author: PER CURIAM.

text:
    L. K. JONES et al. v. SEARS ROEBUCK & CO., a corp., et al.
    SC 1905.
    Supreme Court of Alabama.
    Feb. 4, 1977.
    R. B. Jones and Roger M. Monroe, Birmingham, for appellants.
    L. Murray Alley and Cathy S. Wright, Birmingham, for Sears Roebuck & Co.
    Macbeth Wagnon, Jr., and Michael H. Mobbs, Birmingham, for Union Oil Co. of California.
    A. J. Noble, Jr., Robert G. Tate and A. Brand Walton, Jr., Birmingham, for J. C. Penney Co.
    W. Frank Greenleaf, Birmingham, for Pizitz Dept. Stores.
   PER CURIAM.

This is an appeal from a decree of the Circuit Court of Jefferson County, dismissing a declaratory action challenging the constitutionality of a statute. We dismiss the appeal.

In July, 1974, L. K. Jones, Harry N. Griffin and C. J. Millican, as individuals with revolving charge accounts with one or more of the corporations, Sears, Penney, Pizitz and Union Oil, filed a complaint in the Circuit Court of Jefferson County, challenging the constitutionality of Act No. 2052 of the 1971 Acts of Alabama, now codified as Title 5, §§ 316-41 of the Code of Alabama (Supp.1971). In May, 1976, the trial court granted the motions to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted.

The principal issue here is whether the court had jurisdiction over this action.

The record fails to disclose a compliance with the provisions of Title 7, § 166 of the Code of Alabama 1940, providing that, “if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney-general of the state shall also be served with a copy of the proceeding and be entitled to be heard.” The complaint, and the trial court order, evidence the fact that the cardholders were challenging the constitutionality of a state statute. See Smith v. Lancaster, 267 Ala. 366, 102 So.2d 1 (1958). It does not appear that the attorney general was served or was given any notice of the action or participated in it in any way. Under the holding of this court in Wheeler v. Bullington, 264 Ala. 264, 87 So.2d 27 (1956), compliance with § 166 is mandatory and goes to the jurisdiction of the trial court. Absence of jurisdiction is apparent on the face of the record, and an appellate court must take notice of its own want of jurisdiction apparent on the record. Smith v. Lancaster, supra. See also Lawrence v. Gayle, 294 Ala. 91, 312 So.2d 385 (1975). Since the trial court never acquired jurisdiction to render the decree appealed from, the decree is void. Bond’s Jewelry Co. v. Mobile, 266 Ala. 463, 97 So.2d 582 (1957). Furthermore, a void decree will not support an appeal; thus, it must be dismissed. Bond’s Jewelry Co. v. Mobile, supra. It does not matter that this issue was raised for the first time on appeal. See Masters v. Pruce, 290 Ala. 56, 274 So.2d 33 (1973) (issue raised on rehearing). Since we must dismiss the appeal, we do not reach the merits of the case.

APPEAL DISMISSED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and BLOODWORTH, J., do not sit.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    FAIRFAX MANUFACTURING COMPANY, a Division of West Point-Pepperell, Inc. v. Loyd BRAGG.
    Civ. 965.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1977.

      William 0. Walton, Jr., LaFayette, for appellant.
    C. Neal Pope, Phenix City, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

After a hearing ore tenus, the Circuit Court of Chambers County entered a judgment in favor of the employee and from that judgment the employer has taken this appeal. The employer has in brief raised several unrelated issues and this court will deal with those issues as presented in brief with reference to the facts as they relate to the specific issues.

At the outset, we note that the employee was injured in June of 1973. His complaint against the employer was filed in January of 1974. The case was tried in August of 1975 and the decree of the Circuit Court of Chambers County was rendered in July of 1976. The case was taken under submission by this court on January 20, 1977.

I

The employer and employee in brief both agree that the maximum period for which the employee may receive compensation is 300 weeks. We, without comment, accept this agreed proposition as being applicable.

The learned trial judge awarded compensation for 23 weeks of temporary total disability; 137 weeks of permanent partial disability accruing to date of trial; and 155 weeks of permanent partial disability after trial. The employer argues that this totals 315 weeks of compensation and is therefore excessive.

We disagree. In 1971, the Legislature of Alabama amended Tit. 26, § 279(C)1, Code of Alabama (1973 Cum.Supp.), to read as follows:

“Where a permanent partial disability follows a period of temporary total disability resulting from the same injury, the first fifteen weeks of such temporary total disability shall not be deducted from the number of weeks payable for the permanent partial disability.”

It therefore is clear that in this instance the first 15 weeks of temporary total disability must be deducted from the 23 weeks awarded for temporary total disability, and with such deduction the agreed upon maximum period of compensation, to wit, 300 weeks, is not exceeded.

II

The employer next argues that the trial court erred to reversal in finding that the average weekly wage of the employee was $130 per week. The employer bottoms this argument on the fact that the employee’s complaint alleged that his average weekly wage was $85 and no amendment was made to the complaint. The employer makes this argument in spite of the fact that the proof as revealed by the record is that the average weekly wage of the employee was $130 per week.

Rule 15(b), ARCP, as applicable in this instance, reads as follows:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. . . . ” [Emphasis supplied]

We note that no objection of any kind was made at trial. With Rule 15(b), ARCP, in mind we find no error.

III

The trial court, in this instance, made a detailed finding of fact. The trial court specifically found that the employee had suffered a 5% decrease in earning capacity and awarded compensation commensurate with this finding.

Able counsel for the employer contends there is no evidence to support such an award and, therefore, urges error by the trial court. We disagree.

The evidence as revealed by the record shows that in June 1973, the employee was working in the employer’s mill; that as he was removing a roll of towels from a loom, he injured his back. The employee immediately notified his supervisor and saw the mill’s resident nurse. The next day, the employee was seen by a physician. After consulting an orthopedic surgeon, it was determined that the employee had suffered a ruptured disk. An operation was performed in July of 1973. The surgeon testified that from the date of the operation until November of 1973, the employee was totally disabled.

The record further reveals that the employee is 49 years old and first began work in a mill when he was approximately 16 years old. He has always worked in the textile industry.

The employee, who was employed as a weaver in a textile mill at the time of trial, specifically testified that as a result of the injury, he can no longer perform heavy work, such as he was performing at the time of the injury. He further stated that he was not required to perform any lifting at his present job. Additionally, the doctor testified that the employee suffered a permanent disability to the body as a whole of 5%.

As the employer points out, compensation in this instance must be awarded on the basis of permanent partial loss of ability to earn. B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971), cert. denied, 287 Ala. 726, 253 So.2d 45 (1971).

In a workmen’s compensation case, this court’s criterion for review is as follows:

“Our review by certiorari does not perform the functions of an appeal. The weight or preponderance of the evidence or whether the finding of fact by the trial court is proper is not before us on review by certiorari. We must accept such finding if it is supported by any legal evidence. . . ” (B. F. Goodrich v. Martin, supra, 47 Ala.App. at 250, 253 So.2d at 43.)

With the above standard of review in mind, we cannot reverse. While the evidence presented on the loss of ability to earn is hardly a paragon of clarity, we find that the tenor of the evidence as set out above does support a finding of 5% loss of earning capacity. We find the language as stated by the Supreme Court of Alabama in Goodyear Tire & Rubber Co. of Alabama v. Downey, 266 Ala. 344, 96 So.2d 278 (1957), to be appropriate:

“Although all factors which possibly might have influenced the trial court in determining the employee’s earning capacity were not brought out in the evidence, we are unable to say that no evidence or reasonable inference from evidence bearing on the question was presented. In this situation the finding and judgment will not be disturbed.” (266 Ala. at 349, 96 So.2d at 283)

IV

The employer next argues that the trial court committed reversible error in awarding a lump sum payment without commutation of the compensation due for the period of permanent partial disability.

As noted earlier, the injury occurred in June of 1973. The employee relies on Tit. 26, § 279(C)9, Code of Alabama (1973 Cum.Supp.), for the authority to make an award of compensation in lump sum. This Code section was passed by the legislature in September of 1973. Therefore, this Code section is not applicable in this instance. The applicable law is that law in force and effect at the time of the injury. See Harris v. National Truck Service, 56 Ala.App. 350, 321 So.2d 690 (1975).

The applicable law at the time of the injury to the employee reads as follows:

“By agreement of the parties and with approval of the court, the amounts of compensation payable periodically hereunder may be commuted to one or more lump sum payments. No such commutation shall be approved by the court unless the court is satisfied that it is for the best interest of the employee or the employee’s dependents, in case of death, to receive the compensation in a lump sum rather than in periodic payments. In making such commutations, the lump sum payment shall, in the aggregate, amount to a sum equal to the present value of all future installments of compensation calculated on a six percent basis.” (Tit. 26, § 299, Code of Alabama (1973 Cum.Supp.))

Since there was no agreement for lump sum payment in the case now before us, we must reverse and remand as to this aspect.

We would further note for interested parties that in 1975, Tit. 26, § 279(C)9, was amended and the law now, as prior to the 1973 amendment, requires agreement of the parties.

As seen from the above, this case has been pending for some time. It is hoped that the matter will be concluded as soon as possible.

V

The employer next urges error in that proper notice was not given the employer as required by Tit. 26, § 294, Code of Alabama. The record clearly reveals that the employee, immediately after his injury, reported his injury to his supervisor. He then went to the company nurse. Clearly, this was adequate notice. Beatrice Foods Co. v. Clemons, 54 Ala.App. 150, 306 So.2d 18 (1975); Tripple M. Homes, Inc. v. Pickens, 46 Ala.App. 643, 248 So.2d 139 (1971).

VI

The employer lastly urges error in the trial court’s finding that the employee suffered 23 weeks of temporary total disability. The entire argument of employee in this regard is as follows:

“The plaintiffs testimony shows the injury to have occurred on June 4, 1973 . and his recovery to a state of permanent partial disability, November 5, 1973. . . . The actual number of days of his total disability would be 154 days or 22 weeks. This evidence was not controverted.”

With the required standard of review in mind, as noted earlier, we find no error to reversal. Specifically, the employee testified he was totally disabled for approximately 6 months.

The case is affirmed in part; reversed in part; and remanded for entry of a judgment not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

WRIGHT, P. J., and BRADLEY, J., concur.


author: BRADLEY, Judge.

text:
    ALABAMA STATE TENURE COMMISSION v. J. Hubert RAY.
    Civ. 980.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1977.
    William J. Baxley, Atty. Gen., and Carol Jean Smith and Joel E. Dillard, Asst. Attys. Gen., for Alabama State Tenure Commission.
    Joseph E. Carr, IV, Montgomery, for ap-pellee.
    Barry McCrary, Dixon, Wooten, Boyett, McCrary & Thornton, Talladega, amicus curiae in support of Talladega Institute for Deaf and Blind.
   BRADLEY, Judge.

The only issue in this case is whether the Alabama State Tenure Commission has jurisdiction to hear the appeal of a nontenured teacher whose teaching contract has been cancelled by the employer school board. We find that the Commission does not have such jurisdiction.

The appellee here, J. Hubert Ray, became a certificated teacher in the Alabama Institute for Deaf and Blind at Talladega, Alabama in 1974. On July 15, 1975 Mr. Ray’s teaching contract at the deaf and blind school was cancelled by the school’s board of trustees. Ray appealed the cancellation of his teaching contract to the State Tenure Commission. After a hearing, that body decreed that it did not have jurisdiction of the action for the reason that Ray was not a tenured teacher in the deaf and blind school.

Ray then filed a petition in the Circuit Court of Talladega County, pursuant to the provisions of Title 52, Section 361, Code of Alabama 1940 (Recomp.1958), seeking the issuance of a writ of mandamus to have reviewed the Commission’s order. Section 361, as amended, provides:

“The action of the state tenure commission in reviewing transfers of teachers or cancellation of teacher contracts, if made in compliance with the provisions of this chapter, and unless unjust, shall be final and conclusive. Whether such action complies with the provisions of this chapter and whether such action is unjust, may be reviewed by petition for mandamus filed in the circuit court of the county where said county school system is located.”

After a hearing the trial court held that the Commission erred in refusing to review the cancellation of Ray’s teaching contract solely on the ground that he did not enjoy continuing service status and ordered the Commission, upon review of the matter, to reinstate Ray as a teacher at the Alabama Institute for Deaf and Blind. The Commission appeals from that order.

The Teacher Tenure Law is found in Title 52, Chapter 13, Code of Alabama 1940 (Recomp.1958). The act taken as a whole evidences a clear legislative intent that its provisions apply solely to teachers who have attained continuing service status as defined by Section 352. Only two sections, Section 361(1) and Section 361(2), by specific language include all teachers, “whether in continuing service status or not.” Thus we think it clear that where the legislature intended to include nontenured teachers within the act, it specifically stated that intent.

The Teacher Tenure Law provides for review of school board action taken against a tenured teacher in two instances. Section 355 permits the transfer of a teacher on continuing service status under certain conditions; Section 357 authorizes a procedure for review of the transfer action, available only to teachers with continuing service status.

Section 358 provides that the employment contract of a teacher on continuing service status may be cancelled by the employing board of education for causes as enumerated. Section 359 sets forth the procedure to be followed when the contract of a teacher on continuing service status is to be can-celled. Section 360 provides a review procedure of the cancellation of a teacher’s contract. Reading Section 360 in pari materia with Sections 358 and 359, it can refer only to a teacher on continuing service status.

Not only is the language of the act itself unambiguous in restricting use of the two above review procedures only to tenured teachers, the act has been so construed by our courts. As a further recognition of the purposes of these two sections of Title 52, the supreme court in State Tenure Commis sion v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968) said:

“This appellate aspect of the tenure teacher law, that is, the State Tenure Commission, to which a review may be had of decisions of local school boards, is a covenant made by the people of Alabama with tenure school teachers, as expressed by legislative enactment — Chapter 13 and Chapter 13A, Title 52, Code of Alabama 1940. Thus, there now exists a ‘tenure’ law and an independent appellate forum. The legislature, no doubt, felt it was necessary to have an appellate forum for tenure teachers, so that they could be removed from the heat and the aggressiveness and pressures sometimes generated in intra-community or intra-county politics.
“. . . It is clear that the State Tenure Commission, as it now exists, expresses the intent of the legislature to protect the right of tenure teachers, and to preserve to them a certain degree of academic freedom, and freedom from harassment that is sometimes caused by intra-community political conflict;

The supreme court, in the recent case of Foster v. Blount County Board of Education, 340 So.2d 751 (Ala.Sup.Ct., 1976), said:

“The Alabama Legislature, by enacting the Teacher Tenure Law, has created two classes of teachers in the public schools of this state, those which have a continuing service status (tenured teachers) and those which do not have (probationary or nontenured teachers). The employing boards of education may not summarily terminate a tenured teacher, but may summarily terminate a probationary or nontenured teacher. Title 52, § 351, et seq. See also State v. Board of Education of Fairfield, 252 Ala. 254, 40 So.2d 689 (1949).”

We conclude the procedures outlined in Chapter 13 of Title 52, Code of Alabama 1940 convey a clear legislative intent to protect a teacher who has served enough time in the school system to acquire continuing service status against transfers and contract cancellations that may be tainted by personal or political reasons and thereby preserve the integrity and freedom of the educational process.

To assure that a tenured teacher would receive the full measured protection provided by these statutory procedures, the legislature created the State Tenure Commission. Section 361(8), Code of Alabama 1940 (Supp.1973) provides:

“It shall be the duty of the state tenure commission to hear and determine appeal cases as provided in section 360 of Title 52, Code of Alabama 1940, as amended, and the decisions of the state tenure commission shall be final to the extent provided by section 361 of Title 52, Code of Alabama 1940.”

Section 361(9), Code of Alabama 1940 (Supp.1973) provides in pertinent part:

“A teacher who has attained continuing service status and has been denied a hearing before the local board of education as required by Title 52, sections 356 or 359, Code of Alabama 1940, as amended, shall have the right to appeal directly to the state tenure commission for relief.” (Emphasis added.)

Nowhere in these statutes is it suggested that the Commission is open to the settlement of grievances by a nontenured teacher. Consequently it is our studied opinion that only tenured teachers have access to the State Tenure Commission for the settlement of contract cancellations.

The Commission being without jurisdiction to entertain an appeal by a nontenured teacher, the trial court was in error in ordering the Commission to accept the appeal of Ray from the action of the Alabama Institute for Deaf and Blind. The trial court’s judgment is reversed and the cause is remanded to it for the entry of an order affirming the decision of the Tenure Commission that it was without jurisdiction to hear Ray’s appeal.

REVERSED AND REMANDED WITH DIRECTIONS.

WRIGHT, P. J., and HOLMES, J., concur.


author: DeCARLO, Judge.

text:
    Carl McKINNON v. STATE.
    6 Div. 131.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Rehearing Denied Dec. 7, 1976.
    Gary W. Weston, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for appellee.
   DeCARLO, Judge.

Grand larceny; five years.

The appellant was tried under an indictment which charged, omitting the formal parts, that:

“Carl McKinnon whose name to the Grand Jury is otherwise unknown, feloni-ously took and carried away from the shop, store, warehouse, or other building of Loveman, Joseph and Loeb, Division of City Stores, Inc., a Corporation, one calculator, of the value of $69.95; one digital clock, of the value of $39.95; and 2 albums, of the value of $11.94, all of the total value of $121.84, the personal property of Loveman, Joseph and Loeb, Division of City Stores, Inc., a Corporation, against the peace and dignity of the State of Alabama.”

In support of this indictment the State presented the following evidence:

On February 6, 1975, Nell Hyche was employed at the Western Hills Loveman’s as a security guard. She was dressed in “street clothes” but wore nothing that identified her as a security guard. Around 4:00 P.M., Hyche observed two black males standing near a counter in the stationery department. She was about seven feet away when she saw the taller man break the chain holding a calculator to a “display” and hand it to his companion, the appellant. At that point, the companion, who was wearing a three-quarter length coat, reached through the pocket and took possession of the calculator. Hyche then saw the taller man pick up a digital clock and hand it to his companion. Again, his companion reached through his coat pocket and took possession of the clock.

When the men turned around and started to step away, Hyche walked up and informed them she was a Loveman’s security officer and to “give me back our merchandise.” Since they did not respond, she took hold of the companion’s coat and tried to take the merchandise from him.

Hyche could see the digital clock and two record albums in the coat. As she scuffled with the two, they tried to pull away and said: “Let me go, leave me alone, turn me loose.” While Hyche struggled with the two, they continued to pull her toward the entrance to the mall. Hyche hollered for assistance and L. M. Denson, the credit manager of the store, came to her aid.

Hyche recalled that as they reached the door, the taller of the two black males, pulled a gun and pointed it at her. She then released the coat, and along with Den-son, stepped back. The two men then turned and ran from the building.

When the two left the building, Hyche and Denson followed and saw them go to a parked car. About the same time, Officer B. L. Smith, of the Fairfield Police Department, drove up and Hyche quickly informed him of what had occurred. Subsequently, a highway patrolman drove up and he also was informed. When the men saw Officer Smith, they turned from the parked car and began to run. Hyche observed the defendant throwing down merchandise as he ran.

After the men were taken into custody, Hyche found the calculator about eight feet from the car. The gun was not found.

Hyche took the albums, the calculator and the clock and placed them in the store vault where they remained until the trial. Hyche said that she did not know if anyone tampered with the items but recalled they were in the vault the twenty or twenty-five times she went to it. She stated the calculator bore a scratch which was caused when it was thrown down.

According to Hyche the value of the clock was $39.95, the value of the calculator was $69.95 and the value of each album was $5.95.

Lloyd McKibbon Denson, Jr., on February 6, 1975, was employed by Loveman’s, Joseph and Loeb a Division of the City Stores, Incorporated, as an assistant store manager. Denson recalled seeing the disturbance and going to Hyche’s assistance. When he began to block the door, the taller of the two men, put a pistol in front of his face. Denson threw up his hands and allowed them to pass. He and Hyche then followed at a safe distance. Denson remembered seeing one of the men throw the record albums under the parked car that they had tried to get into. After the men were apprehended, Denson found, in the vicinity of the car, two record albums bearing the name “Loveman’s” above the letter code “F.” '

B. L. Smith was employed by the City of Fairfield as a police officer. He recalled seeing Hyche in the parking lot of the Western Hills Mall. As he approached her she pointed to two boys and said, “stop those two boys.” When Smith started in the direction of the two, they began to run. He remembered one of them throwing something down. Officer Smith said that he caught the taller of the two and that the defendant was subsequently apprehended by a State trooper.

At the completion of the testimony by the three foregoing witnesses, the defense made a motion for a directed verdict, and argued that the State had not met the burden of proof. It was maintained the State did not prove the taking of the merchandise as set out in the indictment. Counsel averred that the State failed to prove the albums were taken and added that the clock was dropped inside the store.

The court overruled the motion and Ralph McKinnon, the defendant’s brother was the only witness called by the defense. McKinnon recalled that he and his brother, the defendant, were in Loveman’s on the day in question and he picked up a calculator to look at it. He stated that almost immediately, a lady who was dressed in “street clothes” came over and said, ‘What are you doing,’ and grabbed the calculator . . . ” According to McKin-non, she started pulling defendant’s coat and when he tried to separate them, she began to yell for help. McKinnon said that he did not strike or push her and that he just wanted to leave. He maintained he had about ninety-six dollars in his pocket and did not have a gun. He added that Hyche did not say that she was a security officer for Loveman’s and that her actions scared him.

During cross-examination, McKinnon stated that neither he nor his brother picked up a digital clock and denied throwing the calculator down in the parking lot. McKinnon admitted picking up the calculator and handing it to his brother so he could look at it. However, McKinnon denied that he or his brother dropped any article as they ran from the police. Further, he said that his brother did not have any albums and that he did not pull a gun on anyone.

The only contention made by the appellant is that the State failed to prove the corpus delicti as to two of the four items alleged in the indictment to have been felo-niously taken. He insists the trial court was in error when it did not grant his motion for a verdict of acquittal. Counsel concedes arguendo that the State proved the corpus delicti as to the calculator and the clock but insists it failed to show the corpus delicti as to the albums.

The felonious taking of property may be shown by facts and circumstances as well as by direct and positive evidence. Jones v. State, 51 Ala.App. 570, 287 So.2d 886. In our judgment, the evidence presented by the State was more than sufficient to support an inference that a larceny had been committed and the defendant did the felonious taking. Cherry v. State, 43 Ala.App. 318, 189 So.2d 786.

Further in Lee v. State, 20 Ala.App. 334, 101 So. 907, we find the general rule that:

. . where a particular kind of property is specifically described in an indictment, it must be proved as laid. However, it is no valid objection that the description of the property alleged to have been stolen is broad enough to include more than the proof shows, provided the proof shows a commission of the offense charged. . . .”

See also: Bates v. State, 152 Ala. 77, 44 So. 695; Reed v. State, 88 Ala. 36, 6 So. 840; and Tanner v. State, 37 Ala.App. 256, 66 So.2d 827.

In the present case, the testimony of Hyche and Denson provides an ample basis for the jury to find that the appellant was guilty of larceny.

Hyche stated that the time she approached the defendant and took hold of his coat, she saw the albums. Denson also saw the albums in the defendant’s possession when he threw them underneath the car. This testimony provides basis for the jury finding the appellant guilty of taking the two albums.

By concealing the albums underneath his coat and running from the building, the defendant acquired control over the property. In our judgment, the taking and aspor-tation was completed when he concealed the items in his coat. See: Jones v. State, 55 Ala.App. 274, 314 So.2d 876.

Under the facts and circumstances shown here, there was no error in the court refusing appellant’s motion for a directed verdict. The proof here was more than sufficient to warrant the submission of the question of defendant’s guilt to the jury.

We have searched the record and did not find any error.

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte Carl McKINNON.
    SC 2301.
    Supreme Court of Alabama.
    Feb. 4, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.


author: HARRIS, Judge. HARRIS, Judge.

text:
    Tim Carlos WOODS v. STATE.
    8 Div. 887.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1976.
    After Remandment to Circuit Court Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.
    No appearance for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for grand larceny. At arraignment he was represented by retained counsel and pleaded not guilty.

When his case was called for trial, he signed a request to enter a guilty plea and he stated that he was 20 years of age. This document contained all the Boykin rights, including the minimum and maximum sentence, and is signed by appellant, his counsel, and the judge. On the form above the trial judge’s signature is the following sentence: “I have personally examined the above defendant as to his understanding and effect of the foregoing form.” Under Twyman v. State, 293 Ala. 75, 300 So.2d 124, this might be a sufficient compliance with the law respecting guilty pleas.

We believe, however, that under Honeycutt v. State, 47 Ala.App. 640, 259 So.2d 846; Walcott v. State, 288 Ala. 546, 263 So.2d 178, and Cooper v. State, 53 Ala.App. 36, 297 So.2d 169, it would be far better to have a colloquy between the trial judge and the defendant, reported by the Court Reporter, to have a more complete record of the proceedings involving guilty pleas.

As above stated appellant was 20 years of age at the time he signed the request to plead guilty and nowhere in the record does it appear that he was ever informed of his right to request Youthful Offender status. This right is mandated by Morgan v. State, 291 Ala. 764, 287 So.2d 914.

Under Morgan, supra, this cause is remanded to the Circuit Court to investigate and examine appellant at a hearing and determine whether in its discretion he should be tried as a Youthful Offender. Title 15, Section 226(1), Code of Alabama 1940.

The trial court is further instructed that the hearing be held speedily, and that a full record be made together with the Court’s determination. A transcript of these proceedings, under the seal of the Clerk, must be forwarded to this Court for review.

REMANDED WITH DIRECTIONS.

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

AFTER REMANDMENT TO THE CIRCUIT COURT

HARRIS, Judge.

On October 26, 1976, this case was remanded to the trial court for the purpose of advising appellant of his right to apply for Youthful Offender treatment as mandated by Morgan v. State, 291 Ala. 764, 287 So.2d 914.

On December 2, 1976, the trial judge had appellant brought before him and in the presence of his attorney he advised appellant of his right to file an application to be treated as a Youthful Offender. Appellant elected to file such application and he was furnished a form which he completed and signed along with his attorney.

Thereafter the trial court rendered an order denying the application based upon the written report of the Probation Officer.

The judgment of conviction is affirmed on authority of Clemmons v. State, 294 Ala. 746, 321 So.2d 238.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Ronnie Dean HOLMES v. STATE.
    1 Div. 676.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.

      Crawford, Blacksher, Figures & Brown, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

On the night of January 14, 1975, at approximately 11:00 P.M., Gordon Presnall was shopping at a fruit stand in Saraland, Alabama. Without any apparent motive or reason, Mr. Presnall was shot in the back of the head with a shotgun, and he died as a result. An empty shotgun shell was found at the scene. No one actually saw the shooting, nor could anyone identify the assailant who fled the scene.

The appellant purchased a shotgun at a pawn shop four days before the shooting. That shotgun proved to be the same weapon that fired the empty shell found at the scene of the crime. In addition, the appellant stated to some companions after the shooting that he had “blowed that dude away.” The appellant also stated to the police that he had control of the shotgun from the day he bought it until the day of his arrest, January 21,1975. Without going into unnecessary detail, we conclude from the record that the State put on sufficient evidence upon which the jury might reasonably rely to find the appellant guilty. Morton v. State (1976) Ala.Cr.App., 338 So.2d 423.

I

Before trial, the appellant made a motion for a sanity inquisition. The trial court empaneled a jury pursuant to Title 15, § 426, Code of Alabama 1940, and a hearing was commenced on November 19, 1975. The appellant contends that the jury’s finding, on November 20, 1975, on competency to stand trial was palpably erroneous and was influenced by highly prejudicial and incompetent testimony. We do not agree.

A psychiatrist and a clinical psychologist both testified that the appellant was insane and mentally incompetent to stand trial. It was their expert opinion that the appellant was a paranoid schizophrenic and that he was unable to communicate with others in a reasonable fashion. A long-time neighbor of the appellant, who was a former psychiatric aid, and the appellant’s step-father testified that in their opinion the appellant was crazy. The appellant’s I.Q. was found to be approximately 62.

The State called two psychiatrists and a psychiatric social worker, all of whom observed the appellant at Searcy State Mental Hospital. They opined that the appellant was sane and competent to stand trial. In their opinions, the appellant suffered from an anti-social personality. They said the appellant could cooperate with counsel in the preparation of his defense. One of the experts, Dr. William H. Rudder, expressed his disbelief that the appellant’s I.Q. was only 62 because the appellant was a high school graduate and had attended college for a short period. The appellant’s guidance counselor was called in rebuttal. He testified that the appellant never scored over 10% on a test and that he was an abnormal individual.

During the sanity hearing, the trial court warned each witness not to mention the nature of the charge against the appellant. However, Dr. Rudder, in a heated exchange during cross-examination and apparently inadvertently, stated that the appellant was “here on a murder charge.” The appellant contends that a mistrial should have been granted because of the admittedly prejudicial disclosure. Upon Dr. Rudder’s disclosure, the trial court had the jury stand and take another oath and then admonished the jury in pertinent part as follows:

“. . .1 have advised you from time to time that we are not concerned with the nature of the offense; I have told every witness who has taken this stand that we are not concerned with the nature of the offense. There has been a word mentioned by this witness which has described the offense. That word is due to be stricken from this record; it has no standing in this case whatsoever. I ask you, does any juror in this room feel that you would be influenced by having heard that word, and that that word might possibly have any effect on your verdict; if it does, it’s your duty as a juror to stand and tell us. (No response.) Is the jury telling me that you will continue to not consider the nature or the description of the offense, but that you will confine yourselves to a determination of the man’s ability to know and understand what’s going on in this Courtroom today; can you each do that? Those who can, please hold up their hands. (All jurors raised their hands.) There are twelve hands; and at this time the Motion for a Mistrial is denied.”

In view of the above admonition by the trial court, any error which flowed from Dr. Rudder’s statement was rendered harmless. Adair v. State, 51 Ala.App. 651, 288 So.2d 187 (1973). We know of no authority, case or statutory, requiring reversal because the nature of the offense is disclosed to a special jury hearing testimony on the accused’s competency to stand trial. This is especially so since the trial judge determines competency and the use of the procedure set out in Title 15, § 426, supra, is a discretionary tool he may use to aid him in his decision. Wheeler v. State, 47 Ala.App. 457, 256 So.2d 197 (1971); Duncan v. State, 46 Ala.App. 732, 248 So.2d 771 (1971).

Also during the competency hearing, the State successfully sought the introduction of the lunacy report of Searcy Hospital. Title 15, § 425, Code of Alabama 1940 (Recompiled 1958). The appellant contends the trial court erred to reversal by admitting hearsay, citing Benton v. State, 245 Ala. 625, 18 So.2d 428 (1944), and Ex parte Moody, 41 Ala.App. 367, 132 So.2d 758 (1961). While the best course may have been to exclude the lunacy report, we find its inclusion to constitute harmless error. Rule 45, Alabama Rules of Appellate Procedure. Benton and Moody, supra, held it not to be error for the trial court to exclude a lunacy report from evidence in the trial. Those cases do not hold it to be error to allow a jury in a lunacy inquiry to consider such a report. Certainly the report would be inadmissible on a trial on the guilt or innocence of the accused, however, in the inquiry concerning his competency to stand trial, the report would have insufficient prejudicial effect to support a reversal.

At the competency hearing, during which the lunacy report was introduced, the chief authors of the report were called as witnesses. The witnesses were submitted to a thorough cross-examination regarding the contents of the lunacy report. The report on the whole appears to be much more favorable to the appellant than the actual testimony of the witnesses who prepared it.

Although the above factors tended to negate the prejudicial effect caused by the introduction of the lunacy report, our prime reason for holding the introduction harmless stems from the nature of the proceeding in which the report was introduced. It was introduced at a hearing to determine only the appellant’s competency to stand trial. A sufficient showing was made by the appellant to call into question his competency to stand trial. It was then the ultimate responsibility of the trial court to make certain that the appellant was able to understand the charge against him and that he was able to aid in his own defense. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Seibold v. Daniels, 337 F.Supp. 210 (1972).

The trial court, mindful of the pitfalls of the hearsay contained in the lunacy report and unprejudiced by the statement of Dr. Rudder, undoubtedly would have disregarded the jury’s finding of competency had he perceived the finding to be erroneous. Sei-bold, supra. Benton and Ex parte Moody, supra, dealt with the actual trials and not with competency hearings. Those cases were affirmed in spite of the trial court’s exclusion of lunacy reports introduced by the defendants. The precedential value of Benton and Ex parte Moody to the present case is at best slight. We should not be understood to imply that erroneous rulings which are deemed harmless in the milieu of a competency hearing would also be harmless at a trial on the merits to determine guilt or innocence. We have reviewed the record of the competency hearing, and we are of the opinion that the State put on sufficient evidence upon which the jury, and more importantly, the trial court could reasonably base a finding that appellant was competent to stand trial. Morton, supra.

II

The appellant contends that his shotgun should not have been admitted into evidence because it was the product of an illegal search and seizure. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

During the week immediately following the shooting, the police became aware of the possibility that the appellant might be involved in the murder. By January 21, 1975, the possibility became a probability. The appellant’s house was surrounded and at approximately midnight on January 21, 1975, several law enforcement officers, including the Mobile County District Attorney, sought to gain entrance to the appellant’s home. The record is in conflict as to their opportunity to obtain a search warrant.

Although the record is conflicting, the trial court could have reasonably believed the following: that the law enforcement officers asked the appellant’s parents for consent to search the house for a shotgun; that the appellant’s step-father orally consented and signed a consent form; that the appellant’s step-father personally retrieved the shotgun for the law enforcement officers; that the appellant and his parents were not coerced into consenting to the search.

Whether the consent was voluntary must be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Where the evidence is conflicting as to the presence of the voluntary consent, it is the trial court who is in the best position to determine consent or lack thereof. Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied Ala.Cr.App., 335 So.2d 688 (1976). Here the trial court believed the evidence presented by the State on the motion to suppress the shotgun. A review of the record leads us to conclude that the trial court’s belief was not erroneous.

Ill

After the appellant’s arrest on the night of January 21, 1975, he was taken to police headquarters. The appellant was given the appropriate Miranda warnings which he indicated he understood. He then stated that the shotgun was his and that it had remained in his possession from the time of purchase. The appellant contends that the above statement was not the product of a rational intellect and a free will, therefore, he contends the trial court erred in allowing the statement into evidence. Beecher v. Alabama, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1972); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246; Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960).

The trial court conducted an extensive hearing outside the presence of the jury regarding the admissibility of the appellant’s statement. The testimony of the experts who testified at the sanity inquisition was incorporated into the hearing. The opinion of the appellant’s experts was that the appellant’s statement was not the product of a rational intellect and a free will. The State’s experts did not appear to have an opinion on this point. The State relies on the testimony of two of the interrogating officers. The portions of their testimony which are favorable to the State are as follows:

“Q. Did Mr. Holmes appear, in your judgment as a professional police officer, to be fully aware of what was going on that night?
“A. [Chief Frank P. Pridgen, Jr.] I’m not certain that I can answer that because in my duties, I’ve seen many people, and may people react differently; and what is normal and what might be for one person to be aware might not be normal for another person to be aware. So I am really not in a position to say whether or not — as far as I know, I had never seen Mr. Holmes before that night; I might have, but as far as I know, I never have; and I do not know how he should act normally.
“Q. Yes, sir. So would it be fair to say you really don’t have an opinion as to whether or not he was fully aware of what was going on that night?
“A. Well, now, I do.
“Q. You do not? I want to make sure I hear you correctly.
“A. Well, you’re asking, Mr Brown, to look into the man’s mind and know what he’s thinking; this I can’t do.
“Q. Well, then would it be a fair statement to say that you did not form an opinion as to whether or not he was fully aware of what was going on around him that night?
“MR. GRADDICK: Judge, the witness just said it was impossible for him to look into the man’s mind and tell what he was thinking. He’s answered the question three times in a row.
“THE COURT: Without going into his mind, Chief, can you describe his outward appearance that would give us any assistance as to whether or not he seemed to be conversant with you — what you outwardly observed? Is that all right, Mr. Brown?
“MR. BROWN: Yes, sir, Judge.
“A. I would think that he understood what was going on because when he was told the nature of the charge against him — before I completed making the statement to him about the nature of the charge, when I told him that he was under arrest, he looked at me and said, ‘for what?’ So I would assume by that that he did understand what I was saying, and I stated to him that he was under arrest for murder. But he asked me, ‘For what?’; so I assume that he understood.
* * * * * *
“Q. What type of questions did you ask him?
“A. [Officer Walter Pickett] I asked him did he understand his rights and all; and I asked him about the murder. He looked at me, you know; he didn’t respond one way or the other — he just looked at me. And then I asked him through the interrogation, I asked him also if he did, why, you know. He would go off and seemed to me as though he would appear in some other world, I would say; and then he would come back and, you know, I would ask him some more questions. He never would answer any specific question I asked. It got to the point where at one time he got in a conversation — I asked him why, again, you know — if he did it, why; and he told me that he had some confrontation while he was in Service with some white officers and they mistreated him and he didn’t like white people.
“Q. All right. And you stated that he would just seem to go off in another world for a while and come back, is that correct?
“A. He showed no emotion, in my opinion, of a man, you know, being charged with murder.
“Q. Did he seem to be in touch with reality?
“MR. GRADDICK: I object — ‘did he seem to be in touch with reality?’
“THE COURT: Ask him if he seemed to understand what was going on around him.
“MR. BROWN: Did he seem to understand what was going on?
“A. At times he would, in my opinion; and at other times seemed like he wouldn’t — that he wasn’t with us or he didn’t care or something; he gave that impression.
* * # * * *
“MR. BROWN: Officer Pickett, have you ever expressed an opinion to me as to whether or not the defendant was in control of his faculties on that night?
“A. Yes, sir, we had a conversation and you asked me my opinion about it.
“Q. And what was that opinion?
“A. I told you that in my opinion I thought he was crazy.
“Q. And in answer to the question of Mr. Brown where he said you had voiced your opinion to him that you felt like the man was crazy—
“A. Yes, sir, I said that — maybe I can qualify just a little bit why I said that— “MR. BROWN: Objection, Your Honor; that’s not responsive to the question. “MR. GRADDICK: All right, let me ask you the question; would you tell us what you mean by what you said — how you determined and formed your opinion as to this man being crazy.
“A. Well, it’s been my experience — this man was charged — picked up on a charge of murder and when you talk to him about it, he don’t respond, he don’t show no emotions, he don’t show anything; and this is why I would gather this opinion about him because it’s been my experience that over the years people would show some type emotion — would respond one way or the other.
“Q. One final question, Walter; tell the Judge whether or not on the questions he answered, whether or not you felt like he completely understood what he was doing, and if he was rational and competent and gave a competent—
sfc sk # j}:
“WITNESS: Actually the questions that he answered, they were answered in such way that he appeared to know what he was talking about.”

We are convinced from the record that the appellant understood his Miranda warnings. We are also convinced that the appellant was neither coerced nor induced into making the incriminating statement. The present case is easily distinguishable from Spa.no and Beecher, supra, upon which the appellant relies. In Beecher, gross coercion was used to obtain a confession. In Spano, the police ignored the defendant’s requests to contact an attorney whom he had retained, and they continued to question the defendant for approximately eight hours until they obtained a confession. In addition, the police made false statements to the defendant designed to obtain a confession.

In Fikes, supra, the defendant was taken to a state prison after his arrest. He was not taken before a magistrate as required by law, and he was kept in isolation, except for sessions of questioning which lasted several hours at a time. His lawyer and his father were prevented from seeing him. Likewise in Blackburn, supra, the defendant confessed after eight to nine hours of sustained interrogation in a tiny room which was literally filled with police officers. He did not have the presence of family or counsel. The defendant also signed a confession prepared by a deputy sheriff.

In all the cases cited by the appellant, the use of coercion by the police played a part in those cases being reversed. Here we have no coercion. Those cases dealt with confessions which were extracted like wisdom teeth from the defendants. Here, in the face of rather constrained questioning, the appellant made an incriminating statement while maintaining his innocence of the charge. Whether a confession is voluntarily given as a product of a rational intellect and a free will is a question to be determined from the totality of the circumstances. Fikes, supra. The trial judge was in the best position to determine voluntariness as he had ample opportunity to observe the appellant, and his decision will be reversed only if palpably erroneous. Stewart v. State, 49 Ala.App. 681, 275 So.2d 860 (1973). Given the lack of coercion; given the appellant’s understanding of his Miranda warnings; and given the context in which the incriminating statement was made, we hold that the trial court’s ruling was not palpably erroneous. Mitchell v. State (1976), Ala.Cr.App., 338 So.2d 524. We hasten to note that this is an extremely close question and that in future cases with slight factual distinctions, similar admissions may be considered to be inadmissible.

IV

The appellant contends that the trial court erred in refusing to give the following requested jury charge:

“The Court charges the jury that should you find from the evidence that the defendant did in fact kill the deceased, but that at the time of the defendant’s act, as a result of mental disease or defect he lacked substantial capacity either to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of the law, then you must find the defendant not guilty by reason of insanity.”

The above charge was based on the American Law Institute’s test of insanity which is used in a substantial minority of American jurisdictions. United States v. Freeman, 357 F.2d 606 (2d Cir. 1966). The trial court refused the appellant’s written charge and gave an oral charge based on M’Naghten’s Case, 8 Eng.Rep. 718 (H.L. 1843) as supplemented by Parsons v. State, 81 Ala. 577, 2 So. 854 (1886). We have only recently reaffirmed our adherence to Parsons in the face of an attack similar to the appellant’s. Johnson v. State, 56 Ala.App. 105, 319 So.2d 725 (1975). Although the appellant’s counsel has made a very persuasive argument regarding the lack of merit in the M’Naghten test in view of modern medical knowledge, we cannot overturn Parsons and Johnson. Christian v. State (Ms. August 31, 1976), Ala.Cr.App. The task of instituting new tests for insanity rests with the Alabama Supreme Court or the legislature.

V

During the cross-examination of the appellant’s mother by the District Attorney, the appellant leaped to his feet, shouted “Put me on the stand,” and grabbed his defense counsel around the throat. The authorities immediately seated the appellant and the trial continued. The appellant’s action in all probability was prejudicial to his cause. Appellant’s counsel moved for a mistrial which was denied. The appellant now contends that the trial court erred in denying the motion for a mistrial.

One cannot purposefully create grounds for mistrial by deliberately causing a disturbance during trial. Hayes v. State (1976), Ala.Cr.App., 340 So.2d 1142; Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The trial judge in the present case acted in a judicious and completely proper manner. We find no error on his part in denying the motion for a mistrial.

VI

The appellant’s final contention concerns the questions asked by the trial court in the jury selection process. The appellant’s counsel prepared numerous questions which were intended to determine if the prospective jurors were free from racial prejudice and free of bias against pleas of insanity. The appellant’s counsel sought assurance on these two points because his client, a black man, was charged with a senseless, motiveless shotgun slaying of a white man that he apparently did not know. The trial court did not ask the prospective jurors the more objective questions requested by the appellant’s counsel. He did, however, ask the following two questions:

“E. Is there any juror who has any abiding conviction or any basic feeling that you would prohibit or make it difficult for you to accept the principle that in a Court of law all persons are judged equally regardless of race, color or creed? Is there anyone who feels that you have any private belief, or any religious belief, or any moral belief that would make it difficult for you to accept the legal principle that all persons are adjudged equally, regardless of race, color or creed? If so, you owe it to yourself, and you owe it to us, to stand and make those views known at this time. (No response.)
* * * * * *
“G. On Question 21 (requested by defendant), on the Doctrine of Insanity—I meant to ask you that, but I again ask you that if the Court gave you a legal and medical test as to what would constitute sanity or insanity, would you find it difficult to accept the test that the Court gave you; or is there anyone of you would not be able to follow that test in determining whether to find a man not guilty by reason of insanity? (No response.)”

The trial court has broad discretion in conducting the voir dire examination of prospective jurors. Clark v. State, 294 Ala. 493, 318 So.2d 822, cert. denied 423 U.S. 937, 96 S.Ct. 298, 46 L.Ed.2d 270 (1975); Powell v. State, 53 Ala.App. 30, 297 So.2d 163 (1974). In the present case, the trial court conducted an extensive examination of the prospective jurors. Many of the questions requested by the appellant may have been beneficial in selecting a jury, however, we do not find that the trial judge abused his discretion in refusing to ask every question requested by appellant.

AFFIRMED.

All the Judges concur.


text:
    In re Ronnie Dean HOLMES v. STATE. Ex parte Ronnie Dean Holmes.
    SC 2320.
    Supreme Court of Alabama.
    Feb. 4, 1977.

      W. Clinton Brown, Jr., Mobile, for petitioner.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State, respondent.
   BLOODWORTH, Justice.

Writ denied. In denying the writ we wish to make the following observations.

We agree with the Court of Criminal Appeals, 342 So.2d 28, that the best course is not to permit introduction of a lunacy report even in a competency hearing but that in the circumstances of this case, it was not error.

We do not wish to be understood as agreeing or disagreeing with the court’s observation that it is “the ultimate responsibility of the trial judge to make certain that the appellant was able to understand the charge against him and that he was able to aid in his own defense.” In this competency hearing, a jury was empanelled to decide, and did decide, that petitioner was competent to stand trial. On this issue see Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, cert. quashed 292 Ala. 745, 293 So.2d 489 (1974), and Buttram v. State, 57 Ala.App. 422, 329 So.2d 111 (1975).

Thus, there being no dichotomy between trial judge and jury on the issue, this issue is not presented to us for decision.

We agree with the Court of Criminal Appeals that the disclosure in this case — a competency hearing — of the nature of the offense was not error.

We decline petitioner’s invitation to overrule Parsons v. State, 81 Ala. 577, 2 So. 854 (1887).

WRIT DENIED.

TORBERT, C. J., and JONES, ALMON and EMBRY, JJ., concur.


author: HARRIS, Judge. BOOKOUT, Judge,

text:
    James D. GATLIN v. CITY OF ANDALUSIA.
    4 Div. 481.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Feb. 1, 1977.

      Jerry E. Stokes, Andalusia, for appellant.
    Earl V. Johnson, Andalusia, for appellee.
   HARRIS, Judge.

Appellant was convicted by a jury in the Circuit Court of Covington County for violating a City ordinance which prohibited the owners of dogs from permitting such dogs to run at large in the City, “unless such dog is wearing a muzzle on its head securing his mouth,” etc. The jury assessed a fine against him for one hundred ($100.00) dollars.

The judgment entry recites that on June 30, 1976, in open court came the City of Andalusia by its attorney and the defendant in his own proper person and with his attorney and the defendant waived arraignment and agreed to go to trial on the original affidavit and complaint from the Recorder’s Court of the City of Andalusia charging him with the violation of Chapter 4, Section 414, of the City Code.

The testimony adduced by the City of Andalusia tended to show that Mr. Eddie Edson, 405 Woodruff Street, of that city, was the owner of two small house dogs, a Boston Terrier and a little Wire-haired Terrier. That about midnight on February 18, 1976, Mr. Edson took these two small dogs out to the carport of his house and turned on the lights. At this moment two large dogs, a German Shepherd and a Collie, attacked the two small dogs right at Mr. Edson’s feet. Mr. Edson grabbed a broom nearby and struck the attacking dogs and broke up the fight. The German Shepherd and the Collie fled south toward Ellis Street where appellant lived. Both Woodruff and Ellis Streets were in the City limits of Andalusia. He stated that the big dogs did not have on muzzles nor did they have on leashes. He said he had never seen these two dogs before that night. He further stated that one of his dogs died shortly after being attacked by the big dogs and he had to carry his other little dog to a veterinarian. Mr. Edson called Mr. Alan M. Cory, Jr., who was employed by the City of Andalusia as an Animal Control Officer and reported the incident to him.

Mr. Cory testified that in response to the call from the Edson house he went to their home. He learned that one of the little dogs was killed in the dog fight and the other one was at the veterinarian. He got a description of the German Shepherd and the Collie and said he knew the two dogs. He went to Ellis Street where appellant lived and saw both dogs at appellant’s house, but the Gatlins were not at home.

He further testified that he went back that night and saw appellant. He told appellant that he had a report that his dogs had been running loose and had killed one dog and injured another. That appellant told him that the two dogs did not belong to him and that he was not going to replace anything and that he wasn't responsible to anybody. Appellant further said he wasn’t going to pay a _ penny to anyone. This witness further stated that he was going to pick up these two dogs and appellant told him to pick them up. The next morning he picked up the two dogs and carried them to Dr. Louis Jones, a veterinarian in Andalusia. He stated that at the time he picked them up they were running loose at appellant’s house and were not muzzled.

On cross-examination Mr. Cory testified that he had seen both of these dogs at appellant’s house several weeks before the night they attacked the Edsons’ dogs.

On redirect examination Mr. Cory stated that when he talked to appellant about these two dogs he did not deny that he owned the dogs.

Dr. Louis Jones, the veterinarian, testified that Mr. Cory delivered three dogs to him on February 20, 1976; one dog was dead on arrival. The other two dogs were a German Shepherd and a Collie. Dr. Jones further testified that these dogs were vicious and he kept them confined from February 20 to March 1, 1976. That on March 1, appellant’s wife called and gave him permission to put the Collie to sleep.

Police Officer J. D. Shakespeare accompanied Mr. Cory to appellant’s home on the 20th day of February, 1976. At that time he saw the Collie and the German Shepherd dogs in appellant’s yard but appellant was not at home. On the following Friday he had an arrest warrant and he went to appellant’s home and took him into custody.

Appellant testified in his behalf and stated that he lived at 420 Ellis Street in the City of Andalusia and that he did not know anything about a dog fight taking place in his neighborhood on the night that Mr. Ed-son’s dogs were attacked by a Collie dog and a German Shepherd. He stated that he did not own either one of these dogs but they just started hanging around his house; that at one time he hauled one of the dogs away and a couple of days later the dog reappeared. He further stated that he never fed these dogs. He admitted that everyone in the neighborhood looked on these dogs as belonging to him but he stated that they were not his.

There was no motion to exclude the City’s evidence; there was no motion for a new trial; there was no request for the affirmative charge; no exceptions were reserved to the oral charge of the Court and there were no adverse rulings on the admission of evidence that contained any merit. In this state of the record the sufficiency of the evidence is not presented to this Court for review. Jones v. State, 55 Ala.App. 466, 316 So.2d 713; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

After the jury returned a verdict finding defendant guilty as charged and assessing a fine of $100.00 against him, the judgment entry shows that the fine and costs were not paid and defendant was sentenced to 30 days hard labor for the City of Andalusia to pay the fine and an additional eight days hard labor for the City of Andalusia to pay the Court costs at the rate of $7.50 per day.

The only issue raised on this appeal concerns the sentence of 38 days hard labor for the City of Andalusia for the non-payment of the fine of $100.00 and the costs of $58.25. This is based on the ground that the appellant is indigent and under both federal and state cases an indigent cannot be sentenced to serve time for the non-payment of a fine and costs. This is the law as laid down in the following cases: Dorch v. City of Opelika, 50 Ala.App. 612, 281 So.2d 666; Lingle v. State, 51 Ala.App. 210, 283 So.2d 660; Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773; Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130; Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586.

We have carefully searched the entire record in this case and nowhere does it appear that prior to arraignment and trial, the appellant was declared to be an indigent and an attorney appointed to represent him. There was absolutely no finding of indigency until after arraignment, trial, conviction and sentence. The trial court then declared the appellant indigent and ordered a free transcript furnished him and appointed trial counsel to represent him on appeal. Therefore, the above-cited cases do not control this appeal.

We have had numerous cases where defendants were represented by counsel of their own choice, and after conviction they were found to be indigent and furnished a free transcript and either trial counsel or new counsel was appointed to represent them on appeal.

We have carefully searched the record for errors injuriously affecting the substantial rights of appellant and have found none. Accordingly, the judgment of conviction is affirmed.

AFFIRMED.

TYSON, P. J., and DeCARLO, J., concur.

BOOKOUT, J., concurs in part and dissents in part, in which CATES, J., joins.

BOOKOUT, Judge,

concurring in part and dissenting in part:

I concur in the affirmance of the conviction, but I respectfully dissent as to that part of the opinion relating to indigency. The distinction between persons who are indigent during the period between arraignment and sentencing, and persons who are only indigent for the purpose of taking an appeal, appears to be irrelevant to this case. The relevance of the distinction is not supported by those cases cited by the majority. The only relevant inquiry should relate to the appellant’s ability to pay the fine when payment is due. If the appellant is indigent for the purpose of taking an appeal, then it may follow that he may also be indigent for the purpose of paying a fine. I fail to find any support in law for the proposition that a finding of indigency (for payment of a fine) should be made prior to arraignment and trial.

The judgment of conviction should be affirmed and the cause remanded for sentencing in conformity with Tate, supra. See Dorch, supra. If the court below finds the appellant to be a non-indigent, then the appellant may be imprisoned for failure to pay the fine. If the court below finds the appellant to be indigent then “there are other alternatives to which the State may constitutionally resort to serve its concededly valid interest in enforcing payment of fines.” Tate, supra.

While I concur with the majority in its affirmance of conviction, I think the following point should be made. As I have never in my life seen a dog running at large wearing a muzzle, it appears that the city’s case against the appellant comes perilously close to being one of selective prosecution.


text:
    Lee Frank PITTS, alias v. STATE.
    5 Div. 321.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.

      Richard D. Lane, Auburn, for appellant.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was tried the second time (the first trial was a mistrial) on an indictment for robbery and convicted. The jury fixed punishment at fifteen years in the penitentiary. This appeal is from a judgment according to the verdict. The appointed counsel here appearing for appellant is not the same counsel who represented him at nisi prius.

The victim of the robbery was Peter E. Louys, II, who, at the time, was an employee of Hunter’s Texaco Service Station (in Auburn) as alleged in the indictment.

This victim testified as to the details of the robbery and the amount of money taken. It appears from the victim’s testimony that he was alone at the filling station and was robbed about 9:30 P.M. on August 4, 1975. It appears that the station was brightly lighted with fluorescent lights. At this hour (9:30 P.M.) a colored male came into the office and represented that he wanted help to repair his automobile and wrecker service would be required. The witness then walked into the office at which time the colored male threatened him with injury by use of a knife. He forced him into a back office with the cash drawer. The colored male by threats forced the witness to go on the outside where both got into the automobile of the witness and proceeded about a mile to an isolated area on a dirt road. We will not relate the details of the instructions about where to go that emanated from the mouth of the colored male; neither will we relate the details of the conversation after the designated area was reached. Suffice it that the record is replete with evidence by the witness that he got a good look at the robber and had ample opportunity to hear the tone of his voice. After the robber fled, the witness flagged another car and went back to his station.

After reaching the station, the victim gave a description to the police. We will not weight this opinion with the description. He also went to the police station and conferred with some police officers. When he returned to the station in an unmarked police automobile, the defendant was there leaning up against the left fender of a police car with an officer present. He stated that he did not see any handcuffs on defendant and no one had a gun or anything pointing at him. The following colloquy occurred in the police car:

“Q. All right. When you pulled up in back of Sergeant Murphy’s car, what, if anything, took place then?
“A. I was sitting in the back and Chief deGraffenried said, ‘Is that the fellow?’ And I told him I couldn’t see clearly from there and could I get out and walk up close and he said, ‘Yeah.’
“Q. And did you get out?
“A. Yes, sir, I did.
“Q. All right. Did you go up closer to the defendant?
“A. Yes, sir, within about three feet of him.
“Q. All right. Did you take a good look at him then?
“A. Yes, sir.
“Q. Were you able to identify him as the one having robbed you just a short time earlier that evening?
“A. Yes, sir, I did.
“Q. At the time you saw the defendant on this occasion, was he wearing the same clothes?
“A. No, sir. He had changed clothes. “MR. LESTER: Objection, Your Honor, unless he knows that he changed clothes of his own personal knowledge.
“THE COURT: Well, did he have on the same clothes?
“THE WITNESS: He was wearing different clothes.
“THE COURT: When you saw him the second time did he have on the same clothes as when you saw him in the filling station the first time?
“THE WITNESS: No, sir.
“THE COURT: Different clothing?
“THE WITNESS: Different clothing, yes, sir.
******
“Q. Were you able to detect at this time the dark space between his teeth; that is the dark space where his teeth joined together?
“A. Yes, sir.
“Q. Were there any other characteristics you were able to distinguish at this time?
“A. His build, his skin coloring, the lower face.”

The witness further testified that he was with the defendant approximately twenty minutes from the time he walked into the filling station until he was put out on the isolated area of the dirt road.

On cross-examination, the witness said he did not see the defendant again from the time he identified him at the station with the police until he pointed him out in court.

Jack Brantley, a police officer, testified that he was on patrol duty the night of August 4,1975, when he received a dispatch concerning a robbery alleged to have been committed at the Texaco Station. This was about 10:00 P.M.; that he was advised that the robbery happened about 9:40; also that the description of the suspect jibed with the description of somebody he had seen earlier that evening across the street in the A & P parking lot. He identified the individual as Frank Pitts, the defendant, whom he had known about seven or eight years. He went to Frank Pitts’ home about 10:15 or later, but Pitts was not at home. He talked to Pitts’ mother and left word for him to call the police department. He testified that he went back to the house about 11:00 P.M. and took him in custody and transported him to Hunter’s Texaco Station and then to the Auburn Police Department. He testified that Pitts did not change clothes before he took him to jail and that he cooperated with the witness.

Defendant’s witnesses testified that defendant was at home when the alleged robbery occurred watching television.

Defendant took the stand and supported the alibi of his witnesses. He admitted on cross-examination that he was convicted of larceny from a person and that in the years 1967, 1968 and 1969 he was in the Alabama Industrial School in Montgomery and was not in the Auburn High School at that time at which time an officer testified he saw him in at Auburn High School.

All in all, the testimony presented a factual question as to the guilt or innocence of defendant.

I

Appellant contends that the court erred in admitting in evidence the victim’s in-court identification of defendant because it was based upon a prior identification at the scene of the crime; that there was no showing by the State of an independent source of identification. Contention is here made that the totality of the circumstances involved in the conduct of the identification were highly suggestive and conducive to a mistaken identification and a denial of due process.

We do not agree with this contention. The victim had ample opportunity in a well lighted station to view the defendant who was unmasked; and also was in close contact with him in an automobile en route to the isolated area on a dirt road where he was released, altogether about twenty minutes. This identification took place not long after the robbery. We think the observation of this court in Wilson v. State, 57 Ala.App. 124, 326 So.2d 316, cert. denied, 295 Ala. 429, 326 So.2d 319, has application.

In this case we quoted at length from Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. We will not repeat.

We conclude that under the totality of circumstances here presented, the identification was reliable even though the confrontation procedure might have been mildly suggestive.

There was no error in admitting the in-court identification in evidence.

II

The next assertion of defendant is that the court trespassed on his rights, and erred to reversal, by not appointing counsel of his selection (one or both of his paid lawyers who represented him on the first trial) to represent him on the instant trial. He made known to the court that he was not pleased or happy with the appointed counsel on the second trial.

A colloquy occurred between the court and defendant, who requested new counsel right on the eve of trial. The record indicates that defendant did not have any money “at the present time,” but if he had more time, he could get up some money. It appears that the original attorneys withdrew from the case because of a lack of money, and defendant did not have any money at the time of trial to pay them. He just offered hope and speculation that his “folks” could get up some money. The record fails to show that defendant wanted to represent himself. The court refused to continue the ease.

It appears to us that indigents should not be too “choosy” about getting their choice of lawyers and have no just complaint as long as the appointed attorney is competent, diligent and faithful.

We are in accord with the observation of appellant’s attorney here appearing. We quote from his brief:

“ . . . This is not to say, by any means, that the Court appointed attorneys who in fact handled the case, did anything less than admirable jobs. As a matter of fact the defense in this case, in my opinion, was vigorous, throughout the trial and there is no question as to the ability of either attorney or their confi-dency (sic) raised.”

We hasten to state without reservations that the trial court’s appointed counsel at nisi prius and on this appeal were excellent lawyers, diligent and faithful to their trust. We think defendant should be very grateful that he was given such diligent and competent attorneys instead of complaining. He got a fair trial, was ably represented, and with like representation on this appeal; his complaint is wholly without merit.

The judgment of conviction is affirmed.

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

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Lee Frank PITTS.
    SC 2314.
    Supreme Court of Alabama.
    Feb. 18, 1977.
   EMBRY, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, JONES and ALMON, JJ., concur.


author: HARRIS, Judge.

text:
    Richard A. SLINKER v. STATE.
    8 Div. 804.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.

      Earl E. Cloud of Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon an indictment charging murder in the first degree. The jury returned a verdict finding appellant guilty of murder in the second degree and fixed his punishment at 25 years in the penitentiary. Throughout all the trial proceedings in the Circuit Court of Madison County, appellant was represented by experienced trial lawyers of his choice. At arraignment he entered a plea of not guilty relying on self-defense. After sentence was imposed, he gave notice of appeal. The trial court determined that appellant was indigent and a free transcript was furnished him. Trial counsel was appointed to represent him on appeal.

The evidence adduced by the State is in sharp conflict with the evidence introduced by appellant. The tendencies of the State’s evidence showed that appellant committed an unprovoked and senseless murder and that he was wholly at fault in bringing on the difficulty. According to the testimony of appellant his life was in imminent danger at the time he fired the fatal shots and that he was wounded during the exchange of gunfire.

At the conclusion of the State’s case appellant made a motion to exclude on the ground the State had failed to make out a prima facie case. This motion was overruled, and appellant filed a motion for a new trial and this motion was overruled and denied.

On September 24, 1975, appellant and a co-worker, Harvey Hyder, arrived in Huntsville, Alabama, from Metairie, Louisiana, a town located about ten miles from New Orleans. They were engaged in the business of selling water softeners. They registered at the Tourway Inn which was located across the street from the Diplomat Inn. While at work they met a woman who was employed by the same company and that night the three went to dinner together. After dinner someone suggested they go to the Diplomat for a drink. The three went to the lounge in the Diplomat. Appellant claimed he did not have a drink on this occasion and left Hyder and the woman and went back to the Tourway Inn where he remained for 45 minutes to an hour. He then decided to rejoin his companions at the Diplomat, but they had gone when he entered the lounge.

While looking for his companions appellant was accosted by a man who asked him to have a drink with him and he sat at the table with this man who introduced himself as Mr. Simmons. Mr. Simmons was actually the deceased, James Moss, Sr. Moss ordered drinks and when they were delivered, he asked the waitress to kiss appellant. This happened on more than one occasion and Moss asked the waitress to kiss appellant again and she did. Soon thereafter they were joined by two other men, Steve Kirkland and William Scott, and someone suggested a game of poker. After playing cards at one of the booths awhile, Kirkland suggested that the game be moved to the dining room area of the Diplomat. The game continued and appellant and the deceased began to lose regularly. Appellant claimed that the drinks he had been served made him dizzy. Appellant lost most of his money and Kirkland then offered to loan him money on one of the two rings he was wearing as collateral. Kirkland loaned appellant some money on the ring and the game continued and appellant continued to lose. At this time they were playing $5.00 limit. Kirkland stated they should not be gambling in a public place and suggested they go to an apartment for a party where some girls would be.

Appellant was asked to drive Mr. Moss, Sr., so that he could show him how to get to the apartment. They were going to Apartment C of the Haystack Apartments. Appellant walked across the street to the Tourway Inn and got his car and drove in front of the Diplomat Inn and picked up Mr. Moss and they followed Kirkland and Scott to the apartment. When they arrived at the Haystack Apartments, the game continued and appellant kept losing. Kirkland loaned appellant some money on the other ring and subsequently Kirkland loaned appellant some money on his watch. A question arose about the number of cards in the deck as appellant saw two or three cards on the floor and appellant stated he had a deck of cards in his car and he left the apartment to get this deck from his car. He was gone four or five minutes and when he returned, he announced he could not find the cards, but unknown to the others, appellant got his pistol and concealed it in his pocket. Appellant suggested that he and Kirkland play “show down” poker and again appellant lost his money. Kirkland then told appellant he was indebted to him in the amount of $650.00. Appellant replied that he did not owe him that much money and they got into an argument over the amount of money that appellant owed Kirkland.

About this time Mr. Moss was pretty much intoxicated and asked appellant to take him back to his car at the Diplomat.

According to the State’s evidence the son of the deceased, James Moss, Jr., was working at the bar at the Diplomat on the night of the shooting and saw his father and appellant leave the Diplomat. He was told by either Kirkland or Scott they were going to the Haystack Apartments and to come by when he closed the bar for the night. Young Moss came to the Apartment C in the early morning hours of September 25, 1975, and watched the poker game until it broke up at about 4:30 a. m.

Appellant and James Moss, Sr., walked out the door of the apartment ostensibly to be driven by appellant to Moss’ car at the Diplomat, but, according to the State’s evidence, they reentered the apartment in ten to fifteen seconds with appellant having a pistol pointed directly in the back of Mr. Moss. Appellant ordered everyone present to put their money on the table together with both of his rings and watch. Appellant’s orders were complied with and when the money and rings were placed on the table, appellant discovered that his watch was missing. He asked who had his watch and everyone denied having the watch. Appellant pointed his pistol at Scott and told him he was the last one who had his watch and that he was going to give him three counts to surrender the watch. He started counting and when he got to “two” Scott said he didn’t have the watch but pulled off his own watch and put it on the table. The appellant stated he wanted his own watch. Young Moss told his father that if he had the watch to put it on the table. Mr. Moss, Sr., then took the watch out of his pocket and put it on the table. Appellant gathered up the money, his watch and both of his rings.

Young Moss then told appellant that he had recovered all of his property and to leave the apartment. Appellant told young Moss to “shut up” and fired a shot in his direction stating “that was a blank but the rest of them are not.” The deceased, James Moss, Sr., then said, “Well, these are not blanks,” and both appellant and the deceased began firing. Some eight or ten shots were fired and when the shooting was over, Steve Kirkland had been shot, the deceased was shot and was pronounced dead on arrival at the hospital, and appel- - lant was shot twice by the deceased.

Appellant left the apartment and got in his car and drove several blocks before stopping his car, opened the door and fell to the pavement. A police officer saw appellant when he fell out of his car and went to him to render aid and assistance until an ambulance could get there. Appellant cursed the officer and told him to stay away. Appellant was carried to a local hospital for emergency treatment.

The police inventoried appellant’s car and found a deck of cards though appellant told the men in the apartment he could not find his cards. The officers also found a .38 revolver, a black holster and two boxes of ammunition under the front seat of appellant’s car. The revolver contained six spent cartridges and this was turned over to the State Toxicologist. An autopsy was performed on the body of the deceased and several bullet wounds to the body were found. A bullet was recovered from one of these wounds and was also turned over to the Toxicologist. The revolver was test fired and a microscopic comparison was made with the slug removed from the body of the deceased. The test showed that this slug had been fired through the barrel of the .38 revolver found in appellant’s ear. Death resulted from hemorrhage and shock associated with the bullet wounds.

A .32 caliber pistol was found by the officers in the apartment where the shootout occurred. A slug was removed from the appellant and the laboratory test revealed that this slug had been fired through the barrel of the .32 pistol and that this pistol was in the hands of the deceased during the shoot-out.

Appellant’s version of the shooting was very different from the State’s testimony. He claims that when he saw some cards on the floor, he asked what was going on and everyone in the room started accusing him of saying he was cheated out of his money, rings and watch. He claimed that he did not fire the first shot. He stated that James Moss, Jr. charged him and at the same time he felt pain in his side and then an explosion. It was then that he started shooting.

There are many more details leading up to and culminating in the shooting but we see no necessity in setting them out.

Appellant contends the trial court committed many errors that should work a reversal of this case from the beginning of the trial to the end. His first claim of error occurred when the trial court introduced the District Attorney to the jury venire by saying, “representing the State of Alabama, our District Attorney.” Appellant contends this introduction was highly prejudicial as it tended to show that the judge and the District Attorney were aligned on one side and the defense on the other. The record shows that the Court said:

“Representing the State of Alabama, our District Attorney, Mr. Fred Simpson, and his Chief Assistant, Mr. Bart Loftin. Representing the Defendant in this case is Mr. Earl Cloud, Mr. Joseph Berry and the Defendant is seated with them.”

It is common practice for trial judges to introduce the lawyers who are going to try any case, criminal or civil, and we do not deem it necessary to say any more in this regard. Certainly no error intervened in the above-quoted introduction to the jury.

Appellant also claims that the trial court abused its discretion in allowing the prosecuting attorney to ask the jury certain questions on voir dire. The matter of instant concern, as shown by the record, is as follows:

“MR. SIMPSON: Has any member of this venire ever been a witness against the State, that is, have you ever been to court and testified for someone charged with a crime? Have you ever been a witness against the State of Alabama?
“MR. CLOUD: Your Honor, if the Court please, we would object to the phraseology of that; if you are going to be a witness you are not a witness for or against; you are called at the instance and we object to that phraseology.
“THE COURT: Well, I think as the question was re-phrased it is acceptable.
“MR. CLOUD: We except.
“THE COURT: Ladies and gentlemen, you understand that Mr. Simpson is asking whether or not any of you have testified in behalf of a defendant in a criminal crime.
“MR. SIMPSON: Let me further clarify it. I am not saying that you have any ill-will against the State. I am talking about the difference if you were called by the defense or called by the State of Alabama. There’s nothing wrong with it.”

Title 30, Section 52, Code of Alabama 1940, provides as follows:

“In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.”

Both this Court and the Supreme Court have held that the scope of voir dire examination is within the sound discretion of the trial judge. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844; Fletcher v. State, 291 Ala. 67, 277 So.2d 882; Smith v. State, 292 Ala. 234, 292 So.2d 109; Clark v. State, 294 Ala. 493, 318 So.2d 822.

We cannot say that the trial judge abused his discretion in this case. Clearly, there was no evidence of bad faith nor an attempt to prejudice appellant in propounding the subject question to the jury.

Next appellant urges reversible error was committed by the prosecuting attorney in his opening statement to the jury that it was not illegal to play bridge or poker at home with friends. After objection was overruled, the prosecuting attorney withdrew this statement. At the beginning of the trial the Court told the jury that statements of attorneys were not to be considered as evidence in the case. The Court further stated:

“Ladies and gentlemen, after the summation, the closing argument of counsel I will instruct you on the law in the case. You will reserve any judgment you have about what the law is until you hear it from me.”

The prosecuting attorney having withdrawn his statement and the trial court having told the jury they must look to him to charge them on the law of the case, we hold error to reverse was not committed.

There was no error on the part of the trial court in suggesting that venue had not been proved and allowing the State to reopen the case and prove the venue of the crime. Anderson v. State, 104 Ala. 83, 16 So. 108.

Appellant urges this Court to reverse the trial court for failure to grant his motion to exclude the State’s evidence for failure to make out a prima facie case. The Supreme Court in Young v. State, 283 Ala. 676, 220 So.2d 843, held:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the State’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error.”

The holding in Young, supra, is applicable to this case and the trial court properly submitted the issue of appellant’s guilt to the jury.

In his closing argument the District Attorney stated, “The law in its infinite wisdom says that a men to save his own neck will lie.” Defense counsel objected to this statement and the Court specifically instructed the jury that it was the Court’s duty to charge as to the law, and it was the duty of the jury to take the law as given by the Court. If error was committed by the District Attorney, it was completely cured by the Court’s instructions. Mabry v. State, 40 Ala.App. 129, 110 So.2d 250.

We have carefully reviewed the refused charges in the light of the extensive oral charge and find that the refused charges stating correct legal principles of law were fully, adequately and substantially covered in the oral charge. Title 7, Section 273, Code of Alabama 1940.

We have carefully examined this three-volume 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.


text:
    Phillip Ray MEDDERS v. STATE.
    6 Div. 251.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1977.
    Jesse W. Shotts, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

The appellant was indicted, tried and convicted for the drowning death of Hopson Backin on October 11, 1975. The evidence, which included a confession by the appellant, was sufficient to support a guilty verdict. Morton v. State, Ala.Cr.App., 338 So.2d 423, cert. denied Ala., 338 So.2d 428 (1976). The appellant contends the trial court erred to reversal by admitting into evidence the appellant’s confession and two photographs of the body of the deceased. We do not agree.

THE CONFESSION

The appellant was detained for questioning concerning the deceased’s death on October 24, 1975, and he was subsequently released. Approximately ten hours later on October 25, 1975, the appellant was arrested at which time he confessed to the crime. On both occasions, the record reveals the appellant was advised of the appropriate Miranda rights which he knowingly and voluntarily waived. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Flannagin v. State, 289 Ala. 177, 266 So.2d 643 (1972). The appellant argues that his confession should have been excluded at trial for two reasons.

A

The appellant’s confession consisted of a question and answer session between himself and Sgt. J. R. Horton, the interrogating officer. It is the appellant’s contention that the interrogation continued after the appellant requested that no more questions be asked in violation of Miranda, supra. United States v. Crisp, 435 F.2d 354 (7th Cir. 1970). The transcript of the appellant’s confession consisted of fourteen typewritten pages. There appear in the transcript only three instances which might possibly indicate a desire to break off the interrogation.

The first instance occurred as follows:
“Q. Well, Phillip, when ya’ll got him in the car there.
“A. I don’t want to talk no more .
“Q. Okay, are you ready to go on upstairs.
“A. What every (sic) you want to do. I want the chair or whatever you will give me.
“Q. Well it’s going to be a while Phillip.
“A. I’ll talk to you, however you want to handle it, or whatever I have to go through to get it. That’s all I know. I don’t want you to ask me nothing else.”
The second instance occurred as follows:
“Q. Phillip, getting back to what we were were talking about Saturday.
“A. I don’t want to talk about it no more. All I want is what I am asking for.
“Q. Well . . .
“A. I know it can be arranged, because if you say it can’t be arranged when I know it can.
“Q. All we want to know is what happened by you? And why? I want to know what was going through your mind that night.
“A. I don’t know what was going thru. I don’t believe I had any mind that damn day. If I had one it was somewhere else.”
The final instance occurred as follows:
“Q. Well, let’s call it a night and let you go up there and get some sleep.
“A. Naw, I want to make a statement and all while I’m here.”

Throughout the interrogation, the appellant expressed a desire to confess to the crime. The appellant apparently did not believe that some of Sgt. Horton’s questions were relevant as indicated by the first two instances quoted above. However, given the context of the appellant’s continued desire to confess in order to obtain punishment, as indicated by the third instance quoted above, we are of the opinion that the first two instances quoted above do not indicate a desire on the appellant’s part to break off the interrogation. We find, rather, a desire on the part of the appellant that only questions which he thought relevant to the murder be asked. Such a desire does not render the confession inadmissible. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).

B

The appellant also contends that he could not voluntarily, knowingly and intelligently waive his constitutional privilege against self-incrimination due to an alleged high level of intoxication. The appellant did introduce some slight evidence of a high degree of intoxication. However, Sgt. Horton testified that in his opinion the appellant, although he had been drinking, was not drunk.

We have dealt, at length, with similar problems in other cases. See: Scott v. State, Ala.Cr.App., 333 So.2d 619 (1976). Suffice it to state that intoxication, short of mania or such an impairment of the will and mind as to make the person unconscious of the meaning of his words, will not render a statement or confession inadmissible. Woods v. State, 54 Ala.App. 591, 310 So.2d 891 (1975). There was ample evidence even though conflicting, from which the trial court could conclude that the appellant was not intoxicated to the extent of mania. Scott, supra. It was not error for the trial court to admit into evidence the appellant’s confession.

THE PHOTOGRAPHS

The trial court admitted into evidence two photographs of the deceased. Their introduction was objected to because of the alleged lack of probative value and their alleged inflammatory nature. Again we have dealt, at length, with the problem of gruesome photographs. See: Lewis v. State, Ala.Cr.App., 339 So.2d 1035 (1976). We find that the two photographs in question tend to shed light on, strengthen and illustrate the truth of other testimony. Lewis, supra. The trial court committed no error in allowing the two photographs to be introduced into evidence.

AFFIRMED.

All the Judges concur.