author: HARRIS, Judge.

text:
    Billy R. COOPER, alias v. STATE.
    4 Div. 352.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied March 30, 1976.
    Charles T. Reese, Daleville, G. M. Harrison, Jr., Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State,
   HARRIS, Judge.

Appellant was indicted for murder in the first degree. He was convicted of murder in the second degree and the jury fixed his punishment at twenty years in the penitentiary. At arraignment and throughout the trial proceedings, he was represented by retained counsel. He interposed a plea of not guilty. After being sentenced he gave notice of appeal and requested that the sentence be suspended pending appeal. Sentence was suspended and bond was fixed at $10,000.00.

Appellant was charged with killing his father-in-law, James Clarence Jackson, by shooting him six times with a small caliber pistol in front of the Bungalow Cafe in Opp, Alabama, on the night of November 9, 1974. Appellant admitted the shooting but claimed he did so in self defense.

Prior to trial appellant filed a “scatter-gun” motion to produce which reads as follows:

“MOTION TO PRODUCE
Now comes the Defendant and moves the Court to require the District Attorney, Sheriff of Covington County, Clerk of the Circuit Court, State Toxicologist, police and law enforcement officials having possession of the following items to immediately produce the same for inspection and examination by Defendant and his attorney on the grounds that the same is necessary in order for this Defendant to properly prepare his defenses against the Indictment pending against him in this case.
1. All Statements in writing made or signed by the Defendant.
2. All statements in writing of police and law enforcement officials who have performed services in this case against this Defendant, which statements are in the possession of the District Attorney.
3. All confessions, admissions, and statements made by the Defendant or any other person who is a witness or who may become a witness in this case to any police officer or law officer or State investigator regarding the charges which have been preferred against this Defendant resulting in the Indictment, whether said statements have been reduced to writing or not.
4. View of all contraband taken in the possession of the Sheriff or District Attorney in this case which is or is expected to become items of evidence to be offered by the State of Alabama in the prosecution of this case.
5. View of all items of evidence which will be or is expected to be offered by the State of Alabama as exhibits in the trial of this case.
6. The names and addresses of all law enforcement officials who seized the foregoing items or any part thereof.
7. The names and addresses of all potential witnesses which the State of Alabama expects to use in the trial of this case.
8. The names and addresses of all witnesses that testified before the Grand Jury regarding the charge made against this Defendant resulting in the Indictment pending against the Defendant.”

This motion was set for hearing on April 1, 1975. At this hearing the District Attorney made the following responses to the motion to produce:

“BY MR. McGILL: In reference to paragraph one, a motion to produce, the District Attorney has not seen a confession made by or signed by the defendant. And I know of no one else who does have one. In reference to paragraph two, unless the court so says, I don’t intend to produce. In reference to paragraph number three, with respect to the defendant, I know of no confession or admission, in this case, signed or made by the defendant. In reference to paragraph four, the pistol involved, it is at the criminal laboratory in Enterprise, the photographs are located at the Opp Police Department. The lab report, postmortem examination, can be viewed in my office at any time. And, of course, everything I just said applies to paragraph five also. In reference to paragraph six, my records indicate that five officers were at the scene, and made reports. At this time, they do not indicate which officer handled which particular piece of evidence or contraband.
“BY THE COURT: You can furnish the name of those five officers and where he can interview them, can’t you?
“BY MR. McGILL: Yes, sir. And, in reference to paragraph five there is an undershirt, six bullets, and the blood specimen, were sent to the lab. And the undershirt and bullets are presently in the possession of the Sheriff, of Coving-ton County. In reply to paragraph seven, the witnesses are as follows: Don Harrell, Deputy Sheriff. Jerry Bran-non, an Opp Policeman. John Roughton, Opp Police Department. Officer Turner, Opp P.D. Hulon H-U-L-O-N Phillips, I have no address for him. Ranell Jackson, no address. Charles L-E-GE-R, no address. James Paul, no address. Margaret Cooper, no address, but I assume that is in Opp also. Jackie Slawson, route two, Elba. Mary Phillips, Kinston. Forest Hobson, Andalusia. Lamar Miller, Richard Carter, and James M. Buttram, B-U-T-T-R-A-M. Carter is from Enterprise.
“BY THE COURT: Miller is too, isn’t he?
“BY MR. McGILL: So is Miller; But-tram, he is from Auburn.
“BY MR. JONES: Did you say Lamar Miller was from Enterprise?
“BY MR. McGILL: The criminal lab. In regard to paragraph eight, Don Harrell, Shirley Turman are called as witnesses. N
“BY MR. JONES : Was Richard Carter with the criminal lab, also?
“BY THE COURT: Yeah, I think they call him Richard Carter.
“BY MR. JONES: So is Miller and Buttram, are they with the criminal lab?
“BY MR. McGILL: That’s right.
“BY MR. JONES: And James Paul— you have an address on him—what is his address ?
“BY MR. McGILL: I think he lives in Coffee County, but you can find out in Opp.
“BY MR. JONES: What about Hulon Phillips ?
“BY MR. McGILL: I don’t know about him.
“BY MR. JONES: Ranell Jackson, is she a witness or not?
“BY MR. McGILL: I think so.
“BY THE COURT REPORTER: Then, y’all had an off the record discussion and then,
“BY THE COURT: All right. Does that dispose of all of it?
“BY MR. JONES: Judge, are you going to require him to produce?
“BY THE COURT: No I’m not.
“BY MR. JONES: All right. We except. I understand that you don’t have reason to believe that they have been reduced to writing or not. He has not admitted—
“BY MR. McGILL: Do you have any—
“BY MR. JONES: Yeah—made any admissions on the part of the defendant.
“BY MR. McGILL: As far as we know, he admitted to several officers, on several different occasions, that he fired the shot that killed him.
“BY MR. JONES: Is that all the subject of admission—
“BY MR. McGILL: I don’t know, to tell you the truth.
“BY MR. JONES: Judge, I think we are entitled to full disclosure. Even as to an oral statement, of the defendant. We will get into it at the trial, I guess.
“BY THE COURT: Any officer present at the scene will tell you what they know, if they don’t tell you what they know, tell me and I will make sure that they do.
“BY MR. JONES: And in any case, we can go to the criminal lab?
“BY THE COURT: Yes, sir, you can go.
“BY MR. JONES: In Enterprise—and see the exhibit the D.A. referred to. And, of course, we should have no trouble.
“BY THE COURT: All right.”

The State called the Sheriff of Coving-ton County to testify about an oral confession appellant made to him some time after the shooting. There was a voir dire hearing out of the presence of the jury and appellant moved to suppress the Sheriff’s testimony based on ground 3 of his motion to produce hereinabove set forth.

From the record:

“THE COURT: Apparently I had only ordered that he talk to the officers that were at the scene. So, I am going to suppress the statement.
“BY MR. McGILL: All right, sir.”

Mr. John Roughton, a policeman with the City of Opp, Alabama, testified that he was on duty on November 9, 1974, when he received a call to go to the Bungalow Cafe. He got the call at 10:15 p. m. and arrived at the cafe at 10:16 p. m. and saw a woman, Mary Phillips, and appellant standing near an automobile in front of the cafe. He saw a body lying on the ground next to the front tire of one of the parked cars. At that time Mary Phillips identified appellant as the man who had done the shooting. Appellant voluntarily said, “That ___ ___ ___ ____won’t pull a gun on me any more.” Roughton then arrested appellant and put him in Officer Turner’s patrol car who had just arrived on the scene. Just before appellant was put in the patrol car, Officer Rough-ton asked him if he had a car and appellant pointed to a black Buick automobile. The officer looked in the back seat of the Buick and saw a .22 rifle in plain view. He reached in the car and got the rifle and unloaded it, taking a live cartridge out of the rifle. He gave Officer Turner both the rifle and cartridge. He then called for an ambulance, the Coroner and the Sheriff’s Department. Reputy Sheriff Don Harrell was the next officer to come to- the scene of the shooting.

On cross-examination Roughton testified that he found a closed knife approximately three feet from the body of Jackson and he gave the knife to Deputy Harrell.

Deputy Sheriff Don Harrell testified that he and State Trooper John Harrell went to the Bungalow Cafe around 10:25 p. m. on November 9, 1974, to conduct an investigation into the shooting that took place there that night. When they arrived, there were a number of other officers present as well as a number of other people. He stated that he had photographs made of the scene and the body of the deceased in his presence. These photographs were identified and admitted in evidence without objections. He said they made a search for the murder weapon and it was found on the roof of the cafe. That he took charge of the pistol and kept it in his exclusive possession until he personally delivered it to Mr. Dale Carter at the laboratory of the Department of Toxicology at Enterprise, Alabama. He wrote down the serial number on the weapon before delivering it to Mr. Carter.

This witness further testified that when he arrived at the cafe, he saw the body of Mr. Jackson lying on the ground and there was a lot of blood under his head and body. That he felt his pulse and there was no pulse. He was present when the Coroner arrived and pronounced Mr. Jackson dead.

The deputy further stated he went to Opp and got appellant out of the City jail and took him to a private interrogation room. At this point a voir dire hearing was held out of the presence of the jury.

On voir dire this witness testified that present at this interview were Chief of Police Shirley Turman, Officer Turner and Trooper John Harrell. In the presence of these officers Deputy Harrell gave appellant the Miranda rights and warning by reading a card to him. After reading his rights to appellant he asked him if he understood them and he said he did. The officer asked him if he wanted to talk to them and appellant replied, “I’m not signing anything until I see my lawyer. But, I will talk to you, I have nothing to hide, I will talk to you.”

The officer further stated that before appellant made a statement that neither he nor anyone in his presence or hearing threatened or abused appellant in any way or offered him any immunity, promises, rewards, or the hope thereof, to get him to make a statement. He stated that appellant told him that he had been drinking and stopped by Pete’s Drive-in and had a few beers. Appellant further stated that Charles Leger, a friend, was with him. That they left Pete’s Drive-in and went to the Bungalow Cafe where Mr. Leger shot pool while he sat at the bar and had a few drinks. That he got up and walked back to the partition looking into the dance floor and was standing there when his father-in-law came up that way and appellant asked him to step outside and talk a little bit. Appellant said that as he went out the door, Mr. Jackson turned, cursing him, and he thought he was going for a gun and he shot him. Appellant told the officers that he threw the gun on top of the building. He further made the statement that he and his father-in-law had had trouble in the past, “and he was not sorry that he did it, but that if he had it to go over again, he would do it again.”

On cross-examination the Deputy was asked if appellant didn’t say he shot in self-defense and the witness replied, “He didn’t say self-defense, he said he shot the man because he thought the man was fixing to shoot him.”

It developed during this voir dire hearing that the Chief of Police of Opp set up a tape recorder during the interview with appellant but not before appellant had made the statements above mentioned. The Chief of Police had died in the meantime and the tape was discovered in the trunk of his car the day before appellant’s trial. The Court ordered the tape produced and it was played in the presence of the Court, the District Attorney, appellant, appellant’s attorney, Deputy Harrell and the Court Reporter. Defense counsel then asked that he be furnished with a copy of the tape reduced to writing and the Court ordered the District Attorney to make the tape available for use by defense counsel. The Court then overruled defense counsel’s motion that Deputy Sheriff Harrell not be permitted to testify before the jury until the tape was transcribed.

Deputy Harrell was called back to the stand for further voir dire and testified that his testimony was based on what appellant had told him and not from what was recorded on the tape. The defense had the benefit of the tape recording for the cross-examination of Deputy Harrell. The Court adjourned the trial overnight so that defense counsel could complete the transcription of the tape. The tape was subsequently offered into evidence by stipulation and was played for the jury.

After appellant’s counsel had been given the opportunity to talk with other officers the trial was resumed in the presence of the jury. Deputy Harrell testified before the jury and his testimony was the same as he gave on voir dire out of the presence of the jury. He admitted that on the tape appellant said he was sorry he shot the deceased but he had to do it. This witness further stated that notwithstanding what appellant said on the tape that when he was carrying him to the Andalusia jail, appellant repeated that he was not sorry and if he had to do it over, he would do it again.

Dr. James M. Buttram who was employed as a Toxicologist with the Department of Toxicology and Criminal Investigation performed an autopsy on the body of Mr. Jackson. He testified as to his education, experience and qualifications. He described in great detail the autopsy that was performed and that he recovered six bullets from the body of the deceased. One bullet entered the head of the deceased and the other five entered the front chest area. It was this witness’s opinion that death was due to the bullet which entered the head of the deceased. These bullets were delivered to Mr. Dale Carter, a Criminalist, at the Enterprise Regional Laboratory of the Department of Toxicology-

After being duly qualified this witness testified that he received the six bullets removed from the body of Mr. Jackson along with the weapon used by appellant at the time of the shooting. Mr. Carter testified that upon examination and comparison of the six bullets, it was his opinion that they were fired through the barrel of the weapon that was personally delivered to him by Deputy Sheriff Don Harrell. Mr. Carter further testified that he received a sample of blood taken from the deceased and he checked the sample for the presence of ethyl alcohol and the test proved that there was no alcohol in the body of the deceased.

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

Appellant testified in his behalf and he detailed a long history of trouble with the deceased in which the deceased threatened to kill him on several occasions. He stated that on the night of the shooting the deceased asked him to step outside the cafe and called him a ___ ___ ___ ___. When they got outside, he saw the deceased make a step as if to head him off and he appeared to be drawing a gun on him and he shot him. He said he did not know how many times he shot his father-in-law.

Appellant offered the testimony of three character witnesses who testified to his good general character in the community and that he had a good reputation for truthfulness and veracity. They further testified that they would believe him on oath in a court of law.

On rebuttal the State called Elie Harrell, Sheriff of Covington County, who testified that appellant told him he never saw a knife in Jackson’s hand. That Jackson came from the rear of the building and was headed in the direction of the restroom. Appellant told the Sheriff that he and his father-in-law had had trouble before and that he wanted to settle it once and for all.

Appellant filed a motion for a new trial alleging misconduct during the trial by the bailiff and a woman juror. This motion was set for hearing and considerable testimony was taken covering more transcript pages than the trial in chief.

Appellant’s mother, father, three brothers and a lifelong friend of appellant testified that while the judge, lawyers and appellant were out of the courtroom they saw the bailiff pick up an exhibit (photograph) and walk over to the jury box and discuss the exhibit with one of the female jurors.

The bailiff and each and every member of the jury took the stand emphatically denying that such a thing took place. The motion for a new trial was overruled and denied.

On cross-examination appellant was asked whether he had ever been charged with the commission of a felony. These questions were asked and answered before objections were made by defense counsel. Appellant also stated that he had been convicted of reckless driving before an objection was made. The objections in the instant case came too late.

In Barnett v. State, 52 Ala.App. 260, 291 So.2d 353, this Court held:

“As may be seen, defense counsel did not object until after the question pertaining to ‘No. 33’ was answered, and also the following question answered. It is clear, therefore, that the objection in this case was not timely, Carpenter v. State, 42 Ala.App. 618, 174 So.2d 336, and therefore such is waived. Lucky v. State, 50 Ala.App. 324, 278 So.2d 772, and authorities therein cited.”

Appellant claims that reversible error was committed when the character witnesses were asked if they had heard that appellant had been indicted for assault with intent to murder. There were no objections to the questions posed to these witnesses.

Matters not objected to in the trial court cannot be considered for the first time on appeal, since a review on appeal applies only to rulings by the trial court. Wade v. State, 49 Ala.App. 601, 274 So.2d 626; Thompson v. State, 44 Ala.App. 414, 211 So.2d 505.

Each of these witnesses testified they had not heard about any such indictment. A negative answer to an improper question does not constitute reversible error. Stephens v. State, 250 Ala. 123, 33 So.2d 245; Leonard v. State, 36 Ala.App. 397, 58 So.2d 138; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

There was no written and signed confession in this case to be produced on demand of appellant. There was a tape recording of a conversation with appellant and as above stated, it was played to the jury. Tape recordings of conversations with persons accused of crimes and played to the jury have many times been approved by appellate courts. Boulden v. State, 278 Ala. 437, 179 So.2d 20; Flannagin v. State, 289 Ala. 177, 266 So.2d 643; Brown v. State, 53 Ala.App. 674, 304 So.2d 17; Lykes v. State, 54 Ala.App. 7, 304 So.2d 249.

During the District Attorney’s closing argument he stated that one of the character witnesses had testified that he knew appellant’s reputation for violence. The trial judge sustained the objection and instructed the jury to disregard the remark. It is settled law that improper argument may be cured where the objection is sustained and the argument is excluded. Burkett v. State, 215 Ala. 453, 111 So. 34; Luschen v. State, 51 Ala.App. 255, 284 So. 2d 282.

The trial judge failed to charge the jury on the law dealing with good character evidence and appellant contends this was error to reverse. At the conclusion of the Court’s oral charge appellant’s counsel announced “Satisfied, Your Honor.”

Counsel must submit written instructions covering the omitted legal principle to properly preserve the alleged error for appellate review. Davis v. State, 246 Ala. 101, 19 So.2d 358; Waller v. State, 35 Ala.App. 511, 49 So.2d 232; Gray v. State, 52 Ala.App. 481, 294 So.2d 448.

Decision on motion for a new trial rests largely within the sound discretion of the trial court and, in reviewing that decision this Court will indulge every presumption in favor of the correctness thereof. Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624.

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

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: MERRILL, Justice.

license: Public Domain

text:
    In re Billy Ray COOPER v. STATE. Ex parte Billy Ray Cooper.
    SC 1796.
    Supreme Court of Alabama.
    May 7, 1976.
    Merrill & Harrison, Dothan, for petitioner.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   MERRILL, Justice.

Petition of Billy Ray Cooper for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Cooper v. State, 57 Ala.App. —, 331 So.2d 752.

WRIT DENIED.

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


text:
    Lewis Edward SCOTT v. STATE.
    2 Div. 152.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.

      Charles H. Sims, III, Selma, for appellant.
    William J. Baxley, Atty. Gen. and Jack Curtis, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Jury and verdict finding defendant guilty of robbery with punishment fixed at twenty-five years imprisonment. Judgment therefor, and this appeal therefrom. Appellant was an indigent at nisi prius and at the time of appeal.

I

It appears that a special venire was drawn and summoned to try appellant-defendant. The trial court, on May IS, 1975, heard defendant’s motion in camera that he not be tried under the special venire because some of the jurors were excused by the court without the presence of defendant, his knowledge, or consent, or that of his counsel. Defendant further alleged that the excusáis denied him the right as a part of this trial to know facts on which the excuses were based, to the end that he could be heard with regard thereto. He cites Title 30, Sections 5, 63, and 64, Code of Alabama 1940, as amended, “and the case law applicable thereto.”

The trial court, after hearing evidence with respect to the motion, overruled it. We will not recite the excuses given the court by the excused jurors. Suffice it to say that the excuses in the judgment of the court were meritorious.

We prefer to rely on our decisions of Usrey v. State, 54 Ala.App. 448, 309 So.2d 485 (1974); Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975); and Fisher v. State, 57 Ala.App. —, 328 So.2d 311, released January 20, 1976. In all these cases we had in mind the effect of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), on our statutes and case law relating to special venires in capital cases and the excusáis of jurors in such cases when the defendant was not present. In both Usrey and Dean, we held that a special venire, in view of Furman, was no longer necessary or required, and that ex-cusáis of jurors, when the defendant was not present were permissible. When the opinions in Usrey and Dean were released, we did not have under consideration Bymum v. State, 294 Ala. 78, 312 So.2d 52 (released March 6, 1975).

In Fisher, supra, this court had under consideration the effect of Furman on striking a jury to try a rape case in Madison County.

Scott here contends that the trial court committed error in refusing to allow him to strike a jury from forty-eight veniremen. We quote Section 1 of the Fisher opinion, as follows:

“I
“Counsel for appellant ably and vigorously asserted the rights of his client both in the trial court and here on appeal. Counsel contends that the trial court erred in refusing to allow the appellant to strike a jury from forty-eight veniremen.
“Act No. 532, Acts of Alabama 1969, approved August 21, 1969 [Title 13, § 125 (90h) 1973 Cum.Supp., Code of Alabama, Recompiled 1958] provides that in the Twenty-third Judicial Circuit, a defendant, ‘. . .in capital felony cases shall be entitled to strike from a list of not less than forty-eight competent jurors . . . .’
“The appellant challenges the trial court’s ruling that capital felonies are now to be considered non-capital felonies since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Appellant’s challenge of the venire is based upon the recent ruling of the Alabama Supreme Court in Ex parte Bynum, Jr., 294 Ala. 78, 312 So.2d 52 (1975). There the Court held that ‘capital offenses’ still exist in Alabama stating, The only effect of Furman was to eliminate the imposition of the death penalty as it was then enforced, and not to eliminate the classification whereby crimes are categorized as capital for purposes other than punishment.’ “Contrary to the broad language employed by the Supreme Court in Bynum, we are of the opinion that the Court was addressing itself solely to the question of bail. The purpose for a special venire in ‘capital cases’ was to give a defendant, on trial for his life, an additional safeguard not given to those where only their liberty was at stake. At the time Act No. 532, supra, and Title 30, § 63, Code of Alabama 1940, were enacted, the only distinction between ‘capital’ and ‘non-capital’ cases was the possible imposition of the death penalty. Since the imposition of the death penalty has been suspended, there is no rational jusitification for a special venire in a case formerly classified as ‘capital’ where the maximum punishment is now the same as in a ‘non-capital’ case.
“Should the legislature ever enact a death penalty statute which meets all the constitutional tests for validity, then such special venire statutes would again become applicable, in our opinion. We do not believe the Alabama Supreme Court intended that its reasoning in the Bynum decision should be extended to require a special venire in cases where the death penalty cannot be imposed.”

We think our pronouncements in Fisher, supra, have application to the instant ruling of the court with respect to excusáis; also, sustain our holding in Usrey and Dean.

The trial court was free of error in denying defendant’s motion not to be tried by the special venire because excusáis therefrom were granted contrary to law as pronounced in Lassiter v. State, 36 Ala.App. 695, 63 So.2d 222(1); Draper v. State, 250 Ala. 679, 36 So.2d 73(1,2); Hall v. State, 250 Ala. 681, 36 So.2d 74.

II

Appellant-defendant next asserts that the search of a taxi-cab, which he had boarded as a fare-paying passenger, was illegal because the officers making the search did not have a search warrant; hence, the fruits of the search (money) were inadmissible in evidence. Motion to suppress the evidence heard in camera was overruled.

It appears from the evidence on the motion to suppress that a police officer of the City of Selma, John Etheredge, not on active duty at the time, was passing the scene, and was apprised of the alleged robbery. The victim gave him a description of the robber who confronted the victim, and in about five to ten minutes, and about one block distant, his attention was directed to a taxi-cab in which defendant and one Aaron were hurriedly entering for transportation to another point. He intercepted the departure, being of the opinion that one of the persons met the description in dress, personal size, and features which the victim had given him. Soon after the interception, two other police officers appeared on the scene of the interception, and engaged in the detention of the two persons who had entered the taxi-cab, and both of them were alternately placed in the police car to be transported to the scene of the robbery, there to be viewed by the victim.

Officer John M. Etheredge, the one first on the scene, testified he observed, after the cab was stopped, that the two male occupants, supra, appeared to be real nervous; that they were stooped over in the cab and “appeared to be trying to hide something—not defendant, but the other one.” Officer Stokes, who came up in the patrol car, asked Aaron, the occupant of the cab, along with defendant, to step out of the cab; that as he did so, he brought his leg up, and the seat came up from his weight, “I can’t say how much it was, but money fell out from under the seat,” and “money fell out on the floor.” They then put both occupants in the police car. Officer Etheredge also testified:

“All right. When they put him in the patrol car, I told Officer Stokes to help me pull the seat up, to see if anything else was under the seat. When we went to pull the seat up, before we did that, money was hanging out from under the seat down towards the floorboard. It was all hung up. We pulled the seat up and it was a large amount of money on my side where Aaron was and there was money on the other side where Scott was.”

The testimony of Officer Stokes with respect to the money tended to support that of Officer Etheredge.

In view of short time element (five to ten minutes) between the robbery and the hurried entry of Aaron and defendant into the cab, the similarity of clothing worn by the two to that the victim gave to Officer Etheredge as to one of them, their posture in the cab, and their apparent nervousness, together with the quantity of money found in the cab, we hold that the officers had probable cause to believe that Scott was the robber, and that Aaron was also implicated.

Neither are we convinced that the seizure of the money, or any part of it, was the product of an illegal search. Part of the money was in plain view, according to Officer Etheredge, as Aaron stepped out of the taxi and tilted the seat. Some of the money fell on the floor. The rest of the money was discovered when the officers lifted the seat up. For legal purposes, we think all of the seized money was in plain view, and its seizure was lawful, and not unreasonable. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067.

We think that it would be unreasonable to hold that the officer was forbidden under the law to lift the tilted seat and see where the protruding and fallen money came from. This procedure was not unreasonable or unlawful. None of the recovered money was forbidden fruit of an unlawful search.

The judgment is affirmed addendum.

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

Affirmed.

All the Judges concur.


author: HEFLIN, Chief Justice.

text:
    In re Lewis Edward SCOTT v. STATE. Ex parte Lewis Edward Scott.
    SC 1764.
    Supreme Court of Alabama.
    May 7, 1976.
    Charles H. Sims, III, Selma, for petitioner.
   HEFLIN, Chief Justice.

Petition of Lewis Edward Scott for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Scott v. State, 57 Ala.App. —, 331 So.2d 759.

WRIT DENIED.

BLOODWORTH, FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    Ronnie BIGGS v. STATE.
    3 Div. 381.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied March 9, 1976.
    L. H. Walden, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of rape and sentenced to imprisonment in the penitentiary for a term of thirty years in accordance with the verdict of a jury.

The alleged victim, a twenty-year-old woman, testified that on March 6, 1974, her apartment was broken into at approximately 12:30 or 1:00 A.M.; that two men entered the apartment without her permission. She said she awoke to find a man on top of her and another man standing beside her bed, both wearing stockings over their faces. She said that the man on top of her achieved penetration. She testified that appellant was the man standing by the bed while the other was raping her; that she had seen appellant on two previous occasions and recognized his voice. It was dark in the room but not completely so, by reason of some light from her stereo and a lighted digital clock. She said she called out to appellant for him to make the other stop, but that when she spoke to him, he came over and put his hand over her mouth and told her to “Shut up or they would cut her throat.” She also testified that she could see through the stocking on appellant’s face well enough to have recognized his face. After the two assailants left, she was taken to a hospital and examined. She thereafter found that a window and door had been broken into, that her purse had been emptied and one hundred thirty dollars was missing therefrom.

There was other evidence in the case, including testimony of defendant denying that he had been at the apartment of the alleged victim and denying any part in any breaking into her apartment or larceny or rape of her, but as it appears that there was no serious insistence on the trial, or on the hearing on the motion for new trial, or on this appeal that the evidence was not sufficient to sustain the verdict of the jury, we will not discuss the evidence further.

It is well established that a person present, aiding and abetting another in the commission of rape, is guilty as a principal and punishable equally with the perpetrator of the crime. Clayton v. State, 244 Ala. 10, 13 So.2d 420.

The victim while testifying was interrogated by counsel for the State as to her identification of defendant upon being questioned by the police whom she had called soon after the commission of the crime. The following occurred:

“Q. All right. When they arrived, Pamela, were you asked by the police to give any type of identification?
“MR. WALDEN: We object to what she said there at that time, Your Honor.
“THE COURT: I believe she was asked, was she asked, and I believe that question can be answered yes or no. And then if he asks further questions, I will rule upon that. You may answer
“A. Was I asked to identify someone ? that question yes or no.
Yes, sir.
“BY MR. DOZIER: (Continuing)
“Q. All right. Would you please tell the ladies and gentlemen who you identified?
“MR. WALDEN: We’re going to object to that, Your Honor.
“THE COURT: Overruled.
“MR. WALDEN: We except.
“BY MR. DOZIER: (Continuing)
“Q. Who were the persons you identified as being present in your house at that time ?
“A. Ronnie Biggs was one.
“Q. All right. You identified him from the beginning?
“MR. WALDEN: Judge, I want to move to exclude that statement. That calls for hearsay. It is a statement made not within the presence of the Defendant where he had no opportunity to deny anything at that time.
“THE COURT: Overruled.”

In a rape case, although the fact that a complaint was made is admissible, the details of the complaint, including the identification of the person accused, are not admissible. According to Judge McElroy:

“The details or particulars of a complaint cannot be shown by the prosecution in the first instance. Therefore, complaints specifying the identity of the person accused, or specifying the inju-ríes claimed to have been received, or otherwise specifying the minute circumstances of the offense are not admissible. Barnett v. State, 83 Ala. 40, 3 So. 612; Hall v. State, 248 Ala. 33, 26 So.2d 566. . .” McElroy, Law of Evidence in Alabama § 178.01.

To like effect is Etheridge v. State, 47 Ala.App. 233, 252 So.2d 655 (1971).

We have some concern whether defendant’s counsel waived his objection to the question by his failure to object to the next question which was in substance the same question to which objection was made and overruled. Applicable, we think, is what was said on rehearing in National Casualty Company v. Dunn, 209 Ala. 484, 96 So. 576:

“Upon further consideration we are of the opinion that in denying the sufficiency of appellant’s objections and exceptions during the examination of the plaintiff as to the agency of Walker, we indulged in a too technical treatment of the record. Instead of dealing with each objection and exception as a separate proposition, unrelated to the others, we now think the fairer and juster method is to take the entire series of questions and answers and objections, intimately related as they are, both in sense and in sequence, as an entirety; and, thus viewed, we think that defendant’s counsel made the court fully and clearly acquainted with the ground of his objection to the witness’ testimony as to what took place between him and Walker, and, the purpose of the rule being satisfied, it was not necessary for counsel to repeat his objection and the ground for it, every time an additional question to elicit the same illegal testimony was propounded to the witness.
“The bill of exceptions shows a running colloquy which, as above stated, was logically and actually a single proposition—to elicit hearsay testimony of agency on the one side, and to exclude it, because it was not made admissible by proof of agency, on the other.”

Appellant also makes the point that the trial court was in error in admitting what appellant says was an offer of compromise and what the State contended was a confession. As to this, we have some doubt at this time whether defendant properly and sufficiently objected to the introduction of such evidence. In view, however, of our reversal for the reason indicated and the likelihood that the question as to the admissibility of the claimed offer of compromise will not again arise, we forego a ruling on that particular question.

For the error indicated the judgment should be reversed and the case remanded for another trial.

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

Reversed and remanded.

All the Judges concur.


author: JONES, Justice.

text:
    In re Ronnie BIGGS v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1758.
    Supreme Court of Alabama.
    May 7, 1976.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for petitioner, the State.
    None for respondent.
   JONES, Justice.

By denying certiorari in this cause, we are not to be understood as agreeing or disagreeing with the language employed nor the conclusions reached in the opinion of the Court of Criminal Appeals, 57 Ala.App. —, 331 So.2d 763.

WRIT DENIED.

HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.


text:
    Charles RANDOLPH v. STATE.
    8 Div. 701.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied March 30, 1976.
    Potts & Young, Florence, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was charged in a two-count indictment with murder in the first degree and robbery, allegedly occurring in Franklin County. The indictment was returned by a Franklin County grand jury, but on motion for a change of venue, the case was transferred to and tried in the Circuit Court of Madison County. The jury returned a general verdict finding defendant guilty as charged in the indictment and fixing his punishment at life imprisonment in the penitentiary. He was sentenced accordingly. His subsequent timely motion for a new trial was overruled by the trial court.

The evidence shows without dispute that on the night of December 29, 1974, one Willie Washington, a taxi driver, was savagely murdered and robbed in Russellville, while answering a call for his services. His throat was cut by a sharp instrument, his body was left in the cab and money that he had had on his person was taken from him. Two persons were seen in the back seat of the cab a short while before the crime was committed, who were after-wards seen running from the direction of the cab after it had stopped with the body of the victim in it. It was and is the contention of the State that the two persons seen in the cab were appellant and one Ronald Gholston, that they were the persons seen running from the cab and that they committed the crime.

The identity of the persons in the taxicab with the victim was the crucial issue in the case.

The State relied largely, if not exclusively, upon the testimony of fifteen-year-old Josephine Harrison to establish the identity of the persons in the cab, particularly appellant. Before she took the stand, the district attorney announced to the court, out of the presence of the jury, that the witness had testified before the grand jury and had given statements to the effect that defendant-appellant was one of the two in the cab and that he was one of the two running from the scene where the crime evidently occurred, but that she had manifested an unwillingness to so testify again and had indicated that if she testified, her testimony would be contrary to her previous testimony and statements identifying defendant as one of the two mentioned. The State asked the trial court to call the particular witness as a witness of the court or the judge. The court acceded to the request and out of the presence of the jury called her “as the Court’s witness, and [she] was examined by the Court out of the presence and hearing of the jury.” The interrogation by the court and responses by the witness ended as follows :

“Q. Did you see somebody coming or running from a cab ?
“A. Um hum.”

A recess was then declared, and thereafter the witness testified at length in the presence of the jury, the State commencing the examination.

Josephine was weak in any identification of defendant. The State showed by her some statements that she had previously made, including her testimony on the preliminary hearing of Gholston. The State was able to prove by her that she had previously given testimony and made statements identifying defendant and Gholston as the persons in the back seat of the cab and as the two people running from the scene, but she denied making some of the statements, and in her testimony on the trial of appellant, she did not say that she saw defendant in the cab, and about the best for the State that she would say as to persons whom she saw leaving the scene was as follows:

“Q. Did you recognize the two people that ran in front of that vehicle ?
“A. Um hum. I think I did.
“Q. Who was that?
“A. Charles and Ronald.
“Q. You say Charles, are talking about this man seated right over here (indicating) ?
“A. Um hum.
“Q. And he is one of the people you saw run by in front of the van ?
“A. I think he did.
“Q. Have you testified twice before that you were positive that it was who it was ?
“A. I didn’t say that I was positive.”

After Josephine had testified, the State called three witnesses for the avowed purpose of impeaching the testimony of Josephine, which they did by testimony as to what she had said wherein she had positively identified appellant and Gholston as the persons in the cab and as the persons running from the scene. Although there was no objection on the part of defendant to every one of the questions to said witnesses, it is clear that defendant’s counsel did object, and was allowed “a continuing objection in that line” by the court. At another time, when a witness of the State was asked as to what Josephine Harrison told him as to the two men in the cab, the court said that defendant “may have an exception, continually or continuing objection, rather.”

“If a person is called as a witness by the trial judge, any party may impeach the witness; however, such person does not become the witness of the judge unless and until the witness in response to the judge’s questions has testified to some relevant fact. Peoples v. State, 257 Ala. 295, 58 So.2d 599.” McElroy, Law of Evidence in Alabama, § 171.01(9)

It is our view that the questions asked the witness by the trial judge, as quoted above, were sufficient to meet the test if they had been asked in the presence of the jury, that is, on the actual trial of the case. We are somewhat at a loss to determine the nature of the particular proceeding out of the presence of the jury. Although defendant objected to the State’s announced effort to impeach the testimony of the particular witness by resorting to the request that the court make her the court’s witness, it does not appear that the procedure used in attempting to make her the judge’s witness, that is, by interrogating her out of the presence of the jury, was objectionable to defendant. There is some indication perhaps that defendant preferred such method to an interrogation of the witness by the judge in the presence of the jury. Whether any failure to meet the test of Peoples v. State, supra, was waived, or in fact invited, by defendant we need not decide at this time, as we hereinafter find that a reversal is necessary and the particular question now considered will probably not arise again on another trial.

The State was also allowed to impeach a witness called by the State. Here also, the impeaching testimony consisted of the testimony of more than one witness. The State’s witness impeached was Calvin Hurley. The State sought to show by him that he had seen appellant and Ronald Gholston after the night of the crime, that they had told him he had better watch what he said when testifying before the grand jury. Upon questioning him on the point, the witness said that he had not seen the two after the night of the crime. The district attorney then announced his surprise at the answer of the witness. Again there was a conference out of the presence of the jury, at which some of his testimony before the grand jury was read. Upon the return of the jury to the jury box, the witness was asked by the State some questions as to what he had told the grand jury, which he either denied or stated he didn’t know. A part of his testimony is as follows:

“Q. And the question was, ‘When you come before the grand jury,’ and your answer was, ‘Yes sir.’ about watching what you said before the grand jury? and your answer was, ‘Yes, sir.’ Do you remember making that statement ?
“A. No.
“Q. Were you asked before the grand jury, by the grand jury, ‘Did they make any threats, did they say what they would do if you did tell/ and your answer was, ‘No, sir, they didn’t say what they would do.’ And the question was, ‘But they let it be known that they would cause you some trouble,’ and your answer was, ‘Yes, sir.’?
“A. No.
“Q. Do you recall being asked by the grand jury, ‘Are you scared of them boys, Calvin, are you scared about what they might do if they get off,’ and your answer was,‘Yes, sir.’
“A. No. I don’t remember all that.
“Q. Well, did you—Calvin, I will ask you if before the Franklin County Grand Jury that you—I will ask you if before the Franklin County Grand Jury you testified that . from . theii;. conversations, from what they said and told you, that they, indicated to you that they were both guilty of the death—in connection with the death of the cab driver on South Carroll?
“A. No.. They didn’t tell me that.
“Q. You did not tell the grand jury that?
“A. No.”

Immediately after Calvin Hurley testified, the State let it be known that it was calling Mr. James Thompson, a member of the grand jury that returned the indictment. Counsel for defendant objected and includ--ed as a reason, “And further I would respectfully show that a party is not allowed , to impeach his own witness and object to this, man being called on that ground.” The court overruled and Mr. Thompson testified. He was asked several questions . by the State to which objections were made by defendant and sustained by the court. Included in the grounds were, “The proper predicate has not been laid,” “It goes to the ultimate fact in issue which is for the jury to determine” and “It’s not proper impeachment.” After several attempts to introduce evidence by the witness of what Hurley stated before the grand jury, the following occurred:

“Q. Let me ask you this, Mr. Thompson, before the Grand Jury was Calvin Hurley asked, ‘Did you talk to either one of them before they were arrested,’ and his answer was, ‘Yes, I talked to them before they were arrested.’ ?
“MR. POTTS: We object to that on the same ground.
“THE COURT: Overruled.
“Q. You may answer.
“A. Yes.
“Q. And was he asked this question, ‘Didn’t- they tell you something about keeping quiet, about them being taken over there to the Hamm house,’ and his answer was, ‘Yes, sir, they did.’?
“MR. POTTS: We object to that same grounds.
“THE COURT: Overruled,
“Q. You may answer.
“A. Yes.
“Q. And was he asked, ‘Did they make any threats, did they- say what they would do if you did tell,’ and his. answer was, ‘No, sir, they didn’t say what they would do?’ Was he asked then, ‘But they let it be known that they would cause you some trouble’ and his answer was, ‘Yes, sir.’?
“MR. POTTS: We again object to all of these questions.
“THE COURT: Overruled.
“Q. You may answer.
“A. Yes.
“Q. That was his answer before the grand jury.
“A. Right.”

After Mr. Thompson had testified and after a short recess, it was made known to defendant’s attorney out of the presence of the jury that the State was calling another member of the Franklin county grand jury. A colloquy took place between the court and counsel for the respective parties which ended in a stipulation between the parties that the witness’ testimony would be the same as that of Mr. Thompson, as shown by the following:

“MR. POTTS: Your Honor, subject to our objections which you overruled, which we—with the understanding that your ruling would be the same we agreed to that stipulation in order to shorten the trial.
“THE COURT: All right, you don't agree to its admissibility, but you agree to the stipulation ?
“MR. POTTS: Yes, sir.
“THE COURT: Okay.”

The testimony of the two grand jurors as to what Calvin Hurley had testified before the grand jury was inadmissible. The status of Calvin Hurley as a witness furnished no exception to the well established rule that a party cannot impeach his own witness by showing by another witness inconsistent statements by the witness sought to be impeached for the purpose of discrediting his testimony. Gandy v. State, 81 Ala. 68, 1 So. 35; Alabama Power Company v. Hall, 212 Ala. 638, 103 So. 867. This rule, to which there is uniform adherence by the appellate courts of Alabama, is not inconsistent with the principle that a party, who has been surprised by a witness, may interrogate him, lead him, in effect cross-examine him, in order (1) to refresh the recollection of the witness or (2) to show the surprise of the party who called the witness. Strickland v. State, 269 Ala. 573, 114 So.2d 407; McMillian v. State, 268 Ala. 363, 106 So.2d 244; Allen v. State, 51 Ala.App. 413, 286 So.2d 88; Hudson v. State, 48 Ala.App. 703, 267 So.2d 494; Patrick v. State, 43 Ala.App. 338, 190 So.2d 551, cert. denied 280 Ala. 717, 190 So.2d 555; Marcum v. State, 39 Ala.App. 616, 107 So.2d 899, cert. denied 268 Ala. 489, 107 So.2d 902.

We are impressed by argument of appellant to the effect that, aside from evidence impeaching that of the witness Josephine Harrison, there is little evidence of defendant’s guilt. Such testimony does not constitute substantive evidence on the issues between the parties, but operates only to discredit the witness. It cannot be made the basis of a finding of fact necessary to the establishment of guilt. In McElroy, Law of Evidence in Alabama, § 159.02(1) it is stated:

“A self-contradictory statement by a witness who is not a party, whether testified to by him on cross-examination or proven by others is not substantive evidence of the matter asserted, that is, such statement operates only to discredit the witness, and has no other effect; in particular, such statement cannot be made the basis of a finding of a fact necessary to the establishment of liability or defense. Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530; Ferlise [Ferlesie] v. Cook, 201 Ala. 571, 78 So. 915; Thomas Furnace Co. v. Carroll, 204 Ala. 263, 85 So. 455; Lynn v. State, 37 Ala.App. 400, 69 So.2d 485, syl. 4; Lawson v. State, 36 Alt.App. 438, 57 So.2d 643, syl. 4; Anno: 133 A.L.R. 1455.”

Especially concerned by the principle that impeaching testimony cannot form a part of evidence sufficient to justify a conviction, we pass to another day a determination of whether the evidence in this case justified the court in overruling defendant’s motion to exclude the testimony, the refusal of affirmative charges requested in writing by the defendant and the overruling of defendant’s motion for a new trial. Notwithstanding the apparent stultification of the judicial process by witnesses, particularly the main witness for the State, by swearing differently on the trial from what they had sworn before the grand jury, and had otherwise stated, and thus defeating justice by perjured testimony, a guilty verdict cannot be upheld if unsupported by substantial evidence bearing on the question of guilt. We do not find it necessary at this time to say that the evidence is not sufficient in this case, in view of our determination that the judgment below must be reversed and the case remanded for a new trial by reason of the admission in evidence of the testimony of witnesses showing that the witness for the State, Calvin Hurley, had made statements, prejudicial to defendant, inconsistent with his testimony on the trial.

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

REVERSED AND REMANDED.

All the Judges concur.


author: MADDOX, Justice.

text:
    In re Charles RANDOLPH v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1797.
    Supreme Court of Alabama.
    May 7, 1976.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for petitioner, the State.
    None for respondent.
   MADDOX, 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 Randolph v. State, 57 Ala.App. —, 331 So.2d 766.

WRIT DENIED.

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


text:
    Avis TAYLOR v. STATE.
    3 Div. 425.
    Court of Criminal Appeals of Alabama.
    March 30, 1975.
    Rehearing Denied April 20, 1976.

      Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree. She was convicted of manslaughter in the second degree and the jury fixed her punishment at one year and assessed a fine of $500.00 against her. She was represented by employed counsel at trial who also represents her on appeal.

The evidence is not disputed. Appellant did not testify or offer any testimony in her behalf.

Robert L. Ingram testified that he was employed by the Montgomery Police Department and had been so employed for eighteen years. That on May 31, 1975, he received a call to go to 529-A Clayton Street, and he arrived at this address at 3:05 p. m. He said that he and Officer W. E. Nixon got to this address about the same time. They saw two women standing on the front porch and they identified themselves. The women were identified as appellant and her daughter Margaret Graham. The officers were there to investigate a shooting. Ingram asked what was going on, and appellant did not say anything but Margaret Graham said, “I don’t know.” Ingram went in the apartment and found the body of a black female who had been shot and she appeared to be dead. He said he definitely saw one bullet hole in the dead body and some blood, but he did not know how many times she was shot. This witness identified photographs of the body and the scene of the homicide, which were received in evidence without objections. Ingram further stated he found a knife in the juncture of the neck and left shoulder of the victim. He identified the knife as State’s Exhibit 4 and it was introduced in evidence.

Mr. Ingram also identified a .38 caliber pistol that appellant turned over to Police Officer Nixon, and it was received in evidence without objection.

Officer Nixon testified that appellant got the murder weapon, a pistol, out of the closet in the room where the deceased was found and gave it to him. This .38 caliber pistol was introduced in evidence without objection.

These investigating officers turned the case over to the Detective Division. Detective Roianne Rushton testified that she took a signed statement from appellant the same afternoon she was arrested after reading to her the Miranda- rights and warnings. A voir dire hearing was conducted out of the presence and hearing of the jury to determine the voluntariness of her statement. The statement was found to be voluntary and was read to the jury. The statement signed by appellant and read to the jury was to the effect that her daughter shot the deceased with appellant’s pistol which she gave her daughter before they took a cab to the place where the killing took place. In the statement appellant said that her daughter had been living with her because she had a fight with her husband. That when they arrived at her daughter’s house, appellant entered the apartment by the back door and her daughter entered the front door. That they found a girl on the inside and Margaret asked her if she was going with her husband, to which question the girl replied, “What about it,” and started on Margaret with a knife at which time time-Margaret shot her twice with appellant’s pistol.

There was a stipulation that appellant did not fire the pistol that killed the deceased.

There was also a stipulation that appellant’s pistol was used by her daughter to shoot the deceased. There were two fired bullets in the pistol and four live bullets.

Mr. Richard A. Roper, Assistant State Toxicologist, whose qualifications were admitted by defense counsel, performed an autopsy on the body of the deceased. He stated he found two gunshot wounds made with .38 caliber bullets. He stated the cause of death resulted from hemorrhage and shock to the central nervous system associated with multiple gunshot wounds to the body.

Appellant moved to exclude the State’s evidence as to murder in the first degree which motion was overruled and denied. Appellant requested the general affirmative charge which was refused, and she filed a motion for a new trial which was overruled.

Appellant was tried as a principal in a murder where the trigger was actually pulled by Margaret Graham who was appellant’s daughter. Both appellant and her daughter were found at the death scene. The pistol belonged to appellant and she and her daughter went to the residence in a cab. Appellant gave her pistol to her daughter and she entered the apartment from the rear while her daughter entered through the front door.

The rule in this type of case is best stated in Stokley v. State, 254 Ala. 534, 49 So.2d 284, where the Supreme Court said:

“It is well established that when, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act. Such community of purpose or conspiracy need not be proved by positive testimony. It rarely is so proved. . The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Morris v. State, 146 Ala. 66, 41 So. 274, and cases cited; Jones v. State, 174 Ala. 53, 57 So. 31; Teague v. State, 245 Ala. 339, 16 So.2d 877.
“When two or more persons enter upon an unlawful purpose, with a common intent to aid and encourage each other in anything within their common design, they are each responsible, civilly and criminally, for everything which may consequently and subsequently result from such unlawful purpose, whether specifically contemplated or not. Jones v. State, supra; Jolly v. State [94 Ala. 19, 10 So. 606], supra; Tanner v. State, 92 Ála. 1, 9 So. 613.”

In Young v. State, 283 Ala. 676, 220 So.2d 843, we find this expression from our Supreme Court:

“Where the evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of a motion for new trial, does not constitute error. Drummond v. State, 37 Ala.App. 308, 67 So.2d 280; Wade v. State, 24 Ala.App. 176, 132 So. 71.”

We hold this case was properly submitted to the jury for their determination.

Appellant claims that reversible error was committed when appellant did not appear at arraignment and plead in person. The record affirmatively shows that appellant and her attorney signed a waiver of arraignment and entered a plea of not guilty more than 30 days prior to the date of her trial. This procedure was in strict conformity with Act No. 314, approved August 10, 1973, which provides, in pertinent part as follows:

“§ 523(16.025a). Effect of plea of not guilty prior to time of arraignment.—(1) The provisions of this [section] shall apply only to counties having a population of not less than 150,000 nor more than 180,000 inhabitants according to the most recent federal decennial census.
(2) If a defendant in a criminal case pending in a court of competent jurisdiction shall enter a written plea of not guilty at any time prior to the day of his arraignment such plea shall constitute a waiver of his right to have an arraignment at which he is present in person or at which he is represented by an attorney. (1973, No. 314, appvd. Aug. 10, 1973.)

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

AFFIRMED.

All the Judges concur.


text:
    In re Avis TAYLOR v. STATE. Ex parte Avis Taylor.
    SC 1826.
    Supreme Court of Alabama.
    May 21, 1976.
    Elno A. Smith, Jr., Montgomery, for petitioner.
   MERRILL, Justice.

Petition of Avis Taylor for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Taylor v. State, 57 Ala.App. —, 331 So.2d 771.

WRIT DENIED.

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


author: PER CURIAM.

text:
    Eddie B. BOWMAN v. STATE.
    3 Div. 395.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied March 30, 1976.
    Elno A. Smith, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant-defendant was indicted for selling marijuana contrary to Act 1407, Section 401(a), Acts of 1971, and in Count II for selling lysergic acid diethylamide (LSD) contrary to the law, supra. He entered a plea of not guilty. The jury convicted him as charged. The trial court imposed sentence of eight years imprisonment in the penitentiary.

I

Defendant contends on this appeal that the court committed reversible error in refusing to let him introduce pictures of himself and his brother. He asserted that the under-cover agent, who allegedly made the purchase of the drugs listed in the indictment, was mistaken in his in-court identification of the defendant, and that it was his brother and not himself who was the guilty party.

The mother of defendant testified that the picture of defendant was made “about four years ago,” that the picture of her other son was made “five or six years ago.” She further testified that “that is exactly how they looked at that time.” The State objected because the pictures were too remote and had no relevancy in July, 1974, when the alleged offense occurred. The trial court observed, after looking at the pictures, that “People’s characteristics can change in four or five years. They can look a whole lot different from the time—in four or five years from the time the pictures were made.”

The record further shows that the brother at the time of trial was available to court process, which could have been issued at defendant’s instance, but he was not subpoenaed. Defendant depended on his brother’s unkept promise to appear in court.

The court sustained the State’s objection to admitting the pictures in advance. The ruling was free of error.

We observed in Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396(7) as follows:

“The late Justice Thomas of the Supreme Court stated the following rule in Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216, 217: ‘As a general rule, facts are deemed relevant which logically tend to prove or disprove the fact in issue, or which afford a reasonable inference or shed light upon the matter contested; and facts bearing so remotely upon or collaterally to the issue that they afford merely conjectural inference concerning the facts in issue should not be admitted in evidence.’ See also Martin v. State, 16 Ala.App. 406, 78 So. 322; Barnes v. State, 31 Ala.App. 187, 14 So.2d 242; Taylor v. State, 31 Ala.App. 590, 20 So.2d 239.”

The Supreme Court observed in Fletcher v. State, 291 Ala. 67, 277 So.2d 882(6) as follows:

“Photographs are admissible into evidence if they tend to prove or disprove some disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, to corroborate or disprove some other evidence offered or to be offered. Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962). Their admission is within the sound discretion of the trial judge. We can discover no error in his ruling against allowing into evidence a photograph of Conley, the victim, while alive.”

The trial court saw the pictures and also the defendant in court, and had the opportunity to pass judgment on the relevancy of the pictures. We are unwilling to say that he abused his discretion in sustaining the State’s objection.

II

Appellant here asserts that the trial court committed manifest error in restricting the argument of his counsel to fifteen minutes. We conclude that there was no error in this restriction.

The Supreme Court of Alabama observed in Jackson v. State, 239 Ala. 38, 193 So. 417, as follows:

"Each case must be considered upon its own record in passing upon whether there was an abuse of discretion, an infringement upon constitutional right, in fixing the time limit for argument. Much ground may be reasonably covered within thirty minutes. On full consideration we cannot say affirmatively there was error in this ruling.”

We note that defendant in Jackson was convicted of murder in the first degree, and sentenced to death. The trial judge restricted the argument of counsel to thirty minutes. The judgment was affirmed.

We hold that the identification of defendant, and his guilt or innocence of the offenses charged in the indictment, was an issue for the jury to decide.

The judgment is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Eddie B. BOWMAN v. STATE. Ex parte Eddie B. Bowman.
    SC 1801.
    Supreme Court of Alabama.
    May 21, 1976.
    Elno A. Smith, Jr., Montgomery, for petitioner.
   SHORES, Justice.

Petition of Eddie B. Bowman for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Bowman v. State, 57 Ala.App. —, 331 So.2d 775.

WRIT DENIED.

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