text:
    Gabriel HAGENDORFER v. STATE.
    1 Div. 784.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    As Corrected On Denial of Rehearing June 28, 1977.

      J. Michael Druhan, Jr., Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

Gabriel Hagendorfer was charged by the indictment with unlawfully selling marihuana to William Womack, on June 12, 1976, contrary to the provisions of the Alabama Uniform Substances Act., The jury’s verdict found the appellant guilty as charged, and the trial court entered judgment which set sentence at six years imprisonment in the penitentiary.

The appellant asserts four contentions on appeal which arise from the following testimonies at trial conducted November 8,1976, in the Circuit Court of Baldwin County.

William H. Womack, a State Narcotic Agent with the ABC Board, and Roland Wayne Howell, a Deputy Sheriff with the Baldwin County Sheriff’s Department, testified that they were together on the evening of June 12, 1976, when they first encountered the appellant, Gabriel Hagendor-fer, near the baseball park in Pensacola, Florida. They had driven to this location from near Elberta in Baldwin County in the company of the appellant’s brother, Billy Hagendorfer, and a girl named Mary Frank. Subsequently the officers followed the appellant back across the “Lillian Bridge” along U.S. Highway 98 until it intersected with County Road 87, just east of Elberta where the appellant turned off. The appellant was driving a Chevrolet Camero, and the two officers were following in an unmarked automobile. The appellant pulled up a couple of a hundred yards, stopped, and the two officers pulled up beside him. The appellant advised them, “It’s right here,” and proceeded to fill three plastic sandwich bags, commonly called “baggies,” and the two officers paid him $45.00, two twenties, and a five dollar bill. He then handed the three bags of marihuana to the officers. This transaction took place between five and ten minutes, and occurred between 10:00 and 10:30 o’clock on the evening of June 12, 1976 (R. pp. 20-21).

The two officers shortly thereafter delivered the three plastic bags to Deputy Gene Kinsey, who placed them in a manila envelope and marked the envelope with his initials, then delivered this envelope to Chief Deputy Sheriff James W. Anderson, Jr.

The following morning, June 13, 1976, Deputy Larry Linder received the manila envelope from Chief Deputy Anderson about 9:00 a. m., and after examining it and finding that it contained three plastic bags of marihuana, he initialed the envelope and delivered it to State Toxicologist James L. Small at the Mobile office.

Mr. Small testified that he performed two scientific tests on the contents of the three plastic bags in addition to examining the substance through a microscope. Mr. Small testified that the total weight of the green plant material was 61.2 grams, and that it was marihuana.

The appellant presented the testimony of Mary Frank and his brother, Billy Hagen-dorfer, in addition to his own testimony, which did not vary from the testimonies of Officers Womack and Howell, except that the defendant’s witnesses contended that the sale of the marihuana to Officers Wom-ack and Howell took place in Florida before they crossed the Lillian Bridge into Baldwin County.

I

The appellant first contends that the State failed to prove a prima facie case in that the alleged marihuana was never admitted into evidence.

We have carefully examined this record and determined that the substance was marked for identification on motion of the District Attorney, Mr. Hendricks, as State’s Exhibit 2, and was exhibited to the jurors with the statement from Mr. Hendricks, “We want to introduce these three packages, these three things in evidence here, and you can combine them.” No objections were interposed by the appellant, nor was there an issue made at trial to this offer of this proof.

We are of the opinion that the State here established through the testimony of the several officers a prima facie case, and that venue of the offense was also properly established. Hill v. State, 56 Ala.App. 369, 321 So.2d 708, cert. denied 295 Ala. 405, 321 So.2d 713.

Moreover, the State Toxicologist, Mr. Small, and three of the officers identified the substance in question as marihuana. This was without objection or exception. We therefore, are of the opinion that the appellant’s argument is not well taken. Gamble v. State, 48 Ala.App. 605, 266 So.2d 817; Simpson v. State, 51 Ala.App. 279, 284 So.2d 734; Hill v. State, supra; Means v. State, 51 Ala.App. 8, 282 So.2d 356, cert. denied 291 Ala. 792, 282 So.2d 359, and authorities therein cited.

Moreover, the appellant’s own witnesses at trial identified the substance as marihuana. Thus, no error is shown.

II

The appellant also contends that there was a fatal variance between the indictment and proof on trial since the evidence established a sale to Deputy Sheriff Roland Howell “when the indictment charged the unlawful sale of marihuana to William Womack.”

At the outset, we note there was no demurrer imposed to the indictment, nor was the sufficiency of this indictment raised at trial. Where, as here, the indictment follows substantially the language of the statute, but simply fails to set out the name of the vendee, such was nevertheless sufficient to support a judgment of conviction. Duin v. State, 288 Ala. 329, 260 So.2d 602, and authorities cited therein.

In the case at bar, however, the indictment simply averred the name of Agent Womack when the proof on trial affirmatively establishes that both officers participated in the purchase from the appellant, and each was handed at least one plastic bag of marihuana at the time of the alleged sale (R. pp. 20-22, and R. pp. 41-48).

We are of the opinion that this was one joint transaction, and the evidence was properly admitted as to the sale to the officers, Womack and Howell. Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert. denied 292 Ala. 743, 290 So.2d 213, and authorities therein cited.

III

The appellant asserts that there was a prejudicial comment in the presence of the jury by the district attorney just before the noon recess, wherein the following occurred (R. pp. 39-40):

“THE COURT: All right. Ladies and Gentlemen, we are going to recess for lunch. Let me caution you not to discuss this case with anyone, not even among yourselves. Do not allow anyone to discuss it in your presence. If they do, tell them you are on this Jury, and if they persist in discussing it with you or in your presence, please report that back to the Court. Let me caution you not to discuss this case with anyone.
“MR. HENDRICKS: Are you going to keep them together?
“THE COURT: No, sir. I have already discussed' that with both of them. All right, Ladies and Gentlemen, you are excused. Let’s try to get back here by 1:15.
“(WHEREUPON, A RECESS WAS HELD, AFTER WHICH THE FOLLOWING OCCURRED:)

This argument, however, overlooks the agreement between the attorneys that the jurors could separate (R. pp. 3 — 4), and in addition, there was no objection or other motion with reference to the comment of the district attorney above shown. Therefore, no ruling of the trial court was invoked. In brief, the appellant seeks to assert the invalidity of Title 30, Section 97, Code of Alabama 1940, as being violative of the Fourteenth Amendment to the Constitution of the United States (Appellant’s brief, page 9).

In Weathington v. City of Birmingham, 52 Ala.App. 77, 289 So.2d 645, writ den. 292 Ala. 757, 289 So.2d 649, we find the following discussion:

“Further, to warrant a court in decreeing a statute void, its invalidity must be distinctly pointed out. Cooper v. Hawkins, 234 Ala. 636, 176 So. 329.
“Here, the alleged unconstitutionality of this act was not raised in the trial court. As stated in Williams v. City of Birmingham, 41 Ala.App. 208, 133 So.2d 713, cert. denied 272 Ala. 671, 133 So.2d 718, ‘We are not at liberty to consider a question which was not raised below.’
“There is no evidence or pleading pertaining to this issue in the record. Therefore, there is nothing for this Court to review on this alleged error. Williams v. State, 291 Ala. 505, 282 So.2d 905.”

Moreover, the argument here asserted by the appellant has been expressly rejected by the Supreme Court of Alabama in Young v. State, 283 Ala. 676, 220 So.2d 843.

IV

Finally, the appellant asserts that he was improperly impeached at trial with reference an alleged conversation which took place three or four days after the alleged sale in question between the appellant and the two officers at Wolf Bay Lodge. On Record page 114, during cross-examination, we find the following colloquy:

“Q. Did you see either or both of these officers two or three days after this night that we are talking about?
“A. Yes, sir.
“Q. Where?
“A. At a place called Wolf Bay Lodge. It was a week to the day.
“Q. Did you talk to them?
“A. They talked to me.
“Q. They talked to you?
“A. Yes. They wanted to buy some more.
“Q. Did you tell one of these officers on that occasion, or both of them, that you were so bummed out of your mind, in those exact words, so bummed out of your mind on the night that you made the sale to them that you didn’t even know how much you let them have or what they paid you?
“A. No, sir.
“Q. You didn’t say that to these officers?
“A. No, sir.
“MR. HENDRICKS: That’s all.”

In rebuttal, both Officers Womack and Howell were called to the stand and were asked if in fact the appellant had made a statement in effect that “he was so bummed out of his mind that he did not remember,” and each officer answered in the affirmative (Deputy Howell, R. pp. 116-117; and Agent Womack, R. pp. 121-122).

We are of the opinion that the trial court was careful here to see that a proper predicate was laid for this impeachment testimony; and that in the first instance where the district attorney referred to Wolf Bay Lodge as Gulf Gate Lodge, such was corrected during the testimony of the two officers so that there was no question as to the place where such statement was made, and moreover, that the time and essence of the statement were sufficiently called to the appellant’s attention during the cross-examination shown above. We are of the opinion that this statement, being in effect an admission against interest, was properly admitted by the trial court. Blackwell v. State, 264 Ala. 553, 88 So.2d 347, and authorities therein cited.

We have carefully examined this record and find same free from error. The judgment is therefore

AFFIRMED.

All the Judges concur.

      . Title 22, Section 258(29)(d), Code of Alabama 1940, as amended 1971.

      . Appellate counsel did not represent the appellant on trial of this cause.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte Gabriel HAGENDORFER.
    SC 2710.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


author: DeCARLO, Judge.

text:
    Thad WILLIAMS, alias v. STATE.
    3 Div. 582.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 7, 1977.

      Frank L. Thiemonge III, Piel, Lynn & Thiemonge, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Robbery; ten years.

The appellant is before this court with appointed counsel and a free transcript.

The evidence offered on behalf of the State was as follows:

Cynthia Hart, on December 30, 1975, was employed at the Sears Store at 1920 South Court Street in Montgomery, Alabama. About 6:30 P. M. that day she left work and was walking toward her car in the employees’ parking lot, which was about sixty-five feet from the store. It was not really raining but was misting and the light in the parking lot was not good. Hart testified that as she was walking to her car, she noticed two black males approaching her. As they continued to walk toward her, she stopped momentarily, and then began to walk again. She was about five cars from her car at the time and as they came up to her, one of them went behind her and the other pulled a gun and said: “Give me your purse.” Hart stated that he asked her how much money was in her purse and she told him there was ten dollars. He then asked what was in the sack she had and when she told him it was a dress, he said; “Okay, get in your car and get out of here.” She recalled that the first thing the one man with the gun said to her was: “This is a real gun.” Hart described the gun as a small, shiny pistol. She said that only one of the men talked and that he was the one with the gun.

Hart testified that she was put in fear at the time and that the entire confrontation lasted about five minutes. She stated that when the men left they walked across the parking lot toward Court Street. Hart said that at that point, she went to her car and drove to the Sears’ shipping dock where she reported what had occurred.

During the. trial, Hart described the man who had robbed her as being about medium height and wearing blue jeans. She said one of the robbers had on a hooded sweatshirt and the other was wearing a windbreaker. She identified the appellant as one of the men involved in the robbery and said that although she was not “one hundred percent sure,” she was “very sure” he was involved.

Hart stated that the purse that was taken was valued at ten dollars and that it contained two dollars. She explained that she had told one of the males that the purse contained ten dollars but realized later that the money was in her jacket pocket.

The witness recalled that in January she had attended a lineup supervised by Detective Fisher. At that point in the trial, the defense made a motion for a voir dire examination outside the presence of the jury. During this hearing, Hart testified that about three weeks after the robbery, she viewed the lineup with William G. Summers. She said there were five or six men in the lineup and they were all black and wore either blue denim or gray clothing. Hart identified the appellant during the hearing and stated she did not know when Summers made his identification. According to Hart, at the time she viewed the lineup, no one made any indication to her as to who they thought the alleged robber was. She said that Detective Fisher told her prior to viewing the lineup: “If he was in there, the man that I thought did it, to pick him out and let him know.”

At the completion of Hart’s testimony, during the voir dire hearing, defense counsel moved to exclude all of her testimony concerning the lineup on the grounds that Hart testified that she thought it was the defendant and did not make a positive identification. The court overruled the motion and Hart continued her testimony when the jury returned. She then identified the defendant as the one who stole her purse and recalled that he had a “slight limp.”

On cross-examination, Hart said that, at the time of the incident, it was dark and that the parking lot was not well lighted. According to Hart, when she first noticed the two males, they were about ten feet away. She said: “. . .1 knew something was going to happen so I then started to turn and go back in the store and then he said ‘This is a real gun and I’ll use it.’ ”

On re-direct examination, Hart said she noted the appellant’s manner of walking on her own, but had forgotten about it until she saw him walk at the lineup.

William G. Summers, Jr., was employed by the Montgomery Police Department and on December 30, 1975, was also working as a security guard at the Sears Roebuck Store on Court Street in Montgomery. On the above date, he was in the stock room on the second floor of the store and was watching the “employee parking lot” through binoculars. It was misting at the time and he saw two subjects come out of a wooded area near the corner of the parking lot and walk into or around the store. When they returned, he saw them come out of the woods again and position themselves behind a “Goodwill box.” According to Summers, they were behind the box about two or three minutes and about that time Cynthia Hart was walking to her car. He stated the two came from behind the “Goodwill box” towards Hart. Summers said:

“. . . the one that had a grey sweat shirt on, he motioned for her to stop with his left hand and with one motion, with his right hand, he came from his beltline to her bustline with a pistol or what I thought was a pistol. And the other subject stationed himself around behind her and he reached out and got her purse, motioned for her to go on and at that time I left my observation point.”

Summers said he went downstairs and tried to apprehend the two.

During cross-examination, Summers stated that it was approximately 9:30 on the night of the incident when he “. made the identification from the photo book.” According to Summers, he based his identification on the defendant’s facial features. Approximately three weeks after the robbery Summers attended a lineup. He said Hart did not make an identification in his presence. Summers stated that although he- did not make his identification of the defendant known until after the viewing, he had made an identification to himself at the time the lineup was taking place. He said no police officer supervising the lineup made any suggestion to him as to whom he should identify. Summers testified that Detective Fisher had told him to just look at the lineup and keep his “answer to himself.” He acknowledged there was not any doubt in his mind that the defendant was the man he saw in the parking lot, but said he did not notice anything distinctive about the way the man was walking.

Art E. Fisher was a detective with the Montgomery Police Department, and was the officer who organized the lineup conducted on January 20, 1976. He testified that Officer W. G. Summers and Cynthia Hart observed the lineup. Fisher said there were five black males in the lineup, one of which was the defendant. He described each of the men in the lineup as to age, height and weight. Fisher said that during the lineup the five members were asked to state: “Get in your car and get out of here.” He said that when the lineup was terminated, he escorted Hart to his office. While Fisher and Summers were standing in the hall outside Fisher’s office, Officer Summers positively identified the subject as number five in the lineup. Number five was ascribed to the appellant. Further, Fisher said:

“Cynthia Hart stated that number five resembled the subject inasfar [sic] as the speech, the walk, the height, the body build but she would not give a positive facial identification but tentative identification.”

At the end of Detective Fisher’s testimony, the State rested and the defense counsel made a motion for an affirmative charge, a directed verdict, and a motion to exclude the State’s evidence. He assigned as grounds that the identification was “very shaky” and there was an extreme conflict in the testimony on vital points of the case. Further, he maintained the State had failed to prove that the defendant was involved in the alleged robbery. The court denied the motion and the defendant called Cynthia Hart as its only witness.

Hart stated that the appellant’s limp that she had noticed, “. . . wasn’t an actual limp like a handicap or anything, it was just the particular way he walked, a swagger or something.”

At the end of Hart’s testimony, the defense rested without putting on any further evidence.

I

Counsel for appellant maintains that the in-court identification of the- appellant was inadmissible because appellant did not have counsel and did not waive counsel at the pre-trial lineup.

A person’s right to counsel at a pretrial lineup attaches:

“ . . . only at or after the time that adversary judicial proceedings have been initiated against him. [Citations omitted.]
“. . . whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411.

Accord: United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619; Ratcliff v. State, 49 Ala.App. 77, 268 So.2d 858; Houston v. State, 49 Ala.App. 403, 272 So.2d 610; Giles v. State, 52 Ala.App. 106, 289 So.2d 673.

In the present case the record indicates that the only objections made concerning the lineup, were that the victim’s testimony should have been excluded because she did not make a “positive identification.”

We are unaware of any decision that maintains that one viewing a lineup must make a positive identification before his testimony is admissible in court. The question of whether the victim’s identification was positive or not goes to the weight and credibility of her testimony, and was a question for the jury. Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336;

In addition, the victim, and the police officer who was viewing the alleged robbery through binoculars, had ample facts upon which to base an identification of origin independent of the lineup.

Under these circumstances, the lower court’s denial of the motion was correct.

II

It is maintained that the indictment should have alleged the specific date of the offense and the failure to do so prevented preparation of appellant’s defense.. Counsel argues that appellant’s motion for a mistrial should have been granted when it was shown that the offense occurred in December of 1975, and not in June of 1975.

The record shows the indictment followed form 95, T. 15, § 259, Code of Alabama 1940, Recompiled 1958. Further under T. 15, § 237, Code of Alabama 1940, Recompiled 1958, no requirement exists for an averment of the precise time when an offense was committed.

In Harris v. State, 44 Ala.App. 449, 212 So.2d 695, this court stated: “Time is not a material ingredient in a charge of robbery.”

The trial court’s ruling on the motion for a mistrial was correct.

III

Under the facts recited above, there was enough evidence to allow the jury to draw the inference that the appellant was the person who committed the robbery. The only defense witness called was the victim of the robbery. Although the victim did not make a positive identification, there was testimony from another witness who did positively identify the appellant. Whether the evidence offered established the identity of the appellant as one of the robbers presented a question for the jury. Carpenter v. State, supra.

In our judgment, the evidence was sufficient to sustain the jury’s verdict. Willcutt v. State, 284 Ala. 547, 226 So.2d 328; Raybon v. State, 55 Ala.App. 143, 313 So.2d 570.

We have examined the record in this case and have found no error.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Thad WILLIAMS, alias.
    SC 2660.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Namon STRICKLAND v. STATE.
    3 Div. 710.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.

      R. Howell Dean, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Robbery; sentence: ten years imprisonment.

Fannie Thomas testified that around 2:45 A.M. on August 4, 1976, Arvil Strickland, the appellant’s brother, entered the Majik Market on Highland Avenue in Montgomery where she worked as a cashier. She stated that Arvil Strickland robbed her at gunpoint, taking “a little over $300.” The witness recognized the robber even though he was wearing a stocking mask. She said that he was the same man who had robbed her a few weeks earlier. Likewise, she identified Arvil Strickland at a police lineup held a few days after the robbery.

Betty McLain, a neighbor of the appellant, testified that the appellant was at her apartment until around 3:00 A.M., but she could not be absolutely certain of the time since she had no clock. She stated that the appellant left and then returned around 4:00 or 4:30 A.M. and asked if he could stay at her apartment the rest of the night. The next morning, Mike Martiss came by the apartment, and the appellant asked Martiss to go to the appellant’s apartment and get his clothes. She said Martiss and the appellant then left together.

Russell Harris testified that he was a taxi driver on the night in question. He stated that at 3:53 A.M., he received a call to pick up someone at the Holiday Inn Midtown in Montgomery. He stated that he picked up the appellant around 4:00 A.M. and took him to the address of Betty McLain. He said the appellant was barefooted and breathing heavily, but he could not say whether the appellant was intoxicated.

The State called Officer G. E. Murphy to testify, however, the appellant moved to suppress the testimony of Officer Murphy as it would relate to identification. He filed a written motion to suppress the testimony setting out the following grounds:

“1. That the said G. E. Murphy was a police officer employed by the City of Montgomery, and he participated in the investigation of a robbery which occurred on or about August 4, 1976, at the Magic (sic) Market at 2710 Highland Avenue in Montgomery, Alabama—
“2. That the circumstances under which this witness identified this defendant were impermissibly suggestive.
“3. That this witness did not have opportunity to view the defendant at the scene of the crime so as to later make identification based on independent origin.
“4. That to permit this witness to make an in-court identification of the defendant would be a violation of due process of law.
“5. That to permit any testimony concerning pre-trial identification would be a violation of the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States.”

The trial court overruled the motion and Officer Murphy was allowed to testify. He stated that he and his partner were patrolling past the scene of the crime on the date and time of the robbery and saw a man come out of the store with a gun and a bag in his hand. He said the robber pointed the gun at the officers, but it did not fire, and he dropped it and ran toward a fence adjacent to the store. The robber apparently picked the gun up and pointed it a second time, but it did not fire. He then pulled off a stocking mask and a wig, jumped the fence, and ran behind the building. The witness fired four shots at him. Moments later, a Chevrolet automobile came out from behind the building and sped away.

Officer Murphy said the appellant was seated in the right rear seat of the automobile. He got a clear view of the appellant, though only for a few seconds. Murphy said his partner shot at the car as it passed them and that they chased it for some blocks in their patrol car. The car stopped and the occupants got out and ran. None of the occupants of the car were arrested at the scene.

Officer Murphy was subjected to extensive and searching cross-examination on his identity of the appellant and on his opportunity to view and recognize the appellant at the scene of the crime. He positively identified the appellant without any equivocation.

Detective Cecil Humphrey testified that the appellant was arrested between 4:00 and 5:00 P.M. the same day. He was found hiding in a bedroom closet in the Martiss home. A pistol found in the closet at that time was introduced into evidence over objection. Fannie Thomas had previously identified the pistol as being similar to the one used by the robber. A paper sack with assorted change was also found on a dresser in the same bedroom where appellant was arrested. Appellant’s brother, Arvil Strickland, who was in the house at that time, had what appeared to be a fresh gunshot wound in his neck.

The State rested its case in chief at which time the appellant moved to exclude the State’s evidence on the grounds that (1) the State failed to make a prima facie case, (2) the State failed to connect the appellant with the crime, and (3) no evidence showed that the appellant was either involved in planning or executing the crime. . The trial court overruled the motion to exclude, and the defense presented its evidence.

The appellant testified that on the date in question, there was a birthday party for him at Betty McLain’s apartment. He left there around 8:00 or 9:00 P.M. and returned around midnight. Leroy Smoke and the appellant’s brother, Arvil Strickland, came by and all three left in Smoke’s car to buy some beer. Appellant said he went to sleep in the back seat of the car and awoke when gunfire erupted and knocked the back window out of the car. He said that he raised up to try to pull his brother down, that the car stopped and that he ran from the scene, ending up at the Holiday Inn Midtown where he called a taxi. He stated that he had no prior knowledge of the robbery and did not participate in it.

Officer Murphy was recalled and stated that the back window of the automobile was not shot out. Detective Humphrey of the Montgomery Police Department testified in contradiction of part of the appellant’s testimony. He stated that shortly after the appellant’s arrest, the appellant stated to him that he was at Betty McLain’s apartment all night and knew nothing about the robbery.

The case was submitted to the jury and after lengthy deliberation, the jury announced that it was deadlocked. The trial court then instructed the jury, in pertinent part as follows:

“Now, ladies and gentlemen of the jury, by authority of the Supreme Court of Alabama, which has been affirmed by the United States Court of Civil Appeals, I’m authorized to say this to you; and I want you to listen, please. I’m privileged to say this to you under those authorities. “It is desirable and important that you agree upon a verdict, and you are urged to make every effort to do so consistent with your conscience. You are advised to lay aside mere pride of judgment and not to adhere to an opinion regardless of what the other jurors may say merely through contumacies, but you should examine any existing differences in a spirit of fairness and candor and to reason together and to talk over such differences and harmonize them if this is possible. “You are further urged as reason for reaching a verdict to consider the time and expense involved in this trial. The taxpayers have an interest in this. You should not and will not be censored for not agreeing with the majority. If you can reach a verdict without any sacrifice of principle or conviction, the court and the taxpayers would be very glad for you to do so.
“Now, do you want to deliberate anymore this afternoon? If not, I’m going to let you go until in the morning at 9:00 o’clock. Be back at 9:00 o’clock, please.

The jury returned the next morning and were instructed to go into the jury room but not deliberate until told by the court to do so. Then outside the presence of the jury, counsel for appellant stated, “Your Honor, at this time the Defendant would like to object respectfully, of course, to the charge that the court gave to the jury yesterday afternoon.” The trial judge informed the appellant’s counsel that he should have objected at the time so that the court could have corrected the instruction if it was wrong. Counsel for appellant pointed out that the jury had not begun its deliberations yet that morning and that he objected to the court giving the “Allen charge.” The trial court refused to recall the jury and instruct them further, and the appellant took an exception.

I

Appellant’s motion to exclude the State’s evidence on the ground that it failed to make out a prima facie case of robbery against the appellant was 'properly overruled. The testimony of Fannie Thomas, Officer Murphy and Detective Humphrey was sufficient to establish a prima facie case against the appellant and to prove the three essential elements of common-law robbery: (1) felonious intent, (2) force, or putting in fear as a means of effectuating the intent, and (3) by that means, taking and carrying away the personal property of another from his person or in his presence, all elements concurring in point of time. Moore v. State, Ala.Cr.App., 331 So.2d 422 (1976).

The appellant’s presence at the scene of the crime in the get-away car; his flight from the police; his hiding in the closet where a gun similar to that used by the robber was likewise hidden; and his subsequent arrest with the person identified as the actual robber in the bedroom where some of the fruits of the crime were found, are all circumstances from which the jury could reasonably infer that the appellant was an accomplice in the robbery. As an accomplice, his guilt would therefore be the same as if he had actually held the gun on the victim and had taken the money. Title 14, § 14, Code of Alabama 1940.

II

Appellant’s motion to suppress Officer Murphy’s testimony as to the identity of the appellant at the scene of the crime is not based upon a claim of a suggestive lineup for improper identification procedure which we usually see on appeal. Rather, appellant claims that Officer Murphy did not have a sufficient opportunity to observe the fleeing robbers to enable him to make a valid in-court identification of the appellant.

When Officer Murphy was called as a witness, the appellant called his motion to suppress to the attention of the court and requested that the State be required to defend against the motion. Appellant requested that the State put on its identification evidence and allow the defense to cross-examine the State’s witnesses and to call defense witnesses, all outside the presence of the jury. The trial court overruled the motion to suppress, and the testimony resumed in the presence of the jury.

We consider the trial court’s action in this regard to be correct. The weight and credibility of testimony is for the jury to consider. Felton v. State, 47 Ala.App. 182, 252 So.2d 108 (1971). No question of law for the judge’s consideration was raised by the motion. Testimony on certain motions should be initially heard outside the presence of the jury, such as a motion challenging the legal sufficiency of a search warrant, or challenging the volun-tariness of a confession. However, we are not concerned with such a motion here. It is elementary that questions of law are reserved to the judge, but questions of fact are for the jury to consider. Had the trial judge passed upon the weight and credibility of the proposed testimony prior to letting the jury hear it, then he would have been invading the province of the jury. If a trial judge must hear the testimony of each witness in camera, where the weight and credibility of the expected testimony is challenged, then trials would become endless affairs. The already slow wheels of justice would grind almost to a standstill.

Here, Officer Murphy’s testimony was properly presented to the jury. They could determine whether or not he had sufficient opportunity to observe the appellant. They could weigh his answers on direct examination against his answers on cross-examination. We have repeatedly held that it is the sole province of the jury to determine what credence should be given to testimony of witnesses going to the identity of an accused. Colston v. State, 57 Ala.App. 4, 325 So.2d 520, cert. denied 295 Ala. 398, 325 So.2d 531 (1975); McCay v. State, 51 Ala.App. 307, 285 So.2d 117, cert. denied 291 Ala. 788, 285 So.2d 122 (1973); Gray v. State, 38 Ala.App. 508, 88 So.2d 798 (1956).

We have likewise held that questions concerning lighting conditions and the length of time in which a witness had an opportunity to observe an accused and make a valid identification were matters for the jury. Redmon v. State, 47 Ala.App. 421, 255 So.2d 604 (1971).

III

Appellant contends that the trial court erred in admitting the gun into evidence. We disagree. Fannie Thomas identified the weapon as being similar to the one used in the robbery. The weapon was found hidden in the same closet in which the appellant was hiding at the time of his arrest. This was a relevant circumstance for the jury to consider along with other evidence presented. 22A C.J.S. Criminal Law § 611.

The photograph objected to was likewise of sufficient relevance to support its admission into evidence. In McKee v. State, 253 Ala. 235, 44 So.2d 781 (1950), the Supreme Court of Alabama stated:

“. . . courts in this country take judicial knowledge that the art of photography is generally relied on for depicting the resemblance of persons, objects, things and places and when verified by evidence, extrinsic of the photographs, going to show that they correctly depict the thing or object at the time they were taken, photographs are admissible in evidence in a criminal prosecution, if they tend to shed light on, strengthen or illustrate the truth of other testimony offered by the prosecution. . .

The photograph objected to was first authenticated as a true representation of what it portrayed at the time it was taken. It was a photograph showing a paper bag of assorted coins on the dresser in the room where, and at the time, appellant was arrested. It therefore tended to shed light on or illustrate the testimony previously given by Detective Humphrey that he found such a bag of coins on the dresser in the bedroom. We find the photograph to be relevant, and its admission therefore did not constitute prejudicial error. The determination of relevancy in a criminal trial rests largely within the trial court’s sound discretion. Bryant v. State, 49 Ala.App. 359, 272 So.2d 286, cert. denied 289 Ala. 740, 272 So.2d 297, cert. denied 412 U.S. 922, 93 S.Ct. 2744, 37 L.Ed.2d 149 (1972). “Relevancy has a broad scope in criminal trials.” Dawson v. State, 43 Ala.App. 265, 188 So.2d 600 (1966).

IV

Appellant contends that the trial court erred in overruling his exception to giving the “Allen ” charge to the jury.

Although the jury had not resumed its deliberations when appellant excepted to the “Allen ” or “dynamite” charge, the jury had retired from the courtroom the previous night. The trial judge could have recalled the jury to the courtroom, heard the exception to his charge, and made any correction he felt necessary. While the trial court could have done so, his refusal to do so did not constitute reversible error.

The appellant should have excepted to the trial court’s oral charge the previous night, before the jury retired. By waiting until the next morning to except when the jury was in the jury room (although not yet deliberating) appellant could not then put the court in error. Technically, the exception to the trial court’s oral charge must have been made at the time the charge was given, and in the presence of the jury before it retired from the courtroom. Owens v. State, 53 Ala.App. 553, 302 So.2d 240, cert. denied 293 Ala. 769, 302 So.2d 243 (1974). For a multitude of cases on this point, see 6A Alabama Digest, Criminal Law, &wkey;841.

Even had the appellant’s exception been timely, the “Allen ” charge has been approved in this State.

The practice of giving supplementary instructions to a jury was approved by the United States Supreme Court in United States v. Allis, 155 U.S. 117, 15 S.Ct. 36, 39 L.Ed. 91 (1894). The most notorious supplementary instruction, although used in various forms, is summarized in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) as follows:

“. . . in a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. . . .”

The Allen -type charge has been so controversial that the modern trend is to do away with its use. For discussion pro and con, see: United States v. Silvern, 484 F.2d 879 (7th Cir. 1973); United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177 (1971); United States v. Brown, 411 F.2d 930 (7th Cir. 1969). That charge has fallen into disfavor in many jurisdictions because it is considered to be basically unfair to a defendant and because it brings about a proliferation of appeals.

A different approach than the Allen charge to the problem of giving supplemental instructions to a deadlocked jury is found in the American Bar Association’s Standards Relating to the Administration of Criminal Justice. Standards Relating to the Function of the Trial Judge, § 5.12(b) states:

“In dealing with what appears to be a deadlocked jury, the trial judge should avoid instructions which imply that a majority view is the correct one, by complying with ABA Standards, Trial by Jury § 5.4.”

Standards Relating to Trial by Jury, § 5.4, reads:

“(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
“(i) that in order to return a verdict, each juror must agree thereto;
“(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
“(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
“(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
“(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict. “(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
“(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.”

By using the ABA form for supplementary instructions, the trial judge would not mention the costs of the trial to the jury. Since a juror should base his opinion upon the evidence presented during the trial, the expense of a new trial would be an irrelevant factor for a juror to consider in reaching a verdict. Likewise, a juror should not change his honest opinion because of an opinion held by a fellow juror or jurors.

In Alabama, the trial judge may urge the jury to resume deliberations and to reach a verdict so long as the court does not use duress or coercion in doing so. Holladay v. State, 20 Ala.App. 76, 101 So. 86 (1924); Bufkins v. State, 20 Ala.App. 457, 103 So. 902 (1924). Threatening a jury with contempt for failure to return a verdict constitutes reversible error. Meadows v. State, 182 Ala. 51, 62 So. 737 (1913). Emphasizing the public expense of the trial, stating that the court expects a verdict, stating that the taxpayers also expect a verdict, and referring to the failure to return a verdict as “an exhibition of obstinan-cy,” resulted in a reversal in Orr v. State, 40 Ala.App. 45, 111 So.2d 627, affirmed 269 Ala. 176, 111 So.2d 639 (1959).

The Supreme Court in Ashford v. McKee, 183 Ala. 620, 638, 62 So. 879 (1913) stated:

. . ‘The trial judge is vested with large discretion in the conduct of judicial proceedings, and he may properly admonish the jury as to the desirability and importance of agreeing on a verdict, and may urge them to make every effort to do so consistent with their consciences. He may advise jurors to lay aside mere pride of judgment, and not to adhere to an opinion regardless of what the other jurors may say, merely through stubbornness, to examine any existing difference in a spirit of fairness and candor, and to reason together and talk over such differences and harmonize them, if possible. So, also the court may urge as reasons for agreeing on a verdict the time and expense which a new trial would entail. But it is not proper to give an instruction censuring jurors for not agreeing with the majority.’ ”

See also: Poellnitz v. State, 48 Ala.App. 196, 263 So.2d 181 (1972).

In MacSwafford v. State, 46 Ala.App. 187, 239 So.2d 329 (1970) it was not error for the trial judge to urge the jury to reach a verdict, stating inter alia: “It costs the county money to have a jury; and, as I say some jury has to determine the case one way or the other. . .

In a footnote in Eady v. State, 48 Ala.App. 726, at 729, 267 So.2d 516, at 518 (1972), Judge Harris aptly stated this court’s view of the charge in question:

“If the ‘Allen’ or ‘dynamite’ charge was being presented to this court for the first time, and we were not bound by the decisions of our Supreme Court, I would welcome the opportunity to sound the death knell to this type of charge now and forevermore. . .

Judge Harris stated that one of the most chilling experiences in a trial lawyer’s life is to sit helplessly and listen to the trial judge give the “Allen ” or “dynamite” charge to the jury. After condemning the charge as an intrusion by the judge into the exclusive province of the jury as a fact-finding body, he recognized that the same elements of the charge herein complained of were approved by the Alabama Supreme Court in Ashford v. McKee, supra. We likewise recognize that we are bound by the decisions of the Alabama Supreme Court. Therefore, if the time has come for the “Allen ” charge to be buried, the Alabama Supreme Court must perform that final rite rather than this Court.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte Namon STRICKLAND.
    SC 2696.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   MADDOX, Justice.

WRIT DENIED.

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


author: BOWEN, Judge.

text:
    Donald R. WILLIAMS, alias Wormy Williams v. STATE.
    4 Div. 515.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.

      Earl V. Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The appellant was convicted for the possession of marijuana in violation of the Alabama Uniform Controlled Substances Act. Judgment and sentence by the trial court were properly entered and punishment was fixed at five years in the state penitentiary. The appellant is represented by retained counsel both at trial and on appeal.

On March 9, 1976, the appellant was arrested for the sale of marijuana. On the morning of the following day, an enforcement agent for the Alcoholic Beverage Control Board, State of Alabama, obtained a warrant to search the room of the appellant and certain junk cars located on property owned by the father of the appellant. The search warrant was executed that same morning and a search of the room of the appellant produced ten small bags of marijuana located in a dresser drawer under some of the appellant’s clothes. A state toxicologist properly identified the marijuana.

The appellant testified that he had never seen the marijuana and had no knowledge of its presence in his room. A lady who kept house for the Williamses while the appellant’s mother was disabled testified that she had had an opportunity to observe the drawer where the marijuana was found and that she did not notice it prior to the search conducted by the ABC agent.

On appeal the appellant presents two questions for our review: The propriety of the action of the trial court in overruling (1) his plea of autrefois convict and (2) his motion for a new trial based on the misconduct of two jurors.

I

The arrest of the appellant on March 9, 1976, for the sale of marijuana resulted in his conviction of a violation of the Alabama Uniform Controlled Substances Act with a sentence of five years and a fifteen hundred dollar fine. This conviction involved the sale of one “lid” of marijuana which was made from the automobile of the appellant. The conviction of the appellant presently on appeal before this court involves ten “lids” of marijuana recovered from the room of the appellant the following day under a search warrant.

The indictments in each of these two cases were returned by the same grand jury and each charged the appellant with the unlawful possession, sale, furnishing or giving away of marijuana. The appellant alleges that because the indictments were identical, because they were returned on evidence obtained from one investigation, and because both incidents constitute but one transaction and a single crime, his plea of autrefois convict was due to be granted.

This contention of the appellant is invalid for a number of reasons. The plea was untimely filed as the record indicates that a plea of not guilty had previously been entered. Steward v. State, 55 Ala.App. 238, 314 So.2d 313, cert. denied, 294 Ala. 201, 314 So.2d 317 (1975); Gandy v. State, 42 Ala.App. 215, 159 So.2d 71, cert. denied, 276 Ala. 704, 159 So.2d 73, cert. denied, 377 U.S. 919, 84 S.Ct. 1185, 12 L.Ed.2d 188 (1963).

Even had the plea been timely filed it was due to be overruled. A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973). This doctrine is too well established to require a further recitation of authority. 6 Alabama Digest, Criminal Law, 195(1). A sale of marijuana from an automobile on one day is a totally different offense and transaction, both in law and in fact, from the possession of marijuana in a house the following day. Applying the test of identity of offenses for purposes of former jeopardy, it is clear that the evidence necessary to sustain the second indictment would not have been sufficient to secure a conviction on the first. Gandy, supra. Although the indictments contained the identical charging language, the same testimony would not support both charges. State v. Johnson, 12 Ala. 840, 46 Am.Dec. 283 (1848). The appellant could not have been convicted under the first indictment (involving sale) on proof of facts averred in the second (involving possession at a different time and place). See Whatley v. State, 17 Ala.App. 330, 84 So. 860 (1920). For these reasons, the plea of autrefois convict or former jeopardy was properly overruled.

The second issue presented by the appellant is whether the trial court erred in overruling the motion for a new trial. This motion was based on the alleged highly improper activity of two members of the jury during the deliberations of that body.

At a hearing on the motion for new trial the appellant produced the testimony of one Dianne Cook, a juror, who stated that (1) while the attorneys and the trial judge were out of the courtroom, a female juror left the jury box and walked to the door of the courtroom, (2) that while the jury was in the jury room deliberating, one juror, Janet Bugler, left the jury room for two or three minutes and when she returned Ms. Bugler told the other jurors that, “They said that you cannot get fingerprints off plastic bags.” (3) Ms. Cook also testified that one juror knocked on the jury room door and said to the bailiff, “Tell the Judge that we can’t come to a decision” after about forty-five minutes to an hour after the jury’s deliberation had begun. The bailiff then said, “There is no need for you to come out right now. You might as well go back in and deliberate some more. You come out with an answer one way or the other.” Shortly after this the jury reached a verdict.

In rebuttal the state presented the testimony of juror Janet Bugler. She denied any misconduct and stated that she did tell the bailiff that the jury was deadlocked. She stated that she did not remember asking anyone about fingerprints on a plastic bag.

We have carefully reviewed the testimony presented on the motion for new trial. Viewing the scarcity of proof as to what actually transpired insofar as the appellant’s trial might have been prejudiced by incident number one above, we would not be justified in disturbing the lower court’s denying the motion. Hutchens v. State, 45 Ala.App. 507, 232 So.2d 687, cert. denied, 285 Ala. 755, 232 So.2d 700 (1970); Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975); Hawkins v. State, 267 Ala. 518, 103 So.2d 158 (1958). Although the testimony was conflicting, we find that the trial judge exercised his reasonable discretion in weighing the evidence and making his decision thereon. Simpson v. State, 38 Ala.App. 219, 81 So.2d 893 (1955). In reviewing the refusal of a motion for a new trial, this court will indulge every presumption in favor of the correctness of the ruling of the trial judge. The decision on the motion rests largely within his discretion. Clark v. State, 54 Ala.App. 217, 307 So.2d 28 (1975); Parks v. State, Ala.Cr.App., 333 So.2d 906, cert. denied, Ala., 333 So.2d 912 (1976). From the evidence presented we do not feel that the appellant was probably or plausibly prejudiced by the alleged misconduct of the jury.

This court has carefully reviewed the entire record as required by law and finding no error it is the opinion of this court that the judgment of conviction is due to be and is hereby

AFFIRMED.

All Judges concur.


author: JONES, Justice.

text:
    Ex parte Donald R. WILLIAMS.
    SC 2726.
    Supreme Court of Alabama.
    Aug. 19, 1977.
   JONES, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    Willie James JONES v. STATE.
    6 Div. 210.
    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.
   TYSON, Presiding Judge.

The indictment charged that the appellant did “unlawfully sell, furnish, or give away 10.0 grams of Secobarbital . . . to James Chambliss” in violation of the Alabama Uniform Controlled Substances Act. The jury found the appellant guilty as charged, and the trial court fixed his sentence at six years in the penitentiary. His motion for new trial was overruled.

On November 1, 1973, around 4:15 p. m., Officer James Chambliss, working as an undercover agent with the United Narcotics Detail Operation (U.N.D.O.) in Jefferson County, went to the home of the appellant, which is located on the twelve hundred block of Forty-Seventh Street in Birmingham. Officer Chambliss was followed there by his U.N.D.O. supervisor, Sergeant James Earl Smith, who positioned his unmarked car in an alley some fifty to seventy-five yards away from appellant’s home so that he could secretly observe any action which occurred in front of the house.

Appellant and another unidentified black male were on the front porch of appellant’s home when Officer Chambliss arrived, and, upon seeing him, both men stepped inside the house. Officer Chambliss followed the two men inside to the dining room area where appellant inquired as to the purpose of his visit. Officer Chambliss told appellant that “he wanted some of the same thing I got last week,” and appellant responded that “those red pills had gone up to a dollar and twenty-five cents apiece.” Officer Chambliss then stated that at that price he could afford about fifty pills (R. 43). Appellant, who Officer Chambliss stated walked with a limp, left the dining room, went into the kitchen where he made a telephone call, then walked out on the front porch. About five minutes later, appellant came back inside, accompanied by his twelve year old adopted son, Maurice Coleman, who was carrying a plastic lock-top bag containing a number of “red pills (one hundred ‘Lilly S-40 capsules’).” Maurice handed the plastic bag to Officer Chambliss, then went back outside, and appellant and Officer Chambliss sat down and poured the capsules out on a table top. Appellant told Officer Chambliss that he was able to purchase the capsules for seventy-five cents apiece and that he would let him have the entire amount for that price. Officer Chambliss agreed and purchased the one hundred secobarbital capsules with four twenty dollar bills, receiving a five dollar bill as change. Thereafter, around 5:00 p. m., Officer Chambliss returned to U.N.D.O. headquarters where he and Sergeant Smith counted the capsules and sealed them in an evidence envelope which they both initialed. The next day, Sergeant Smith turned the sealed envelope over to Toxicologist Craig Bailey who, at trial, identified the controlled substance as secobarbital.

The thrust of appellant’s defense presented at trial was that he was physically incapable of committing this offense as testified to by Officer Chambliss. Appellant testified that due to the fact that he had broken his left leg several times, it had become shorter than his right leg, thus causing him to walk with a severe limp. Compounding this handicap, the appellant stated he was shot in the right leg with a .38 pistol on October 2, 1973, and was hospitalized in Carraway Hospital where he remained until October 17, 1973. He stated that for a long period thereafter, he remained bedridden in his home and was unable to get around without the aid of a crutch.

Appellant’s wife stated that the appellant was completely immobilized until October 31, 1973 (the day he returned to his doctor for a check-up), and that on the day of the incident in question, November 1, 1973, appellant “was wobbling around on one crutch.”

I

Appellant cites error in the failure of the record to reflect that he “has been arraigned and pleaded not guilty and a lawful jury [was] duly impaneled and sworn and charged with his trial.” See Lyman v. State, 47 Ala. 686 [Emphasis supplied]. He asserts that because of such failure, he cannot “later plead and sustain the burden of proof of former jeopardy should a new prosecution occur . . . .” (Appellant’s reply brief, page 3) See Spencer v. State, 48 Ala.App. 646, 266 So.2d 902.

The record at page 218 discloses the following:

“ARRAIGNMENT
“THE STATE VS WILLIE JAMES JONES}
Indictment for violation uniform Alabama controlled substances act
Honorable Charles Crowder, Judge Presiding
“This the 21st day of June, 1974, came Earl C. Morgan, District Attorney, who prosecutes for the State of Alabama, and also came the defendant in his own proper person and by his attorney, Arthur Parker, and the defendant being duly arraigned upon the indictment in this cause, for his plea thereto says that he is not guilty and leave of the Court is hereby granted to defendant, hereafter but before trial day, to interpose any special pleas which defendant had the right as a matter of Law to interpose prior to his plea of not guilty and case is set August 6, 1974, and passed from time to time to February 23, 1976, for trial.”

Furthermore, on page 226 of the record we find:

“JUDGMENT ENTRY
“THE STATE VS. WILLIE JAMES JONES}
Indictment for violation uniform Alabama controlled substances act
Honorable Charles Crowder, Judge Presiding
“This the 25th day of February, 1976, came Earl C. Morgan, District Attorney, who prosecutes for the State of Alabama, and also came the defendant in his own proper person and by his attorney, Arthur Parker, and thereupon came a jury of good and lawful persons, to-wit: Herbert W. Shows, Jr., and eleven others, who being duly empaneled and sworn according to Law, before whom the trial of this cause was entered upon and continued from day to day and time to time, said defendant being in open Court at each and every stage and during all the proceedings in this cause.
“This the 26th day of February, 1976, said jurors upon their oaths do say, ‘We the jury find the defendant guilty of violation of the uniform Alabama controlled substances act as charged in the indictment.’
“This the 26th day of February, 1976, it is therefore considered by the Court and it is the judgment of the Court that said defendant is guilty of violation of the uniform Alabama controlled substances act as charged in the indictment, in accordance with the verdict of the jury in this cause, and case continued to March 15,1976, for sentencing.
“This the 15th day of March, 1976, the defendant being in open Court, with his attorney, Arthur Parker, and being asked by the Court if he had anything to say why the judgment of the Court and sentence of the Law should not be pronounced upon him says, ‘No Sir.’ It is the judgment of the Court and sentnce of the Law that the defendant, the said Willie James Jones, be imprisoned in the penitentiary of the State of Alabama for a term of six (6) years, and it is hereby ordered by the Court that the defendant be credited with all of his actual time spent incarcerated in the Jefferson County Jail pending trial of this cause unless he was serving time for another offense.” [Emphasis supplied]

As shown above, the record clearly indicates that the arraignment and trial proceedings were conducted without irregularity, although there is no actual showing that the jury was “charged with his trial” before any witness was examined.

The usual mode of charging a jury with the trial of a defendant is the reading of the indictment to them by the prosecuting attorney during his opening statements. Lyman v. State, supra. Opening statements in a trial proceeding are not usually transcribed, and thus will seldom appear in the record proper. See Title 13, Section 262, Code of Alabama 1940.

If, however, the jury is .not so charged, it is incumbent of a defendant to bring such omission to the attention of the trial court by prompt objection or as an asserted ground in a motion for new trial. See Rogers v. State, Ala.Cr.App., 332 So.2d 739, cert. denied, Ala., 332 So.2d 746. Where, as here, there was no objection entered in the trial court below, it will be presumed that the indictment was read to the jury or that they were in some other way informed of the charges against the defendant before any witness was examined. McGuire v. State, 76 Miss. 504, 25 So. 495. See Nick v. United States, 122 F.2d 660 (8th Cir. 1941), 138 A.L.R. 791.

II

During the direct examination of appellant’s son, Maurice Coleman, defense counsel inquired about a matter which had taken place the morning of the trial in the hallway just outside of the witness room. The appellant sought to establish that during the time Maurice Coleman and his two brothers were sitting in witness room, Mr. Johnson, the district attorney, came to the door and asked Officer Chambliss (who at that time was standing in the hallway), “Which one is Maurice,” but that Officer Chambliss was unable to identify him. Appellant’s trial strategy was to point out that if Officer Chambliss could not identify Maurice that morning in the witness room, then it follows that Officer Chambliss did not receive any pills from Maurice on the day in question as he (Officer Chambliss) had testified. Following a sifting cross-examination by the district attorney, during which the witness stated he did not know whether Officer Chambliss identified him or not (R. 172), the trial judge propounded the following question to the witness:

“THE COURT: Are you telling me, right now, that this man [Mr. Johnson] and Officer Chambliss stood in the doorway and he [Mr. Johnson] asked Chambliss which one of you three it was and he didn’t know, is that what you’re telling me? I was standing right there. Is that what you’re telling me?
“A. I don’t remember that.” [Emphasis supplied]

In closing argument, defense counsel made repeated attempts to argue the fact that Officer Chambliss was unable to identify Maurice Coleman when asked to do so by the district attorney. However, in each instance objection to this line of argument was sustained by the trial court, and the appellant here contends that such rulings were erroneous.

As we read the record, with particular emphasis on the answer given to the trial judge by the witness, Maurice Coleman, when he was specifically asked about this “identifying procedure” which took place, we conclude that defense counsel was attempting to comment or draw inferences on facts unsupported by the evidence. Thus, the trial court’s rulings were indeed correct. Braden v. State, 49 Ala.App. 97, 268 So.2d 877 (1972).

III

As a final assertion of error, the appellant contends that during closing argument the district attorney made several prejudicial remarks which necessitate the reversal of this cause. The remarks complained of, in substance, are as follows:

(1) Referring to the appellant as a “purveyor of drugs”;
(2) Referring to [t]he little twelve year old boy, or the other would be little twelve year old boys . . . ;
(3) Suggesting that “[Officer] James Chambliss was out there risking his life.”

We find that the above quoted remarks do not transcend the bounds of legitimate and proper argument. The evidence presented at trial, which was believed by the jury, established a sale of large quantity secobarbital by the appellant to Officer Chambliss and that the appellant had utilized his twelve year old son as a “go between” or “agent” in this illicit transaction. Moreover, Sergeant Smith testified that his responsibility in this undercover' operation was to supervise Officer Chambliss’ activity and “to protect him”; (R. 80) a statement which underscores the common knowledge that law enforcement officers who engage in ferreting crime do indeed risk their lives daily. The district attorney was pointing out matters of evidence and arguing their legitimate inferences, thus, no error is shown. Braden v. State, supra; Barnett v. State, 52 Ala.App. 260, 291 So.2d 353, and authorities therein cited.

IV

Appellant’s requested charges (Nos. 21 and 22), which dealt with the defense of alibi, were properly refused inasmuch as they were argumentative under the evidence and thus invasive of the province of the jury. Title 7, Section 273, Code of Alabama 1940.

Further this subject was covered by the trial court’s oral charge.

We have carefully examined this record and find same free from error. The judgment is therefore

AFFIRMED.

All the Judges concur.

      . Title 22, Section 258(35)(b), Code of Alabama 1940, as amended 1971.


author: EMBRY, Justice.

text:
    Ex parte Willie James JONES.
    SC 2701.
    Supreme Court of Alabama.
    Aug. 19, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


text:
    Cecil DATES v. STATE.
    7 Div. 504.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.
    Gordon F. Bailey and H. Merrill Varda-nian, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

Cecil Dates was indicted in a three-count indictment for the unlawful burning or causing the burning of the dwelling house of one Doris Whack in which burning Edward Huntley and Donald Whitson were burned, resulting in their deaths.

The appellant filed a pro se petition for a change of venue which was duly overruled. The appellant was duly arraigned, with counsel present, at the time his change of venue was denied, and thereafter the cause came on for trial. The jury found the appellant guilty of first degree arson as charged and fixed punishment at imprisonment in the penitentiary for life. The trial court then entered judgment which set sentence in accordance with this verdict. The appellant’s motion for new trial, which challenged the weight and sufficiency of the evidence, was duly overruled following a hearing.

M. C. Curry stated that he lived at 709 West Fourteenth Street in Anniston, Alabama, on January 29, 1975. He indicated that a girl by the name of Doris Whack resided in a house on the right side of his home on this date. He stated that his wife called to him, saying she heard some dogs barking, that he got up and looked out the window and heard an explosion, then saw the home of Doris Whack suddenly burst into flame. He stated that he went to the back door of the home, tried to kick it open, that he was overcome with smoke, and the Fire Department got there within ten or fifteen minutes. He stated that the house was burned almost beyond repair.

Neal Kilgore testified that as a Captain of the Anniston Fire Department he was called to a home across the street from Carver Center in Anniston shortly after 9:00 on the evening of January 29, 1975. The street address of the fire was 711 West Fourteenth Street, and the dwelling house at this address was engulfed in a very intense flame inside, being confined primarily to the front section of the house. He stated that it took about two hours to bring the fire under control, but that he did not see any persons burned at the scene. From the record (R. 16):

“Q. Was there anything unusual about the way this fire was burning?
“A. Yes.
“Q. And what was that, sir?
“A. In this particular fire, as I stated in the beginning there, it was a very intense fire and burning in one section more so than anywhere else. Now, this particular fire had burned through the wall and was burning on the front section of the house, on the outside and into the porch area, which would be, the porch is on the southwest corner of the house. And this fire, a lot of this fire was on the outside of this house and in the front section.
“Q. Were you able to make a determination as to the cause of this fire?
“A. Oh, yes; yes, sir.
“Q. And what was your determination as to the cause?
“A. It had_there had been some type of flammable material used in accelerating the flames in this house.”

Captain Kilgore further stated that the intense heat from the fire would have been sufficient to melt a plastic type jug in which flammable material could be placed.

Allen R. Dimmick testified that he was a medical doctor in charge of the Burns Service at the University of Alabama Hospital in Birmingham on the night of January 29, 1975. He stated that he observed one Donald Whitson that evening, a black male, and noted the following (R. 21):

“Q. What was Mr. Whitson’s condition at that time?
“A. He had sustained obvious burns to approximately 50% of his body surface. You measure burns. You take all of the skin of the body as a 100%; and 50% would be half of the skin of the body. The burns involved mostly from the belt line of the waist up; but there were a few scattered areas over his ankles and feet. The majority of the burns were on the upper half of the body.
“Q. Do you have any idea of what Mr. Whitson’s age was?
“A. The age was registered at 16 years of age at the time.
“Q. How long or how many days did you treat Mr. Whitson?
“A. He remained in University Hospital from that date, from January 29, 1975, until the time of his death on the 6th of March, a total of 36 days in University Hospital.
“Q. What was the cause of Mr. Whit-son’s death?
“A. Infection. Infection due to an organism called a kelbsiella, a particular, what we call a gram negative organism. An infection that’s common, more common than we would like to have it in our burn patients.”

Dr. Dimmick stated that he also treated a young black male by the name of Edward Huntley who he also saw on the evening of January 29, 1975, at the University Hospital. From the record (R. 22-23):

“Q. And when you saw Mr. Huntley, what was his condition?
“A. He had flame burns, what we call 2nd and 3rd degree burns to approximately 75% of his body surface. That’s roughly % of his body surface.
“Q. How long did Mr. Huntley remain under your care?
“A. For just 6 days. He expired on the 4th of February, 1975.
“Q. Okay. And what was the cause of his death?
“A. Infection, again for the similar reasons that I mentioned previously. Infection due this time to an organism called Serratia, S-E-R-R-A-T-I-A (Spelling).
“Q. Okay. Is this a type of blood poisoning, similar to what Mr. Whitson had?
“A. That’s correct. Just a different organism; they’re similar infections in blood poisoning.
“Q. Okay. So both of these individuals died while they were at University Hospital?
“A. That s correct.

Robert Rivers testified that on January 29, 1975, he lived at 1920 Brown Street in Anniston. He stated that the appellant, Cecil Dates, had been at his home a week or two prior to that time, and that his brother-in-law, Edward Huntley, lived with him at this time. He stated that Edward Huntley was twenty-one years of age. He stated that Cecil Dates made the statement to Edward Huntley, in his presence, to this effect (R. 28):

“. . . Edward had told me that Cecil wanted him to burn down some houses for him. And I told him if he wanted them burned down, let him burn them down himself.
“Q. Did Mr. Dates say anything?
“A. No.”

Mr. Rivers further testified that on the night of January 29, 1975, Cecil Dates came by his home between 8:00 and 8:30, and that his brother-in-law, Edward Huntley, left with him in an automobile. He stated that about 9:30 that evening, the appellant telephoned his home and asked if he had seen his brother-in-law, Edward, and he told him to take a cab and come down to the jail. He said that when he got to the County Jail, the appellant asked him about Edward Huntley and if he had made it home, and he replied, “No.” He stated that he returned to his home a few minutes later, and as he did so, he saw his brother-in-law, Edward Huntley, ■ running up the street badly burned. He stated that he took him to the Anniston Memorial Hospital, that when he arrived there he saw one Donald Gene Whitson who also was badly burned, and that the hospital officials in Anniston sent both of them to University Hospital in Birmingham that night, that both of the men died there as a result of the burns.

Bernice Whitson testified that Donald Whitson was her sixteen year old son. She stated that on January 29, 1975, she saw Cecil Dates, the appellant, that he came to her home and asked for her son, Morris Whitson. She said that Donald asked Dates what he wanted with his brother, Morris, and Dates replied, “If you want Morris to help you fight”; and “No, I don’t want that — if I wanted him to do that, if I wanted to fight, I do it myself.” She said that Dates then spoke to one Willie C. Weeks, who lived at her home, and that she left and next saw her son at the University Hospital in Birmingham where he was badly burned. She stated that her son had left with the appellant, and that he died on March 6, 1975.

Morris Whitson testified that he was the brother of Donald Whitson and lived with his mother at 1420 Glenaddie in Anniston on January 29,1975. He stated that he had known Edward Huntley and the appellant, Cecil Dates, for some time and had been with them in December, 1974, just before Christmas when they were riding in the appellant’s car.

Over objection, the witness was permitted to testify that the appellant, Cecil Dates, stopped at a filling station on Noble Street and opened the trunk, then placed some gasoline in some plastic type milk jug containers. He stated that Edward Huntley was present at this time, and that Dates had a conversation with them wherein he offered to pay them $15.00 each if they would burn down Doris Whack’s home. He stated that on the night of January 29, 1975, he saw the appellant sometime after 8:00 that evening near Fourteenth Street, about three or four blocks from the home of Doris Whack. He stated that he did not see his brother or Edward Huntley that evening, but attended their funerals in February and March, 1975.

On cross-examination the witness placed his conversation with the appellant, Cecil Dates, at about six weeks prior to the fire on January 29, 1975, wherein the appellant offered him and Huntley $15.00 each to burn down Doris Whack’s home. The witness also testified that he, the appellant, wanted to do this because Doris Whack had caused his car to get burned up and it cost him $500.00.

Doris Whack testified that she was divorced April 8, 1974, and that she had two children by different fathers. She stated that during the Spring of 1974, she met Cecil Dates and began dating him, but that she found out he was married in December, 1974, and stopped going with him. She stated this was shortly before Christmas. She stated that she saw him, but did not go out with him during January, 1975, as he came by where she worked, at the Calhoun County Health Department, and she had a conversation with him. She stated that she told him that she was breaking off the relationship with him, that she found out that he was married. She stated that the next day her residence at 711 West Fourteenth Street in Anniston was burned. She stated that she was working on that date and had left her two children with her mother at 1526 Kelley Street, which was about two and one-half or three blocks from her home, and that no one was at her home that evening. She said that later that evening, Cecil Dates came to her mother’s home, that she heard him talking with her mother around 10:00 or 10:30, and that she heard her mother say it looked like her, Doris’, house was on fire. Doris Whack testified the next day her brother went over to the house with her and she found that her washing machine was full of gasoline and her refrigerator also smelled of gasoline. She stated that some of her clothing had been taken from the drawers and spread from the front door to the back and had gasoline on them. She said that in the egg holder of the refrigerator she found gasoline, and there was also gasoline on the gas stove. She stated that when the Power Company representative came, he had to turn off the gas knobs which were in an “on” position on her stove. She said that it appeared that gasoline had been spread from the living room by the front windows and had run to the back of the house. She stated that Cecil Dates, the appellant, came by her home the next afternoon after the fire and said to her, “I am sorry that you got burned out,” and she asked him if he burned the house and he said, “No.”

Mary Rivers testified that she was the wife of Robert Rivers, that she knew the appellant, Cecil Dates, and had known Edward Huntley, that he was her brother. She stated that she remembered Dates coming to her home on the evening of January 29, 1975, and that Huntley left with him. She stated that later that evening her husband awakened her and she found her brother terribly burned, sitting on a sofa. She stated that she called an ambulance and they took him to a hospital in Anniston where he was sent to the University Hospital in Birmingham.

Fannie Mae Burnett stated that she resided at 1526 Kelley Avenue in Anniston on January 29, 1975. She indicated that Doris Whack was her daughter and had been staying at her home that evening. She stated that Cecil Dates came by her home early that afternoon and asked for Doris. She stated she told him that Doris was not there, but that she was looking after Doris’ baby, and he just turned and left. She stated that later that evening she saw her daughter’s house on fire. She stated that Dates came back by her home and said he wanted to see Doris, that Doris’ husband had called and said he was going to “burn her down.” She said the next morning she-went over to Doris’ house and noticed that the living room was burned beyond repair, as was one bedroom and that the kitchen and the other bedroom were badly burned. She said that she could smell gasoline in the refrigerator and saw some in the washing machine, that she also saw some rags with gasoline odors on the floor.

Irene Best testified that she lived at 709 West Fourteenth Street in Anniston, Alabama, on January 29, 1975. She said that when she got to her home that evening there was a fire at her neighbor’s, Doris Whack’s, home, and that one neighbor asked her to call the Fire Department, which she did. She said that her daughter and son-in-law lived upstairs over her apartment, and that she saw Dates as he was coming down the steps after having a conversation with them. She also stated that Dates did not tell her that he received a telephone call from Doris Whack’s ex-husband about burning her home.

Anniston Jail Warden and Sheriff’s Deputy Allen Reese testified that he was on duty January 29, 1975, when the appellant came by the jail and asked him to call for Calhoun County Deputies Stanley Merrill and Sam Nunnally. He stated that he had the State Trooper’s Office put in a radio call, that the two deputies answered and came by the jail a short time later and talked with Dates around 9:00 p. m. He stated that Dates left the jail sometime between 9:00 and 9:30 and indicated that he had to make an important telephone call. He stated that Dates was gone a little over twenty minutes, and when he returned he heard some sirens from fire engines.

Robert Rivers was recalled and testified that Cecil Dates came by his home the day after the fire and told him he would give him some money to go to see his brother-in-law, Edward Huntley, at the Birmingham Hospital.

Jerry W. Brown, a police detective, stated that he saw two burned victims, Donald Whitson and Edward Huntley, about 10:00 or 10:30 on the evening of January 29,1975, at the Anniston Emergency Center, and that they were badly burned. He then went to 711 West Fourteenth Street and saw a house that had been badly burned, in fact gutted from front to back. He stated that he got a statement from Robert Rivers and also from Morris Whitson, and that the appellant was arrested and charged with arson on February 5, 1975.

Deputy Sheriff Stanley Merrill confirmed seeing the appellant at the Calhoun Jail at about 9:00 for a few minutes, and he told him that someone had taken his television and wanted them to get it. He said that later that evening they received a call that the appellant wanted to talk with them at the jail, and that this was about 9:00 or 9:30 on January 29, 1975.

The appellant’s motion to exclude and motion for a directed verdict were overruled.

I

The appellant contends that the trial court improperly overruled his motion for a change of venue.

There is no creditable evidence in this record which supports the appellant’s motion. This motion was properly denied. Flurry v. State, 52 Ala.App. 64, 289 So.2d 632, writ den., 292 Ala. 720, 289 So.2d 644; Gilliland v. State, 291 Ala. 89, 277 So.2d 901; Payne v. State, 48 Ala.App. 401, 265 So.2d 185, cert. den., 288 Ala. 748, 265 So.2d 192, cert. den., 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669.

II

The appellant next contends that the State failed to present a prima facie case of first degree arson. We do not agree as the facts above stated clearly establish the prima facie case of first degree arson. Moreover, the trial court upon hearing the motion for new trial denied same on this ground. We are unwilling to disturb the verdict of the jury and judgment of the trial court. Lowery v. State, 38 Ala.App. 505, 88 So.2d 854; Pickens v. State, 115 Ala. 42, 22 So. 551; Whatley v. State, 37 Ala.App. 706, 75 So.2d 182.

III

Finally, the appellant contends that the trial court improperly allowed the testimony of Morris Whitson concerning the appellant’s offer to him about six weeks prior to the fire of $15.00 to help burn down Doris Whack’s home.

We are of the opinion that this evidence was properly admitted at trial. McDade v. State, 49 Ala.App. 533, 274 So.2d 89, cert. den., 290 Ala. 369, 274 So.2d 93, cert. den., 414 U.S. 872, 94 S.Ct. 99, 38 L.Ed.2d 90.

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

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Cecil DATES.
    SC 2703.
    Supreme Court of Alabama.
    Aug. 26, 1977.
   ALMON, Justice.

WRIT DENIED.

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