text:
    Carolyn WILKERSON, Appellant, v. Herman COHEN, Appellee.
    No. 75-1456.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 1975.
   PER CURIAM.

Appeal dismissed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Cecilia HERRERA et al., Petitioners, v. Elena FAZIO et al., Respondents.
    No. 75-1952.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1975.
   PER CURIAM.

Certiorari dismissed.


text:
    Victor H. POTAMKIN, Appellant, v. Marshall BERWICK et al., Appellees.
    No. 75-907.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Harold ARNSTEIN, Appellant, v. Albert FARAH, Appellee.
    No. 75-1640.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 1975.
   PER CURIAM.

Appeal dismissed.


text:
    Cary B. COOK et al., Appellants, v. Robert GRAZIOSO and Marie Grazioso, his wife, Appellees.
    No. 74-1685.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1976.
    Rehearing Denied Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    Linda Gayle SELF and her husband, John D. Self, Individually and jointly, Appellants, v. YOUNGLOVE TRANSFER COMPANY, INC., a Florida Corporation, et al., Appellees.
    No. 75-974.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1976.
    Rehearing Denied Feb. 10, 1976.
   PER CURIAM.

Affirmed.


text:
    Stanley THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1143.
    District Court of Appeal of Florida, Second District.
    Jan. 9, 1976.
   Appeal dismissed.


text:
    Loranne N. ADAMS, Appellant, v. James ROMANO and Florida-Georgia Motels, Inc., a Florida Corporation, Appellees.
    No. 75-65.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1976.
   Appeal from Circuit Court, Orange County; Richard B. Keating, Judge.

Appeal dismissed.


text:
    The CITY OF LAUDERHILL, a Municipal Corporation of the State of Florida, et al., Appellants, v. Paul V. KRETZSCHMAR, Appellee.
    No. 75-2260.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1976.
   Appeal from Circuit Court, Broward County; Stewart F. LaMotte, Jr., Judge.

Appeal dismissed.


text:
    The CITY OF LAUDERHILL, a Municipal Corporation of the State of Florida, et al., Appellants, v. Paul V. KRETZSCHMAR, Appellee.
    No. 75-2261.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1976.
   Appeal from Circuit Court, Broward County; Stewart F. LaMotte, Jr., Judge.

Appeal dismissed.


text:
    Brian Gregory De COURCEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1164.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1976.
   Appeal from Circuit Court, Broward County; John G. Ferris, Judge.

Appeal quashed.


text:
    Jim FAIR, Appellant, v. Margie FAIR, Appellee.
    No. 75-655.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1976.
   Appeal from Circuit Court, Broward County; James F. Minnet, Judge.

Appeal dismissed.


text:
    William FANCHER, Appellant, v. GODWINS CRANE SERVICE, INC., et al., Appellees.
    No. 75-1927.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1976.
   Appeal from Circuit Court, Palm Beach County; Vaughn Rudnick, Judge.

Appeal dismissed.


text:
    Bill HARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-2177.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1976.
   Appeal from Circuit Court, Indian River County; Royce R. Lewis, Judge.

Appeal dismissed.


text:
    Franklin P. JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1651.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1976.
   Appeal from Circuit Court, Broward County; John H. Moore, II, Judge.

Appeal quashed.


text:
    Olen JOHNSON, Appellant, v. Camille Ann JOHNSON, Appellee.
    No. 75-2091.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1976.
   Appeal from Circuit Court, Broward County; James A. McCauley, Judge.

Appeal dismissed.


text:
    Lehmon ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1293.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 1976.
   Appeal from Circuit Court, Broward County; Robert Tyson, Judge.

Appeal quashed.


text:
    Calvin J. HUNT, Petitioner, v. STATE of Florida, Polk County Circuit Court, Respondent.
    No. 75-1664.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   Habeas corpus denied.


text:
    Tyree Andre Jermaine ANGEL, Appellant, v. STATE of Florida, Appellee.
    No. Y-179.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    In the Interest of A. S. L., a child.
    No. 74-1062.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    BLACKWELL ELECTRIC CO., INC., et al., Appellants, v. BARNETT BANK OF COCOA, N.A., Appellee.
    No. 75-714.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Harry BRASWELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. Y-471.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Harry Slaten DELONES, a/k/a Carl Kale Delonas, Appellant, v. STATE of Florida, Appellee.
    No. Y-368.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Hal DOUGLAS, Appellant, v. FRED FRANKE’S BRIDGE RESTAURANT, INC., et al., Appellees.
    No. 75-314.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    William P. EGLESTON, Appellant, v. STATE of Florida, Appellee.
    No. Y-201.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Homer Lee ERVIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-780.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Robert Edward GARNER, Appellant, v. STATE of Florida, Appellee.
    No. 75-328.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Henry Allen HOOD, Appellant, v. STATE of Florida, Appellee.
    No. Y-255.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    William INMON, Appellant, v. STATE of Florida, Appellee.
    No. 75-507.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Kenneth LUKE, Appellant, v. STATE of Florida, Appellee.
    No. Z-214.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Alma MARDEN, Appellant, v. Jon MARDEN et al., Appellees.
    No. 74-1415.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Ben MEADOWS, Appellant, v. EXXON CORPORATION, Appellee.
    No. Z-199.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 6, 1976.
   PER CURIAM.

Affirmed.'


text:
    George B. PALMIERI, Appellant, v. STATE of Florida, Appellee.
    No. 74-1357.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    Willie Samuel RIVERS, Appellant, v. STATE of Florida, Appellee.
    No. Z-428.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    SALTER, YESLOW AND BURNSTEIN, P.A., Appellant, v. SEBASTIAN MANAGEMENT CORPORATION, etc., et al., Appellees.
    No. 75-640.
    District Court of Appeal of Florida, Fourth, District.
    Jan. 16, 1976.
   PER CURIAM.

Affirmed.


text:
    In re ESTATE of Madeline KOVACS, Deceased.
    No. 75-2012.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    POINTER OIL COMPANY, an Illinois Corporation and Edward W. White, jointly and severally, Appellants, v. ALLIED VAN LINES, INC., a Delaware Corporation, Appellee.
    No. 75-928.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellants, v. HANOVER INSURANCE AGENCY et al., Appellees.
    No. 75-1977.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    FINK & SYNA, P.A., Appellant, v. J & J DEVELOPMENT COMPANY OF GAINESVILLE, INC., a Florida Corporation, et al., Appellees.
    No. 75-1864.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Steven Jon ROBERTS, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-1147, 75-1148.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1976.
   Appeal dismissed.


text:
    Steven Jon ROBERTS, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation for the State of Florida, Respondent.
    No. 76-69.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1976.
   Mandamus denied.


text:
    Frank SANTOS, Appellant, v. STATE of Florida, Appellee.
    No. 75-1486.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1976.
   Appeal dismissed.


text:
    E. Ralph BARNARD, Appellant, v. June L. BARNARD, Appellee.
    No. 75-764.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1976.
   PER CURIAM.

Affirmed.


text:
    Willie GIBSON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 76-92.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1976.
   Mandamus denied.


text:
    Alvin HAMM, Appellant, v. STATE of Florida, Appellee.
    No. Z-20.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1976.
   PER CURIAM.

Affirmed.


text:
    Alice HARDIN, as mother and next friend of Brenda Clark, et al., Appellants, v. Russell LaVerne TUTT et al., Appellees.
    No. 75-1152.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Morris HINENBURG et al., Appellants, v. ARLEN REALTY & DEVELOPMENT CORP. et al., Appellees.
    No. 75-1224.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Frederick W. O’NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 75-128.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1976.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, By and Through the OFFICE OF the STATE ATTORNEY FOR the TWENTIETH JUDICIAL CIRCUIT, Petitioner, v. The Honorable John H. SHEARER, Jr., as Judge of the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida, Respondent.
    No. 76-125.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1976.
   Prohibition denied.


text:
    Ronald Lamar WINGATE, Appellant, v. STATE of Florida, Appellee.
    No. Z-57.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1976.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida ex rel. Joseph VASKU, Relator, v. Robert L. BROWN, Sheriff of Monroe County, Florida, Respondent.
    No. 75-1920.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1976.
   PER CURIAM.

Habeas corpus dismissed.


text:
    Gerald C. BARTON, Appellant, v. Perry NICHOLS, Jr., Appellee.
    No. 75-888.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1976.
   PER CURIAM.

Affirmed.


text:
    SAFECO INSURANCE COMPANY, Appellant, v. Teresa E. HUDSON and Ibertar L. Hudson, Appellees.
    No. 75-382.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1976.
   PER CURIAM.

Affirmed.


text:
    Robert G. HARRIS, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-891, 75-892.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1976.
   PER CURIAM.

Affirmed.


text:
    Ralph DRY, Appellant, v. STATE of Florida, Appellee.
    No. 75-355.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1976.
   PER CURIAM.

Affirmed.


text:
    Robert Allen WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 75-612.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1976.
   PER CURIAM.

Affirmed.


text:
    James Thomas ALDERTON, Appellant, v. STATE of Florida, Appellee.
    No. 75-1852.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1976.
   Appeal dismissed.


text:
    Melvin L. VITKO, Appellant, v. STATE of Florida, Appellee.
    No. 75-1685.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 1976.
   Appeal dismissed.


text:
    James V. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 76-179.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
   Appeal dismissed.


text:
    CITY OF TAMPA and Charles Otero, Appellants, v. John CLEMONS and Gwendolyn Clemons, his wife, Appellees.
    No. 75-1009.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1976.
   Appeal dismissed.


text:
    Charles LEGG et al., Appellants, v. CITY OF CLEARWATER, Appellee.
    No. 75-1606.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 1976.
   Appeal dismissed.


text:
    DELCON, INC., a Florida Corporation, Appellant, v. Elmer KRISTON, d/b/a Kriston Drywall, Appellee.
    No. 76-52.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1976.
   Appeal dismissed.


text:
    Nelson KELBER and Elizabeth Kelber, Appellants, v. Aubrey ROGERS, Sheriff of Collier County, Florida, Appellee.
    No. 75-1847.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1976.
   Appeal dismissed.


text:
    Clarence Russell WEBB, Jr., Appellant, v. Marion T. WEBB, Appellee.
    No. 75-1445.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1976.
   Appeal dismissed.


author: HARRIS, Judge.

text:
    Oscar Lee MADDEN v. STATE.
    8 Div. 692.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Oct. 28, 1975.
    W. H. Rogers, Moulton, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of the crime of kidnapping and sentenced to ten years in the penitentiary. Prior to arraignment, the defendant was found to be indigent and counsel was appointed to represent him. He pleaded not guilty. After conviction' he was furnished a free transcript and trial counsel was appointed to represent him on appeal.

On the night of August 30, 1974, Mrs. Debra Kaye Dawson was driving her blue Opel G.T. automobile-ion Highway 20 east toward Town Creek, Lawrence County, Alabama. The time was 11:30 p. m. She was alone in her car and as she was traveling along the highway, she noticed a car blinking its lights behind her. This car followed her six or seven miles and kept blinking its lights. She continued traveling toward Town Creek and as she approached her home, she turned on her right turn signal to go into her driveway. At this time the automobile that had been following her struck her car in the rear, knocking her car beyond her driveway, and then she was struck the second time.

The occupant of the rear vehicle got out of his car, carrying a sawed-off shotgun and told Mrs. Dawson to get out of her car, and she refused. He pointed the shotgun at her and when she continued to refuse to leave her car, the man grabbed her by the arm and forced her to get in his automobile. He started driving down the highway and did not say anything to her. She asked him what he wanted with her. He said, “Where is your money?” She said, “What money?” and he said, “That money.” She said, “You didn’t let me get my purse or keys or nothing out of my car. If you will turn in my driveway and carry me to my trailer, I will give it to you.” He asked her name and she told him and he said, “You are Kaye Dawson?” and she said, “Yes.” He said, “Your husband’s name is Terrell Dawson?” and she said, “Yes.” Then he said, “You mean you are not Faye Box?” She said, “No, what makes you think I am her?” He said, “Well, I have got the wrong one.” He turned his car around and carried her back to her car, opened the door and pushed her out.

She further testified that she was scared to death and was crying. She stated it was dark but she got a good look at his face and would never forget him. She described him as having his head shaved and he wore a goatee and was a black man. She said he was six feet tall or taller. She described the automobile as a Grand Prix and it was a wrecked automobile and was dented on the right door on the passenger side.

During her testimony she said she was positive that appellant was the man who abducted her with a sawed-off shotgun. She was shown a photograph of appellant which was made on September 4, 1974, and she positively identified appellant. This photograph was identified as State’s Exhibit 1 and was introduced in evidence without objections. Photographs of both the Grand Prix and the Opel G.T. were introduced in evidence without objections. We have viewed these photographs and the Opel shows two damaged places on the trunk and the Grand Prix shows damage to the door on the passenger side.

Mrs. Dawson further testified that she and her husband went to Woolco in the mall at Muscle Shoals the next day and she saw appellant with two other black men. She pointed him out to her husband and said, “That’s the man who picked me up.” Her husband knew appellant and walked up to him and said, “Oscar Lee, where were you at Friday night?” He said, “Well, I was so high that I don’t remember.” One of the black men spoke up and said, “He was with us all night.”

George Madden, brother of appellant, testified that on August 30, 1974, he owned a 1969 Grand Prix and it was solid green with a vinyl top darker than the body. He said he was employed at Reynolds Alloy and that Oscar Lee carried him to work at 3:30 p. m. and when he got off work shortly after midnight, Oscar Lee was waiting in his car in the parking lot. He stated his car had been involved in several wrecks prior to August 30, 1974; that he did not know where Oscar Lee had been from the time he put him out at 3:30 p. m. and picked him up shortly after he got off work. He stated that some time later he was present when some police officers scraped blue paint off the front bumper of his car. He saw some little specks that the officers scraped off.

Captain E. B. Watts testified that he was employed by the State Department of Public Safety as a crime investigator. He stated that he took the photographs that were introduced in evidence. He identified the photograph of the Grand Prix and pointed out the damage to the right door as described by Mrs. Dawson. He stated he inspected the bumper and grill section of the Grand Prix and found minute particles of blue paint on the grill. He scraped off the particles of blue paint.

From the record:

“Q. All right. Captain Watts, in your judgment, or in your opinion, was there any similarity between the scrapings on the front bumper of the Pontiac and the color of the Opel?
“A. Yes, sir.
“Q. What was that similarity, sir ?
“A. The blue color appeared to be the same, and there was even some of the primer that goes underneath the paint, a brownish looking color on the bumper of. the Defendant’s — the car that the Defendant was allegedly driving.”

He further identified State’s Exhibit 1 as appellant and the way he looked on the day he was arrested.

Mr. Percy Lee Ricks, a patrolman with the Leighton Police Department, testified that he was familiar with the automobile owned by George Madden and that he saw this automobile going east on Highway 20 at approximately 11:00 o’clock p. m. but he could not identify the driver as he and his partner had a car stopped and were checking the motorist’s driver’s license. He further identified State’s Exhibit 1 as appellant.

Appellant testified in his behalf and denied that he abducted Mrs. Dawson on the night of August 30, 1974, with a sawed-off shotgun, that he was not in Lawrence County any time during the night of August 30th. That at the time in question he was at the Friendship Club in Sheffield. He offered the testimony of two witnesses in support of his alibi.

On cross-examination he testified that he was six feet four inches tall. He admitted that on February 19, 1970, he was convicted of grand larceny, and that on February 17, 1970, he was convicted of burglary in the second degree.

At the conclusion of the state’s case, counsel for appellant made a motion to exclude the state’s evidence on the ground the state had failed to prove a pri-ma facie case. This motion was overruled. The affirmative charge was requested and refused by the court. There was no motion for a new trial.

In Dolvin v. State, 51 Ala.App. 540, 287 So.2d 250, this court held that circumstantial evidence is sufficient on which to submit the issue of defendant’s guilt to the jury in a prosecution for kidnapping. But the evidence in this case is not wholly circumstantial. We have the testimony of Mrs. Dawson who positively identified appellant as the man who struck her car twice as she was trying to drive into her driveway and who pointed a sawed-off shotgun at her and physically forced her out of her automobile and put her in his automobile.

The testimony of one police officer put the car driven by appellant on the night in question in the vicinity of where the crime was committed. The testimony of the state trooper was that the blue paint removed from the grill of the Grand Prix appeared to be the same color as the blue Opel owned and driven by Mrs. Dawson.

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 new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

Alibi testimony, like all other evidence in a criminal prosecution, is an issue to be determined by the jury. The jury resolved this issue against appellant simply because they did not believe the alibi testimony. Brown v. State, 229 Ala. 58, 155 So. 358; Mosley v. State, 54 Ala.App. 59, 304 So.2d 613; Price v. State, 53 Ala.App. 465, 301 So.2d 230.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this court has no right to disturb the verdict. Whether there is evidence of the defendant’s guilt is a question of law and its weight and probative value are for the jury. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Bolton v. State, 21 Ala.App. 373, 108 So. 631; Washington v. State, 55 Ala.App. 116, 313 So.2d 544; Taylor v. State, 55 Ala.App. 184, 314 So.2d 104.

Conflicting evidence always presents a question for the jury as to the guilt of the defendant unless the evidence palpably fails to make a prima facie case. The facts and circumstances in this case overwhelmingly pointed to the guilt of the accused. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Jones v. State, 54 Ala.App. 251, 307 So.2d 59.

There were a number of refused charges. Most of them were affirmative in nature and the others were confusing and misleading. There was no error in the refusal of these charges.

We note that the learned trial judge failed to charge on the presumption of innocence and that an indictment is not to be considered as evidence against the defendant. In order to correct this oversight appellant tended the following two charges:

“The Court charges the Jury that the indictment in this case is not any evidence in the case, and the fact that defendant has been indicted is not to be considered by you as a circumstance against him, but said indictment is merely the method of placing defendant on his trial, that the presumption of innocence attends the defendant throughout this time and remains with him and authorized all acquittals, if the entire testimony fails to overcome such presumption, by proof of defendant’s guilt beyond a reasonable doubt and to a moral certainty.” (Emphasis added.)
‡ >Jc jfc :}«
“The Court charges the Jury that the indictment in this case is not any evidence in the case, and the fact that defendant has been indicted is not to be considered by you as a circumstance against him, but said indictment is merely the method of placing him on his trial, that the presumption of innocence attends the defendant throughout this time and remains with him and authorized all acquittals, if the entire testimony fails to overcome such presumption, by proof of defendant’s guilt beyond a reasonable doubt and to a moral certainty.” (Emphasis added.)

The vice in these two charges are the words “and authorized all acquittals,” which rendered these charges bad and misleading.

The following charge has been approved in a number of cases:

“The Court charges the jury that the indictment in this case is not any evidence in the case, and the fact that the defendant has been indicted is not to be considered by you as a circumstance against him, but said indictment is merely the method of placing defendant on his trial, but the presumption of innocence attends the defendant throughout this trial and remains with him and authorizes an acquittal, if the entire testimony fails to overcome said presumption, by proof of defendant’s guilt beyond a reasonable doubt.”

See Salter v. State, 22 Ala.App. 86, 112 So. 538; Bush v. State, 23 Ala.App. 502, 127 So. 909.

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

Affirmed.

All the Judges concur.


author: HEFLIN, Chief Justice.

text:
    In re Oscar Lee MADDEN v. STATE. Ex parte Oscar Lee Madden.
    SC 1554.
    Supreme Court of Alabama.
    Jan. 22, 1976.
    W. H. Rogers, Moulton, for petitioner.
   HEFLIN, Chief Justice.

Petition of Oscar Lee Madden for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Madden v. State, 56 Ala.App. 713, 325 So.2d 505.

Writ denied.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


author: TYSON, Judge.

text:
    Samuel Porter MITCHELL, alias v. STATE.
    6 Div. 844.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Rehearing Denied Dec. 9, 1975.

      Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Quentin Q. Brown, Jr., Birmingham, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment (omitting formal parts) is as follows:

“The grand jury of said county charge that, before the finding of this indictment, SAMUEL PORTER MITCHELL, alias JAMES PORTER MITCHELL, alias SAM PORTER MITCHELL, alias JACK PORTER, alias CORNELIUS WILLIAMS, whose name is to the grand jury otherwise unknown, with intent to defraud, did falsely pretend to Evelyn Logan, who was then and there acting in the line and scope of her employment as the agent, servant or employee of Electric Constructors, Inc., a corporation, that he was an employee of Shepherd Furniture Company and authorized to make purchases for the said Shepherd Furniture Company, and by means of such false pretense obtained from the said Evelyn Logan three Gibson air conditioners, of the aggregate value of Four Hundred Eighty Dollars, the personal property of Electric Constructors, Inc., a corporation, against the peace and dignity of the State of Alabama.”

The jury found the appellant “guilty of obtaining by false pretense the property valued at $480.00,” and the trial court set sentence at five years imprisonment in the penitentiary.

Glenn Shepherd testified that he owned and operated Shepherd Furniture Company. He stated that his company employed six people, that he was personally familiar with each of them, and that the appellant, James Mitchell, had never been an employee of Shepherd Furniture Company. Shepherd testified that he did not phone in an order to Electric Constructors, Inc., for three Gibson air conditioners on July 11, 1973. He added that his father was the only other person authorized to phone in orders. He said that Shepherd Furniture Company received a bill from Electric Constructors, Inc., for three Gibson air conditioners which were never received and never paid for.

On cross-examination, Mr. Shepherd said that his furniture company had an account with Electric Constructors, Inc., but that it had been “at least three years” since his company had gotten any Gibson air conditioners.

Evelyn Logan testified that in July of 1973, she worked as a secretary for Electric Constructors, Inc., a wholesale distributor of electrical appliances and television electronics, and that her duties included taking and processing orders. She said that at approximately 12:30 p. m., on Wednesday, July 11, 1973, the appellant, whom she identified in court, pulled a truck up to Electric Constructors’ loading dock at 3013 Second Avenue, South, in Jefferson County, got out, climbed up on the dock, and said he was to pick up some air conditioners for Shepherd Furniture Company. Mrs. Logan said that she told the appellant she did not have an invoice for them, and he explained that the order had just been phoned in. She then called K. B. Moon, an office salesman who usually handled phone orders, and he sent her an invoice (State’s Exhibit No. 1) for three Gibson air conditioners for Shepherd Furniture Company. She explained that an invoice is an original order as phoned in to them by the dealer or buyer, giving the dealer’s name and what he wishes to purchase. Mrs. Logan stated that after the air conditioners were pulled from inventory in the warehouse, she entered their serial numbers on the original invoice that she had received from Mr. Moon, and then prepared a dray ticket (State’s Exhibit No. 2) with the name of the company, model, quantity, and serial numbers of the air conditioners. Mrs. Logan said that the appellant acknowledged receipt of the air conditioners by signing the dray ticket “Willie Jones,” that they were then loaded onto his truck and he drove away. She concluded by stating that the wholesale price of each of the air conditioners was $160.00, or a total of $480.00.

On cross-examination, Mrs. Logan testified that the invoice was not in exactly the same condition as it had been on the day it was made, that markings had been added and erasures made.

T. W. Farrier testified that he was the refrigeration service manager at Electric Constructors, Inc., and that at times his duties included loading merchandise. He said that he went to lunch around noon on July 11, 1973, and that when he returned to the loading dock at 3013 Second Avenue, South, the appellant, whom he identified in court, was present. Farrier stated that Mrs. Logan handed him an order for three Gibson air conditioners, which he got from the warehouse and loaded onto the truck that the appellant was driving. He identified State’s Exhibit No. 2 as the dray ticket he saw the appellant sign “Willie Jones.” After the air conditioners were loaded, the appellant got in the truck and drove off.

L. A. Mclntire testified that in July of 1973, he was employed by the City of Birmingham as a detective sergeant assigned to the business service bureau. He identified the appellant and stated that he saw him at around 11:45 a. m., on Monday, July 16, 1973, at the warehouse of Electric Constructors, Inc., located at 3013 Second Avenue,' South. Mclntire explained that he received a phone call from an employee of Electric Constructors, Inc., and that he proceeded to the company’s business office where he had a further discussion with a Mr. Tayloe and another man. He said that around 11:45 a. m. he saw the appellant drive a truck up to the loading dock, get out, climb onto the dock, and stand at the back of the truck. Mclntire then arrested the appellant on a charge of false pretense.

On cross-examination, Mclntire testified that he arrested the appellant without a warrant.

The State’s final witness was Birmingham City Policeman Wayne Harper who stated that he accompanied Sergeant Mc-lntire on the day of appellant’s arrest. His testimony corroborated that of Sergeant Mclntire.

At the conclusion of Harper’s testimony, the appellant made a motion to exclude the State’s evidence, which was denied by the trial court. The appellant then rested without presenting any evidence at trial.

I

The appellant contends that the State here failed to prove a prima facie case, and that there was a fatal variance between the representation attributed to him by the indictment and the proof adduced at trial.

The offense in question consists of: (1) The pretense. (2) Its falsity. (3) Obtaining property by reason of the pretense. (4) Knowledge on the part of the accused of the falsity of the pretense. (5) Intent to defraud. Holloway v. State, 37 Ala.App. 96, 64 So.2d 115, cert. denied 258 Ala. 558, 64 So.2d 121; Spivey v. State, 55 Ala.App. 687, 318 So.2d 382 (1975).

From Holloway, supra:

“Generally speaking, the crime includes a false representation of an existing or past fact which deceives and which induces the person to whom the deception is made to part with something of value. The falsity of the representation must be known to the accused and it must have been made with intent to defraud.”

Appellant asserts that Mrs. Evelyn Logan would not have given him the air conditioners if she had not received an invoice from K. B. Moon, the office salesman, and that this invoice had been prepared prior to the appellant’s arrival at the loading dock. Therefore, he asserts that Mrs. Logan’s actions could not have been based upon anything that he might have said to her upon his arrival.

The fallacy in this argument is two-fold. First, it overlooks the fact that appellant drove up in a truck, inferentially belonging to Shepherd Furniture Company, and he advised Mrs Logan that he was there on behalf of Shepherd Furniture Company to pick up the three air conditioners. Second, the appellant signed the dray ticket, acknowledging receipt of the three units. This dray ticket was signed “Willie Jones.”

If, in the absence of the above false pretense, Mrs. Logan would not have parted with the air conditioners, then the offense in question is complete. Whipple v. State, 51 Ala.App. 377, 286 So.2d 52, cert. denied 291 Ala. 802, 286 So.2d 57.

We are therefore of the opinion that the evidence here presented was sufficient to sustain the judgment of conviction, hence, the refusal of the appellant’s request for the affirmative charge and the denial of his motion to exclude were proper. Whipple, supra; Holloway, supra; Harvey v. State, 41 Ala.App. 300, 130 So.2d 823.

II

Sergeant L. A. Mclntire testified that he received a phone call from an employee at Electric Constructors, Inc., on the morning of July 16, 1973. He then proceeded to the company’s business office where he had a conversation with a Mr. Tayloe and another man. At approximately 11:45 a. m., Mclntire saw the appellant drive a truck up to Electric’s loading dock, get out, and walk to the back of the truck, at which point he arrested the appellant on a charge of false pretense.

An officer may arrest any person, without warrant, at any time, when he has reasonable cause to believe that the person arrested has committed a felony. Title 15, Section 154, Code of Alabama 1940. Thus, this evidence was properly admitted at trial.

III

At the conclusion of the trial court’s oral charge, the appellant announced, “No exceptions.” The trial judge then gave nine of the written requested charges. The remaining refused charges were either covered by the trial court’s oral charge and the given charges, or were abstract, not properly predicated on the evidence in this case, were misleading, or were incorrect statements of the applicable legal principles; hence, their refusals were proper. Title 7, Section 273, Code of Alabama 1940.

We have carefully examined this record and find same to be free from error. The judgment of the trial court is due to be and the same is hereby

Affirmed.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Samuel Porter MITCHELL v. STATE of Alabama. Ex parte Samuel Porter Mitchell.
    SC 1618.
    Supreme Court of Alabama.
    Jan. 29, 1976.
    Charles L. Howard, III, Birmingham, for petitioner.
    None for the State, respondent.
   SHORES, Justice.

Petition of Samuel Porter Mitchell for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Mitchell v. State of Alabama, 56 Ala.App. 718, 325 So. 2d 509.

Writ denied.

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


author: DeCARLO, Judge.

text:
    Cleveland CANADA, alias v. STATE.
    5 Div. 295.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Rehearing Denied Oct. 1, 1975.

      Guy F. Gunter, III, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Larceny; 10 years.

Appellant was charged with feloniously taking $1,000.00, the personal property of the City of Auburn.

Before a jury was empaneled, appellant’s appointed. counsel filed a motion to suppress which alleged statements obtained from appellant were involuntary. At the hearing the following evidence was presented.

Clinton Canada, Jr., a trusty in Auburn City Jail, testified that in October, 1974, he was serving a 30-day sentence on a conviction of driving while intoxicated and around the middle of that month, Lt. Elder came to see him. Appellant was asked if he knew anything about the money missing from the Recorder Clerk’s Office, which was located in the same building adjacent to the cell block. The conversation lasted about five or ten minutes but appellant was never advised of his rights.

Later the same morning, Canada was advised of his constitutional rights by Detective Rothwein and was questioned for about thirty minutes by Rothwein and Officer Sims. ' During the questioning appellant requested a lie detector test and was taken by these officers to Montgomery where the examination was conducted.

Appellant was told the results of the test indicated he had not taken the money but knew something about it. Returning to Auburn, appellant was again questioned for a short period before he was taken to his cell. About “first dark” the questioning resumed and continued for five hours except for three fifteen-minute breaks. During one break, appellant drank a coke. Although no promises were made, appellant stated he was. threatened with imprisonment by Detective Rothwein.

The following morning around 9:00 A. M., Canada was again advised of his constitutional rights and he subsequently made a statement which was reduced to writing, signed by him, and witnessed by Officers Murphy and Gosdin. Although he stated he could not read and write, Canada assumed it was a confession and contended Officer Murphy had promised him a lighter sentence. Appellant explained he had signed the statement “Cleveland Canada” rather than “Clinton Canada, Jr.” because at the time of his arrest he was using the driver’s license of his brother, Cleveland Canada.

Officer Murphy testified that before Canada signed a waiver of his constitutional rights, appellant stated he had a sixth grade education, could read and write and understood his rights. Murphy also denied making any promises to appellant.

Sergeant Gosdin’s testimony was substantially the same as Officer Murphy’s, including the fact that no promises were made.

Following Sergeant Gosdin’s testimony, the court overruled the motion and held appellant’s statement voluntary.

After a jury was empaneled this testimony was presented by the State:

June Sistrunk, clerk of the Auburn City Recorder’s Court, testified that it was part of her duties to collect fines and court costs. At the end of each day these monies were placed in a metal cash box and locked in the office filing cabinet. This procedure was followed each day and on the morning of October IS, 1974, when she came to work, she noticed the filing cabinet drawer was closed but unlocked. Upon opening the cabinet, she discovered the cash box was missing and calculated the loss to be about $1,400.00, of which $1,000.-00 was in cash.

She recalled that on several occasions appellant was present when the money was visible, and that he was present on the morning prior to the loss.

Mrs. Sistrunk testified she had the only key to the cabinet and although she could not swear it was locked on the day preceding the burglary, she customarily locked it. Also, it would not have been possible for anyone to take the money during business hours.

Sergeant Murphy’s testimony followed that presented during the suppression hearing but with these additions:

He identified the waiver form and appellant’s two-page statement. Murphy explained the oral statement was reduced to writing and read to appellant. After reading the statement, appellant told Murphy that was the way he wanted it.

In the statement, appellant related he had agreed to help Tommie Myers take the money from the clerk’s office and that aft-erwards the two would meet and divide the money. On October 14th appellant informed Myers by telephone that the cabinet was unlocked and everybody would be asleep about 4:00 A.M. On October 15th at 4:00 A.M., appellant called and Myers came to the police department. They went to the cabinet, Myers took the cash box and appellant returned to his cell.

Sergeant Murphy stated he and Gosdin’s over-all contact with appellant encompassed an hour and fifty minutes, during which time appellant was driven to a place where he said the money was supposedly hidden. No money was found. Appellant told Murphy he did not commit the offense but knew who did.

Officer Gosdin substantiated Sergeant Murphy’s testimony.

The only witness presented by the defense was Henry James Hill who admitted committing the alleged burglary.

Hill explained that one morning on his way to work, he stopped by the jail and found the clerk’s office unattended. After discovering the cabinet drawer open, he took the little tin box and left. He then walked out of the building to the Birmingham News stand, and hid the box in a nearby trash barrel after taking $150.00. When he returned the following day, the box was gone.

Hill admitted that he had served a three-year sentence for burglary; that he had told Officer Murphy about his involvement in the clerk’s office burglary, after being charged with two other burglaries and that he was in the Auburn City Jail at approximately the same time Canada was serving the 30-day sentence for driving while intoxicated. Hill denied seeing appellant. either at the Auburn City Jail -or the Lee County Jail.

Before completing his testimony, Hill exclaimed, “. . . Cleveland Canada wasn’t nowhere around and I went in the Police Station and I did it all by myself.”

I

Appellant contends the court was in error when prior to trial it overruled his motion to produce the record and results of the lie detector test. Counsel argues this information was essential to prove appellant’s confession was obtained by subterfuge, thereby rendering it involuntary.

In our judgment the sole question raised is whether a confession obtained through trickery is voluntary.

This question was answered in the affirmative by the Supreme Court of Pennsylvania in this manner:

“A confession, procured by a trick or artifice, not calculated to produce an untruth, is never vitiated thereby.” Commonwealth v. Hippie, 333 Pa. 33, 3 A.2d 353.

In the present case the remarks by the police concerning appellant’s polygraph test could not be said to have a likelihood of producing a false confession, and the mere fact a lie detector examination was involved in procuring the confession would not render it involuntary. United, States v. McDevitt, 6 Cir., 328 F.2d 282; Johnson v. State, Fla.App., 166 So.2d 798; Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172.

II

Next appellant complains the trial court committed reversible error in overruling appellant’s motion to suppress certain statements obtained from him.

We have reviewed the evidence of the suppression hearing with special attention regarding threats, promises, periods of questioning and appellant’s educational background and find the confession was voluntary. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835.

III

In closing argument, the District Attorney made the following comments which appellant asserts were improper and cause to reverse:

“ ‘ — [W]e’re concerned with this defendant today who came over to the City of Auburn and used his brother’s, who’s in the penitentiary’s, driver’s license so he could get around town. He didn’t have one of his own and he wanted to drive and he didn’t want to get caught without a license so he assumed the name of his brother, Cleveland Canada, who is in the penitentiary — .’ ”
—[H]e [Henry James Hill] had been over in the Auburn Police Department, which he doesn’t remember seeing Cleveland Canada there; he had been down here in the Lee County Jail, and of course he doesn’t remember seeing Cleveland Canada there. He’s known him all his life. He just doesn’t remember seeing him down there.
“I suggest to you, ladies and gentlemen, that if you have ever seen the City of Auburn Jail and the Lee County Jail, it is pretty hard not to know who is in there, especially if it is someone you have known all you life — .’ ”

At the outset we note that after appellant’s objection, the remarks concerning Henry James Hill were subsequently withdrawn, and the defense did not insist that the court rule on his objection.

In the absence of an adverse ruling, this court has nothing to review. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256.

As to the other remarks, we are unable to find error in the court’s ruling. They were supported by the evidence and subject to the inferences drawn. Edson v. State, 53 Ala.App. 460, 301 So.2d 226.

No error is revealed in the record.

Affirmed.

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


text:
    In re Cleveland CANADA v. STATE of Alabama. Ex parte Cleveland Canada.
    SC 1501.
    Supreme Court of Alabama.
    Jan. 22, 1976.
    Guy F. Gunter, III, Opelika, for petitioner.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State, opposed.
   HEFLIN, Chief Justice.

Petition of Cleveland Canada for Writ of Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Canada v. State, 56 Ala.App. 722, 325 So.2d 513 is denied. In denying this writ this court does not wish to be understood as approving or disapproving all that was said in the opinion by the Court of Criminal Appeals.

Writ Denied.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


text:
    Evelyn WOODS v. STATE.
    8 Div. 661.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.
    Application for Rehearing Stricken Dec. 16, 1975.
    No brief for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

The grand jury of Lauderdale County returned a two-count indictment against appellant, (1) grand larceny and (2) buying, receiving and concealing stolen property. At arraignment, in the presence of retained counsel, she pleaded not guilty. She waived a jury trial after having her rights explained to her by the trial judge and her lawyer. The record reflects she made an intelligent waiver of a jury trial. At the conclusion of the trial the court found her guilty on both counts of the indictment and sentenced her to one year and one day in the penitentiary. She gave notice of appeal and requested that sentence be suspended pending appeal. This request was granted and bond was fixed at $1,500.-00. She made known to the court that she was indigent and sought a free transcript. After a hearing she was found to be indigent and a free, transcript was furnished her. Her retained counsel did not file a brief on appeal.

There is no conflict in the evidence. Appellant did not testify nor did she offer any testimony in her behalf.

The first witness called by the state was Barbara Austin who testified that she was an employee of the Piggly Wiggly Grocery Store in Killen, Lauderdale County, Alabama. She stated she worked at the check-out counter in the store. She said that there were three check-out counters in the store but that she was working at the only check-out counter in operation at the time she saw two women enter the store. They were each carrying a purse when they entered the store. She further testified that a few minutes later she saw both women leaving the store and they were each carrying two packages under their-arms. She stated they did not come through- the check-out counter when they left the store. Mrs. Austin tried to stop the two women by calling put to them but it was too late to stop them. She went to the door of the store and saw them driving away in a blue-grey car but she was unable to get the car tag number. She stated both of these women had been in the store a;t least twice during the same week and she was within. five feet of them and could never forget their faces. She testified that on the occasion in question appellant had on a sleeveless dress and her companion was wearing a maternity top. The cases against both women were, by agreement, consolidated for trial. Mrs. Austin made a positive in-court identification of both women.

Mrs. Austin further' testified that 'the cartons of cigarettes that were sold at the Piggly Wiggly in Killen had a stamp on them saying, “Killen, Alabama,” and each carton was so stamped with a wide magic marker. Mrs. Austin said she knew this was true as she worked with the cigarette counter.

Mrs. Mary Kathryn Broadfoot testified that she was a customer in the Piggly Wiggly store in Killen, Alabama oh the day in question. She stated that two women went in the store just ahead of her. She said the blonde headed lady came around the counter with two cartons of cigarettes under her arm. Mrs. Broadfoot further testified that when she went through the check-out counter to pay for her groceries, she looked up and the two ladies she identified as the two defendants were going out of the supermarket with two sacks under their arms.

Mr. Kenneth Aday, Chief of Police of Killen, Alabama, was called to the store immediately after the two women left the store without paying for the packages they carried from the store. He got a description of the women from Mrs. Austin and the color of the automobile they were driving. He put out a radio broadcast for the suspects. Two days later, August 18, 1974, he was called to Russellville, Alabama, to investigate the possibility that the two suspects might be in Russellville. Mr. Aday encountered the two suspects at “Scottie’s Hamburger Place” on Highway 43 in Rus-sellville. He testified that he saw two packages in plain view on the back seat of the car in which the two suspects were sitting. One of the packages was torn and he could clearly see that cartons of cigarettes were in the package. The officer obtained the consent of the co-defendant Barbara Hall to search the car, and he obtained a package with three cartons of cigarettes contained therein. He advised Mrs. Hall she could refuse to let him search without obtaining a search warrant. She told him she had nothing to hide and got out of the car and opened the trunk of the car and otherwise helped him conduct a search of the car. The cigarettes the officer seized had the stamp, “Killen, Alabama” placed on the cartons. Both women then and there spoke up and said they had never been to Killen or Lauderdale County. The officer did not place the women under arrest or restrain them in any way. Later he obtained arrest warrants for both women.

Don Burleson, the owner of the store at Killen, Alabama testified that at the end of the day the women left his store with the packages, he took an inventory of the cigarette counter and found he was short $58.-43, which amounted to twelve cartons of cigarettes.

When the state rested, appellant made a motion to exclude the state’s evidence on the ground the state failed to make out a prima facie case. This motion was overruled and denied.

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

Larceny is the felonious taking and carrying away of personal property of another with intent on the part of the taker to convert it to his own use, or to deprive the owner thereof. The offense involves a trespass on the possession of another. Meadows v. State, 36 Ala.App. 402, 56 So.2d 789; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603.

Loss of property by felonious taking may be proved by facts and circumstances as well as by direct and positive evidence, and if the evidence affords an inference that larceny has been committed, its sufficiency is for the jury—in this case, for the court. Jones v. State, 51 Ala.App. 570, 287 So.2d 886.

Courts throughout the country-have consistently held that searches are constitutionally permissible when executed with the owner’s consent. Securing a search warrant is wholly unnecessary when consent to search has been freely given. Hernandez v. State, 50 Ala.App. 558, 280 So.2d 831; Payton v. State, 47 Ala.App. 347, 254 So.2d 351.

We find no error in the record and the judgment of conviction is affirmed.

Affirmed.

All the Judges concur.


text:
    In re Evelyn WOODS v. STATE. Ex parte Evelyn Woods.
    SC 1630.
    Supreme Court of Alabama.
    Jan. 29, 1976.
    Bryce U. Graham, Tuscumbia, for petitioner.
    None for the State.
   SHORES, Justice.

Petition of Evelyn Woods for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Woods v. State, 57 Ala.App. -, 325 So.2d 517.

Writ denied.

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


author: BOOKOUT, Judge.

text:
    Danny Ray COLSTON v. STATE.
    6 Div. 890.
    Court of Criminal Appeals of Alabama.
    Nov. 4, 1975.
    Rehearing Denied Dec. 9, 1975.

      J. Wm. Thomason, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and David L. Weathers, Asst. Atty. Gen., Birmingham, for appellee.
   BOOKOUT, Judge.

Robbery; Sentence: 50 years imprisonment.

The state’s first witness, Joe Corsentino, testified that on April 9, 1974, he was operating a store in the city of Bessemer, Alabama. On that day, around 1:20 p. m., he was on the way from the rear of the store to the front when his single employee, Mrs. Latino, informed him that there were some customers in the rear of the store. He saw two men standing before the meat counter. One of the men said, “We want seventy-five cents worth of bologna,” and one of them then-said, “Zeigler’s bologna.” He took the bologna out to slice it and one of the two men said, “I’m sorry, this is a stick-up, we won’t need this bologna.” They then searched him and took him by the hand and said, “Let’s go to the front.”

Mr. Corsentino stated that he saw Mrs. Latino, his employee, kneeling in a corner at the check-out counter. One of the two men said, “Open the cash register,” but when he started to open it, they said, “No, let her open it.” Mrs. Latino opened both registers and also gave them money from a money box. The currency taken included two rolls of quarters. Mr. Corsentino stated that the appellant then walked over to the register and got some Kool cigarettes, started around the counter, and shot Mrs. Latino and then shot him. Mr. Corsentino fell to the floor and saw the appellant shoot Mrs. Latino again.

Mr. Corsentino testified that one hundred sixty-four dollars ($164.00) in the cash register and an unknown amount of money in the currency box was taken. He also identified State’s Exhibits 1 and 2 as the coat and sweater that the appellant was wearing at the time of the robbery.

On cross-examination Mr. Corsentino was questioned concerning his identification of the appellant and one Johnny Lee White as the robbers. He admitted that he was not able to identify the appellant previously from a lineup in which the appellant was present.

However, he made a positive in-court identification of Colston and testified that his recognition came, “[b]ecause in — during the questioning of him at the inquest that there was certain expressions that he put on his face that I’ll never forget whenever 'he shot that lady.” Defense counsel then commented:

“Okay. You are telling this jury that you’re identifying this man based on an expression on his face ?”

Mr. Corsentino replied:

“That’s right, the look on his face when he came around the counter there with that gun.”

There was also some question as to statements the witness made at preliminary hearing as to whether he was so nervous at the time of the robbery that he could not identify either robber. However, the witness denied that he had become nervous and gone to pieces during the robbery, and his in-court identification was definite.

The next witness called by the state was James A. Boohaker. He testified that he was self-employed and sold groceries, candy, dry goods, and cigarettes to stores on a wholesale basis. He had served Mr. Cor-sentino’s store for over twenty years and he always went there on Mondays, and did so on April 8, 1974, at which time he left two rolls of quarters. Mr. Boohaker testified that he had obtained the rolls of coins from customers and had taped each one with masking tape and that he had been doing this as a practice for twenty years. He then identified State’s Exhibit 3 as one of the coin wrappers. He also identified his tape machine and tape.

Joanne Latino testified that she lived with her grandparents, but that before her mother’s death on April 9, 1974, she had lived with her. The main thrust of her testimony was that she identified her mother’s purse as State’s Exhibit 5 and also stated that inside her mother’s purse was a small gold coin purse, which was shown later to be in the possession of the appellant.

Loy Ray Simmons testified as to his residence and that he knew the appellant and had known him for some time. He testified that the appellant came to his house on April 9, 1974, to pick up a jacket and some pants that Simmons had been making for him. Simmons testified that the appellant showed him a small gold coin purse and asked him to burn it, but that he told Colston to take it away. On cross-examination he was not certain of the date he was shown the purse. Simmons admitted to being a homosexual, but said he had not had homosexual relations with his roommate, Willie Williams, or with Johnny Lee White. He also denied having made any sexual advances to the appellant and denied testifying against the appellant because Colston would not have sexual relations with him.

Willie Richard Williams testified that he lived with Loy Ray Simmons .and that he had known the appellant a good while. He recalled Colston and White coming to his house, although he could not recall the specific date. Williams identified State’s Exhibits 1 and 2 as the clothes worn by the appellant. He also testified that he went into a room with the appellant and White and observed a sack containing Kool cigarettes, a pocketful of change, and some one, five, and ten dollar bills, a twenty-two caliber pistol, a radio, and a movie camera.

Williams stated that he no longer lived with Simmons, and he also admitted to being a homosexual. However, he stated that he had not had sexual relations with Simmons or Johnny Lee White. Williams also denied having made any homosexual advances toward the appellant. He stated that it was not a fact that his testimony was based on a desire to see Colston convicted because Colston refused to have homosexual relations with him.

Willie Williams, correcting prior contradictory testimony, testified further that he heard Colston tell White that White did not have to shoot the lady. On redirect examination, Williams said that this occurred the last time that Colston and White were at his house together.

Joe Padalino testified that he operated a grocery store in Bessemer each day from 6:00 a. m. until around 3:00 p. m. He testified that the appellant came into his store about ten minutes before 3:00 p. m. on April 9, 1974. Appellant asked if he could get ten dollars in exchange for a roll of quarters. The appellant handed a roll of quarters to Mrs. Padalino and she handed them to Mr. Padalino. Appellant then asked if there was anything wrong and Mr. Padalino replied that there was not; that he would count the quarters later since it was almost time to close the store. Mr. Padalino stated that the roll of quarters was distinctively marked and that masking tape was over both ends. He identified State’s Exhibit 3 as the same wrapper he had given to the police on April 9, 1974.

Lieutenant J. R. Pace testified that he was Chief of Detectives for the Bessemer Police Department and that he had participated in the investigation of the robbery. Lieutenant Pace, pursuant to an investigation, went to 500 Dunbar Court in Bessemer and recovered two items of clothing identified as State’s Exhibits 1 and 2. He also identified a quarter wrapper he received from a police sergeant which he had turned over to the State Toxicologist’s Office in Birmingham for testing. Lieutenant Pace also stated that the appellant had been in numerous lineups but had never been positively identified. He stated that both the appellant and Johnny Lee White were known by him and that the appellant is the darker of the two black males.

Craig Bailey testified for the state that he was a criminologist employed by the State Department of Toxicology and Criminal Investigation, located in Birmingham. He had examined a quarter wrapper and he identified it as State’s Exhibit 3. He also had examined a tape dispenser which was identified as State’s Exhibit 4. The witness then explained that he had made a gross examination and a microscopic examination of the width of the teeth marks made by the tape dispenser and had compared those to the tape on the rolls and found them to be of the same consistency. He stated that he had examined them as to color, texture, and aging, and found them to be similar. State’s Exhibits 1, 2, 3, 4, and 6 were then received into evidence without objection.

The defense called as its first witness, Carl Sims, who stated that he had been in Mr. Corsentino’s store prior to its being robbed and that he saw two black males there. He stated that he could not identify whether Johnny Lee White was one of them or not. He was also asked whether he had a judgment as to whether the appellant was in the store at the time. This was objected to and sustained. The witness then testified that he observed the two black males in the street and that they were about the same height and that one appeared a little darker than the other. He stated that one of them told him they were about to rob the store and to get what he wanted and leave. Sims then left, and seeing Mrs. Corsentino down the street, stopped her and informed her that there might be trouble at the store.

Appellant, Danny Ray Colston, testified that the first time he saw Johnny Lee White on April 9, 1974, was early in the day when he and Willie King and Myron Williams were riding around together and picked up White. The appellant stated that White was talking about robbing something that day and appellant told him that he (White) had just gotten out of jail and should not do anything like that. The appellant said that he and White got out of the car. He refused to go with White and instead went to look at a car at a car lot. It was some time later that he was walking to Simmons’ house to get the suit, that White pulled up and told him to get in the car. He stated that another person was driving the car and that the other person told White that he did not have to shoot the woman, to which White responded that he had to and that he hated white people anyway. Colston said White then gave-him a roll of quarters and said not to say anything to anybody about the incident. The appellant testified that they went into Simmons’ house where the appellant put the suit coat on and that the conversation was that White should not have committed the robbery since he had just gotten out of jail. Colston said White again told him, “not a word to anybody.”

The appellant stated that he did not participate in any way in the robbery and that both Simmons and Willie Williams had made sexual advances to him, which he had refused. The appellant stated that both Williams and Simmons said .they would get him some day, but he had thought it to be a joke at the time.

On rebuttal the state called Myron Williams who stated that White and Colston were riding around with him on the morning of the robbery and that both got out of the car together around 11:00 a. m. He said that he had occasion to see the appellant at a local club called the Casino, on the night of April 9. The appellant told him that he and Pink Panther (nickname for Johnny Lee White) had gone to South-side and hit a store, and that he thought Pink Panther had shot at the floor four times.

The state rested at this point and defense counsel asked that the state be required to produce a statement of Mr. Cor-sentino taken by police officers and a statement taken of Myron Williams. That motion was overruled. The state then requested and was allowed to reopen its case, over objection. The state recalled the appellant, Colston, for recross examination. Colston testified that he had been convicted in 1971 of buying, receiving or concealing stolen property.

On redirect examination, Colston testified that he did go to the Casino and saw Myron Williams there that night, but that he did not tell Williams that he and White had hit a store, or that White had fired four times into the floor. He further testified that he had pled guilty to the charge of buying, receiving or concealing stolen property.

I

Appellant contends that it was error for the trial court to allow the prosecutor to make numerous remarks concerning murder in closing argument.

The recent case of Edson v. State, 53 Ala.App. 460, 301 So.2d 226 (1974) held:

“There is no legal standard by which the prejudicial qualities of improper remarks of a district attorney in the trial of a case can be gauged. Each case must be determined on its own merits. Smith v. State, 282 Ala. 268, 210 So.2d 826.
Counsel are allowed considerable latitude in drawing their deductions from the evidence in argument to the jury. Bryson v. State, 264 Ala. 111, 84 So.2o (sic) 785; Garrett v. State, 268 Ala. 299, 105 So.2d 541; Espey v. State, 270 Ala. 669, 120 So.2d 904.”

In the instant case, it is the appellant’s contention that there were numerous remarks injected by the prosecutor into the trial which were highly prejudicial to the outcome of the case. Those remarks concerned the shooting of Mrs. Latino. However, evidence was presented by Mr. Cor-sentino that Mrs. Latino was shot during the course of the robbery. This was clearly part of the res gestae, Dillard v. State, 27 Ala.App. 50, 165 So. 783. Thus, it was a proper subject of comment.

In Jackson v. State, 229 Ala. 48, 155 So. 581 (1934) the Supreme Court stated:

“. ... Everything constituting the one continuous transaction is admissible as of the res gestae. No matter how many distinct crimes may be involved, all the details of the one continuous criminal occurrence or adventure may be considered by the jury in passing upon the culpability, the wickedness, and depravity of the crime for which the party is being tried. In cases of robbery the jury is given a wide range of discretion in fixing the punishment. They may look to all the circumstances constituting part of the res gestae in meting out punishment within the limits prescribed by law. It follows all these circumstances are the subject of legitimate argument on the part of the solicitor. Ingram v. State (39 Ala. 247), supra; Kennedy v. State, 182 Ala. 10, 62 So. 49; Smith v. State, 88 Ala. 73, 7 So. 52; 16 C.J. § 1115.”

Appellant’s counsel made repeated objections and motions for mistrial during the prosecutor’s closing argument, which were overruled. The following appeared in the record:

“MR. REYNOLDS: You say, well, Myron Williams told us that Danny Colston told Johnny White, ‘You didn’t have to shoot the lady,’ and Myron Williams up here said it, he said Johnny Lee White committed the offence (sic) by shooting the lady. . First of all, he’s charged with robbery, not murder. Second of all, he’s guilty of both, if you want to know the truth about the facts of the matter, because—
“MR. THOMASON: May it please the Court—
“THE COURT: — Sustained.
“MR. THOMASON: We move for a mistrial.
“THE COURT: Overruled.
“MR. THOMASON: That’s entirely prejudicial.
“MR. REYNOLDS: I’m arguing the res gestae in the case.
“THE COURT: Overruled.
“MR. THOMASON: Move for a mistrial.
“THE COURT: I thought I overruled.
“MR. THOMASON: Maybe you did, Your Honor.
“THE COURT: Overruled.”

Before counsel could finish his objection, the trial court sustained it, but there was no request made to exclude this from the jury. A similar situation arose in Hipp v. State, 47 Ala.App. 580, 258 So.2d 920 (1972) wherein this Court said:

“We shall now consider whether or not there was reversible error connected with the argument of the district attorney by the ruling of the court thereon. Objections to the remarks were sustained. There were no requests that they be excluded from the jury. We do not consider the statements of such prejudicial nature as that their possible unfavorable influence could not have been eliminated by proper instruction from the trial judge if corrective action had been requested. Woodward v. State, 34 Ala.App. 391, 40 So.2d 737, certiorari denied, 252 Ala. 326, 40 So.2d 741.”

In Scott v. State, 47 Ala.App. 509, 257 So.2d 369 (1972) this Court stated:

“Ordinarily there are three situations in which improper argument may be the basis for reversal. The first of which is an argument which is so grossly improper and highly prejudicial as to be ineradicable by proper ruling of the judge. Anderson v. State, 209 Ala. 36, 95 So. 171. Second, is argument which in its cumulative effect creates an atmosphere of bias and prejudice which no remarks by the trial court could eradicate. Blue v. State, 246 Ala. 73, 19 So.2d 11. It differs from the first type of improper argument in that no single remark would be sufficient justification for reversal. Instead, the cumulative nature of the remarks creates an atmosphere of prejudice which requires reversal. Finally and obviously, is prejudicial argument which the judge fails to rule on properly.”

The argument of the prosecuting attorney does not fall sufficiently within any of the three categories quoted above, so as to warrant reversal' of this case. The evidence presented at trial established that Mrs. Latino was shot during the robbery and died as a result. Therefore, the closing argument of the prosecuting attorney was in fact based upon the evidence. The trial judge promptly sustained objection to the prosecutor’s remarks, quoted hereina-bove, before counsel could finish his objection. Looking at the argument, and realizing that we have only before us that portion of the argument to which objections were made, it is the opinion of this Court that such argument was not so grossly improper and prejudicial as to deny the appellant his right to a fair and impartial trial.

. II

Appellant contends that a case may not be reopened after both sides have rested and a witness called for further evidence unless there be a showing why such evidence was not elicited previously and why it was not offered before both sides rested. As authority, appellant cites Brooks v. Cox, 285 Ala. 267, 231 So.2d 302 (1970). In Brooks, the trial judge denied the plaintiff’s motion to reopen the case which was not an abuse of discretion. However, the reopening of the state’s case, after it has rested, is a matter which can be denied or allowed within the discretion of the trial judge. Savage v. State, 8 Ala. App. 334, 62 So. 999 (1913); Boice v. State, 10 Ala.App. 100, 65 So. 83 (1914); Miller v. State, 39 Ala.App. 584, 105 So.2d 711 (1958).

In Breedlove v. State, 44 Ala.App. 191, 204 So.2d 836, (1967) this Court stated:

“The courts of this State have further held that the court may, in its discretion, allow a case to be reopened by the State after defendant had rested. Williams v. State, 26 Ala.App. 531, 163 So. 663, cert. den. 231 Ala. 127, 163 So. 667; Nicholson v. State, 149 Ala. 61, 42 So. 1015; Payne v. State, 261 Ala. 397, 74 So.2d 630.”

In the instant case both sides had rested. However, no arguments had begun when the trial judge allowed the state to reopen their case. In Hill v. State, 48 Ala.App. 240, 263 So.2d 696 (1972) Judge Tyson, speaking for this Court, stated:

“The Court allowed the State to reopen its case, over objection, for the purpose of proving the value of the car. The reception of additional evidence after the State has closed, but before final argument, to supply an omission, is within the discretion of the trial judge.”

It follows from the authorities cited herein that the trial judge has the discretionary power to allow or disallow the reopening of the case after either or both sides have rested but before final arguments to the jury have commenced. It is therefore the opinion of this Court that there was no error below in allowing the state to reopen its case.

Ill

Appellant contends that it was error for the trial court to comment on the evidence by giving a charge on the law concerning accomplices. Appellant argues that there was no evidence in this case which would have authorized the giving of the accomplice charge. However, we find that there was evidence introduced at trial which would justify the giving of such charge. There was testimony that the appellant was with White before and after the robbery and that he received a roll of quarters from White. Mr. Corsentino testified that there were two men who committed the robbery at his grocery store and that appellant was one of them.

The charge given by the trial judge was taken from Title 14, Section 14, Code of Alabama 1940 which reads as follows :

“Accessories before the fact; principals in first and second degrees; distinction abolished. — The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors.”

In Parsons v. State, 33 Ala.App. 309, 33 So.2d 164 (1947) Judge Harwood, in construing this section, stated:

“The participation in a crime and the community of purpose of the perpetrators need not be proved by direct or positive testimony, but may be inferred from circumstantial evidence. West v. State, 25 Ala.App. 492, 149 So. 354; Kelly v. State, 31 Ala.App. 194, 13 So.2d 691; Williams v. State, 31 Ala.App. 48, 11 So.2d 870, and where several persons participated in a robbery it is immaterial which one takes the property. Hood v. State, 18 Ala.App. 287, 92 So. 30. All persons participating in a crime are guilty as principals. Title 14, Section 14, Code of Alabama 1940.”

In Morris v. State, 146 Ala. 66, 41 So. 274 (1906), our Supreme Court said:

“When by prearrangement, or on the spur of the moment, ‘two or more persons enter upon a common enterprise or adventure, and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist, the active perpetrator in the commission of the offense, is a guilty participant, and, in the eye of the law, is equally guilty with the one who does the act. Such community of purpose, or conspiracy, need not be proved by positive testimony. It rarely is so proved. The jury are to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony-in the case.’ ”

Likewise, in Jones v. State, 174 Ala. 53, 57 So. 31 (1911), the Court stated:

“Aid and abet ‘comprehend all assistance rendered by acts or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out.’ [Raiford v. State] Raiford’s Case, 59 Ala. 106; [State ex rel. Attorney General v. Tally] Tally’s Case, 102 Ala. 25, et seq., 15 So. 722.”

See also, Gray v. State, 52 Ala.App. 481, 294 So.2d 448 (1974).

It is the opinion of this Court, that under the evidence presented, the trial judge in the instant case properly charged the jury.

IV

Appellant contends that any system of jury selection or jury striking which is not uniform statewide violates the Alabama and U. S. Constitutions.. Article VI, § 139, Constitution of Alabama; Fourteenth Amendment, United States Constitution.

The present law in question, Section 714, Vol. 14, Appendix, Code of Alabama 1940, Recompiled 1958, applies to counties attaining a population of 400,000 or more. Appellant argues that Dixon v. State, 27 Ala. App. 64, 167 So. 340, cert. den. 232 Ala. 150, 167 So. 349 (1936), which holds the aforementioned law constitutional, is no longer controlling. However, this Court has very recently reviewed Dixon, and found that it is still controlling. Mallory v. State, 55 Ala.App. 82, 313 So.2d 203 (1975). See also Junior v. State, 47 Ala.App. 518, 257 So.2d 844, cert. den. 288 Ala. 744, 257 So.2d 852 (1972).

We do not construe Article VI, Section 139, Constitution of Alabama, as affecting the selection of juries in Jefferson County. The phrase, in Section 139, “. . . the judicial power of the state shall be vested in a unified judicial system . . .,” has reference only to the establishment of a system of appellate, circuit, district, probate, and municipal courts. It has no application as suggested by appellant.

V

Appellant contends that the venire from which he had to strike a jury was not drawn in conformity with the statute. He contends that he was not allowed to strike a jury from a venire selected by a random drawing of available jurors.

J. B. Vines, the Circuit Clerk for the Bessemer Division, testified as to the method of selection of jurors in that Division. He explained that after the venire had been sworn, the cards of all available jurors were shuffled and then put in groups of twelve. At the time thirty-six veniremen were, presented in the instant case, from which the defendant and the state were to strike, a jury was deliberating in another court. The thirty-six had been drawn from all the remaining jurors available at,that time, excluding those then serving on the other jury.

After cards of all available jurors, had been shuffled and segregated into groups of twelve, the first thirty-six then available, in numerical order, were presented for striking. Some seven cards were left after the thirty-six were drawn.

Appellant moved that he be, “allowed to strike from the entire venire.” The Court overruled. The next day, .the appellant asked the Court to take judicial knowledge that the other jury had ended deliberations and was available for service. He moved the Court to reorganize the venire and include that jury. The Court also overruled that motion. The motion, as presented, and evidence thereon were limited to the method of selecting the list of thirty-six jurors from which both sides would strike.

Code Section 715 of Vol. 14, Appendix, sets forth the proper method:

“§ 715. Manner of obtaining names for jurors in attendance; selection in absence of demand for struck jury. — The twenty-four, or thirty-six, jurors shall be obtained from all of the jurors then in attendance upon the court and who at the time are readily and presently available for the trial of the case in such manner but without selection of names as the judge of such courts may prescribe by rule of court, or if no such rule is provided, then in such manner, but without selection of names, as ordered by the judge presiding on the trial of the case. In the event neither the prosecution nor any defendant demands a struck jury, the court shall obtain without selection of names, twelve competent jurors from the jurors then in attendance upon the court, and readily available for the trial, which said twelve jurors shall try the case. (1955, 2nd Ex.Sess., p. 166, appvd. Apr. 8, 1955; 1955 Cum.Supp., 62 § 227(1).)” (Emphasis supplied).

. In reviewing the testimony of the Circuit Clerk, we find no evidence that the thirty-six were selected improperly. The above emphasized portions of Sec. 715 leave the manner of selection to the discretion of the trial court, with the limitation that it must be accomplished, “without the selection of names.” There is no evidence that the names of the jurors were the basis of their selection. In fact, of all those appearing and sworn, the jury panels were drawn from the shuffled cards, and listed numerically in the sequence in which they were drawn. Excluding the first jury then deliberating, appellant was given a list of thirty-six from which to strike of 'those remaining and then available.

Section 715, supra, does not require that the lists be made in the order that they are drawn from a hat or a box. That section gives the trial court discretion to draw from a hat or a box, or to select some other method, “but without selection of names.”

We see no material or prejudicial difference between (a) shuffling a group of cards and then compiling a list as they appear numerically in the stack, as opposed to (b) putting the cards in a box and numerically listing them as each is drawn therefrom. In either instance the selection is without regard to whose name appears on the card.

We likewise find no merit in appellant’s argument that the trial court should have reorganized the venire the next day when the other jury finished its deliberations and was available. The list of thirty-six jurors was selected from all jurors available at the time it was presented to the appellant. That is all the law required.

It would be an unreasonable burden to require a court to reorganize a venire list already provided in a particular case each time a jury in another court had been dismissed and became available. In circuits such as Jefferson County this is especially so where, many trials are continually in progress.

VI

Appellant states a correct proposition of law, that he has the right of wide-ranging cross-examination. Title 7, § 443, Code of Alabama, 1940. However, we disagree that he was prejudicially limited in the scope of his ■ cross-examination in the instances complained of.

Appellant’s contention is that he was unable to explore the possibility that Johnny Lee White was a procurer of males for Loy Ray Simmons and Willie Williams. Johnny Lee White was not a party to the instant case nor was he a witness. Whatever probative' value such would have is uncertain. Counsel for appellant stated to the trial court, in the presence of the jury,

“ . . . We hereby offer to show that the reputation of this witness is a male and that this witness’s sexual practice is to have sex relationship with males and that this witness has made sexual advances to the defendant and those sexual advances have been declined by the defendant, the defendant has refused to have sexual relations with this witness.. . ."

The defense was allowed: (1) to ask Simmons if he was a homosexual, which he admitted; (2) to ask if Simmons had had sexual relations with Williams, which he denied; (3) to ask twice if Simmons had made sexual advances toward the appellant, which he twice denied; (4) to ask Simmons if Williams was his “husband,” which he denied; (5) to ask Simmons what his sleeping arrangements were with Williams; (6) to ask Simmons if he said his name was Laura; (7) to refer to Simmons as “her” in a verbal motion to exclude Simmons’ testimony; (8) to ask Simmons if he had sexual relations with Johnny Lee White, which he denied; and (9) to ask Simmons twice if his testimony concerning appellant’s possession of the gold coin purse was as a vendetta against appellant for having refused Simmons’ sexual advances. Simmons denied this.

The defense was then allowed: (1) to ask Willie Williams if he had sexual relations with Simmons, which he denied; (2) to ask Williams if he had sexual relations with Johnny Lee White, which he denied; (3) to ask Williams if he knew whether White was a homosexual, which he did not know; (4) to ask three times if Williams had made homosexual advances toward appellant, which he denied three times; and (5) to ask Williams if his testimony was not based upon a desire to convict appellant because appellant had refused to have a homosexual relationship with him. Williams denied this.

We are unable to find' that the trial court’s refusal to allow appellant to continue such repetitious and futile lines of questioning amounted to a prejudicial limitation on the right of cross-examination. Wright v. State, 49 Ala.App. 539, 274 So.2d 95 (1973); Browder v. State, 54 Ala.App. 369, 308 So.2d 729, cert. den. 293 Ala. 746, 308 So.2d 735. (1974).

VII

In testing the sufficiency of the evidence, we are required to consider the evidence in the most favorable light for the prosecution. Womack v. State, 34 Ala.App. 487, 41 So.2d 429 (1949). Conflicting testimony presents a question for the jury, and this includes identification testimony. A verdict of guilty may not be set aside on the ground of insufficiency of the evidence, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it was wrong and unjust. Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969).

Where there is legal evidence from which the jury can, by fair inference, find the defendant guilty, we have no right to disturb such verdict. Price v. State, 53 Ala.App. 465, 301 So.2d 230 (1974); Pugh v. State, 51 Ala.App. 164, 283 So.2d 616 (1973); Bass v. State, 55 Ala.App. 86, 313 So.2d 208 (1975).

We here find that the prosecution presented sufficient evidence to support the jury’s verdict of guilty.

Affirmed.

All the Judges concur.


author: JONES, Justice.

text:
    In re Danny Ray COLSTON v. STATE. Ex parte Danny Ray Colston.
    SC 1620.
    Supreme Court of Alabama.
    Jan. 29, 1976.
    J. Wm. Thomason, Bessemer, for petitioner.
    None for the State, respondent.
   JONES, Justice.

Petition of Danny Ray Colston for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Colston v. State, 57 Ala.App. -, 325 So.2d 520.

Writ denied.

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