author: TYSON, Judge.

text:
    Russell Hobson HURLEY, Jr. v. STATE.
    7 Div. 378.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Rehearing Denied May 4, 1976.
    Russell Hobson Hurley, Jr., pro se.
    William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the first degree murder of Otis Lee Robinson, “by shooting him with a pistol.” Following a jury trial the appellant was found guilty of murder in the first degree, and his punishment fixed at life imprisonment. The trial court then entered a judgment in accordance with this verdict.

The appellant’s motion for new trial was overruled following a hearing thereon.

Neil Ferguson, a radio operator for the Talladega County Sheriffs Department, testified that he received two transmissions from Officer James Hines of the Lincoln Police Department during the early morning hours of November 16, 1974. The first came at 1:25 a. m. and was a request for a photo-electric intoximeter operator to determine a subject’s blood-alcohol content. Ferguson testified that the second call followed a short time later at 1:40 a. m. In this second transmission Ferguson heard Hines say either, “I’m hit” or “We’re hit” and “I need help.”

James Hines testified that in November of 1974 he worked as a police officer for the Town of Lincoln, Alabama. He stated that he reported for duty around midnight on Friday night, November IS, 1974. Hines said that he left the police station around 12:15 a. m., driving one of Lincoln’s two patrol cars, that Officers Otis Robinson and Allen Harmon rode with him. Hines described the patrol car as a four-door Ford Galaxie with a cage separating the front and back seats. He added that there were no door or window handles in the back, that the rear doors had to be opened from the outside.

Hines testified that near the intersection of Highways 77 and 78, he and the other two officers spotted a Dodge Challenger weaving from one side of the road to the other, heading north towards Gadsden on Highway 77. He said that they followed the Challenger a little over a mile before turning on their blue light and pulling it over to the side of the road at a point approximately SO to 100 yards short of the first road leading into the correct subdivision. Hines explained that he pulled in behind the Challenger so that the patrol car’s left headlight shone on the door on the driver’s side of the Challenger, the patrol car’s headlights were on bright. All three officers exited the patrol car and Hines, flashlight in hand, walked up to the parked Challenger and asked the driver, the only person in the car, for his driver’s license. The driver, whom Hines positively identified in court as the appellant, handed him a driver’s license which read Hugh Wor-thington. Hines continued his testimony by saying that he asked the appellant, who had the odor of alcohol on his breath, to step around to the back of the car, that he failed a balance test and was arrested on a charge of DWI. Hines said that the appellant was asked to make sure his car was locked, and was then placed in the back seat of the patrol car with Harmon, that he drove and Robinson rode in the front seat on the passenger’s side. Hines turned the patrol car around, radioed Talladega to have a PEI Operator standing by and headed back south on Highway 77, past I-20 and McCoy’s Motel.

Hines testified that as they neared Speedway Boulevard, he heard a “clicking sound” followed almost simultaneously by two shots in the back seat after which he heard Harmon say, “Oh, Lord.” Another shot was fired and Officer Robinson groaned and slumped forward. Hines explained that at this point he speeded up and attempted to “flip” the patrol car and that the appellant said “Okay, you black mother fucker, stop this car,” that he then slammed on the brakes, threw the car into reverse, floored the accelerator, picked up speed, cut the wheels sharply to the right and jumped from the still moving car, striking his head on the door, as he heard another shot fired behind him. Hines explained that neither he nor Harmon “patted down” the appellant before placing him in the patrol car and that the first time he saw the appellant with a pistol was when he had it “up to the cage.” Clear of the car, Hines unsuccessfully attempted to flag down a truck. By this time the appellant had kicked out most of the left rear window and fired a shot in Hines’ direction. Hines stated that he sought cover across the median on the other side of the highway where he exchanged a few shots with the appellant, however the appellant ran and disappeared down a dirt road and Hines rushed back to the car, radioed in, and sped to Citizens Hospital in Talladega. Hines testified that on November 17 at the Lincoln Police Department he identified the appellant from a number of photographs as being the man that shot Officers Robinson and Harmon. He also stated that he subsequently picked appellant out of a lineup that was held at the Anniston Police Station on November 29, 1974.

Hugh Worthington testified that he was a Birmingham optician and that two or three weeks prior to November 16, 1974, he was “held up” by four or five masked men who took his wallet which contained his driver’s license.

Dr. Mario Papagini testified he arrived in the emergency room at Citizens Hospital in Talladega at approximately 1:30-2:00 a. m., November 16, 1974, after receiving a phone call at home. He stated that he examined the two that had been shot, that Harmon was dead and Robinson was in critical condition, registering little or no vital life signs. Dr. Papagini further testified that everything humanly possible was done in an attempt to save Robinson but that he had a severe head wound with brain tissue oozing forth from the entrance point, and that he died within five to eight minutes of his, Dr. Papagini’s, arrival at the hospital.

State Toxicologist Carlos Rabren testified that he examined the body of Otis Robinson on November 16, 1974, that he detected two bullet wounds, one on the left side of the head in the temple area, the other in the left upper back region. Ra-bren stated that the head wound was surrounded by gunpowder burns indicating that the muzzle of the gun was close to Robinson’s head at the time the shot was fired. Rabren concluded by saying that in his opinion death resulted from inner-cranial hemorrhage and shock associated with a gunshot wound to the head.

Eddie Wilder of the Talladega City Police Department testified that he was present at Citizens Hospital in Talladega during the early morning hours of November 16, 1974 at which time he took possession of Robinson’s and Harmon’s pistols. Wilder said that each pistol was still in its holster and contained six unfired founds, that neither of the guns appeared to have been recently fired.

Both C. L. Martin, a recorder with the City of Lincoln, and acting Chief of Police John Elston were shown a patrol car screen with a hold and several indentations in it. Each identified it as the screen that had been removed from the car Hines had driven on the night of the shooting and testified that prior to the night in question the screen had no holes or indentations in it.

Talladega County Deputy Sheriff Paul Locke testified that he participated in a search just north of Choccolocco Creek on Highway 77 at a point where the patrol car had allegedly come to rest. He stated that he observed some shattered glass, and also that he found a set of keys off to the side of the highway on the edge of a dirt side road. Locke testified that these keys were later tested and fit the Dodge Challenger.

Captain James A. Davis of the Alabama Department of Public Safety testified that he was present at the Lincoln Police Station on the afternoon and evening of Sunday, November 17, 1974 at which time Officer Hines picked the appellant’s picture out of over 400 others and identified him as the man that had shot Officers Robinson and Harmon. Davis also testified that the Dodge Challenger involved in the case had been stolen from Phoenix City, Alabama, on June 30, 1974.

Wayne Maness of the Federal Bureau of Investigation testified that he participated in the investigation into the shooting deaths of Officers Robinson and Harmon, and that he was present with several other officers at the Siesta Motel on Highway 78 in Irondale near Birmingham at 6:00 a. m., on November 26, 1974, when the appellant was arrested. Maness stated that the officers found the appellant alone, lying on the lone bed in room 144 with a cocked pistol by his side. Maness added that the room had been paid for a week in advance and was registered in the name of “William Stevens.” Maness said that the appellant was arraigned in Talladega and then driven to Anniston for a lineup, that a black man named James Hines came in and identified the appellant as the man who shot and killed two Lincoln police officers.

State Toxicologist John Case testified that on November 16, 1974, he inspected two automobiles, a white Dodge Challenger and a Lincoln patrol car, and removed latent fingerprints from each which he was able to match with known prints of the appellant Russell Hobson Hurley, Jr. Case said that his inspection of the Challenger also produced a pair of gloves and a ski mask. As for the patrol car, Case testified that he observed what appeared to be blood at various points on both the exterior and interior of the car, and that on the rear floorboard he found a cap, broken glass and lead fragments. Case testified that he tested the pistol of each of the three officers as well as the one confiscated from appellant at the time of his arrest and that none of them could have fired the bullets removed from the head and back of Officer Robinson.

Ronald G. Whitmus, Chief of the Fingerprint Bureau of the State of Alabama, took the stand and corroborated Case’s conclusions with respect to his fingerprint comparisons. At this point the State rested its case.

The defense called Mrs. H. B. Phillips to the stand. She testified that she lived approximately three miles south of Lincoln and approximately one-quarter mile from where the two police officers were allegedly shot and killed. She stated that she was a light sleeper and that on the night in question she neither heard any gunshots nor heard anyone squeal.

Mrs. Phillips’ daughter-in-law, Rosemary Phillips, took the stand and testified that she too lived near the scene of the alleged shooting but heard nothing on the night in question.

Alvin C. Gibbs, Commissioner of Licenses for Calhoun County, identified defendant’s Exhibit Number S as a tax receipt for an automobile license tag that was sold by his office on November 15, 1974, to a man that identified himself as “N. L. Wor-thington,” for a white Dodge Challenger. Gibbs stated that the man who bought the tag, whom he described as six feet, 180 pounds, with clean cut brown hair, was not the appellant.

Mike Odell testified that at 2:00 a. m., November 16, 1974 he left Quality Overhaul next to the Speedway and headed for home in Lincoln. As he turned right off of Speedway Boulevard onto Highway 77 at approximately 2:05 a. m., he saw a Lincoln patrol car heading south in his direction on Highway 77 turn around in the middle of the road and head back towards Lincoln. A few minutes later as Odell was proceeding north towards Lincoln, the Lincoln patrol car passed him heading south toward Talladega.

Barbara J. Cate, Director of Medical Records at Citizens Hospital in Talladega, testified in rebuttal for the State. She testified that Officers Robinson and Harmon were brought to the hospital in the same car on November 16, 1974, and that Harmon was officially admitted at 1:40 and Robinson at 2:00 a. m.

I

Appellant first alleges that persons 21 years of age and under were systematically excluded from the venire which comprised both the grand and petit jury, and that his motion to quash the indictment should therefore have been granted. The appellant however filed no affidavits in support of this motion, nor did he offer any other evidence in support of this motion.

The Constitution does not forbid the states from subscribing relevant qualifications for prospective jurors including a specified minimum age. Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549. Moreover, at the time of the trial of this cause the provisions of Title 30, Section 21, Code of Alabama 1940, were applicable which specifically sets this age at 21 years.

The burden is upon the defendant in a criminal trial when a motion to quash an indictment or petit jury challenge is made to go forward with the burden of proof in support thereof. Junior v. State, 47 Ala.App. 518, 257 So.2d 844. Cert. denied, 288 Ala. 744, 257 So.2d 852. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666. Lipscromb v. State, 53 Ala.App. 647, 303 So.2d 148, and authorities therein cited.

Further, the alleged exclusion of “young persons” or persons between the ages of 21 and 29 years has been held not to constitute a cognizable class. United States v. Gooding, 5 Cir., 473 F.2d 425. Williamson v. State, 52 Ala.App. 617, 296 So.2d 241. We therefore hold that the denial of appellant’s motion, which was unaccompanied by affidavits or other proof, was entirely proper. Cases herein cited.

II

Appellant next asserts that he was not afforded a preliminary hearing in this cause and thus his Constitutional rights were denied. We find attached to appellant’s motion requesting a preliminary hearing a letter marked State’s Exhibit 1 (R.P.24) which showed that defense counsel had written the District Attorney advising him of his request for a preliminary hearing, but it contains the language, “as soon as the toxicologist’s report is received.”

The record further reflects that the autopsy report from the toxicologist’s office in Jacksonville, Alabama, is dated January 9, 1975, and the grand jury indictment was filed in open court on January 10, 1975. In short, while it appears that defense counsel and the District Attorney may have discussed a preliminary hearing, it does not appear from the record that this was called to the attention of the trial court before the indictment was returned by the grand jury of Talladega County in this cause. It is not clear when the defendant’s own personal letter requesting a preliminary hearing was received by the trial judge.

Nevertheless, the record does reflect that such was called to the trial court’s attention for the first time after indictment. We therefore hold that the failure to hold a preliminary hearing in this cause was not a denial of the appellant’s rights such as to constitute a denial of due process of law. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387. Queor v. State, 278 Ala. 10, 174 So.2d 687. Core v. State, 50 Ala.App. 533, 280 So.2d 794. Cert. denied, 291 Ala. 776, 280 So.2d 797.

Ill

Appellant calls attention to his motion for a change of venue filed prior to trial to which he attached several newspaper articles which appeared in several newspapers circulated in Talladega County, Alabama. In addition, he attached a single magazine article. The State, to counter this, offered the affidavits of 29 persons, all of whom were citizens of Talladega County, to the effect that in their opinion the appellant could receive a fair and impartial trial in this county. Mere publicity by press, radio and television does not per se constitute grounds for a change of venue. Mathis v. State, 280 Ala. 16, 189 So.2d 564.

The burden is on the defendant seeking a change of venue to show to the reasonable satisfaction of the Court that he cannot receive a fair and impartial trial. Such motion is addressed to the sound discretion of the trial court and will not be disturbed on appeal in the absence of gross abuse. Moore v. State, 52 Ala.App. 179, 290 So.2d 246. Hurst v. State, 54 Ala.App. 254, 307 So.2d 62. Cert. denied, 293 Ala. 548, 307 So.2d 73.

Here the appellant offered no testimony but simply offered the several news stories in support of the motion in question. The trial in this cause was several months after the publication of the newspaper stories in question. We are therefore of the opinion that such was not of such an inflammatory nature as to prejudice a jury at this point in time. Mathis v. State, 52 Ala.App. 668, 296 So.2d 755. Cert. quashed, 292 Ala. 732, 296 So.2d 764, and authorities therein cited.

Some of these articles were not of a sufficiently prominent nature as would support a motion such as was here presented. Yoemans v. State, 55 Ala.App. 160, 314 So.2d 79.

We are of the opinion that the trial court properly overruled appellant’s motion in this cause. Acoff v. State, 50 Ala.App. 206, 278 So.2d 210, and authorities herein-above cited.

IV

Finally, appellant asserts that the District Attorney in closing argument made prejudicial and sinister remarks and therefore this cause should be reversed.

We have carefully reviewed the transcript and find that nowhere therein was there any objection to any such alleged prejudicial argument; hence, there is nothing presented this Court for review. Gilliland v. State, 291 Ala. 89, 277 So.2d 901, and McClendon v. State, 54 Ala.App. 327, 307 So.2d 723.

We have carefully examined this record as required by law and find no error therein. The judgment of the trial court is therefore due to be and the same is hereby

AFFIRMED.

CATES, P. J., and HARRIS, De-CARLO, BOOKOUT, JJ., concur.

      . Act No. 77, Acts of Alabama, 1976 Regular Session, is not retrospective.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    In re Russell Hobson HURLEY, Jr. v. STATE. Ex parte Russell Hobson Hurley, Jr.
    SC 1854.
    Supreme Court of Alabama.
    July 16, 1976.
    Russell Hobson Hurley, Jr., pro se.
    No appearance for the State.
   JONES, Justice.

Petition of Russell Hobson Hurley, Jr. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hurley v. State, 58 Ala.App. -, 335 So.2d 183.

WRIT DENIED.

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


text:
    Kelvin BRANTLEY v. STATE.
    6 Div. 34.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied June 1, 1976.
    Gary Weston, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. and Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from another conviction of murder while robbing a storekeeper. Appellant was found guilty of murder in the first degree and sentenced to life imprisonment.

The question of the sufficiency of the evidence to support the conviction is not raised on appeal. Our review of the evidence convinces us that the guilt of appellant as charged and as found is amply supported by the evidence. We see no need to narrate it.

The only contentions made by appellant are (1) that the trial court committed reversible error in allegedly intimidating or threatening a witness and (2) the trial court erred to a reversal in making remarks in the presence of a jury that allegedly tended to demean or bring defendant’s counsel into contempt in the eyes of the jury. Although there is a connection between the two contentions, we will treat them separately, as well as in their relation to each other, and will attempt to do so fully.

While a witness, Okeither Lewis, was testifying as a State’s witness about what defendant had said to him soon after the alleged crime was committed, the witness said that defendant had not said anything. Thereupon the following occurred:

"MR. BARBER [Counsel for the State]; Your Honor, at this time I have something I’d like to take up outside the presence of the jury.
“THE COURT; Take the jury out, please. (Whereupon the jury was escorted into the jury room).
(Whereupon the following proceedings were held outside the presence of the jury).
“THE COURT; All right, Mr. Barber, go ahead.
“MR. BARBER: Your Honor, before I go any further, let me ask Mr. Lewis—
“THE COURT; Let the record show the jury has been taken out.
“VOIR DIRE EXAMINATION
“Q (BY MR. BARBER)
“Mr. Lewis, is your testimony that somewhere around 8:00 p. m. on Christmas Eve last year, that you saw Kelvin Brantley, Eugene Rankin, and Clint Ellis?
“A That’s right.
“Q Were you standing on the corner of Portland and some other street out in Wylam ?
“A Yes.
“Q And did those three people pass you in a group ?
. “A That’s right.
“Q And did you make the statement or ask the question, what’s happening?
“A That’s right.
“Q All right. Did the defendant say anything to you ?
“A He said he had made a hit.
“Q All right. Is that what Kelvin Brantley said?
“A No, Eugene Rankin.
“THE COURT; Wait just a minute.
“MR. AMARI; Your Honor, I didn’t get it either.
“THE COURT: What is the purpose of this examination, Mr. Barber ?
“MR. BARBER: Your Honor, I’d like to plead surprised to this witnesses’ testimony, and be allowed to impeach him if it please the Court.
“THE COURT; Well, I think predicate to that, I think you need to apprise him — I assume you are contending that on another occasion this witness has had an occasion to testify contrary to the evidence given in this case; is that correct?
“MR. BARBER: Yes sir.
“THE COURT: All right. We’ll go into that.
“MR. BARBER: All right, sir.
“THE COURT: Now, insofar as my recollection is, your question to him earlier, in the presence of the jury, was did the defendant say anything to him ?
“MR. BARBER: Yes, sir. And that’s why—
“THE COURT: And he said at that time he didn’t say anything.
“MR. BARBER; Right.
“THE COURT: Now, in your recent inquiry, he has said that Rankin said something to him.
“MR. BARBER: Yes, sir. That’s why I asked that the jury be excused so I could clarify, make sure he understood my question as to who I was talking about spoke.
“THE COURT: All right. Proceed.
“Q (BY MR. BARBER)
“Mr. Lewis, do you recall in the past month — I’m sorry, your Honor, I can’t give an exact date. Do you recall testifying in a trial where the State charged Eugene Rankin with murder down at the other end of the hall in Judge Jasper’s courtroom ?
“A Charged him with murder?
“Q Yes, sir. Do you recall testifying in this matter when Eugene Rankin was sitting at the defense table instead of Kelvin Brantley?
“A Yes, I remember.
“Q Do you recall me asking you the question if you saw Kelvin Brantley and Eugene Rankin, and Clint Ellis around 8:00 o’clock on Portland Street ? Do you recall me asking you that ?
“A Yes, sir.
“Q Do you recall me asking you if you said anything to them ?
“A That’s right.
“Q And you answered that you asked them what was happening?
“A That’s right.
“Q And do you recall me asking you what, if anything, any of those people said?
“A Uh-huh.
“Q Do you recall answering that Kelvin Brantley told you they just made a hit?
“THE COURT: Mr. Lewis, do you understand the question ?
“A Yes, sir, I understand.
“THE COURT: All right. Now I want a response to that question. Do you or do you not recall testifying as the District Attorney has asked you ?
“A That’s right.
“THE COURT; You do recall? And you did so testify that on that occasion that Brantley said we just made a hit; is that your testimony, to your best recollection ?
“A Yes, sir.
“MR. WESTON: Judge, for the record, you just repeated what he testified to today, Your Honor, I think you meant to ask him if the present defendant made the statement.
“THE COURT: I’m giving him an opportunity- — I know what I meant, and I think the record is clear as to what I meant.
“Mr. Lewis, you have testified under oath here today about one thing and then you have testified at another time, under oath, as I understand your examination on voir dire, about testifying something contrary to that. Do you understand the importance of the consequences of your admission that you are admitting perjury testimony; do you understand that ?
“A Yes, sir.
“THE COURT: I’m going to avail you an opportunity to testify in the presence of the jury again in response to some questions put to you by the District Attorney subject to cross examination by the defense attorney.
“I’m not going to rule at this point, but do you understand what I’m saying. We are going to bring the jury back in, and we are going over this line of questioning again, and I want you to understand what we are doing, and at that time I will make a ruling.
“Bring the jury back in.
“(Whereupon the jury was escorted back into the jury box)
“(Whereupon the following proceedings were had and done with the presence of the jury).
“THE COURT: Let the record show the jury is back in the box.
“MR. BARBER: If you will continue direct examination of this witness.
“FURTHER DIRECT EXAMINATION:
“Q (BY MR. BARBER)
“Mr. Lewis, on December the 24th of 1974, Christmas Eve of last year, did you see Kelvin Brantley, Eugene Rankin, and Clint Ellis around 8:00 o’clock on Portland Street in Wylam ?
“A That right.
“Q Did you say anything or address any comments or questions to this group of three people when you saw them ?
“A Yeah. I asked them what was happening.
“Q Did you address that to anybody in particular ?
“A No.
“Q Just the group?
“A (Shaking head)
“Q Did anyone in the group make a response ?
“A Yes, sir.
“Q Who?
“A Kelvin Brantley.
“Q What did Kelvin Brantley say ?
“MR. WESTON: Your Honor, we object to that question. We also object to any answer he is fixing to give to that question.
“THE COURT: On what ground ?
“MR. WESTON: On the grounds that what happened at voir dire put unnecessary pressure on this witness and prejudiced the rights of the defendant to ask the witness that question. There is no showing of any intent on the part of this witness to mislead the Court of the jury, and if he is going to ask the question, then I want the Court’s permission to get into what we got into on voir dire.
“THE COURT: Mr. Weston, I’m going to remain calm in the face of a very insulting comment by you to this bench that any pressure has been applied to anyone. But, if there is, I’ll be the one to apply it. There is no pressure on anyone in this courtroom when they testify other than their sworn oath to tell the truth, the whole truth, and nothing but the truth. Now, you know as well as I know the purpose of a voir dire examination. That was held, it is in the record, and you make your exceptions, but don’t make the mistake the second time of editorializing about it. If you do, I’ll hold you in contempt and I won’t tell you twice.
“MR. WESTON: Yes, sir.
“THE COURT: Now just note your objections for the record, and I’ll rule of them; you understand ?
“MR. WESTON: Yes, sir.
“THE COURT: Do you have any other objections?
“MR. WESTON: No, sir.
“THE COURT: All right. Overruled.
“MR. WESTON: We except.
“THE COURT: All right. Continue.

Appellant urges that in that part of the proceeding out of the presence of the jury quoted above the trial judge “acted improperly by suggesting to the witness that he had admitted perjuring himself by testifying inconsistently with testimony given during trial of a codefendant.” In pressing the point, appellant argues that when the court in making known to a witness what perjury is “extends it to browbeating, threats and intimidation, the Court has gone beyond the bounds of judicial authority.” Appellant relies largely upon Turner v. State, 289 Ala. 97, 265 So.2d 883, not upon what was held in that case, for action of the trial court was upheld, but upon what was said to the effect that when the remarks of the court constitute “browbeating, threats and intimidation” they go “beyond the bounds of judicial authority.” There can be no just quarrel with that conclusion. It may well be that the trial judge could and should have been milder in what he said to the witness. Certainly, “the trumpet” did not “give an uncertain sound.” Even so, we do not construe the language of the trial judge as “browbeating, threats and intimidation.” It was clear that the witness had made two irreconcilable statements in testimony. The trial court did not direct the witness toward either statement, but made it clear that the witness should be careful in final-ly stating which of the two statements was correct. Furthermore, it is to be noted that appellant made no objection and took no exception to anything that was done or said out of the presence of the jury. We find that no action then occurred that warrants a reversal of the judgment.

In insisting that the case should be reversed by reason of what the trial court stated to defendant’s attorney when he objected in the presence of the jury to a question to the witness Lewis, “What did Kelvin Brantley say?”, appellant relies largely upon Dennison v. State, 17 Ala. App. 674, 88 So. 211. In Dennison, however, involving circumstances somewhat similar to those presented here, it was held:

“In the instant case we are not prepared to say that the alleged injurious language of the court addressed to appellant’s counsel was of the character to prejudice the attorney before the jury or to injuriously affect the substantial rights of the defendant. However, we are of the opinion that the trial court should have allowed defendant’s counsel full opportunity to make known his objections to the court, and to make such motions to the court as in the interest of his client he deemed necessary. It does not appear from the record that this opportunity was fully accorded defendant’s counsel.”

The record here shows that such “opportunity was fully accorded defendant’s counsel.” In addition, it is to be noted that although defendant objected to the question on the ground that “what happened at voir dire put unnecessary pressure on this witness and prejudiced the rights of defendant to ask the witness that question,” defendant made no objection, and took no exception whatever, to the remarks of the court of which appellant now complains.

We are not saying that the severity of the reprimand of counsel was justified. On the other hand, we feel that probably there was some misunderstanding between defendant’s counsel and the trial judge, that perhaps the trial judge was somewhat stung by the objection in the presence of the jury by reason of alleged “unnecessary pressure” on the witness out of the presence of the jury, where there had been no objection to or criticism of what had taken place and that to some extent this influenced the trial judge to deal more stingingly with the situation than he otherwise would have done.

We do not believe that there was any error of the trial court as to either of the incidents complained of, or elsewhere in the record, that was prejudicial to defendant. The judgment of the trial court should be affirmed.

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

The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    In re Kelvin BRANTLEY v. STATE. Ex parte Kelvin Brantley.
    SC 1913.
    Supreme Court of Alabama.
    July 16, 1976.
    Gary Weston, Birmingham, for petitioner.
    No appearance for the State.
   JONES, Justice.

Petition of Kelvin Brantley for Certiora-ri to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Brantley v. State, 58 Ala. App. -, 335 So.2d 189.

WRIT DENIED.

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


text:
    Solomon HUNTER v. STATE.
    5 Div. 289.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Rehearing Denied June 29, 1976.

      Harry D. Raymon, Tuskegee, for appellant.
    William J. Baxley, Atty. Gen., and John A. Yung IV, and C. Lawson Little, Asst. Attys. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment. He had pleaded not guilty and not guilty by reason of insanity, to an indictment charging him with killing Walter T. Austin, Jr., by stabbing him with a knife.

According to the undisputed evidence, in the early afternoon of May 30, 1974, Austin left his home in Decatur, Georgia, on a vacation trip to California. He had about one thousand and fifty dollars on him at the time. He was traveling alone and driving his own automobile. He had a gold Longine watch at the time and was wearing a diamond ring with a yellow gold chain. He had placed in the trunk of his automobile a tape recorder, a portable radio and a color television set. Late the same afternoon he telephoned his father at Decatur and told him he was having car trouble. In the early evening he checked in at the Holiday Inn at Tuskegee, Alabama. He afterwards made his way to the Tiger Lounge of the Inn; there he met and talked with defendant. He was accompanied to the motel by three teen-age males, Carl Hunter, Kenneth Hunter and Joe Berry, the first two being his nephews and the third related in some way by blood or marriage to defendant. The three were almost grown, but they were not allowed to buy drinks and did not remain in the lounge. Defendant was some twenty years older than Austin, but they seemingly soon became good friends and drank rather heavily until midnight. Defendant was apparently well known and introduced Austin to his friends, including the mayor of Tuskegee about 10:00 P.M. About midnight defendant and Austin left the lounge and lobby, went to Austin’s automobile and departed from the premises of Holiday Inn in the automobile then driven by Austin. About the same time, the nephews of defendant, and Joe Berry, left the premises in their automobile, in which they had recently come to Tuskegee. The two automobiles were going in the same direction when last seen by anyone at Holiday Inn.

About 4:45 on the morning of May 31, one George P. Brown, who lived in the area of the National Forest in Macon County, noticed a light or fire in the forest. He went in that direction, found a fire, proceeded to attempt to put it out, and while doing so observed the body of a man, who was afterwards determined to be Austin. Police arrived about 5:00; the body was taken away by ambulance. A post-mortem examination was made. There were burns and “cutting type wounds” on the body.

The undisputed evidence also showed that between 2:00 and 3:00 A.M. May 31, defendant with his nephews and Joe Berry went to the home of a brother-in-law of defendant in Tuskegee, and according to the brother-in-law, defendant said, “He had been somewhere and said he clipped somebody.” Defendant asked for a shirt and his brother-in-law gave him one. The four stayed there about thirty minutes. About 4:00 A.M. the same morning, defendant and the three young men went to the home of defendant’s half-sister in Opelika, where they stayed until about 6:30 or 7:00. During that time, one or more of them, to the knowledge of defendant, gave some of the family of defendant’s half-sister, the ring and the watch owned by Austin. They left, on the back porch of defendant’s half-sister, Austin’s TV, radio and tape recorder.

A sister of defendant testified that about 8:00 P.M. May 31, defendant and the three young men heretofore mentioned came to her home; she told him “the police had been out to the house concerning a man that had got killed.” He said he “wasn’t worried about it” and that “a dead man can’t talk.” Soon thereafter defendant was arrested, and in due course separate indictments were returned against defendant, Carl Hunter, Kenneth Hunter and Joe Berry.

Evidence presented by defendant consisted chiefly of (1) testimony that the day before the night of the death of Austin, defendant had left his knife with another person while working with him laying linoleum in a woman’s house, (2) testimony of persons who had known defendant for thirty years as to eccentricities bearing on his mental condition and (3) testimony of defendant himself. Defendant also called Carl Hunter, Kenneth Hunter and Joe Berry as witnesses, but each of them took the Fifth Amendment.

Defendant testified that he did not kill Austin, He said that after he and Austin left Holiday Inn, “I fair went off to sleep. The next thing I remember was them waking me up. I think it was one of the boys and Tom (Austin) that woke me up.” Defendant got in the other car, which Berry was driving. Austin took something out of his car and put it in the other car. He heard some of them say that “they saw a flame.” Defendant said he went to sleep and said “when y’all get where you’re going, please wake me up.” When he woke up he saw a fire, and he asked two of the boys where Austin was, and they said, “He’s out there cutting the fool.” Defendant got out of the car he was then in, went out toward the fire and asked Austin to come on. Defendant got back in the car Berry had been driving. It was driven off and defendant fell asleep. He remembered going to the house of his brother-in-law, the house of his half-sister, and substantially corroborated the testimony as to what happened there as it is narrated above.

Appellant says that he was entitled to favorable action of the court on his motion to exclude the evidence and his written request for the affirmative charge in his favor. He argues that the evidence failed to show that anyone killed Austin by stabbing him with a knife as charged in the indictment. The toxicologist, who testified for the State, never said that Austin was killed by being stabbed by a knife. However, he did say that in his opinion death was “due to the loss of blood or exsangui-nation and shock due to the multiple cutting type wounds to the body, and specifically attributable to laceration of the left external jugular vein.” He also said: “In my opinion the wounds were consistent— some of the wounds were consistent with the two types of instruments. There were wounds to the back of the head that suggested blunt force type injury. These areas were referred to as lacerations. There were other wounds that suggested a tool or an implement having a cutting edge.”

Conceivably there could be circumstances in which a person could have been killed without the use of a knife as a result of wounds such as were described by the toxicologist, but under all the circumstances shown by the evidence in this case, it is difficult to conceive of the wounds referred to as “cutting type wounds” and wounds made by a tool or an instrument “having a cutting edge” as not having been made by an instrument which could be properly referred to as a knife. A knife is generally defined as “a cutting instrument consisting of a sharp blade with a handle.” Of course, the pathologist could hardly have known whether the instrument had a handle, other than by deduction, but even if it were necessary to show that the instrument had a handle in order to show that it was a knife, we think the jury was warranted in finding that the instrument could not have been effectively used as it was without its having a handle or without someone improvising a handle for it at the time of its lethal use. In Hull v. State, 79 Ala. 32, 33, it was said:

“Though the indictment charges a particular weapon, the averment is substantially proved, if it be shown that some other instrument was employed, which occasions a wound of the same kind as the instrument charged, and the same consequences naturally follow.”

We have followed and applied the principle, in Trammell v. State, 53 Ala.App. 246, 298 So.2d 666 and Matthews v. State, 51 Ala. App. 417, 286 So.2d 91. In each of the cited cases a more specific kind of a cutting instrument than a knife was alleged in the indictment. The generality of the averment as to the instrument used furnishes a greater opportunity for proof to support the allegation. There was no variance between the allegation and the proof, and defendant was not entitled to a motion to exclude the evidence or to a general charge in his favor, by reason of any claimed variance. No other reason is asserted, and we are confident that a jury issue was presented as to all the material averments of the indictment.

The court orally charged the jury as to the elements of both degrees of murder. It did not charge the jury as to manslaughter in either degree. It provided the jury with three forms of verdict: (1) guilty of murder in the first degree, (2) guilty of murder in the second degree, and (3) not guilty. In giving the oral charge to the jury, the court stated, “I have the forms of verdict approved by the Defendant and the State.” At the conclusion of the oral charge, the following occurred:

“THE COURT: What says the State?
“MR. AARON: Satisfied.
“MR. PRICE: Satisfied, your Honor.
“THE COURT: What says the Defendant ? (Whereupon a conference was held at the bench).
“MR. RAYMON: I believe the Court’s charge at the present time, so far it’s all right, but I think that when you charged the jury to the effect of drinking, I think you should go further and charge on manslaughter in the first degree.
“THE COURT: You may be right.
“MR. RAYMON: We’re asking that the Court charge on manslaughter, and the Court is refusing ?
“THE COURT: Yes, sir.
“MR. RAYMON: We except to the Court’s refusal. I think it might be well to put that in writing.
“THE COURT: You can make it in the form of a motion.
“MR. RAYMON: In addition to that, if it please the Court, the indictment, as I understand the law, contains not only manslaughter in the first degree, which I think would be appropriate, but the Court refuses to give that, and under the circumstances, since the Court has charged on drunkenness, I think it would be appropriate to give manslaughter in the second degree, and we ask for that, and I understand the Court refuses to give that, and we except to that. I will further point out to the Court that what it amounts to is that the Court is giving to the State what amounts to the af-fimative charge insofar as manslaughter in the first degree and manslaughter in the second degree, and not giving the defendant—
“THE COURT: I don’t believe there’s enough evidence in here to charge on manslaughter in the first degree.
“MR. RAYMON: But when you have before the Court as evidence as to drunkenness—
“THE COURT: I think you may be right. I understand you are making a motion that the Court charge on first degree and second degree manslaughter, and I am overruling your motion.
“MR. RAYMON: We except. And we are further excepting to the fact that the Court has stated that the indictment includes just the two degrees of homicide, murder in the first degree and murder in the second degree. We except to that as a matter of fact because the indictment does include the two other offenses.
“THE COURT: Ladies and gentlemen of the jury. I will give these charges that were requested by the defendant here, which have already been covered, I think, by my oral charge, but I think I ought to give them.”

Appellant insists that error prejudicial to defendant resulted from the failure of the court to charge the jury as to the lesser included offenses of manslaughter in the first degree and manslaughter in the second degree. The parties are at variance on appeal on the question whether there was sufficient evidence to justify a submission to the jury of the issues relative to manslaughter. They agree that a defendant can be so extraordinarily intoxicated that he is not guilty of murder but can be guilty of manslaughter. They disagree on the question whether there was evidence of defendant’s intoxication to that extent.

In a trial under an indictment charging murder in the first degree, the court should charge on all degrees of homicide included in the indictment, unless it is clear that there is no evidence tending to bring the homicide within some particular degree. Jarrell v. State, 251 Ala. 50, 36 So.2d 336; Williams v. State, 251 Ala. 397, 39 So.2d 37; Strong v. State, 52 Ala. App. 237, 291 So.2d 325; Rogers v. State, 52 Ala.App. 628, 296 So.2d 252. There was some evidence in the case that at one time or another defendant was enjoying, suffering from, or insensible to, every conceivable state of intoxication. There was some evidence that during the time he was with Austin he went the full gamut of intoxication, — from jocoseness to comatoseness. The evidence was sufficient to justify instructions to the jury on the subject of manslaughter, and it would have been better for the court to have so instructed the jury. Whether there was error in the court’s failure to so instruct the jury, presents an additional problem.

In Davis v. State, 246 Ala. 101, 19 So.2d 358, the court noted a difference between the absolute necessity for charging as to both degrees of murder, as mandated in effect by Code of 1940, Title 14, § 317, and the correctness of charging as to manslaughter when the evidence justifies it. The court said:

“On the trial for murder in the first degree, the court defined murder in the first and second degree and manslaughter in the first degree, but omitted to define manslaughter in the second degree or to require a consideration of that form of crime. He was merely silent on the subject. The defendant excepted to the oral charge in that it failed to charge the jury on manslaughter in the second degree. We understand that the Court of Appeals assigned that exception as one ground for the reversal. It will be noted that this was a mere omission, and not an erroneous statement of the law nor a charge on the effect of the evidence without a written request to do so. Such an omission ‘cannot be made the basis for a reviewable question. Williams v. State, 147 Ala. 10, 25, 41 So. 992; Jones v. State, 174 Ala. 85, 93, 57 So. 36. The party’s remedy is such cases of mere failure or omission is to request special written instructions according to the practice established by the statutes.’ McPherson v. State, 198 Ala. 5, 7, 73 So. 387. See, also, Warren v. State, 197 Ala. 313, 72 So, 624.
“The requirements of section 317, Title 14, Code of 1940, do not affect this rule of practice. . . . However when the evidence justifies a finding of manslaughter in either degree a definition of them both should be given the jury to enable them to reach a proper verdict. But there is no statutory requirement to that effect as is so in respect to the degrees of murder. But in neither instance is the mere omission a basis for review on appeal.”

We followed the precept of Davis in Tranholm v. State, 38 Ala.App. 57, 77 So.2d 491, cert, denied 262 Ala. 703, 77 So.2d 494.

The question becomes different, however, in view of the fact that apparently the court indicated that defendant need not make his request in the form of a written request on the subject but that he could do so by motion, which he did by oral motion. The difficulty is enlarged by reason of the quoted portion of the court’s oral charge to the effect that the parties had approved the forms of verdict, which did not include any form of verdict as to manslaughter.

We are not persuaded by argument of appellee that the verdict finding defendant guilty of murder in the first degree, as distinguished from murder in the second degree, rendered innocuous any error committed in failing to charge the jury as to manslaughter. Absence of malice distinguishes manslaughter in the first degree from murder in either degree.

In view of our action as hereinafter shown as to other alleged prejudicial error, and the unlikelihood of the necessity for a determination of whether it was reversible error for the court to fail to instruct the jury as to manslaughter, as orally moved by defendant, we forego such a determination on this submission.

Of the several witnesses testifying for defendant, at least four were questioned as to irrational behavior by him over a course of several years before the alleged crime. A friend of twelve years said that defendant “talked to himself a lot” and would do so “out loud,” that “he would sing out loud all the time,” he would “walk around singing.” He said that defendant’s conduct as to singing out loud had “been a consistent thing over the past ten years.” Another long-time acquaintance said that defendant for a period of ten years would come by his house “all times of night with his little dog, which I never did see the dog,” that defendant “walks all night some nights.” Defendant’s sister said that defendant was “a completely changed person” after his discharge from the armed services; thereafter he would call the people in the morning at 3:00, would come “to your house at all times of night, hollering and drunk and loud and carrying on.” She referred to his being “committed to the hospital by the Probate Court” prior to the alleged crime. A nurse’s assistant at the VA Hospital testified as to the difference between the behavior of defendant before entering military service and his behavior thereafter, such a difference that she “did not particularly care to associate with him after he had gotten out of the service.” He would want to sing or cry. She said, “There were numerous things there at the VA Hospital, he said he was a doctor and he wouldn’t mop the floor,” that he “always talks to the dog,” but “I never saw a dog.”, and that “my kids got the impression that there was another dog there.” Each witness from whose testimony we have just quoted was asked whether in the opinion of the witness defendant “was of sound or unsound mind.” The prosecution objected to the question in each instance, and each objection was sustained. Defendant reserved an exception and in at least one instance made it clear to the court that if the witness were allowed to answer the question, the answer would be that defendant “is a man of unsound mind, in her judgment.”

A psychiatrist testified to the effect that defendant was sane. Defendant offered no evidence of medical experts on the subject. He sought to prove insanity by lay witnesses, who testified to long and close acquaintance with him and to many instances of abnormal behavior. The court’s refusal to allow defendant to show by the lay witnesses that in their opinion defendant was a man of unsound mind constituted error to reverse.

The acquaintance of the witnesses meets the test of “intimate acquaintance,” “sufficient association” and “continuous intimacy” set forth in Peters v. State, 240 Ala. 531, 536, 200 So. 404, 407 as follows:

“To qualify such witness [a lay witness] to express an opinion that the person, the subject of the inquiry, is insane, it must appear from the testimony of the witness that he has such acquaintance, continuous intimacy with the person as to observe his character and habits, which reasonably enables the witness to form an opinion, and the witness must state the acts, declarations and conduct of such person, tending to show that such person is afflicted with mental distemper.”

Judge McElroy states the rule:

“A lay witness may testify that it is his opinion that another was insane or afflicted with an analogous mental defectiveness if, but only if, the witness has first testified (a) to facts showing that he had an adequate opportunity to
observe such other’s conduct in general, and also (b) to his personal observation of specific irrational conduct of such other. Norris v. State, 16 Ala. 776; Ford v. State, 71 Ala. 385; Parrish v. State, 139 Ala. 16, 36 So. 1012; Equitable Life Assur. Soc. etc. v. Welch, 239 Ala. 453, 195 So. 554.” McElroy, Law of Evidence in Alabama, § 128.02.

Appellee contends that the refusal of the court to allow the evidence sought to be shown by defendant was within the discretion of the trial court, and cites cases holding that the trial court has broad discretion to determine whether the witness has sufficient acquaintance with the person whose sanity is in question and whether he has observed sufficient irrational behavior on the part of such person to qualify the witness to speak on the subject. Nevertheless, such discretion is not broad enough to deny a defendant the right to present evidence by law witnesses that he was insane, irrespective of the extent of their acquaintance with him and of the number of specific incidents of his irrational behavior they have observed. Furthermore, the record shows that the trial court was not basing its ruling on the lack of the required qualification of the witness by sufficient acquaintance and- observance of enough irrational behavior to testify as to defendant’s unsoundness of mind but on the theory that a lay witness could not, under any circumstances, testify as to the mental state of another individual, as demonstrated by the following portion of the interrogation of one of the witnesses:

“Q Now, from your observation of his conduct and nature of his actions, do you have a judgment as to whether or not he is a person of sound or unsound mind ?
“A Well, Solomon—
“MR. YOUNG: I object to that question, Your Honor, because it calls for a conclusion and opinion of a lay witness. She can testify as to what she observed, but not to the mental state of another individual.
“THE COURT: Sustain the objection.
You have your exception. That’s for the jury.”

And on another occasion:

“MR. YOUNG: I object to that, that’s calling for an opinion of the witness, who is not an expert, and a conclusion of the witness.
“THE COURT: It invades the province of the jury. Sustain the objection.”

Nor are we persuaded by argument of appellee to the effect that no harm was done by not allowing lay witnesses to give their opinion as to defendant’s unsoundness of mind, as some of the witnesses had described defendant’s behavior in a way that “was of the same substance as, and probably of greater effect than, would have been testimony that the defendant was ‘of unsound mind.’ ” Reference is made to a statement of one of the witnesses that she felt “like he just really disarranged since he came out of the service.” This witness, however, was not one of the witnesses who was asked her opinion as to the soundness of mind of defendant. Another witness who was interrogated, but not allowed to answer, as to the soundness or unsoundness of mind of defendant, detailed instances of his unusual behavior and said further, “Just all kind of things like that let you know that he was not right,” and another of such witnesses stated: “I’m not being funny, but I thought he was crazy.” The quoted statements relied upon by appellee as indicating views of the particular witnesses as to the question of sanity of defendant were not sufficient, in our opinion, to warrant a denial to defendant of their unequivocal opinions as to the soundness of defendant’s mind. Even if they were, they could not have assuaged, in the least, probable injury to defendant in not allowing him to show the opinions of other witnesses that he was of unsound mind.

The testimony of a lay witness that another is insane must be prefaced by a showing of apparently irrational behavior on the part of the other over a sufficient period of time for the witness to be able to form an opinion that the other is insane, but the witness’ testimony that the other has on many occasions conducted himself abnormally does not in and of itself always indicate either that the other is insane or that it is the opinion of the witness that he is insane. As a matter of common knowledge, there are those who, at times intentionally or unintentionally, seriously or in fun, conduct themselves in a manner that persons not knowing them might deem them insane but people who do know them, strongly believe them to be sane. A jury may be misled by the testimony of such lay witnesses, but if they are telling the truth, their testimony is of great value to the trier of the factual issue of sanity vel non and each side of the judicial controversy is entitled to it. As better stated by Justice Faulkner in Williams v. State, 291 Ala. 213, 279 So.2d 478:

“As with every rule of law, there is a reason for permitting lay opinion, properly predicated, on the issue of sanity: introduction of a breath of fresh air into the often rarified atmosphere of conflicting expert psychiatric testimony. To supplement the testimony given by an expert, the opinion of someone who has known the subject over a period of time: ‘he seemed sane’ or ‘he seemed insane’ is most valuable to a jury for their deliberation on the issue of insanity, since this was a question for the jury.”

There was no testimony of a psychiatrist to support the plea of not guilty by reason of insanity in this case, but a jury issue as to insanity was presented, as recognized by the parties and the oral charge of the court. The opinions of the lay witnesses that defendant was of unsound mind would have had a natural tendency to have greatly benefited defendant on the issue, and the errors of the trial court in disallowing such testimony probably injuriously affected defendant’s substantial rights.

On rebuttal, the State presented testimony of a special agent with the FBI as to incriminating statements made by defendant after his arrest. Appellant invokes the rule that a witness cannot be impeached by self-contradictory statements unless and until the proper predicate has been laid by a denial, or the equivalent of a denial, by the witness sought to be impeached that he has made the contradictory statement, after his attention has been called to the statement and the surrounding circumstances, including the time, place and persons involved. It is not necessary for us to determine whether the rule was violated, for the evidence was admissible, even in rebuttal, as statements in the nature of a confession, although they more properly should have been offered as part of the case in chief. Code of Alabama 1940, Recompiled 1958, Title 7, § 252; Blackwell v. State, 264 Ala. 553, 88 So.2d 347; Nichols v. State, 276 Ala. 209, 160 So.2d 619; Alexander v. State, 51 Ala.App. 267, 284 So.2d 292. As noted by Mr. Justice Almon in Alexander, we note here:

“. . . The statement [statements] offered in this case was voluntarily made after an explanation of constitutional rights in compliance with Miranda [.Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694], supra.”

It is to be further noted, however, in the instant case, that apparently the court may have admitted the testimony in rebuttal as impeaching testimony only. By reason thereof, a serious question is presented whether the trial court was in error in overruling objections of defendant. As the case should be reversed for the errors previously indicated and, as a clearer record can be presented on the subject if the point arises again on another trial, we make no determination of the immediate question at this time.

For the errors indicated, the judgment of the trial court should be reversed and the case remanded for a new trial.

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

REVERSED AND REMANDED.

All the Judges concur.


author: EMBRY, Justice.

text:
    In re Solomon HUNTER v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1954.
    Supreme Court of Alabama.
    July 23, 1976.
    William J. Baxley, Atty. Gen., and John A. Yung, IV, Asst. Atty. Gen., for petitioner, the State.
    No appearance for respondent.
   EMBRY, Justice.

Petition of the State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hunter v. State, 58 Ala.App. -, 335 So. 2d 194.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: CATES, Presiding Judge.

text:
    Grover Jesse HAYNES v. STATE.
    7 Div. 406.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied June 1, 1976.

      Donald W. Stewart, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Sam L. Webb, Jr., Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Haynes appeals from his conviction of receiving, etc., a stolen automobile. The trial judge sentenced him to ten years in the penitentiary.

The indictment, in essential parts, charged as follows:

“* * * GRAVER HAYNES alias G. J. HAYNES alias GEEK HAYNES alias GROVER JESSE HAYNES alias JEEK HAYNES, whose name is to the Grand Jury otherwise unknown, did Buy, Receive, Conceal, or Aid in Concealing one (1) 1967 Cadillac automobile, vehicle identification number L72S4208, a better description of which being unknown to the Grand Jury, of the total value, of, to-wit: $1400.00 the personal property of Arthur McPeters, knowing that the same had been stolen, or having reasonable grounds for believing same had been stolen, and not having the intent to restore it to the owner, * * *”

I

Jean Robinson, a resident of Tal-ladega, testified for the State that in June, 1973, she bought from Mr. Haynes a 1967 Cadillac for $800.00 and traded him another car. The Cadillac was unsatisfactory; she returned it and got another car instead. The bill of sale for this car stated that the Motor Number was K-71884056. This number was apparently the same as one taken off a wrecked Cadillac which Haynes had bought from an insurance adjuster.

In February of 1974 Lt. Hardigree, of the State Department of Public Safety, came to see Mrs. Robinson inquiring about the transaction whereunder she had bought the Cadillac. On cross examination, she described the car as a white Cadillac with a black vinyl top. She did not remember much else about the car’s description because she didn’t keep it very long.

Lt. Hardigree took the stand on behalf of the State and testified that on, or about, February 19, 1974, he went to see Mrs. Robinson in Talladega at her place of work and saw the car which she said Haynes had sold her. The vehicle identification number usually found near the windshield bore the number K-71884056. Later the same car was found in Atlanta with these public numbers, but also had certain confidential VIN marks which reflected the identity of a different Cadillac which had been earlier stolen from Mr. Arthur McPeters of Gadsden, sometime around June 14, 1973.

After Hardigree had examined, in a cursory fashion, Mrs. Robinson’s Cadillac, in Talladega, he went back later to make a further examination and discovered that it had been moved from its parking place. It seems that Haynes, because of Mrs. Robinson’s complaint, had come to Talladega and removed it. When Hardigree returned to Anniston to see the car in Haynes’s possession, Haynes reported that it had gone to Roanoke for some additional work and was to be returned to Haynes’s shop. This eventuality never came into being. The next time Hardigree found the car it was in Atlanta, where it had been impounded by the police. McPeters identified it as his, by certain catsup stains on the upholstery and some unfinished wiring in the trunk.

Haynes testified in his own behalf describing his calling thus:

“I am in the automobile garage, salvage, and parts business [for] twenty-eight years. I buy wrecked automobiles, salvage them for the parts. I also buy wrecked automobiles that are repairable and have them repaired, occasionally. I do not repair them in my shop.”

He explained that he did not examine the VIN numbers on the wrecked Cadillac he bought from the adjuster. After he took the car back from Mrs. Robinson he sold it to Ross McKleroy. McKleroy did not testify. No license tag transfer to him in the probate judge’s office was produced. See Code 1940 T. 51, § 706, as amended, which was in Patterson v. State, 45 Ala. App. 229, 228 So.2d 843, construed to be in aid of “police, injured persons and tax officials.”

We do not consider this explanation so cogent that every reasonable jury would as a matter of law have been required to credit it as a reasonable explanation of Haynes’s recent possession of stolen property and thus give him an acquittal.

His failure to ascertain what the VIN number was partakes of what Glanville Williams, Criminal Law, The General Part (2d ed.) § 57, describes as wilfull blindness. As a dealer in auto salvage Haynes was in an area where pilferers seek out witting or unwitting fences. To shut his eyes as to a VIN is a fact which a jury may have before them in weighing the reasonableness of his explanation of the stolen Cadillac.

“ * * * The evidence against Spivey of the altered number plates, of the discrepancies in bills of sale and other surrounding circumstances, together with the permissible inference from his possession of recently stolen automobiles sufficed to meet the stated test. Viewed in the light most favorable to the government the evidence was sufficient to establish appellant’s guilt. Glasser v. United States, 1942, 315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680.” United States v. Spivey, 508 F.2d 1061 (5 Cir. 1975)
“ * * * A summary of State Police Sergeant George Meyers’ testimony is that he took into custody the station wagon because a vehicle that fitted its description had been reported as stolen, and this information was obtained when the motor company filed a stolen car report at the time of the theft with the State Police. That report showed the serial number, and Meyers knew the confidential number is composed of the last five digits of the serial number. This officer checked the serial number of the machine in controversy and found it did not compare with any number listed for a stolen vehicle. In fact, the number corresponded with that of a 1947 station wagon for which appellant had a bill of sale.
“But this officer, having with him a report on a stolen 1958 station wagon and believing the car under examination to be a 1958 model rather than a 1947 one, as stated on appellant’s bill of sale, contacted either the National Auto Bureau or the Federal Bureau of Investigation (the only two agencies from which such information can be obtained) for the location on the car of the confidential number of the 1958 model reported as stolen. He obtained this information, checked on the station wagon the place given him, found the confidential number of the 1958 stolen vehicle on the station wagon in appellant’s possession, and thereby obtained knowledge that this was the car taken from the lot of the motor company. From the above evidence, it is shown it is easy to remove or change any public number on a motor vehicle but that only by chance could a thief find and alter the confidential number.
“We believe the foregoing testimony * * * makes out a case against appellant that will sustain the verdict of the jury.” Bower v. Commonwealth, Ky., 357 S.W.2d 333.

The subject of “recently stolen” has been the topic of much judicial writing. In Davenport v. State, 53 Ala.App. 326, 299 So.2d 767, the word “recent” was described (as is any measure of time not expressed in hours, days or other units based on the earth’s rotation and orbiting) as relative in concept — both as to the passage of time and the type of property. Automobiles offer a peculiar example: virtually all are publicly registered, their utility makes them notoriously visible and their lawful transfer requires some red tape. See Burroughs v. State (Fla.Dist.App.) 221 So.2d 159.

In Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396, the opinion recognized the ordinary rule that remoteness of time affects weight rather than admissibility. However, it recognized a threshold question of law — when objection is interposed, viz:

* * * the tendered evidence must not be so remote in point of time as to be without causal connection or logical relation to the main event. * * * ”

In like vein, Terrell, J., in Cone v. State, Fla., 69 So.2d 175, cited many cases of varying times and kinds of property. In that case the accused was found with a car about nine months after it had been stolen. The conviction was affirmed. See also, Anno. Stolen Motor Vehicles — Presumptions, 15 A.L.R. Fed. 856, particularly § 5 — effect of passage of time. See Buckles v. State, 50 Ala.App. 548, at 552, 280 So.2d 810.

Likewise, relativity is applied to the term “exclusive” sometimes affixed to possession in such cases. See Anno. 51 A.L.R.3d 727.

In this case the trial judge instructed the jury:

“Now, the Law of Alabama states that the possession of property recently stolen, if not satisfactorily explained, is ordinarily a circumstance from which the Jury may reasonably draw the inference and find, in light of the surrounding circumstances shown by the defendant in the case, that the person in possession knew the property had been stolen.
“Now, the term recently is a relative term and has no fixed meaning. Where property may be considered recently stolen depends upon the nature of the property and all facts and circumstances shown by the evidence in the case. The longer the period of time since the theft the more doubtful becomes the inference which may be drawn from unexplained possession. Now, this explanation of possession, if you find from the evidence the defendant was in possession of recently stolen property, should be consistent with honesty, and may arise from any evidence in the case, and bear in mind that the defendant in a criminal case never has the burden or duty of calling any witnesses or producing any evidence. Now, it is the exclusive province of the Jury to determine whether the facts and circumstances shown by the evidence in the case warrant any inference which the Law permits the Jury to draw from the possession of recently stolen property.
“If you find, as a fact, that the defendant possessed recently stolen property described in the Indictment, and it has been satisfactorily explained from the evidence consistent with honesty or innocence, or if you entertain a reasonable doubt of guilt, you must acquit the defendant.
“If you find, as a fact, that the defendant possessed recently stolen property described in the Indictment, and the explanation for said possession, you find as a fact to be false or simulated, that is a circumstance the Jury may infer that the person in possession knew the property had been stolen. It is a question of fact for you to determine in this case, Ladies and Gentlemen of the Jury, whether or not this defendant is guilty or innocent of the charge placed against him in the Indictment in this case.”

The court, in addition, properly charged that the State had the burden to convince from the evidence beyond a reasonable doubt. No exception was taken to the charge, nor do we think one could have been taken to it. Buckles v. State, 291 Ala. 359, 280 So.2d 823.

II

To support his motion for a new trial, Haynes adduced the testimony of one James Michael Farrell.

“ * * * Farrell testified that * * * after the trial of G. J. Haynes, he related to Mr. Haynes some facts that had to do with changes in some numbers on a 1967 Cadillac automobile * * * at Thompson’s Garage in Blue Mountain, * * * about two years before this time * * * by one Hugh Gray Whistenant8 * * * with a pick and hammer back near the fire wall of the automobile * * * which was in good repair * * *. He further testified that another 1967 Cadillac automobile which was the wrecked automobile G. J. Haynes had purchased from an insurance company was there * * *. * * * Whistenant was changing the numbers on a 1967 automobile other than the wrecked automobile of G. J. Haynes. [Farrell] * * * asked * * * Whis-tenant ‘What are you doing Hugh Gray ?•’ Whistenant replied that he was “putting this one on Geek”. He testified that the ‘one’ Whistenant was referring to was the automobile he was working on with the pick and hammer. He testified that he later saw the automobile on which the numbers were being changed in the possession of G. J. Haynes. He further testified that the Cadillac automobile he saw in G. J. Haynes’s possession was not the wrecked automobile which Haynes had purchased from Gay and Taylor but that it was the automobile on which * * * Whistenant had been working. Appellant’s brief. * *

We do not consider that this testimony meets the test of received Alabama decisions putting trial judges in error for denying motions for new trial based on newly discovered evidence.

The State in its brief aptly points out that the expression attributed to Whisten-ant, i. e., he was “putting this one on Geek” is full of latent ambiguity, to say the least. In this connection we quote from Vinet v. State, 38 Ala.App. 299, 83 So.2d 357.

“To warrant the granting of a new trial on the ground of newly discovered evidence it must appear to the court that the evidence so found, if it had been considered by the jury, would have probably changed the result of the trial. (There are other conditions or factors which we need not discuss.) O’Pryor v. State, 237 Ala. 13, 185 So. 374; Washington v. State, 259 Ala. 104, 65 So.2d 704.
“To illustrate our view that there is no merit in this insistence, we have delineated the circumstances incident thereto in some detail. It will be noted that there was a degree of uncertainty on the part of the witnesses with reference to the size of the tracks found at the locale. The evidence does not make it certain that the defendant did not in fact make the tracks. To say the least, the evidence is inconclusive and weak in its tendency to establish the innocence of the accused.”

In other words, we consider that Farrell’s testimony was not of such vigor as would have indicated the probability of a different verdict had he testified at nisi prius on the indictment. See Zuck v. State, 57 Ala.App. 15, 325 So.2d 531 (1975).

After a consideration of the entire record under Code 1940, T. 15, § 389, judgment below is

AFFIRMED.

All the Judges concur.

      . “Any person who buys, receives, conceals, or aids in concealing any personal property whatever, knowing that it has been stolen, or having reasonable grounds for believing that it has been stolen, and not having the intent to restore it to the owner, shall, on eonvietion, be punished as if he had stolen it; and such offender may be tried and convicted, although the person who stole the property has not been tried and convicted.” — Code 1940, T. 14, § 338.

      . See Whistenant v. State, 50 Ala.App. 182, 278 So.2d 183.


author: FAULKNER, Justice.

text:
    In re Grover Jesse HAYNES v. STATE. Ex parte Grover Jesse Haynes.
    SC 1900.
    Supreme Court of Alabama.
    July 9, 1976.
    Donald W. Stewart, Anniston, for petitioner.
   FAULKNER, Justice.

Petition of Grover Jesse Haynes for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Haynes v. State, 58 Ala.App. -, 335 So.2d 203.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Alvin Ray HUDSON v. STATE.
    1 Div. 507.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Rehearing Denied April 20, 1976.

      Thomas M. Haas and Neil L. Hanley, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Unlawful sale of marijuana; sentence: five years.

James Kidd, a Clarke County deputy sheriff who was working as an undercover agent with the Prichard Police Department in Mobile County, testified that he purchased marijuana from the appellant on May 11 and May 18, 1973. On the latter occasion, he testified that he saw the appellant pumping gasoline at a service station in Prichard. Kidd went over to the appellant and told him that he needed “another hit.” He said the appellant told him he would be right back, was gone two or three minutes and returned with a lid of marijuana. He paid the appellant $15.00 for the marijuana and then returned to the police station and turned the marijuana over to Officer Jack Harbin, and other officers who were there at the time. Harbin later turned it over to the State Toxicologist. Kidd testified that he had never seen the appellant before May 11, 1973, and had never urged him to sell marijuana. He had merely asked the appellant to sell it.

Officer Harbin testified that the appellant was arrested on June 1, 1973, and was advised of his rights. After that, the appellant stated, “that he had sold to the police.”

Marion Sennett, State Toxicologist, testified that the amount of marijuana was 8.7 grams. He testified that this was less than the average “lid.”

The defense called several character witnesses who testified as to the appellant’s good reputation in the community. The appellant took the stand and testified that he was twenty-one years old and worked at Ingalls’ Ship Yard. He stated that he had smoked marijuana for about two years. He did not deny that he sold the marijuana to Kidd. His defense is based upon the theory of entrapment.

The appellant said that Kidd approached him on May 11, 1973, and called him by name. Appellant answered that he did not know Kidd, and he continued with his work at his father’s service station. He said Kidd and another man were in Kidd’s car drinking liquor. He said Kidd asked him four or five times to sell him marijuana, but he was busy and tried to ignore Kidd. He said Kidd stated that he worked for Scott Paper Company. He pulled out his wallet and showed appellant photographs of his girlfriend and of the place where he worked. Appellant testified that he had never sold marijuana before, that it was only after Kidd continued to harass him that he told Kidd that he had some marijuana for his own personal use, but none for sale. He said Kidd kept requesting some of what he had, and he finally gave Kidd some of his personal marijuana and took the money. Appellant stated that on May 18, 1973, Kidd again drove up to his father’s service station and requested “some more of your personal marijuana.” He said Kidd acted intoxicated and requested the marijuana four or five times. Appellant sold it to him because he said Kidd hassled him so much. He said he told Kidd that the amount would not be a full lid because he was not a dealer.

I

Appellant contends that the trial court did not adequately explain the defense of entrapment in its oral charge, and thus erred in refusing his Requested Charge No. 7, which reads:

“I charge you, members of the jury, that entrapment is established when the criminal design originates with the officers and is implanted in the mind of an otherwise innocent person so that he is induced to commit a crime, which he was not otherwise predisposed to commit.” (Emphasis supplied.)

Appellant submits that his charge was taken directly from Beatty v. United States, 377 F.2d 181 (5th Cir., 1967). The State contends that the trial court’s oral charge was a proper statement of the law regarding the defense of entrapment citing as authority, Johnson v. State, 291 Ala. 639, 285 So.2d 723 (1973). No objection or exception was taken to the trial court’s oral charge, which was in pertinent part as follows:

“I would charge you further that if from the evidence you find that the Defendant was entrapped into committing a crime by a lawful officer of the State of Alabama, for which he was indicted in this case, and that would be specifically for which he was indicted for selling marijuana, and I would charge you that would be a defense for which you would find the Defendant not guilty.
“I will charge you that entrapment is this, as it pertains to law officers:
“The act of officers or agents of the Government in inducing a person to commit a crime not contemplated by the Defendant and for the purpose of instituting a criminal prosecution against him is what we call entrapment. . . . ” (Emphasis supplied.)

The State contends that inducing a person to commit a crime which he does not contemplate committing is essentially the same as inducing him toward a crime he was not predisposed to commit. The difference is immaterial to our decision since Requested Charge No. 7 was not phrased in proper form.

Requested instructions which are mere statements of legal principles, without instruction as to the effect upon or application to the issues, are abstract and may properly be refused. This is true even where a correct principle of law is set out. Hawkins v. State, 53 Ala.App. 89, 297 So.2d 813, cert. denied 292 Ala. 723, 297 So.2d 817 (1974); Hodges v. State, 45 Ala.App. 29, 221 So.2d 922, cert. denied, 284 Ala. 731, 221 So.2d 923 (1969).

It has long been the rule in Alabama that requested instructions, tendered in a criminal case, should be written in such a form that they are hypothesized on a “belief from the evidence.” A refusal of instructions not so hypothesized is not error, and a trial judge may properly refuse any requested instruction not predicated upon a consideration of all the evidence. Welch v. State, 156 Ala. 112, 46 So. 856 (1909); Duchac v. State, 52 Ala.App. 327, 292 So.2d 135, cert. denied, 292 Ala. 251, 292 So.2d 139 (1974); Cork v. State, 50 Ala.App. 670, 282 So.2d 107 (1973); Rice v. State, 46 Ala. App. 12, 237 So.2d 122 (1970).

II

The appellant, at trial, relied upon the defense of entrapment. Both the Alabama Supreme Court and this Court have held that the defense of entrapment is a jury question where there is a conflict in the evidence. Johnson v. State, 291 Ala. 639, 285 So.2d 723 (1973); Demmon v. State, 46 Ala.App. 652, 248 So.2d 147 (1971).

Conflicting evidence in this case was submitted to the jury upon the trial court’s oral charge defining the law relative to the defense of entrapment. There was no exception or objection to the trial court’s oral charge, and thus no error can be claimed therein. Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716 (1960). There was sufficent evidence presented to support the verdict of the jury.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ-, concur.


text:
    In re Alvin Ray HUDSON v. STATE. Ex parte Alvin Ray Hudson.
    SC 1831.
    Supreme Court of Alabama.
    July 16, 1976.
    Thomas M. Hass and Neil L. Hanley, Mobile for petitioner.
    No appearance for the State.
   JONES, Justice.

Petition of Alvin Ray Hudson for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Hudson v. State, 58 Ala.App.-, 335 So.2d 208.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Larry TATE v. STATE.
    4 Div. 421.
    Court of Criminal Appeals of Alabama.
    April 20, 1976.
    Rehearing Denied May 18, 1976.
    John E. Byrd, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of false pretense and the Court sentenced him to imprisonment in the penitentiary for a term of six years. At arraignment with Court-appointed counsel present he pleaded not guilty. After sentence was imposed, he gave notice of appeal and was furnished a free transcript. Trial counsel was appointed to represent him on appeal.

Omitting the formal parts the indictment reads as follows:

“The Grand Jury of said County Charge that, before the finding of this Indictment Larry Tate, whose name is to the Grand Jury otherwise unknown, did falsely pretend to Janice Johnson, with intent to defraud that he had on deposit in a checking account upon which checks could be drawn, in Phenix Girard Bank, Phenix City, Alabama, $1210.00 and, by means of such false pretense, obtained from the said Janice Johnson, one 1970 Chevrolet Monte Carlo automobile, of the value of.- $1210.00, against the peace and dignity of the State of Alabama.”

Mr. and Mrs. Clarence Manley owned and operated the Auto Auction in Dothan, Alabama, in 1974. On October 29, 1974, appellant telephoned Mrs. Manley requesting information as to the procedures required to register automobiles for sale at the auction. Mrs. Manley informed appellant that he had to have a dealer’s license before he could enter his automobiles for sale at the auction and he had to file an application.

The next day, October 30, 1974, appellant went to the auction conducted by the Manleys and filed an application to enter some vehicles in the auction for sale. Mrs. Manley explained the auction process as follows:

“Well, when they buy cars, they buy it out — we have clerks out on the stand out there in the auction where they buy it, and they go pick up their pass-out; and that has all of the information about the car, who is selling, and who is buying and the price that they bought it at. Then they bring it in and we have a lot of typists, several in the office, along a table, and they bring their pass-out to somebody to be typed up. And we have Bills of Sale, and they bring their pass-outs to the typists and then she gets Bill of Sale and then the seller signs it at the top and the buyer signs it at the bottom, and then the kind of car and the price and everything is on there, and we type it up and they sign it.”

On October 30, 1974, Ms. Janice Johnson was employed by the Manleys as a clerk-typist. She testified that she registered the cars to be auctioned as they came in and placed a sales number on each car. After they were all registered, she returned to the office to type up the bill of sale for the automobile that brought the highest bid. She stated that when a car is sold to the highest bidder, he is given a pass-out slip that has all the information on it; the dealer’s name, when the car was sold on the auction stand, and the name of the purchaser. The purchaser then takes the pass-out slip to the office and a bill of sale is typed up from the information on the pass-out slip.

Mr. Louis Luther, a wholesale dealer, had registered a 1970 two-door Monte Carlo Chevrolet for sale at the auction. When it was placed for bidding, appellant was the highest bidder and became entitled to purchase the Monte Carlo. He was given his pass-out slip and carried it to the office and gave it to Ms. Janice Johnson and she typed the bill of sale and called Mr. Luther to come to the office and sign the bill of sale. Mr. Luther signed the bill of sale and handed the title directly to appellant. Appellant also signed the document and retained his copy and in the presence of Mr. Luther gave Ms. Johnson a check drawn on the Phenix Girard Bank, Phenix City, Alabama, in the amount of $1,210.00. Ms. Johnson took the check and clipped it to a copy of the bill of sale and placed it in a box behind the counter with other bills of sale. She did not notice that appellant had not signed the check. The copy of the bill of sale and the unsigned check were introduced in evidence over appellant’s objections.

Mr. Louis Luther testified that he lived at Fort Walton Beach, Florida and was engaged in the automobile wholesale business and was so engaged on October 30, 1974. That on that date he brought a number of cars to the Auto Auction in Dothan, Alabama, and among them was a 1970 Chevrolet, two-door Monte Carlo. He stated that appellant was the highest bidder on the Monte Carlo, in the amount of $1,210.00 and he went to the office to sign the bill of sale and handed the title directly to appellant. He said when he handed appellant the title to the car, he saw a small personal check, either blue or green, in his hand.

On cross-examination he testified that he had been in the automobile business for 32 years and was familiar with the value of cars. He stated the Monte Carlo was worth $1,400.00 but he sold it for $1,210.00.

After the auction was over and Mrs. Manley was checking up, she discovered that appellant had given an unsigned check in the purchase of the Monte Carlo automobile but it was too late to call the Bank in Phenix City that day.

Mr. Carl Pickering, Vice President and Cashier of the Phenix Girard Bank of Phenix City, Alabama, testified that he had control of the records of the bank and that he had first hand knowledge of the checking account of appellant and that from September 20, 1974, to October 30, 1974, appellant did not have any money in his checking account. He stated that as a matter of fact there was an overdraft of $124.82 in this account but that it was an overdraft created by service charges on checks he had drawn against the account when there was no money in the account. It was not an actual overdraft that the bank paid out money on. He further testified that the bank closed his account because appellant kept writing checks against a depleted account in his name which caused the bank to make service charges.

Ms. Betty Tarr testified that she lived in Columbus, Georgia, and she was employed to drive cars out of Tallahassee, Florida, for McKinney Chevrolet and Mr. Louis Luther. She was in charge of a number of girls employed to drive these automobiles to auctions. She had driven cars to the Auto Auction in Dothan on past occasions. On October 30, 1974, she personally drove the 1970 Chevrolet two-door Monte Carlo that was subsequently bought at the auction by appellant. She stated she had seen appellant on two or three occasions prior to October 30, 1974, and that on that date she saw him at the auction two or three times. She said she was sitting in the dining room at the Auto Auction and looked out the window and saw appellant and his wife and another man fixing to get in the Monte Carlo and she went to the car to get some papers that she left in the car. That as she was getting into the car to get her papers, appellant was standing right next to her. She heard appellant’s wife say to him, “Larry, you didn’t sign that check you give,” and appellant said, “I didn’t intend to sign that check. I have the bill of sale and the title, so what do I care.” That after this statement was made, appellant, his wife, and the other man got in the Monte Carlo and drove away.

Appellant’s wife testified in his behalf. He did not see fit to take the witness stand. Appellant’s wife, Vickie Tate, testified that she had lived in Phenix City for about seven years and had been married to appellant for three years. That on October 30, 1974, they went to the Dothan Auto Auction and carried four cars and a motorcycle. That they went in the office and her husband asked the procedure for buying and selling automobiles and he had to fill out a registration card. She stated she did not recall the names of the people who were working in the office and specifically did not recall the name of Janice Johnson. She further testified that they went back outside to the auction ring and when a Monte Carlo came through, she asked her husband to buy it for her and he did. That after he bought the Monte Carlo, he went to the office but she didn’t go with him.

She denied telling appellant that he did not sign the check or that they had a conversation about the check or the bill of sale. She further denied that a woman came to the Monte Carlo to get any papers out of the car before she drove the car away.

She further testified that a few days after they bought the Monte Carlo, a man came to her house looking for her husband and her husband was not at home. The man told her to tell her husband to contact him concerning a check. That she told her husband about this but she didn’t know what he did about it.

Appellant made a motion to exclude the check from the consideration of the jury on the ground that it was not signed and did not amount to more than a scrap of paper and that no reliance could be put on it. Appellant further moved the Court to exclude the State’s evidence because the State failed to show that pretense was involved, that the pretense was a falsity, that the defendant obtained title to the property in the indictment as a result of the falsity, and that the defendant intended to defraud Janice Johnson. Appellant further moved the Court to exclude the State’s evidence on the ground that the State failed to prove a prima facie case of false pretense. These motions were overruled.

The applicable statute under which this prosecution was had is Title 14, Section 209, Code of Alabama 1940, and provides:

“Any person, who, by false pretense or token, and with the intent to injure or defraud, obtains from another any money or other personal property, shall on conviction, be punished, as if he had stolen it.”

In Latham v. State, 56 Ala.App. 234, 320 So.2d 747, Judge Leigh Clark held:

“ ‘The crime of obtaining property by false pretenses was unknown in the early common law.’ 35 C.J.S. False Pretenses § 2. By the same authority and Section 4 thereof, we are informed that against a backround of the loosely defined crime of ‘cheating,’ the offense of obtaining property by false pretenses was ultimately the product of several English statutes, including that of 30 George II and 33 Henry VIII. The conduct involved and required does not necessitate the exertion of any physical force, actual or constructive. The actual conduct of the wrong is that of obtaining property by falsely pretending, while that of larceny consists of the taking and carrying away of property. The intent is generally the same as to both crimes, but the method of committing larceny is limited to such a method as would constitute a trespass. There is no such limitation on the method of committing the crime of obtaining property by false pretenses, which can well be by either word or deed.”

In Holloway v. State, 37 Ala.App. 96, 64 So.2d 115, this Court said:

“Generally speaking, the crime includes a false representation of an existing or past fact which deceives and which induces the person to whom the deception is made to part with something of value. The falsity of the representation must be known to the accused and it must have been made with intent to defraud.
“In other words, the offense consists of: (1) The pretense. (2). Its falsity. (3) Obtaining property by reason of the pretense. (4) Knowledge on the part of the accused of the falsity of the pretense. (5) Intent to defraud.
“In the case of Young v. State, 155 Ala. 145, 46 So. 580, 581, the Supreme Court made this observation:
‘And if a person should fraudulently represent a fact to be true, knowing at the time that it is not true, and resorts to the fraudulent representation to obtain money from another, and does so obtain it, he would be guilty of “defrauding” another by “deceitful means,” and we do not doubt he would be guilty of obtaining the money under false pretenses.’
“The case of Eaton v. State, 16 Ala.App. 405, 78 So. 321, 322, presents circumstances somewhat similar to those in the case at bar. In response to the review on appeal we held:
‘The giving of the check, if given without an explanation to the contrary, was in and of itself a representation, symbol, or token that the defendant had money on deposit in the bank on which the check was drawn, and if this check was given with the intent to deceive the seller of the goods in this case, and he was thereby induced to part with the title to his property, and the symbol or token was false, and the seller was thereby deceived, the defendant was guilty. The jury by its verdict so determined, as it had the right to do, and we find no reason in the record for disturbing the judgment of conviction.’ ”

A “false pretense” may consist in any act, word, symbol, or token calculated and intended to deceive, and it may be made either expressly or by implication. Fuller v. State, 221 Miss. 247, 72 So.2d 454.

The check which appellant gave to Ms. Janice Johnson is before us as State’s Exhibit No. 2. It is a personalized check with the name and address of appellant and his telephone number printed in the left upper corner. It is dated 10-30, 1974, payable to The Auto Auction in the amount of $1210.00 and is complete in every respect sans his signature. It is a small check, blue in color, just as described by one of the State’s witnesses. When he handed this check to Ms. Janice Johnson, he represented or pretended that he had sufficient funds on deposit to cover this check in the Phenix Girard Bank. The false pretense was by deed and action and not by words. Ms. Johnson was extremely busy and she merely took the check and clipped it to her copy of the bill of sale and put it in a box with other bills of sale that she had handled in like manner. The crime was not dependent upon presentation of the check for payment. Caughlan v. State, 22 Ala.App. 220, 114 So. 280. This proffered check to Ms. Johnson in exchange for the bill of sale coupled with appellant’s statement, “I didn’t intend to sign that check. I have the bill of sale and the title, so what do I care,” made a clear case of obtaining property by false pretense and the jury was justified in finding appellant guilty as charged in the indictment.

Our holding in this case that an unsigned check made out a case of false pretense is not to be construed that the failure to sign a check will constitute a prima fa-cie case of false pretense under different facts and circumstances. All checks should bear the true signature of the maker or drawer.

To conclude otherwise we would be putting the stamp of approval on a gigantic fraud knowingly perpetrated and permit this appellant to go unwhipped of justice.

The judgment of conviction is affirmed.

AFFIRMED.

TYSON, DeCARLO and BOOKOUT, JJ., concur.


text:
    In re Larry TATE v. STATE of Alabama. Ex parte Larry Tate.
    SC 1874.
    Supreme Court of Alabama.
    July 9, 1976.
    John E. Byrd, Dothan, for petitioner.
    None for the State.
   EMBRY, Justice.

Petition of Larry Tate for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Tate v. State, 58 Ala.App. —, 335 So.2d 212.

WRIT DENIED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.