author: CLARK, Supernumerary Circuit Judge.

text:
    Joe Lee HARRIS v. STATE.
    6 Div. 889.
    Court of Criminal Appeals of Alabama.
    March 16, 1976.
    Joel L. Sogol, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State, appellee.
   CLARK, Supernumerary Circuit Judge.

Appellant was convicted of robbery and sentenced to ten years imprisonment in the penitentiary. On the trial he was positively identified by the victim as one of two men who had held the victim up with a shotgun and robbed him as he was proceeding on foot from his work to his home in Tuscaloosa. Defendant did not take the stand, and no evidence was offered in his behalf.

Appellant urges that the trial court committed reversible error in overruling a motion of defendant to suppress any identification resulting from an improperly conducted lineup. One ground of the motion was that the lineup was “overly suggestive.”

The motion to suppress was not ruled upon until after the State had rested its case. The motion had been filed more than a month before the trial day. Why the ruling on the motion was not invoked before trial is not clear. The record does not indicate that there was any evidence presented on the motion. Testimony as to the lineup identification and an in-court identification was introduced in evidence without objection. All of this apparently took place without any request that the court hear or determine the motion to suppress, which apparently was not mentioned until the court observed at the conclusion of all testimony:

“THE COURT: Gentlemen, in the court file of this case, I note there is a motion to suppress the identification based on the lineup and so forth. I apparently- never did rule on the motion. I may have but I want to overrule that motion at this time.”

If defendant thought there was any merit in his motion to suppress, he should have proceeded to obtain a hearing of the motion and a ruling thereon. Nevertheless, we are not persuaded by the evidence before us that the lineup procedure was unduly suggestive or intentionally arranged so as to lead to an identification of defendant. According to the record before us, the exclusive source of any information that we should take into consideration, five persons were in the lineup. They were all of the same race as defendant and included the person identified by the victim of the robbery as one of the two who had robbed him. They were not all the same age but “four of them were . . . within two or three years of one another.” The fifth was a “good bit older.” Soon after the robbery, the victim had stated to the officers who arranged for the lineup that his robbers were in their mid-twenties. Although it would have been better if all of those in the lineup had apparently been approximately the same age, there is nothing to indicate that the oldest person in the lineup was so different in appearance from the rest as to require his exclusion. Certainly, there is no indication of any intentionally unfair conduct on the part of the officers.

In our opinion, the lineup met the test of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, as the identifications were “entirely based upon observations at the time of the assault [robbery] and not at all induced by the conduct of the lineup.”

There was also an avoidance of “a very substantial likelihood of irreparable misi-dentification,” denounced in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247. As stated in Neil v. Biggers, 409 U.S. 188 at 199, 93 S. Ct. 375, at 382, 34 L.Ed.2d 401:

“The purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, and would not be based on the assumption that in every instance the admission of evidence of such a confrontation offends due process.”

Fairness to both the suspect and the victim should inhere in a lineup. The cards should not be stacked against either. The sooner the lineup the greater the likelihood of a correct result. The two persons suspected were apprehended about 4:30 A. M., within thirty of forty-five minutes from the time the victim reported the robbery to the police and within approximately an hour from the time of the robbery. They were located in a house about six blocks from the scene of the robbery. The automobile which the victim said the robbers were in just before the robbery was described by the victim to the police, who found it at the house. The police knocked at the door and were admitted by the woman who lived there. About six or seven men in all were there, including defendant and Fred Hamner, the other person brought to the lineup as one of the suspects. Upon being asked by defense counsel whether he knew if they came together, a witness replied “We were told they came together.”, and upon being further questioned by State’s counsel on the point he stated that “The lady that opened the door” when they entered told them “they came together.” Without any delay, the officers asked the two if they would go to police headquarters to let the victim take a look at them and they responded without any reluctance that they would do so, and they promptly went to police headquarters, where they were confronted by the victim while in the lineup.

Appellant stresses the factors set forth in Neil v. Biggers, supra, to be considered in evaluating the likelihood of misi-dentification: (1) the opportunity for the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation and (5) the length of time between the crime and the confrontation. As to (1), appellant argues that the victim did not have much of an opportunity to view the robbers, particularly the one he identified as defendant, who was standing behind him most of the time that the other robber was in front of him with a shotgun directed at him. But he had seen them before the robbery, both walking toward him and at another time while standing by the automobile in which they had been riding. According to the witness, defendant went in the pockets of the witness and took money, a cigarette lighter, and other items. He said he got a look at his face, although it was “Not too good.” As to (2), appellant argues that the witness’ attention was directed more at the shotgun in front of him that at the man identified as defendant behind him. This also ignores the fact that the witness had seen the persons at least twice before the robbery took place. Also, the situation was obviously such that one look at the man behind him and who was stealing his possessions from his pockets would not have been casual. As to (3), it is urged by appellant that the evidence shows that though the victim identified defendant as the taller one of the two that held him up, the other man, Fred Hamner, was some five inches taller than defendant. This is a discrepancy, but one that is readily understandable in that the two were not side by side at the time of the robbery and witness himself said that as to the man holding the gun, “I wasn’t too sure about his height.” As to (4) and (5) there were an unquestionably high level of certainty demonstrated by the witness at the confrontation and an extraordinarily short time between the crime and the confrontation. Taking into consideration all of the circumstances and the several criteria listed, the reliability of the identification is impressive.

Appellant also contends that the trial court committed reversible error in admitting in evidence a cigarette lighter.

A witness for the State, investigator E. T. Elmore, testified that soon after defendant and Hamner were taken to police headquarters for interrogation a cigarette lighter and some flints were found in the room in which Hamner was questioned. The witness said he had placed them in an envelope, and after proper identification the contents of the envelope were offered in evidence by the State. Defendant objected stating “There is no connection between the cigarette lighter and Mr. Harris.”, and thereafter stating “There has been no connection between Mr. Hamner and this person right here.” We think the objection was not well taken. There was a connection shown between defendant and Hamner. They were apprehended together in a house six blocks from the place of the crime within approximately an hour thereafter. There was evidence that they had been together in the same car. Furthermore, the victim of the robbery had identified the cigarette lighter as the one that had been taken from him by defendant. The relevancy of the evidence consisting of the particular cigarette lighter is clear as pointing to a circumstance of the corpus delicti and as to defendant’s participation therein.

The argument now made for the first time that the lighter flints “were irrelevant on two other counts” did not form any part of the objection to the particular evidence. The objection as now grounded comes too late. Only those grounds of objection presented to the trial court can serve as a basis for a reversal of its action. Craig v. State, 50 Ala.App. 618, 282 So.2d 59; Pope v. State, 39 Ala.App. 42, 96 So.2d 441, cert. denied, 266 Ala. 699, 96 So.2d 447.

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

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

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    John Lamar JOHNSON v. STATE.
    4 Div. 355.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.

      Samuel L. Adams, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the first degree and sentenced to life imprisonment in the penitentiary.

The alleged victim was his wife. Except as to the whereabouts of appellant at the time of the homicide and as to the identity of the murderer, little conflict, if any, is to be found in the evidence.

About 9:30 P.M. November 29, 1974, the body of the victim was observed in the front of a driveway at 302 North Lena Street in Dothan. A patrol car was approaching at the time, and it was flagged down. Her head was battered and bloody; there were numerous bruises and abrasions on the right and left forearms. An autopsy showed that there was a massive compound fracture of the skull.

Upon defendant’s arrest látér that rlight, his clothes that he had on at the time, including his boots, were removed from him. They were afterwards examined by a serol-ogist, who testified that there was blood and brain tissue on them.

A sergeant in the criminal investigation division of the Dothan Police Department testified that on December 2, 1974, he searched a pile of leaves behind a dentist’s office about three blocks from'the scene of the crime and found a blue denim jacket in which were rolled up a large ball-peen .hammer and a pair of tan gloves, on which he observed what appeared to be brain tissue and several strands of what appeared to be light-colored hair. They were turned over to the same serologist who examined and testified as to blood and brain tissue on the clothes of defendant, who also testified that the denim jacket and the ball-peen hammer revealed the presence of brain tissue thereon and human blood of the same type, group “O,” found upon defendant’s clothes and boots.

There was evidence that within a few weeks prior to the alleged crime defendant was heard to threaten his wife with cutting her head off and setting it on the table to look at and that “he was going to fix her face.”

Miss Carla Hargue testified that as she was sitting in an automobile in front of 302 North Lena Street she noticed a man behind some bushes at the house next door. She watched him for about fifteen minutes. The man crawled out into the yard and hid behind a tree. As the witness and the others in the automobile rode down the street, the man jumped from behind the tree with a hammer and chased the automobile. The occupants of the automobile drove to a service station and called the police. They then returned to 302 North Lena Street and the man jumped out of some bushes on the opposite side of the street and chased them down the street again. The occupants rode around the block and upon their return they noticed something lying in the street. At that time the witness said she saw the man run from behind a house at the corner of Adams and Lena Streets running to the south. That night, after defendant was arrested, the witness said she was shown a picture that she identified as a photograph of the man whom she had seen with the hammer that night. Upon being asked as a witness on the trial whether she could identify defendant as the man she had seen, she replied that she could not. According to the undisputed evidence, there was a great change in the appearance of defendant between the time of his arrest and the time of his trial. At the time of his trial his hair was cut short, collar length. At the time of his arrest, his hair was longer “and he had a soiled appearance and his hair appeared to be dirty and oily. It was not combed as neatly.”

Defendant took the stand and denied that he killed his wife. He denied being present at the scene of the crime. He was supported as to an alibi to some extent by five other witnesses. Only one of them, however, accounted for his whereabouts elsewhere for a period of about thirty minutes before the evidence indicated that his wife was killed. The alibi testimony in general was to the effect that he was in the general area of that part of Dothan where the crime was committed during the early part of the night of November 29, 1974.

The evidence was sufficient to support the verdict of the jury.

Appellant complains of the admission in evidence of the blue denim jacket and the ball-peen hammer and gloves found three days after the homicide about three blocks from the murder scene. Appellant cites Dorch v. State, 40 Ala.App. 475, 115 So.2d 287, in support of this contention. We think Dorch v. State supports an opposite view. It was there stated:

“Inadmissibility because of remoteness is confided largely to the trial judge’s discretion. McElroy, Law of Evidence in Alabama, § 21, pp. 6 and 7; 22 C.J.S. Criminal Law § 638.”

In Dorch a key was found in the vicinity eight days after the alleged crime. It was held that the trial court was not in error in admitting evidence as to the key.

It is argued by appellant that the admission in evidence of the results of the tests run on the clothing of appellant was erroneous, by reason of some evidence that the officers did not wash their hands between the time one of them handled the victim’s body and another had collected blood samples and particles of brain tissue from the body and the time that they removed appellant’s clothing. The one who touched the body said that he only touched it “On the right arm.” Upon being asked whether he got anything on his hands at the time he touched the body, he replied that he did not. The other officer did not touch the body and had little, if anything, to do with taking the clothes from the other officer after they had been removed from defendant, other than placing them in plastic evidence bags and sealing and labeling the bags. The notion that there could have been some blood, hair or tissue removed from the corpse, after it was viewed by officers and others, to the clothes of defendant before his clothes were placed in plastic evidence bags is ingenious, but it is not based upon any reasonable view of the evidence, in our opinion. The items of clothing mentioned were properly admitted in evidence.

On cross-examination of defendant, the State developed that he had been convicted of grand larceny in 1966 and of burglary in 1965. On redirect examination, he was asked, “Johnny, when was the last time you got into any trouble?” Before he was allowed to fully answer, he was asked on redirect examination, “I am talking about when you got convicted of any crime?” It appears from the record that there was not complete understanding between defendant and the attorney conducting the redirect examination of him, but it seems clear that his testimony was subject to a reasonable interpretation that he had not been convicted of a crime since he was convicted of grand larceny, which he then said was in 1965, rather than in 1966, as he had testified on cross-examination. On recross-examination, the following occurred:

“Q. Weren’t you convicted in June of 1968 for Resisting Arrest ?
“MR. ADAMS: Judge, I object.
“MR. SORRELLS: He opened it up.
“MR. ADAMS: Judge, it is not a crime involving moral turpitude.
“THE COURT: No, it is not a crime involving moral turpitude, but you asked him when was the last time as I remember when he was in trouble.
“MR. ADAMS: I changed that, I think to when was the last time he was convicted of any crime.
“THE COURT: I am overruling the objection. You opened it up.”

Defendant did not have then, and appellant does not have now, just grounds for complaint as to the evidence called for, as the door was opened for such evidence by questions asked defendant on redirect examination. Vincent v. State, 231 Ala. 657, 165 So. 844; Manassa v. State, 47 Ala. App. 287, 253 So.2d 356; Curtis v. State, 44 Ala.App. 335, 208 So.2d 245. Furthermore, the question objected to was never answered. Other questions on the subject were thereafter asked, which were answered but to which no objection was made.

The contention most strongly insisted upon by appellant is that evidence was erroneously admitted pertaining to an identification by the witness Carla Hargue of a photograph as a picture of the man the witness said she had seen with a hammer in his hand a short while before the body of the victim was discovered. She testified without objection that she was shown a group of photographs by Detective Lynn and that she picked out a photograph that she “identified as being the man she saw.” Thereafter Detective Lynn testified that after arresting defendant on the night of November 29, 1974, he took a photograph of him and later that evening showed Miss Hargue a group of photographs, including defendant’s photograph. He was asked by the State, “Did she make an identification?”, to which defendant objected and asked for a voir dire examination, out of the presence and hearing of the jury, which was conducted. On the voir dire examination by the defense it was developed that the first time Mr. Lynn talked with Miss Hargue she looked through approximately 450-500 pictures and picked out no picture, that defendant’s picture was not in that group. About an hour later, he showed her approximately 40 pictures, including the defendant’s picture; he said she picked out defendant’s picture and that she picked out another picture as looking like the person she saw on the occasion. Thereupon defendant’s counsel moved to exclude any testimony as to the picture “because there were two picked out.” The court sustained the objection. Then on voir dire examination of Officer Lynn by the State, it was developed that when she picked the “other picture out” she had not “gotten to the defendant’s picture,” that as to the other picture she did not say “That was the man” but that “It resembled him,” but when she “got to the picture of the defendant,” she said “that was him.” Thereafter the trial judge took part in the voir dire interrogation, as well as counsel for the State and counsel for defendant. The voir dire examination was concluded as follows:

“THE COURT: Do you have anything else on voir dire ?
“MR. ADAMS: No, sir, I would still like to state my objection, as to why, if the Court would like to hear it, the reason she picked out two pictures and not just one. She said one looked similar to it, and the Court knows that as a positive identification, it was not, and it was two pictures picked out.
“THE COURT: I understood the second was a positive identification.
“MR. ADAMS: The two were picked out and she said they were similar and as to that identification, I don’t think it is proper to admit to the jury, and I would also like to look at the pictures of the defendant that she was shown. As the Court knows, the mug-shot pictures or any rogue gallery pictures are not admissible to the jury anyway. And also, as a third ground, the lady could not identify the defendant here in Court and that picture very much — well, his face hasn’t changed a bit.
“THE COURT: I am going to overrule your objection for whatever probative it has. I will allow you great latitude on cross-examination of the witness.
“MR. ADAMS: All right. I would like to place an exception, in the record.
“THE COURT: All right, let the jury come.”

The next, and only other, time there was any reference to an identification was when Detective Lynn testified upon being-recalled by the State. Then the following occurred:

“Q Did she identify one of the photographs that you showed, her ?
“MR. ADAMS: I object to this, Judge, as he has already testified as to. this, she testified as to two pictures.
“MR. SORRELLS: Judge, I am getting to the question that he has not testified to.
“THE COURT: Well, if you don’t, I am going to overrule it and sustain a Motion to strike.
“Q Do you have that photograph that has been identified?
“A Yes, sir.
“Q Is that photograh here that she identified ?
“A Yes, sir.
“Q Who is that photograph of ?
“MR. ADAMS: Judge, I object. It is repetitious. She picked two pictures out.
“MR. SORRELLS: Judge, I don’t recall that being in testimony.
“THE COURT: You don’t recall what?
“MR. SORRELLS: I recall the testimony being that she picked out two pictures, but she didn’t identify which pictures. I don’t recall him testifying as which one she picked out, and identified. That is the only question I am asking.
“THE COURT: Officer Lynn, you say that this is a picture that she definitely identified?
“A Yes, sir.
“THE COURT: Alright, your next question was what ?
“MR. SORRELLS: Who is that a picture of?
“THE COURT: Overruled.
“Q Who is that a picture of?
“A A picture of Johnnie Lamar Johnson.”

Appellant urges that the evidence relative to the photograph of defendant as noted above was not admissible, “as being hearsay and extra judicial identification.” Appellant urges that Aaron v. State, 273 Ala. 337, 139 So.2d 309, supports his view. There it was stated that the general rule is that evidence by a third party of an extrajudicial identification is admissible in rebuttal of testimony tending to impeach or discredit the identifying witness, or to rebut a charge, imputation or inference of falsity, but appellant argues that no such circumstance existed in this case.

We are somewhat at a loss to determine what defendant was objecting to on the trial, as we are somewhat at a loss to determine what the State was attempting to show, as to the particular photograph. It was handled on the trial by counsel for the State and counsel for defendant and was observed by the court. It probably could not have been properly introduced in evidence, over objection of defendant, while Miss Hargue was testifying, for it had not then been shown that it was a picture of defendant, but we see no basis for an objection on the ground of hearsay, as an extrajudicial identification, to evidence by the witness Miss Hargue that the photograph was a true likeness of the man she saw with a hammer, when coupled with testimony of Detective Lynn, who took the photograph of defendant, that it was a picture of defendant. That could not involve any question of hearsay or extrajudicial identification, and why that course was not followed we do not know. There does not seem to have been any question about the accuracy of Detective Lynn’s testimony that it was a photograph of defendant, and there does not seem to be any question as to Miss Hargue’s judgment or determination that it was a picture of the man she saw under extraordinarily suspicious circumstances.

We are called upon by appellant to reverse the trial court in overruling defendant’s objections to testimony relative to the picture on a ground that was not assigned on the trial, or even suggested. Defendant then emphasized a contention that the witness had identified another picture, not of the defendant, as one resembling the man she saw with the hammer. On the trial, defendant also urged that “the mugshot pictures or any rogue gallery pictures are not admissible to the jury anyway.” There is no evidence that the photograph was a “mug-shot” picture or a “rogue gallery” picture. It is clear that there was no evidence whatever to indicate any suggestiveness to Miss Hargue in the photograph-viewing procedure. When the matter of the photograph was last presented on the trial, defendant objected on the ground that it was repetitious. Whether a repitious question should be allowed is within the discretion of the trial court. Curtis v. State, 44 Ala.App. 335, 208 So. 2d 245.

We cannot place the trial court in error for overruling questions to which untenable grounds only were assigned.

Our review of the evidence fails to find any error prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Don BENNETT v. STATE.
    6 Div. 855.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
    Ralph E. Coleman, Birmingham, for appellant

      William J. Baxley, Atty. Gen. and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

The sole question presented by this appeal is whether the trial court, trying the case without a jury by agreement of both parties, was justified in adjudging defendant guilty of an assault and battery. Defendant had appealed from a conviction in the Criminal Court of Jefferson County, to the Circuit Court, where there was a trial de novo.

Defendant was a bus driver for Birmingham Transit. Authority, whose route included streets adjacent to the grounds of the University of Alabama in Birmingham. A sixteen-year-old girl, who was attending the Center for Developmental Learning Disorders at the University of Alabama in Birmingham Medical Center, had seen him several times while he was driving the bus in that area and had waved at him. Defendant was thirty-five years of age. On May 14, 1974, defendant was off work and drove his automobile by the place where he had seen the girl waving at him. He offered her a ride home. She got into his automobile. He put his hand on her shoulder and pulled her “towards him . . . A little bit.” According to the girl, “He kissed me a lot of times.” He drove on the freeway, then on the Green Springs Highway to the Dairy Queen, where he kissed her “before he went out.” and put his hands on her. He kissed her there “for a pretty good bit. And then he got out to go buy a Coke.” After getting the Coke, they went back on the highway, and he drove the girl to her home on the Green Springs Highway, up on the hill. He told her not to tell her mother and daddy. She was not crying any of this time, but when she arrived home she cried. On cross-examination, upon being asked whether she slid over to his side, she responded, “I sort of slid over a little bit.”

The girl’s mother testified that the girl had been at the special school for retarded children five or six years; that the year of the incident was the second year that she had been riding a bus by herself; that when she came home on May 14, “She was very hysterical, crying ... I asked her what was wrong, and she told me what happened . . . She was so hysterical that I had to calm her down a long time before I could understand her.”

Defendant's testimony was in many respects substantially the same as that of the girl, that he had noticed her waving at him when he was driving the bus, that he saw her standing waiting for a bus on the occasion involved, that he asked her if she wished to ride home and she got in the car with him. He said he then asked her if she would like to have a Coke and she said it would be all right. She told him where she lived and he headed in that direction by the route of the Interstate and Green Springs Highway. He then asked her where would be a good place to go and she suggested the Dairy Queen. They stopped at a traffic light. His version continues:

“Q What if anything happened?
“A I asked her if I could kiss her, and she said she didn’t care. So, I did. She was sitting by me at this time.
“Q You say sitting by you, how close?
“A Right next to me.
“Q All right. Did you pull her, or did do anything to cause her to come over there ?
“A I had asked her, and she had moved over. That was all.
“Q After you had asked her and she moved over, you asked her if you could kiss her and she said okay?
“A Yes.
“Q Did you kiss her?
“A Yes.
“Q What did you do?
“A Went on to the Dairy Queen.
“Q All right. What did you do there?
“A I asked her-well, I started to go get a coke. And I asked her could I kiss her again, and she said she didn’t care. So, I kissed her again. And then I went and got the Coke.”

He further testified that as he approached her home, she told him “that her mother was going to be mad at her. So, I says, well, if your mother is going to be mad and you will get in trouble, don’t tell her.” As she left, he said, “I kissed her bye.” He further testified :

“Q Did she say anything about meeting again ?
“A I asked her if she would like for me to pick her up the next Tuesday, and she said it would be okay with her. But I got put in jail on Monday. So I didn’t go back Tuesday.
“Q On this particular case?
“A That’s right.”

Appellant divides the sole question before us into two parts:

“1. Did the conduct of the defendant in this instance, toward prosecuting witness, amount to an Assault and Battery ?
“2. Did the Court err in concluding that she was held against her will, and ‘a mental harm’ was done because of her age, and condition [TR 30] and that because of her age and retarded condition, she could not give her consent and that a reasonable person should have known this.”

We agree that the two questions deserve separate consideration, although to some extent they blend.

Bedrock principles of the law of assault and battery in Alabama are to be found in the pronouncements of the Supreme Court in Tarver v. State, 43 Ala. 354 (1869) and Jacobi v. State, 133 Ala. 1, 32 So. 158, appeal dismissed 187 U.S. 133, 23 S.Ct. 48, 47 L.Ed. 106 (1902). In Tarver it was stated:

“An assault is any attempt or offer, with force or violence, to do a corporal hurt to another, whether from malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intention into effect.”

and in Jacobi it was said:

“We do not feel any argument or suggestion is necessary to sustain the proposition of the second charge: ‘Any touching by one person of the person of another in rudeness or in anger is an assault and battery, and every assault and battery includes an assault.’ ”

In Turner v. State, 41 Ala.App. 310, 131, So.2d 428, Judge Cates, now Presiding Judge Cates, said persuasively and in accord with other authorities that “indecency” is within the meaning of “rudeness.”

The law is settled in Alabama that if a man takes improper liberties with the person of a female, or indecently fondles her without her consent, he is guilty of an assault and battery. Walker v. State, 132 Ala. 11, 31 So. 557; Moore v. State, 33 Ala.App. 188, 31 So.2d 373.

In arguing that the evidence is not sufficient to warrant a finding of an assault and battery, appellant stresses what was said in McGee v. State, 4 Ala.App. 54, 58 So. 1008, in pertinent part as follows:

“In other words, except in the instances to which we hereafter refer, in all criminal prosecutions for an assault or an assault and battery, the law looks to the intent with which the act was done. Where there existed, at the time of an alleged battery, no intent to do personal injury, then there was no crime unless the act was done under circumstances hereinafter referred to. Tarver v. State, 43 Ala. 354; Lane v. State, 85 Ala. 11, 4 So. 730; Wharton’s Am.Crim. Law (4th and Rev. Ed.) § 1341.
“In civil, as distinguished from criminal, actions, an intent to injure is not essential to the liability of the person committing the assault. Carlton v. Henry, 129 Ala. 479, 29 So. 924.”

Without questioning in the least what was said in McGee as applied to the facts of that case, a case involving an alleged assault with intent to murder with a gun, we quote from authorities as to the kind of intent that is necessary to constitute an intent that is an element of the crime of assault or assault and battery. In Burdick, Law of Crime (1946), Section 113, it is stated :

“Much misunderstanding has undoubtedly arisen by confusing the objective of this mental element of intent. It is not necessarily an intent to break the law, although such an intent is often present, because one may be entirely ignorant that the act he is doing is a violation of law, nevertheless his ignorance of the law is not excuse. It is not necessarily an intent to do anything wrong, or even immoral, but an intent to do the act.”

In discussing the nature of the requisite intent, it is stated in Henderson, Wharton’s Criminal Law and Procedure, Section 338:

“ . . . It is likewise immaterial that he did not intend to harm anyone. Hence a blow inflicted as a joke, there being no assent, is a battery . . . It is sufficient that the defendant voluntarily intended to commit the unlawful act of touching . . . ”

In addition to the confusion that can arise from the use and attemped application of the term “intend” or “intent,” we should note the confusion that can arise from an assertion that one must intend an “injury” or “harm” in order to be guilty of a particular offense. An “injury” or “harm” to a person is referable at times to actual damage to the structure of the human body, while at times the term is referable to the invasion of one’s right to the inviolability of the body. “A criminal battery is committed whenever one person intentionally and wrongfully inflicts personal injury upon another against his will, by violence. Actual injury is not a necessary element of an unlawful battery.” Scott v. State, 118 Ala. 115, 24 So. 414.

The facts reported in Walker v. State, supra, are sufficient to demonstrate that an actual injury, in the sense of some damage to the structure of the body, is not an essential element of an assault and battery, criminal or civil. In that case, defendant, a friend of the victim and her husband, came to their house and, after playing with their baby, defendant reached across the lady’s lap “and pinched her knee with all his fingers.”

The valid consent of a female to kissing, or other such intimacy, is, of course, a defense to an action or prosecution based upon such intimacy. In a civil case, the consent must be specially pleaded. In a criminal case, it can be shown as a complete defense under the plea of not guilty. The evidence as to consent is strongly, if not conclusively, in favor of defendant, but the validity of the consent is highly questionable.

It is not for us to pass upon the validity of express consent of a young girl to being kissed by a middle-aged man under myriad circumstances. The problem in this case is large enough, and we limit our consideration to it alone. A resolution of the question is dependent upon the circumstances of this particular case, including the actual ages of the parties, the mental age of the girl, the previous acquaintance or relation between the two, the particular behavior of each toward the other, the apparent mentality of the girl, and the conformity vel non of their conduct with conventional decorum. As to these questions, we do not occupy the vantage point of the trial judge, whose senses of sight and hearing in looking at and listening to both of the parties as they testified were of paramount value in solving the problem. That he took what he saw, as well as what he heard, into mature consideration, is reflected in the record by the statement of the court, after taking the case under advisement overnight, as follows:

“Now, to continue that, it seems to me the question in this case is whether a reasonable person had a right to assume that this retarded child of sixteen years of age could give her consent. And after observing the child and her demeanor, this Court firmly believes that this retarded child could not give her consent.”

In a case tried without a jury and in which the judgment of the trial court is based upon oral testimony, a conviction must be affirmed unless the judgment below was clearly wrong or so contrary to the weight of the evidence as to be manifestly unjust. Moseley v. State, S3 Ala.App. 272, 299 So.2d 317, cert. denied 292 Ala. 743, 299 So.2d 319; Haney v. State, 33 Ala. App. 524, 36 So.2d 116, cert. denied, 250 Ala. 664, 36 So.2d 117.

That the trial court deemed that there were some mitigating circumstances and that there was a reasonable doubt, at least, that defendant had intentionally committed a heinous offense, is indicated by its action in suspending the six months sentence and placing the defendant on probation. An assault and battery does not involve moral turpitude. Bedsole v. State, 274 Ala. 603, 150 So.2d 696.

Finding no error on the part of the trial court, we conclude that its judgment . should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: HARRIS, Judge.

text:
    Ronald WEBSTER, alias v. STATE.
    3 Div. 486.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.

      Carlton & Carlton, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State, appellee.
   HARRIS, Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said County charge that, before the finding of this indictment W. RONNIE WEBSTER, alias RONALD WADE WEBSTER, alias RONNIE W. WEBSTER, whose name is to the Grand Jury otherwise unknown, did buy, receive, conceal, or aid in concealing eight Remington tires, a better description of which is unknown to the Grand Jury, of the value of $140.50 each, all of the aggregate value of $1,124.00, the personal property of Charles G. Lawson, knowing that they were stolen, and not having the intent to restore them to the owner, against the peace and dignity of the State of Alabama.”

Appellant signed a waiver of arraignment and pleaded not guilty and not guilty by reason of insanity. The jury returned a verdict finding the defendant guilty as charged after deliberating twenty-five minutes. He was sentenced to thirteen months in the penitentiary. He was furnished a free transcript and trial counsel was appointed to represent him on appeal.

Appellant made a motion to exclude the State’s evidence on the ground the State failed to carry the burden of proof in this case. This motion was overruled.

Officer B. W. Smith of the Montgomery Police Department testified that in the early morning hours of July 22, 1975, he stopped a light blue 1957 Chevrolet pickup truck on Madison Avenue near the intersection of Hull Street in the city and county of Montgomery, Alabama. In the back of the truck were eight new tires and the truck was being driven by appellant and he had a companion by the name of Earl Shephard. The officer asked the two men where they had gotten the tires and was told they had gotten them off a truck at Gowan’s Truck Stop for Mr. Charles Oates who runs Charlie’s Restaurant.

The officer asked the men if they had any type bill of sale or anything to show they had purchased these tires and they could not produce a bill of sale or other written instrument showing ownership of these tires. Officer Smith called the detective unit on duty at that time to come to the point where he had the truck stopped. He stayed with the truck and the occupants until the detective unit arrived and the truck, tires and the two men were carried to Headquarters to the Detective Division. The tires were impounded awaiting proof of ownership. The tires were described as Remington 10 by 22 truck tires.

On cross-examination Officer Smith stated that the truck was stopped at approximately 2:00 a.m. and that appellant told him the two men had gotten the tires from Gowan’s Truck Stop. He further stated that appellant told him that a black male had loaded the tires on the truck and that Charlie Oates had given him ten dollars to haul the tires from Gowan’s Truck Stop to Charlie’s Restaurant.

On July 21, 1975, Mr. Charles G. Lawson bought eight Remington 10.00 X 22 truck tires from Harris Tire and Rubber Co., Inc., in Troy, Alabama, for the total sum of $1,124.26, including tubes for the tires. Mr. Lawson drove his truck loaded with the tubes from Troy to Hope Hull, Alabama arriving at the Days Inn Motel around 6:00 p.m. ¡ He went to bed about 10:00 p.m. and got up the next morning around 6:00 a.m. He noticed the tires and tubes were not in his pickup truck and he reported the theft to the Montgomery Police Department. He further stated he did not give anyone permission to take the tires and tubes. At this point Mr. Lawson was shown State’s Exhibit 4 and identified it as a photocopy of the invoice given him at the time he purchased the tires and tubes. This photocopy was admitted into evidence over the objections of appellant that the best evidence would be the original.

Detective G. T. Alford of the Montgomery Police Department testified that he got a call to go to the Eight Days Inn in Hope Hull and talk to Mr. Lawson about coming to Headquarters to see if he could identify some tires and tubes that the police officers had recovered during the night. Mr. Lawson identified the eight tires and tubes he had purchased the day before from Harris Tire Company in Troy. The tires and tubes were surrendered to Mr. Lawson and he signed a warrant for appellant and Shephard. A property inventory sheet showing these tires and tubes made out by the Police Department was introduced in evidence without objections.

Detective Herbert C. Norton testified that he joined Officers Smith and Gray-house where they had a 1957 Chevrolet pickup truck stopped. He stated that appellant told him he had been to Gowan’s Truck Stop and Charlie had given him $5.-00 to transport some tires to Charlie’s Restaurant. It subsequently developed that “Charlie” turned out to be Charlie Oates who was employed by Charlie’s Restaurant. He further testified that the officers took custody of the tires and tubes pending their efforts to locate Mr. Oates.

Mr. Norton further testified that the next evening when he came on duty he learned that warrants had been issued for both appellant and Shephard and that about 3:00 a.m. he went to appellant’s home to serve ■ the warrants. Appellant’s wife answered the door and told Mr. Norton he was not home. Upon being advised that he had arrest warrants for the two men, they appeared and were carried to Police Headquarters where they were given the Miranda rights and warnings.

Mr. Charles Oates was called as a witness for the State and testified that he was at Gowan’s Truck Stop on the early morning hours of July 22, 1975, and he had a conversation with a man by the name of Shephard who tried to sell him some tires for $40.00 but he did not buy them. He stated Shephard showed him the tires and they were big truck tires. He said he did not see appellant at this time.

Mr. Eddie Booker testified that he was night manager at Gowan’s Truck Stop and that his hours of employment were from 11:00 p.m. until 7:00 a.m. He stated that he was working his regular shift on the night and morning of July 22, 1975. He further testified that he saw appellant in the early morning hours of July 22 and appellant tried to sell him some tires and tubes, and the other man said I can get the tires in fifteen or twenty minutes. Later Mr. Booker saw the tires in the back of a blue pickup truck, but he did not buy the tires or attempt to buy them. Mr. Booker further testified that about a week before appellant’s trial, he and Mr. Shephard came out to the truck stop and appellant wanted him not to say anything about him trying to sell the tires and tubes as Shep-hard was going to “take the rap.”

Mr. Shephard tried to “take the rap” for appellant. Appellant did not testify. Mr. Shephard testified he lived in LaGrange, Georgia, and had known appellant for fifteen years. He stated that he was in Montgomery the night of July 22, 1975, and that he and appellant went to Chester’s about 8:00 p.m. That after being at Chester’s a few minutes he asked appellant if he could use the pickup truck to go to Hope Hull to see about his wife. He stated he went to Hope Hull and left appellant at Chester’s. He was informed he might find his wife at the Eight Days Inn and that he drove around the motel and saw a truck with some tires on it. He got out and took the tires off the pickup and put them in the 1957 blue Chevrolet and went back to Gowan’s Truck Stop alone. That he stayed at Gowan’s Truck Stop trying to sell the tires and that he talked to several different truck drivers. He-said he talked to a man named Charlie who told him to take the tires to the Farmers Market. That he then went to Chester’s to get appellant and appellant asked him where he got the tires and he told him that a friend of his in Hope Hull had the tires and gave him $5.00 to carry them to the Farmers Market. He stated that appellant drove and when they got to Montgomery, the police stopped them and carried them to Police Headquarters.

Mr. Shephard said that he stole the tires himself. He stated that he picked the tires up from the truck and that appellant was not with him and didn’t know the tires were stolen. He further stated that appellant did not try to sell the tires.

On cross-examination Mr. Shephard admitted that he pleaded guilty to the crimes of burglary and grand larceny in the years 1962, 1964 and 1972. He identified photographs, State’s Exhibits 1 and 2, as being similar to the tires he claimed he loaded on the truck alone.

On rebuttal the State recalled Mr. Booker who stated that he was familiar with the type of tires shown in the photographs and they would weigh between 80 and 100 pounds each and that it would take a mighty strong man to pick one tire up by himself.

The jury simply rejected Shephard’s testimony as it was contrary to the uncontra-dicted evidence adduced by the State showing appellant’s involvement with these stolen tires.

There was no motion for a new trial; there was no request for the affirmative charge and no exceptions were reserved to the Court’s oral charge to the jury.

Appellant’s only claim of error to re-' verse this conviction was the action of the trial court in admitting into evidence the photocopy of the invoice given Mr. Lawson at the time he purchased the tires and tubes on the ground that it was not the highest and best evidence.

The contention was held adversely to appellant in Neal v. State, 47 Ala.App. 68, 250 So.2d 605.

The Neal case, supra, was cited with approval in Yelton v. State, 294 Ala. 340, 317 So.2d 331, wherein the Supreme Court said:

“The trial court did not err in admitting the photostatic copy of the fingerprint card in evidence. The Court of Criminal Appeals in Neal v. State, 47 Ala. App. 68, 250 So.2d 605, cert. den. 287 Ala. 738, 250 So.2d 608, approved the admission in evidence of a ‘photo-copy of the micro film of the original invoice’ over several grounds of objection, one of which was that it was ‘not the highest and best evidence.’ ”

After a careful research of the record we have been unable to find an error injuriously affecting the substantial rights of appellant.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Billy Joe MOORE v. STATE.
    8 Div. 694.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
    Richard D. Shinbaum, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
   TYSON, Judge.

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

Robert E. Hancock testified that on February 19, 1975, he was called to investigate a homicide reported around Whitesburg Bridge, in Morgan County, Alabama. He testified that he arrived at the scene about 9:20 and found a 1966 Red Pontiac Lemans pulled into a field off a main road known as River Loop Road. He stated that the interior of the vehicle had been burned. He stated he found the body of the victim lying on his back on the right-hand side of the vehicle. He stated that the victim’s head was about 30 inches from the right front wheel and that his right leg was in a semi-drawn position. He stated that the victim’s body lay in a pool of blood and he noticed several bullet wounds in the face and head.

He testified that upon further investigation he determined that the victim was Emmett Phillip Hillis and he identified several photographs made at the scene. Officer Hancock further identified a .22 caliber H & R nine-shot target pistol blue steel and scabbard which pistol and scabbard he found inside a plastic bread sack when taken to the location by one Wayne Broad. No fingerprints were found upon the pistol. He testified that no fingerprints were found of either the appellant or of Anthony Baker in the Pontiac car. He further stated that examination revealed that the victim had been beaten before he was shot and it was determined that a wind breaker jacket which was removed from the body of the victim belonged to Anthony Baker.

Van B. Pruitt, Jr., State Toxicologist, testified that he examined the body of a Caucasian male on February 19, 1975, at the Laughlin Funeral Home in Huntsville and found at least five gunshot wounds on the body with several to the head and brain area, and that based upon his examination he determined that death was caused by “multiple gunshot wounds to the head which damaged the brain.” He testified that some slugs were found which were from a small caliber pistol. He testified that the victim was one Emmett Phillip Hillis and that a blood alcohol test revealed a .10% ethyl alcohol in the blood.

Sergeant Hancock was recalled and identified a closed pocket knife found in the right front pants pocket of the victim which was identified as belonging to Anthony Baker.

Wayne Broad testified that he lived in February of 1975 at 211 Abbyton, Huntsville, Alabama. He testified that he knew the appellant Billy Joe Moore and Anthony C. Baker. He testified he went to the funeral of the deceased Emmett Phillip Hillis. He testified that on the night of February 18, 1974, the appellant Billy Joe Moore and Anthony Baker came to his home while he was watching television and told him that they “needed an alibi” and that he talked with them in the kitchen and that they had come by about 11:20 that evening. He stated that the appellant told him that they had “stole a car and they needed an alibi for the police from 8:30 to 11:30.” He stated the two men left and he did not see them until the next morning when he learned of the death of Emmett Phillip Hillis. He stated that the two men came back to talk with him and that Billy Joe Moore stated on the morning of February 19, 1975, “Billy Joe told me they killed E. P. Hillis. I thought he was joking.” He said, “That’s why we needed an alibi,” and they “hid the gun out behind my house, that it was hidden between two power poles and they showed me where it was.” He stated that the appellant further said that morning, “Billy Joe said he shot him nine times in the head.” R.P. 46

Broad testified that later he went out between the power poles where the two men told him the gun was and dug it up and that it was in a plastic bag in a holster and that he then carried it out near his mother’s and hid it in some woods. He stated that this was on Wednesday morning and that the funeral was two days later on Friday. He stated that he next talked to the two men after the funeral and that they were on their way to a billiard hall when they told him most of what had happened about the killing of E. P. Hillis. He stated that the appellant told him that they stole a car up somewhere above Huntsville and were going to rob a beer joint near .Whitesburg Bridge but that it turned out to be closed. He said that the victim E. P. was following himself and Baker in another car when Billy Joe told Baker “I believe I’ll kill that S.O.B.” He said that Baker replied,

“Anthony — Anthony said, ‘There ain’t a hair on your ass if you don’t.’ ”

He stated that Moore then said that they stopped the cars and that the appellant shot E. P. with a pistol and that he said “No, Billy, don’t,” and that he shot him three or more times in the face. He said that they then rolled the victim over and took Baker’s jacket and put it on the victim after throwing the victim’s coat in the river and that the two men laughed about the shooting.

On cross-examination Broad testified that he had been brought in for questioning about the matter and that he told the officer he had talked to his lawyer arid that his lawyer told him that if he didn’t tell the truth, he would get as much time as the other two men and that he then went and dug up the pistol and holster and gave them to Officer Hancock. He further testified that he was married to the sister of defendant Anthony Baker.

Oscar Thomas Baker testified that he was the father of the defendant Anthony C. Baker. He testified that his son and the appellant Billy Joe Moore were both indicted for the first degree murder of Emmett Phillip Hillis. He testified that after learning of the death of Hillis in February, that his son and appellant came by his home about 4:30 one afternoon. He stated that in his presence after knowing that the two men had been arrested for the offense in question, that Moore stated, “I did it myself, you ain’t got nothing to worry about. I’ll clear Anthony because he didn’t have anything to do with it.” Moore further stated, “Anthony never touched the gun,” and that Moore had put nine bullets in him. He further stated that the two men said they were going to leave and give the police a statement about it.

The appellant’s motion to exclude the State’s evidence was overruled. The appellant presented no testimony at trial.

I

During closing argument — R.P. 79 — the following occurred:

“(WHEREUPON MR. MOEBES MADE CLOSING STATEMENTS TO THE JURY ON BEHALF OF THE STATE OF ALABAMA AND THE FOLLOWING OBJECTIONS WERE MADE:)
* Jjc * * * *
“MR. KEMPANER: Your Honor, I object and would respectfully move for a misstrial on comment from the Counsel of the failure of the Defendant to take the witness stand.
“THE COURT: Overruled.”

The appellant contends that the above constitutes reversible error as being a comment on the failure of the appellant to testify at trial.

Without doubt, any reference to a failure of the accused to take the stand and testify or offer evidence in his behalf constitutes reversible error. Title 15, Section 305, Code of Alabama 1940. Broadway v. State, 257 Ala. 414, 60 So.2d 701.

In this case however we have only the fragmentary objection, above shown, which fails to set forth the alleged improper argument. Inasmuch as the law clearly requires that defense counsel set forth in his objection the alleged improper argument and have same recorded in the record and ruled upon by the trial court, we are unable to predicate error on the record as presented to us in this cause. The above objection is insufficient to invoke our review. McClary v. State, 291 Ala. 481, 282 So.2d 384.

II

Appellant contends that this cause should be reversed as the defendant may not be convicted upon the uncorroborated testimony of an accomplice, Title 15, Section 307, Code of Alabama 1940. In the first instance, the record does not establish Wayne Broad to be an accomplice in this case. However, conceding him to be such for the sake of argument, there is ample other testimony from the investigating officers, and the father of Baker, to support the conviction in question. Sorrell v. State, 249 Ala. 292, 31 So.2d 82; Wyatt v. State, 51 Ala.App. 226, 283 So.2d 675; Bridges and Rogers v. State, 52 Ala.App. 546, 295 So.2d 266.

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

AFFIRMED.

All the Judges concur.


text:
    Lendwith O’Neal SAVAGE v. STATE.
    3 Div. 470.
    Court o£ Criminal Appeals of Alabama.
    March 30, 1976.
    Carlton & Carlton, Montgomery, for appellant.
    Willaim J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ten years in the penitentiary. He was represented by retained counsel and he pleaded not guilty. After sentence was imposed, he gave notice of appeal. He was found to be indigent and he was furnished a free transcript, and trial counsel was appointed to represent him on appeal.

The evidence was in sharp conflict. The evidence for the State made a clear cut case of robbery. Appellant’s defense was an alibi.

Alonza Sidney testified that on March 22, 1975, he was a cab driver for the Dependable Cab Company. He' said he had a trip to Landsdown Motel and when he unloaded, the operator told him to pick up a fare at the Cash & Carry Grocery Store on Day and Oak Street. That when he arrived at the Cash & Carry, two men entered his cab. He said that appellant got in the back seat of his cab and the other passenger got in the front seat. The men told him they wanted to go to Gibbs Village and that nothing happened until they got to Terminal Road in Gibbs Village. He further testified that the man in the back seat had a pistol and the man in the front seat had a knife. He further stated that appellant was the man in the back seat and he threatened him with the pistol and took his billfold with ten or eleven dollars in it. He was told to stop the car and when he did, the man in the front seat with the knife snatched the keys from the ignition, but that did not cut off the motor. That at this point both men got out of the cab and fled on foot. He said he never got his money or billfold back after the robbery.

Sidney said that he viewed a number of mug shots but was unable to identify either of the two men who robbed him. Later he attended a lineup and he identified appellant as one of the robbers and the man who held the pistol on him and took his billfold and money. He stated there were six men in the lineup and he identified number 3 as appellant. This was verified by the police officers who conducted the lineup. Sidney made a positive in-court identification of appellant.

Detective Cecil Humphrey stated that he investigated the robbery involving Alonza Sidney. He stated that there were five persons in the lineup and that Sidney identified number 3 as appellant. The lineup was held the following Tuesday after the Saturday night robbery.

Mr. Fred L. Nichols testified that he was employed at the Cash & Carry on the night of March 22, 1975. He stated that he knew appellant and saw him the night of the alleged robbery. He said he saw appellant and another man use the telephone and later enter a cab and that this occurred shortly before midnight. He stated he knew the other person’s face but did not know his name.

Appellant’s alibi was that he was at the home of his mother on the night of the alleged robbery with a number of other people playing cards and drinking beer and gin. He testified that he did not leave home that entire night and the card game broke up between 12:00 and 1:00 o’clock and everyone went to bed. His testimony was supported by his mother, sister, girl friend, and one John Henry Jackson. Appellant admitted that he had been convicted of grand larceny and was on probation at the time of the alleged robbery. He denied any knowledge of the robbery until he was arrested and that he was involved in such robbery.

On cross-examination John Henry Jacked of a felony and he replied that he had been convicted of carrying a concealed weapon. There were no objections to the questions posed to this witness and, of course, no ruling by the trial judge.

There was no motion to exclude the State’s evidence; there was no request for the affirmative charge; there were no exceptions reserved to the Court’s oral charge to the jury, but appellant filed a motion for a new trial containing the following three grounds:

1. That the verdict of the jury is contrary to the great weight of the evidence in the case.
2. That the verdict is not sustained beyond a reasonable doubt by the evidence.
3. That the Honorable Judge failed to exclude, over the objection of the defendant, evidence pertaining to confidential relationship between the attorney and his client.

The motion for a new trial was overruled.

The first two grounds set forth above can be put to rest by the case of Young v. State, 283 Ala. 676, 220 So.2d 843, wherein the Supreme Court said:

“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.”

As to the third ground of the motion for a new trial we quote from the record as follows as to the cross-examination of appellant :

“Q. You don’t recall telling him that you were at home on Friday night, playing cards, or anything like that ?
“A. Well, he asked me what I was doing.
“MR. CARLTON: We object to any conversation that I had with this Defendant.
“THE COURT: Yes, I am going to sustain the objection, because that’s the relation of client and lawyer and it is confidential; so I am going to sustain the objection to anything that was said between him and Mr. Carlton.”

In the first place we think the District Attorey did not exceed the legitimate bounds of cross-examination in asking appellant if he told his lawyer he was playing cards the night of the alleged robbery in the light of appellant’s alibi defense. Secondly, even though the trial judge sustained the objection, appellant did not request the Court to charge the jury to disregard the question as to what appellant told his lawyer about his alibi defense.

There was no error in overruling the motion for a new trial. It is well settled law in this state that in reviewing the refusal of a motion for a new trial, this Court will indulge every presumption in favor of the correctness of the ruling of the trial judge and the decision thereon rests largely within the sound discretion of the trial court. Moore v. State, 52 Ala.App. 179, 290 So.2d 246; Johnson v. State, 51 Ala.App. 172, 283 So.2d 624.

Where there is legal evidence from which the jury can by fair inference find the defendant guilty, this Court has no right to disturb the verdict. Price v. State, 53 Ala.App. 465, 301 So.2d 230; Hawkins v. State, 53 Ala.App. 89,297 So.2d 813.

Appellant presented a strong case in support of his alibi. His testimony and the testimony of his witnesses were opposed to that of Alonza Sidney. However, in our system of jurisprudence, we do not travel on the numerical number of witnesses. A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Smith v. State, 53 Ala.App. 27, 296 So.2d 925.

In Willcutt v. State, 284 Ala. 547, 226 So.2d 328, the Supreme Court held:

“The scintilla rule does not apply in criminal cases. There must be substantial evidence tending to prove all the elements of the charge. Ex parte Grimmett, 228 Ala. 1, 152 So. 263. The burden is on the State to prove beyond a reasonable doubt that the crime has been committed and that the defendant was the person who committed it. Jarrell v. State, 251 Ala. 50, 36 So.2d 336. The weight of the evidence, the credibility of the witnesses, and inferences to be drawn from the evidence, where susceptible of more than one rational conclusion, are for the jury alone. Byrd v. State, 213 Ala. 333,104 So. 830.
“We cannot say in the instant case that there was not enough evidence to allow the jury to draw the inference that the defendant was the person who committed this robbery. The defendant presented a strong case in support of his alibi. The testimony of his witnesses was in direct conflict with the testimony of the State’s witness. Yet the State’s witness made a positive identification of defendant as the person who robbed and burned him. The State presented substantial evidence and the jury had before it an adequate basis for drawing inferences and conclusions against the defendant. It is for the jury, not the trial court or this court, to find the facts and to determine guilt or innocence. The State presented sufficient evidence upon which the jury could base its verdict.”

The fact that numerous witnesses testify in support of a defendant’s alibi does not preclude the jury finding the defendant guilty of robbery. Calloway v. State, 49 Ala.App. 151,269 So.2d 168.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Edwin Michel SPERLING, alias v. STATE.
    1 Div. 616.
    Court of Criminal Appeals of Alabama.
    March 9, 1976.
    Rehearing Denied March 30, 1976.
    W. Mark Anderson, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

A jury convicted defendant of murder in the second degree as charged in the indictment and fixed his punishment at life imprisonment. He was an indigent at the trial and here on this appeal. Different appointed counsel represents him on this appeal.

It appears from the evidence that defendant, two others, and the deceased were all hoboes and had assembled at a “jungle” near a railroad track in Mobile, and were planning to catch a train, hobo style, for different destinations. While so assembled and while under the influence of wine, one of the foursome, Sprague Seaborn Baker, was robbed and killed by defendant according to the evidence. He was apprehended later in Jacksonville, and while under arrest, gave a lengthy statement to the officers. This statement was taken down by a court reporter and transcribed. It was produced at defendant’s trial in Mobile.

As we read the record, the State offered and the court admitted the statement in evidence, but later ruled that the statement was limited in evidence and was not to go to the jury. So far as this record reveals, the jury never read the inculpatory statement nor learned what was in it.

We quote the court’s ruling as follows:
“THE COURT: Now, the Record will show that the transcript of the examination of the Defendant at the Defense attorney’s insistence was made available to the Defense attorney, and has been admitted into evidence so that he might use it for such purposes as he wishes. This transcript does not go to the Jury. I merely put it into evidence so that you could use it in your Cross-Examination if you so desired. If there is anything you wanted to read from that transcript, you must —.”

The record shows that the State put up Sergeant Miles, a deputy sheriff from Jacksonville, Florida. The State elicited from this witness some testimony that was independent of the defendant’s written and signed statement as to what the defendant confessed after Miranda warnings. Defendant objected on the ground that the written statement was the best evidence. It was then that the State offered the statement in evidence. The counsel for the defendant stated that he wanted the statement read in full. The State replied that the jury could read the statement “when they go back there” It was sixty-three pages long. Then the court stated he would give defendant’s counsel the opportunity to have the statement read at some point. The statement was again offered as evidence, and the court said, “All right.” The statement was marked as State’s exhibit 15.

The parties then proceeded with the examination of the witness as to what the defendant said and followed by the ruling of the court, supra, excluding the statement from the jury. The record does not indicate that defense counsel ever used the statement per the permission of the court, supra.

The effect of the ruling left the jury to determine the facts from the oral testimony of the witnessess, including defendant.

The Supreme Court of Alabama, in Elkins v. State, 250 Ala. 672, 35 So.2d 693(4).

“The case before us does not present a situation where the accused makes a statement in the preliminary hearing before the committing magistrate who is required by law to reduce the testimony to writing. Here we have an inculpato-ry admission which was extrajudicial, taken down in writing and signed by the accused. From our examination of the authorities while there is some diversity of opinion. (22 C.J.S. Criminal Law § 833, page 1457), the rule which we prefer to follow is well established, viz. that parol evidence of a confession or incul-patory statement taken down in writing extrajudicial is not secondary evidence. It could well be that the written evidence would be more convincing and accordingly of greater weight but that is not the determining factor. Both the written statement and the oral testimony of a witness who heard the statement are classed as primary evidence. The rules governing the establishment of a contract have no application here. Where there is a contract there is a meeting of minds and the written words are presumed to embrace the final agreement to the exclusion of everything else. When a confession or inculpatory statement is made there is no meeting of minds. All that the accused voluntarily wrote or said which is material to the charge, is competent against him because it is his own admission and against his own interest. The witness testifies not as to what the writing contains, but as to what he heard the defendant say. The court was not in error in allowing parol evidence of the statement made by the accused. . . .”

Thus it appears that the oral testimony of the witness, Sergeant Miles, was admissible as primary evidence.

We might state here that appellant asserts that the trial court’s restrictive use of defendant’s written confession denied him the opportunity of getting before the jury some exculpatory statements in the written confession, thereby softening the impact of the confession as related by Officer Miles. Defendant contends that the restrictive ruling was prejudicial to him and was reversible error.

The ruling, of the court left defendant free to use the written statement as a basis for challenging the testimony of the officer and to refresh his recollection as to exculpatory statements appearing in the writing.

We again note that Elkins, supra, holds that both the oral and written statements are primary evidence. .Thus we observe that the written statement, primary evidence, was available to defendant on proper invocation to show the exculpatory statements of the defendant which the witness Miles omitted in his oral primary testimony. Just what use the defendant made of the writing is not clear, but suffice to state that under the law he had the opportunity of getting before the jury the exculpatory statements in the writing. There was no duty on the State to adduce these statements. The trial court in its ruling was excluding the written statement that was introduced by the State. This introduction might have had the effect of bolstering the oral testimony of Miles as to what took place; hence the court was protecting the defendant against a build-up of the same evidence. Nowhere does the record reveal any denial of defendant the use of the primary written evidence for relevant purposes. Mullís v. State, 258 Ala. 309, 62 So.2d 451.

We fail to see that defendant was prejudiced by the restrictive use of the statements introduced by the State.

Appellant’s able and competent counsel does not assert any other error in the rulings of the court. So far as our search reveals, there was none.

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

The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Lewis GRACE, alias v. STATE.
    4 Div. 435.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.

      Carl S. Farmer, Abbeville, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted for the unlawful possession of marihuana not for his personal use. Prior to arraignment it was determined that appellant was indigent and the Court appointed counsel to represent him at arraignment and trial. He pleaded not guilty. The trial court sentenced him to twelve years imprisonment in the penitentiary and assessed a fine against him in the sum of $2,000.00. He gave notice of appeal and sentence was suspended pending appeal. He was furnished a free transcript, and trial counsel was appointed to represent him on appeal.

Two ABC Board Agents working as undercover agents for the Drug Enforcement Bureau and several police officers went to appellant’s home at 110 Clark Street in Ab-beville, Alabama, between 12:30 and 1:00 p. m. armed with a search warrant to search appellant, his home and premises. The date was May 15, 1975. Appellant was not inside the house at the time the officers arrived but he was on the premises near a hog pen loading or unloading some tin on a truck which was about 120 feet from the hog pen. The search warrant was first served on appellant’s wife and while the search of the home was being conducted, appellant came in the house and the warrant was then served on him.

The return to the search warrant shows that the officers found approximately 5 grams of marihuana in a bedroom in a tubular cardboard container and one Roach clip. The officers also found 16 marihuana plants about 2 feet tall and 21 marihuana plants approximately one inch tall growing in the hog pen on the premises. Also in the hog pen were some tomato plants and there was some mulch material around the tomato plants and also around the marihuana plants. The two officers testified that appellant voluntarily stated that he didn’t have anything growing in the hog pen but some tomato plants. Appellant denied making this statement.

The officers arrested appellant for possession of marihuana and he was admitted to bail pending trial. After conviction his appeal bond was fixed at $12,000.00.

The officers took the substance found in the house and the 16 plants found in the hog pen and delivered this material to Mr. Richard Dale Carter, a Criminalist with the State Department of Toxicology located in Enterprise, Alabama. After stating his education, qualifications and experience he testified that he conducted an analysis of the green vegetable material in the tubular container and the 16 plants and found the material to be marihuana and that the 16 plants were marihuana plants. He further stated he had performed such tests or analyses more than four thousand times.

Appellant, was the only witness in his behalf. He denied any knowledge of the plant material being in his house and denied that he had anything to do with the hog pen on his premises. As above stated, he denied telling the officers that the only things he had growing in the hog pen were tomato plants. He said the only thing he had growing on his property was pinto beans.

On cross-examination he admitted that the officers served the search warrant on him but could not account for the marihuana being in his house or the plants growing in the hog pen. He admitted a prior conviction for forgery in Henry County, Alabama.

The main contention that appellant makes on this appeal is the severity of the punishment of twelve years in the penitentiary. The maximum penalty for possession of marihuana not for personal use is IS years and a $25,000.00 fine.

Where the sentence is within the statutory limits, this Court does not have re-visory powers as to the severity of the sentence. Philpot v. State, 43 Ala.App. 326, 190 So.2d 293; Duncan v. State, 42 Ala.App. 111, 154 So.2d 302; Artrip v. State, 41 Ala.App. 492, 136 So.2d 574.

In a prosecution by indictment where the jury fails to impose a fine, the trial judge is without authority to do so. Carpenter v. State, 50 Ala.App. 543, 280 So.2d 804; Osner v. State, 54 Ala.App. 520, 310 So.2d241.

There was no motion to suppress the evidence obtained pursuant to the search warrant; there was no motion to exclude the State’s evidence; there was no request for the affirmative charge; there was no motion for a new trial, and no exceptions were reserved to the Court’s oral charge. In this state of the record nothing is presented for review. Price v. State, 53 Ala.App. 465, 301 So.2d 230; Goodman v. State, 52 Ala.App. 265, 291 So.2d 358.

The judgment of the Court below to the extent that it imposed a fine of $2,000.00 in addition to the sentence of twelve years in the penitentiary must be treated as surplusage.

The judgment of the lower court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Christopher J. DEMOS v. STATE.
    1 Div. 664.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
    Lloyd E. Taylor, Fairhope, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D, Hanan, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of murder in the first degree of his wife.

The evidence is undisputed that he killed his wife with a butcher knife. His stepdaughter, a thirteen-year-old girl, was an eyewitness against him. He pleaded not guilty and not guilty by reason of insanity. There was no evidence of insanity. There was abundant evidence that at the time of the crime he was under the influence of toluene, which he had recently voluntarily inhaled and to which he had become addicted.

We see no basis for a conclusion, and there is no contention to the contrary by appellant, that it was not well within the province of the jury to find that, notwithstanding the influence of the drug upon him, he knew what he was doing and had the mental capacity "'to form -the intent to kill his wife.

The bases for appellant’s insistence on reversal arise out of action of the trial court prior to the commencement of the trial. Appellant’s contentions are related to one another but are in .three distinct parts:

1. That the trial court should have gone further than it did to determine whether there was reasonable ground to doubt the sanity of defendant for the purpose of trial;

2. That a constitutional right of defendant as to counsel was violated;

3. That the trial court erroneously overruled defendant’s motion for a continuance of the trial.

Our review of the record convinces us that nothing was brought to the attention of the trial judge to cause him to have reasonable ground to doubt the sanity of defendant at the time or during the trial of the case. Defendant’s appointed counsel, designated by name by order of the court, and the other, his partner, actively assisting him at times, urged the court to grant defendant’s motion for a psychiatric examination of defendant, which was denied. In the course of the efforts of the attorneys for defendant to obtain a psychiatric examination, they made known to the court that there were records in the state of Ohio they would like to have, showing that defendant had received psychiatric treatment there when he was about fifteen years old. Their contention was supported by testimony of defendant’s mother. However, none of this testimony was to the effect that defendant had ever manifested any tendencies to insanity other than at such times as he was inhaling or sniffing the fumes of glue. His mother testified that she talked with a psychiatrist in Ohio and that:

“He said that when he talked with Chris, and Chris was not on glue, that he was a completely different person than when he had been on glue. And his attitude would be different. And he was not able to control himself as he could without glue. And he was a very calm person and a sensitive person.”

The mother further testified that defendant had been confined in a mental hospital in Toledo, Ohio. On cross-examination she said:

. . [T]hat every time he was on glue he was bad or had problems, and that every time he wasn’t he was all right.”,

that he was normal, “except he was an extra sensitive person and got emotional real easy.” She testified that he had been charged with a series of criminal acts (assault and battery, assault with a deadly weapon, child abuse, assault with a knife, and armed robbery) and that on each occasion he was under the influence of glue, that when he was not on glue “he was all right.” Upon further interrogation of her by the State, she said that she had records in her possession indicating that the psychiatrist in Ohio who had observed him stated that he “knew the difference between right and wrong” and that he “was able to maintain his own defense in that particular instance.”

In our opinion, we do not have here a case wherein there was reasonable ground for doubting the sanity of the defendant at the time of trial or his mental competency to stand trial. Unlike Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, another uxorcide case in which defendant’s mother testified for him, there was no substantially irrational behavior attributable to defendant in this case other than while he was under the influence of fumes from glue. He had not obtained any during the period of his confinement, after his arrest the night of the homicide, and according to evidence in addition to that shown above, he was entirely normal. The trial court justifiably concluded that there was no reasonable ground to doubt his sanity or his competency to stand trial.

In reliance upon Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, appellant argues that he had “an absolute right to terminate the services of appointed counsel and that the denial by the Court of his request to do so was error.” This case bears little resemblance to Faret-ta. At about the conclusion of the pretrial hearing on the question of defendant’s competency to stand trial, defendant’s counsel made known to the court that defendant had expressed dissatisfaction with his appointed counsel and his partner. Counsel stated that defendant had manifested such dissatisfaction at about the time the hearing commenced and had indicated that he wanted such counsel discharged. His counsel moved or requested or suggested that other counsel be appointed to represent him in lieu of counsel then representing him. The judge overruled the motion but stated that he would continue to consider the motion until the following week when the case was set for trial. He let counsel know that they were to understand that they were “still charged with his defense.” As the case was called for trial, further consideration was given to the motion for a discharge of his attorneys and the appointment of other attorneys and a lengthy colloquy took place among the court, the defendant and the attorneys. It then developed that defendant was largely dissatisfied with them because of the fact that they had not been as optimistic about the outcome of the case as he would have liked for them to have been. He said he had talked with his mother and she thought he should go ahead with his court-appointed attorney. He was given some time to consider the matter further. Thereafter the court was advised by his attorneys that “he has authorized us to go ahead and assist him and handle the defense for him.” Defendant stated that that was his desire. In none of this was there any indication that defendant seriously believed that he would have been better off by his having different counsel or by his representing himself in the case. The competency of his counsel was not questioned. The trial judge stated he took judicial knowledge of their competence. The record and transcript of the proceedings indicate to us that they ably represented him and that he voluntarily and understandingly abandoned his effort to discharge his attorneys and obtain other attorneys. No error was committed as to the question.

Defendant moved for a continuance of the case but assigned no ground for a continuance other than the need for more medical information from Ohio relative to defendant’s previous psychiatric treatment and the manifested dissatisfaction at one time with his attorneys as stated above. There is nothing to indicate that a continuance of the case would have placed the defendant or his attorneys in any better position to present the case than they were in at the time of the trial. Except for the records from Ohio as to his previous psychiatric treatment, which would have had little, if any, bearing on the issues on the trial of the case, they had the benefit of all the evidence they would ever be able to present in defending the case. It seems to us that defendant and his attorneys were as prepared to defend the case as they would have been if a continuance had been granted. There was no abuse of the discretion reposed in the trial court to grant or refuse a continuance. Hannon v. State, 284 Ala. 487, 26 So.2d 90; Hite v. State, 282 Ala. 497, 213 So.2d 229; Pearson v. State, 41 Ala.App. 366, 133 So.2d 60.

We find no prejudicial error in the record. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: CATES, Presiding Judge.

text:
    James Henry WILSON v. STATE.
    7 Div. 445.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
    Jerry B. Oglesby, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and G. Daniel Evans, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Robbery: sentence, ten years — the lowest permissible term under Code 1940, T. 14, § 415.

I

Wilson kidnaped a young lady at pistol point and took all her money, one dollar. His defense was alibi. The jury gave it no credit.

II

The judgment entry fails to state expressly that the jury were sworn. It does, however, state the verdict as being given by the jurors “upon their oaths * * * ”

Therefore, even though Ratliff v. State, 20 Ala.App. 454, 103 So. 912, seemingly accorded no significance to “upon their oaths * * the absence here of any ground in appellant’s motion for new trial distinguishes this record from that in Fowler v. State, 261 Ala. 262, 74 So.2d 512.

We expressly hold that “upon their oaths * * *” is sufficient to show that the jury were sworn. In Vaughn v. State, 236 Ala. 442, 183 So. 428 “sworn according to law” sufficed. See also, Whitehurst v. State, 51 Ala.App. 613, 288 So.2d 152; Code 1940, T. 30, § 59. We appreciate that a silent record cannot create a presumption which would serve to fill the hiatus of an un-sworn jury, i. e., a non-jury. Slatton v. State, 49 Ala.App. 377, 272 So.2d 586; Melton v. State, 45 Ala. 56.

The transcript of evidence recites that the jury was sworn. Under Hines v. State, 238 Ala. 575, 192 So. 423, we cannot supply omissions in the minute entry by reference of the transcript of evidence. But see Fowler, supra. We consider that the jury was sworn.

Ill

Appellant filed a motion for new trial — the sole ground for which was newly discovered evidence to the effect that during the critical time of the charged robbery he was in the company of his then fiancee.

We consider that the trial judge did not abuse his discretion. See Zuck v. State, 57 Ala.App. 15, 325 So.2d 531.

The judgment is

AFFIRMED.

All the Judges concur.

      . “Any person who is convicted of robbery shall be punished, at the discretion of the jury, by death, or by imprisonment in the penitentiary for not less than ten years.”

      . “ * * * The verdict in this case ought not to have been rendered, if two of the jurors were not sworn. In fact, it was not the verdict of a jury. * * * ” — Melton, supra.


text:
    Lorenzo BODY v. STATE.
    6 Div. 972.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.
    Robert C. Boyce, III, Bessemer, for appellant.
    .William J. Baxley, Atty. Gen., Montgomery, and Randolph P. Reaves, Asst. Atty. Gen., Birmingham, for appellee, the State.
   TYSON, Judge.

The appellant was indicted for the first degree murder of Roosevelt Duncan, Sr., “by shooting him with a pistol.” At trial the jury found the appellant guilty of murder in the second degree and fixed punishment at twenty-five years imprisonment. The trial court then pronounced judgment, setting sentence in accordance with this verdict.

County Coroner J. P. Helton testified that an autopsy performed on the body of the deceased, Roosevelt Duncan, Sr., around mid-morning, September 7, 1974, at Bessemer Carraway Hospital, indicated that death resulted from a gunshot wound through the heart. He stated that he turned the projectile, which was removed from the deceased’s chest cavity, over to the State Toxicology Office in Birmingham for a comparison test.

Charles Holland testified that when he entered the Chicken Shack in Bessemer, Alabama, on the night of September 6, 1974, he saw the appellant, Lorenzo Body, “standing in the back at the pool table.” While at the Chicken Shack, he did not notice any disturbances, but later, as he was walking out the front door with El-more -Rutledge, he was shot in the back.

On cross-examination, Holland testified that Lewis Duncan and the deceased, Roosevelt Duncan, Sr., were brothers of his, and that they, too, were at the Chicken Shack on the night of September 6, 1974.

The testimony of Enoch Oliver and his wife, Brenda, owners and operators of the Chicken Shack, was essentially the same. They testified that on the night of September 6, 1974, they had a “pretty good night,” that the crowd included the appellant, his cousin, Elmore Rutledge, and the three “Duncan boys”; Roosevelt, Lewis, and Charles Holland. Around 10:00 p. m. Mr. Oliver broke up an argument between Lewis Duncan and Elmore Rutledge (R. p. 20), at which time appellant was shooting pool (R. p. 21). Later, appellant walked over to the table where Elmore and Roosevelt were sitting, jerked a gun from Elmore’s pocket (R. pp. 22, 35) and said, “Why do you keep arguing with the Duncan boys, don’t argue with them, just shoot them all” (R. pp. 26, 35). Appellant then ran toward Charles Holland, who was heading toward the front door, and shot him in the back (R. pp. 22, 35). As this shot was fired, Roosevelt Duncan, Sr., who had been seated, jumped up and said to appellant, “What’s wrong with you man” (R. p. 42), at which point appellant shot him too (R. pp. 22, 42). After shooting Charles Holland and Roosevelt Duncan, Sr., appellant pointed the pistol and pulled the trigger at Enoch Oliver and Lewis Duncan, but in neither instance did the weapon fire (R. p. 36). As appellant backed out the front door, waiving the pistol in the air (R. p. 23), he said, “Don’t nobody move, don’t mess with me none . . . if anybody move, I’ll kill you everybody” (R. p. 36).

Both Mr. and Mrs. Oliver testified that on the night of the shooting, they did not see Roosevelt Duncan, Sr., involved in any arguments, nor did they see him with any weapon, and that the same applied to Charles Holland.

Detective Sergeant G. N. Franklin, of the Bessemer Police Department, testified that he received a phone call from the appellant at approximately 8:00 p. m. on the night of September 7, 1974; that he, accompanied by another officer, proceeded to appellant’s house, located on Alabama Street in Bessemer, where the apellant met them and voluntarily turned himself in. Franklin testified that at the time of appellant’s arrest, he turned over a .38 caliber Taurus pistol, Serial Number 813184, which, he, Franklin, immediately marked for identification and subsequently turned over to the State Toxicologist.

State Toxicologist Robert Johnson testified that, based on his tests, the bullet retrieved from the body of the deceased was fired by the pistol he received from Sergeant Franklin. (The gun and bullet were admitted into evidence as State’s Exhibits Nos. 1 and 2, respectively.)

At this point the State rested its case and the appellant’s motion to exclude was overruled by the trial court.

State’s witness Charles Holland was recalled by the defense and identified State’s Exhibit No. 1 as his uncle’s pistol (R. p. 61). He explained that, seeing his uncle drunk, he had taken the pistol for safekeeping, but stated that on the night of the shooting, upon entering the Chicken Shack, he had given the pistol to Elmore Rutledge to keep for him (R. p. 62). Holland said that he and the appellant had a fight about a year before the shooting, but had been friends ever since.

The defense next called appellant’s cousin, Elmore Rutledge. He confirmed that Charles Holland had given him a gun to hold upon his, Howard’s, arrival at the Chicken Shack on the night of September 6, 1974. Rutledge said that he did not see anyone else with a gun, nor did he see or hear anyone arguing.

On cross-examination, Rutledge testified that he and appellant were cousins, that they had grown up with the “Duncan boys,” Roosevelt, Lewis, and Charles Holland, and that they were all friends. He stated that he did not see any sort of weapon in Roosevelt’s possession, and that he was not aware of arguing before the shooting.

Upon taking the stand, the appellant, Lorenzo Body, admitted to having, in 1971, plead guilty to a manslaughter charge in connection with another shooting (R. p. 71). As for the shooting in question, appellant testified that he heard his cousin, Elmore Rutledge, and Roosevelt Duncan, Sr., arguing, that he walked over to where they were sitting, and told his cousin not to argue with Roosevelt because “You know how he act about women” (R. p. 74). According to appellant, Roosevelt got mad and told him to leave the table, but he, appellant, replied, “You can’t make me,” at which point Roosevelt jumped up as if to attack (R. p. 74). Appellant testified that he snatched the pistol from Elmore’s pocket and began to back up, but fired when he saw the other two Duncans, Charles Holland and Lewis, were moving toward him; Lewis with a pistol in his hand, and Charles with his hand behind his back. Appellant stated that he had seen Charles with a pistol earlier ■ in the evening and' was not aware that he had given it to El-more. Appellant added that he had “been into it” with all of the Duncan boys in the past (R. p. 74). The appellant concluded his testimony by saying that as he was leaving the premises, Lewis Duncan came running out the front of the Chicken Shack and fired at him (R. p. 82). Following appellant’s testimony defense rested.

In rebuttal for the State, Lewis Duncan testified that on the night in question he did not have a gun in his possession.

I

During the cross-examination of State’s witness Enoch Oliver (the owner of the “Chicken Shack”), we find the following exchange (R. pp. 31, 32) :

“Q (Mr. Boyce) Mr. Oliver, do you have any sort of beer license?
“MR. COOK: I object to that.
“THE COURT: Sustained.
“MR. SHAW: In response to the State’s objection we except and ask the Court to allow us to go into it because we feel it would definitely lead to material evidence against the business relations of Enoch Oliver or affect the possibility of losing his license or being somewhat affected in a business manner, might alter or prejudice his testimony.
“THE COURT: Overruled (The motion just made by Mr. Shaw).”

We fail to see where the question of “whether the witness had a beer license or not” would shed light on the existence of any possible bias. Moreover, it appears that such evidence is remote, and therefore irrelevant in its objective, fames v. State, 52 Ala.App. 389, 293 So.2d 305, and authorities therein cited.

II

Appellant also asserts that the trial court erred in refusing to allow testimony as to the deceased’s (Roosevelt Duncan’s) character or, reputation ip.,the community for violence.

More specifically, during the recross-examination of Enoch Oliver, we find (R. pp. 60-61):

“Q (By Mr. Boyce) Mr. Oliver, do you know the general reputation in the community of Roosevelt Duncan for violence?
“MR. COOK: We object to that, Your Honor, no evidence he knew that.
“THE COURT: Sustained.
“MR. BOYCE; Except.”

Suffice it to say that at this point in the trial, no testimony as to self-defense had been presented, thus, the trial court’s ruling was correct. Russell v. State, 46 Ala.App. 230, 239 So.2d 902. See also Steele v. State, 1975, 56 Ala.App. 539, 323 So.2d 721, cert. denied 295 Ala. -, 323 So.2d 726 1975.

We have carefully examined this record and find no error therein. The judgment is therefore due to be and the same is hereby

Affirmed.

All the Judges concur.


author: MERRILL, Justice.

text:
    In re Lorenzo BODY v. STATE of Alabama. Ex parte Lorenzo Body.
    SC 1763.
    Supreme Court of Alabama.
    April 16, 1976.
    Robert C. Boyce, III, Bessemer, for petitioner.
   MERRILL, Justice.

Petition of Lorenzo Body for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Body v. State, 57 Ala.App. 329 So.2d 650.

WRIT DENIED.

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