text:
    John Alvin LEE, alias John Ray Lee, alias John Lee v. STATE.
    6 Div. 856.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.
    Robert R. Bryan, Birmingham,- for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for appellee.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

This appeal is from a judgment denying a petition for writ of error coram nobis. The case is a sequel to Lee v. State, 51 Ala.App. 332, 285 So.2d 495, cert. denied 291 Ala. 787, 285 So.2d 500, in which there was an affirmance of a conviction of murder in the second degree and a sentence of ten years imprisonment in the penitentiary in a case in which appellant was charged with murder in the first degree. A correct understanding of the summary of the evidence, the principles of law announced and the conclusions of the court is essential to a correct determination in this case, but so as not to unnecessarily lengthen this opinion, we adopt the opinion in the basic case by reference rather than by incorporation.

The coram nobis petition alleges that there was such a conflict between the interest of petitioner and the interest of another person who had been indicted for the same crime that petitioner’s counsel, who also represented the other defendant, could not adequately represent petitioner on the trial for murder and that in such circumstance counsel’s defense of defendant-petitioner on the trial deprived him of his right to counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. The pioneer case relative to the conflict of interest portion of the right to counsel field of constitutional law is Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 2d 680 (1942), which we obligatorily and cheerfully follow.

In Glasser, Glasser had retained counsel prior to the commencement of the trial. A codefendant Kretske had retained another attorney, but the other attorney was not available at the commencement of the trial. The trial court appointed retained counsel for Glasser to represent the codefendant whose attorney was not available. Glasser made an objection, stating that he “would like to have my own lawyer representing me in court.” The court then stated to the partner or associate of the retained counsel for Kretske that he would have to stay in the case until Kretske obtained a lawyer “if he isn’t satisfied with you,” and stated to Kretske that if he wasn’t satisfied with the partner or associate of his retained counsel, “you will have to hire another lawyer. We will proceed with the selection of the jury now.” Kretske and Glas-ser’s lawyer then made it known to the court that Glasser’s lawyer would represent Kretske also. During this time “Glasser remained silent,” and Glasser’s attorney represented him and Kretske throughout the trial. The Supreme Court concluded that the conduct of counsel retained by Glasser and imposed upon Kretske, in failing to undertake cross-examination of one of the witnesses for the prosecution and to object to certain testimony as being inadmissible was influenced by a desire to protect Kretske. The Court further held that “Clearly the statements were damaging.” It was further stated:

“We hold that the court thereby denied Glasser his right to have the effective assistance of counsel, guaranteed by the Sixth Amendment. This error requires that the verdict be set aside and a new trial ordered as to Glasser.”

Glasser himself was an experienced lawyer. Even so, it was held that he had not waived his Sixth Amendment right to counsel.

Glasser v. United States and its satellites are sufficiently related in principle to this case for us to give painstaking consideration to the position taken by petitioner-appellant.

On the coram nobis hearing, according to testimony of petitioner, petitioner’s former wife (Alice Faye Lee), who had also been indicted for the same murder, and their daughter, Katherine Marie (Kitty) Lee, they went to the decedent’s apartment, seeking him by reason of his molestation of Kitty, then twelve years of age. Both Kitty and her mother testified that the man had run his hand up under the dress of the little girl and touched the private part of her body. This they reported to petitioner-appellant, the girl’s father. Kitty, who testified on the basic case on the call of the State, had changed her testimony to some extent. She made it clear on the coram nobis hearing that she did not consider that she gave the jury the full truth, that she was deterred to some extent from doing so by reason of her fear of injuring her mother in her case, that, though she did not see the shooting, she was convinced that her father did not know that her mother had the pistol at the time she left the automobile and entered the apartment of the decedent. Mrs. Lee testified on the coram nobis hearing that she killed Mr. Walter, the alleged victim of the murder, that she shot him twice. She had given a detailed written statement to the law enforcement officers upon her arrest a few days after the homicide, in which she had to a great extent exonerated petitioner-appellant of complicity in the crime. Soon after the commission of the alleged offense, petitioner-appellant called Mr. Arthur Hanes, Sr., and employed him. He was also employed to represent Mrs. Lee. Mr. and Mrs. Lee testified in effect that both wished to take the stand and testify in Mr. Lee’s behalf on the trial.

The two were separately indicted. After Mr. Lee’s conviction and seemingly at about the time his conviction was finally affirmed, Mrs. Lee pleaded guilty to murder in the second degree and was sentenced to five years imprisonment in the penitentiary, and she was placed on probation.

From the time, or about the time, of the conviction of petitioner-appellant, Mr. Hanes’ services as attorney for each of them were discontinued. Representing petitioner-appellant on his appeal in the basic case was another attorney. Representing Mrs. Lee on her arraignment, her plea of guilty and her application for probation was the same attorney, not Mr. Hanes.

Petitioner-appellant was convicted on September 25, 1972. The conviction was affirmed on appeal on August 14, 1973, rehearing was denied on September 25, 1973, and petition for certiorari was denied November 15, 1973. The petition for writ of error coram nobis was filed February 18, 1974. The petition was overruled on September 13, 1974.

There was no contention on the hearing that Mr. Hanes was not acting in good faith in representing both Mr. and Mrs. Lee. As stated by counsel for petitioner-appellant, in a question addressed to Mr. Hanes:

. . I’m not contending you were not well prepared or you did not act in good faith.”

No question is presented as to the outstanding ability and extraordinary experience of Mr. Hanes. The contention is solely a legal one, that is, that the representation of Mrs. Lee prevented Mr. Hanes from fully protecting the rights of Mr. Lee.

Both Mr. and Mrs. Lee indicated by their .testimony that they had made it clear to Mr. Hanes that they both wanted to testify on the trial. They indicated that Mr. Hanes had indicated to them that such testimony would not be for the best interest of Mr. Lee and would be harmful to Mrs. Lee in her case. Though the contention of each is clear, the testimony of neither is definite enough to make it clear and convincing that any issue was ever made between either of them and Mr. Hanes, that either of them ever positively requested or demanded that he or she be allowed to testify.

Mr. Hanes testified in effect that his representation of Mrs. Lee never at any time caused him to do or say anything that he would not have done or said or caused him to omit to do or say anything that he would not have omitted if he had not been representing Mrs. Lee. He said that at times the question was asked by one or both of them as to whether he or she would testify, but it was never in the form of a request or a demand, but more as a matter of inquiry. With particular reference to whether they expressed a desire to testify, he said:

“No, sir. It was more of a question should I? Do you think I ought to do it? I said, John, let’s wait. Let’s go on —let’s see what else they put on. There was no argument, no demanding, no me saying you’ve got to keep your mouth shut, you’ve got to acquiesce in it, you’ve got to consent to it. He left that to me, after all, people would be foolish to go hire a lawyer and not listen to them.”

As stated above, Kitty Lee changed her testimony on the coram nobis proceeding from what it had been on the trial of the case and to some extent from a previous affidavit that she had made to law enforcement officers soon after the homicide, at which interview Mr. Hanes as counsel for Mr. and Mrs. Lee was present. It should be noted also that the testimony of Mrs. Lee on the hearing of the coram nobis petition is considerably different from the statement she made to the police officers after her arrest. In her statement to the police officers, she said that when they confronted Mr. Walter at his apartment:

“. . . [H]e grabbed me. When he grabbed me, I got the gun out of my purse. Johnny hollered at the man and said take your hands off her. Johnny was trying to pull me back away from the man. I don’t know if the man saw the gun, I doubt if Johnny even saw the gun or the man. The guy kept wrestling with me, I don’t know if he saw the gun and was trying to get it or was trying to pull me away from Johnny. The gun went off and I was trying to back away, the man still had my arm with his other hand, he clutched at his stomach. I didn’t see any blood, so I really didn't know if the shot had hit him or not. The man made a new attempt to pull me back again at the same time Johnny was trying to pull me backwards. The gun went off again. As the man was pulling at me again, he said goddam you and when the gun went off the second time, I know it hit the man then. . . .”
(Emphasis supplied)

On the hearing of the Coram Nobis Petition, she testified:

“Johnny said let’s go and get the police and the man said you son-of-a-bitches are not going anywhere. Then he grabbed for me and I pulled the gun out and shot him once in the stomach. He kept coming at me and I shot him again in the temple.” (Emphasis supplied).

We believe that we are not overlooking any authoritative cases on the subject of whether the constitutional right to counsel is impaired by reason of an attorney representing more than one jointly or separately indicted alleged criminal. We have considered Bell v. State of Alabama, 367 F.2d 243, (Sth Cir. 1966), cited by appellant, in support of the statement found in Williams v. Beto, 3S4 F.2d 698 (5th Cir. 1966) as follows:

“It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.”

Counsel underscores in the preceding quotation “or the purported representation was only perfunctory.” We think the representation here was not perfunctory only.

In United States v. Pinc, 452 F.2d 507 (5th Cir. 1971), the court held that a defendant was denied his Sixth Amendment rights. Counsel for defendant had also been counsel for defendant’s wife. The wife had been indicted jointly with defendant. Her case was severed before the trial of defendant. The question then arose whether defendant’s wife should be called by defense counsel to testify for the defense. Counsel contended that, because of his previous representation of defendant’s wife and his receipt of confidential disclosures from her during such period, he was ethically precluded from questioning her. He was not allowed to withdraw his representation of defendant. It was held that this constituted “a denial of effective counsel in violation of defendant’s sixth amendment rights.”

To some extent Pine is like this case, but there are distinguishing differences. No contention is made in this case that Mr. Hanes was ethically precluded from calling Mrs. Lee as a witness. The contention is strongly to the contrary, that he should have called her. In Pine it is stated, “We have no doubt that Mrs. Pine’s affirmance of her previous confession under oath at trial would have significantly added to Mr. Pine’s defense in this cause. Prejudice thus flowed from defense counsel’s inability to elicit such an affirmance.” No such statement can be made in this case. It was not merely doubtful that the testimony would help, but counsel had a strong conviction that Mrs. Lee’s testimony would not hep Mr. Lee. One reason, made clear by counsel, was that he believed that testimony by Mrs. Lee or Mr. Lee would furnish a motive for the killing, that the testimony of the State had not provided any motive, that there was an excellent chance of defendant’s acquittal when the State rested its case. It is clear that he did not see a good chance of an acquittal by placing Mrs. Lee or Mr. Lee on the stand as witnesses. There would have been much in their testimony to have evoked sympathy from the jury, and in fact admiration on the part of some jurors we must acknowledge, that they would go armed to the apartment of a man who had abused their daughter. On the other hand, counsel knew that such circumstance would not constitute a legal defense either to murder in the first degree or murder in the second degree, on the part of either the person who went armed to decedent’s house to avenge the injury to their daughter, or the other parent who accompanied the one with a pistol. Furthermore, counsel knew (I) that the testimony of the mother tending to exonerate the father as to this particular matter would have been viewed with great suspicion, which would have most likely redounded to the injury of the defendant and (2) testimony of the defendant placing the blame on the mother of the child would, even if true, been looked upon, by some jurors at least, as reprehensible, which of itself would have hurt the defendant. In this connection, it is significant that in the statement Mrs. Lee made to the police officers she said the “gun went off,” while in her testimony on the coram nobis hearing she said that she “pulled” the pistol and shot the decedent twice. Clearly she was not as exonerative of Mr. Lee in the statement she had given to the police officers, with which counsel was acquainted, as her evidence on the cor-am nobis hearing indicates, with which counsel was not acquainted.

As to the testimony of Mrs. Lee, of which petitioner says he was deprived by reason of a conflict of interest on the part of his counsel, we are asked to say in effect that her counsel retained jointly by her and Mr. Lee, refused to allow her to testify by reason of his loyalty to her, but that if she had had independent counsel with undivided loyalty to her, he would have allowed her to testify. We do not follow this line of thought. True it is that she could have testified, after being properly advised by the court, even though her lawyer advised her to the contrary, but we cannot believe that under the circumstances of this case, if she had had separate counsel, she would have testified. It is clear to us that in the light of all the information her counsel had on the subject at that time it was not for the best interest of Mr. Lee for her to testify. In addition, as her counsel explained on the coram nob-is hearing, protection of her did not actually enter into considerations by her counsel as to placing her on the witness stand. As he stated, the prosecution had the benefit of everything that he understood that she would say, this by her sworn statements as to what occurred.

As to the contention that counsel’s joint representation prevented him from calling defendant as a witness, we note particularly what the trial court in the coram nobis case said:

“There was no serious contention that petitioner himself insisted on taking the witness stand and was overruled by his lawyer.”

The trial judge patiently conducted the hearing. Notwithstanding the coloring of the testimony, chameleonlike in many respects, when compared with what had been said years before, the trial judge was in a much better position than we to get to the truth. He concluded:

“After hearing all of the evidence on the petition for error coram nobis and studying the transcript of the trial in chief, I am convinced that the claims of petitioner are without merit and that the petition should be denied.”

We do not disagree.

Although the principle set forth in Glasses supra, has not been limited to cases in which there were joint trials of two or more indigent defendants represented by appointed counsel, it is less difficult to find an infringement of one’s Sixth Amendment right in such cases than in those where the parties, sui juris, have retained their own counsel and are not being jointly tried. As observed in United States v. Bell, 165 U.S.App.D.C. 146, 506 F.2d 207, 225 (1974):

“ . . . Since Cardwell did not stand trial, the usual spectre of injury — from inconsistent intrial courses of action for multiple clients — could not possibly materialize. . . . ”

In United States v. McCord, 166 U.S.App. D.C. 1, 509 F.2d 334, 351 (1974), cert. denied 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed. 2d 87, in which the Court examined and determined adversely to defendant his contention that he did not have effective assistance of counsel by reason of alleged greater loyalty to another than to defendant, it was stated:

“ . . . This claim of ineffective assistance is generically different from the usual claim made in this Court which generally consists of an indigent defendant, court-appointed counsel and an allegation of incompetence. . . . ”

We are also of the opinion that even though petitioner-appellant was not learned in the law, as was his counsel, and that he would not have been as aware in general of the complexities that might arise from representation by single counsel of two or more parties, he did from a practical standpoint understand them well enough for him to have taken positive action to have obtained that which he now says was his right. As to his consideration of Mrs. Lee’s testifying, his testimony on the cor-am nobis hearing is partly as follows:

“Q. I will ask you whether or not either at the time of your trial or before then, there was any discussion in your presence by Mr. Hanes concerning whether or not Alice Lee should testify in your behalf at your trial ?
“A. Yes. There was quite a bit of discussion about it.
“Q. All right. Was it before the trial, during the trial, or both ?
“A. Both.
“Q. The conversations concerning this before the trial; where were they held?
■ “A. At various places, in the Courtroom, in his office, different places.
“Q. And what . . . ”

Within less than a year, in at least two cases, the United States Court of Appeals, Fifth Circuit, has considered the question of waiver of the Sixth Amendment right as applied to counsel’s representation of two or more clients with conflicting interests. In Foxworth v. Wainwright, 516 F. 2d 1072, n. 17 (5th Cir. 1975), the court, speaking through Judge Ainsworth, said:

“There is no indication of whether, at the time of his appointment, counsel made any objection to representing three of the defendants jointly. The record reveals no motion to withdraw at trial. In any event absence of an objection on the part of counsel would not necessarily show that no conflict of interest existed. For the same reasons, and also because Foxworth was a minor at the time of trial, the absence of an objection or motion to withdraw did not constitute a waiver of his right to effective assistance of counsel. . . . ” (Emphasis supplied)

In United States v. Garcia, 517 F.2d 272, (5th Cir. 1975), the trial court had refused to allow multiple defendants to be represented by attorneys retained by them, by reason of their simultaneous representation of other unindicted persons, some of whom were potential witnesses against the defendants. For the court on appeal, Judge Gewin said:

“ . . . We are fully conscious of the serious and delicate nature of the issue presented. A resolution of the problem requires a cautious and sensitive consideration and balancing of individual constitutional protections, public policy arid public interest in the administration of justice, and basic concepts of fundamental fairness. While we remain wary of the hazards of potential conflicts of interest in this case, we coriclude that even should such conflicts exist, the defendants enjoy the right to knowingly and intelligently waive any disqualification noted by the district court. Accordingly, we remand to that court for a determination as to whether the appellants in this case wish to make such waiver in accordance with the principles herein delineated.”

It is understandable that no pre-trial inquiry was made in this case and that no conflict of interest problem was presented until there was final disposition of both murder cases. Whatever potential conflict of interest existed theretofore was outweighed by the natural joint interest the father and mother had in their abused daughter, which they had shown by their conduct at the time of the crime involved and which they can be expected to have, not only in the particular child but also in all their children, as long as they live. In that interest they were then, and likely will continue to be, united. The same children for whom the mother expressly and eloquently pleads, in some of her testimony on coram nobis in asking that their father be released from the penitentiary, needed a mother, as well as a father, at the time of the homicide trial of petitioner-appellant. As to that there was no conflict, and reluctant would anyone have been, particularly the father, to do anything to deprive them of her. Both of the accused knew, certainly appellant knew, that they did not have to employ the same attorney. It is obvious that both wanted Mr. Hanes to represent them. This was their right under the same guaranty of the Sixth Amendment as is the right appellant contends he was denied.

Varying circumstances and conditions of parties lead to different conclusions on the question whether one, has voluntarily, knowingly and intelligently taken a particular course of action. Worthy of major consideration are the relative reasonableness or unreasonableness of the course pursued, the age and condition and apparent intelligence of the parties involved, and the hazard or undesirability of pursuing a different course. All of these, we think, weigh heavily, if not conclusively, against appellant.

The record, particularly the testimony of Mrs. Lee, shows that appellant, nearly forty years of age at the time of trial, the father of several children by Mrs. Lee, was extraordinarily capable, to the point of sophistication and magnanimity. We are fully persuaded that he knew what was involved in the matter of representation by Mr. Hanes of both Mr. and Mrs. Lee. He voluntarily elected to do that which many other red-blooded men would have done under the same circumstances, point no finger at Mrs. Lee and decline to allow her to extricate him from a predicament as to which under all the evidence he to some extent was a responsible party. We admire him for it.

The judgment of the trial court 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.

CATES, P. J., concurred in result only.


source: Caselaw Access Project

author: MERRILL, Justice.

license: Public Domain

text:
    In re John Alvin LEE v. STATE. Ex parte John Alvin Lee.
    SC 1739.
    Supreme Court of Alabama.
    March 19, 1976.
    Robert R. Bryan, Birmingham, for petitioner.
    None for the State.
   MERRILL, Justice.

Petition of John Alvin Lee for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Lee v. State, 57 Ala.App. —, 328 So.2d 617.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    Ralph WORKS, alias v. STATE.
    7 Div. 400.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      William D. Hudson, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Appellant was indicted under Title 14, § 30, Code of Alabama 1940, for threatening to burn the house of Helen Bailey. He entered a guilty plea and was sentenced to a term of two years imprisonment, to run concurrently with a sentence in another case, and was given credit for time spent in jail awaiting trial.

I

The appellant contends that Title 14, § 30, encompasses rights protected by the First Amendment to the Constitution of the United States and, therefore, is invalid. He likewise contends that a threat to commit a crime cannot constitute a crime and that the conduct prohibited by § 30, supra, must constitute a clear and present danger in order to be considered outside the constitutionally protected area of the First Amendment.

We have reviewed the cases cited in brief by appellant and do not find them to be controlling in the case here before us.

A classic example of where a threat constitutes a criminal offense is in the case of a threat against the life of the President of the United States, 18 U.S.C. § 871(a). The United States Court of Appeals for the District of Columbia, in short order, disposed of an appellant’s contention that prosecution for making such a threat violated the appellant’s first amendment right of free speech. That decision was rendered by Chief Justice Warren E. Burger, then Circuit Judge, in Watts v. United States, 131 U.S.App.D.C. 125, 402 F.2d 676 (1968). Also see: Roy v. United States, 416 F.2d 874 (9th Cir. 1969).

The United States Supreme Court reversed the holding in Watts in 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664, on the ground that the words used by the appellant there did not constitute a threat, they being made in a discussion concerning the military draft which in pertinent part was as follows:

“ ‘. . . If they ever make me carry a rifle the first man I want to get in my sights is L. B. J. . . . ’ ”

The Supreme Court went on to state, however, that the statute was constitutional on its face. The Court further stated:

“. . . Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.”

While the statute in the instant case does not have a compelling national interest supporting it, nevertheless the principle is the same. Whether the threat be against the life of a president, or to burn the house of an ordinary citizen, the protection of the First Amendment does not extend to such conduct. The United States Supreme Court in Watts, supra, likewise covered the argument concerning willfulness.

The appellant contends that as a general rule, a threat to commit a crime is not a criminal offense. This is true, absent a specific statute making a threat an offense, as is the case here. Our Legislature has not enacted a general “threat” statute as it has in the case of “attempts” (Title 14, § 42), however, it has passed numerous specific statutes making threats illegal under certain circumstances.

One such instance universally recognized as being a valid constitutional exercise of legislative authority, is found in statutes making blackmail a criminal offense. The essence of the offense of blackmail is the threat. Title 14, §§ 49 and 50. See also sections dealing with: sending threatening letters, Title 14, §§ 12 and 13; threatening to destroy property, Title 14, § 115(1); threats to use a deadly weapon on another, Title 14, § 36; use of threats to prevent a person from engaging in a lawful occupation, Title 14, § 57; and threatening telephone calls, Act No. 587, Acts of Alabama 1963, p. 1284, approved September 16, 1963, (Title 48, § 417(3), Code Recompiled, 1973 Cumulative Supplement). Also see: 58 A.L.R.3d 522-537 as to terroristic threats.

II

The record affirmatively shows a full and complete colloquy between the court and the appellant which we find to be in complete compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L. Ed.2d 747 (1970).

Affirmed.

All the Judges concur.


author: FAULKNER, Justice.

text:
    In re Ralph WORKS v. STATE. Ex parte Ralph Works.
    SC 1719.
    Supreme Court of Alabama.
    March 19, 1976.
    William D. Hudson, Gadsden, for petitioner.
    None for the State.
   FAULKNER, Justice.

Petition of Ralph Works for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Works v. State, 57 Ala.App. -, 328 So.2d 624.

WRIT DENIED.

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


author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. PER CURIAM.

text:
    Larry Glenn COLLIER v. STATE.
    6 Div. 940.
    Court of Criminal Appeals of Alabama.
    Nov. 18, 1975.
    Rehearing Denied Jan. 20, 1976.

      James F. Berry and Hayden R. Battles, Cullman, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent at nisi prius and on this appeal, was convicted of first degree murder. The jury fixed punishment at life imprisonment.

The victim of the homicide was Harold Eather Brown, who was the father-in-law of defendant. The homicide was effected by the use of a semi-automatic rifle fired in the living room of deceased at his home in Cullman County.

It is undisputed and the evidence is ample that at the time defendant and his pregnant wife, together with deceased and his wife and children, all occupied the same dwelling house as their home. Each family shared some of the living expenses; all had access to the living room where the homicide occurred.

The evidence indicates that the homicide victim on occasions consumed alcoholic beverages to the extent of becoming inebriated, and when in that condition, was prone to be violent and abusive of his family, including his own wife and defendant.

It further appears that on or near the day of the slaying, defendant had procured possession of the rifle used in the slaying and brought it to their home. He contended that he was going hunting, but there was other evidence to support an inference that he brought it to their home for use on his father-in-law in self-defense.

Omitting reference to much evidence of fussing, threats and abuse emanating from family contacts when defendant was drunk, we now refer to evidence as to what happened at the time of the slaying.

It appears that defendant placed the rifle just inside the living room while some members of the family went outside for one of them to use a rest room. Defendant contends that the father-in-law, Brown, was drunk and lying on a couch when he began his abusive tantrum and started in the direction of the rifle, and kept coming, making threats. Then defendant contends he grabbed the rifle and fired several shots at his father-in-law in self-defense. One or more of the rifle bullets killed him. There was no eyidence that defendant was the aggressor or provoked the advance toward the gun and defendant.

Generally, as said in Naugher v. State, 105 Ala. 26, 17 So. 24, there are three elements of self-defense. It must appear, first, that at the time there was a necessity to take life, or that the circumstances were such as to create in the mind of the defendant a reasonable belief that it was necessary in order to save life or to prevent grievous bodily harm; second, that there was no reasonable mode of retreat or escape; and, third, it must not appear that the defendant provoked or was at fault in bringing on the difficulty.

But when it is shown, as here, that there was no duty to retreat for that the homicide occurred in his own home, the element of retreat is eliminated. Usrey v. State, 54 Ala.App. 448, 309 So.2d 485(3) cert. den. Usrey v. State, ex rel. Atty. Gen., 293 Ala. 776, 309 So.2d 489. But the plea of self-defense is not available to defendant if he provokes or was at fault in bringing on the difficulty.

The trial court refused appellant-defendant’s written charge, approved in Naugher, supra, which we quote as follows:

“The Court charges you that the law does not require one who is assailed in his own dwelling to retreat from, but the law permits him, and says that it is his right, to stand his ground and kill his assailant if it necessary so to do to save his life, or to protect himself from great bodily harm, provided he was without fault in bringing on the difficulty; and in this case the Court charges the jury that if they believe from the evidence that the deceased so acted as to create in the mind of defendant reasonable belief that he himself or any member of his family was in danger of life or sustaining great bodily harm, at the hands of the deceased, then the defendant, under the law, had a right to shoot deceased and take his life, if such shooting was necessary to protect his own life, or that of any member of his family, from sustaining great bodily harm at the hands of the deceased.”

It is to be noted that the first clause of the charge contains a correct statement of the law as to retreat when the defendant is assailed in his own home as the evidence shows to-be undisputed fact.

The third element, supra, (freedom from fault) likewise was not a factor for the reason the evidence fails to show that defendant was at fault in provoking or bringing on the difficulty. The burden to show this rested on the prosecution.

It further appears that the trial court orally charged the jury on the duty to retreat. This duty was not applicable in the instant case due to the fact that the difficulty occurred in defendant’s home, even though it was also deceased’s home. The court misapplied the law in its charge to the jury.

The last part of the refused charge is predicated on element one, supra, and was a correct statement of the applicable law of self-defense. The other two elements were not involved in this plea of self-defense for the reasons we have pointed out. Usrey, supra.

We hold that in the light of Naugher, supra, the trial court committed reversible error in refusing the written charge.

The judgment is reversed and the cause is remanded.

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.

Reversed and remanded.

All the Judges concur.

ON REHEARING

PER CURIAM.

The refused charge mentioned in the opinion, a basis of the court’s error, asserts that the law permits the assailed defendant to protect not only himself, but any member of his family from danger to his life or the sustention of great bodily harm at the hands of the deceased. We fail to find in the court’s oral charge that such protection was extended to any member of deceased’s family occupying the home. Such protection appears in the charge approved in Naugher, supra.

In our opinion we did not advert to refused charge 11, as follows:

“The Court charges you that if the jury believes from the evidence that the deceased was of a violent character when drinking alcohol, they are to take such evidence into consideration in determining the degree of the defendant’s guilt, provided they find him guilty.”

A similar charge was approved in Jacobs v. State, 29 Ala.App. 388, 197 So. 67, cert. denied, 240 Ala. 58, 197 So. 69. See also, Smith v. State, 88 Ala. 73, 7 So. 52, for an approved charge of the same viewpoint. The refusal of charge 11, supra, was error.

The remaining argued charges tendered by defendant were not based on the evidence. The court did not err in refusing them. Duchac v. State, 52 Ala.App. 327, 292 So.2d 135, cert. denied 292 Ala. 251, 292 So.2d 139.

Opinion extended; application overruled.

All the Judges concur.


author: MADDOX, Justice.

text:
    In re Larry Glenn COLLIER v. STATE. Ex parte STATE of Alabama.
    SC 1678.
    Supreme Court of Alabama.
    March 19, 1976.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, petitioner.
   MADDOX, Justice.

Petition of the State for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Collier v. State, 57 Ala.App. -, 328 So.2d 626.

WRIT DENIED.

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


author: HARRIS, Judge.

text:
    Calvin C. WELDEN v. STATE.
    7 Div. 432.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.

      Beck & Beck, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

By agreement appellant was put to trial in the DeKalb County Court upon the following complaint:

“COMPLAINT — V.P.L. THE STATE OF ALABAMA DEKALB COUNTY NO. 6047
Before me, CECIL REED, Clerk of De-Kalb County Court of said County, personally appeared Harold Richards who, being duly sworn, deposes and says that he has probable cause for believing, and does 'believe, that within twelve months before making this affidavit and in said
/s/ Harold Richards Sworn to and subscribed before me this 18th day of October, 1974.
/s/ Cecil Reed DeKalb County Court
DEKALB COUNTY COURT _ SESSION, 19_
County, Calvin C. Welden, whose name to affiant is otherwise unknown, did buy, sell, or have in possession illegally, prohibited liquors contrary to law and against the peace and dignity of the State of Alabama.

Appellant pleaded not guilty and the case was tried by a jury and the jury returned a verdict finding him guilty as charged and assessed a fine of $500.00 against him. As additional punishment the Court sentenced appellant to six month in the DeKalb County Jail. At the time sentence was imposed, appellant gave notice of appeal.

DeKalb County is a dry county. Under the provisions of Title 29, Section 262, Code of Alabama 1940 (Supplement), a person may have in his possession not more than three quarts of liquor and one case of malt or brewed beverages or three quarts of wine and one case of malt or brewed beverages provided it is for his personal use and provided further that it is tax paid liquor or beverages. It is a violation of the law for a person to have in his possession in a dry county any amount of alcoholic beverages in excess of the quantity above specified.

Mr. Gerald Taylor, a State Trooper stationed in Fort Payne, testified that on the night of October 18, 1974, he was parked on the entrance ramp to go south on Interstate Highway 59. While so parked he saw a car traveling north in the northbound lane attempting to exit off the interstate. That the driver of the car was driving in a very erratic manner and ran over a concrete median. After striking the concrete median the car continued up to a county road, turned left and went across the bridge of the interstate at which point the Trooper stopped the vehicle. The officer approached the driver and asked to see his driver’s license and he did not have a driver’s license. The driver’s name was York.

The officer had known appellant prior to the night of October 18, 1974, and he was in the car on the passenger’s side when the car was stopped. The officer observed Mr. York and stated that in his judgment he was intoxicated. He asked Mr. York if he would mind opening the trunk of his car. Appellant was the only other person present in the stopped vehicle. Mr. York opened the trunk of the car and the officer saw a case of whiskey in pint bottles. At this point appellant got out of the car and walked to the rear of the car and told the officer that the whiskey belonged to him and the driver had nothing to do with it. Appellant was not under arrest and the officer had not said anything to him before appellant admitted ownership of the whiskey. Mr. York and appellant were carried by the State Trooper to the DeKalb County Sheriff’s Department where they were turned over to two Deputies of the Sheriff along with the case of whiskey.

Deputy Sheriff A. B. Johnson testified that he was on duty the night of October 18, 1974, when Trooper Taylor called in and said he had caught appellant and for them to make a case against him for V.P.L. Appellant was placed under arrest charged with violating the prohibition law and committed to jail. Trooper Taylor gave the case of whiskey to Deputy Johnson who kept it locked up until the trial. Over appellant’s objections that the whiskey was seized without a search warrant the case of whiskey was admitted in evidence.

During the trial Deputy Johnson was asked if he was familiar with the odor, smell and taste of whiskey and he said he was. He was then asked to pick a pint bottle at random from the case and open it and taste it. He did so and testified that it was bourbon whiskey. He stated that all the other bottles were identical to each other and bore the label “Old Quaker, 6-year old straight bourbon whiskey.” The case with the twenty-four pint bottles was received in evidence as State’s Exhibit No. 1.

On cross-examination this witness testified that this case of whiskey was sold by the Alabama A.B.C. Board and that it was tax paid whiskey.

After the State rested, appellant made a motion to exclude the State’s evidence on the ground the State failed to make out a prima facie case against appellant. The motion was overruled.

Mr. Jim McCullough testified in behalf of appellant. According to his testimony on the morning of the occasion of appellant’s arrest, he had loaned his automobile to appellant. He stated that at the time he loaned his car to appellant the case of whiskey that the State Trooper found was already in the trunk of the car and that he forgot to tell appellant about it. He said the whiskey belonged to a club that he was running for the members and that the club was located on Highway 75 near Rosa’s Grocery Store in DeKalb County. That different members of the club would go to the State liquor store from time to time and buy whiskey for the club and that is what happened so far as the case of pints involved here is concerned. He stated he just forgot to take the whiskey out of his car and just forgot to tell appellant that the case was in the trunk of the car.

On cross-examination he admitted he was appellant’s son-in-law.

Appellant testified 'that on the night he was arrested he was on his way home from Birmingham where he had an operation on his mouth at the Veterans’ Hospital. He stated that when they were stopped by the State Trooper it was because the lights on the car were failing and he told the officer that the driver was not responsible because he had borrowed the car from another fellow. He testified that was all that was said but the officer carried them to Fort Payne. He denied telling the officer that the whiskey belonged to him and that the driver did not have anything to do with it. He denied that the trooper asked the driver if he minded opening the trunk and denied that the trunk was ever opened or that any statements were made with reference to a case of whiskey in the trunk of the car.

Conflicting evidence presents a question for the jury as to the guilt of the defendant. Morris v. State, 47 Ala.App. 132, 251 So.2d 629; Jones v. State, 55 Ala. App. 466, 316 So.2d 713.

Searches without warrants are constitutionally permissible when executed with the owner’s consent. Payton v. State, 47 Ala.App. 347, 254 So.2d 351; Osner v. State, 54 Ala.App. 520, 310 So.2d 241.

In Daniels v. State, 290 Ala. 316, 276 So.2d 441, Justice Bloodworth, writing for a unanimous court, set forth six exceptions under which warrantless searches have been upheld. These are:

1. In “plain view;”

2. With “consent” voluntarily, intelligently and knowingly given;

3. As “incident to a lawful arrest;”

4. In “hot pursuit” or “emergency situations ;”

5. Where “exigent circumstances” exist coincidental with “probable cause” (as in case of movables) ; and

6. In “stop and frisk” situations.

We believe the search in this case can be upheld on any one of three of the exceptions under which warrantless searches have been held valid, viz.: (a) consent, (b) incident to a lawful arrest, and (c) exigent circumstances.

The officer had the legal right to arrest the driver for operating a motor vehicle on a public highway and without a valid driver’s license. Upon observing that the driver was intoxicated in a dry county he had probable cause to 'believe there were intoxicating beverages in the automobile. There was no time to go and get a search warrant as the driver of the car would have left the scene before the officer returned armed with a search warrant. The driver of the car not only consented to the search, he voluntarily opened the trunk for the officer’s inspection. Osner v. State, 54 Ala.App. 520, 310 So.2d 241, certiorari denied, 293 Ala. 769, 310 So.2d 247.

Appellant contends that whiskey bought from a “State Store” cannot be classified a “prohibited liquor.” We have held to the contrary as respects “dry counties” in Alabama when the quantity exceeds the exceptions spelled out in Title 29, Section 262, supra. Hughes v. State, 52 Ala.App. 244, 291 So.2d 331; Clark v. State, 53 Ala.App. 495, 301 So.2d 258; Johnston v. State, 54 Ala.App. 100, 304 So.2d 918; Graham v. State, 45 Ala.App. 79, 224 So.2d 905.

Where there is a reasonable inference to prove the existence of the corpus delicti, the Court must submit to the jury for consideration the question of the sufficiency and the weight of the evidence tending to support that inference. Hines v. State, 260 Ala. 668, 72 So.2d 296; Haggler v. State, 49 Ala.App. 259, 270 So.2d 690.

We have carefully examined the record for errors injuriously affecting the substantial rights of appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur, except CATES, P. J., who concurs in the result.


author: DeCARLO, Judge. CATES, Presiding Judge

text:
    Nelson HENRY, alias v. STATE.
    7 Div. 396.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied March 9, 1976.

      Sam L. Reames, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Randolph P. Reaves, Asst. Atty. Gen., Birmingham, for appellee, the State.
   DeCARLO, Judge.

Sale of heroin; 6 years.

Howard Wayne Lowe was a member of the Jefferson County Sheriff’s Department and was assigned to “U N D O”, the United Narcotics Detail Operation. On September 9, 1974, about 3:00 P. M., Lowe went to the U.N.D.O. office in Birmingham. There he met Sgt. J. E. Smith, another member of the Jefferson County Sheriff’s Department assigned to the same detail. Sgt. Smith gave the deputy $300 and then searched Lowe’s car and person.

Lowe took this money and drove to the Stray Cat Club in Jefferson County where he met Bob Goldsmith, whom he had purchased heroin and cocaine from at various times. The two of them rode in Goldsmith’s truck to the “U-Totem Quick Mart” where Goldsmith made a call at a nearby telephone booth. When Goldsmith returned, they drove to 1307 Altadena Rise Apartments in Shelby County.

They arrived about 6:15 P.M. and were admitted into the apartment by the appellant. Inside Lowe noticed a bearded man sitting on the couch in the living room but did not recognize him. They followed the appellant into a back bedroom where Lowe and Goldsmith introduced themselves and Nelson said he was called “Dooner.” No one else was in the room. At this time appellant gave Lowe a paper-back magazine.

Lowe opened the magazine, and upon examining its contents, inquired whether it was any good and the price. Appellant replied that it could be cut one time and the cost was $300. Lowe paid the $300 to the appellant and then left with Goldsmith.

They returned to the Stray Cat parking lot. Lowe left Goldsmith and drove to the Ramada Inn in Hoover, Alabama, where he met Sgt. Smith and gave him the “magazine pack.” There Smith made a “spot test” of the contents and placed it in an evidence envelope which each initialed.

During cross-examination, Deputy Lowe recalled working on a construction site with appellant but explained that at the time he went clean-shaven. On the day of the purchase, however, he wore a full beard.

Sgt. Smith testified that on September 9, 1974, he had followed Deputy Lowe and Goldsmith but preceded them to the Alta-dena Rise Apartments. He stated that when Lowe and Goldsmith arrived, he was parked across the street in front of the 1307 address. He recalled it was raining when the two approached the apartment. Smith said the curtains were open and he saw appellant answer the door. He also observed two other people in the apartment, one a blond with a beard and another who could have been a female. It was about 6:25 P.M. when Lowe and Goldsmith left.

Sgt. Smith stated that the magazine pack Lowe turned over to him contained a white substance that his “marquid test” indicated was an opium drug. On September 11, 1974 the pack and its contents were given to Mr. Bailey of the State Toxicologist’s Office in Birmingham.

On cross-examination, Sgt. Smith admitted he had sworn that the date of the sale was September 19, 1974, but that this was a typographical error. He explained that at the time a number of different warrants were being sought, and the correct date was September 9, 1974.

Arthur Fred Bailey, a criminologist with the State Department of Toxicology, identified the envelope he received from Sgt. Smith on September 11, 1974. He testified that it contained a magazine pack with 1.058 grams of powder and that 140 milligrams of the substance was pure heroin. Mr. Bailey stated that the envelope and its contents were kept under his care and custody, even though other members of the office had keys to the cabinet where the envelope had been stored.

Lt. William A. Maxwell of the Jefferson County Sheriff’s Department was the first witness for the defense. Maxwell testified he was the immediate supervisor for Sgt. Smith and Deputy Lowe in the U.N.D.O. operation and that these officers initially said that the sale occurred on September 19, 1974. Upon further questioning, he acknowledged that the files concerning this alleged sale indicated a September 9, 1974, purchase date.

Phillip Black was called by the defense and stated that on September 9, 1974, he lived at 1307 Altadena Rise Apartments with Ronnie Culverson and the appellant. He recalled the day in question because it was the appellant’s birthday and a party had been scheduled.

The witness stated that between 6:00 and 7:00 P.M. his girl friend Jane Phillips, Ronnie Culverson, Debra Black and the appellant were in the apartment. Black maintained no one named Goldsmith was there and he did not see Deputy Lowe on that date. He explained that he knew Lowe and had worked with him on the same construction job.

He identified a stained glass panel which along with others had been placed in the living room windows of the apartment when they moved- in. During further questioning, he admitted the panels were removable but contended that they were in place on September 9, 1974, and remained until they moved away.

Jane Phillips testified that she had gone to the appellant’s birthday party on September 9, 1974, and had arrived about 1:00 or 1:30 P.M. It was a pretty day and around 2:00 P.M. they had gone swimming. Afterwards, they played tennis. She stated that no one came to the apartment between 6:00 and 7:00 P.M. and that she did not leave until a little before midnight. Miss Phillips also said the stained glass panels were in the apartment windows on that day.

Debra Blue was called next. She testified it was around lunch time when she arrived at the appellant’s apartment on September 9, 1974, and they swam and played tennis. Miss Blue stated she was at the apartment between 6:00 and 7:00 P.M. and Officer Lowe did not come to the apartment. She recalled that, on the day in question, stained glass panels were sitting in the front windows of the apartment.

The appellant testified that he lived at 1307 Altadena Rise Apartments on September 9, 1974, and remembered the date because it was his twenty-second birthdate. It was a sunny morning and he had gone swimming and afterwards played tennis with Jane Phillips.

Henry said he had met Lowe when the deputy was a flagman on a construction site that appellant was working on in 1972. At the time appellant was a truck driver and during the five months of the construction job, Henry saw the deputy about twenty times a day.

He denied selling Lowe heroin or knowing anybody by the name of Robert Goldsmith. Henry stated that between 6:00 and 7:00 P.M. on the day in question, he was sitting in the living room with Phillip Black, Jane Phillips and Debra Blue. He denied seeing Lowe at all on that day. The only time he remembered seeing the deputy was on September 19, 1974, between 11:00 A.M. and 1:00 P.M., at his sister’s apartment located at 1507 Sweet Apple Court.

Appellant further said the stained glass panels were placed in the apartment windows when he moved in and had remained until he moved away on September 16, 1974.

I

The appellant was tried on the following indictment; omitting the formal parts, it reads:

“The Grand Jury of said County charge that before the finding of this Indictment
“Nelson Henry alias Nelson W. Henry Jr. whose true name is to the Grand Jury unknown, otherwise than as stated, unlawfully sell, furnish or give away heroin, a narcotic drug contrary to and in violation of the provision of Act 1407 of the 1971 Regular Session of the Alabama Legislature, otherwise known as the Alabama Uniform Control Substances Act and that such sale, furnishing or giving away took place subsequent to September 15, 1971 against the peace and dignity of the State of Alabama.”

To this indictment appellant filed a motion to quash, raising the points that the indictment did not make a charge against him for violating a law of the State of Alabama, and that the Alabama Uniform Controlled Substance Act was not known as the Alabama Uniform . Control Substance Act.

Counsel argues that the indictment was insufficient because of the omission of the verb did, before “sell, furnish . . . ” and the use of the word “control” instead of controlled.

The rule followed for the interpretation and construction of an indictment is found in Gary v. State, 18 Ala.App. 367, 92 So. 533. It reads:

“ ‘If the sense of an indictment is clear, technical exceptions thereto should not be favorably regarded, and verbal inaccuracies or clerical errors which are explained and corrected by necessary in-tendment from other parts of the indictment, or errors of spelling not obscuring the sense, are not fatal.’ ”

In determining the merit of an objection because of false grammar, incorrect spelling or clerical error, a court should be satisfied that the tendency of the error was to mislead a person of common understanding reading the indictment, and leave in doubt what was intended to be charged. Grant v. State, 55 Ala. 201.

Neither the court, the counsel, the appellant, nor the jury could have been mislead by the defects complained of in the indictment.

After inspecting the foregoing indictment or on hearing it read, the appellant would have known it intended to charge him with selling heroin in violation of the Alabama Controlled Substances Act. And the court would with certainty understand that such was the accusation.

The omission of the suffix ed from the word controlled and of the word did were clerical mistakes that did not render the indictment fatal. Stallworth v. State, 155 Ala. 14, 46 So. 518.

II

The appellant was tried on the charge in the indictment and not on the warrant of arrest or its supporting affidavit. Any defect occurring in the arrest warrant or supporting affidavit regarding the sale date of the heroin was superseded by the latter indictment. Toney v. State, 15 Ala.App. 14, 72 So. 508.

Further, no error would have resulted in the omission of the sale date in the indictment. Lowe v. State, 48 Ala. App. 740, 267 So.2d 529.

Based on the foregoing, we cannot attribute the error necessary for reversal suggested by the appellant.

III

Appellant maintains the court erred in allowing the testimony concerning Bob Goldsmith and the circumstances leading up to the alleged sale.

Counsel argues that the mention of Goldsmith and the prior purchases from him could well have led the jury to believe that appellant was involved in the sale of drugs.

We do not agree.

“[Ajntecedent circumstances which tend to shed light on the transaction or elucidate the facts or show preparation to commit the crime are always admissible in evidence.” Cartiledge v. State, 52 Ala. App. 495, 294 So.2d 462.

Deletion of this background information would have made Deputy Lowe’s testimony seem distorted, improbable or incredible. To strip away such antecedent circumstances would have resulted in an artificial or false picture of what occurred.

IV

The appellant challenges the testimony concerning Sgt. Smith’s meeting with Deputy Lowe before the alleged sale and Smith’s testimony concerning what he saw while parked across from appellant’s apartment.

In our review of the record, we did not find an objection interposed to the testimony when it was originally offered. Without an adverse ruling, this court is without authority to review. Pritchett v. State, 18 Ala.App. 628, 93 So. 341.

V

It is suggested that the court erred when it permitted Deputy Smith to give the following testimony:

“Q. Who did the typing? The typing on the warrant?
“A. The little lady down here, in the Sheriff’s Department here, I believe her name is Evans.
“Q. How many warrants did you obtain on this occasion that you were in here at Shelby County on February 7th, 1975?
“A. It was several, I don’t remember how many, exactly.
“Q. Did you call the lady to check theirs ?
“A. Yes, sir.
“Q. Did she correct them ?
“MR. REAMS: We object, Your Hon- or.
“THE COURT: Objection overruled.
“A. Yes, sir.
“Q. What was her appearance on that day?
“A. She was highly nervous.
“MR. REAMS: We object, Your Hon- or. This has no bearing on that case and its ...
“THE COURT: Objection overruled.”

This subject was first raised by the defense on cross-examination when counsel inquired:

“Q. Mr. Smith, I will ask you to examine this and tell the Court, have you ever seen it before ?
“A. (Witness, after examining the document) Yes, sir.
“Q. What is it?
“A. It’s an arrest . . . it’s a warrant for an arrest.
“Q. All right, now does it contain your signature ?
“A. Yes, sir.”
“Q. You swore at that time that this alleged sale occurred [sic] on September the 19th, did you not ?
“A. Yes, sir.
“Q. Now, isn’t it a fact that you later learned that Mr. Henry had moved from that apartment before September the 9th, didn’t you, of 1974 and therefore you changed you [sic] testimony to September the 9th, instead of September the 19th ?
“A. No, sir.”

As shown by the foregoing portion of the record this matter was first gone into by the defense. Afterwards it became a proper ground of inquiry for the opposing side. Craven v. State, 22 Ala.App. 39, 111 So. 767.

VI

Appellant also insists that the proper predicate was not laid for the admission of the exhibit containing the heroin. Counsel contends that a break in the chain of custody was shown when the toxicologist admitted others in his office had keys to the cabinet where the package had been stored.

We believe that the chain of custody was sufficient to establish a jury question as to the accuracy of the exhibit’s identification. Green v. State, 42 Ala.App. 439, 167 So.2d 694.

Nothing was shown that indicated the continuity of possession had been disturbed. Under these facts, ample assurance of the exhibit’s authenticity and its analysis was shown.

VII

The continuance of criminal prosecution due to the absence of defense witnesses, or on the ground sufficient time was not had to locate certain persons, rests in the trial court’s discretion. The exercise of that discretion will only be revised on a showing of abuse. Pugh v. State, 247 Ala. 535, 25 So.2d 417; Smith v. State, 282 Ala. 268, 210 So.2d 826.

This appellant was arrested on the above offense around February 11, 1975, and was arraigned with retained counsel on May 5, 1975, Trial began May 26, 1975 and was completed three days later. Under these facts it would seem that sufficient time for process was available to secure the appearance of necessary witnesses.

The abuse necessary for reversal was not made to appear here.

VIII

Denial of the motion for new trial was correct. The evidence recited above presented questions for the jury. Prince v. State, 50 Ala.App. 368, 279 So.2d 539.

No error appears in the record.

Affirmed.

TYSON, HARRIS and BOOKOUT, JJ., concur.

CATES, P. J., dissents.

CATES, Presiding Judge

(dissenting).

I dissent because “sell” fails to charge when the defendant violated the statute, if ever. To me it is not self correcting.

      . Based on the recited evidence, defense counsel undoubtedly intended the question to involve a September 19th date rather than the September 9th date shown.


author: CATES, Presiding Judge.

text:
    Jackie Lee FARRIS v. STATE.
    6 Div. 878.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.

      Judith S. Crittenden, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for the State.
   CATES, Presiding Judge.

This is an appeal from a conviction of first degree murder for killing Gordon D. Zuck with an iron bar. The jury fixed Farris’s sentence at life imprisonment.

The appellant objected to the State’s introduction of a color photograph which depicted the victim’s unsightly remains, i. e., massive head wounds. The appellant argued that the photograph was introduced solely to create bias and inflame the minds of the jury. The tests for the admission of a photograph in a criminal case are that photographs must tend to prove or disprove some disputed or material issue, or to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered. Baldwin v. State, 282 Ala. 653 (hn. #1), 213 So.2d 819.

Likewise, photographs of the scene are admissible in evidence that the jury may get a correct idea of the entire surroundings. Pilley v. State, 247 Ala. 523, 25 So.2d 57; Blue v. State, 246 Ala. 73, 19 So.2d 11.

The colored photograph in question is clearly ghastly; but, gruesomeness is no grounds for excluding this type of evidence, if relevant. McKee v. State, 33 Ala.App. 171, 31 So.2d 656. The fact that such evidence is merely cumulative of detailed oral testimony does not affect its admissibility. Wilson v. State, 31 Ala. App. 21, 11 So.2d 563. This photograph was properly admitted into evidence notwithstanding the unpleasant subject matter. We cannot, and should not, gloss over the fact that violent death is itself loathsome. See Baldwin, supra.

In Powell v. State, 40 Ala.App. 148, 109 So.2d 525, defense counsel sought to head off the State’s using a gruesome but relevant photograph. The manoeuvre employed was making a unilateral admission, “There is no question as to the location or extent of the wounds.”

The former Court of Appeals rejected the thrust of State v. Jones, 201 S.C. 403, 23 S.E.2d 387, that such an admission obviates the need for further evidence. The Court then cited State v. Leland, 190 Or. 598, 227 P.2d 785, that the prosecution, subject only to the rules of evidence and standards of fair play, is entitled and well-nigh obliged “to prove its case up to the hilt and to choose its own way of doing gQ •I' ‡ * ”

That the evidentiary character of the photograph was cumulative merely does not render it inadmissible. Reedy v. State, 246 Ala. 363, 20 So.2d 528.

The photograph here admitted saved many words of description. That it reinforced the testimony against the defendant was within the scope of the risk he ran in his enterprise.

We have considered the entire record under Code 1940, T. 15, § 389, including the following:

a) The clerk’s certificate; [T. 7, § 767]
b) The court reporter’s certificate;
c) The statement of the organization of the court; (former Sup.Ct.R. 52)
d) The indictment (caption, charge, conclusions, and required endorsements);
e) Judgment entry (arraignment, presence of counsel, twelve jurors, em-panelling and swearing of jury, verdict, adjudication of guilt, allocutus, sentence and notice of appeal);
f) Proceedings on the motion for new trial, if any; and
g) Each ruling of the trial judge adverse to the appellant — Rule A, Ct.Cr.App. —49 AA XXI and Rule 28(a)(7) ARAP.

From this the judgment below -is

AFFIRMED.

All the Judges concur.

      . See the companion appeals of Richard, Zuck (6 Div. 794, October 1, 1975) 57 Ala.App. 15, 825 So.2d 531, and Ruth Zuck (6 Div. 860, February 3, 1976) 57 Ala.App. -, 331 So.2d 777.


text:
    Amburs COLEMAN, alias v. STATE.
    Div. 435.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    William T. Denson, Goodwater, for appellant.
    William J. Baxley, Atty. Gen. and Sarah M. Greenhaw, Asst. Atty. Gen. for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the second degree. The jury fixed the minimum punishment, imprisonment in the penitentiary for ten years. He was sentenced accordingly.

According to the evidence for the State, the body of the alleged victim was found on January 25, 1975, at approximately 4:00 P.M., in a residential section of Ashland. He was there examined by the coroner, the chief of police and others. There were four bullet “holes” in the body. The record is not clear as to which, if any, were entrance holes as distinguished from exit holes. Pictures of the body were introduced. in evidence. A witness pointed to some of the holes as shown by the pictures, but we cannot tell from the record what holes were pointed to by the witness. Before being taken to the funeral home, the body was observed by the Ashland chief of police and by the Clay County coroner. Soon thereafter Chief of Police Alexander, accompanied by State Trooper Jack Wat-ley, went looking for defendant. Upon locating him, they arrested him, and at the time of his arrest defendant handed them a seven-shot pistol, 22 caliber, which had seven fired cartridges in it at the time.

For a conviction, the State relied chiefly upon an admission by defendant that he had killed with the pistol mentioned the victim alleged in the indictment. The admission was made to the sheriff of Clay County, who testified that defendant had been given all the warnings required before a confession becomes admissible in evidence, had been fully advised of his privilege against self-incrimination, of his right to counsel, and the record presents no question as to the voluntariness of the admission made by defendant. He claimed in the statement that he was afraid of the victim, that there had been some ill feeling between them about a woman, that he saw the victim “on his knees behind my house digging for something. I called him by name. Jack turned his head toward me and put his right hand toward his right front pocket. I pulled my gun from my pocket and shot four times as fast as I could.”

There were no eye witnesses to the killing, except defendant, who took the stand, admitted the killing and continued to claim that he was acting in self-defense. As to what occurred at the time of the shooting, defendant’s testimony did not vary substantially from the previous statement made by him as quoted above.

We agree with appellant that the evidence was not as clear and satisfactory as it could have been to the effect that the victim was killed by being shot with a pistol as charged in the indictment, but we do not agree with the contention that a professional autopsy was necessary or that proof of death under the circumstances here presented could have only been made by an expert witness. No special kind of evidence is necessary to prove the corpus delicti. Circumstantial evidence is sufficient. Hearns v. State, 47 Ala.App. 725, 261 So.2d 64; Dawson v. State, 48 Ala. App. 594, 266 So.2d 806, cert. denied 289 Ala. 741, 266 So.2d 812. The evidence, including the photographs, was sufficient to show that the victim was shot by projectiles from a deadly weapon, that he did not take his own life, that death did not result from an accident or natural causes, and all the circumstances indicate that a felonious homicide had taken place. In the absence of other evidence, some evidence indicating the contrary, the circumstances shown were sufficient to form the basis for a finding that a murder had been committed. Price v. State, 52 Ala.App. 21, 288 So.2d 803; Taylor v. State, 44 Ala.App. 575, 217 So.2d 86. It is clear that the bullet wounds in the victim were of recent origin when the body was found. No such case as Welch v. State, 45 Ala.App. 657, 235 So.2d 906, involving an intervening cause of death occurring more than two months after the victim was shot in a leg, is here involved.

Proof of the corpus delicti was in no way dependent upon the confession. Proof of corpus delicti alone is not sufficient upon which to base a conviction, but proof thereof may be aided by admissions or confessions of accused admitted as evidence, so as to satisfy a jury beyond a reasonable doubt of the guilt of accused. Hicks v. State, 247 Ala. 439, 25 So.2d 139; Gaddis v. State, 39 Ala.App. 630, 106 So.2d 268.

Defendant’s testimony furnished little, if any, evidence to support his claim of self-defense. We can fully understand that a jury, even though it believed that defendant’s testimony was substantially true, was not convinced that he was in real or apparent danger of death or bodily harm at the time he intentionally fired the fatal shots.

The action of the trial court in overruling defendant’s motion to exclude the testimony at the close of the State’s case and in submitting the case to the jury for a verdict was free of error.

We have considered hereinabove all of the contentions made by appellant. In addition, we have searched the record for any error prejudicial to him and have found none.

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.


text:
    Willie James HILL v. STATE.
    6 Div. 912.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.

      Louis W. Scholl, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., Montgomery, for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of robbery and sentenced to imprisonment in the penitentiary for twenty-one years.

In the late afternoon of July 20, 1974, a lady, accompanied by her mother, her husband and a neighbor, was walking through Woodrow Wilson Park in Birmingham on their way to a wrestling match at the Municipal Auditorium. She testified she saw defendant, whom she did not then know but positively identified afterwards to officers and on the trial, sitting on a park bench with another man and facing and talking with a third man sitting on another bench. She said she saw defendant hit the third man; that defendant struck him twice and knocked him off the bench. She said she saw defendant pull something out of the pockets of the third man, who was aft-erwards identified as Clayton Edward Mills, an elderly man, named in the indictment as the victim of the robbery.

Both Mr. Mills and defendant testified. Mr. Mills testified that he had eaten dinner in a nearby hotel, gone to the park and had dozed off to sleep. He said he had had two beers with his meal. The next thing he remembered was that a man had his hand on Mr. Mills’ billfold which was still in the pocket of his pants. They struggled for the billfold, but the man succeeded in pulling the hip pocket off his pants, billfold and all, and struck Mr. Mills in the back of the head, and Mr. Mills then lost consciousness. He stated that at the time of the incident he had sixty-five dollars in his possession, located in his wallet, that sometime after the incident the wallet was returned to him but the money was not in it. He denied knowing defendant prior to the incident.

Defendant testified that he had purchased a quart of wine and had gone with an acquaintance, a man by the name of Hudson, to the park to drink and reminisce; that Mills called them over and asked to join them and share the wine, promising to buy the second bottle. The wine was finished by the three; Mills refused to buy the second bottle. Defendant said he then became mad and struck Mills but denied taking his wallet or any money belonging to him. Defendant and Hudson left the park promptly, went to a nearby restaurant but did not remain there but a few minutes, and in a few minutes thereafter they were arrested.

If defendant was telling the truth there was no robbery, although there was an assault and battery committed by him, which is a lesser included offense. Taylor v. State, 48 Ala.App. 443, 265 So. 2d 886. The testimony of the State, including particularly testimony of the victim and that of a disinterested witness viewing the incident, was sufficient upon which to base a conviction of robbery. This is true, we think, even though when defendant was arrested, he had on him only three dollars in currency and some change. The disinterested witness testified:

“After Mr. Hill hit Mr. Mills he got the man’s wallet and he got the man’s wallet and start fishing around in his wallet and threw the cards and papers on the ground and after that . . . both of them then walked down the steps over here by the statue by seventh avenue and after they got off the bench they did something after they got on seventh avenue but I couldn’t find out what they were doing.”

That defendant was intoxicated is undisputed, but the extent of his intoxication is not clear. A testifying officer, upon being asked, said that defendant was moderately intoxicated.

Appellant now takes exception to a portion of the court’s oral charge as follows:

“The basic principle of law involved concerning voluntary drunkenness is that it is not a defense to a specific crime unless the drunkenness is at such a degree that it would cause a derangement of the mind to such an extent that a person could not formulate the specific intent that is necessary to commit the offense.”

In criticizing the quoted portion of the court’s oral charge, appellant underscores “it would cause a derangement of the mind,” thus indicating, it seems, a view that there does not have to be a mental derangement in order for one to be so drunk that he cannot have the requisite felonious intent to commit the crime of robbery.

Defendant pleaded not guilty. He did not include a plea of not guilty by reason of insanity. It may well be that in the absence of a plea of not guilty by reason of insanity it would be better that there also be an absence of any expression such as “mental disease” or “derangement of the mind,” but, in our opinion, no injury was caused defendant by the expression. Furthermore, no objection was made and no exception was taken to any portion of the court’s oral charge. At the conclusion of it, both parties stated that they were “Satisfied.” Any grievance defendant may have had as to the language of the court’s oral charge should have been manifested there and then, not here or now. Passmore v. State, 47 Ala.App. 189, 252 So.2d 115; Duncan v. State, 46 Ala.App. 165, 239 So. 2d 237; Sullivan v. State, 48 Ala.App. 347, 264 So.2d 576, cert. denied, 288 Ala. 756, 264 So.2d 580.

Defendant’s counsel made numerous objections to portions of the opening and closing arguments of counsel for the State, and most of said objections were sustained by the trial court. Appellant now insists, “The individual impact of each respective improper comment might be deemed possibly negligible, but the totality of them collectively was prejudicial to the defendant and precluded a fair and impartial consideration.” We repeat what was stated in Luschen v. State, 51 Ala.App. 255, 284 So. 2d 282, 289:

“Numerous objections were made to the closing arguments made by the district attorney and his assistant. In each instance the trial court sustained the objections and instructed the jury to disregard such arguments. The action of the court cured any possible error. Coats v. State, 253 Ala. 290, 45 So.2d 35; Mandell v. State, 21 Ala.App. 404, 108 So. 635; DeFranse v. State, 46 Ala. App. 283, 241 So.2d 125.”

To any contention that the trial court should have expressly excluded from the consideration of the jury portions of the argument to which objections were sustained, which the trial court did in some instances but not in most of them, the answer is:

“Counsel for defendant objected to two portions of the argument of the solicitor. As to one, the trial court sustained the objection interposed thereto. This argument was not so highly prejudicial as that any unfavorable influence might not have been destroyed by retraction or rebuke by the trial court. But no corrective action on the part of the court was invoked by the objector. Such course must be followed when the objection to the argument is sustained and when the sinister effect of the argument can be eradicated by action of the trial court. American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. SO7. No reversible error appears in this connection.” Stephens v. State, 250 Ala. 123, 128, 33 So.2d 245, 249.

As to any and all of the argument of counsel for the State of which appellant now makes any complaint, the trial court made a ruling favorable to appellant in each instance that a ruling was invoked. There was no motion on the part of defendant to exclude the argument. There was no motion, or even a suggestion, that a mistrial be declared. Appellant states that the trial court sustained separate objections to fourteen portions of argument of counsel for the State. We doubt not that his count is correct. Such a large number has quickened us to an extraordinary effort to determine whether the cumulative effect of improper argument was so prejudicial to defendant that he was denied a fair trial. We do not think so. Most of the several portions of the argument to which objections were made were unrelated to one another. There was no effort by counsel for State to repeat, even in effect, any argument to which an objection had been sustained. There may be one exception to this, but it seems to have been more of an argument addressed to the court in an effort to get the court to change its ruling, and clearly was not a deliberate effort on the part of counsel to get before the jury argument the court thought was improper. None of the argument can be considered as highly inflammatory or emotion arousing. There was no appeal to the baser instincts, nothing calculated to arouse prejudice of any kind, class, economic, racial or otherwise. The argument as a whole was argumentative only and did not expressly or by implication state factual information not revealed by the evidence.

No contention is made that various portions of the objectionable argument, or any two or more of them, were directed at the same target. There could be little cumulative effect when they were of such divergent and unrelated nature. The case is far removed from that of Allred v. State, 291 Ala. 34, 277 So.2d 339, in which the three parts of the state's argument to which objections were sustained were all hammering at the same point, or as better stated by Mr. Justice Jones in the opinion therein,

“ . . . [A] 11 three statements were made in the same vein with the same import intended by each.”

There is no contention made by appellant, and as we think no valid contention can be made, that any of the objectionable argument made by counsel for the State was highly prejudicial, we deem it unnecessary to set out herein the several portions of the argument considered. There was no personal abuse of defendant, defendant’s attorney, or of any witness. The closest that might come to personal abuse was in a comment by State’s attorney that defendant “is a wino staggering away” to which defendant’s attorney objected by stating:

“Judge, I object to his characterization of the defendant as a wino. There is no evidence in the case about that.”

The court sustained defendant’s objection and upon request of defendant’s attorney instructed the jury, “Disregard the use of the term ‘wino’ Ladies and Gentlemen.” We think the trial court should have sustained (as it did) defendant’s objection to the comment. That defendant had taken more than a “little wine for his stomach’s sake” did not justify characterizing him as a “wino,” defined as “one who is chronically addicted to drinking wine.” Webster’s Third International Dictionary. The argument, however, was not so out of line with abundant evidence in the case that defendant was inebriated by wine as to have caused ineradicable injury to defendant.

We find that neither in any of the contentions made by appellant on appeal nor in any other respect is there any basis for a reversal of the judgment. It should be affirmed.

The foregoing opinion was prepared by Honorable 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 is hereby

AFFIRMED.

All the Judges concur.


text:
    Robert J. CARLILE, alias v. STATE.
    6 Div. 876.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied March 9, 1976.
    John D. Prince, Jr., Birmingham, for appellant.

      William J. Baxley, Atty. Gen., Montgomery, and David L. Weathers, Asst. Atty. Gen., Birmingham, for appellee.
   CATES, Presiding Judge.

Carlile was convicted of assaulting a peace officer engaged in the active discharge of his lawful duty; the charged assault was with a deadly instrument, to-wit: a pistol. The trial judge sentenced Carlile to four years imprisonment. Michie’s Code, T. 14, § 374(20) [official source — § 3, Act 746, September 8, 1967].

I

About 11 P.M. on July 11, 1973, John W. Abercrombie, an officer of the Birmingham police was in uniform and on duty outside the city shop on Sixth Avenue, South, in that city. He and other officers heard two shots and saw a “black over yellow” Dodge Challenger going east on Sixth Avenue.

He got in his police car and chased the Dodge. His car had no blue light, the lack of which inhibited his speed at crossings. Nevertheless, he was able to overtake the Dodge. When Abercrombie came to a stop ahead of the Dodge, the front seat passenger reached out the right front window and fired a pistol at Abercrombie. The Dodge then sped off while Abercrombie shot at its rear tires. Another police car followed and caught the Dodge.

The driver turned out to be Joseph Car-lile; the sole passenger was his brother, the appellant. At trial, Joseph testified it was he, not his brother, who shot at Aber-crombie. This conflicted with the State’s evidence on identity.

II

In brief, counsel argues that the sentence was cruel and unusual in violation of the Eighth Amendment because a Youthful Offender Report dated June 12, 1974, stated that, shortly after being paroled on an earlier misdemeanor conviction, appellant was hospitalized on account of hepatitis.

No medical evidence was offered. Particularly at allocution, November 13, 1974, no claim was made of ill health as a bar to sentencing. The appellant was out on bond when the record was certified for this appeal by the circuit clerk, August 1, 1975.

Prisoners’ rights have lately fertilized fruitful crops of litigation. If there has emerged a cause of action for a prisoner against his warders in a state court, it is necessarily either under the familiar forms for tort, e. g., trespass or assault, or under equitable actions such as can be afforded in a declaratory judgment suit.

Basically, a conviction shrinks a prisoner’s erstwhile rights. The negative pregnant of the Thirteenth Amendment certainly allows a State an area of legitimate repressive detention:

“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Amendment 13, § 1.

But this detention does not convert a convict into a complete non-person incapable of being a plaintiff. See Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L. Ed.2d 718; Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418.

In this case, aside from the paucity of proof, there was (at the time of sentencing and stay of execution consequent upon the notice of appeal and enlargement pending appeal) no medical evidence as to Carlile’s health. Moreover, not until Car-lile is in custody to obey and endure the sentence can there be a justiciable controversy under the Eight Amendment as applied in Wilwording, supra.

Ill

Counsel for Carlile argues that— since, under a combined civil action in the United States Courts for the Middle and Southern Districts of Alabama August 29, 1975, no State prisoners may now be put in the penitentiary — Carlile is thus free from serving his sentence.

We are not advised as to whether or not the Circuit Court of Jefferson County was a party to said civil action. Nor do we consider that any question can here be presented under Kirby v. State, 62 Ala. 51. Where Carlile serves his sentence depends on the Board of Corrections. All the law requires is that it be in a place which, by law or order, is within the penitentiary system. See Code 1940, T. 45 § 28.

IV

Testimony was received over objection that the defendant had been drinking on the night in question. The contention is that under a sumptuary law — T. 14, § 17(1), Michie’s Code — at July 11, 1974, Carlile’s consuming alcohol was then a misdemeanor.

Pretermitting the fullness of the objection vel non, we consider the possible effect of drinking was relevant as to the mental state of appellant. Assault embraces an element of rudeness or anger. See Coats v. State, 253 Ala. 290, 45 So.2d 35.

We have examined the entire record under Code 1940, T. 14, § 389 and consider that judgment below is to be

Affirmed.

DeCARLO, J., concurs.

TYSON, HARRIS, and BOOKOUT, JJ., concur in result.

      . One must ever keep in mind the Harvard law professor’s caveat:
      “You may sue the Bishop of Boston for bastardy, but do you have a cause of action?”


text:
    Leroy Anthony WRIGHT, alias v. STATE.
    3 Div. 392.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.

      Frederick T. Enslen, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent here, appeals from a judgment of conviction for robbery. Sentence imposed was thirty-five years imprisonment in the penitentiary.

We will consider seriatim appellant’s three assertions of error, which he contends justify reversal of the judgment and remand of the cause.

I

Appellant’s first assertion is that he was put into the position of making a decision in open court as to whether the jury would be allowed to separate without assurance that his decision, whatever it might be, would not reach the jury.

In support of- this assertion appellant cites Mitchell v. State, 244 Ala. 503, 14 So.2d 132(2), where it appears that the jury in a capital case was allowed to separate with defendant’s consent, but without defendant and his counsel being assured their response would not reach the jury. The court observed:

“ * * * But it does appear to have been in open court and does not appear the defendants and counsel were assured their response would not reach the jury.”

Certain observations then follow with respect to capital and non-capital cases. An assurance to the defendant that his response would not reach the jury was not included.

Furthermore, it appears that Mitchell was decided on June 3, 1943, rehearing denied on June 30, 1943. Following this decision, the legislature enacted Act No. 384, approved July 8, 1943 (after Mitchell). This Act was effective in Montgomery County when the instant case was tried. See Acts 1943, p. 358, Title 30, Chapter 7, §97(1).

This Act permits the separation of juries in felony cases, whether capital or non-capital, with consent of the accused and the prosecuting attorney given in open court, whether the jury has retired or not. No requirement appears in this Act that the defendant and his counsel be assured their response would not reach the jury. The conversation in the instant case about the jury separating was not in the presence of the jury.

We hold that in the instant case no such assurance was required and the absence thereof was not error.

II

Appellant next contends that “the jury was allowed to separate and evidence was introduced to the effect that one juror talked with one of the state’s witnesses.”

Act No. 384, supra, provided that a separation so permitted shall not create a presumption of prejudice to the accused, but on the contrary it shall be prima facie presumed that the accused was not prejudiced by reason of the separation of the jury.

The evidence or testimony of the juror who conversed with the witness, adduced on a motion for a new trial, shows that the case was not mentioned between them.

The prima facie presumption that the accused was prejudiced, prevailing in some jurisdictions, has no application here. There was no evidence that defendant was prejudiced by the separation. The burden of proof was on defendant, under the Act, to establish such prejudice.

Ill

Appellant in his third assertion of error says that “the State, through a witness, twice brought in testimony to the effect that Appellant sold heroin to another party who was not present at the trial. This was put in evidence soley (sic) for the purchase of prejudicing Appellant and destroying his right to a fair trial. * * * ”

Officer Gandy was a witness for defendant. On cross-examination, the State’s attorney questioned him as follows:

"Q. And did Jeff say Leroy and Jeff had some dealings together ?
“A. Yes, sir.
“Q. Now, when you got hack to Montgomery, did you confront Leroy with this?
“A. Yes, I did.
“Q. Did Leroy admit that he knew Jeff’s name all along?
“A. Yes, sir; he said he knew him.
“Q. Did he say he had had dealings with him before?
“A. Yes, sir. He said he had sold him heroin.
“MR. CRUSE: Objection and move for a mistrial. That is highly prejudicial.
“MR. HANEY: It was their conversation, Your Honor, that he brought out at the Police Station.”

The answer, “Yes, sir” to the last question, supra, was responsive to the question. The other statement “He said he had sold him heroin”, was volunteered.

It is to be noted that the objection was made after the answer. The objection was too late. Embrey v. State, 283 Ala. 110, 214 So.2d 567(6); Lucky v. State, 50 Ala.App. 324, 278 So.2d 772(4).

There was no motion to exclude or strike the volunteered answer. Willingham v. State, 261 Ala. 454, 74 So.2d 241(8); Massey v. State, 49 Ala.App. 341, 272 So. 2d 267(3).

It appears that the State recalled Officer Gandy, and propounded other questions and obtained answers. One question and objection was:

“Q. Well, let me ask you, when you came back and talked to him, did he mention anything about selling heroin to Jeff?
“MR. CRUSE: Objection.
“THE COURT: Sustained.”

There is nothing for this court to review. Objection was sustained. Peden v. State, 23 Ala.App. 264, 124 So. 282(8); White v. State, 40 Ala.App. 378, 114 So.2d 325(2); Crouch v. State, 53 Ala.App. 261, 299 So.2d 305(2).

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

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

Affirmed.

All the Judges concur.


text:
    Allen TURNER v. STATE.
    4 Div. 400.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    J. R. Herring, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an indigent on this appeal with appointed counsel, was indicted for grand larceny and convicted therefor. The trial court sentenced him to six years imprisonment in the penitentiary.

The appeal here involved was originally dismissed because the record failed to show that it was filed here within the time mandated under the law.

It now appears on rehearing that the transcript omitted an order of the trial court declaring appellant to be an indigent, and also it failed to contain a series of nisi prius orders giving the court reporter more time to file a transcript of the testimony. These orders are now before the Court.

It now appears on this rehearing, from the omissions, that the record was filed in this Court within the time provided by law and that the dismissal of this appeal should be and is vacated, and the appellant is entitled to have his appeal restored to the proper docket, and the cause decided on its merits. The original opinion is withdrawn and this opinion is substituted therefor.

ON THE MERITS

The evidence is undisputed and conclusive that J. W. Craddock owned and operated a small neighborhood grocery store in Abbeville, Alabama, where he also sold gasoline from pumps located in front of his grocery store; that he was servicing a station wagon when another automobile, a Pontiac, drove up behind the station wagon for gasoline servicing.

While waiting to be serviced, it appears that defendant got out of the right front seat of the Pontiac and went in the.direction of the store. The defendant left another occupant on the rear seat and one under the driver’s steering wheel. Defendant returned and reoccupied his seat. After the car was serviced, all three left in the automobile and were later overtaken and detained by the Sheriff and some police officers. All three, along with their automobile, were taken back to the police station.

Mr. Craddock, a witness for the State testified that when he left the inside of the store to service the station wagon, he had between $150.00 and $250.00, in ten and twenty dollar bills, in the cash register, and on reentering the store after servicing the Pontiac in which the defendant was riding, he found all the bills had been removed without his consent or knowledge.

He testified that he saw defendant coming out of the store front door, which made some noise as it closed. The witness further testified that he asked defendant what he wanted, and he replied that he wanted a pack of cigarettes. When Crad-dock told him that he would get them for him, defendant then replied, T don’t want them now.’ ” Defendant then went and got in the car. The two occupants paid him for the gasoline, and all three left in the car. Craddock further testified that no one was inside the store at the time that defendant came out the front door. He also testified that all the windows were barred and there was only one door, the front door, to the store building.

The victim, Mr. Craddock, upon missing the money, called the Sheriff’s Office and told the answering service about the theft and gave a description of the Pontiac. The Sheriff soon spotted the Pontiac and pulled it over. The driver got out and exhibited his driver’s license, so the Sheriff testified. Then some police officers drove up. It appears from the evidence that the occupant of the back seat got out, then later the defendant got out on his side. All three were taken to police headquarters where all three were searched, but nothing incriminating was found. Mr. Craddock identified defendant as the one who came out the front door of the store and returned to the Pontiac.

The Sheriff and his Deputy went back to the scene where they had stopped the Pontiac. On the street curbing where the Pontiac was stopped and next to the passenger side where defendant was sitting, they found seventeen ten dollar bills and four twenty dollar bills, “that had been crumpled up and left laying there with some [mowed] grass over them to partially conceal them.” This spot was where defendant got out of the Pontiac after it was apprehended. Mr. Craddock could not identify the money as his except to say that the denominations were the same.

Defendant testified and denied taking the money. He contended that his purpose in getting out of the Pontiac at the store was to go to a bathroom necessitated by some beer that he had been drinking. He denied asking about buying some cigarettes. He denied placing the money under the grass as he got out of the Pontiac and denied having any money except a small amount. He also testified that Mr. Crad-dock, at police headquarters, first identified one of the others as the one who got out of the Pontiac at the store.

We deem it unnecessary to detail other evidence. The evidence against defendant was wholly circumstantial, but sufficient in the judgment of the jury to convict defendant.

The evidence presented an issue of guilt vel non for the jury. The verdict was adverse to defendant. We are unwilling to disturb. The application for rehearing is granted.

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, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.