text:
    Carlis Melvin BULLARD v. STATE.
    3 Div. 43.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied April 17, 1979.

      Jasper B. Roberts, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State.
   CLARK, Retired Circuit Judge.

Appellant was convicted of the robbery of Delbert Reeves.

According to the testimony of Reeves, he had been at Saul’s Delicatessen from about 9:30 P.M. until about 11:00 P.M. on November 26, 1975. Upon leaving he found that a battery from his car had been stolen, and he started walking toward a friend’s house to call a taxi. As he was doing so and had just left the parking lot, an automobile was driven up to where he was walking along Martha Street. In the automobile were the appellant, a man by the name of Charles Joyce, and another person, whose name Reeves said he did not know at the time. He asked for a ride home and was told to get in the automobile. He got in the back seat with the unnamed person, and Joyce drove off with the appellant sitting on the passenger’s side of the front seat. After they had traveled about a block and a half, the automobile was pulled over to the curb and stopped.

Reeves further testified that appellant then turned around and shone a flashlight in Reeves’ face, told Reeves to give him his billfold, and then hit Reeves about three times; he handed appellant his billfold, which appellant returned after extracting twenty dollars or twenty-two dollars contained therein; one of the other two men in the car snatched Reeves’ watch off his arm; twenty-five dollars was also taken from him at the time. He was then told by one of the men in the car to “go back to where you came from, if you know what’s good for you.” He left, went to a filling station and called the police, who came and took him home, and his wife then took him to a hospital where he spent five days.

Michael R. Jarrell, the other person in the automobile, whose name Reeves did not know, testified as a witness for the State. He said that he got in the back seat of the automobile; that Reeves was on the other side of the back seat at the time; that Joyce was in the driver’s seat and appellant was on the right of the front seat; that they drove from the parking lot to the end of Martha Street where the automobile was stopped. Appellant shone a flashlight in Reeves’ face, obtained Reeves’ billfold, but gave it back to Reeves after taking the money out of it. He said that he did not see appellant hit Reeves, but he heard appellant say that he wanted to throw Reeves off the bridge.

Appellant testified that on the night of November 26, 1975, he rode with Joyce to Saul’s; that the car was parked in the Saul’s parking lot; that while Joyce was talking to another person, Reeves came up to appellant cursing and swung a tire tool at appellant which mashed his right thumb. He said that he hit Reeves four or five times after Reeves attacked him, but that he did not take any property from Reeves. He said that after hitting Reeves, he ran to the AMVETS Club where he rejoined his girl friend whom he had left at the AM-VETS as he and Joyce were going to Saul’s.

Appellant complains of the refusal of the following written charges:

“No. 3. I charge you, members of the jury, that an indictment for robbery also embraces the charge of assault and battery.
“No. 9. The Court charges the jury that if a witness has come upon the stand and testified to a different state of facts here to what he testified upon the preliminary trial of the defendant had before the Municipal Court, you have the right to look to this evidence as evidence tending to impeach the witness who has made such conflicting statements.
“No. 10. I charge you, members of the jury, that if you believe that the witness Delbert Reeves has been contradicted in any material part of his testimony, you would be authorized to disbelieve all of his testimony.”

Reversible error may not be predicated upon the refusal of a requested written charge which is a mere statement of legal principles without instruction as to its effect upon or application to the issues in the ease. Mitchell v. State, 38 Ala.App. 546, 89 So.2d 238 (1956); Noah v. State, 38 Ala.App. 531, 89 So. 231 (1956); Page v. State, 41 Ala.App. 153, 130 So.2d 220, cert. denied, 273 Ala.. 5, 130 So.2d 227 (1961); Hudson v. State, Ala.Cr.App., 335 So.2d 208, cert. denied Ala., 335 So.2d 211. Charge 3 is that kind of a charge. Its refusal was not error. In addition, we should note that in no part of the record did defendant request that any principle as to lesser included offenses be applied to the case, and at the conclusion of the court’s oral charge defendant announced that he was satisfied. Moreover, as we understand the theories of the respective parties, there was no issue between them as to whether whatever happened between Bullard and Reeves while in an automobile on Martha Street, about a block and a half from the parking lot of Saul’s, was a robbery on the one hand or a mere assault and battery on the other. Defendant claimed that an incident happened on the pavement of the parking lot that was an entirely different incident, if it happened, from what Reeves claimed happened in an automobile a block and a half from the parking lot. The principle of the lesser included offense relied upon does not encompass any separate and distinct offense occurring at a different time and place from the offense expressly charged.

As to Charge 9, appellant relies upon Harris v. State, 96 Ala. 24, 11 So. 255 (1891) wherein it was held that the refusal of a similar charge was error. The statement of facts in Harris shows:

“. . After one of the witnesses for the State had testified to the circumstances of the killing, the defendant introduced in evidence part of the testimony of this witness as given on the preliminary trial before Judge Leigh, judge of the County Court, and reduced to writing. This evidence was in conflict with the testimony of the witness as given on the trial in the Circuit Court.”

In the case now before us, the only discrepancy between the testimony of a witness for the State on the trial and his testimony on the preliminary hearing was as to what was testified to by Delbert Reeves that part of the money that was taken from him had been paid to him by one Byron Morrison as part payment on a debt. On cross-examination, he testified that he testified on the preliminary hearing that he did not know who it was that gave him the money. He attempted to explain the discrepancy by saying that when he testified on the preliminary hearing he did not want to get the person named involved. Without approving the explanation and without attempting to mitigate the discrepancy, we are unable to say that there was a difference or conflict as to a material matter between his testimony on the preliminary hearing and his testimony on the trial. Harris v. State, supra, does not affirmatively show whether the conflict in the testimony of the witness on the trial with his testimony on the preliminary hearing was as to a material matter, but we can hardly doubt that it was for it is only as to a material matter that a witness may be impeached by his contradictory statements theretofore made in court or out of court. The fact that one’s testimony discloses that the witness has previously testified differently in some particular does not in and of itself force a conclusion that such difference was as to a material matter. Plainly, this is true when there is no objection to the particular testimony. The trial court was never called upon to pass upon the question whether the discrepancy was as to a material matter, and we are not required to do so. If it was as to an immaterial matter, it did not constitute evidence tending “to impeach the witness” as stated in the charge. Gamble, McElroy’s Alabama Evidence, § 156.-01(1) (1977); see also, (3), (4) and (5) for a discussion of authorities as to whether various self-contradictions are as to a material matter.

Our view that the charge that was held to have been erroneously refused in Harris, supra, and that served as a pattern for Charge 9 in the instant case is not a model for charges on the subject of impeachment of a witness by reason of self-contradictory statements, .unless perhaps the evidence shows without serious question that the self-contradiction was as to a material matter, as it apparently was in Harris, is strengthened by subsequent cases of the Supreme Court that cite Harris with approval of the opinion therein relative to the particular charge. The cases are: Louisville & N. R. R. Co. v. Hurt, 101 Ala. 34, 49, 13 So. 130 (1892); Crawford v. State, 112 Ala. 1, 26, 21 So. 214, 222 (1896); Hale v. State, 122 Ala. 85, 89, 26 So. 236 (1898); Wilkerson v. State, 140 Ala. 165, 168, 37 So. 265 (1904); Parker v. State, 165 Ala. 1, 51 So. 200 (1909).

In Crawford v. State, it was held:

“The fact that a witness, out of court, or upon a formal examination, has made statements, as to a material fact, variant from his testimony on the trial, affects his credibility. The extent to which it is affected it is the province of the jury to determine; and it may be proper for the courts so to instruct the jury. The instructions on this point which were requested are faulty in several respects. This instruction is in another respect faulty; it does not predicate that the contrariety of statement was in reference to a material fact. ‘It is not every contradiction of a witness which has the effect to impeach. The contradiction must be on a material point.’ Cauley v. State, 92 Ala. 71, 9 South. 456.”

In Hale, supra, the charge held good on the authority of Harris expressly referred to “contradictory statements as to the material facts in this case or any of such facts.”

In Wilkerson, supra, there was no limitation of the self-contradiction to a “material’.’ matter or fact, but the charge held to have been erroneously refused referred to-a self-contradiction that was so obviously as to a material fact that it could hardly be considered to be misleading. Wilkerson had been indicted for selling intoxicating liquor; the witness had testified that he had bought liquor from Wilkerson; the self-contradiction was to the effect that he had previously sworn “that he had never bought any liquor from this defendant.”

In Parker, supra, Harris, supra, was cited as authority for holding that the jury could take into consideration the testimony of the witnesses as to statements made by the deceased tending to contradict his dying declarations. A further discussion thereof would extend beyond the issues and necessities of the instant case.

In Louisville & N. R. R. Co. v. Hurt, supra, it was held:

“Charges 17 and 21 are misleading, and also state the proposition and language too strong. When it is shown that statements made by a witness on his examination are different from those made on a previous examination, this is evidence tending to impeachment. Harris v. State, [96 Ala. 24;] 11 South.Rep. 255;) but when the witness makes an explanation of the different statements the jury would not be authorized capriciously to reject the explanation. The charges should not have ignored the explanatory evidence. Contradictory statements tend to impeachment, but do not, as a matter of law, amount to an impeachment.

As hereinbefore observed there was an explanation by the witness of the discrepancy between his testimony on the preliminary hearing and his testimony on the trial.

It also seems to us that the particular charge is misleading in the use of the words “different state of facts.” As we see it, such a statement could well have been applicable to the facts in Harris, supra, but not in the case now before us. The discrepancy between the testimony of the witness on the preliminary hearing and his hearing on the trial, even if it be considered as testimony as to a material fact, can hardly be properly characterized as testimony “to a different state of facts here to what he testified upon the preliminary trial.”

We are of the opinion that the court was not in error in refusing Charge No. 9.

Except for the change in the name of the witness, defendant’s Charge No. 10 is identical with Charge 56 in Mills v. State, 1 Ala.App. 76, 55 So. 331 (1911), in which it was stated:

“Charges 56 and 57, requested by the defendant, assert correct propositions, and could have been given. L. & N. R.R. Co. v. Seale, 160 Ala. 584, 49 So. 323.” (Emphasis supplied).

We do not find authority for holding that the refusal of the charge constitutes reversible error. To so hold would not be in harmony with Hall v. State, 130 Ala. 45, 30 So. 422 (1900), in which it was held as to a similar charge as to the effect of a contradiction of a principal witness:

“Charge 4 refused to defendant had a tendency to mislead the jury to discard Gage’s testimony upon the mere consideration that he had been successfully contradicted as to a material fact when they might have concluded that he testified conscientiously as to that fact and was honestly mistaken as to it. . . .”

The trial court was not in error in refusing Charge No. 10.

Unfortunately, the testimony of the three eye-witnesses to the alleged crime is not clear in some important respects by reason of the large amount of intoxicating liquor they had drunk. Nevertheless, we are in no better position than the jury to penetrate the resultant fog in a search for the truth. The verdict is supported by substantial evidence, which forbids our disturbance of it by reason of any question as to the sufficiency of the evidence.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: TYSON, Judge.

license: Public Domain

text:
    Andrew Charles BROWN v. STATE.
    6 Div. 910.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied April 17, 1979.

      Miles M. Huffstutler, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. of Ala., and Debra Jean Williams, Asst. Atty. Gen., for the State.
   TYSON, Judge.

Appellant was charged in a three-count indictment for grand larceny, buying, receiving and concealing stolen property, and burglary in the second degree. At the close of the evidence, the trial judge granted a motion to exclude as to the counts charging grand larceny and buying, receiving and concealing stolen property. The jury found appellant “guilty as charged of burglary.” The trial judge set sentence at ten years imprisonment.

Richard Carl Needham testified that he lived at 1441 Forty-fourth Street, West, Birmingham, Jefferson County, Alabama. On February 10, 1978, Mr. Needham left his home about 2:00 p. m. Mr. Needham recalled that he left the house locked and unoccupied. Approximately forty minutes later, Mr. Needham returned home to find the back door slightly ajar. Inside the house, drawers had been emptied and papers strewn on the floor, clearly indicating to Needham that the house had been burglarized. Among the items missing were $500.00 in cash; a Smith and Wesson .38 caliber revolver, valued at $140.00; a man’s gold pocket watch, valued at $35.00; and several credit cards. Mr. Needham summoned the police immediately after discovering the burglary. The police inquired about what had been stolen and began looking for fingerprints. None of the missing items had been returned to Mr. Needham as of the date of the trial.

Sergeant R. L. Berry, with the Birmingham Police Department, testified that he conducted the investigation of the burglary in question. Sergeant Berry stated that, during his investigation of the case, he interviewed one Griselda McCants. Subsequently, the defense requested voir dire examination of Sergeant Berry. On voir dire, it was brought out that Griselda McCants was the appellant’s girlfriend who was found in possession of Mr. Needham’s credit cards. This discovery led to a comparison of appellant’s fingerprints with latent fingerprints recovered from the scene. The trial judge ruled that the witness would be allowed to testify in the presence of the jury only that he arrested the appellant as a result of conversations .with one Griselda McCants. The fact that appellant was already in jail at this point was ruled inadmissible. When the jury returned, Sergeant Berry’s testimony was limited to the facts allowed by the judge’s ruling.

Evidence Technician Richard K. Crocker, with the Birmingham Police Department, testified that he participated in the investigation of the alleged burglary in question. Officer Crocker processed several articles searching for latent fingerprints that Plight be used for evidence. Officer Crocker explained to the jury the procedure for lifting latent fingerprints from a surface. Officer Crocker identified State’s Exhibit One as being an envelope containing a latent fingerprint lift card, which he recognized from his initials on the back of the card. The card also contained the date, time and place from which each fingerprint was lifted.

Officer L. D. McDonald, with the Birmingham Police Department, testified that he had been employed at the City Jail for nine years. Officer McDonald testified that the general procedure of being admitted to jail involved being fingerprinted. Officer McDonald stated that the appellant had been admitted to jail and fingerprinted “about a year or two ago” (R. p. 57). At this point, the defense objected and requested voir dire examination of the witness.

On voir dire examination, it was brought out that State’s Exhibit Two was the so-called master card on the appellant. This card included references to previous offenses and was dated February 9, 1977. It was shown that the fingerprints on the card were taken on February 9, 1977. The appellant’s fingerprints were not re-taken because, at the time the instant charges were filed against him, he was in jail.

A photostatic copy of the master card, State’s Exhibit Four, with “all references to previous offenses” deleted was allowed into evidence. The trial judge kept custody of the original master card for the record. The trial judge allowed the date, February 9,1977, to remain on the photostatic copy of the master card because Officer McDonald had testified that appellant’s fingerprints were taken “about a year or two ago” (R. pp. 57, 65).

When the jury returned, the trial judge instructed them to draw no conclusions from Officer McDonald’s statement that appellant had been fingerprinted “about a year or two ago” (R. pp. 57, 67). The testimony served only to show the fact that appellant had previously been fingerprinted and that the fingerprints contained on the master card were those of the appellant. During Officer McDonald’s testimony, State’s Exhibit One, the latent fingerprint lift card, was admitted into evidence over objection by the defense.

Fingerprint Technician Donna Vogel, with the Birmingham Police Department, was qualified on the stand as an expert in her field. Officer Vogel identified State’s Exhibits One, Three and Four as being the latent fingerprints, the master card (formerly State’s Exhibit Two) and the photostatic copy of the master card, respectively. Officer Vogel’s testimony established the proper chain of custody with respect to State’s Exhibits One and Three. Officer Vogel explained that, based on her training and experience, the latent fingerprints, marked as State’s Exhibit One, were made by the thumb, index and ring fingers of the appellant’s right hand. Officer Vogel stated that her comparison of the appellant’s known fingerprints on State’s Exhibit Three with the latent fingerprints on State’s Exhibit One yielded a total of seventy-three points of identification.

At the close of Officer Vogel’s testimony, the State rested its case. The defense moved to exclude the State’s evidence, which motion was denied by the trial judge with respect to the burglary count. No evidence was presented by the appellant. After the trial judge’s oral charge, to which no exception was taken, the case went to the jury on the charge of burglary.

I

Appellant argues on this appeal that the trial judge erred in allowing State’s Exhibit Four, the photostatic copy of the appellant’s master card, to be admitted into evidence over objection because of certain extraneous, prejudicial information thereon contained. Appellant argues the jury was prejudiced by the date of arrest, February 9, 1977, the list of five aliases, and the F.B.I. number, 414102K1, all of which appeared on State’s Exhibit Four. This information allegedly gave the jury sufficient cause to infer that the appellant had committed prior offenses.

In Holsclaw v. State, Ala.Cr.App., 364 So.2d 378 (1978), cert. denied, Ala., 364 So.2d 382 (1978), this Court stated the general rule:

“. . It is fundamental that the accused in a criminal trial is entitled not to have his prior criminal record brought before the jury if he chooses not to take the witness stand, and if the evidence of collateral offenses does not specifically fit within an enumerated exception to the general rule of exclusion.” (Citations omitted)

We cannot ignore the possible prejudicial effect on the jury in this case from the admission of State’s Exhibit Four. The extraneous information contained on the exhibit reasonably implied the existence of a prior criminal record of the appellant. Moreover, we cannot fit this evidence into one of the enumerated exceptions to the general rule of exclusion. See Gamble, McElroy’s Alabama Evidence, § 69.01 (3d Ed. 1977). Moreover, when we consider that a more recent set of appellant’s fingerprints was available to the State to use at trial, we must conclude that the error here shown was entirely avoidable.

The fact that the trial judge instructed the jury to consider State’s Exhibit Four for the limited purpose of identification, does not eradicate the effect on the minds of the jury of the knowledge of the accused’s' prior criminal record. The mere existence of recorded fingerprints does not per se imply the existence of a criminal record. The error in this case was committed by showing the jury the additional extraneous and highly prejudicial information contained on the photostatic copy of the appellant’s master card. The trial judge was, no doubt, aware of the effect of the introduction of this kind of evidence because he expunged other portions of the appellant’s master card which he wisely deemed objectionable. Nevertheless, we feel that the introduction of State’s Exhibit Four served to place before the jury indirectly information which the State, by virtue of the appellant’s not having taken the stand, was forbidden to present directly. See Williams v. State, Ala., 350 So.2d 708 (1977); Holsclaw v. State, Ala.Cr.App., 364 So.2d 378 (1978), cert. denied, Ala., 364 So.2d 382 (1978); Scott v. State, Ala.Cr. App., 353 So.2d 36 (1977), cert. denied, Ala., 353 So.2d 40 (1977). See also, United States v. Turquitt, 557 F.2d 464 (5th Cir. 1977); United States v. McFadyen-Snider, 552 F.2d 1178 (5th Cir. 1977); United States v. Cochran, 546 F.2d 27 (5th Cir. 1977); United States v. Cohen, 544 F.2d 781 (5th Cir. 1977).

As noted in Scott, supra:

“The issue here presented was dealt with by our Supreme Court in the recent case of Williams v. State, 350 So.2d 708. Justice Faulkner, speaking for the Court, framed and answered the issue as follows:
‘The issue presented is, does a plea of not guilty, where the defendant offers no other defense, and where the witness made a positive identification based upon her observation of defendant at the first robbery, place his identity in issue, so as to justify admission of a separate and distinct subsequent offense. The answer is no. Admission of evidence of the subsequent robbery is reversible error.’ ” (Emphasis supplied.)

In the instant case the defendant presented no evidence after pleading not guilty. The admission of the master card with the prejudicial matter on it subtly suggested guilt of other offenses. Thus, error is shown.

Therefore, we must reverse the appellant’s conviction and remand the cause for a new trial in conformance with the holdings of this Court.

II

Appellant asserts that the trial judge improperly commented on the weight of the evidence in response to a question from one of the jurors at the close of the evidence. That colloquy follows (R. pp. 98-99):

“A JUROR: Yes, sir. I was just wondering how they get these fingerprints, how you lift one and how you compare it, how do they find it out of all the millions, they have got?
“THE COURT: That is something I cannot answer. The reason I can’t answer it, the law says a state judge cannot comment ever on the evidence and I could not answer that because I can’t tell you that. I can’t tell you anything about the case, as a matter of fact, but both sides have rested and you are going to have to decide this case on the testimony which you have heard in this courtroom from this witness stand or from the exhibits down here.
“Now about that question, I can’t answer it. Does anyone else have any others? I am not very helpful but the law says I can’t, so I can’t.
“All right, we’ll argue the case. The State rests, the defendant rests. There is no further testimony. Proceed, Mr. Jones.”

It is clear to this Court that there was no improper comment on the evidence in the above-quoted portion of the record.

Appellant further asserts that the trial judge improperly commented on the weight of the evidence during his oral charge to the jury (R. p. 109):

“Now one last thing. I have mentioned before in the course of the trial there was some comment made about known prints. That is, prints that had been previously made. I just remind you of this: that those prints are in for the limited purpose only of identification in this case. The when, where, how those prints came in the possession of the police whenever they were or wherever they were is immaterial to this case. The only purpose for that is they are the known prints of the defendant and it is for that limited purpose only that it is in.”

At the close of the oral charge, the trial judge asked the parties if they had any objections. Both parties responded in the negative. It thus appears that the appellant did not properly preserve his objection. Absent an objection and ruling at the trial court, there is nothing for this Court to review. Cox v. State, 280 Ala. 318, 193 So.2d 759 (1967). Hence, we find no merit to this assertion of error.

For the error shown in Part I of this opinion, we reverse and remand for a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: BOOKOUT, Judge. TYSON, Judge, BOWEN, Judge,

text:
    Floyd DUNCAN v. STATE.
    7 Div. 634.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied April 17, 1979.

      Loma B. Beaty, Fort Payne, for appellant.
    Charles A. Graddick, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault and battery; sentence: $500 fine and six months imprisonment in the county jail.

On the night of July 8, 1978, the appellant became involved in a fight with Thomas Hughes. Hughes was visiting in the home of appellant. During the course of the fight, the appellant managed to obtain a .22 caliber rifle and fire three shots at Hughes. Hughes was later taken to a hospital and treated for a gunshot wound.

The appellant was tried on the charge of assault with intent to murder. The conviction was for the lesser offense.

I

Appellant contends that the trial court committed reversible error by denying him a right to a preliminary hearing. He claims that § 15-11-1, Code of Ala.1975, gives him an absolute right to a preliminary hearing. Section 15-11-1 states:

“Every person charged with and arrested for a felony before his indictment shall have an absolute right to a preliminary hearing on said charge upon such person’s demand within 30 days following said arrest; provided, that such person’s failure or refusal to appear for such preliminary hearing or his absence from the state at the time of the setting for the preliminary hearing shall not delay or invalidate an indictment pursuant to said charge.”

Appellant was arrested on July 14, 1978. He filed a request for a preliminary hearing on July 18, 1978. Ten days later and before the trial court ruled on appellant’s request for a preliminary hearing, he was indicted by the grand jury.

The wording of this new code section has created considerable confusion. It has long been held in this jurisdiction that a preliminary hearing is not a required procedure for criminal prosecution, and that no right to such exists in Alabama after indictment. Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678,(1976). However, § 15-11-1, supra, appears to give defendants charged with a felony an absolute right to a preliminary hearing in cases where they are arrested before they are indicted. It has been suggested to this court in the past that the legislature actually intended to state that “every person charged with and arrested for a felony shall, before his indictment, have an absolute right to a preliminary hearing.” While that interpretation would be more logical, that is not what the legislature has enacted. From the wording of the statute, the right to a preliminary hearing is triggered by the accused being charged and arrested before his indictment. That section pronounces an “absolute right,” but provides no sanction for a violation. Whether an accused, armed with § 15 — 11—1, could obtain a writ of mandamus to compel the trial judge to grant that absolute right is not in issue. The issue is whether the failure to grant a preliminary hearing after indictment amounts to reversible error on appellate review of the case.

The appellant’s remedy in a preliminary hearing would be dismissal of the charge if there is a lack of probable cause. The returning of an indictment is a finding that probable cause does exist. There is still no constitutional requirement in Alabama that there be two inquiries into probable cause. Ex parte Campbell, 278 Ala. 114, 176 So.2d 242 (1965). Constitutionally, a preliminary hearing is not necessary to satisfy the requisites of due process, and the fact that there was no preliminary hearing in cases prior to the enactment of the statute in question has had no bearing on the validity of an indictment or subsequent proceedings. Scaife v. State, Ala.Cr.App., 337 So.2d 146 (1976).

While the appellant’s statutory right to a preliminary hearing may have been infringed in the instant case, we hold that no reversible error results where an indictment has been returned against the accused. It would be folly on the part of this court to reverse a case in order to require a repetitious inquiry into probable cause where such had already been determined by the grand jury. For this reason, we hold that any error committed by the trial court in not granting the appellant a preliminary hearing was harmless. Rule 45, Alabama Rules of Appellate Procedure.

II

The appellant filed a pleading styled “Plea in Abatement” on August 11, 1978, challenging the fact that he had not been given a preliminary hearing. On September 20, 1978, the date of the trial, the trial court granted the State’s motion to strike the appellant’s plea. The appellant contends that a jury should have heard the plea in abatement. Although the plea contained a written demand for a trial by jury, no objection was made to the trial judge sitting without a jury at the time the hearing was held on the plea and the motion to strike. Pleas are to be determined according to their substance and not necessarily by the wording of the caption. Section 15-15-3, Code of Ala.1975. The substance of the instant plea does not raise a question of fact for a jury to determine, such as in cases of misnomer or former jeopardy. The only ground for “abating” the criminal prosecution was the failure of the trial court to hold a preliminary hearing. The determination of whether a preliminary hearing should or should not be granted is a legal issue not requiring a factual determination by a jury. Based upon the reasoning set out in Part I, supra, the trial judge committed no reversible error in granting the State’s motion to strike the appellant’s “Plea in Abatement.” We would analogize this to the instance where a trial judge denies a plea of former jeopardy without the intervention of a jury. Although a jury should try the issue, no error results where the claim is unfounded. Simpson v. State, Ala.Cr.App., 354 So.2d 317 (1977), cert. denied, Ala., 354 So.2d 324.

III

Appellant contends that, during the lunch recess in his trial and -before the jury returned the verdict, there was an unlawful separation of the jury. He contends that this is prima facie reversible error.

At the hearing on the appellant’s motion for a new trial, appellant testified that he saw a lady juror go to a water fountain, get a drink of water, and go back inside the door. There was no testimony as to where this water fountain was located or what door the juror went inside. Appellant could not be certain whether the juror spoke with anyone. The juror was never identified. Appellant testified that he immediately informed his attorney and that his attorney also saw the juror go to the water fountain.

There was no objection at trial as to the separation of the jury, nor was there a motion for a mistrial. The issue was raised for the first time on motion for a new trial. An unauthorized jury separation is normally raised on motion for new trial when that fact is discovered by the defense after a verdict is returned. However, where defense counsel has knowledge of an error, he may not remain silent and gamble on a favorable verdict and then raise the matter in a motion for new trial when the verdict turns out unfavorable to the defendant. Welch v. State, 57 Ala.App. 72, 326 So.2d 137 (1976); Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 (1973). The calculated silence of the appellant and his counsel amounts to a waiver in such a circumstance.

AFFIRMED.

HARRIS, P. J., and TYSON and DeCAR-LO, JJ., concur.

BOWEN, J., dissents.

TYSON, J., files opinion.

TYSON, Judge,

concurring.

I concur in the principal opinion in this cause as prepared by Judge Bookout.

With reference to the alleged failure of the trial court to grant the appellant a preliminary hearing, it should be here noted that the Supreme Court of Alabama in Queor v. State, 278 Ala. 10, 174 So.2d 687, pointed out that the failure to conduct such a preliminary hearing would have no bearing on the validity of the indictment and subsequent proceedings incident thereto, i. e., the arraignment and trial.

Nor does the alleged failure to grant the appellant a preliminary hearing violate his constitutional rights. Queor v. State, supra; Core v. State, 50 Ala.App. 533, 280 So.2d 794, cert. denied, 291 Ala. 776, 280 So.2d 797; Daniels v. State, Ala.Cr.App., 335 So.2d 412.

BOWEN, Judge,

dissenting.

As the majority recognizes, it i$ generally held that a post-indictment preliminary examination would be an empty ritual as the State’s burden of showing probable cause would be met merely by the return of the indictment. This is because the only legal justification for the existence of a preliminary hearing is to protect innocent persons from languishing in jail on totally baseless accusations. Certainly there is no constitutional right to a preliminary hearing. Goldsby v. United States, 160 U.S. 70, 73, 16 S.Ct. 216, 218, 40 L.Ed. 343 (1895).

Despite all of this our statute provides an “absolute right” to a preliminary hearing. In this regard the comments to the proposed Alabama Rules of Criminal Procedure (June 1, 1977) are enlightening.

“Once the grand jury has returned an indictment the court does not have power to dismiss the indictment on a finding of no probable cause; thus a preliminary hearing held after return of an indictment would be a useless gesture, other than as a discovery deposition presided over by a judge. The dismissal of an indictment once returned can only come about by a circuit court granting defendant’s motion to dismiss, or by the court granting the district attorney’s motion for nolle prosequi. See Title 15, § 257, Code of Alabama 1940 (§ 15-8-130 Code of Ala.1975).
“While § 4-106(f) of Act 1205, Regular Session 1975 (§ 15-11-1, Code of Ala. 1975), requires a preliminary hearing in all cases unless waived, this requirement has been modified by the addition of Rule 5.1(a)(4), which precludes preliminary hearings being held after return of an indictment. The resulting denial to defendants of an absolute right to the discovery mechanism of a preliminary hearing is adequately offset by other rules which provide defendants with formal methods of discovery designed to eliminate trial ‘by ambush’ and by expanded pre-trial motion practice.”
Proposed Rules, pp. 46-47.

The failure to observe the plain mandate of a statute cannot be said, as a matter of law, to be unprejudicial. Brewer v. State, 23 Ala.App. 35, 37, 120 So. 301 (1929); Hart v. State, 21 Ala.App. 621, 622, 111 So. 47 (1927). The legislature has given a defendant an “absolute right” and so having done, the courts must abide.

The finding that the appellant has not been prejudiced in the denial of a preliminary hearing because of a later finding of probable cause overlooks the fact that a preliminary hearing may afford the accused certain limited rights of discovery.

Therefore I must dissent from the opinion of the majority.


author: HARRIS, Presiding Judge.

text:
    Kenneth GREY v. STATE.
    8 Div. 121.
    Court of Criminal Appeals of Alabama.
    March 27, 1979.
    Rehearing Denied April 17, 1979.
    Roderick Beddow, Jr., and Albert C. Bowen, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   HARRIS, Presiding Judge.

Under an indictment charging murder in the first degree appellant was convicted of manslaughter in the first degree and the jury fixed his punishment at ten years imprisonment in the penitentiary. At arraignment, in the presence of his retained counsel, appellant pleaded not guilty. After sentence was imposed appellant gave notice of appeal and his sentence was suspended pending appeal. He is presently at large under a fifteen thousand dollar bond. Trial counsel represents him on this appeal.

On the night of October 12, 1977, there was a shootout between appellant and the deceased near a place known as Frank & Clara’s Burger Basket on Highway 168 in Boaz, Alabama. After the shooting the deceased was found dead in the back seat of his 1969 Buick automobile and appellant drove his car to his mother’s home where he was carried to the Boaz-Albertville Hospital. The rescue squad removed the victim from the Buick and transported him to the same hospital but he was pronounced dead on arrival.

The testimony during the three day trial was in hopeless conflict and only a jury could unscramble this conflicting evidence and arrive at a verdict.

The central place of this drama was the Sundown Apartment complex in Boaz, where appellant and his wife had an apartment. The deceased and his brother occupied an apartment in this same complex. Appellant’s mother was manager of the Sundown Apartments and his father was the maintenance man. Appellant’s sister and her two children also had an apartment in the same place. Prior to his death the deceased and his brother had lived at the Sundown Apartments for two to three months.

Appellant’s marriage to Charlotte was apparently an unhappy one. After the deceased moved in this apartment complex he and Charlotte began seeing each other. On Friday, September 2, 1977, Charlotte did not come home. Appellant could not locate her and reported to the local police that she was missing.

The following Monday, Labor Day, appellant approached Jerry Irvin and asked him where Charlotte was. Irvin replied that he did not know. The evidence was in conflict as to what took place next. The State’s witness, Stanley Irvin, testified that appellant walked up to Jerry and hit him, and that he (Stanley) pulled appellant away from his brother. Appellant then, according to Stanley, threatened to kill Jerry Irvin. The testimony of appellant and other defense witnesses who were present indicated that Stanley Irvin held appellant while Jerry Irvin hit him and that, when the fight was broken up, Jerry told appellant, “there would be another time”.

On September 7, 1977, Charlotte returned for her things and moved out. The evidence was uncontroverted that during the period between Labor Day and the day Jerry Irvin was killed Charlotte Grey was seen on several occasions going into Irvin’s apartment with him. On some of these occasions Irvin was carrying a shotgun, and Charlotte’s car was seen parked overnight at the apartment. She also had a key to the apartment. Appellant testified that he once saw Jerry Irvin standing at his window pointing a rifle at appellant’s apartment, which was across from Irvin’s apartment. This testimony was substantiated by two other witnesses.

The testimony of both appellant and the State’s eyewitness, M. R. Fine, Jr., revealed that, on the day of the shooting, appellant went to Fine’s apartment around 6:00 p. m. The two men had a couple of drinks and talked about appellant and Charlotte “getting back together”. The couple had been seeing each other for several days, talking about a reconciliation. Appellant told Fine that he was still in love with his wife, and that he was worried because he was supposed to see Charlotte that night and had not heard from her. The two men were going to appellant’s apartment when he stated that he was concerned about where Charlotte was. Fine told him that he had seen her car parked earlier in front of her father’s business. Appellant and Fine got in appellant’s car and went to see if the.car was still there. When they arrived, Charlotte’s car was parked next to the deceased’s car and she and Irvin were sitting in the front seat of his automobile.

Mr. Fine testified that appellant got out of the car and went toward the car occupied by Charlotte Grey and Jerry Irvin. Charlotte got out and screamed “stop him, stop him.” Appellant went to the driver’s door and Pine testified that he then saw a pistol in his hand, pointed at Irvin. Fine testified that he ran to appellant, grabbed his arm and got the gun above the car. As appellant snatched away from him, Fine heard a shot and ran across the highway. He heard more shots and, as he turned around appellant went to his car and left. Fine went back to Irvin’s car and found him in the back seat.

Appellant’s testimony of the events on the day of the shooting was essentially identical to that of Fine up to the time of the actual shooting. Appellant testified that, when he reached the door of the car in which Irvin was seated, it swung open and he saw deceased with a pistol in his hand. Appellant kicked the door closed and pulled his gun. At this point, Fine grabbed his arm and, while appellant was trying to pull away, Jerry Irvin shot him three times. Appellant testified that Irvin was “fixing to shoot me again, and I just unloaded my gun.” Appellant stated that Irvin was trying to get over the seat of the car, that he knew Irvin kept a shotgun in the back seat, and he thought he was trying to get the shotgun.

The State toxicologist testified that he performed a post-mortem examination on the body of Jerry Irvin which revealed the presence of five gunshot wounds, one of which instantly caused death, entering the brain at the left temple. A blackjack was found in the deceased’s boot at the hospital.

The doctor who performed surgery on appellant for injuries sustained by him in the shooting indicated three gunshot wounds, one of which caused massive bleeding in the abdominal cavity and injury to the liver. Appellant was also hit in the chest, approximately one inch from the heart.

There was testimony that appellant normally carried a gun in a holster. Appellant’s father testified that he observed a sawed-off shotgun, a double barrelled shotgun and a blackjack in Jerry Irvin’s apartment shortly before his death, and that appellant was aware of the presence of the weapons. Irvin’s father testified that after the shooting he removed a rifle and a shotgun from his son’s apartment.

Charlotte Grey, appellant’s wife, took the stand and asserted her privilege not to testify against her husband.

The circumstances surrounding the death of Jerry Irvin are those of the classic lovers’ triangle. Irvin openly saw appellant’s wife while she was separated from him. Appellant knew of this, and there was at least one confrontation between the two men over Charlotte Grey during this period. Both men were known to carry firearms. For several days immediately prior to the shooting, appellant and his wife had apparently been negotiating a reconciliation.. They were to see each other on the night appellant found her with Jerry Irvin, and he was already upset over her absence.

Notwithstanding that passionate and unreasoned responses are often involved in situations such as this, the law does not condone the unjustified taking of a human life. Although the evidence indicated that Jerry Irvin may have shot first, a conclusion by the jury that appellant was not free from fault in bringing on the difficulty was reasonable. That the jury took into account the nature of the crime passionel is evidenced by the verdict of manslaughter.

The rule of law governing reduction of homicide from murder to manslaughter as a result of the heat of passion was announced in Hooks v. State, 99 Ala. 166, 13 So. 767:

“The principle we announce is that the law does not declare the provocation sufficient unless the parties are detected in the act; but a jury may say whether the compromising position of the parties was sufficient to arouse passion in the husband to such a degree as to overthrow reason, just as a jury may say, in other cases, whether the offense was the result of sudden and sufficient provocation to reduce the offense from murder to manslaughter. . . There is no law, unless made so by statute, which wholly excuses the husband from liability for taking the life of the wife or her paramour, although he slay them, or either, while in the act of adultery.”

For a court to reduce the degree of homicide, as a matter of law, to manslaughter, the offending parties must be caught in the very act of adultery. Where, as here, the parties are found in a compromising situation, it is for the jury to determine the sufficiency of the provocation. Hooks, supra; Rigell v. State, 8 Ala.App. 46, 62 So. 977; Warren v. State, 34 Ala.App. 447, 41 So.2d 201.

The trial court fully charged the jury on the degrees of homicide applicable under the facts of this case, reduction from murder to manslaughter by sudden heat of passion, and self-defense. The verdict of the jury was well within the boundaries of the evidence presented and the charge of the court.

Appellant raises on appeal a serious and troubling issue, striking at the heart of our adversary system of justice. He correctly contends that, throughout the trial of this case, the district attorney repeatedly attempted to elicit incompetent and illegal evidence in examining both State and defense witnesses and made comments directed toward the integrity of defense counsel and even his own witnesses. Counsel for appellant diligently objected on these occasions, which objections were sustained by the trial court. Further, appropriate instructions were emphatically and unequivocally given to the jury to disregard, and the jury queried on one occasion whether they had been prejudiced. The jury responded in the negative.

Typical of the instructions of the trial court to the jury after sustaining objections of defense counsel to illegal questions of the district attorney is the following example:

“Sustain your objection to the remarks of the District Attorney. Ladies and gentlemen, do not pay any attention whatsoever to that remark of the District Attorney but completely, absolutely, totally ignore it; do not consider it whatsoever in reaching your decision in this case.”

The conduct of the prosecutor in this case was highly improper and is condemned by this Court. Were it not for the prompt and careful actions of the trial court, reversal would be compelled. Where the trial court acts promptly to impress upon the jury that improper statements and questions are not to be considered by them in their deliberations, the prejudicial effects of such remarks are removed. Woods v. State, Ala. Cr.App., 344 So.2d 1225, cert. quashed, Ala., 344 So.2d 1230, and cases cited therein. Further, the refusal of the trial court to allow witnesses to answer improper questions rendered those questions harmless. Woods, supra; Strickland v. State, 269 Ala. 573, 114 So.2d 407; Packer v. State, 55 Ala.App. 30, 312 So.2d 601.

Due to the attentiveness and promptness of the trial court toward the preservation of appellant’s right to a fair and impartial trial, the deplorable conduct of the district attorney cannot be said to mandate a reversal.

A careful search of the record reveals no error injuriously affecting the substantial rights of appellant. The judgment of conviction is, in all things, affirmed.

AFFIRMED.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Juanita FRYE v. STATE.
    3 Div. 878.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.

      William H. Mills, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph M. Carlton, Jr., Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

The appellant was charged in a five count indictment for violating Act No. 645, Acts of Alabama 1976, approved August 24, 1976 (now § 22-1-10, Code of Ala.1975, 1978 Supp.). That Act provides in pertinent part that any person who, “with intent to defraud or deceive, makes or causes to be made any false statement or representation of a material fact in any claim or application for any payment, regardless of amount, from the Medical Services Administration, knowing the same to be false,” shall be guilty of a felony carrying a penalty of a fine of not more than $1,000 or imprisonment for not less than one nor more than five years.

Count One of the indictment reads as follows:

“Juanita Frye, whose identity to the Grand Jury is otherwise unknown, did after August 24, 1976, and before the finding of this indictment, with the intent to defraud or deceive, make or cause to be made in a claim or application for payment from Medical Services Administration of Alabama, to-wit: the 1977 Cost Report of the Carbon Hill Nursing Home for the fiscal year March 1,1976, through February 28,1977, knowing it to be false, a false statement or false representation of a material fact, to-wit: that the figure of, to-wit: $148,388.00 listed on Schedule D of the 1977 Cost Report represented salaries paid to the employees of the Carbon Hill Nursing Home for work actually performed, when in fact that figure of, to-wit: $148,388.00 contained the sum of, to-wit: $3,835.70 paid to Mrs. Vivian Keelon for work that she never substantially performed for the Carbon Hill Nursing Home.”

Each of the four remaining counts of the indictment were the same except for listing different amounts paid to different persons for work they never substantially performed. Each of the persons set out in the indictment as receiving salaries for work not performed were shown by the evidence to be relatives of -the owner of the nursing home, W. A. Keelon.

The jury found the appellant guilty and set a fine of $500 on each count. Since the sufficiency of the State’s evidence was properly challenged in the trial court, it will be necessary to review that evidence.

Bob H. Nunelley was the first witness called for the State. He testified that he was an auditor with the Medical Services Administration (hereinafter MSA). He stated that MSA administers the Medicaid program in the state of Alabama. He explained how MSA computes its rate of payment to nursing homes for Medicaid patients:

“The nursing homes furnish the Medical Services Administration a cost report which is the basis for setting a rate for the payment to the nursing home for Medicaid patients for the succeeding year. This cost report tells the Medical Services Administration how much it costs the nursing home to operate in various cost centers during a period of time. Those costs are divided by the patient days, the amount of time Medicaid patients have spent in the nursing home during a year in order to develop a per diem rate, a rate of pay to be paid to that nursing home for the next year.”

Based upon the cost report of the Carbon Hill Nursing Home for the fiscal year March 1, 1976, through February 28, 1977, filed by the appellant with MSA in Montgomery, the per diem rate which MSA would pay the Carbon Hill Nursing Home was calculated to be $16.07. However, when the salaries paid to relatives of the owner of the nursing home were deducted, the rate MSA would pay the nursing home was $15.25 per patient per day.

The cost report for the Carbon Hill Nursing Home filed with MSA by the appellant lists Rhonda Keelon as a full-time employee and Vivian Keelon and Brenda Parker as part-time employees in nursing service. W. A. Keelon, Jr., is shown to be a part-time employee in housekeeping, and Jerry Keel-on to be a part-time employee in maintenance.

The cost report covering the same period of time on the Winfield Nursing Home, likewise owned by W. A. Keelon, lists Brenda Parker, Vivian Keelon and Rhonda Keel-on as full-time employees of that nursing home holding the positions of “Nursing Care (aide).” W. A. Keelon, Jr., is listed as a full-time employee in the housekeeping department, and Jerry Keelon is listed as a full-time employee in the maintenance department of the Winfield Nursing Home.

Mrs. Jimmie Little was employed at the Carbon Hill Nursing Home during a portion of the period covered in the cost report in question. She stated that she was a licensed practical nurse and was employed there as director of nurses. During the fiscal year March 1, 1976, the record indicates that she worked at the nursing home only during March and April and then again during July and August. During the time .employed at the nursing home, Mrs. Little primarily worked from 6:30 a. m. until 3:00 p. m., five days a week. However, she often worked more than five days a week and more than eight hours a day and at times her working hours would be from 11:00 a. m. until 8:00 p. m.

Mrs. Little testified that she knew all the employees of the nursing home during the time she worked there, and did not know of any work done during that time by Brenda Parker, William A. Keelon, Jr., Jerry Keel-on, Rhonda Keelon, or Vivian Keelon. She only saw Mrs. Vivian Keelon around the nursing home at Christmas parties. On cross-examination, when asked whether any of those persons did any work during the nine and one-half months when Mrs. Little was not employed, she stated that she did not know. Mrs. Little likewise testified that the records of the Carbon Hill Nursing Home were kept in Winfield and that she did not know if any of the family members had worked on those records at Winfield.

Jeannette Kelly testified that she worked as a nurse’s aide at the Carbon Hill Nursing Home from March 1, 1976, through September 3, 1977, except for a six week period when she was sick. During that employment, she worked for a “long period of time” from 2:30 until 11:00 p. m., and for a “small amount of time” from 11:00 p. m. until 7:00 a. m. Her working days varied and sometimes she worked on weekends and holidays. Mrs. Kelly stated that she knew all of the part-time and full-time employees who worked at the nursing home during the fiscal year in question. She said that neither Rhonda Keelon, Brenda Parker, nor Vivian Keelon ever worked there during the course of her employment. She had only see Vivian Keelon around the nursing home at Christmas parties. She did not know Jerry Keelon nor William A. Keelon, Jr., but stated that she had never seen either of them working there.

Maudie Hunt testified that she was employed at the Carbon Hill Nursing Home as a nurse’s aide until September 1977. She worked in all areas of the nursing home, usually five days a week on the 3:00 until 11:00 p. m. shift. The days she worked would vary and would sometimes include holidays or weekends. She did not know Brenda Parker or Rhonda Keelon. She did know Vivian Keelon, but had never seen her working at the nursing home. However, she had seen her attending parties there. Mrs. Hunt had seen Mr. Keelon’s sons working at the nursing home helping repair the furnace and helping strip wax from the floors; however, she did not see them working there regularly.

Lucy Dozier testified that she worked as a nurse’s aide at the Carbon Hill Nursing Home from the end of 1969 until September 5, 1977. During the period covered by the cost report in question, she worked the evening shift, 3:00 until 11:00 p. m. She worked normally five days a week rotating weekends with other employees and occasionally would work another shift to fill in for an absent employee. The witness stated that she knew all of the employees on all the shifts at the nursing home. She did not know Brenda Parker or Rhonda Keelon, but had seen Vivian Keelon attending parties at the nursing home. She stated that she had seen the Keelon’s sons working at the nursing home, but not on a full-time basis. She did not know how much time they worked, and she never saw the name of any of the members of the Keelon family listed on the work schedule that was posted at the hospital each week.

On cross-examination, Mrs. Dozier testified that the two Keelon sons had once been called to the nursing home when the furnace would not function, but they did not know how to fix it and another maintenance man had to be called in. She said the plumbing and furnace maintenance work was normally done by people other than the Keelon’s sons. However, Mrs. Dozier had seen the sons working on the evening shift stripping wax from the floors. She said that job had to be started and completed on the evening shift while the patients were in bed. The floors were stripped on “something like” six month intervals. All of the employees at the nursing home maintained time cards; however, Mrs. Dozier never saw a time card there for any of the Keelons.

Donna Dodd worked at the Winfield Nursing Home from September 1974 until July 21, 1976. She was hired as a relief registered nurse for part-time work in the office. Later, additional duties were given to her as a relief nurse at the Carbon Hill Nursing Home two days a week and as a consultant nurse there four hours per week. One of Mrs. Dodd’s duties was keeping the books and doing payrolls for both nursing homes. As the consultant registered nurse for the Carbon Hill Nursing Home, she reviewed the patients’ charts, but had never seen a notation on any such charts made by Vivian Keelon, Rhonda Keelon or Brenda Parker. Likewise, in reviewing activity reports from that nursing home, she never saw a notation by any of the three and had never found any evidence of their having worked at that nursing home.

Mrs. Dodd testified that she had occasion to get in touch with Mrs. Vivian Keelon, who was usually reached at her home. She had never seen her in a nurse’s uniform, and Mrs. Keelon did not have a time card. The witness stated that she did not pay Mrs. Keelon’s salary based upon a time card, but paid her a monthly amount specified by the appellant.

Mrs. Dodd likewise testified that Brenda Parker was not an employee of the Carbon Hill Nursing Home to her knowledge. She stated that Mrs. Parker was a housewife and worked part-time at Mr. Keelon’s department store. Mrs. Dodd said that she paid Brenda Parker from the Carbon Hill Nursing Home account based upon the number of hours that she worked at the department store rather than work at the nursing home. In fact she had instructions to call Mrs. Parker each payroll period to determine how many hours she had worked during that month at the department store. The department store had no connection with the nursing home.

Mrs. Dodd testified that she knew Jerry Keelon, but did not know him to work at the Carbon Hill Nursing Home. She said he worked occasionally at the Winfield Nursing Home while he was going to Phil Campbell Junior College. She thought Jerry Keelon worked as a part of the construction crew at that time remodeling inside the nursing home. She said that she paid Jerry Keelon from the payroll account of both the Carbon Hill and Winfield Nursing Homes on order of Mrs. Frye, the appellant.

William Keelon, Jr., according to Mrs. Dodd, was around fourteen or fifteen years old and in either the ninth or tenth grade at Winfield High School where he attended on a regular basis. After school he usually came around to the Winfield Nursing Home. The witness never sent him to Carbon Hill, and he never kept a time card. “Junior” Keelon was paid monthly on order of the appellant. Likewise, Rhonda Keelon, around sixteen or seventeen years of age and a student at Winfield High School, was on the payroll of the Carbon Hill Nursing Home. Mrs. Dodd never saw her wearing a nurse’s uniform and never knew her to work at the Carbon Hill facility.

Mrs. Dodd testified that she asked the appellant about the payments to members of the Keelon family. She said the appellant stated that Mr. Keelon, as owner of the nursing home, was allowed an administrative allowance that “was his to do with,” and he had decided to divide it among his family.

Charles Wilbanks testified that he was employed by MSA in Montgomery as Assistant Director for Audits. His. duties included auditing all providers for Medicaid except hospitals. He defined Medicaid as “a program for the indigent that the State matches money with the Federal government.” He testified that MSA is an agency of the state which administers Medicaid. He said that the state appropriates money from the general fund and allocates it to MSA to be matched with three federal dollars to every one state dollar appropriated. Wilbanks explained the function of the cost report in substantially the same terms as earlier testified to by Bob Nunelley. He stated that once the per diem rate is figured based upon the allowable cost the previous year, the MSA fiscal department will prepare vouchers which go to the state comptroller who sends a check back to MSA to be forwarded to the nursing home in question.

Robert M. Black testified that he was principal of Winfield High School and that his records of attendance for the fiscal year in question indicated that William A. Keel-on, Jr., had only eight absences from school that year. Likewise, his records indicated that Rhonda Keelon was a student at Win-field High School during that period.

Doris Evans testified that she was employed at Winfield High School during the period in question as a teacher and as coordinator for business and office education. She supervised Rhonda Keelon as a co-op student going to school a half-day and working a half-day. She testified that to her knowledge Rhonda Keelon worked at the Family Center, a store in Winfield owned by W. A. Keelon, Rhonda’s father. She likewise knew William A. Keelon, Jr., as he had been in her accounting class at Winfield High School. She stated that as a tenth grader he was not eligible for the co-op program until the next year, and that all students are required to stay in school from 8:00 a. m. until 3:00 p. m. unless they are under the co-op program.

Mrs. Evans testified that an employer may pay a “student learner” only seventy-five percent of the minimum wage; however, Rhonda Keelon did not want her to petition for the student wage because her father was going to pay the regular wage.

The State then called Howell B. Holland as its last witness. Mr. Holland stated that he was cashier at the Winfield State Bank, and he produced banking records of the Family Center which the State had subpoenaed. After searching the records for the fiscal year in question, he found no checks from the Family Center payable to Rhonda Keelon. At the end of his testimony, the defense moved to exclude the State’s evidence for failure to prove a prima facie case. That motion was overruled by the trial judge. The defense presented several character witnesses and numerous other witnesses who had at various times and on various occasions seen some of the Keelon family members performing work at the Carbon Hill Nursing Home. Without setting out the details of such testimony, it is sufficient to note that each of the witnesses, including the Keelon family members themselves, presented evidence of only occasional duties performed by each during the period for which they were drawing monthly salaries.

I

A motion to exclude evidence on the ground that it is insufficient is tested by the evidence at the time the motion is made. Tooson v. State, 56 Ala.App. 613, 324 So.2d 327, cert. denied, 295 Ala. 426, 324 So.2d 333 (1975). Assuming for the purpose of testing the sufficiency of the evidence that the indictments are valid and that Act No. 645, supra, is constitutional, we find that the State’s evidence made out a prima facie case and the motion to exclude was properly overruled. In testing the sufficiency of the evidence on the basis of the appellant’s motion for a new trial, we likewise find that there was evidence presented by the State as well as by the defense which if believed by the jury would support a verdict of guilt. After a careful review of the facts presented during the entire trial, we cannot say that the evidence was insufficient for a jury to find that Vivian Keelon, W. A. Keelon, Jr., Rhonda Keelon, Jerry Keelon and Brenda Parker were paid by the Carbon Hill Nursing Home for work which they never substantially performed. The evidence, and inferences drawn therefrom, would easily support a finding that the appellant included in the cost report filed with MSA a false statement or false representation of the material fact with the intent to deceive MSA into making higher payments to the nursing home than were legally due it.

This court has always adhered to the legal principle that a verdict will not be set aside on the ground of insufficiency of the evidence unless, after allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. Morton v. State, Ala.Cr.App., 338 So.2d 423, cert. denied, Ala., 338 So.2d 428 (1976). We conclude that the trial judge was not in error in overruling the appellant’s motion for a new trial on the ground of insufficiency of the evidence.

II

The appellant argues to this court that Act No. 645, supra, under which she was tried and convicted, is unconstitutional. Both briefs submitted by the appellant and appellee argue at length the constitutionality vel non of that Act; however, we are unable to find where that issue was raised in the trial court below.

The appellant filed a demurrer to the indictment and a motion to quash the indictment, both of which were overruled by the trial court. Neither the demurrer nor the motion to quash set out as a ground that the Act in question is unconstitutional. Neither does either pleading advance any of the arguments set out in the appellant’s brief concerning the unconstitutionality of the Act. Neither was the now asserted unconstitutionality of the Act raised in the appellant’s motion for a new trial.

Each of the grounds set out in those pleadings are general in nature. The record does not contain a transcript of any. argument or testimony taken on those pleadings. For aught that appears in the record, the trial judge ruled on the demurrer and the motion to quash based solely on the grounds as set out therein. TJie proper way to reach defects in an indictment is by demurrer and not by a motion to quash. Jeter v. State, Ala.Cr.App., 339 So.2d 91 (1976), cert. denied, Ala., 339 So.2d 95. Therefore, we will only consider the trial court’s ruling on the demurrer.

Grounds 1, 2 and 8 of the demurrer deal with venue. Grounds 3, 5 and 6 are general grounds alleging the indictment to be insufficient. Ground 4 challenges the indictment for failure to allege specific intent to defraud or deceive. Ground 7 attacks the indictment for failure to set out the law or code section under which the appellant is charged.

Each of the grounds set out in the demurrer challenge the indictment, not the constitutionality of the statute in question.

Even constitutional rights must be seasonably raised in the trial court in order to be considered on appeal. Harris v. State, Ala.Cr.App., 347 So.2d 1363 (1977), cert. denied, Ala., 347 So.2d 1368. To warrant a court to decree a statute void, the invalidity of that statute must be distinctly pointed out to that court, and where the alleged uneonstitutionality of an act is not properly raised in the trial court below, the appellate courts are not at liberty to consider that, issue on appeal. Hagendorfer v. State, Ala. Cr.App., 348 So.2d 1097 (1977), cert. denied, Ala., 348 So.2d 1101; Cooper v. State, 55 Ala.App. 576, 317 So.2d 543 (1975); Lingle v. State, 51 Ala.App. 210, 283 So.2d 660 (1973).

Ill

Grounds 1, 2 and 8 of the appellant’s demurrer to the indictment raise the issue of improper venue. Venue is not a question of criminal pleading, but rather of proof. Harris v. State, 44 Ala.App. 449, 212 So.2d 695, cert. denied, 282 Ala. 726, 212 So.2d 704 (1968); § 15-8-31, Code of Ala.1975.

Ground 3 of the demurrer alleges that the facts set out in each count of the indictment do not constitute a crime. Ground 4 challenges the sufficiency of the indictment for failure to allege any specific intent by the appellant to defraud or deceive. Ground 6 contends that the allegations of the indictment are mere conclusions and not facts.

It has long been held in this jurisdiction that an indictment is sufficient which substantially follows the language of the statute, provided the statute prescribes with definiteness the constituents of the offense. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844, cert. denied, 293 Ala. 746, 309 So.2d 850 (1974).

For the indictment to be valid in the instant case, the State must have set out the following constituents: that the appellant (1) with the intent to defraud or deceive, (2) did make or cause to be made, (3) a false statement or representation of a material fact in a claim or application for payment, (4) from Medical Services Administration, (5) knowing such statement or representation to be false.

We have reviewed each of the five counts of the indictment in question and find that the State adequately sets out the constituents of the offense in substantially the same language as used in Act No. 645, supra. The indictment, therefore, adequately states an offense and is not de-murrable under Ground 3 or 6 of the demurrer.

The trial court likewise did not err in overruling Ground 4 of the demurrer. Section 15-8-29, Code of Ala.1975, states:

“When an intent to injure or defraud is necessary to constitute an offense, it is sufficient to allege in an indictment an intent to injure or to defraud generally, without naming the particular person, corporation or government intended to be injured or defrauded.”

Ground 7 of the demurrer likewise was properly overruled. It is unnecessary to set out in an indictment the code section or statute under which a person is charged. Matters of which judicial notice is taken need not be stated in an indictment Section 15-8-32, Code of Ala.1975. Courts take judicial notice of public statutes. White v. State, 42 Ala.App. 249, 160 So.2d 496 (1964).

IV

The appellant contends that the indictment is void for failure to allege that the act was done “feloniously” or for failure to employ some adequate substitute for that word. The appellant cites as authority: Chappell v. State, 52 Ala. 359 (1875); Fendley v. State, 49 Ala.App. 393, 272 So.2d 600 (1973); Harmon v. State, 47 Ala.App. 1, 249 So.2d 369 (1970). In each of those cases, reversal was predicated upon the fact that the word “feloniously” or its equivalent was required in the code form indictments used.

In indictments for robbery and larceny, it is necessary to allege that the act was done feloniously or unlawfully for the purpose of showing intent. Without such an expression, “there is nothing in the indictment to show that the persons engaged in the affair were not merely indulging in mischievous sport, instead of being actuated animo furandi.” Chappell, supra. It is clear that at least in robbery and larceny cases, not only does the word “feloniously” appear in the code form indictment, but it was necessary to make such an allegation of intent as a matter of common law. Absent the intent to steal, or animus furandi, no crime would be described in an indictment for robbery or larceny. Harmon, supra. However, we are not dealing with a common law offense in the instant case. The conduct prohibited by Act No. 645, supra, only becomes illegal by virtue of that Act alone. The necessary criminal intent is set out in Act No. 645 as “intent to defraud or deceive.” That criminal intent appears in each count of the instant indictment.

In cases involving felonies which were not common law offenses, we think the law is properly stated in Harris v. State, 248 Ala. 389, 27 So.2d 797 (1946). In that case, an indictment for illegal transportation of prohibited liquors followed the language of the statute with the exception that it did not allege that such transportation was “contrary to law.” The Alabama Supreme Court found that a demurrer to the indictment did not specifically point out that defect and, therefore, held that the trial court was not in error for overruling the demurrer.

In the instant case, the indictment followed the language of the statute setting out each essential of the offense including the intent to defraud or deceive. We likewise note that most indictment forms appearing in the code, especially those pertaining to fraud, do not contain the word “feloniously” or equivalent verbiage. See: § 15-8-150, Code of Ala.1975. The demurrer in the instant case lacked specificity to bring to the trial court’s attention the argument now tendered by the appellant. The trial court therefore committed no error in overruling the demurrer. Harris, supra.

V

The appellant contends that since there was only one cost report (claim for payment) made to MSA, then a single transaction may not be split into five separate counts in an indictment. This contention, as others previously noted, is made for the first time on appeal. The appellant’s trial counsel filed both a demurrer and motion to quash the indictment; however, in none of the grounds is it contended that the five counts are an improper assertion of one criminal transaction. We note that the appellant is represented on appeal by different counsel than at trial.

Review on appeal is limited to a consideration of questions which were raised properly and timely in the trial court below. Harris, supra. In any event, Act No. 645, supra, relates to the making of “any false statement or representation of a material fact in any claim or application for any payment . from the Medical Services Administration.” While the cost report in question reflects a total figure for salaries, still there is contained within the cost report five separate and distinct statements or representations as to salaries paid to each of the Keelon family members in question. This amounts to five separate and distinct false statements or false representations of material facts submitted by the appellant to MSA in a claim for payment.

Where offenses are of the same general nature and belong to the same family of crimes, and where the mode of trial and nature of punishment are the same, they may be joined in the same indictment in different counts. Harger v. State, 54 Ala.App. 242, 307 So.2d 51 (1974); Smelcher v. State, 33 Ala.App. 326, 33 So.2d 380 (1947); Grayson v. State, 28 Ala.App. 210, 182 So. 579 (1938).

AFFIRMED.

All the Judges concur.