 293 Ala. 204, 301 So.2d 78, that permitted questions on cross-examination as to the reason, purpose, intent or the like of a witness as to his acts testified to by him on direct examination was held to be self-restrictive, that is, that such questions as to acts shown for the first time on cross-examination were improper. Williams v. State, 123 Ala. 39, 26 So. 521; Patton v. State, 197 Ala. 180, 72 So. 401; McElory, Law of Evidence in Alabama, § 102.07(6). Starr v. Starr does not so relax such restriction as to justify a reversal of the trial court for sustaining objections to such questions in the exercise of an unabused discretion, which we accord the trial court as to its rulings under consideration.

The witness was also asked on cross-examination whether defendant had said, just before he obtained the shotgun from the automobile at the “shot house,” that he had better get himself some protection. An objection by the State was sustained. However, almost immediately thereafter, the witness was allowed to give in evidence substantially the same testimony as that called for by the question to which the objection was sustained, which rendered harmless the action of the trial court in sustaining the objection.

A witness for the State was asked on cross-examination whether another witness for the State “has had the reputation of operating a shot house down there?” No injury to defendant could have occurred by reason of the action of the trial court in sustaining the State’s objection to such question, for the undisputed evidence, including the admission of the other witness himself, showed that he was at the time, and had been, “operating a shot house down there.”

A witness for the State was asked on cross-examination “Tell the jury the truth. Weren’t all of you drunk?” The witness had been asked twice whether another person was drunk, and she had twice replied that she didn’t know. The State objected to the question whether all of them were drunk,-on the ground that counsel for defendant was “badgering the witness.” We are unable to say that the question itself constituted “badgering the witness,” but much would depend upon the action and attitude of defendant’s counsel at the time of the question, which on the record alone we cannot assay. It seems that perhaps the trial court did not conclude that defendant’s counsel had badgered the witness, for after he had excepted to the action of the court in sustaining the State’s objection to the question, the court said, “Disregard that, Gentlemen.” The witness had already been intensively interrogated by defendant’s counsel as to whether others with the witness were drunk and she had replied that she did not know. She was asked how much she had drunk, and she replied by stating she had had one drink. There was no error in the court’s ruling. The right to a thorough and sifting cross-examination does not go beyond thoroughness, or extend to ‘‘repetitive sifting” and collateral and irrelevant inquiries. Norman v. Hubert, 273 Ala. 651, 144 So.2d 21; Diggs v. State, 54 Ala.App. 414, 309 So.2d 123; Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195, cert. denied, 288 Ala. 735, 265 So.2d 202, cert. denied, 409 U.S. 1060, 93 S.Ct. 558, 34 L.Ed.2d 512; Pinkard v. Hastings, 41 Ala.App. 677, 149 So.2d 293.

We have herein discussed all questions raised by appellant. We have also considered the record in its entirety in a search for any error prejudicial to defendant and have found none. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by. Supernumerary Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: HATCHETT, Justice.

text:
    CITIZENS NATIONAL BANK OF NAPLES, a United States Banking Corporation, Appellant, v. INDIANA INSURANCE COMPANY and National American Insurance Company, Apellees.
    No. 47944.
    Supreme Court of Florida.
    Nov. 30, 1976.
    John W. Emerson, Jr., and E. Glenn Tucker of Treadwell, Emerson & Elkins, Naples, for appellant.
    David T. Knight and David G. Hanlon, of Shackleford, Farrior, Stallings & Evans, Tampa, and Julian D. Clarkson, of Henderson, Franklin, Starnes & Holt, Fort Meyers, for appellees.
   HATCHETT, Justice.

When Mr. Green’s house burned down, appellees and another insuror became obligated to make the loss good. Appellant sued Green, brought in appellees as garnishees, and eventually secured default judgments against them. When appellees prevailed on motion for rehearing, appeal was taken to the District Court of Appeal, Second District. We now transfer the cause back to that court for decision on the merits.

The parties sought to invoke the jurisdiction of this Court because the trial court ruled Section 77.031, Florida Statutes (1975) unconstitutional. See generally Unique Caterers, Inc. v. Rudy’s Farm Co., 338 So.2d 1067 (Fla., 1976). Here, as in Hillsborough County Aviation Authority v. Walden, 196 So.2d 912 (Fla.1967) on retransfer 210 So.2d 193 (Fla.1968), the “trial judge did do this but his holding has never been assigned as error nor has it ever been argued in any appellate brief.” At 913. In the present ease, moreover, the appellant alleges in an assignment of error that the unconstitutionality of the statute “was irrelevant to [the] determination” being appealed. Accordingly, the cause is transferred to the District Court of Appeal, Second District. Hillsborough County Aviation Authority v. Walden, supra; Roberts v. State, 181 So.2d 646 (Fla.1966); City of Miami v. Steckloff, 111 So.2d 446 (Fla.1959).

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and SUNDBERG, JJ., concur.

ROBERTS, J., dissents.