author: TYSON, Judge.

text:
    Jerry Dean BRANTLEY v. STATE.
    4 Div. 277.
    Court of Criminal Appeals of Alabama.
    June 28, 1974.
    Rehearing Denied July 16, 1974.

      J. Paul Lowery, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Leon Ashford, Asst. Atty Gen., for the State.
   TYSON, Judge.

The Grand Jury of Pike County, Alabama, charged the appellant with the unlawful possession of Marijuana.

The appellant filed pretrial motions to suppress the evidence and to quash the indictment, each of which were heard and denied in a joint hearing. Thereafter, the cause came on for trial, the jury found the appellant “guilty of possession of Marijuana for his personal use only,” and assessed a fine of $1000.00. The trial court then entered its judgment in accordance with the verdict, and in addition ordered the appellant imprisoned in the county jail for eight months.

Corporal J. D. Hobby testified that on July 13, 1973, he was working as an undercover agent for the Department of Public Safety, in Pike County, Alabama, and had been so engaged for several months. He stated that at about 2:25 in the afternoon, he, accompanied by Investigator George Donald Smith, also of the State Department of Public Safety, went to the trailer home of the appellant and knocked on the door. He stated that the appellant opened the door and he asked, “Do you remember me,” to which the appellant replied, “Yes, come on in.” He stated that he was then seated in the living room of the trailer, and that the appellant’s wife and daughter were also present at this time. He stated that he noticed a plastic bag with “brownish vegetable material in it lying on a coffee table.” He stated that he asked the appellant, “What’s been going on,” to which the appellant replied, “Oh, nothing much, man. Things have been happening around here and the heat' is on.” [R. 75] He stated that the “nares” were in Troy and everybody was scared, that he was not holding anything then. Corporal Hobby stated that later in the conversation the appellant stated, “. . . What I had I got rid of and they can’t dig up all the ground around my trailer. They will never find it. I am not holding anything. The only thing I am holding is what you see there on the table.” [R. 76]

Officer Hobby further stated that following this conversation, he asked the appellant if he could invite his friend inside, to which the appellant replied, “It is hot outside, ask him to come on in.” After Officer Smith came in, Corporal Hobby asked the appellant if he could sell him a lid, to which the appellant replied, “No. All I can do is roll you a number.” He stated that the appellant then rolled a cigarette, and as he started to hand it to him he produced his badge and handed it to the appellant. He stated to him that he was an officer with the State Department of Public Safety, and that he was under arrest for the possession of Marijuana. [R. 78] The appellant then replied, “Oh, man, you are . . . me aren’t you.” Officer Hobby answered, “No, sir, I am not.”

At this point, Officer Smith went outside, and, over the police radio, requested the assistance of other officers. Within approximately five minutes, two additional cars arrived, which included Chief John Lee of the Troy Police Department and two detectives, McLendon and Sutton in one car, in the other car were Deputy Phillips and Investigator Doug Nelson. He stated that the officers came inside, they were in civilian clothes, except Deputy Phillips, who was in his sheriff’s uniform. He stated that the officers then read to the appellant a Miranda type warning and asked him if he fully understood ihis rights, to which the appellant replied, “Yes, I do.”

Officer Hobby further testified that he had a warrant for appellant’s arrest on another charge when he entered the trailer, that after Chief Lee came in he showed the appellant a warrant for his arrest for the sale of Marijuana and placed him under arrest.

The officers then asked the appellant if they had his permission to search the trailer, to which the appellant replied that he understood about the necessity of getting a warrant, but for them to go ahead and search as he was not holding anything. [R. 81]

Officer Hobby further testified that Investigator Nelson then prepared a consent to search statement, written in longhand, that the two of them read it to the appellant, that the appellant said that he would sign it because he knew they could go ahead and get a warrant anyway. [R. 82] Officer Nelson again advised the appellant of his rights and of the necessity for getting consent before the appellant signed the consent to search statement. The officers then asked his wife if she too would sign it, after explaining her rights, and the wife joined in, signing the statement. [R. 82]

On cross-examination, Officer Hobby testified that the appellant had just lit the Marijuana cigarette, which he had rolled, and handed it to him when he placed him under arrest for possession of the Marijuana which he observed in a clear plastic bag lying on the coffee table. [R. 84-86]

Officer Hobby further stated that he had met the appellant on some two or three other occasions while doing undercover work in the Troy area.

Also on cross-examination, Officer Hobby testified that, after the officers began searching the trailer, and upon finding several items of contraband and the three bags of Marijuana in the bedroom, the appellant said, “Hell, I forgot about that.” [R. 110]

Officer Doug Nelson testified that he was an Investigator for the State Department of Public Safety, and, in the company of Sheriff’s Deputy Carl Phillips, went to the trailer home of the appellant on the afternoon of July 13, 1973. He stated that they were summoned there by a police radio. Upon arrival, he stated that the appellant, his wife and child, and Officers Smith and Hobby were inside the trailer. He stated that he sat. down in the living room and talked with the appellant, reading him a Miranda card warning before beginning his conversation with him. He stated that Corporal Hobby had a warrant in his pocket for the arrest of the appellant on another charge, and that Chief Lee of the Troy Police Department came in with two detectives; that after explaining the appellant’s rights to him, he stated to them, “Go ahead and search, I am not holding anything. I know that you could go ahead and get a search warrant anyway.” [R. 114] He stated that he conversed further with the appellant and his wife, and that he prepared a consent to search form, which each of them signed after having their rights again explained to them. [R. 114-115] He stated that he then assisted in the search of the home and found a “Set of Ohause scales,” which measure up to 3,210 grams, and that near the scales were vegetable material and seeds. He stated that in the bedroom he found several suitcases; that he opened one of these and found three kilos of green vegetable material and a plastic bag containing 3,456 double scored purple tablets. [R. 117] He stated that he later delivered this material, that evening, to the State Department of Toxicology for examination. [R. 118] He stated that the Marijuana in the suitcase approximated six pounds. [R. 124],

Troy Police Officer Charles Sutton testified that he participated in the search of the appellant’s trailer home on the afternoon of July 13, 1973, and upon removal cf some drawers, which had been built into the wall in the bedroom, he found three bricks he believed to be Marijuana. He turned these over to Investigator Doug Nelson at that point. [R. 126-127]

Officer Sutton, on cross-examination, stated that he did not know a man named “Fudd,” but that the appellant stated, ‘Fudd’s the guy. I didn’t know they were there. I thought the fat son of a bitch got them.” [R. 131]

Troy Police Officer James McLendon testified that he participated in the search of appellant’s trailer home on the afternoon of July 13, 1973. He stated that he found and seized a “hashish pipe, and a green cigarette case that had one red capsule and a half a white tablet in it.” He stated that he also found three partially smoked roches in an ash tray. [R. 134-135]

George Donald Smith testified that he was a narcotics investigator for the State Department of Public Safety. He testified that on the afternoon of July 13, 1973, he accompanied J. D. Hobby to the trailer home of the appellant, near Troy, Alabama. He stated that after Corporal Hobby went inside, he emerged about five minutes later and asked him to come in, which he did. He stated that he was seated on the couch beside the appellant when Officer Hobby asked him if he had anything to sell, and he replied that all he had was a lid of Marijuana lying on the coffee table, that the best he could do was to roll him a number. Officer Smith stated that after the appellant rolled the cigarette and lit it, Officer Hobby handed him his identification paper and advised him that he was under arrest for the possession of Marijuana.

Officer Smith further testified that later in the afternoon he assisted in the search of the trailer home and found eight yellow tablets in a plastic bag, and subsequently four purple tablets on a night stand in a back bedroom. [R. 137-139]

Troy Police Chief John Lee testified that he arrived at the home of the appellant on the afternoon of July 13, 1973, accompanied by two Troy police officers; that he was present in the trailer when the appellant and his wife signed the consent to search form, and that each of them were given the Miranda type warning before signing this. He stated that in his search he found several burned roches or “ends of cigarettes” in an ash tray, which he believed to be Marijuana. [R. 141-142]

Dale Carter, an employee of the State Department of Toxicology, verified that Officer Hobby and Officer Nelson delivered to him several items at about 9:00 in the evening of July 13, 1973, at the Crime Laboratory at Enterprise, Alabama, that he inventoried the items and turned them over to Mrs. Mary Wisdom of that office for examination. He stated that there were six bricks of green vegetable material and a blue box containing approximately 3,456 quarter scored tablets among the items. [R. 144-148]

Mrs. Mary Wisdom testified that she was employed by the State Department of Toxicology on July 13, 1973, and did receive from Dale Carter of that Department several items, which she identified as containing Marijuana, the total quantity being 5,432.52 grams, or 11.95 pounds. She further testified that upon examination of the tablets, she determined the eight yellow tablets to contain lysergic acid diethyla-mide, commonly called LSD. She also examined the powder contained in a plastic bag and determined that it had 59.6 milligrams of a beige powder, which an examination revealed to be a mixture of cocaine and procaine. [R. 152]

The appellant’s motion to exclude the State’s evidence was overruled. [R. 159— 161] The appellant presented the testimony of two character witnesses, Harry Frank Baker and Senator L. L. Dozier. [162-164]

The appellant’s wife testified that she had been present at their trailer home, near Troy, Alabama, on the afternoon of July 13, 1973, with her husband and daughter, when Officers Hobby and Smith arrived. She testified that she had prescriptions for some of the items seized, particularly one bottle containing brown and white capsules, from Dr. Hanna, one 'from Dr. Dotson, and that Dr. Sachs had given her a prescription for some pink and orange capsules. She testified that the two officers had talked with her husband for ten or fifteen minutes before they stated to him that he was under arrest. She stated that shortly thereafter three other officers came in, and Chief Lee read them their rights while seated in the kitchen area of their trailer home; that after that she and her husband signed a consent to search form. She stated that a man named “Fudd” had been by their home previously and left a suitcase in which the officers found three bricks of Marijuana. [R. 165-174]

The appellant testified in his own behalf, indicating that he was a salesman for a wholesale concern in Montgomery. He testified that they were living in their mobile home just out the Henderson Highway from Troy. He stated that on the morning of July 13, 1973, a man by the name of “Fudd,” whose real name was Richard Bol-li, had come by his home and left a suitcase, as he was going to visit some friends in town. He stated that the man never returned, and that it was in this suitcase that the three bricks of Marijuana were found by the officers. He stated that he had seen Officer Hobby two or three times before, and knew him only as “J, D.” He stated that the officer had long hair and was in civilian clothes when he had seen him before, and also when he came by the trailer home that afternoon. Appellant admitted stating to the officer that he did not have any drugs to sell, but that he would roll him a joint from that which was lying on the coffee table. Appellant admitted, on cross-examination, that Officer Doug Nelson had read his Miranda rights to him, but stated that the officers said they could go get .a search warrant, so he signed the consent to search form. [R. 176-184]

I

The appellant, just prior to trial, made an oral motion to qua§h the indictment on the basis that there was a “disproportionate number of jurors on the venire over fifty years of age, and a lesser number of persons under thirty years of age.” Appellant also stated there had been a systematic exclusion of members of the African race from the venire. [R. 67-68] In denying this motion, the trial court indicated that on the previous day a companion case, involving the appellant, had been tried; that on this jury there were six members of the African race and six members of the white race, some of whom were female and some male; that he had excused those persons who had served on the jury the previous day from the venire from which the jury was being selected in the instant case.

Here, the record fails to show any evidence in support of this motion by the appellant that the members of the jury commission were influenced by racial considerations in selecting persons for jury service. There was no evidence that the jury commission had applied different standards of qualification to members of the Negro community, or to older or younger persons living in the community. In sum, there was no evidence presented to indicate that the prospective jurors, who made up the venire, were selected on the basis of anything other than individual qualifications.

In Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666, we find:

“In the first place, it is now quite clear that a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him, nor on the venire, or grand jury which indicted him. Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759.
“We feel that the applicable rule of law is to be found in Junior v. State, 47 Ala.App. 518, 257 So.2d 844, cert. denied 288 Ala. 744, 257 So.2d 852, as follows:
“ ‘The appellant’s contention in this case must be grounded upon proof that Negroes [and those persons between the ages of twenty one and thirty] have been the victims of improper discrimination and exclusion from jury service in the jury selection process. But purposeful discrimination must be proven and may not be assumed or merely asserted, and the quantum of proof necessary to establish such fact is a matter of federal law. Swain, supra.’

It is clear therefore that the trial judge correctly denied appellant’s motions to quash the jury venire on the ground indicated. Butler v. State, 285 Ala. 387, 232 So.2d 631; White et al. v. State, 48 Ala. App. 111, 262 So.2d 313; Bryant and Williams v. State, 49 Ala.App. 359, 272 So.2d 286; Jackson v. Morrow, 404 F.2d 903.

The trial court properly excused the jurors, who had served on the companion case involving the appellant the previous day, from the venire from which the jurors in the instant case were being selected. Leonard v. United States, 378 U.S. 544, 84 S.Ct. 1696, 12 L.Ed.2d 1028; Dunaway v. State, 291 Ala. 93, 278 So.2d 205.

II

Prior to trial, the appellant also moved for a mistrial because the trial court asked the question of the venire, “Is any juror related by blood or marriage to any degree to L. L. Dozier?” also, “Does any juror do business with L. L. Dozier ?”

In overruling the motion for a mistrial, the court determined that Mr. Dozier had testified in a companion case the previous day on behalf of the appellant, and had been observed in the courtroom, while the venire was being qualified, conferring with defense counsel. Under these circumstances, we believe the trial court’s action in asking these questions of the venire, and overruling appellánt’s motion for mistrial based on same, was proper. Title 30, Section 55, Code of Alabama 1940; Williams v. State, 51 Ala.App. 1, 282 So.2d 349, cert. denied 291 Ala. 803, 282 So.2d 355.

Ill

The appellant contends that there was an unlawful search and seizure, as the officer entered the home of the appellant “under the guise of friendship,” and that five additional officers were present when the consent to search was signed, citing Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520.

In Duncan v. State, 278 Ala. 145, 176 So.2d 840, the rule was stated by Mr. Justice Lawson in this manner:

“When police officers want to search a person’s home they must have either a search warrant or a knowing, voluntary permission, unless the search is incidental to a lawful arrest or there are other circumstances, not present in this case, which justify a departure from the rule. Waldron v. United States, 95 U.S.App.D.C. 66, 219 F.2d 37. See United States of America v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59.”

While it is true that the officers were dressed in civilian clothing, they did knock and were admitted by the appellant on the basis that he knew Officer Hobby. Moreover, Officer Hobby testified that he had a warrant for the appellant’s arrest in his pocket, which he subsequently presented to the appellant after the appellant rolled and offered him the Marijuana cigarette from the lid of Marijuana lying in plain view on the coffee table.

As noted in Grisson v. State, 51 Ala.App. 285, 284 So.2d 739, cert. denied 291 Ala. 780, 284 So.2d 740, “An undercover police officer engaged in acts to uncover violations of law is not an accomplice of one charged with such violation.” Cases cited.

Furthermore, an officer may, when acting in good faith, with a view to detect crime, make use of deception, trickery, or artifice. Johnson v. State, 36 Ala.App. 634, 61 So.2d 867, and cases cited therein.

Further, the testimony in this cause establishes that the appellant was given his full Miranda rights by the officers before any search was made, and in fact the appellant and his wife, each, signed the “consent to search.” We are of the opinion that the evidence in this cause establishes that the appellant’s consent was voluntarily given after being fully advised of his constitutional rights. The trial court’s conclusion in this respect is adequately supported by the facts. Shewey v. State, 48 Ala.App. 730, 267 So.2d 520; Hardy v. State, 51 Ala.App. 489, 286 So.2d 899; Loper v. State, 44 Ala.App. 204, 205 So.2d 521.

The arrest and resulting search and seizure in the instant case were proper.

IV

The applicant contends that he was induced or lured by the arresting officers into the commission of the offense in question, and asserts the defense of entrapment.

Presiding Judge Carr, in Johnson v. State, 36 Ala.App. 634, 61 So.2d 867, stated :

“The pertinent parts of Sec. 45, 22 C.J.S. Criminal Law § 45, p. 100 et seq. are as follows:
“ ‘The doctrine of entrapment, however, has a limited application, the basic thought being that officers of the law shall not incite crime merely to punish the perpetrator; hence a distinction has been drawn between the inducing of an innocent person to do an unlawful act, and the setting of a trap to catch one in the execution of a criminal plan of his own conception, an act of the latter character by an officer not being regarded as against public policy, and entrapment is not available as a defense to a person who has the intent and design to commit a criminal offense and who in fact does commit the essential acts constituting it, merely because an officer of the law, in his effort to secure evidence against such person, affords him an opportunity to commit the criminal act, or purposely places facilities in his way or aids and encourages him in the perpetration thereof.
“ ‘An officer may, when acting in good faith with a view to detecting crime, make use of deception, trickery, or artifice; and so it is not a defense that decoys were used to present an opportunity for the commission of the crime or that detectives or others feigning complicity in the act were present and apparently assisting in its commission. Especially is this true in that class of cases where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of conduct; it has been held that in such cases the entrapper may even provoke or induce the commission of a particular violation of the law, if he knows or has reasonable grounds to believe that accused is a repeated or habitual offender.’ ”

More recently, this court in Miller v. State, 53 Ala.App. 213, 298 So.2d 633, 1974, held:

“Of particular importance on the question of inducement of appellant to commit the crime is Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716, cert. stricken, 271 Ala. 549, 125 So.2d 725; Garsed v. State, 50 Ala.App. 312, 278 So.2d 761.
“Other cases from this jurisdiction where the criminal sale of unlawful commodities such as liquors, narcotics, etc., were made at the solicitation and request of officers whose identity was disguised are Webb v. State, 42 Ala.App. 385, 166 So.2d 510; Dodd v. State, 32 Ala.App. 307, 26 So.2d 273, cert. denied 248 Ala. 103, 26 So.2d 274; Nelson v. City of Roanoke, 24 Ala.App. 277, 135 So. 312, cert. denied 223 Ala. 317, 135 So. 314. These cases hold that where the appellant is disposed to commit the crime and the officers merely provide the opportunity by request or encouragement to commit the criminal act, there is no entrapment. See Alabama Digest, Criminal Law, Volume 6, Key number 37.”

Under the circumstances in this case, and the authorities herein cited, we see no room for the operation of the defense of entrapment in the instant case.

V

The appellant at trial objected to the introduction of evidence of other “hard drugs or other controlled substances” as evidence of other offenses, other than that for which he was on trial.

The testimony and evidence pertaining to the additional Marijuana, other than that found in the pouch on the coffee table, including the bricks of Marijuana found in the suitcase, and the Marijuana found in the wall behind the dresser in the bedroom, were properly admitted in evidence as relevant to the issue charged in the indictment, to-wit, the possession of Marijuana, contrary to law. Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert. denied 292 Ala. 743, 290 So.2d 213, and authorities therein cited. Likewise, the scales and hashish pipe were admissible on the subsidiary issue vel non of the possession for personal use only.

However, the admission into evidence of the testimony, and the LSD tablets and the packet of Cocaine powder, was prejudicial error. Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 847; Brasher v. State, 249 Ala. 96, 30 So.2d 31; Garner v. State, 269 Ala. 531, 114 So.2d 385.

These “hard drugs or other controlled substances,” i. e., the LSD tablets and Cocaine powder, have no relevancy to the character of the drug here at issue. Tadlock v. State, 45 Ala.App. 246, 228 So.2d 859; Parks v. State, 49 Ala.App. 32, 268 So.2d 498, cert. denied 289 Ala. 749, 268 So.2d 501; Van Nostrand v. State, 51 Ala.App. 494, 286 So.2d 903, cert. denied 291 Ala. 799, 286 So.2d 906.

For-the above stated reasons, the judgment in this cause is due to be reversed and the cause remanded.

Reversed and remanded.

All the Judges concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    In re Jerry Dean BRANTLEY v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 925.
    Supreme Court of Alabama.
    Jan. 9, 1975.

      William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.
    No brief for respondent.
   MADDOX, Justice.

The defendant was indicted for possession of marijuana, a felony. He was convicted of possessing it for personal use, a misdemeanor. Title 22 § 258(47), Code of Alabama 1940. The Court of Criminal Appeals reversed and remanded, holding that the admission of LSD tablets and a packet of Cocaine powder found in defendant’s home along with the marijuana was prejudicial error. This Court granted the State’s petition for writ of certiorari to renew that holding.

The only question presented is whether the admission of the LSD and Cocaine into evidence was prejudicial error. We hold that it was not, under the facts and circumstances of this case.

The Court of Criminal Appeals, 55 Ala.App. 493, 317 So.2d 337, in holding the admission of the LSD and Cocaine to be reversible error, said:

“These ‘hard drugs or other controlled substances,’ i. e., the LSD tablets and Cocaine powder, have no relevancy to the character of the drug here at issue. Tadlock v. State, 45 Ala.App. 246, 228 So.2d 859; Parks v. State, 49 Ala.App. 32, 268 So.2d 498, cert. denied 289 Ala. 749, 268 So.2d 501; Van Nostrand v. State, 51 Ala.App. 494, 286 So.2d 903, cert. denied 291 Ala. 799, 286 So.2d 906.”

Generally, evidence of other separate and distinct criminal acts is inadmissible, since the only facts laid before the jury should consist exclusively of the transaction which forms the subject matter of the indictment, which alone the defendant is called upon to answer. Hinton v. State, 280 Ala. 48, 189 So.2d 849 (1966). There is, however, a well-recognized exception to this general rule. In Garner v. State, 269 Ala. 531, 114 So.2d 385 (1959), this Court said:

“ * * * Evidence of other distinct criminal acts is admissible when relevant to the crime charged, as bearing on scienter, intent, motive, res gestae, or to establish the identity of the accused (and perhaps as bearing on the issue of insanity when that defense is pleaded in the case. — See ‘The Law of Evidence in Alabama’ by Honorable J. Russell Mc-Elroy, § 61, pp. 19-20; 1 Wharton’s ‘Criminal Evidence’, 10th Ed., p. 156, § 41.) The authorities also recognize such an exception to show system or plan usually to identify the accused or to show intent. Wharton’s, supra, p. 146, § 39. But even under the exceptions noted they or one of them is admissible only when the evidence is relevant to the crime charged. Noble v. State, 253 Ala. 519, 45 So.2d 857.”

In Morrow v. State, 52 Ala.App. 145, 290 So.2d 209 (1973), the Court of Criminal Appeals allowed the introduction of marijuana into evidence in a prosecution for possession of LSD. Except for the fact that in Morrow the marijuana was in the same pouch as the LSD, the other facts of Morrow are not materially different from the facts here.

Apparantly, this Court has not ruled on the question of the admissibility of other controlled drugs, which are found at one time at the scene of a crime, where the accused is charged with the possession, sale or use of drugs. Other states have considered the question, however.

In Miller v. State, 469 S.W.2d 180 (Tex.Cr.App.1971), the court held that three barbiturate capsules and two hand-rolled cigarettes, plus a packet and balloon containing heroin, found by narcotic officers at the time they entered defendant’s apartment, pursuant to a valid search warrant, where admissible in a prosecution for the offense of possessing heroin. The Court said that other “illegal drugs or narcotics found at the same time and place are admissible, as they are part of the res ges-tae of the offense.”

Similarly, in Tyra v. State, 496 S.W.2d 75 (Tex.Cr.App.) cert. denied 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed.2d 247 (1973), a prosecution and conviction for possession of marijuana, officers searched defendant’s apartment pursuant to valid warrant to find heroin and marijuana. They found large quantities of marijuana. In addition, officers found a scale, two “roach” holders, amadone pills, and three spoons and syringes which were shown to contain traces of heroin.

In Tyra, the accused contended that the introduction of the pills, spoons, and syringes was prejudicial, and that the items were not connected with the offense charged. The Court said that in a drug possession case, other illegal drugs found at the same time and place are admissible since they are part of the same transaction. The Supreme Court of the United States denied certiorari. Arizona seems to permit the state to show the “complete story.” See State v. Villavicencio, 95 Ariz. 199, 388 P.2d 245 (1964) [a drug possession' case],

Brantley was charged with the offense of possessing marijuana, a felony. Possession of marijuana for personal use is a misdemeanor. The fact that Brantley possessed other drugs in the trailer where the marijuana was found and the fact that he had scales and a pipe would show the “complete story,” and would be relevant on the issue on whether Brantley possessed marijuana with an intent other than for his personal use. The admission of the other drugs by the trial court was not erroneous in this case. The Court of Criminal Appeals erred; therefore, its judgment is reversed and remanded.

Reversed and remanded.

MERRILL, BLOODWORTH, McCALL and JONES, JJ., concur.

HEFLIN, C. J.-, and COLEMAN, HAR-WOOD and FAULKNER, JJ., dissent.


text:
    Jerry Dean BRANTLEY v. STATE.
    4 Div. 277.
    Court of Criminal Appeals of Alabama.
    Feb. 18, 1975.
    Rehearing Denied March 18, 1975.
   The following order has been entered in the above appeal after remandment by the Alabama Supreme Court:

It is ordered that the judgment of the Circuit Court be affirmed on authority of Brantley v. State, 294 Ala. 344, 317 So.2d 345 released January 9, 1975. Tyson, J., (No Opinion) All the Judges concur.

Certiorari Denied, 294 Ala. 346, 317 So.2d 348.


author: EMBRY, Justice.

text:
    In re Jerry Dean BRANTLEY v. STATE of Alabama. Ex parte Jerry Dean Brantley.
    SC 1204.
    Supreme Court of Alabama.
    May 29, 1975.
    J. Paul Lowery, Montgomery, for petitioner.
    None for the State.
   EMBRY, Justice.

Petition of Jerry Dean Brantley for writ of certiorari to the Court of Criminal Appeals to review, revise and reverse the judgment of that Court of 18 February 1975 in Brantley v. State, 55 Ala.App. 717, 317 So.2d 347. The writ is denied on the sole basis of the failure of the petitioner to comply with the requirements of Supreme Court of Alabama, Rule 39, Code of Ala., Tit. 13, § 111(32).

Writ denied.

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


author: TYSON, Judge. CATES, Presiding Judge

text:
    Wayne CASSELL, alias v. STATE.
    8 Div. 631.
    Court of Criminal Appeals of Alabama.
    July 29, 1975.

      James L. Hunt, Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen., and William A. Golinsky, Asst. Atty. Gen., for the State, appellee.
   TYSON, Judge.

The indictment in this cause (omitting formal parts) is as follows:

“Circuit Court, February Term, 1974
“The Grand Jury of said County charge that before the finding of this Indictment, Wayne Cassell, alias, Buford Wayne Cassell, whose name is otherwise unknown to the Grand Jury that as stated, did, on to-wit: November 10, 1973, illegally possess seventeen (17) tablets containing Methaqualone, contrary to the provisions of the Alabama Controlled Substances Act, the same being Act No. 1407 of the Regular Session of the Alabama Legislature, 1971, said possession of said Methaqualone being subsequent to September 16, 1971, the effective date of said Act, and subsequent to September 13, 1973, the date Methaqualone was put under control by the Board of Health of the State of Alabama, as authorized by Title 22, Section 258, 26-38, Code of Alabama, 1940, as last amended, against the peace and dignity of the State of Alabama.”

To this indictment, the appellant filed both a motion to quash and a demurrer, each in substance raising the constitutionality of the regulation of the State Board of Health adopted at a meeting on September 19, 1973, and published on September 30, 1973, by the Board of Health in the Birmingham News and Post-Herald, which placed the drug “Methaqualone” on the controlled substances list pursuant to the provisions of Title 22, Sections 258(26), 258(30), and 258(38), Code of Alabama 1940, as amended 1971. This motion and demurrer were overruled at trial.

The appellant filed a motion to suppress, which was also overruled, and following a trial by jury, on August 16, 1974, the appellant was found guilty, as charged, and the discretion to impose a fine was left to the trial court, by the verdict. On October 17, 1974, the appellant’s request for probation was denied, and the appellant was sentenced to two years imprisonment. Thereafter, the appellant filed a motion for new trial, which was duly heard and overruled.

Just prior to trial, the District Attorney, Mr. McCutchen, presented a duly certified copy of the regulation of the State Board of Health, adopted September 19, 1973, and published on September 30, 1973, to the trial court as evidence in the cause. This was received after the overruling of the appellant’s motion to quash and demurrer raising the constitutionality of this regulation. The regulation and minutes in question are as follows:

“I, Dr. Ira L. Myers, State Health Officer, certify that in conformity with Title 22, Section 258 (26-38), Code of Alabama 1940, as amended into Alabama law during the Regular Session of 1971, the State Board of Health, at its regular meeting of September 19, 1973, placed Methaqualone (including its salts and derivatives and other drugs of this group manufactured under various trade names) in Schedule IIN (non-narcotic). I further certify that this action is reflected in the minutes of the Board meeting of that date (September 19, 1973). (A copy of the minutes of the Board is attached.)
“The control of Methaqualone was effective on September 30, 1973 (date of publication).
“S/ Ira L. Meyers
Ira L. Meyers, M.D.
State Health Officer”
“ MINUTES
STATE COMMITTEE OF PUBLIC HEALTH September 19, 1973
“CONTROLLED SUBSTANCES:
“The State Health Officer called attention to a number of letters that have been received since March, 1973. Many letters have been received in the past week urging the inclusion of Methaqua-lone as a controlled substance. Earlier requests resulted in a recommendation to Federal authorities that this should be placed under Federal control which would automatically bring it under State control. The widespread abuse of this drug indicates that urgent action is needed on the part of the State. Its actual potential for abuse has been demonstrated. Its pharmacological effects are listed in reference documents available to the medical profession and in current medical literature. Scientific knowledge has accumulated documenting the history and current pattern of abuse. The significance of this abuse has been noted by numerous agencies, concerned citizens, and law enforcement officials. Its disturbing psychic effects indicate it is a risk to public health and it is a sedative-hypnotic agent chemically unrelated to the other sedative-hypnotics. Precautions for this drug note the possibility of use of this drug in suicide attempts and adverse reactions include a variety of neuro-psychiatric symptoms. In the light of these urgent complaints and requests and in accord with the provisions of the Code of Alabama 1940, as amended, Title 22, Section 258(26-38), the State Health Officer recommended this drug be placed in Schedule II-N. Conversation with Federal authorities indicates this is a classification being considered by them for future action. It was moved by Dr. Strandell, seconded by Dr. Yohn, that Methaqualone, its salts and derivities, be placed in Controlled Substances Schedule II-N and that it be published; the motion carried unanimously.
“The above is a true extract copy of the Minutes of the State Committee of Public Health of September 19,1973.
“S/ Ira L. Meyers M.D.
Ira L. Meyers, M.D.
State Health Officer”

Just prior to trial, a hearing was held on appellant’s motion to suppress the seizure of a bottle of pills seized from the appellant at the time of his arrest, November 10, 1973, at Ballew’s Truck Stop and Restaurant in Muscle Shoals, Alabama. At the hearing on the motion to suppress, the State presented the testimony of Muscle Shoals Police Officer Robert Hall, who testified that he, Lt. Bill Parrish, and Lt. George Boatwright, of the Muscle Shoals Police Department, were asked to answer a call, about 8:00 in the evening, on November 10, 1973, to go to Ballew’s Truck Stop. He testified that, in response to the police radio call, he arrived on the scene about the same time as the other police vehicle, and that Lt. Parrish spoke to a man operating the service station at this place. Officer Hall stated that he spoke to the waitress who made a complaint to him and pointed to a booth in which the appellant, Wayne Cassell and one Ricky Parker were seated. He stated that he approached the booth, appellant started to get up, staggered, and sat back down, that he got up again and staggered, that he walked up to him and immediately smelled alcohol on his breath. He stated that he spoke to the appellant, who mumbled, and asked him if he had been drinking, to which the appellant replied, “Yes I have.” He stated that at this point, in his opinion, the appellant was under the influence of alcohol to the point of being publicly drunk, that he then advised the appellant that he was under arrest and asked the appellant how much he had been drinking. He stated that the appellant mumbled some words and reached his hand into the front pocket of his jacket. He stated that as the appellant did this, he grabbed his wrist and pulled his hand back out of his pocket, and as he did so, there was revealed in the appellant’s hand a bottle of pills. He stated that Lt. Boatwright walked up as this occurred.

The appellant’s motion to suppress was overruled.

The State presented the testimony of Lt. Bill Parrish of the Muscle Shoals Police Department, who testified that in response to a police radio call, he drove to Ballew’s Truck Stop and Restaurant on November 10, 1973. He testified that the call came from the Police Department dispatcher over his police radio. He stated that he stopped to speak to the service station attendant upon arrival, and that Sgt. Hall, who accompanied him, proceeded into the restaurant. He stated that in a few minutes Lt. Boatwright arrived, and that the two of them then followed Sgt. Hall into the restaurant. He testified that one of the waitresses advised him that they had been having trouble with the appellant and his companion, Mr. Parker, and when they approached the table, Ricky Parker attempted to stand and fell back into his seat, slumping over. He stated that the appellant attempted to stand, slumped back into his chair, and then got up a second time, that he was swaying and staggering, and that he smelled alcohol on his breath. He stated that the appellant’s speech was slurred, and that there were women and other customers present in the restaurant at the time the appellant and his companion were placed under arrest for drunkenness. He stated that this occurred within the city limits of Muscle Shoals in Colbert County, Alabama.

Lt. George Boatwright testified that he was an officer employed by the Muscle Shoals Police Department on November 10, 1973. In response to a police radio call, he drove his vehicle to Ballew’s Truck Stop and Restaurant, and upon arrival noticed that a police vehicle in which Lt. Parrish and Sgt. Hall were riding had just pulled in. He stated that Lt. Parrish spoke to the man who operated the service station, that a lady came outside and told them that a couple of men inside the restaurant had been throwing food, that she pointed to the table where the appellant, Wayne Cassell, and his companion, Ricky Parker, were seated. He stated that he walked to the table, and as he did so, he saw the appellant put his hand into his coat pocket, that Sgt. Hall grabbed appellant’s wrist. He observed Sgt. Hall pull the appellant’s hand from his jacket pocket, and as he did so, a bottle of pills were observed in appellant’s hand. He testified that he opened the bottle, and that it contained seventeen pills. He stated that the appellant’s speech was slurred, and that he detected alcohol on his breath, that his eyes were bloodshot and red, and that the appellant had been drinking “a good bit.”

Sgt. Robert Hall testified that he was employed by the Muscle Shoals Police Department on November 10, 1973. He stated that he was riding with Lt. Parrish when they received a police radio report of a disturbance at Ballew’s Truck Stop and Restaurant. He stated that they drove there, that Lt. Parrish spoke to the service station attendant, and that a waitress came to him and pointed out a table at which the appellant and his companion, Ricky Parker, were seated. She stated that they had thrown food, that when he approached the table, the appellant started to get up, staggered and slumped back down. He stated that the appellant tried to get up again and staggered and swayed, that appellant mumbled when he .was asked “had he been drinking.” He stated that in his opinion the appellant was drunk. He stated that he asked the appellant how much he had been drinking, and the appellant replied, “God Damn, I don’t know,” or something to that effect. He stated that he then advised the appellant that he was under arrest for drunkenness, and as he did so the appellant rammed his right hand into his jacket pocket, that he immediately grabbed appellant’s wrist and pulled his hand back from his jacket. He stated that in the appellant’s clutched fist was a bottle of pills. He stated that Lt. Boatwright came up at this time and removed the pills from the appellant’s hand and counted them. He stated that the bottle and the pills were then kept in his possession until he took two of the pills from the bottle and delivered them to the office of the State Toxicologist for examination on November 12, 1973.

Mr. John Kilbourn testified that he was employed by the office of the State Toxicologist at Florence, Alabama, and had been so employed for approximately five and one-half years. He testified that he had done numerous drug identifications and had done graduate work in drug identification. He testified that on November 12, 1973, he received two round orange-yellowish tablets with an A/S imprint on them from Sgt. Robert Hall of the Muscle Shoals Police Department. He testified that he examined' these two tablets and found them to be methaqualone, which were manufactured by the company, Arner Stone, which manufactures these tablets under the brand name of sopers. He testified that these tablets are a controlled substance under the Alabama Uniform Controlled Substances Act, and were placed on the Controlled Substances Act by the State Board of Health on September 30, 1973. He testified that these tablets required the prescription of a registered medical practitioner and were a major tranquilizer or depressant, usually prescribed for older people who have difficulty sleeping.

The appellant moved to exlude the State’s evidence, which was overruled.

The appellant did not present any evidence at trial.

I

The appellant’s motion to quash and demurrer raised the question of the constitutionality of the regulation adopted by the State Board of Health on September 19, 1973, and published on September’ 30, 1973, placing methaqualone and its derivatives and salts on the Controlled Substances list pursuant to the provisions of Title 22, Sections 258(26), 258(30), and 258(38), Code of Alabama 1940, as amended 1971 (The Alabama Uniform Controlled Substances Act, Act No. 1407, Acts of Alabama (1971).

In appellant’s motion to quash and demurrer, he asserts that the placing of the drug in question, methaqualone, on the Controlled ■ Substances list by the State Board of Health was an unlawful act being unlawful delegation of legislative authority to the State Board of Health, and that the indictment was for an offense promulgated by the regulation of the State Board of Health and not by a legislative act as required by Article 3, Sections 42 and 43, of the Constitution of Alabama 1901.

In Sanders v. State, 53 Ala.App. 534, 302 So.2d 117, Judge Harris, speaking for a unanimous court, observed:

“The Legislature has the constitutional right to provide for the creation of administrative boards and commissions with authority to enact regulations and change them from time to time, and to make a violation thereof a criminal offense. In the case of State v. Keel, 33 Ala.App. 609, 35 So.2d 625, we find this pronouncement:
“ ‘The appellate courts of this State are firmly committed to the constitutional right of the Legislature to provide for the creation of administrative boards and commissions with authority to enact regulations and change them from time to time, and that a violation of thepi will be a criminal offense. Ferguson v. Starkey, 192 Ala. 471, 68 So. 348; McElderry v. Abercrombie, 213 Ala. 289, 104 So. 671; Alabama Public Service Commission v. Mobile Gas Co., 213 Ala. 50, 104 So. 538, 41 A.L.R. 872; State v. McCarty, 5 Ala.App. 212, 59 So. 543; Ferguson v. Commissioners’ Court of Jackson County, 187 Ala. 645, 65 So. 1028; Bond v. State Board of Medical Examiners, 209 Ala. 9, 95 So. 295; Parke v. Bradley, 204 Ala. 455, 86 So. 28; Hill v. Cameron, 194 Ala. 376, 69 So. 636; Horn v. State, 17 Ala.App. 419, 84 So. 883; Reims v. State, 17 Ala.App. 128, 82 So. 576.’ ”

In Parke v. Bradley, 204 Ala. 455, 86 So. 28, Mr. Justice Somerville observed:

“It is too well settled for further controversy that the Legislature of Alabama may delegate to officers, or boards, or commissioners, of its own creation and appointment, various governmental powers for the more efficient administration of the laws, subject always to the clearly implied limitation of the Constitution that the lawmaking power, invested exclusively in the Legislature, cannot be delegated to any other department of the government, or to any other agency, either public or private. [Authorities cited therein.]
“But it is thoroughly well settled by the decisions of this, as well as other states, that the implied limitation against the delegation of the lawmaking power was never intended to prevent Legislatures from authorizing their own appointed agencies to make such minor rules and regulations as are necessary or appropriate for the administration and enforcement of the general laws of the state.” [Authorities cited therein.]

To the same effect, see State ex rel. Bond v. State Board of Medical Examiners, 209 Ala. 9, 95 So. 295.

Moreover, this Court and the Supreme Court of Alabama have previously upheld other aspects of the Alabama Uniform Controlled Substances Act. See Boswell v. State, 290 Ala. 349, 276 So.2d 592; Warren v. State, 52 Ala.App. 35, 288 So.2d 817, reversed on other grounds, 292 Ala. 71, 288 So.2d 826; Kenny v. State, 51 Ala.App. 35, 282 So.2d 387, cert. denied 291 Ala. 786, 282 So.2d 392.

Further, as noted by Mr. Justice De Graffenried, then Judge De Graffenried of this Court, in State v. McCarty, 5 Ala.App. 212, 59 So. 543:

“The validity of such statutes, says the Supreme Court of Massachusetts, has been long recognized, and may be upheld upon one or both of two grounds: ‘They may be considered as being within the principle of local self-government as to such matters; the board of health being treated as properly representing the inhabitants in making regulations, which ofter are needed at short notice, and which could not well be made, in all kinds of cases, by the voters in town meeting assembled. Perhaps some of these statutes may also be justified constitutionally, on the ground that the work of the board of health is only a determination of details in the nature of administration which may be by a board appointed for that purpose; and that the substantive legislation is that part of the statute which prescribes a penalty for the disobedience of the rules which they make as agents performing executive and administrative duties.’ ”

Under the foregoing authorities, it is clear therefore that the State Board of Health properly placed the drug “Meth-aqualone,” its salts and derivatives on the list of Controlled Substances, pursuant to Title 22, Sections 258(26), and 258(30), Code of Alabama 1940, as amended 1971. This was properly published, as required by law (Title 22, Section 258(38), Code of Alabama 1940), by publication in a newspaper, or newspapers, of general circulation in the State, to-wit, the Birmingham New and Post-Herald, under date of September 30, 1973. This Court takes judicial notice of the reasonable rules and regulations of the State Board of Health, having been duly adopted, which have the force and effect of law. Sanders v. State, 53 Ala.App. 534, 302 So.2d 117, and authorities therein cited.

It is clear, therefore, that the trial court properly overruled the appellant’s motion to quash and demurrer in this cause.

II

The appellant, by his motion to suppress, asserts that the officers making the arrest of the appellant at the Ballew’s Truck Stop and Restaurant on November 10, 1973, lacked probable cause since the arrest in question was for public drunkenness, a misdemeanor, and they had no warrant for the appellant’s arrest. This argument, however, overlooks the fact that an officer may arrest for a misdemeanor committed in the officer’s presence. Title 15, Section 154, Code of Alabama 1940; Green v. State, 238 Ala. 143, 189 So. 763, and authorities cited therein.

In the case at bar, the officers had received a complaint upon arrival at the scene that the appellant and his companion had thrown food within the restaurant. Upon approaching the appellant and his companion, it was apparent to the officers that each had consumed a great deal of alcohol, and each had difficulty in standing. In fact, the appellant’s speech was slurred and he mumbled, his eyes were red, and his face flushed. The odor of alcohol about his person was distinct. In fact, the appellant staggered and fell into his seat before rising again and standing in a weaving manner. Clearly here, the statutory requirements were met. Title 14, Section 120, Code of Alabama 1940. This was not a case of the accused merely staggering. See Pettus v. State, 26 Ala.App. 347, 159 So. 502; Huckabee v. State, 34 Ala.App. 288, 39 So.2d 43.

It is clear from the testimony of the officers in this case that they had probable cause to arrest the appellant, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Wright v. State, 54 Ala.App. 558, 310 So.2d 482, and the trial court therefore properly overruled the appellant’s motion to suppress and his motion to exclude the State’s evidence. Tatum v. State, 32 Ala.App. 128, 22 So.2d 350; Starnes v. State, 30 Ala.App. 156, 2 So.2d 333; Jordan v. State, 44 Ala.App. 21, 201 So.2d 63.

It therefore follows that the arrest of the appellant at Ballew’s Truck Stop and Restaurant was proper, and the search of his person incident thereto was clearly lawful. Jordan v. State, 44 Ala.App. 21, 201 So.2d 63, and authorities therein cited.

Ill

The appellant calls attention to Record pages 39-40, where, during the closing argument, the appellant moved for a mistrial because of the following:

“MR. HUNT CONTINUED: Did he or did he not obtain these things legally.
“MR. McCUTCHEN: I object to that argument, may it please the Court. It’s illegal. All he had to do was bring a pharmacist or physician and put them on the stand and show a prescription and that case would be nol prossed and will be tomorrow.
“MR. HUNT: We move for a mistrial at this time on the grounds the District Attorney has attempted to prejudice this jury in making statements out of turn before this jury that the defendant should or should not put on evidence in this case and it is highly prejudicial, illegal, irregular, and we except to it and move the Court for a mistrial.
“BY THE COURT: Overruled.
“MR. HUNT: WE RESERVE EXCEPTION.
“BY THE COURT: Í will say this. I don’t think the District Attorney said exactly that. If he did, I instruct you, the jury, to dismiss any reference to a statement the state made that the defendant must do this or must do that. You will dismiss it from your minds. The motion is overruled and let’s get on. Argue the evidence.”

We do not consider the above comment, in light of the trial court’s instruction, to constitute prejudicial error. The trial court observed that such comment was merely arguendo, and not to be considered as a comment on the defense’s failure to present evidence. West v. State, 54 Ala.App. 647, 312 So.2d 45, cert. denied 294 Ala. -, 312 So.2d 52, and authorities therein cited.

It is clear that the district attorney was attempting to point out that the prosecution need not negative those matters which are properly matters of defense, i. e., whether or not the appellant had a prescription for the drug in question, see Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert. denied 291 Ala. 801, 277 So.2d 389; and Johnson v. State, 51 Ala.App. 649, 288 So.2d 186, and therefore such should not be considered as a suggestion or comment on the failure of the appellant to testify at trial. In light of the trial court’s instructions, we are of the opinion that error is not here shown. West v. State, supra, and authorities therein cited.

IV

The appellant next calls attention to record pages 45 and 46 where he attempted to make his exception to the trial court’s oral charge pertaining to the reading to the jury of certain sections of the Code of Alabama. The record discloses (R. p. 46) that the jury had retired prior to the appellant’s exception.

In Cox v. State, 280 Ala. 318, 193 So.2d 759, Mr. Justice Coleman made the following observation:

“In the instant case, defendant and his counsel were present in court. They heard the oral charge. Defendant then had the burden and the opportunity to state defendant’s objections to the court before the jury retired to determine their verdict. So far as we are advised, that rule has always been followed in this state. To allow defendant to complain of error in the charge at a later time would give him the opportunity to be aware of the court’s error, but to remain silent, speculate on a favorable verdict, and in the event of an unfavorable verdict to obtain reversal on a ground which defendant deliberately chose not to raise by exception taken at the appointed time.
“When a party has been given fair opportunity to exercise a right and fails to do so, we do not think it can be truly said that the party was denied that right. Because defendant did not except to the oral charge, the trial court will not be reversed for the alleged error in that charge.”

We are of the opinion, in light of the above, that the appellant’s exception was not timely, and because of this the oral charge is not properly presented to this Court for review. Meadows v. State, 182 Ala. 51, 62 So. 737; Brown v. State, 27 Ala.App. 32, 165 So. 405; Volume 6A, Criminal Law, <$=>841.

Moreover, the alleged exception was to the trial court’s reading from Title 22, Sections 258(30) and 258(40), as well as reading the minutes of the State Board of Health of September 19, 1973, placing Methaqualone on the Controlled Substances list. There was not error in the trial court’s reading these Code sections, under which the appellant was being prosecuted, to the trial jury, nor in reading the minutes of the State Board of Health here in question to the jury in its charge. Frazier v. State, 159 Ala. 1, 49 So. 245; Green v. State, 42 Ala.App. 439, 167 So.2d 694, cert. denied 277 Ala. 698, 167 So.2d 701.

V

We note in this record a conflict between the minute entry (R. pp. 60-63) and the colloquy at the time of sentence (R. p. 58), which colloquy fails to show that the appellant was asked if he had anything to say before the imposition of sentence in this cause. In light of this, we feel it proper to remand this cause for proper sentence, otherwise the judgment is affirmed. Smith v. State, 28 Ala.App. 506, 189 So. 86; Thomas v. State, 280 Ala. 109, 190 So.2d 542.

We have carefully reviewed this record, and except for the failure to show an allo-cutus before the imposition of sentence, we find no error therein. It therefore follows that the judgment of the trial court is due to be and the same is hereby affirmed, but remanded for proper sentence.

Affirmed, but remanded for proper sentence.

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

CATES, P. J., dissents.

CATES, Presiding Judge

(dissenting).

I do not think that under our constitution the Legislature may pass, Pilate-like, its power to define a crime to an executive officer or body. State v. Vaughan, 30 Ala.App, 201, 4 So.2d 5. The Public Service Commission is a legislative arm empowered to make only findings of fact within the scope of a formula laid down by the Legislature. Ala.Digest, Constitutional Law, Key No. 60.

This case does not show a minor rule or regulation to fill an interstitial gap in a statute. See Parke v. Bradley, 204 Ala. 455, 86 So. 28. Delegation of the power to define crime would be the beginning of despotism.

      . Our current session is about to make legal a 55 mile per hour speed limit. See Brown, 32 Ala.App. 246, 24 So.2d 450. The need of such a statute is an implied admission of a lack of law beforehand.


author: ALMON, Judge.

text:
    William N. LOWERY, alias v. STATE.
    3 Div. 227.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1974.
    Rehearing Denied Oct. 29, 1974.

      Frank W. Riggs, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and John D. Whetstone, Asst. Atty. Gen., for the State.
   ALMON, Judge.

Appellant was convicted of murder in the second degree and sentenced to serve twenty years in the penitentiary.

There is no need to set out the facts of this case because of our conclusion that the judgment must be reversed because of the trial court’s oral charge to the jury. Suffice it to say the shooting occurred at a Montgomery night club. There was ample evidence to submit the question of appellant’s guilt to the jury.

The court in its oral charge to the jury gave the following definition of malice:

“Malice, in the common acceptation, malice means hatred or ill will toward another; but in law, malice means a wrongful act purposefully done and without just cause or legal excuse. Malice is an ingredient of murder.

Contrary to the above definition, malice is not an act; malice in law is a state of mind. The definition given to the jury was misleading. First degree manslaughter under certain circumstances could consist of a “wrongful act purposefully done and without just cause of legal excuse.” Some of the jurors could have found the facts to he sufficient to constitute a crime no greater than first degree manslaughter and, under the circumstances, would be compelled to return a verdict of murder under the preceding definition of malice given by the trial court. The foregoing definition of malice seems to be the only attempt by the court to explain the term, either in his oral charge or in any of the requested charges. The appellant’s counsel duly excepted to the oral charge in this particular.

The case of McGuffin v. State, 178 Ala. 40, 59 So. 635, is distinguishable on this point. There, it was said:

“There was no error in that part of the court’s oral charge marked (1). ‘Malice, in law, does not necessarily mean hate or ill will, but is defined as any unlawful act willfully done, without just cause or legal excuse. It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation.” (Emphasis ours)

The underlined portion of the excerpt from McGtiffin clarifies any ambiguity in defining “malice” as an act. It appears that this case is reversible for the erroneous definition of malice given by the trial judge.

Appellant further argues in brief that hospital records introduced at the trial were inadmissible under Tit. 7, § 383(1), Code of Alabama 1940, Recompiled 1958, because the records were mailed to the district attorney rather than to the circuit court clerk, and the further claim that some of the records were inadmissible as being illegible.

The obvious purpose of the statute in providing that the records be delivered .to the clerk of the circuit court is to provide a uniform procedure. The statute providing for the mode of preparing, certifying, and of the delivery of the records is Tit. 7, § 383(2), Code, supra. Appellant’s argument appears too hypertechnical in view of the stipulation that the assistant district attorney imediately redelivered the records to the circuit clerk upon his discovery that the envelope contained hospital records. The following stipulation appeared in the record:

“ ‘The following is stipulated between counsel:
“ ‘April 23, 1973.
“ ‘TO: Richard Jordan
“ ‘SUBJECT: Hospital records from University of Alabama Hospital in William Lowery — Parham case. .
“ ‘The above records were received by mail in the District Attorney’s Office by me. I did not know what was in the large brown envelope at the time I signed for it. Upon opening the envelope, I saw that it was the above records; and I took them then to the Circuit Clerk’s office and gave them to Polly Eubanks. The records were in my possession about five minutes. I did not read or examine them, or in any other way disturb them.
“'/s/ K. W. Tones ’ ”

We are of the opinion that a substantial compliance with the statute was made. There was nothing in the record to even suggest that the hospital records were less than authentic.

It would appear that the hospital records were relevant to show the deceased was under constant medical attention for abdominal wounds during the time intervening the shooting and death. This tends to prove a causal nexus between the gunshot wounds and death. A word of caution here, however, upon a new trial. From a reading of the record it would appear that there was some misapprehension at the trial level that this statute authorizes, without qualification the carte blanche admission of all the hospital records. We note that § 383(1) begins by saying, "When the original would be admissible in any suit or proceeding in a court in the state . . . and § 383(2) provides, “When so prepared and certified the copy of said hospital records shall be admissible in evidence in any court of the state, if and when admissible . . . ”

It can therefore be seen that the statute merely provides a procedure by which copies of hospital records when properly certified may be introduced into evidence without the production of the original and without the custodian of these records being present to lay a predicate. If they are otherwise admissible we see no reason to place any construction on this statute in this regard other than has been placed upon Tit. 7, § 415, Code, supra. In other words, the test of relevancy still pertains as well as the opinion evidence rule and other applicable rules of evidence. Stremming Veneer Co. v. Jacksonville Blow Pipe Co., 263 Ala. 491, 83 So.2d 224.

In view of our reversal on the oral charge, this Court has not seen fit to review the over three hundred pages of hospital records to determine whether some of the material was inadmissible and prejudicial. We merely point these matters out in view of a new trial.

For the error indicated, the judgment of conviction is reversed and the cause remanded for new trial.

Reversed and remanded.

All the Judges concur except CATES, P. J., not sitting.


author: BLOODWORTH, Justice. JONES, Justice

text:
    In re William N. LOWERY, alias v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1041.
    Supreme Court of Alabama.
    March 6, 1975.
    Rehearing Denied April 10, 1975.

      William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for petitioner, the State.
    Frank W. Riggs, Montgomery, for respondent.
   BLOODWORTH, Justice.

The State’s petition for writ of certiora-ri seeking to review and revise the decision and judgment of the Court of Criminal Appeals in Lowery v. State of Alabama, 55 Ala.App. 511, 317 So.2d 357, was granted on the ground that “a material question requiring decision is one of first impression in Alabama.”

The Court of Criminal Appeals reversed and remanded defendant’s conviction for murder in the second degree holding that the trial judge erred in charging the jury that:

“Malice, in the common acceptation, malice means hatred or ill will toward another; but in law, malice means a wrongful act purposefully done and without just cause or legal excuse. Malice is an ingredient of murder.”

In its opinion, the Court of Criminal Appeals wrote:

“Contrary to the above definition, malice is not an act; malice in law is a state of mind. The definition given to the jury was misleading. First degree manslaughter under certain circumstances could consist of a ‘wrongful act purposefully done and without just cause of legal excuse.’ Some of the jurors could have found the facts to be sufficient to constitute a crime no greater than first degree manslaughter, and, under the circumstances, would be compelled to return a verdict of murder under the preceding definition of malice given by the trial court. The foregoing definition of malice seems to be the only attempt by the court to explain the term, either in his oral charge or in any of the requested charges. The appellant’s counsel duly excepted to the oral charge in this particular.”

The trial judge’s charge is almost identical to a charge found in the 1893 case of Boulden v. State, 102 Ala. 78, 15 So. 341, wherein this Court held that the following charge correctly defines “malice” in its legal sense and was properly given:

“(5) T charge you, gentlemen of the jury, that malice, in its common acceptation, means ill-will against a person, but in its legal sense means a wrongful act, done intentionally, without just cause or excuse.’ ”

The only material distinction between the two charges is use of “purposefully” in the instant case and use of “intentionally” in Boulden. This is a distinction without a difference.

Two cases appear in Shepard’s Alabama Citations as having cited or followed Boulden: McGuffin v. State, 178 Ala. 40, 59 So. 635 (1912) and Patterson v. State, 156 Ala. 62, 47 So. 52 (1909).

In McGuffin, this Court held there was no error in giving the following charge:

“ * * * ‘Malice, in law, does not necessarily mean hate or ill will, but is defined as any unlawful act willfully done, without just cause or legal excuse. It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation.’ (Citations omitted.)”

Patterson and Boulden were cited as authority.

In Patterson, an almost identical charge was involved, viz.:

“ * * * T charge you, gentlemen of the jury, that malice in law does not necessarily mean hate or ill will, but is defined as any unlawful act willfully done, without just cause or legal excuse. It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation.’ ”

In holding there was no error in giving this charge, Justice Denson wrote for the Court in Patterson:

“ * * * When the case was here on a former appeal, this charge, with the exception of the last sentence, was presented for review; but the court, finding reversible errors in the record aside from a consideration of the charge, after suggesting that malice might be so defined on another trial as to exempt the definition from the criticism in the Cribbs Case [Cribbs v. State], 86 Ala. 613, 6 So. 109, declined to decide whether or not, if the charge were the pivotal point, the judgment would be reversed thereon. The charge considered in the Cribbs Case was in this language: ‘Malice, in law, does not necessarily mean hatred or ill will, but the intentional doing of an unlawful act.’ It is manifest, as was said by the court in that case, that the definition of malice as there given would constitute every intentional and unlawful homicide malicious, though committed in heat of passion excited by sufficient provocation. And the court, in concluding the discussion, gave a definition of legal malice in this language: ‘Malice, as an ingredient of murder, may be defined, in legal phrase, as the killing of a human being without legal justification, excuse, or extenuation.’
This brings out clearly the defect in the definition of malice that was under discussion there, and shows that it consisted in the fact that lack of excuse or extenuation was not hypothesized. In this view, we think the Cribbs Case is not only not condemnatory of the charge in judgment here, but it is an authority in support of its correctness. The charge is also fully and precisely supported by Boulden’s Case, 102 Ala. 78, 86, 15 So. 341, and likewise finds support in Stoball’s Case [Stoball v. State], 116 Ala. 454, 23 So. 162. See, also, authorities cited to the point in Boulden’s Case. The court committed no error in giving the charge.”

The Cribbs case, referred to in Patterson, supra, holds that the giving of an oral instruction by a court that “malice, in law, does not necessarily mean hatred or ill will, but the intentional doing of an unlawful act” is reversible error unless it contains the added phrase, “without legal justification, excuse, or extenuation.” Had such phrase not been substantially covered in the instant charge, the latter would have been bad.

Thus, Boulden is direct authority for the proposition that the giving of a charge identical in all material respects to that given in the present is not reversible error.

In both McGuffin and Patterson, there were almost identical charges with the additional clause, “It is that mental state or condition which prompts the doing of an unlawful act without legal justification or extenuation” which the Court of Criminal Appeals says clarifies the ambiguity in defining “malice” to be an act. No doubt this additional phrase makes for a better instruction although we are unwilling to hold that without it the giving of the instant charge constituted reversible error.

Moreover, charges of similar import have been held to be proper to give and to be sustained by authority in Coates v. State, 1 Ala.App. 35, 56 So. 6 (1911) where the charge was, inter alia,

“ * * * malice, as an ingredient of murder, does not necessarily mean hatred or ill will, but it is the unlawful and willful killing of a human being without any legal excuse or extenuation.”

and in Stoball v. State, 116 Ala. 454, 23 So. 162 (1897) where the charge was, inter alia,

“ * * * ‘Malice,’ as the word is used in courts of law, signifies a wrongful act done intentionally, without legal justification or excuse. The word, as commonly used in the every day affairs of life, has, I believe, the meaning of personal hatred, or ill will. This is something more than its meaning here. * * *

As the reason for its reversal, it is suggested by the Court of Criminal Appeals that “some of the jurors could have found the facts to be sufficient to constitute a crime no greater than first degree manslaughter and, under the circumstances, would be compelled to return a verdict of murder under the preceding definition of malice given by the trial court.”

In view of the court’s oral instructions on “malice” and on the various degrees of manslaughter and murder, particularly manslaughter in the first degree, this suggestion appears unfounded. The court instructed the jury, inter alia:

“Manslaughter in the first degree, as it’s known and designated in the law, is this: it is the intentional and unlawful killing of a human being by another; and is distinguished from murder by the absence of malice, in manslaughter. If the killing of the deceased was prompted by malice on the part of the Defendant, then the killing cannot be manslaughter, but is murder. Manslaughter is the unlawful killing of another without malice, either expressed or implied — which may be either voluntary, or from the sudden heat of passion — or involuntary, but in the commission of an unlawful act. It simply means the voluntary and unlawful depriving of a human being of his life.”

It must be concluded that if the trial judge, in his oral instruction on “malice” in the instant case, had left out the phrase “without just cause or legal excuse” (as in the Cribbs case) the Court of Criminal Appeals’ rationale for reversal would be valid. This was the exact situation in Redden v. State, 7 Ala.App. 33, 60 So. 992 (1913) where the trial judge charged:

“ ‘Malice in law is the intentional doing of a wrongful or unlawful act.’ ”

In reversing the cause, the Court of Appeals held:

“ * * * That definition of the malice which is an essential ingredient of the offense of murder is materially incorrect. Under that definition, every intentional and unlawful killing of a human being would be murder, though the act was committed in the heat of passion excited by sufficient provocation; for the intent accompanying the voluntary killing of a human being to be malicious within the meaning of the law defining murder, there must be an absence of any legal justification, excuse, or extenuation. The intent described in the statement excepted to may accompany a homicide which does not rise above the grade of manslaughter. Patterson v. State, 156 Ala. 62, 47 So. 52; Cribbs v. State, 86 Ala. 613, 6 So. 109. * * * ” [Emphasis supplied.]

Motion of defendant to dismiss the petition for writ of certiorari is denied. The judgment of the Court of Criminal Appeals is reversed and remanded.

Motion denied. Reversed and remanded.

HEFLIN, C. J„ and MERRILL, MADDOX, FAULKNER and SHORES, JJ., concur.

JONES, J., dissents.

ALMON and EMBRY, JJ., recuse themselves.

JONES, Justice

(dissenting):

This Court has now decided — erroneously in my opinion — that malice, in its legal definition, means a wrongful act purposefully done and without just cause or legal excuse, rather than the intent or state of mind with which such wrongful act is committed. I respectfully dissent.

The fallacy of so defining malice is apparent in the following example: A defendant is charged with homicide. The state concedes that the element of premeditation necessary for first degree murder is lacking, but contends that the evidence is sufficient for a jury’s finding of malice in support of a guilty verdict for second degree murder. The defendant says that he killed the victim in a heat of passion under such extenuating circumstances as would allow the jury to return a verdict for first degree manslaughter rather than second degree murder.

In other words, the triable issue for determination by the jury is whether the defendant is guilty of murder in the second degree or manslaughter in the first degree. Continuing our example, the trial court instructs the jury as follows:

“Ladies and Gentlemen, I charge you that the legal distinction between second degree murder and first degree manslaughter is malice; that is, the element of malice is essential to the offense of second degree murder, while malice is not an essential element of first degree manslaughter. Unless you are satisfied beyond a reasonable doubt that the defendant maliciously took the life of the victim, as I will now define the term malice to you, you cannot find the defendant guilty of murder in the second degree. Malice, in the common acceptation, means.hatred or ill will toward another ; but in law, malice means a wrongful act purposefully done and without just cause or legal excuse.”

For the purpose of appellate review, the hypothetical setting above is essentially the situation here before us. Look again at the key words “malice means a wrongful act . . . ” Do' these words, in the trial court’s definition of malice, provide the jury an intelligible definition as they seek to determine whether the defendant is guilty of second degree murder (for which a finding of malice is essential), or first degree manslaughter (where the element of malice is nonessential) ?

Obviously, the question is self-answering. If malice is the wrongful act, then there is nothing left for the jury’s determination. The homicide, here admitted by the defendant, is a wrongful act and, thus of itself (according to this definition), constitutes the element of malice. The definition, “malice is a wrongful act,” does not leave to the jury the determination that malice may be inferred from the doing of a wrongful act, but instructs them definitively that malice is a wrongful act. Therefore, the Court’s definition of malice is the equivalent of a directed verdict of conviction for murder in the second degree.

Add, now, the words “purposefully done” so that we are looking at the phrase “malice means a wrongful act purposefully done.” Do these last two words in any way change or modify our analysis of the definition thus far? The answer must be, “No”; and this for the reason that “purposefully done” describes equally the two possible jury verdicts. No qualifying or distinguishing feature as between second degree murder and first degree manslaughter is denoted by the addition of these two words. “Purposefully done” only adds the element of intent which is an essential element of both offenses.

Now, to complete the definition, add the remaining words, “and without just cause or legal excuse,” so that the full language reads, “malice means a wrongful act purposefully done and without just cause or legal excuse.” Again, we ask, do these concluding words serve in any way to qualify or render less valid our initial analysis of the trial court’s definition of malice? And, again, we must answer, “They do not.” “Without just cause or legal excuse” are terms equally applicable to second degree murder and first degree manslaughter. This can be forcibly demonstrated by reverting the phrase from the negative to the positive and observing that one who commits a homicide with just cause or legal excuse would be guilty of neither offense.

All that I am trying to say was said long ago, and said better, by Justice Clopton in Cribbs v. State, 86 Ala. 613, 6 So. 109 (1888);

“In Hadley v. State, 55 Ala. 31, [malice] is thus defined: ‘Malice, as an ingredient of murder, is but a formed design by a sane mind, to take life unlawfully, without such impending danger to be averted thereby as will render it excusable, and without such provocation as will repel the imputation of formed design.’ Manslaughter in the first degree, which is the voluntary depriving a human being of life, is unlawful. The characteristic which distinguishes it from murder, is the absence of malice. Though the taking of life under provocation is neither justifiable nor excusable, is intentional and unlawful, yet the provocation may be so great, and calculated to exasperate as to deprive the homicide of its malicious character. The definition of malice, as given in the charge, would constitute every intentional and unlawful homicide malicious, though committed in heat of passion, excited by sufficient provocation.”

After stating the foregoing definition of malice in the context of the alternative verdicts of murder and manslaughter, the Court then concluded:

“Malice, as an ingredient of murder may be defined, in legal phrase, as the killing of a human being without legal justification, excuse, or extenuation.”

The majority opinion takes this last quoted sentence from Cribbs as authority for affirming the correctness of the definition of malice given in this case. The fallacy here is twofold:

1) This concluding sentence of the Court’s definition of malice is legalistic in form and inappropriate for a jury instruction, and
2) it includes the term “extenuation,” which appropriately distinguishes malice from manslaughter and which is altogether missing from the charge in this case. Stated another way, legal justification or excuse are complete defenses to both murder in the second degree and manslaughter in the first degree; but extenuation ' would serve only to reduce murder in the second degree to manslaughter in the first degree.

There is an old retort by one advocate to another which admonishes, “Strive mightily for what you believe is right, but at least consider the possibility that you may be wrong.” Mindful of this admonition (compounded by a 6 to 1 vote), I must nevertheless express my personal view that the jury instruction approved by the Court in this case degrades English grammar and fails to furnish the jury a clear definition of malice.

      . The first two sentences of the trial court’s jury instructions in our hypothetical situation constitute a reasonable summary of the charge given in the instant case before us, and the last sentence is an exact quote from the instant case.


author: BOOKOUT, Judge.

text:
    William N. LOWERY v. STATE.
    3 Div. 227.
    Court of Criminal Appeals of Alabama.
    May 6, 1975.
    Rehearing Denied June 17, 1975.

      Frank W. Riggs, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and John D. Whetstone and Kermit M. Downs, Asst. Attys. Gen., for the State, appellee.
   On Remandment

BOOKOUT, Judge.

This Court in its original opinion, prior to remandment by the Alabama Supreme Court, did not review certain hospital records nor admission of the death certificate into evidence over objection, due to finding reversible error on the jury charge in question. Since the Supreme Court found the jury charge to have been proper, we must now pass upon the questions presented by admission of thosé documents. Particular attention has been called to the admission of hospital records solely upon certification by their custodian pursuant to Act No. 77, Acts of Alabama, 1965, 2d Special Session, approved September 30, 1965 (Title 7, §§ 383(l)-383(3) Code of Alabama Recompiled). During the course of the trial, the State called as a witness Dr. William H. Chambless, a Montgomery physician and surgeon, who had treated the deceased, James T. Parham. He testified that he first saw the deceased around 1:30 A. M., May 13, 1972, in the Emergency Room of Montgomery Baptist Hospital, and operated on him for some three and one-half hours for a gunshot wound. He later performed three more operations then transferred the deceased to the University Hospital in Birmingham on June 3, 1973, where he died some ten days later.

Dr. Chambless testified from his notes, but stated that he did not personally treat the deceased after transfer to the Birmingham hospital although he did confer at times with Dr. George Hallenbeck, the attending physician in Birmingham, by telephone and by mail. He stated that the deceased was dying from the gunshot wound when he transferred him to Birmingham, that:

“My purpose was for referring and transferring the patient, James Parham, to Dr. George Hallenbeck at the University Hospital is because of his extremist condition, with the hopes that possibly with some special procedures, with one type of procedure, with one type of treatment we call hyperalimentation; that is, forcing a lot of protein into this man to give him a better chance of healing.”
Dr. Chambless further testified:
“The cause of death was massive gastrointestinal bleeding from a gun shot ■ wound in the abdomen, for which I initially treated him, and operated on him four times, and he continued to go downhill, as was anticipated.”

On cross examination, the following occurred :

“Q. (By Mr. Riggs) And you talked to the doctor in Birmingham ?
“A. And had letter communication with him.
“Q. He has communicated with you by telephone and by letter; is that right?
“A. That’s correct.
“Q. And your testimony about the cause of death is based on those communications ?
“A. No; it’s because I treated him initially, and he was dying of a continuous process that continued when I first saw him.
“Q. He wasn’t dead when he left here, was he?
“A. He was in very critical condition, and he died of the wounds that I treated him for.
“Q. He wasn’t dead when he left here was he ?
“A. I attested the fact that he died of the wounds that he received for which I operated on him four times.
“Q. Was he dead when he left here?
“A. He was a dying man when he left here, Mr. Riggs.
“A. . . . He was dying, he was not dead when he left here, he was dying, and he died of the wounds that he sustained.”

Certified copies of the hospital records from Montgomery and from Birmingham were introduced over objection pursuant to Act No. 77, supra. A certified copy of the death certificate signed by Dr. Hallenbeck in Birmingham was introduced, without authentication by parol evidence, pursuant to Title 7, § 386, Code of Alabama 1940. Counsel for appellant duly objected to admission of those documents and was overruled. He, likewise, objected to Dr. Chambless’ testimony concerning cause of death based upon the University Hospital records from Birmingham and his communications with the Birmingham physician. Counsel also objected that the Birmingham hospital records were not mailed to the Clerk of the Circuit Court in Montgomery as required by law, but were mailed to the District Attorney. Likewise, counsel contends the certified copy of the death certificate should not have been admitted as evidence of the cause of death.

I

In reviewing the record, this Court finds that the Birmingham hospital records were not delivered to-the Circuit Clerk in strict compliance with the wording of Act No. 77, supra. We find this to be nonprejudicial since it appears that the District Attorney forthwith delivered the records to the Circuit Clerk and no showing is made that the District Attorney did anything improper with the records while in his custody. Alabama Supreme Court Rule 45.

II

We find no fault in Dr. Chambless testifying that in his opinion the deceased was dying from the gunshot wounds when he transferred him to Birmingham. He was an expert witness, and the evidence showed that he treated the deceased extensively, operating on him four times, and could, therefore, express his medical opinion as to the condition of the patient when he last treated him, including his opinion or prognosis that the patient was dying from the gunshot wound. Cobb v. State, 50 Ala.App. 707, 282 So.2d 327.

III

There is a serious question as to whether Act No. 77, supra, applies in criminal prosecutions. It could he said that one of the main purposes for the Act was to prove special damages in civil suits without calling the custodian of hospital records to personally testify as to the reasonable value of hospital charges. In view of the certificate of the custodian of such records required by Section 3 thereof, more particularly the last paragraph dealing with the, “reasonable value and price of the various charges,” shown in the records, it could be strongly argued that this Act was civil in nature only. Harris v. State, 42 Ala.App. 264, 160 So.2d 511.

Section 1 of the Act states in part:

“When the original would be admissible in any suit or proceeding, ... a certified copy of the hospital records . . . when certified and affirmed by the custodian . . . shall be admissible in evidence without further proof . . . .” (Emphasis supplied)

Likewise, it could be argued that the purpose of the Act is merely to allow certified copies of original records to be admitted without the necessity of calling the custodian as a witness, but that the contents of the records must be shown to be admissible before this can be done.

We find that Act No. 77, supra, allows a properly certified copy of hospital records to be admitted into evidence without parol evidence from the custodian, but only, by the explicit terms of that statute, when the original would be admissible.

Hearsay in documents does not become admissible by merely having a custodian certify a copy to be the same as the original document. Here the copies of the hospital records could have been admitted without parol evidence of authenticity only if the original records were admissible. The record in this case shows the deceased to have been transferred from Montgomery to the University Hospital in Birmingham where he underwent treatment for some ten days until his death. During that time, he was treated by a variety of physicians in addition to Dr. Hallenbeck. Dr. Chambless did not treat him during that time, and did not see or make any of the hospital records in Birmingham. While Dr. Chambless could give his opinion as to the patient’s condition when he last treated him and his prognosis as to the likelihood of recovery, he was not attending the deceased at the time of death and could not testify as to the cause of death based upon personal knowledge, but upon what he was told, heard or read. We do not think Dr. Chambless could authenticate the records from University Hospital in Birmingham and, in fact, no attempt was made nor a predicate laid for him to do so. There was no' showing by competent evidence that he was familiar with Parham’s examination, diagnosis or treatment as a patient in Birmingham. The records were admitted solely on authority of Act No. 77, supra. See Ward v. State, 44 Ala.App. 229, 206 So.2d 897, syllabus 10 (1966-67).

The University Hospital records consist of 106 pages starting with a summary of the condition of the deceased during his treatment there and a statement as to the cause of death. The first paragraph of that report states:

“FINAL DIAGNOSIS: Gunshot wound of the upper abdomen followed by complications requiring four operative procedures before transfer to UH where operative procedure was done as an attempt to save his life for exsanguination which was followed by continued picture of sepsis and blood loss and progressing renal failure, bleeding to death.”

The summary appears to have been written by William D, Johnston, M.D. The documents contained various physicians’ notes, admission forms, daily medical treatment charts, nurses’ notes and other material giving a detailed account of the extensive treatment Parham received. There is no doubt that these documents contained hearsay. The State cites National Life and Accident Insurance Company v. Singleton, 193 Ala. 84, 69 So. 80, as authority for asking Dr. Chambless the following question:

“Q. Doctor, based on your personal information, and based on examination of State’s Exhibits 4, 5 and 7, do you have an opinion as to the cause of death of James Parham?”

Over vigorous objection by the Defense, the doctor was allowed to give his opinion as to the cause of death, previously quoted herein.

The National Life case, supra, holds that the cause of death is a matter of expert testimony and that an expert may be asked hypothetical questions. Here, there was no predicate laid by the State for asking the doctor a question concerning the University Hospital records. No showing was made that he had ever seen those records or that he was familiar with them or the treatment the deceased received in Birmingham. The trial court had previously sustained an objection to evidence concerning Dr. Chambless’ telephone conversation with the attending physician in Birmingham. The State merely placed the records in evidence and immediately asked the doctor’s opinion of the cause of death, based partially upon those records without a showing that the doctor had ever seen them.

There is no shortcut available to the prosecution in proving the elements of a murder case. The cause of death being a very critical element in a murder case, the State cannot unlock the flood gates with Act No. 77, supra, and unleash a torrent of otherwise inadmissible hearsay evidence going to such a key element of its proof.

IV

In Hutchens v. State, 45 Ala.App. 507, at p. 520, 232 So.2d 687, at p. 700, on rehearing, Judge Cates wrote:

“We consider that Act No. 77, approved September 30, 1965, p. 102 is not by the terms of its first clause pertinent so as to justify admission of Exhibit ‘40.’ Accordingly, we do not decide whether the words therein of ‘any suit or proceeding’ embrace criminal trials. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 and Douglas v. Ala., 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 might indeed narrow the scope of the broad language found in Todd v. State, 13 Ala.App. 301, 69 So. 325.
“Nevertheless, we adhere to the view that Supreme Court Rule 45 averts error.
“Application overruled.”

We do not find that Supreme Court Rule 45 averts error in the instant application of the Act. We further hold that where Act No. 77, supra, is used to prove a material element in a criminal prosecution, there may arise a strong probability that the defendant may be denied his right to be confronted by witnesses and to cross examine them pursuant to Article 1, § 6, Constitution of Alabama 1901 and Amendments Six and Fourteen of the United States Constitution.

V

None of the attending physicians from Birmingham were produced by the State as witnesses. Regardless of Title 7, § 386, Code of Alabama 1940, a certified copy of a death certificate cannot be used alone to prove the cause of death as alleged in a murder indictment where the physician attending the deceased at the time of his death, and who signed the death certificate, was within the state, but was not called as a witness by the prosecution. Holman v. Washington, 364 F.2d 618 (5 Cir. 1966).

In Holman, the United States Court of Appeals, 5th Cir., held:

“The constitutional right of confrontation and cross-examination to the extent guaranteed by the Sixth and Fourteenth Amendments cannot be sidestepped because it happens to be convenient for one of the parties. The importance of this right is emphatically demonstrated by the existence of the numerous safeguards designed for its protection. In addition to the Sixth Amendment of the United States Constitution, the right is also guaranteed by the Constitution of the State of Alabama, Article I, Section 6, Constitution of Alabama, 1901.
“The constitutional right of confrontation could never have any greater meaning than when a person is on trial for his life under an indictment charging first degree murder. . . . ”

It should, likewise, be pointed out that regardless of holdings prior to 1940, when the legislature codified all statutes into the 1940 Code of Alabama, the death certificate section was codified in Chapter 10, Article 2 of Title 7, entitled, “Civil Remedies and Procedure.” A similar section does not appear in the Criminal Procedure sections of Title 15 of the Code.

We are not holding that a certified copy of a death certificate is inadmissible. We hold that such cannot be used as the sole evidence in a criminal prosecution for murder to prove the cause of death where live witnesses are available to the State, but are not used for that purpose. Likewise, it cannot be used in conjunction with other documents introduced pursuant to Act No. 77, supra, or statutes of similar import where the end result would be proof of such key element of the murder charge solely on the basis of certified copies of documents, but without bringing forth available witnesses to confront the defendant or offer him an opportunity to cross examine them concerning their conclusions.

It could be argued that a certified copy of a death certificate is admissible as presumptive proof of the cause of death, as provided for in § 386, supra, and that the defendant may call expert witnesses to rebut such presumption. In a civil case, such an interpretation would not be unreasonable. In a criminal case, we think such a use of a presumption would be unconstitutional.

The burden of proof in all criminal prosecutions rests upon the State, with the presumption of innocence attending the defendant until that burden of proof has been met. To allow the State to simply introduce a certified copy of a death certificate and thus shift the burden to the defendant to disprove the facts set out therein would be an unconstitutional burden of such weight as to deprive a defendant of a fair trial and due process of law.

By use of certified copies of business documents and official records under special statutes providing for such, it could be conceivable that the State could prove some offenses without the necessity of calling any witnesses at all, except for the guarantees of our state and federal constitutions. The right of a defendant to be confronted by witnesses against him, includes the right of cross examination. Madden v. State, 40 Ala.App. 271, 112 So.2d 796 (1959), and cases cited therein.

As suggested by this Court earlier in Hutchens, supra, we find Todd v. State, 13 Ala.App. 301, 69 So. 325 (1915) to be modified in scope to conform with Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). See also, Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). For reasons herein-above set out, we find the appellant is due a new trial to be conducted in accordance with the principles herein enunciated.

Reversed and remanded.

All the Judges concur.


author: FAULKNER, Justice.

text:
    In re William N. LOWERY v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1359.
    Supreme Court of Alabama.
    July 31, 1975.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for petitioner.
   FAULKNER, Justice.

Petition of THE State by its Attorney General for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Lowery v. State, 55 Ala.App. 514, 317 So.2d 365.

Writ denied.

HEFLIN, C. J., and BLOODWORTH, JONES and EMBRY, JJ„ concur.