author: FRED W. NICOL, Circuit Judge.

text:
    Aaron JACKSON v. STATE.
    8 Div. 781.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
    Robert M. Shipman, Huntsville, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   FRED W. NICOL, Circuit Judge.

This is an appeal in forma pauperis from a judgment of conviction of robbery. The jury fixed the punishment at ten years in prison.

The evidence tended to show that on August 26, 1975, at approximately 3:00 P.M., two black males entered the B & B Gun Shop in Huntsville. Upon entry they acted as if they were customers. Appellant went to the watch counter and a companion went to the knife counter. Mr. Charles Beal, the store owner, stooped over to remove a watch that appellant had selected. At this point, appellant pointed a gun at Beal and stated, “This is a holdup you S.O.B. I am going to kill you.” Beal grabbed the gun and was unable to take it away from the appellant. Then Beal was ordered by appellant to move from behind the counter.

While the scuffle was going on, appellant was joined by a companion. Beal was then taken to the rear of the store and tied with some leather strips. Beal was not blindfolded. Appellant held the weapon on Beal. The companion went to the front of the store and took six guns for a value of $899.75. The guns were thrown into a sack. This activity consumed some ten minutes. In a short time Noble Jones came into the store and untied Beal.

In making their escape, appellant and companion went through two parking lots and were observed to pass within six feet of one Bruce Lewis. Lewis testified that they appeared to be the same two men that he had seen running down the street onto the parking lots. Lewis’ description coincided generally with the description given by Beal to the officers.

A call was made to Deputy Sheriff John Hennessey, giving him a description of the vehicle the two men were traveling in, a 1967 gray Pontiac. Hennessey stopped the vehicle and apprehended appellant and his companion. The two men were taken to the Huntsville Police Department and turned over to the Huntsville detectives. The gray Pontiac was impounded.

Within the hour, Beal was taken to the Huntsville Police Department.

Beal testified as follows:

“Q (BY MR. MORGAN:) Are you Mr. Charlie Beal?
“A Yes, sir.
“Q Is that Charlie or Charles?
“A Charles.
“Q O.K., sir, and you are the owner and proprietor of the B & B Gun Shop?
“A Yes, sir.
“Q O.K., Mr. Beal, shortly after you were robbed on or about August 26, I think, of this year, did you have occasion to go to the Huntsville Police Department?
“A Yes, sir, I did.
“Q And did you have occasion to see some people while you were there?
“A Yes, sir.
“Q Did you see Detective Howard Turner here for one?
“A Yes, sir.
“Q O.K., were you shown some individuals there and asked to identify them?
“A Yes, sir.
“Q Would you please state to the Court just exactly what happened from the time you got there and you identified these people?
“A Well, they picked me up after they had a routine check down at the store and saw how many guns was missing and then they carried me on up to the Police Department and—
“Q Who was present please, sir, when you arrived there at the Police Department?
“A Well, really and truly I didn’t see anybody for quite some time because they kept me out in the hall and said they didn’t want me to try to identify anybody this quick.
“Q O.K., sir.
“A So I stayed out in the hall I would say maybe 30 minutes or longer.
“Q Is that in the detective division of the Huntsville Police Department?
Yes, sir. <
"Q And what happened then, after you had sat out in the hall for awhile? <y
"A Well, they finally came and got me and said they would like me to come in the other room. And, of course, this man here was sitting in one side of the little room and when I went by I saw him and I said, ‘There’s one of the men right there.’
"Q Did anybody in that room or in your presence point him out to you and say, ‘This is the one’? <©
"A Not at that time, no, sir. <
"Q Did anyone ask you if you recognized that man at that point? <y
"A Not at that time, no, sir. <
"Q You saw him sitting in a room alone and you said, ‘That is one of them’? o*
"A Well, there was somebody else with him. He was in a small room but there was somebody with him.
"Q Would you describe that person that was with him, if you can? &
"A Detective — now, I have seen so many up there I can’t remember all their names and everything.
"Q O.K., do you recall whether or not the defendant had on handcuffs when you saw him? a*
"A No, sir, not when I saw him.
"Q But you weren’t asked to identify that man? He was not pointed out to you at that time? &
"A No, sir, not at that time. No sir. <
"Q O.K., but you were asked to come on inside and what did you do after you went on in the other room? &
"A I went in there and sat down for about probably 30 more minutes, something like that and then the other one came into the room and went down there and sat down and I said, ‘Well, there’s the other man right there’ so really nobody had to point them out at the time, of course, because I identified them.
"Q Was this man ever brought into the room?
"A Yes, sir, he was.
“Q And that was some period of time later?
“A Yes, sir.
“Q And who brought him in, one of the detectives?
“A One of the detectives, uh-huh.
“Q All right, do you recall the conversation you had with that detective, if any?
“A Well, not really offhand because they just brought them in, both of them in, and sat them — -after that one was in they brought this one in and they sat him down and they, more or less, talking to themselves and I talked to a little policeman and I don’t remember what his name was that had brought me up to the jail.
“Q O.K., at what point did they ask you if you recognized this young man?
“A After both of them was in there.
“Q Did anyone there at any time point this man out to you and say, ‘This is the one we have arrested for this alleged offense’?
“A No, sir.
“Q They just brought him into the room and you identified him?
“A Yes, sir.
“Q And you had already pointed him out as being one of the ones before you even were asked to identify him, is that correct?
“A Yes, sir.”

The appellant, in seeking a reversal of his conviction, insists that the confrontation in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process of law.

He maintains that his position is bolstered by the fact that the witness went to detective headquarters only when he learned that suspects had been taken into custody. He contends that the suspects were the only two young black males at said headquarters. The appellant places strong reliance on the case of United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

Much had been written regarding the Wade case, supra. We will not undertake to go into a detailed analysis of the ramifications of this much discussed case. We do not think the procedural standards established in Wade, supra, are applicable to the instant case.

We cite as a similar case and with approval a later case of Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, cert. den. 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed. 245, wherein the United States Court of Appeals, District of Columbia Circuit, among other things, had this to say on the topic we are now discussing:

“Even to suggest that the confrontation described might require the presence of a lawyer or that a lineup be conducted seems to me an exercise in stultification. I have no slightest doubt that there is no basis for an intimation that there had been a denial of due process. .
“The use of eyewitness testimony in the trial of criminal cases is an essential pros-ecutorial tool. The recent case of United States v. Wade, [supra] struck a harmful blow at the nationwide effort to control crime. The Court held that an in-court identification of the suspect by an eyewitness is inadmissible unless the prosecution can show that the identification is independent of any prior identification by the witness while the suspect was in custody, and while his court appointed lawyer was neither notified nor present. It is incredible that a victim is not permitted to identify his assailant in court. The same is true of eyewitnesses who saw the victim assailed or murdered. The fact that eyewitness might on some occasion prior to trial have identified the accused, without a lawyer for the accused being present, cannot in reason, law, or commonsense justify such a disastrous rule of evidence. Nothing in the Constitution warrants it. .
“I think this case like many others which are brought here nowadays, should have been disposed of summarily as utterly frivolous.”

In Alabama it has further been held that the right to counsel does not attach to a pre-trial line-up even though it was conducted two days after the offense and the suspect was being held on a specific charge. White v. State, 48 Ala.App. 334, 338, 264 So.2d 565.

The Alabama cases demonstrate that the holding in Wade, supra, simply does not apply in the instant case.

In another Alabama case the rulings of this Court have established that prompt on-the-scene confrontation is consistent with good police work. Cornelius v. State, 49 Ala.App. 417, 272 So.2d 623; Cole v. State, 52 Ala.App. 447, 293 So.2d 871.

One of the more recent cases, decided by this Court March 16, 1976, is Joe Lee Harris v. State, 57 Ala.Cr.App., 329 So.2d 618. This case involved a line-up identification made within one hour of the crime and it held that:

“Lineup identification conducted approximately an hour from the time, of the robbery did not give rise to substantial likelihood of irreparable misidentification even though victim identified defendant as the taller one of the two that held him up and defendant’s alleged accomplice was some five inches taller than defendant.
“Fairness to both the suspect and the victim should inhere in a lineup. The cards should not be stacked against either. The sooner the lineup the greater the likelihood of a correct result.”

There are other Alabama cases in harmony with the above cited cases. We hold that the appellant is not entitled to a reversal based on his pre trial confrontation with the victim, and that the in-court identification in this case was admissible even though there had been a “one-man” feature of the show up.

The appellant also contends that the trial court committed reversible error in admitting into evidence a police property report inventory. He points out that some of the items in the report had been lost or misplaced. We think this argument has no standing under the best evidence rule. See Watercutter v. State, 21 Ala.App. 248, 108 So. 870.

Another contention made by appellant in seeking reversal here is that the court erred in admitting into evidence a pistol without a showing of a proper chain of possession. Of course, we find here that this argument lacks merit and the jurors were, of course, entitled to give this evidence such weight as they deemed sufficient under all the facts duly presented to them in this case. We think the jury could deduce that the appellant was connected to the weapon used in the commission of the crime. Means v. State, 51 Ala.App. 8, 282 So.2d 356, 359, cert. den. 291 Ala. 792, 282 So.2d 359.

We have considered all contentions of appellant and have reviewed the entire record in a quest for any error prejudicial to defendant and have found none. The judgment appealed from is hereby affirmed.

The foregoing opinion was prepared by Honorable FRED W. NICOL, Circuit Judge, temporarily on duty on the Court of Criminal Appeals pursuant to subsection (4) of § 38, T. 13, Code of Alabama 1940, recompiled 1958; the Court has adopted his opinion as its own.

AFFIRMED.

TYSON, HARRIS, DeCARLO, and BOOKOUT, JJ., and SIMMONS, Supernumerary Circuit Judge, concur.

      . There is a discussion of the Alabama Rule regarding confrontation in Payne v. State, 48 Ala.App. 401, 265 So.2d 185. See also “Ala.Digest” Constitutional Law” &wkey;226(3) volume 4(a).


source: Caselaw Access Project

license: Public Domain

text:
    Glennon HOPPINS, Jr., v. STATE.
    1 Div. 698.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    David L. Barnett, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment for twenty-five years.

No question is raised as to the sufficiency of the evidence to support the verdict, and we see no reasonable basis for such a question.

The robbery occurred about 2:00 A.M. July 10, 1975. The victim was the internal auditor at the Town House Motel at 1061 Government Street in Mobile. The robbers escaped, and no arrests had been made for the robbery before about 11:30 P.M. August 18, when an automobile being driven by defendant was stopped by the police in Mobile. One of the men in the automobile fled the scene. Under the back of the driver’s seat was a sawed-off shotgun. The victim of the robbery identified defendant as one of the robbers; he identified the shotgun found in defendant’s automobile on August 18 as the shotgun used by defendant while he and his partner were robbing him; he identified one of the men in the back seat of the automobile on August 18 as the defendant’s partner in the robbery; both were arrested and imprisoned.

For obvious reasons, there was no evidence on the trial of the case to show the reason for the stopping of the automobile, the arrest of defendant and the search of his automobile. The reason therefor and the circumstances thereof were shown by the evidence presented on a pretrial motion to suppress the evidence as to the gun. The circumstances were that a few minutes before the arrest was made, a robbery had occurred at the Travelers Inn at 1812 St. Charles Avenue in Mobile. The victim reported the robbery by telephone to the Police Department. Her report in detail was instantly transmitted over the police radio system and received by the occupants of at least three police vehicles, who converged at the scene of the arrest at approximately the same time. The officer who ordered the car to stop observed that one of the men in the back seat of the automobile matched the description, given by the victim of the robbery, of one of the robbers. Before the car was searched, one of the officers had received via police radio system, information that a witness to the robbery had described the automobile used by the robbers in leaving the scene of the crime in a way that matched the automobile being driven by defendant at the time his automobile was stopped. In the course of “patting down” the men in the automobile, forty-two dollars and thirty-nine cents in twenty-seven one dollar bills and assorted currency was taken from the pockets of one of the men in the back seat of the automobile; this was the exact amount that the victim had just reported was the amount taken in the robbery.

The motion to suppress evidence of the gun charged in effect that it was obtained as a result of an illegal arrest, search and seizure. The overruling of the motion is made one tine of a two-pronged attack upon the judgment.

At the time the automobile was searched, one or more of the officers participating in the arrest and search had received information via radio from the victim of the Travelers Inn robbery describing the gun used by one of the robbers. The gun found under the back part of the front seat of the automobile matched the description of the gun described by the victim of the Travelers Inn robbery, as well as the gun described by the victim of the robbery made the basis of this case. There was another gun in the back seat of the automobile.

There was abundant probable cause to justify the officer stopping and questioning the occupants of the automobile and for arresting defendant for the robbery of the Travelers Inn. At the time the automobile was stopped, it was known by the officer stopping it that an armed robbery had taken place a few minutes before, that the automobile was at a place and time that dovetailed with the place and time of the robbery, that two men in the back seat of the automobile matched the description in material respect. This justified and made it the duty of the officer to stop the automobile and investigate. That the officers required the occupants of the automobile to get out; that they “patted” them down to determine whether they were armed, was clearly within their rights, for their own safety. Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200, cert. denied, 291 Ala. 93, 278 So.2d 205. There was more than enough to justify the warrantless search of the automobile when the officers obtained information, in addition to that which they had when the automobile was stopped, that in the pockets of the persons in the back seat was the exact amount of money taken in the robbery and one of the persons in the automobile had fled from the scene when the automobile was stopped. Crane v. State, 55 Ala.App. 619, 318 So.2d 315. With such information and the finding of a sawed-off shotgun under the back part of the driver’s seat that matched the description given by the victim of the gun used in the robbery, when added to all of the other information received by the officers, no room is left for doubt that there was probable cause for arresting defendant, as well as the others in the automobile, and placing him in custody. Appellant’s reliance on Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306, is misplaced. There, according to the majority opinion, the arresting officer was proceeding under an invalid warrant based on an informer’s tip and “was not possessed himself of any factual data tending to corroborate the informer’s tip.” 401 U.S. at 568, 91 S.Ct. at 1037.

After the jury was selected and had been excused to go to the jury room, there was a colloquy among the court, counsel for both sides, and defendant relative to whether the jury would be allowed to separate during the course of the trial. After defendant had made it known that he was not willing for them to separate and the court ruled that the jury would be kept sequestered, counsel for the State suggested that they proceed with the motion of defendant to suppress the testimony hereinabove discussed out of the presence of the jury. Thereupon the following occurred:

“MR. FRIEDLANDER: Judge, I would like to go into my motion before, first of all.
“THE COURT: All right.
“MR. FRIEDLANDER: First of all, Judge, I would ask for a-. Before we struck the Jury, I reserved the right to ask for a motion, and I would ask the Court to declare a mistrial in this case and to ask for a continuance of the case until later on in the week or until next week, until other counsel can be employed by Mr. Hoppins, or appointed by the Court, to represent Mr. Hoppins. The basis of my motion is the fact that I don’t feel that I have been able to get any cooperation out of Mr. Hoppins, and I don’t think Mr. Hoppins feels that he has been able to get cooperation out of me. The last time the case was set for trial, all of the Co-Defendants entered pleas of guilty, and on a recommendation of 10 years in the penitentiary, were given 10 years, I believe. They had more than one case against them, also, I believe. Today, before the Court we have a case for which we struck the Jury, and we have another case pending against Mr. Hop-pins, a robbery case, each one of these cases carries a minimum of 10 years and a maximum of life in the penitentiary. I have recommended to Mr. Hoppins that he accept the recommendation of the District Attorney in these cases, which was going to be a ten-year sentence in each case to run concurrently, serving that time in the penitentiary. He has been in jail for about seven months already, and I explained to him that he would be given credit for that time that he’s been in the jail. He does not want to accept that offer, and so I told him that I am prepared to try the case this morning. He tells me that he does not want to try the case, does not want me to represent him any further, wants to get some other counsel, and also wants to present a motion on his own. I think it’s a Habeas Corpus motion. I haven’t looked at the Petition, he’s got them spread out all over the table. I advised his father to advise Glennon here, and I advised Glennon also not to bring out all these items and spread them all over the table, but as your Honor sees, he seems to have seen fit to do so. I had advised him that I think it would be better for the Jury to separate, but he has advised the Court that he does not wish the Jury to separate, and he is going against every bit of advice that I have offered to him, and I do not think that I can proceed with the trial of this case without the help of my client here. I don’t think he is able to, I don’t think he really appreciates what is happening here today, or what is going to happen to him if he does get convicted. I, at the last setting of the case, thought he had some problems mentally, and requested the Court filed a motion for psychiatric examination, but Searcy sent him back, and I believe on their report they state that he knows the difference between right and wrong, and is able to aid in his defense, but I do not feel at the present time that he is able to do so. On that basis, I would ask the Court to declare a mistrial and grant a continuance until next week when there will be a different Jury Venire, which should be plenty of time for his parents to retain counsel or for appointed counsel to represent him at that time.
“THE COURT: I am going to deny your motion.”

Appellant’s counsel — not the same counsel who represented him as counsel employed by his father from the time of defendant’s preliminary hearing to and through the trial of the case — insists that the court was in error in denying the motion hereinabove quoted. We see nothing in the record prior to such motion to the effect that defendant or defendant’s counsel had reserved the right to interpose such a motion after the jury had been selected. It is to be noticed that counsel stated, “I reserve the right to ask for a motion.” Whether he meant by that that he had made it clear to the court and opposing counsel that he reserved a right to move for a mistrial or a continuance after the jury had been selected, we do not know, but we hardly see how there could within reason have been such an understanding. The procedure here bears resemblance to, in some respects, and dissimilarity with, in other respects, the procedure considered in Moore v. State, 49 Ala.App. 408, 272 So.2d 615. In Moore, counsel had been appointed for twenty-six calendar days prior to trial. In this case, he had been privately retained and active as counsel for defendant for seven months, during which time he had participated as defendant’s counsel on the preliminary hearing and on at least one previous setting of the case for trial; he had represented defendant on arraignment and on a motion to be treated as a youthful offender; he had investigated the case and. had conferred with defendant time and again; he had filed a motion and obtained an order for a psychiatric examination of defendant, which had been made; in evident anticipation of a trial, and not a continuance or mistrial, he had discussed with defendant the advisability of the jury being allowed to separate during the trial. Nothing was presented to the court to the effect that defendant would retain other counsel by the following week or at any time within the then near future. In fact, there was nothing definite presented to the court to the effect that any effort would be made to employ other counsel. No request was made that defendant be allowed to appear in propria persona.

Defendant had the right to employed counsel of his choice; he also had the right to defend himself. He had evidently been attempting to represent himself to some extent and had obtained some form of legal assistance from someone other than his employed attorney, as indicated by the meticulously drawn papers filed by him, which were submitted by his attorney to the accompaniment of evidence, which obviously were without merit. No point is made on appeal that there was any error in the action of the trial court in ruling adversely to defendant as to such “papers.” Furthermore, no point is made on appeal, wherein defendant is represented by appointed counsel, to the effect that the employed counsel did not adequately represent him on the trial. Even so, we have examined the record, in consideration of the question, and find no basis for any reasonable contention that he was without adequate representation of counsel. When called upon for anything he had to say before being sentenced, defendant registered complaints, but none as to counsel. He did state on redirect examination in connection with his testimony out of the presence of the jury in support of the “papers” hereinabove referred to, as well as defendant’s motion to suppress testimony, that he would like to have some time to get another attorney and for his attorney to be allowed to withdraw from the case, and “to turn over all papers concerned with the case,” but this apparently was to counteract his previous undisputed testimony that the first setting of his preliminary hearing had been continued in order for him to obtain counsel and that he and his father did thereafter retain counsel in time for the next setting of the preliminary hearing. Defendant stated in the course of his testimony out of the presence of the jury that he didn’t feel that his counsel had fully investigated the case, because, “there is a witness you know nothing of.” Defendant testified in his own behalf that he was asleep in bed at the home of his mother and father at the time of the robbery for which he was tried and convicted; the record shows that his mother and father were in court at the time of the trial, that neither was called as a witness for him. His purported alibi was without any direct or circumstantial corroboration. He denied any knowledge of the presence of the sawed-off shotgun in his automobile, the automobile being driven by him, prior to his arrest for the second robbery.

We do not know the real objective of defendant or his counsel in moving for a mistrial and continuance, but there was nothing that occurred after the selection of the jury that warranted it. It is also our opinion that nothing that occurred prior to the selection of the jury required a continuance of the case, but if so, the motion should have been made before the jury was selected. We do not know what was embraced and what was referred to in counsel’s statement that he had “reserved the right to ask for a motion,” but the trial court did. It was acting well within its discretion in overruling defendant’s motion for a mistrial and a continuance. Moore v. State, supra; Bertrand v. State, 46 Ala.App. 117, 238 So.2d 914.

We find no error in the record prejudicial to defendant, and the judgment appealed from should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: SIMMONS, Supernumerary Circuit Judge.

text:
    Jessie Lee MARLAR v. STATE.
    8 Div. 676.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.

      W. Mark Anderson, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and C. Lawson Little, Asst. Atty. Gen., for the State.
   SIMMONS, Supernumerary Circuit Judge.

Defendant (an indigent on this appeal) was indicted for murder in the first degree. He pled not guilty on arraignment. The basis of the plea was self defense. A jury returned a verdict that found him guilty of first degree manslaughter. Sentenced to three years imprisonment.

The victim of the homicide was James Edward Coosenberry, who was slain in defendant’s home. Present were defendant and his wife, the victim and his wife, Mrs. Nola Smith and her son, and some small children. The occasion was social frivolities and dancing to the tune of a record player furnished by Mrs. Smith, from her nearby home. The social life was stimulated by alcoholic beverages which was consumed by the hosts and guests.

An investigation of the homicide was made by the sheriff’s office on the night of the homicide, which occurred on Saturday, February 16, 1974. One of the investigating officers was Deputy Long.

The State undertook to prove by its witness, Mrs. Nola Smith, the motivation for the shooting. The defendant here contends that the State’s interrogation of the witness, references being made to certain questions, and certain answers, to which appropriate objections were made, was prejudicial to defendant.

In an effort to establish ill-will on the part of defendant to deceased, the State sought to prove by Mrs. Nola Smith that defendant got mad and shot deceased because he had been dancing with his (defendant’s) wife. We now refer to pertinent questions, answers, and the rulings of the court:

“Q. Mrs. Smith, was there any conversation between Jesse Marlar and his wife about her dancing with Coosenberry?
“A. I didn’t hear anything about that, now. I couldn’t tell you.
“Q. Did you on this evening — on the sixteenth of February, 1974, talk to the deputy there, Mr. Hood?
“A. When he came out there that night?
“Q. Yes ma’m.
“A. I sure did.
“Q. Do you recall making a statement to him — ”

Objection to question was sustained.

“MR. PATTON: [District Attorney] Judge, at this time we are going to announce surprise of this witness here.
“MR. GRAHAM: Now, if we’re going to announce surprise, that’s something the Court needs to take up with the lawyers outside the presence of the jury.” [Bracketed material added.]

The jury was returned and the following proceedings were had:

“Q. Now, Mrs. Smith, do you recall on the night of February 16, the night that the shooting took place out at Jesse Lee Marlar’s — do you recall seeing Mr. Long and another man, Mr. Haney, that night? Did they come to your house?
“A. There was four of them came there that night.
“Q. All right, do you recall specifically though, Mr. Long, here sitting with me?
“A. Yes.
“Q. All right, do you recall making a statement to them to the effect, ‘Jesse got mad and accused Coosenberry of dancing with his wife — she was not dancing with him, but Jesse was drunk and dreamed it up in his mind that she was.’?
“MR. GRAHAM: Now, wait a minute. We object to this. This is clearly illegal, irrelevant, and immaterial. This is hearsay testimony. This is in violation of the rule that he is vouching for the veracity of his witness. This goes into the matters that wouldn’t even be of substantive value if he otherwise had a right to lead the witness. We object to it on those grounds.
“BY THE COURT: Overruled.
“MR. GRAHAM: Now, we move for a mistrial. This is so prejudicial and so contrary to the rules of evidence as to this man’s rights who is on trial. It is leading. It is prejudicial. It is hearsay. It is violation of due process of law on those grounds — we move for a mistrial.
“BY THE COURT: Overruled.
“MR. GRAHAM: WE EXCEPT.
“BY THE COURT: Answer the question, please ma’m. Do you want her to read it to you again?
“A. Sir?
“BY THE COURT: Answer the question if you remember it. If you don’t remember it, say so and I’ll get her to read it to you.
“A. What he just now asked me here?
“BY THE COURT: Yes ma’m.
“A. Well, I don’t remember it. I might have done it. I was so upset. I don’t remember it, though. If I told him, I told him. That’s all I know. I was upset so, I don’t know.”

While these questions collectively, were an attempt on the part of the State to show surprise, supra, wherein the witness had answered that she didn’t hear anything about a conversation between defendant and deceased about the latter dancing with defendant’s wife. We think the witness’ answer, supra, that she did not remember, but she might have done it; that she was upset, was not prejudicial to the extent of reversing the case. The record contains 104 pages of testimony on transcript paper as to what happened. In the light of the record, the answer of the witness that she did not remember and was upset; in our judgment was without injury to defendant. The jury was fully informed as to what happened and that the killing was induced by too many drinks of alcoholic beverages that kindled flaring tempers.

We find no error in the record, The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

TYSON, HARRIS, DeCARLO and BOOKOUT, JJ., concur.


author: WILLIAM D. PAGE, Circuit Judge.

text:
    Curtis GILBERT v. The CITY OF MONTGOMERY.
    3 Div. 466.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.

      Benjamin E. Pool, Montgomery, for appellant.
    Randall C. Morgan, Montgomery, for ap-pellee.
   WILLIAM D. PAGE, Circuit Judge.

On November 25, 1974, Richard E. Koer-ner, an officer of the Bureau of Special Investigations of the Montgomery Police Department, went to Jimmy’s News Stand in Montgomery, Alabama, and purchased from Curtis Gilbert a publication entitled “Teenage Girls and Their Loving Boyfriends.” Curtis was charged by affidavit and complaint with violation of Ordinance 26-74 adopted by the governing body of the City of Montgomery on February 19, 1974. Trial was before the court and a jury. The jury was called upon to determine whether the magazine was obscene as proscribed by the Ordinance. The defendant was convicted by the Jury.

The Ordinance under which defendant was convicted makes it a municipal offense for one to knowingly publish, print, exhibit, distribute or have in his possession with intent to distribute, exhibit, sell or offer for sale, in the city or the police jurisdiction thereof, any obscene matter. The Ordinance sets out the following definitions:

“A. ‘Obscene’ means that to the average person, applying contemporary community standards, the work or matter, taken as a whole, appeals to the prurient interest; the work or matter depicts or describes, in a patently offensive way, sexual conduct, and the work or matter, taken as a whole, lacks serious literary, artistic, political or scientific value.
“B. ‘Work’ or ‘Matter’ means any book, magazine, newspaper or other printed or written material, or any picture, drawing, photograph, motion picture or other pictorial representation or any statue or figure or any recording transcription or mechanical, chemical or electrical reproduction, or any other articles, equipment, machines or materials.
“C. ‘Sexual Conduct’ means any act of masturbation, excretory functions, homosexuality, sado-masochistic abuse, nudity, sexual intercourse or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such a person be a female, breast, whether or not any such conduct is actual or simulated, and lewd exhibition of the genitals. “D. ‘Nudity’ means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.
“E. ‘Sado-Masochistic Abuse’ means flagellation or torture by or upon a person undressed or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one undressed or so clothed.
“F. ‘Person’ means any individual, partnership, firm, association, corporation or other legal entity.
“G. ‘Distribute’ means to transfer possession of, whether with or without consideration.
“H. ‘Knowingly’ means having actual or constructive knowledge of the character and content of the subject matter. A person has constructive knowledge if a reasonable inspection under the circumstances would disclose the nature of the subject matter and the failure to inspect it for the purpose of avoiding such disclosure.”

In its oral charge the trial court instructed the jury that the “contemporary community standards” to be applied in determining whether the publication was obscene were those of Montgomery County, Alabama. Defendant urges that the “contemporary community standards” are required to be those of the entire State of Alabama. Our Supreme Court has held that statewide standards are not only desirable, but are also feasible, and that it is error for the trial court to instruct the jury that the standard to be applied is less than statewide. Pierce v. State, 292 Ala. 473, 296 So.2d 218, cert. den. 419 U.S. 1130, 95 S.Ct. 816, 42 L.Ed.2d 830 (1975). As in Pierce, the question arises in the instant case as to whether such error was reversible error. Following the precedent of Pierce and McKinney v. State, 287 Ala. 648, 254 So.2d 714 (1971), cert. den. 405 U.S. 1075, 92 S.Ct. 1499, 31 L.Ed.2d 809 (1972), this Court, based on the evidence, finds the publication to be offensive to the contemporary community standards of Alabama and the Nation, as well as of Montgomery County. The graphic pictorial displays include, in addition to coitus, activities of fellatio, sodomy, masturbation and cunnilingus. The instruction to the jury in this case was error without injury. Pierce, supra; McKinney, supra. The prose chosen for inclusion in the magazine deals with the subjects of sado-masochism, bestiality, masturbation, and the raping of a virgin by a depraved genius. The magazine, viewed in its entirety, is definitely an appeal to the prurient interest in sex. It is patently offensive. It is totally without serious literary, artistic, political or scientific value.

Defendant asserts as error the refusal of the trial court to dismiss the complaint and affidavit and to exclude the evidence. Under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), obscenity offenses must be limited to works which:

1. Depict or describe sexual conduct which is specifically defined by applicable State law (as written or authoritatively construed) and
2. Taken as a whole, appeals to the prurient interest in sex and
3. Portrays sexual conduct in a patently offensive way, and
4. Taken as a whole does not have serious literary, artistic, political, or scientific value.

The Ordinance in question meets the constitutional test of Miller. On appeal, the appellate courts of this state make an independent determination of obscenity, regardless of the finding of the trial court. The Ordinance is constitutional under Miller standards.

Defendant urges that because the pictorial scenes present only nudity and only simulated acts are depicted the publication could not be obscene as a matter of law and that this trial court should have granted defendant’s motion to dismiss the Complaint and Affidavit and to exclude the evidence. The United States Supreme Court has -ruled that nudity in and of itself cannot be proscribed, Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). The pictures in the magazine sold by defendant depict more than nudity. The positions of the contorted bodies and the proximity of the genitalia of the males and females leave nothing to conjecture or surmise. The acts are not simulated as suggested by defendant. The matter is hard core pornography. The decision here reached meets the admonition of Miller, supra, wherein it is stated:

“Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by regulating state law, as written or construed.”

We are in agreement with that pronouncement. Our ruling is not violative of the admonitory observation by the highest court in the land. The Ordinance not being constitutionally defective, and the magazine being hard core in practically every picture and word, the trial court did not err in overruling the motion to dismiss or the motion to exclude. Miller, supra.

The defendant argues that, because the prosecution failed to produce any direct evidence as to what the “contemporary community standard” was and whether the magazine affronted that standard, the trial court was in error in failing to exclude the evidence and direct a verdict of acquittal. It is insisted that the introduction of the magazine without direct testimony of a community standard was a denial of due process. In this ease the jurors were entitled to draw on their own knowledge in determining whether the magazine was obscene. Matheny v. State, 55 Ala.App. 119, 313 So.2d 547, cert. den. 294 Ala. 765, 313 So.2d 552 (1975). The Supreme Court of the United States has held that jurors have the ability, without benefit of expert testimony, to ascertain the sense of the “average person” in applying community standards. The refusal to' grant the defendant’s motion to exclude was not error. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

On trial the Court allowed into evidence photographs of the interior of the place of business where the sale took place, various signs posted on the interior of the establishment, certain “marital aids” offered for sale, posters advertising motion pictures which could be viewed on the premises for payment of a fee, a life-sized plastic doll, and numerous other magazines which were displayed on racks in the store. Defendant urges that because these photographs did not depict or portray scenes strictly related to magazines their admission was error to reversal. Throughout the trial defendant insisted he had no knowledge of the contents of the publications, had never looked inside such publications and did not knowingly violate the Ordinance. The totality of the premises at which the act occurred was properly presented to the jury for its consideration in determining scienter, intent and motive. The scene of the occurrence of the offense was a part of the res gestae: Lambert v. State, 48 Ala.App. 600, 266 So.2d 812 (1972). Even though the photographs depicted scenes which might impute to defendant other violations of the obscenity ordinance, they were properly admitted. Eady v. State, 284 Ala. 327, 224 So.2d 876 (1969); Robinson v. State, 40 Ala.App. 101, 108 So.2d 188 (1959). See "The Law of Evidence in Alabama” by Judge J. Russell McElroy, Vol. 1, 2nd Ed. pp. 166-169.

The defendant complains of error in that, over objection by the defendant, witnesses for the prosecution were allowed to testify concerning homosexual propositions made to them by someone other than the defendant and outside the presence of the defendant. Such propositions were made inside the premises where the magazine was purchased. Such testimony was allowed after the defendant had cross-examined a witness for the prosecution on the subject of whether such witness had ever observed any disorderly conduct on the premises. The defendant having opened the testimony concerning the type persons who frequented the establishment and their conduct while in the establishment, the prosecution was properly allowed to introduce evidence to clarify, amplify or rebut such testimony. Cannon v. State, 53 Ala.App. 509, 301 So.2d 272 (1974); Cooper v. State, 55 Ala.App. 576, 317 So.2d 543 (1975); Goodson v. State, 42 Ala.App. 266, 160 So.2d 652 (1963).

Defendant next contends that the court erred in sustaining objection to a question put to a prosecution witness on cross-examination. The transcript of the testimony reveals the following:

“Q. Prior to the time that you arrested him, did you warm him that these magazines were suspected to be illegal magazines?
“A. No, sir, I didn’t.
“Q. Did anyone warn him to that effect?
“MR. KIRK: I object to that—
“THE COURT: Yes, I sustain the objection.
“Q. (By Mr. Pool) But you didn’t warn him?
“A. No, sir.”

Defendant argues that he was denied the right to a thorough cross-examination as provided by Title 7, Sec. 443, Code of Alabama, 1940, Recomp. 1958. The defendant was allowed to question the witness as to whether he (the witness) had warned the defendant on the subject of obscenity. The defendant was not allowed to state whether or not anyone other than the witness had so warned the defendant. The question propounded had nothing to do with the guilt vel non of the defendant. Whether this defendant had been “warned” by someone other than the witness would not tend to shed any light on the vital questions of the case. The question propounded was not only immaterial, it also called for hearsay. Martin v. State, 18 Ala.App. 303, 92 So. 37 (1921); Sovereign Camp W.O.W. v. Adams, 204 Ala. 667, 86 So. 737 (1920).

The defendant claims error in the fact that the trial court allowed a prosecution witness to answer a question which defendant asserts called for an opinion. The questioned ruling arose in the following fashion:

“Q. Now, I show you the cover and ask if, on your experience in life and at your age in life, if there is any room for the imagination for any space between the male head on the cover of that magazine and the female body?
“MR. POOL: We objeet to that question.
“THE COURT: Overruled.
“A. No, sir.”

It is noted that only a general ground of objection was interposed by the defendant. When, as here, an objection is general, specifying no grounds, the trial court will not be put in error for admitting the evidence unless the matter is clearly not proper for any purpose. A general objection to evidence which is subject to a specific objection is properly overruled. McKinley Music Co. v. Lewis, 17 Ala.App. 370, 84 So. 858 (1920); W. B. Smith & Sons v. Gay, 21 Ala.App. 130, 106 So. 214 (1925); Thornton v. State, 55 Ala.App. 462, 316 So.2d 710 (1975); Miller v. State, 52 Ala.App. 525, 294 So.2d 774 (1974).

Defendant complains that he was not permitted to question the chief prosecution witness as to whether or not the witness made a personal determination that the magazine was obscene at the time it was purchased from the defendant. Defendant claims he should have been allowed to pursue this line of questioning to show bias or prejudice on the part of the witness. In developing interest or bias on the part of a witness, the range of cross-examination rests largely in the discretion of the trial court and its rulings will not be disturbed unless it clearly appears that the accused was prejudiced by such rulings. Benefield v. State, 44 Ala.App. 339, 208 So.2d 449, cert. den. 282 Ala. 19, 208 So.2d 455 (1967). In such cases the burden of persuasion on the issue of the'prejudicial effect of the ruling is upon the party claiming abuse of discretion. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195, cert. den. 288 Ala. 735, 265 So.2d 202, cert. den. 409 U.S. 1060, 93 S.Ct. 558, 34 L.Ed.2d 512 (1972). In this case we are not persuaded that the ruling of the trial court was prejudicial to the defendant or that there was an abuse of discretion.

On cross-examination of a prosecution witness the defendant attempted to elicit whether the witness was aware that x-rated and r-rated movies were being shown in Montgomery County. There was no showing of the nature or content of such movies or of the degree of regularity such movies were shown in the area, nor was there any attempt to show such content or regularity. In short, there was no evidence that the movies alluded to were comparable to the magazine in question or that the movies enjoyed a reasonable degree of acceptance or tolerance. In absence of such testimony, or an attempt to introduce it, the trial court will not be put in error. Of course, had defendant shown that the x-rated or r-rated movies alluded to were comparable to the magazine, and had he demonstrated to the satisfaction of the trial court that such movies enjoyed a reasonable degree of community acceptance or tolerance, the trial court should have allowed the question to be answered. Absent such showing there was no error. Pierce, supra.

The entire transcript and record of the trial in the lower court has been examined. No error is made to appear.

The foregoing opinion was prepared by Hon. WILLIAM D. PAGE, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Sec. 38, Title 13, Code of Alabama, 1940, Recomp. 1958; the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: HOOPER, Circuit Judge.

text:
    James SCAIFE, Jr. v. STATE.
    4 Div. 427.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.

      John B. Crawley, Troy, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   HOOPER, Circuit Judge.

Appellant James Scaife, Jr., was convicted of forgery and sentenced to five years in the circuit court below in Pike County and appeals his case to this court, raising only one point contending that the trial court erred in not granting his motion to dismiss the indictment because a preliminary hearing had not been given Scaife prior to his indictment and trial.

According to the record, a complaint was made against Scaife charging him with forgery and a warrant for Scaife’s arrest was issued by the Inferior Court of Pike County, and served on Scaife June 4, 1975. Scaife made bond on June 16, 1975. A preliminary hearing was never held by the Inferior Court of Pike County. Twenty-two days after Scaife’s arrest, he was indicted for forgery by the grand jury of Pike County, on June 26,. 1975, and was arraigned on July 8, 1975. On August 18, 1975, and again on August 21, 1975, Scaife moved to dismiss the indictment for the lack of a preliminary hearing being held and both times the court refused to grant Scaife’s motion. Scaife was found guilty by a jury on September 9, 1975, and sentenced by the court to five years in the penitentiary on September 10, 1975.

As to the issue pertaining to a preliminary hearing, Mr. Robert Newman, Jr., Clerk of the Circuit Court and Inferior Court of Pike County, testified at a hearing on Scaife’s motion to dismiss as follows:

“Q. Would you tell the Court the custom as to how a defendant gets a preliminary hearing in the Inferior Court?
“A. He either asks for it in writing or filing a motion for a preliminary hearing through his attorney or I guess he could just write out a long hand and do it hisself [sic]. In other words, by giving the Judge notice he wants a preliminary hearing or me. If he gave it to me I would ask the Judge what day he wanted it set on.”

It is clear that the State admitted that Scaife was not given a preliminary hearing. At the trial, Scaife contended that between his arrest and arraignment he was unable to employ an attorney and that Scaife thought he would receive a preliminary hearing without asking for it.

The law of Alabama has been en-ounced by this Court that a preliminary hearing is not necessary to satisfy the requisites of due process and the fact that there was no preliminary hearing would have no bearing on the validity of an indictment or subsequent proceedings. Bowman v. State, 44 Ala.App. 331, 208 So.2d 241; Queor v. State, 278 Ala. 10, 174 So.2d 687.

It becomes a moot question after an indictment has taken place as to whether a person has had a preliminary hearing prior to the indictment. Core v. State, 50 Ala.App. 533, 280 So.2d 794.

Although it is not argued in appellant’s brief on appeal, it was raised at the time of trial that Scaife did not realize that he could have had a preliminary hearing if he had asked for it. Since the law does not require that a preliminary hearing be held, it still remains a moot question whether Scaife knew or did not know to ask for a preliminary hearing or whether he did or did not ask for a preliminary hearing. The holding of a preliminary hearing is simply not a requirement of due process. Bowman v. State, supra; Queor v. State, supra; Core v. State, supra.

In addition to responding to the question raised on appeal, we have also reviewed the entire record as required by T. 15, § 389, Code of Alabama 1940, Recompiled 1958, and having found no error therein prejudicial to Scaife, the judgment appealed from should be affirmed.

The foregoing opinion was prepared by the Honorable Perry O. Hooper, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of § 38, T. 13, Code of Alabama 1940, as amendéd;' the Court has adopted his opinion as its own.

The judgment below is

AFFIRMED.

All the Judges concur.


author: CHARLES M. NICE, Circuit Judge.

text:
    Billy Ray DOZIER v. STATE.
    4 Div. 429.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.

      Robert T. Meadows, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   CHARLES M. NICE, Circuit Judge.

Random contacts made over a bottle of beer are seldom conducive to the establishment of stable employer-employee relationships. This truism is borne out in the case before us.

The indictment charged the appellant, Billy Ray Dozier, with the robbery of Jimmy F. Lawson by taking sixty dollars ($60.00) from his person by violence or by putting him in fear. The Court charged the jury on both robbery and grand larceny and the jury found Dozier guilty of robbery, setting punishment at ten years imprisonment. The trial court fixed punishment in accordance with the verdict.

At about daybreak on September 28, 1975, Jimmy F. Lawson of Blakely, Georgia, stopped in at the Busy Bee Restaurant in Dothan, Houston County, Alabama. He sat in a booth and had just ordered a beer and a sandwich when he noticed the appellant, Billy Ray Dozier, age 23, and struck up a conversation with him.

According to Lawson, Dozier said he would like to have a job for a day or two. Lawson testified that he often hired young men to help him with his part-time, commercial fishing tackle business at his home in Blakely, Georgia, and that one could always find people loafing around the Busy Bee to hire.

Another young man, Robert Charles Pierce, a cousin of the appellant, joined them at the booth and asked for work, also.

After eating their food and drinking two or three beers each, the three got into Lawson s car and drove off on Highway 52 toward Blakely. Lawson was driving.

The appellant and Pierce wore large sun glasses and both looked alike to Lawson.

The trio left Dothan and Highway 52 going toward Columbia. Lawson testified that he became sleepy and asked the appellant to drive for him. After proceeding for awhile, Lawson requested that the appellant stop the car so he could urinate. Lawson got out of the car and was standing by a ditch when, suddenly, one of the two men pushed him down into the ditch. Lawson was “satisfied” that this was the appellant. While Lawson was trying to extricate himself from the ditch, the appellant took his money from his pockets, which amounted to $60.00 less than that which he had spent earlier at the Busy Bee. The other man, Robert Charles Pierce, stood by and watched. One of the two men, Lawson does not know which, said, “We understood you to have $800.00,” to which Lawson replied, “No, ya’ll are mistaken.” Either Dozier or Pierce then said something about Lawson cashing a check.

Lawson testified that he was scared, that he did not know whether the boys might have a gun, and he answered, “Yeah, boys, we don’t want nobody to get hurt. Ya’ll just cool it; I’ll get ya’ll some money.”

They were unsuccessful in getting a check cashed at the first store they tried. After one of the boys suggested that he knew a store that would cash a check, they stopped at Jordan’s Superette, a mile off Highway 84, going into Gordon, and the three of them went in. The appellant then said to Lawson, “You be sure to get the money this time.”

Lawson testified, “I had done began to get scared, I’ll tell you. I did not know what was going to happen.” Lawson asked the lady behind the counter, Margaret Parish, if she would cash a check for $75.00, and she answered, “No, we don’t have the money and don’t know you good enough.” The appellant and Pierce then left the store. The appellant had Lawson’s keys with him, but he did not take Lawson’s car.

Margaret Parish testified that she recognized Billy Ray Dozier as one of the two boys with Mr. Lawson and that he had been living in Gordon, just around the corner from the store, for several years. She said, further, that she “got a little bit leery” the way the appellant and the other two men, Lawson and Pierce, stood around without saying anything. She told one of her customers, “Don’t leave me in here by myself; something is funny.” She also testified that after telling Lawson that she could not cash a check, Dozier and Pierce left.

The District Attorney, Mr. Martin, asked Mrs. Parish the following:

“Q. Mr. Martin: O. K., what did Lawson do?
A. Mr. Lawson asked me, ‘Lady, have you got a telephone?’ Said, T have just been l’obbed.'
Q. That’s the first thing he said?
Mr. Thomas: I object to what he said, your Honor.
Mr. Martin: Yes, it is part of the res gestae.
The Court: Yes, I had overruled the objection to that; go ahead.
A. He said, ‘Lady, have you got a telephone, I have been robbed,’ and ‘Will you call the police.'
Q. And you heard the way he talked?
A. Yes, sir.
Q. And what was his condition?
A. Well, he was real shaky and appeared real scared .”

Sid Batchlor of the Houston County Sheriff’s Department testified that he arrested the appellant shortly before 5:00 P.M. the afternoon of September 28, 1975, and that he had in his pockets the automobile keys which Mr. Lawson identified as his.

The appellant, Billy Ray Dozier, testified that he was in the Busy Bee Cafe on the early morning of September 18, 1975, with his cousin, Robert Charles Pierce, when Mr. Lawson came to their table and asked if he could sit down. The appellant answered, “Sure.” Mr. Lawson bought beer for the three of them and asked the appellant about a woman, to which he replied, “Yeah, I might know.”

Dozier related that while he was driving, Mr. Lawson asked that he stop the car so he could urinate. He stopped, and when he got out a moment later, he found Lawson lying on the ground. Pierce helped him to his feet and they drove on to Gordon.

The appellant further testified that Lawson wanted to stop and cash a check in order to purchase beer and to pay “this woman” that Lawson wanted. When the woman in Jordan’s store refused to cash the check, Dozier testified that he left. He admitted on cross examination that while at the Busy Bee, he was looking for someone to give him a ride to Gordon, and that was all he was interested in. After he reached his destination, he left Mr. Lawson.

The judge charged the jury on both robbery and larceny, and the jury found Dozier guilty of robbery. Thus, the jury has immortalized Jimmy F. Lawson as an authentic robbery victim, a statistic, if you prefer, saying, in effect, that the victim parted with his money by violence and not by cajolery.

The appellant claims error on the part of the trial court in these three aspects:

(1) Insufficient evidence against this appellant;
(2) Wrongful admission of hearsay testimony which was not part of the res gestae;
(3) Wrongful admission of prejudicial testimony.

I

The three essential elements of the offense of robbery are:

(a) Felonious intent;
(b) Force, or putting in fear as a means of effectuating the intent;
(c) And, by that means, a taking and carrying away the property of another from his person or in his presence.

Henderson v. State, 172 Ala. 415, 55 So. 816; Tarver v. State, 53 Ala.App. 661, 303 So.2d 161.

There was sufficient evidence for the jury to find these three elements or robbery although there was some ambiguity in the victim’s testimony as to which of the two people, Dozier or Pierce, sat in the front seat, which drove the car, or which pushed him in the ditch. Nevertheless, there was sufficient evidence for the jury to determine that Dozier either acted alone or in concert with Pierce and was a conspirator.

It is settled law that when, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator; and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. The community of purpose need not be proved by positive testimony. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Stokely v. State, 254 Ala. 534, 49 So.2d 284, wherein the Court said:

“This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act.”

In addition there was corroborative testimony:

Margaret Parish positively identified the appellant as one of the men who came into the store with Lawson on September 28, 1975; Deputy Sheriff Batchlor found the victim’s car keys in the appellant’s pocket, lending further evidence, circumstantial in nature, that appellant was the person with Lawson on this fatal date.

II

The appellant argues that certain testimony was improperly admitted by the Court under the res gestae rule.

Margaret Parish: “Mr. Lawson asked me, said, 'Lady, have you got a telephone?’ Said, ‘I have been robbed.’ ”

Lawson’s statement was made out of the presence of the appellant immediately after the appellant’s departure from the store.

While violence had occurred to Lawson earlier when he was in the ditch and when money was taken from his pockets, he subjectively remained under the apprehension of further violence while at Jordan’s Super-ette: “I had done began to get scared, I’ll tell you . . . .”

We agree with Judge McElroy in 2 McElroy, The Law of Evidence in Alabama (2 ed), Sec. 265.01(2) that reasonable discretion should be vested in the trial judge in making a determination of whether a particular declaration possesses sufficient spontaneity to authorize its admission in evidence. Judge McElroy cites Harrison v. Baker, 260 Ala. 488, 71 So.2d 284.

It would be reasonable to assume that Lawson was under the stress of a nervous excitement and in a state of disorientation and confusion when he uttered the remark to which Margaret Parish testified. Such testimony is admissible as tending to prove the matter asserted. Harrison v. Baker, supra; Williams v. State, 291 Ala. 213, 279 So.2d 478; Nelson v. State, 130 Ala. 83, 30 So. 728; Daniell v. State, 37 Ala.App. 559, 73 So.2d 370.

Here we had a concatenation of events lasting two or three hours and everything constituting the one transaction is admissible as of the res gestae. Shields v. State, 52 Ala.App. 690, 296 So.2d 786, cert. den. 292 Ala. 749, 296 So.2d 793; Jackson v. State, 229 Ala. 48, 155 So. 581.

III

The appellant argues that the Court committed a harmful error in admitting the following testimony:

“Q. You looked at him? [Mr. Lawson]
A. Yes, sir.
Q. Don’t tell what you thought. Just tell the jury what you saw and not what you thought.
A. I said, ‘Well, the man is drunk.’ And I looked up and I seen that he wasn’t.
Q. All right. What did you see?
A. He looked like a scared man to me.
Mr. Thompson: I object to that, your Honor.
The Court: Overruled.”

The appellant contends that such testimony was not material or relevant and that it tended solely to prejudice the appellant and evoke sympathy for the victim.

We do not agree. Such testimony was merely a permissible shorthand rendition of the victim’s appearance and, further, is confirmation of the fact that Lawson was in a state of fear.

The issue thus presented is whether this evidence is sufficient to sustain the verdict. After careful consideration, we are of the opinion that the trial court ruled correctly on appellant’s motion to exclude. Williams v. State, 48 Ala.App. 737, 267 So.2d 526; Zimmerman v. State, 49 Ala.App. 442, 272 So.2d 914; Clay v. State, 52 Ala.App. 272, 291 So.2d 364. At the conclusion of the trial court’s oral charge, the appellant announced “Satisfied.”

We have carefully examined this record as required by Title 15, Sec. 389, Code of Alabama, 1940, and find no error therein.

The foregoing opinion was prepared by CHARLES M. NICE, Circuit Judge, temporarily on duty on the Court pursuant to Subsection (4) Sec. 38, T. 13, Code of Alabama, 1940, as amended; the Court had adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Larry D. NICHOLSON v. STATE.
    4 Div. 459.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Earl V. Johnson, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree. He was convicted of murder in the second degree and his punishment was fixed at 20 years imprisonment in the penitentiary. Prior to arraignment appellant was found to be indigent and the Court appointed experienced counsel to represent him. He pleaded not guilty. After sentence was imposed, he gave notice of appeal and requested a free transcript which request was granted. Trial counsel was appointed to represent him on this 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 Nicholson, alias Larry Donell Nicholson, Alias Larry D. Nicholson, whose name is unknown to the Grand Jury other than as stated, unlawfully, and with malice aforethought, killed Yoncile Nicholson, also known as Yoncile Bonner, by stabbing her with a knife, against the peace and dignity of the State of Alabama.”

The evidence is undisputed that the deceased met her death as a result of a stab wound in her back while she was in bed with one of her young babies. Appellant did not testify and, of course, there was no denial that he stabbed the deceased.

There was no motion to exclude the State’s evidence; there was no motion for a new trial, and no exceptions were reserved to the Court’s oral charge to the jury. There was a request for the affirmative charge but under the evidence in this case this charge was properly refused.

The only question raised on this appeal is whether the proper predicate was laid for the admission into.evidence of a dying declaration made by the deceased just before she died. We think it only necessary to summarize the evidence to show that the trial court properly admitted the dying declaration into evidence and will condense our recital of the facts accordingly.

Voncile Nicholson was divorced from appellant and she moved back home to her mother’s house with her two babies, ages one and two, on June 27 or June 28, 1975, the date of her death. The deceased lived in a housing project in Florala, Alabama, with her mother, Eloise Hobbs Patrick, her stepfather, Officer Patrick of the Florala Police Department, her brother Jerome Lewis, age 10, her cousin, Wydell Milton, age 14, and her sister, Angela Pam Lewis, age 15, and her two babies.

Appellant spent the day of the murder at his ex-wife’s mother’s home with the family. He helped clean fish and they ate supper early in the afternoon as they were going to a carnival. After supper Mrs. Patrick washed dishes and left the dishes and knives on the drainboard to dry. Mrs. Patrick left a newly purchased butcher knife on the counter in the kitchen.

They returned home from the carnival around 10:00 or 10:30 that night. Mrs. Patrick went to her bedroom to lie down for a while before she had to go to Florala to pick up her husband who got off duty at midnight. The deceased went into another bedroom with her two babies to sleep. During this time appellant, Jerome, Wydell and Angela Pam watched television in the living room. Just before midnight Wydell went to Mrs. Patrick’s room to awaken her. She got up and turned on the light in Voncile’s bedroom to tell her that she was leaving to pick up her husband. Yoncile said, “all right” and she left the bedroom door cracked about six inches and left the bedroom light on. At this point she found appellant standing at the door next to the kitchen talking to Voncile, asking her to go over to his mother’s house with him. They were arguing because Voncile did not want to go with appellant.

Mrs. Patrick and Angela Pam left the house. Wydell went to the bathroom across from Voncile’s bedroom. He heard someone coming down the hall and enter Von-cile’s bedroom. Then he heard Larry and Voncile talking and Voncile said she would not go with Larry because her back was hurting. Then he heard Voncile scream, “O.K. O.K., Larry, I’m going.” Wydell then heard someone walk out of the bedroom back up the hall. The screaming had awakened Jerome who was asleep on the couch in the living room. He saw appellant run from the hall out the living room door.

Jerome walked down the hall toward Voncile’s bedroom and met Wydell coming out of the bathroom. They both went into Voncile’s bedroom. Voncile had a knife in her back. She was saying “Help me, help me. I’m dying. Look what Larry has done to me.”

Both Wydell and Jerome started out of the house to get the police but Jerome turned back and went to Voncile’s room and pulled the knife out of her back. He recognized the knife as his mother’s; it was a butcher’s knife and she had not had it long. Voncile died before she got to the hospital as a result of the stab wound from the knife in her back.

Dr. W. D. Potter, a general practitioner at Florala, Alabama, testified that he got a call to come to the emergency room at the hospital and that the call came around 12:20 a. m. on June 28, 1975. That when he observed the deceased in the emergency room, she was already dead and he noticed there was a stab wound in the back and her body was covered with blood.

Mr. James L. Small, an Assistant Toxicologist with the Alabama State Department of Toxicology and Criminal Investigation, testified that he did a postmortem examination on the body of Voncile at the Armstrong Funeral Home in Florala. His qualifications were not questioned or disputed by the defense. He testified that he found one wound located on the left back of the body of the deceased and it was three-fourths inches in length. He examined the body internally to determine what organs were hit by this stab wound. He found a bloody path where the wound passed through the left lung into the esophagus, that is the tube that goes from the mouth to the stomach. He stated that in his opinion death was due to hemorrhage and trauma associated with the wound which penetrated vital organs. This was inflicted by a cutting instrument. He was asked if the cutting instrument that inflicted the wound could have been a butcher knife and he answered, “yes.”

In Shikles v. State, 31 Ala.App. 423, 18 So.2d 412, the Court held:

“No hard and fast general rule can be laid down to control the admissibility of dying declarations. The circumstances of each case must be considered — the condition of the person, as well as what he says in regard to approaching dissolution. Lewis v. State, 231 Ala. 211, 164 So. 92; Parker v. State, 165 Ala. 1, 8, 51 So. 260, 262. The Parker case approvingly quotes Professor Wigmore on the subject: ‘No rule can be laid down. The circumstances of each case will show whether the requisite consciousness existed; and it is a poor policy to disturb the ruling of the trial judge upon the meaning of these circumstances.’ 2 Wigmore on Evidence, p. 1809, Section 1442.
“Nor is it an indispensable prerequisite to admissibility that declarant should state in haec verba that he is in extremis, that there is no hope of life, and that death is imminent, just so the judicial mind is fairly convinced by legally sufficient evidence after a careful consideration of all the circumstances that at the time such declarations were made such was the conviction of deceased. Lewis v. State, supra; Collins v. State, 27 Ala.App. 499, 176 So. 219.
“All the attendant circumstances tending to show the declarant’s state of mind, as his statements, nature of the wounds, his weakness, etc., may be looked to by the trial court in considering the predicate for admissibility. Ragland v. State, 238 Ala. 587, 192 So. 498. And that declarant was under a sense of impending dissolution may be inferred from his apparent condition, such as the nature of his injuries and evident danger. Wilson v. State, 28 Ala.App. 496, 188 So. 274.
“Nor is admissibility controlled by the length of the interval between the declarations and death, but by the declarant’s state of mind and his conviction that death is imminent. Titus v. State, 117 Ala. 16, 23 So. 77; Sowell v. State, 30 Ala.App. 18, 199 So. 900.”

In Marshall v. State, 219 Ala. 83, 121 So. 72, the Supreme Court said:

“We will first consider the declaration testified to by the doctor. Objection was made that it was hearsay. It was subject to that objection, unless it was admissible as a dying declaration. 1 R.C.L. 528. That objection therefore presents the question of its admissibility as a dying declaration. The first inquiry in that connection is whether, at the time the statement was made, deceased was conscious of impending death. The admissibility of such evidence is a question for the trial court, reviewable on appeal, if there is no sufficient evidence on which to admit the declaration as a dying declaration. Gilmer v. State, 181 Ala. 23, 61 So. 377; Justice v. State, 99 Ala. 180, 13 So. 658; Tarver v. State, 137 Ala. 29, 34 So. 627; 30 C.J. 268 (many other citations may be added). An oft-quoted expression from Wigmore on Evidence is to the effect that the circumstances of each case must show whether the requisite consciousness existed, and that it is a poor policy to disturb the ruling of the trial judge upon the meaning of those circumstances. Wigmore on Evidence, p. 1809, Section 1442; Evans v. State, 209 Ala. 563, 96 So. 923; Parker v. State, 165 Ala. 1, 51 So. 260; Parker v. State 10 Ala.App. 53, 65 So. 90; Smith v. State, 16 Ala.App. 47, 75 So. 192.
“It will be noted here that the witness stated, ‘She has got me,’ and then told the doctor it was unnecessary to take him to the hospital. In a few minutes after-wards he also told the witness Brown, ‘She finally got me.’ In the case of Parker v. State, 10 Ala.App. 53, 65 So. 90, supra, the deceased had said that defendant had ‘killed’ him. The Court of Appeals sustained the ruling of the trial court admitting the statement. Such was the substance of the evidence in Adkins v. State, 20 Ala.App. 278, 101 So. 779. In Evans v. State, supra, the statement was T think I am going to die.’ It was held a sufficient predicate. In Parker v. State, 165 Ala. 1, 51 So. 260, supra, the statement was, ‘The wound in my lung will kill me.’ Held sufficient. In Gilmer v. State, supra, this court said in substance that it is not necessary that deceased say in so many words that he is conscious of impending death; but it is sufficient if the judicial mind is convinced by legally sufficient evidence that deceased believed death impending, and held no hope of life. 1 Wharton Cr.Ev. (10th Ed.) 535, 555; Lewis v. State, 178 Ala. 26, 59 So. 577; Gurley v. State, 216 Ala. 342, 113 So. 391. Additional authorities could be cited to the same effect, almost without limit. The words, ‘She has got me,’ in common parlance, may be reasonably interpreted to be the equivalent of the words, ‘She has killed me.’ We think a sufficient predicate was shown for admitting the evidence as a dying declaration.”

In Crowell v. State, 233 Ala. 201, 171 So. 267, the evidence for the State tended to show that Sam Pilato, after being shot, was taken to the hospital, and at the hospital he declared, in the presence of his sons, Sam, Jr., Vince Pilato, and his son-in-law, Frank Damico, that the defendant shot him. Two of these witnesses testified that Sam Pilato stated at the time that, “I am just about gone,” or, “I am half dead.” The Court held that these statements were admissible as a dying declaration.

We hold in this case that the statement of Voncile was properly admitted into evidence as a dying declaration.

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

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: WHITE, Circuit Judge.

text:
    Willie James PORTER v. STATE.
    6 Div. 943.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.

      Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen. and G. Daniel Evans, Asst. Atty. Gen., for the State.
   WHITE, Circuit Judge.

The appellant was charged by an indictment returned by the Grand Jury of Tuscaloosa County, Alabama, with the criminal offense of murder first degree. He was represented by the Public Defender and was tried on March 20 and 21, 1975, which trial resulted in a jury verdict of guilty of murder first degree and punishment of life imprisonment. The trial court then sentenced the appellant in accordance with the jury verdict.

Robert B. Johnson, a state toxicologist, testified that he performed a postmortem examination of the body of the deceased, John W. Thomas, on September 16, 1974, and that in his opinion, Thomas died from shock and hemorrhage associated with a shotgun blast to his right flank.

Betty Steele, Robert Hyche, Barbara Myers and Jo Ann Bankhead each testified for the State and all gave substantially the same version of the events which led to the death of John W. Thomas, which was as follows: They recalled that they, as well as the appellant and Louis Bankhead, were visiting in the living room of Miss Bank-head's three-room house in Northport on the afternoon of September 15, 1974, when John W. Thomas, accompanied by Wayne Sudduth, arrived on the scene. Thomas was driving an automobile which he parked in the street in front of Jo Ann Bankhead’s house before proceeding into her living room. Thomas was intoxicated and was bare chested when he arrived in the presence of these witnesses. Upon entering the Bankhead living room, Thomas approached the appellant and insisted that the appellant pay him a dollar. The appellant handed Thomas a dollar, and Thomas slapped the appellant a couple of times. Thomas then exited through the front door of the house and went to his car. The appellant went from the living room to the bedroom where he got a shotgun and live shell. Jo Ann Bankhead and Barbara Myers followed appellant into the bedroom and tried to stop him from leaving with the shotgun. Appellant, with the shotgun in his hands, went from the bedroom, through the kitchen, out the back door and around the house to the street where he confronted Thomas, who had just gotten into the driver’s seat of his car. Appellant stuck the shotgun into the open window on the passenger’s side of the car and fired it once. Louis Bankhead then approached appellant and took the shotgun from him and carried it back into the Bank-head house. Appellant then left the area before the police or the ambulance arrived.

Adolph South, a detective with the Tuscaloosa Police Department, testified that he, accompanied by the Sheriffs of Tuscaloosa County and Fayette County, and two other police officers went to a small community in Fayette County the next day where he found the appellant. He further testified that appellant ran from these police officers when he first saw them but was apprehended shortly.

Jerry Myers, the husband of Barbara Myers, testified for the appellant that he had known John W. Thomas for eight years and that John W. Thomas had a reputation for being a violent man, and that Thomas generally carried a pocket knife.

The appellant then took the witness stand in his own behalf and related that he and Louis Bankhead had gone to Jo Ann Bank-head’s house together on the afternoon of September 15, 1974. He said that they had been there for about an hour when John W. Thomas arrived and demanded that appellant pay him a dollar. Appellant contended that he handed Thomas a dollar he had just borrowed from Jo Ann Bankhead and that Thomas then kicked a can of beer appellant was drinking, picked the beer can up and drank from it, and then slapped appellant twice. Appellant said that Thomas told him in a low voice, while he was slapping him that he was going to kill him. Appellant stated that Thomas then turned and walked rapidly out of the house and got into his car. Appellant related that he then got a shotgun and shell from the bedroom and followed Thomas to his car where Thomas again threatened to kill him. Appellant stated that Thomas reached for something under the car seat at which time the gun, which was pointed at Thomas’ legs, discharged and shot Thomas in the side.

On cross-examination of the appellant, the following transpired:

“Q. I understand why you came out of the back. My question is, why did you go from the back and run up toward John Thomas’s car instead of running back this way (indicating) in the opposite direction?
“Mr. Burroughs: We object.
“The Court: Well, this is cross-examination.
“Mr. Burroughs: He is asking him for an uncommunicated mental operation.
“The Court: I still overrule your objection.
“Mr. Burroughs: We respectfully except, if your Honor please.
“Mr. Andres: I mean, you did not run in the opposite direction, did you?
“The Witness: It is a possibility, I could have walked out the—
“Q. Just answer my question. You did not run in the opposite direction, did you?
“A. What opposite direction?
“Q. Well, in the opposite direction of John Thomas’s car?
“A. I did not go out the front door and run straight there, no.”

The appellant cites as error the trial court’s overruling of his objection to the State’s question above which called for an uncommunicated mental operation on the part of the appellant. The appellant further insists that the trial court’s ruling was error despite the fact that the appellant never answered the question to which he objected. Evidence of an uncommuni-cated mental operation which is material to the issues at hand is admissible in Alabama. Starr v. Starr, 293 Ala. 204, 301 So.2d 78; Thornton v. State, 55 Ala.App. 462, 316 So.2d 710; Raybon v. State, 55 Ala.App. 143, 313 So.2d 570. This question and its answer, had it been answered, would certainly have been material to the issues of whether or not the appellant entered into the difficulty with Thomas willingly and whether or not the appellant could have retreated and extricated himself from his peril, in regard to his plea of self defense.

The appellant next cites as error a portion of the trial court’s introduction to its oral charge where the court remarked that the case was important “because it is important to the family of the deceased— his lips have been closed by death; a life has been taken; a man is on trial for that. And a crime has been committed against the citizens of Tuscaloosa County, Alabama”. At the close of the trial court’s entire oral charge, the appellant duly excepted to that portion of the charge quoted above and asked that the trial court clarify its remarks through further instructions. The trial court granted appellant’s request for further instructions and instructed the jury that if they were satisfied that the appellant killed in self-defense that no crime had been committed. In the body of the oral charge, the court carefully instructed the jury that the State had the burden of proving, beyond a reasonable doubt, each and every element of some crime encompassed in the indictment before they would be justified in finding the appellant guilty of anything. The jury was carefully instructed about appellant’s being presumed innocent until proven guilty beyond a reasonable doubt. The trial court also instructed the jury with preciseness concerning the law of self-defense in Alabama. In addition, the court emphasized in its oral charge that the appellant was entitled to a fair and impartial trial and that the jury should not allow prejudice against any party or sympathy for any party influence its verdict. When the entire oral charge is examined, it is clear that appellant was not prejudiced by the remarks to which exception was taken. Gosa v. State, 273 Ala. 346, 139 So.2d 321; Wright v. State, 269 Ala. 131, 111 So.2d 596.

We have carefully examined the entire record as required by law and find no error therein.

The foregoing opinion was prepared by Hon. Jerry M. White, Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code of Alabama 1940, (Recompiled 1958); the Court has adopted his opinion as its own.

The judgment below is hereby

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Wash ELLIOTT, alias v. STATE.
    4 Div. 460.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.

      Stephen T. Etheredge, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Jack Curtis, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The indictment charged Wash Elliott with the grand larceny of one 1973 Volkswagen, of the value of $2500.00, the property of Hamac Corporation, in the possession of James Thomas Willoughby, Jr.

The jury found the appellant “guilty of grand larceny, as charged in the indictment,” and judgment set sentence at ten years imprisonment.

James Willoughby testified that on August 26, 1975, he was Superintendent of Education for the Houston County schools. He stated that on this date his automobile was being repaired, and that the “Hamac Corporation” had loaned to him a bright orange Volkswagen for his use during this time. He further stated that on the late afternoon of August 26, 1975, he had turned over possession of the vehicle to his son, Jimmy, to go to work, and that his son had driven it to the Sears Roebuck parking lot where he was employed.

James Willoughby, Jr., testified that on August 26, 1975, he drove a bright orange Volkswagen to the Sears Roebuck parking lot and left it near the Penny’s store section of the parking lot, around 5:00 that afternoon.

When he returned at 9:15 p. m., the car was missing. He stated that he had taken the keys to the ignition and placed them under a rubber floor mat inside the vehicle.

Jimmy Matthews testified that on. August 27, 1976, he was an investigator for the Dothan Police Department. He testified that he received a theft report involving a 1973 orange Volkswagen, bearing Alabama 1975 tag, No. 38-17009, with the vehicle identification number of 1132030489, and that he put out an all-points bulletin concerning this missing vehicle.

Roosevelt Patrick, Jr., testified that he was employed on August 29, 1975, at the Union 76 Station on Montana Street in Do-than, Houston County. He testified that on this date, which was a Friday, Wash Elliott brought a 1973 bright orange Volkswagen to his bake shop and asked him to paint it. He stated that the appellant asked him to paint it either “light blue or light green.” He stated that the appellant told him he would pay for it when he picked it up, that he was to pay him $100.00 for the paint job.

He further stated that the police officers came a day or two later and picked up the vehicle, advising him that it was a stolen car.

Johnny Bo wick testified that on August 29, 1975, he was employed at the Union 76 Station on Montana Street in Dothan, Alabama, and that they operated a bake shop at this station. He stated that he was present when the appellant brought in a 1973 orange Volkswagen with a beige interior, that appellant talked with him about having it painted. He stated that appellant told him he would pay him when he picked the car up, that they agreed on a $100.00 price, and that Roosevelt Patrick, Jr., was there when he talked with the appellant. He stated that the vehicle was never painted because a day or two later the police officers came by and picked up the vehicle.

Robert Quattlebaum testified that on August 26, 1975, he worked at Hamac Volkswagen in Dothan, Alabama. He testified that this company maintained a service department and loaned out cars when they were working on the vehicles for different customers. He stated that on this date a bright orange 1973 Volkswagen with the vehicle number 1132030489 was loaned to Mr. James Willoughby, Sr., and that its value was between $2300.00 and $2400.00. He stated that this vehicle was subsequently returned to his service department by the Dothan Police Department.

James Wachob testified that he was an investigator for the Police Department in Dothan. On September 2, 1975, he went to the Union 76 Station on Montana Street in the company of Sergeant Harold Locke. At this time he talked with Roosevelt Patrick, Jr., and examined an orange 1973 Volkswagen which he found there and determined the vehicle identification number to be 1132030489, and that this was the missing Volkswagen which had been reported to his department by Mr. Willoughby. He stated further, after the jury was excluded in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, that he and his partner had given the appellant a full Miranda warning, and also the record discloses a proper preMiranda predicate, showing that there were no threats, intimidation, coercion, or inducement made to the appellant for a statement.

Officer Wachob stated that the appellant then gave him a statement in which he indicated that he had picked up the Volkswagen somewhere in the vicinity of Sears. He said that the appellant also told him that it was parked “somewhere close to the Penny’s parking lot,” [R. 53] and that the automobile was an orange Volkswagen. He further stated that the appellant told him the owner had said he could use the car.

Appellant made a motion to exclude the evidence, stating that the State failed to make out a prima facie case. This was overruled.

Wash Elliott testified that he had been convicted four times of burglary in Georgia, and once in Florida for breaking and entering. He also testified that he had two robbery convictions in Alabama. He stated that in late August, 1975, he had gone to Dothan from near Panama City where he had talked with a man named Jerry Lee Miller. He said that Miller gave him two Marihuana joints to go over to a church located in the Bottom section of Dothan and pick up an automobile, which was orange in color, and drive it to the Union 76 Station on Montana Street. He testified that he had attempted to locate Miller, but that he had apparently gone back to Florida. He testified that he had no relatives in Dothan. He testified that he took the officers out on Highway 231 to show them the church where he had picked up the car. He further testified that the officers had threatened him, saying that they would use a rifle butt on him, that they had slapped him “up side the head” in order to get a statement from him. He stated that he only had a third grade education.

On cross-examination, the appellant admitted that the officers had read to him the Miranda warning, but that he signed only because they were threatening to beat him. He stated that there were some rifles up on the gun rack in the room where he signed the statement.

The State then called Officer James Wa-chob in rebuttal. He testified that the appellant’s statement was given in the office of the Detective Bureau at Police Headquarters. He further testified that there were no arms of any kind in the room, and that there were no rifles on any wall. He stated that the appellant’s statement was given after the Miranda warning was given by Sergeant Locke, and that they only talked with him about thirty or forty-five minutes. He further testified that the appellant was allowed to write a letter, and that at no time did anyone ever threaten or abuse the appellant in any way.

I

Just prior to trial, the appellant made an oral motion to quash the venire, averring that there had been systematic exclusions of blacks from the jury panel in this cause, stating that of the eighty jurors summoned, only three were black. The oral motion also indicated that of the thirty jurors from which the jury was to be selected, only two are black.

In denying this motion, the trial court took judicial knowledge of the racial composition of the jury box in the county, and stated that at least twenty-five percent of the names in the jury box in Houston County were black, and that there were six blacks on the list from which the jury was to be selected.

We are of the opinion that there was here an insufficient showing of a significant discrepancy, as to the alleged racial composition, and moreover there was no evidence whatsoever that there was any purposeful discrimination, which is a constitutional requirement. There was no evidence offered to show that different standards of qualification were applied by the jury commissioners to the black community, or that the same proportion of blacks qualified under the standards being administered by the jury commissioners.

In brief, the appellant failed to offer evidence to indicate that prospective jurors were selected on the basis of anything other than their individual qualifications. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.

In White v. State, 48 Ala.App. 111, 262 So.2d 313, we stated:

“The law is clear that a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his own race on the jury which tries him, nor on the jury roll from which grand and petit jurors are selected. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839.”

Moreover, in Butler v. State, 285 Ala. 387, 232 So.2d 631, our Supreme Court pointed out:

“The burden of proof is on the person attacking selection procedure to show ‘the existence of purposeful discrimination’ by the exclusion of Negroes on account of race from jury participation . Purposeful discrimination may not be assumed, or merely asserted. It must be proved.” [Citations omitted]

Both this Court and the Supreme Court of this State have on several occasions affirmed trial courts’ rulings on this identical issue, often in situations where the defendant had traveled much farther toward meeting his burden of proving purposeful discrimination than has appellant in this cause. Error is not here shown. Butler, supra; White, supra; Acoff v. State, 50 Ala.App. 206, 278 So.2d 210; Bryant v. State, 49 Ala.App. 359, 272 So.2d 286; Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666; Johnson v. State, Ala.App., 335 So.2d 663, 1976; Harris v. State, Ala., - So.2d -, 1976; Giddens v. State, 58 Ala.Cr.App. -, 333 So.2d 615, 1976.

Clearly the trial court’s ruling on the motion to quash is correct.

II

The appellant next contends that the statement given Officers Wachob and Locke should not have been admitted at trial because it was involuntary and coerced by threats and intimidation.

We do not agree.

The record here discloses a full hearing outside the presence of the jury by the trial judge on this issue, and the trial court determined that there was a proper Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, warning, and a full preMiranda predicate.

We are of the opinion that the trial judge’s conclusion that the accused’s statement was voluntary was adequately supported by the facts. Shewey v. State, 48 Ala.App. 730, 267 So.2d 520; Bills v. State, 49 Ala.App. 726, 275 So.2d 706, and authorities therein cited.

We are of the opinion that the trial court properly determined the voluntary nature of the appellant’s statement, and as such, the same was properly admitted at trial. Retowsky v. State, Ala.App., 333 So.2d 193, and authorities therein cited.

We have carefully examined this record, as required by law, and find same to be free from error. The judgment of the trial court is hereby

AFFIRMED.

All the Judges concur.