text:
    Robert Henry SCOTT v. STATE.
    1 Div. 704.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.

      Delano J. Palughi, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for second degree murder of Ervin Lee Black by shooting him with a .410 single barrel shotgun. The jury found the appellant guilty “as charged in the indictment” and fixed punishment at ten years in the penitentiary. The trial court then entered judgment in accordance with this verdict.

Mobile Police Officer William C. Fowler testified that in response to a radio dispatch, he went to 353 Cherry Street, about 1:30 a. m., on the morning of October 26, 1975. Officer Fowler stated that upon his arrival, he found a black male lying “face down” in the street “almost in front of 353 Cherry Street” [R. 19, 20]. Officer Fowler testified that the victim was alive and had been shot in the upper portions of both legs, but stated that their investigation revealed that 353 Cherry Street was not the spot where the shooting took place. Officer Fowler testified that blood imprints on the sidewalk made by tennis shoes, apparently worn by the victim, led them some six blocks to Davis Avenue where “the trail got too faint” to track further [R. 22, 23].

Officer Nowland Ramsey, also of the Mobile Police Department, testified that on the evening of October 27, 1975, he was directed by Sergeant White of the Criminal Investigation Division to go over to the appellant’s home “to see if the boy [appellant] was there and to check for some evidence.” [R. 24].

Officer Ramsey testified that he did not obtain a search warrant before conducting his investigation, but stated he did receive permission to enter and search the premises from the appellant’s sister and father [R. 23]. Officer Ramsey stated that the appellant was not at home when he conducted his search of the appellant’s bedroom- which produced a coat and a .410 single barrel shotgun [R. 25, 26, 31, 34]. Officer Ramsey testified he took custody of these two items and took them downtown to the Criminal Investigation Division [C.I.D.] of the Mobile Police Department [R. 27]. Officer Ramsey further testified that he arrested the appellant at the appellant’s home some forty minutes later after being notified by the radio operator that someone had called and told the police that the appellant was now there [R. 32, 33]. Officer Ramsey testified that after arresting the appellant at his home, he took him directly to C.I.D. where he advised the appellant of his rights under Miranda, which were “read back to him [appellant]” a second time by Sergeant Bowman before the appellant signed his waiver form [R. 34, 39, 182].

Raymond James testified that he was with the deceased, Ervin Lee Black, on the night and early morning in question. He stated that he and Black were at the Am Yets Club where they met a girl and her mother whom they tried to engage in conversation. However, the witness stated that the two “girls” did not care to talk with them, and they then sat down at a table where the appellant was already seated. James stated that he and Black sat down at the table also, and that Black asked the mother of the girl for some of the wine which she had just purchased. James testified that she refused to give Black any of her wine, and that Black and the appellant “went and put their dollars” on another bottle of wine [R. 49]. James stated that the appellant would not allow Black to give him [James] any of the wine because “I didn’t put none [money] on it,” but that the appellant shortly thereafter offered one of his friends some of the wine. James testified that Black refused to let appellant’s friend have any wine either, and, with this, an argument between Black and the appellant began. James stated that subsequently the appellant, the girl, and her mother got up from the table and left the Am Vets Club, and that he and Black began following them “down the Avenue” where the appellant and Black continued their argument. The witness stated that several other people, including his brother, Andy “Baby” James, intervened in the argument on behalf of Black. James testified that his brother, “Baby,” and the appellant began to fist fight, and that Black and two others also “were jumping in and fighting” the appellant [R. 50, 56]. James testified that they “beat him [appellant] down” and left him lying in a lot “just off the sidewalk” [R. 60]. James stated that he and Black then walked down to the Blue Room Club, but left after about five minutes and headed back toward the Am Vets Club. James testified that as they were walking back, the appellant ran up behind them and said to Black, “You are the one” [R. 52], James stated that when they turned around, they noticed the appellant was carrying a shotgun under his coat, and that Black then told the appellant, “Man that was not me, that was Baby . . ., if you think I did, you can go on and shoot, but that wasn’t me” [R. 53]. James stated he began moving away from the argument, and when he heard a shot, he turned around and saw Black fall. James stated he then ran home and called an ambulance which arrived about fifteen minutes later. James stated that he initially told the ambulance service to come to the corner of Davis and Gaston where Black was shot, but upon learning from Black’s girlfriend that “Charles and Hank” had carried Black to his home, he called back and told the ambulance service to pick Black up “on back Cherry Street” [R. 64, 65].

Sergeant Ashville White of the Mobile Police Department testified that he was notified at his home around 7:00 p. m. on October 27, 1975, that Black had died from the gunshot wound he had received from the appellant. Sergeant White stated that he instructed Officer Ramsey to take the appellant in custody and bring him to C.I.D., which Officer Ramsey did about 9:00 p. m. Sergeant White testified that at 9:55 p. m. he “reminded him of his rights” previously read to the appellant by Officers Ramsey and Bowman and stated that the appellant acknowledged that “he fully understood his rights" [R. 70]. Sergeant White stated that the appellant was “willing to give me a statement,” and that no threats or promises, hope of reward, or other inducement of any kind were ever made to the appellant [R. 72, 76]. Sergeant White testified that the appellant then gave him a statement in regard to his shooting the now deceased Ervin Lee Black.

After an extensive voir dire examination, during which Sergeant White was questioned by appellant’s counsel, the district attorney, and the trial court, the trial court determined that the appellant’s statement was voluntarily given, and this statement was admitted in evidence as State’s Exhibit No. 4 [R. 75, 77]. Sergeant White further testified that after the process of taking the appellant’s statement was completed, he asked the appellant if he suffered any injuries from the beating he received from Black and his friends which required treatment by a physician, and the appellant answered, “No.” Sergeant White testified he then stated to the appellant that “the only thing then as a result of this beating that was really hurt was your pride,” to which the appellant acknowledged, “Yes” [R. 86].

Dr. James E. Hassel, a resident surgeon at the University of South Alabama Medical Center, testified that he examined the body and signed the death certificate of the deceased. Dr. Hassel stated that Black had received a shotgun wound in the upper left leg and that some of the shot had passed completely through the leg and “entered the medical aspect of the right leg” [R. 94]. Dr. Hassel testified that it was his opinion that death was caused by “complications of the kidney urinal celluar which was secondary to a period of shock because of the blood loss, and a lot of soft tissue injury which caused additional kidney injury” [R. 95]. Dr. Hassel further explained in “layman’s terms” that as a result of the gunshot wound, Black had a great loss of blood which in turn dropped’ his blood pressure and put him a state of shock. Dr. Hassel stated that kidneys “partially die” as a result of this trauma and are unable to properly function in order to remove potassium from the blood. Dr. Hassel stated that this “chemical [potassium] got too high and this caused him to die” [R. 95].

On cross-examination, Dr. -Hassel noted that because of the soft tissue injury, Black actually received “multiple injury” to his kidneys in that the “chemical from the muscles” also caused kidney damage [R. 97]. Dr. Hassel pointed out that due to “antibodies” in Black’s blood, they had great difficulty in typing and matching his blood with blood units available to the hospital, and that this complication caused considerable but unavoidable delay in the treatment of Black’s injury [R. 97],

Shiela Diane Scott, testifying on appellant’s behalf, stated that she, the appellant, and her sister, Janice, left her home together on the night in question to join her mother who was down at the Blue Room Club. She stated that the appellant “dropped them off” there, and that he told them he was going up to the Am Vets Club, but would return for them in about five minutes. She testified that when the appellant failed to return, they all went looking for him at the Am Vets Club where they found him asleep at a table. She stated that they awakened the appellant, sat down, and that her mother then ordered herself some wine. She testified that “some boys” at the table “tried to get some of my mama’s wine”; that the appellant told them to “quit trying to”; and that the appellant told Black if he wanted “to get wine” that he would go in on a bottle with him [R. 104, 105]. She stated that the appellant and Black purchased a bottle of wine together, and when a friend of the appellant’s asked for some of their wine, Black refused to let him have any. She stated that as they were leaving, Black told her, “We are going to follow you all everywhere you all go,” [R. 106] and did follow them outside the Am Vets Club. She testified that “down the Avenue” a “dude” named “Little Baby” and the appellant got in an argument, and that further up the avenue, “all the dudes got in Robert’s face” [R. 107]. The witness testified that a fight then broke out which lasted for about six minutes and left the appellant lying unconscious on the pavement [R. 109]. She stated that the girl who had participated in the fight against the appellant declared, “We done kicked his ass. We will be waiting on his brother if he comes back” [R. 109], The witness testified that she had to slap the appellant a couple of times to awaken him, and that when the appellant regained consciousness, she told him what the girl had said and the direction they went [R. 109]. She concluded her testimony by stating that the appellant then got up and left “walking real fast” [R. 110, 113].

The appellant’s testimony was essentially the same as that of Shiela Diane Scott’s in regard to what transpired before they all gathered at the Am Vets Club. He stated that he and Black, whom he had never seen before, “put together” on some wine because he “was trying to keep things down .,” and that an argument began between Black and himself when he offered a friend of his some of the wine. The appellant testified that Black told him, “What he says goes,” and also threatened to hurt him [R. 121]. He stated that their argument continued “all the way down the Avenue,” and when they got to Davidson Street, he turned around and a girl named Debra was “standing in my face” [R. 122]. He testified that they began hitting him on the head, and that someone grabbed him from behind and began choking him. The appellant stated he began losing consciousness and “had a feeling I was dying” [R. 123]. The appellant testified he blacked out and was later awakened by Shiela Diane Scott and her mother, then learned that Black and his friends were looking for his brother and had headed “up the Avenue” [R. 123], The appellant testified that he went home and got his shotgun “to find out why they did me like they did, why they jumped me” [R. 124]. The appellant stated he returned with the gun and “spotted them going up the Avenue.” He stated he called out to Black and Raymond James, and when they turned around, he had the gun pointed at them. The appellant testified that he did not intend to shoot anyone, but that while he and Black were arguing about “why they jumped me,” Black grabbed the gun and tried to take it from him, and the gun accidentally went off when “he jerked it back from him” [R. 124, 125]. The appellant stated that Black ran off, and he did not know whether Black was injured or not [R. 133]. The appellant testified that after the shooting, he walked home "by way of the back streets,” and upon his arrival there, he “put the gun under the bed and threw the coat on the books in my room” [R. 144], The appellant verified that the coat and the .410 shotgun, which were offered in evidence as State’s Exhibits No. 2 and No. 1, respectively, were his, and that the condition of both items had not changed other than there were “more wrinkles” in the coat [R. 131-133]. The appellant testified that after he returned home from a visit with a friend the day after the shooting, his mother informed him that the police were looking for him, and that he then told her to call the police and tell them he was there. The appellant stated he was taken to the police station where he waited for about forty minutes before giving a statement to Sergeant White [R. 126], When presented with the statement marked “State’s Exhibit 4,” the appellant acknowledged that, “This is the statement I gave Everything in there happened” [R. 127, 133], The appellant further acknowledged that he had read the statement before signing it and stated that to his knowledge Sergeant White had made no deletions from the complete statement which he had given him [R. 154].

On recross, however, the appellant described State’s Exhibit No. 4 as “partially correct” [R. 156]. The appellant remembered Sergeant White stating to him subsequent to the taking of his written statement, “Well, then, it was your pride that got hurt,” and testified that his response to Sergeant White at that time was, “. [S]ir, now that I think about it, maybe you are right” [R. 149]. However, the appellant reiterated several times that he was physically “hurt” as a result of the beating he suffered from Black and his friends, and that during the fight as they were “choking” and “stomping” him, he knew “for a fact” that he was dying [R. 123, 127, 128, 149].

I

The appellant contends that the trial court erred in admitting into evidence the coat and shotgun which was obtained as a result of the warrantless search of his bedroom. This Court, per Harris, J., in Welden v. State, 57 Ala.App. 379, 328 So.2d 630, 633 (1976), observed:

“In Daniels v. State, 290 Ala. 316, 276 So.2d 441, Justice Bloodworth, writing for a unanimous court, set forth six exceptions under which warrantless searches have been upheld. These are:
“1. In ‘plain view;’
“2. With ‘consent’ voluntarily, intelligently and knowingly given;
“3. As ‘incident to a lawful arrest;’
“4. In ‘hot pursuit’ or ‘emergency situations;’
“5. Where ‘exigent circumstances’ exist coincidental with ‘probable cause’ (as in ease of movables); and
“6. In ‘stop and frisk’ situations.”

The State asserts that the warrantless search of the appellant’s bedroom can be upheld on the “consent” exception noted above. In the area of “consent searches,” it has explicitly been recognized that certain third parties may validly consent to the inspection of premises or effects of an absent nonconsenting defendant if such third parties share with the defendant “common authority over or other sufficient relationship to the premises or effect sought to be inspected.” United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242. See also Myers v. State, 55 Ala.App. 404, 316 So.2d 235 (1975), and authorities cited therein; Hawkins v. State, Ala.Cr.App., 333 So.2d 846 (1976).

In Matlock, supra, Justice White, in footnote 7 of his opinion, clarifies what is meant by “common authority”:

“Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justified the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). (night hotel clerk could not validly consent to search of customer’s room) but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”

However, when the State seeks to justify a warrantless search by proof of third party consent, they must do so by clear and convincing evidence that the consent was voluntarily and knowingly given and that the third party who gave the consent had sufficient authority to do so. Moffet v. Wainwright, 512 F.2d 496 (5th C.A. 1975); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684; United States v. Matlock, supra. The issue before us now is whether the State made the requisite showing in the instant case.

The only evidence in the record as to the authority of the appellant’s.father and sister to consent to the search of the appellant’s home is the testimony of Officer Ramsey, who conducted the search. The record reveals the pertinent part of Officer Ramsey’s voir dire testimony as follows:

“Q So, you went to his house and went in the house and acquired the coat and shotgun?
“A Yes, sir.
“Q Was the defendant at the house at the time?
“A No, sir.
“Q Then, you got these from someone else other than the defendant?
“A Yes, sir.
“Q Did you have a search warrant at that time?
“A No, sir.
“Q Do you know where in the house they were received from?
“A Yes, sir.
“Q Where?
“BY MR. VALESKA:
“Judge, wait a minute. We object to this. He wants to take the witness on voir dire as to the confession. Now, he is going into how he got the evidence.
“BY THE COURT:
“Might save some time. Go ahead with voir dire.
“BY MR. PALUGHI:
“Q You didn’t get these objects from the defendant, did you?
“A No, I did not.
“Q You did not get them the same time you arrested the defendant?
“A No, I did not.
“Q When did you get these objects?
“A Before I arrested him.
“Q How many minutes — how many days, weeks or what?
“A About thirty or forty minutes.
“Q The defendant was not home? Do you know where in the house these objects came from?
“A Yes, sir.
“Q Where?
“A Bedroom.
“Q Do you know whose bedroom?
“A According to his father, it was his bedroom.
“Q You had no search warrant?
“A No.
“Q Is it not a fact you told the father to give up these things or you would get a search warrant or something to that effect?
“A No, sir.
“Q How did he give them to you?
“A We asked him permission and also, I believe it was the defendant’s sister for permission. There were several people there. We wanted to know who was in charge of the house and his father was there and they give us permission to search.
“Q Now, at that point did you know that that room that it came from was his bedroom?
“A They told us that.”

The appellant’s father and sister, whose consent Officer Ramsey relied upon, did not testify at trial.

We do not feel that the State has sustained its burden of showing that the father and sister had proper dominion over the premises searched. Not only was the address of the premises not disclosed in the record, but the State never established whether the father or sister owned the premises, who had title, whether, they lived there as joint tenants sharing common authority over it with the appellant, or were simply houseguests of the appellant. Although officer Ramsey inquired as to “who was in charge,” the record does not clearly indicate that he ever got a response to his question other than, “his father was there and they give us permission to search.” Assuming arguendo that the father told Officer Ramsey emphatically that he was in charge of the premises and had authority to consent to the search, this authority cannot be proven at trial solely by the hearsay testimony of the officer who conducted the search. Moffet v. Wainwright, supra. We therefore conclude that the coat and the .410 shotgun obtained from the appellant’s bedroom were erroneously admitted into evidence, but in view of the relevant facts and circumstances as presented by the entire record, their admission into evidence was harmless in that the substantial rights of the appellant were not affected thereby. Rule 45, Alabama Rules of Appellate Procedure, adopted December 1, 1975.

The record reveals that neither ownership, nor the use of the coat and .410 shotgun by the appellant were “disputed evi-dentiary facts” in the instant case, but, to the contrary, these facts were admitted by the appellant, not only in his statement given to Sergeant White the day after the shooting, but also by his own testimony at trial. Boulden v. State, 278 Ala. 437, 179 So.2d 20; Chandler v. State, 283 Ala. 29, 214 So.2d 306; Jones v. State, 50 Ala.App. 36, 276 So.2d 621.

We therefore feel that the admission of the appellant’s gun and coat, without the proper showing of ownership of the premises, did not necessarily contribute to the verdict reached, and thus their admission was harmless beyond a reasonable doubt. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Adair v. State, 51 Ala.App. 651, 288 So.2d 187, and authorities therein cited.

II

The appellant also contends that the trial court erred in admitting into evidence his signed statement given to Sergeant White because Sergeant White did not include within the statement the questions which elicited the testimony contained therein. The record reveals that the statement was prepared by Sergeant White by his asking the appellant pertinent questions, and then transcribing in narrative form only the testimony given by the appellant. Although the inclusion of the “questions asked” of an appellant in Ms statement may be the better practice, such is not necessary, and our concern focuses on whether or not the statement was voluntarily given by the appellant after being fully informed of his rights under Miranda.

It appears in the record that the trial court heard evidence outside the presence of the jury as to the voluntariness of the statement and also evidence relating to the Miranda warning given to the appellant. Moreover, the appellant’s own testimony established that he had read the statement he had given to Sergeant White, and when asked by the district attorney, “Is there anything in there [the statement] that is not true,” the appellant responded, “Everything in there happened. Everything in there happened” [R. 133]. We therefore conclude that the appellant’s statement was properly admitted into evidence for the jury’s consideration. Shewey v. State, 48 Ala.App. 730, 267 So.2d 520; Bilis v. State, 49 Ala.App. 726, 275 So.2d 706; McClendon v. State, 54 Ala.App. 327, 307 So.2d 723; Retowsky v. State, Ala.Cr.App., 333 So.2d 193.

Ill

As a final insistance of error the appellant contends that the State failed to establish that the appellant’s action was the actual cause of Ervin Lee Black’s death and alleges that the negligence of the hospital staff was the supervening cause of his death.

We find that this contention is wholly without merit. Not only does the appellant fail to offer any evidence in support of his allegation, but the testimony of Dr. Hassel was sufficient evidence upon which the jury could find that death resulted from the shotgun wound inflicted by the appellant. Cook v. State, 43 Ala.App. 304, 189 So.2d 595 (1966); Mitchell v. State, 43 Ala.App. 427, 191 So.2d 385 (1966); Gurley v. State, 36 Ala.App. 606, 61 So.2d 137 (1952); McCall v. State, 262 Ala. 414, 79 So.2d 51; Adams v. State, Ala.Cr.App., 335 So.2d 398 (1976), cert. denied July 30, 1976, Ala., 335 So.2d 400.

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

AFFIRMED.

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


source: Caselaw Access Project

author: HARRIS, Judge.

license: Public Domain

text:
    Laura GARRAWAY v. STATE.
    1 Div. 718.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.

      Joseph C. McCorquodale, III, Jackson, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was indicted for murder in the first degree. The jury found her guilty of manslaughter in the first degree and fixed her punishment at ten years imprisonment in the penitentiary. She was represented at arraignment and trial by retained counsel. She pleaded not guilty to the indictment. After sentence was imposed, she gave notice of appeal and her bond was fixed at $7,500.00. She is free pending appeal and is here represented by trial counsel.

The evidence for the State tended to show that on the night of September 13, 1975, appellant stabbed her husband with a butcher knife which caused his death. Appellant admitted cutting or stabbing her husband but claimed she did so in self-defense.

There was no motion to exclude the State’s evidence on the ground the State failed to make out a prima facie case; there was no request for the affirmative charge, and no exceptions were reserved to the Court’s oral charge to the jury. Appellant did file a motion for a new trial on the ground, among others, that the verdict was contrary to the great preponderance of the evidence in the case.

Deputy Sheriff Rowdy McGee of Clarke County, Alabama, testified that he and his partner, Deputy James Kidd, were on routine patrol on the night of September 13, 1975, and that they received a dispatch over their radio at 11:17 p. m. to go to 211 Boyle Street in the city of Jackson to investigate a stabbing. The message requested a policeman and an ambulance and the operator stated that an ambulance was already en route from Grove Hill. McGee said they were only one-half mile from the Boyle Street address when they received the message. As they were looking for 211 Boyle Street, they heard a woman calling to them from a house approximately 100 feet off the street. They pulled into the yard of the house where the woman was calling and learned that the woman was the appellant, Laura Garraway. McGee further testified that they got out of their car and approached the front porch and saw a man sitting on the top step of the porch and he was slumped in a forward position. The man was later identified as the deceased, Homer Garraway. He had blood on his arm and chest and he was breathing heavily. McGee further testified that appellant was standing in the doorway talking very loudly. He said that she had on a red nightgown and was barefooted.

McGee further testified that he was trying to talk to the deceased but had a difficult time doing so, because appellant kept talking in a loud voice. He stated that neither he nor the Deputy asked appellant any question but she voluntarily made the statement, “I stabbed the_, and I wished I had killed the_ _” McGee further stated that appellant appeared to be drunk, that she was holding on to the screen door and she was weaving and her speech was slurred. Appellant objected to the question that led to the answer that “she appeared to be drunk” but the objection was not made until after the answer was given. This witness further testified he smelled the odor of alcohol on appellant’s breath. McGee further stated that appellant had blood on the front of her gown but he did not observe any marks, cuts, bruises or injuries of any kind on appellant.

McGee further testified that an examination of the front room of the house revealed broken glass from a soft drink bottle and the glass in the front door was broken out. McGee stated that he and Deputy Kidd left the deceased on the front porch while they made their investigation and when they returned to the front porch, the deceased was lying down instead of being slumped forward. He appeared to be dead. At this point the Sheriff and Coroner of Clarke County were called to the scene of the homicide. The Sheriff took appellant into custody and carried her to the Jackson Police Department where a PEI test was given to her by Police Officer Van Dee. The results of this test were not stated to the jury.

The Sheriff testified that he was alone with appellant in the car on the way to the Police Department. He stated he was close enough to her to smell alcohol on her, and she was talking disconnectedly.

Deputy James Kidd testified to substantially the same facts as Deputy McGee except he stated that he did not go inside the house where the deceased lived. He stated he stayed with the deceased on the front porch until he was carried to the funeral home. He stated that appellant was talking in a “drinking manner.” Appellant objected to the question that brought this answer, but the objection was made after the answer was given.

Mr. James L. Small, Assistant State Toxicologist, performed an autopsy on the deceased. Mr. Small’s qualifications were admitted by the defense. He testified that in his opinion the deceased was five feet, five inches in height and weighed about 160 pounds. He took a blood sample and tested it for the presence of alcohol. He stated the blood alcohol level was 0.17 and this amount of alcohol indicated that the deceased was certainly under the influence of alcohol at the time of his death.

Mr. Small described the external wounds on the body of the deceased, showing that he was cut on his arms and elbow and that he had a bruise on the side of his head and there was a deep cut on the left upper chest. He stated that he did an internal examination and found that the wound to the chest entered the chest cavity and passed through the lung and the main vessel that comes off the top of the heart, the aorta. He said that the left lung cavity was filled with blood. He further stated that the depth of the wound to the chest was approximately four inches. He rendered an opinion as to the cause of death, stating that death was due to bleeding and trauma associated with a stab wound to the chest inflicted by a cutting instrument. He further stated that this stab wound was consistent with having been made by a butcher knife.

Appellant testified in her behalf. She stated that she was 44 years of age and that the deceased was 63 years of age at the time of his death and that they had been married 20 some odd years. She further testified that on the day of the homicide her husband came home around 5:00 p. m. and he brought a pint of vodka or gin and a six-pack of beer and started drinking. She stated that the deceased started an argument with her on the front porch of the house and cursed her; that she left the front porch and went to the kitchen in order to get away from him, but he came back to the kitchen and continued to curse her. He then grabbed her and beat her with his fists and kicked her in the stomach, and the deceased then stabbed her with a pocketknife in her leg and she threw hot dish water on him. She further testified that the deceased picked up an ax and started to hit her with it but did not, but he did throw a bottle at her which broke and glass was scattered in the front room of the house. According to her testimony the deceased then ran out of the front door to the house and she locked the front door to keep him from coming back in. The deceased broke the glass out of the front door with a stick and reached inside and unlocked the door and he came to her with a stick of wood and started beating her. She testified that he knocked her down near the sink and threatened to kill her and that in an effort to protect herself, she grabbed the knife from a drawer beside the sink and cut and stabbed the deceased. That after the deceased was stabbed, he walked into the living room and sat in a chair. There was blood in the bottom of the chair. After sitting in the chair a few minutes, he got up and walked to the front porch and sat down. She testified that she went to the front porch and asked him if he wanted her to call a doctor, but he did not reply. She did call the police. She further testified that she weighed about 99 pounds and that she stabbed the deceased in trying to protect herself.

On cross-examination she testified that the deceased drank two cans or bottles of beer and most of the pint of gin; that she picked up the bottle of gin and drank it straight to keep him from drinking any more but she denied that this made her drunk. She further testified that the deceased threw two bottles at her and that both of them broke and she swept up a part of the glass to keep her grandchildren from cutting their feet. She identified State’s Exhibit One as the butcher knife she used to stab the deceased and this knife was admitted into evidence. She further stated that after the deceased cut her with a pocketknife, he closed the knife and put it back in his pocket.

Appellant was examined by a medical doctor in Jackson, Alabama, on September 18, 1975. He stated that his examination revealed that defendant had a black eye on the right side, that she had a two-by-two centimeter lump on the right side of her head and that she had a four-by-three centimeter bruise to the upper part of her arm; that she had an eight-by-three centimeter bruise to the right flank area and had two one-and-one-half centimeter puncture type wounds to the right mid-thigh area. The doctor further testified that in his opinion the puncture wounds were made by a sharp object, such as a knife and he estimated that these wounds were not over four or five days old.

On cross-examination the doctor testified that while he took into consideration the history given him by the patient, that if she had given him no history at all, he could have given an account of what happened to her, just by examining her.

One of the appellant’s attorneys testified that he had an opportunity to observe the injuries to appellant on September 16,1975, and that on that date appellant had a black eye and two puncture wounds on the inside of her thigh. He stated that he did not observe the bruises on her arm or back and that he observed her on the day she was released from the Clarke County Jail and her family brought her from the jail straight to his office.

Appellant claims that the Court committed reversible error in allowing Deputy Sheriff Rowdy McGee to testify that the defendant appeared to be drunk, and in permitting Deputy Sheriff James Kidd to testify that the defendant acted in a drunken manner. The record reveals in both instances that appellant’s objections were made after the witnesses had answered the questions. Witnesses may always be allowed to testify as to the appearance of other persons. Hamilton v. State, 281 Ala. 448, 203 So.2d 684.

Objection to a prosecutor’s question, which came after the witness’s answer, was too late. Miller v. State, 52 Ala.App. 525, 294 So.2d 774; Hollis v. State, 37 Ala.App. 453, 70 So.2d 279; Chambers v. State, 31 Ala.App. 269, 15 So.2d 742; Lucky v. State, 50 Ala.App. 324, 278 So.2d 772.

The statement made by appellant to the officers who first arrived to investigate the stabbing to the effect that she wished she had killed the deceased was properly admitted as a “spontaneous exclamation.” The officers had not addressed a single remark or question to appellant when she made this statement. Veith v. State, 48 Ala.App. 688, 267 So.2d 480; Moore v. State, 54 Ala.App. 22, 304 So.2d 263; Osner v. State, 54 Ala.App. 520, 310 So.2d 241.

In the hearing on the motion for a new trial appellant offered to show by the foreman of the jury that she was of the opinion that a defendant in a criminal case, if convicted and sentenced to ten years, would be entitled to a parole at an earlier date than a defendant who was sentenced to five years. The State objected to such testimony and the Court sustained the objection. The Court properly sustained the State’s objection.

The length of time a prisoner must serve on the sentence imposed before he is entitled to consideration for a parole is not a matter for the jury’s consideration. McCray v. State, 261 Ala. 275, 74 So.2d 491; Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583.

Had the jury made inquiry of the Court concerning the length of time a prisoner must serve before he could be considered for a parole and the Court responded thereto it would have been error to reverse. Lawley v. State, 264 Ala. 283, 87 So.2d 433; Robinson v. State, Ala.Cr.App., 335 So.2d 420, ms. released May 18, 1976.

It is the general rule in Alabama that a juror may not testify to an occurrence in the jury room amongst themselves for the purpose of impeaching their verdict. 1 McElroy, “The Law of Evidence in Alabama,” Sec. 94.06; Fox v. State, 49 Ala.App. 204, 269 So.2d 917.

The weight and credence given the testimony of the accused as to the issue of self-defense is a question for the jury. Moore v. State, 54 Ala.App. 22, 304 So.2d 263; Kemp v. State, 278 Ala. 637, 179 So.2d 762.

The oral charge of the Court to the jury was full and complete on all phases of this case. The judge charged the jury on all four degrees of homicide and the law of self-defense and stated that appellant being in her own home at the time of the homicide, was under no duty to retreat. He also charged the jury that an attack with a stick may be sufficient to justify acting in self-defense. The judge also charged the jury that the relative size and strength of the accused and the deceased were proper considerations in determining whether there was reasonable apprehension of danger and that the danger could be real or apparent so as to create a reasonable belief by the accused in the bona fide necessity for taking the life of the deceased in order to save her own.

There were a number of refused charges and we have considered each of them in the light of the Court’s oral charge and find the refused charges, stating correct principles of law, were fully, substantially and adequately covered by the excellent oral charge. Title 7, Section 273, Code of Alabama 1940.

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

The judgment of conviction is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Robert M. McCALL v. STATE of Alabama.
    3 Div. 459.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Marlin M. Mooneyham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   PER CURIAM.

Appellant, Robert M. McCall, was indicted by the Grand Jury of Montgomery County for the offense of unlawfully possessing marijuana, after having been previously convicted of the offense of possession of marijuana. He entered a plea of guilty to said offense, was sentenced to the penitentiary for a term of 2 years, and appeals to this Court.

This appeal was submitted to this Court on brief of Appellee, and no merit letter. Appellant is now, and was at all times in the lower court, represented by counsel.

We have examined carefully the entire record now before us and find that it affirmatively appears from the record that the Appellant was present in court with his counsel, was fully informed of his constitutional rights by the court, and voluntarily and understanding^ entered a plea of guilty as charged in the indictment.

There being no reversible error in the record of the judgment of the lower court is due to be, and is hereby affirmed. Twyman v. State, 293 Ala. 75, 300 So.2d 124.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: WALTER G. BRIDGES, Circuit Judge.

text:
    Harry B. NEW, Jr. v. STATE.
    4 Div. 365.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    J. Ronald Storey, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   WALTER G. BRIDGES, Circuit Judge.

Possession of marijuana contrary to law.

Sentence: four years in the penitentiary of the State of Alabama.

The appellant was indicted for “possession of marijuana contrary to law”. At trial the jury found the defendant guilty as charged in the indictment. The trial court pronounced sentence and set sentence in the penitentiary of the State of Alabama for a period of four years.

I

The appellant, prior to trial, made a motion to suppress any and all evidence and assigned as grounds that the arrest, search and seizure of his person, property and premises in connection with this case were illegal. The trial court denied the motion to suppress.

The appellant made a motion to require disclosure of unidentified informer on the grounds that the name of the alleged informer would be material to his defense and also be material to the determination of the issue of probable cause. The trial court denied the motion to require disclosure of the unidentified informer.

At trial the arresting officer Lamar Had-den on direct examination testified that the appellant was arrested on the afternoon of February 3, 1975, approximately 4:45 P.M. on Highway 52 in Houston County, Alabama. At the time and place of the arrest appellant was driving his small, light blue Chevrolet and in the automobile with him was only one other occupant, Anna Marie Free.

Agent Hadden testified that after checking appellant’s driver’s license, he searched appellant’s automobile, and found a brown bag containing green vegetable material on the rear floorboard partially under the rear seat behind the driver’s seat; that he turned the brown bag containing green vegetable material over to Dale Carter, a criminalist at Enterprise Laboratories and the green vegetable material was marijuana.

On cross-examination Agent Hadden testified that some 20 to 25 minutes prior to stopping appellant he received information from an informer that the appellant Harry New, Jr. was enroute from Geneva County to Dothan or Houston County, with some marijuana.

The court sustained the objection to appellant’s question to Agent Hadden, “. and who did you receive this information from?”

In response to questions, Agent Hadden testified that he received the information from the informer over the telephone; that he had known the informer for several years and that the informer had furnished him reliable information in the past and that the informer told him he had seen Harry New place marijuana in the car and described the car to be a small, light blue, Chevrolet.

Agent Hadden said he saw the brown paper sack as soon as he stopped the car and after checking appellant’s driver’s license he made a search of the car without a warrant.

On redirect examination Agent Hadden testified that the informer had given him information in the past which proved to be true and correct.

Criminalist Dale Carter testified that the green vegetable material in the brown paper bag was 371.8 grams of marijuana.

After his testimony the State rested whereupon the defendant made a motion to exclude the evidence and motion for a directed verdict. The motions were denied.

The State was then permitted over objection to reopen the case and outside the presence of the jury examined the Circuit Clerk, Mrs. Julia Trant. She testified that the appellant pleaded guilty to unlawful possession of marijuana on May 17, 1974. Her testimony was outside the presence of the jury and its purpose was limited by the court to enable the court to properly charge the jury on whether the charge was a felony or a misdemeanor.

Anna Marie Free testified for the defense that on February 3, 1975, she and appellant were living together in Dothan. She said that she and appellant went from their home in Dothan to Pat Johnson’s home in Malvern in appellant’s car. Pat Johnson was the only one at home when they arrived but later Farrell Jackson and Mike Roney came. She further testified that she and appellant stayed there about three hours and while there drank some beer, smoked some pot and talked and that the marijuana they smoked was Pat’s.

She further testified that Johnson went outside one time to check on gas for the heater, that Jackson and Roney came in about 30 minutes before she and appellant went back a different route.

She testified that appellant did not carry marijuana to Geneva County, that he did not have money to buy any and did not purchase any marijuana in Geneva County, that appellant did not have anything in his hands when he got in the car, that she did not see him place any marijuana in the car and that she did not know of any marijuana in the car before Mr. Hadden stopped them.

She testified Agent Hadden said he did not have a search warrant because the call was too fast. That he looked behind the seats and there was a paper bag on the floorboard in the back, and he pulled it out and it had marijuana in it, and that it was not readily visible from outside the car.

She testified that Pat Johnson told them a different way to return to Dothan and that the car she and appellant were in was a 1968 Chevy II.

Pat Johnson testified that appellant and Anna Marie Free came to his house on February 3, 1975, at about 1:00 or 2:00 o’clock and left around 4:30 or 5:00 o’clock and that he did not see appellant when the appellant got into his car to leave for his return trip.

On cross-examination, Pat Johnson testified that he told appellant not to go up “52” because of the police up “52.”

He further testified that he did not put marijuana in appellant’s car, but that they did smoke marijuana while appellant was down at his house in Malvern.

Farrell Jackson testified on direct examination that he and Mike Roney also resided in Pat Johnson’s house on February 3, 1975, and he arrived home between 3:30 and 4:30 and that appellant maybe had a jacket or something in his hands when he left but not a bag of marijuana.

On cross-examination he testified he did not put marijuana in appellant’s car.

Mike Roney testified that he saw appellant leave and did not notice anything in appellant’s hands. Further, in response to: “But he didn’t have anything in his hands when he left the house,” he replied, “No sir, I don’t believe so, no, sir.”

On cross-examination Mike Roney testified that he had been convicted of violation of the Georgia Controlled Substances Act, for the possession of drugs.

Defense rested and the jury recessed. The next day the defendant made a motion for mistrial and assigned the grounds that district attorney took from the clerk an instrument and purported to offer it into evidence in the presence of the jury and stated that he wished to offer into evidence a court record.

The State in answer said the motion was untimely and stated it should have been made the day before, if at all. Motion was denied.

The appellant made a motion for a new trial which motion was denied.

II

The appellant contends that the trial court erred in denying his motions for a directed verdict, exclusion of the evidence and for a new trial.

It is true that the courts of the State of Alabama have held that, in order to convict an accused of possession of illegal drugs, there must be evidence presented from which a jury could conclude beyond a reasonable doubt that such accused knew of the presence of drugs. But such knowledge could be established by circumstantial evidence. Parks v. State, 46 Ala.App. 722, 248 So.2d 761; Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520; Daniels v. State, 49 Ala.App. 654, 275 So.2d 169.

The appellant cited Radke v. State, 52 Ala.App. 397, 293 So.2d 312, affirmed, 292 Ala. 290, 293 So.2d 314, where appellant was merely present in a hamburger establishment and followed an enforcement officer and employee into a storeroom where employee got a box of marijuana down from a shelf as a basis of his defense that mere presence at the scene of the crime does not make an accused a party to the crime; but the court there further said:

“But when the presence of the accused at the scene is established and evidence of his knowledge of the presence of the prohibited substance is shown, along with any other incriminating evidence, the issue of the defendant’s guilt should be submitted to the jury.”

The appellant relies on Rueffert, supra, where the court said that where actual ma-nucaption is not shown and constructive possession is relied on, the State must show beyond a reasonable doubt, in addition to constructive possession of narcotics that the accused knew of the presence of prohibited substances.

This court held in Parks, supra, where evidence showed appellant was a mere passenger sitting on the right front seat of automobile being driven by another and that the illegal drugs were contained in two sacks on the floorboard of automobile immediately behind driver’s seat was insufficient to show defendant’s possession.

In this case appellant was not a mere passenger but rather was the driver and owner of the automobile exercising possession, dominion and control of and over the automobile. It had been in his possession, dominion and control in Dothan, on the trip to Malvern and from Pat Johnson’s home in Malvern to the place where Agent Hadden stopped it. He had been smoking “pot” at Pat Johnson’s and in fact the marijuana was found partially under the rear seat behind himself and there was disputed evidence that the marijuana was visible.

The jury could properly find that the appellant had the required knowledge of the presence of the marijuana in addition to any constructive possession of it.

The trial court properly submitted to the jury the issue of whether the appellant possessed the marijuana unlawfully.

Ill

The next point raised is that the trial court erred in failing to grant defendant’s motion to suppress on the failure of the trial court to require the State to disclose to the defendant the name of the informer who allegedly provided information which resulted in the search, seizure and arrest.

The appellant cites Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, in which the court said:

“. . .no fixed rule with respect to [the applicability of the government’s privilege to withhold] disclosure [of an informer’s identity] is justifiable. The problem is . one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.”

In Roviaro v. United States, supra, the informer was an active participant in the crime and he was the alleged purchaser of heroin. There the informer was the defendant’s sole material witness, the informant had helped set up the criminal occurrence and had played a prominent part in it.

In Dixon v. State, 39 Ala.App. 575, 105 So.2d 354, we affirmed the trial court sustaining solicitor’s objection to a question to arresting officer asking him where he got the tag number which tipped him off as to the Buick carrying the whiskey.

In that case the solicitor only objected and requested that he be allowed to ask witness if it was from a confidential source.

The trial court in sustaining the objection said that it made no difference whether or not the source was confidential. We held that the court’s ruling was not an abuse of discretion. The disclosure of the identity of an informer, as distinguished from a participating decoy, is not ordinarily in the public interest save where needful to show the innocence of the accused. Parsons v. State, 251 Ala. 467, 38 So.2d 209.

Appellant here had numerous witnesses to his activities and there is no evidence that the informer participated in any manner in the possession of the marijuana. The trial court did not abuse its discretion refusing disclosure of the identity of the informer as being in the public interest.

IV

The appellant further contends that the trial court erred in failing to grant appellant’s motion to suppress the evidence obtained in the warrantless search and seizure in that Officer Hadden did not possess sufficient evidence prior to the search to meet the burden of probable cause.

Agent Hadden testified that the informer had given him information in the past, which had proven reliable.

To meet the burden cast on it, the prosecution may justify the search of an automobile without a search warrant by establishing: (1) that there was prior reasonable cause for belief that the automobile contained articles which by law are subject to search and seizure, and (2) that the processing of a search warrant was impracticable because of imminence of escape or loss of evidence. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.

Reliability of information supplied by informer in the past to the witness satisfied probable cause. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62.

The best generally accepted definition of “probable cause” is quoted in Neugent v. State, Ala., S.Ct.Ms. 1679, June 4, 1976, from Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, where the question of probable cause was an issue in the issuance of a search warrant, and it applies here also in that it exists where: “. . . the facts and circumstances

within their [the officers’] knowledge and of which they had reasonable trustworthy information [are] . . . sufficient in themselves to warrant a man of reasonable caution in the belief that [an offense has been or is being committed] . [Bracketed material added.]

In this case, the informer told Agent Hadden that he had seen appellant place the marijuana in appellant’s small, blue Chevrolet and that this informer having given him reliable information in the past satisfies the first requirement set out in Carroll v. United States, supra. The second requirement that the processing of a search warrant was impracticable because of the imminence of escape or loss of evidence is met in that appellant was in a moving automobile on a public highway.

There was sufficient evidence to meet the burden of proof to find probable cause for Agent Hadden to stop and search appellant’s Chevrolet, seize the marijuana and charge the appellant with possessing marijuana unlawfully.

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

a. Circuit Clerk certificate of appeal,
b. Indictment of grand jury,
c. Motion to suppress,
d. Motion to require disclosure of informer,
e. Judgment of the court,
f. Motion for directed verdict,
g. Motion for a new trial,
h. Official Court Reporter’s transcript of testimony,
i. Appellant’s brief, and
j. Appellee’s brief.

From this examination, we conclude that error is not made to appear.

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

The judgment below is hereby

AFFIRMED.

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


author: G. H. WRIGHT, Jr., Circuit Judge.

text:
    Clarence MILLER and Charles Moore v. STATE.
    4 Div. 439.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Charles Tom Payne, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   G. H. WRIGHT, Jr., Circuit Judge.

The appellants Clarence Miller and Charles Moore were separately indicted by the Grand Jury of Coffee County, Alabama, for committing a crime against nature (sodomy). By agreement of the appellants, they were tried together and the jury found each guilty as charged in the indictments and the Court sentenced each of them to nine (9) years imprisonment.

The appellants were ably represented by court appointed counsel throughout the proceedings in the trial court and at the time sentence was pronounced and judgment entered. They are now represented here by other court appointed counsel.

On October 2, 1975, one Wayne Jackson was a prisoner in the Coffee County jail in Elba. After dinner on that day, Jackson was in the portion of the jail known as the “bull pen” with the appellants and other prisoners.

Jackson had been convicted shortly before of Grand Larceny and as he, the appellants, and other prisoners were in the bull pen, Jackson’s girl friend who had just been sentenced to three (3) years for her participation in the crime for which Jackson had been convicted passed by the cell and expressed her feelings towards him including her hope that he got a thousand years. Appellants and the other prisoners apparently shared her feelings towards Jackson and trouble thereafter ensued between Jackson, the appellants, and the other prisoners.

Jackson testified that appellant Moore tripped him causing him to fall and break his arm. Another of the prisoners by the name of Benjamin Bowers began beating on Jackson. After Bowers had struck Jackson five or six times, Jackson testified that the appellants made him strip and both of the appellants beat him with a belt, kicked him, and stomped on him. As a result of all of this, Jackson testified that he received a broken arm, his eye was cut, his lip busted, and his ear was injured.

After this, Jackson testified that appellant Moore took him back into one of the cells and made Jackson take appellant Moore’s penis into his mouth. Appellant Miller then told Jackson to take a shower after which Miller made Jackson take Miller’s penis into his mouth also. Afterwards, the appellants tied a cord around Jackson’s neck and choked him. Appellant Moore told Jackson that if he testified against them, they would have him killed or they would do it themselves. Jackson was treated for his injuries at the Elba Hospital that night and when being brought back to jail from the hospital, he made a complaint to Deputy Don Rayford about what had occurred.

Both appellants testified in their own behalf and admitted striking Jackson. However, they both denied that they had Jackson take their penises into his mouth.

On October 6, 1975, Sgt. J. R. Cox, of the Alabama Bureau of Investigation talked with appellant Moore at the Pike County jail in Troy. Deputy Rayford was present at the time. After Cox fully informed appellant Moore of his Miranda rights, he asked him what he knew about the incident at the Coffee County jail on October 2, 1975. Appellant Moore told Sgt. Cox that he had received a fifty-five (55) year sentence previously as a result of a statement that he had given without an attorney and that he was not going to make any statement or sign anything without an attorney. Sgt. Cox then immediately ceased questioning Moore.

Sheriff Neil Grantham, Sheriff of Coffee County, picked up appellant Moore on October 13,1975, at the Pike County jail in Troy for the purpose of taking him to the Coffee County jail in Elba. During the trip to Elba, the Sheriff and Moore engaged in a conversation and the Sheriff asked Moore if he wanted to tell him about the incident at the jail. The Sheriff told Moore, “you don’t have to say anything, you know that”, and Moore replied, “yes, I know it.” Appellant Moore then told the Sheriff he didn’t know anything about it. However, after arriving at the Coffee County jail and prior to going into the jail, Moore made a statement to the Sheriff. As to what occurred upon their arrival at the jail, a part of the Sheriff’s testimony is as follows:

“So we more or so just talked about everything until we got to the jail, in front of the jail. I said, ‘Chárles, you don’t want to get this off your conscience?’ I said, “What was bothering you in Troy?’ He said, “Well, I was just homesick, just wanted to get back down here.’ I said, ‘Well, do you want to talk to me about it?’ And, he went on voluntarily and made a statement to me.”

The Sheriff testified that prior to that time, he had not threatened appellant Moore, abused him, or offered him any hope of reward or any inducement to' get him to make a statement.

The record does not disclose what statement the appellant Moore made to the Sheriff at that time.

Appellant Moore’s version of what was said between he and the Sheriff upon arrival at the jail reads from the record as follows:

“A. He told me do I want to talk to him about jumping on Wayne Jackson. I told him I didn’t know nothing. So we got started talking. So we got to the Elba jail down here and he told me he was going to put me in one of those little old padded cells down there. I told him I wanted to go back upstairs. So he said, ‘No, I would rather for you to stay down here tonight.’ I said, ‘Well, I’ll talk to you.’ So he took me out of the car and me and him talked. He threatened me.
Q. What do you mean by threatened you?
A. He told me that if I didn’t sign that statement that there was something going to happen to me.
Q. Did he indicate to you what was going to happen?
A. No, he never did tell me.”

What statement, if any, the Sheriff wanted appellant Moore to sign at that time is not disclosed by the record.

The following afternoon, October 14, 1975, Sgt. Cox went to the Coffee County jail in response to a telephone call from Sheriff Grantham and took a written statement from appellant Moore which was introduced into evidence. Sgt. Cox, Sheriff Grantham and appellant Moore were present at the time this statement was taken. Prior to taking this statement from the Defendant, Sgt. Cox fully advised the Defendant of all of his constitutional rights and appellant Moore signed a written waiver of counsel form which was introduced into evidence. Sgt. Cox testified that neither he nor Sheriff Grantham threatened Moore or offered him any reward or hope of reward or any other inducement to get him to make a statement. Appellant Moore then made a statement to Sgt. Cox which was reduced to writing, read back to Moore by Sgt. Cox, and then signed by Moore. In his statement, Moore admitted beating Jackson and making Jackson take his penis into his mouth. He further stated in his statement, however, that he did not know whether or not appellant Miller made Jackson take Miller’s penis into his mouth.

Appellants contend that the Court committed reversible error in allowing appellant Moore’s statement to be introduced into evidence in that the statement was the sole product of trickery on the part of Sheriff Grantham and that the taking of this statement did not meet the constitutional requirements set out in the ease of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

It should be noted at this point that at the time of the taking of this statement, appellant Moore was 29 years of age, had a third grade education, and could not read but could sign his own name. His previous convictions for burglary and murder indicate that he is familiar with the law and court proceedings.

A confession may be admitted in evidence upon a proper showing by the state that the confession was made voluntarily and with full knowledge and understanding of the waiver of the defendant’s right to have an attorney present and of his privilege against self-incrimination. Bass v. State, 55 Ala.App. 5, 312 So.2d 576.

Appellant Moore was fully advised of his Miranda rights by Sgt. Cox at Troy on October 6, 1975. His reply at that time to Sgt. Cox in declining to make a statement without an attorney present shows that he fully understood his rights. Although Moore declined to answer questions at that time without an attorney present, the Miranda decision does not, in absence of a request for counsel, mandate the presence of counsel before questioning may be resumed. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Appellant Moore was next questioned seven days later by Sheriff Grant-ham while Moore was being taken to Elba. Whether the Miranda warning should be given before each interrogation must depend upon the circumstances of each case. The length of time and the events which occur between interrogations are relevant matters to consider. Jones v. State, 47 Ala.App. 568, 258 So.2d 910. In the present case, appellant Moore was fully advised of his rights on October 6th which he clearly understood, he was not questioned further until his conversation with Sheriff Grant-ham on October 13th and, although not given a full Miranda warning by the Sheriff, he was again reminded of his right to remain silent.

The statement made by appellant Moore to the Sheriff on October 13th, whatever it might have been, was made voluntarily according to the Sheriff’s testimony. Appellant Moore testified to the contrary and claimed he was threatened. Where the trial court finds on conflicting testimony that a confession was voluntarily made such finding will not be disturbed on appeal unless the appellate court is convinced that it is palpably contrary to the weight of the evidence. Bass v. State, supra.

Before taking appellant Moore’s written statement the following day, October 14, 1975, which was introduced into evidence, Sgt. Cox again fully explained to the appellant his Miranda rights. Appellant stated that he understood his rights, signed a waiver of counsel form, gave his statement which Sgt. Cox reduced to writing, and signed the statement after having it read to him by Sgt. Cox. There is no evidence whatsoever that any threats were made against appellant Moore at the time nor was he offered any inducement, reward, or hope of reward to get him to make and sign the statement.

It is the totality of the circumstances which determines an effective waiver of one’s constitutional rights. Gamble v. State, 48 Ala.App. 605, 266 So.2d 817. Under the circumstances here, we hold that appellant Moore voluntarily and understandingly waived his constitutional right to remain silent and that the Trial Judge properly admitted the statement into evidence.

The appellants next contend that the trial court committed reversible error in allowing Wayne Jackson, the victim, to testify about certain injuries he received from being beaten by the appellants and other prisoners in the Coffee County jail prior to and subsequent to the alleged acts of sodomy. During the direct examination of the victim by the District Attorney, the following occurred:

“Q. Let me ask you this, without saying anything about what any doctor told you or anything what consisted of the injuries that you sustained, Wayne?”

Appellant objected to this question on the grounds that it was not a part of the res gestae and on the additional ground that whether or not force was used in this case was immaterial to the charge against the Defendants. The Court overruled the objection, but before the question could be answered the District Attorney propounded the following additional question:

“Q. What all was wrong with you specifically? Not what somebody told you, but what you know was wrong with you.”

Appellant then injected the further ground for objection that parties other than the appellants were responsible for at least some or all of the victim’s injuries. Appellant’s objection was again overruled and the victim answered as follows:

“A. Well, my eye was cut up here, my lip was busted through and through and then my ear I couldn’t hear out of it. I believe this ear here because it was all swollen up. My arm was broken. Other than that is all I know was really wrong with me at the time until I did see a doctor later on.”

Prior to this questioning, the victim had already testified extensively, without objection, as to the injuries he had received. “Charles Moore, he, tripped me and I fell. That is when I broke my arm.” (R.p.10) “I had a towel and I was trying to get my mouth to quit bleeding. My lip was busted and my eye.” (R.p.12) “So Neil he come up there and he looked at me and he told them to unlock the door and let him carry me to the doctor. So Neil Grantham carried me over to the Elba hospital that night, and they treated me over at the hospital — .” (R.p.13) This last statement by the victim about being carried to the doctor and the hospital was objected to by appellants but the objection came too late.

It is not error to allow a witness to relate facts, over objection, which have already been related without objection. Oatsvall v. State, Ala.Cr.App., 327 So.2d 735 (1975). See also Purser v. State, 39 Ala.App. 169, 96 So.2d 689, and cases cited therein. Therefore, this testimony by the victim concerning his injuries was properly admitted into evidence.

We have reviewed the entire record in this case as required by law and conclude that the appellants received a fair trial, free of error.

The foregoing opinion was prepared by Hon. G. H. WRIGHT, Jr., Circuit Judge, temporarily on duty on the Court pursuant to subsection (4) of Section 38, Title 13, Code 1940, as amended; the Court has adopted his opinion as its own.

The judgment below is hereby

Affirmed.

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


text:
    David Lee GOODE, alias v. STATE.
    5 Div. 350.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.

      John A. Tinney, Roanoke, W. Larry Ray, Opelika, for appellant.
    William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant, an adult indigent, was indicted for rape. Trial and conviction therefor followed. The jury fixed punishment at ten years imprisonment. This appeal is from a judgment entered pursuant to the jury’s verdict.

I

Prior to the trial, defendant filed a motion with the circuit clerk as follows:

“MOTION TO DISMISS
“Comes now the defendant by and through his attorneys, John Tinney and W. Larry Ray, and moves the Court to dismiss the above styled case against him on the basis that the State ought to be collaterally estopped from prosecuting this action in that on the 23rd day of May, 1975, at the Spring Session of the Circuit Court of Macon County, Alabama, the defendant was acquitted of the charge of first degree burglary of the home occupied by the victim who is the subject of the above styled cause of action.
“Further that the acquittal of the burglary charge, in substance, was equivalent to a verdict and finding by the jury that the defendant herein was not at the residence of Mrs. Sara Gladys Smith at the time of the alleged offense which is the subject of this indictment.
“WHEREFORE, defendant moves that the State ought not to prosecute the above action on the grounds of collateral estoppel and double jeopardy.
“s/ John A. Tinney Attorney for Defendant
“Filed: November 4, 1975”

Also on the same date he filed with the circuit clerk a plea as follows:

“PLEA OF AUTREFOIS ACQUIT
“Comes the defendant by and through his attorneys, John Tinney and W. Larry Ray, and for plea says:
“He ought not to be required to answer this indictment and that the State ought not to prosecute the same against him, because at the Spring Session of the Circuit Court of Macon County, on to-wit: the 19th and 20th days of May, 1975, he was charged and put upon trial under an indictment charging that he did, break into and enter an inhabited dwelling in the possession of Dr. Murray Smith located at 403 Elm Street, Tuskegee, Alabama, which was occupied by Dr. Murray Smith and Sara Gladys Smith, persons lodged therein, and that after trial, hearing, and consideration as to said offense, the defendant was acquitted and discharged. And the defendant says that he is now charged in this indictment with raping Mrs. Sara Gladys Smith, which is based upon the same matter and transactions as that for which he was tried and acquitted as of foresaid in the first indictment. All of which the defendant is ready to verify, and prays that he be discharged in the present indictment.”

The State, on November 11,1975, filed an instrument as follows:

“REPLICATION TO DEFENDANT’S MOTION OF AUTREFOIS ACQUIT
“Comes the State of Alabama by and through the Attorney General for said State, and for replication to the defendant’s plea says: That the state ought not to be precluded from prosecuting the said indictment against the defendant on account of any fact stated in said plea, because he says:
“1. That the offense for which the defendant was first tried is not identical to a common intent, with the charge in the second indictment.
“2. That the offense for which the defendant is presently charged is not precisely the same in law and fact as the former one relied on under the plea of autrefois acquit.
“3. That the facts as averred in the second indictment for rape, if found to be true, would not warrant a conviction upon the first indictment for burglary (with the intent to steal).
“4. That the facts necessary to convict on the second prosecution would not necessarily have convicted on the first.
“5. That the facts which will convict on the second prosecution would not be sufficient to convict on the first.
“6. That rape and burglary are not identical crimes in law or in fact.
“All of which the solicitor is ready to verify, and he prays judgment that the defendant be convicted of the premises in said indictment alleged.”

Neither of the instruments, supra, was verified under oath. We pretermit discussing the necessity, vel non, of such verification. We merely note that they were not verified.

The motion and the plea, supra, had a common objective, although in different form. The objective was to preclude the trial of rape indictment because defendant on a prior occasion had been tried and acquitted of an indictment for burglary of the house occupied by the victim who is the subject of the instant cause of action.

We note that the defendant did not offer any evidence in support of his motion and plea of autrefois acquit. In the absence of evidence to support the issues, if any, created by these instruments, we have nothing to review. One offense is for burglary and the other for rape.

This Court cannot take judicial knowledge of the record in the Circuit Court. Rhodes v. Downing, 13 Ala.App. 494, 68 So. 788, cert. denied Ex parte Rhodes, 195 Ala. 696, 70 So. 1014. This Court takes judicial knowledge of its own records and the Circuit Court of its records. Statham v. Statham, 282 Ala. 322, 211 So.2d 456(6); Lovejoy v. State, 32 Ala.App. 140, 22 So.2d 532(2), cert. denied 247 Ala. 48, 22 So.2d 537; 9 Alabama Digest, Evidence, @=»43(2), page 61. So we are not informed by judicial notice or evidence as to the issues created and tried in the burglary case. It could be that there was failure of adequate proof that the residence, the scene of the alleged rape, was broken into, which is a necessary element of burglary. As we say, the issues in the alleged burglary trial are not before this Court for consideration. We will not look to the instant record for such absent issues.

We will not charge the trial court with error in overruling the motion and plea, supra.

II

The next contention that appellant asserts as error is the admission of evidence, over defendant’s timely and appropriate objection, relating to another burglary and theft on the same night by defendant. But this evidence was admissible if it tends to identify defendant as the guilty party who broke into the residence (on the same night) of the alleged victim of rape and was guilty of the rape.

We note here that the victim of the alleged rape took the stand and could not identify her assailant. So the State had to resort to outside testimony and circumstances to establish and identify the defendant as the guilty one. This was done by evidence which we will briefly delineate. Defendant timely and appropriately objected thereto. These objections were overruled.

The State offered a witness, Mr. Gregg, who testified that on the night of January 31 and February 1, 1973 (the same night that the rape occurred) his dry cleaning and laundry plant was broken into and entered, wherefrom two watches, in his constructive possession, were stolen. One of the watches was a Bulova and the other a Timex.

It further appears from the evidence of another witness that he purchased a Bulova watch from defendant and paid him $5.00 therefor; that at the time of the purchase, defendant told him that if the Bulova watch was not satisfactory, or words to that effect, that he had another watch he would let him have. The witness, Gregg, the laundry owner, identified this Bulova watch, the subject of sale, as the one stolen from his laundry on the night of the entry, January 31, — February 1, 1973.

During the trial, evidence was adduced and admitted that a group of highway patrolmen, probably nine or ten in number, lined up at arms’ length from each other and made a detailed search of the premises .immediately to the rear of the residence where defendant lived at the time of the search. This search covered a distance of about 100 feet in depth. This search was soon after the laundry burglary.

While making the search, one of the officers discovered a glass jar, according to his evidence, containing two watches, one a Timex, and the other a Jaguar LaCougar. The Timex was identified by the laundry owner, Mr. Gregg, as the one taken from his laundry. The other was properly identified as the one stolen from the home of the alleged rape victim on the night of said offense. In the glass jar was a paper napkin that was similar to napkins found in the defendant’s home which they searched on the occasion when the premises to the rear of the house were searched. A well-trodden path led from defendant’s home to the jar.

We think this evidence tended to establish the identity of defendant as the alleged rapist. That being true, it was admissible. Baggett v. State, 45 Ala.App. 320, 229 So.2d 819(1) (1969); McCary v. State, 39 Ala.App. 642, 107 So.2d 903(3), cert. denied 268 Ala. 697, 107 So.2d 906.

As we view the evidence, defendant’s possession of the Bulova carried a strong inference that he also had possessed the Timex found behind his house. Both the Timex and the Bulova watches were, according to the evidence, stolen on the same night.

The possession of recently stolen goods will support an inference of burglary if there is also proof of breaking and entering so connected in time as to permit the further inference that the larceny was the product of the breaking and entering. Wildman v. State, 42 Ala.App. 357, 165 So.2d 396, cert. denied 276 Ala. 708, 165 So.2d 403.

Here, the evidence shows that defendant was in the constructive possession of the Timex found in the jar behind his house.

Also in the jar was the Jaguar LaCougar watch which was also recently stolen from the house of the rape victim. Thus, an inference could be drawn that the defendant had prior actual possession of both watches found in the jar. Such possession of both watches carries a reasonable inference that he committed both burglaries— the one in the laundry and the one in which the rape victim resided. All of this evidence tended to identify defendant as the person who forcibly entered the home of the rape victim and sexually assaulted her. The evidence was all admissible to that end.

We wish to note that in the instant trial, defendant did not testify and did not offer any evidence at all.

We think the record is free of any erroneous ruling by the court and should be affirmed. It is so ordered.

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

AFFIRMED.

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


text:
    Victor K. TAYLOR v. STATE.
    6 Div. 43.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    William M. Dawson, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, Randolph P. Reaves, Asst. Atty. Gen., Birmingham, for appellee.
   HARRIS, Judge.

Appellant was convicted of robbery and the jury fixed his punishment at ten years imprisonment in the penitentiary. Prior to arraignment appellant was found to be indigent and counsel was appointed to represent him at arraignment and trial. After conviction he gave notice of appeal and was furnished a free transcript and trial counsel was appointed to represent him on appeal.

The evidence is undisputed that on April 6, 1975, James Edward Bailey, an employee of Pinkerton Security Agency, was on duty as a security guard at Butrus Supermarket in Birmingham, Alabama, when a black man came in the store and pointed a pistol in his face and took his .38 Smith and Wesson pistol out of his holster. Appellant did not testify or offer any evidence in his defense.

Bailey further testified that when the black man entered the store, he walked up to where he was sitting near the front door and asked him for a match and he told the man that he did not have a match. The man turned and walked toward one of the two cash registers then in operation and he thought the man was going to buy some matches, but a few moments later the man came back to Bailey and pointed a .22 caliber pistol in his face and took his pistol. After getting Bailey's pistol he held one pistol on Bailey and the other pistol on the person at the first cashier register demanding that he remove the money drawer from the register and place it on the counter. After the drawer was placed on the counter, another employee threw a beer or wine bottle on the counter near the bandit and the bottle exploded. The explosion of the bottle scared the would-be robber and he turned and fled out the front door of the building. Bailey followed him out to the parking lot and got within two or three car lengths of the fleeing robber who turned and fired two shots at Bailey. Bailey ran back in the store and called the police who arrived in five or ten minutes. He told the officers that the robber was short, stocky built, had sideburns and was wearing some type of cap.

On April 16,1975, appellant was arrested at another grocery store and at that time the pistol taken from Bailey at Butrus Supermarket was recovered.

Appellant objected to any in-court identification and was allowed to conduct a voir dire examination of Bailey out of the presence and hearing of the jury. Bailey testified that the robber was in the store for five or ten minutes and for two to three minutes of that time he was face to face with the robber who had the pistol pointed directly at his face. He further testified that later he was called at his home to go to the City jail to view a lineup. He immediately picked out the fifth man in the lineup as the man who took his pistol at gunpoint on April 6,1975. He also stated that at the lineup he was informed that his pistol had been recovered. He said, “I recognized the person the moment I saw him,” but at that time he didn’t know that anyone was under arrest. Bailey further testified that he had never seen the robber before but he made a positive identification of appellant as the man who took his pistol saying, “I mean when someone walks up to you and puts a gun in your face, you look at him.” Bailey further testified that he had seen appellant on several occasions since the lineup when he was called to Court as a witness.

At the conclusion of Bailey’s testimony the Court announced that he was satisfied about the identification of appellant.

Sergeant E. M. Cousins of the Birmingham Police Department was called on voir dire concerning the voluntariness of a confession. He testified that on April 17, 1975, he took a statement from appellant at the Birmingham City Jail and he was aware that there had been a struggle when appellant was arrested at Ritchey’s Grocery Store. The struggle was between Mr. Rit-chey, his son, and appellant, and Mr. Rit-chey got shot in the scuffle. No police officers were involved in the scuffle and struggle with appellant. Sergeant Cousins stated that after appellant had been identified in the lineup, he read him his constitutional rights from a Miranda card and that appellant stated that he understood his rights and was ready to make a statement. A written statement was taken and signed by appellant.

Appellant was then called on voir dire. He testified that Officer White informed him of some cases in which he was under investigation and told him “if I would scratch his back, he would scratch his.” He further stated that at the time of this interrogation he was faint and dizzy as a result of a head wound and that he was never informed of his rights and never signed a waiver. He also denied that he signed any statement concerning the robbery of the security guard at Butrus Supermarket. Appellant admitted that Mr. Ritchey was the man that hit him on the head.

During the voir dire hearing the officer testified that no promises, threats, rewards, pressure or other inducements were used or employed to get appellant to make a statement.

Appellant was shown the written statement that he signed and he stated that it was his name but not his signature. The officer explained that he had appellant put his initials at the top of the statement so that he would know that no one added anything to the statement between his initials and his signature at the bottom of the statement.

The next witness called by the State was Officer L. H. Clements who testified that he first saw appellant at Ritchey Grocery where he had been taken into custody prior to being transported to City Hall. This witness testified that he advised appellant of his rights and he said he understood his rights and he made a statement admitting that he had taken the pistol from the guard at Butrus Supermarket having walked in with a .22 pistol and disarming the guard. This witness further stated that appellant made the statement that the cashier or someone frightened him and he ran out of the store and fired two shots at the guard who had run out of the store behind him.

At the conclusion of the hearing on the motion to suppress the Court overruled the motion to suppress the identification of appellant and also held that his confession was voluntarily and knowingly made and would be read to the jury for whatever weight and credibility they wished to accord to it.

Back before the jury Mr. Bailey testified to substantially the same facts that he stated on the voir dire hearing. He was shown State’s Exhibit No. 1 and identified the pistol that appellant took from him in the robbery on April 6, 1975. He further testified that he went to a lineup and positively identified the appellant as the man who took his pistol at gunpoint.

The State called Officer L. H. Clements. The Court cautioned the prosecutor and this witness to avoid bringing up the fact that appellant was apprehended at the scene of another alleged robbery. Clements testified that on January 16,1975, he received a call to proceed to Ritchey’s Grocery and when he and his partner, Officer Bruce Jones, arrived, they saw appellant inside the store. They took appellant into custody and were given a .38 caliber revolver by Mr. Ritchey. Clements then stated that Sergeant Tommy White of the robbery detail made a preliminary investigation and they transported appellant to the robbery detail on the eighth floor at City Hall. Over objection of defense counsel this witness testified that after appellant was placed in the patrol car, he gave him his constitutional rights by reading from a Miranda card and appellant stated that he had taken the revolver from the guard at Butrus Supermarket. Appellant further made the statement that he had a .22 caliber pistol and after he took the pistol from the guard, a clerk threw a bottle and he ran out of the store and fired two shots at the guard. Prior to this statement being made the pre-Miranda predicate was properly laid showing no promises, threats, rewards or other inducements of any kind were made to get appellant to make a statement.

The next witness for the State was Officer Edward M. Cousins. He testified that on January 17, 1975, he saw appellant at the Birmingham City Jail. Appellant was placed in a lineup with six other black males as near his size as possible and he was viewed by Mr. James Bailey who positively identified him as number five in the lineup. He further said that two other people from Butrus Food Store viewed the lineup but could not identify appellant. Officer Cousins then testified that after advising appellant of his rights he made a statement which Officer Cousins wrote down and appellant signed. After the proper predicate was laid, this statement was admitted into evidence as State’s Exhibit No. 2. This witness admitted the first paragraph of this statement was in his words but the last paragraph was in the words of appellant. The statement is as follows:

“Victor K. Taylor BM 25 6564 Kimberly Ave.
“V.K.T.
“I Victor Taylor on my own free will and accord am making a statement concerning the robbery of Butrus Food Center at 4301 10th Ave. No. on 6 Jan. 75, at 6:30 P.M.
“I walked into store and walked up to the security guard and as I drew my pistol I grabbed the security guard pistol. A lady in the store threw a wine bottle at me. I then ran out of the store. The security guard started chasing me and I shot at him one time.
“Victor K. Taylor”

The State then recalled Officer Clements who testified that he turned the .38 caliber pistol over to the property clerk where it remained locked up until he brought it to Court. The pistol was admitted into evidence over appellant’s objection that it had not been properly identified.

Appellant made a motion to exclude the State’s evidence on the ground that a prima facie case had not been made and the gun had not been sufficiently identified. This motion was overruled and denied. Appellant requested the affirmative charge which was refused.

During the prosecutor’s closing argument defense counsel objected to the prosecution inferring that appellant had been arrested in another grocery store. This objection was overruled.

Defense counsel moved for a mistrial when the prosecutor told the jury that they could draw some inference from the fact that appellant had been picked up at another grocery store.

The Court overruled the motion for a mistrial stating “but I will instruct the jury that in arguing the case, the lawyers can draw inferences which they draw from the evidence; but stick strictly to the evidence in this case, Mr. Dunn.”

The prosecutor again stated, “What inference do you draw from the place he was caught ten days later?” An objection was interposed and overruled.

The prosecutor further said, “If you turn this man loose based on the evidence or you give him a minimum sentence two confessions, caught in a grocery store —” Another objection was interposed and overruled.

There was no attempt by the State to show that appellant committed another robbery at the time he was arrested. The trial court was extremely careful in limiting the State’s proof to the fact that appellant was arrested at a second grocery store where the pistol taken in the first robbery was recovered — that, and nothing more.

A wide latitude and liberal rules are allowed counsel in drawing inferences from the evidence in their arguments to the jury. Alexander v. State, 37 Ala.App. 533, 71 So.2d 520; Espey v. State, 270 Ala. 669, 120 So.2d 904; Haynes v. State, 40 Ala.App. 106, 109 So.2d 738; Beaird v. State, 219 Ala. 46, 121 So. 38.

In Wilkins v. State, 29 Ala.App. 349, 197 So. 75, the rule governing collateral offenses is stated to be:

“It is a well-established common-law rule that in a criminal prosecution proof which shows or tends to show that the accused is guilty of the commission of other crimes or offenses at other times, even though of the same nature as the one charged in the indictment, is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged unless the other offenses are connected with the offense for which he is on trial. In other words, proof of such collateral offenses cannot be used as substantive evidence to establish the guilt of the accused as to the crime charged. 20 Am.Jur., Section 309, pp. 287, 288. Wharton’s Criminal Evidence, 10th Ed., Volume 1, Section 30, p. 59. This well-established principle of criminal evidence, however, is subject to several, equally well-established exceptions, which include cases where intent or identity is involved. As found in 22 R.C.L., Section 39, p. 1204: ‘But this general rule is not to be followed blindly and evidence rejected on the sole ground that it does show the commission of another crime. If evidence is relevant and competent it should be admitted regardless of its incidental effect. Accordingly it is held that evidence of another crime is admissible where it tends to identify the accused.’ “And we also add that such evidence should also be admitted where it tends to show the intent with which the act was done. Or as stated in Underhill’s Criminal Evidence, 4th Ed., Section 181, p. 318: ‘To this general rule there are several distinct exceptions which have been permitted from absolute necessity, to aid in the detection and punishment of crime. These exceptions ought to be carefully limited and guarded by the courts and their number should not be increased. But it must be admitted that the modern tendency on the part of the courts is to be liberal in the admission of evidence of collateral crimes. The exceptions to the general rule arise either from the necessity of the case or the nature of the offense, as for example, * * * when the intent or motive is to be proved from the circumstances, or where the identity of the accused is expressly in issue.’ ” (Italics supplied.)

A confession may not be received in evidence until the prosecution shows to the satisfaction of the Court that such confession was voluntarily made. Womack v. State, 281 Ala. 499, 205 So.2d 579.

It has been further held that where evidence of the circumstances surrounding a confession is conflicting on voir dire, the trial court must decide on its admissibility and then, if the confession is admitted, controverted testimony for defendant goes to the jury on its credibility. Sheppard v. State, 49 Ala.App. 674, 275 So.2d 353; Bass v. State, 55 Ala.App. 5, 312 So.2d 576.

In McNair v. State, 50 Ala.App. 465, 280 So.2d 171, we find the rule stated to be:

“This Court has previously recognized the fact that it is not unusual for the volun-tariness inquiry to present conflicting evidence. Edgil v. State, 36 Ala.App. 379, 56 So.2d 677. When such a conflict occurs and the trial judge finds that the confession was voluntarily made, great weight must be given to his judgment. This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the weight of the evidence. Emerson v. State, 281 Ala. 29, 198 So.2d 613, supra; Harris v. State, 280 Ala. 468, 195 So.2d 521; Edgil v. State, supra. Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. Minirth v. State, 40 Ala.App. 527, 117 So.2d 355, cert. denied, 270 Ala. 228, 117 So.2d 360.”

Appellant was given the Miranda rights and warnings on several occasions. The proper predicate was laid showing that the confession was not induced by threats, promises, harm, hope of favor or other inducements operating on the prisoner’s mind at the time he confessed. We hold the confession was properly admitted into evidence for the jury’s consideration. Lokos v. State, 278 Ala. 586, 179 So.2d 714; Sanders v. State, 278 Ala. 453, 179 So.2d 35.

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

The judgment of conviction is affirmed.

AFFIRMED.

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