author: HARRIS, Judge.

text:
    Clarence TILLIS v. STATE.
    4 Div. 529.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.
    Richard W. Whittaker and S. Mark Jordan, Enterprise, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant filed a pro se petition for writ of error coram nobis seeking to overturn his conviction on a charge of burglary committed in 1971 on a guilty plea. He was sentenced to imprisonment in the penitentiary for seventeen and one-half years on December 9,1974. He did not take a direct appeal to this Court from that conviction and sentence.

In July, 1973, petitioner was convicted of the crime of rape and the jury fixed his punishment at fifty-six years in the penitentiary. He appealed this rape conviction, and the judgment was affirmed by the Supreme Court on June 20, 1974. Tillis v. State, 292 Ala. 521, 296 So.2d 892.

In his pro se petition appellant sets forth several grounds as to why his conviction should be reversed. They are: (1) he was arrested without a warrant and without probable cause; (2) he was denied the right of counsel during the police investigation; (3) he was coerced into signing a confession; (4) there was never a positive identification made of him; (5) he was coerced into signing a guilty statement by his attorney; (6) the evidence was insufficient to convict him; (7) there was no evidence to connect him with the crime; and, (8) he had a biased and prejudicial jury (all white).

Upon the filing of this petition Judge Eris F. Paul appointed two experienced lawyers- to represent appellant. A full blown hearing was held and much testimony was taken. At the conclusion of the hearing the judge denied the petition. Appellant gave notice of appeal and was furnished a free transcript. Trial counsel were appointed to represent him on this appeal.

Judge Paul wrote such a lucid, indepth and comprehensive decree in denying this petition that we think it wise and proper to adopt his decree and order as a part of the opinion of this Court.

“On October 12,1976, Clarence Tillis filed with the Clerk of this Court a Petition for Writ of Error Coram Nobis to set aside the conviction in Case No. 4975 in which he interposed a plea of guilty to an indictment charging burglary first degree, on December 9,1974, and was sentenced to seventeen and one-half years. An order was entered setting the Petition for hearing, appointing Richard Whittaker and Mark Jordan, attorneys at law, Enterprise, Alabama, to represent the defendant and returning the petitioner to the custody of the Sheriff of Coffee County for the hearing. The cause was set for trial and heard November 18, 1976. The defendant appeared personally at the hearing with his counsel. At the hearing before the Court in this cause, testimony of the defendant related transactions of one arrest which culminated into four different cases. Therefore, it will be necessary to give some factual background and dates pertaining to this cause.

“In the early morning of July 7,1973, the defendant was arrested by the police officers of the City of Enterprise, resulting in their removing from his person some marijuana and LSD. While he was in the custody of the officers on said drug charges, they advised him that he was under investigation for rape which occurred July 1, 1973. As the result of an investigation, defendant was charged with two cases of possession of drugs and with one offense of rape and burglary, first degree. On July 10, 1973, the grand jury returned a two-count indictment against the defendant charging him with rape of Carol Stolar and in the second count with first degree burglary, breaking into the home of George Robert Stolar, which was occupied by Carol Stolar, a person lodged therein. On September 24,1973, the defendant was tried to a jury under the indictment just mentioned, was adjudged guilty and his punishment fixed at fifty-six years. Said case was No. 4917, Coffee County, Enterprise Division. Said case was appealed, and on June 20, 1974, was affirmed by the Supreme Court of Alabama, and is reported as Tillis v. State of Alabama, 292 Ala. 521, 296 So.2d 892.

“Two years prior to the rape and burglary for which the defendant was tried in Case No. 4917, and on July 2, 1971, the home of Mrs. Louvienia Gantt Shivers, Enterprise, Alabama, was burglarized in the nighttime and said Mrs. Shivers was stabbed with a blunt instrument which could have been scissors. On investigation of the burglary case at the home of Mrs. Shivers, investigating officers gathered numerous fingerprints, some of which, apparently, were left on a newspaper in her home. On July 6,1971, after the Shivers’s investigation, investigating officers forwarded the fingerprints to the FBI Laboratory, Washington, D.C. During the investigation of the rape and burglary cases in 1973, the investigating officers had taken the fingerprints of this defendant and forwarded said prints to the FBI Laboratory, Washington, D.C. As the result of comparison of these fingerprints, on July 27, 1973, a warrant was preferred against this defendant for the nighttime burglary of Mrs. Shivers’s home. On January 23, 1974, the grand jury returned an indictment against the defendant, relating to the Shivers burglary, charging him with burglary in the first degree. The defendant employed Kenneth Cain as his attorney, was arraigned on February 12, 1975, on the burglary case which was committed in 1971 (Case No. 4975). On written petition of the defendant asking that he be examined to determine whether he was mentally competent, and after hearing thereon on order dated June 12,1974, the defendant was committed to Searcy Hospital, State Hospital for the Insane, for observation. Being notified by the Superintendent of said institution that the defendant was sane, he was returned to Coffee County for trial. The cause was continued once on defendant’s motion and came on for trial on December 9, 1974. On the last day mentioned, December 9, 1974, the defendant appeared with his employed counsel, Kenneth Cain, a jury was selected, and the trial proceeded for some three or four hours. Before the State rested its cause, the defendant, through his attorney, made known to the Court that the defendant wished to change his plea of not guilty and enter a plea of guilty to the charge. At said point in time, the Court explained to the defendant every detail of his rights, including what he would be waiving by a plea of guilty and after being completely satisfied that the defendant fully understood his rights, what he was waiving and further, that his plea was voluntarily made, the Court accepted his motion to set aside his plea of not-guilty and accepted his plea of guilty upon which he was sentenced to the Penitentiary of Alabama for seventeen and one-half years.

“It should be observed that both of the trials mentioned herein, that is Case No. 4975, the nighttime burglary of Mrs. Shivers’s home in 1971, and Case No. 4917, rape and burglary which was appealed to the Supreme Court of Alabama, were tried by the writer of this opinion. Though the records presently herein do not disclose it, the two drug cases for which grand jury indictments have been returned against the defendant rising out of the incident of the original arrest, were nolle prossed by this Court after conviction of the first case which resulted in fifty-six years imprisonment.

“Examination of the Petition here in question will reveal that many grounds, and allegations thereof, are in no way appropriate considered with the facts in this case. However, the Court will attempt to relate to all the matters raised.

“Ground 1 of the Petition complains that the defendant was arrested without a warrant and without probable cause. The defendant entered a plea of guilty, after several hours of trial, under a valid indictment returned by the grand jury. Therefore, whether there was ever a warrant or whether one was invalid does not come into issue under these facts where the defendant was tried on an indictment. Toney v. State, 15 Ala.App. 14, 72 So. 508, Wilson v. State, 99 Ala. 194, 13 So. 427, Crow v. State, 49 Ala.App. 155, 269 So.2d 171, Jackson v. State, 45 Ala.App. 621, 235 So.2d 382. In addition thereto, as related above in the facts, defendant was arrested in 1973 on two drug charges which culminated in additional charge of rape and first degree burglary upon which he was convicted and the cause was affirmed by the Supreme Court. At the time it was learned through investigation that defendant may have been connected with the case here under consideration, which occurred in 1971, the defendant was and had been for several months in custody of the Sheriff on the case for which charges were preferred first but which occurred two years after the case here being considered.

“Ground 2 of the Petition alleges that petitioner was denied the right of counsel during police investigation. The only police investigation which occurred was in 1973 in connection with Case No. 4917 which was appealed and affirmed.

“Ground 3 of the Petition alleges that defendant was coerced into signing a confession against himself. So far as is known, no confession was ever signed or made by the defendant relative to the charge presently before this Court, being Case No. 4975. No such statement was introduced at the hearing in this cause, and the District Attorney testified that there was no statement made toward admission by this defendant in this cause. The defendant testified that he signed some kind of paper, he thought, but he was not sure what it was. There was evidence in Case No. 4917 on some motions connected therewith of some kind of a statement made by the defendant relative to that case. If there was such statement, it never found its way into evidence on trial. It is the opinion of this Court that no statement was made by the defendant at any time to any of the officers relative to the case here under consideration.

“Ground 4 of the Petition alleges, in substance, that there was never a positive identification made of him, but identification was a product of over suggestive procedures. It should not be forgotten that the defendant entered a plea of guilty to the charge here in question after full advice of all his rights and what he would be waiving. On the hearing in this cause, the transcript of the trial as far as it went in Case No. 4975, was transcribed by the Court Reporter and offered into evidence. It is true that the prosecutrix did not positively identify this defendant, however, under the facts here in question, the point is not well made and is not applicable. Testimony in the case had not concluded; the State had not rested at the time the defendant entered his plea of guilty.

“Ground 5 of the Petition alleges that he was coerced into signing statements of guilty by his attorney. It is hard to ascertain from the allegation what is meant by said Ground, and still harder to understand from the testimony of the defendant to what he relates. The defendant testified that he was not sure what he signed, but that he signed something. As has been related, evidence shows conclusively that no statement was made of guilt in this cause, and if so, it was never used in evidence. The defendant did relate that it was his understanding that he signed something for his attorney, Mr. Cain, which was taken down by Mr. Cain’s secretary. Apparently, he thought whatever he signed, if he signed anything, must relate to some question of guilt. Mr. Cain, the attorney employed by defendant, was called as a witness by the State of Alabama. Because of a case he had pending in Dale County Court and further because of the fact that a brother of his was seriously ill in a Birmingham hospital at the time of the hearing, his testimony was taken out of order. Mr. Cain testified that he represented the defendant in this cause by employment. He further stated that he was employed by the defendant on appeal in the case for which he received fifty-six years imprisonment, being Case No. 4917. However, he was emphatic that he did not coerce the defendant into doing anything. After the case developed on trial up to the point where a fingerprint expert from the FBI in Washington, D.C. was about to take the stand, as related by Mr. Cain, he and the defendant had a conference at which time the defendant determined that it was best for him to enter a plea of guilty. Mr. Cain said that he joined in the recommendation, because he was of the opinion that the defendant would be in a better position to plead guilty. The petitioner, in his testimony, expressed an opinion that at the time of the trial in this case, he discussed with Mr. Cain about employment to appeal Case No. 4917 to Federal Court (apparently he meant by filing Writ of Habeas Corpus in the Federal Court). He inferred that Mr. Cain told him that he “Ground 5 of the Petition alleges that he was coerced into signing statements of guilty by his attorney. It is hard to ascertain from the allegation what is meant by said Ground, and still harder to understand from the testimony of the defendant to what he relates. The defendant testified that he was not sure what he signed, but that he signed something. As has been related, evidence shows conclusively that no statement was made of guilt in this cause, and if so, it was never used in evidence. The defendant did relate that it was his understanding that he signed something for his attorney, Mr. Cain, which was taken down by Mr. Cain’s secretary. Apparently, he thought whatever he signed, if he signed anything, must relate to some question of guilt. Mr. Cain, the attorney employed by defendant, was called as a witness by the State of Alabama. Because of a case he had pending in Dale County Court and further because of the fact that a brother of his was seriously ill in a Birmingham hospital at the time of the hearing, his testimony was taken out of order. Mr. Cain testified that he represented the defendant in this cause by employment. He further stated that he was employed by the defendant on appeal in the case for which he received fifty-six years imprisonment, being Case No. 4917. However, he was emphatic that he did not coerce the defendant into doing anything. After the case developed on trial up to the point where a fingerprint expert from the FBI in Washington, D.C. was about to take the stand, as related by Mr. Cain, he and the defendant had a conference at which time the defendant determined that it was best for him to enter a plea of guilty. Mr. Cain said that he joined in the recommendation, because he was of the opinion that the defendant would be in a better position to plead guilty. The petitioner, in his testimony, expressed an opinion that at the time of the trial in this case, he discussed with Mr. Cain about employment to appeal Case No. 4917 to Federal Court (apparently he meant by filing Writ of Habeas Corpus in the Federal Court). He inferred that Mr. Cain told him that he

“Ground 7 of the Petition states there was no evidence to connect this petitioner with this crime. The comments of this Court with reference to Ground 4 are applicable to Ground 7 and will be referred to for that purpose.

“Ground 8 alleges ‘that he had a biased and prejudiced jury (all white) over his objection, to pass sentence upon petitioner in violation of petitioner’s Sixth Amendment and Fourteenth Amendment to the United States Constitution.’ Treating first that part of the allegation which deals with ‘over his objection,’ this Court, who tried the ease, knows of no objection made by the defendant with the composition of the jury in writing, orally, or any other way until this Petition was filed. There was no evidence submitted that any juror was biased or prejudiced in the cause. However, be that as it may, as has been pointed out hereinbefore, a jury did not convict this defendant, he entered a plea of guilty to the offense and was sentenced by the Court. As to the allegation that the jury was all white, even if he had been tried and convicted by the jury, such allegation is not sufficient to raise the point of systematic exclusion. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. A defendant is not constitutionally entitled to have members of his race on jury panel which tries his case. Anthony v. State, 47 Ala.App. 722, 261 So.2d 61; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666; Bryant v. State, 49 Ala.App. 359, 272 So.2d 286, cert. denied, 412 U.S. 922,93 S.Ct. 2744, 37 L.Ed.2d 149.

“On due and careful consideration of the evidence before this Court, on each of the Grounds of the Petition, separately and severally, it is the opinion of this Court that no ground of the Petition is well founded. It is further the opinion of this Court that petitioner was denied no right afforded him under the law during the procedure, that he entered a plea of guilty with full knowledge of all his rights, including what he was waiving by said plea, that the plea of guilty was voluntarily made along with and on the advice of capable, experienced and qualified counsel. It is therefore the opinion of this Court that his Petition, and each Ground thereof, should be denied.

“IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED by the Court that the Petition for Writ of Error Coram Nobis by Clarence Tillis, in this cause, be and is denied.

“IT IS FURTHER ORDERED that a copy of this order be forwarded by the Clerk to the defendant at his address shown in file, and to his attorneys of record in this cause, to Attorney General, State of Alabama, to Department of Corrections, State of Alabama, and to the District Attorney.

“The defendant being indigent, any cost accrued in this cause is taxed against the State of Alabama.

“DONE AND ORDERED this the 29th day of November, 1976.

/s/ Eris F. Paul Circuit Judge”

The office of the “writ of error cor-am nobis,” under Alabama law, is to bring to the attention of the Court for correction of an error of fact, one not appearing on the face of the record, unknown to the Court or party affected, and which, if known in time, would have prevented the judgment challenged, and serves as a motion for a new trial on the ground of newly discovered evidence. The writ is not intended to relieve a party from his own negligence, and cannot serve as a substitute for an appeal, nor to enable a defendant to question the merits of the case for which he stands convicted. Smith v. Hixon, D.C., 149 F.Supp. 283; Mathis v. State, 281 Ala. 424, 203 So.2d 442; Thomas v. State, 280 Ala. 109,190 So.2d 542; Butler v. State, 279 Ala. 311, 184 So.2d 823; Groce v. State, 48 Ala. App. 709, 267 So.2d 499.

This case is due to be and is affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Clarence TILLIS.
    SC 2689.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.


text:
    James Ray McDONALD v. STATE.
    6 Div. 935.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.
    Arthur Parker, Parker & Garrett, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon a two-count indictment charging (1) Grand Larceny, and (2) Buying, Receiving, Concealing, etc., a two-door Buick Riviera automobile of the value of sixty-two hundred dollars, the personal property of William Clarence Cage. At arraignment, in the presence of retained counsel, appellant pleaded not guilty. The jury returned a guilty verdict under count 2 of the indictment and the Court sentenced appellant to ten years imprisonment in the penitentiary.

The evidence presented by the State proved the corpus delicti of the crime beyond peradventure. Appellant did not testify but offered testimony in support of his alibi defense.

Mr. Cage testified that on the morning of August 11,1972, he was the owner of a 1972 Buick Riviera automobile and that he parked the car on a downtown street in Birmingham about a block from his place of employment. He got off work about 4:15 p.m. and went to get his car and found it missing. He immediately called the Birmingham Police Department and reported the theft of his automobile. He had planned to go home to Nashville, Tennessee, for the weekend and had some personal items in a travel bag which was locked in the trunk of his car. In this bag he had some shirts, pants, a coat, a pair of white shoes and a shaving kit. He further testified that he had a warranty book from Waller Buick Company in Nashville that was given to him at the time he purchased the car. This warranty was in his name and listed his street address in Nashville and he put this document in the glove compartment of his car. Mr. Cage never saw his car after August 11, 1972.

He stated that the next time he saw his personal effects, including the warranty book and a document identified as his application for annual leave, was at the Home-wood Police Department the following Monday or Tuesday. His shirts, pants, coat, white shoes and shaving kit were given to him by the Homewood Police. His warranty book and his application for annual leave were retained by the officers to be used as evidence in this ease.

Mr. Cage identified the warranty book and his application for annual leave and these were introduced into evidence, over appellant’s objections, as State’s Exhibits No. 1 and No. 3, respectively.

Officer Jerry T. Haynes testified that on August 11, 1972, he was employed by the Homewood Police Department as a motor scout and on that day he responded to a radio call and proceeded to the Social Security Building located on Bagby Drive. As he proceeded to this location he observed a yellow 1966 Chevrolet convertible automobile leaving Bagby Drive with two white males in the car. He made a U-turn on Valley Avenue and started in pursuit of this automobile. This car picked up speed and the officer put on his blue light and siren in an attempt to stop the car. The car finally stopped in the area of a supermarket. The passenger and the driver were ordered to get out of the yellow Chevrolet and both started to put their hands under their shirts. The officer ordered them to put their hands on the roof of the car. Both of the men were slow to comply and the officer shot one time in the air and the man on the passenger’s side started running from the scene. The driver finally put his hands on top of the car but reached his hand toward his shirt and again and the officer fired his pistol in the air again. He made the driver put his hands on the trunk of the car and spread his legs. The officer then gave chase to the passenger and saw him go down an embankment and he ordered him to halt. He did not obey the officer and the officer fired a third time but the man made his escape and entered a store. He was subsequently taken into custody with the help of a civilian. When the officer returned to the car where he left the driver he discovered that he had departed the area. This officer identified appellant as the driver of the yellow Chevrolet. He further stated that he knew or had seen both occupants of the Chevrolet previously and he identified them from photographs in a law enforcement bulletin.

Officer James K. Atkinson of the Home-wood Police Department testified that while responding to a radio call on August 11,1972, around 12:15 p.m., he saw a yellow automobile speeding from the area of the call. He stated the car was occupied by two white males and he recognized appellant as the driver of the car.

The yellow Chevrolet was towed to the Homewood Police Department and a search warrant was obtained to search his car. Pursuant to the search the items of clothing identified by Mr. Cage as belonging to him were found along with the automobile warranty issued to Mr. Cage at the time he bought the 1972 Buick Riviera from Waller Buick Company in Nashville and the annual leave application of Mr. Cage. The last two documents were introduced into evidence over appellant’s objections.

Police Sergeant B. E. Edmondson of the Homewood Police Department also identified the items of clothing belonging to Mr. Cage, the warranty book and the annual leave document that were removed from the yellow Chevrolet pursuant to the search warrant. He further testified that the yellow Chevrolet was registered to one Sylvia Wells and this car was released to some lawyer representing the Wells.

We see no purpose in setting out the testimony in support of appellant’s alibi. It was peculiarly within the province of the jury to accept or reject the alibi testimony. The jury did not believe the alibi testimony and that is that. Clay v. State, 52 Ala.App. 272, 291 So.2d 364; Simms v. State, 56 Ala.App. 156, 320 So.2d 89.

This is a strong case of circumstantial evidence. Circumstantial evidence is entitled to the same weight that direct evidence is entitled to provided it points to the guilt of the accused. In cases where the State relies to a great extent on circumstantial evidence for a conviction very wide latitude is allowed in making proof. Cline v. State, 25 Ala.App. 433, 148 So. 172; Willis v. State, 37 Ala.App. 185, 66 So.2d 753; Sumeral v. State, 39 Ala.App. 638,106 So.2d 270.

The web of circumstances which enshrouds appellant includes the following: He was caught fleeing from an attempted car theft. In the getaway car were items of personal property that had been removed from the Buick automobile that had been stolen and which belonged to Mr. Cage. These items included pants, shirts, coat, white shoes, warranty book for a 1972 Buick Riviera car recently purchased from Waller Buick Motor Company in Nashville, and an annual leave application in the name of Mr. Cage. The only logical conclusion that can be drawn in this case is that appellant was certainly connected with the theft of the Buick or he had bought, received, concealed, or aided in buying, receiving or concealing this Buick car.

Where there is a reasonable inference to prove the existence of the corpus delicti, the Court should submit to the jury for its consideration the question of the sufficiency and weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

The possession of the items of personal property belonging to the owner of the stolen Buick which were found in the car in which appellant was fleeing made them evidence of the commission of a crime, the weight of which was for the jury under count 2 of the indictment. Hodge v. State, 18 Ala.App. 361, 92 So. 79.

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

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

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    In re James Ray McDONALD v. STATE of Alabama. Ex parte James Ray McDonald.
    SC 2706.
    Supreme Court of Alabama.
    Aug. 26, 1977.

      Arthur Parker of Parker & Garrett, Birmingham, for petitioner.
   MADDOX, Justice.

Writ denied. By denying the writ, we point out that writs of certiorari are frequently denied without any consideration of the merits. Haden v. Olan Mills, Inc., 273 Ala. 129, 135 So.2d 388 (1961). A denial of certiorari should never be considered as an expression by the reviewing court on the merits of the controversy. See Hamilton Brown Shoe Co. v. Wolf Brothers, 240 U.S. 251, 36 S.Ct. 269, 60 L.Ed. 629 (1916). Our denial of the writ should not be understood as approving or disapproving the language used, or the statements of law contained in the opinion of the Court of Criminal Appeals. See Cooper v. State, 287 Ala. 728, 252 So.2d 108 (1971).

WRIT DENIED.

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


author: DeCARLO, Judge.

text:
    William Melvin HERRIN v. STATE.
    1 Div. 627.
    Court of Criminal Appeals of Alabama.
    June 7, 1977.
    Rehearing Denied June 28, 1977.

      Wilson M. Hawkins, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

William Melvin Herrin was convicted under an indictment charging possession of marijuana, not for personal use. After a jury trial he was found guilty and sentenced to three years and six months in the penitentiary. It was from this judgment that he appeals.

Prior to the trial, the court held a hearing outside the presence of the jury on a motion to suppress.

The evidence on behalf of the State tended to show that John Reid, an officer in the Alabama State Troopers for approximately five years, on September 25, 1974, was alone and patrolling Interstate 10, in Mobile County. He received a dispatch from the State radio which according to Reid, stated: “. . . be on the look-out for an old model Chevrolet occupied by three or more white males, possibly in connection with a holdup in Mississippi of a drug store.” According to Reid, the radio dispatch said that the people wanted were white males with long hair and that the robbery had occurred in Pascagoula, Mississippi. He said the dispatch described the car as approximately a 1962 or 1963 blue Chevrolet. It was believed to have a Mississippi tag. However, Reid said that he did not remember whether the report had given the tag number, but stated the dispatcher said the car was either blue or tan.

Some minutes after receiving the dispatch, Reid saw a 1965 Chevrolet that was green with a brown front hood and fender. He followed the car and after getting behind the vehicle, he radioed the dispatcher. Reid thought he gave the dispatcher the tag number at that time but did not remember asking, “if it was a stolen tag.” He did tell the dispatcher that he had stopped the car which could possibly be connected with an armed robbery. After Reid turned his blue lights on, the car stopped just west of the Theodore-Dawes exist of Interstate 10. Reid said the car had a South Carolina license plate on the back.

After stopping the car, Reid asked the driver to come to his patrol car. Reid said the driver had either a South Carolina or Louisiana driver’s license. After inquiring about the car’s ownership, Reid called to the others, over his car’s loudspeaker, to get out of the car. He then searched the occupants of the car but did not find anything. Reid said he then looked in the window and saw a small plastic bag of “plant material” on the right of the front seat, nearest the place where the appellant was sitting. He said he was outside the vehicle at the time and that the bag was in plain view.

Reid explained that he was suspicious of the people because of the description in the dispatch and the car’s license plate being attached by what appeared to be a string looped over it. According to Reid, “it would take approximately five seconds to put one (license plate) on like that. It was hanging from the automobile.” Further, he said that the people fit the description that he received and that he was going to search the vehicle for a weapon. Reid acknowledged that he was cautious because it was still possible that members of the group could have a weapon. Reid stated that his search was a “fast shake-down,” but that he had “help coming.”

When Reid searched the car, he found in the right front side, near the passenger’s seat, an “AWOL” bag. He opened the bag and found at the bottom of it, underneath some clothes, a large plastic bag containing “plant material.” Some letters addressed to the appellant were also in the bag. When questioned about his reason for searching the car, Reid said: “I was going to look for a weapon. . .

At that point, a State investigator was called and the occupants of the car were taken into custody.

At the completion of Officer Reid’s testimony, the defense called Sgt. Ronald Bell, who was the post commander and the custodian of the records of the Highway Patrol. He showed the judge the radio log which contained all the communications coming into and leaving the radio dispatcher’s office. Bell testified that the dispatcher had received a call, number 134, and it was sent out to all units about 4:45 P.M., September 25, 1974. It indicated that it was in reference to a robbery and a Mississippi tag, number 9E8-CEY. He said that the dispatch did not indicate whether the subjects in the car were white or black but explained that the log did not purport to be a verbatim report of what the dispatcher had said. Bell admitted the log contained no reference to the color of the vehicle.

On further questioning, Bell said the information appearing on the log depended mainly on the operator. He explained that in cases of alleged robbery the pertinent information appearing on the log should show, “the kind of vehicle, the tag number, the location ,. . number of people in the car involved in the robbery, race, clothing or anything.”

Upon the completion of Bell’s testimony during the hearing, the State was asked to produce a picture depicting the rear of the 1965 Chevrolet in which the appellant and the others were riding. Officer Reid was then recalled and asked to identify the picture and to point out where the string holding the license plate was in the picture. He explained that it was either tied by wire or string behind the gas cap. Reid acknowledged that before he stopped the automobile he did not see the wire, but said: “I could tell it was loosely hung.” Further, Reid stated that he could not tell what was holding the tag on until he had stopped the car.

At the end of Reid’s testimony concerning the tag, the court announced it would reverse its ruling on the motion to suppress until the following morning. At that time, the attorney for the defendant made a motion to suppress the statement given by the defendant and the State called Alvin Abbott.

Abbott was employed in the Bureau of Investigation of the Alabama Department of Public Safety. He testified that he saw the appellant sometime between 5:30 and 6:00 P.M. on September 25, 1974, in the lobby of the State Trooper’s office. At that time he read the “Miranda” rights to the appellant. He stated that the rights were read to the appellant a second time and that the appellant read them just prior to making a statement. Abbott said that he asked the appellant if he wished to talk and the appellant said, “ . . . he didn’t have anything to hide.”

According to Abbott, he asked the appellant if he wanted to write the statement and the appellant said that he would prefer that the officer write it. Abbott said that the statement was made in the secretary’s office, but that before it was taken he informed the appellant of his rights the second time. The officer read the appellant a document containing the rights and told him before he could talk to him, he had to sign it. After reading each right to the appellant Abbott received no response until he got to the end of the form. He also asked the appellant to read the form and the appellant signed it.

No further evidence was presented after Officer Abbott’s testimony and the motion to suppress the statement was denied.

The next morning, outside the presence of the jury, the court denied the motion to suppress the evidence which had been previously heard, and the jury returned to the courtroom. At that point the trial resumed and the State called Officer Reid.

Reid’s testimony was substantially the same as that he had given during the suppression hearing. However, he did say during his examination in chief that he had seen marijuana many times and described how it looked and smelled. He testified that in his opinion the substance found in the car was marijuana. Reid said that the bag containing the “plant material” was not in the middle of the front seat but closer to the passenger’s side. During the trial he identified a picture depicting the “AWOL” bag which he said contained four large bags of “plant material” along with letters and a diary belonging to the appellant. Reid said he placed the bag containing these items in the trunk of his car and carried them to the State Trooper’s office where he turned them over to Sgt. Abbott.

Sgt. Alvin Abbott of the Department of Public Safety stated that Officer Reid had turned over to him a green bag with yellow letters containing clothing and a plastic bag full of “plant material.” Abbott turned the plastic bags containing the “plant material” over to Jim Small, a State toxicologist.

Abbott said that he had advised the appellant of his “Miranda ” rights on two occasions and that the appellant had signed a “waiver of counsel document.” He after-wards took a statement from the appellant which the appellant signed and verified as true. Abbott identified the waiver of counsel document and the statement given to him by the appellant, and they were admitted into evidence.

James L. Small, a toxicologist for the State of Alabama, testified that he had on hundreds of occasions tested substances thought to be marijuana. During the trial he identified a box containing material that was given to him on September 26,1974, by Sgt. Abbott. He said he identified the material as marijuana after making certain tests. Small stated there was a total of three and one-quarter pounds of marijuana, and that it was a plant coming from the genus cannabis sativa L. and containing a group of substances called tetrahydrocanni-binols.

I

It is contended that the stopping of the car occupied by the appellant and his companions was without probable cause and in violation of his Fourth Amendment Rights against unreasonable searches and seizures. The appellant maintained that the variance between the description broadcast and the description of the automobile stopped was fatal to the State’s case.

The United States Supreme Court, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, recognized the “investigative stop concept.” The court in Terry v. Ohio, acknowledged that the government’s interest in effective crime prevention and detection justified the recognition that:

“ . . .a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.”

The court stated this was a legitimate investigative function.

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, the court said that:

“ . . . The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in the light of the facts known to the officer at the time.” [Citations omitted.]

In Alabama the investigative stop concept was adopted in the following legislation, T. 15, §§ 118(1) and 118(2), Code of Alabama 1940, Recompiled 1958, 1973 Cum. Supp. to Vol. Five, which read:

“§ 118(1). Authority to stop and question. —A sheriff, or other officer acting as sheriff, or his deputy, or any constable, acting within their respective counties, or any marshal, deputy marshal, or policeman of any incorporated city or town, within the limits of the county or any highway patrolman or state trooper may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense, and may demand of him his name, address and an explanation of his actions.
“§ 118(2). Authority to search for weapons. — When a sheriff, or other officer acting as sheriff, or his deputy, or any constable, acting within their respective counties, or any marshal, deputy marshal, or policeman of any incorporated city or town, within the limits of the county, or any highway patrolman or state trooper has stopped a person for questioning pursuant to this chapter and reasonably suspects that he is in danger of life or limbs, he may search such person for a dangerous weapon. If such officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”

In applying these principles to the present case, we find that’ Officer Reid acted justifiably in responding to the radio dispatch. Within some minutes after receiving the information concerning the alleged robbery, Reid saw an early model Chevrolet fitting the description of the car in the radio bulletin and occupied by four white males, three with long hair and one with shorter hair. Subsequently, the car was stopped on Interstate 10, just west of the Theodore-Dawes exit in Mobile County.

Based on the information in the radio bulletin and due to the proximity of the area where the car was stopped to Pasca-goula, Mississippi, the officer in this case had a reasonable basis upon which to stop the car.

We do not believe it was material that the Chevrolet stopped was a 1965 Chevrolet, rather than a 1962 or 1963 Chevrolet or green with a brown hood and fender, rather than blue. Further, that it had a South Carolina license plate rather than a Mississippi license is not material, due to the manner in which it appeared to be attached. A possibility of error in observation or transmission is sufficient to prevent us from requiring the exactitude urged by the appellant.

The appellant in support of his contention has relied on Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306. In that case, the Supreme Court of the United States declared that the police were entitled to act on the strength of the radio bulletin and that officers called upon to aid fellow officers in other states are entitled to assume that the officer requesting aid had the requisite information to support an independent assessment of probable cause. However, the Supreme Court said that where the contrary appears and the arrest was illegal, it could not be insulated from challenge because different officers made the arrest. Further, the probable cause for the arrest cannot be maintained on the basis of the communication to the arresting officer alone, if the warrant is later shown to be invalid. In Whiteley v. Warden, Wyoming State Penitentiary, the primary illegality arose from the fact that the warrant was based on a sheriff’s conclusory affidavit.

No assertion was made at the trial in the case before us that the facts supporting the dispatch were uncorroborated, but merely that it did not coincide with the facts confronting the officer.

The appellant also complains that the search of the automobile went beyond the scope of a reasonable search. He maintains the search went far beyond his or his companions persons and the area from which they might have obtained either a weapon or something that could have been used as evidence against them. Counsel argues that under these circumstances, there can be no constitutional justification in the absence of a search warrant for extending this search beyond the persons of the occupants of the car.

The record indicates, Officer Reid was alone at the time he confronted the appellant and the other occupants of the automobile. Reid said that he had made a “fast shakedown” at the time he searched the car’s occupants, and that before stopping the automobile he had notified the dispatcher, and requested assistance. He testified that even though he had quickly searched the car’s occupants, his subsequent search of the automobile was for weapons.

In the light of the facts known to Officer Reid, we think that he had the right and the duty to make a prompt investigation, which required as a matter of practical necessity that he stop the car and question its occupants. The stopping and questioning was not an arrest but was a reasonable course of action in view of the radio dispatch and the circumstances confronting Reid at the time. Under these circumstances it was also reasonable for the officer to search the car for weapons. Bassett v. State, 290 Ala. 259, 275 So.2d 720. See: Devaney v. State, 55 Ala.App. 408, 316 So.2d 239.

II

The appellant complains that the plain view doctrine will not justify the seizure of the marijuana seen on the front seat of the automobile “ . . . where the incriminating nature of the object is not apparent from the plain view of the object.” He argues that the application of the plain view doctrine is precluded in the instant case because the record of the suppression hearing “ . . . provides an inadequate basis for determining that Trooper Reid knew or had reasonable belief to know that the substance he saw was marijuana.”

Having decided that the initial confrontation was valid, and that the weapons search extended to the car, we conclude that the seizure of the marijuana found in plain view on the seat of the automobile was also valid.

The plain view doctrine is one of the delineated exceptions to the warrant requirement of the Fourth Amendment. It permits the seizure of items without a warrant if certain basic requirements are met. The three basic standards that must be complied with in order for a seizure to be judged permissible under the plain view doctrine were laid down in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. First, the doctrine requires that there be prior justification for an in-trusión. That this justification is present m this case should be clear from the preceding portion of this opinion. Second, the police officer must come across the evidence seized inadvertently. The facts adduced at the suppression hearing indicate that Officer Reid, pursuant to a radio bulletin, stopped the vehicle and after peering through the window, saw the package of marijuana. The third prong óf the plain view doctrine requires that the objects discovered must be immediately recognized as evidence of wrong doing. It is not necessary that the recognition of the object as evidence be made beyond a reasonable doubt but only that the recognition satisfy a probable cause requirement. Shipman v. State, 291 Ala. 484, 282 So.2d 700.

In this case, the State Trooper had reason to believe that he found something which should be investigated. Reid testified that when he looked through the car window he saw a package of “plant material,” but went on to say that his concern at that point was to determine if there were any weapons in the car. Although Reid was not asked whether he knew the material was marijuana, the subsequent arrest for possession of marijuana suggests to us that he recognized the object he saw in plain view. Further, Officer Reid was a State Trooper with approximately five years experience and it is reasonable to infer that it was immediately apparent to him that what he observed was marijuana.

To say that Officer Reid did not recognize this substance as contraband defies reality. In this day and time there is a greater awareness of marijuana because not only of the many articles printed concerning this material, but information disseminated over the radio and television. The general public is more aware of marijuana than any other prohibited substance and its availability and use are widespread. Arrests for possession of marijuana are daily occurrences in our State. In our judgment, the type of packaging the marijuana was in, its location and the appearance of the “plant material” resulted in its immediate recognition.

In a recent decision, the North Carolina Court of Appeals has held that the plain view doctrine justified the seizure of pill bottles containing capsules, found on the dash-board of an automobile. It held this, even though, it was not determined until after later tests that the pills contained, not the medication described on the prescription labels, but illegal drugs. State v. Reid, 23 N.C.App. 194, 208 S.E.2d 699. The North Carolina court said:

“ . . . Having observed vials of pills and capsules in plain view on the dashboard of the defendant’s vehicle, which vials they reasonably suspected contained controlled substances, the officers here could reasonably conclude the vehicle contained other contraband which justified a complete search of the vehicle.” [Emphasis added].

Due to the similarity of the factual situation in State v. Reid, and the one in the case at bar, we believe that an application of its reasoning is warranted.

Under the facts of this case we believe it is reasonable to conclude that what Officer Reid saw in plain view was immediately recognized as contraband by him. Compare: Daniels v. State, 290 Ala. 316, 276 So.2d 441.

Ill

Under Coolidge v. New Hampshire, supra, once it became immediately apparent to Officer Reid that he had evidence before him of an incriminating nature, the extension of the original search to include a search of the “AWOL” bag was legitimate. Further, it was reasonable for Reid to believe that a weapon could have been hidden in the bag. Therefore the seizure of the marijuana in the “AWOL” bag was constitutionally valid.

We have searched the record and finding no error we affirm.

AFFIRMED.

All the Judges concur.

      . We note that this area is not too distant from Pascagoula, Mississippi and the Alabama-Mississippi border. Also Interstate 10 is a highway between Mississippi and Alabama.


text:
    Ex parte William Melvin HERRIN.
    SC 2700.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   BEATTY, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.


text:
    James "Tex" JOHNSON v. STATE.
    8 Div. 896.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.
    Harvey B. Morris, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and James S. Ward, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of buying, receiving, concealing or aiding in concealing a 1975 Ford truck, knowing that it had been stolen or having reasonable grounds for believing that it had been stolen, and not having intent to restore it to the owner. Code of Alabama, Recomp. 1958, T. 14, Section 338. He was sentenced to six years imprisonment, within the limits prescribed by T. 14, Section 331.

Two witnesses, Anthony Pearsall and Virgil Johnson, who admitted that they had been engaged in the business of stealing automobiles, had been convicted thereof and were under sentence therefor by a United States District Court, testified positively that they conspired with defendant to steal the truck; they had another person to steal it, who did so and brought it to Virgil Johnson’s residence; Virgil showed the defendant the truck. According to Virgil Johnson, the understanding between him and defendant was that it would be accepted by defendant as final payment of a debt by Virgil to defendant, and in addition Virgil was to receive a 1973 truck. While the truck was at Virgil’s house for three or four days, he made changes in the truck; it was a red truck but was painted partly white by Virgil; the identification plate on the door was changed and the frame number was taken off; special wheels were put on the truck that came off a ’73 truck of defendant.

Defendant testified that he bought the truck from a man by the name of John Phillips, that a check for two thousand dollars was given to Phillips in payment and defendant received from Phillips a bill of sale to the truck. The cancelled check was introduced in evidence. Defendant denied that he knew the truck was stolen. He admitted that he knew about the alterations made on the truck.

According to the testimony of a Ford dealer in Albertville, the truck was stolen from his place of business on January 29, 1975.

According to the testimony of Dale Johnson, a special agent with the FBI, he located the truck at the residence of defendant on February 13, 1975. The changes mentioned above had been made at that time. Defendant showed Dale Johnson a bill of sale and a tag transfer record indicating that defendant had purchased the truck from one John Phillips. Efforts to locate John Phillips were unsuccessful.

Appellant questions the sufficiency of the evidence to support a conviction on the asserted ground that the evidence of Anthony Pearsall and Virgil Johnson was uncorroborated. We disagree.

The possibility of defendant’s guilt is not to be gainsaid, but there was substantial evidence, in addition to the testimony of accomplices, that he was guilty of larceny or its equivalent, buying or receiving stolen property knowing it to have been stolen. The reasonableness of defendant’s explanation concerning his possession was a question for the jury. Stanley v. State, 46 Ala.App. 542, 245 So.2d 827, cert. denied, 286 Ala. 738, 245 So.2d 828; Haynes v. State, 40 Ala.App. 106, 109 So.2d 738; Milligan v. State, 45 Ala.App. 112, 226 So.2d 172; Hoggle v. State, 36 Ala.App. 703, 63 So.2d 289.

We also disagree with appellant’s contention that the trial court was in error in admitting in evidence testimony of the receipt or purchase by defendant of another stolen motor vehicle. He concedes that evidence of his receipt of another stolen motor vehicle is admissible if the other vehicle was received “from the same thief,” but otherwise it is not. He relies upon Sledge v. State, 40 Ala.App. 671, 122 So.2d 165 (1960); and Stephens v. State, 53 Ala.App. 371, 300 So.2d 414 (1974).

In Sledge and in Stephens, it was held that in a prosecution for buying stolen property, a prior purchase by defendant of stolen property is not admissible in evidence unless the thief is the same in both transactions. The facts in those cases, however, are distinguishable from the facts in the case now before us. In Sledge, as to the evidence held inadmissible, the thieves who stole .were the thieves who sold such property to defendant. This is also true as to the property involved in the case before us. However, in Sledge, the one who stole and sold property as to which the evidence was held to be inadmissible was not the person who stole and sold to defendant the property made the basis for the charge for which he was being tried; nor was there any participation by the thieves of the property as to which Sledge was being tried, in the theft of the property as to which the evidence was held inadmissible.

In Stephens, supra, the purchases by defendant in the ease being tried were from entirely different parties from those in which the evidence was held inadmissible. There was a common broker as to the two transactions, but there is nothing to indicate in the opinion that the common broker was particeps eriminis with either the thieves or with defendant.

If the testimony of defendant that he bought the 1975 Ford truck from John Phillips is accepted as true, we have a basis for the application of the principle stated in Sledge and Stephens, but the jury obviously did not accept the defendant’s testimony in this respect. According to the State’s evidence, Pearsall and Virgil Johnson engineered the theft of the 1975 Ford truck and they physically participated in the theft of the 1973 truck. As to the one they were accessories; as to the other they were principals; as to both they were thieves — the same thieves, along with another thief or other thieves, of both trucks.

Written charges 6 and 7 requested by defendant were refused. Charge 6 is as follows:

“Members of the Jury, if the evidence convinces you that Tony Pearsall is a man of bad character, and unworthy of belief, then you may disregard his evidence altogether.”

Charge 7 is identical to Charge 6 except for the substitution of “Virgil Butch Johnson” for “Tony Pearsall.”

Notwithstanding the contention of appel-lee to the contrary, we are persuaded that neither charge was covered in substance by the court’s oral charge. Nor was any other written charge given to the same effect.

Except for the difference in the name of the State’s witness, each of the charges in this case is a replica of the charge held good in Prater v. State, 107 Ala. 26, 18 So. 238. The charge has been recently considered by the Supreme Court and upheld as a correct statement of the law which should have been given. Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973). In Kennedy, a reversal was saved on the ground that it could not be shown that the error “was probably injurious.” The Supreme Court based its conclusion in this respect on the strong direct, as well as circumstantial, evidence, undenied by defendant, of defendant’s guilt of the charge of robbery. It concluded:

“. . . We feel that for the defendant to have been prejudiced by such error, the jury would have had to have disregarded every shred of the totally uncon-tradicted evidence presented by the State. Therefore, we hold the trial court’s refusal to give defendant’s requested charges 3, 4, 9 and 13 constituted harmless error and this case will not be reversed on their account.”

If we had such a case here, we, of course, would follow what the Supreme Court said there. We have held herein that the circumstantial evidence is sufficient to corroborate the testimony of defendant’s accomplices, but we cannot hold that it was so strong that defendant was not prejudiced by the court’s erroneous refusal to give the charges requested as to the two witnesses. Their character and background were such, according to the evidence, as to permit the jury, within reason, to reject their testimony, without which the jury could have, within reason, found that the evidence was insufficient to prove defendant’s guilt beyond a reasonable doubt.

For the error in refusing charges 6 and 7, the judgment must be reversed.

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

REVERSED AND REMANDED.

All the Judges concur.


author: JONES, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2763.
    Supreme Court of Alabama.
    Sept. 9, 1977.
   JONES, Justice.

Writ Denied.

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


text:
    Arthur Webster BREEN v. STATE.
    6 Div. 347.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.

      Robert L. Shields, III, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment in the penitentiary. He was represented by court-appointed counsel and at arraignment pleaded not guilty. After conviction he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent the appellant on this appeal.

Omitting the formal parts the indictment charged:

“The Grand Jury of said County charge that, before the finding of this indictment, Arthur Webster Breen, whose name is to the Grand Jury otherwise unknown, unlawfully, and with malice aforethought, killed Mary Carolyn Epper-son by choking her with his hands, or by means otherwise unknown to the Grand Jury . . .”

The evidence presented by the State is wholly circumstantial. In the light of appellant’s motion to exclude on the ground the State failed to make out a prima facie case we will set forth a recital of the evidence.

The deceased, Mary Carolyn Epperson, was a cashier at the Western Hills Supermarket located near the Eastwood Mall in Birmingham. A few minutes before 5 o’clock on the morning of Saturday, September 20, 1975, Berlon Sullivan, the night manager of this supermarket, noticed Mrs. Epperson talking to a white male near the front door of the store. Mr. Sullivan was busy in the office at this time and his attention was diverted to the business at hand. A few moments later he looked in that direction and noticed that Mrs. Epper-son and the man with whom she had been talking were gone. Before this occasion, every time Mrs. Epperson left her station, she told Mr. Sullivan where she was going. An immediate search of the store was conducted and Mrs. Epperson was missing. A check of the cash register used by Mrs. Epperson revealed that all the currency was gone. Mr. Sullivan stated that he was positive the man with Mrs. Epperson was white as he was wearing a short sleeved or sleeveless shirt. Mr. Sullivan did not see the man’s face and could not identify him. He stated that on the morning Mrs. Epperson disappeared she was wearing a black skirt, white blouse and orange colored jacket.

Approximately one month later, October 18, 1975, a young man, Richard Todd Murphy, and a companion were hunting in the community of Rosehill off Brownlee Road in a densely wooded area. Murphy discovered a badly decomposed body. He immediately notified the authorities and officers from the Birmingham Police Department, Jefferson County Sheriff’s Department, and Mr. Jack Parker from the Jefferson County Coroner’s Office went to the scene where the body was found. Parker described the scene and the body. He stated the body was a badly decomposed female and she was dressed in a black skirt, black panties, bra, slip and a white long sleeved shirt. He further testified the legs were more or less spread eagle and the head was disconnected from the torso. The feet were missing from the ankles and the wrists of both hands were bound with several strips of cloth in the manner and fashion of handcuffs.

Several photographs were taken of the scene and the dead body. A proper predicate was laid and these photographs were introduced into evidence. The photographs of the body were objected to on the ground that they were gruesome and would tend to inflame and prejudice the jury. The objection was overruled and the photographs were received in evidence.

Dr. Henry Santani, a pathologist, conducted an autopsy on the body of the deceased on October 19, 1975. He stated that he had performed between four and five thousand autopsies during his career. Dr. Santani gave a detailed account of his finding during the autopsy and noted particularly that the right and left wrists were tied behind the deceased’s back with some grayish white cloth. He testified that because of the advanced state of decomposition of the body, it was difficult to pinpoint the cause of death, but because there was more rapid decomposition around the neck this was a condition consistent with hanging or strangulation. He said that strangulation, more often than not, will break some of the superficial bones in the neck. One of these bones was not found — it has a technical name of hyoid. He further stated that the head had been disarticulated from the body and the right shoulder had been disar-ticulated from the joint. He gave an opinion that the body had been in the woods from four to six weeks prior to the autopsy.

On cross-examination Dr. Santani said that any definite statement as to the cause of death would be conjecture.

Dr. Santani stated that the cloth strips that were found on the wrists of the deceased were given to Officer Crocker who was an Evidence Technician with the Birmingham Police Department.

Sergeant William Thomas Gaut, who was employed by the Police Department of the City of Birmingham — Homicide Division, testified that he along with several other officers went to the scene where the body was discovered. In the course of his investigation he found a Timex watch with a blue crystal face and a silver ring commonly known as a spoon ring. These items were turned over to Police Officer R. K. Crocker who at the time was an Evidence Technician with the Police Department. The watch and ring were subsequently submitted to Mr. Robert Epperson, the ex-husband of the deceased, who identified these items as belonging to Mary Carolyn Epper-son.

Sergeant Gaut further testified that he and Officer Barefield went to the DeKalb County Jail to interview the appellant who was in custody on a robbery charge in De-Kalb, Georgia. They had been informed by the Georgia officials that appellant had told two inmates at the same jail that he had committed the murder in question. The two inmates Stanley Dyen and Joseph Ray were interviewed by Officer Gaut, who took signed statements from both.

Sergeant Gaut interviewed appellant in the interrogation room at the DeKalb County Police Department. Appellant was told by Sergeant Gaut that he was an officer with the Birmingham Police Department and that he was investigating the death of Mary Carolyn Epperson. He advised appellant of his constitutional rights and appellant replied that he knew his rights. Officer Gaut testified that he did not threaten appellant, and did not make any promises to him, and held out no hope of reward or other inducements to get appellant to make a statement to him.

From the record:

“I told Mr. Breen that I wished to question him in particular about a female who had disappeared in Birmingham and whose body had subsequently been found. And I asked him if he was in Birmingham at the time that the woman disappeared. He stated to me that he was. I believe I asked him, generally, if he had anything to do with that disappearance or knew or had any information about the disappearance. He stated to me that at that time that he did not. I explained to him that I was questioning him in reference to a possible charge of murder in the first degree and he interrupted and asked me, what about my wife, I believe was the words. I replied to him, well, what about your wife. And he said, are you going to charge my wife. And I said, well, at this point I can’t answer that question, I don’t know. The investigation is pursuing now and I don’t know what, if any, charges will be brought against your wife. And he said, if you will guarantee immunity against prosecution for my wife in writing then I will tell you about it.
“Q. About it. Was he referring to this conversation that you’re having about the disappearance of the woman?
“A. Yes. The conversation was in regard to the ultimate disappearance and finding the body of Mary Carolyn Epper-son.
“MR. SHIELDS: Your Honor, excuse me. We object again, not on the same grounds, but we think unless there’s going to be some corroboration of what the Sergeant says that this testimony should be deemed inadmissible.
“THE COURT: Overrule.
“THE WITNESS: As I said, he stated to me that in effect, I can’t recall his exact words, but he said, if you will guarantee me immunity against prosecution of my wife in writing then I will tell you about it. And I replied to him that I could not guarantee immunity or prosecution not only for his wife or anybody else, that I didn’t have the power to do that. He stated at that time that he did not want to make a statement then. He said he didn’t want to make a further statement to me at all and the interview kind of ended at that point.
“Q. And you ceased to question him at that time?
“A. Yes, sir.”

While the Birmingham officers were in DeKalb County, Georgia, in furtherance of the investigation of the death of Mrs. Ep-person Sergeant John Barefield examined a jacket which was seized from appellant at the time he was arrested by the Georgia officials. From this jacket Sergeant Bare-field removed two hair samples which were stuck to the sleeve. The hair was placed in a sealed envelope and turned over to Sergeant Gaut. These hair samples were later turned over to Robert Johnson, Supervisor of Scientific Investigation with the Birmingham Police Department.

Officer Richard Keith Crocker testified that on October 18, 1975, he was employed as an Evidence Technician with the Birmingham Police Department and he went to the scene where the body of Mrs. Epper-son was found with Mr. Robert Johnson; that he and Robert Johnson worked as a team during this investigation. He further testified that he collected separated portions of hair 18 inches from the left shoulder of the body and collected hair from under the skull. He stated that he noticed several ligature type bindings around the wrists, about three sets. He said the hair and the ligature bindings were carried by him to the crime laboratory and delivered to Robert Johnson.

Mr. George Averitt testified that he was manager of the Siesta Motel in Birmingham in the summer of 1975. He stated that a man registered at the motel in July, 1975, under the name James Kelley. He was asked if the man who registered in the Siesta Motel in July of 1975 as James Kelley was in the courtroom and he replied, “Yes, sir.” He was then asked to point him out to the jury and he said, “yellow shirt” (indicating). The District Attorney then said, “Let the record indicate that the witness has pointed to the defendant Arthur Webster Breen.”

Mr. Averitt further testified that appellant and his wife stayed at the motel from July until September 21, 1975. He stated that he saw him twice on September 21, 1975. The first time he saw him he paid for two days, the 21st and the 22nd. He said that about two hours later appellant came back and got a refund for the two days, saying, “He had to check out. He just said he had to leave.”

Mr. Averitt was then asked what type of employment appellant (Kelley) was engaged in during the time he was a guest at the motel and he stated that appellant told him he was on vacation. He further testified that appellant was driving a blue Cá-maro, either a ’74 or ’75 model but he was not sure about the model. Mr. Averitt stated that appellant and his wife stayed in an apartment at the motel that costs $106.00 per week or $350.00 a month.

Mr. Averitt further said that the sheets used by the motel had hems stitched in green thread. While on the witness stand he was shown the wrist binding found on the victim and he stated it appeared similar to the hem of the sheets used at the Siesta Motel. The bindings from the wrists of the deceased were marked State’s Exhibit No. 7, and a sheet borrowed from the motel was marked State’s Exhibit No. 9. More will be said about these exhibits later in this opinion.

Officer Jerry D. Macumber testified that he lived in DeKalb County, Georgia, and was employed as an Investigator by the Police Department of that county, and was assigned to the Homicide Division. He said that he arrested Arthur Webster Breen on October 6, 1975, at 1930 Flatshores Road, Apartment M-l, and that at the time of the arrest he seized a jacket belonging to Arthur Breen. He brought the jacket with him to the trial of appellant and it was marked for identification as State’s Exhibit No. 8. This officer further testified that this jacket had been in his custody and under his control since he arrested Arthur Webster Breen. He stated the jacket had been maintained in a box which was sealed with his signature and it was kept in a vault. He stated that he permitted the Birmingham officers to inspect the jacket when they came to DeKalb County.

Mr. Robert B. Johnson testified he was presently employed as the Supervisor of Scientific Investigation with the Birmingham Police Department and had been so employed since August 20, 1975. He said that prior to that date he was an Assistant State Toxicologist for 20 years. He stated his education and background experience in the area of hair identification.

In addition to receiving hair samples removed from appellant’s jacket by Officer John Barefield and the hair samples from the skull of the deceased, plus some separated hair near the body, Johnson also received the cloth strips used as wrist binders on the victim, together with a sheet taken from the Siesta Motel near the Eastwood Mall. Johnson made a microscopic examination and comparison of the hair from the victim with the two hairs taken from the sleeve of appellant’s jacket. From his examination and comparison Johnson concluded that the hairs were similar. He further testified that there was a great deal of variation in hair diameter, color, length and texture on a single head and for this reason hair could not be specifically identified as belonging to a particular individual. He concluded by saying that hair identification could not be placed in the same category as fingerprints, but the hair, samples examined by him were of a similar nature.

This witness was shown State’s Exhibits No. 7 and No. 9 referred to and stated:

“Q. All right, sir. Now, with these bindings that are marked as State’s Exhibit 7 and this sheet marked State’s Exhibit 9, did you make a comparison or did you make a study of this sheet and these bindings together?
“A. Yes,-sir, I did.
“Q. Would you tell the ladies and gentlemen of the jury what you did, how you examined them and what your conclusions or your opinion was, please, sir?
“A. At the time we first recovered the bindings, they appeared to be strips of cloth that were badly stained. We took them back to the lab and cleaned them up, at which time Mr. Crocker recognized the fact that there was a small blue-green thread made into the fabric itself. He pointed it out. At a later date when Sgt. Barefield turned this sheet that you just handed me over to me we compared the fabric and found the same green thread in it that was in the bindings in the same location, and showed that the bindings were, in fact, the hem from a sheet.
“Q. All right, sir. These bindings within this sack are what you call hems from a sheet?
“A. Yes, sir.
“Q. Was it your opinion that State’s Exhibit 7 and State’s Exhibit 9 are similar or are the same or were made of the same material, or can you say?
“A. They are similar. It was in my opinion that at one time it was part of a sheet similar to the sheet that you have in evidence.
“MR. RUSSELL: All right, sir. We offer both of those at this time, Your Hon- or.
“MR. SHIELDS: Objection, Your Honor.
“THE COURT: Okay. Let him mark them.
(Whereupon, said exhibits, having been previously marked for identification as State’s Exhibits 7 and 9, were then received in evidence. These exhibits have been delivered to the office of the Clerk of the Court in accordance with the Rules of Appellate Procedure, adopted June 17, 1975.)
“Q. Bob, I’ll show you these bindings marked State’s Exhibit 7 again, please, sir, and ask you if these bindings are what we refer to as a handcuff style binding?
“A. Yes, sir. When we removed them from the body two of the ends were over both wrists, tying them together. At one time one or more of them appeared to have been tied also to the ankles. As I recall, the wrists had two bindings on each wrist and one or more were also connected to the ankles.
“Q. And they were separated. Is this where one wrist would be located and this where one wrist would be located?
“A. That is correct.”

Ms. Patricia Ann Matthews testified that on September 20, 1975, between 3:00 and 3:30 a. m., she was driving her automobile on Third Avenue West and that she stopped her automobile as she had lost her direction. She further testified that a car stopped in front of her and a man got out and came back to her car and said, “He told me, he said, ‘Lady, you are driving with your lights on bright.’ He said, ‘You are blinding me.’ I looked down and my lights were on bright. I told him, I said, T am sorry, I am lost,’ and I told him my destination and he told me to pull over to the side of the road and he would tell me how to get there.” She was asked if the man who came to her car on that occasion was in the courtroom and she said, “Yes, sir.” She was asked to point him out and she replied, “That one in the yellow shirt,” (indicating). The District Attorney said, “Let the record indicate that she is pointing to the defendant Arthur Webster Breen.”

She further testified that she did pull over to the side of the road and he pulled over first. He got out of his car and he came back to her car, that he pointed a gun in the window and told her that this was a holdup, and to open the door. She told him that he had to be kidding her and he said, “No, lady, I am not kidding,” and she said that he told her, “Don’t give me any trouble.” He opened the door to her car and got in. After getting in her car and parking it on a side street by the side of a service station, he forced her at gunpoint to walk across and get in his car. She said that the automobile he was driving was a Camaro.

She further testified that this man told her to hand him her wrists and she handed her right wrist to him first and the man tied her wrist with ropes already stationary in the car and he then reached and got her other wrist and tied it behind her back.

She stated that he was driving west on Third Avenue and while driving he demanded money from her. She stated that he got her purse and belongings. At this time she told him that she did not have any money and he replied, “You’re going to meet some friends and they will have fifty or sixty dollars.” She told him that they didn’t have that kind of money and he replied, “Your body is worth that much.” As they were driving along Third Avenue West near the Holiday Inn, she jumped out of the automobile and ran back of the Holiday Inn and the man shot at her.

She stated that she called the police officers and they came to the place where she called them and she talked to Detective Gaut and Detective Simms. She further testified that the officers took her back to her automobile and it had to be hot-wired as the man took the keys from the ignition when he made her get out of her car.

On cross-examination she testified that the ropes were already in the car and that he tied her wrist with one of the ropes that was stationary in the car and then reached over and tied her other hand behind her back. She made a positive in-court identification of appellant as the man who kidnapped her and robbed her. She described him as having long hair parted in the middle. She said she could not be mistaken as to the identity of the appellant as she got a full view of his face twice when he came to the window of her car.

She further testified, “I was scared to death, especially when he threatened to kill you right there. He had gone about two blocks from where he abducted me and he saw a man in a phone booth and he was going to turn around and kill him. I made the statement, I told him, ‘You’ve got no reason to kill him.’ He said, ‘He might have seen what was going on.’ I said, ‘Sir, he was too far away to see what was going on.’ That’s when he stuck the gun in my side and told me not to call him sir, call him James.”

Ms. Samantha Lee testified that she was employed at Majestic Studios located at 1034 Third Avenue West and that this place was a massage parlor. She stated that on Friday morning, September 19, 1975, about 3 o’clock, she was working at the massage parlor and that there were four other women working there also. She said a man came in and paused at the door and she asked him if she could help him, and that he stood there for a little while and then reached behind him and took out a gun and pointed it toward the guard there in a chair, that he told the guard to give him his pistol, or otherwise he would shoot him; that this was a holdup. She was asked if that man was in the courtroom and she said, “Yes, sir,” and she pointed to the one in the yellow shirt. The record discloses that she pointed to the defendant, Arthur Webster Breen.

She further testified that he made the guard lie down on the floor and ordered her to give him the money out of the cash drawer and she gave him the money. She stated that after she gave him the money, he tied her and one of the other girls; that in tying up the guard and her and the other girl, he used part of a towel. She said that several customers came in and also two other girls that were working there. He tied those girls up with strips of sheets and he tied up all the customers with strips of sheets; that he carried all of the people in one room together and took stacks of sheets and tore the ends off the sheets using the hems and tied the wrists of everybody behind their backs. She stated that she worked her hands loose from the towel that he had bound her wrists with and he came back and used strips of the sheets and wrapped them around her wrists several times behind her back.

She was shown State’s Exhibit No. 7, which showed the strips binding the wrists of the deceased and she testified that he bound and tied her and everyone else in the massage parlor in the same fashion as shown in State’s Exhibit No. 7.

After he had bound and tied everyone’s wrists and hands behind them, he took the money which he had forced her to give him from the cash register and left and in leaving he attempted to take one of the female employees with him but she evaded him and he made his escape.

At the conclusion of each of these witnesses’ testimony appellant’s counsel moved to exclude the testimony on the grounds that there had been no showing that there was any connection with the case at bar. The Court overruled the objection.

Officer William Thomas Gaut was recalled to the stand for further testimony and he testified that he and Sergeant Bare-field checked all of the sheets in all motels within a radius of five miles of the Eastwood Mall and that at only one motel did they find the hem of a sheet showing green thread in the hemline that matched the strips that were found on the wrists of the deceased as shown in State’s Exhibit No. 7. He stated that this sheet was found at the Siesta Motel.

During the time that appellant was in the DeKalb County Jail in Georgia he became friendly with two convicted felons who were in the same cellblock. He had several conversations with the convicts over a period of time in which he admitted kidnapping a woman during a robbery in Birmingham and that he carried her to a motel and held her hostage for a period of time. He said that he was expecting a murder warrant from Alabama and that it would be for murder one.

These two convicts gave written statements to Officer Gaut and they were brought to Alabama to testify for the State in appellant’s trial. A copy of each convict’s statement was given to him while he was on the witness stand and a copy of each statement was given to defense counsel. The trial judge stated that he was going to permit the District Attorney to lead these witnesses to be sure that appellant’s previous criminal record was not brought out before the jury. No objection was made by defense counsel to this procedure.

Stanley Martin Dyen testified, in substance, that he was lodged in the DeKalb County Jail in November 23,1975. He stated he had previously been convicted on a robbery charge and that he had criminal charges pending against him for car theft, credit cards, burglary and theft. That he became acquainted with Arthur Webster Breen while they were in jail, and that Breen told him he was worried about a warrant for murder one coming for him from Alabama, but that he had talked with the detectives from Alabama and all they had was a piece of hair and a piece of cloth and they could not prove anything. Breen said he took the car over to a car wash and got it cleaned and further said that they had two numbers on his license plate from Alabama but he changed plates and put on a New York license plate.

Dyen stated that Breen said he had committed the murder but the people couldn’t prove it and asked him what he thought he ought to do or say. Dyen said he told him it was up to him.

During a third conversation Dyen stated that Breen said the woman was apprehended during a robbery and they forced her to come back over to a motel and later they carried her out to a forest, and tied her up. After tying her up they “ought” her. He was asked in slang language what “ought” meant to him and he replied, “He killed her.” He stated that Breen told him that he had tied her up with a cord and hanged her or put a rope around her neck or something like that; that Breen stated that he hanged her but the witness said he didn’t know if Breen meant he hanged her from a limb or tree.

In another conversation Dyen said that Breen stated that he put her body in a wooded area and thought no one would be able to find her for a long time.

Dyen concluded his statement by saying that he made the written statement about Breen’s conversation with him of his own free will; that he had not been threatened in any manner nor had he been promised anything, and that he had not been offered any reward to get him to testify or sign the written statement.

Joseph Ralph Ray was the other cellblock mate that Breen had several conversations with concerning the death of a woman in Birmingham. He, too, gave a signed statement to Officer Gaut and the same procedure was followed in the giving of his testimony that was carried out during Dyen’s testimony. He stated that he was serving time on a child molestation conviction and was awaiting trial on an escape charge.

He testified that beginning in November of 1975 he had several conversations with Arthur Webster Breen. Breen told him he was expecting a murder warrant from Alabama coming in the near future. Ray asked him what took place and Breen told him that a girl was found murdered and tied up. Ray testified that Breen told him that he had a pattern in his methods. That he asked people whether they were right-handed or left-handed and that way he would know how to tie them up. Ray asked Breen if this girl in Alabama was tied up and he said yes. Breen further told Ray that he did it but they will never be able to prove it.

Ray further stated that Breen told him that a child would take the witness stand and say that Uncle Artie took us to the movie and that he was watching television at home when it happened. Breen further said who would question the sincerity of a small child.

Ray stated that in another conversation when Breen was talking about the kidnapping and murder he mentioned the name of a motel somewhere out of Birmingham where he was staying but they wouldn’t be able to trace him to the motel because he had registered in a fictitious name. He said that Breen stated when he registered he put “Chevrolet” in the blank for the make and model of the vehicle and in the blank for the license plate he had inserted the word “rented.” That he just put “rented” for the Chevrolet rather than put the blue Camaro on the registration.

Ray further testified that Breen told him the woman had been abducted and that he had held her hostage for a while. Breen also told Ray that he had cleaned the car out to erase any traces that might be in the car.

Ray concluded his testimony by saying that his testimony was the truth, to the best of his memory, as to all the conversations he had with Breen over a period of time. That he had not been threatened in any way to sign the statement he gave Officer Gaut and he had not been promised anything in exchange for his testimony.

Appellant did not testify, nor did he offer any evidence in his behalf.

Where the State relies upon circumstantial evidence for a conviction, “testimony may permissibly take a wide range and any fact from which an inference may be drawn relating to the crime is competent evidence.” Green v. State, 258 Ala. 471, 64 So.2d 84, 88; Dockery v. State, 269 Ala. 564, 114 So.2d 394. It has also been held that any testimony tending reasonably to establish the probability or improbability of the fact in controversy is admissible in evidence. Hunter v. State, 38 Ala.App. 351, 83 So.2d 737; Holland v. State, 25 Ala.App. 147, 142 So. 112.

In DeSilvey v. State, 245 Ala. 163, 16 So.2d 183, the Supreme Court held:

“Of course, in every criminal prosecution the burden is on the State to prove beyond a reasonable doubt the crime charged has in fact been committed and that the accused is the person who committed it. It is well settled that circumstantial evidence may afford satisfactory proof of the corpus delicti. Winslow v. State, 76 Ala. 42.
“True, the Court must first be convinced, at least prima facie, that an offense has been committed before it will consider who perpetrated the crime. As pointed out, however, in Ducett v. State, 186 Ala. 34, 65 So. 351, this does not mean that the fact that a crime has been committed should be shown by evidence wholly independent of the relation of the accused to the offense charged. The evidence that defendant committed the crime may be so inextricably blended with proof of the corpus delicti as to make a separation impossible. As to whether or not a prima facie case of the corpus delicti has been made to appear depends, of course, upon the facts of each particular case.”

In Harnage v. State, 49 Ala.App. 563, 274 So.2d 333, this Court stated:

“Circumstantial evidence may afford satisfactory proof of the corpus delicti in a murder prosecution, and, if facts are presented from which the jury may reasonably infer the crime has been committed, the question must be submitted to the jury, and other evidence tending to implicate the defendant is thereby rendered admissible. Johnson v. State, 247 Ala. 271, 24 So.2d 17; Phillips v. State, 248 Ala. 510, 28 So.2d 542; McKee v. State, 33 Ala.App. 171, 31 So.2d 656.”

The general rule is that evidence of distinct and independent offenses, sometimes referred to as collateral crimes, is not admissible in the trial of a person accused of a particular crime. However, there are well-recognized exceptions to this general rule and one of paramount importance is the “identity exception.”

These recognized exceptions to the general rule have developed into general categories and are listed in Wharton’s Criminal Evidence, Section 31, as follows:

“These exceptions fall under the following general divisions: (1) Relevancy as part of res gestae, (2) Relevancy to prove identity of person or of crime, (3) Relevancy to prove scienter or guilty knowledge, (4) Relevancy to prove intent, (5) Relevancy to show motive, (6) Relevancy to prove system, (7) Relevancy to prove malice, (8) Relevancy to rebut special defenses, (9) Relevancy in various particular crimes. It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one hand, and, on the other hand, to protect the accused and secure to him the rights guaranteed to him by the Constitution and the laws.”

From Wilkins v. State, 29 Ala.App. 349, 197 So. 75, we take the following as exposi-tive of one of the issues presented on this appeal:

“ * * * It is a well-established common-law rule that in a criminal prosecution proof which shows or tends to show that the accused is guilty of the commission of other crimes or offenses at other times, even though of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged unless the other offenses are connected with the offense for which he is on trial. In other words, proof of such collateral offenses cannot be used as substantive evidence to establish the guilt of- the accused as to the crime charged. 20 Am.Jur., Section 309, pp. 287, 288. Wharton’s Criminal Evidence, 10th Ed., Volume 1, Section 30, p. 59. This well-established principle of criminal evidence, however, is subject to several, equally well-established exceptions, which include cases where intent or identity is involved. As found in 22 R.C.L., Section 39, p. 1204: ‘But this general rule is not to be followed blindly and evidence rejected on the sole ground that it does show the commission of another crime. If evidence is relevant and competent it should be admitted regardless of its incidental effect. Accordingly it is held that evidence of another crime is admissible where it tends to identify the accused.’
“And we also add that such evidence should also be admitted where it tends to show the intent with which the act was done. Or as stated in Underhill’s Criminal Evidence, 4th Ed., Section 181, p. 318: ‘To this general rule there are several distinct exceptions which have been permitted from absolute necessity, to aid in the detection and punishment of crime. These exceptions ought to be carefully limited and guarded by the courts and their number should not be increased. But it must be admitted that the modern tendency on the part of the courts is to be liberal in the admission of evidence of collateral crimes. The exceptions to the general rule arise either from the necessity of the case or the nature of the offense, as for example, * * * when the intent or motive is to be proved from the circumstances, or where the identity of the accused is expressly in issue.’ ” (emphasis added)

In Judge J. Russell McElroy’s “Law of Evidence in Alabama”, vol. 1, 2d Ed. Section 69.01(8), we find the rule stated to be:

“All evidence tending to prove a person’s guilt of the now charged offense may be loosely said to identify him as the guilty person. But identity, as here used, assumes what may be called a ‘mark’ upon the guilty person, and then proposes to show that the accused is the person having that mark as evidenced by its being upon him in his commission of another similar offense. Wigmore, Sections 410-412; Mason v. State, 259 Ala. 438, 66 So.2d 557.
“Thus, when it is shown that the person who committed the now charged offense in a novel and peculiar manner, it may be shown that the accused committed other similar offenses in the same novel and peculiar manner. . . . This is sometimes called evidence of a ‘pattern’ of ‘modus operandi.’ ”

These exceptions to the general rule have become so embedded in the judicial fabric of the jurisprudence of this State that further citation of authorities would seem to be unnecessary. But for a collection of these authorities, see Weatherspoon v. State, 36 Ala.App. 392, 56 So.2d 793.

With reference to the other offenses allegedly committed by appellant the trial judge was exceedingly careful in his oral charge to the jury in limiting the other offenses to the issue of the identity of the accused as the person who committed the offense charged in the indictment. The oral change, in pertinent part, is as follows:

“Now, there was evidence adduced in this case that the defendant prior to the occasion in this case or some time prior to the disappearance of Mrs. Epperson, that the defendant had perpetrated other acts which in and of themselves were crimes. Now, ladies and gentlemen, that was introduced for this reason: First of all, that is for your consideration. You can either believe that testimony or not believe it. That is for the jury to determine. But if believed by you you should not say, well, the defendant committed those crimes, therefore he must have committed this crime just based just on that. That testimony was introduced to you for your consideration as to the identity of the defendant, and as it pertains to this case as to the identity of the person who committed this crime alleged in this indictment. That is, that was introduced in this case for your consideration as to whether you believe the defendant was the man who actually committed the crime embraced in this indictment. Just/ because you think that a person has a propensity to commit certain crimes does not give inference to the fact that he committed another crime. But if you believe in this case that the defendant committed these other crimes and that by committing those crimes it identifies him as the person who committed the crime charged in this indictment then you may take that into consideration in determining the identity of the person who allegedly committed the crime embraced in this indictment.”

We here observe that at the close of the oral charge appellant’s counsel stated, “No exceptions, Your Honor.”

The evidence in this case shows that appellant abducted two women and attempted to abduct a third. In each instance he used substantially similar methods in binding the hands of his victims. All three incidents occurred in a time span of less than 30 hours before Mrs. Epperson was robbed and kidnapped. A combination of these similarities constitute a “novel and peculiar manner” of modus operandi which justified the trial court in admitting the testimonies of both Patricia Ann Matthews and Samantha Lee.

Appellant contends that it was reversible error for the trial court to allow Robert Johnson to express his opinion as an expert that hairs taken from the jacket of appellant were similar to the hair of the deceased. We do not agree.

Whether a witness has acquired knowledge beyond that of an ordinary witness so as to qualify him as an expert on a particular subject is within the discretion of the trial court and his ruling thereon will not be disturbed on appeal unless a clear abuse of such discretion is shown. Creel v. State, 42 Ala.App. 225,159 So.2d 809; Alexander v. State, 37 Ala.App. 533, 71 So.2d 520.

We hold there was no abuse of discretion in allowing Mr. Johnson to testify. The weight to be accorded his testimony was for the jury.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.